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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
 
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): June 8, 2007
BTHC VI, Inc.
(Exact Name of Registrant as Specified in Charter)
         
Delaware   0-52108   20-4494098
         
(State or Other   (Commission File   (I.R.S. Employer
Jurisdiction   Number)   Identification No.)
of Incorporation)        
         
3201 Carnegie Avenue, Cleveland, Ohio       44115-2634
 
(Address of Principal Executive Offices)       (Zip Code)
Registrant’s telephone number, including area code: (216) 431-9900
12890 Hilltop Road, Argyle, Texas 76226
 
(Former Name or Former Address, if Changed Since Last Report)
     Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 

 


 

CURRENT REPORT ON FORM 8-K
BTHC VI, INC.
TABLE OF CONTENTS
 
  EX-2.2
  EX-3.1
  EX-3.2
  EX-4.1
  EX-4.2
  EX-4.3
  EX-4.4
  EX-10.1
  EX-10.2
  EX-10.3
  EX-10.4
  EX-10.5
  EX-10.6
  EX-10.7
  EX-10.8
  EX-10.9
  EX-10.10
  EX-10.11
  EX-10.12
  EX-10.13
  EX-10.14
  EX-10.15
  EX-10.16
  EX-10.17
  EX-10.18
  EX-10.19
  EX-10.20
  EX-10.21
  EX-10.22
  EX-10.23
  EX-10.24
  EX-10.25
  EX-10.26
  EX-10.27
  EX-10.28
  EX-10.29
  EX-10.30
  EX-10.31
  EX-10.32
  EX-10.33
  EX-10.34
  EX-10.35
  EX-10.36
  EX-16.1
  EX-21.1
  EX-99.1
  EX-99.2
  EX-99.3

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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Current Report on Form 8-K contains forward-looking statements 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,” “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 Current Report.
In addition, a number of known and unknown risks, uncertainties, and other factors could affect the accuracy of these statements, including the risks outlined under “Risk Factors” and elsewhere in this Current Report. 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:
    the possibility of delays in, adverse results of, and excessive costs of the development process;
 
    changes in external market factors;
 
    changes in our industry’s overall performance;
 
    changes in our business strategy;
 
    our ability to protect our intellectual property portfolio;
 
    our possible inability to realize commercially valuable discoveries in our collaborations with pharmaceutical and other biotechnology companies;
 
    our possible inability to execute our strategy due to changes in our industry or the economy generally;
 
    changes in productivity and reliability of suppliers; and
 
    the success of our competitors and the emergence of new competitors.
Although we currently believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee our future results, levels of activity or performance. We do not expect to update any of the forward-looking statements after the date of this Current Report or to conform these statements to actual results, except as may be required by law. You should not place undue reliance on forward-looking statements contained in this report.
INDUSTRY AND MARKET DATA
Information about market and industry statistics contained in this report is included based on information available to Athersys that it believes is accurate in all material respects. It is generally based on academic and other publications that are not produced for purposes of securities offerings or economic analysis. We have not reviewed or included data from all sources, and we cannot assure potential investors of the accuracy or completeness of the data included in this report. Forecasts and other forward-looking information obtained from these sources, including estimates of future market size, revenue and market acceptance of products and services, are subject to the same qualifications and the additional uncertainties accompanying any forward-looking statements.

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EXPLANATORY NOTE
Unless otherwise indicated or the context otherwise requires, all references below in this Current Report to “we,” “us” or the “Company” are to BTHC VI, Inc., a Delaware corporation, together with its wholly owned subsidiary, Athersys, Inc., a Delaware corporation. Specific discussions or comments relating only to BTHC VI, Inc. prior to the Merger (described below) reference “BTHC VI” or “PubCo,” while those relating only to Athersys, Inc. prior to the Merger reference “Athersys.”
Item 1.01. Entry into a Material Definitive Agreement.
SUMMARY OF MERGER
On May 24, 2007, BTHC VI, Inc., a Delaware corporation (“BTHC VI” or “PubCo”), and its wholly owned subsidiary, B-VI Acquisition Corp., a Delaware corporation (“Merger Sub”), entered into an Agreement and Plan of Merger (the “Merger Agreement”), with Athersys, Inc., a Delaware corporation (“Athersys”). Pursuant to the terms of the Merger Agreement, Merger Sub, which BTHC VI recently had incorporated in the state of Delaware for the purpose of completing the transaction described in this Current Report, merged with and into Athersys (the “Merger”) on June 8, 2007 (the “Closing” or the “Closing Date”), with Athersys continuing as the surviving entity in the Merger. As a result of the Merger, Athersys became our wholly owned subsidiary, and the business of Athersys became our sole operations. After receiving the requisite approval of the stockholders of Athersys pursuant to a written consent of stockholders, a Certificate of Merger was filed with the Secretary of State of the State of Delaware on June 8, 2007, at which time the Merger was deemed effective (the “Effective Time”). At the Effective Time, each share of common stock of Athersys was converted into 0.0358493 shares of Company common stock, par value $0.001 per share (the “Common Stock”).
Prior to the Merger, BTHC VI effected a 1-for-1.67 reverse stock split (the “Reverse Stock Split”) of the shares of its Common Stock. Following the Reverse Stock Split, 299,622 shares of our Common Stock were issued and outstanding. BTHC VI amended its certificate of incorporation to effect the Reverse Stock Split and to increase the number of authorized shares of Common Stock to 100,000,000.
As of the Closing Date, we acquired ownership of all of the outstanding capital stock of Athersys. In return, we issued 3,210,697 shares of Common Stock, resulting in a change in control of the Company. As further described below, Athersys is a biopharmaceutical company engaged in the discovery and development of therapeutic product candidates designed to extend and enhance the quality of human life. Following the Merger, the business of Athersys constitutes our only operations. We experienced, as of the Closing Date, a change in control of our ownership, management and Board of Directors (the “Board of Directors” or “Board”). The sole officer and director of BTHC VI resigned immediately prior to the closing of the Merger and, immediately following the Merger, Athersys’ existing officers were elected as our officers, and certain members of Athersys’ board of directors and other individuals selected by Athersys were appointed to the Board of Directors.
We believe that the issuances of our Common Stock in connection with the Merger were exempt from registration under Section 4(2) of the Securities Act. A copy of the Merger Agreement was filed as Exhibit 10.1 to our Current Report on Form 8-K filed with the SEC on May 24, 2007.
SUMMARY OF OFFERING
On June 8, 2007, we entered into a Securities Purchase Agreement by and among BTHC VI, Athersys and the investors party thereto pursuant to which we completed an offering of 13,000,000 shares of our Common Stock (the “Offering”). Investors in the Offering also received five-year warrants to purchase an aggregate of 3,250,000 shares of Common Stock with an exercise price of $6.00 per share. The lead investor in the Offering, Radius Venture Partners II, L.P., Radius Venture Partners III, L.P. and certain of their respective affiliates (together, “Radius”), invested $10,000,000 in the Offering and received additional five-year warrants to purchase an aggregate of 500,000 shares of Common Stock with a cash or cashless exercise price of $6.00 per share. We received gross proceeds of $65 million from the Offering. Cowen & Co., LLC and National Securities

