Athersys, Inc. (NASDAQ:ATHX) Files An 8-K Entry into a Material Definitive AgreementItem 1.01.
After market close on February1, 2018, Athersys, Inc. (the “Company,” “we,” “us” or “our”) entered into a common stock purchase agreement (the “Purchase Agreement”) with Aspire Capital Fund, LLC (“Aspire Capital”), which provides that, upon the terms and subject to the conditions and limitations set forth therein, Aspire Capital is committed to purchase up to an aggregate of $100.0million of shares of the Company’s common stock over the 36-month term of the Purchase Agreement. In consideration for entering into the Purchase Agreement, concurrently with the execution of the Purchase Agreement, the Company issued to Aspire Capital 450,000 shares of the Company’s common stock (the “Commitment Shares”), and Aspire Capital purchased 500,000 shares of the Company’s common stock (the “Initial Purchase Shares”) for an aggregate purchase price of $1,000,000.
Concurrently with entering into the Purchase Agreement, the Company also entered into a registration rights agreement with Aspire Capital (the “Registration Rights Agreement”), to which the Company agreed to file one or more registration statements, as permissible and necessary to register under the Securities Act of 1933, as amended (the “Securities Act”), the sale of the shares of the Company’s common stock that have been and may be issued to Aspire Capital under the Purchase Agreement.
to the Purchase Agreement and the Registration Rights Agreement, we intend to register under the Securities Act the sale of 24,700,000 shares of our common stock, which includes the Commitment Shares and the Initial Purchase Shares that have already been issued to Aspire Capital and an additional 23,750,000 shares of common stock that we may issue to Aspire Capital after the registration statement referred to above (the “Registration Statement”) is declared effective under the Securities Act.
After the U.S. Securities and Exchange Commission (the “SEC”) has declared the Registration Statement effective, on any business day on which the closing sale price of the Company’s common stock equals or exceeds $0.50 per share, we have the right, in our sole discretion, to present Aspire Capital with a purchase notice (each, a “Purchase Notice”), directing Aspire Capital (as principal) to purchase up to 200,000 shares of our common stock per trading day, provided that the aggregate price of such purchase shall not exceed $500,000 per trading day, up to an additional $99.0million of our common stock in the aggregate. The purchase price per Purchase Share to such Purchase Notice (the “Purchase Price”) is the lower of (i)the lowest sale price for the Company’s common stock on the date of sale or (ii)the arithmetic average of the three lowest closing sale prices for the Company’s common stock during the ten (10)consecutive business days ending on the business day immediately preceding the purchase date of those securities. The applicable Purchase Price will be determined prior to delivery of any Purchase Notice.
The Purchase Agreement provides that the number of shares that may be sold to the Purchase Agreement shall be limited to 24,703,708 (the “Exchange Cap”), which represents 19.99% of our outstanding shares of common stock as of January 31, 2018, unless stockholder approval or an exception to the rules of the NASDAQ Capital Market is obtained to issue more than 19.99%. This limitation shall not apply if, at any time the Exchange Cap is reached and at all times thereafter, the average price paid for all shares issued under the Purchase Agreement is equal to or greater than $1.76, which was the closing sale price of our common stock on February1, 2018. We are not required or permitted to issue any shares of common stock under the Purchase Agreement if such issuance would breach our obligations under the rules or regulations of the NASDAQ Capital Market. If we elect to sell more than the Exchange Cap, we must first obtain the approval of our stockholders to do so, if necessary, and register under the Securities Act the sale of any additional shares we may elect to sell to Aspire Capital before we can put such additional shares to Aspire Capital under the Purchase Agreement.
In addition, on any date on which we submit a Purchase Notice to Aspire Capital in an amount of at least 100,000 shares, we also have the right, in our sole discretion, to present Aspire Capital with a volume-weighted average price purchase notice (each, a “VWAP Purchase Notice”) directing Aspire Capital to purchase an amount of the Company’s common stock equal to a percentage (not to exceed 30%) of the aggregate shares of common stock traded on the NASDAQ Capital Market on the next business day (the “VWAP Purchase Date”), subject to a maximum number of shares determined by the Company (the “VWAP Purchase Share Volume Maximum”). The purchase price per Purchase Share to such VWAP Purchase Notice (the “VWAP Purchase Price”) shall be the lower of (i)the closing sale price on the date of sale and (ii)95% of the volume weighted average price for the Company’s common stock traded on the NASDAQ Capital Market on (i)the VWAP Purchase Date if the aggregate shares to be purchased on that date does not exceeded the VWAP Purchase Share Volume Maximum, or (ii)the portion of such business day until such time as the aggregate shares to be purchased will equal the VWAP Purchase Share Volume Maximum. Further, if the sale price of our common stock falls on the VWAP Purchase Date below the greater of (i)90% of the closing price of our common stock on the business day immediately preceding the VWAP Purchase Date or (ii)the price set by us in the VWAP Purchase Notice (the “VWAP Minimum Price Threshold”), the VWAP Purchase Price will be determined using the percentage in the VWAP Purchase Notice of the total
shares traded for such portion of the VWAP Purchase Date prior to the time that the sale price of our common stock fell below the VWAP Minimum Price Threshold and the volume weighted average price of our common stock sold during such portion of the VWAP Purchase Date prior to the time that the sale price of our common stock fell below the VWAP Minimum Price Threshold.
