UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d)
of
the Securities Exchange Act of 1934
Date
of Report: March 1, 2019
BioTime,
Inc.
(Exact
name of registrant as specified in its charter)
California
|
|
001-12830
|
|
94-3127919
|
(State
or other jurisdiction
of
incorporation)
|
|
(Commission
File
Number)
|
|
(IRS
Employer
Identification
No.)
|
1010
Atlantic Avenue
Suite
102
Alameda,
California 94501
(Address
of principal executive offices)
(510)
521-3390
(Registrant’s
telephone number, including area code)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
☒
|
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
|
|
|
☐
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
|
|
|
☐
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
|
|
|
☐
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
|
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§
230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging
growth company ☐
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 pursuant to Section 13(a) of the Exchange Act. ☐
Item
8.01. Other Events
The
purpose of this Current Report on Form 8-K is to amend and supplement the joint proxy statement/prospectus included in Amendment
No. 1 to the Registration Statement on Form S-4, file No. 333-229141 filed by BioTime, Inc. (“
BioTime
”) with
the Securities and Exchange Commission (the “
SEC
”) on January 14, 2019 (the “
Registration Statement
”),
and included in the definitive proxy statement filed by Asterias Biotherapeutics, Inc. (“
Asterias
”) with the
SEC on February 4, 2019 (the “
Joint Proxy Statement
”), relating to the Agreement and Plan of Merger, dated
November 7, 2018 (the “
Merger Agreement
”), by and among Asterias, BioTime and Patrick Merger Sub, Inc. (“Merger
Sub”). The Joint Proxy Statement was first mailed to the stockholders of Asterias and shareholders of BioTime on or about
February 6, 2019.
On
February 19, 2019, a putative class action lawsuit relating to the Merger Agreement was filed on behalf of Asterias stockholders
in the Superior Court of the State of California in the County of Alameda (the “
Superior Court
”) against Asterias,
the members of Asterias’ board of directors, BioTime, Merger Sub, Neal Bradsher, Broadwood Capital, Inc. and Broadwood Capital
Partners, L.P. The lawsuit asserts claims for breach of fiduciary duty and aiding and abetting breach of fiduciary duty, alleging
that the consideration Asterias shareholders are to receive in the Merger is unfair, the merger is the product of an unfair process,
and the Joint Proxy Statement omits certain allegedly material information.
The complaint
seeks, injunctive relief or rescissory damages and an award of plaintiffs’ expenses and attorneys’ fees.
The
defendants specifically deny all allegations in the litigation, including that any additional disclosure was or is required
and
intend to defend it vigorously. However, to moot the disclosure claims in the complaint,
Asterias and BioTime make the
following supplemental disclosures to the Joint Proxy Statement relating to the proposed merger, which supplemental disclosures
are set forth below (the “
Supplemental Disclosures
”). Nothing in this Current Report on Form 8-K shall be deemed
an admission of the legal necessity or materiality under applicable laws of any of the disclosures set forth herein.
SUPPLEMENTAL
DISCLOSURES
This
supplemental information should be read in conjunction with the Joint Proxy Statement, which should be read in its entirety. The
information contained herein is incorporated by reference into the Joint Proxy Statement. Defined terms used but not defined herein
have the meanings set forth in the Joint Proxy Statement, and all page references refer to pages of the Joint Proxy Statement.
Background
of the Merger
The
following disclosure is to be added after the last sentence in the fifth paragraph of page 47, under the header “Background
of the Merger.”
Although
the Asterias Special Committee requested that management identify a financial advisor, the Asterias Special Committee retained
the full power to evaluate the financial advisor and whether to engage the financial advisor or to select an alternative advisor.
Although Mr. Mulroy was a member on the board of directors of Asterias and BioTime, the Special Committee did not believe that
Mr. Mulroy’s involvement as part of the transaction process would negatively impact the Special Committee’s ability
to negotiate the best deal possible for Asterias stockholders because the Special Committee was mindful of Mr. Mulroy’s
position on the BioTime board throughout the process and ultimately held the sole and complete authority to recommend a deal with
BioTime or a third party, or to recommend an alternative strategic strategy, to the Asterias Board.
The
following disclosure is to be added after the penultimate sentence in the last paragraph of page 49, under the header “Background
of the Merger.”