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Corporation acted as placement agents for the Offering and Punk Ziegel & Company, L.P. and Halter Financial Group, LP provided financial advice. The placement agents received five-year warrants to purchase an aggregate of 1,093,525 shares of Common Stock with a cash or cashless exercise price of $6.00 per share.
We believe that the issuances of our Common Stock and warrants to purchase Common Stock in connection with the Offering were exempt from registration under Section 4(2) of the Securities Act.
Item 2.01. Completion of Acquisition or Disposition of Assets.
As disclosed in this Current Report, on June 8, 2007, a new, wholly owned subsidiary of BTHC VI, Merger Sub, merged with and into Athersys, with Athersys continuing as the surviving entity in the Merger. As a result of the Merger, Athersys became our wholly owned subsidiary. Item 2.01(f) of Form 8-K provides that if a registrant is a shell company immediately before a transaction disclosed under Item 2.01, then the registrant must disclose the information that would be required if the registrant were filing a general form for registration of securities on Form 10. BTHC VI was a shell company immediately before the Merger. Accordingly, we are providing below the information that would be included in a Form 10 if we were to file a Form 10. Please note that the information provided below relates to the Company after the Merger, except that information relating to periods prior to the date of the Merger only relate to the party specifically indicated.
DESCRIPTION OF BUSINESS
Company Overview
We are a biopharmaceutical company engaged in the discovery and development of therapeutic product candidates 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 that we intend to advance into clinical trials in 2007 and 2008. Our lead product candidate is ATHX-105, which is a novel treatment for obesity that acts by stimulating the 5HT2c receptor, a key neurotransmitter receptor in the brain, which regulates appetite. ATHX-105 has been shown in preclinical testing in animal models to reduce food intake and body weight by suppressing appetite without appearing to cause the adverse side effects that have been observed with other weight loss drugs.
ATHX-105 has been approved to enter a Phase I clinical trial in the United Kingdom, which we intend to initiate as soon as possible using a portion of the net proceeds that we received in the Offering. The primary objective of the Phase I clinical trial is to assess the short-term safety of ATHX-105 and to establish an appropriate dose range for subsequent clinical studies that will be conducted in order to assess safety and effectiveness. Following successful completion of the Phase I clinical trial and concurrent non-clinical studies that must be completed, we intend to initiate a Phase II clinical trial in the United States that will examine safety and effectiveness in clinically overweight or obese patients. In addition to ATHX-105, we have a portfolio of other compounds that we are developing as potential treatments for obesity.
We are also developing novel orally active pharmaceutical products for the treatment of central nervous system disorders, including sleep disorders such as narcolepsy or excessive daytime sleepiness, and other potential indications such as attention deficit hyperactivity disorder and other cognitive disorders. These compounds are designed to act by elevating levels of neurotransmitters in the sleep and cognitive centers of the brain and stimulating neurological tone, resulting in an enhanced state of wakefulness and cognition, without causing hyperactivity or addiction.
In addition to our pharmaceutical development programs, we are developing MultiStem ® , a proprietary nonembryonic stem cell product for the treatment of multiple disease indications. In May 2006, we entered into a product co-development collaboration with Angiotech Pharmaceuticals, Inc. (“Angiotech”) to jointly develop and ultimately market MultiStem for the treatment of damage caused by myocardial infarction and peripheral vascular disease. We are also independently developing MultiStem for bone marrow transplant/oncology support, ischemic stroke and potentially other disease indications. We retain the commercial rights to these programs and other potential applications of MultiStem.

