UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event
reported): October
2, 2015
BIOTIME, INC.
(Exact name
of registrant as specified in its charter)
California
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1-12830
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94-3127919
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(State or other jurisdiction
of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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1301 Harbor Bay Parkway
Alameda, California 94502
(Address
of principal executive offices)
(510) 521-3390
(Registrant's telephone number, including area
code)
Check the
appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any
of the following provisions:
⃞
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
⃞
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
⃞
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
⃞
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Forward-Looking Statements
Any statements that are not historical fact (including, but not
limited to statements that contain words such as “may,” “will,”
“believes,” “plans,” “intends,” “anticipates,” “expects,” “estimates”)
should also be considered to be forward-looking statements. Additional
factors that could cause actual results to differ materially from the
results anticipated in these forward-looking statements are contained in
BioTime’s periodic reports filed with the SEC under the heading “Risk
Factors” and other filings that BioTime may make with the Securities and
Exchange Commission. Undue reliance should not be placed on these
forward-looking statements which speak only as of the date they are
made, and the facts and assumptions underlying these statements may
change. Except as required by law, BioTime disclaims any intent or
obligation to update these forward-looking statements.
References to “we,” “us”, and “our” mean BioTime, Inc. and its
subsidiaries unless the context otherwise indicates. In this regard,
references to “we,” “us”, and “our” in the context of rights or
obligations under any contract or agreement mean BioTime, Inc. only and
not its subsidiaries.
Section 1 - Registrant’s Business and Operations
Item 1.01
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Entry into a Material Definitive Agreement.
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On October 2, 2015, we entered into a Stock Purchase Agreement (the
“Purchase Agreement”) with Broadwood Partners, L.P. (“Broadwood”) for a
registered direct offering of 1,600,000 of our common shares, no par
value, at an offering price of $3.19 per share, for an aggregate
purchase price of $5,104,000. The price per share was the closing price
of our common shares on the NYSE MKT on October 1, 2015, the last
trading day before we and Broadwood entered into the Purchase Agreement.
We will pay no fees or commissions to broker-dealers or any finder’s
fees, nor will we issue any stock purchase warrants, in connection with
the offer and sale of the shares.
We expect to use the net proceeds for general corporate purposes,
including, without limitation, to finance clinical trials of products we
are developing, to finance our research and development programs, and
for general working capital. We may also use proceeds of this offering
to acquire one or more businesses or new business assets. We may invest
proceeds in one or more of our existing subsidiaries or in any new
subsidiaries that we may form. We may use the proceeds for purposes
that are not contemplated at the time of the offering.
The Purchase Agreement contains terms and conditions, including
customary representations, warranties and agreements by us, customary
conditions to closing, other obligations of the parties and termination
provisions. The representations, warranties and covenants contained in
the Purchase Agreement were made only for purposes of the agreement and
as of specific dates, were solely for the benefit of the parties to the
Purchase Agreement, and may be subject to limitations agreed upon by the
contracting parties. The foregoing description of the material terms of
the Purchase Agreement is qualified in its entirety by reference to the
full text of the form of Purchase Agreement, which has been filed as an
exhibit to this Current Report on Form 8-K and is incorporated herein by
reference.
Neal Bradsher, one of our directors, is the President of the investment
manager of Broadwood, which is our largest shareholder and beneficially
owns more than 5% of the outstanding BioTime common shares.
The common shares are being offered and sold pursuant to a prospectus
supplement dated as of October 2, 2015, which has been filed with the
Securities and Exchange Commission in connection with a takedown from
our shelf registration statement on Form S-3 (File No. 333-201824),
which became effective on February 12, 2015, and the base prospectus
dated February 12, 2015. The sale of the common shares is expected to
close on October 7, 2015, subject to the satisfaction of customary
closing conditions.
Section 9 - Financial Statements and Exhibits
Item 9.01
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Financial Statements and Exhibits.
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Exhibit Number
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Description
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10.1
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Stock Purchase Agreement, dated October 2, 2015, between BioTime,
Inc. and
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Broadwood Partners, LP.
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99.1
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Press release, dated October 2, 2015
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SIGNATURES
Pursuant to
the requirements of the Securities Exchange Act of 1934, the registrant
has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date:
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October 2, 2015
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BIOTIME, INC.
