Filed Pursuant to Rule 424(b)(5)
Registration No. 333-216626
PROSPECTUS SUPPLEMENT
(To Prospectus dated
March 21, 2017)
$50,000,000 of Shares of
Common Stock
We have entered into an Open
Market Sale Agreement
SM
, or sales agreement, with Jefferies LLC, or Jefferies, relating to shares of our common stock offered by this prospectus supplement and the accompanying prospectus. In
accordance with the terms of the sales agreement, we may offer and sell shares of our common stock having an aggregate offering price of $50,000,000 from time to time through Jefferies, acting as sales agent.
Our common stock is traded on The Nasdaq Capital Market under the symbol “ATHX.” On May 29, 2019, the last reported sale price of our common
stock was $1.70 per share.
Sales of our common stock, if any, under this prospectus supplement and the accompanying prospectus may be made in sales
deemed to be
“at-the-market”
equity offerings as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended, or the Securities Act.
Jefferies is not required to sell any specific number or dollar amount of securities, but will use commercially reasonable efforts to sell on our behalf all of the shares of common stock requested to be sold by us, consistent with its normal trading
and sales practices, on mutually agreed terms between Jefferies and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
Jefferies will be entitled to compensation at a commission rate of 3.0% of the gross sales price per share of common stock sold, with the exact amount to be
agreed to by us. In connection with its sale of common stock on our behalf, Jefferies may be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation of Jefferies may be deemed to be underwriting
commissions or discounts.
Investing in our common stock involves a high degree of risk. Before making an investment decision, please read the
information contained in and incorporated by reference under the heading “
Risk Factors
” on
page S-3
of this prospectus supplement, and under similar headings in
the other documents that we have filed or that are filed after the date hereof and incorporated by reference into this prospectus supplement and the accompanying prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this
prospectus supplement and the accompanying prospectus are truthful or complete. Any representation to the contrary is a criminal offense.
Jefferies
The date of this prospectus supplement is May 30, 2019.
TABLE OF CONTENTS
Prospectus Supplement
Prospectus
S-i
About This Prospectus Supplement
This document is in two parts. The first part is the prospectus supplement, which describes the terms of this offering. The second part is the
accompanying prospectus, which provides more general information, some of which may not apply to this offering. Generally, when we refer to this prospectus, we are referring to both parts of this document combined. If the description of this
offering varies between the prospectus supplement and the accompanying prospectus, you should rely on the information in this prospectus supplement, which supersedes the information in the accompanying prospectus. This prospectus supplement contains
information about the common stock offered in this offering and may add, update or change information in the accompanying prospectus. Before you invest in any of the common stock offered under this prospectus supplement, you should carefully read
both this prospectus supplement and the accompanying prospectus together with additional information under the heading “Where You Can Find More Information” and “Information We Incorporate By Reference.”
You should rely only on the information contained or incorporated by reference in this prospectus supplement and in the accompanying
prospectus or any free writing prospectus that we may provide. We have not authorized anyone to provide you with different information. If anyone provides you with different or additional information, you should not rely on it.
You should not
assume that the information contained in this prospectus supplement, the accompanying prospectus, any free writing prospectus that we may provide or any document incorporated by reference is accurate as of any date other than the date mentioned on
the cover page of these documents. We are not making offers to sell the common stock in any jurisdiction in which an offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so or to
anyone to whom it is unlawful to make an offer or solicitation.
References in this prospectus supplement and the accompanying prospectus
to the terms “we,” “us,” “Athersys” or “the Company” or other similar terms mean Athersys, Inc. and its consolidated subsidiaries, unless we state otherwise or the context indicates otherwise.
S-ii
Where You Can Find More Information
We are subject to the informational reporting requirements of the Securities Exchange Act of 1934, or the Exchange Act. We file reports, proxy
statements and other information with the Securities and Exchange Commission, or the SEC. Our SEC filings are available over the Internet at the SEC’s website at http://www.sec.gov.
We make available, free of charge, on our website at http://www.athersys.com, our annual reports on
Form 10-K,
quarterly reports on
Form 10-Q,
current reports on
Form 8-K
and amendments to those reports and
statements as soon as reasonably practicable after they are filed with the SEC. The contents of our website are not part of this prospectus supplement or the accompanying prospectus, and the reference to our website does not constitute incorporation
by reference into this prospectus supplement or the accompanying prospectus of the information contained at or accessible through that site, other than documents we file with the SEC that are incorporated by reference into this prospectus supplement
and the accompanying prospectus.
Information We Incorporate By Reference
The SEC allows us to “incorporate by reference” into this prospectus supplement and the accompanying prospectus the information in
documents we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be a part of this prospectus supplement and the accompanying
prospectus, and information that we file later with the SEC will automatically update and supersede this information. Any statement contained in any document incorporated or deemed to be incorporated by reference in this prospectus supplement and
the accompanying prospectus shall be deemed to be modified or superseded to the extent that a statement contained in or omitted from this prospectus supplement or the accompanying prospectus, or in any other subsequently filed document that also is
or is deemed to be incorporated by reference, modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus supplement or the
accompanying prospectus.
We incorporate by reference the documents listed below and any future documents that we file with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus supplement:
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our annual report on
Form 10-K
for the year ended December 31, 2018;
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our quarterly report on
Form 10-Q
for the quarterly period ended March 31, 2019;
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the description of our common stock set forth in the registration statement on
Form 8-A
filed on December 6, 2007, and all amendments and reports filed for the purpose of updating that description.
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We do not and will not, however, incorporate by reference in this prospectus supplement or the accompanying prospectus any documents or
portions thereof that are not deemed “filed” with the SEC, including any information furnished pursuant to Item 2.02 or Item 7.01 of our current reports on
Form 8-K
unless, and except
to the extent, specified in such current reports.
We will provide you with a copy of any of these filings (other than an exhibit to these
filings, unless the exhibit is specifically incorporated by reference into the filing requested) at no cost if you submit a request to us by writing or telephoning us at the following address and telephone number:
Athersys, Inc.
3201 Carnegie
Avenue
Cleveland, Ohio 44115-2634
(216)
431-9900
Attn: Secretary
S-iii
Disclosure Regarding Forward-Looking Statements
This prospectus supplement, the accompanying prospectus and the documents incorporated by reference contain forward-looking statements within
the meaning of the Private Securities Litigation Reform Act of 1995 that involve risks and uncertainties. These forward-looking statements relate to, among other things, the expected timetable for development of our product candidates, our growth
strategy and our future financial performance, including our operations, economic performance, financial condition, prospects and other future events. We have attempted to identify forward-looking statements by using such words as
“anticipates,” “believes,” “can,” “continue,” “could,” “estimates,” “expects,” “intends,” “may,” “plans,” “potential,” “should,”
“suggest,” “will,” or other similar expressions. These forward-looking statements are only predictions and are largely based on our current expectations. These forward-looking statements appear in a number of places in this
prospectus supplement, the accompanying prospectus and the documents incorporated by reference.
In addition, a number of known and
unknown risks, uncertainties and other factors could affect the accuracy of these statements. Some of the more significant known risks that we face are the risks and uncertainties inherent in the process of discovering, developing and
commercializing products that are safe and effective for use as human therapeutics, including the uncertainty regarding market acceptance of our product candidates and our ability to generate revenues. These risks may cause our actual results,
levels of activity, performance or achievements to differ materially from any future results, levels of activity, performance or achievements expressed or implied by these forward-looking statements.
Other important factors to consider in evaluating our forward-looking statements include:
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our ability to raise capital to fund our operations;
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the timing and nature of results from our MultiStem
®
clinical trials, including our
MASTERS-2
Phase 3 clinical trial and the HEALIOS K.K., or Healios, TREASURE and
ONE-BRIDGE
clinical trials in Japan;
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the possibility of delays in, adverse results of, and excessive costs, of the development process;
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our ability to successfully initiate and complete clinical trials of our product candidates;
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the possibility of delays, work stoppages or interruptions in manufacturing by third parties or us, such as due
to material supply constraints, contaminations, or regulatory issues, which could negatively impact our trials and the trials of our collaborators;
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uncertainty regarding market acceptance of our product candidates and our ability to generate revenues, including
MultiStem
®
cell therapy for the treatment of ischemic stroke, acute respiratory distress syndrome, or ARDS, acute myocardial infarction and trauma, and the prevention of graft-versus-host
disease and other disease indications;
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changes in external market factors;
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changes in our industry’s overall performance;
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changes in our business strategy;
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our ability to protect and defend our intellectual property and related business operations, including the
successful prosecution of our patent applications and enforcement of our patent rights, and operate our business in an environment of rapid technology and intellectual property development;
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our possible inability to realize commercially valuable discoveries in our collaborations with pharmaceutical and
other biotechnology companies;
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our ability to work with Healios to reach an agreement to license certain indications in China;
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S-iv
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our ability to meet milestones and earn royalties under our collaboration agreements, including the success of
our collaboration with Healios;
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our collaborators’ ability to continue to fulfill their obligations under the terms of our collaboration
agreements and generate sales related to our technologies;
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the success of our efforts to enter into new strategic partnerships and advance our programs, including, without
limitation, in North America, Europe, Japan and China;
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our possible inability to execute our strategy due to changes in our industry or the economy generally;
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changes in productivity and reliability of suppliers;
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the success of our competitors and the emergence of new competitors; and
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the risks mentioned in our most recent annual report on Form
10-K
under
Item 1A, “Risk Factors.”