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In addition to our current product development programs, we have developed our Random Activation of Gene Expression (“RAGE”) technology, a patented technology that provides us with the ability to produce human cell lines that express specific, biologically well validated drug targets without relying upon cloned and isolated gene sequences. This technology provides us with broad freedom to work with targets that may be inaccessible to most other companies as a result of intellectual property restrictions on the use of specific cloned and isolated genes. Over the past several years, we have produced cell lines that express drug targets in a range of disease areas such as metabolic disease, infectious disease, oncology, cardiovascular disease, inflammation, and central nervous system disorders. Many of these were produced for drug development programs at major pharmaceutical companies that we have collaborated with, such as our ongoing collaboration with Bristol-Myers Squibb, and some have been produced for our internal drug development programs.
Business Strategy
Our principal business objective is to discover, develop, and commercialize novel therapeutic products for disease indications that represent significant areas of clinical need and commercial opportunity. The key elements of our strategy are outlined below.
    Apply our proprietary technologies toward the rapid identification, validation, and development of therapeutic product candidates. We will continue to use our proprietary technologies to identify and validate therapeutic product candidates. We believe our technologies, including RAGE and MultiStem, provide us a competitive advantage in drug discovery and product development by allowing us to move products quickly from the discovery phase into clinical trials using a “fast follower” approach, thereby mitigating risk and reducing costs.
 
    Enter into licensing or co-development arrangements for certain product candidates. We intend to license certain of our product candidates to, or co-develop them with, qualified collaborators to broaden and accelerate our product development efforts. In order to enhance the value of our product candidates in these potential licensing or collaboration arrangements, we plan to internally develop our product candidates through at least Phase II clinical trials whenever possible. We anticipate that this strategy will help us to enhance our return on product candidates for which we enter into collaborations through the receipt of strategic equity investments, license fees, milestone payments, and profit sharing or royalties.
 
    Internally develop, manufacture, and market other therapeutic products. We will apply the capital we obtain from financing and collaborating activities toward the development of our other therapeutic product candidates. Our intention is to ultimately manufacture, market, and distribute these product candidates on our own after they have received FDA approval. We will select candidates for internal development based on several factors, including the required regulatory approval pathway and the potential market into which the product can be sold, and our ability to feasibly fund development activities through commercialization and marketing of the approved product.
 
    Continue to expand our intellectual property portfolio. Our intellectual property is important to our business and we take significant steps to protect its value. We have an ongoing research and development effort, both through internal activities and through collaborative research activities with others, which aims to develop new intellectual property and enable us to file patent applications that cover new applications of our existing technologies or product candidates, including MultiStem.
 
    Out-license non-core applications of our technologies. Certain elements of our technologies, such as their application toward the development of novel diagnostics or their use for the analysis and characterization of therapeutic product candidates, may not be relevant to the key elements of our corporate strategy. We believe these applications may have significant potential value, however, and can provide capital to us that can be applied to our other development efforts. Where appropriate, we may seek to license non-core applications of our technologies to others to realize this value.

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Our Current Programs
By applying our core technologies and capabilities, we have established preclinical drug development programs in the areas of obesity and central nervous system disorders. In addition, applying our proprietary cell therapy platform, MultiStem, we have established therapeutic product development programs in the areas of cardiovascular disease, oncology support and stroke. We currently intend to advance multiple programs into clinical development in 2007 and 2008.
Pharmaceutical Programs
ATHX-105 for Obesity
Obesity is a substantial contributing factor to a range of diseases that represent the major causes of death and disability in the developed world today. Individuals that are clinically obese have elevated rates of cardiovascular disease, stroke, certain types of cancer and diabetes. The percentage of individuals who are defined as clinically obese has risen dramatically over the past several decades. According to the United States Centers for Disease Control and Prevention (“CDC”), the incidence of obesity in the United States has increased at an epidemic rate during the past 20 years. CDC now estimates that 66% of all Americans are overweight and more than 30% are obese. This increase is not limited to adults. The percentage of young people who are overweight has more than tripled since 1980. Among children and teens aged six to 19 years, 16% (over nine million young people) are considered overweight. There has been a similar dramatic rise in the rate of obesity in Europe and Asia. Furthermore, the cost of this epidemic is significant. The FDA estimates that the total economic cost of obesity is currently about $117 billion per year in the United States, including more than $50 billion in avoidable medical costs. Despite the magnitude of this problem, current approaches to clinical obesity are largely ineffective, and we are aware of relatively few new therapeutic approaches in clinical development.
We are developing novel pharmaceutical treatments for obesity. Our most advanced drug development candidate is ATHX-105, a compound we discovered internally and have extensively analyzed and validated in preclinical studies. We believe that ATHX-105 represents a potential “best-in-class” obesity drug, based on its well validated mechanism of action, as well as the potency and overall safety profile we have observed in preclinical studies. We are developing ATHX-105 as a once-per-day orally administered pill to regulate appetite and reduce food intake in clinically obese individuals, defined as those individuals with a body mass index greater than 30. In addition to ATHX-105, we are developing a diverse portfolio of back-up compounds that act by the same mechanism as ATHX-105, as well as complementary obesity programs that act according to different biological mechanisms of action.
ATHX-105 is designed to act by stimulating a key receptor in the brain that regulates appetite and food intake – the 5HT2c receptor. The role of this receptor in regulating food intake is well understood in both animal models and humans. In 1996, Wyeth Pharmaceuticals launched the anti-obesity drug Redux ® (dexfenfluramine), a non-specific serotonin receptor agonist that was used with the stimulant phentermine in a combination commonly known as “fen-phen.” This diet drug combination gained rapid and widespread acceptance in the clinical marketplace, and was shown to be highly effective at regulating appetite, reducing food intake, and causing weight loss. Unfortunately, in addition to stimulating the 5HT2c receptor, fen-phen also stimulated the 5HT2b receptor that is found in the heart. The activation of 5HT2b by fen-phen is believed to have caused significant cardiovascular problems in a number of patients and, as a result, Redux ® was withdrawn from the market in 1997. In 1996, doctors wrote 18 million monthly prescriptions for drugs constituting the fen/phen combination. In that same year, these drugs generated sales of greater than $400 million, serving as a benchmark for the substantial market opportunity for an effective drug to treat clinical obesity.
Since the withdrawal of Redux from the market, several groups have published research that implicates stimulation of the 5HT2b receptor as the underlying cause of the cardiovascular problems. These findings suggest that highly selective compounds that stimulate the 5HT2c receptor, but that do not appreciably stimulate the 5HT2b receptor, could be developed that maintain the desired appetite suppressive effects without the cardiovascular toxicity. Recently, Arena Pharmaceuticals developed a selective 5HT2c agonist, Lorcaserin, which exhibits significant selectivity for the 5HT2c receptor relative to the 5HT2b receptor. In a Phase II clinical trial recently conducted by Arena Pharmaceuticals, Lorcaserin was demonstrated to reduce appetite and cause