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By:
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/s/ Robert W. Peabody
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Senior Vice President and
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Chief Financial Officer
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Exhibit Number
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Description
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10.1
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Stock Purchase Agreement, dated October 2, 2015, between BioTime,
Inc. and
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Broadwood Partners, LP.
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99.1
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Press release, dated October 2, 2015
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Exhibit 10.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this “Agreement”) is entered into as of
October 2, 2015 (the “Effective Date”) by and between BioTime, Inc., a
California corporation (the “Company”) and the undersigned identified on
the signature page attached hereto (“Purchaser”).
ARTICLE 1.
PURCHASE AND SALE OF SHARES
1.1 Sale of Shares. Purchaser hereby irrevocably agrees to
purchase from the Company, and the Company agrees to sell to Purchaser
pursuant to the Registration Statement (as defined below), the number of
common shares, no par value (“Shares”), shown on the signature page of
this Agreement, at the price of $3.19 per Share (the “Purchase Price”).
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the most current prospectus (the “Prospectus”)
included in Registration Statement on Form S-3 (File No. 333-201824)
(the “Registration Statement”) under the Securities Act of 1933, as
amended (the “Securities Act”) registering the offer and sale of the
Shares, and in a prospectus supplement filed in accordance with Rule
424(b) under the Securities Act describing the offer of the Shares (the
“Prospectus Supplement”), including all documents and information
incorporated by reference therein, the Company represents and warrants
to Purchaser that:
2.1 Organization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the
state of California. The Company is duly qualified to do business in
the state of California and in each other state in which it is doing
business and where the failure to so qualify could have a material
adverse effect on its business, operations, or properties, or could
subject the Company to fines or penalties that are material to the
Company’s financial condition.
2.2 Authority; Enforceability. The Company has the
power and authority to execute and deliver this Agreement and to perform
all of its obligations hereunder. This Agreement has been duly
authorized, executed and delivered by the Company and is the valid and
binding agreement of the Company, enforceable in accordance with its
terms subject to: (i) laws of general application relating to
bankruptcy, insolvency and the relief of debtors; and (ii) general
principles of equity.
2.3 Valid Issuance of Shares. The Shares that are
being purchased by Purchaser hereunder, when issued, sold and delivered
in accordance with the terms of this Agreement, including payment of the
Purchase Price, will be duly and validly issued, fully paid, and
nonassessable.
2.4 Capitalization. The Company is authorized to issue
the following shares of capital stock: 125,000,000 common shares, no par
value, and 2,000,000 preferred shares, no par value. As of September 2,
2015, there were: no preferred shares issued and outstanding; 84,156,127
common shares issued and 79,262,185 common shares outstanding excluding
4,893,942 common shares held by subsidiaries and treated as treasury
shares.
2.5 Disclosure Documents; Financial Statements. The
Company has filed all reports required to be filed by it under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”),
including pursuant to Section 13(a) or 15(d) thereof (the foregoing
materials being collectively referred to herein as the SEC Reports),
during the twelve (12) months prior to the date hereof. None of the SEC
Reports, when filed, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Reports (i) have been
prepared in accordance with United States generally accepted accounting
principles (“GAAP”) applied on a consistent basis during the periods
involved, except as may be otherwise specified in such financial
statements or the notes thereto, or, in the case of unaudited
statements, as permitted by Form 10-Q, and except that the unaudited
financial statements may not contain footnotes and are subject to normal
and recurring year-end adjustments that will not, individually or in the
aggregate, be material in amount); and (ii) fairly present in all
material respects the consolidated financial position of the Company and
its subsidiaries on a consolidated basis as of the respective dates
thereof and the consolidated results of operations and cash flows of the
Company and its subsidiaries for the periods covered thereby.
2.6 Absence of Certain Changes. Since June 30, 2015,
except as specifically disclosed in SEC Reports, (i) there has not been
any material adverse change in the financial condition, assets,
liabilities, revenues, or business of the Company and its subsidiaries,
taken as a whole, (ii) the Company has not incurred any liabilities
(contingent or otherwise) other than (A) trade payables, accrued
expenses, licensing fees and similar expenses, and other liabilities
incurred in the ordinary course of business consistent with past
practice, (B) liabilities not required to be reflected in the Company’s
financial statements pursuant to GAAP or not required to be disclosed in
filings made with the Securities and Exchange Commission (“SEC”), and
(C) liabilities arising under this Agreement, and (iii) the Company has
not declared or made any dividend or distribution of cash or other
property to its stockholders or purchased, redeemed, or made any
agreements to purchase or redeem any shares of its capital stock.
