As filed with the Securities and Exchange Commission on January 10, 1997
Registration No.333-17321
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO.1
TO FORM S-3
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)
Paul E. Segall, President
935 Pardee Street BioTime, Inc.
Berkeley, California 94710 935 Pardee Street
(510) 845-9535 Berkeley, California 94710
(Address, including zip code, (510) 845-9535
and telephone number, including area, (Name, address, including zip
code, of Registrant's principal code, and telephone number,
executive offices) including area code, of agent
of service)
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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 LLP
250 Montgomery Street, Suite 500
San Francisco, California 94104
Tel. (415) 421-5300
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Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. |_|
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 of the Securities Act of 1933,
other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
CALCULATION OF REGISTRATION FEE
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Proposed
Amount Proposed Maximum Amount of
Title of Each Class of Securities to be Maximum Offering Aggregate Registration
to be Registered Registered Price Per Unit(1) Offering Price(1) Fee
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Common Shares, no par value(2) 283,109 $19.25 $5,449,848.30 $1,750.00(7)
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Common Share Purchase Rights 2,831,084 -- -- --
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Common Shares, no par value(3) 29,013 $ 7.81 $ 226,591.53 $ 68.66(5)
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Common Shares, no par value(4) 76,000 $ 7.18 $ 545,680.00 $ 165.36(6)
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Warrants to Purchase Common Shares 76,000 -- -- --
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Total Registration Fee.....................................................................................$1,984.02(7)
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(1) Estimated solely for the purpose of calculating the registration fee.
(2) Issuable upon exercise of the Common Share Purchase Rights.
(3) Issued upon exercise of certain Warrants.
(4) Issuable upon exercise of certain Warrants.
(5) Previously paid with Registration Statement 33-44549.
(6) Previously paid with Registration Statement 33-48717.
(7) Previously paid.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its Effective Date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
Pursuant to Rule 429, the Prospectus included as a part of this Registration
Statement also relates to Registration Statements 33-44549 and 33-48717.
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PROSPECTUS
BIOTIME, INC.
283,109 COMMON SHARES
Issuable Upon the Exercise of Subscription Rights
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BioTime, Inc. (the "Company" or "BioTime") is issuing to its shareholders of
record, including beneficial owners of shares held in the name of Cede & Co. as
nominee for The Depository Trust Company or in the name of any other depository
or nominee ("Record Date Shareholders"), as of the close of business on December
27, 1996 (the "Record Date") rights ("Rights") entitling the holders thereof to
subscribe for and purchase up to an aggregate of 283,109 common shares, no par
value ("Common Shares"), of the Company at a price of $20.00 per share (the
"Subscription Price"). Each Record Date Shareholder will receive one Right for
each Common Share owned on the Record Date, and will be entitled to subscribe
for and purchase from the Company one new Common Share for every ten rights held
(the "Primary Subscription"). Record Date Shareholders who fully exercise their
Rights will be entitled to the additional privilege of subscribing for and
purchasing, subject to certain limitations and subject to allocation, any Common
Shares not acquired by other holders of Rights through the exercise of such
Rights (the "Over-Subscription Privilege").
The Offer provides the Company with the opportunity to raise additional
capital without diluting the ownership interests of existing shareholders who
exercise their Rights, and without paying underwriting commissions and expenses.
Shareholders who exercise their Rights in the Offer will be able to purchase
shares at a price below market, without incurring broker's commissions, and will
be able to maintain their prorata share of the Company's equity.
THE OFFER, WHICH INCLUDES THE PRIMARY SUBSCRIPTION AND THE OVER
SUBSCRIPTION PRIVILEGE, WILL EXPIRE AT 5:00 P.M. NEW YORK CITY TIME ON FEBRUARY
4, 1997 (the "Expiration Date"). Record Date Shareholders who do not fully
exercise their Rights should expect, upon completion of the Offer, to own a
smaller proportional interest in the Company than before the Offer.
This Prospectus also relates to 105,013 Common Shares issued or issuable
upon the exercise of certain warrants. See "Warrants."
The Common Shares are authorized for trading on the Nasdaq Small Cap Market
("Nasdaq") under the symbol BTIM and are listed for trading on the Boston Stock
Exchange under the symbol BTM. The Rights will be transferable and are approved
for trading on Nasdaq under the symbol BTIMR.
The Company announced the Offer on December 5, 1996. The last reported sale
prices of a Common Share on Nasdaq on December 5, 1996 and on January 9, 1997
were $21.00 and $26.50, respectively.
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THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK AND SHOULD BE PURCHASED ONLY BY
PERSONS WHO CAN AFFORD THE LOSS OF THEIR ENTIRE INVESTMENT. SEE "RISK FACTORS."
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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Price to Proceeds to the
the Public Company (1)
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Per Share................... $ 20.00 $ 20.00
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Total (2)................... $ 5,662,180 $ 5,662,180
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(1) Before deducting expenses of the Offering which are estimated to be
$123,000. No underwriting discounts or commissions will be paid.
(2) Assumes all of the Rights are exercised. Does not include any proceeds that
may be received by the Company upon the exercise of certain warrants.
The date of this Prospectus is January 10, 1997
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended, and in accordance therewith files reports and
other information with the Securities and Exchange Commission. Reports, proxy
and information statements and other information filed by the Company can be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C., at its New York Regional
Office at 7 World Trade Center, Suite 1300, New York, New York, 10048, and at
its Chicago Regional Office at 500 West Madison Street, Suite 1400, Chicago,
Illinois 60621-2511. Copies of such material can be obtained from the Public
Reference Section of the Commission, Washington, D.C. 20549 at prescribed rates.
The Commission maintains a Web site that contains reports, proxy and
information statements, and other information regarding registrants that file
electronically with the Commission. The address of such site is
http://www.sec.gov.
The Common Shares of the Company are listed on the Boston Stock Exchange.
Reports, proxy and information statements, and other information concerning the
Company can be inspected at such Exchange.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF
AN OFFER TO BUY, COMMON SHARES IN ANY JURISDICTION OR TO ANY PERSON IF IT IS
UNLAWFUL TO DO SO.
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PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information and financial statements appearing elsewhere in this Prospectus or
in the documents incorporated by reference into this Prospectus.
The Company
BioTime, Inc. ("BioTime" or the "Company") is a development stage company
engaged in the research and development of aqueous based synthetic solutions
that can be used as plasma expanders, blood substitutes during hypothermic (low
temperature) surgery, and organ preservation solutions. These products are
intended for several important medical applications, including: the emergency
treatment of blood loss due to traumatic injury or during surgery;
cardio-pulmonary bypass surgery; the replacement of very large volumes of a
patient's blood during cardiac surgery and neurosurgery that involve lowering
the patient's body temperature to hypothermic levels; the preservation of body
organs and tissues awaiting transplant; cancer treatment; and other biomedical
applications. Because the Company's solutions are synthetic, rather than human
blood by-products, use of the solutions would not pose the risk of transmitting
AIDS, hepatitis or other blood borne infectious diseases, and would not have to
be matched to a patient's blood type.
The Company's first two blood volume replacement products are Hextend(R)
and PentaLyte.TM Hextend and PentaLyte are composed of different hydroxyethyl
starches, but include the same electrolytes, sugar and buffer. Hextend is
presently being tested in clinical studies to treat hypovolemia (loss of blood
volume) during surgery, while the Company is continuing to gather
pharmacological data on PentaLyte through laboratory studies. The Company
believes that a solution that sustains the patient's fluid volume and
physiological balance, thereby maintaining tissue and organ function, can reduce
or eliminate the need for supplemental whole blood and blood plasma. Based upon
the results of its laboratory research, the Company has determined that in many
emergency care and surgical applications it is not necessary for the solution to
include special oxygen carrying molecules to replace red blood cells. Therefore,
the Company has devoted its efforts to the development of formulations that do
not rely upon the use of recombinant DNA or other complex technologies to
synthesize and assimilate into solution costly and potentially toxic oxygen
carrying molecules such as hemoglobin and perfluorocarbons.
The Company is presently conducting a Phase III clinical trial of Hextend.
The clinical trial will involve approximately 150 patients and is designed to
test whether the use of Hextend can improve patient outcomes by maintaining
organ perfusion and preventing the adverse effects of hypovolemia (loss of blood
volume) during surgery. Hextend will be tested in a variety of surgical
procedures that often involve a large amount of blood loss, such as orthopedic,
gynecologic, urologic and gastro-intestinal surgery. The trials began during
October 1996 and are being conducted at
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the Duke University Medical Center in Durham, North Carolina and at Mt. Sinai
Hospital and Mt. Sinai School of Medicine in New York, New York. The trials are
proceeding in accordance with the Company's expectations. Although BioTime has
conducted pharmacology and toxicology testing of Hextend, and has compiled a
significant amount of data demonstrating the safety and efficacy of Hextend in
laboratory testing using animal subjects, the outcome of human trials cannot be
predicted with certainty.
If the clinical trials of Hextend are successful, the Company will have to
prepare a New Drug Application for Food and Drug Administration ("FDA") approval
to manufacture and market the new product. In order to complete a New Drug
Application, the Company will have to obtain the means of producing Hextend in
compliance with FDA "good manufacturing practices."
To address its anticipated need for manufacturing and marketing resources,
BioTime is presently negotiating with major pharmaceutical companies that, based
upon their current product lines and resources, will be able to manufacture and
market BioTime's products if and when the necessary regulatory approvals are
obtained. In regard to these negotiations, BioTime and the representatives of a
major pharmaceutical company are approaching agreement on the general terms of a
manufacturing and marketing arrangement for certain BioTime products.
The Company was incorporated under the laws of the State of California on
November 30, 1990. The Company's principal office is located at 935 Pardee
Street, Berkeley, California 94710. Its telephone number at such office is (510)
845-9535.
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The Offering
Securities Offered................................ The Company is issuing to its
shareholders of record, including beneficial owners of
shares held in the name of Cede & Co. as nominee for
The Depository Trust Company or in the name of any
other depository or nominee ("Record Date
Shareholders"), as of the close of business on December
27, 1996 (the "Record Date") rights ("Rights")
entitling the holders thereof to subscribe for and
purchase up to an aggregate of 283,109 common shares,
no par value ("Common Shares"), of the Company. Each
Record Date Shareholder will receive one Right for each
Common Share owned on the Record Date, and will be
entitled to subscribe for and purchase from the Company
one new Common Share for every ten Rights held (the
"Primary Subscription"). The Rights may be exercised at
any time during the Subscription Period, which
commences on January 10, 1997 and ends at 5:00 p.m.New
York time on February 4, 1997 (the "Expiration Date").
Subscription Price.............................. The subscription price per
Common Share (the "Subscription Price") will be
$20.00.
Over-Subscription
Privilege......................................... Record Date Shareholders who
fully exercise their Rights will be entitled to the
additional privilege of subscribing for and purchasing,
subject to certain limitations and subject to
allocation, any Common Shares not acquired by other
holders of Rights through the exercise of such Rights
(the "Over-Subscription Privilege"). See "The
Offer--Over- Subscription Privilege"
How to Exercise Rights ........................ The Rights will be evidenced by
Subscription Certificates, which will be distributed
distributed to Record Date Shareholders, and may be
exercised by completing the Subscription Certificate
and delivering it, together with payment of the
Subscription Price, to the Subscription Agent, American
Stock Transfer & Trust Company, 40 Wall Street, New
York, New York 10005. Payment may be made either by
check drawn on a United States bank, or by notice of
guaranteed delivery (as explained under "The Offer--
Payment for Shares"). Rights must be exercised no later
than the Expiration Date. Rights holders may not
rescind a purchase after exercising their Rights.
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Sale of Rights ..........................................The Rights are
transferable until the last Business Day prior to
the Expiration Date. A Business Day is a day on which
Nasdaq trades. The Rights are authorized for trading on
Nasdaq.Trading of the Rights will be conducted on a
regular-way basis from January 14, 1997 through the
last Business Day prior to the Expiration Date. Any
commissions in connection with the sale of Rights will
be paid by the selling Rights holder. The Company and
the Subscription Agent cannot assure that a market for
the Rights will develop, or the prices at which Rights
may be sold if a market does develop.