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statistically significant weight loss in patients that were administered the drug for a period of three months, without causing any apparent cardiovascular effects. However, at higher doses the drug has been shown to cause dizziness, nausea and headaches, which is believed to be a consequence of its apparently more limited selectivity for the 5HT2c receptor relative to another serotonin receptor expressed in the brain, the 5HT2a receptor. Currently, Lorcaserin is undergoing a large scale, two-year Phase III clinical study that is designed to evaluate safety, including cardiovascular safety, and effectiveness at causing weight loss in patients that are administered Lorcaserin for a period of one year. Lorcaserin is being administered twice per day at a dosage level that is half the level previously observed to cause unacceptable levels of dizziness, nausea and headaches in prior clinical studies.
We initiated a drug development program focused on creating potent and selective compounds that stimulate the 5HT2c receptor, but that avoid the 5HT2b receptor and other receptors, such as 5HT2a. Our specific goal is to develop a once-per-day orally administered pill that reduces appetite by stimulating the 5HT2c receptor, but that does not stimulate the 5HT2b receptor, the 5HT2a receptor, or other receptors that could cause adverse side effects. Based on extensive preclinical studies that we have conducted with ATHX-105, it has been shown to be a highly potent and selective compound that fulfills all of our criteria. We believe that the superior selectivity displayed by ATHX-105 for the 5HT2c receptor relative to both the 5HT2b receptor and the 5HT2a receptor will result in a cleaner safety profile in clinical studies, and may allow us to achieve better efficacy, as well as a more convenient dosing schedule than other 5HT2C agonist programs.
In preclinical testing in rodents, obese animals that received once-daily doses of ATHX-105 exhibited a 57% reduction in daily food intake as compared to animals receiving placebo alone. In addition, after receiving once-daily doses of ATHX-105 for two weeks, these animals weighed 10% less than the animals that were treated with placebo alone. The effect was dose proportional, and animals that received increasing doses of ATHX-105 showed progressively greater weight loss.
In dogs, oral administration of a low dose (0.1mg/kg) of ATHX-105 resulted in a short-term reduction of food intake of approximately 50%, while animals receiving a 10-fold higher dose (1.0 mg/kg) of ATHX-105 exhibited a complete cessation of short-term food intake that resolved over time as the drug cleared. Based upon these results, and the results of other studies that we have conducted, we calculate the effective dose range in dogs to be approximately 0.1 to 0.2 mg/kg.
In extensive preclinical testing in both dogs and monkeys, ATHX-105 appeared to be safe and well tolerated, even when administered at doses substantially higher than those that caused a significant reduction in food intake. In dogs, the MTD was established at 36 mg/kg, a dose level approximately 180 to 360 times higher than the effective dose range observed in short-term food intake studies. We also studied the safety profile of ATHX-105 in cynomolgous monkeys, administering doses for two weeks that are 40 to 50 times greater than the expected effective dose levels in humans, which were well tolerated with no signs of adverse effects.
We submitted a CTA and intend to conduct a Phase I clinical trial in the United Kingdom for ATHX-105. This application was approved in the third quarter of 2006. We intend to initiate the Phase I clinical trial as soon as possible. The Phase I clinical trial will have a standard design evaluating single dose administration, dose escalation, and maximum tolerated dose, followed by a one-week study examining the effect of administration of multiple doses of ATHX-105 to healthy overweight or obese individuals, with a body mass index of 25 to 35 at several different dose levels. Safety monitoring will include the assessment of various cardiovascular parameters. We believe that the Phase I clinical trial can be completed within approximately six months from the time we begin enrollment. Concurrent with the Phase I clinical trial, we will also conduct certain non-clinical studies that must be completed prior to the commencement of subsequent clinical studies.
In addition, we are developing other compounds that are designed to stimulate the 5HT2c receptor with greater potency and/or specificity than ATHX-105. Some of these compounds have demonstrated significant reductions in food intake in rodent models. We plan to subject these compounds to further safety and efficacy testing in animals while we continue to develop ATHX-105. Furthermore, we have created cell lines that express obesity targets that are distinct from 5HT2c by utilizing our other technologies and have screened for compounds using our compound library that are designed to significantly reduce food intake by acting against these targets. Although these compounds are at earlier stages of preclinical development, we believe they represent promising opportunities for future development.