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These factors and the other risk factors described in this prospectus supplement,
the accompanying prospectus and the documents incorporated by reference are not necessarily all of the important factors that could cause actual results to differ materially from those expressed in any of our forward-looking statements. Other
unknown or unpredictable factors also could harm our results. Consequently, there can be no assurance that the actual results or developments anticipated by us will be realized or, even if substantially realized, that they will have the expected
consequences to or effects on us. We cannot guarantee that any forward-looking statement will be realized, although we believe we have been prudent in our plans and assumptions. Achievement of future results is subject to risks, uncertainties and
inaccurate assumptions.
We undertake no obligation to publicly update forward-looking statements, whether as a result of new information,
future events or otherwise, except as required by law. You are advised, however, to consult any further disclosures we make on related subjects in our reports on
Forms 10-K,
10-Q
and
8-K
filed with the SEC.
S-v
Prospectus Supplement Summary
This summary highlights information contained or incorporated by reference in this prospectus supplement and the accompanying prospectus.
This summary may not contain all of the information that you should consider before investing in our common stock. We urge you to read this entire prospectus supplement, the accompanying prospectus and the documents incorporated by reference
carefully, including the section entitled “Risk Factors” and the financial statements and other information included or incorporated by reference in this prospectus supplement and the accompanying prospectus.
The Company
We are an international
biotechnology company that is focused in the field of regenerative medicine. We are committed to the discovery and development of
best-in-class
therapies designed to
extend and enhance the quality of human life. Through the application of our proprietary technologies, we have established a pipeline of therapeutic product development programs in multiple disease areas. Our MultiStem
®
cell therapy, a patented and proprietary allogeneic stem cell product, is our lead platform product and is currently in clinical development. Our most advanced program is focused on the treatment
of ischemic stroke, which is currently being evaluated in a registrational trial in Japan, and in a Phase 3 clinical trial in North America under a Special Protocol Assessment, or SPA, and Europe. Our current clinical development programs are
focused on treating neurological conditions, cardiovascular disease, inflammatory and immune disorders, certain pulmonary conditions and other conditions where the current standard of care is limited or inadequate for many patients. These represent
major areas of clinical need, as well as substantial commercial opportunities.
Recent Developments
On May 14, 2019, we announced that our clinical program evaluating MultiStem
®
cell therapy for the treatment of ARDS had received Fast Track designation from the United States Food and Drug Administration. Data from our ARDS Phase 1/2 clinical trial was presented at the American Thoracic Society International Conference on
May 20, 2019.
Company Information
We are incorporated in Delaware and our headquarters are located at 3201 Carnegie Avenue, Cleveland, Ohio 44115. Our telephone number is
(216) 431-9900.
Our website is http://www.athersys.com. The information accessible through our website is not part of this prospectus supplement or the accompanying prospectus, other than the documents that we
file with the SEC that are incorporated by reference into this prospectus supplement and the accompanying prospectus.
S-1
The Offering
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Common stock offered by us pursuant to this prospectus supplement
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Shares having an aggregate offering price of $50,000,000.
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Manner of offering
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“At-the-market”
offering that may be made from time to time through our agent, Jefferies LLC. See “Plan of Distribution” on page
S-8.
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Use of proceeds
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We currently expect to use the net proceeds from this offering for working capital and general corporate purposes. See “Use of Proceeds.”
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The Nasdaq Capital Market symbol
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ATHX.
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Risk factors
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You should carefully read and consider the information set forth in “Risk Factors” beginning on page S-3 of this prospectus supplement before investing in our securities.
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S-2
Risk Factors
Investing in our common stock involves significant risk. Prior to making a decision about investing in our common stock, you should carefully
consider the specific risk factors included below, as well as the risk factors discussed under the heading “Risk Factors” in our most recent annual report on Form
10-K
and in any subsequent quarterly
reports on Form
10-Q
and current reports on Form
8-K,
which are incorporated by reference in this prospectus supplement and the accompanying prospectus as provided in
“Information We Incorporate By Reference” and may be amended, supplemented or superseded from time to time by other reports we file with the SEC in the future. The risks and uncertainties we have described are not the only ones we may
face. Additional risks and uncertainties not currently known to us or that we currently deem immaterial may also affect our operations. If any of these risks actually occurs, our business, results of operations and financial condition could suffer.
In that case, the trading price of our common stock could decline, and you could lose all or a part of your investment.
Risks Related to This Offering
You may incur immediate and substantial dilution as a result of this offering.
The offering price per share of our common stock in this offering may exceed the net tangible book value per share of our common stock
outstanding prior to this offering. Assuming that an aggregate of 29,411,765 shares of our common stock are sold at a price of $1.70 per share, the last reported sale price of our common stock on The Nasdaq Capital Market on May 29, 2019, for
aggregate gross proceeds of $50.0 million, and after deducting commissions and estimated offering expenses payable by us, you would experience immediate dilution of $1.22 per share, representing the difference between our as adjusted net
tangible book value per share as of March 31, 2019 after giving effect to this offering and the assumed offering price. The exercise of outstanding stock options and warrants could result in further dilution of your investment. See
“Dilution” beginning on page
S-6
of this prospectus supplement for a more detailed description of the dilution to new investors in this offering.
We have broad discretion in the use of net proceeds from this offering and may not use them effectively.
We currently intend to use the net proceeds, if any, from this offering for working capital and general corporate purposes. See “Use of
Proceeds” beginning on page
S-4
of this prospectus supplement for further detail. Thus, we will have broad discretion in the application of such net proceeds. Our failure to apply these funds effectively
could affect our ability to continue to develop and commercialize our product candidates. Pending their use, we may invest the net proceeds from this offering in a manner that does not produce income or loses value.
S-3
Use of Proceeds
We currently expect to use the net proceeds from this offering for working capital and general corporate purposes.
We have not determined the amounts we plan to spend on any of the areas listed above or the timing of these expenditures. As a result, our
management will have broad discretion to allocate the net proceeds from this offering. Pending the application of the net proceeds as described above, we may invest the net proceeds from this offering in short-term, investment grade,
interest-bearing securities.
S-4
Dividend Policy
We would have to rely upon dividends and other payments from our wholly-owned subsidiary, ABT Holding Company, to generate the funds necessary
to make dividend payments, if any, on our common stock. ABT Holding Company, however, is legally distinct from us and has no obligation to pay amounts to us. The ability of ABT Holding Company to make dividend and other payments to us is subject to,
among other things, the availability of funds and applicable state laws. However, there are no restrictions such as government regulations or material contractual arrangements that restrict the ability of ABT Holding Company to make dividend and
other payments to us. We did not pay cash dividends on our common stock during the past three years ended December 31, 2018. We do not anticipate that we will pay any dividends on our common stock in the foreseeable future. Rather, we
anticipate that we will retain earnings, if any, for use in the development of our business. As a result, capital appreciation, if any, of our common stock will be our stockholders’ sole source of gain for the foreseeable future.
S-5
Dilution
Our net tangible book value of our common stock as of March 31, 2019 was approximately $36.8 million, or approximately $0.25 per
share of common stock, based upon 148,276,233 shares outstanding as of March 31, 2019. Net tangible book value per share is equal to our total tangible assets, less our total liabilities, divided by the total number of shares outstanding as of
March 31, 2019. Dilution with respect to net tangible book value per share represents the difference between the amount per share paid by purchasers of shares of common stock in this offering and the net tangible book value per share of our
common stock immediately after this offering.
After giving effect to the assumed sale of 29,411,765 shares of our common stock by us in
this offering at an assumed public offering price of $1.70 per share, which was the last reported sale price of our common stock on The Nasdaq Capital Market on May 29, 2019, less the estimated underwriting discounts and commissions and
estimated offering expenses payable by us, our as adjusted net tangible book value as of March 31, 2019 would have been $84.9 million, or $0.48 per share. This would represent an immediate increase in net tangible book value per share of $0.23
to existing stockholders and immediate dilution of $1.22 in net tangible book value per share to new investors purchasing common stock in this offering at the assumed offering price.
The following table illustrates this dilution on a per share basis. The as adjusted information is illustrative only and will adjust based on
the actual price to the public, the actual number of shares sold and other terms of the offering determined at the time shares of our common stock are sold pursuant to this prospectus supplement. The shares sold in this offering, if any, will be
sold from time to time at various prices.
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Assumed public offering price per share
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$
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1.70
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Net tangible book value per share as of March 31, 2019
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$
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0.25
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Increase in net tangible book value per share attributable to the offering
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$
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0.23
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As adjusted net tangible book value per share after giving effect to the offering
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$
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0.48
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Dilution in net tangible book value per share to new investors in the offering
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$
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1.22
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The foregoing table is based on 148,276,233 shares of our common stock outstanding, assumes no exercise of
outstanding options or warrants or vesting of restricted stock units after March 31, 2019 and excludes the following, each as of March 31, 2019:
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12,431,017 shares of common stock authorized and reserved for future issuance under outstanding awards under our
equity incentive plans;
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3,459,825 shares of common stock authorized and reserved for future issuance under our equity incentive plans;
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shares of common stock issuable upon the exercise of outstanding warrants; and
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16,475,000 shares of common stock issuable to Aspire Capital pursuant to our equity purchase arrangement with
Aspire Capital.
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S-6
Description of Capital Stock
Our Certificate of Incorporation, as amended, authorizes us to issue 300,000,000 shares of common stock, par value $0.001 per share, and
10,000,000 shares of preferred stock, par value $0.001 per share.
Common Stock
This section describes the general terms and provisions of our common stock. For more detailed information, you should refer to our Certificate
of Incorporation, as amended, and our Bylaws, as amended and restated, copies of which have been filed with the SEC. These documents are also incorporated by reference into the registration statement of which this prospectus forms a part.
Holders of shares of common stock will be entitled to receive dividends if and when declared by our board of directors from funds legally
available therefore, and, upon liquidation, dissolution or
winding-up
of the Company, will be entitled to share ratably in all assets remaining after payment of liabilities. The holders of shares of common
stock will not have any preemptive rights, but will be entitled to one vote for each share of common stock held of record. Stockholders will not have the right to cumulate their votes for the election of directors. The shares of common stock offered
hereby, when issued, will be fully paid and nonassessable.