2.7 Internal Controls. The Company maintains a process of
“internal controls over financial reporting” (as defined in Rules
13a-15(f) and 15d-15(f) under the Exchange Act) that is designed to
provide reasonable assurances: (i) that transactions are recorded as
necessary to permit preparation of financial statements in accordance
with generally accepted accounting principles; (ii) that receipts and
expenditures are being made only in accordance with the authorizations
of management and directors; and (iii) regarding prevention or timely
detection of the unauthorized acquisition, use or disposition of the
assets of the Company and its subsidiaries that could have a material
effect on the financial statements. The Company maintains a system of
“disclosure controls and procedures” (as defined in Rules 13a-15(e) and
15d-15(e) under the Exchange Act) that is designed to provide reasonable
assurances that all material information required to be disclosed by the
Company in the reports that it files or submits under the Exchange Act
is accumulated and communicated to the Company’s management, as
appropriate, to allow timely decisions regarding required disclosure,
and otherwise to ensure that information required to be disclosed by the
Company in the reports that it files or submits under the Exchange Act
is recorded, processed, summarized and reported within the time periods
specified in the rules and regulations of the SEC.
2.8 Registration Statement.
(a) The Company has prepared and filed the Registration Statement
in conformity with the requirements of the Securities Act. The
Registration Statement is effective under the Securities Act and no stop
order preventing or suspending the effectiveness of the Registration
Statement or suspending or preventing the use of the Prospectus or the
Prospectus Supplement has been issued by the SEC and no proceedings for
that purpose have been instituted or, to the knowledge of the Company,
are threatened by the SEC. The Company shall file a final Prospectus
Supplement with the SEC pursuant to Rule 424(b) no later than two (2)
business days after the Effective Date. The Registration Statement, and
the Prospectus together with the Prospectus Supplement, do not contain
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein, in light of
the circumstances under which they were made, not misleading.
(b) When issued pursuant to this Agreement and the Registration
Statement at Closing, the Shares will be free of restrictions on
transfer under the Securities Act, other than such restrictions as may
be applicable under Rule 144 under the Securities Act with respect to
sales or transfers of securities by an affiliate (as defined in Rule
144) of the issuer should Purchaser be or become an affiliate of the
Company.
2.9 Listing and Maintenance Requirements. The
Company has not, in the 12 months preceding the date hereof, received
notice from the NYSE MKT to the effect that the Company is not in
compliance with the listing or maintenance requirements of the NYSE
MKT.
2.10 Taxes. Since January 1, 2013, the Company has
filed when due all federal, state, and local income tax returns, and all
other returns with respect to taxes which are required to be filed with
the appropriate authorities of the jurisdictions where business is
transacted by the Company, or where the Company owns any property, and
any taxes due, as reflected on such tax returns, have been paid.
2.11 Subsidiaries. The Company’s subsidiaries are shown
in its Quarterly Report on Form 10-Q for the three and six months ended
June 30, 2015.
2.12 No Conflict. The Company is not in violation or
default of any provision of its Articles of Incorporation or bylaws, and
is not in violation or default in any material respect of any
instrument, judgment, order, writ, decree or contract to which it is a
party or by which it is bound, or, to its knowledge, of any provision of
any federal or state statute, rule or regulation applicable to it. The
execution and delivery of this Agreement and consummation of the sale of
the Shares contemplated by this Agreement (a) do not and will not
violate any provisions of (i) any rule, regulation, statute, or law,
(ii) the terms of any order, writ or decree of any court or judicial or
regulatory authority or body, (iii) the Articles of Incorporation or
bylaws of the Company, or (iv) the rules and regulations of the NYSE MKT
applicable to the listing of the Company’s common shares, (b) will not
conflict with or result in a breach of any condition or provision or
constitute a default under or pursuant to the terms of any Material
Contract (as defined below), and (c) will not result in the creation or
imposition of any lien, charge or encumbrance upon any of the Shares or
upon any of the assets or properties of the Company. The term Material
Contract means any contract, agreement, license, lease, deed of trust,
mortgage, lien, debenture, promissory note, or instrument to which the
Company is a party (i) the termination of or default under which could
have a material adverse effect on the business, financial condition,
assets or prospects of the Company, or (ii) that constitutes a lien or
security interest on any real or personal property of the Company the
loss of which through a foreclosure sale would have a material adverse
effect on the business, financial condition, assets or prospects of the
Company.
