SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934 (Amendment No. 6)*
BioTime, Inc.
...............................................................................
(Name of Issuer)
Common Shares, no par value
...............................................................................
(Title of Class of Securities)
09066L105
...............................................................................
(CUSIP Number)
Paul Segall and Judith Segall
935 Pardee Street, Berkeley, California 94710; (510) 845-9535
...............................................................................
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
May 10, 1999
...............................................................................
(Date of Event which Requires Filing this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss.240.13d-1(e), 240.13d-1(f), or 240.13d-1(g), check the
following box [ ].
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss.240.13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
<PAGE>
CUSIP No. 09066L105
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos.
of Above Persons
Paul Segall
2) Check the Appropriate Box if a Member of a Group
(See Instructions)
(a) [ ]
(b) [ ]
3) SEC Use Only
4) Source of Funds (See Instructions)
PF; OO
5) Check if Disclosure of Legal Proceedings is Required Pursuant
to Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization
U.S.A.
7) Sole Voting Power
Number of 543,245
Shares
Beneficially 8) Shared Voting Power
Owned by 0
Each
Reporting 9) Sole Dispositive Power
Person With 543,245
10) Shared Dispositive Power
0
11) Aggregate Amount Beneficially Owned by Each Reporting Person
745,408
12) Check if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11)
6.9%
14) Type of Reporting Person (See Instructions)
IN
Page 2 of 6 Pages
<PAGE>
CUSIP No. 09066L105
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos.
of Above Persons
Judith Segall
2) Check the Appropriate Box if a Member of a Group
(See Instructions)
(a) [ ]
(b) [ ]
3) SEC Use Only
4) Source of Funds (See Instructions)
PF; OO
5) Check if Disclosure of Legal Proceedings is Required Pursuant
to Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization
U.S.A.
7) Sole Voting Power
Number of 202,163
Shares
Beneficially 8) Shared Voting Power
Owned by 0
Each
Reporting 9) Sole Dispositive Power
Person With 202,163
10) Shared Dispositive Power
0
11) Aggregate Amount Beneficially Owned by Each Reporting Person
745,408
12) Check if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11)
6.9%
14) Type of Reporting Person (See Instructions)
IN
Page 3 of 6 Pages
<PAGE>
Item 1. Security and Issuer
The class of equity securities to which this schedule relates is Common
Shares, no par value (the "Common Shares"), of BioTime, Inc., a California
corporation (the "Company"). The Company has its principal executive offices at
935 Pardee Street, Berkeley, California 94710.
This schedule is being filed pursuant to Section 13(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and the rules
and regulations promulgated thereunder.
Item 2. Identity and Background
(a) The names of the persons filing this schedule are Paul Segall and Judith
Segall.
(b) The business address of Paul Segall and Judith Segall is 935 Pardee
Street, Berkeley, California 94710.
(c) Paul Segall is currently the Chairman and Chief Executive Officer of
BioTime, Inc., 935 Pardee Street, Berkeley, California 94710.
Judith Segall is currently the Vice President and Secretary of BioTime,
Inc.
(d) Paul Segall and Judith Segall have not been convicted during the last
five years in a criminal proceeding, excluding traffic violations or
similar misdemeanors.
(e) Neither Paul Segall nor Judith Segall has been a party during the last
five years to any civil roceeding of a judicial or administrative body
of competent jurisdiction, and neither of them has, as a result of such
a proceeding, been subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation
with respect to such laws.
(f) Both Paul Segall and Judith Segall are citizens of the United States of
America.
Item 3. Source and Amount of Funds or Other Consideration
Paul Segall and Judith Segall have each executed a Customer Agreement
and Control or Restricted (Rule 144) Stock Borrower's Agreement (collectively,
"Customer Agreement") with Donaldson, Lufkin & Jenrette Securities Corporation
("DLJ") pursuant to which they may borrow funds from time time. On or about May
10, 1999, Mr. and Mrs. Segall borrowed $1,133,477.71 from DLJ under the terms of
their Customer Agreement and used the proceeds to repay certain margin loans to
NationsBank Montgomery Securities.
Page 4 of 6 Pages
<PAGE>
Mr. and Mrs. Segall have pledged a portion of their Common Shares as
collateral for such loans. A copy of the aforesaid Customer Agreement is filed
as an Exhibit to this Schedule 13D and is incorporated herein by reference.
Item 7. Material to Be Filed as Exhibits
(a) Customer Agreement with Donald, Lufkin & Jenrette Securities Corporation
(b) Control or Restricted (Rule 144) Stock Borrower's Agreement
Page 5 of 6 Pages
<PAGE>
Signature
After reasonable inquiry and to the best of our knowledge we certify
that the information set forth in the statement is true, complete and correct.