Foreign Restrictions..............................Subscription Certificates will
not be mailed to Record Date Shareholders whose
addresses of record are outside the United States
("Foreign Record Date Shareholders"). The Rights to
which such Subscription Certificates relate will be
held by the Subscription Agent for such Foreign Record
Date Shareholders' accounts until instructions are
received to exercise, sell or transfer the Rights. If
no instructions are received by 5:00p.m., New York time
on January 30, 1997 (three Business Days prior to the
Expiration Date), the Subscription Agent will use its
best efforts to sell the Rights of such Foreign Record
Date Shareholders. The net proceeds, if any, from such
a sale will be remitted to the Foreign Record Date
Shareholders on a pro rata basis. See "The
Offer--Foreign Shareholders."
Important Dates to
Remember.................................Record Date: December 27, 1996
Expiration Date: February 4, 1997
Amendment, Extension or
Termination of the Offer..............................The Company reserves the
right, in its sole discretion, to:(a)terminate the
Offer prior to delivery of the Common Shares for which
Rights holders have subscribed pursuant to the exercise
of Rights in the Primary Subscription or the
Oversubscription Privilege; (b) extend the Termination
Date to a later date; (c) change the Record Date prior
to the distribution of the Rights to shareholders; or
(d) amend or modify the terms of the Offer.
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Risk Factors.........................................An investment in the Common
Shares involves a high degree of risk. The Common
Shares should be purchased only by investors who can
afford the loss of their entire investment. See "Risk
Factors."
Use of Proceeds............................................ To finance Phase III
clinical trials of Hextend; to finance further research
and development of Hextend, Pentalyte and other BioTime
products; and for working capital. See "Use Of
Proceeds."
Nasdaq Symbol.......................................The Common Shares are traded
under the symbol "BTIM" and the Rights are authorized
for trading under the symbol "BTIMR."
Boston Stock Exchange Symbol........................The Common Shares are traded
under the symbol "BTM."
Trade Marks..........................................Hextend(R) and PentaLyteTM
are trademarks of BioTime.
-7-
RISK FACTORS
AN INVESTMENT IN THE COMMON SHARES INVOLVES A HIGH DEGREE OF RISK. THE
COMMON SHARES SHOULD BE PURCHASED ONLY BY INVESTORS WHO CAN AFFORD TO LOSE THEIR
ENTIRE INVESTMENT. BEFORE DECIDING TO PURCHASE ANY OF THE COMMON SHARES OFFERED
HEREBY, PROSPECTIVE INVESTORS SHOULD CONSIDER THE FOLLOWING FACTORS, AMONG
OTHERS SET FORTH HEREIN, WHICH COULD MATERIALLY ADVERSELY AFFECT THE PROPOSED
OPERATIONS AND PROSPECTS OF THE COMPANY AND THE VALUE OF AN INVESTMENT IN THE
COMPANY.
Development Stage Company
The Company is in the development stage, and, to date, has been principally
engaged in research and development activities. The Company has not generated a
significant amount of operating revenue and at September 30, 1996, the Company
had incurred operating losses of $8,782,827 since inception. The Company has
incurred additional losses since that date, and as a result of the developmental
nature of its business can be expected to sustain substantial additional
operating losses. The likelihood of the success of the Company must be
considered in light of the expenses, difficulties and delays frequently
encountered by a business engaged in the research, development, production and
marketing of new products and technologies utilizing new and unproven methods
and which may require many years and substantial expenditures to complete. There
can be no assurance that the Company will be successful in developing,
manufacturing or marketing (directly or through third parties) any products or
technology. Even if the Company is able to successfully develop new products or
technologies, there can be no assurance that the Company will generate
sufficient revenues from the sale or licensing of such products and technologies
to be profitable.
No Assurance of Exercise of Rights; Additional Financing Required
The number of Rights that will be exercised by Rights holders in the Offer
cannot be presently determined. Accordingly, the amount of proceeds to the
Company from the Offer is uncertain. Officers, directors and certain financial
consultants of the Company, who own in the aggregate 607,330 Common Shares, have
informed the Company that they intend to exercise the Rights distributed to
them, provided that they can obtain sufficient financing for such purpose, but
they are not legally bound to do so.
The Company believes that, if all of the Rights are exercised (which cannot
be assured), the proceeds from the Offer and its cash on hand will be sufficient
to permit the Company to continue in operation for approximately 24 months.
Additional financing may be required for continued research and product
development, additional clinical trials of new products, and production and
marketing of Hextend and any other Company products that may be approved by the
FDA or foreign regulatory authorities. Because of the developmental nature of
the Company's business, it is highly unlikely that in the near future the
Company will be able to generate internally the funds necessary to carry on its
planned operations. It often takes many
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months for the FDA to complete its review of a New Drug Application after
clinical trials are complete and it can take several months for a pharmaceutical
company to introduce a new drug to the market. Therefore, the Company will need
to raise capital from time to time to meet its operating expenses until such
time as it is able to generate sufficient revenues from product sales or
royalties. There can be no assurance that the Company will be able to raise
additional funds on favorable terms or at all, or that such funds, if raised,
will be sufficient to permit the Company to develop and market its products.
Unless the Company is able to raise additional funds when needed, it is likely
that it will be unable to continue its planned activities, notwithstanding the
progress of its research and development projects.
Uncertainty as to Results of Research and Development; Unproven Products
The Company's business involves the attempt to develop new medical products
and technologies. Such experimentation is inherently costly, time consuming and
uncertain as to its results. If the Company is successful in developing a new
technology or product, refinement of the new technology or product and
definition of the practical applications and limitations of the technology or
product may take years and require the expenditure of large sums of money. From
the date of the Company's inception through September 30, 1996, the Company
spent $5,205,194 on research and development, and the Company expects to
continue to incur substantial research and development expenses. Clinical
testing of Hextend must be successfully completed and governmental approval must
be obtained prior to commercialization, and the Company's other plasma expander,
blood substitute and organ preservation solutions will require significant
laboratory testing and development before applications for permission to
commence clinical testing can be filed with the FDA. There can be no assurance
that the Company's products will prove to be safe and efficacious in clinical
trials, be produced in commercial quantities at reasonable prices, or be
successfully marketed.
Uncertainty as to Human Application of Products
Clinical trials of Hextend in human patients have only recently begun, and
the Company's other experimental products and technologies have not been applied
in human medicine and have only been used in laboratory studies on animals.
There is no assurance that the Company will be successful in developing products
and technologies for human medical procedures.
Uncertainty of Future Sales
The Company's ability to generate substantial operating revenue depends
upon its success in developing and marketing its plasma expander, blood
substitute, and organ preservation products. Due to the high degree of risk
associated with the application of new technologies and products in the field of
human medicine, the acceptance of the Company's products and technologies by the
medical profession may take time to develop. There can be no assurance that any
products that receive FDA or foreign regulatory approval will be successfully
marketed or that the Company will receive sufficient revenues from product sales
to meet its operating expenses.
-9-
FDA and Other Regulatory Approvals Required
Preclinical and clinical trials and manufacturing and marketing of
BioTime's medical products will be subject to the rigorous testing and approval
processes of the FDA and corresponding foreign regulatory authorities. The
regulatory process, which includes preclinical, clinical and post-clinical
testing of each product to establish its safety and efficacy, can take several
years to complete and require the expenditure of substantial time and funds.
Data obtained from preclinical and clinical activities are susceptible to
varying interpretations which could delay, limit or prevent FDA regulatory
approval. In addition, delays or rejections may be encountered as a result of
changes in FDA policy during the period of product development and FDA
regulatory review of each submitted new product application. Similar delays may
also be encountered in foreign countries. There can be no assurance that, even
after substantial expenditures of time and money, regulatory approval will be
obtained for any products developed by the Company. Moreover, even if regulatory
approval of a product is granted, such approval may entail limitations on the
indicated uses for which the product may be marketed. After regulatory approval
is obtained, the approved product, the manufacturer and the manufacturing
facilities are subject to continual review and periodic inspections, and a later
discovery of previously unknown problems with a product, manufacturer or
facility may result in restrictions on such product or manufacturer, including
withdrawal of the product from the market. Failure to comply with the applicable
regulatory requirements can, among other things, result in fines, suspensions of
regulatory approvals, product recalls, operating restrictions and criminal
prosecution. Additional government regulation may be established which could
prevent or delay regulatory approval of the Company's products.
Availability of Raw Materials
Although most ingredients in the products being developed by the Company
are readily obtainable from multiple sources, the Company knows of only a few
manufacturers of the hydroxyethyl starches that serve as the active ingredient
in Hextend and PentaLyte. Accordingly, the Company and pharmaceutical companies
that may produce BioTime products under a license may face shortages of supply
of the raw materials necessary to manufacture one or more of its products.
Absence of Manufacturing and Marketing Capabilities
In order to obtain FDA approval for the sale of Hextend and other products,
the Company will be required to conduct a portion of its clinical trials using
solutions manufactured under "good manufacturing practices" required by the FDA.
If any of the Company's products receive FDA approval, such products will then
have to be manufactured in compliance with applicable federal and state
regulatory requirements, in commercial quantities and at an acceptable cost and
with sufficient stability to withstand the distribution process. The Company
presently does not have adequate facilities or resources to manufacture its
products in commercial quantities or in compliance with FDA standards.
Accordingly, the Company plans to enter into arrangements with one or more
pharmaceutical companies for the production and marketing of the Company's
products. The limited number of manufacturers capable of providing hydroxyethyl
starch, and
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the limited financial resources of the Company, could affect the terms that
Company may obtain for licensing its products. If such arrangements cannot be
made on acceptable terms, the Company would then be required to construct or
acquire its own manufacturing facilities and establish its own marketing
organization, which would entail significant expenditures of time and money. No
assurance can be given that the Company will be successful in the establishment
of contractual relationships with pharmaceutical companies for the manufacture
and marketing of the Company's products, or, alternatively, in obtaining
sufficient capital for the establishment of its own manufacturing and marketing
capabilities.
Competition
There are other companies and academic institutions that are seeking, or
may seek, to develop products that may be competitive with the Company's
proposed products. Many of these competitors have substantially greater
financial, technical, research, clinical, production and marketing resources
than the Company. The Company's competitors may succeed in developing products
that are safer or more effective than those of the Company or that obtain FDA
approval in less time than the Company's products. Developments by others could
render the Company's products and technologies obsolete or noncompetitive.
Uncertainty of Patent Protection
The Company has obtained patents in the United States, and has filed patent
applications in certain foreign countries, for certain products, including
Hextend and PentaLyte. No assurance can be given that any foreign patents will
be issued to the Company, or that, if issued, those patents and the Company's
United States patents will provide the Company with meaningful patent
protection, or that others will not successfully challenge the validity or
enforceability of any patent issued to the Company. The costs required to uphold
the validity and prevent infringement of any patent issued to the Company could
be substantial, and the Company might not have the resources available to defend
its patent rights.
Uncertainty of Health Care Reimbursement and Reform
The Company's ability to successfully commercialize its products may depend
in part on the extent to which reimbursement for the cost of such products and
related treatment will be available from government health administration
authorities, private health coverage insurers and other organizations.
Significant uncertainty exists as to the pricing, availability of distribution
channels and reimbursement status of newly approved health care products and
there can be no assurance that adequate third party coverage will be available
to enable the Company to maintain price levels sufficient for realization of an
appropriate return on its investment in product development. In certain foreign
markets, pricing or profitability of health care products is subject to
government control. In the United States, there have been a number of federal
and state proposals to implement similar government controls, and new proposals
are likely to be made in the future.
-11-
Potential Disputes Over Ownership of Technology
Because certain officers and directors of the Company were employees of
Cryomedical Sciences, Inc. ("CMSI") prior to founding the Company, it is
possible that CMSI might claim an ownership interest in products and
technologies developed by the Company based upon the scope of research conducted
by such persons while they were employed by CMSI, or based upon the terms of
certain agreements between such scientists and CMSI with respect to the
ownership of technology and products. To date, no such claims have been asserted
against the Company by CMSI. CMSI holds patents with respect to certain low
temperature blood substitute solutions. No assurance can be given that CMSI will
not claim that the Company's products infringe upon CMSI's patents. The Company
has obtained a non-exclusive license to use certain experimental low temperature
blood substitute solutions developed by CMSI. The license is not assignable or
transferable and is subject to termination under certain circumstances,
including a sale of control of the Company. However, the Company is no longer
using, and does not intend to pursue the commercialization of, the CMSI
solutions.