2.13 Litigation. Other than as disclosed in the SEC Reports,
there is no lawsuit, arbitration proceeding, or administrative action or
proceeding pending or threatened against the Company which (a) questions
the validity of this Agreement or any action taken or to be taken by the
Company in connection with this Agreement or the issue and sale of the
Shares hereunder, (b) alleges any infringement of any trademark, service
mark, or patent by the Company, or (c) if adversely decided would have a
material adverse effect upon the business, financial condition, assets
or prospects of the Company.
2.14 Patents and Trademarks. The Company is the sole and
exclusive owner of or has a valid license to use all patents,
trademarks, service marks, trade names, copyrights, trade secrets,
information, proprietary rights and processes presently used by the
Company in its business as now conducted, without any conflict with or,
to the Company’s knowledge infringement of the rights of others, except
as disclosed in the SEC Reports. The Company has not received any
communications alleging that it has violated or, by conducting its
business as presently conducted, violates any of the patents,
trademarks, service marks, trade names, copyrights or trade secrets or
other proprietary rights of any other person or entity.
2.15 Title to Property. The Company has good and marketable
title to its property and assets free and clear of all mortgages, liens,
loans and encumbrances. Title to all of the personal and real property
used by the Company is held in the name of the Company or a subsidiary
or is licensed or leased from a third party. With respect to the
property leased or licensed from a third party, the Company is in
compliance with such leases and licenses in all material respects and,
to Company's knowledge, the Company holds a valid leasehold or license.
All facilities, machinery, equipment, fixtures, vehicles and other
properties owned, leased or used by the Company are in good operating
condition and repair (subject to ordinary wear and tear) and are
reasonably fit and usable for the purposes for which they are being used.
2.16 Regulatory Permits. The Company possess all certificates,
authorizations and permits issued by the appropriate federal, state,
local or foreign regulatory authorities necessary to conduct its
businesses as described in the SEC Reports (“Permits”), except where the
failure to possess such Permits would not result in a material adverse
effect, and the Company has not received any notice of proceedings
relating to the revocation or modification of any Permit, the revocation
or proposed modification of which would result in a material adverse
effect.
2.17 Employee Benefit Plans. Other than the Company’s Equity
Incentive Plan and stock option and similar equity incentive plans
maintained by Company subsidiaries, the Company does not have and has
never maintained or sponsored any Employee Benefit Plan as defined in
the Employee Retirement Income Security Act of 1974, as amended.
2.18 Labor Agreements and Actions; Employee Compensation. The
Company is not be bound by or subject to (and none of its assets or
properties is bound by or subject to) any written or oral contract,
commitment or arrangement with any labor union, and no labor union has
requested or, to the Company's knowledge, has sought to represent any of
the employees, representatives or agents of the Company. There is no
strike or other labor dispute involving the Company pending, nor to the
Company's knowledge, threatened, that could have a material adverse
effect on the assets, properties, financial condition, operating results
or business of the Company, nor is the Company aware of any labor
organization activity involving its employees. The Company is not aware
that any officer or key employee, or that any group of key employees,
intends to terminate their employment the Company, nor does the Company
have a present intention to terminate the employment of any of the
foregoing. The employment of each officer and employee of the Company
is terminable at the will of the Company. To its knowledge, the Company
has complied in all material respects with all applicable state and
federal equal employment opportunity and other laws related to
employment.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants with respect to only itself to
the Company the following:
3.1 Organization. Purchaser, if not a natural person, is a
corporation, limited liability company, partnership, trust or other
entity duly organized, validly existing and in good standing under the
laws of the state or other jurisdiction in which it is incorporated or
otherwise organized.
3.2 Authority; Enforceability. Purchaser has the power and
authority to execute and deliver this Agreement and to perform all of
its obligations under this Agreement. This Agreement has been duly
authorized and executed by Purchaser and is the valid and binding
agreement of Purchaser enforceable in accordance with its terms, except
(i) to the extent limited by any bankruptcy, insolvency, or similar law
affecting the rights of creditors generally, and (ii) as limited by laws
relating to the availability of specific performance, injunctive relief
or other equitable remedies.
