---------------
Warrant Agreement
Dated as of March 27, 2002
---------------
WARRANT AGREEMENT, dated as of March 27, 2002, between BioTime, Inc., a
California corporation (the "Company"), and Alfred D. Kingsley (the "Lender").
The Company proposes to issue a Common Share Purchase Warrant, as
hereinafter described (the "Warrants"), to purchase up to an aggregate of 30,000
of its Common Shares, no par value (the "Common Stock") (the shares of Common
Stock issuable upon exercise of the Warrants being referred to herein as the
"Warrant Shares"), in connection with the Revolving Line of Credit Agreement of
even date (the "Credit Agreement"), between the Company and the Lender.
In consideration of the foregoing and for the purpose of defining the
terms and provisions of the Warrant and the respective rights and obligations
thereunder of the Company and each registered owner of the Warrant (the
"Holder"), the Company and the Lender hereby agree as follows:
SECTION 1. Issuance of Warrants; Term of Warrants. Concurrently with
the execution and delivery of this Agreement and the Credit Agreement, the
Company is issuing and delivering to the Lender a Warrant to purchase 30,000
Warrant Shares, which Warrant shall be represented by a certificate in
substantially the form of Exhibit A hereto. Subject to the terms of this
Agreement, a Holder of any of such Warrant (including any Warrants into which
the Warrant may be divided) shall have the right, which may be exercised at any
time prior to 5:00 p.m., New York Time on March 26, 2007 (the "Expiration
Date"), to purchase from the Company the number of fully paid and nonassessable
Warrant Shares which the Holder may at the time be entitled to purchase upon
exercise of any of such Warrant.
SECTION 2. Transferability and Form of Warrant.
2.1 Registration. The Warrant shall be numbered and shall be
registered on the books of the Company (the "Warrant Register") as issued. The
Company and the Warrant Agent (if appointed) shall be entitled to treat the
Holder of any Warrant as the owner in fact thereof for all purposes and shall
not be bound to recognize any equitable or other claim or interest in such
Warrant on the part of any other person, and shall not be liable for any
registration of transfer of any Warrant which is registered or to be registered
in the name of a fiduciary or the nominee of a fiduciary unless made with the
actual knowledge that a fiduciary or nominee is committing a breach of trust in
requesting such registration or transfer, or with such knowledge of such facts
that its participation therein amounts to bad faith. The Warrant shall initially
be registered in the name of the Lender.
2.2 Restrictions on Exercise and Transfer. The Warrant may not
be exercised, sold, pledged, hypothecated, transferred or assigned, in whole or
in part, unless a registration statement under the Securities Act of 1933, as
amended (the "Act"), and under any applicable state securities laws is effective
therefor or, an exemption from such registration is then available. Any
exercise, sale, pledge, hypothecation, transfer, or assignment in violation of
the foregoing restriction shall be deemed null and void and of no binding
effect. The Company
1
shall be entitled to obtain, as a condition precedent to its issuance of any
certificates representing Warrant Shares or any other securities issuable upon
any exercise of the Warrant, a letter or other instrument from the Holder
containing such covenants, representations or warranties by such Holder as
reasonably deemed necessary by Company to effect compliance by the Company with
the requirements of applicable federal and/or state securities laws.
2.3 Transfer. Subject to Section 2.2, the Warrant shall be
transferable only on the Warrant Register upon delivery thereof duly endorsed by
the Holder or by his duly authorized attorney or representative, or accompanied
by proper evidence of succession, assignment or authority to transfer, which
endorsement shall be guaranteed by a bank or trust company or a broker or dealer
which is a member of the National Association of Securities Dealers, Inc. In all
cases of transfer by an attorney, the original power of attorney, duly approved,
or a copy thereof, duly certified, shall be deposited and remain with the
Company (or the Warrant Agent, if appointed). In case of transfer by executors,
administrators, guardians or other legal representatives, duly authenticated
evidence of their authority shall be produced, and may be required to be
deposited and remain with the Company (or the Warrant Agent, if appointed) in
its discretion. Upon any registration of transfer, the Company shall execute and
deliver (or if appointed, the Warrant Agent shall countersign and deliver) a new
Warrant or Warrants to the persons entitled thereto.
2.4 Form of Warrant. The text of the Warrant and of the
Purchase Form shall be substantially as set forth in Exhibit A attached hereto.
The price per Warrant Share and the number of Warrant Shares issuable upon
exercise of each Warrant are subject to adjustment upon the occurrence of
certain events, all as hereinafter provided. The Warrants shall be executed on
behalf of the Company by its Chairman of the Board, President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or Assistant Secretary. The signature of any such officers on the
Warrants may be manual or facsimile, provided, however, that the signature of
any such officers must be manual until such time as a Warrant Agent is
appointed.
Warrants bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any one of them shall have
ceased to hold such offices prior to the delivery of such Warrants or did not
hold such offices on the date of this Agreement.
In the event that the Company shall appoint a Warrant Agent to
act on its behalf in connection with the division, transfer, exchange or
exercise of Warrants, the Warrants issued after the date of such appointment
shall be dated as of the date of countersignature thereof by the Warrant Agent
upon division, exchange, substitution or transfer. Until such time as the
Company shall appoint a Warrant Agent, Warrants shall be dated as of the date of
execution thereof by the Company either upon initial issuance or upon division,
exchange, substitution or transfer.