Dependence Upon Key Personnel
The Company depends to a considerable degree on the continued services of
Dr. Paul Segall, Dr. Hal Sternberg and Dr. Harold Waitz. Although the Company
maintains key man life insurance in the amount of $1,000,000 on the life of Dr.
Segall, the loss of the services of any of these individuals could have a
material adverse effect on the Company. In addition, the success of the Company
will depend, among other factors, upon successful recruitment and retention of
additional highly skilled and experienced management and technical personnel.
No Dividends
The Company has not paid any dividends on its Common Shares. For the
foreseeable future it is anticipated that earnings, if any, which may be
generated from the Company's proposed operations will be used to finance the
growth of the Company and that cash dividends will not be paid to holders of
Common Shares.
Possible Volatility of Market for Common Shares
The Common Shares are traded on Nasdaq and on the Boston Stock Exchange.
The market price of the Common Shares, like that of the common stock of many
biotechnology companies, has been highly volatile. The price of such securities
may rise rapidly in response to certain events, such as the commencement of
clinical trials of an experimental new drug, even though the outcome of those
trials and the likelihood of ultimate FDA approval remains uncertain. Similarly,
prices of such securities may fall rapidly if unfavorable results are
encountered in clinical trials or if FDA approval is not obtained or is delayed.
In the event that the Company achieves earnings from the sale of products,
securities analysts may begin predicting quarterly earnings. The failure of the
Company's earnings to meet analysts' expectations could result in a significant
rapid decline in the market price of the Company's Common Shares. In addition,
the stock market has experienced and continues to experience extreme price and
volume
-12-
fluctuations which have affected the market price of the equity securities of
many biotechnology companies and which have often been unrelated to the
operating performance of these companies. Such broad market fluctuations, as
well as general economic and political conditions, may adversely affect the
market price of the Common Shares.
Requirements for Continued Listing of Securities on Nasdaq
The Company's Common Shares are traded on Nasdaq and on the Boston Stock
Exchange. Both Nasdaq and the Boston Stock Exchange have adopted rules that
establish criteria for initial and continued listing of securities. Under the
Nasdaq rules for continued listing, a company must maintain at least $2,000,000
in total assets, at least $1,000,000 in net worth and a minimum bid price of
$1.00 per share. The NASD has proposed new rules for continued Nasdaq listing
that, if adopted, would require a Nasdaq listed company to maintain net tangible
assets of at least $2,000,000, or a market capitalization of at least
$35,000,000, or to have earned net income of at least $500,000 during two of the
last three years. Under the proposed new rules, a listed company would also have
to maintain a public float of at least 500,000 shares with a market value of at
least $1,000,000, and a minimum bid price of $1.00 per share. There is no
assurance that future losses from operations will not cause the Company's total
assets, net worth, net tangible assets, or market capitalization to decline
below the current or proposed criteria in the future. If the Common Shares are
delisted by Nasdaq, trading in the Common Shares would thereafter be conducted
on the Boston Stock Exchange and in the over-the-counter market on an electronic
bulletin board established for securities that do not meet the Nasdaq listing
requirements. The Common Shares could also be delisted on the Boston Stock
Exchange if the Company fails to maintain $1,000,000 in total assets and
$500,000 in shareholders' equity. As a result, an investor could find it more
difficult to dispose of, or to obtain accurate quotations as to the price of,
the Common Shares.
In addition, if the Common Shares were delisted from Nasdaq, they would be
subject to the so-called penny stock rule that imposes additional sales practice
requirements on broker-dealers who sell such securities to persons other than
established customers and accredited investors (generally defined as an investor
with a net worth in excess of $1,000,000 or individual annual income exceeding
$200,000, or joint annual income with a spouse exceeding $300,000). For
transactions covered by this rule, the broker-dealer must make a special
suitability determination for the purchaser and must have received the
purchaser's written consent to the transaction prior to sale. Consequently,
delisting, if it occurred, could affect the ability of shareholders to sell
their Common Shares in the secondary market.
The Securities and Exchange Commission (the "Commission") has adopted
regulations that define a "penny stock" to be any equity security that has a
market price (as defined) of less than $5.00 per share or an exercise price of
less than $5.00 per share, subject to certain exceptions. For any transaction
involving a penny stock, unless exempt, the rules require the delivery, prior to
the transaction, of a disclosure schedule relating to the penny stock market.
The broker-dealer also must disclose the commissions payable to both the
broker-dealer and the registered representative, current quotations for the
securities and, if the broker-dealer is the sole market-maker, the broker-dealer
must disclose this fact and the broker-dealer's presumed control
-13-
over the market. Finally, monthly statements must be sent disclosing recent
price information for the penny stock held in the account and information on the
limited market in penny stocks.
Boston Stock Exchange and Nasdaq listed securities are exempt from the
definition of "penny stock" for most purposes, except that transactions in a
Nasdaq-listed security having a market price of less than $5.00 per share are
exempt from all but the sole market-maker provision only for (i) issuers who
have $2,000,000 in tangible assets ($5,000,000 if the issuer has not been in
continuous operation for three years), (ii) transactions in which the customer
is an institutional accredited investor, and (iii) transactions that are not
recommended by the broker-dealer. In addition, transactions in a Nasdaq listed
security directly with a Nasdaq market-maker for such securities would be
subject only to the sole market-maker disclosure, and the disclosure with
respect to commissions to be paid to the broker-dealer and the registered
representative.
Finally, all Nasdaq-listed securities would be exempt if Nasdaq raised its
requirements for continued listing so that any issuer with less than $2,000,000
in net tangible assets or shareholders' equity would be subject to delisting.
These criteria are more stringent than the current Nasdaq maintenance
requirements.
Shares Eligible for Future Sale
Sale of substantial additional amounts of Common Shares in the public
market could have an adverse effect on the price of the Common Shares. The
Company had 2,831,084 Common Shares issued and outstanding on December 27, 1996,
of which 2,243,122 shares are presently freely transferable without restriction
under the Securities Act of 1933, as amended (the "Act"). In addition, the
Common Shares issued upon the exercise of the Rights will also be freely
transferable without restriction under the Act. Of the remaining 587,962 Common
Shares outstanding at such date, 29,013 shares are being offered for sale under
this prospectus (See "Warrants"), and 558,949 Common Shares are eligible for
sale under Rule 144 under the Act. The additional 76,000 shares issuable upon
the exercise of certain warrants described in this prospectus under "Warrants"
will also be freely tradeable.
Broad Discretion on Use of Proceeds
Management of the Company will have broad discretion in determining the use
to which the net proceeds of the Offer will be put.
-14-
THE OFFER
Terms of the Offer
The Company is issuing to Record Date Shareholders Rights to subscribe for
Common Shares. Each Record Date Shareholder will be issued one transferable
Right for each Common Share owned on the Record Date. No fractional Rights will
be issued. The Rights entitle the holders thereof to acquire at the Subscription
Price one Share for each ten Rights held. Any Record Date Shareholder who is
issued fewer than ten Rights may subscribe, at the Subscription Price, for one
full Share. The Rights are evidenced by Subscription Certificates which will be
mailed to Record Date Shareholders other than Record Date Shareholders whose
record addresses are outside the United States (including the District of
Columbia, U.S. territories and possessions) ("Foreign Record Date
Shareholders").
Completed Subscription Certificates may be delivered to the Subscription
Agent at any time during the Subscription Period, which commences on the date of
this Prospectus and ends at 5:00p.m., New York City time, on February 4, 1997,
(the "Expiration Date"). All Rights may be exercised immediately upon receipt
and until 5:00 p.m. on the Expiration Date.
Any Record Date Shareholder who fully exercises all Rights initially issued
to him (other than those Rights which cannot be exercised because they represent
the right to acquire less than one Common Share) is entitled to subscribe for
Common Shares which were not otherwise subscribed for by other Rights holders in
the Primary Subscription (the "Over-Subscription Privilege"). Record Date
Shareholders such as broker-dealers, banks, and other professional
intermediaries who hold shares on behalf of clients, may participate in the
Over-Subscription Privilege for a client if the client fully exercises all
Rights attributable to him. For purposes of determining the maximum number of
Shares a Rights holder may acquire pursuant to the Offer, broker-dealers whose
Common Shares are held of record by Cede & Co. ("Cede") or by any other
depository or nominee will be deemed to be the holders of the Rights that are
issued to Cede or such other depository or nominee on their behalf. Common
Shares acquired pursuant to the Over-Subscription Privilege may be subject to
allotment, which is more fully discussed below under "Over-Subscription
Privilege".
Rights will be evidenced by Subscription Certificates (see Appendix A) and
may be exercised by completing a Subscription Certificate and delivering it,
together with payment, either by means of a notice of guaranteed delivery or a
check, to the Subscription Agent. The method by which Rights may be exercised
and Shares paid for is described below in "Exercise of Rights" and "Payment for
Shares". A Rights holder who exercises Rights will have no right to rescind a
purchase after the Subscription Agent has received payment. See "Payment of
Shares" below. Common Shares issued pursuant to an exercise of Rights will be
authorized for trading on Nasdaq and will be listed on the Boston Stock
Exchange.
The Rights are transferable until the Expiration Date and have been
admitted for trading on Nasdaq. Assuming a market for the Rights develops, the
Rights may be purchased and sold through usual brokerage channels. Although no
assurance can be given that a market
-15-
for the Rights will develop, trading in the Rights may be conducted until and
including the close of trading on the last Business Day prior to the Expiration
Date. The method by which Rights may be transferred is set forth below in "Sale
of Rights". Because fractional shares will not be issued, Record Date
shareholders who receive fewer than ten Rights will be entitled to purchase one
Common Share. Record Date Shareholders who, after exercising their Rights, are
left with fewer than ten Rights, will be unable to exercise such remaining
Rights and will not be entitled to receive any cash from the Company in lieu of
such remaining Rights.
The Rights issued to Foreign Record Date Shareholders will be held by the
Subscription Agent for such shareholders' accounts until instructions are
received to exercise (if permissible under applicable foreign or state
securities laws), sell, or transfer the Rights. If no instructions have been
received by 12:00 noon, New York City time, three Business Days prior to the
Expiration Date, the Subscription Agent will use its best efforts to sell the
Rights of those Foreign Record Date Shareholders on Nasdaq. The net proceeds
from the sale of those Rights will be remitted to the Foreign Record Date
Shareholders. See "Sale of Rights".
Officers, directors, and certain financial consultants of the Company who
own, in the aggregate 607,330 Common Shares, have informed the Company that they
intend to purchase in the Primary Subscription up to 60,733 Common Shares
through the exercise of Rights distributed to them in the Offer, provided that
suitable financial arrangements can be made, but they are not legally bound to
do so. Any Common Shares so acquired by officers, directors and other persons
who are "affiliates" of the Company, as that term is defined under the
Securities Act of 1933, as amended (the "Securities Act"), may only be sold in
accordance with Rule 144 under the Securities Act or pursuant to an effective
registration statement under the Securities Act. In general, under Rule 144, as
currently in effect, an "affiliate" of the Company is entitled to sell, within
any three-month period, a number of shares that does not exceed the greater of
1% of the then-outstanding Common Shares or the average weekly reported trading
volume of the Common Shares during the four calendar weeks preceding such sale.
Sales under Rule 144 are also subject to certain restrictions on the manner of
sale, to notice requirements and to the availability of current public
information about the Company.
Purpose of the Offer
The Board of Directors of the Company has determined that it is necessary
for the Company to raise additional capital at this time to finance its
operations, including the costs of conducting its Phase III clinical trials of
Hextend, other costs associated with seeking FDA approval of Hextend, continued
research and product development, and general and administrative expenses. The
Offer provides the Company with the opportunity to raise additional capital
without diluting the ownership interests of existing shareholders who exercise
their Rights, and without paying underwriting commissions and expenses.