/s/ Paul Segall
Dated: May 12, 1999 ____________________________________
Paul Segall
/s/ Judith Segall
Dated: May 12, 1999 ____________________________________
Judith Segall
Page 6 of 6 Pages
DONALDSON, LUFKIN & JENRETTE
Securities Corporation
277 Park Avenue, New York, New York 10172
CUSTOMER AGREEMENT
In consideration of your accepting and carrying for the undersigned one
or more accounts, the undersigned hereby consents and agrees that:
APPLICABLE RULES AND REGULATIONS
1. All transactions for the undersigned shall be subject to the constitution,
rules, regulations, customs and usages of the exchange or market and its
clearing house, if any, where executed by you or your agents, including your
subsidiaries and affiliates.
DEFINITION
2. For purposes of this agreement "securities, commodities and other property,"
as used herein shall include, but not be limited to money, securities, and
commodities of every kind and nature and all contracts and options relating
thereto, whether for present or future delivery.
LIEN
3. All securities, commodities and other property now or hereafter held, carried
or maintained by you in your possession and control for any purpose, in or for
any of the accounts of the undersigned, now or hereafter opened, including
accounts in which the undersigned may have an interest, shall be subject to a
lien for the discharge of all the indebtedness and other obligations of the
undersigned to you, and are to be held by you as security for the payment of any
liability or indebtedness of the undersigned to you in any of said accounts. You
shall have the right to transfer securities, commodities and other property so
held by you from or to any other of the accounts of the undersigned whenever in
your judgment you consider such a transfer necessary for your protection. In
enforcing your lien, you shall have the discretion to determine which securities
and property are to be sold and which contracts are to be closed.
LIQUIDATION
4. You shall have the right, in accordance with your general policies regarding
your margin maintenance requirements, as such may be modified, amended or
supplemented from time to time, or if, in your discretion you consider it
necessary for your protection to require additional collateral at an earlier or
1
<PAGE>
later point in time than called for by said general policies, or in the event
that a petition in bankruptcy, or for appointment of a received is filed by or
against the undersigned, or an attachment is levied against the accounts of the
undersigned, or in the event of the death of the undersigned, to sell any or all
securities, commodities and other property in the accounts of the undersigned
with you, whether carried individually or jointly with others, to buy any or all
securities, commodities and other property which may be short in such accounts,
to cancel any open orders and to close any or all outstanding contracts, all
without demand for margin or additional margin, notice of sale or purchase or
other notice to advertisement. Any such sales or purchases may be made at your
discretion on any exchange or other market where such business is usually
transacted, or at public auction or private sale, and you may be the purchasers
for your own account. It being understood that a prior demand, or call, or prior
notice of the time and place of such sale or purchase shall not be considered a
waiver of your right to sell or buy without demand or notice as herein provided.
PAYMENT OF INDEBTEDNESS UPON DEMAND
5. The undersigned shall at all times be liable for the payment upon demand of
any debit balance or other obligations owing in any of the accounts of the
undersigned with you and, the undersigned shall be liable to you for any
deficiency remaining in any such accounts in the event of the liquidation
thereof, in whole or in part, by you or by the undersigned; and, the undersigned
shall make payment of such obligations and indebtedness upon demand.
LIABILITY FOR COSTS OF COLLECTION
6. The reasonable costs and expenses of collection of the debit balance and any
unpaid deficiency in the accounts of the undersigned with you, including, but
not limited to, attorney's fees, incurred and payable or paid by you shall be
payable to you by the undersigned.
PLEDGE OF SECURITIES, COMMODITIES AND OTHER PROPERTY
7. All securities, commodities and other property now or thereafter held,
carried or maintained by you in your possession in any of the accounts of the
undersigned may be pledged and repledged by you from time to time, without
notice to the undersigned, either separately or in common with other such
securities, commodities and other property for any amount due in the accounts of
the undersigned, or for any greater amount, and you may do so without retaining
to your possession or control for delivery a like amount of similar securities,
commodities or other property.
MARGIN REQUIREMENTS, CREDIT CHARGES AND CREDIT INVESTIGATION
8. The undersigned will at all times maintain such securities, commodities and
other property in the accounts of the undersigned for margin purposes as you
shall require from time to time and the monthly debit balances or adjusted
balances in the accounts of the undersigned with you shall be charged, in
accordance with your usual custom, with interest at a rate permitted by the laws
2
<PAGE>
of the State of New York. It is understood that the interest charge made to the
undersigned's account at the close of a charge period will be added to the
opening balance for the next charge period unless paid.
You may exchange credit information about the undersigned with others.
You may request a credit report on the undersigned and upon request, you will
state the name and address of the consumer reporting agency that furnished it.
If you extend, update or renew the undersigned's credit, you may request a new
credit report without telling the undersigned.
