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DEFM14A
ASTERIAS BIOTHERAPEUTICS, INC. filed this Form DEFM14A on 02/04/2019
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Asterias fails to publicly reaffirm the Asterias Board Recommendation within 10 business days following written request by BioTime following any public statement by an Asterias stockholder or member of the Asterias Board expressing opposition to the Merger;

 

(i) the Merger Agreement is terminated by BioTime because (A) because the Merger had not been consummated by the Outside Date, (B) because Asterias stockholders failed to approve the Merger proposal, or (C) Asterias materially breached the Merger Agreement, and (ii) Asterias consummates an Acquisition Transaction within 12 months after such termination or Asterias enters into a definitive agreement providing for an Acquisition Transaction within 12 months after such termination and such Acquisition Transaction is consummated (whether or not within the 12 month period) (for purposes of this provision of the Merger Agreement, references to “twenty percent (20%)” in the definition of Acquisition Transaction are deemed to be references to “fifty percent (50%)”).

 

BioTime will be obligated to pay a termination fee of $2 million in cash to Asterias if:

 

the Merger Agreement is terminated by BioTime, prior to obtaining the approval of BioTime shareholders for the Merger, the BioTime Board has effected a BioTime Board Recommendation Change in compliance with the terms of the Merger Agreement; or
   
the Merger Agreement is terminated by Asterias, prior to obtaining the approval of BioTime shareholders for the Merger, (i) the BioTime Board or the BioTime Special Committee effects a BioTime Board Recommendation Change, (ii) BioTime fails to include the BioTime Board Recommendation in this joint proxy statement/prospectus or (iii) BioTime fails to publicly reaffirm the recommendation of the BioTime Board within ten business days after Asterias requests in writing following any public statement by a shareholder of BioTime or a member of the BioTime Board expressing opposition to the Merger or the terms included in the Merger Agreement.

 

In addition, either BioTime or Asterias must reimburse the expenses of the other party in certain circumstances.

 

Asterias will be obligated to pay up to $1.5 million of BioTime’s out-of-pocket fees, costs and expenses incurred in connection with the execution and performance of the Merger Agreement (which amount shall be credited against any termination fee payable by BioTime to Asterias) if:

 

either BioTime or Asterias terminates the Merger Agreement because Asterias fails to obtain the Asterias stockholder approval and the approval of BioTime’s shareholders has been obtained; or
   
BioTime terminates the Merger Agreement due to Asterias’ material breach of the Merger Agreement.

 

BioTime will be obligated to pay up to $1.5 million of Asterias’ out-of-pocket fees, costs and expenses incurred in connection with the execution and performance of the Merger Agreement (which amount shall be credited against any termination fee payable by Asterias to BioTime) if:

 

either BioTime or Asterias terminates the Merger Agreement because BioTime fails to obtain the BioTime shareholder approval and the approval of Asterias’ stockholders has been obtained; or
   
Asterias terminates the Merger Agreement due to BioTime’s material breach of the Merger Agreement.

 

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