Preferred Stock
This section describes the general terms and provisions of our preferred stock. For more detailed information, you should refer to our
Certificate of Incorporation, as amended, and our Bylaws, as amended and restated, copies of which have been filed with the SEC. These documents are also incorporated by reference into the registration statement of which this prospectus forms a
part.
Our board of directors is authorized, without action by our stockholders, to designate and issue up to 10,000,000 shares of
preferred stock, par value $0.001 per share, in one or more series. The board of directors can fix the rights, preferences and privileges of the shares of each series of preferred stock and any of its qualifications, limitations or restrictions. Our
board of directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of common stock. The issuance of preferred stock, while providing
flexibility in connection with possible future financings, acquisitions and other corporate purposes could, under certain circumstances, have the effect of delaying, deferring or preventing a change in control of us and could adversely affect the
market price of our common stock. We do not have any shares of preferred stock outstanding, and we have no current plans to issue any preferred stock.
Transfer Agent and Registrar
We have
appointed Computershare Investor Services as the transfer agent and registrar for our common stock.
Listing
Our common stock is listed on The Nasdaq Capital Market under the symbol “ATHX.”
S-7
Plan of Distribution
We have entered into a sales agreement with Jefferies under which we may offer and sell $50,000,000 of shares from time to time through
Jefferies, acting as agent. Sales of our common stock, if any, under this prospectus supplement and the accompanying prospectus may be made in sales deemed to be
“at-the-market”
equity offerings as defined in Rule 415 promulgated under the Securities Act.
Each time we wish to issue and sell common stock under the sales agreement, we will notify Jefferies of the number of shares to be issued, the
dates on which such sales are anticipated to be made, any limitation on the number of shares to be sold in any one day and any minimum price below which sales may not be made. Once we have so instructed Jefferies, unless Jefferies declines to accept
the terms of such notice, Jefferies has agreed to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such shares up to the amount specified on such terms. The obligations of Jefferies under the
sales agreement to sell our common stock are subject to a number of conditions that we must meet.
The settlement of sales of shares
between us and Jefferies is generally anticipated to occur on the second trading day following the date on which the sale was made. Sales of our common stock as contemplated in this prospectus supplement will be settled through the facilities of The
Depository Trust Company or by such other means as we and Jefferies may agree upon. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
We will pay Jefferies a commission equal to 3.0% of the aggregate gross proceeds we receive from each sale of our common stock, with the exact
amount to be agreed to by us, or at such other time as we and Jefferies agree. Because there is no minimum offering amount required as a condition to close this offering, the actual total public offering amount, commissions and proceeds to us, if
any, are not determinable at this time. In connection with the sale of the common stock on our behalf, Jefferies will be deemed to be an “underwriter” within the meaning of the Securities Act, and the compensation of Jefferies will be
deemed to be underwriting commissions or discounts. We have agreed to provide indemnification and contribution to Jefferies with respect to certain civil liabilities, including liabilities under the Securities Act. In addition, we have agreed to
reimburse Jefferies for the fees and disbursements of its counsel, payable upon execution of the sales agreement, in an amount not to exceed $50,000. We estimate that the total expenses for the offering, but excluding any underwriter fees or expense
reimbursement payable to Jefferies under the terms of the sales agreement, will be approximately $300,000.
The offering of our common
stock pursuant to the sales agreement will terminate upon the earlier of (i) the sale of all shares of our common stock subject to the sales agreement or (ii) termination of the sales agreement as permitted therein. We and Jefferies may
each terminate the sales agreement at any time upon ten trading days’ prior notice.
This summary of the material provisions of the
sales agreement does not purport to be a complete statement of its terms and conditions. A copy of the sales agreement is filed as an exhibit to a report filed under the Exchange Act and incorporated by reference in this prospectus supplement. See
“Where You Can Find More Information” and “Information We Incorporate By Reference” above.
Jefferies and its
affiliates may in the future provide various investment banking, commercial banking and other financial services for us and our affiliates, for which services they may in the future receive customary fees. In the course of its business, Jefferies
may actively trade our securities for its own account or for the accounts of customers.
Jefferies has agreed that, to the extent required
by Regulation M under the Exchange Act, Jefferies will not engage in any market making activities involving our common stock while the offering is ongoing under this prospectus supplement.
This prospectus supplement and the accompanying prospectus in electronic format may be made available on a website maintained by Jefferies,
and Jefferies may distribute this prospectus supplement and the accompanying prospectus electronically.
S-8
Legal Matters
The validity of the issuance of the common stock offered in this offering has been passed upon for us by Jones Day. Jefferies LLC is being
represented in connection with this offering by Latham & Watkins LLP.
Experts
The consolidated financial statements of Athersys, Inc. appearing in Athersys, Inc.’s Annual Report (Form
10-K)
for the year ended December 31, 2018, including the schedule appearing therein, and the effectiveness of Athersys, Inc.’s internal control over financial reporting as of December 31, 2018,
have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reports thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated
herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
S-9
Prospectus
$75,000,000
Common Stock
Preferred
Stock
Depositary Shares
Warrants
Subscription
Rights
Debt Securities
Purchase Contracts
Units
We may offer and sell from time to time our common stock, preferred stock, depositary shares, warrants, subscription rights, debt securities and purchase
contracts, as well as units that include any of these securities. We may sell any combination of these securities in one or more offerings with an aggregate initial offering price of $75,000,000 or the equivalent amount in other currencies or
currency units.
We will provide the specific terms of the securities to be offered in one or more supplements to this prospectus. You should read this
prospectus and the applicable prospectus supplement carefully before you invest in our securities. This prospectus may not be used to offer and sell our securities unless accompanied by a prospectus supplement describing the method and terms of the
offering of those offered securities.
We may sell the securities directly or to or through underwriters or dealers, and also to other purchasers or
through agents. The names of any underwriters or agents that are included in a sale of securities to you, and any applicable commissions or discounts, will be stated in an accompanying prospectus supplement.
Investing in any of our securities involves risk. Please read carefully the section entitled “
Risk Factors
” beginning
on page 3 of this prospectus.
Our common stock is listed on the NASDAQ Capital Market under the symbol “ATHX.” On March 9, 2017, the closing price of our common stock on the
NASDAQ Capital Market was $1.18 per share. None of the other securities that we may offer under this prospectus are currently publicly traded.
Neither the Securities and
Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is March 21, 2017.
Table of Contents
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About This Prospectus
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or the “SEC,” using a
“shelf” registration process. Under this shelf process, we may from time to time sell any combination of the securities described in this prospectus in one or more offerings up to an aggregate initial offering price of $75,000,000 or the
equivalent amount in other currencies or currency units.
This prospectus provides you with a general description of the securities we may offer. Each
time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. For a more complete understanding of the offering of the securities, you should refer to the registration
statement, including its exhibits. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with additional information under the
heading “Where You Can Find More Information” and “Information We Incorporate By Reference.”
We have not authorized anyone to provide
you with different information from the information contained or incorporated by reference in this prospectus and in any prospectus supplement or in any free writing prospectus that we may provide you. You should not assume that the information
contained in this prospectus, any prospectus supplement, any document incorporated by reference or any free writing prospectus is accurate as of any date, other than the date mentioned on the cover page of these documents. We are not making offers
to sell the securities in any jurisdiction in which an offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation.
References in this prospectus to the terms “we,” “us” or “the Company” or other similar terms mean Athersys, Inc. and its
consolidated subsidiaries, unless we state otherwise or the context indicates otherwise.
Where You Can Find
More Information
We are subject to the informational reporting requirements of the Securities Exchange Act of 1934, or the “Exchange Act.”
We file reports, proxy statements and other information with the SEC. Our SEC filings are available at the SEC’s website at http://www.sec.gov. You may read and copy any reports, statements and other information filed by us at the SEC’s
Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call 1-800-SEC-0330 for further information on the Public Reference Room. You may also inspect our SEC reports and other information at our website at
http://www.athersys.com. The information contained on or accessible through our website is not a part of this prospectus, other than the documents that we file with the SEC that are incorporated by reference into this prospectus.
Information We Incorporate By Reference
The SEC allows us to “incorporate by reference” into this prospectus the information in documents we file with it, which means that we can disclose
important information to you by referring you to those documents. The information incorporated by reference is considered to be a part of this prospectus, and information that we file later with the SEC will automatically update and supersede this
information. Any statement contained in any document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in or omitted
from this prospectus or any accompanying prospectus supplement, or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein, modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
We incorporate by reference the documents
listed below and any future documents that we file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (1) after the date of the initial filing of the registration statement of which this prospectus forms a part prior to
the effectiveness of the registration statement and (2) after the date of this prospectus until the offering of the securities is terminated:
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our Annual Report on
Form
10-K
for the year ended December 31, 2016;
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the description of our common stock set forth in our Registration Statement on
Form
8-A
filed with the SEC on December 6, 2007, and all amendments and reports filed for the purpose of updating that description.
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We will not, however, incorporate by reference in this prospectus any documents or portions thereof that are not deemed “filed” with the SEC,
including any information furnished pursuant to Item 2.02 or Item 7.01 of our current reports on Form 8-K unless, and
1
except to the extent, specified in such current reports.
We will provide you with a copy of any of
these filings (other than an exhibit to these filings, unless the exhibit is specifically incorporated by reference into the filing requested) at no cost, if you submit a request to us by writing or telephoning us at the following address and
telephone number:
Athersys, Inc.
