|
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
SCHEDULE
13D
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Under
the Securities Exchange Act of 1934
|
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(Amendment No. 17) |
||
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BIOTIME
INC.
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||
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(Name
of Issuer)
|
||
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Common
Shares, no par value
|
09066L105
|
|
|
(Title
of class of securities)
|
(CUSIP
number)
|
|
|
Alfred
D. Kingsley.
Greenway
Partners, L.P.
150
E. 57th
Street
New
York, New York 10022
(212)
355-6800
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||
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(Name,
address and telephone number of person authorized to receive notices
and
communications)
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April
12, 2006
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(Date
of event which requires filing of this statement)
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If
the filing person has previously filed a statement on Schedule 13G
to
report the acquisition which is the subject of this Schedule 13D,
and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box o.
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||
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Note:
When filing this statement in paper format, six copies of this statement,
including exhibits, should be filed with the Commission. See
Rule 13d-1(a) for other parties to whom copies are to be
sent.
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(Continued
on following page(s))
(Page
1 of 13Pages)
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CUSIP
No. 09066L105
|
13D
|
Page
2 of 13 Pages
|
|||||
|
1
|
NAME
OF REPORTING PERSON: GREENBELT CORP.
S.S.
OR I.R.S. IDENTIFICATION NO.
OF
ABOVE PERSON: 13-3791931
|
||||||
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
|
(a)
x
(b)
o
|
|||||
|
3
|
SEC
USE ONLY
|
||||||
|
4
|
SOURCE
OF FUNDS: 00
|
||||||
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d)
OR 2(e):
|
o
|
|||||
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION: Delaware
|
||||||
|
NUMBER
OF
SHARES
|
7
|
SOLE
VOTING POWER
|
1,941,330 | ||||
|
BENEFICIALLY
OWNED
BY
|
8
|
SHARED
VOTING POWER:
|
0
|
||||
|
EACH
REPORTING
|
9
|
SOLE
DISPOSITIVE POWER:
|
1,941,330 | ||||
|
PERSON
WITH
|
10
|
SHARED
DISPOSITIVE POWER:
|
0
|
||||
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY
REPORTING
PERSON:
|
1,941,330 | |||||
|
12
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES:
|
o
|
|||||
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
|
8.5%%
|
|||||
|
14
|
TYPE
OF REPORTING PERSON:
|
CO
|
|||||
|
CUSIP
No. 09066L105
|
13D
|
Page 3
of 13 Pages
|
|||||
|
1
|
NAME
OF REPORTING PERSON: GREENWAY
PARTNERS, L.P.
S.S.
OR I.R.S. IDENTIFICATION NO.
OF
ABOVE PERSON: 13-3714238
|
||||||
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
|
(a)
x
(b)
o
|
|||||
|
3
|
SEC
USE ONLY
|
||||||
|
4
|
SOURCE
OF FUNDS: WC,
OO
|
||||||
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d)
OR 2(e):
|
o
|
|||||
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION: Delaware
|
||||||
|
NUMBER
OF
SHARES
|
7
|
SOLE
VOTING POWER
|
976,063
|
||||
|
BENEFICIALLY
OWNED
BY
|
8
|
SHARED
VOTING POWER:
|
0
|
||||
|
EACH
REPORTING
|
9
|
SOLE
DISPOSITIVE POWER:
|
976,063
|
||||
|
PERSON
WITH
|
10
|
SHARED
DISPOSITIVE POWER:
|
0
|
||||
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY
REPORTING
PERSON:
|
976,063
|
|||||
|
12
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES:
|
o
|
|||||
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
|
4.2%
|
|||||
|
14
|
TYPE
OF REPORTING PERSON:
|
PN
|
|||||
|
CUSIP
No. 09066L105
|
13D
|
Page 4
of 13 Pages
|
|||||
|
1
|
NAME
OF REPORTING PERSON: GREENHOUSE
PARTNERS, L.P.
S.S.
OR I.R.S. IDENTIFICATION NO.