2
SECTION 3. Countersignature of Warrants. In the event that the Company
shall appoint a Warrant Agent to act on its behalf in connection with the
division, transfer, exchange or exercise of Warrants, the Warrants issued after
the date of such appointment shall be counter signed by the Warrant Agent (or
any successor to the Warrant Agent then acting as warrant agent) and shall not
be valid for any purpose unless so countersigned. Warrants may be countersigned,
however, by the Warrant Agent (or by its successor as warrant agent hereunder)
and may be delivered by the Warrant Agent, notwithstanding that the persons
whose manual or facsimile signatures appear thereon as proper officers of the
Company shall have ceased to be such officers at the time of such
countersignature, issuance or delivery. The Warrant Agent (if so appointed)
shall, upon written instructions of the Chairman of the Board, the President, an
Executive or Senior Vice President, the Treasurer or the Controller of the
Company, countersign, issue and deliver Warrants entitling the Holders thereof
to purchase not more than 30,000 Warrant Shares (subject to adjustment pursuant
to Section 10 hereof) and shall countersign and deliver Warrants as otherwise
provided in this Agreement.
SECTION 4. Exchange of Warrant Certificates. Each Warrant certificate
may be exchanged, at the option of the Holder thereof, for another Warrant
certificate or Warrant certificates in different denominations entitling the
Holder or Holders thereof to purchase a like aggregate number of Warrant Shares
as the certificate or certificates surrendered then entitle each Holder to
purchase. Any Holder desiring to exchange a Warrant certificate or certificates
shall make such request in writing delivered to the Company at its principal
office (or, if a Warrant Agent is appointed, the Warrant Agent at its principal
office) and shall surrender, properly endorsed, the certificate or certificates
to be so exchanged. Thereupon, the Company (or, if appointed, the Warrant Agent)
shall execute and deliver to the person entitled thereto a new Warrant
certificate or certificates, as the case may be, as so requested, in such name
or names as such Holder shall designate.
SECTION 5. Exercise of Warrants; Listing.
5.1 Exercise of Warrants. A Warrant may be exercised upon
surrender of the certificate or certificates evidencing the Warrants to be
exercised, together with the form of election to purchase on the reverse thereof
duly filled in and signed, which signature shall be guaranteed by a bank or
trust company or a broker or dealer which is a member of the National
Association of Securities Dealers, Inc., to the Company at its principal office
(or if appointed, the principal office of the Warrant Agent) and upon payment of
the Warrant Price (as defined in and determined in accordance with the
provisions of Sections 9 and 10 hereof) to the Company (or if appointed, to the
Warrant Agent for the account of the Company), for the number of Warrant Shares
in respect of which such Warrants are then exercised. Payment of the aggregate
Warrant Price (defined in Section 9 herein) shall be made in cash or by
certified or bank cashier's check.
3
Subject to Section 6 hereof, upon the surrender of the Warrant
and payment of the Warrant Price as aforesaid, the Company (or if appointed, the
Warrant Agent) shall cause to be issued and delivered with all reasonable
dispatch to or upon the written order of the Holder and in such name or names as
the Holder may designate, a certificate or certificates for the number of full
Warrant Shares so purchased upon the exercise of such Warrant, together with
cash, as provided in Section 11 hereof, in respect of any fractional Warrant
Shares otherwise issuable upon such surrender. Such certificate or certificates
shall be deemed to have been issued and any person so designated to be named
therein shall be deemed to have become a holder of record of such Warrant Shares
as of the date of the surrender of such Warrants and payment of the Warrant
Price, as aforesaid. The rights of purchase represented by the Warrant shall be
exercisable, at the election of the Holder thereof, either in full or from time
to time in part and, in the event that a certificate evidencing the Warrant is
exercised in respect of less than all of the Warrant Shares purchasable on such
exercise at any time prior to the date of expiration of the Warrant, a new
certificate evidencing the unexercised portion of the Warrant will be issued,
and the Warrant Agent (if so appointed) is hereby irrevocably authorized to
countersign and to deliver the required new Warrant certificate or certificates
pursuant to the provisions of this Section and Section 3 hereof, and the
Company, whenever required by the Warrant Agent (if appointed), will supply the
Warrant Agent with Warrant certificates duly executed on behalf of the Company
for such purpose.
5.2 Listing of Shares on Securities Exchange; Exchange Act
Registration. The Company will promptly use its best efforts to cause the
Warrant Shares to be listed, subject to official notice of issuance, on all
national securities exchanges on which the Common Stock is listed and whose
rules and regulations require such listing, as soon as possible following the
date hereof.
The Company will promptly notify the Holders in the event that
the Company plans to register the Warrants with the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
SECTION 6. Payment of Taxes. The Company will pay all documentary stamp
taxes, if any, attributable to the initial issuance of Warrant Shares upon the
exercise of Warrants; provided, however, that the Company shall not be required
to pay any tax or taxes which may be payable in respect of any transfer involved
in the issue or delivery of any Warrant or certificates for Warrant Shares in a
name other than that of the registered Holder of such Warrants.