3201 Carnegie Avenue
Cleveland,
Ohio 44115-2634
Phone: (216) 431-9900
Attention: Secretary
2
The Company
We are an international biotechnology company that is focused primarily in the field of regenerative medicine. We are committed to the discovery and
development of best-in-class therapies designed to extend and enhance the quality of human life. We have established a portfolio of therapeutic product development programs to address significant unmet medical needs in multiple disease areas. Our
MultiStem
®
cell therapy, a patented and proprietary allogeneic stem cell product, is our lead platform product and is currently in later-stage clinical development. Our current clinical
development programs are focused on treating neurological conditions, cardiovascular disease, inflammatory and immune disorders, certain pulmonary conditions and other conditions where the current standard of care is limited or inadequate for many
patients. These represent major areas of clinical need, as well as substantial commercial opportunities.
Corporate Information
We are incorporated under the laws of the State of Delaware. Our principal executive offices are located at 3201 Carnegie Avenue, Cleveland, Ohio 44115-2634.
Our telephone number is (216) 431-9900. Our website is http://www.athersys.com. The information contained on or accessible through our website is not part of this prospectus, other than the documents that we file with the SEC that are
incorporated by reference into this prospectus.
Risk Factors
Investing in our securities involves risk. Prior to making a decision about investing in our securities, you should carefully consider the specific factors
discussed under the heading “Risk Factors” in our most recent annual report on Form 10-K, which is incorporated herein by reference and may be amended, supplemented or superseded from time to time by other reports we file with the SEC in
the future. If any of these risks actually occurs, our business, results of operations and financial condition could suffer. In that case, the trading price of our securities could decline, and you could lose all or a part of your investment.
Disclosure Regarding Forward-Looking Statements
This prospectus, including the documents incorporated by reference, contains, and any prospectus supplement may contain, “forward-looking
statements” as defined in the Private Securities Litigation Reform Act of 1995. These forward-looking statements relate to, among other things, the expected timetable for development of our product candidates, our growth strategy, and our
future financial performance, including our operations, economic performance, financial condition, prospects, and other future events. We have attempted to identify forward-looking statements by using such words as “anticipates,”
“believes,” “can,” “continue,” “could,” “estimates,” “expects,” “intends,” “may,” “plans,” “potential,” “should,” “suggest,”
“will,” or other similar expressions. These forward-looking statements are only predictions and are largely based on our current expectations.
In addition, a number of known and unknown risks, uncertainties, and other factors could affect the accuracy of these statements. Some of the more significant
known risks that we face are the risks and uncertainties inherent in the process of discovering, developing, and commercializing products that are safe and effective for use as human therapeutics, including the uncertainty regarding market
acceptance of our product candidates and our ability to generate revenues. The following risks and uncertainties may cause our actual results, levels of activity, performance, or achievements to differ materially from any future results, levels of
activity, performance, or achievements expressed or implied by these forward-looking statements:
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our ability to raise capital to fund our operations;
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the timing and nature of results from our MultiStem clinical trials;
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the possibility of delays in, adverse results of, and excessive costs of the development process;
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our ability to successfully initiate and complete clinical trials of our product candidates;
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uncertainty regarding market acceptance of our product candidates and our ability to generate revenues, including
MultiStem cell therapy for the treatment of stroke, acute myocardial infarction and acute respiratory distress syndrome, and the prevention of graft-versus-host disease and other disease indications;
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changes in external market factors;
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changes in our industry’s overall performance;
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changes in our business strategy;
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our ability to protect and defend our intellectual property and related business operations, including the
successful prosecution of our patent applications and enforcement of our patent rights, and operate our business in an environment of rapid technology and intellectual property development;
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our possible inability to realize commercially valuable discoveries in our collaborations with pharmaceutical and
other biotechnology companies;
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our ability to meet milestones and earn royalties under our collaboration agreements;
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our collaborators’ ability to continue to fulfill their obligations under the terms of our collaboration
agreements;
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the success of our efforts to enter into new strategic partnerships and advance our programs, including, without
limitation, in the United States, Europe and Japan;
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our possible inability to execute our strategy due to changes in our industry or the economy generally;
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changes in productivity and reliability of suppliers;
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the success of our competitors and the emergence of new competitors; and
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the risks mentioned under Item 1A, “Risk Factors” in our Current Report on Form 10-K for the year
ended December 31, 2016.
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Any forward-looking statement you read in this prospectus, any prospectus supplement or any document
incorporated by reference reflects our current views with respect to future events and is subject to these and other risks, uncertainties and assumptions relating to our operations, operating results growth strategy and liquidity. You should not
place undue reliance on these forward-looking statements because such statements speak only as of the date when made. We undertake no obligation to publicly update forward-looking statements, whether as a result of new information, future events or
otherwise, except as otherwise required by law. You are advised, however, to consult any further disclosures we make on related subjects in our reports on Forms 10-Q, 8-K and 10-K furnished to the SEC. You should understand that it is not possible
to predict or identify all risk factors. Consequently, you should not consider any such list to be a complete set of all potential risks or uncertainties.
Any document incorporated by reference or any prospectus supplement may also contain statistical data and estimates we obtained from industry publications and
reports generated by third parties. Although we believe that the publications and reports are reliable, we have not independently verified their data.
4
Use of Proceeds
Unless we inform you otherwise in the applicable prospectus supplement, we expect to use the net proceeds from the sale of securities for general corporate
purposes, including, but not limited to, research and development costs, payment obligations and capital expenditures. Pending any specific application, we may initially invest funds in U.S. government obligations.
Ratio of Earnings to Fixed Charges
The following table sets forth our ratio of consolidated earnings to fixed charges for the periods presented:
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Year Ended December 31,
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2016
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2015
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2014
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2013
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2012
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Ratio of earnings to fixed charges(1)
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(2)
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(2)
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(2)
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(2)
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(2)
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(1)
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For purposes of calculating our ratio of earnings to fixed charges:
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earnings consist of loss from continuing operations before income taxes plus: (i) interest on indebtedness;
and (ii) the portion of rents representative of interest factor;
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fixed charges consist of: (i) interest on indebtedness; and (ii) the portion of rents representative of
interest factor; and
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the ratio of earnings to fixed charges is determined by dividing earnings by fixed charges, as defined above.
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(2)
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For the years ended December 31, 2016, 2015, 2014, 2013 and 2012 there was a deficiency of earnings to
cover the fixed charges of $39,000, $45,000, $43,000, $40,000 and $37,000, respectively.
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Because we have no preferred stock issued (and
have not had any issued during the fiscal years shown above), a ratio of earnings to combined fixed charges and preferred dividends is not presented.
5
Description of Capital Stock
We are authorized to issue 150,000,000 shares of common stock, par value $0.001 per share, and 10,000,000 shares of preferred stock, par value $0.001 per
share.
Common Stock
This section describes the
general terms and provisions of our common stock. For more detailed information, you should refer to our Certificate of Incorporation and Bylaws, copies of which have been filed with the SEC. These documents are also incorporated by reference into
the registration statement of which this prospectus forms a part.
Holders of shares of common stock will be entitled to receive dividends if and when
declared by the board of directors from funds legally available therefore, and, upon liquidation, dissolution or winding-up of our company, will be entitled to share ratably in all assets remaining after payment of liabilities. The holders
of shares of common stock will not have any preemptive rights, but will be entitled to one vote for each share of common stock held of record. Stockholders will not have the right to cumulate their votes for the election of directors. The shares of
common stock offered hereby, when issued, will be fully paid and nonassessable.
Preferred Stock
This section describes the general terms and provisions of our preferred stock. For more detailed information, you should refer to our Certificate of
Incorporation and Bylaws, copies of which have been filed with the SEC. These documents are also incorporated by reference into the registration statement of which this prospectus forms a part.
Our board of directors is authorized, without action by our stockholders, to designate and issue up to 10,000,000 shares of preferred stock, par value $0.001
per share, in one or more series. The board of directors can fix the rights, preferences and privileges of the shares of each series and any of its qualifications, limitations or restrictions. Our board of directors may authorize the issuance of
preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of common stock. The issuance of preferred stock, while providing flexibility in connection with possible future financings,
acquisitions and other corporate purposes could, under certain circumstances, have the effect of delaying, deferring or preventing a change in control of us and could adversely affect the market price of our common stock. We do not have any shares
of preferred stock outstanding, and we have no current plans to issue any preferred stock.
Transfer Agent and Registrar
We have appointed Computershare Investor Services as the transfer agent and registrar for our common stock.
Listing
Our common stock is listed on the NASDAQ Capital
Market under the symbol “ATHX.”
6
Description of Depositary Shares
We may offer depositary shares representing fractional shares of our preferred stock of any series. The following description sets forth certain general terms
and provisions of the depositary shares that we may offer pursuant to this prospectus. The particular terms of the depositary shares, including the fraction of a preferred share that such depositary share will represent, and the extent, if any, to
which the general terms and provisions may apply to the depositary shares so offered, will be described in the applicable prospectus supplement.
The
shares of preferred stock represented by depositary shares will be deposited under a depositary agreement between us and a bank or trust company that meets certain requirements and is selected by us, which we refer to as the bank depositary. Each
owner of a depositary share will be entitled to all the rights and preferences of the shares of preferred stock represented by the depositary share. The depositary shares will be evidenced by depositary receipts issued pursuant to the depositary
agreement. Depositary receipts will be distributed to those persons purchasing the fractional shares of preferred stock in accordance with the terms of the offering. The deposit agreement will also contain provisions relating to the manner in which
any subscription or similar rights we offer to holders of the preferred stock will be made available to the holders of depositary shares.
