Attached files
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EX-10.1 - EXHIBIT 10.1 - ATHERSYS, INC / NEW | c24674exv10w1.htm |
EX-99.1 - EXHIBIT 99.1 - ATHERSYS, INC / NEW | c24674exv99w1.htm |
8-K - FORM 8-K - ATHERSYS, INC / NEW | c24674e8vk.htm |
Exhibit 10.2
Execution Copy
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this Agreement), dated as of November 11, 2011, by and
between ATHERSYS, INC., a Delaware corporation (the Company), and ASPIRE CAPITAL FUND, LLC, an
Illinois limited liability company (together with it permitted assigns, the Buyer). Capitalized
terms used herein and not otherwise defined herein shall have the respective meanings set forth in
the Common Stock Purchase Agreement by and between the parties hereto, dated as of the date hereof
(as amended, restated, supplemented or otherwise modified from time to time, the Purchase
Agreement).
WHEREAS:
A. Upon the terms and subject to the conditions of the Purchase Agreement, (i) the Company has
agreed to issue to the Buyer and the Buyer has agreed to purchase up to Twenty Million Dollars
($20,000,000) of the Companys common stock, par value $0.001 per share (the Common Stock),
pursuant to Section 1 of the Purchase Agreement (such shares, the Purchase Shares), and (ii) the
Company has agreed to issue to the Buyer such number of shares of Common Stock as is required
pursuant to Section 4(e) of the Purchase Agreement (the Commitment Shares); and
B. To induce the Buyer to enter into the Purchase Agreement, the Company has agreed to provide
certain registration rights under the Securities Act of 1933, as amended, and the rules and
regulations there under, or any similar successor statute (collectively, the 1933 Act), and
applicable state securities laws.
NOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Buyer hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following meanings:
a. Person means any person or entity including any corporation, a limited liability company,
an association, a partnership, an organization, a business, an individual, a governmental or
political subdivision thereof or a governmental agency.
b. Register, registered, and registration refer to a registration effected by preparing
and filing one or more registration statements of the Company in compliance with the 1933 Act and
pursuant to Rule 415 under the 1933 Act or any successor rule providing for offering securities on
a continuous basis (Rule 415), and the declaration or ordering of effectiveness of such
registration statement(s) by the U.S. Securities and Exchange Commission (the SEC).
c. Registrable Securities means (i) all of the Commitment Shares, (ii) all of the Initial
Purchase Shares, and (iii) such number of additional Purchase Shares as reasonably determined by
the Company, which may from time to time be issued or issuable to the Buyer upon purchases of the
Available Amount under the Purchase Agreement, and any shares of capital stock issued or
issuable with respect to the Purchase Shares or Commitment Shares or the Purchase Agreement as a
result of any stock split, stock dividend, recapitalization, exchange or similar event or
otherwise, without regard to any limitation on purchases under the Purchase Agreement.
d. Registration Statement means a registration statement of the Company covering only the
sale of the Registrable Securities.
2. REGISTRATION.
a. Mandatory Registration. The Company shall within twenty (20) Business Days from
the date hereof file with the SEC the Registration Statement. The Registration Statement shall
register only the Registrable Securities and no other securities of the Company. The Buyer and its
counsel shall have a reasonable opportunity to review and comment upon such Registration Statement
or any amendment to such Registration Statement and any related prospectus prior to its filing with
the SEC. Buyer shall furnish all information reasonably requested by the Company for inclusion
therein. The Company shall use its reasonable best efforts to have the Registration Statement or
any amendment declared effective by the SEC as soon as reasonably practicable. Subject to Section
3(e) hereto, the Company shall use reasonable best efforts to keep the Registration Statement
effective and available for continuous sales pursuant to Rule 415 promulgated under the 1933 Act
and available for sales of all of the Registrable Securities at all times until the earlier of (i)
the date as of which the Buyer may sell all of the Registrable Securities without restriction
pursuant to Rule 144 promulgated under the 1933 Act (or successor thereto), (ii) the date on which
(A) the Buyer shall have sold all the Registrable Securities and no Available Amount remains under
the Purchase Agreement, or (iii) the date on which the Purchase Agreement is terminated (the
Registration Period). The Registration Statement (including any amendments or supplements
thereto and prospectuses contained therein) shall not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein, or necessary to make the
statements therein, in light of the circumstances under which they were made, not misleading.
b. Rule 424 Prospectus. The Company shall, as required by applicable securities
regulations, from time to time file with the SEC, pursuant to Rule 424 promulgated under the 1933
Act, a prospectus and prospectus supplements, if any, to be used in connection with sales of the
Registrable Securities under the Registration Statement. The Buyer and its counsel shall have one
(1) Business Day to review and comment upon such prospectus prior to its filing with the SEC. The
Buyer shall use its reasonable best efforts to comment upon such prospectus within one (1) Business
Day from the date the Buyer receives the final version of such prospectus.
