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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934 (Amendment No. 4)*
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)
September 16, 1997
................................................................................
(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 Rule 13d-1(b)(3) or (4), check the following box [ ].
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) 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.
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 172,459
Shares
Beneficially 8) Shared Voting Power
Owned by 0
Each
Reporting 9) Sole Dispositive Power
Person With 172,459
10) Shared Dispositive Power
0
11) Aggregate Amount Beneficially Owned by Each Reporting Person
236,638
12) Check if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11)
7.2%
14) Type of Reporting Person (See Instructions)
IN
Page 2 of 24 Pages
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 64,179
Shares
Beneficially 8) Shared Voting Power
Owned by 0
Each
Reporting 9) Sole Dispositive Power
Person With 64,179
10) Shared Dispositive Power
0
11) Aggregate Amount Beneficially Owned by Each Reporting Person
236,638
12) Check if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11)
7.2%
14) Type of Reporting Person (See Instructions)
IN
Page 3 of 24 Pages
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 President and Chief Executive Officer of
BioTime, Inc., 935 Pardee Street, Berkeley, California 94710.
Judith Segall is currently the 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 proceeding 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
The source of funds used by Paul Segall and Judith Segall to purchase
their Common Shares includes both personal funds and borrowed funds.
Paul Segall has executed a Customer Agreement with Montgomery
Securities and a related Representation Letter for the purpose of borrowing
$193,620 to exercise certain incentive stock options (through which he purchased
21,000 Common Shares at a price of $9.22 per share) and approximately
$367,962.41 to refinance certain margin loans obtained from CS First Boston
during February 1997 in connection with Mr. Segall's exercise of subscription
rights that were
Page 4 of 24 Pages
distributed by the Company pro rata to its shareholders (the "Rights Offering").
Judith Segall has also executed a Customer Agreement with Montgomery Securities
and a related Representation Letter for the purpose of borrowing approximately
$122,165 to refinance certain margin loans obtained from CS First Boston during
February 1997 in connection with her exercise of subscription rights in the
Rights Offering. Mr. and Mrs. Segall have pledged all of their Common Shares as
collateral for such loans and have agreed not tosell any Common Shares of the
Company while their margin loans are secured by their Common Shares. A copy of
each of the aforesaid Customer Agreements and Representation Letters is filed as
an Exhibit to this Schedule 13D and each is incorporated herein by reference.
Item 4. Purpose of Transaction
These securities were purchased for investment. Mr. and Ms. Segall may
acquire additional Common Shares or sell all or some of their Common Shares
based upon market and economic circumstances.
Mr. Segall is the President and Chief Executive Officer of the Company,
and Judith Segall is a Vice President and the Secretary of the Company. Both are
also directors of the Company. In their capacity as officers and directors, they
will participate in the management of the Company.
Mr. and Ms. Segall do not have any current plans or proposals which
relate to or would result in (i) an extraordinary corporate transaction, such as
a merger, reorganization or liquidation of the Company; (ii) a sale or transfer
of a material amount of assets of the Company; (iii) any change in the present
board of directors or management of the Company, including any plans or
proposals to change the number or term of directors or to fill any existing
vacancies on the board; (iv) any material change in the present capitalization
or dividend policy of the Company; (v) any other material change in the
Company's business or corporate structure; (vi) any change in the Company's
Articles of Incorporation or Bylaws or other action which may impede the
acquisition of control of the Company by any person; (vii) causing any class of
the Company's securities to be delisted from a national securities exchange or
to cease to be authorized to be quoted in an inter-dealer quotation system of a
registered national securities association; (viii) any of the Company's equity
securities becoming eligible for termination of registration pursuant to Section
12(g)(4) of the Exchange Act; or (ix) any action similar to any of those
enumerated above.
Item 5. Interest in Securities of the Issuer
(a) Paul Segall directly owns 172,459 Common Shares, which constitute
approximately 5.28% of the 3,266,193 Common Shares outstanding on September 17,
1997. Judith Segall directly owns 64,179 Common Shares, which constitute
approximately 1.96% of the 3,266,193 Common Shares outstanding on September 17,
1997. The forgoing number of outstanding Common Shares is based upon information
provided by the Company.
Page 5 of 24 Pages
(b) Mr. and Mrs. Segall both have the sole power to vote and to direct
the vote, and the sole power to dispose and to direct the disposition, with
respect to the shares held in their respective names.
(c) On or about September 16, 1997, Paul Segall purchased 21,000 Common
Shares through the exercise of an incentive stock option at a price of $9.22 per
share.
(d) Mr. and Ms. Segall both have the sole power to vote and to direct
the vote, and the sole power to dispose and to direct the disposition, with
respect to the shares held in their respective names. No other person is known
to have the right to receive or the power to direct the receipt of dividends
from, or the proceeds from the sale of, their Common Shares.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
Paul Segall and Judith Segall are husband and wife and may consult with
each other or act jointly with respect to (a) voting Common Shares held in their
respective names, (b) acquiring additional Common Shares, and (c) disposing of
Common Shares held in their respective names. To the extent that the Common
Shares constitute community property under California law, each spouse may have
the right to dispose of one-half of the shares constituting community property
held by the other spouse.