The following
description is a general summary of some common provisions of a depositary agreement and the related depositary receipts. The description below and in any prospectus supplement does not include all of the terms of the depositary agreement and the
related depositary receipts. Copies of the form of depositary agreement and the depositary receipts relating to any particular issue of depositary shares will be filed with the SEC each time we issue depositary shares, and you should read those
documents for provisions that may be important to you. For more information on how you can obtain copies of the forms of the depositary agreement and the related depositary receipts, see “Where You Can Find More Information.”
Dividends and Other Distributions
If we pay a cash
distribution or dividend on a series of preferred stock represented by depositary shares, the bank depositary will distribute these dividends to the record holders of these depositary shares. If the distributions are in property other than cash, the
bank depositary will distribute the property to the record holders of the depositary shares. However, if the bank depositary determines that it is not feasible to make the distribution of property, the bank depositary may, with our approval, sell
this property and distribute the net proceeds from this sale to the record holders of the depositary shares.
Redemption of Depositary Shares
If we redeem a series of preferred stock represented by depositary shares, the bank depositary will redeem the depositary shares from the proceeds received by
the bank depositary in connection with the redemption. The redemption price per depositary share will equal the applicable fraction of the redemption price per share of the preferred stock. If fewer than all the depositary shares are redeemed, the
depositary shares to be redeemed will be selected by lot or pro rata as the bank depositary may determine.
Voting the Preferred Stock
Upon receipt of notice of any meeting at which the holders of the preferred stock represented by depositary shares are entitled to vote, the bank depositary
will mail the notice to the record holders of the depositary shares relating to the preferred stock. Each record holder of these depositary shares on the record date (which will be the same date as the record date for the preferred stock) may
instruct the bank depositary as to how to vote the preferred stock represented by this holder’s depositary shares. The bank depositary will endeavor, insofar as practicable, to vote the amount of the preferred stock represented by such
depositary shares in accordance with these instructions, and we will take all action which the bank depositary deems necessary in order to enable the bank depositary to do so. The bank depositary will abstain from voting shares of the preferred
stock to the extent it does not receive specific instructions from the holders of depositary shares representing this preferred stock.
Amendment and
Termination of the Depositary Agreement
The form of depositary receipt evidencing the depositary shares and any provision of the depositary agreement
may be amended by agreement between the bank depositary and us. However, any amendment that materially and adversely alters the rights of the holders of depositary shares will not be effective unless this amendment has been approved by the holders
of at least a majority of the depositary shares then outstanding. The depositary agreement may be terminated by the bank depositary or us only if:
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all outstanding depositary shares have been redeemed; or
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there has been a final distribution in respect of the preferred stock in connection with any liquidation,
dissolution or winding up of the Company and this distribution has been distributed to the holders of depositary receipts.
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Charges
of Bank Depositary
We will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements.
We will pay charges of the bank depositary in connection with the initial deposit of the preferred stock and any redemption of the preferred stock. Holders of depositary receipts will pay other transfer, tax and governmental charges and any other
charges, including a fee for the withdrawal of shares of preferred stock upon surrender of depositary receipts, as are expressly provided in the depositary agreement to be for their accounts.
Withdrawal of Preferred Stock
Except as may be provided
otherwise in the applicable prospectus supplement, upon surrender of depositary receipts at the principal office of the bank depositary, subject to the terms of the depositary agreement, the owner of the depositary shares may demand delivery of the
number of whole shares of preferred stock and all money and other property, if any, represented by those depositary shares. Fractional shares of preferred stock will not be issued. If the depositary receipts delivered by the holder evidence a number
of depositary shares in excess of the number of depositary shares representing the number of whole shares of preferred stock to be withdrawn, the bank depositary will deliver to this holder at the same time a new depositary receipt evidencing the
excess number of depositary shares. Holders of preferred stock thus withdrawn may not thereafter deposit those shares under the depositary agreement or receive depositary receipts evidencing depositary shares therefor.
Miscellaneous
The bank depositary will forward to
holders of depositary receipts all reports and communications from us that are delivered to the bank depositary and that we are required to furnish to the holders of preferred stock.
Neither the bank depositary nor we will be liable if we are prevented or delayed by law or any circumstance beyond our control in performing our obligations
under the depositary agreement. The obligations of the bank depositary and us under the depositary agreement will be limited to performance in good faith of our duties thereunder, and we will not be obligated to prosecute or defend any legal
proceeding in respect of any depositary shares or shares of preferred stock unless satisfactory indemnity is furnished. We may rely upon written advice of counsel or accountants, or upon information provided by persons presenting shares of preferred
stock for deposit, holders of depositary receipts or other persons believed to be competent and on documents believed to be genuine.
Resignation and
Removal of Bank Depositary
The bank depositary may resign at any time by delivering to us notice of its election to do so, and we may at any time
remove the bank depositary. Any such resignation or removal will take effect upon the appointment of a successor bank depositary and the successor’s acceptance of this appointment. The successor bank depositary must be appointed within 60 days
after delivery of the notice of resignation or removal and must be a bank or trust company meeting the requirements of the depositary agreement.
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Description of Warrants
We may issue warrants for the purchase of common stock, preferred stock, depositary shares or debt securities. The following description sets forth certain
general terms and provisions of the warrants that we may offer pursuant to this prospectus. The particular terms of the warrants and the extent, if any, to which the general terms and provisions may apply to the warrants so offered will be described
in the applicable prospectus supplement.
Warrants may be issued independently or together with other securities and may be attached to or separate from
any offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a bank or trust company, as warrant agent. The warrant agent will act solely as our agent in connection with the
warrants and will not have any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants.
A copy of the
forms of the warrant agreement and the warrant certificate relating to any particular issue of warrants will be filed with the SEC each time we issue warrants, and you should read those documents for provisions that may be important to you. For more
information on how you can obtain copies of the forms of the warrant agreement and the related warrant certificate, see “Where You Can Find More Information.”
Debt Warrants
The prospectus supplement relating to a
particular issue of warrants to issue debt securities will describe the terms of those warrants, including the following:
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the title of the warrants;
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the offering price for the warrants, if any;
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the aggregate number of the warrants;
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the designation and terms of the debt securities purchasable upon exercise of the warrants;
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if applicable, the designation and terms of the debt securities that the warrants are issued with and the number
of warrants issued with each debt security;
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if applicable, the date from and after which the warrants and any debt securities issued with them will be
separately transferable;
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the principal amount of debt securities that may be purchased upon exercise of a warrant and the price at which
the debt securities may be purchased upon exercise;
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the dates on which the right to exercise the warrants will commence and expire;
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if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;
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whether the warrants represented by the warrant certificates or debt securities that may be issued upon exercise
of the warrants will be issued in registered or bearer form;
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information relating to book-entry procedures, if any;
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the currency or currency units in which the offering price, if any, and the exercise price are payable;
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if applicable, a discussion of material U.S. federal income tax considerations;
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anti-dilution provisions of the warrants, if any;
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redemption or call provisions, if any, applicable to the warrants;
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any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and
exercise of the warrants; and
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any other information we think is important about the warrants.
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Stock Warrants
The prospectus supplement relating to a particular issue of warrants to issue common stock, preferred stock or depositary shares will describe the terms of the
common stock warrants and preferred stock warrants, including the following:
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the title of the warrants;
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the offering price for the warrants, if any;
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the aggregate number of the warrants;
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the designation and terms of the common stock, preferred stock or depositary shares that may be purchased upon
exercise of the warrants;
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if applicable, the designation and terms of the securities that the warrants are issued with and the number of
warrants issued with each security;
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if applicable, the date from and after which the warrants and any securities issued with the warrants will be
separately transferable;
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the number of shares of common stock or preferred stock or depositary shares that may be purchased upon exercise
of a warrant and the price at which the shares may be purchased upon exercise;
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the dates on which the right to exercise the warrants commence and expire;
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if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;
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the currency or currency units in which the offering price, if any, and the exercise price are payable;
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if applicable, a discussion of material U.S. federal income tax considerations;
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anti-dilution provisions of the warrants, if any;
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redemption or call provisions, if any, applicable to the warrants;
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any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and
exercise of the warrants; and
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any other information we think is important about the warrants.
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Exercise of Warrants
Each warrant will entitle the
holder of the warrant to purchase at the exercise price set forth in the applicable prospectus supplement the number of shares of common stock, preferred stock or depositary shares or the principal amount of debt securities being offered. Holders
may exercise warrants at any time up to the close of business on the expiration date set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants are void. Holders may exercise warrants
as set forth in the prospectus supplement relating to the warrants being offered.
Until a holder exercises the warrants to purchase our common stock,
preferred stock, depositary shares or debt securities, the holder will not have any rights as a holder of our common stock, preferred stock, depositary shares or debt securities, as the case may be, by virtue of ownership of warrants.
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Description of Subscription Rights
We may issue to our shareholders subscription rights to purchase our common stock, preferred stock, depositary shares or debt securities. The following
description sets forth certain general terms and provisions of the subscription rights that we may offer pursuant to this prospectus. The particular terms of the subscription rights and the extent, if any, to which the general terms and provisions
may apply to the subscription rights so offered will be described in the applicable prospectus supplement.
Subscription rights may be issued
independently or together with any other security offered by this prospectus and may or may not be transferable by the shareholder receiving the rights in the rights offering. In connection with any rights offering, we may enter into a standby
underwriting agreement with one or more underwriters pursuant to which the underwriter will purchase any securities that remain unsubscribed for upon completion of the rights offering, or offer these securities to other parties who are not our
shareholders. A copy of the form of subscription rights certificate will be filed with the SEC each time we issue subscription rights, and you should read that document for provisions that may be important to you. For more information on how you can
obtain a copy of any subscription rights certificate, see “Where You Can Find More Information.”