SECTION 7. Mutilated or Missing Warrants. In case any of the
certificates evidencing the Warrants shall be mutilated, lost, stolen or
destroyed, the Company may in its discretion issue and deliver (and, if
appointed, the Warrant Agent shall countersign and deliver) in exchange and
substitution for and upon cancellation of the mutilated Warrant certificate, or
in lieu of and substitution for the Warrant certificate lost, stolen or
destroyed, a new Warrant certificate of like tenor, but only upon receipt of
evidence reasonably satisfactory to the Company and the Warrant Agent (if so
appointed) of such loss, theft or destruction of such
4
Warrant and an indemnity or bond, if requested, also reasonably satisfactory to
them. An applicant for such a substitute Warrant certificate shall also comply
with such other reasonable regulations and pay such other reasonable charges as
the Company (or the Warrant Agent, if so appointed) may prescribe.
SECTION 8. Reservation of Warrant Shares; Purchase and Cancellation of
Warrants.
8.1 Reservation of Warrant Shares. There have been reserved,
and the Company shall at all times keep reserved, out of its authorized Common
Stock, a number of shares of Common Stock sufficient to provide for the exercise
of the rights of purchase represented by the outstanding Warrants and any
additional Warrants issuable hereunder. The Transfer Agent for the Common Stock
and every subsequent transfer agent for any shares of the Company's capital
stock issuable upon the exercise of any of the rights of purchase aforesaid will
be irrevocably authorized and directed at all times to reserve such number of
authorized shares as shall be required for such purpose. The Company will keep a
copy of this Agreement on file with the Transfer Agent for the Common Stock and
with every subsequent transfer agent for any shares of the Company's capital
stock issuable upon the exercise of the rights of purchase represented by the
Warrants. The Warrant Agent, if appointed, will be irrevocably authorized to
requisition from time to time from such Transfer Agent the stock certificates
required to honor outstanding Warrants upon exercise thereof in accordance with
the terms of this Agreement. The Company will supply such Transfer Agent with
duly executed stock certificates for such purposes and will provide or otherwise
make available any cash which may be payable as provided in Section 11 hereof.
The Company will furnish such Transfer Agent a copy of all notices of
adjustments and certificates related thereto, transmitted to each Holder
pursuant to subsection 10.3 hereof.
8.2 Purchase of Warrants by the Company. The Company shall
have the right, except as limited by law, other agreements or herein, with the
consent of the Holder, to purchase or otherwise acquire Warrants at such times,
in such manner and for such consideration as it may deem appropriate.
8.3 Cancellation of Warrants. In the event the Company shall
purchase or otherwise acquire Warrants, the same shall thereupon be cancelled
and retired. The Warrant Agent (if so appointed) shall cancel any Warrant
surrendered for exchange, substitution, transfer or exercise in whole or in
part.
SECTION 9. Warrant Price. Subject to any adjustments required by
Section 10 hereof, the price per share at which Warrant Shares shall be
purchasable upon exercise of a Warrant (as to any particular Warrant, the
"Warrant Price") shall be Four Dollars ($4.00) per share.
5
SECTION 10. Adjustment of Warrant Price and Number of Warrant Shares.
The number and kind of securities purchasable upon the exercise of each Warrant
and the Warrant Price shall be subject to adjustment from time to time upon the
happening of certain events, as hereinafter defined.
10.1 Adjustments. The number of Warrant Shares purchasable
upon the exercise of each Warrant and the Warrant Price shall be subject to
adjustment as follows:
(a) In the event that the Company shall (i) pay a
dividend in shares of Common Stock or make a distribution in shares of Common
Stock, (ii) subdivide its outstanding shares of Common Stock, (iii) combine its
outstanding shares of Common Stock into a smaller number of shares of Common
Stock or (iv) reclassify or change (including a change to the right to receive,
or a change into, as the case may be (other than with respect to a merger or
consolidation pursuant to the exercise of appraisal rights), shares of stock,
other securities, property, cash or any combination thereof) its Common Stock
(including any such reclassification or change in connection with a
consolidation or merger in which the Company is the surviving corporation), the
number of Warrant Shares purchasable upon exercise of each Warrant immediately
prior thereto shall be adjusted so that the Holder of each Warrant shall be
entitled to receive the kind and number of Warrant Shares or other securities of
the Company or other property which he would have owned or have been entitled to
receive after the happening of any of the events described above, had such
Warrant been exercised immediately prior to the happening of such event or any
record date with respect thereto. An adjustment made pursuant to this paragraph
(a) shall become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
(b) In case the Company shall issue rights, options
or warrants to all holders of its outstanding Common Stock, without any charge
to such holders, entitling them to subscribe for or purchase shares of Common
Stock at a price per share which is lower at the record date mentioned below
than the then current market price per share of Common Stock (as defined in
paragraph (d) below), the number of Warrant Shares thereafter purchasable upon
the exercise of each Warrant shall be determined by multiplying the number of
Warrant Shares theretofore purchasable upon exercise of each Warrant by a
fraction, of which the numerator shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights, options or warrants plus the
number of additional shares of Common Stock offered for subscription or purchase
in connection with such rights, options or warrants, and of which the
denominator shall be the number of shares of Common Stock outstanding on the
date of issuance of such rights, options or warrants plus the number of shares
which the aggregate offering price of the total number of shares of Common Stock
so offered would purchase at the current market price per share of Common Stock
at such record date. Such adjustment shall be made whenever such rights, options
or warrants are issued, and shall become effective immediately after the record
date for the determination of stockholders entitled to receive such rights,
options or warrants.