PRESUMPTION OF RECEIPT OF COMMUNICATIONS
9. Communications may be sent to the undersigned at the address of the
undersigned or at such other address as the undersigned may hereafter give you
in writing, and all communications so sent, whether by mail, telegraph,
messenger or otherwise, shall be deemed given to the undersigned personally,
whether actually received or not.
NO NON-INVESTMENT ADVICE
10. The undersigned acknowledges that you will not provide the undersigned with
any legal, tax or accounting advice, that your employees are not authorized to
give any such advice and that the undersigned will not solicit or rely upon any
such advice from you or your employees whether in connection with transactions
in or for any of the accounts of the undersigned or otherwise. In making legal,
tax or accounting decisions with respect to transactions in or for the accounts
of the undersigned or any other matter, the undersigned will consult with and
rely upon its own advisors and not you, and you shall have no liability
therefor.
SCOPE AND TRANSFERABILITY
11. This agreement shall cover individually and collectively all accounts which
the undersigned may open or reopen with you, and shall inure to the benefit of
your successors whether by merger, consolidation or otherwise, and assigns, and
you may transfer the accounts of the undersigned to your successors and assigns,
and this agreement shall be binding upon the heirs, executors, administrators,
successors and assigns of the undersigned.
EXTRAORDINARY EVENTS
12. You shall not be liable for loss caused directly or indirectly by government
restrictions, exchange or market rulings, suspension of trading, war, strikes or
other conditions beyond your control.
3
<PAGE>
REPRESENTATIONS AS TO CAPACITY TO ENTER INTO AGREEMENT
13. The undersigned, if an individual, represents that the undersigned is of
full age, that unless otherwise disclosed to you in writing the undersigned is
not an employee of any exchange, or of any corporation of which any exchange
owns a majority of the capital stock, or of a member firm or member corporation
registered on any exchange or of a bank, trust company, insurance company or of
any corporations, firm or individual engaged in the business of dealing either
as a broker or as principal in securities, bills of exchange acceptances or
other forms of commercial paper. The undersigned further represents that no one
except the undersigned has an interest in the account or accounts of the
undersigned with you.
JOINT AND SEVERAL LIABILITY
14. If the undersigned shall consist of more than one individual, their
obligations under this agreement shall be joint and several. The undersigned
have executed the Joint Account Agreement and made the election required
therein. Pursuant to that agreement, you may, but are not required to, accept
instructions from either joint party.
OPTION TRANSACTIONS
15. If at any time the undersigned shall enter into any transaction for the
purchase or resale of an option contract, the undersigned hereby agrees to abide
by the rules of any national securities association, registered securities
exchange or clearing organization applicable to the trading of option contracts
and, acting alone or in concert, will not violate the position or exercise
limitation rules of any such association or exchange or of the Option Clearing
Corporation or other clearing organization.
SEPARABILITY
16. If any provision or condition of this agreement shall be held to be invalid
or unenforceable by any court, or regulatory or self-regulatory agency or body,
such invalidity or unenforceability shall attach only to such provision or
condition. The validity of the remaining provisions and conditions shall not be
affected thereby and this agreement shall be carried out as if any such invalid
or unenforceable provision or condition were not contained herein.
HEADINGS ARE DESCRIPTIVE
17. The heading of each provision hereof is for descriptive purposes only and
shall not be deemed to modify or qualify any of the rights or obligations set
forth in each such provision.
ARBITRATION DISCLOSURES
18. * ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
4
<PAGE>
* THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT,
INCLUDING THE RIGHT TO JURY TRIAL
* PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND
DIFFERENT FROM COURT PROCEEDINGS.
* THE ARBITRATOR'S AWARD IS NOT REQUIRED TO INCLUDE FACTUAL
FINDINGS OR LEGAL REASONING AND ANY
PARTY'S RIGHT TO APPEAL OR TO SEEK MODIFICATION OF RULINGS BY
THE ARBITRATORS IS STRICTLY LIMITED.
* THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF
ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES
INDUSTRY.