The applicable prospectus supplement relating
to any subscription rights will describe the terms of the offered subscription rights, including, where applicable, the following:
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the exercise price for the subscription rights;
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the number of subscription rights issued to each shareholder;
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the extent to which the subscription rights are transferable;
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any other terms of the subscription rights, including terms, procedures and limitations relating to the exchange
and exercise of the subscription rights;
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the date on which the right to exercise the subscription rights will commence and the date on which the right
will expire;
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the extent to which the subscription rights include an over-subscription privilege with respect to unsubscribed
securities; and
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the material terms of any standby underwriting arrangement entered into by us in connection with the subscription
rights offering.
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Description of Debt Securities
The following description sets forth certain general terms and provisions of the debt securities that we may issue, which may be issued as convertible or
exchangeable debt securities. We will set forth the particular terms of the debt securities we offer in a prospectus supplement and the extent, if any, to which the following general terms and provisions will apply to particular debt securities.
The debt securities will be issued under an indenture to be entered into between us and a trustee that we will specify in the applicable prospectus
supplement. The indenture, and any supplemental indentures thereto, will be subject to, and governed by, the Trust Indenture Act of 1939, as amended. The following description of general terms and provisions relating to the debt securities and the
indenture under which the debt securities will be issued is a summary only and therefore is not complete and is subject to, and qualified in its entirety by reference to, the terms and provisions of the indenture. The form of the indenture has been
filed with the SEC as an exhibit to the registration statement of which this prospectus forms a part, and you should read the indenture for provisions that may be important to you. For more information on how you can obtain a copy of the form of the
indenture, see “Where You Can Find More Information.”
Capitalized terms used in this section and not defined herein have the meanings specified
in the indenture. When we refer to “we,” “our” and “us” in this section, we mean Athersys, Inc. excluding, unless the context otherwise requires or as otherwise expressly stated, its subsidiaries.
General
Unless otherwise specified in a prospectus
supplement, the debt securities will be our direct, unsecured obligations and will rank equally with all of our existing and future senior unsecured indebtedness senior in right of payment to all of our subordinated indebtedness.
The indenture does not limit the aggregate principal amount of debt securities that may be issued under it and provides that debt securities may be issued
under it from time to time in one or more series. We may specify a maximum aggregate principal amount for the debt securities of any series.
Unless
otherwise specified in the applicable prospectus supplement, the indenture does not afford the holders of the debt securities the right to require us to repurchase or redeem the debt securities in the event of a highly-leveraged transaction.
We are not obligated to issue all debt securities of one series at the same time and, unless otherwise provided in the applicable prospectus
supplement, we may reopen a series, without the consent of the holders of the outstanding debt securities of that series, for the issuance of additional debt securities of that series. Additional debt securities of a particular series will have the
same terms and conditions as outstanding debt securities of such series, except for the issue date and, in some cases, the public offering price and the first interest payment date, and will be consolidated with, and form a single series with, such
outstanding debt securities;
provided, however
, that if such additional debt securities are not fungible with the outstanding debt securities of such series for U.S. federal income tax purposes, the additional debt securities will have a
separate CUSIP number.
We will set forth in a prospectus supplement relating to any debt securities being offered, the aggregate principal amount
and the following terms of the debt securities, if applicable:
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the title of debt securities;
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the price or prices (expressed as a percentage of the principal amount) at which the debt securities will be
issued;
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any limit on the aggregate principal amount of the series of debt securities;
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whether the debt securities will be senior debt securities or subordinated debt securities, and if they are
subordinated debt securities, the terms of the subordination;
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the date or dates on which the principal on the series of debt securities is payable;
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the rate or rates (which may be fixed or variable) per annum or the method used to determine such rate or rates
(including any commodity, commodity index, stock exchange index or financial index) at which the series of debt securities will bear interest, if any, the date or dates from which such interest, if any, will accrue, the date or dates on which such
interest, if any, will commence and be payable and any regular record date for the interest payable on any interest payment date;
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the right, if any, to extend the interest periods and the duration of that extension;
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the place or places where the principal of, and premium and interest, if any, on, the debt securities will be
payable;
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the terms and conditions upon which the debt securities may be redeemed;
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any obligation we may have to redeem or purchase the debt securities pursuant to any sinking fund or analogous
provisions or at the option of a holder of the debt securities;
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the dates on which and the price or prices at which we will repurchase the debt securities at the option of the
holders of the debt securities and other detailed terms and provisions of such repurchase obligations;
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the denominations in which the debt securities will be issued, if other than denominations of $2,000 and integral
multiples of $1,000 in excess thereof;
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whether the debt securities will be issued in the form of certificated debt securities or global debt securities;
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the portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity
date, if other than the principal amount;
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the designation of the currency, currencies or currency units in which payment of principal of, premium and
interest, if any, on the debt securities will be made if other than U.S. dollars;
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any provisions relating to any security provided for the debt securities;
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any addition to or change in the events of default described in this prospectus or in the indenture and any
change in the acceleration provisions described in this prospectus or in the indenture with respect to the debt securities;
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any addition to, or change in, the covenants described in this prospectus or in the indenture with respect to the
debt securities;
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any other terms of the debt securities (which may supplement, modify or delete any provision of the indenture as
it applies to such debt securities);
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any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect
to the series of debt securities, if other than those, if any, appointed in the indenture; and
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any provisions relating to conversion of the debt securities.
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The foregoing is not intended to be an exclusive list of the terms that may be applicable to any offered debt securities.
In addition, the indenture does not limit our ability to issue convertible, exchangeable or subordinated debt securities. Any conversion, exchange or
subordination provisions of debt securities will be described in the relevant prospectus supplement. Such terms may include provisions for conversion or exchange, either mandatory, at the option of the holder or at our option, in which case the
number of shares of common stock or other securities to be received by the holders of debt securities would be calculated as of a time and in the manner stated in the prospectus supplement.
We may issue debt securities that provide for an amount less than their stated principal amount to be due and payable upon declaration of acceleration of
their maturity pursuant to the terms of the indenture. We will provide you with information on the U.S. federal income tax considerations and other special considerations applicable to any of these debt securities in the applicable prospectus
supplement.
If we denominate the purchase price of any of the debt securities in a foreign currency or currencies or a foreign currency unit or units, or
if the principal of, and any premium and interest on, any series of debt securities is payable in a foreign currency or currencies or a foreign currency unit or units, we will provide you with information on the restrictions, elections, general tax
considerations, specific terms and other information with respect to that issue of debt securities and such foreign currency or currencies or foreign currency unit or units in the applicable prospectus supplement.
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Exchange and Transfer
Debt securities may be transferred or exchanged at the office of the registrar or co-registrar designated by us.
We will not impose a service charge for any transfer or exchange, but we may require holders to pay any tax or other governmental charges associated with any
transfer or exchange.
In the event of any redemption of debt securities of any series, we will not be required to:
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issue, register the transfer of, or exchange, any debt security of that series during a period beginning at the
opening of 15 business days before the day of sending of a notice of redemption and ending at the close of business on the day such notice is sent; or
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register the transfer of or, exchange any, debt security of that series selected, called or being called for
redemption, in whole or in part, except the unredeemed portion of any series being redeemed in part.
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We may initially appoint the
trustee as the registrar. Any transfer agent, in addition to the registrar initially designated by us, will be named in the prospectus supplement. We may designate additional transfer agents or change transfer agents or change the office of the
transfer agent. However, we will be required to maintain a transfer agent in each place of payment for the debt securities of each series.
Global
Securities
The debt securities of any series may be represented, in whole or in part, by one or more global securities. Each global security will:
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be registered in the name of a depositary that we will identify in a prospectus supplement;
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be deposited with the trustee as custodian for the depositary or its nominee; and
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bear any required legends.
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No global security may be exchanged in whole or in part for debt securities registered in the name of any person other than the depositary or any nominee
unless:
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the depositary has notified us that it is unwilling or unable to continue as depositary or has ceased to be
qualified to act as depositary, and in either case we fail to appoint a successor depositary registered as a clearing agency under the Exchange Act within 90 days of such event;
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we execute and deliver to the trustee an officer’s certificate to the effect that such global securities
shall be so exchangeable; or
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an event of default with respect to the debt securities represented by such global securities shall have occurred
and be continuing.
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As long as the depositary, or its nominee, is the registered owner of a global security, the depositary or nominee
will be considered the sole owner and holder of the debt securities represented by the global security for all purposes under the indenture. Except in the above limited circumstances, owners of beneficial interests in a global security:
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will not be entitled to have the debt securities registered in their names;
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will not be entitled to physical delivery of certificated debt securities; and
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will not be considered to be holders of those debt securities under the indenture.
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Payments on a global security will be made to the depositary or its nominee as the holder of the global security.
Some jurisdictions have laws that require that certain purchasers of securities take physical delivery of such securities in definitive form. These laws may impair the ability to transfer beneficial interests in a global security.
Institutions that have accounts with the depositary or its nominee are referred to as “participants.” Ownership of beneficial interests in a global
security will be limited to participants and to persons that may hold beneficial interests through participants. The depositary will credit, on its book-entry registration and transfer system, the respective principal amounts of debt securities
represented by the global security to the accounts of its participants. Each person owning a beneficial interest in a global security must rely on the procedures of the depositary (and, if such person is not a participant, on procedures of the
participant through which such person owns its interest) to exercise any rights of a holder under the indenture.
Ownership of beneficial interests in a
global security will be shown on and effected through records maintained by the depositary, with respect to participants’ interests, or by any participant, with respect to interests of persons held by participants on their behalf. Payments,
transfers and exchanges relating to beneficial interests in a global security will be subject to policies and procedures of the depositary. The depositary policies and procedures may change from time to time. Neither we nor the trustee will have any
responsibility or liability for the depositary’s acts or omissions or any participant’s records with respect to beneficial interests in a global security.