Item 7. Material to Be Filed as Exhibits
(a) Customer Agreement between Paul Segall and Montgomery Securities
(b) Representation Letter from Paul Segall to Montgomery Securities
(c) Customer Agreement between Judith Segall and Montgomery Securities
(d) Representation Letter from Judith Segall to Montgomery Securities
Page 6 of 24 Pages
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: September 24, 1997 ____________________________________
Paul Segall
/s/: Judith Segall
Dated: September 24, 1997 ____________________________________
Judith Segall
Page 7 of 24 Pages
Exhibit (a)
MONTGOMERY SECURITIES
CUSTOMER AGREEMENT
This agreement sets forth the terms and conditions pursuant to which we,
Montgomery Securities, and our successors and assigns, will maintain your
account for purchases and sales of "securities and other property," which means,
but is not limited to securities, financial instruments, commodities and money
of every kind and nature and related contracts and options. This definition
includes securities or other property currently or hereafter held, carried or
maintained by, or in the possession or control of, us or any of our related
entities for any purpose in and for any account now or hereafter opened by you.
You understand that, if your account is a cash account, the provisions of
paragraphs 18 & 19 are not binding upon you unless you enter into a margin
transaction and, if your account is a commodities account, the provisions of
paragraph 14 shall not be applicable.
1. APPLICABLE LAW AND REGULATIONS. All transactions in your account shall be
subject to all applicable laws and the rules and regulations of all
federal, state and self-regulatory agencies, including, but not limited to,
the Board of Governors of the Federal Reserve System and the constitution,
rules, customs and usages of the exchange or market (and its clearing
house) where the transactions are executed.
2. SECURITY INTEREST AND LIEN. All securities or other property which we may
at any time be carrying or maintaining for you or which may at any time be
in our possession or control for any purpose, including safekeeping, shall
be subject to a general lien for the discharge of all of your obligations
to us, irrespective of whether or not we have made advances in connection
with such securities or other property, and irrespective of the number of
accounts you may have with us.
3. DEPOSITS ON CASH TRANSACTIONS. If at any time Montgomery Securities
considers it necessary for its protection, it may in its discretion require
you to deposit cash or collateral in your account to assure due performance
by you of your open contractual commitments.
4. BREACH OR DEFAULT. In the event of any breach by you of any agreement with
us, or any default by you in any obligation to us, or should you die or
file a petition in bankruptcy or for the appointment of a receiver by or
against you, or should we for any reason whatsoever deem it necessary for
our protection, we are hereby authorized, at our discretion, to sell any or
all of the securities and other property in any of your accounts which may
be in our possession or control, or which we may be carrying or maintaining
for you (either individually or jointly with others), or to buy-in any
securities or other property of which your account or accounts may be
short, or to cancel any other standing orders, to close out your account or
accounts in whole or in part or in order to close out any commitment made
on your behalf. Any such sale, purchase or cancellation may be made
according to our judgment and may be made, at our discretion, on the
exchange or other market where such business is then usually transacted, or
at public auction or at private sale, without advertising the same and
without notice to you or to your personal representative, and without prior
tender, demand or call of any kind upon you, or upon your personal
representative (each of which is expressly waived by you), and we may
purchase the whole or any part thereof free from any right of redemption,
and you shall remain liable for any deficiency; it being understood that a
prior tender, demand, call or notice of any kind shall not be considered a
waiver of our right to sell or buy any securities and/or other property
held by us, or owed us by you, at any time as hereinbefore provided.
Nothing in this agreement shall be construed as relieving you of any
obligations imposed by law.
5. FINALITY OF REPORTS. Reports of execution of orders and statements of your
accounts shall become conclusive if not objected to in writing, the former
within five days, and the latter within ten days, after forwarding by us to
you by mail or otherwise.
Page 8 of 24 Pages
6. RECEIPT OF TRUTH-IN-LENDING. You hereby acknowledge receipt and review of
Montgomery Securities' Truth-in-Lending disclosure statement contained here
within. You understand that interest will be charged on any debit balances
in accordance with the methods described in that statement or in any
amendment or revision thereto which may be provided to you. It is
understood and agreed that the interest charge made to your account at the
close of one charge period will be compounded, unless paid; that is, the
unpaid interest charge for previous periods will be added to the opening
balance for the next charge period, thereby becoming part of the principal
amount due and bearing like interest.
7. TRANSFERS BETWEEN ACCOUNTS. At any time and from time to time, at our
discretion, we may without notice to you apply and/or transfer any or all
securities and/or other property of yours interchangeably between any of
your accounts.
8. SELL ORDERS. It is understood and agreed that you will designate any sell
order for a short account which you place with us as a "short sale" and
hereby authorize us to mark such order as being "short", and when placing
with us any order for a long account, will designate it as such and hereby
authorize us to mark such order as being "long." Any sell order which you
shall designate as being for long account as above provided is for
securities then owned by you and, if such securities are not then
deliverable by us from any of your accounts, the placing of such order
shall constitute a representation by you that it is impracticable for you
to then deliver such securities to us but that you will deliver them as
soon as it is possible for you to do so without undue inconvenience or
expense.
9. AGE, BENEFICIAL INTEREST. If you are an individual, you represent that you
are of full legal age, and, in any event not less than eighteen years of
age. You further represent that no one except you has an interest in your
account with us.
