As filed with the Securities and Exchange Commission on February 15, 2005
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
BIOTIME, INC.
(Exact name of Registrant as specified in charter)
|
California |
94-3127919 |
|
(State or other jurisdiction of |
(I.R.S. Employer |
|
incorporation or organization) |
Identification Number) |
935 Pardee Street, Berkeley, California 94710
(Address of principal executive offices) (Zip Code)
2002 Stock Option Plan
(Full title of the plan)
Judith Segall
Vice President
BioTime, Inc.
935 Pardee Street
Berkeley, California 94710
(Name and address of agent for service)
(510) 845-9535
(Telephone number, including area code, of agent for service)
_________________________
Copies of all communications, including all communications sent to the agent for service, should be sent to:
RICHARD S. SOROKO, ESQ.
Lippenberger, Thompson, Welch, Soroko & Gilbert LLP
201 Tamal Vista Blvd.
Corte Madera, California 94925
Tel. (415) 927-5200
_________________________
CALCULATION OF REGISTRATION FEE
|
Title of Each Class of Securities to be Registered |
Amount
to be
Registered |
|
Proposed
Maximum Offering
Price Per Unit(1) |
Proposed Maximum Aggregate Offering Price(1) |
Amount of
Registration
Fee(1) |
||||||||
|
Options to Purchase Common Shares |
1,000,000 |
-- |
-- |
-- |
|||||||||
|
Common Shares, no par value(2) |
1,000,000 |
$ |
1.16 |
$ |
1,160,000 |
$ |
136.53 |
||||||
|
Total Registration Fee |
$136.53 |
||||||||||||
_____________________
_______________
| (1) | Determined pursuant to Rule 457(c) and (g), including the exercise prices of the various Warrants. |
| (2) |
Issuable upon the exercise of the Options. Pursuant to Rule 416, this Registration Statement also includes an indeterminate number of common shares that may be subject to issuance as a result of anti-dilution and other provisions of the Plan. |
The contents of Registration Statement on Form S-8 File No. 333-101651 are hereby incorporated by reference.
Item 3. Incorporation of Documents by Reference.
The Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2003, Quarterly Reports on Form 10-Q for the periods ended March 31, 2004, June 30, 2004, and September 30, 2004, Current Report on Form 8-K filed on May 13, 2004, June 4, 2004, July 7, 2004, August 13, 2004, November 3, 2004, November 16, 2004, December 23, 2004, and December 30, 2004, and all other reports filed by BioTime pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended, since the end of the fiscal year covered by such Form 10-K and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this registration statement and to be part thereof from the date of filing of such documents. A description of the common shares contained in a Registration Statement on Form 8-A filed under the Securities Exchange Act of 1934, as amended, is also incorporated into this registration statement by reference.
Item 8. Exhibits.
| Exhibit Numbers | Description |
| 4.1 | Specimen of Common Share Certificate† |
| 4.2 | 2002 Stock Option Plan†† |
| 4.3 | Amendment to 2002 Stock Option Plan* |
| 5.1 | Opinion of Counsel* |
| 23.1 | Consent of BDO Seidman LLP* |
| 23.1 | Consent of Deloitte & Touche LLP* |
| 23.3 | Consent of Counsel (Included in Exhibit 5.1) |
_______________
| † |
Incorporated by reference to Registration Statement on Form S-1, File Number 33-44549 filed with the Securities and Exchange Commission on December 18, 1991, and Amendment No. 1 and Amendment No. 2 thereto filed with the Securities and Exchange Commission on February 6, 1992 and March 7, 1992, respectively. |
|
†† |
Incorporated by reference to Registration Statement on Form S-8, File Number 333-101651 filed with the Securities and Exchange Commission on December 4, 2002. |
| * | Filed herewith. |
2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Berkeley, State of California on February 14, 2005.