Payment and Paying Agent
The provisions of this
subsection will apply to the debt securities unless otherwise indicated in the prospectus supplement. Payment of interest on a debt security on any interest payment date will be made to the person in whose name the debt security is registered at the
close of business on the regular record date. Payment on debt securities of a particular series will be payable at the office of a paying agent or paying agents designated by us. However, at our option, we may pay interest by mailing a check to the
record holder.
We may also name any other paying agents in the prospectus supplement. We may designate additional paying agents, change paying agents or
change the office of any paying agent. However, we will be required to maintain a paying agent in each place of payment for the debt securities of a particular series.
Subject to any applicable abandoned property law, all moneys paid by us to a paying agent for payment on any debt security that remain unclaimed at the end of
two years after such payment was due will be repaid to us. Thereafter, the holder may look only to us for such payment.
Consolidation, Merger and Sale
of Assets
Except as otherwise set forth in the applicable prospectus supplement, we may not merge or consolidate with or into any other person, in a
transaction in which we are not the surviving corporation, or sell, convey, transfer, lease or otherwise dispose of all or substantially all of the properties and assets of us and our subsidiaries, taken as a whole, to any person, unless:
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the successor or transferee is a U.S. corporation, limited liability company, partnership, trust or other entity;
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the successor or transferee assumes our obligations on the debt securities and under the indenture pursuant to a
supplemental indenture in form reasonably satisfactory to the trustee;
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immediately after giving effect to the transaction and treating our obligations in connection with or as a result
of such transaction as having been incurred as of the time of such transaction, no default or event of default under the indenture shall have occurred and be continuing; and
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an officer’s certificate and an opinion of counsel have been delivered to the trustee in connection with the
foregoing.
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In the event of the above transaction, if there is a successor or transferee, then the successor or transferee will
expressly assume all of our obligations under the indenture and automatically be substituted for us in the indenture and as issuer of the debt securities and may exercise every right and power of ours under the indenture with the same effect as if
such successor or transferee had been named in our place in the indenture; provided, however, that the predecessor company will not be relieved of the obligation to pay principal and interest on the debt securities except in the case of a sale of
all of the assets of us and our subsidiaries.
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Events of Default
Event of default means, with respect to any series of debt securities, any of the following:
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default in the payment of any interest on any debt security of that series when it becomes due and payable, and
continuance of that default for a period of 30 days;
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default in the payment of principal of, or premium on, any debt security of that series when due and payable;
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failure on our part to comply with the covenant described under “—Consolidation, Merger and Sale of
Assets”;
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default in the performance or breach of any other covenant or warranty by us in the indenture or any supplemental
indenture with respect to such series (other than a covenant or warranty that has been included in the indenture or supplemental indenture solely for the benefit of a series of debt securities other than that series), which default continues uncured
for a period of 60 days after (1) we receive written notice from the trustee or (2) we and the trustee receive written notice from the holders of not less than 25% in aggregate principal amount of the outstanding debt securities of that
series as provided in the indenture;
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certain events of bankruptcy, insolvency or reorganization of our company or our significant subsidiaries; and
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any other event of default provided with respect to debt securities of that series that is described in the
applicable prospectus supplement.
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We will promptly deliver to the trustee written notice of any event which with the giving of notice
and the lapse of time would become a covenant event of default, or any other event of default provided with respect to debt securities of that series that is described in the applicable prospectus supplement, along with a description of the status
and what action we are taking or propose to take with respect to such event of default.
No event of default with respect to a particular series of debt
securities (except as to certain events of bankruptcy, insolvency or reorganization) necessarily constitutes an event of default with respect to any other series of debt securities. The occurrence of an event of default may constitute an event of
default under our bank credit agreements in existence from time to time. In addition, the occurrence of certain events of default or an acceleration under the indenture may constitute an event of default under certain of our other indebtedness
outstanding from time to time.
If an event of default (other than an event of default resulting from certain events of bankruptcy, insolvency or
reorganization of our company) with respect to debt securities of any series at the time outstanding occurs and is continuing, then the trustee or the holders of not less than 25% in aggregate principal amount of the outstanding debt securities of
that series may, by a notice in writing to us (and to the trustee if given by the holders), declare to be due and payable immediately the principal (or, if the debt securities of that series are discount securities, that portion of the principal
amount as may be specified in the terms of that series) of, and accrued and unpaid interest, if any, on all debt securities of that series. In the case of an event of default resulting from certain events of bankruptcy, insolvency or reorganization
of our company, the principal (or such specified amount) of and accrued and unpaid interest, if any, on all outstanding debt securities will become and be immediately due and payable without any declaration or other act on the part of the trustee or
any holder of outstanding debt securities. At any time after a declaration of acceleration with respect to debt securities of any series has been made, the holders of a majority in aggregate principal amount of the outstanding debt securities of
that series may rescind and annul the acceleration if the rescission and annulment would not conflict with any judgment or decree already rendered and if all events of default with respect to that series, other than the non-payment of principal and
interest, if any, with respect to debt securities of that series that has become due and payable solely because of the acceleration, have been cured or waived and all sums paid or advanced by the trustee and the reasonable compensation expenses and
disbursements of the trustee and its agents and counsel have been paid as provided in the indenture.
The indenture provides that the trustee will be
under no obligation to exercise any of its rights or powers under the indenture at the request of any holder of outstanding debt securities, unless the trustee receives security or indemnity satisfactory to it against any loss, liability or expense.
Subject to certain rights of the trustee, the holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available
to the trustee or exercising any trust or power conferred on the trustee with respect to the debt securities of that series.
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No holder of any debt security of any series will have any right to institute any proceeding, judicial or
otherwise, with respect to the indenture or for the appointment of a receiver or trustee, or for any remedy under the indenture, unless:
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that holder has previously given to the trustee written notice of a continuing event of default with respect to
debt securities of that series; and
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the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have
made written request, and offered security or indemnity satisfactory to the trustee, to institute the proceeding as trustee, and the trustee has not received from the holders of a majority in aggregate principal amount of the outstanding debt
securities of that series a direction inconsistent with that request and has failed to institute the proceeding within 60 days.
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Notwithstanding the foregoing, the holder of any debt security will have an absolute and unconditional right to receive payment of the principal of, and
premium and any interest on, that debt security on or after the due dates expressed in that debt security and to institute suit for the enforcement of such payment.
The indenture requires us, within 120 days after the end of our fiscal year, to furnish to the trustee a statement as to compliance with the indenture. The
indenture provides that the trustee may withhold notice to the holders of debt securities of any series of any default or event of default (except in payment on any debt securities of that series) with respect to debt securities of that series if it
in good faith determines that withholding notice is in the interest of the holders of those debt securities.
Modification and Waiver
We may amend or modify the indenture without the consent of any holder of debt securities of the series affected by the modifications or amendments in order
to:
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cure any ambiguity, defect or inconsistency;
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conform the text of the indenture, including any supplemental indenture, or the debt securities to any
corresponding provision of this “Description of Debt Securities” or description of the debt securities found in the prospectus supplement as evidenced by an officer’s certificate;
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provide for the issuance of additional debt securities;
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provide for the assumption of our obligations in the case of a merger or consolidation and our discharge upon
such assumption provided that the provision under “Consolidation, Merger and Sale of Assets” of the indenture is complied with;
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add covenants or make any change that would provide any additional rights or benefits to the holders of the debt
securities;
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add guarantees with respect to the debt securities;
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provide for uncertificated debt securities in addition to or in place of certificated debt securities;
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secure the debt securities;
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add or appoint a successor or separate trustee;
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make any change that does not adversely affect the rights of any holder of debt securities in any material
respect, as evidenced by an officer’s certificate; or
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obtain or maintain the qualification of the indenture under the Trust Indenture Act of 1939, as amended.
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Other amendments and modifications of the indenture or the debt securities issued may be made with the consent of the holders of at
least a majority of the aggregate principal amount of the outstanding debt securities of the affected series, and our compliance with any provision of the indenture with respect to the debt securities may be waived by written notice to the trustee
by the holders of a majority of the aggregate principal amount of the outstanding debt securities of the affected series. However, no modification or amendment may, without the consent of the holder of each outstanding debt security of the affected
series:
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reduce the principal amount, any premium or change the stated maturity of any debt security or alter or waive any
of the provisions with respect to the redemption or repurchase of the debt securities;
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change the place of payment or currency in which principal, any premium or interest is paid;
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impair the right to institute suit for the enforcement of any payment on the debt securities;
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waive a payment default with respect to the debt securities;
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reduce the interest rate or extend the time for payment of interest on the debt securities;
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make any change to the amendment and modification provisions in the indenture; or
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reduce the percentage in principal amount outstanding of debt securities, the consent of the holders of which is
required for any of the foregoing modifications or otherwise necessary to modify, supplement or amend the indenture or to waive any past default.
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Except for certain specified provisions, the holders of at least a majority in principal amount of the outstanding debt securities of an affected series may,
on behalf of the holders of all debt securities of such series, waive our compliance with provisions of the indenture. Prior to the acceleration of the maturity of the debt securities of any series pursuant to the terms of the indenture, the holders
of a majority in aggregate principal amount of the outstanding debt securities of such series may, on behalf of the holders of all the debt securities of such series, waive any past default under the indenture with respect to such debt securities
and its consequences, except (i) a default with respect to such series in the payment of the principal of, or premium or any interest on, the debt securities of such series or (ii) a default or event of default in respect of a covenant or
provision that cannot be modified or amended without the consent of all of the holders of the outstanding debt securities of the affected series.