10. OPERATIONAL MATTERS. Montgomery Securities primarily uses banks located in
California and New York to issue checks. Also, when we hold securities for
your account, dividends and interest are credited on or about the payable
date as received. Most of our customers prefer to have these funds held in
their accounts, and this will be the procedure which we will follow with
your account unless you advise us of an alternative procedure which you
would prefer. For example, we could arrange for checks to be sent to you
monthly. If you require special arrangements, please bring the matter to
our attention. Montgomery Securities' policy is not to receive remuneration
for directing orders to particular brokers/dealers or market centers for
execution. Notwithstanding this policy, should Montgomery Securities
receive such remuneration on any transaction, appropriate disclosure will
be made.
11. CREDIT REPORT. Montgomery Securities may, in its discretion, request an
investigative consumer report on you as a credit reference, which report
may include information with respect to character, general reputation,
personal characteristics and mode of living. In accordance with the Fair
Credit Reporting Act, a copy of any such report, if obtained, will be made
available to you upon written request.
12. CLEARANCE ACCOUNTS. If Montgomery Securities carries your account as
clearing broker by arrangement with another broker through whose courtesy
your account has been introduced, then unless Montgomery Securities
receives from you a written notice to the contrary, Montgomery Securities
shall accept from such other broker, without any inquiry or investigation
by us, (i) orders for the purchase and sale of securities and other
property on margin or otherwise, and (ii) any other instructions concerning
said account. You understand Montgomery Securities shall have no
responsibility or liability to you for any acts or omissions of such other
broker, its officers, employees or agents.
13. WAIVER, ASSIGNMENT AND NOTICES. No term or provision of this Agreement
may be waived or modified unless in writing and signed by the party against
whom such waiver or modification is sought to be enforced. Montgomery
Securities' failure to insist at any time upon strict compliance with this
Agreement or with any of the terms hereunder or any continued course of
such conduct on its part shall in no event constitute or be considered a
waiver by Montgomery Securities of any of its rights or privileges. This
Agreement contains the entire understanding between you and Montgomery
Securities concerning the subject matter of this
Page 9 of 24 Pages
Agreement. You may not assign your rights or obligations hereunder without
first obtaining the prior written consent of Montgomery Securities. Notice
or other communications, including margin calls, delivered or mailed to the
address given below shall, until Montgomery Securities has received notice
in writing of a different address, be deemed to have been personally
delivered to you.
14. ARBITRATION.
o ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
o THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING
THE RIGHT TO JURY TRIAL.
o PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND DIFFERENT
FROM COURT PROCEEDINGS.
o THE ARBITRATORS' 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.
o THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF
ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
YOU AGREE, AND BY CARRYING AN ACCOUNT FOR YOU, WE AGREE, THAT ALL
CONTROVERSIES WHICH MAY ARISE BETWEEN US CONCERNING ANY TRANSACTION OR THE
CONSTRUCTION, PERFORMANCE OR BREACH OF THIS OR ANY OTHER AGREEMENT BETWEEN
US, WHETHER ENTERED INTO PRIOR, ON, OR SUBSEQUENT TO THE DATE HEREOF,
SHALL BE DETERMINED BY ARBITRATION. ANY ARBITRATION UNDER THIS AGREEMENT
SHALL BE CONDUCTED ONLY IN THE FORUMS PROVIDED BY THE NATIONAL ASSOCIATION
OF SECURITIES DEALERS, INC. OR THE BOARD OF GOVERNORS OF THE NEW YORK
STOCK EXCHANGE, INC., AS YOU MAY ELECT. IF YOU DO NOT MAKE SUCH ELECTION
BY REGISTERED MAIL ADDRESSED TO MONTGOMERY SECURITIES, 600 MONTGOMERY
STREET, SAN FRANCISCO, CA 94111, ATTENTION: LEGAL DEPARTMENT, AND RECEIVED
WITHIN FIVE DAYS AFTER DEMAND BY US THAT YOU MAKE SUCH ELECTION, THEN
MONTGOMERY SECURITIES MAY MAKE SUCH ELECTION. THE AWARD OF THE
ARBITRATORS, OR OF THE MAJORITY OF THEM, SHALL BE FINAL, AND JUDGMENT UPON
ANY AWARD RENDERED BY THE ARBITRATORS MAY BE ENTERED IN ANY COURT HAVlNG
JURISDICTION THEREOF.
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; (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.
15. NEW YORK LAW TO GOVERN. This Agreement and its enforcement shall be
governed by the laws of the State of New York (without regard to any
principles of conflicts of law) and its provisions shall be continuous;
shall cover individually and collectively all accounts which you may open
or reopen with us, and shall inure to the benefit of our present
organization, and any successor organization, irrespective of any change
or changes at any time in the personnel thereof, for any cause whatsoever,
and of the assigns of our present organization
Page 10 of 24 Pages
or any successor organization, and shall be binding upon you, and/or your
estate, executors, administrators, heirs and assigns.
16. PARTIAL UNENFORCEABILITY. If any provision herein is or should become
inconsistent with any present or future law, rule or regulation of any
sovereign government or a regulatory body having jurisdiction over the
subject matter of this Agreement or is held to be invalid, void or
unenforceable by reason of any law, rule, administrative order or judicial
decision, such provision shall be deemed to be rescinded or modified in
accordance with any such law, rule, regulation, order or decision. In all
other respects, this Agreement shall continue and remain in full force and
effect.
