|ASTERIAS BIOTHERAPEUTICS, INC. filed this Form DEFM14A on 02/04/2019|
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.
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requiring such greater vote shall not be altered, amended or repealed except by such greater vote unless otherwise provided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.
BioTime Articles do not modify these provisions.
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).
Charter does not modify these provisions.
BioTime Bylaws may be amended or repealed by the vote or written consent of holders of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
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the authorized number of directors of BioTime, the Bylaws may be adopted, amended or repealed by the BioTime Board.
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.
Charter and Bylaws provides that the Asterias Board is expressly authorized to adopt, amend or repeal Asterias’
on Director Liability|
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
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.
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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