3.3 No Conflict. The execution and delivery of this Agreement,
and consummation of the transactions contemplated hereunder, including
the purchase of the Shares, by Purchaser do not and will not violate any
provisions of (i) any rule, regulation, statute, or law applicable to
Purchaser or (ii) the terms of any order, writ, or decree of any court
or judicial or regulatory authority or body by which Purchaser is bound,
or (iii) the articles of incorporation, bylaws, or similar charter or
governing documents of Purchaser.
3.4 No Short Sales. Purchaser has not, nor has any person or
entity acting on behalf of or pursuant to any understanding, agreement,
or arrangement with Purchaser, directly or indirectly executed any
“short sale,” as defined in SEC Rule SHO, of the common shares of the
Company since June 30, 2015.
3.5 Place of Business or Residence. Purchaser represents and
warrants that Purchaser has Purchaser’s principal place of business or
residence as set forth on the signature page of this Agreement.
ARTICLE 4.
CLOSING
4.1 Time and Place of Closing. The consummation of the
purchase and sale of the Shares (“Closing”) shall take place in on the
third Business Day after the execution and delivery of this Agreement by
Purchasers and the Company (the “Closing Date”). On the Closing Date,
Purchaser shall pay in full the Purchase Price for the Shares purchased
by wire transfer of the Purchase Price for the Shares being purchased by
Purchaser, in immediately available funds, to an account designated by
the Company. The Purchase Price shall be paid in United States
Dollars. On the Closing Date, the Company shall issue to Purchaser the
Shares purchased, against payment of the Purchase Price. Closing shall
occur at the principal office of the Company or at such other place as
the parties may agree. A “Business Day” shall be any day on which the
banks in New York are not required or permitted to close.
4.2 Documents to be Delivered By the Company. The Company
shall deliver the following documents to Purchaser at the Closing:
(a) Prospectus. A copy of
the most current prospectus (the “Prospectus”) included in Registration
Statement on Form S-3 (File No. 333-201824) under the Securities Act
registering the offer and sale of the Shares (the “Registration
Statement”), and a prospectus supplement filed in accordance with Rule
424(b) under the Securities Act describing the offer of the Shares;
provided that the Prospectus and Prospectus Supplement may be delivered
in accordance with Rule 172 under the Securities Act;
(b) Shares. The Shares purchased
by Purchaser, registered in the name of Purchaser delivered
electronically via The Depository Trust Company Deposit / Withdrawal at
Custodian system (“DWAC”).
4.3 Conditions of the Company's Obligation to Close. The
obligation of the Company to sell the Shares to Purchaser on each
Closing Date is conditioned upon the following:
(a) Payment and
Delivery. The Company’s receipt of the Purchase Price for the Shares
being sold to Purchaser;
(b) Representations and
Warranties. The representations and warranties made by Purchaser in
ARTICLE 3 of this Agreement shall be true and correct in all material
respects when made and on the Closing Date; provided, that any
representation and warranty that is itself qualified by a materiality
standard shall be true and correct in all respects; and
(c) Performance of
Covenants. Purchaser shall have fully performed all covenants and
agreements required to be performed by Purchaser on or before the
Closing Date.
4.4 Conditions of Purchaser’s Obligation to Close. The
obligation of Purchaser to purchase the Shares from the Company on any
Closing Date is conditioned upon the following:
(a) Delivery. Purchaser's
receipt of the items required to be delivered by the Company under
Section 4.2.
(b) Representations and
Warranties. The representations and warranties made by the Company in
ARTICLE 2 of this Agreement shall be true and correct in all material
respects when made and on the applicable Closing Date, unless made as of
a specific date in which case they shall be accurate as of such date,
and Purchaser shall have received from the Company a certificate, dated
as of the Closing Date, to such effect signed by the Chief Executive
Officer of the Company; provided, that any representation and warranty
that is itself qualified by a materiality standard shall be true and
correct in all respects.
(c) Performance. The Company
shall have performed and complied with all agreements, obligations and
conditions contained in this Agreement that are required to be performed
or complied with by it on or before the applicable Closing Date.