17. LIMIT ORDERS. Montgomery Securities reserves the right to not accept
from customers limit orders in NASDAQ or over-the-counter securities in
which it acts as a market maker.
18. MARGIN IN MARGIN ACCOUNTS (NOT APPLICABLE TO CASH ACCOUNTS).You hereby
agree to maintain such margin in your margin account as Montgomery
Securities may in its discretion require and you agree to pay forthwith on
demand any debit balance owing with respect to any of your margin
accounts, and if not paid this shall be a breach of this Agreement and
Montgomery Securities may take such action as it considers necessary for
its protection in accordance with this Agreement. You understand that,
even if Montgomery Securities has a policy of giving customers notice of a
margin deficiency, Montgomery Securities is not obligated to request
additional margin from you, and there may be circumstances where
Montgomery Securities will liquidate securities and/or other property in
your account without notice to you. You will be charged interest on your
debit balance which if not paid at the close of an interest period will be
added to the opening balance for the next interest period. Please consult
the attached disclosure statement for an outline of Montgomery Securities'
interest policies.
19. CUSTOMER'S CONSENT TO LOAN OR PLEDGE OF SECURITIES AND OTHER PROPERTY (NOT
APPLICABLE TO CASH ACCOUNTS). You hereby authorize Montgomery Securities
to lend either to itself or to others any securities and other property
held by Montgomery Securities in your margin account and to carry all such
property in its general loans and such property may be pledged, repledged,
hypothecated or rehypothecated, without notice to you, either separately
or in common with other such property for any amounts due to Montgomery
Securities thereon or for a greater sum, and Montgomery Securities shall
have no obligation to retain a like amount of similar property in its
possession and control.
BY SIGNING THIS AGREEMENT YOU ACKNOWLEDGE THAT THE SECURITIES IN YOUR
MARGIN ACCOUNT MAY BE LOANED TO MONTGOMERY SECURITIES OR LOANED OUT TO OTHERS
AND THAT YOU HAVE RECEIVED AND REVIEWED A COPY OF THIS AGREEMENT.
THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE AT PAGES 2-3 AT
PARAGRAPH 14.
IF JOINT ACCOUNT BOTH PARTIES MUST SIGN. Persons signing on behalf of
others please indicate title or capacity in which you have signed.
Paul Segall
- ------------------------------------------------
(Typed or Printed Name)
/s/: Paul Segall
- ------------------------------------------------
(Signature)
- ------------------------------------------------
(Signature)
Page 11 of 24 Pages
c/o BioTime, Inc., 935 Pardee Street
- ------------------------------------------------
(Mailing Address)
Berkeley, CA 94710
- ------------------------------------------------
(City) (State) (Zip)
9/12/97
- ------------------------------------------------
(Date)
Acct. XXX-XXXXX
No.:____________________________________________
Page 12 of 24 Pages
ADDENDUM TO CUSTOMER AGREEMENT
Hypothecation of Customer Securities. Notwithstanding any provision of the
Customer Agreement to the contrary, Montgomery Securities shall not lend, pledge
or hypothecate any securities owned by Customer (whether or not such securities
are held by Montgomery Securities as Collateral for Customer's Obligations) to
facilitate any short sale or otherwise; provided, that this provision shall not
prevent the sale of Collateral pursuant to Section 4.
Death or Incompetency of Customer. Montgomery Securities will not take
action pursuant to Section 4 solely because of Customer's death or adjudged
incompetency if either (a) within 30 days after the date of Customer's death or
declaration of incompetency and an administrator, executor, conservator,
guardian or other personal representative has authority to make investment
decisions with respect to Customer's account, or (b) with respect to Customer's
incompetency, Customer has executed a power of attorney designating an
attorney-in-fact who shall have the power to make investment decisions with
respect to Customer's account.
/s/: Paul Segall /s/: Wilson T. Hileman
- ---------------------------- ------------------------------
Customer Signature For Montgomery Securities
Paul Segall Wilson T. Hileman - Managing Director
- ---------------------------- --------------------------------------
Print Name Print Name and Title
XXX-XXXXX-XXX
Account No._________________
Page 13 of 24 Pages
Exhibit (b)
Representation letter FOR AFFILIATES of a Company
whose Stock is used as collateral for Margin
Montgomery Securities
600 Montgomery Street
San Francisco, CA 94111.
Attn: Margin Department
Gentlemen:
Reference is made to the Customer Agreement I executed with
you, pursuant to which you opened and maintain account number XXX-XXXXX
for me, and which agreement governs the extension and maintenance of
margin credit with respect to such account.
I am an affiliate (as defined in Rule 144 (a) (1) under the
Securities Act of 1933 (the "Act") of Biotime, Inc. (the "Company"). I
wish to obtain margin credit on not more than 90,000 shares of the
common stock (the "Securities") of the Company. I understand that in
order for you to extend margin credit to me which is collateralized by
the Securities, you must be able to sell the Securities pursuant to
Rule 144 of the Act ("Rule 14+"), which requires that certain
conditions must be met. Accordingly, I hereby represent to you and
covenant with you as follows:
1. I acquired and fully paid for the Securities on January 18,
1991. The Securities are "restricted securities" within the
meaning of Rule 144, and bear a legend describing restrictions on
the transfer of the Securities.
