Amended Annual Report (10-k/a)
May 01 2019 - 5:04PM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
10-K/A
(Amendment
No. 2)
☒ ANNUAL REPORT PURSUANT TO SECTION 13
OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For
the fiscal year ended December 31, 2018
OR
☐
TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For
the transition period from___________ to __________
Commission
file number 1-12830
BioTime,
Inc.
(Exact
name of registrant as specified in its charter)
California
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94-3127919
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(State
or other jurisdiction of
incorporation or organization)
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(I.R.S.
Employer
Identification No.)
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1010
Atlantic Avenue, Suite 102
Alameda,
California 94501
(Address
of principal executive offices) (Zip Code)
Registrant’s
telephone number, including area code
(510) 521-3390
Securities
registered under Section 12(b) of the Act:
Title
of each class
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Trading
Symbol(s)
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Name
of each exchange on which registered
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Common
stock, no par value
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BTX
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NYSE
American
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Securities
registered under Section 12(g) of the Act:
None.
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐
No
☒
Indicate
by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ☐
No ☒
Indicate
by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90 days. Yes ☒ No ☐
Indicate
by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant
to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that
the registrant was required to submit such files). Yes ☒ No ☐
Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not
contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer ☐
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Accelerated
filer ☒
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Non-accelerated
filer ☐
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Smaller
reporting company ☒
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Emerging
growth company ☐
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If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided to Section 13(a) of the Exchange Act. ☐
Indicate
by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act): Yes ☐ No
☒
The
approximate aggregate market value of voting common shares held by non-affiliates computed by reference to the price at which
common shares were last sold as of June 30, 2018 was $176.7 million. Shares held by each executive officer and director and by
each person who beneficially owns more than 5% of the outstanding common shares have been excluded in that such persons may under
certain circumstances be deemed to be affiliates. This determination of affiliate status is not necessarily a conclusive determination
for other purposes.
The
number of common shares outstanding as of April 22, 2019 was 149,642,861.
Documents
Incorporated by Reference
None.
EXPLANATORY
NOTE
This
Amendment No. 2 on Form 10-K/A (this “Amendment”) amends the Annual Report on Form 10-K for the fiscal year ended
December 31, 2018 (the “Original Report”) of BioTime, Inc. (the “Company”), as filed with the Securities
and Exchange Commission (“SEC”) on March 14, 2019, as amended by Amendment No. 1 on Form 10-K/A (the “First
Amendment”) filed with the SEC on April 30, 2019. This Amendment is being filed solely to amend Item 13 of Part III of the
First Amendment to correct a typographical error relating to the members of the Company’s board of directors who were directors
of Asterias Biotherapeutics, Inc. (“Asterias”) prior to the Company’s acquisition of Asterias on March 8, 2019.
Except as set forth above, this Amendment does not amend, modify, or otherwise update any other information in the Original Report
or the First Amendment. Accordingly, this Amendment should be read in conjunction with the Original Report, the First Amendment
and with the Company’s filings with the SEC subsequent to the filing of the Original Report and the First Amendment. In
addition, this Amendment does not reflect events that may have occurred after the date the Original Report was filed with the
SEC or after the date the First Amendment was filed with the SEC.
Because
no financial statements of the registrant have been included in this Amendment and this Amendment does not contain or amend any
disclosure with respect to Items 307 and 308 of Regulation S-K, paragraphs 3, 4 and 5 of the new certifications pursuant to Section
302 of the Sarbanes-Oxley Act of 2002 have been omitted.
References
to “BioTime”, “Company,” “we” and “our” means BioTime, Inc. and its subsidiaries
and affiliates unless the context otherwise indicates. Capitalized terms used in this Amendment but not defined in this Amendment,
have the meanings given to them in the Original Report or the First Amendment, as applicable.
PART
III
ITEM
13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
Related
Transactions
Since
July 1, 2009, Alfred D. Kingsley has made available to us the use of approximately 900 square feet of office space in New York
City. We pay the office building owner $5,050 per month for the use of the space.
Shared
Facilities and Services Agreement with OncoCyte and AgeX
During
2018 and 2017, we invoiced OncoCyte $1.6 million each year for certain “Use Fees” and other charges under the terms
of a Shared Facilities and Services Agreement (the “Shared Facilities Agreement”) between BioTime and OncoCyte. Under
the Shared Facilities Agreement, BioTime allows OncoCyte to use BioTime’s premises and equipment located at Alameda, California
for the sole purpose of conducting business. BioTime also provides accounting, billing, bookkeeping, payroll, treasury, payment
of accounts payable, and other similar administrative services to OncoCyte. BioTime may also provide the services of attorneys,
accountants, and other professionals who may also provide professional services to BioTime and its other subsidiaries. BioTime
also has provided OncoCyte with the services of laboratory and research personnel, including BioTime employees and contractors,
for the performance of research and development work for OncoCyte at the premises.