(c) In case the Company shall distribute to all
holders of its shares of Common Stock, (including any distribution made in
connection with a merger in which the Company is the surviving corporation),
evidences of its indebtedness or assets (excluding cash, dividends or
distributions payable out of consolidated earnings or earned surplus and
dividends or distributions referred to in paragraph (a) above) or rights,
options or warrants, or convertible or exchangeable securities containing the
right to subscribe for or purchase shares of Common
6
Stock (excluding those referred to in paragraph (b) above), then in each case
the number of Warrant Shares thereafter purchasable upon the exercise of each
Warrant shall be determined by multiplying the number of Warrant Shares
theretofore purchasable upon the exercise of each Warrant by a fraction, of
which the numerator shall be the then current market price per share of Common
Stock (as defined in paragraph (d) below) on the date of such distribution, and
of which the denominator shall be the then current market price per share of
Common Stock, less the then fair value (as determined by the Board of Directors
of the Company or, in the case of Warrants held by the Lender, an independent
investment banker which shall be mutually agreeable to the parties, whose
determination, in each case, shall be conclusive) of the portion of the assets
or evidences of indebtedness so distributed or of such subscription rights,
options or warrants, or of such convertible or exchangeable securities
applicable to one share of Common Stock. Such adjustment shall be made whenever
any such distribution is made, and shall become effective on the date of
distribution retroactive to the record date for the determination of
shareholders entitled to receive such distribution.
(d) For the purpose of any computation under
paragraphs (b) and (c) of this Section, the current market price per share of
Common Stock at any date shall be the average of the daily last sale prices for
the 20 consecutive trading days ending one trading day prior to the date of such
computation. The closing price for each day shall be the last reported sales
price regular way or, in case no such reported sale takes place on such day, the
average of the closing bid and asked prices regular way for such day, in each
case on the principal national securities exchange on which the shares of Common
Stock are listed or admitted to trading or, if not so listed or admitted to
trading, the last sale price of the Common Stock on the Nasdaq Stock Market or
any comparable system. If the current market price of the Common Stock cannot be
so determined, the Board of Directors of the Company shall reasonably determine
the current market price on the basis of such quotations as are available.
(e) No adjustment in the number of Warrant Shares
purchasable hereunder shall be required unless such adjustment would require an
increase or decrease of at least one percent (1%) in the number of Warrant
Shares purchasable upon the exercise of each Warrant; provided, however, that
any adjustments which by reason of this paragraph (e) are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations shall be made with respect to the number of Warrant
Shares purchasable hereunder, to the nearest tenth of a share and with respect
to the Warrant Price payable hereunder, to the nearest whole cent.
(f) Whenever the number of Warrant Shares purchasable
upon the exercise of each Warrant is adjusted, as herein provided, the Warrant
Price payable upon exercise of each Warrant shall be adjusted by multiplying
such Warrant Price immediately prior to such adjustment by a fraction, of which
the numerator shall be the number of Warrant Shares purchasable upon the
exercise of each Warrant immediately prior to such adjustment, and of which the
denominator shall be the number of Warrant Shares purchasable immediately
thereafter.
7
(g) No adjustment in the number of Warrant Shares
purchasable upon the exercise of each Warrant need be made under paragraphs (b)
and (c) if the Company issues or distributes to each Holder of Warrants the
rights options, warrants, or convertible or exchangeable securities, or
evidences of indebtedness or assets referred to in those paragraphs which each
Holder of Warrants would have been entitled to receive had the Warrants been
exercised prior to the happening of such event or the record date with respect
thereto. No adjustment need be made for a change in the par value of the Warrant
Shares.
(h) For the purpose of this subsection 10.1, the term
"shares of Common Stock" shall mean (i) the class of stock designated as the
Common Stock of the Company at the date of this Agreement, or (ii) any other
class of stock resulting from successive changes or reclassifications of such
shares consisting solely of changes in par value, or from par value to no par
value, or from no par value to par value. In the event that at any time, as a
result of an adjustment made pursuant to paragraph (a) above, the Holders shall
become entitled to purchase any securities of the Company other than shares of
Common Stock, thereafter the number of such other shares so purchasable upon
exercise of each Warrant and the Warrant Price of such shares shall be subject
to adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Warrant Shares contained in
paragraphs (a) through (i), inclusive, and the provisions of Section 5 and
subsections 10.2 through 10.5, inclusive, with respect to the Warrant Shares,
shall apply on like terms to any such other securities.
(i) Upon the expiration of any rights, options,
warrants or conversion or exchange privileges, if any thereof shall not have
been exercised, the Warrant Price and the number of Warrant Shares purchasable
upon the exercise of each Warrant shall, upon such expiration, be readjusted and
shall thereafter be such as it would have been had it been originally adjusted
(or had the original adjustment not been required, as the case may be) as if (A)
the only shares of Common Stock so issued were the shares of Common Stock, if
any, actually issued or sold upon the exercise of such rights, options, warrants
or conversion or exchange rights and (B) such shares of Common Stock, if any,
were issued or sold for the consideration actually received by the Company upon
such exercise plus the aggregate consideration, if any, actually received by the
Company for the issuance, sale or grant of all such rights, options, warrants or
conversion or exchange rights whether or not exercised.
10.2 Voluntary Adjustment by the Company. The Company may at
its option, at any time during the term of the Warrants, reduce the then current
Warrant Price to any amount deemed appropriate by the Board of Directors of the
Company.