c. Sufficient Number of Shares Registered. In the event the number of shares
available under the Registration Statement is insufficient to cover the Registrable Securities, the
Company shall, to the extent necessary and permissible, amend the Registration Statement or file a
new registration statement (a New Registration Statement), so as to cover all of such Registrable
Securities as soon as practicable, but in any event not later than ten (10) Business Days after the
necessity therefor arises. The Company shall use its reasonable best efforts to have such
amendment and/or New Registration Statement become effective as soon as reasonably practicable
following the filing thereof.
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3. RELATED OBLIGATIONS.
With respect to the Registration Statement and whenever any Registrable Securities are to be
registered pursuant to Sections 2(a) and (c), including on any New Registration Statement, the
Company shall use its reasonable best efforts to effect the registration of the Registrable
Securities in accordance with the intended method of disposition thereof and, pursuant thereto, the
Company shall have the following obligations:
a. The Company shall prepare and file with the SEC such amendments (including post-effective
amendments) and supplements to any Registration Statement and the prospectus used in connection
with such Registration Statement, as may be necessary to keep the Registration Statement or any New
Registration Statement effective at all times during the Registration Period, subject to Section
3(e) hereto, and, during such period, comply with the provisions of the 1933 Act with respect to
the disposition of all Registrable Securities of the Company covered by the Registration Statement
or any New Registration Statement until such time as all of such Registrable Securities shall have
been disposed of in accordance with the intended methods of disposition by the seller or sellers
thereof as set forth in such Registration Statement. Should the Company file a post-effective
amendment to the Registration Statement or a New Registration Statement, the Company will use its
reasonable best efforts to have such filing declared effective by the SEC within thirty (30)
consecutive Business Days as of the date of filing, which such period shall be extended for an
additional thirty (30) Business Days if the Company receives a comment letter from the SEC in
connection therewith.
b. The Company shall submit to the Buyer for review and comment any disclosure in the
Registration Statement or any New Registration Statement and all amendments and supplements thereto
(other than prospectus supplements that consist only of a copy of a filed Form 10-Q or a Current
Report on Form 8-K) containing information provided by the Buyer for inclusion in such document and
any descriptions or disclosure regarding the Buyer, the Purchase Agreement, including the
transaction contemplated thereby, or this Agreement at least one (1) Business Day prior to their
filing with the SEC, and not file any document in a form to which Buyer reasonably objects. Upon
request of the Buyer, the Company shall provide to the Buyer all disclosure in the Registration
Statement or any New Registration Statement and all amendments and supplements thereto (other than
prospectus supplements that consist only of a copy of a filed Form 10-Q or a Current Report on Form
8-K) at least one (1) Business Day prior to their filing with the SEC, and not file any document in
a form to which Buyer reasonably and timely objects. The Buyer shall use its reasonable best
efforts to comment upon the Registration Statement or any New Registration Statement and any
amendments or supplements thereto within one (1) Business Day from the date the Buyer receives the
final version thereof. The Company shall furnish to the Buyer, without charge, any correspondence
from the SEC or the staff of the SEC to the Company or its representatives relating to the
Registration Statement or any New Registration Statement.
c. Upon request of the Buyer, the Company shall furnish to the Buyer, (i) promptly after the
same is prepared and filed with the SEC, at least one copy of the Registration Statement and any
amendment(s) thereto, including financial statements and schedules, all documents incorporated
therein by reference and all exhibits, (ii) upon the effectiveness of any Registration Statement, a
copy of the prospectus included in such Registration Statement and all amendments and supplements
thereto (or such other number of copies as the Buyer may reasonably request) and (iii) such other
documents,
including copies of any preliminary or final prospectus, as the Buyer may reasonably request
from time to time in order to facilitate the disposition of the Registrable Securities owned by the
Buyer.