Raymond
James shared its belief with the Asterias Board that under then existing market conditions, it would be very difficult for Asterias
to be able to raise adequate funds to continue operating as an independent company.
The
following disclosure is to be added after the last sentence in the second paragraph of page 50, under the header “Background
of the Merger.”
Under
the counteroffer proposed by Asterias, there were no discussions with respect to whether any specific employee or executive of
Asterias would be retained by BioTime following the completion of the merger, and this was never included as a condition to the
merger in any discussion or draft of the Merger Agreement.
The
following disclosure is to be added after the penultimate sentence in the fifth paragraph of page 50, under the header “Background
of the Merger.”
The
Asterias Special Committee required BioTime to agree to vote its Asterias shares in favor of the Merger because the Asterias Special
Committee felt that it was in the Asterias stockholders’ best interest to seek deal certainty once the Merger Agreement
was signed and announced and BioTime’s agreement to vote its shares increased deal certainty. The Asterias Special Committee
felt that Asterias might not be able to continue as a going concern if an announced merger was not consummated. The Asterias Special
Committee ultimately agreed not to require a price collar as a concession to obtain a higher premium and deal certainty.
The
following disclosure is to be added after the last sentence in the second paragraph of page 52, under the header “Background
of the Merger.”
The
Asterias Special Committee did not engage a valuation expert to value the AgeX distribution. The Asterias Special Committee believed
that cost and timing considerations outweighed potential benefits of seeking a valuation expert to value the AgeX distribution,
and the Asterias Special Committee believed that the complications of negotiating a mechanism to adjust the exchange ratio based
on an AgeX valuation would have resulted in substantial delay and deal risk.
The
following disclosure is to be added after the second sentence in the third paragraph of page 52, under the header “Background
of the Merger.”
In
determining that the exchange ratio of 0.71 BioTime Common Shares for each share of Asterias Common Stock, which would result
in an approximate 30% premium for Asterias stockholders, was the best offer that the Asterias Special Committee would get from
BioTime, the Asterias Special Committee considered, among other things, that this exchange ratio was within the range discussed
with Raymond James at recent meetings of the Asterias Special Committee.
The
following disclosure is to be added after the last sentence in the last paragraph of page 52, under the header “Background
of the Merger.”
Messrs.
Mulroy and Kingsley recused themselves from the vote of the Asterias Board because they were also members of the BioTime board
of directors.
The
following disclosure is to be added after the first sentence in the fifth paragraph of page 53, under the header “Background
of the Merger.”
The
Special Committee requested that Mr. Mulroy prepare the “go-shop” list because Mr. Mulroy, as the Chief Executive
Officer of Asterias, was most informed as to which third parties had prior contact with Asterias and which third parties might
potentially be interested in a transaction with Asterias. Mr. Mulroy prepared the initial draft and discussed it with the Asterias
management team; following such discussions the list was finalized based on the input from the Asterias management team.
The
following disclosure is to be added after the only sentence in the second paragraph of page 54, under the header “Background
of the Merger.”
In
addition, during the “go-shop” period, no third party responded in any way that suggested that it would be interested
in making an alternative proposal outside of the “go-shop” period. Most of the parties that were contacted failed
to respond entirely and those that did respond indicated that they were not a position to pursue a proposal with Asterias during
the “go-shop” period or thereafter.
Opinion
of Asterias’ Financial Advisor
The
following disclosure is to be added after the second paragraph of page 73, under the header “Selected Companies Analysis
of Asterias.”
($
in millions, except per share data)
Company
|
|
Ticker
|
|
|
Share Price
on 11/02/18
|
|
|
Equity
Value
(1)
|
|
|
|
|
|
|
|
|
|
|
|
Affimed N.V.
|
|
|
AFMD
|
|
|
$
|
4.10
|
|
|
$
|
256.0
|
|
OncoSec Medical Incorporated
|
|
|
ONCS
|
|
|
|
1.88
|
|
|
|
111.4
|
|
Oncolytics Biotech Inc.
|
|
|
ONCY
|
|
|
|
2.81
|
|
|
|
47.1
|
|
Neuralstem, Inc.
|
|
|
CUR
|
|
|
|
0.56
|
|
|
|
10.2
|
|
Advaxis, Inc.
|
|
|
ADXS
|
|
|
|
0.56
|
|
|
|
39.2
|
|
InVivo Therapeutics Holdings Corp.
|
|
|
NVIV
|
|
|
|
2.05
|
|
|
|
15.9
|
|
(1)
Market capitalization on a fully diluted basis at close on 11/02/18.