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H 3 Antagonists for the Treatment of Sleep Disorders and Certain Other Cognitive Disorders
In addition to our obesity program, we are developing a novel class of pharmaceuticals that are designed to enhance wakefulness and promote cognitive abilities. Individuals that suffer from narcolepsy or other conditions that result in excessive daytime sleepiness (“EDS”) may experience persistent tiredness and lack of energy. As a result, such individuals may experience significant difficulty in performing certain tasks, and may suffer an impaired quality of life. More than 100,000 individuals in the U.S. suffer from narcolepsy or EDS. Historically, narcoleptics were treated with amphetamines and related stimulants that had substantial side-effects, but more recently have been prescribed Provigil (modafinil). This compound works by an unknown mechanism, but appears to be relatively free of the stimulant side-effects of amphetamines. In addition to its use for narcolepsy, Provigil is also approved for the treatment of shift work sleep disorder (“SWSD”) and sleep apnea. Sales of Provigil in 2006 were reported to be over $700 million. Although Provigil appears to be an improvement over previous narcolepsy drugs, certain safety concerns were raised by the FDA when Cephalon, Inc. attempted to gain approval of modafinil for attention deficit hyperactivity disorder (“ADHD”), and the company subsequently abandoned efforts in this market.
Similarly, individuals with attention or cognitive disorders may suffer from an inability to focus, solve problems, process information, communicate, and may have memory impairment. Attention and cognitive disorders include ADHD, Alzheimer’s disease and other forms of dementia. Datamonitor estimates that 23 million children in the seven major pharmaceutical markets (United States, France, Germany, Italy, Spain, United Kingdom and Japan) that suffer from ADHD. Research also shows that 60% of children with ADHD maintain the disorder into adulthood. Despite the low rate of diagnosis, ADHD drug revenues reached $2.5 billion in 2004, 97% of which was generated within the United States. Currently available treatments cause side effects and do not adequately address the clinical need. Ritalin ® (methylphenidate) is the most widely prescribed ADHD therapy. As a stimulant with abuse potential, it has been classified as a controlled substance by the FDA and the U.S. Drug Enforcement Agency. We believe there exists a tremendous market opportunity as diagnosis and awareness of ADHD is improved.
We are developing multiple classes of highly selective and potent compounds designed to block the H 3 receptor and have established a program to develop non-stimulant, non-addictive, orally administered drugs for the treatment of narcolepsy or other conditions related to excessive daytime sleepiness.
Our histamine H 3 receptor antagonists represent a new class of drugs that could have an improved efficacy and safety profile relative to existing drugs used for the treatment of narcolepsy and related sleep disorders. The H 3 receptor regulates levels of histamine and other neurotransmitters in certain areas of the brain that play a direct role in regulating sleep and cognitive function. In animal models, H 3 receptor antagonists have been shown to increase histamine release in the brain and improve wakefulness, attention and learning. In a preclinical study recently conducted at an independent lab, we have tested one of our more advanced compounds in a well validated rodent sleep model. During the study, this compound significantly enhanced wakefulness without causing apparent adverse events. In comparison to modafinil or caffeine, this compound was far more potent, achieving a comparable or better effect on wakefulness at substantially lower doses. In addition, this compound did not appear to cause the excessive rebound sleepiness that is a characteristic of other agents used to promote wakefulness, such as amphetamines.
We intend to continue the study of this compound for potential applications in treating narcolepsy, excessive daytime sleepiness, and certain attention or cognitive disorders. In addition, we intend to conduct additional pharmacology and safety testing. If these studies are successful, and depending on the availability of capital resources, we would consider filing an IND for the initiation of clinical trials. Recently, pharmaceutical companies such as Glaxo-SmithKline and Johnson & Johnson have advanced H 3 antagonists into clinical trials for the treatment of conditions such as narcolepsy and dementia, respectively.
Regenerative Medicine Programs
MultiStem — A Novel Approach to Stem Cell Therapy
In addition to our pharmaceutical programs, we are developing a novel, proprietary nonembryonic stem cell product candidate, MultiStem, that we believe has potential utility for treating a broad range of diseases and could

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have widespread application in the field of clinical regenerative medicine such as in the treatment of damage from heart attack, bone marrow transplant support and graft versus host disease (“GVHD”), stroke, and potentially other areas. We believe that MultiStem represents a significant advancement in the field of stem cell therapy.
The therapeutic benefit of bone marrow transplantation has been recognized for decades, and its clinical use has grown since Congress passed the National Organ Transplant Act in 1984, and the National Marrow Donor Registry was established in 1990. However, for several reasons, widespread bone marrow or stem cell transplantation has yet to become a reality. Some of the limitations that have prevented broader clinical application of bone marrow or stem cell transplantation include the requirement for tissue matching between donor and recipient, the inability to efficiently produce significant quantities of stem cells, and a range of potential safety issues. While the field of stem cell therapy is very promising, it is also highly controversial and fraught with challenges.
A stem cell therapy that has the potential to address the challenges mentioned above could represent a breakthrough in the field of regenerative medicine, since it could greatly expand the clinical areas that utilize stem cell therapy or other forms of regenerative medicine. In 2002, Dr. Catherine Verfaillie and her team published research first describing a rare and novel stem cell, the MAPC, which may be isolated from adult bone marrow as well as other nonembryonic tissues. In their potential product form, we refer to these cells as MultiStem. These cells exhibit several important biological properties, including:
    Broad plasticity and multiple potential mechanisms of action. MultiStem cells have a demonstrated ability in animal models to form multiple cell types and appear to be able to deliver therapeutic benefit through multiple mechanisms, such as producing factors that protect tissues against damage and inflammation, as well as enhancing or playing a direct role in revascularization or tissue regeneration.
 