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d. The Company shall use reasonable best efforts to (i) register and qualify, unless an
exemption from registration and qualification is available, the Registrable Securities covered by a
Registration Statement under such other securities or blue sky laws of such jurisdictions in the
United States as the Buyer reasonably requests, (ii) prepare and file in those jurisdictions, such
amendments (including post-effective amendments) and supplements to such registrations and
qualifications as may be necessary to maintain the effectiveness thereof during the Registration
Period, (iii) take such other actions as may be necessary to maintain such registrations and
qualifications in effect at all times during the Registration Period, and (iv) take all other
actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such
jurisdictions; provided, however, that the Company shall not be required in connection therewith or
as a condition thereto to (x) qualify to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d), (y) subject itself to general taxation
in any such jurisdiction, or (z) file a general consent to service of process in any such
jurisdiction. The Company shall promptly notify the Buyer who holds Registrable Securities of the
receipt by the Company of any notification with respect to the suspension of the registration or
qualification of any of the Registrable Securities for sale under the securities or blue sky laws
of any jurisdiction in the United States or its receipt of actual notice of the initiation or
threatening of any proceeding for such purpose.
e. As promptly as reasonably practicable after becoming aware of such event or facts, the
Company shall notify the Buyer in writing if the Company has determined that the prospectus
included in any Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading,
and promptly prepare a prospectus supplement or amendment to such Registration Statement to correct
such untrue statement or omission, and, upon the Buyers request, deliver a copy of such prospectus
supplement or amendment to the Buyer. In providing this notice to the Buyer, the Company shall not
include any other information about the facts underlying the Companys determination and shall not
in any way communicate any material nonpublic information about the Company or the Common Stock to
the Buyer. The Company shall also promptly notify the Buyer in writing (i) when a prospectus or
any prospectus supplement or post-effective amendment has been filed, and when a Registration
Statement or any post-effective amendment has become effective (notification of such effectiveness
shall be delivered to the Buyer by facsimile or e-mail on the same day of such effectiveness), (ii)
of any request by the SEC for amendments or supplements to any Registration Statement or related
prospectus or related information, and (iii) of the Companys reasonable determination that a
post-effective amendment to a Registration Statement would be appropriate.
f. The Company shall use its reasonable best efforts to prevent the issuance of any stop order
or other suspension of effectiveness of any Registration Statement, or the suspension of the
qualification of any Registrable Securities for sale in any jurisdiction and, if such an order or
suspension is issued, to obtain the withdrawal of such order or suspension at the earliest
practical time and to notify the Buyer of the issuance of such order and the resolution thereof or
its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
g. The Company shall (i) cause all the Registrable Securities to be listed on each securities
exchange on which securities of the same class or series issued by the Company are then listed, if
any, if the listing of such Registrable Securities is then permitted under the rules of such
exchange, or (ii) secure designation and quotation of all the Registrable Securities if the
Principal Market (as such term is defined in the Purchase Agreement) is an automated quotation
system. The Company shall pay all fees and expenses in connection with satisfying its obligation
under this Section 3(g).
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h. The Company shall cooperate with the Buyer to facilitate the timely preparation and
delivery of certificates (not bearing any restrictive legend) representing the Registrable
Securities to be offered pursuant to any Registration Statement and enable such certificates to be
in such denominations or amounts as the Buyer may reasonably request and registered in such names
as the Buyer may request.
i. The Company shall at all times provide a transfer agent and registrar with respect to its
Common Stock.
j. If reasonably requested by the Buyer, the Company shall (i) promptly incorporate in a
prospectus supplement or post-effective amendment to the Registration Statement such information as
the Buyer believes should be included therein relating to the sale and distribution of Registrable
Securities, including, without limitation, information with respect to the number of Registrable
Securities being sold, the purchase price being paid therefor and any other terms of the offering
of the Registrable Securities; and (ii) make all required filings of such prospectus supplement or
post-effective amendment promptly after being notified of the matters to be incorporated in such
prospectus supplement or post-effective amendment.
k. The Company shall use its reasonable best efforts to cause the Registrable Securities
covered by any Registration Statement to be registered with or approved by such other governmental
agencies or authorities in the United States as may be necessary to consummate the disposition of
such Registrable Securities.
l. Within one (1) Business Day after any Registration Statement is ordered effective by the
SEC, the Company shall deliver to the Transfer Agent for such Registrable Securities (with copies
to the Buyer) confirmation that such Registration Statement has been declared effective by the SEC
in the form attached hereto as Exhibit A. Thereafter, if reasonably requested by the Buyer
at any time, the Company shall deliver to the Buyer a written confirmation of whether or not the
effectiveness of such Registration Statement has lapsed at any time for any reason (including,
without limitation, the issuance of a stop order) and whether or not the Registration Statement is
currently effective and available to the Buyer for sale of all of the Registrable Securities.
m. The Company agrees to cooperate with the Buyer as reasonably requested by the Buyer to
expedite and facilitate disposition by the Buyer of Registrable Securities pursuant to any
Registration Statement.
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4. OBLIGATIONS OF THE BUYER.
a. The Buyer has furnished to the Company in Exhibit B hereto such information
regarding itself, the Registrable Securities held by it and the intended method of disposition of
the Registrable Securities held by it as required to effect the registration of such Registrable
Securities and shall execute such documents in connection with such registration as the Company may
reasonably request. The Company shall notify the Buyer in writing of any other information the
Company reasonably requires from the Buyer in connection with any Registration Statement hereunder.