2. In the preceding three months, I, together with all persons who
are considered the same "person" as me under Rule l44(a)(2) and
all persons whose sales must be aggregated with mine pursuant to
Rule 144(e)(3), have sold 0 shares of common stock of the Company.
- --------------------------------------
3. The Securities, together with all shares of capital stock of the
Company held by persons whose sales would be aggregated with sales
by me pursuant to Rule 1 4+(e)(3), constitute less -than the
greater of (i) 1% of the shares of common stock of the Company
currently outstanding or (ii) the average weekly reported volume
of trading in the Common Stock of the Company on all national
securities exchanges, through the Nasdaq Stock Market, Inc., and
/or through the consolidated transaction reporting system. I agree
that for the duration of the period for which my margin loan from
Montgomery is collateralized, in whole or in part, by the
Securities, I will not transfer any
Page 14 of 24 Pages
shares of capital stock of the Company to any person whose sales
would be aggregated with sales by me pursuant to Rule l44(e)(3).
In addition, I have held 26,690 securities of the Company for a
period of at least two years from the date hereof (the "Additional
Securities"). I also p1edge the Additional Securities as
collateral in order for you to extend margin credit to me. I
understand that you may sell the Additional Securities without
regard to the volume 'imitation under Rule 144 if you institute
foreclosure proceedings against my account.
4. I agree that for the duration of the period for which my margin
loan from Montgomery Securities is collateralized, in whole or in
part, by the Securities, I will not sell, and I will cause all
persons who are considered the same "person" as me under Rule
l44(a)(2) not to sell, any shares of common stock of the Company.
5. I will not use any margin credit to purchase securities of any
other company of which lam an affiliate (as defined in Rule 144(a)
(1)).
6. I have no outstanding borrowing collateralized by any shares of
capital stock of the Company and I will not incur such borrowing
from any other person for the duration of the period for which my
margin loan from Montgomery Securities is collateralized, in whole
or in part, by the Securities.
7. I have delivered to you an executed Form 144, a Seller's
Representation Letter under Rule 144 and such other documents as
you have requested to enable you to sell the Securities under Rule
144 at any time you may consider it necessary for your protection.
The information contained in these documents is true and correct.
You may rely on the continued accuracy and completeness of such
information unless and until I have informed you m writing of any
changes to such information and have provided you with corrected
versions of such documents I will not take any action or omit to
take any action that would prevent you from selling the Securities
at any time pursuant to Rule 144.
8. I will notify you immediately of any occurrence which would
render any of the foregoing representations inaccurate.
9. I am familiar with the provisions of Section 16 of the
Securities Exchange Act of 1934 and the rules promulgated
thereunder. I understand the possible consequences to me if you
sell the Securities at a time when such sale would deem 'me to
have received "short-swing" profits, which consequences could
include the payment to the Company by me of all such profits.
Page 15 of 24 Pages
The Company, its transfer agent and their agents and representatives may rely on
this letter. I will indemnify you and hold you harmless from and against any and
all loss, damage, claim, liability and expense arising out of or resulting from
the breach of any representation or covenant herein.
Very truly yours,
Paul Segall
Page 16 of 24 Pages
Exhibit (c)
MONTGOMERY SECURITIES
CUSTOMER AGREEMENT
This agreement sets forth the terms and conditions pursuant to which we,
Montgomery Securities, and our successors and assigns, will maintain your
account for purchases and sales of "securities and other property," which means,
but is not limited to securities, financial instruments, commodities and money
of every kind and nature and related contracts and options. This definition
includes securities or other property currently or hereafter held, carried or
maintained by, or in the possession or control of, us or any of our related
entities for any purpose in and for any account now or hereafter opened by you.
You understand that, if your account is a cash account, the provisions of
paragraphs 18 & 19 are not binding upon you unless you enter into a margin
transaction and, if your account is a commodities account, the provisions of
paragraph 14 shall not be applicable.
1. APPLICABLE LAW AND REGULATIONS. All transactions in your account shall be
subject to all applicable laws and the rules and regulations of all
federal, state and self-regulatory agencies, including, but not limited
to, the Board of Governors of the Federal Reserve System and the
constitution, rules, customs and usages of the exchange or market (and its
clearing house) where the transactions are executed.
2. SECURITY INTEREST AND LIEN. All securities or other property which we may
at any time be carrying or maintaining for you or which may at any time be
in our possession or control for any purpose, including safekeeping, shall
be subject to a general lien for the discharge of all of your obligations
to us, irrespective of whether or not we have made advances in connection
with such securities or other property, and irrespective of the number of
accounts you may have with us.
3. DEPOSITS ON CASH TRANSACTIONS. If at any time Montgomery Securities
considers it necessary for its protection, it may in its discretion
require you to deposit cash or collateral in your account to assure due
performance by you of your open contractual commitments.