OF
ABOVE PERSON: 13-3793447
|
||||||
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
|
(a)
x
(b)
o
|
|||||
|
3
|
SEC
USE ONLY
|
||||||
|
4
|
SOURCE
OF FUNDS: WC,
AF, OO
|
||||||
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d)
OR 2(e):
|
o
|
|||||
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION: Delaware
|
||||||
|
NUMBER
OF
SHARES
|
7
|
SOLE
VOTING POWER
|
0
|
||||
|
BENEFICIALLY
OWNED
BY
|
8
|
SHARED
VOTING POWER:
|
976,063
|
||||
|
EACH
REPORTING
|
9
|
SOLE
DISPOSITIVE POWER:
|
0
|
||||
|
PERSON
WITH
|
10
|
SHARED
DISPOSITIVE POWER:
|
976,063
|
||||
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY
REPORTING
PERSON:
|
976,063
|
|||||
|
12
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES:
|
o
|
|||||
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
|
4.2%
|
|||||
|
14
|
TYPE
OF REPORTING PERSON:
|
PN
|
|||||
|
CUSIP
No. 09066L105
|
13D
|
Page 5
of 13 Pages
|
|||||
|
1
|
NAME
OF REPORTING PERSON: GREENBROOK
VALLEY LLC
S.S.
OR I.R.S. IDENTIFICATION NO.
OF
ABOVE PERSON:
|
||||||
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
|
(a)
x
(b)
o
|
|||||
|
3
|
SEC
USE ONLY
|
||||||
|
4
|
SOURCE
OF FUNDS: WC,
AF, OO
|
||||||
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d)
OR 2(e):
|
o
|
|||||
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION: Delaware
|
||||||
|
NUMBER
OF
SHARES
|
7
|
SOLE
VOTING POWER
|
0
|
||||
|
BENEFICIALLY
OWNED
BY
|
8
|
SHARED
VOTING POWER:
|
976,063
|
||||
|
EACH
REPORTING
|
9
|
SOLE
DISPOSITIVE POWER:
|
0
|
||||
|
PERSON
WITH
|
10
|
SHARED
DISPOSITIVE POWER:
|
976,063
|
||||
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY
REPORTING
PERSON:
|
976,063
|
|||||
|
12
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES:
|
o
|
|||||
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
|
4.2%
|
|||||
|
14
|
TYPE
OF REPORTING PERSON:
|
OO
|
|||||
|
CUSIP
No. 09066L105
|
13D
|
Page 6
of 13 Pages
|
|||||
|
1
|
NAME
OF REPORTING PERSON: GREENMINT
LLC
S.S.
OR I.R.S. IDENTIFICATION NO.
OF
ABOVE PERSON:
|
||||||
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
|
(a)
x
(b)
o
|
|||||
|
3
|
SEC
USE ONLY
|
||||||
|
4
|
SOURCE
OF FUNDS: WC,
AF, OO
|
||||||
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d)
OR 2(e):
|
o
|
|||||
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION: Delaware
|
||||||
|
NUMBER
OF
SHARES
|
7
|
SOLE
VOTING POWER
|
0
|
||||
|
BENEFICIALLY
OWNED
BY
|
8
|
SHARED
VOTING POWER:
|
976,063
|
||||
|
EACH
REPORTING
|
9
|
SOLE
DISPOSITIVE POWER:
|
0
|
||||
|
PERSON
WITH
|
10
|
SHARED
DISPOSITIVE POWER:
|
976,063
|
||||
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY
REPORTING
PERSON:
|
976,063
|
|||||
|
12
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES:
|
o
|
|||||
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
|
4.2%
|
|||||
|
14
|
TYPE
OF REPORTING PERSON:
|
OO
|
|||||
|
CUSIP
No. 09066L105
|
13D
|
Page 7
of 13 Pages
|
|||||
|
1
|
NAME
OF REPORTING PERSON: ALFRED
D. KINGSLEY
S.S.
OR I.R.S. IDENTIFICATION NO.
OF
ABOVE PERSON:
|
||||||
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
|
(a)
x
(b)
o
|
|||||
|
3
|
SEC
USE ONLY
|
||||||
|
4
|
SOURCE
OF FUNDS: PF,
AF, OO
|
||||||
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d)
OR 2(e):
|
o
|
|||||
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION: United
States
|
||||||
|
NUMBER
OF
SHARES
|
7
|
SOLE
VOTING POWER
|
6,595,811
|
||||
|
BENEFICIALLY
OWNED
BY
|
8
|
SHARED
VOTING POWER:
|
2,917,393
|
||||
|
EACH
REPORTING
|
9
|
SOLE
DISPOSITIVE POWER:
|
6,595,811
|
||||
|
PERSON
WITH
|
10
|
SHARED
DISPOSITIVE POWER:
|
2,917,393
|
||||
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY
REPORTING
PERSON:
|
9,513,204
|
|||||
|
12
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES:
|
o
|
|||||
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
|
37.1%
|
|||||
|
14
|
TYPE
OF REPORTING PERSON:
|
IN
|
|||||
|
CUSIP
No. 09066L105
|
13D
|
Page 8
of 13 Pages
|
|||||
|
1
|
NAME
OF REPORTING PERSON: GARY
K. DUBERSTEIN
S.S.
