Exhibit 10.38
Agreement
08-0155A
FIRST AMENDMENT OF COMMERCIAL
LICENSE AND OPTION AGREEMENT
This First
Amendment of Commercial License and Option Agreement is made
effective the 11th day of March 2009 (“Amendment
Date”), by and between the Wisconsin Alumni Research
Foundation (hereinafter called “WARF”), a nonprofit
Wisconsin corporation, and BioTime, Inc. (hereinafter called
“Licensee”), a corporation organized and existing under
the laws of California.
WHEREAS, WARF and Licensee have entered into a Commercial
License and Option Agreement (“Agreement”) with respect
to certain Licensed Patents and Licensed Materials, as defined
therein.
WHEREAS, the parties desire to amend certain license fee,
maintenance fee, and patent cost payment provisions.
NOW,
THEREFORE, in
consideration of the mutual covenants and agreements set forth
below, the parties covenant and agree as follows:
1. Section
4A of the Agreement is amended to read as follows:
“A.
License and Maintenance Fees .
Licensee agrees
to pay to WARF a license fee of $295,000 due and payable as
follows: (1) the first installment of $10,000 shall be
paid in cash within thirty (30) days after the Effective Date of
this Agreement, (2) the second installment of $70,000 shall be paid
within ten (10) days after the Amendment Date by issuing to WARF a
number of common shares, no par value, of Licensee
(“Shares”) having a Market Value of $70,000, and (3)
the remaining $215,000 shall be paid in cash on the earlier of: (i)
thirty (30) days after Licensee raises $5,000,000 or more of new
equity financing or (ii) March 2, 2010. A maintenance
fee of $25,000 shall be due annually on March 2 of each year
commencing March 2, 2010 and continuing thereafter for the term of
this Agreement. “Market Value” of the Shares
shall be the aggregate market value of the Shares based on the
closing price per share for such Shares as reported on the OTC
Bulletin Board on the Amendment Date.”
2. Section
4C of the Agreement is amended to read as follows:
“C.
Patent Fees and Costs .
Licensee also
agrees to pay to WARF $25,000 toward reimbursement of the costs
associated with preparing, filing and maintaining the Licensed
Patents, which shall be due and payable as follows: the
first installment of $5,000 shall be due within thirty (30) days of
the Effective Date of this Agreement, and the remaining $20,000
shall be due on the earlier of (i) thirty (30) days after Licensee
raises $5,000,000 or more of new equity financing or (ii) March 2,
2010.”