Shareholders who exercise their Rights in the Offer will be able to purchase
shares at a price below market, without incurring broker's commissions, and will
be able to maintain their prorata share of the Company's equity. The
distribution of the Rights to Record Date Shareholders will also afford those
Record Date Shareholders who choose not to exercise their Rights the potential
of receiving a cash payment upon the sale of such Rights. Therefore, the receipt
of Rights by Record Date Shareholders who chose not to
-16-
exercise their Rights may be viewed as compensation for the possible dilution of
their interest in the Company.
The Company considered other financing alternatives, including a private
placement or an overseas sale of newly issued shares. Those alternatives would
have entailed the payment of commissions and fees to broker-dealers and would
also have been dilutive to the Company's shareholders because the shares would
have been sold to new investors at a discount to market. In contrast, the Offer
will permit the Company to raise capital without paying commissions and fees to
broker-dealers and will permit the shareholders who exercise their Rights to
enjoy the price discount that might otherwise have been realized by new
investors.
Another purpose of the Offer is to raise sufficient capital to meet the
criteria for the continued listing of the Company's Common Shares on Nasdaq. At
September 30, 1996, the Company had $2,019,144 of cash on hand and total assets
of $2,539,346. If the Company's total assets decline below the $2,000,000
minimum required by Nasdaq, the Common Shares could be delisted. The NASD has
proposed new rules for continued Nasdaq listing that, if adopted, would require
the Company to maintain net tangible assets (rather than total assets) of at
least $2,000,000. Although the net tangible asset test of the proposed rules is
more stringent than the current total asset test, the proposed rules would
permit the continued listing of the Company's Common Shares without regard to
the amount of its assets as long as the Company's market capitalization is at
least $35,000,000. If the Company's Common Shares were delisted from Nasdaq, the
Common Shares would continue to be listed on the Boston Stock Exchange so long
as the Company maintains $1,000,000 of assets. However, delisting from Nasdaq
could adversely affect the market price and liquidity of the Common Shares, to
the detriment of shareholders. See "Risk Factors--Requirements for Continued
Listing of Securities on Nasdaq."
The Subscription Price
The Subscription Price for the Common Shares to be issued pursuant to the
Rights is $20.00.
The Company announced the Offer on December 5, 1996. The last reported sale
price of the Common Shares on Nasdaq on December 5, 1996 and January 9, 1997,
was $21.00 and $26.50, respectively.
Expiration of the Offer
The Offer will expire at 5:00 p.m., New York City time, on February 4,
1997, the Expiration Date. Rights will expire on the Expiration Date and may not
be exercised after that date.
-17-
Exercise of Rights
Rights may be exercised by filling in and signing the reverse side of the
Subscription Certificate which accompanies this Prospectus and mailing it in the
envelope provided, or otherwise delivering the completed and signed Subscription
Certificate to the Subscription Agent, together with payment for the Common
Shares as described below under "Payment for Shares". Properly completed and
executed Subscription Certificates must be received by the Subscription Agent
prior to 5:00 p.m., New York City time, on the Expiration Date (unless payment
is effected by means of a notice of guaranteed delivery as described below under
"Payment for Shares") at the offices of the Subscription Agent at the address
set forth below. Rights may also be exercised through a broker, who may charge
the exercising Rights holder a servicing fee. A Record Date Shareholder who is
issued fewer than ten rights may subscribe, at the Subscription Price, for one
full Common Share. Fractional shares will not be issued, and Record Date
Shareholders who, upon exercising their Rights, are left with fewer than ten
Rights will not be able to exercise such remaining Rights.
Signed Subscription Certificates, accompanied by payment of the
Subscription Price, should be sent to American Stock Transfer & Trust Company
(the "Subscription Agent"), by one of the methods described below:
(1) BY MAIL OR BY HAND:
American Stock Transfer & Trust Company
40 Wall Street, 46th Floor
New York, New York 10005
(2) BY EXPRESS MAIL OR OVERNIGHT COURIER:
American Stock Transfer & Trust Company
Corporate Stock Transfer Department
40 Wall Street
New York, New York 10005
(3) BY FACSIMILE (TELECOPIER):
(718) 236-4588 or (718) 234-5001
With a copy of the original Subscription Certificate to be sent by one of
the methods described above. Confirm facsimile by telephone to (212)
921-8200.
DO NOT SEND SUBSCRIPTION CERTIFICATES TO THE COMPANY.
If a Rights holder does not indicate the number of Rights being exercised
in the Primary Subscription, or does not deliver full payment of the
Subscription Price for the number of shares indicated as being subscribed
through the exercise of Rights, then such Rights holder will be deemed to have
exercised Rights to purchase the maximum number of Common Shares
-18-
determined by dividing the total Subscription Price paid by the Subscription
Price per share, but not in excess of the number of Common Shares such holder
may purchase through the exercise of Rights in the Primary Subscription.
If the Rights holder does not indicate the number of Rights being exercised
or the number of shares such holder wishes to purchase through the
Over-Subscription Privilege, but submits payment for more shares than may be
purchased through the exercise of such holder's Rights in the Primary
Subscription, the excess payment received from such Rights holder will be deemed
to be a subscription payment for a number of additional shares in the
Over-Subscription Privilege determined by dividing the amount of such excess
payment by the Subscription Price per share.
All questions concerning the timeliness, validity, form and eligibility of
any exercise of Rights or subscriptions pursuant to the Oversubscription
Privilege will be determined by the Company, whose determination will be final
and binding. The Company in its sole discretion may waive any defect or
irregularity, or may permit any defect or irregularity to be corrected, within
such time as the Company may determine, or the Company may reject, in whole or
in part, the purported exercise of any Right in the Primary Subscription or any
subscription pursuant to the Oversubscription Privilege. Neither the Company nor
the Subscription Agent will be under any duty or obligation to give any
notification or to permit the cure of any defect or irregularity in connection
with the submission of any Subscription Certificate, the exercise or attempt to
exercise any Right or the Oversubscription Privilege, or the payment of the
Subscription Price. Subscriptions through the exercise of Rights or the
Oversubscription Privilege will not be deemed to have been received or accepted
by the Company until all irregularities or defects have been waived by the
Company or cured to the satisfaction of, and within the time allotted by, the
Company in its sole discretion.
Over-Subscription Privilege
Common Shares not sold by the Company through the exercise of Rights in the
Primary Subscription will be offered, by means of the Over-Subscription
Privilege, to the Record Date Shareholders who have exercised all exercisable
Rights issued to them. The Over-Subscription Privilege may allow Record Date
Shareholders to acquire more Common Shares than the number issuable upon the
exercise of the Rights issued to them. Record Date Shareholders such as
broker-dealers, banks, and other professional intermediaries who hold shares on
behalf of clients, may participate in the Over-Subscription Privilege for the
client if the client fully exercises all Rights attributable to him. Record Date
Shareholders should indicate, on the Subscription Certificate which they submit
with respect to the exercise of the Rights issued to them, how many Common
Shares they are willing to acquire pursuant to the Over-Subscription Privilege.
If sufficient Common Shares remain after the Primary Subscription, all
over-subscriptions will be honored in full.
If subscriptions for Common Shares through the Over-Subscription Privilege
exceed the Common Shares available for sale after the Primary Subscription, the
available Common Shares will be allocated among those who over-subscribe based
on the number of Rights originally
-19-
issued to them, so that the number of Common Shares issued to Record Date
Shareholders who subscribe pursuant to the Over-Subscription Privilege will
generally be in proportion to the number of Common Shares owned by them on the
Record Date. The percentage of remaining Common Shares each over-subscribing
Record Date Shareholder may acquire may be rounded up or down to result in
delivery of whole shares. The allocation process may involve a series of
allocations in order to assure that the total number of shares available for
over-subscriptions is distributed on a pro rata basis. A Record Date Shareholder
who is not allocated the full amount of shares that the holder subscribes for
pursuant to the Over-Subscription Privilege will receive a refund of the
Subscription Price paid by such holder for shares that are not allocated to and
purchased by such holder. Such refund will be made by a check mailed by the
Subscription Agent.
If a Rights holder does not deliver full payment of the Subscription Price
for the number of shares indicated as being subscribed through the exercise of
the Oversubscription Privilege, then such Rights holder will be deemed to have
exercised the Oversubscription Privilege to purchase the maximum number of
Common Shares determined by dividing the total Subscription Price paid (in
excess of the Subscription Price for the number of Common Shares such holder
purchased through the exercise of Rights in the Primary Subscription) by the
Subscription Price per share.
Payment for Shares
Holders of Rights who wish to exercise their Rights or to acquire Common
Shares pursuant to the Over-Subscription Privilege may choose between the
following methods of payment:
1. The Rights holder may send the Subscription Certificate together with
payment for the Common Shares acquired on Primary Subscription and any
additional Common Shares that the Right holder desires to acquire through the
Over-Subscription Privilege (if the Rights holder is entitled to exercise the
Over-Subscription Privilege) to the Subscription Agent. A subscription will be
deemed accepted when payment, together with a properly completed and executed
Subscription Certificate, is received by the Subscription Agent at its Corporate
Stock Transfer Department. Such payment and properly completed and executed
Subscription Certificate must be received by the Subscription Agent no later
than 5:00 p.m., New York City time, on the Expiration Date. The Subscription
Agent will deposit all checks received by it for the purchase of Common Shares
into a segregated interest-bearing account of the Company (the interest from
which will belong to the Company) pending proration and distribution of Common
Shares. TO BE ACCEPTED, A PAYMENT PURSUANT TO THIS METHOD MUST BE IN U.S.
DOLLARS BY MONEY ORDER OR CHECK DRAWN ON A BANK LOCATED IN THE UNITED STATES,
MUST BE PAYABLE TO BIOTIME, INC., AND MUST ACCOMPANY A PROPERLY COMPLETED AND
EXECUTED SUBSCRIPTION CERTIFICATE.
2. Alternatively, a subscription will be accepted by the Subscription Agent
if, prior to 5:00 p.m., New York City time, on the Expiration Date, the
Subscription Agent has received a notice of guaranteed delivery by facsimile
(telecopy) or otherwise from a bank, a trust company, or a New York Stock
Exchange member guaranteeing delivery of (i) payment of the full
-20-
Subscription Price for the Common Shares subscribed for in the Primary
Subscription and any additional Common Shares subscribed for pursuant to the
Over-Subscription Privilege (for Record Date Shareholders), and (ii) a properly
completed and executed Subscription Certificate. The Subscription Agent will not
honor a notice of guaranteed delivery unless a properly completed and executed
Subscription Certificate and full payment for the Common Shares is received by
the Subscription Agent by the close of business on the third Business Day after
the Expiration Date.
A Rights holder will have no right to rescind a purchase after the
Subscription Agent has received payment either by means of a notice of
guaranteed delivery or a check.
Nominees who hold Common Shares for the account of others, such as brokers,
trustees or depositories for securities, should notify the respective beneficial
owners of such Common Shares as soon as possible to ascertain such beneficial
owners' intentions and to obtain instructions with respect to the Rights. If the
beneficial owner so instructs, the nominee should complete the Subscription
Certificate and submit it to the Subscription Agent with the proper payment. In
addition, beneficial owners of Common Shares or Rights held through such a
nominee should contact the nominee and request the nominee to effect
transactions in accordance with the beneficial owner's instructions.
Amendment, Extension or Termination of the Offer
The Company reserves the right, in its sole discretion, to: (a) terminate
the Offer prior to delivery of the Common Shares for which Rights holders have
subscribed pursuant to the exercise of Rights in the Primary Subscription or the
Oversubscription Privilege; (b) extend the Termination Date to a later date; (c)
change the Record Date prior to the distribution of the Rights to shareholders
or; (d) amend or modify the terms of the Offer. If the Company amends the terms
of the Offer, an amended Prospectus will be distributed to holders of record of
Rights and to holders of Rights who have previously exercised Rights. All
holders of Rights who exercised their Rights prior to such amendment or within
four business days after the mailing of the amended Prospectus will be given the
opportunity to confirm the exercise of their Rights by executing and delivering
a consent form.