AGREEMENT TO ARBITRATE CONTROVERSIES
19. IT IS AGREED THAT ANY CONTROVERSY BETWEEN US ARISING OUT OF YOUR BUSINESS OR
THIS AGREEMENT, SHALL BE SUBMITTED TO ARBITRATION CONDUCTED BEFORE THE NEW YORK
STOCK EXCHANGE, INC. OR ANY OTHER NATIONAL SECURITIES EXCHANGE ON WHICH A
TRANSACTION GIVING RISE TO THE CLAIM TOOK PLACE (AND ONLY BEFORE SUCH EXCHANGE)
OR NASD REGULATION, INC., AS THE UNDERSIGNED MAY ELECT AND IN ACCORDANCE WITH
THE RULES OBTAINING OF THE SELECTED ORGANIZATION. ARBITRATION MUST BE COMMENCED
BY SERVICE UPON THE OTHER PARTY OF A WRITTEN DEMAND FOR ARBITRATION OR A WRITTEN
NOTICE OF INTENTION TO ARBITRATE, THEREIN ELECTING THE ARBITRATION TRIBUNAL. IN
THE EVENT THE UNDERSIGNED DOES NOT MAKE SUCH ELECTION WITHIN FIVE (5) DAYS OF
SUCH DEMAND OR NOTICE, THEN THE UNDERSIGNED AUTHORIZES YOU TO DO SO ON BEHALF OF
THE UNDERSIGNED.
NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO
ARBITRATION NOR SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION AGREEMENT AGAINST
ANY PERSON WHO HAS INITIATED IN COURT A PUTATIVE CLASS ACTION; OR WHO IS A
MEMBER OF A PUTATIVE CLASS WHO HAS NOT OPTED OUT OF THE CLASS WITH RESPECT TO
ANY CLAIMS ENCOMPASSED BY THE PUTATIVE CLASS ACTION UNTIL: (i) THE CLASS
CERTIFICATION IS DENIED; OR (ii) THE CLASS IS DECERTIFIED; OR (iii) THE CUSTOMER
IS EXCLUDED FROM THE CLASS BY THE COURT. SUCH FORBEARANCE TO ENFORCE AN
AGREEMENT TO ARBITRATE SHALL NOT CONSTITUTE A WAIVER OF ANY RIGHTS UNDER THIS
AGREEMENT EXCEPT TO THE EXTENT STATED HEREIN.
THE LAWS OF THE STATE OF NEW YORK GOVERN
5
<PAGE>
20. THIS AGREEMENT AND ITS ENFORCEMENT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAWS PROVISIONS.
LOAN CONSENT
21. BY SIGNING THIS AGREEMENT, THE UNDERSIGNED ACKNOWLEDGES THAT SECURITIES NOT
FULLY PAID FOR BY THE UNDERSIGNED MAY BE LOANED TO YOU OR LOANED OUT TO OTHERS.
THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE IN PARAGRAPHS
18 AND 19 ON THIS PAGE. I ACKNOWLEDGE RECEIVING A COPY OF THIS AGREEMENT.
SIGNATURES
(If a Corporation, Partnership or Other Entity) (If Individuals)
/s/ Paul Segall
- ------------------------------------- ------------------------------
Name of Entity
------------------------------
(Second Party, If Joint Account)
By___________________________________
Title__________________________________
SEAL
DATED_________________ACCOUNT NO.______________________
6
CONTROL OR RESTRICTED (RULE 144) STOCK
BORROWER'S AGREEMENT
In consideration of any margin credit extended by Donaldson, Lufkin &
Jenrette Securities Corporation ("DLJ") to the undersigned on 179,665 shares of
the common stock of BioTime, Inc. owned by the undersigned and pledged to DLJ
(the "Shares"), the undersigned agrees, represents and warrants as follows:
1. The Shares are fully paid for and the undersigned is the
unconditional beneficial owner of the Shares, free and clear of any security
interest, claim or charge. The Shares are registered in the name of the
undersigned, no other person or entity has an interest in the Shares and the
undersigned has fully right, power and authority to sell, pledge, transfer and
deliver the Shares.
2. The Shares or any other such shares owned or controlled by the
undersigned (i) have not been assigned, transferred, donated, pledged,
encumbered or the subject of a put or call option by the undersigned or any
other person or entity (ii) will be deposited in the account of the undersigned
with DLJ in fully negotiable form, and (iii) for the period of the agreement,
will not be sold, assigned, transferred, donated, pledged, encumbered or the
subject of a put or call option by the undersigned or any other person or entity
without the prior written consent of a principal of DLJ; provided, however, such
requirement shall not apply to sales of the Shares through DLJ, or the pledge of
the Shares to DLJ as provided in the agreement.
3. All of the Information set forth by the undersigned in the Form 144,
Rule 144 Questionnaire and representation letter, copies of which are attached
and made a part hereof, is accurate and complete and should any change or event
occur which would render the information Inaccurate or Incomplete, the
undersigned will immediately notify DLJ of such change or event.
4. The margin credit arrangement referred to herein shall be
supplemental and in addition to all the terms and conditions of the Customer
Agreement between the undersigned and DLJ which the undersigned acknowledges he
has read, understood, and executed and which remains in full force and effect.
5. It is understood that the minimum margin required to be maintained
by the undersigned for the Shares is 40% of the current market value of the
Shares as determined on a day by day basis or $3.00 per share, whichever is
greater. It is further understood that such minimum maintenance requirement may
be changed by DLJ at any time.