The Buyer will promptly notify the Company of any material change in the information set forth in
Exhibit B, other than changes in its ownership of the Common Stock.
b. The Buyer agrees to cooperate with the Company as reasonably requested by the Company in
connection with the preparation and filing of any Registration Statement hereunder.
c. The Buyer agrees that, upon receipt of any notice from the Company of the happening of any
event or existence of facts of the kind described in Section 3(f) or any notice of the kind
described in the first sentence of 3(e), the Buyer will immediately discontinue disposition of
Registrable Securities pursuant to any registration statement(s) covering such Registrable
Securities until the Buyers receipt (which may be accomplished through electronic delivery) of the
copies of the filed supplemented or amended prospectus contemplated by Section 3(f) or the first
sentence of 3(e). In addition, upon receipt of any notice from the Company of the kind described in
the first sentence of Section 3(e), the Buyer will immediately discontinue purchases or sales of
any securities of the Company. Notwithstanding anything to the contrary, the Company shall cause
its Transfer Agent to promptly deliver shares of Common Stock without any restrictive legend in
accordance with the terms of the Purchase Agreement in connection with any sale of Registrable
Securities with respect to which the Buyer has received a Purchase Notice or VWAP Purchase Notice
prior to the Buyers receipt of a notice from the Company of the happening of any event of the kind
described in Section 3(f) or the first sentence of 3(e) and for which the Buyer has not yet
settled.
5. EXPENSES OF REGISTRATION.
All reasonable expenses, other than sales or brokerage commissions and fees and disbursements
of counsel for the Buyer, incurred in connection with registrations, filings or qualifications
pursuant to Sections 2 and 3, including, without limitation, all registration, listing and
qualifications fees, printers and accounting fees, and fees and disbursements of counsel for the
Company, shall be paid by the Company.
6. INDEMNIFICATION.
a. To the fullest extent permitted by law, the Company will, and hereby does, indemnify, hold
harmless and defend the Buyer, each Person, if any, who controls the Buyer, the members, the
directors, officers, partners, employees, agents, representatives of the Buyer and each Person, if
any, who controls the Buyer within the meaning of the 1933 Act or the Securities Exchange Act of
1934, as amended (the 1934 Act) (each, an Indemnified Person), against any losses, claims,
damages, liabilities, judgments, fines, penalties, charges, costs, attorneys fees, amounts paid in
settlement or expenses, joint or several, (collectively, Claims) reasonably incurred in
investigating, preparing or defending any action, claim, suit, inquiry, proceeding, investigation
or appeal taken from
the foregoing by or before any
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court or governmental, administrative or other regulatory
agency or body or the SEC, whether pending or threatened, whether or not an indemnified party is or
may be a party thereto (Indemnified Damages), to which any of them may become subject insofar as
such Claims (or actions or proceedings, whether commenced or threatened, in respect thereof) arise
out of or are based upon: (i) any untrue statement or alleged untrue statement of a material fact
in the Registration Statement, any New Registration Statement or any post-effective amendment
thereto or in any filing made in connection with the qualification of the offering under the
securities or other blue sky laws of any jurisdiction in which Registrable Securities are offered
(Blue Sky Filing), or the omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in the final prospectus (as
amended or supplemented, if the Company files any amendment thereof or supplement thereto with the
SEC) or the omission or alleged omission to state therein any material fact necessary to make the
statements made therein, in light of the circumstances under which the statements therein were
made, not misleading, or (iii) any violation or alleged violation by the Company of the 1933 Act,
the 1934 Act, any other law, including, without limitation, any state securities law, or any rule
or regulation thereunder relating to the offer or sale of the Registrable Securities pursuant to
the Registration Statement or any New Registration Statement (the matters in the foregoing clauses
(i) through (iv) being, collectively, Violations). The Company shall reimburse each Indemnified
Person promptly as such expenses are incurred and are due and payable, for any reasonable legal
fees or other reasonable expenses incurred by them in connection with investigating or defending
any such Claim. Notwithstanding anything to the contrary contained herein, the indemnification
agreement contained in this Section 6(a): (A) shall not apply to a Claim by an Indemnified Person
arising out of or based upon a Violation which occurs in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of the Buyer expressly for use in
connection with the preparation of the Registration Statement, any New Registration Statement or
any such amendment thereof or supplement thereto, if such prospectus was timely made available by
the Company; (B) with respect to any superceded prospectus, shall not inure to the benefit of any
person from whom the person asserting any such Claim purchased the Registrable Securities that are
the subject thereof (or to the benefit of any other Indemnified Person) if the untrue statement or
omission of material fact contained in the superceded prospectus was corrected in the revised
prospectus, as then amended or supplemented, if such revised prospectus was timely made available
by the Company, and the Buyer was advised in writing not to use the incorrect prospectus prior to
the use giving rise to a violation; (C) shall not be available to the extent such Claim is based on
a failure of the Buyer to deliver or to cause to be delivered the prospectus made available by the
Company, if such prospectus was theretofore made available by the Company; and (D) shall not apply
to amounts paid in settlement of any Claim if such settlement is effected without the prior written
consent of the Company, which consent shall not be unreasonably withheld. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on behalf of the
Indemnified Person and shall survive the transfer of the Registrable Securities by the Buyer
pursuant to Section 9.