    Large scale production. Unlike conventional stem cells, such as blood-forming or hematopoietic stem cells, MultiStem cells may be produced on a large scale, processed, and cryogenically preserved, and then used clinically in a rapid and efficient manner. Material obtained from a single donor may be used to produce hundreds of thousands or even millions of individual doses.
 
    “Off-the-shelf” utility. Unlike traditional bone marrow or hematopoietic stem cell transplants, which require extensive genetic matching between donor and recipient, MultiStem cells do not appear, based on preclinical testing in animals, to require extensive tissue matching prior to administration. MultiStem treatment may be allogeneic, meaning that these cells do not need to be genetically matched between donor and recipient. This feature, combined with the ability to establish large MultiStem banks, could make it practical for clinicians to efficiently deliver stem cell therapy to a large number of patients.
 
    Safety. Other stem cell types, such as embryonic stem cells, can pose serious safety risks, such as the formation of tumors or ectopic tissue. In contrast, MultiStem cells have an outstanding safety profile that has been compiled over several years of preclinical study in a range of animal models by a variety of investigators.
At each step of the MultiStem production process, cells are analyzed and qualified according to pre-established criteria to ensure that a consistent, well characterized product candidate is produced. Cells are harvested from a pre-qualified donor and then expanded to form a Master Cell Bank. In March 2007, we and our manufacturing partner, Lonza, announced the successful establishment of a Master Cell Bank produced under Good Manufacturing Practices (“GMP”) and the production of clinical grade material for our initial clinical trials.
MultiStem allows us to pursue multiple high value commercial opportunities from a single product platform, since we believe it has potential application in a range of disease states and therapeutic areas. For example, based on numerous preclinical discussions with the FDA, we believe that we will be able to use data and information from preclinical safety studies for the development of MultiStem for treating multiple distinct diseases in parallel. This will be achieved by establishing a central file with the FDA, also known as a Master File, that contains data from multiple safety studies as well as information related to product manufacturing and characterization. As a result, we expect to be able to efficiently add additional clinical indications as we further expand the scope of

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potential applications for MultiStem, enabling us to reduce costs and shorten development timelines in comparison to traditional single-use drug development programs.
MultiStem for Heart Disease, Stroke & Bone Marrow Transplant Support/GVHD
Working with independent investigators at a number of leading institutions, such as the University of Minnesota, the Cleveland Clinic, the National Institutes of Health, the Medical College of Georgia, and the University of Oregon Health Sciences Center, we have studied MultiStem in a range of animal models that reflect various types of human disease or injury, such as myocardial infarction, stroke, brain damage due to restricted blood flow in newborns, vascular disease, and bone marrow transplant support/GVHD. In addition, we are exploring, or intend to explore, the potential application of MultiStem in the treatment of a range of other conditions such as certain blood or immune deficiencies and various autoimmune diseases.
As stated above, we have consistently observed that MultiStem is safe and effective in animal models. As a result, we initially plan, subject to the availability of adequate resources, to advance MultiStem into clinical development in three areas: damage caused by myocardial infarction; support in the oncology setting to reduce certain complications associated with bone marrow transplantation; and for stroke caused by a blockage of blood flow in the brain. For these areas, we intend to use one MultiStem cell product, produced and validated with a single manufacturing platform.
Heart Disease
Myocardial infarction is one of the leading causes of death and disability in the United States. Myocardial infarction is caused by the blockage of one or more arteries that supply blood to the heart. Such blockages can be caused, for example, by the rupture of an atherosclerotic plaque. According to the American Heart Association 2007 Statistical Update, there were approximately 865,000 cases of myocardial infarction that occurred in the United States in 2004 and approximately 7.9 million individuals living in the United States that had previously suffered a heart attack. In addition, there were more than 452,000 deaths that occurred from various forms of ischemic heart disease, and 156,000 deaths due directly to myocardial infarction in 2004. A variety of risk factors are associated with an elevated risk of myocardial infarction or atherosclerosis, including age, high blood pressure, smoking, sedentary lifestyle, and genetics. While advances in the diagnosis, prevention, and treatment of heart disease have had a positive impact, there is clearly room for improvement – myocardial infarction remains a leading cause of death and disability in the United States and the rest of the world.
MultiStem has been studied in validated animal models of acute myocardial infarction at both the Cleveland Clinic and the University of Minnesota. Investigators demonstrated that the administration of allogeneic MultiStem into the hearts of animals damaged by experimentally induced heart attacks resulted in significant functional improvement in cardiac output and other functional parameters compared with animals that received placebo or no treatment. Further, the administration of the immunosuppressive drug was not required and provided no additional benefit in this study, and supports the concept of potentially using MultiStem as an allogeneic product.
Working with a qualified contract research organization, we have initiated additional preclinical studies in established pig models of acute myocardial infarction, examining various factors such as the route and method of MultiStem administration, dose ranging, and timing of treatment. Pending the results of these and other studies, we intend to file an IND for the use of MultiStem for the treatment of acute myocardial infarction.
Oncology Support
A second focus of our regenerative medicine program is the use of MultiStem for bone marrow transplant and oncology support. For many types of cancer, such as leukemia or other blood-borne cancers, treatment typically involves radiation therapy or chemotherapy, alone or in combination. Such treatment can substantially deplete the cells of the blood and immune system, by reducing the number of stem cells in the bone marrow from which they arise. The more intense the radiation treatment or chemotherapy, the more severe the resulting depletion of the bone marrow, blood, and immune system. However, other tissues may also be affected, such as cells in the digestive tract and in the pulmonary system. The result may be severe anemia, immunodeficiency, significant reduction in digestive capacity, and other problems, which may result in significant disability or death.