1
<PAGE>
6. Should it become necessary to sell any of the Shares or to satisfy a
margin deficiency, the undersigned agrees fully to cooperate with DLJ, including
the furnishing of information and completion of forms and instruments necessary
to effect the sale. In addition, DLJ shall be authorized to sign a properly
completed Form 144 in the name of and on behalf of the undersigned. Capitalized
terms that are used herein but not otherwise defined shall have the meanings
ascribed to such terms in Control or Restricted (Rule 144) Stock Borrower's
Agreement between the undersigned and DLJ of even date herewith.
7. It is agreed that in the event the undersigned fails to satisfy a
margin deficiency, DLJ is hereby authorized to liquidate at it discretion
sufficient shares of this security held in the undersigned's account to satisfy
the margin deficiency.
8. The undersigned will not take any action that would impair the
salability of the Shares or omit to take any action necessary to avoid such
impairment. The undersigned further agrees to indemnify and hold harmless DLJ
and its officers and employees from any loss, liability, claim, damage or
expense, including any legal expense, to which DLJ and its officers and
employees may become the subject as a result of any untrue statement or omission
in any document furnished to DLJ by the undersigned or breach of this agreement
by the undersigned.
9. The failure by DLJ to object to any act or omission on the part of
the undersigned which is in contravention of any provision of this agreement,
shall not constitute a waiver of any of the rights of DLJ under this agreement
or otherwise.
10. The undersigned represents that he has sufficient collateral or
cash to meet any margin calls which might result form a margin deficiency or
from the subsequent unavailability of Rule 144 and that he will promptly advise
DLJ should he become aware of any circumstances indicating that Rule 144 is no
longer available with respect to the shares pledged.
11. DLJ agrees that the interest rate to be charged shall be 3.00%
above the Pershing Base Lending Rate, as described in the attached
"Disclosure Statement."
2
<PAGE>
12. This agreement shall remain in full force and effect until it is
either (i) terminated by DLJ, or (ii) terminated by the undersigned with the
consent of DLJ. However, all representations, warranties and indemnities
provided by the undersigned hereunder shall survive the termination of this
agreement.
/s/Paul Segall
-------------------------------
(Signature)
Paul Segall
-------------------------------
(Name)
-------------------------------
(Date)
-------------------------------
(Account Number)
Joint Account
-------------------------------
(Signature)
-------------------------------
(Name)
-------------------------------
(Date)
3
DONALDSON, LUFKIN & JENRETTE
Securities Corporation
277 Park Avenue, New York, New York 10172
CUSTOMER AGREEMENT
In consideration of your accepting and carrying for the undersigned one
or more accounts, the undersigned hereby consents and agrees that:
APPLICABLE RULES AND REGULATIONS
1. All transactions for the undersigned shall be subject to the constitution,
rules, regulations, customs and usages of the exchange or market and its
clearing house, if any, where executed by you or your agents, including your
subsidiaries and affiliates.
DEFINITION
2. For purposes of this agreement "securities, commodities and other property,"
as used herein shall include, but not be limited to money, securities, and
commodities of every kind and nature and all contracts and options relating
thereto, whether for present or future delivery.
LIEN
3. All securities, commodities and other property now or hereafter held, carried
or maintained by you in your possession and control for any purpose, in or for
any of the accounts of the undersigned, now or hereafter opened, including
accounts in which the undersigned may have an interest, shall be subject to a
lien for the discharge of all the indebtedness and other obligations of the
undersigned to you, and are to be held by you as security for the payment of any
liability or indebtedness of the undersigned to you in any of said accounts. You
shall have the right to transfer securities, commodities and other property so
held by you from or to any other of the accounts of the undersigned whenever in
your judgment you consider such a transfer necessary for your protection. In
enforcing your lien, you shall have the discretion to determine which securities
and property are to be sold and which contracts are to be closed.
LIQUIDATION
4. You shall have the right, in accordance with your general policies regarding
your margin maintenance requirements, as such may be modified, amended or
supplemented from time to time, or if, in your discretion you consider it
necessary for your protection to require additional collateral at an earlier or
1
<PAGE>
later point in time than called for by said general policies, or in the event
that a petition in bankruptcy, or for appointment of a received is filed by or
against the undersigned, or an attachment is levied against the accounts of the
undersigned, or in the event of the death of the undersigned, to sell any or all
securities, commodities and other property in the accounts of the undersigned
with you, whether carried individually or jointly with others, to buy any or all
securities, commodities and other property which may be short in such accounts,
to cancel any open orders and to close any or all outstanding contracts, all
without demand for margin or additional margin, notice of sale or purchase or
other notice to advertisement. Any such sales or purchases may be made at your
discretion on any exchange or other market where such business is usually
transacted, or at public auction or private sale, and you may be the purchasers
for your own account. It being understood that a prior demand, or call, or prior
notice of the time and place of such sale or purchase shall not be considered a
waiver of your right to sell or buy without demand or notice as herein provided.