b. In connection with the Registration Statement or any New Registration Statement, the Buyer
agrees to indemnify, hold harmless and defend, to the same extent and in the same manner as is set
forth in Section 6(a), the Company, each of its directors, each of its officers who signs the
Registration Statement or any New Registration Statement, each Person, if any, who controls the
Company within the meaning of the 1933 Act or the 1934 Act (collectively and together with an
Indemnified Person, an Indemnified Party), against any Claim or Indemnified Damages to which any
of them may become subject, under the 1933 Act, the 1934 Act or otherwise, insofar as such Claim or
Indemnified Damages arise out of or are based upon any Violation, in each case to the extent,
and only to the extent, that such Violation occurs in reliance upon and in conformity with written
information about the Buyer
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set forth on Exhibit B attached hereto or updated from time to
time in writing by the Buyer and furnished to the Company by the Buyer expressly for use in
connection with such registration statement; and, subject to Section 6(d), the Buyer will reimburse
any legal or other expenses reasonably incurred by them in connection with investigating or
defending any such Claim; provided, however, that the indemnity agreement contained in this Section
6(b) and the agreement with respect to contribution contained in Section 7 shall not apply to
amounts paid in settlement of any Claim if such settlement is effected without the prior written
consent of the Buyer, which consent shall not be unreasonably withheld; provided, further, however,
that the Buyer shall be liable under this Section 6(b) for only that amount of a Claim or
Indemnified Damages as does not exceed the net proceeds to the Buyer as a result of the sale of
Registrable Securities pursuant to such registration statement. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of such Indemnified
Party and shall survive the transfer of the Registrable Securities by the Buyer pursuant to Section
9.
c. Promptly after receipt by an Indemnified Person or Indemnified Party under this Section 6
of notice of the commencement of any action or proceeding (including any governmental action or
proceeding) involving a Claim, such Indemnified Person or Indemnified Party shall, if a Claim in
respect thereof is to be made against any indemnifying party under this Section 6, deliver to the
indemnifying party a written notice of the commencement thereof, and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume control of the defense thereof with
counsel mutually satisfactory to the indemnifying party and the Indemnified Person or the
Indemnified Party, as the case may be, and upon such notice the indemnifying party shall not be
liable to the Indemnified Person or Indemnified Party for any legal or other expenses subsequently
incurred by the Indemnified Person or Indemnified Party in connection with the defense thereof;
provided, however, that an Indemnified Person or Indemnified Party shall have the right to retain
its own counsel with the fees and expenses to be paid by the indemnifying party, if, in the
reasonable opinion of counsel retained by the indemnifying party, the representation by such
counsel of the Indemnified Person or Indemnified Party and the indemnifying party would be
inappropriate due to actual or potential differing interests between such Indemnified Person or
Indemnified Party and any other party represented by such counsel in such proceeding. The
Indemnified Party or Indemnified Person shall cooperate fully with the indemnifying party in
connection with any negotiation or defense of any such action or claim by the indemnifying party
and shall furnish to the indemnifying party all information reasonably available to the Indemnified
Party or Indemnified Person which relates to such action or claim. The indemnifying party shall
keep the Indemnified Party or Indemnified Person fully apprised as to the status of the defense or
any settlement negotiations with respect thereto. No indemnifying party shall be liable for any
settlement of any action, claim or proceeding effected without its written consent, provided,
however, that the indemnifying party shall not unreasonably withhold, delay or condition its
consent. No indemnifying party shall, without the consent of the Indemnified Party or Indemnified
Person, consent to entry of any judgment or enter into any settlement or other compromise which
does not include as an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party or Indemnified Person of a release from all liability in respect to such claim or
litigation. Following indemnification as provided for hereunder, the indemnifying party shall be
subrogated to all rights of the Indemnified Party or Indemnified Person with respect to all third
parties, firms or corporations relating to the matter for which indemnification has been made. The
failure to deliver written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall not
relieve such indemnifying party of any liability to the Indemnified Person or Indemnified
Party under this Section 6, except to the extent that the indemnifying party is prejudiced in its
ability to defend such action.