The
following disclosure is to be added after the fourth paragraph of page 73, under the header “Selected Companies Analysis
of BioTime.”
($
in millions, except per share data)
Company
|
|
Ticker
|
|
|
Share
Price
on 11/02/18
|
|
|
Equity
Value
(1)
|
|
|
|
|
|
|
|
|
|
|
|
Mesoblast
Limited
|
|
|
MESO
|
|
|
$
|
7.18
|
|
|
$
|
1,054.4
|
|
Athersys,
Inc.
|
|
|
ATHX
|
|
|
|
2.02
|
|
|
|
279.9
|
|
Celyad
SA
|
|
|
CYAD
|
|
|
|
28.10
|
|
|
|
295.2
|
|
Pluristem
Therapeutics Inc.
|
|
|
PSTI
|
|
|
|
1.17
|
|
|
|
132.9
|
|
Bellicum
Pharmaceuticals, Inc.
|
|
|
BLCM
|
|
|
|
4.57
|
|
|
|
198.1
|
|
Ophthotech
Corporation
|
|
|
OPHT
|
|
|
|
2.29
|
|
|
|
94.5
|
|
Capricor
Therapeutics, Inc.
|
|
|
CAPR
|
|
|
|
1.07
|
|
|
|
33.0
|
|
(1)
Market capitalization on a fully diluted basis at close on 11/02/18.
The
following disclosure is to be added after the table following the third paragraph of page 74, under the header “Selected
Transaction Analysis - Asterias.”
($
in millions)(1)
Announce Date
|
|
Target
|
|
Buyer
|
|
Upfront
Payment
|
|
|
|
|
|
|
|
|
|
10/09/2018
|
|
Vector Neurosciences Inc.
|
|
MeiraGTx Holdings plc
|
|
$
|
2.7
|
|
09/20/2018
|
|
Celenex, Inc.
|
|
Amicus Therapeutics, Inc.
|
|
|
100.0
|
|
09/14/2018
|
|
Bonti, Inc.
|
|
Allergan plc
|
|
|
195.0
|
|
12/12/2017
|
|
Repros Therapeutics Inc.
|
|
Allergan plc
|
|
|
26.5
|
|
11/02/2017
|
|
Ocera Therapeutics, Inc.
|
|
Mallinckrodt plc
|
|
|
42.0
|
|
09/18/2017
|
|
Dimension Therapeutics, Inc.
|
|
Ultragenyx Pharmaceutical Inc.
|
|
|
151.2
|
|
06/27/2017
|
|
Altor BioScience Corporation
|
|
NantCell, Inc.
|
|
|
96.7
|
|
01/24/2017
|
|
GenVec, Inc.
|
|
Intrexon Corporation
|
|
|
15.0
|
|
(1)
The Upfront Payment Amount does not include the value of any future consideration that may be payable in the transaction, including,
without limitation, in connection with any contingent value rights.
The
following disclosure is to be added after the table following the first paragraph of page 75, under the header “Selected
Transaction Analysis - BioTime.”
($
in millions)(1)
Announce Date
|
|
Target
|
|
Buyer
|
|
Upfront
Payment
|
|
|
|
|
|
|
|
|
|
10/09/2018
|
|
Vector Neurosciences Inc.
|
|
MeiraGTx Holdings plc
|
|
$
|
2.7
|
|
09/26/2018
|
|
Syntimmune, Inc.
|
|
Alexion Pharmaceuticals, Inc.
|
|
|
400.0
|
|
09/20/2018
|
|
Celenex, Inc.
|
|
Amicus Therapeutics, Inc.
|
|
|
100.0
|
|
09/14/2018
|
|
Bonti, Inc.
|
|
Allergan plc
|
|
|
195.0
|
|
01/31/2018
|
|
Cascadian Therapeutics, Inc.
|
|
Seattle Genetics, Inc.
|
|
|
623.1
|
|
12/12/2017
|
|
Repros Therapeutics Inc.