4. BREACH OR DEFAULT. In the event of any breach by you of any agreement with
us, or any default by you in any obligation to us, or should you die or
file a petition in bankruptcy or for the appointment of a receiver by or
against you, or should we for any reason whatsoever deem it necessary for
our protection, we are hereby authorized, at our discretion, to sell any
or all of the securities and other property in any of your accounts which
may be in our possession or control, or which we may be carrying or
maintaining for you (either individually or jointly with others), or to
buy-in any securities or other property of which your account or accounts
may be short, or to cancel any other standing orders, to close out your
account or accounts in whole or in part or in order to close out any
commitment made on your behalf. Any such sale, purchase or cancellation
may be made according to our judgment and may be made, at our discretion,
on the exchange or other market where such business is then usually
transacted, or at public auction or at private sale, without advertising
the same and without notice to you or to your personal representative, and
without prior tender, demand or call of any kind upon you, or upon your
personal representative (each of which is expressly waived by you), and we
may purchase the whole or any part thereof free from any right of
redemption, and you shall remain liable for any deficiency; it being
understood that a prior tender, demand, call or notice of any kind shall
not be considered a waiver of our right to sell or buy any securities
and/or other property held by us, or owed us by you, at any time as
hereinbefore provided. Nothing in this agreement shall be construed as
relieving you of any obligations imposed by law.
5. FINALITY OF REPORTS. Reports of execution of orders and statements of your
accounts shall become conclusive if not objected to in writing, the former
within five days, and the latter within ten days, after forwarding by us
to you by mail or otherwise.
Page 17 of 24 Pages
6. RECEIPT OF TRUTH-IN-LENDING. You hereby acknowledge receipt and review of
Montgomery Securities' Truth-in-Lending disclosure statement contained
here within. You understand that interest will be charged on any debit
balances in accordance with the methods described in that statement or in
any amendment or revision thereto which may be provided to you. It is
understood and agreed that the interest charge made to your account at the
close of one charge period will be compounded, unless paid; that is, the
unpaid interest charge for previous periods will be added to the opening
balance for the next charge period, thereby becoming part of the principal
amount due and bearing like interest.
7. TRANSFERS BETWEEN ACCOUNTS. At any time and from time to time, at our
discretion, we may without notice to you apply and/or transfer any or all
securities and/or other property of yours interchangeably between any of
your accounts.
8. SELL ORDERS. It is understood and agreed that you will designate any sell
order for a short account which you place with us as a "short sale" and
hereby authorize us to mark such order as being "short", and when placing
with us any order for a long account, will designate it as such and hereby
authorize us to mark such order as being "long." Any sell order which you
shall designate as being for long account as above provided is for
securities then owned by you and, if such securities are not then
deliverable by us from any of your accounts, the placing of such order
shall constitute a representation by you that it is impracticable for you
to then deliver such securities to us but that you will deliver them as
soon as it is possible for you to do so without undue
inconvenience or expense.
9. AGE, BENEFICIAL INTEREST. If you are an individual, you represent that you
are of full legal age, and, in any event not less than eighteen years of
age. You further represent that no one except you has an interest in your
account with us.
10. OPERATIONAL MATTERS. Montgomery Securities primarily uses banks located in
California and New York to issue checks.Also, when we hold securities for
your account, dividends and interest are credited on or about the payable
date as received. Most of our customers prefer to have these funds held in
their accounts, and this will be the procedure which we will follow with
your account unless you advise us of an alternative procedure which you
would prefer. For example, we could arrange for checks to be sent to you
monthly. If you require special arrangements, please bring the matter to
our attention. Montgomery Securities' policy is not to receive
remuneration for directing orders to particular brokers/dealers or market
centers for execution. Notwithstanding this policy, should Montgomery
Securities receive such remuneration on any transaction, appropriate
disclosure will be made.
11. CREDIT REPORT. Montgomery Securities may, in its discretion, request an
investigative consumer report on you as a credit reference, which report
may include information with respect to character, general reputation,
personal characteristics and mode of living. In accordance with the Fair
Credit Reporting Act, a copy of any such report, if obtained, will be made
available to you upon written request.
12. CLEARANCE ACCOUNTS. If Montgomery Securities carries your account as
clearing broker by arrangement with another broker through whose courtesy
your account has been introduced, then unless Montgomery Securities
receives from you a written notice to the contrary, Montgomery Securities
shall accept from such other broker, without any inquiry or investigation
by us, (i) orders for the purchase and sale of securities and other
property on margin or otherwise, and (ii) any other instructions
concerning said account. You understand Montgomery Securities shall have
no responsibility or liability to you for any acts or omissions of such
other broker, its officers, employees or agents.
13. WAIVER, ASSIGNMENT AND NOTICES. No term or provision of this Agreement may
be waived or modified unless in writing and signed by the party against
whom such waiver or modification is sought to be enforced. Montgomery
Securities' failure to insist at any time upon strict compliance with this
Agreement or with any of the terms hereunder or any continued course of
such conduct on its part shall in no event constitute or be considered a
waiver by Montgomery Securities of any of its rights or privileges. This
Agreement contains the entire understanding between you and Montgomery
Securities concerning the subject matter of this
Page 18 of 24 Pages
Agreement. You may not assign your rights or obligations hereunder without
first obtaining the prior written consent of Montgomery Securities. Notice
or other communications, including margin calls, delivered or mailed to
the address given below shall, until Montgomery Securities has received
notice in writing of a different address, be deemed to have been
personally delivered to you.