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d. The indemnification required by this Section 6 shall be made by periodic payments of the
amount thereof during the course of the investigation or defense, as and when bills are received or
Indemnified Damages are incurred. Any person receiving a payment pursuant to this Section 6 which
person is later determined to not be entitled to such payment shall return such payment to the
person making it.
e. The indemnity agreements contained herein shall be in addition to (i) any cause of action
or similar right of the Indemnified Party or Indemnified Person against the indemnifying party or
others, and (ii) any liabilities the indemnifying party may be subject to pursuant to the law.
7. CONTRIBUTION.
To the extent any indemnification by an indemnifying party is prohibited or limited by law,
the indemnifying party agrees to make the maximum contribution with respect to any amounts for
which it would otherwise be liable under Section 6 to the fullest extent permitted by law;
provided, however, that: (i) no seller of Registrable Securities guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any seller of Registrable Securities who was not guilty of fraudulent
misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited
in amount to the net amount of proceeds received by such seller from the sale of such Registrable
Securities.
8. REPORTS AND DISCLOSURE UNDER THE SECURITIES ACTS.
With a view to making available to the Buyer the benefits of Rule 144 promulgated under the
1933 Act or any other similar rule or regulation of the SEC that may at any time permit the Buyer
to sell securities of the Company to the public without registration (Rule 144), the Company
agrees, at the Companys sole expense, to:
a. make and keep public information available, as those terms are understood and defined in
Rule 144;
b. file with the SEC in a timely manner all reports and other documents required of the
Company under the 1933 Act and the 1934 Act so long as the Company remains subject to such
requirements and the filing of such reports and other documents is required to satisfy the current
public information requirements of Rule 144; and
c. furnish to the Buyer so long as the Buyer owns Registrable Securities, promptly upon
request, (i) a written statement by the Company that it has complied with the requirements of Rule
144(c)(1)(i), and (ii) such other information, if any, as may be reasonably requested to permit the
Buyer to sell such securities pursuant to Rule 144 without registration.
d. take such additional action as is requested by the Buyer to enable the Buyer to sell the
Registrable Securities pursuant to Rule 144, including, without limitation, delivering all such
consents, certificates, resolutions and instructions to the Companys Transfer Agent as may be
reasonably requested from time to time by the Buyer and otherwise fully cooperate with Buyer and
Buyers broker to effect such sale of securities pursuant to Rule 144.
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The Company agrees that damages may be an inadequate remedy for any breach of the terms and
provisions of this Section 8 and that Buyer shall, whether or not it is pursuing any remedies at
law, be entitled to equitable relief in the form of a preliminary or permanent injunctions, without
having to post any bond or other security, upon any breach or threatened breach of any such terms
or provisions.
9. ASSIGNMENT OF REGISTRATION RIGHTS.
The Company shall not assign this Agreement or any rights or obligations hereunder without the
prior written consent of the Buyer. The Buyer may not assign its rights under this Agreement
without the written consent of the Company.
10. AMENDMENT OF REGISTRATION RIGHTS.
Provisions of this Agreement may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Buyer.
11. MISCELLANEOUS.
a. Any notices, consents, waivers or other communications required or permitted to be given
under the terms of this Agreement must be in writing and will be deemed to have been delivered:
(i) upon receipt, when delivered personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically generated and kept on file by the
sending party); or (iii) one (1) Business Day after deposit with a nationally recognized overnight
delivery service, in each case properly addressed to the party to receive the same. The addresses
and facsimile numbers for such communications shall be:
If to the Company:
Athersys, Inc.
3201 Carnegie Avenue
Cleveland, Ohio 44115-2634
Telephone: 216-431-9900
Facsimile: 216-432-2461
Attention: Laura K. Campbell
Vice President of Finance
3201 Carnegie Avenue
Cleveland, Ohio 44115-2634
Telephone: 216-431-9900
Facsimile: 216-432-2461
Attention: Laura K. Campbell
Vice President of Finance
With a copy to:
Jones Day
901 Lakeside Avenue
Cleveland, Ohio 44114
Telephone: 216-586-7103
Facsimile: 216-579-0212
Attention: Michael J. Solecki
901 Lakeside Avenue
Cleveland, Ohio 44114
Telephone: 216-586-7103
Facsimile: 216-579-0212
Attention: Michael J. Solecki
If to the Buyer:
Aspire Capital Fund, LLC
155 North Wacker Drive, Suite 1600
Chicago, IL 60606
Telephone: 312-658-0400
Facsimile: 312-658-4005
Attention: Steven G. Martin
155 North Wacker Drive, Suite 1600
Chicago, IL 60606
Telephone: 312-658-0400
Facsimile: 312-658-4005
Attention: Steven G. Martin
With a copy to:
OMelveny & Myers LLP
1625 Eye Street, NW
Washington, DC 20006
Telephone: 202-383-5418
Facsimile: 202-383-5414
Attention: Martin P. Dunn, Esq.
