Shareholders in a derivative action against a biopharmaceutical company are seeking to amend their Delaware Court of Chancery lawsuit so they can challenge the corporation’s fee-shifting bylaw requiring stockholders to bear the cost of unsuccessful litigation. The motion, currently pending before Chancellor Andre G. Bouchard, could present the court with an opportunity to opine on the controversial bylaws.
Hemispherx Biopharma Inc., a Philadelphia biopharmaceutical company, was sued by its shareholders last June in the Chancery Court. The stockholders alleged the company wasted corporate assets when it awarded a combined $2.3 million in incentive bonuses to its CEO, William A. Carter, and general counsel, Thomas K. Equels, after it raised $23 million through a common stock offering. In addition, the plaintiffs asserted breach of fiduciary duties and unjust enrichment claims against the defendants in Kastis v. Carter.
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