On April 18, 2023 Athersys, Inc. (the "Company") entered into a securities purchase agreement with each purchaser identified on the signature pages thereto (the "Purchase Agreement"), pursuant to which the Company agreed to issue and sell, in a public offering, (i) an aggregate of 2,315,000 shares (the "Shares") of the Company’s common stock, par value $0.001 per share (the "Common Stock") and (ii) pre-funded warrants (the "Pre-Funded Warrants") exercisable for an aggregate of 1,370,000 shares of Common Stock (the "Pre-Funded Warrant Shares"), together with warrants (the "Common Warrants" and, collectively with the Pre-Funded Warrants, the "Warrants") exercisable for an aggregate of 3,685,000 shares of Common Stock (collectively with the Pre-Funded Warrant Shares, the "Warrant Shares") in a private placement (the "Offering"), in combinations of one Share or one Pre-Funded Warrant and one Common Warrant for a combined purchase price of $1.00 (less $0.0001 for each Pre-Funded Warrant) (Filing, 8-K, Athersys, APR 18, 2023, View Source [SID1234630226]). Subject to certain ownership limitations, the Pre-Funded Warrants are exercisable upon issuance, and the Common Warrants are exercisable upon the six-month anniversary of issuance. Each Pre-Funded Warrant is exercisable for one share of Common Stock at a price per share of $0.0001 (as adjusted from time to time in accordance with the terms thereof) and does not expire. Each Common Warrant is exercisable into one share of Common Stock at a price per share of $0.96 (as adjusted from time to time in accordance with the terms thereof) for a seven-year period after the six-month anniversary of the date of issuance. The Offering is expected to close on or about April 19, 2023, subject to customary closing conditions.
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The Shares, the Pre-Funded Warrants and the Pre-Funded Warrant Shares were offered and sold pursuant to a base prospectus, dated April 13, 2023, and a prospectus supplement, dated April 19, 2023, in connection with a takedown from the Company’s shelf registration statement on Form S-3 (Registration No. 333-264724).
Placement Agency Agreement
On April 18, 2023, the Company entered into a placement agency agreement (the "Placement Agency Agreement") with A.G.P./Alliance Global Partners ("A.G.P."), pursuant to which A.G.P. agreed to serve as exclusive placement agent for the issuance and sale of the Shares and Warrants. The Company has agreed to pay A.G.P. an aggregate cash fee equal to 6.5% of the gross proceeds received by the Company from the sale of the securities in the Offering. Pursuant to the Placement Agency Agreement, the Company also agreed to reimburse A.G.P. $65,000 for fees and expenses of legal counsel and other out-of-pocket expenses. The Placement Agency Agreement has indemnity and other customary provisions for transactions of this nature. A copy of the Placement Agency Agreement is attached as Exhibit 99.1 to this Current Report on Form 8-K and is hereby incorporated by reference herein.
The foregoing description of the Purchase Agreement, the Warrants and the Placement Agency Agreement are not complete and are qualified in their entirety by references to the full text of the Form of Purchase Agreement, the Form of Pre-Funded Warrant, the Form of Common Warrant and the Placement Agency Agreement, which are filed as exhibits to this Current Report on Form 8-K and are incorporated by reference herein.
A copy of the opinion of Jones Day relating to the validity of the securities issued in the Offering is filed herewith as Exhibit 5.1.