10.3 Notice of Adjustment. Whenever the number of Warrant
Shares purchasable upon the exercise of each Warrant or the Warrant Price of
such Warrant Shares is adjusted, as herein provided, the Company shall, or in
the event that a Warrant Agent is appointed, the Company shall cause the Warrant
Agent promptly to, mail by first class, postage prepaid, to each Holder notice
of such adjustment or adjustments. Such notice shall set forth the number of
Warrant Shares purchasable upon the exercise of each Warrant and the Warrant
Price
8
of such Warrant Shares after such adjustment, setting forth a brief statement of
the facts requiring such adjustment and setting forth the computation by which
such adjustment was made.
10.4 No Adjustment for Dividends. Except as provided in
subsection 10.1, no adjustment in respect of any dividends shall be made during
the term of a Warrant or upon the exercise of a Warrant.
10.5 Preservation of Purchase Rights Upon Merger,
Consolidation, etc. In case of any consolidation of the Company with or merger
of the Company into another corporation or in case of any sale, transfer or
lease to another corporation of all or substantially all the property of the
Company, the Company or such successor or purchasing corporation, as the case
may be, shall execute an agreement that each Holder shall have the right
thereafter, upon such Holder's election, either (i) upon payment of the Warrant
Price in effect immediately prior to such action, to purchase upon exercise of
each Warrant the kind and amount of shares and other securities and property
(including cash) which he would have owned or have been entitled to receive
after the happening of such consolidation, merger, sale, transfer or lease had
such Warrant been exercised immediately prior to such action (such shares and
other securities and property (including cash) being referred to as the "Sale
Consideration") or (ii) to receive, in cancellation of such Warrant (and in lieu
of paying the Warrant price and exercising such Warrant), the Sale Consideration
less a portion thereof having a fair market value (as reasonably determined by
the Company) equal to the Warrant Price (it being understood that, if the Sale
Consideration consists of more than one type of shares, other securities or
property, the amount of each type of shares, other securities or property to be
received shall be reduced proportionately); provided, however, that no
adjustment in respect of dividends, interest or other income on or from such
shares or other securities and property shall be made during the term of a
Warrant or upon the exercise of a Warrant. The Company shall mail by first class
mail, postage prepaid, to each Holder, notice of the execution of any such
agreement. Such agreement shall provide for adjustments, which shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Section 10. The provisions of this subsection 10.5 shall similarly apply to
successive consolidations, mergers, sales, transfers or leases. The Warrant
Agent (if appointed) shall be under no duty or responsibility to determine the
correctness of any provisions contained in any such agreement relating to the
kind or amount of shares of stock or other securities or property receivable
upon exercise of Warrants or with respect to the method employed and provided
therein for any adjustments and shall be entitled to rely upon the provisions
contained in any such agreement.
10.6 Statement on Warrants. Irrespective of any adjustments in
the Warrant Price or the number or kind of shares purchasable upon the exercise
of the Warrants, Warrants issued before or after such adjustment may continue to
express the same price and number and kind of shares as are stated in the
Warrants initially issuable pursuant to this Agreement.
SECTION 11. Fractional Interests. The Company shall not be required to
issue fractional Warrant Shares on the exercise of Warrants. If more than one
Warrant shall be presented for exercise in full at the same time by the same
Holder, the number of full Warrant
9
Shares which shall be issuable upon the exercise thereof shall be computed on
the basis of the aggregate number of Warrant Shares purchasable on exercise of
the Warrants so presented. If any fraction of a Warrant Share would, except for
the provisions of this Section 11, be issuable on the exercise of any Warrant
(or specified portion thereof), the Company shall pay an amount in cash equal to
the average of the daily closing sale prices (determined in accordance with
paragraph (d) of subsection 10.1) per share of Common Stock for the 20
consecutive trading days ending one trading day prior to the date the Warrant is
presented for exercise, multiplied by such fraction.
SECTION 12. No Rights as Shareholders; Notices to Holders. Nothing
contained in this Agreement or in any of the Warrants shall be construed as
conferring upon the Holders or their transferees the right to vote or to receive
dividends or to consent or to receive notice as shareholders in respect of any
meeting of shareholders for the election of directors of the Company or any
other matter, or any rights whatsoever as shareholders of the Company. If,
however, at any time prior to the expiration of the Warrants and prior to their
exercise, any of the following events shall occur:
(a) the Company shall declare any dividend payable in any
securities upon its shares of Common Stock or make any distribution (other than
a regular cash dividend, as such dividend may be increased from time to time, or
a dividend payable in shares of Common Stock) to the holders of its shares of
Common Stock; or
(b) the Company shall offer to the holders of its shares of
Common Stock on a pro rata basis any cash, additional shares of Common Stock or
other securities of the Company or any right to subscribe for or purchase any
thereof; or
(c) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation, merger, sale, transfer or lease
of all or substantially all of its property, assets, and business as an
entirety) shall be proposed,
then in any one or more of said events the Company shall (a) give notice in
writing of such event as provided in Section 14 hereof and (b) if the Warrants
have been registered pursuant to the Act, cause notice of such event to be
published once in The Wall Street Journal (national edition), such giving of
notice and publication to be completed at least 10 days prior to the date fixed
as a record date or the date of closing the transfer books for the determination
of the stockholders entitled to such dividend, distribution, or subscription
rights or for the determination of stockholders entitled to vote on such
proposed dissolution, liquidation or winding up or the date of expiration of
such offer. Such notice shall specify such record date or the date of closing
the transfer books or the date of expiration, as the case may be. Failure to
publish, mail or receive such notice or any defect therein or in the publication
or mailing thereof shall not affect the validity of any action in connection
with such dividend, distribution or subscription rights, or such proposed
dissolution, liquidation or winding up, or such offer.
