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ATHX > SEC Filings for ATHX > Form 8-K on 23-Oct-2013All Recent SEC Filings

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Form 8-K for ATHERSYS, INC / NEW


23-Oct-2013

Entry into a Material Definitive Agreement, Termination of a Material Definit


Item 1.01. Entry into a Material Definitive Agreement.

After market close on October 22, 2013, Athersys, Inc. (the "Company", "we", "us" or "our"), entered into a common stock purchase agreement (the "Purchase Agreement") with Aspire Capital Fund, LLC, an Illinois limited liability company ("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 $25.0 million of shares of the Company's common stock over the 24-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 333,333 shares of its common stock (the "Commitment Shares").

Concurrently with entering into the Purchase Agreement, the Company also entered into a registration rights agreement with Aspire Capital (the "Registration Rights Agreement"), pursuant 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.

Pursuant to the Purchase Agreement and the Registration Rights Agreement, we intend to register under the Securities Act the sale of 10,000,000 shares of our common stock, which includes the Commitment Shares and an additional 9,666,667 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 effective the Registration Statement, on any business day on which the closing sale price of the Company's common stock equals or exceeds $1.00 per share (the "Floor Price"), 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 (each, a "Purchase Share"), provided that the aggregate price of such purchase shall not exceed $500,000 per trading day, up to $25.0 million of our common stock in the aggregate. The purchase price per Purchase Share pursuant 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 12 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 pursuant to the Purchase Agreement shall be limited to 11,972,186 (the "Exchange Cap"), which represents 19.99% of our outstanding shares of common stock as of October 21, 2013, unless stockholder approval or an exception pursuant 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 $1.73, which was the closing sale price of our common stock on October 22, 2013. 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 11,972,186 shares of our common stock, 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 pursuant 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 the Company's 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 . . .



Item 1.02 Termination of a Material Definitive Agreement.

The company had previously entered into a common stock purchase agreement (the "Former Purchase Agreement") with Aspire Capital on November 11, 2011, as amended. Pursuant to the terms of the Former Purchase Agreement, the Company sold an aggregate of 8.0 million shares of its common stock to Aspire Capital. In connection with the entry into the Purchase Agreement, the Former Purchase Agreement was terminated.



Item 3.02 Unregistered Sales of Equity Securities.

The information contained above in Item 1.01 is hereby incorporated by reference into this Item 3.02.



Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

Exhibit
Number       Description

10.1         Common Stock Purchase Agreement, dated as of October 22, 2013, by and
             between Athersys, Inc. and Aspire Capital Fund, LLC

10.2         Registration Rights Agreement, dated as of October 22, 2013, by and
             between Athersys, Inc. and Aspire Capital Fund, LLC


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