The Floor Price and the respective prices and share numbers in the preceding paragraphs shall be appropriately adjusted for any reorganization, recapitalization, stock dividend, stock split, reverse stock split or other similar transaction. Additionally, the Purchase Agreement provides that the Company and Aspire Capital shall not effect any sales under the Purchase Agreement if such shares proposed to be issued and sold, when aggregated with all other shares of the Company’s common stock that Aspire Capital and its affiliates beneficially own, would result in Aspire Capital and its affiliates beneficially owning more than 19.99% of the Company’s then issued and outstanding common stock.
There are no trading volume requirements or restrictions under the Purchase Agreement, and we will control the timing and amount of any sales of our common stock to Aspire Capital. Aspire Capital has no right to require any sales by us, but is obligated to make purchases from us as we direct in accordance with the Purchase Agreement. The Company may deliver multiple Purchase Notices and VWAP Purchase Notices to Aspire Capital from time to time during the term of the Purchase Agreement, so long as the most recent purchase has been completed. There are no limitations on use of proceeds, financial or business covenants, restrictions on future fundings, rights of first refusal, participation rights, penalties or liquidated damages in the Purchase Agreement. The Purchase Agreement may be terminated by us at any time, at our discretion, without any penalty or cost to us. Also, Aspire Capital has agreed that neither it nor any of its agents, representatives and affiliates shall engage in any direct or indirect short-selling or hedging, which establishes a net short position with respect to our common stock during any time prior to the termination of the Purchase Agreement.
The Purchase Agreement provides for customary events of default, upon the occurrence of which Aspire Capital may terminate the Purchase Agreement. Such events of default include, without limitation:
| • | the lapse, or unavailability to Aspire Capital for the sale of shares of the Company’s common stock, of any registration statement that is required to be maintained effective to the terms of the Registration Rights Agreement, subject to specified cure periods; |
| • | the suspension from trading or failure of the Company’s common stock to be listed on a Principal Market (as defined in the Purchase Agreement) for a period of three consecutive business days; |
| • | the delisting of the Company’s common stock from the Principal Market, provided the Company’s common stock is not immediately thereafter trading on the New York Stock Exchange, the NYSE MKT, the NYSE Arca, the NASDAQ Global Select Market, the NASDAQ Global Market, the OTC Bulletin Board or the OTCQB or OTCQX market places of the OTC Markets; |
| • | the failure for any reason by the Company’s transfer agent to issue Purchase Shares to Aspire Capital within five business days after the applicable Purchase Date that Aspire Capital is entitled to receive; |
| • | if any proceeding against the Company is commenced to or within the meaning of any Bankruptcy Law; |
| • | if at any time the number of shares sold to the Purchase Agreement exceeds the Exchange Cap, if applicable, unless and until stockholder approval is obtained; and |
| • | any breach by the Company of the representations, warranties, covenants or other term or condition contained in the Purchase Agreement or any related agreements that would reasonably be expected to have a material adverse effect except, in the case of a breach of a covenant which is reasonably curable, only if such breach continues for a period of at least five business days. |
The foregoing is a summary description of certain terms of the Purchase Agreement and the Registration Rights Agreement. For a full description of all terms, please refer to copies of the Purchase Agreement and the Registration Rights Agreement that are filed herewith as Exhibits 10.1 and 10.2, respectively, to this Current Report on Form 8-K and are incorporated herein by reference. All readers are encouraged to read the entire text of the Purchase Agreement and the Registration Rights Agreement.
The issuance of the Commitment Shares and the Initial Purchase Shares and all other shares of common stock that may be issued from time to time to Aspire Capital under the Purchase Agreement is exempt from registration under the Securities Act, to the exemption for transactions by an issuer not involving any public offering under Section4(2) of the Securities Act and Rule 506 of Regulation D promulgated thereunder.
| Item 1.01. | Unregistered Sales of Equity Securities. |
The information contained above in Item 1.01 is hereby incorporated by reference into this Item 1.01.
| Item 1.01. | Financial Statements and Exhibits. |
(d) Exhibits.
|
Exhibit Number |
Description |
| 10.1 | Common Stock Purchase Agreement, dated as of February1, 2018, by and between Athersys, Inc. and Aspire Capital Fund, LLC |
| 10.2 | Registration Rights Agreement, dated as of February1, 2018, by and between Athersys, Inc. and Aspire Capital Fund, LLC |
ATHERSYS, INC / NEW ExhibitEX-10.1 2 d529815dex101.htm EX-10.1 EX-10.1 Exhibit 10.1 COMMON STOCK PURCHASE AGREEMENT COMMON STOCK PURCHASE AGREEMENT (the Agreement),…To view the full exhibit click here
About Athersys, Inc. (NASDAQ:ATHX)
Athersys, Inc. is an international biotechnology company that is focused primarily in the field of regenerative medicine. The Company’s MultiStem cell therapy, an allogeneic stem cell product, is its lead platform product and is in later-stage clinical development. Its clinical development programs are focused on treating neurological conditions, cardiovascular disease, inflammatory and immune disorders, certain pulmonary conditions and other conditions where the standard of care is limited or inadequate for many patients. In the neurological area, the Company evaluated in a completed Phase II trial, the potential for MultiStem treatment of patients with a history of neurological damage from an ischemic stroke. The Company initiated a Phase II clinical study in the United States for the administration of MultiStem cell therapy to patients with a history of an acute myocardial infarction, or AMI.