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 (Date of earliest event reported): November 11, 2011
Athersys, Inc.
(Exact name of registrant as specified in its charter)
| |
|
|
|
|
| Delaware
|
|
001-33876
|
|
20-4864095 |
| |
|
|
|
|
(State or other jurisdiction
of incorporation)
|
|
(Commission File Number)
|
|
(IRS Employer Identification No.) |
| |
|
|
| 3201 Carnegie Avenue, Cleveland, Ohio
|
|
44115-2634 |
| |
|
|
| (Address of principal executive offices)
|
|
(Zip Code) |
Registrant’s telephone number, including area code: (216) 431-9900
(Former name or former address, if changed since last report.)
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:
| o |
|
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| |
| o |
|
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| |
| o |
|
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| |
| o |
|
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. Entry into a Material Definitive Agreement.
Prior to market close, on November 11, 2011, Athersys, Inc. (the “Company”), 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 $20.0 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 266,667 shares of the Company’s common stock (the “Commitment Shares”) and Aspire Capital
purchased 666,667 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”), 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 8,000,000 shares of our common stock by Aspire
Capital, which include the Commitment Shares and the Initial Purchase Shares that have already been
issued to Aspire Capital and 7,066,666 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, 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 100,000 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 $19.0 million of our common
stock in the aggregate at a per share price calculated by reference to the prevailing market price
of our common stock.
In addition, on any date on which we submit a Purchase Notice to Aspire Capital in an amount
equal to 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 stock equal to up to 30% of the aggregate shares of the
Company’s common stock traded on The NASDAQ Capital Market on the next trading day, subject to a
maximum number of shares we may determine and a minimum trading price. The purchase price per
Purchase Share pursuant to such VWAP Purchase Notice is calculated by reference to the prevailing
market price of our common stock.
The Purchase Agreement provides that in no event will any shares of common stock be sold at a
purchase price less than $1.40 (the “Floor Price”), unless and until such time as the stockholders
of the Company approve the transaction contemplated by the Purchase Agreement. This Floor Price and
the respective prices and share numbers in the preceding paragraphs shall be appropriately adjusted
for any reorganization, recapitalization, non-cash 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. 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.
2
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
pursuant to the terms of the Registration Rights Agreement, subject to specified cure
periods. |
| |
• |
|
the delisting of the Company’s common stock from the NASDAQ Capital Market, provided the
Company’s common stock is not immediately thereafter trading on the New York Stock
Exchange, the NASDAQ Global Select Market, the NASDAQ Global Market, the NYSE Amex Equities
or the OTC Bulletin Board; 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 and, by its nature, is incomplete. Copies of the Purchase Agreement
and the Registration Rights Agreement 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, 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, pursuant to the exemption for transactions by an
issuer not involving any public offering under Section 4(2) of the Securities Act and Rule 506 of
Regulation D promulgated thereunder.
A copy of the press release issued by the Company entitled “Athersys Enters Into $20 million
Equity Purchase Agreement with Aspire Capital” is attached hereto as Exhibit 99.1 and incorporated
herein by reference.
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 November 11, 2011, by
and between Athersys, Inc. and Aspire Capital Fund, LLC |
| |
|
|
|
|
| |
10.2 |
|
|
Registration Rights Agreement, dated as of November 11, 2011, by
and between Athersys, Inc. and Aspire Capital Fund, LLC |
| |
|
|
|
|
| |
99.1 |
|
|
Press Release, dated November 14, 2011, entitled “Athersys Enters
Into $20 million Equity Purchase Agreement with Aspire Capital” |
3