(d) Bankruptcy;
Insolvency. The Company shall not be subject to (i) any order for
relief, or subject to any pending proceeding for reorganization or
liquidation, under the United States Bankruptcy Code, as amended, or
under any other law pertaining to insolvency of the Company or
creditor’s rights generally, (ii) any appointment of a receiver for the
Company or any of its assets, or (iii) any plan or action of dissolution
or liquidation of the Company or its business.
(e) No Material Adverse
Event. No material adverse event shall have occurred since June 30,
2015.
(f) Listing. The common
shares of the Company shall be designated for quotation or listed on the
NYSE MKT and on the Tel Aviv Stock Exchange (“TASE”), and the NYSE MKT
and TASE shall not have suspended the listing or trading of the
Company’s common shares, nor shall suspension by the SEC or the NYSE MKT
or TASE have been threatened, as of the Closing Date, (A) in writing by
the SEC, the NYSE MKT, or the TASE, or (B) by falling below applicable
minimum listing maintenance requirements.
ARTICLE 5.
ADDITIONAL COVENANTS
5.1 Further Assurances. Each party will execute, acknowledge,
and deliver such additional certificates and documents and will take
such additional actions as the other party may reasonably request on or
after a Closing Date to effect, complete or perfect the issue and sale
of the Shares to Purchaser.
5.2 Purchasers’ Market Activity. Purchaser agrees that Purchaser
shall not, prior to the public announcement by the Company that it has
entered into this Agreement, engage in any stabilization activity in
connection with the Company’s common shares, or otherwise bid for or
engage in any purchase or sale, including any short sale (as defined in
SEC Rule SHO) of the Company’s common shares, directly or through or in
arrangement with any entity in control of, controlled by, or under
common control with Purchaser. Purchaser covenants and agrees that
until such time as the transactions contemplated by this Agreement are
publicly disclosed by the Company pursuant to a press release, Purchaser
will maintain the confidentiality of the existence and terms of this
Agreement.
5.3 Public Disclosure by the Company. Following the execution of
this Agreement, the Company shall issue a press release and file a
Current Report on Form 8-K describing the terms of the transactions
contemplated by this Agreement, in the form required by the Exchange Act
and attaching this Agreement as an exhibit to such filing.
5.4 Publicity. No Purchaser shall issue any press release or
make any similar public statement or communication disclosing the terms
of this Agreement or the transactions hereunder without the prior
written consent of the Company, provided that the Company’s consent
shall not unreasonably be withheld or delayed if such disclosure is
required by law and Purchaser shall have provided the Company with a
copy of the proposed press release or other public statement or
communication a reasonable time prior to the public release or
dissemination thereof.
ARTICLE 6.
MISCELLANEOUS
6.1 Governing Law. This Agreement shall be construed and
governed in all respects by the internal laws of the State of California
without giving effect to any choice of law rule that would cause the
application of the laws of any jurisdiction other than the internal laws
of the State of California to the rights and duties of the parties. All
disputes and controversies arising out of or in connection with this
Agreement shall be resolved non-exclusively by the state and federal
courts located in the State of New York and the State of California, and
each party agrees to submit to the jurisdiction of said courts.
6.2 Successors and Assigns. The parties may not assign their
rights or obligations under this Agreement, directly or by operation of
law, without the consent of the other party. The provisions of this
Agreement shall inure to the benefit of, and be binding upon, the
respective successors, assigns, heirs, executors and administrators of
Purchaser and the Company.
6.3 Entire Agreement; Amendment. This Agreement constitutes the
full and entire understanding and agreement among the parties with
regard to the subject matter of this Agreement. This Agreement and any
term of this Agreement may be amended, waived, discharged or terminated
only by a written instrument signed by the parties.
6.4 Notices, etc. All notices and other communications required
or permitted to be given pursuant to this Agreement shall be in writing
and shall be deemed given (a) four (4) days after being deposited in the
mail, certified air postage prepaid, return receipt requested, or (b)
when delivered by hand, by messenger or next Business Day or overseas
express air freight service (such as FedEX or DHL), or (c) on the date
of facsimile transmission (FAX) or electronic mail (email) if sent at
or prior to 5:30 p.m. (New York City time) on a Business Day, or the
next Business Day after the date of facsimile or email transmission, if
sent on a day that is not a Business Day or later than 5:30 p.m. (New
York City time) on a Business Day, in any case addressed as follows:
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To Purchaser:
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At the address or FAX number or email address of
Purchaser shown on the signature page of this Agreement
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To the Company:
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BioTime Inc.
