EXHIBIT 4.1
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Warrant Agreement
Dated as of September 13, 1995
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WARRANT AGREEMENT, dated as of September 13, 1995, between
Biotime, Inc., a California corporation (the "Company"), and Greenbelt Corp., a
Delaware corporation (the "Financial Advisor").
The Company proposes to issue Common Share Purchase Warrants,
as hereinafter described (the "Warrants"), to purchase up to an aggregate of
300,000 shares 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 agreement, dated
September 13, 1995 (the "Consulting Agreement"), between the Company and the
Financial Advisor; each Warrant entitling the holder thereof to purchase one
share of Common Stock.
In consideration of the foregoing and for the purpose of
defining the terms and provisions of the Warrants and the respective rights and
obligations thereunder of the Company and the registered owners of the Warrants
(the "Holders"), the Company and the Financial Advisor hereby agree as follows:
SECTION 1. Issuance of Warrants; Term of Warrants.
Concurrently with the execution and delivery of this Agreement and the
Consulting Agreement, the Company is issuing and delivering to the Financial
Advisor Warrants to purchase 100,000 Warrant Shares, which Warrants 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 100,000 Warrants
shall have the right, which may be exercised at any time after 9:00 a.m., New
York time, on October 15, 1996, and prior to 5:00 p.m., New York Time on October
15, 2000 (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 100,000 Warrants. The Company
will issue and deliver additional Warrants on such dates and with such
Expiration Dates as indicated below, which additional Warrants shall be
represented by certificates substantially in the form of Exhibit A hereto
delivered on the applicable dates of issuance:
Additional Expiration
Date of Issuance Warrants Date
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October 15, 1995 25,000 October 15, 2000
January 15, 1996 25,000 January 15, 2001
April 15, 1996 25,000 April 15, 2001
July 15, 1996 25,000 July 15, 2001
October 15, 1996 25,000 October 15, 2001
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January 15, 1997 25,000 January 15, 2002
April 15, 1997 25,000 April 15, 2002
July 15, 1997 25,000 July 15, 2002
; provided, however, in the event that the Consulting Agreement is terminated
prior to July 15, 1997, the Company shall issue and deliver to the Financial
Advisor, as of the date of such termination, the 25,000 additional Warrants that
would otherwise have been issuable on the next succeeding date of issuance set
forth above and, following such issuance and delivery, no additional Warrants
shall be issued or delivered hereunder.
Subject to the terms of this Agreement, a Holder of any of such additional
Warrants shall have the right, which may be exercised at any time after 9:00
a.m., New York time, on the later of (a) October 15, 1996 and (b) the date of
issuance, and prior to 5:00 p.m., New York time on the applicable 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 additional Warrants.
SECTION 2. Transferability and Form of Warrant.
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2.1 Registration. The Warrants shall be numbered and shall be
registered on the books of the Company (the "Warrant Register") as they are
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 Warrants which are 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 Warrants
shall initially be registered in the name of the Financial Advisor.
2.2 Restrictions on Exercise and Transfer. The Warrants 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 and the
Holder shall have delivered an opinion of counsel addressed to the Company to
such effect; provided, that such opinion shall be in form and substance and from
counsel reasonably satisfactory to the Company. 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 shall be
entitled to obtain, as a condition precedent to its issuance of any certificates
representing Warrant
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Shares or any other securities issuable upon any exercise of a 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 Warrants 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
Executive or Senior 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 issuance, 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
either upon initial issuance or 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.
SECTION 3. Countersignature of Warrants. In the event that
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the Company shall appoint a Warrant Agent to act on its behalf in connection
with the issuance, division, transfer,
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exchange or exercise of Warrants, the Warrants issued after the date of such
appointment shall be countersigned 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
300,000 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.
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SECTION 5. Exercise of Warrants; Listing.
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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.
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
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documentary stamp taxes, if any, attributable to the initial issuance of Warrant
Shares upon the exercise of Warrants;
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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 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
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and Cancellation of Warrants.
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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
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purchase or otherwise acquire Warrants, the same shall thereupon be cancelled
and retired. The Warrant Agent (if so
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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 a price which shall be the greater of (a) the average
of the last sale prices per share of Common Stock, as reported on the National
Association of Securities Dealers, Inc. Automated Quotations ("NASDAQ") System,
on each trading day during the three month period prior to the date of issuance
of the Warrants multiplied by 150%, and (b) six dollars ($6.00); provided,
however, that the Warrant Price of the Warrants issued as of September 13, 1995
is six dollars ($6.00) and, provided, further, in the event that the last sale
prices of the Common Stock for the period indicated in clause (a) above are not
reported on NASDAQ, clause (a) shall be deemed to refer to the average market
price of the Common Stock during such period, as reasonable determined by the
Board of Directors of the Company on the basis of such quotations as are
available, multiplied by 150%.
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
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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 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
Financial Advisor, 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 NASDAQ or any comparable
system. If the
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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.
(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
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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 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
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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
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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 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
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(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 Securities Act of
1933, 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.
SECTION 13. Appointment of Warrant Agent. At such time as the
Company shall register Warrants under the Securities Act of 1933, 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, 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.
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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 Financial Advisor 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.
SECTION 17. Legends. The Warrants 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.
SECTION 18. 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 19. 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 20. 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 21. Captions. The captions of the Sections and
--------
subsections of this Agreement have been inserted for convenience only and shall
have no substantive effect.
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: s/Paul Segall
Name: Paul Segall, Ph.D
Title: President and Chief Executive Officer
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Attest:
By: s/Judith Segall
Name: Judith Segall
Title: Secretary
GREENBELT CORP.
By: s/Alfred D. Kingsley
Name: Alfred D. Kingsley
Title: President
Attest:
By: s/Gary K. Duberstein
Name: Gary K. Duberstein
Title: Vice President
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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 AND THE
HOLDER SHALL HAVE DELIVERED AN OPINION OF COUNSEL ADDRESSED TO THE COMPANY TO
SUCH EFFECT; PROVIDED, THAT SUCH OPINION SHALL BE IN FORM AND SUBSTANCE AND FROM
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY.
VOID AFTER 5:00 P.M. NEW YORK TIME, [INSERT EXPIRATION DATE]
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 any time after 9:00
A.M., New York time, on [Insert Date of Allowed Exercise pursuant to Section 1
of the Warrant Agreement referred to below] 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 [Insert Expiration Date pursuant to Section 1 of
the Warrant Agreement] 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
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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.
This Warrant Certificate is issued under and in accordance
with a Warrant Agreement dated as of September 13, 1995 between the Company and
Greenbelt Corp. 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.]*
DATED:
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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.
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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.
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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.
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