14. ARBITRATION.
o ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
o THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT,
INCLUDING THE RIGHT TO JURY TRIAL.
o PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND
DIFFERENT FROM COURT PROCEEDINGS.
o THE ARBITRATORS' 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.
o THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF ARBITRATORS
WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
YOU AGREE, AND BY CARRYING AN ACCOUNT FOR YOU, WE AGREE, THAT ALL
CONTROVERSIES WHICH MAY ARISE BETWEEN US CONCERNING ANY TRANSACTION OR THE
CONSTRUCTION, PERFORMANCE OR BREACH OF THIS OR ANY OTHER AGREEMENT BETWEEN
US, WHETHER ENTERED INTO PRIOR, ON, OR SUBSEQUENT TO THE DATE HEREOF,
SHALL BE DETERMINED BY ARBITRATION. ANY ARBITRATION UNDER THIS AGREEMENT
SHALL BE CONDUCTED ONLY IN THE FORUMS PROVIDED BY THE NATIONAL ASSOCIATION
OF SECURITIES DEALERS, INC. OR THE BOARD OF GOVERNORS OF THE NEW YORK
STOCK EXCHANGE, INC., AS YOU MAY ELECT. IF YOU DO NOT MAKE SUCH ELECTION
BY REGISTERED MAIL ADDRESSED TO MONTGOMERY SECURITIES, 600 MONTGOMERY
STREET, SAN FRANCISCO, CA 94111, ATTENTION: LEGAL DEPARTMENT, AND RECEIVED
WITHIN FIVE DAYS AFTER DEMAND BY US THAT YOU MAKE SUCH ELECTION, THEN
MONTGOMERY SECURITIES MAY MAKE SUCH ELECTION. THE AWARD OF THE
ARBITRATORS, OR OF THE MAJORITY OF THEM, SHALL BE FINAL, AND JUDGMENT UPON
ANY AWARD RENDERED BY THE ARBITRATORS MAY BE ENTERED IN ANY COURT HAVlNG
JURISDICTION THEREOF.
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; (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.
15. NEW YORK LAW TO GOVERN. This Agreement and its enforcement shall be
governed by the laws of the State of New York (without regard to any
principles of conflicts of law) and its provisions shall be continuous;
shall cover individually and collectively all accounts which you may open
or reopen with us, and shall inure to the benefit of our present
organization, and any successor organization, irrespective of any change
or changes at any time in the personnel thereof, for any cause whatsoever,
and of the assigns of our present organization
Page 19 of 24 Pages
or any successor organization, and shall be binding upon you, and/or your
estate, executors, administrators, heirs and assigns.
16. PARTIAL UNENFORCEABILITY. If any provision herein is or should become
inconsistent with any present or future law, rule or regulation of any
sovereign government or a regulatory body having jurisdiction over the
subject matter of this Agreement or is held to be invalid, void or
unenforceable by reason of any law, rule, administrative order or judicial
decision, such provision shall be deemed to be rescinded or modified in
accordance with any such law, rule, regulation, order or decision. In all
other respects, this Agreement shall continue and remain in full force and
effect.
17. LIMIT ORDERS. Montgomery Securities reserves the right to not accept from
customers limit orders in NASDAQ or over-the-counter securities in which
it acts as a market maker.
18. MARGIN IN MARGIN ACCOUNTS (NOT APPLICABLE TO CASH ACCOUNTS). You hereby
agree to maintain such margin in your margin account as Montgomery
Securities may in its discretion require and you agree to pay forthwith on
demand any debit balance owing with respect to any of your margin
accounts, and if not paid this shall be a breach of this Agreement and
Montgomery Securities may take such action as it considers necessary for
its protection in accordance with this Agreement. You understand that,
even if Montgomery Securities has a policy of giving customers notice of a
margin deficiency, Montgomery Securities is not obligated to request
additional margin from you, and there may be circumstances where
Montgomery Securities will liquidate securities and/or other property in
your account without notice to you. You will be charged interest on your
debit balance which if not paid at the close of an interest period will be
added to the opening balance for the next interest period. Please consult
the attached disclosure statement for an outline of Montgomery Securities'
interest policies.
19. CUSTOMER'S CONSENT TO LOAN OR PLEDGE OF SECURITIES AND OTHER PROPERTY (NOT
APPLICABLE TO CASH ACCOUNTS). You hereby authorize Montgomery Securities
to lend either to itself or to others any securities and other property
held by Montgomery Securities in your margin account and to carry all such
property in its general loans and such property may be pledged, repledged,
hypothecated or rehypothecated, without notice to you, either separately
or in common with other such property for any amounts due to Montgomery
Securities thereon or for a greater sum, and Montgomery Securities shall
have no obligation to retain a like amount of similar property in its
possession and control.
BY SIGNING THIS AGREEMENT YOU ACKNOWLEDGE THAT THE SECURITIES IN YOUR
MARGIN ACCOUNT MAY BE LOANED TO MONTGOMERY SECURITIES OR LOANED OUT TO
OTHERS AND THAT YOU HAVE RECEIVED AND REVIEWED A COPY OF THIS AGREEMENT.
THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE AT PAGES 2-3 AT
PARAGRAPH 14.
IF JOINT ACCOUNT BOTH PARTIES MUST SIGN. Persons signing on behalf of
others please indicate title or capacity in which you have signed.