|
|
Allergan plc
|
|
|
26.5
|
|
11/02/2017
|
|
Ocera Therapeutics, Inc.
|
|
Mallinckrodt plc
|
|
|
42.0
|
|
09/18/2017
|
|
Dimension Therapeutics, Inc.
|
|
Ultragenyx Pharmaceutical Inc.
|
|
|
151.2
|
|
06/27/2017
|
|
Altor BioScience Corporation
|
|
NantCell, Inc.
|
|
|
96.7
|
|
05/23/2017
|
|
True North Therapeutics, Inc.
|
|
Bioverativ Inc.
|
|
|
400.0
|
|
01/24/2017
|
|
GenVec, Inc.
|
|
Intrexon Corporation
|
|
|
15.0
|
|
(1)
The Upfront Payment Amount does not include the value of any future consideration that may be payable in the transaction, including,
without limitation, in connection with any contingent value rights.
The
following disclosure is to be added after the last paragraph of page 75, under the header “Discounted Cash Flow Analysis
of Asterias.”
The
Discounted Cash Flow analysis assumes no terminal value consistent with industry convention, which reflects the expectation that
generic or biosimilar products will capture most (if not all) market share once the regulatory exclusivity period has expired.
The
following disclosure is to be added after the second paragraph of page 76, under the header “Discounted Cash Flow Analysis
of BioTime.”
Raymond
James estimated a range of equity values for BioTime based upon the present value of Asterias’ estimated unlevered free
cash flows, defined as operating income less provisions for taxes plus tax shield from net operating losses carryforward, for
fiscal years ended December 31, 2019 through December 31, 2028, in each case with risk adjustments as provided by Asterias and
approved for Raymond James’ use by the Asterias Special Committee.
The
Discounted Cash Flow analysis assumes no terminal value consistent with industry convention, which reflects the expectation that
generic or biosimilar products will capture most (if not all) market share once the regulatory exclusivity period has expired.
The
following disclosure is to be added after the last sentence in the first paragraph of page 78, under the header “Material
Financial Analyses.”
During
the two years preceding the date of Raymond James’s written opinion, Raymond James has not received any compensation from
Neal Bradsher, Broadwood Capital, Inc., Broadwood Partners, L.P., OncoCyte, or AgeX for any engagement or services performed.
There are no material relationships that existed during the two years prior to the date of the opinion or are mutually understood
to be contemplated in which any compensation was received or is intended to be received as a result of the relationship between
Raymond James, on one hand, and Neal Bradsher, Broadwood Capital, Inc., Broadwood Partners, L.P., OncoCyte, or AgeX, on the other
hand.
Certain
BioTime and Asterias Unaudited Prospective Financial Information
The
following disclosure is to be added at the beginning of page 81, after the Risk Adjusted Net Income/Loss information under the