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1301 Harbor Bay Parkway
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Alameda, California 94502
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Attention: Chief Financial Officer
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FAX: (510) 521- 3389
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Email: rpeabody@biotimemail.com
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Any party may change its address for the purpose of this Agreement by
giving notice to each other party in accordance with this Section.
6.5 Expenses. Purchaser and the Company shall bear their own
expenses, including fees and expenses of their own advisers, counsel,
accountants and other experts, if any, and all other expenses incurred
by the party incident to the negotiation, preparation, execution,
delivery and performance of this Agreement. The Company shall pay all
stamp taxes and other taxes and duties levied in connection with the
delivery of the Shares to Purchaser.
6.6 Brokers. Purchaser shall have no liability to any broker,
finder, investment banker, or other advisor retained or engaged by the
Company or any subsidiary of the Company in connection with the
transactions contemplated by this Agreement.
6.7 Titles and Subtitles. The titles or headings of the Articles
and Sections of this Agreement are for convenience of reference only and
are not to be considered in construing this Agreement.
6.8 Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, each such
unenforceable provision shall be excluded from this Agreement and the
balance of this Agreement shall be interpreted as if each such
unenforceable provision were so excluded, and the balance of this
Agreement as so interpreted shall be enforceable in accordance with its
terms.
6.9 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument. This Agreement may be
executed with signatures transmitted among the parties by facsimile or
by email delivery of a pdf format data file, and no party shall deny the
validity of a signature or this Agreement signed and so transmitted on
the basis that a signed document is represented by a copy or facsimile
or pdf format data file and not an original.
6.10 Termination. This Agreement may be terminated by Purchaser
with respect to itself, by written notice to the Company, or by the
Company with respect to all Purchasers, by written notice to all
Purchasers, in either case if the Closing has not been consummated on or
before the third Business Day after the Effective Date other than due to
a breach of this Agreement or any covenant or agreement hereunder by the
party seeking to so terminate this Agreement. Termination of this
Agreement will not affect the right of any party not in breach of its
covenants and agreements under this Agreement to sue for any breach of
this Agreement by the other party.
[Signatures on following page]
IN WITNESS WHEREOF, the undersigned parties have executed this Agreement
as of the date first above written.
COMPANY:
BioTime, Inc.
By:
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/s/Michael D. West
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Michael D. West
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Title:
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Chief Executive Officer
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PURCHASER:
Broadwood Partners, L.P.
Title:
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President of the General Partner (Broadwood Capital,
Inc.)
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Number of Shares Purchased:
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1,600,000
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Address:
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724 Fifth Avenue, 9th Floor
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New York, NY 10019
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FAX Number: (212) 508-5756
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Email:
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neal@braodwoodcapital.com
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12
Exhibit 99.1
BioTime,
Inc. Agrees to Sell $5.1 Million of Equity
ALAMEDA, Calif.--(BUSINESS WIRE)--October 2, 2015--BioTime, Inc. (NYSE
MKT and TASE: BTX), a clinical-stage regenerative medicine company with
a focus on pluripotent stem cell technology, today announced that it has
agreed to sell 1,600,000 of its common shares, no par value, at an
offering price of $3.19 per share to its largest shareholder, Broadwood
Partners, L.P. (“Broadwood”). Neal Bradsher, a BioTime director, is the
President of the investment manager of Broadwood. BioTime expects to
receive gross proceeds of approximately $5.1 million from the sale. The
price per share was the closing price of BioTime common shares on the
NYSE MKT on October 1, 2015, the last trading day before BioTime and the
investor agreed upon the purchase price. BioTime will pay no fees or
commissions to broker-dealers or any finder’s fees, nor will the Company
issue any stock purchase warrants, in connection with the offer and sale
of the shares. The sale is expected to close on October 7, 2015.
The common shares offered by BioTime in the registered direct offering
are being offered and sold pursuant to a prospectus supplement dated as
of October 2, 2015, which has been filed with the Securities and
Exchange Commission (“SEC”) in connection with a takedown from the
Company’s shelf registration statement on Form S-3 (File No.
333-201824), which became effective on February 12, 2015, and the base
prospectus dated February 12, 2015. Copies of the prospectus supplement,
together with the accompanying prospectus, can be obtained at the SEC’s
website at http://www.sec.gov.