Judith Segall
- ------------------------------------------------
(Typed or Printed Name)
/s/: Judith Segall
- ------------------------------------------------
(Signature)
- ------------------------------------------------
(Signature)
Page 20 of 24 Pages
c/o BioTime, Inc., 935 Pardee Street
- ------------------------------------------------
(Mailing Address)
Berkeley, CA 94710
- ------------------------------------------------
(City) (State) (Zip)
9/12/97
- ------------------------------------------------
(Date)
Acct. XXX-XXXXX-XXX
No.:____________________________________________
Page 21 of 24 Pages
ADDENDUM TO CUSTOMER AGREEMENT
Hypothecation of Customer Securities. Notwithstanding any provision of the
Customer Agreement to the contrary, Montgomery Securities shall not lend, pledge
or hypothecate any securities owned by Customer (whether or not such securities
are held by Montgomery Securities as Collateral for Customer's Obligations) to
facilitate any short sale or otherwise; provided, that this provision shall not
prevent the sale of Collateral pursuant to Section 4.
Death or Incompetency of Customer. Montgomery Securities will not take
action pursuant to Section 4 solely because of Customer's death or adjudged
incompetency if either (a) within 30 days after the date of Customer's death or
declaration of incompetency and an administrator, executor, conservator,
guardian or other personal representative has authority to make investment
decisions with respect to Customer's account, or (b) with respect to Customer's
incompetency, Customer has executed a power of attorney designating an
attorney-in-fact who shall have the power to make investment decisions with
respect to Customer's account.
/s/: Judith Segall /s/: Wilson T. Hileman
- ---------------------------- ------------------------------
Customer Signature For Montgomery Securities
Judith Segall Wilson T. Hileman, Managing Director
- ---------------------------- ------------------------------------
Print Name Print Name and Title
XXX-XXXXX-XXX
Account No._________________
Page 22 of 24 Pages
Exhibit (d)
Representation letter FOR AFFILIATES of a Company
whose Stock is used as collateral for Margin
Montgomery Securities
600 Montgomery Street
San Francisco, CA 94111.
Attn: Margin Department
Gentlemen:
Reference is made to the Customer Agreement I executed with
you, pursuant to which you opened and maintain account number XXX-XXXXX
for me, and which agreement governs the extension and maintenance of
margin credit with respect to such account.
I am an affiliate (as defined in Rule 144 (a) (1) under the
Securities Act of 1933 (the "Act") of Biotime, Inc. (the "Company"). I
wish to obtain margin credit on not more than 58,345 shares of the
common stock (the "Securities") of the Company. I understand that in
order for you to extend margin credit to me which is collateralized by
the Securities, you must be able to sell the Securities pursuant to
Rule 144 of the Act ("Rule 14+"), which requires that certain
conditions must be met. Accordingly, I hereby represent to you and
covenant with you as follows:
1. I acquired and fully paid for the Securities on January 18, 1991.
The Securities are "restricted securities" within the meaning of
Rule 144, and bear a legend describing restrictions on the
transfer of the Securities.
2. In the preceding three months, I, together with all persons
who are considered the same "person" as me under Rule l44(a)(2)
and all persons whose sales must be aggregated with mine pursuant
to Rule 144(e)(3), have sold 0 shares of common stock of the
Company. - --------------------------------------
3. The Securities, together with all shares of capital stock of the
Company held by persons whose sales would be aggregated with sales
by me pursuant to Rule 1 4+(e)(3), constitute less -than the
greater of (i) 1% of the shares of common stock of the Company
currently outstanding or (ii) the average weekly reported volume
of trading in the Common Stock of the Company on all national
securities exchanges, through the Nasdaq Stock Market, Inc., and
/or through the consolidated
Page 23 of 24 Pages
transaction reporting system. I agree that for the duration of the
period for which my margin loan from Montgomery is collateralized,
in whole or in part, by the Securities, I will not transfer any
shares of capital stock of the Company to any person whose sales
would be aggregated with sales by me pursuant to Rule l44(e)(3).
4. I agree that for the duration of the period for which my margin
loan from Montgomery Securities is collateralized, in whole or in
part, by the Securities, I will not sell, and I will cause all
persons who are considered the same "person" as me under Rule
l44(a)(2) not to sell, any shares of common stock of the Company.
5. I will not use any margin credit to purchase securities of any
other company of which lam an affiliate (as defined in Rule 144(a)
(1)).
6. I have no outstanding borrowing collateralized by any shares of
capital stock of the Company and I will not incur such borrowing
from any other person for the duration of the period for which my
margin loan from Montgomery Securities is collateralized, in whole
or in part, by the Securities.
7. I have delivered to you an executed Form 144, a Seller's
Representation Letter under Rule 144 and such other documents as
you have requested to enable you to sell the Securities under Rule
144 at any time you may consider it necessary for your protection.
The information contained in these documents is true and correct.
You may rely on the continued accuracy and completeness of such
information unless and until I have informed you m writing of any
changes to such information and have provided you with corrected
versions of such documents I will not take any action or omit to
take any action that would prevent you from selling the Securities
at any time pursuant to Rule 144.
8. I will notify you immediately of any occurrence which would
render any of the foregoing representations inaccurate.
9. I am familiar with the provisions of Section 16 of the
Securities Exchange Act of 1934 and the rules promulgated
thereunder. I understand the possible consequences to me if you
sell the Securities at a time when such sale would deem 'me to
have received "short-swing" profits, which consequences could
include the payment to the Company by me of all such profits.
The Company, its transfer agent and their agents and representatives may rely on
this letter. I will indemnify you and hold you harmless from and against any and
all loss, damage, claim, liability and expense arising out of or resulting from
the breach of any representation or covenant herein.
Very truly yours,
Judith Segall
Page 24 of 24 Pages