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SEC Filings

DEFM14A
ASTERIAS BIOTHERAPEUTICS, INC. filed this Form DEFM14A on 02/04/2019
Entire Document
 
 

 

BioTime, Inc.   Asterias Biotherapeutics, Inc.
     
Amendment of Charter
 

The CCC provides that, after any shares have been issued, amendments to a corporation’s articles of incorporation may be adopted if approved by the board and approved by the outstanding shares, either before or after the approval by the board; provided, however, that the following may be approved by the board alone: (a) unless the corporation has more than one class of shares outstanding, an amendment effecting only a stock split; or (b) an amendment deleting the initial street address and initial mailing address of the corporation, the names and addresses of the first directors, or the name and address of the initial agent.

 

Where the articles require for corporate action the vote of a larger proportion or of all of the shares of any class or series, or of a larger proportion or of all of the directors, than is otherwise required by the CCC, the provision in the articles requiring such greater vote shall not be altered, amended or repealed except by such greater vote unless otherwise provided in the articles.

 

The BioTime Articles do not modify these provisions.

 

The DGCL provides that an amendment to a corporation’s certificate of incorporation requires that (i) the board of directors adopt a resolution setting forth the proposed amendment and either call a special meeting of the stockholders entitled to vote in respect thereof for consideration of such amendment or direct that the amendment be considered at the next annual meeting of the stockholders and (ii) the stockholders approve the amendment by a majority of outstanding shares entitled to vote (and a majority of the outstanding shares of each class entitled to vote, if any).

 

Asterias’ Charter does not modify these provisions.

     
Amendment of Bylaws
 

The BioTime Bylaws may be amended or repealed by the vote or written consent of holders of a majority of the outstanding shares entitled to vote, provided, however, that, if BioTime’s Articles set forth the number of authorized directors of the corporation, the authorized number of directors may be changed only by an amendment of the articles of incorporation.

 

Subject to the rights of the shareholders to amend the BioTime Bylaws and other than a bylaw or an amendment of a bylaw changing the authorized number of directors of BioTime, the Bylaws may be adopted, amended or repealed by the BioTime Board.

 

Under the DGCL, the power to adopt, amend or repeal Bylaws shall be in the stockholders entitled to vote. Notwithstanding the foregoing, a corporation may, in its certificate of incorporation, confer the power to adopt, amend or repeal Bylaws upon the directors. The fact that such power has been so conferred upon the directors, will not divest the stockholders or members of the power, nor limit their power, to adopt, amend or repeal Bylaws.

 

Asterias’ Charter and Bylaws provides that the Asterias Board is expressly authorized to adopt, amend or repeal Asterias’ Bylaws.

     
Limitation on Director Liability
 
BioTime’s Articles provide that the liability of directors to BioTime for monetary damages shall be eliminated to the fullest extent permissible under California law. The CCC permits a California corporation to adopt a such a provision reducing or eliminating the liability of a director for breach of the fiduciary duty of care, provided that such liability does not arise from certain proscribed conduct (including intentional misconduct and breach of duty of loyalty). The CCC in this regard relates only to derivative actions (those brought by shareholders on behalf of the corporation) and does not apply to claims brought by third parties.  

The DGCL provides that a corporation may include in its certificate of incorporation a provision eliminating the liability of a director to the corporation or its stockholders for monetary damages for a breach of the director’s fiduciary duties, except liability for any breach of the director’s duty of loyalty to the corporation’s stockholders, for acts or omissions not in good faith or that involve intentional misconduct or knowing violation of law, under Section 174 of the DGCL (which deals generally with unlawful payments of dividends, stock repurchases and redemptions) and for any transaction from which the director derived an improper personal benefit.

 

Asterias’ Charter provides that, to the fullest extent permitted by the DGCL, directors of Asterias shall not be liable to Asterias or its stockholders for monetary damages for breach of fiduciary duty as a director.

 

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