| BIOTIME, INC. | ||
| |
|
|
| By: | /s/ Judith Segall | |
|
| ||
| Judith Segall, Vice President* | ||
Pursuant to the requirements of the Securities Act of 1933, this Amendment to the Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
| /s/ Judith Segall | Vice President-Operations, Member Office of the President*, | February 14, 2005 | ||
| JUDITH SEGALL | Secretary, and Director (Co-Principal Executive Officer) | |||
| /s/ Harold Waitz | Vice President, Member Office of the President*, | February 14, 2005 | ||
| HAROLD WAITZ | and Director (Co-Principal Executive Officer) | |||
| /s/ Hal Sternberg | Vice President, Member Officer of the President*, | February 14, 2005 | ||
| HAL STERNBERG | and Director (Co-Principal Executive Officer) | |||
| /s/ Steven Seinberg | Chief Financial Officer | February 14, 2005 | ||
| STEVEN SEINBERG | (Principal Financial and Accounting Officer) | |||
| /s/ Michael D. West | Director | February 14, 2005 | ||
| MICHAEL D. WEST | ||||
| /s/ | Director | February __, 2005 | ||
| KATHERINE GORDON | ||||
| /s/ | Director | February __, 2005 | ||
| MILTON DRESNER | ||||
| /s/ | Director | February __, 2005 | ||
| VALETA GREGG |
_______________
| * |
The Office of the President is composed of three executive officers of the registrant who collectively exercise the powers of the Chief Executive Officer. |
3
EXHIBIT INDEX
| Exhibit Numbers | Description |
| 4.1 | Specimen of Common Share Certificate† |
| 4.2 | 2002 Stock Option Plan†† |
| 4.3 | Amendment to 2002 Stock Option Plan* |
| 5.1 | Opinion of Counsel* |
| 23.1 | Consent of BDO Seidman LLP* |
| 23.1 | Consent of Deloitte & Touche LLP* |
| 23.3 | Consent of Counsel (Included in Exhibit 5.1) |
_______________
| † |
Incorporated by reference to Registration Statement on Form S-1, File Number 33-44549 filed with the Securities and Exchange Commission on December 18, 1991, and Amendment No. 1 and Amendment No. 2 thereto filed with the Securities and Exchange Commission on February 6, 1992 and March 7, 1992, respectively. |
|
†† |
Incorporated by reference to Registration Statement on Form S-8, File Number 333-101651 filed with the Securities and Exchange Commission on December 4, 2002. |
| * | Filed herewith. |
| 4 |
EXHIBIT
4.3
AMENDMENT
TO
BIOTIME,
INC.
2002
STOCK OPTION PLAN
Effective
December 10, 2004, Article I, Section 4 is amended to read as
follows:
4. SHARES
OF STOCK SUBJECT TO THE PLAN
The
shares that may be issued under the Plan shall be authorized and unissued or
reacquired common shares, no par value, of the Company (the "Shares"). The
aggregate number of Shares which may be issued under the Plan shall not exceed
2,000,000, unless an adjustment is required in accordance with Article
III.
EXHIBIT
5.1
LAW
OFFICES
LIPPENBERGER,
THOMPSON,
WELCH,
SOROKO
& GILBERT
LLP
201 TAMAL
VISTA BLVD.
CORTE
MADERA, CA 94925
(415)
927-5200
|
FACSIMILE | |
| RICHARD S. SOROKO |
(415)
927-5210 |
|
email:
rsoroko@LTWS.com | |
|
SAN
FRANCISCO OFFICE | |
|
(415)
262-1200 |
February
9, 2005
Securities
and Exchange Commission
450 Fifth
Street, N.W.
Washington,
D.C. 20549
| Re: | BioTime, Inc. |
| Registration Statement on Form S-8 |
Ladies/Gentlemen:
We are
counsel to BioTime, Inc. (the "Company") in connection with the registration of
1,000,000
common shares, no par value, of the Company (the "Shares") and 1,000,000 options
to purchase
common shares, no par value, of the Company (the "Options") under the Securities
Act of 1933, as
amended, on Form S-8 (the “Registration Statement”). The Shares and Options are
issuable under the
Company's 2002 Stock Option Plan, as amended (the "Plan").
We are of
the opinion that when the Shares are issued and sold pursuant to the Plan and
upon the
exercise of the Options, in accordance with the terms and provisions of the
Options, the Shares will be
legally and validly issued and outstanding, fully paid and
nonassessable.
The
foregoing opinion is limited to the laws of the State of California and the
Federal laws of the
United States of America.
We hereby
consent to the use of our opinion in the Registration Statement.
Very
truly yours,
Lippenberger,
Thompson, Welch, Soroko & Gilbert LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement Form S-8 of our report dated February 16, 2002 (March 26, 2004 as to the retroactive adjustment to basic and diluted net loss per share discussed in Note 2), relating to the financial statements of BioTime, Inc. for the year ended December 31, 2001, which report expresses an unqualified opinion and includes an explanatory paragraph related to the development state of the Company’s operations, appearing in the Annual Report on Form 10-K of BioTime, Inc. for the year ended December 31, 2003.
San Francisco, California
February 9, 2005
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
BioTime, Inc.
Berkeley, California
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 16, 2002 (March 26, 2004 as to the retroactive adjustment to basic and diluted net loss per share discussed in Note 2), relating to the financial statements of BioTime, Inc. for the year ended December 31, 2001, which report expresses an unqualified opinion and includes an explanatory paragraph related to the development stage of the Company’s operations, appearing in the Annual Report on Form 10-K of BioTime, Inc. for the year ended December 31, 2003.
BDO SEIDMAN, LLP
San Francisco, California
February 9, 2005