OR I.R.S. IDENTIFICATION NO.
OF
ABOVE PERSON:
|
||||||
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
|
(a)
x
(b)
o
|
|||||
|
3
|
SEC
USE ONLY
|
||||||
|
4
|
SOURCE
OF FUNDS: PF,
AF, OO
|
||||||
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d)
OR 2(e):
|
o
|
|||||
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION: United
States
|
||||||
|
NUMBER
OF
SHARES
|
7
|
SOLE
VOTING POWER
|
12,936
|
||||
|
BENEFICIALLY
OWNED
BY
|
8
|
SHARED
VOTING POWER:
|
2,917,393
|
||||
|
EACH
REPORTING
|
9
|
SOLE
DISPOSITIVE POWER:
|
12,936
|
||||
|
PERSON
WITH
|
10
|
SHARED
DISPOSITIVE POWER:
|
2,917,393
|
||||
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY
REPORTING
PERSON:
|
2,930,329
|
|||||
|
12
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES:
|
o
|
|||||
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
|
12.5%
|
|||||
|
14
|
TYPE
OF REPORTING PERSON:
|
IN
|
|||||
This
Amendment No. 17 (“Amendment No. 17”) amends and supplements the Statement on
Schedule 13D (as amended by Amendment No. 1, dated May 14, 1998, Amendment
No. 2, dated August 18, 2000, Amendment No. 3, dated December 8, 2000,
Amendment No. 4, dated March 30, 2001, Amendment No. 5, dated August
31, 2001, Amendment No. 6, dated April 1, 2002, Amendment No. 7 dated April
17,
2002, Amendment No. 8 dated May 31, 2002, Amendment No. 9 dated July 3, 2002,
Amendment No. 10 dated December 3, 2002, Amendment No. 11 dated April 25, 2003,
Amendment No. 12 dated October 2, 2003, Amendment No. 13 dated January 26,
2004,
Amendment No. 14 dated February 2, 2004, Amendment No. 15 dated September 12,
2005, and Amendment No. 16 dated December 27, 2005 (the “Statement”)) relating
to the common shares, no par value (the “Shares”), of BioTime Inc., a California
corporation (the “Company”), and is filed by and on behalf of Greenbelt Corp.
(“Greenbelt”), Greenway Partners, L.P. (“Greenway”), Greenhouse Partners, L.P.
(“Greenhouse”), Greenbrook Valley LLC (“Greenbrook”), Greenmint LLC
(“Greenmint”), Alfred D. Kingsley and Gary K. Duberstein
(collectively, the “Reporting Persons”). Unless otherwise defined herein, all
capitalized terms used herein shall have the meanings previously ascribed to
them in the previous filing of the Statement.
ITEM
3. SOURCE
AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The
information on each Reporting Person’s respective cover sheet and presented in
response to Item 6 is incorporated by reference herein.
ITEM
4. PURPOSE
OF TRANSACTION
The
information presented in response to Item 6 is incorporated by reference
herein.
ITEM
5. INTEREST
IN SECURITIES OF THE ISSUER
(a) As
of the
date of this statement, each of the Reporting Persons beneficially owned
the
Shares and the percentage of the outstanding Shares of the Company shown
their
respective cover page, which information is incorporated by reference herein
by
such Reporting Person. The percentages are based upon the number of shares
shown
as outstanding on the Company’s quarterly report on Form 10-K for the year ended
December 31, 2005, plus, 33,750 Greenbelt Consulting Shares issued to Greenbelt
during April 2006 for consulting services rendered through March 31, 2006
and
100,000 shares issuable to the lenders under the Credit Agreement (as defined
below).