10
SECTION 13. Appointment of Warrant Agent. At such time as the Company
shall register Warrants under the Act, the Company shall appoint a Warrant Agent
to act on behalf of the Company in connection with the issuance, division,
transfer and exercise of Warrants. At such time as the Company appoints a
Warrant Agent, the Company shall enter into a new Warrant Agreement with the
Warrant Agent pursuant to which all new Warrants will be issued upon
registration of transfer or division, which will reflect the appointment of the
Warrant Agent, as well as additional customary provisions as shall be reasonably
requested by the Warrant Agent in connection with the performance of its duties.
In the event that a Warrant Agent is appointed, the Company shall (i) promptly
notify the Holders of such appointment and the place designated for transfer,
exchange and exercise of the Warrants, and (ii) take such steps as are necessary
to insure that Warrants issued prior to such appointment may be exchanged for
Warrants countersigned by the Warrant Agent.
SECTION 14. Notices; Principal Office. Any notice pursuant to this
Agreement by the Company or by any Holder to the Warrant Agent (if so
appointed), or by the Warrant Agent (if so appointed) or by any Holder to the
Company, shall be in writing and shall be delivered in person, or mailed first
class, postage prepaid (a) to the Company, at its office, Attention: President
or (b) to the Warrant Agent, at its offices as designated at the time the
Warrant Agent is appointed. The address of the principal office of the Company
is 935 Pardee Street, Berkeley, California 94710. Each party hereto may from
time to time change the address to which notices to it are to be delivered or
mailed hereunder by notice to the other party.
Any notice mailed pursuant to this Agreement by the Company or
the Warrant Agent to the Holders shall be in writing and shall be mailed first
class, postage prepaid, or otherwise delivered, to such Holders at their
respective addresses on the books of the Company or the Warrant Agent, as the
case may be.
SECTION 15. Successors. Except as expressly provided herein to the
contrary, all the covenants and provisions of this Agreement by or for the
benefit of the Company and the Lender shall bind and inure to the benefit of
their respective successors and permitted assigns hereunder.
SECTION 16. Merger or Consolidation of the Company. The Company will
not merge or consolidate with or into, or sell, transfer or lease all or
substantially all of its property to, any other corporation unless the successor
or purchasing corporation, as the case may be (if not the Company), shall
expressly assume, by supplemental agreement, the due and punctual performance
and observance of each and every covenant and condition of this Agreement to be
performed and observed by the Company.
11
SECTION 17. Investment Representations. Lender represents and warrants
to BioTime that:
17.1 Lender has received the Company's financial statements
for the year ended on December 31, 2001, as will be included in its Form 10-K
for such fiscal year, its annual report on Form 10-K for the fiscal year ended
December 31, 2000, and quarterly report on Form 10-Q for the fiscal quarter and
nine months ended September 30, 2001 (the "Disclosure Documents"). Lender is
relying on the information provided in the Disclosure Documents or otherwise
communicated to Lender in writing by the Company. Lender has not relied on any
statement or representations inconsistent with those contained in the Disclosure
Documents. Lender has had a reasonable opportunity to ask questions of and
receive answers from the executive officers and directors of the Company, or one
or more of its officers, concerning the Company and to obtain additional
information, to the extent possessed or obtainable without unreasonable effort
or expense, necessary to verify the information in the Disclosure Documents. All
such questions have been answered to Lender's satisfaction;
17.2 Lender understands that the Warrant and the Warrant
Shares are being offered and sold without registration under the Act or
qualification under the California Corporate Securities Law of 1968, or under
the laws of other states, in reliance upon the exemptions from such registration
and qualification requirements for non-public offerings. Lender acknowledges and
understands that the availability of the aforesaid exemptions depends in part
upon the accuracy of certain of the representations, declarations and warranties
contained herein, which Lender hereby makes with the intent that they may be
relied upon by the Company and its officers and directors in determining
Lender's suitability to acquire the Warrant. Lender understands and acknowledges
that no federal, state or other agency has reviewed or endorsed the offering of
the Warrant or the Warrant Shares or made any finding or determination as to the
fairness of the offering or completeness of the information in the Disclosure
Documents;
17.3 Lender understands that the Warrant and the Warrant
Shares may not be offered, sold, or transferred in any manner, and the Warrant
may not be exercised, unless subsequently registered under the Act, or unless
there is an exemption from such registration available for such offer, sale or
transfer;
17.4 Lender has such knowledge and experience in financial and
business matters to enable Lender to utilize the information contained in the
Disclosure Documents, or otherwise made available to Lender to evaluate the
merits and risks of an investment in the Warrant and the Warrant Shares and to
make an informed investment decision with respect thereto.
17.5 Lender is acquiring the Warrant solely for Lender's own
account and for long-term investment purposes, and not with a view to, or for
sale in connection with, any distribution of the Warrant or Warrant Shares; and
12
17.6 Lender is an "accredited investor," as such term is
defined in Regulation D promulgated under the Act.
SECTION 18. Registration Rights.