PAYMENT OF INDEBTEDNESS UPON DEMAND
5. The undersigned shall at all times be liable for the payment upon demand of
any debit balance or other obligations owing in any of the accounts of the
undersigned with you and, the undersigned shall be liable to you for any
deficiency remaining in any such accounts in the event of the liquidation
thereof, in whole or in part, by you or by the undersigned; and, the undersigned
shall make payment of such obligations and indebtedness upon demand.
LIABILITY FOR COSTS OF COLLECTION
6. The reasonable costs and expenses of collection of the debit balance and any
unpaid deficiency in the accounts of the undersigned with you, including, but
not limited to, attorney's fees, incurred and payable or paid by you shall be
payable to you by the undersigned.
PLEDGE OF SECURITIES, COMMODITIES AND OTHER PROPERTY
7. All securities, commodities and other property now or thereafter held,
carried or maintained by you in your possession in any of the accounts of the
undersigned may be pledged and repledged by you from time to time, without
notice to the undersigned, either separately or in common with other such
securities, commodities and other property for any amount due in the accounts of
the undersigned, or for any greater amount, and you may do so without retaining
to your possession or control for delivery a like amount of similar securities,
commodities or other property.
MARGIN REQUIREMENTS, CREDIT CHARGES AND CREDIT INVESTIGATION
8. The undersigned will at all times maintain such securities, commodities and
other property in the accounts of the undersigned for margin purposes as you
shall require from time to time and the monthly debit balances or adjusted
balances in the accounts of the undersigned with you shall be charged, in
accordance with your usual custom, with interest at a rate permitted by the laws
2
<PAGE>
of the State of New York. It is understood that the interest charge made to the
undersigned's account at the close of a charge period will be added to the
opening balance for the next charge period unless paid.
You may exchange credit information about the undersigned with others.
You may request a credit report on the undersigned and upon request, you will
state the name and address of the consumer reporting agency that furnished it.
If you extend, update or renew the undersigned's credit, you may request a new
credit report without telling the undersigned.
PRESUMPTION OF RECEIPT OF COMMUNICATIONS
9. Communications may be sent to the undersigned at the address of the
undersigned or at such other address as the undersigned may hereafter give you
in writing, and all communications so sent, whether by mail, telegraph,
messenger or otherwise, shall be deemed given to the undersigned personally,
whether actually received or not.
NO NON-INVESTMENT ADVICE
10. The undersigned acknowledges that you will not provide the undersigned with
any legal, tax or accounting advice, that your employees are not authorized to
give any such advice and that the undersigned will not solicit or rely upon any
such advice from you or your employees whether in connection with transactions
in or for any of the accounts of the undersigned or otherwise. In making legal,
tax or accounting decisions with respect to transactions in or for the accounts
of the undersigned or any other matter, the undersigned will consult with and
rely upon its own advisors and not you, and you shall have no liability
therefor.
SCOPE AND TRANSFERABILITY
11. This agreement shall cover individually and collectively all accounts which
the undersigned may open or reopen with you, and shall inure to the benefit of
your successors whether by merger, consolidation or otherwise, and assigns, and
you may transfer the accounts of the undersigned to your successors and assigns,
and this agreement shall be binding upon the heirs, executors, administrators,
successors and assigns of the undersigned.
EXTRAORDINARY EVENTS
12. You shall not be liable for loss caused directly or indirectly by government
restrictions, exchange or market rulings, suspension of trading, war, strikes or
other conditions beyond your control.
3
<PAGE>
REPRESENTATIONS AS TO CAPACITY TO ENTER INTO AGREEMENT
13. The undersigned, if an individual, represents that the undersigned is of
full age, that unless otherwise disclosed to you in writing the undersigned is
not an employee of any exchange, or of any corporation of which any exchange
owns a majority of the capital stock, or of a member firm or member corporation
registered on any exchange or of a bank, trust company, insurance company or of
any corporations, firm or individual engaged in the business of dealing either
as a broker or as principal in securities, bills of exchange acceptances or
other forms of commercial paper. The undersigned further represents that no one
except the undersigned has an interest in the account or accounts of the
undersigned with you.
JOINT AND SEVERAL LIABILITY
14. If the undersigned shall consist of more than one individual, their
obligations under this agreement shall be joint and several. The undersigned
have executed the Joint Account Agreement and made the election required
therein. Pursuant to that agreement, you may, but are not required to, accept
instructions from either joint party.