1625 Eye Street, NW
Washington, DC 20006
Telephone: 202-383-5418
Facsimile: 202-383-5414
Attention: Martin P. Dunn, Esq.
10
or at such other address and/or facsimile number and/or to the attention of such other person as
the recipient party has specified by written notice given to each other party three (3) Business
Days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the
recipient of such notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the senders facsimile machine containing the time, date, recipient
facsimile number and an image of the first page of such transmission or (C) provided by a
nationally recognized overnight delivery service, shall be rebuttable evidence of personal service,
receipt by facsimile or receipt from a nationally recognized overnight delivery service in
accordance with clause (i), (ii) or (iii) above, respectively. Any party to this Agreement may
give any notice or other communication hereunder using any other means (including messenger
service, ordinary mail or electronic mail), but no such notice or other communication shall be
deemed to have been duly given unless it actually is received by the party for whom it is intended.
b. No failure or delay in the exercise of any power, right or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other right, power or privilege.
c. The corporate laws of the State of Delaware shall govern all issues concerning the relative
rights of the Company and its stockholders. All other questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by the internal laws
of the State of Illinois, without giving effect to any choice of law or conflict of law provision
or rule (whether of the State of Illinois or any other jurisdictions) that would cause the
application of the laws of any jurisdictions other than the State of Illinois. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting the City
of Chicago, for the adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not
to assert in any suit, action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient
forum or that the venue of such suit, action or proceeding is improper. Each party hereby
irrevocably waives personal service of process and consents to process being served in any such
suit, action or proceeding by mailing a copy thereof to such party at the address for such notices
to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing contained herein shall be
deemed to limit in any way any right to serve process in any manner permitted by law. If any
provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity
or unenforceability shall not affect the validity or enforceability of the remainder of this
Agreement in that jurisdiction or the validity or enforceability of any provision of this Agreement
in any other jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES
NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
11
d. This Agreement, the Purchase Agreement and the other Transaction Documents constitute the
entire understanding among the parties hereto with respect to the subject matter hereof and
thereof. There are no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein and therein. This Agreement, the Purchase Agreement and the other
Transaction Documents supersede all other prior oral and written agreements between the Buyer, the
Company, their affiliates and persons acting on their behalf with respect to the subject matter
hereof and thereof.
e. Subject to the requirements of Section 9, this Agreement shall inure to the benefit of and
be binding upon the permitted successors and assigns of each of the parties hereto.
f. The headings in this Agreement are for convenience of reference and shall not form part of
or affect the interpretation of this Agreement.
g. This Agreement may be executed in two or more identical counterparts, all of which shall be
considered one and the same agreement and shall become effective when counterparts have been signed
by each party and delivered to the other party; provided that a facsimile or pdf (or other
electronic reproduction) signature shall be considered due execution and shall be binding upon the
signatory thereto with the same force and effect as if the signature were an original, not a
facsimile or pdf (or other electronic reproduction) signature.
h. Each party shall do and perform, or cause to be done and performed, all such further acts
and things, and shall execute and deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the transactions contemplated
hereby.
i. The language used in this Agreement will be deemed to be the language chosen by the parties
to express their mutual intent and no rules of strict construction will be applied against any
party.
j. This Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be
enforced by, any other Person.
* * * * * *
12
IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be duly
executed as of day and year first above written.
THE COMPANY: ATHERSYS, INC. |
||||
By: | /s/ Gil Van Bokkelen | |||
Name: | Dr. Gil Van Bokkelen | |||
Title: | Chairman and Chief Executive Officer | |||
BUYER: ASPIRE CAPITAL FUND, LLC BY: ASPIRE CAPITAL PARTNERS, LLC BY: SGM HOLDINGS CORP. |
||||
By: | /s/ Steven G. Martin | |||
Name: | Steven G. Martin | |||
Title: | President | |||
13
EXHIBIT A
TO REGISTRATION RIGHTS AGREEMENT
TO REGISTRATION RIGHTS AGREEMENT
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
OF REGISTRATION STATEMENT
[Date]
Computershare Investor Services
250 Royall Street
Canton, MA 02021
Attention: Kim Crimi
250 Royall Street
Canton, MA 02021
Attention: Kim Crimi
Re: ATHERSYS, INC.