Any Rights holder who exercised Rights before or within four days after
mailing of an amended Prospectus relating to an amendment of the Offer and who
fails to deliver, in a proper and timely manner, a properly executed consent
form will be deemed to have rejected the amended terms of the Offer and to have
elected to revoke in full their exercise of the Rights and the Oversubscription
Privilege. If a Rights holder's exercise of Rights is so revoked, the full
amount of the Subscription Price paid by such Rights holder will be returned to
the Rights holder.
A Rights holder whose executed Subscription Certificate is received by the
Subscription Agent more than four days after the mailing of an amended
Prospectus will be deemed to have accepted the amended terms of the Offer in
connection with the exercise of their Rights and the Oversubscription Privilege.
-21-
If the Company elects to terminate the Offer before delivering the Common
Shares for which Rights holders have subscribed, the Subscription Price paid
will be returned by mail. Except for the obligation to return the Subscription
Price paid by Rights holders who attempted to exercise their Rights, neither the
Company nor the Subscription Agent will have any obligation or liability to a
Rights holder or purchaser of Rights in the event of an amendment or termination
of the Offer.
Delivery of Share Certificates
Certificates representing Common Shares purchased pursuant to the Primary
Subscription will be delivered to the purchasers as soon as practicable after
the corresponding Rights have been validly exercised and full payment for such
Common Shares has been received and cleared. Certificates representing Common
Shares purchased pursuant to the Over-Subscription Privilege will be delivered
to the purchaser as soon as practicable after the Expiration Date and after all
allocations have been affected. It is expected that such certificates will be
available for delivery three Business Days following the Expiration Date.
Subscription Agent
The Subscription Agent is American Stock Transfer & Trust Company, which
will receive for its administrative, processing, invoicing and other services as
Subscription Agent, a fee estimated to be $25,000, and reimbursement for all
out-of-pocket expenses related to the Offer. The Subscription Agent is also the
Company's transfer agent and registrar. Questions regarding the Subscription
Certificates should be directed to American Stock Transfer & Trust Company, 40
Wall Street, New York, New York, 10005 (telephone (718) 921-8200). Shareholders
may also consult their brokers or nominees.
Sale of Rights
The Rights evidenced by a Subscription Certificate may be transferred in
whole by endorsing the Subscription Certificate for transfer in accordance with
the accompanying instructions. A portion of the Rights evidenced by a single
Subscription Certificate (but not fractional Rights) may be transferred by
delivering to the Subscription Agent a Subscription Certificate properly
endorsed for transfer, with instructions to register such portion of the Rights
evidenced thereby in the name of the transferee and to issue a new Subscription
Certificate to the transferee evidencing such transferred Rights. In such event,
a new Subscription Certificate evidencing the balance of the Rights will be
issued to the Record Date Shareholder or, if the Record Date Shareholder so
instructs, to an additional transferee.
Record Date Shareholders wishing to transfer all or a portion of their
Rights should allow sufficient time prior to the Expiration Date for (i) the
transfer instructions to be received and processed by the Subscription Agent;
(ii) a new Subscription Certificate to be issued and transmitted to the
transferee or transferees with respect to transferred Rights, and to the
transferor with respect to retained Rights, if any; and (iii) the Rights
evidenced by such new Subscription Certificate to be exercised or sold by the
recipients. The Company and the
-22-
Subscription Agent shall have no liability to a transferee or transferor of
Rights if Subscription Certificates are not received in time for exercise or
sale prior to the Expiration Date.
Except for the fees charged by the Subscription Agent (which will be paid
by the Company), all commissions, fees and other expenses (including brokerage
commissions and transfer taxes) incurred in connection with the purchase, sale
or exercise of Rights will be for the account of the transferor of the Rights,
and none of such commissions, fees or expenses will be paid by the Company or
the Subscription Agent.
The Company anticipates that the Rights will be eligible for transfer
through, and that the exercise of the Primary Subscription (but not the
Over-Subscription Privilege) may be affected through, the facilities of The
Depository Trust Company ("DTC"); Rights exercised through DTC are referred to
as "DTC Exercised Rights". The holder of a DTC Exercised Right who was a Record
Date Shareholder may exercise the Over-Subscription Privilege in respect of such
DTC Exercised Right by properly executing and delivering to the Subscription
Agent, at or prior to 5:00 p.m., New York City time, on the Expiration Date, a
DTC Participant Over- Subscription Form, together with payment of the
Subscription Price for the number of Common Shares for which the
Over-Subscription Privilege is to be exercised. Copies of the DTC Participant
Over-Subscription Form may be obtained from the Subscription Agent.
Federal Income Tax Consequences
The U.S. Federal income tax consequences to holders of Common Shares with
respect to the Offer will be as follows:
1. The distribution of Rights will not result in taxable income nor will
the holder realize taxable income as a result of the exercise of Rights.
2. The basis of a Right will be (a) to a holder of Common Shares to whom it
is issued, and who exercises or sells the Right (i) if the market value of the
Right immediately after issuance is less than 15% of the market value of the
Common Share with regard to which it is issued, zero (unless the holder elects,
by filing a statement with his timely filed federal income tax return for the
year in which the Rights are received, to allocate the basis of the Common Share
between the Right and the Common Share based on their respective market values
immediately after the Right is issued), and (ii) if the market value of the
Right immediately after issuance is 15% or more of the market value of the
Common Share with respect to which it is issued, a portion of the basis in the
Common Share based upon the respective values of the Common Share and the Right
immediately after the Right is issued; (b) to a holder of Common Shares to whom
it is issued and who allows the Right to expire, zero; and (c) to anyone who
purchases a Right in the market, the cost to acquire the Right.
3. The holding period of a Right received by a holder of a Common Share
includes the holding period of the Common Share.
4. Any gain or loss on the sale of a Right will be treated as a capital
gain or loss if the
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Right is a capital asset in the hands of the seller. Such a capital gain or loss
will be long-term or short-term, depending on how long the Right has been held,
in accordance with paragraph 3 above. A Right issued with regard to a Common
Share will be a capital asset in the hands of the person to whom it is issued if
the Common Share was a capital asset in the hands of that person. If a Right is
allowed to expire, there will be no loss realized unless the Right had been
acquired by purchase, in which case there will be a loss equal to the basis of
the Right.
5. If a Right is exercised by the holder of Common Shares, the basis of the
Common Share received will include the basis allocated to the Right and the
amount paid upon exercise of the Right.
6. If a Right is exercised, the holding period of the Common Share acquired
begins on the date the Right is exercised.
7. Gain recognized by a non-U.S. Shareholder on the sale of a Right will be
taxed in the same manner as gain recognized on the sale of Common Shares.
Proceeds from the sale of a Right may be subject to withholding of U.S.
taxes at the rate of 31% unless the seller's certified U.S. taxpayer
identification number (or certificate regarding foreign status) is on file with
the Subscription Agent and the seller is not otherwise subject to U.S. backup
withholding. The 31% withholding tax is not an additional tax. Any amount
withhold may be credited against the seller's U.S. federal income tax liability.
The foregoing is only a summary of the applicable federal income tax law
and does not include any state or local tax consequences of this transaction.
Record Date Shareholders and other Rights holders should consult their tax
advisers concerning the tax consequences of the Offer.
Special Considerations
As a result of the terms of the Offer, Record Date Shareholders who do not
fully exercise their Rights should expect that they will, at the completion of
the Offer, own a smaller proportional interest in the Company than would
otherwise be the case.
USE OF PROCEEDS
The net proceeds received by the Company from the sale of 283,109 Common
Shares in the Offer will be approximately $5,539,180, assuming that all of the
Rights are exercised (which cannot be assured), and after deducting expenses of
the Offer of approximately $123,000. The Company intends to use the net proceeds
of the Offer as follows:
-24-
Application Estimated Amount Percent of Total
----------- ---------------- ----------------
Research and Development $ 2,769,590 50%
Working Capital 2,769,590 50
---------------- --
Total $ 5,539,180 100%
================ ====
Research and Development. Proceeds allocated to research and development
will be used to finance further testing of Hextend, PentaLyte and other blood
substitute, plasma expander and organ preservation solutions being developed by
the Company. When laboratory testing of a product has been completed, a portion
of the proceeds allocated to research and development may also be used to
commence clinical trials of that product. Proceeds allocated to research and
development and working capital may be used to pay the costs of clinical trials
of Hextend and other products.
Working Capital. The Company intends to apply the balance of the proceeds
of the Offer to working capital and general corporate purposes. The Company's
management will have broad discretion with respect to the use of proceeds
retained as working capital. Such proceeds may be used to defray overhead
expenses and for future opportunities and contingencies that may arise. The
Company expects that its general and administrative expenses will increase as it
achieves progress in developing products and bringing them to market. For
example, a portion of the proceeds allocated to working capital may be used to
pay the salaries, benefits and fees to employees and consultants who assist in
the preparation of applications to the FDA and foreign regulatory agencies and
patent applications. The Company will incur additional expenses, including
consulting fees, in preparing a New Drug Application for filing with the FDA to
seek permission to market Hextend after the clinical trials are complete.
The Company believes that the net proceeds from the Offer, plus the
Company's present cash on hand will permit it to complete its Phase III clinical
trial of Hextend and to continue its planned operations for a period of at least
24 months, assuming all of the Rights are exercised. Additional capital may be
needed before or after that period of time to meet the cost of developing and
conducting additional clinical trials.
The foregoing table represents only an estimate of the allocation of the
net proceeds of the Offer based upon the current state of the Company's product
development program. The development of new medical products and technologies
often involves complications, delays and costs that cannot be predicted, and may
cause the Company to make a reallocation of proceeds among the categories shown
above or to other uses. Although the Company is not presently a party to any
agreement, arrangement or plan to acquire any assets or technology from a third
party, the Company might determine that it is necessary or advantageous to make
such an acquisition, or the Company might determine to concentrate its efforts
and resources on the development and marketing of one or more specific products.
Until used, the net proceeds of the Offer will be invested in certificates
of deposit, United States government securities or other high quality,
short-term interest-bearing investments.
-25-
DESCRIPTION OF SECURITIES
Common Shares
The Company's Articles of Incorporation currently authorize the issuance of
up to 5,000,000 Common Shares, no par value, of which 2,831,084 shares were
outstanding at December 27, 1996. The Common Shares are held by 1,041 persons
based upon the share position listings for the Common Shares. Each holder of
record is entitled to one vote for each outstanding Common Share owned by him on
every matter properly submitted to the shareholders for their vote.
Subject to the dividend rights of holders of any of the preferred shares
that may be issued from time to time, holders of Common Shares are entitled to
any dividend declared by the Board of Directors out of funds legally available
for such purpose. The Company has not paid any cash dividends on its Common
Shares, and it is unlikely that any cash dividends will be declared or paid on
any Common Shares in the foreseeable future. Instead, the Company plans to
retain its cash for use in financing its future operations and growth.
Subject to the prior payment of the liquidation preference to holders of
any preferred shares that may be issued, holders of Common Shares are entitled
to receive on a pro rata basis all remaining assets of the Company available for
distribution to the holders of Common Shares in the event of the liquidation,
dissolution, or winding up of the Company. Holders of Common Shares do not have
any preemptive rights to become subscribers or purchasers of additional shares
of any class of the Company's capital stock.
Preferred Shares
The Company's Articles of Incorporation currently authorize the issuance of
up to 1,000,000 preferred shares, no par value. Preferred shares may be issued
by the Company in one or more series, at any time, with such rights,
preferences, privileges and restrictions as the Board of Directors may
determine, all without further action of the shareholders of the Company. Any
series of preferred shares which may be authorized by the Board of Directors in
the future may be senior to and have greater rights and preferences than the
Common Shares. There are no preferred shares presently outstanding and the
Company has no present plan, arrangement or commitment to issue any preferred
shares.
Transfer Agent and Registrar
The Transfer Agent and Registrar for the Common Shares is American Stock
Transfer and Trust Company, 40 Wall Street, New York, New York 10005.
-26-
WARRANTS
This Prospectus also relates to 29,013 Common Shares issued by the Company
upon exercise of certain warrants sold to Emanuel & Company, Inc. in connection
with the underwriting of BioTime's initial public offering of Common Shares
during March 1993 (the "Emanuel Warrants"), and 76,000 Common Shares issuable
upon the exercise of certain warrants sold to H.J. Meyers & Co. Inc. (formerly
Thomas James and Associates) in connection with the underwriting of a public
offering of Common Shares during February 1994 (the "H.J. Meyers Warrants").