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One strategy for treating the depletion of bone marrow is to perform a bone marrow transplant. This approach may augment the patient’s ability to form new blood and immune cells and provide a significant survival advantage. However, finding a closely matched donor is frequently difficult or even impossible. Even when such a donor is found, in many cases there are immunological complications, such as GVHD, which may result in death or serious disability.
Working with leading experts in the stem cell and bone marrow transplantation field, we have studied MultiStem in animal models of radiation therapy and GVHD. In multiple animal models, MultiStem has been shown to be non-immunogenic, even when administered without the genetic matching that is typically required for conventional bone marrow or stem cell transplantation. Furthermore, in animal model systems testing immune reactivity of T-cells against unrelated donor tissue, MultiStem has been shown to suppress the T-cell-mediated immune responses that are an important factor in causing GVHD. MultiStem-treated animals also displayed a significant increase in survival relative to controls. As a result, we believe that the administration of MultiStem in conjunction with standard bone marrow transplantation may have the potential to reduce the incidence or severity of complications and may enhance other important functions.
Several of our collaborators are leading experts in the field of bone marrow transplantation, including Dr. Richard Maziarz from Oregon Health Sciences University, Dr. John Wagner from the University of Minnesota and Dr. Hillard Lazarus from University Hospitals of Cleveland. We plan to initiate a company-sponsored Phase I/II clinical trial with these clinical investigators to evaluate MultiStem administration in support of bone marrow transplantation for the treatment of certain cancers of the blood and immune system. We are currently completing the preclinical requirements that we believe will enable us to file an IND for this indication.
Stroke
A third focus of our regenerative medicine program is the use of MultiStem for the treatment of neurological injury as a result of ischemic stroke, which accounts for 80% of all strokes. Recent progress toward the development of safer and more effective treatments for ischemic stroke has been disappointing. Despite the fact that stroke is one of the leading causes of death and disability in the United States, affecting more than 700,000 new patients annually according to the CDC, there has been little progress toward the development of treatments that improve the prognosis for stroke victims. The only FDA-approved drug currently available for ischemic stroke is the anti-clotting factor, tPA, which must be administered to the patient within three to six hours of the onset of the stroke. Administration of tPA after this time frame is not recommended, since it can cause bleeding or even death. Given this limited therapeutic window, it is estimated that less than 5% of ischemic stroke victims currently receive treatment with tPA.
In preclinical studies conducted by investigators at both the University of Minnesota and the Medical College of Georgia, significant functional improvements have been observed in rodents that have undergone an experimentally induced stroke, or that have incurred significant neurological damage as a result of neonatal hypoxic ischemia, and then received treatment with MultiStem. Through research conducted by collaborators at the Medical College of Georgia and presented at the annual American Academy of Neurology meeting in April 2006, we observed that administration of MultiStem even one week after a surgically induced stroke results in substantial long-term therapeutic benefit, as evidenced by the improvement of treated animals compared with controls in a battery of tests examining mobility, strength, fine motor skills, and other aspects of neurological functional improvement. These results have been confirmed in subsequent studies that demonstrate MultiStem treatment is well tolerated, does not require immunosuppression, and results in a robust and durable therapeutic benefit even when administered one week after the initial stroke event.
Upon completion of remaining preclinical safety studies, we intend to submit an IND for this application. The initiation of the initial clinical study will depend on the availability of capital resources.
We believe that MultiStem could have broad potential to treat a range of conditions. In addition to the above programs, we are actively collaborating or intend to collaborate with other highly qualified investigators to evaluate the potential benefits of MultiStem in other disease indications, such as various blood and immune deficiencies, certain autoimmune diseases, and other potential indications.