18.1 The Company agrees, at its expense, upon written request
from the Lender, to register under the Act, the Warrant and the Warrant Shares
and to take such other actions as may be necessary to allow the Warrant and the
Warrant Shares to be freely tradable, without restrictions, in compliance with
all regulatory requirements. A written request for registration shall specify
the quantity of the Warrant Shares intended to be sold, the plan of distribution
and the identity of the sellers, which may include the Lender and assignees of
its rights hereunder (collectively, "Selling Securities Holders"), and whether
the registration shall be pursuant to an underwritten public offering or a
"shelf' registration pursuant to Rule 415 (or similar rule that may be adopted
by the Securities and Exchange Commission). The Company shall not be obligated
to file more than two such registration statements, other than registration
statements on Form S-3. The Company shall keep such registration statements
effective for a period of at least nine months, except that registration
statements on Form S-3 shall be kept effective for at least three years ( or
such lesser period as the parties may agree, but in no event beyond the
completion of the distribution or distributions being made pursuant thereto).
The Company shall utilize Form S-3 if it qualifies for such use. The Company
shall make all filings required with respect to the registration statements and
will use its best efforts to cause such filings to become effective, so that the
Warrant and Warrant Shares being registered shall be registered or qualified for
sale under the securities or blue sky laws of such jurisdictions as shall be
reasonably appropriate for distribution of the Warrant and Warrant Shares
covered by the registration statement. The Company will furnish to the Selling
Securities Holders such numbers of copies of a prospectus, including a
preliminary prospectus, in conformity with the requirements of the Act and such
other related documents as the Selling Securities Holders may reasonably request
in order to effect the sale of the Warrant and Warrant Shares. To effect any
offering pursuant to a registration statement under this Section, the Company
shall enter into an agreement containing customary representations and
warranties, and indemnification and contribution provisions, all for the benefit
of Selling Securities Holders, and, in the case of an Underwritten public
offering. an underwriting agreement with an investment banking firm selected by
the Lender and reasonably acceptable to the Company, containing such customary
representations and warranties, and indemnification and contribution provisions
18.2 If, at any time, the Company proposes to register any of
its securities under the Act (otherwise than pursuant to Section 18.1 above or
on a Form S-8 if such form cannot be used for registration of the Warrant or
Warrant Shares pursuant to its terms), the Company shall, as promptly as
practicable, give written notice to the Lender. The Company shall include in
such registration statement the Warrant and any Warrant Shares proposed to be
sold by the Selling Securities Holders. Notwithstanding the foregoing, if the
offering of the Company's securities is to be made through underwriters, the
Company shall not be required to include the Warrant and Warrant Shares if and
to the extent that the managing underwriter reasonably believes in good faith
that such inclusion would materially adversely affect such
13
offering unless the Selling Securities Holders agree to postpone their sales
until 10 days after the distribution is completed.
18.3 The Company shall pay the cost of the registration
statements filed pursuant to this Agreement, including without limitation all
registration and filing fees, fees and expenses of compliance with securities or
blue sky laws (including counsel's fees and expenses in connection therewith),
printing expenses, messenger and delivery expenses, internal expenses of the
Company, listing fees and expenses, and fees and expenses of the Company's
counsel, independent accountants and other persons retained or employed by the
Company. Selling Securities Holders shall pay any underwriters discounts
applicable to the Warrant and Warrant Shares.
SECTION 19. Legends. The Warrants and Warrant Shares issued pursuant to
this Agreement shall bear an appropriate legend, conspicuously disclosing the
restrictions on exercise and transfer under Section 2.2 of this Agreement until
the same are registered for sale under the Act. The Company agrees that upon the
sale of the Warrant and Warrant Shares pursuant to a registration statement or
an exemption, upon the presentation of the certificates containing such a legend
to it's transfer agent, it will remove such legend. The Company further agrees
to remove the legend at such time as registration under the Act shall no longer
be required.
SECTION 20. Applicable Law. This Agreement and each Warrant issued
hereunder shall be governed by and construed in accordance with the laws of the
State of California, without giving effect to principles of conflict of laws.
SECTION 21. Benefits of this Agreement. Nothing in this Agreement shall
be construed to give to any person or corporation other than the Company, the
Warrant Agent (if appointed) and the Holders any legal or equitable right,
remedy or claim under this Agreement; but this Agreement shall be for the sole
and exclusive benefit of the Company, the Warrant Agent and the Holders of the
Warrants.
SECTION 22. Counterparts. This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
SECTION 23. Captions. The captions of the Sections and subsections of
this Agreement have been inserted for convenience only and shall have no
substantive effect.
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
BIOTIME, INC.
By: ________________________________
Name: Paul Segall, Ph.D
Title: Chairman and Chief
Executive Officer
Attest:
By: ______________________________
Name: Judith Segall
Title: Secretary
____________________________________
Alfred D. Kingsley
15
EXHIBIT A
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR UNDER APPLICABLE STATE SECURITIES LAWS. THIS WARRANT MAY NOT BE
EXERCISED, SOLD, PLEDGED, HYPOTHECATED, TRANSFERRED OR ASSIGNED EXCEPT UNDER AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES
LAWS, UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
VOID AFTER 5:00 P.M. NEW YORK TIME, March 26, 2007
Certificate No. ______ Warrant to Purchase
[Insert number of Shares]
Shares of Common Stock
BIOTIME, INC.