The
Reporting Persons may be deemed to have direct beneficial ownership of Shares
as
set forth in the following table. In such table, pursuant to Rule 13d-3,
(a) the
shares issuable upon the exercise of the warrants owned by Greenbelt and
150,000
2006 Consulting Shares (as defined below) are deemed outstanding for determining
the percentage ownership of Shares by Greenbelt, (b) the shares issuable
upon
the exercise of the warrants owned by Greenway are deemed outstanding for
determining the percentage ownership of Shares by Greenway, (c) the shares
issuable upon the exercise of the warrants owned by Mr. Kingsley are deemed
outstanding for determining the percentage ownership of Shares by Mr. Kingsley,
who is the direct beneficial owner thereof, and (d) the shares issuable upon
the
exercise of the warrants owned by Mr. Duberstein are deemed outstanding for
determining the percentage ownership of Shares by Mr. Duberstein, who is
the
direct beneficial owner thereof.
Page
9 of 13
|
Name
|
Number
of Shares
|
Approximate
Percentage
of
Outstanding Shares
|
|||
|
Greenbelt
|
1,941,330
|
8.5%
|
|||
|
Greenway
|
976,063
|
4.2%
|
|||
|
Kingsley
|
6,595,811
|
26.5%
|
|||
|
Duberstein
|
12,936
|
0.06%
|
Greenbelt
has direct beneficial ownership of 1,941,330 Shares. Each of Messrs. Kingsley
and Duberstein, as executive officers and directors of Greenbelt, may be
deemed
to beneficially own the Shares that Greenbelt beneficially owns. Each of
Messrs.
Kingsley and Duberstein disclaims beneficial ownership of such Shares for
all
other purposes.
Greenway
has direct beneficial ownership of 976,063 Shares. Greenhouse, as the general
partner of Greenway, may be deemed to own beneficially (as that term is defined
in Rule 13d-3) Shares which Greenway may be deemed to possess direct beneficial
ownership. Each of Messrs. Kingsley and Duberstein, through their ability
to
control Greenhouse, may be deemed to beneficially own Shares which Greenhouse
may be deemed to beneficially own.
(b) If
Greenbelt were to exercise in full the warrants it owns, which are all presently
exercisable, it would have the sole power to vote or direct the vote of
1,941,330 Shares, and the sole power to dispose or direct the disposition
of
such Shares. Each of Messrs. Kingsley and Duberstein, as executive officers
and
directors of Greenbelt, may be deemed to share with Greenbelt the power to
vote
or to direct the vote and to dispose or to direct the disposition of such
Shares
and to beneficially own the Shares that Greenbelt beneficially owns. Each
of
Messrs. Kingsley and Duberstein disclaims beneficial ownership of such Shares
for all other purposes.
If
Greenway were to exercise in full the warrants it owns, which are all presently
exercisable, it would have the sole power to vote or direct the vote of 976,063
Shares and the sole power to dispose or direct the disposition of such Shares.
Greenhouse, as the general partner of Greenway, may be deemed to own
beneficially (as that term is defined in Rule 13d-3) Shares which Greenway
may
be deemed to possess direct beneficial ownership. Each of Messrs. Kingsley
and
Duberstein, through their ability to control Greenhouse, to may be deemed
to
share with Greenway the power to vote or to direct the vote and to dispose
or to
direct the disposition of such Shares and to beneficially own the Shares
which
Greenhouse may be deemed to beneficially own.
If
Mr.
Kingsley were to exercise in full the warrants he holds, which are all presently
exercisable, he would have the sole power to vote or direct the vote of
6,595,811 Shares and the sole power to dispose or direct the disposition
of such
Shares.
Page
10 of
13
If
Mr.
Duberstein were to exercise in full the warrants he holds, which are all
presently exercisable, he would have has the sole power to vote or direct
the
vote of 12,936 Shares and the sole power to dispose or direct the disposition
of
such Shares.
(c) Information
concerning transactions in the Shares by the Reporting Persons since the
filing
of Amendment No. 16 is set forth in Item 6.
(d) No
other
person is known to have the right to receive or the power to direct the receipt
of dividends from, or the proceeds from the sale of, the Shares reported
in this
Statement.
(e) Not
applicable.