heading “Projections Used By Raymond James With Respect to the Future Operations of Asterias.”
Asterias
Risk Adjusted Income Statement Projections (all line items are risk adjusted)
|
|
2019E
|
|
|
2020E
|
|
|
2021E
|
|
|
2022E
|
|
|
2023E
|
|
|
2024E
|
|
|
2025E
|
|
|
2026E
|
|
|
2027E
|
|
|
2028E
|
|
|
2029E
|
|
|
2030E
|
|
|
2031E
|
|
|
2032E
|
|
|
2033E
|
|
|
2034E
|
|
|
2035E
|
|
|
2036E
|
|
|
2037E
|
|
|
2038E
|
|
Revenue
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
9.0
|
|
|
|
44.8
|
|
|
|
90.5
|
|
|
|
128.9
|
|
|
|
170.9
|
|
|
|
203.3
|
|
|
|
228.8
|
|
|
|
242.4
|
|
|
|
251.7
|
|
|
|
260.1
|
|
|
|
268.7
|
|
|
|
277.6
|
|
|
|
286.8
|
|
COGS
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
(2.1
|
)
|
|
|
(11.0
|
)
|
|
|
(21.5
|
)
|
|
|
(30.7
|
)
|
|
|
(40.7
|
)
|
|
|
(46.2
|
)
|
|
|
(52.0
|
)
|
|
|
(55.1
|
)
|
|
|
(57.2
|
)
|
|
|
(59.1
|
)
|
|
|
(61.1
|
)
|
|
|
(63.1
|
)
|
|
|
(65.2
|
)
|
Gross Profit/(Loss)
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
6.8
|
|
|
|
33.8
|
|
|
|
68.9
|
|
|
|
98.2
|
|
|
|
130.2
|
|
|
|
157.1
|
|
|
|
176.8
|
|
|
|
187.3
|
|
|
|
194.5
|
|
|
|
201.0
|
|
|
|
207.6
|
|
|
|
214.5
|
|
|
|
221.6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total OpEx
|
|
|
(11.2
|
)
|
|
|
(17.3
|
)
|
|
|
(15.3
|
)
|
|
|
(15.5
|
)
|
|
|
(15.3
|
)
|
|
|
(13.9
|
)
|
|
|
(13.2
|
)
|
|
|
(9.8
|
)
|
|
|
(6.0
|
)
|
|
|
(10.0
|
)
|
|
|
(13.5
|
)
|
|
|
(17.3
|
)
|
|
|
(20.3
|
)
|
|
|
(22.7
|
)
|
|
|
(24.0
|
)
|
|
|
(24.9
|
)
|
|
|
(25.7
|
)
|
|
|
(26.5
|
)
|
|
|
(27.4
|
)
|
|
|
(28.3
|
)
|
EBITDA
|
|
|
(11.2
|
)
|
|
|
(17.3
|
)
|
|
|
(15.3
|
)
|
|
|
(15.5
|
)
|
|
|
(15.3
|
)
|
|
|
(13.9
|
)
|
|
|
(13.2
|
)
|
|
|
(2.9
|
)
|
|
|
27.8
|
|
|
|
58.9
|
|
|
|
84.7
|
|
|
|
112.9
|
|
|
|
136.8
|
|
|
|
154.1
|
|
|
|
163.4
|
|
|
|
169.7
|
|
|
|
175.3
|
|
|
|
181.1
|
|
|
|
187.1
|
|
|
|
193.3
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Provision for Income tax
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
(6.9
|
)
|
|
|
(14.7
|
)
|
|
|
(21.2
|
)
|
|
|
(28.2
|
)
|
|
|
(34.2
|
)
|
|
|
(38.5
|
)
|
|
|
(40.8
|
)
|
|
|
(42.4
|
)
|
|
|
(43.8
|
)
|
|
|
(45.3
|
)
|
|
|
(46.8
|
)
|
|
|
(48.3
|
)
|
Offset from NOL Carryforward
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
6.7
|
|
|
|
14.5
|
|
|
|
16.8
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
Net Income/(Loss)
|
|
$
|
(12.2
|
)
|
|
$
|
(18.3
|
)
|
|
$
|
(16.3
|
)
|
|
$
|
(16.5
|
)
|
|
$
|
(16.3
|
)
|
|
$
|
(14.9
|
)
|
|
$
|
(14.2
|
)
|
|
$
|
(3.9
|
)
|
|
$
|
26.5
|
|
|
$
|
57.7
|
|
|
$
|
79.3
|
|
|
$
|
83.6
|
|
|
$
|
101.6
|
|
|
$
|
114.6
|
|
|
$
|
121.5
|
|
|
$
|
126.2
|
|
|
$
|
130.5
|
|
|
$
|
134.8
|
|
|
$
|
139.3
|
|
|
$
|
144.0
|
|
The
following disclosure is to be added after the first paragraph of page 81, under the header “Projections Used By Raymond
James With Respect to the Future Operations of BioTime.”