Defeasance of Debt Securities and Certain Covenants in Certain Circumstances
Legal Defeasance
. The indenture provides that, in certain circumstances, we may be discharged from any and all obligations in respect of the debt
securities of any series (except for certain obligations to register the transfer or exchange of debt securities, to replace stolen, lost or mutilated debt securities, and to maintain paying agencies and certain provisions relating to the treatment
of funds held by paying agents). We will be so discharged upon the deposit with the trustee, in trust, of money and/or U.S. government obligations that, through the payment of interest and principal in accordance with their terms, will provide money
in an amount sufficient in the written opinion of a nationally recognized firm of independent public accountants, a nationally recognized investment bank or a nationally recognized appraisal firm to pay and discharge each installment of principal,
premium and interest in accordance with the terms of the indenture and the debt securities of that series.
This discharge may occur only if, among other
things, we have delivered to the trustee an opinion of counsel stating that we have received from, or there has been published by, the United States Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been a
change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the beneficial owners of the debt securities of the applicable series will not recognize income, gain or loss
for U.S. federal income tax purposes as a result of the deposit, defeasance and discharge and will be subject to U.S. federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit,
defeasance and discharge had not occurred.
Defeasance of Certain Covenants
. The indenture provides that, upon compliance with certain conditions,
we may be released from our obligation to comply with certain covenants set forth in the indenture and any supplemental indenture, and any failure to comply with those covenants will not constitute a default or an event of default with respect to
the debt securities of the applicable series, or covenant defeasance. If we exercise our covenant defeasance option with respect to a series of debt securities, payment of such debt securities may not be accelerated because of an event of default
related to certain events of bankruptcy, insolvency or reorganization of our significant subsidiaries.
The conditions include:
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depositing with the trustee money and/or U.S. government obligations that, through the payment of interest and
principal in accordance with their terms, will provide money in an amount sufficient in the written opinion of a nationally recognized firm of independent public accountants, a nationally recognized investment bank or a nationally recognized
appraisal firm to pay and discharge each installment of principal of, premium and interest in accordance with the terms of the indenture and the debt securities of the applicable series; and
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delivering to the trustee an opinion of counsel to the effect that the beneficial owners of the debt securities
of the applicable series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the deposit and related covenant defeasance and will be subject to U.S. federal income tax on the same amounts and in the same
manner and at the same times as would have been the case if the deposit and related covenant defeasance had not occurred.
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Governing
Law
The indenture and the debt securities will be governed by, and construed in accordance with, the internal laws of the State of New York.
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Description of Purchase Contracts
We may issue purchase contracts, including contracts obligating holders to purchase from us, and obligating us to sell to the holders, a specified number of
common shares or other securities at a future date or dates. The price per security of the securities and the number of securities may be fixed at the time the purchase contracts are issued or may be determined by reference to a specific formula set
forth in the purchase contracts. The purchase contracts also may require us to make periodic payments to the holders of the purchase contracts, or vice versa, and those payments may be unsecured or refunded on some basis. The purchase contracts may
require holders to secure their obligations thereunder in a specified manner and may provide for the prepayment of all or part of the consideration payable by holders in connection with the purchase of the underlying security or other property
pursuant to the purchase contracts.
The securities related to the purchase contracts may be pledged to a collateral agent for our benefit pursuant to a
pledge agreement to secure the obligations of holders of purchase contracts to purchase the underlying security or property under the related purchase contracts. The rights of holders of purchase contracts to the related pledged securities will be
subject to our security interest therein created by the pledge agreement. No holder of purchase contracts will be permitted to withdraw the pledged securities related to such purchase contracts from the pledge arrangement.
The prospectus supplement relating to any particular issuance of purchase contracts will describe the terms of the purchase contracts. The description in the
prospectus supplement will not necessarily be complete, and reference will be made to the purchase contracts, and, if applicable, collateral or depositary arrangements, relating to the purchase contracts, which will be filed with the SEC each time
we issue purchase contracts. U.S. federal income tax considerations applicable to the purchase contracts will also be discussed in the prospectus supplement.
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Description of Units
We may issue units comprising one or more securities described in this prospectus in any combination. The following description sets forth certain general
terms and provisions of the units that we may offer pursuant to this prospectus. The particular terms of the units and the extent, if any, to which the general terms and provisions may apply to the units so offered will be described in the
applicable prospectus supplement.
Each unit will be issued so that the holder of the unit also is the holder of each security included in the unit. Thus,
the unit will have the rights and obligations of a holder of each included security. Units will be issued pursuant to the terms of a unit agreement, which may provide that the securities included in the unit may not be held or transferred separately
at any time or at any time before a specified date. A copy of the forms of the unit agreement and the unit certificate relating to any particular issue of units will be filed with the SEC each time we issue units, and you should read those documents
for provisions that may be important to you. For more information on how you can obtain copies of the forms of the unit agreement and the related unit certificate, see “Where You Can Find More Information.”
The prospectus supplement relating to any particular issuance of units will describe the terms of those units, including, to the extent applicable, the
following:
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the designation and terms of the units and the securities comprising the units, including whether and under what
circumstances those securities may be held or transferred separately;
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any provision for the issuance, payment, settlement, transfer or exchange of the units or of the securities
comprising the units; and
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whether the units will be issued in fully registered or global form.
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Plan of Distribution
We may sell the offered securities in and outside the United States:
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through underwriters or dealers;
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directly to purchasers;
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in “at the market” offerings, within the meaning of Rule 415(a)(4) of the Securities Act, to or through
a market maker or into an existing trading market on an exchange or otherwise;
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through a combination of any of these methods.
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The prospectus supplement will include the following information:
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the terms of the offering;
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the names of any underwriters or agents;
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the name or names of any managing underwriter or underwriters;
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the purchase price or initial public offering price of the securities;
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the net proceeds from the sale of the securities;
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any delayed delivery arrangements;
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any underwriting discounts, commissions and other items constituting underwriters’ compensation;
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any discounts or concessions allowed or reallowed or paid to dealers; and
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any commissions paid to agents.
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Sale through Underwriters or Dealers
If underwriters are
used in the sale, the underwriters will acquire the securities for their own account. The underwriters may resell the securities from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale. Underwriters may offer securities to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. Unless we
inform you otherwise in the prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to certain conditions, and the underwriters will be obligated to purchase all the offered securities if they purchase
any of them. The underwriters may change from time to time any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers.
If we offer securities in a subscription rights offering to our existing security holders, we may enter into a standby underwriting agreement with dealers,
acting as standby underwriters. We may pay the standby underwriters a commitment fee for the securities they commit to purchase on a standby basis. If we do not enter into a standby underwriting agreement, we may retain a dealer-manager to manage a
subscription rights offering for us.
During and after an offering through underwriters, the underwriters may purchase and sell the securities in the open
market. These transactions may include overallotment and stabilizing transactions and purchases to cover syndicate short positions created in connection with the offering. The underwriters may also impose a penalty bid, which means that selling
concessions allowed to syndicate members or other broker-dealers for the offered securities sold for their account may be reclaimed by the syndicate if the offered securities are repurchased by the syndicate in stabilizing or covering transactions.
These activities may stabilize, maintain or otherwise affect the market price of the offered securities, which may be higher than the price that might otherwise prevail in the open market. If commenced, the underwriters may discontinue these
activities at any time.
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Some or all of the securities that we offer though this prospectus may be new issues of securities with no
established trading market. Any underwriters to whom we sell our securities for public offering and sale may make a market in those securities, but they will not be obligated to do so and they may discontinue any market making at any time without
notice. Accordingly, we cannot assure you of the liquidity of, or continued trading markets for, any securities that we offer.
If dealers are used in the
sale of securities, we will sell the securities to them as principals. They may then resell those securities to the public at varying prices determined by the dealers at the time of resale. We will include in the prospectus supplement the names of
the dealers and the terms of the transaction.
Direct Sales and Sales through Agents
We may sell the securities directly. In this case, no underwriters or agents would be involved. We may also sell the securities through agents designated from
time to time at fixed prices or at varying prices determined at the time of sale. In the prospectus supplement, we will name any agent involved in the offer or sale of the offered securities, and we will describe any commissions payable to the
agent. Unless we inform you otherwise in the prospectus supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
We may sell the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities Act with
respect to any sale of those securities. We will describe the terms of any sales of these securities in the prospectus supplement.
Remarketing
Arrangements
Offered securities may also be offered and sold, if so indicated in the applicable prospectus supplement, in connection with a
remarketing upon their purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms, acting as principals for their own accounts or as agents for us. Any remarketing firm will be
identified and the terms of its agreements, if any, with us and its compensation will be described in the applicable prospectus supplement.
Delayed
Delivery Contracts
If we so indicate in the prospectus supplement, we may authorize agents, underwriters or dealers to solicit offers from certain
types of institutions to purchase securities from us at the public offering price under delayed delivery contracts. These contracts would provide for payment and delivery on a specified date in the future. The contracts would be subject only to
those conditions described in the prospectus supplement. The prospectus supplement will describe the commission payable for solicitation of those contracts.
General Information
We may have agreements with the
agents, dealers, underwriters and remarketing firms to indemnify them against certain civil liabilities, including liabilities under the Securities Act, or to contribute with respect to payments that the agents, dealers, underwriters or remarketing
firms may be required to make. Agents, dealers, underwriters and remarketing firms may be customers of, engage in transactions with or perform services for us in the ordinary course of their businesses.
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Legal Matters
Jones Day will pass upon the validity of the securities being offered hereby.
Experts
The
consolidated financial statements of Athersys, Inc. and subsidiaries appearing in Athersys, Inc.’s Annual Report (Form 10-K) for the year ended December 31, 2016, including the schedule appearing therein, and the effectiveness of Athersys,
Inc. and subsidiaries’ internal control over financial reporting as of December 31, 2016, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reports thereon, included
therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
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$50,000,000
Common Stock
PROSPECTUS SUPPLEMENT
May 30, 2019
Jefferies
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