BioTime
charges OncoCyte a “Use Fee” for services provided and usage of BioTime facilities, equipment, and supplies. For each
billing period, BioTime prorates and allocates to OncoCyte costs incurred, including costs for services of BioTime employees and
use of equipment, insurance, leased space, professional services, software licenses, supplies and utilities. The allocation of
costs depends on key cost drivers, including actual documented use, square footage of facilities used, time spent, costs incurred
by BioTime for OncoCyte, or upon proportionate usage by BioTime and OncoCyte, as reasonably estimated by BioTime. BioTime, at
its discretion, has the right to charge OncoCyte a 5% markup on such allocated costs. In addition to the Use Fees, OncoCyte will
reimburse BioTime for any out of pocket costs incurred by BioTime for the purchase of office supplies, laboratory supplies, and
other goods and materials and services for the account or use of OncoCyte.
BioTime
entered into a similar Shared Facilities Agreement with AgeX in 2018 and we invoiced them $0.6 million for Use Fees and expenses
for that period.
BioTime
also had a similar Shared Facilities Agreement with Asterias and during 2017 we invoiced Asterias $0.1 million for Use Fees and
expenses. This Agreement did not extend into 2018.
Our
Chairman, Mr. Kingsley, one of our directors, Michael H. Mulroy, and an officer of Broadwood, were directors of Asterias
prior to our acquisition of Asterias on March 8, 2019. All of our directors and executive officers, and beneficial owners of more
than 5% of our outstanding common stock (“5% Shareholders”) as reported in our Amendment No. 1 on Form 10-K/A filed
with the SEC on April 30, 2019, in the aggregate beneficially owned approximately 10.2% of the outstanding shares of Asterias
common stock as of December 31, 2018, and approximately 10.2% of the outstanding shares of Asterias common stock immediately prior
to the acquisition on March 8, 2019.
Mr.
Kingsley and Cavan Redmond are directors of OncoCyte. Broadwood beneficially owns more than 10% of the outstanding common
stock of OncoCyte, and all of our directors and executive officers and 5% Shareholders as reported in this Amendment No. 1 on
Form 10-K, including Neal C. Bradsher who may be deemed to beneficially own the shares owned by Broadwood, in the aggregate
beneficially own approximately 18.9% of the outstanding shares of OncoCyte common stock as of April 22, 2019. The fact that certain
of our executive officers and directors own shares of OncoCyte common stock should not be considered to mean that they constitute
or are acting in concert as a “group” with respect to those shares or that they otherwise share power or authority
to vote or dispose of the shares that each of them own.
Related
Person Transaction Policy
We
have adopted a Related Person Transaction Policy that applies to transactions exceeding $120,000 in which any of our officers,
directors, beneficial owners of more than 5% of our common shares, or any member of their immediate family, has a direct or indirect
material interest, determined in accordance with the policy (a “Related Person Transaction”). A Related Person Transaction
must be reported to our outside legal counsel, our Chief Operating Officer, and our Chief Financial Officer, and will be subject
to review and approval by our Audit Committee prior to effectiveness or consummation, to the extent practical. In addition, any
Related Person Transaction that is ongoing in nature will be reviewed by the Audit Committee annually to ensure that the transaction
has been conducted in accordance with any previous approval and that all required disclosures regarding the transaction are made.
As
appropriate for the circumstances, the Audit Committee will review and consider:
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the
interest of the officer, director, beneficial owner of more than 5% of our common shares, or any member of their immediate
family (“Related Person”) in the Related Person Transaction;
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the
approximate dollar value of the amount involved in the Related Person Transaction;
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the
approximate dollar value of the amount of the Related Person’s interest in the transaction without regard to the amount
of any profit or loss;
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whether
the transaction was undertaken in the ordinary course of our business;
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whether
the transaction with the Related Person is proposed to be, or was, entered into on terms no less favorable to us than terms
that could have been reached with an unrelated third party;
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the
purpose of, and the potential benefits to the transaction to us; and
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any
other information regarding the Related Person Transaction or the Related Person in the context of the proposed transaction
that would be material to investors in light of the circumstances of the particular transaction.
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The
Audit Committee will review all relevant information available to it about a Related Person Transaction. The Audit Committee may
approve or ratify the Related Person Transaction only if the Audit Committee determines that, under all of the circumstances,
the transaction is in, or is not in conflict with, our best interests. The Audit Committee may, in its sole discretion, impose
such conditions as it deems appropriate on us or the Related Person in connection with approval of the Related Person Transaction.
A
copy of our Related Person Transaction Policy can be found on our website at
www.biotimeinc.com
.
Director
Independence
Our
Board has determined that Deborah Andrews, Don M. Bailey, Neal C. Bradsher, Stephen C. Farrell, Michael H. Mulroy, Cavan Redmond,
and Angus C. Russell qualify as “independent” in accordance with Section 803(A) of the NYSE American Company Guide.
The members of our Audit Committee meet the additional independence standards under Section 803(B)(2) of the NYSE American Company
Guide and Section 10A-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the members
of our Compensation Committee meet the additional independence standards under Section 805(c)(1) of the NYSE American Company
Guide. Our independent directors received no compensation or remuneration for serving as directors except as disclosed under “Director
Compensation” in Item 11. None of these directors, nor any of the members of their families, have participated in any transaction
with us that would disqualify them as “independent” directors under the standards described above.
SIGNATURES
Pursuant
to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report
to be signed on its behalf by the undersigned, thereunto duly authorized.
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BIOTIME,
INC.
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Date:
May 1, 2019
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By:
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/s/
Brian M. Culley
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Brian
M. Culley
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Chief
Executive Officer
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