BioTime
Risk Adjusted Income Statement Projections (all line items risk adjusted)
|
|
2019E
|
|
|
2020E
|
|
|
2021E
|
|
|
2022E
|
|
|
2023E
|
|
|
2024E
|
|
|
2025E
|
|
|
2026E
|
|
|
2027E
|
|
|
2028E
|
|
Revenue
|
|
|
8.5
|
|
|
|
15.2
|
|
|
|
6.7
|
|
|
|
11.0
|
|
|
|
133.2
|
|
|
|
340.8
|
|
|
|
561.1
|
|
|
|
833.3
|
|
|
|
1,171.4
|
|
|
|
1,395.5
|
|
COGS
|
|
|
-
|
|
|
|
2.1
|
|
|
|
3.8
|
|
|
|
6.5
|
|
|
|
38.1
|
|
|
|
75.8
|
|
|
|
123.5
|
|
|
|
181.5
|
|
|
|
206.3
|
|
|
|
237.3
|
|
Gross Profit
|
|
|
8.5
|
|
|
|
13.1
|
|
|
|
2.9
|
|
|
|
4.5
|
|
|
|
95.1
|
|
|
|
265.0
|
|
|
|
437.5
|
|
|
|
651.8
|
|
|
|
965.1
|
|
|
|
1,158.2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total OpEx
|
|
|
53.4
|
|
|
|
61.5
|
|
|
|
75.2
|
|
|
|
109.3
|
|
|
|
141.3
|
|
|
|
167.2
|
|
|
|
227.6
|
|
|
|
319.3
|
|
|
|
419.5
|
|
|
|
460.5
|
|
EBITDA
|
|
|
(44.9
|
)
|
|
|
(48.4
|
)
|
|
|
(72.3
|
)
|
|
|
(104.8
|
)
|
|
|
(46.2
|
)
|
|
|
97.8
|
|
|
|
209.9
|
|
|
|
332.5
|
|
|
|
545.6
|
|
|
|
697.7
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Provision for Income Taxes
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
(24.4
|
)
|
|
|
(52.5
|
)
|
|
|
(83.1
|
)
|
|
|
(136.4
|
)
|
|
|
(174.4
|
)
|
Offset from NOL Carryforward
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
24.4
|
|
|
|
52.5
|
|
|
|
17.5
|
|
|
|
-
|
|
|
|
-
|
|
Net Income/(Loss)
|
|
$
|
(44.9
|
)
|
|
$
|
(48.4
|
)
|
|
$
|
(72.3
|
)
|
|
$
|
(104.8
|
)
|
|
$
|
(46.2
|
)
|
|
$
|
97.8
|
|
|
$
|
209.9
|
|
|
$
|
266.8
|
|
|
$
|
409.2
|
|
|
$
|
523.3
|
|
The
following disclosure is to be added after the only sentence in the last paragraph of page 85, under the header “Merger-Related
Compensation for Asterias’ Named Executive Officers.”
The
only compensation that is due to Asterias’ executive officers in connection with the Merger is (i) the vesting of Restricted
Stock Units in accordance with the Plan of Merger, which is disclosed in this Joint Proxy Statement on pages 84 -85 under the
heading “
Asterias Restricted Stock Unit Awards”
and (ii) the compensation to be paid pursuant to the provisions
set forth in their employment agreements.
Mr.
Mulroy’s employment agreement contains provisions entitling him to severance benefits under certain circumstances. If the
Company terminates Mr. Mulroy’s employment without “Cause” or if he resigns for “Good Reason” otherwise
than within one (1) month prior to or twelve (12) months following a “Change of Control” (as those terms are defined
in his employment agreement), he will be entitled to the following severance: (A) if Mr. Mulroy’s employment is terminated
within the first 12 months of employment: (i) salary continuation at his then-current base salary for six (6) months, (ii) 50%
of his target bonus as in effect at the date of termination, (iii) accelerated vesting of 50% of the then unvested stock options
and restricted granted to him and (iv) payment, for a period of six (6) months, of any health insurance benefits that he was receiving
at the time of termination of his employment, under a Company employee health insurance plan subject to the Consolidated Omnibus
Budget Reconciliation Act (“COBRA”), or (B) if Mr. Mulroy’s employment is terminated after 12 months of employment:
(i) salary continuation at his then-current base salary for twelve (12) months, (ii) 100% of his target bonus as in effect at
the date of termination, (iii) accelerated vesting of 100% of the then unvested stock options and restricted stock granted to
him, and (iv) payment, for a period of twelve (12) months, of any health insurance benefits that he was receiving at the time
of termination of his employment, under a Company employee health insurance plan subject to the COBRA.