COMMON SHARE PURCHASE WARRANTS
This certifies that, for value received, [Insert name of Holder] or
registered assigns (the "Holder"), is entitled to purchase from BioTime, Inc. a
California corporation (the "Company"), at a purchase price per share [Insert
Warrant Price determined pursuant to Sections 9 and 10 of the Warrant Agreement]
(the "Warrant Price"), the number of its Common Shares, no par value per share
(the "Common Stock"), shown above. The number of shares purchasable upon
exercise of the Common Share Purchase Warrants (the "Warrants") and the Warrant
Price are subject to adjustment from time to time as set forth in the Warrant
Agreement referred to below. Outstanding Warrants not exercised prior to 5:00
p.m., New York time, on March 26, 2007 shall thereafter be void.
Subject to restriction specified in the Warrant Agreement, Warrants may
be exercised in whole or in part by presentation of this Warrant Certificate
with the Purchase Form on the reverse side hereof duly executed, which signature
shall be guaranteed by a bank or trust company or a broker or dealer which is a
member of the National Association of Securities Dealers, Inc., and simultaneous
payment of the Warrant Price (or as otherwise set forth in Section 10.5) of the
Warrant Agreement at the principal office of the Company (or if a Warrant Agent
is appointed, at the principal office of the Warrant Agent). Payment of such
price shall be made in cash or by certified or bank cashier's check. As provided
in the Warrant Agreement, the Warrant Price and the number or kind of shares
which may be purchased upon the exercise of the Warrant evidenced by this
Warrant Certificate are, upon the happening of certain events, subject to
modification and adjustment.
16
This Warrant Certificate is issued under and in accordance with a
Warrant Agreement dated as of March 27, 2002 between the Company and Alfred D.
Kingsley and is subject to the terms and provisions contained in the Warrant
Agreement, to all of which the Holder of this Warrant Certificate by acceptance
of this Warrant Certificate consents. A copy of the Warrant Agreement may be
obtained by the Holder hereof upon written request to the Company. In the event
that pursuant to Section 13 of the Warrant Agreement a Warrant Agent is
appointed and a new warrant agreement entered into between the Company and such
Warrant Agent, then such new warrant agreement shall constitute the Warrant
Agreement for purposes hereof and this Warrant Certificate shall be deemed to
have been issued pursuant to such new warrant agreement.
Upon any partial exercise of the Warrant evidenced by this Warrant
Certificate, there shall be issued to the Holder hereof a new Warrant
Certificate in respect of the shares of Common Stock as to which the Warrant
evidenced by this Warrant Certificate shall not have been exercised. This
Warrant Certificate may be exchanged at the office of the Company (or the
Warrant Agent, if appointed) by surrender of this Warrant Certificate properly
endorsed either separately or in combination with one or more other Warrant
Certificates for one or more new Warrant Certificates evidencing the right of
the Holder thereof to purchase the aggregate number of shares as were
purchasable on exercise of the Warrants evidenced by the Warrant Certificate or
Certificates exchanged. No fractional shares will be issued upon the exercise of
any Warrant, but the Company will pay the cash value thereof determined as
provided in the Warrant Agreement. This Warrant Certificate is transferable at
the office of the Company (or the Warrant Agent, if appointed) in the manner and
subject to the limitations set forth in the Warrant Agreement.
The Holder hereof may be treated by the Company, the Warrant Agent (if
appointed) and all other persons dealing with this Warrant Certificate as the
absolute owner hereof for any purpose and as the person entitled to exercise the
rights represented hereby, or to the transfer hereof on the books of the
Company, any notice to the contrary notwithstanding, and until such transfer on
such books, the Company (and the Warrant Agent, if appointed) may treat the
Holder hereof as the owner for all purposes.
Neither the Warrant nor this Warrant Certificate entitles any Holder to
any of the rights of a stockholder of the Company.
[This Warrant Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Warrant Agent.]*
17
DATED:
BIOTIME, INC.
(Seal) By:________________________
Title:
Attest:____________________
[COUNTERSIGNED:
,
WARRANT AGENT
By: _________________________________]*
Authorized Signature
- --------------------
* To be part of the Warrant only after the appointment of a Warrant Agent
pursuant to Section 13 of the Warrant Agreement.
18
PURCHASE FORM
(To be executed upon exercise of Warrant)
To BioTime, Inc.:
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant Certificate for, and to purchase
thereunder, _____ shares of Common Stock, as provided for therein, and tenders
herewith payment of the purchase price in full in the form of cash or a
certified or bank cashier's check in the amount of $_________.
Please issue a certificate or certificates for such shares of Common
Stock in the name of, and pay any cash for any fractional share to:
PLEASE INSERT SOCIAL SECURITY NAME
OR OTHER IDENTIFYING NUMBER (Please Print Name &
OF ASSIGNEE Address)
___________________________ Address
___________________________ Signature
NOTE: The above signature
should correspond
exactly with the name
on the face of this
Warrant Certificate or
with the name of the
assignee appearing in
the assignment form
below.
And, if said number of shares shall not be all the shares purchasable under the
within Warrant Certificate, a new Warrant Certificate is to be issued in the
name of said undersigned for the balance remaining of the share purchasable
thereunder less any fraction of a share paid in cash.
19
ASSIGNMENT
(To be executed only upon assignment of Warrant Certificate)
For value received, _____________ hereby sells, assigns and transfers
unto _______________ the within Warrant Certificate, together with all right,
title and interest therein, and does hereby irrevocably constitute and appoint
_________________ attorney, to transfer said Warrant Certificate on the books of
the within-named Company, with full power of substitution in the premises.
Dated:___________________ ________________________________
NOTE: The above signature should
correspond exactly with
the name on the face of
this Warrant Certificate.
20