Holders of the H.J. Meyers Warrants may rely upon this Prospectus in connection
with the purchase of Common Shares from the Company through the exercise of
their warrants. The H.J. Meyers Warrants will expire unless exercised by 5:00
p.m. Eastern Standard Time on February 23, 1999.
H.J. Meyers Warrants
The H.J. Meyers Warrants entitle the holders to purchase up to 76,000
Common Shares at an exercise price of $7.18 per share. The H.J. Meyers Warrants
became exercisable on February 24, 1995 and will expire if not exercised by 5:00
p.m. Eastern Standard Time on February 23, 1999. The number of Common Shares
issuable upon the exercise of the H.J. Meyers Warrants, and the exercise price
per share, are subject to pro rata adjustment to prevent dilution in the event
of a split-up, stock dividend, combination, or other recapitalization of the
Company.
-27-
The foregoing description of the H.J. Meyers Warrants is only a summary and
is qualified in all respects to the full text of the form of H.J. Meyers
Warrant, a copy of which is on file with the Company and the Securities and
Exchange Commission.
Plan of Distribution
In connection with the sale of the Emanuel Warrants and the H.J. Meyers
Warrants, the Company agreed to register for sale under the Act the Common
Shares issuable upon the exercise of the warrants. The Company is bearing all
expenses of registering the Common Shares for sale under the Act and under
applicable state securities laws, but the holders of the warrants will bear any
and all commissions, fees, and discounts of brokers and dealers, and all
transfer taxes and fees is connection with any sales of Common Shares. The
Company has agreed to use its best efforts to keep the registration statement,
of which this Prospectus is a part, effective for a period of up to 120 days.
The following table presents certain information pertaining to the holders
of Common Shares issued upon the exercise of the Emanuel Warrants and holders of
the H.J. Meyers Warrants and is derived from the Company's stock transfer
records and from information furnished to the Company by such holders.
Common Common
Shares Shares Offered Shares Owned
Name Owned For Sale After Sale
---- ------- -------------- -------------
Eric D. Emanuel(1) 29,013 29,013 0
James Villa(2) 0 64,800 0
Jerome Feldman(2) 0 11,200 0
- ------------------------------------
(1) Includes Common Shares issued upon the exercise of the Emanuel
Warrants.
(2) The shares offered for sale include shares issuable upon the exercise of
the H.J. Meyers Warrants. Excludes Common Shares owned by H.J. Meyers & Co.,
Inc. Mr. Villa is the President and principal shareholder of H.J. Meyers & Co.,
Inc., and Mr. Feldman is a Vice President of H.J. Meyers, & Co., Inc.
-28-
The holders of the Common Shares and warrants shown in the preceding table
may sell some or all of their Common Shares through the Nasdaq or the Boston
Stock Exchange or otherwise at prices and on terms then prevailing, or at prices
related to the then current market price, or in negotiated transactions. Such
security holders of may sell some or all of their Common Shares in transactions
involving broker-dealers who may act as agent or who may acquire Common Shares
as principal. During such time as the H.J. Meyers Warrants are exercisable,
broker-dealers also may acquire such warrants from the holders at prices based
upon the difference between the then current market price of the Common Shares
(or prices related to the then current market price of the Common Shares) and
the exercise price of the warrants, but subject to discounts or selling
concessions. Such broker-dealers may then exercise the warrants for their own
accounts and sell the Common Shares as principals. Alternatively, broker-dealers
may, subject to applicable laws and regulations pertaining to margin
transactions, finance the exercise of the warrants by the holders and then
purchase and sell as principals, or sell as agents, the Common Shares. Any
broker-dealers participating in such transactions as agents may receive
commissions from the holders of the Common Shares or warrants (and, if they act
as agents for the purchasers of such Common Shares, from such purchasers). Usual
and customary brokerage fees will be paid by the holders of Common Shares and
warrants who are not broker-dealers. Broker-dealers may agree to sell a
specified number of Common Shares at a stipulated price per share, and, to the
extent such a broker-dealer is unable to do so acting as agent for the holders
of the Common Shares or warrants,to purchase as principal any unsold shares at
the price required to fulfill the broker-dealer commitment to the holder of the
Common Shares or warrants. Broker-dealers who acquire Common Shares as
principals may thereafter resell such Common Shares from time to time in
transactions (which may involve crosses and block transactions and which may
involve sales to and through other broker-dealers, including transactions of the
nature described above) through the Nasdaq or on the Boston Stock Exchange, in
negotiated transactions or otherwise, at market prices prevailing at the time of
sale or at negotiated prices, and in connection with such resales may pay to or
receive from the purchasers of such Common Shares usual and customary
commissions.
Each holder of Common Shares or warrants shown in the preceding table has
advised the Company that during such time as such he may be engaged in a
distribution of the Common Shares, such person will: (a) not engage in any
stabilization activity in connection with the Company's securities; (b) cause to
be furnished to each broker through whom Common Shares included herein may be
offered such copies of this Prospectus as may be required by such broker; and
(c) not bid for or purchase any securities of the Company or any rights to
acquire the Company's securities, or attempt to induce any person to purchase
any of the Company's securities or rights other than as permitted under the
Securities Exchange Act of 1934. Such holders and any broker-dealers who
participate in the sale of Common Shares may be deemed to be "underwriters" as
defined in the Act. Any commissions paid or any discounts or concessions allowed
to any such broker-dealers and, if any such broker-dealers purchase Common
Shares as principals, any profits received on the resale of such Common Shares
may be deemed to be underwriting discounts and commissions under the Act.
-29-
LEGAL MATTERS
The validity of the Rights and Common Shares will be passed upon for the
Company by Lippenberger, Thompson, Welch & Soroko LLP, San Francisco,
California. A member of Lippenberger, Thompson, Welch & Soroko LLP owns options
to purchase 10,000 Common Shares.
EXPERTS
The financial statements of BioTime, Inc. as of June 30, 1995 and 1996 and
for each of the three fiscal years in the period ended June 30, 1996
incorporated by reference in this Prospectus from the Company's Annual Report on
Form 10-K for the year ended June 30, 1996 have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their report (which expresses an
unqualified opinion and includes an explanatory paragraph related to the
development stage of the Company's operations), and have been so incorporated in
reliance upon the report of such firm given upon their authority as experts in
accounting and auditing.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Company is delivering with this Prospectus a copy of its Annual Report
on Form 10-K for the fiscal year ended June 30, 1996. The Form 10-K includes
important information about the Company and should be carefully in read in its
entirety by holders of Rights.
The Company's Form 10-K for the fiscal year ended June 30, 1996, Form 10-Q
for the three months ended September 30, 1996, and all other reports filed by
the Company pursuant to Section 13(a) 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 are
hereby incorporated into this Prospectus by reference. The Company will provide
without charge to each person, including any beneficial owner, to whom a
prospectus is delivered, upon written or oral request of such person, a copy of
any and all of the information that has been incorporated by reference (not
including exhibits). Such requests may be addressed to the Secretary of the
Company at 935 Pardee Street, Berkeley, California 94710; Telephone: (510)
845-9535.
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission, 450
Fifth Street, N.W., Washington, D.C. a Registration Statement on Form S-3 under
the Securities Act of 1933, as amended, for the registration of the securities
offered hereby. This Prospectus, which is part of the Registration Statement,
does not contain all of the information contained in the Registration Statement.
For further information with respect to the Company and the securities
-30-
offered hereby, reference is made to the Registration Statement, including the
exhibits thereto, which may be inspected, without charge, at the Office of the
Securities and Exchange Commission, or copies of which may be obtained from the
Commission in Washington, D.C. upon payment of the requisite fees. Statements
contained in this Prospectus as to the content of any contract or other document
referred to are not necessarily complete, and in each instance reference is made
to the copy of such contract or other document filed as an exhibit to the
Registration Statement, each such statement being qualified in all respects by
such reference.
-31-
CONTROL NUMBER BIOTIME, INC. SUBSCRIPTION CERTIFICATE FOR
Expiration Date February 4, 1997 SHARES
SUBSCRIPTION PRICE U.S. $20.00 PER SHARE
CUSIP 09066L 11 3
SUBSCRIPTION CERTIFICATE FOR COMMON
SHARES VOID IF NOT EXERCISED AT OR BEFORE 5:00 P.M.
(NEW YORK TIME) ON FEBRUARY 4, 1997, THE EXPIRATION DATE.
THIS SUBSCRIPTION CERTIFICATE IS TRANSFERRABLE
AND MAY BE COMBINED OR DIVIDED (BUT ONLY INTO SUBSCRIPTION
CERTIFICATES EVIDENCING A WHOLE NUMBER OF RIGHTS)
AT THE OFFICE OF THE SUBSCRIPTION AGENT
THIS SUBSCRIPTION CERTIFICATE MAY BE USED TO SUBSCRIBE FOR
COMMON SHARES OR MAY BE ASSIGNED OR SOLD. FULL INSTRUCTIONS
APPEAR ON THE BACK OF THIS SUBSCRIPTION CERTIFICATE.
REGISTERED OWNER:
The registered owner of this Subscription Certificate, named above, or
assignee, is entitled to the number of Rights to subscribe for Common Shares, no
par value, of BioTime, Inc. shown above, in the ratio of one Common Share for
each ten Rights held, pursuant to the Primary Subscription and upon the terms
and conditions and at the price for each Common Share specified in the
Prospectus dated January 10, 1997.
If you subscribe for fewer than all the shares represented by this
Subscription Certificate, the Subscription Agent will issue a new Subscription
Certificate representing the balance of the unsubscribed Rights, provided that
the Subscription Agent has received your properly completed and executed
Subscription Certificate and payment prior to 5:00 p.m., New York time, on
February 3, 1997. No new Subscription Certificate will be issued after that
date.
IMPORTANT: Complete appropriate form on reverse
DATE: _______________, 199__
BIOTIME, INC.
- ----------------------------- ----------------------------------
SECRETARY PRESIDENT
Countersigned: American Stock Transfer & Trust Company (New York, N.Y.)
Subscription Agent
By: ___________________________________________________
Authorized Signature
APPENDIX A
Expiration Date: February 4, 1997
PLEASE COMPLETE ALL APPLICABLE INFORMATION
By Mail: By Hand: By Overnight Courier:
To: American Stock To: American Stock To: American Stock
Transfer & Trust Company Transfer & Trust Company Transfer & Trust Company
40 Wall Street 40 Wall Street, 46th Floor 40 Wall Street, 46th Floor
New York, New York 10005 New York, New York 10005 New York, New York 10005
SECTION 1: TO SUBSCRIBE: I hereby irrevocably subscribe for the dollar
amount of Common Shares indicated as the total of A and B below
upon the terms and conditions specified in the Prospectus
related hereto, receipt of which is acknowledged.
TO SELL: If I have checked either the box on line C or the box
on line D, I authorize the sale of Rights by the Subscription
Agent according to the procedures described in the Prospectus.
The check for the proceeds of sale will be mailed to the address
of record.
Please check |X| below:
|_| A. Primary Subscription ____________________ / 10 =
(Rights Exercised)
.000 $ 20.00 $
- ------------------ X ------------------- = ----------------------
(Shares Requested) (Subscription Price) (Amount Required)
|_| B. Over-Subscription Privilege
.000 $ 20.00 $ (*)
-------------------- X -------------------- = ----------------------
(Shares Requested) (Subscription Price) (Amount Required)
Amount of Check Enclosed or Amount in Notice of Guaranteed Delivery (total of A
+ B) = $
----------------
Make check payable to the order of "BioTime, Inc."
(*) The Over-Subscription Privilege can be exercised by Record Date
Shareholders only, as described in the Prospectus.
|_| C. Sell any remaining unexercised Rights
|_| D. Sell all of my Rights.