OPTION TRANSACTIONS
15. If at any time the undersigned shall enter into any transaction for the
purchase or resale of an option contract, the undersigned hereby agrees to abide
by the rules of any national securities association, registered securities
exchange or clearing organization applicable to the trading of option contracts
and, acting alone or in concert, will not violate the position or exercise
limitation rules of any such association or exchange or of the Option Clearing
Corporation or other clearing organization.
SEPARABILITY
16. If any provision or condition of this agreement shall be held to be invalid
or unenforceable by any court, or regulatory or self-regulatory agency or body,
such invalidity or unenforceability shall attach only to such provision or
condition. The validity of the remaining provisions and conditions shall not be
affected thereby and this agreement shall be carried out as if any such invalid
or unenforceable provision or condition were not contained herein.
HEADINGS ARE DESCRIPTIVE
17. The heading of each provision hereof is for descriptive purposes only and
shall not be deemed to modify or qualify any of the rights or obligations set
forth in each such provision.
ARBITRATION DISCLOSURES
18. * ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
4
<PAGE>
* THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT,
INCLUDING THE RIGHT TO JURY TRIAL
* PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND
DIFFERENT FROM COURT PROCEEDINGS.
* THE ARBITRATOR'S AWARD IS NOT REQUIRED TO INCLUDE FACTUAL
FINDINGS OR LEGAL REASONING AND ANY
PARTY'S RIGHT TO APPEAL OR TO SEEK MODIFICATION OF RULINGS BY
THE ARBITRATORS IS STRICTLY LIMITED.
* THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF
ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES
INDUSTRY.
AGREEMENT TO ARBITRATE CONTROVERSIES
19. IT IS AGREED THAT ANY CONTROVERSY BETWEEN US ARISING OUT OF YOUR BUSINESS OR
THIS AGREEMENT, SHALL BE SUBMITTED TO ARBITRATION CONDUCTED BEFORE THE NEW YORK
STOCK EXCHANGE, INC. OR ANY OTHER NATIONAL SECURITIES EXCHANGE ON WHICH A
TRANSACTION GIVING RISE TO THE CLAIM TOOK PLACE (AND ONLY BEFORE SUCH EXCHANGE)
OR NASD REGULATION, INC., AS THE UNDERSIGNED MAY ELECT AND IN ACCORDANCE WITH
THE RULES OBTAINING OF THE SELECTED ORGANIZATION. ARBITRATION MUST BE COMMENCED
BY SERVICE UPON THE OTHER PARTY OF A WRITTEN DEMAND FOR ARBITRATION OR A WRITTEN
NOTICE OF INTENTION TO ARBITRATE, THEREIN ELECTING THE ARBITRATION TRIBUNAL. IN
THE EVENT THE UNDERSIGNED DOES NOT MAKE SUCH ELECTION WITHIN FIVE (5) DAYS OF
SUCH DEMAND OR NOTICE, THEN THE UNDERSIGNED AUTHORIZES YOU TO DO SO ON BEHALF OF
THE UNDERSIGNED.
NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO
ARBITRATION NOR SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION AGREEMENT AGAINST
ANY PERSON WHO HAS INITIATED IN COURT A PUTATIVE CLASS ACTION; OR WHO IS A
MEMBER OF A PUTATIVE CLASS WHO HAS NOT OPTED OUT OF THE CLASS WITH RESPECT TO
ANY CLAIMS ENCOMPASSED BY THE PUTATIVE CLASS ACTION UNTIL: (i) THE CLASS
CERTIFICATION IS DENIED; OR (ii) THE CLASS IS DECERTIFIED; OR (iii) THE CUSTOMER
IS EXCLUDED FROM THE CLASS BY THE COURT. SUCH FORBEARANCE TO ENFORCE AN
AGREEMENT TO ARBITRATE SHALL NOT CONSTITUTE A WAIVER OF ANY RIGHTS UNDER THIS
AGREEMENT EXCEPT TO THE EXTENT STATED HEREIN.
THE LAWS OF THE STATE OF NEW YORK GOVERN
5
<PAGE>
20. THIS AGREEMENT AND ITS ENFORCEMENT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAWS PROVISIONS.
LOAN CONSENT
21. BY SIGNING THIS AGREEMENT, THE UNDERSIGNED ACKNOWLEDGES THAT SECURITIES NOT
FULLY PAID FOR BY THE UNDERSIGNED MAY BE LOANED TO YOU OR LOANED OUT TO OTHERS.
THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE IN PARAGRAPHS
18 AND 19 ON THIS PAGE. I ACKNOWLEDGE RECEIVING A COPY OF THIS AGREEMENT.
SIGNATURES
(If a Corporation, Partnership or Other Entity) (If Individuals)
/s/ Judith Segall
- ------------------------------------- ------------------------------
Name of Entity
------------------------------
(Second Party, If Joint Account)
By___________________________________
Title__________________________________
SEAL
DATED_________________ACCOUNT NO.______________________
6
CONTROL OR RESTRICTED (RULE 144) STOCK
BORROWER'S AGREEMENT
In consideration of any margin credit extended by Donaldson, Lufkin &
Jenrette Securities Corporation ("DLJ") to the undersigned on 47,031 shares of
the common stock of BioTime, Inc. owned by the undersigned and pledged to DLJ
(the "Shares"), the undersigned agrees, represents and warrants as follows:
1. The Shares are fully paid for and the undersigned is the
unconditional beneficial owner of the Shares, free and clear of any security
interest, claim or charge. The Shares are registered in the name of the
undersigned, no other person or entity has an interest in the Shares and the
undersigned has fully right, power and authority to sell, pledge, transfer and
deliver the Shares.
2. The Shares or any other such shares owned or controlled by the
undersigned (i) have not been assigned, transferred, donated, pledged,
encumbered or the subject of a put or call option by the undersigned or any
other person or entity (ii) will be deposited in the account of the undersigned
with DLJ in fully negotiable form, and (iii) for the period of the agreement,
will not be sold, assigned, transferred, donated, pledged, encumbered or the
subject of a put or call option by the undersigned or any other person or entity
without the prior written consent of a principal of DLJ; provided, however, such
requirement shall not apply to sales of the Shares through DLJ, or the pledge of
the Shares to DLJ as provided in the agreement.
3. All of the Information set forth by the undersigned in the Form 144,
Rule 144 Questionnaire and representation letter, copies of which are attached
and made a part hereof, is accurate and complete and should any change or event
occur which would render the information Inaccurate or Incomplete, the
undersigned will immediately notify DLJ of such change or event.
4. The margin credit arrangement referred to herein shall be
supplemental and in addition to all the terms and conditions of the Customer
Agreement between the undersigned and DLJ which the undersigned acknowledges he
has read, understood, and executed and which remains in full force and effect.
5. It is understood that the minimum margin required to be maintained
by the undersigned for the Shares is 40% of the current market value of the
Shares as determined on a day by day basis or $3.00 per share, whichever is
greater. It is further understood that such minimum maintenance requirement may
be changed by DLJ at any time.
1
<PAGE>
6. Should it become necessary to sell any of the Shares or to satisfy a
margin deficiency, the undersigned agrees fully to cooperate with DLJ, including
the furnishing of information and completion of forms and instruments necessary
to effect the sale. In addition, DLJ shall be authorized to sign a properly
completed Form 144 in the name of and on behalf of the undersigned. Capitalized
terms that are used herein but not otherwise defined shall have the meanings
ascribed to such terms in Control or Restricted (Rule 144) Stock Borrower's
Agreement between the undersigned and DLJ of even date herewith.
7. It is agreed that in the event the undersigned fails to satisfy a
margin deficiency, DLJ is hereby authorized to liquidate at it discretion
sufficient shares of this security held in the undersigned's account to satisfy
the margin deficiency.
8. The undersigned will not take any action that would impair the
salability of the Shares or omit to take any action necessary to avoid such
impairment. The undersigned further agrees to indemnify and hold harmless DLJ
and its officers and employees from any loss, liability, claim, damage or
expense, including any legal expense, to which DLJ and its officers and
employees may become the subject as a result of any untrue statement or omission
in any document furnished to DLJ by the undersigned or breach of this agreement
by the undersigned.
9. The failure by DLJ to object to any act or omission on the part of
the undersigned which is in contravention of any provision of this agreement,
shall not constitute a waiver of any of the rights of DLJ under this agreement
or otherwise.
10. The undersigned represents that he has sufficient collateral or
cash to meet any margin calls which might result form a margin deficiency or
from the subsequent unavailability of Rule 144 and that he will promptly advise
DLJ should he become aware of any circumstances indicating that Rule 144 is no
longer available with respect to the shares pledged.
11. DLJ agrees that the interest rate to be charged shall be 3.00%
above the Pershing Base Lending Rate, as described in the attached
"Disclosure Statement."
2
<PAGE>
12. This agreement shall remain in full force and effect until it is
either (i) terminated by DLJ, or (ii) terminated by the undersigned with the
consent of DLJ. However, all representations, warranties and indemnities
provided by the undersigned hereunder shall survive the termination of this
agreement.
/s/Judith Segall
-------------------------------
(Signature)
Judith Segall
-------------------------------
(Name)
-------------------------------
(Date)
-------------------------------
(Account Number)
Joint Account
-------------------------------
(Signature)
-------------------------------
(Name)
-------------------------------
(Date)
3