ITEM
6. CONTRACTS,
ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES
OF THE
ISSUER
On
April
12, 2006, BioTime entered into a Revolving Line of Credit Agreement (the
“Credit
Agreement”) with Alfred D. Kingsley, Cyndel & Co., Inc., and George
Karfunkel, investors in BioTime, under which BioTime may borrow up to $500,000
for working capital purposes at an interest rate of 10% per annum. The credit
line will expire, and any funds borrowed must be repaid, on the earlier of
October 31, 2007 or when BioTime receives $600,000 in new funding through
the
sale of capital stock, the receipt of licensing and similar fees in excess
of
$1,000,000, from other borrowing, or any combination of those sources. Under
the
Credit Agreement, BioTime will prepay, and the credit line will be reduced
by,
any funds received prior to the maturity date from those sources. In
consideration for making the line of credit available, BioTime issued to
the
investors a total of 100,000 common shares. The line of credit is collateralized
by a security interest in BioTime’s right to receive royalty and other payments
under its license agreement with Hospira, Inc. Mr. Kingsley has agreed to
lend
BioTime up to $166,666.67, and he will receive 33,333 Shares, under the Credit
Agreement.
From
March 26, 2006 through April 1, 2006, warrants entitling Mr. Kingsley to
purchase 193,798 shares at prices above the then current market price expired
unexercised.
During
April 2006, Greenbelt entered into a one year extension of its Financial
Adviser
Agreement with BioTime, pursuant to which Greenbelt will be entitled to receive
a cash fee of $90,000 and 200,000 Shares (the “2006 Consulting Shares”) for
services rendered. The 2006 Consulting Shares will be issued in two installments
as follows: 150,000 Shares on January 2, 2007 for services rendered through
December 31, 2006, and 50,000 Shares on April 2, 2007 for services rendered
from
January 1, 2007 through March 31, 2007. BioTime has agreed to file a
registration statement, at BioTime’s expense, to register the 2006 Consulting
Shares for sale under the Securities Act of 1933, as amended, upon Greenbelt’s
request.
Page
11 of
13
ITEM
7. MATERIAL
TO BE FILED AS EXHIBITS
|
Exhibit
34
|
Revolving
Credit Line Agreement between BioTime, Inc, Alfred D. Kingsley,
Cyndel
& Co., Inc., and George Karfunkel, dated April 12, 2006. (Incorporated
by reference to BioTime’s Form 10-K for the year ended December 31,
2005)
|
|
Exhibit
35
|
Security
Agreement executed by BioTime, Inc., dated April 12, 2006. (Incorporated
by reference to BioTime’s Form 10-K for the year ended December 31,
2005)
|
|
Exhibit
36
|
Form
of Revolving Credit Note of BioTime, Inc. in the principal amount
of
$166,666.67
dated April 12, 2006. (Incorporated by reference to BioTime’s Form 10-K
for the year ended December 31, 2005)
|
|
Exhibit
37
|
Financial
Adviser Agreement Dated May 11, 2006 between BioTime, Inc. and
Greenbelt
Corp.
|
Page
12 of
13
SIGNATURES
After
reasonable inquiry and to the best of their knowledge and belief, the
undersigned certify that the information contained in this Statement is true,
complete and correct.
| Dated: May 16, 2006 | |||
| GREENHOUSE PARTNERS, L.P | |||
| By: /s/ Alfred D. Kingsley | |||
|
Alfred D. Kingsley, General Partner |
|||
| GREENWAY PARTNERS, L.P. | |||
|
By:
Greenhouse
Partners, L.P.,
its
general partner
|
|||
| By: /s/ Alfred D. Kingsley | |||
|
Alfred D. Kingsley, General Partner |
|||
| GREENBELT CORP. | |||
| By: /s/ Alfred D. Kingsley | |||
|
Alfred
D. Kingsley, President
|
|||
Page
13 of
13
May
11,
2006
BioTime,
Inc.
6121
Hollis Street
Emeryville,
California 94608
Attention:
Judith Segall, Vice President-Operations
|
RE:
|
Financial
Adviser Agreement
|
Dear
Judith:
This
letter sets forth the terms on which the letter agreement between BioTime,
Inc.
(“BioTime”) and Greenbelt Corp. (“Financial Adviser”), dated April 30, 1998, as
amended, (the “Agreement”) shall be extended and modified.
1. Expiration
Date.
The term
of the Agreement will continue in effect from April 1, 2006 through March 31,
2007.