_______________________________________
Signature of Subscriber(s)/Seller(s)
Please provide your telephone number Day (___) ___________________
Evening (___) _________________
Social Security Number or Tax ID Number: ______________________________________
SECTION II: TO TRANSFER RIGHTS: (except pursuant to C and D above)
For value received, ________________________of the Rights represented by this
Subscription Certificate are assigned to
--------------------------------------------------------
Social Security Number or Tax ID Number of Assignee
--------------------------------------------------------
(Print Full Name of Assignee)
--------------------------------------------------------
Signature(s) of Assignor(s)
--------------------------------------------------------
(Print Full Address including postal Zip Code)
The signature(s) must correspond with the name(s) as written upon the face
of this Subscription Certificate, in every particular, without alteration.
IMPORTANT: For Transfer, a Signature Guarantee must be provided by an eligible
financial institution which is a participant in a recognized signature guarantee
program.
SIGNATURE GUARANTEED BY:
----------------------------------------------------------------------
PROCEEDS FROM THE SALE OF RIGHTS MAY BE SUBJECT TO WITHHOLDING OF U.S. TAXES
UNLESS THE SELLER'S CERTIFIED U.S. TAXPAYER IDENTIFICATION NUMBER (OR
CERTIFICATION REGARDING FOREIGN STATUS) IS ON FILE WITH THE SUBSCRIPTION AGENT
AND THE SELLER IS NOT OTHERWISE SUBJECT TO U.S. BACKUP WITHHOLDING.
|_| CHECK HERE IF RIGHTS ARE BEING EXERCISED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY DELIVERED TO THE SUBSCRIPTION AGENT PRIOR TO THE
DATE HEREOF AND COMPLETE THE FOLLOWING:
NAME(S) OF REGISTERED OWNER(S):
WINDOW TICKET NUMBER (IF ANY):
DATE OF EXECUTION OF NOTICE OF GUARANTEED DELIVERY:
NAME OF INSTITUTION WHICH GUARANTEED DELIVERY:
APPENDIX B
[Form of Notice of Guaranteed Delivery]
NOTICE OF GUARANTEED DELIVERY OF SUBSCRIPTION RIGHTS AND
THE SUBSCRIPTION PRICE FOR COMMON SHARES OF
BIOTIME, INC. SUBSCRIBED FOR IN THE PRIMARY
SUBSCRIPTION AND THE OVER-SUBSCRIPTION PRIVILEGE
As set forth in the Prospectus under "The Offer - Payment for Shares," this
form or one substantially equivalent may be used as a means of effecting
subscription and payment for all Common Shares of BioTime, Inc. subscribed for
in the Primary Subscription and the Over-Subscription Privilege. Such form may
be delivered by hand or sent by facsimile transmission, overnight courier or
mail to the Subscription Agent.
The Subscription Agent is:
American Stock Transfer & Trust Company
By Mail: By Facsimile:
American Stock Transfer & Trust Company (718) 234-5001
40 Wall Street Confirm by Telephone
New York, New York 10005 (718) 234-2700
By Hand: Overnight Courier:
American Stock Transfer & Trust Company American Stock Transfer & Trust Company
40 Wall Street 40 Wall Street, 46th Floor
New York, New York 10005 New York, New York 10005
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS, OR TRANSMISSION OF
INSTRUCTIONS VIA A TELECOPY OR FACSIMILE NUMBER, OTHER THAN AS
SET FORTH ABOVE, DOES NOT CONSTITUTE A VALID DELIVERY
The New York Stock Exchange member firm or bank or trust company which
completes this form must communicate the guarantee and the number of shares
subscribed for (under both the Primary Subscription and the Over- Subscription
Privilege) to the Subscription Agent and must deliver this Notice of Guaranteed
Delivery guaranteeing delivery of (i) payment in full for all subscribed shares
and (ii) a properly completed and executed Subscription Certificate (which
certificate and full payment must then be delivered by the close of business on
the third business day after the Expiration Date, as defined in the Prospectus)
to the Subscription Agent prior to 5:00 p.m., New York time, on the Expiration
Date (February 4, 1997, unless extended). Failure to do so will result in a
forfeiture of the Rights.
GUARANTEE
The undersigned, a member firm of the New York Stock Exchange or a bank or
trust company, guarantees delivery to the Subscription Agent by the close of
business (5:00 p.m., New York time) on the third Business Day after the
Expiration Date (February 4, 1997, unless extended)of (A) a properly completed
and executed Subscription Certificate and (B) payment of the full Subscription
Price of shares subscribed for in the Primary Subscription and pursuant to the
Over-Subscription Privilege, if applicable, as subscription for such Common
Shares as indicated herein or in the Subscription Certificate.
---------------------------------------------
Number of Common Shares subscribed for in the
Primary Subscription for which you are
guaranteeing delivery of Rights and payment
---------------------------------------------
Number of Common Shares subscribed for
pursuant to the Over-Subscription Privilege
for which guaranteeing delivery of Rights
and payment
Number of Rights to be delivered: _____________________________________________
Total Subscription Price payment to be
delivered: $_____________________________________________
Method of Delivery [circle one] A. Through DTC
B. Direct to Corporation
Please note that if you are guaranteeing for Over-Subscription Shares, and
are a DTC participant, you must also execute and forward to American Stock
Transfer & Trust Company a Nominee Holder Over-Subscription Exercise Form.
- ---------------------------- -------------------------------------
Name of Firm Authorized Signature
- ---------------------------- -------------------------------------
Address Title
- ---------------------------- -------------------------------------
Zip Code (Type or Print)
- -------------------------------------- -------------------------------------
Name of Registered Holder (If Applicable)
- ----------------------------- -------------------------------------
Telephone Number Date
* IF THE RIGHTS ARE TO BE DELIVERED THROUGH DTC, A REPRESENTATIVE OF THE
SUBSCRIPTION AGENT WILL PHONE YOU WITH A PROTECT IDENTIFICATION NUMBER, WHICH
NEEDS TO BE COMMUNICATED BY YOU TO DTC.
PLEASE NOTE THAT IF YOU ARE GUARANTEEING FOR OVER-SUBSCRIPTION SHARES AND ARE
A DTC PARTICIPANT, YOU MUST ALSO EXECUTE AND FORWARD TO THE SUBSCRIPTION
AGENT A NOMINEE HOLDER OVER-SUBSCRIPTION EXERCISE FORM.
APPENDIX C
[Form of Nominee Holder Over-Subscription Exercise Form]
BIOTIME, INC.
RIGHTS OFFERING
NOMINEE HOLDER OVER-SUBSCRIPTION EXERCISE FORM
PLEASE COMPLETE ALL APPLICABLE INFORMATION
By Mail: By Hand: By Overnight Courier:
To: American Stock To: American Stock To: American Stock
Transfer & Trust Company Transfer & Trust Company Transfer & Trust Company
40 Wall Street 40 Wall Street, 46th Floor 40 Wall Street, 46th Floor
New York, New York 10005 New York, New York 10005 New York, New York 10005
THIS FORM IS TO BE USED ONLY BY NOMINEE HOLDERS TO EXERCISE THE
OVER-SUBSCRIPTION PRIVILEGE IN RESPECT OF RIGHTS WITH RESPECT TO WHICH THE
PRIMARY SUBSCRIPTION PRIVILEGE WAS EXERCISED AND DELIVERED THROUGH THE
FACILITIES OF A COMMON DEPOSITORY. ALL OTHER EXERCISES OF OVER-SUBSCRIPTION
PRIVILEGES MUST BE EFFECTED BY THE DELIVERY OF THE SUBSCRIPTION CERTIFICATES.
----------------------
THE TERMS AND CONDITIONS OF THE RIGHTS OFFERING ARE SET FORTH IN BIOTIME'S
PROSPECTUS DATED JANUARY 10, 1997 (THE "PROSPECTUS") AND ARE INCORPORATED HEREIN
BY REFERENCE. COPIES OF THE PROSPECTUS ARE AVAILABLE UPON REQUEST FROM BIOTIME.
- ----------------------
VOID UNLESS RECEIVED BY THE SUBSCRIPTION AGENT WITH PAYMENT IN FULL BY 5:00
P.M., NEW YORK TIME, ON FEBRUARY 4, 1997, UNLESS EXTENDED BY BIOTIME (THE
"EXPIRATION DATE").
1. The undersigned hereby certifies to the Subscription Agent that it is a
participant in [Name of Depository] (the "Depository") and that it has
either (i) exercised the Primary Subscription Right in respect to Rights and
delivered such exercised Rights to the Subscription Agent by means of
transfer to the Depository Account of BioTime, Inc., or (ii) delivered to
the Subscription Agent a Notice of Guaranteed Delivery in respect of the
exercise of the Primary Subscription Right and will deliver the Rights
called for in such Notice of Guaranteed Delivery to the Subscription Agent
by means of transfer to such Depository Account of BioTime, Inc.
2. The undersigned hereby exercises the Over-Subscription Privilege to
purchase, to the extent available, Common Shares and certifies to the
Subscription Agent that such Over-Subscription Privilege is being exercised
for the account or accounts of persons (which may include the undersigned)
on whose behalf all Primary Subscription Rights have been exercised.(*)
3. The undersigned understands that payment of the Subscription Price of
$20.00 per share for each Common Share subscribed for pursuant to the
Over- Subscription Privilege must be received by the Subscription Agent
at or before 5:00 p.m., New York time, on the Expiration Date, and
represents that such payment, in the aggregate amount of $_________either
(check appropriate box):
|_| has been or is being delivered to the Subscription Agent pursuant to the
Notice of Guaranteed Delivery referred to above or;
|_|is being delivered to the Subscription Agent herewith or;
|_|has been delivered separately to the Subscription Agent; and, in the
case of funds not delivered pursuant to a Notice of
Guaranteed Delivery, is or was delivered in the manner set forth below
(check appropriate box and complete information relating thereto):
|_|uncertified check
|_| certified check
|_| bank draft
- ---------------------------------------------------
Depository Primary Subscription Confirmation Number
- ---------------------------------------------------
Depository Participant Number
- ---------------------------------------------------
Name of Nominee Holder
- ---------------------------------------------------
Address
- ---------------------------------------------------
City State Zip Code
Contact Name _________________________________
Phone Number _________________________________
By: _______________________________________________
Name: _____________________________________________
Title: ____________________________________________
Dated: , 1997
* PLEASE COMPLETE THE BENEFICIAL OWNER CERTIFICATION ON THE BACK HEREOF
CONTAINING THE RECORD DATE POSITION OF PRIMARY RIGHTS OWNED, THE NUMBER OF
PRIMARY SHARES SUBSCRIBED FOR AND THE NUMBER OF OVER- SUBSCRIPTION SHARES,
IF APPLICABLE, REQUESTED BY EACH SUCH OWNER.
BIOTIME, INC.
BENEFICIAL OWNER CERTIFICATION
The undersigned, a bank, broker or other nominee holder of Rights
("Rights") to purchase Common Shares, no par value ("Common Shares"), of
BioTime, Inc. (the "Company") pursuant to the Rights offering (the "Offer")
described and provided for in the Company's Prospectus dated January 10, 1997
(the "Prospectus") hereby certifies to the Company and to American Stock
Transfer & Trust Company, as Subscription Agent for such Offer, that for each
numbered line filled in below the undersigned has exercised, on behalf of the
beneficial owner thereof (which may be the undersigned), the number of Rights
specified on such line in the Primary Subscription (as defined in the
Prospectus), and such beneficial owner wishes to subscribe for the purchase of
additional Common Shares pursuant to the Over-Subscription Privilege (as defined
in the Prospectus), in the amount set forth in the third column of such line:
Number of Rights Exercised
In the Primary
Record Date Shares Subscription
1) ___________________________________ ____________________________________
2) ___________________________________ ____________________________________
3) ___________________________________ ____________________________________
4) ___________________________________ ____________________________________
5) ___________________________________ ____________________________________
6) ___________________________________ ____________________________________
7) ___________________________________ ____________________________________
8) ___________________________________ ____________________________________
9) ___________________________________ ____________________________________
10) ___________________________________ ____________________________________
Number of Shares Requested
Pursuant to the
Over-Subscription Privilege
1) ___________________________________
2) ___________________________________
3) ___________________________________
4) ___________________________________
5) ___________________________________
6) ___________________________________
7) ___________________________________
8) ___________________________________
9) ___________________________________
10) ___________________________________
- ----------------------------------- --------------------------------------
Name of Nominee Holder Depository Participant Number
- ----------------------------------- --------------------------------------
Name: Depository Primary Subscription
Title: Confirmation Number(s)
Dated: , 1997
---------------------
---------------------
No dealer, salesperson or other person has been authorized in connection with
this offering to give any information or to make any representations other than
those contained in this Prospectus. This Prospectus does not constitute an offer
or a solicitation in any jurisdiction to any person to whom it is unlawful to
make such an offer or solicitation. Neither the delivery of this Prospectus nor
any sale made hereunder shall, under any circumstances, create an implication
that there has been no change in the circumstances of the Company or the facts
herein set forth since the date hereof.