This press release shall not constitute an offer to sell or the
solicitation of an offer to buy any of the securities described above,
nor shall there be any sale of any such securities in any jurisdiction
in which such offer, solicitation or sale would be unlawful prior to the
registration or qualification under the securities laws of such
jurisdiction.
About BioTime
BioTime, Inc., a pioneer in regenerative medicine, is a clinical-stage
biotechnology company. BioTime and its subsidiaries are leveraging their
industry-leading experience in pluripotent stem cell technology and a
broad intellectual property portfolio to facilitate the development and
use of cell-based therapies and gene marker-based molecular diagnostics
for major diseases and degenerative conditions for which there presently
are no cures. The lead clinical programs of BioTime and its subsidiaries
include OpRegen®, currently in a Phase I/IIa
trial for the treatment of the dry form of age-related macular
degeneration; AST-OPC1, currently in a Phase I/IIa trial for
spinal cord injuries; Renevia™, currently in a pivotal trial
in Europe as an injectable matrix for the engraftment of transplanted
cells to treat HIV-related lipoatrophy; and cancer diagnostics, nearing
the completion of initial clinical studies for the detection of lung,
bladder, and breast cancers. AST-VAC2, a cancer vaccine, is
in the pre-clinical trial stage.
BioTime’s subsidiaries include the publicly traded Asterias
Biotherapeutics, Inc., developing pluripotent stem cell-based therapies
in neurology and oncology, including AST-OPC1 and AST-VAC2; Cell
Cure Neurosciences Ltd., developing stem cell-based therapies for
retinal and neurological disorders, including OpRegen®; OncoCyte
Corporation, developing cancer diagnostics; LifeMap Sciences, Inc.,
developing and marketing an integrated online database resource for
biomedical and stem cell research; LifeMap Solutions, Inc., a subsidiary
of LifeMap Sciences, developing mobile health (mHealth) products; ES
Cell International Pte Ltd, which has developed cGMP-compliant human
embryonic stem cell lines that are being marketed by BioTime for
research purposes under the ESI BIO branding program; OrthoCyte
Corporation, developing therapies to treat orthopedic disorders,
diseases, and injuries; and ReCyte Therapeutics, Inc., developing
therapies to treat a variety of cardiovascular and related ischemic
disorders.
BioTime common stock is traded on the NYSE MKT and the TASE under the
symbol BTX. For more information, please visit www.biotimeinc.com or
connect with the company on Twitter, LinkedIn, Facebook, YouTube,
and Google+.
Forward-Looking Statements
Statements pertaining to future financial and/or operating results,
future growth in research, technology, clinical development, and
potential opportunities for BioTime and its subsidiaries, along with
other statements about the future expectations, beliefs, goals, plans,
or prospects expressed by management constitute forward-looking
statements. Any statements that are not historical fact (including, but
not limited to statements that contain words such as “will,” “believes,”
“plans,” “anticipates,” “expects,” “estimates”) should also be
considered to be forward-looking statements. Forward-looking statements
involve risks and uncertainties, including, without limitation, risks
inherent in the development and/or commercialization of potential
products, uncertainty in the results of clinical trials or regulatory
approvals, need and ability to obtain future capital, and maintenance of
intellectual property rights. Actual results may differ materially from
the results anticipated in these forward-looking statements and as such
should be evaluated together with the many uncertainties that affect the
business of BioTime and its subsidiaries, particularly those mentioned
in the cautionary statements found in BioTime’s Securities and Exchange
Commission filings. BioTime disclaims any intent or obligation to update
these forward-looking statements.
To receive ongoing BioTime corporate communications, please click on the
following link to join our email alert list: http://news.biotimeinc.com
CONTACT:
BioTime, Inc.
Dan L. Lawrence, 510-775-0510
dlawrence@biotimemail.com
or
Investor
Contact:
EVC Group, Inc.
Michael Polyviou, 646-445-4800
mpolyviou@evcgroup.com
or
Media
Contact:
Gotham Communications, LLC
Bill Douglass, 646-504-0890
bill@gothamcomm.com
or
Israel
Contact:
Gelbart-Kahana Investor Relations
Zeev Gelbart,
+972-3-6074717
zeevg@gk-biz.com
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