2. Compensation.
BioTime
agrees to pay Greenbelt (a) a cash fee of $90,000, and (b) 200,000 common
shares. The shares shall be issued as follows: 150,000 shares on January 2,
2007
for services rendered through December 31, 2006, and 50,000 shares on April
2,
2007 for services rendered from January 1, 2007 through March 31, 2007. The
cash
fee shall be due and payable as follows: $30,000 on January 2, 2007, $30,000
on
April 2, 2007, and $30,000 on October 1, 2007; provided, that BioTime may defer
either or both of the cash payments that would otherwise be due on January
2,
2007 and April 2, 2007 until a date that BioTime may determine, but not later
than October 1, 2007. If BioTime elects to so defer a cash payment for a period
of more than five business days, BioTime shall issue to Greenbelt 30,000
additional common shares within ten business days after the date on which the
deferred cash payment was originally due. In the event that the Agreement is
terminated by either party and such termination takes effect on a date other
than the last day of a calendar quarter, the amount of cash and number of Shares
issuable with respect to the calendar quarter will be pro rated, to the nearest
whole Share, by multiplying the amount of cash payable and Shares issuable
for
that quarter by a fraction the numerator of which is the number of days that
have elapsed from the first day of the calendar quarter through the date of
termination, and the denominator of which is the number of days in the calendar
quarter. Payment of any prorated amount shall be due on the next proceeding
date
for payment under this paragraph, subject to the right of BioTime to defer
the
cash payment as provided in this paragraph.
1
3. Investment
Representations.
Financial Adviser represents and warrants to BioTime that:
(a) Financial
Adviser has received and read a draft of BioTime’s Quarterly Report on Form
10-QSB for the three months ended March 31, 2006 and BioTime’s Annual Report on
Form 10-K for the year ended December 31, 2005, including the risks described
in
the “Risk Factors” section, and all Current Reports on Form 8-K filed by BioTime
since January 1, 2006 (collectively, the “SEC Filings”). Financial Adviser is
relying on the information provided in the SEC Filings or otherwise communicated
to Financial Adviser in writing by BioTime. Financial Adviser has not relied
on
any statement or representations inconsistent with those contained in the SEC
Filings. Financial Adviser has had a reasonable opportunity to ask questions
of
and receive answers from the executive officers and directors of BioTime, or
one
or more of its officers, concerning BioTime and to obtain additional
information, to the extent possessed or obtainable without unreasonable effort
or expense, necessary to verify the information in the SEC Filings. All such
questions have been answered to Financial Adviser’s satisfaction;
(b) Financial
Adviser understands that the Shares are being offered and sold without
registration under the Securities Act of 1933 (the “1933 Act”) or qualification
under the California Corporate Securities Law of 1968, or under the laws of
other states, in reliance upon the exemptions from such registration and
qualification requirements for non-public offerings. Financial Adviser
acknowledges and understands that the availability of the aforesaid exemptions
depends in part upon the accuracy of certain of the representations,
declarations and warranties contained herein, which Financial Adviser hereby
makes with the intent that they may be relied upon by BioTime and its officers
and directors in determining Financial Adviser’s suitability to purchase the
Shares. Financial Adviser understands and acknowledges that no federal, state
or
other agency has reviewed or endorsed the offering of the Shares or made any
finding or determination as to the fairness of the offering or completeness
of
the information in the SEC Filings;
(c) Financial
Adviser understands that the Shares may not be offered, sold, or transferred
in
any manner, unless subsequently registered under the 1933 Act, or unless there
is an exemption from such registration and an opinion of counsel for BioTime
has
been rendered stating that such offer or transfer will not violate any federal
or state securities laws;
(d) Financial
Adviser understands and agrees that all certificates evidencing the Shares
shall
bear an appropriate legend to the effect that the securities have not been
registered under the 1933 Act and may not be sold or transferred in the absence
of such registration or an exemption therefrom.
(e) Financial
Adviser has such knowledge and experience in financial and business matters
to
enable it to utilize the information contained in the SEC Filings, or otherwise
made available to Financial Adviser to evaluate the merits and risks of an
investment in the Shares and to make an informed investment decision with
respect thereto.
2
(f) Financial
Adviser is purchasing the Shares solely for Financial Adviser’s own account and
for long-term investment purposes, and not with a view to, or for sale in
connection with, any distribution of the Shares; and
(g) Financial
Adviser is an “accredited investor,” as such term is defined in Regulation D
promulgated under the 1933 Act.
4. Registration
Rights.