BIOTIME, INC.
283,109 Common Shares
Issuable Upon the Exercise of
Subscription Rights
TABLE OF CONTENTS
Prospectus Summary............................................................3
Risk Factors..................................................................8
The Offer....................................................................15
Use of Proceeds..............................................................24
Description of Securities....................................................26
Warrants.....................................................................27
Legal Matters................................................................30
Experts......................................................................30
Incorporation of Certain Information
by Reference..............................................................30
Additional Information.......................................................30
Form of Subscription Certificate.....................................Appendix A
Form of Notice of
Guaranteed Delivery...............................................Appendix B
Form of Nominee Holder Over-Subscription
Exercise Form.....................................................Appendix C
-------------
PROSPECTUS
-------------
January 10, 1997
- ---------------------
- ---------------------
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The estimated expenses of the Registrant in connection with the
issuance and distribution of the securities being registered hereby are as
follows:
Registration Fee-Securities and Exchange Commission ...............$.1,984.02
NASD Listing Fee.......................................................3,000.00
Boston Stock Exchange Listing Fee......................................1,500.00
Printing and Engraving Expenses.......................................13,200.00
Accounting Fees.......................................................20,000.00
Legal Fees............................................................50,000.00
Blue Sky Expenses......................................................5,000.00
Subscription Agent ...................................................25,000.00
Miscellaneous Expenses.................................................3,315.98
Total........................................................$123,000.00
==========
Item 15. Indemnification of Directors and Officers.
Section 317 of the California Corporations Code permits
indemnification of directors, officers, employees and other agents of
corporations under certain conditions and subject to certain limitations. In
addition, Section 204(a)(10) of the California Corporations Code permits a
corporation to provide, in its articles of incorporation, that directors shall
not have liability to the corporation or its shareholders for monetary damages
for breach of fiduciary duty, subject to certain prescribed exceptions. Article
Four of the Articles of Incorporation of the Registrant (Exhibit 3(a)) contains
provisions for the indemnification of directors, officers, employees and other
agents within the limitations permitted by Section 317 and for the limitation on
the personal liability of directors permitted by Section 204(b)(10), subject to
the exceptions required thereby.
II-1
Item 16. Exhibits and Financial Statement Schedules.
Exhibit
Numbers Description
4.1 Specimen of Common Share Certificate.+
4.2 Form of Underwriter's Warrant.#
4.3 Form of Underwriter's Warrant.*
4.4 Form of Subscription Certificate. ++
5 Opinion of Counsel**
23.1 Consent of Deloitte & Touche LLP++
23.2 Consent of Counsel (included in Exhibit 5)++
+ 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-1, File Number
33-48717 and Post-Effective Amendment No. 1 thereto filed with the Securities
and Exchange Commission on June 22, 1992, and August 27, 1992, respectively.
* Incorporated by reference to Registration Statement on Form S-1, File Number
33-73256 filed with the Securities and Exchange Commission on December 22, 1993,
and Amendment No.1 thereto filed with the Securities and Exchange Commission on
February 24, 1994.
++ Filed herewith.
Item 17. Undertakings.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than payment by the Registrant
of expenses incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by final
adjudication of such issue.
II-2
The undersigned registrant hereby undertakes:
(1) To file during any period in which offers or sales are made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate represent a
fundamental change in the information set forth in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
(2) That for the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
The undersigned undertakes that:
(1) For the purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purposes of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the bona fide offering thereof.
II-3
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-3 and has duly caused this Amendment to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Berkeley, State of California on January 9,
1997.
BIOTIME, INC.
By /s/ Paul E. Segall
----------------------
Paul E. Segall, 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.
Signature Title Date
--------- ----- ----
/s/ Paul E. Segall
- -------------------------------
Paul E. Segall, Ph.D. President, Chief Executive Officer and January 9, 1997
Director (Principal Executive Officer)
/s/ Harold D. Waitz
- -------------------------------
Harold D. Waitz, Ph.D. Vice President and Director January 9, 1997
/s/ Hal Sternberg
- -------------------------------
Hal Sternberg, Ph.D. Vice President and Director January 9, 1997
/s/ Victoria Bellport
- -------------------------------
Victoria Bellport Chief Financial Officer and January 9, 1997
Director (Principal Financial and
Accounting Officer)
/s/ Judith Segall
- -------------------------------
Judith Segall Vice President, Corporate Secretary January 9, 1997
and Director
/s/ Ronald S. Barkin
- -------------------------------
Ronald S. Barkin Director January 9, 1997
II-4
CONTROL NUMBER BIOTIME, INC. SUBSCRIPTION CERTIFICATE FOR
Expiration Date February 4, 1997 SHARES
SUBSCRIPTION PRICE U.S. $20.00 PER SHARE
CUSIP 09066L 11 3
SUBSCRIPTION CERTIFICATE FOR COMMON
SHARES VOID IF NOT EXERCISED AT OR BEFORE 5:00 P.M.
(NEW YORK TIME) ON FEBRUARY 4, 1997, THE EXPIRATION DATE.
THIS SUBSCRIPTION CERTIFICATE IS TRANSFERRABLE
AND MAY BE COMBINED OR DIVIDED (BUT ONLY INTO SUBSCRIPTION
CERTIFICATES EVIDENCING A WHOLE NUMBER OF RIGHTS)
AT THE OFFICE OF THE SUBSCRIPTION AGENT
THIS SUBSCRIPTION CERTIFICATE MAY BE USED TO SUBSCRIBE FOR
COMMON SHARES OR MAY BE ASSIGNED OR SOLD. FULL INSTRUCTIONS
APPEAR ON THE BACK OF THIS SUBSCRIPTION CERTIFICATE.
REGISTERED OWNER:
The registered owner of this Subscription Certificate, named above, or
assignee, is entitled to the number of Rights to subscribe for Common Shares, no
par value, of BioTime, Inc. shown above, in the ratio of one Common Share for
each ten Rights held, pursuant to the Primary Subscription and upon the terms
and conditions and at the price for each Common Share specified in the
Prospectus dated January 10, 1997.
If you subscribe for fewer than all the shares represented by this
Subscription Certificate, the Subscription Agent will issue a new Subscription
Certificate representing the balance of the unsubscribed Rights, provided that
the Subscription Agent has received your properly completed and executed
Subscription Certificate and payment prior to 5:00 p.m., New York time, on
February 3, 1997. No new Subscription Certificate will be issued after that
date.
IMPORTANT: Complete appropriate form on reverse
DATE: _______________, 199__
BIOTIME, INC.
- ----------------------------- ----------------------------------
SECRETARY PRESIDENT
Countersigned: American Stock Transfer & Trust Company (New York, N.Y.)
Subscription Agent
By: ___________________________________________________
Authorized Signature
Exhibit 4.4
Expiration Date: February 4, 1997
PLEASE COMPLETE ALL APPLICABLE INFORMATION
By Mail: By Hand: By Overnight Courier:
To: American Stock To: American Stock To: American Stock
Transfer & Trust Company Transfer & Trust Company Transfer & Trust Company
40 Wall Street 40 Wall Street, 46th Floor 40 Wall Street, 46th Floor
New York, New York 10005 New York, New York 10005 New York, New York 10005
SECTION 1: TO SUBSCRIBE: I hereby irrevocably subscribe for the dollar
amount of Common Shares indicated as the total of A and B below
upon the terms and conditions specified in the Prospectus
related hereto, receipt of which is acknowledged.
TO SELL: If I have checked either the box on line C or the box
on line D, I authorize the sale of Rights by the Subscription
Agent according to the procedures described in the Prospectus.
The check for the proceeds of sale will be mailed to the address
of record.
Please check |X| below:
|_| A. Primary Subscription ____________________ / 10 =
(Rights Exercised)
.000 $ 20.00 $
- ------------------ X ------------------- = ----------------------
(Shares Requested) (Subscription Price) (Amount Required)
|_| B. Over-Subscription Privilege
.000 $ 20.00 $ (*)
-------------------- X -------------------- = ----------------------
(Shares Requested) (Subscription Price) (Amount Required)
Amount of Check Enclosed or Amount in Notice of Guaranteed Delivery (total of A
+ B) = $
----------------
Make check payable to the order of "BioTime, Inc."
(*) The Over-Subscription Privilege can be exercised by Record Date
Shareholders only, as described in the Prospectus.
|_| C. Sell any remaining unexercised Rights
|_| D. Sell all of my Rights.
_______________________________________
Signature of Subscriber(s)/Seller(s)
Please provide your telephone number Day (___) ___________________
Evening (___) _________________
Social Security Number or Tax ID Number: ______________________________________
SECTION II: TO TRANSFER RIGHTS: (except pursuant to C and D above)
For value received, ________________________of the Rights represented by this
Subscription Certificate are assigned to
--------------------------------------------------------
Social Security Number or Tax ID Number of Assignee
--------------------------------------------------------
(Print Full Name of Assignee)
--------------------------------------------------------
Signature(s) of Assignor(s)
--------------------------------------------------------
(Print Full Address including postal Zip Code)
The signature(s) must correspond with the name(s) as written upon the face
of this Subscription Certificate, in every particular, without alteration.
IMPORTANT: For Transfer, a Signature Guarantee must be provided by an eligible
financial institution which is a participant in a recognized signature guarantee
program.
SIGNATURE GUARANTEED BY:
----------------------------------------------------------------------
PROCEEDS FROM THE SALE OF RIGHTS MAY BE SUBJECT TO WITHHOLDING OF U.S. TAXES
UNLESS THE SELLER'S CERTIFIED U.S. TAXPAYER IDENTIFICATION NUMBER (OR
CERTIFICATION REGARDING FOREIGN STATUS) IS ON FILE WITH THE SUBSCRIPTION AGENT
AND THE SELLER IS NOT OTHERWISE SUBJECT TO U.S. BACKUP WITHHOLDING.
|_| CHECK HERE IF RIGHTS ARE BEING EXERCISED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY DELIVERED TO THE SUBSCRIPTION AGENT PRIOR TO THE
DATE HEREOF AND COMPLETE THE FOLLOWING:
NAME(S) OF REGISTERED OWNER(S):
WINDOW TICKET NUMBER (IF ANY):
DATE OF EXECUTION OF NOTICE OF GUARANTEED DELIVERY:
NAME OF INSTITUTION WHICH GUARANTEED DELIVERY:
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Amendment No. 1 to
Registration Statement No. 333-17321 of BioTime, Inc. on Form S-3 of our report
dated August 8, 1996 (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 June 30, 1996 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
San Francisco, California
January 7, 1997
Law Offices
Lippenberger, Thompson, Welch and Soroko LLP
250 Montgomery Street
Suite 500
San Francisco, California 94104
(415) 421-5300
FAX: (415) 421-0225
January 9, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: BioTime, Inc.
Registration Statement on Form S-3
Ladies/Gentlemen:
We are counsel to BioTime, Inc. (the "Company") in connection with the
offer and sale of up to 283,109 Common Shares (the "Shares") issuable upon the
exercise of 2,831,084 subscription rights (the "Rights") that will be issued and
distributed by the Company to the holders of record of its Common Shares. The
issuance of the Rights and the offer and sale of the Shares is being registered
under the Securities Act of 1933, as amended, pursuant to a Registration
Statement on Form S-3, File No. 333-17321.
We are of the opinion that when the Rights are issued as described in the
Registration Statement, the Rights will be the legally and validly issued and
outstanding and will constitute binding obligations of the Company, enforceable
in accordance with their terms. We are also of the opinion that when the Shares
are issued and sold upon the exercise of the Rights, in accordance with the
terms and provisions of the Rights and the Registration Statement, 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 LLP