If
Mr. Mulroy’s employment is terminated without “Cause” or if he resigns for “Good Reason” within
one (1) month prior to or twelve (12) months following a Change in Control, Mr. Mulroy will be entitled to receive payment for
all accrued but unpaid salary, accrued but unpaid bonus, if any, and vacation accrued as of the date of termination of his employment,
and as severance compensation (A) an amount equal to the sum of 200% of his base salary and 200% of his target bonus as in effect
at the date of termination, which shall be paid in a lump sum no later than 60 days after the date of his termination of employment,
subject to such payroll deductions and withholdings as are required by law, (B) accelerated vesting of 100% of Mr. Mulroy’s
then unvested stock options and any restricted stock and (C) payment, for a period of twelve (12) months, of any health insurance
benefits that he was receiving at the time of termination of his employment, under a Company employee health insurance plan subject
to COBRA. The foregoing summary is qualified in its entirety by the full text of the Mr. Mulroy’s employment agreement,
which is filed as Exhibit 10.1 to Asterias’ Current Report on Form 8-K, filed May 23, 2017, and is incorporated herein by
reference.
As
previously disclosed in Asterias’ Current Report on Form 8-K filed on November 8, 2018, Asterias entered into an Amended
and Restated Employment Agreement (each, an “
Employment Agreement
”) on November 7, 2018, with each of (i) Craig
Halberstadt, Senior Vice President, Research & Product Development of Asterias, (ii) Edward Wirth, III, Chief Medical Officer
of Asterias, and (iii) Ryan Chavez, Chief Financial Officer and General Counsel of Asterias. Each Employment Agreement provides
that the Executive is entitled to specified severance compensation, bonus and other payments in the event Asterias or its successor
in interest terminates the Executive’s employment without Cause (as defined in the Employment Agreement) within twelve months
following a Change in Control (summarized below), or if the Executive resigns for Good Reason (summarized below) within twelve
months following a Change in Control.
Under
each Employment Agreement, Good Reason means, subject to specified notice periods, cure opportunities and other procedural requirements
specified in the Employment Agreement: (A) a diminution in the Executive’s base salary; (B) a material change in geographic
location at which the Executive must perform services (subject to specified exclusions for a change in Asterias’ office
location); (C) any material failure of the successors to Asterias after a Change of Control to perform, or causing Asterias not
to perform, Asterias’ obligations under the Employment Agreement; (D) any action or inaction of Asterias that constitutes
a material breach of the terms of the Employment Agreement; or (E) any other material adverse change in the Executive’s
duties, authorities, responsibilities, or reporting structure.
Under
each Employment Agreement, Change of Control means: (A) subject to exclusions specified in the Employment Agreement, the acquisition
of voting securities of Asterias by a person or group entitling the holder thereof to elect a majority of the directors of Asterias;
(B) the sale of all or substantially all of the assets of Asterias; (C) a merger or consolidation of Asterias with or into another
corporation or entity (irrespective of whether Asterias is the surviving corporation in such merger or consolidation) in which
the stockholders of Asterias immediately before such merger or consolidation do not own, in substantially the same percentages,
voting securities of the surviving corporation or entity (or the ultimate parent of the surviving corporation or entity) entitling
them, in the aggregate, to elect a majority of the directors or persons holding similar powers; or (D) a change in the composition
of the board occurring within a twelve month period, as a result of which the incumbent directors cease to constitute at least
a majority of the board.
Under
each Employment Agreement, Cause means: (A) the repeated failure to properly perform the Executive’s job responsibilities
after written receipt being notified of such failure to perform, as determined reasonably and in good faith by the board; (B)
commission of any act of fraud, gross misconduct or dishonesty with respect to Asterias or any related company; (C) conviction
of, or plea of guilty or “no contest” to, any felony, or a crime involving moral turpitude; (D) breach of any provision
of the Employment Agreement or any provision of any proprietary information and inventions agreement with Asterias or any related
company; (E) failure to follow the lawful directions of the board of directors of Asterias or any related company; (F) chronic
alcohol or drug abuse; (G) obtaining, in connection with any transaction in which Asterias, any related company, or any of Asterias’
affiliates is a party, a material undisclosed financial benefit for the Executive or for any member of the Executive’s immediate
family or for any corporation, partnership, limited liability company, or trust in which the Executive or any member of the Executive’s
immediate family owns a material financial interest; or (H) harassing or discriminating against, or participating or assisting
in the harassment of or discrimination against, any employee of Asterias (or a related company or an affiliate of Asterias) based
upon gender, race, religion, ethnicity, or nationality.