(a) BioTime
agrees, at its expense, upon written request from the Financial Adviser, to
use
commercially reasonable efforts to register under the 1933 Act the Shares and
to
take such other actions as may be necessary to allow the Shares to be freely
tradable, without restrictions, in compliance with all regulatory requirements.
A written request for registration shall specify the quantity of the Shares
intended to be sold, the plan of distribution and the identity of the sellers,
which may include the Financial Adviser and assignees of its rights hereunder
(collectively, “Selling Securities Holders”), and whether the registration shall
be pursuant to an underwritten public offering or a “shelf” registration
pursuant to Rule 415 (or similar rule that may be adopted by the Securities
and
Exchange Commission). BioTime shall not be obligated to file more than two
such
registration statements, other than registration statements on Form S-3. BioTime
shall use commercially reasonable efforts keep such registration statements
effective for a period of at least nine months, except that registration
statements on Form S-3 shall be kept effective for at least three years (or
such
lesser period as the parties may agree, but in no event beyond the completion
of
the distribution or distributions being made pursuant thereto). BioTime shall
utilize Form S-3 if it qualifies for such use. BioTime shall make all filings
required with respect to the registration statements and will use commercially
reasonable efforts to cause such filings to become effective, so that the Shares
being registered shall be registered or qualified for sale under the securities
or blue sky laws of such jurisdictions as shall be reasonably appropriate for
distribution of the Shares covered by the registration statement. BioTime shall
have no obligation to make any cash settlement or payment to the Financial
Adviser or any Selling Securities Holders or to issue any additional Shares
in
the event that BioTime is unable to effect or maintain in effect the
registration of the Shares under the 1933 Act or any state securities law
despite BioTime’s commercially reasonable efforts so to do.
BioTime
will furnish to the Selling Securities Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the 1933 Act and such other related documents as the Selling
Securities Holders may reasonably request in order to effect the sale of the
Shares. To effect any offering pursuant to a registration statement under this
Section, BioTime shall enter into an agreement containing customary
representations and warranties, and indemnification and contribution provisions,
all for the benefit of Selling Securities Holders, and, in the case of an
Underwritten public offering, an underwriting agreement with an investment
banking firm selected by the Financial Adviser and reasonably acceptable to
BioTime, containing such customary representations and warranties, and
indemnification and contribution provisions
3
(b) If,
at
any time, Bio Time proposes to register any of its securities under the 1933
Act
(otherwise than pursuant to paragraph 4(a) above or on a Form S-8 if such form
cannot be used for registration of the Shares pursuant to its terms), BioTime
shall, as promptly as practicable, give written notice to the Financial Adviser.
BioTime shall include in such registration statement any Shares proposed to
be
sold by the Selling Securities Holders. Notwithstanding the foregoing, if the
offering of BioTime’s securities is to be made through underwriters, BioTime
shall not be required to include Shares if and to the extent that the managing
underwriter reasonably believes in good faith that such inclusion would
materially adversely affect such offering unless the Selling Securities Holders
agree to postpone their sales until 10 days after the distribution is completed.
(c) BioTime
shall pay the cost of the registration statements filed pursuant to this
Agreement, including without limitation all registration and filing fees, fees
and expenses of compliance with securities or blue sky laws (including counsel’s
fees and expenses in connection therewith), printing expenses, messenger and
delivery expenses, internal expenses of BioTime, listing fees and expenses,
and
fees and expenses of BioTime’s counsel, independent accountants and other
persons retained or employed by BioTime. Selling Securities Holders shall pay
any underwriters discounts applicable to Shares.
(d) BioTime
agrees that upon the sale of Shares pursuant to a registration statement or
an
exemption, upon the presentation of the certificates containing such legend
to
its transfer agent, it will remove such legend. BioTime further agrees to remove
the legend at such time as registration under the 1933 Act shall no longer
be
required.
5. Other
Provisions.
Except
as expressly modified by this letter, all terms and provisions of the Agreement
shall remain in effect.
[Signatures
on Following Page]
4
| BIOTIME, INC. | ||
| |
|
|
| By | /s/ Hal Sternberg | |
|
Hal Sternberg, Vice President, Member of |
||
| the Office of the President | ||
| |
|
|
| By | /s/ Judith Segall | |
|
Judith Segall, Vice President, Secretary, and |
||
| Member of the Office of the President | ||
| GREENBELT CORP. | ||
| |
|
|
| By | /s/ Alfred D. Kingsley | |
|
Alfred D. Kingsley, President |
||
5