Ladies and Gentlemen:
We refer to that certain Common Stock Purchase Agreement, dated as of November 11, 2011 (the
Purchase Agreement), entered into by and between ATHERSYS, INC., a Delaware corporation (the
Company), and ASPIRE CAPITAL FUND, LLC (the Buyer) pursuant to which the Company has agreed to
issue to the Buyer shares of the Companys Common Stock, par value $0.001 (the Common Stock), in
an amount up to Twenty Million Dollars ($20,000,000), in accordance with the terms of the Purchase
Agreement. Pursuant to the Purchase Agreement, the Company has registered with the U.S. Securities
and Exchange Commission (the SEC) the sale by the Buyer of the following shares of Common Stock:
(1) | up to 7,066,666 shares of Common Stock with an aggregate value of up to
$19,000,000 to be issued upon purchase from the Company by the Buyer from time to time
(the Purchase Shares). |
(2) | 666,667 shares of Common Stock with an aggregate value of $1,000,000 sold and
issued to the Buyer upon signing of the Purchase Agreement. |
(3) | 266,667 shares of Common Stock which have been issued to the Buyer as a
commitment fee (the Commitment Shares). |
In connection with the transactions contemplated by the Purchase Agreement, the Company has
filed a registration statement on Form S-1, File No. 333- (the Registration Statement),
with the SEC to register for sale under the Securities Act of 1933, as amended (the 1933 Act),
the Purchase Shares and Commitment Shares by the Buyer.
Accordingly, the Company advises you that (i) the SEC has entered an order declaring the
Registration Statement effective under the 1933 Act at P.M. on , (ii) the
Company has no knowledge, after telephonic inquiry of a member of the SECs staff, that any stop
order suspending its effectiveness has been issued or that any proceedings for that purpose are
pending before, or threatened by, the SEC, and (iii) the Purchase Shares and Commitment Shares are
available
for sale under the 1933 Act pursuant to the Registration Statement and may be issued without any
restrictive legend.
Very truly yours, | ||||
cc: Aspire Capital Fund, LLC
EXHIBIT B
TO REGISTRATION RIGHTS AGREEMENT
TO REGISTRATION RIGHTS AGREEMENT
Information About The Buyer Furnished To The Company By The Buyer
Expressly For Use In Connection With The Registration Statement
Expressly For Use In Connection With The Registration Statement
As of the date of the Purchase Agreement, Aspire Capital beneficially owned 432,900 shares of
common stock of the Company. Steven G. Martin, Erik J. Brown and Christos Komissopoulos, the
principals of Aspire Capital, are deemed to be beneficial owners of all of the shares of common
stock owned by Aspire Capital. Messrs. Martin, Brown and Komissopoulos have shared voting and
investment power over the shares being offered under the prospectus filed with the SEC in
connection with the transactions contemplated under the Purchase Agreement. Aspire Capital is not
a licensed broker dealer or an affiliate of a licensed broker dealer.
PLAN OF DISTRIBUTION
The common stock may be sold or distributed from time to time by the selling stockholder
directly to one or more purchasers or through brokers, dealers, or underwriters who may act solely
as agents at market prices prevailing at the time of sale, at prices related to the prevailing
market prices, at negotiated prices, or at fixed prices, which may be changed. The sale of the
common stock offered by this prospectus may be effected in one or more of the following methods:
| ordinary brokers transactions; |
| transactions involving cross or block trades; |
| through brokers, dealers, or underwriters who may act solely as agents; |
| at the market into an existing market for the common stock; |
| in other ways not involving market makers or established business markets, including
direct sales to purchasers or sales effected through agents; |
| in privately negotiated transactions; or |
| any combination of the foregoing. |
In order to comply with the securities laws of certain states, if applicable, the shares may
be sold only through registered or licensed brokers or dealers. In addition, in certain states, the
shares may not be sold unless they have been registered or qualified for sale in the state or an
exemption from the registration or qualification requirement is available and complied with.
The selling stockholder may also sell shares of common stock under Rule 144 promulgated under
the Securities Act, if available, rather than under this prospectus. In addition, the selling
stockholder may transfer the shares of common stock by other means not described in this
prospectus.
Brokers, dealers, underwriters, or agents participating in the distribution of the shares as
agents may receive compensation in the form of commissions, discounts, or concessions from the
selling stockholder and/or purchasers of the common stock for whom the broker-dealers may act as
agent. Aspire Capital has informed us that each such broker-dealer will receive commissions from
Aspire Capital which will not exceed customary brokerage commissions.
The selling stockholder and its affiliates have agreed not to engage in any direct or indirect
short selling or hedging of our common stock during the term of the Purchase Agreement.