Each
Employment Agreement contains an agreement by Executive to keep confidential certain Confidential Information (as defined in the
Employment Agreement) both during and after Executive’s employment and provides that the employment relationship of the
Executive with Asterias is at will and may be terminated by the Executive or by Asterias with or without cause at any time by
notice given in writing.
The
foregoing summary is qualified in its entirety by the full text of the Employment Agreements, which are filed as Exhibit 10.1,
Exhibit 10.2, and Exhibit 10.3 to the Current Report filed on November 8, 2018, and are incorporated herein by reference.
Forward-Looking
Statements
Statements
pertaining to future financial and/or operating and/or clinical research results, future growth in research, technology, clinical
development, and potential opportunities for Asterias, along with other statements about the future expectations, beliefs, goals,
plans, or prospects expressed by management constitute forward-looking statements. Any statements that are not historical fact(including,
but not limited to statements that contain words such as “will,” “believes,” “plans,” “anticipates,”
“expects,” “estimates”) should also be considered to be forward-looking statements. Forward-looking statements
involve risks and uncertainties, including, without limitation, risks inherent in the development and/or commercialization of
potential products, uncertainty in the results of clinical trials or regulatory approvals, need and ability to obtain future capital,
and maintenance of intellectual property rights. Actual results may differ materially from the results anticipated in these forward-looking
statements and as such should be evaluated together with the many uncertainties that affect the businesses of Asterias, particularly
those mentioned in the cautionary statements found in Asterias’ filings with the Securities and Exchange Commission. Asterias
disclaims any intent or obligation to update these forward-looking statements. More information on potential factors that could
affect our results is included from time to time in the SEC filings and reports of Asterias, including the risks identified under
the sections captioned “Risk Factors” in Asterias’ annual report on Form 10-K filed with the SEC on March 15,
2018, Asterias’ quarterly report on Form 10-Q for the quarter ended September 30, 2018, filed with the SEC on November 9,
2018, and BioTime’s Registration Statement on Form S-4 containing a Joint Proxy Statement/Prospectus filed with the SEC
on January 14, 2019.
Additional
Information and Where to Find It
This
communication is being made in respect of the proposed business combination involving BioTime and Asterias. In connection with
the proposed transaction, BioTime and Asterias have filed documents with the SEC, including the filing by BioTime of a Registration
Statement on Form S-4 containing a Joint Proxy Statement/Prospectus filed with the SEC on January 14, 2019 and each of BioTime
and Asterias plan to file with the SEC other documents regarding the proposed transaction. INVESTORS AND SECURITY HOLDERS OF BIOTIME
AND ASTERIAS ARE URGED TO CAREFULLY READ THE JOINT PROXY STATEMENT/PROSPECTUS AND OTHER DOCUMENTS FILED WITH THE SEC BY BIOTIME
AND ASTERIAS BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION. Investors and security holders may
obtain free copies of these documents (when they are available) and other documents filed with the SEC at the SEC’s web
site at
www.sec.gov
and by contacting BioTime Investor Relations at (510) 871-4188 or Asterias Investor Relations at (510)
456-3892. Investors and security holders may obtain free copies of the documents filed with the SEC on BioTime’s website
at
www.biotimeinc.com
or Asterias’ website at
www.asteriasbiotherapeutics.com
or the SEC’s website at
www.sec.gov.
Participants
in the Solicitation
BioTime,
Asterias and their respective directors and executive officers may be deemed participants in the solicitation of proxies with
respect to the proposed transaction. Information regarding the interests of these directors and executive officers in the proposed
transaction is set forth in the Joint Proxy Statement/Prospectus described above. Additional information regarding the directors
and executive officers of BioTime is also included in BioTime’s proxy statement for its 2018 Annual Meeting of Shareholders,
which was filed with the SEC on March 29, 2018, and additional information regarding the directors and executive officers of Asterias
is also included in Asterias’ proxy statement for its 2018 Annual Meeting of Stockholders, which was filed with the SEC
on April 30, 2018.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
|
BioTime,
Inc.
|
|
|
|
Date:
March 1, 2019
|
By:
|
/s/
Brian Culley
|
|
|
Brian
Culley
|
|
|
Chief
Executive Officer
|
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