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Other Key Technologies
In addition to our product development programs, we have developed RAGE, a patented technology that provides us with the ability to produce human cell lines that express specific, biologically well validated drug targets without relying upon cloned and isolated gene sequences. This technology platform provides us with broad freedom to work with drug targets that may be inaccessible to most other companies as a result of intellectual property restrictions on the use of specific cloned and isolated genes. Over the past several years, we have produced cell lines that express drug targets in a range of disease areas such as metabolic disease, infectious disease, oncology, cardiovascular disease, inflammation, and central nervous system disorders. Many of these were produced for drug development programs at major pharmaceutical companies that we have collaborated with, and some have been produced for our internal drug development programs.
Competition
We face significant competition with respect to the various dimensions of our business. With regards to our efforts to develop ATHX-105 or other compounds for the treatment of obesity, there are already approved therapeutic products on the market, such as Xenical, which is marketed by Roche, and Meridia, which is marketed by Abbott Pharmaceuticals. However, both of these drugs can have side effects that we believe have limited their adoption by patients and clinicians. For example, potential side effects associated with taking Xenical include cramping, intestinal discomfort, flatulence, diarrhea, and leakage of oily stool. Potential side effects associated with taking Meridia include increased blood pressure and heart rate, headache, dry mouth, constipation, and insomnia. Individuals with high blood pressure, heart disease, irregular heart beat, or a history of stroke are cautioned not to take Meridia.
In addition to these products, other companies are actively developing novel therapeutic products for the treatment of obesity, including Sanofi-Aventis, which is developing the drug Rimonabant, which acts by suppressing appetite by blocking the CB1 receptor, also known as the marijuana receptor for its recognized role as the site of action of the cannabinoids found in marijuana that can stimulate appetite. In February 2006, an FDA advisory panel issued a recommendation for approval of Rimonabant for use in treating obesity. In Phase III clinical trials, patients taking Rimonabant exhibited statistically significant weight loss. Notable adverse events among some patients taking the drug included respiratory infection, dizziness, nausea, anxiety, and depression, which were observed at higher frequency among patients taking the drug relative to those taking placebo in the control group.
Other companies are also attempting to develop novel 5HT2c agonists. One company, Arena Pharmaceuticals, recently completed a Phase II clinical trial with its novel product candidate APD356, also referred to as Lorcaserin. Clinically obese patients taking 10 mg of the drug twice per day exhibited statistically significant weight loss over the three-month study period, exhibiting an average loss of 7.9 lbs, compared to those taking the placebo, who lost an average of 0.7 lbs. All patients on the study underwent cardiovascular safety monitoring both during and after the study, and there were no reported adverse events with respect to cardiovascular safety according to the company. Potential side effects observed among patients taking the drug at 10 mg dose twice per day included headache (26.7% vs. 17.8% in the placebo group), dizziness (7.8% vs. 0% in the placebo group), nausea (11.2% vs. 3.4% in the placebo group), and vomiting (5.2% vs. 0.8% in the placebo group).
In February 2007, Arena Pharmaceuticals announced that it had completed enrollment of 3,182 patients in a double blind, randomized and placebo controlled Phase III study of Lorcaserin designed to evaluate safety and efficacy of twice daily 10 mg doses of Lorcaserin administered for one year. The primary efficacy endpoint is the percentage of patients exhibiting greater than 5% weight loss over baseline at 52 weeks. An independent Data Safety Monitoring Board will evaluate cardiovascular safety in all patients at 6, 12, 18 and 24 months after initiation of the trial. The results of the initial six-month review are expected in the third quarter of 2007.
There are many other companies attempting to develop novel treatments for obesity, and a wide range of approaches are being taken. Some of these companies include large, multinational pharmaceutical companies such as Pfizer Inc, Bristol-Myers Squibb, Merck & Co., Inc., Roche, Sanofi-Aventis, GlaxoSmithKline, and others. There are also a variety of biotechnology companies developing treatments for obesity, including Amgen, Inc., Regeneron, Nastech Pharmaceutical Company, Alizyme, Amylin Pharmaceuticals, Neurocrine Biosciences, Shionogi & Co., Ltd., Metabolic Pharmaceuticals, Kyorin Pharmaceutical Co., Ltd., VIVUS, Inc., and others. It

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is likely that, given the magnitude of the market opportunity, many companies will continue to focus on the obesity area, and that competition will remain high. If we are successful at developing ATHX-105 or another compound as a safe and effective treatment for obesity, it is likely that other companies will attempt to develop safer and more effective 5HT2c agonists, or will attempt to combine therapies in an effort to establish a safer and more effective therapeutic product.
We also face significant competition with respect to our efforts to develop MultiStem as a novel stem cell therapy. Currently, there are a number of companies that are actively developing stem cell products, which encompass a range of different cell types, including embryonic stem cells, umbilical cord stem cells, adult-derived stem cells, and processed bone marrow derived cells. These include both public companies, such as Osiris, Genzyme, Geron, Genentech Inc., Aastrom Biosciences, Inc., Stem Cells Inc., Cell Genesys, Inc., Viacell, Celgene Corporation, Advanced Cell Technology, CRYO-CELL International, Mesoblast Limited, and Cytori Therapeutics, and private companies, such as Cognate Therapeutics, Neuronyx, Inc., Gamida Cell, Arteriocyte, Plureon Corporation, and others. Given the magnitude of the potential opportunity for stem cell therapy, we expect competition in this area to intensify in the coming years.
Finally, we face competition with respect to our ability to produce drug targets for our drug development programs. There are many companies with established intellectual property that seek to restrict or protect the use of specific drug targets, including Incyte Corporation, Millennium Pharmaceuticals, Human Genome Sciences, Lexicon Genetics, CuraGen Corporation, Exelixis, Myriad Genetics, Sangamo BioSciences, and others.
We believe our most significant competitors are fully integrated pharmaceutical companies and more established biotechnology companies that have substantially greater financial, technical, sales, marketing, and human resources than we do. These companies may succeed in obtaining regulatory approval for competitive products more rapidly than we can for our products. In addition, our competitors may develop technologies and products that are cheaper, safer or more effective than those being developed by us or that would render our technology obsolete. Furthermore, some of these companies may feel threatened by our activities, and attempt to delay or impede our efforts to develop our products, or apply our technologies.
Intellectual Property
We rely on a combination of patent applications, patents, trademarks, and contractual provisions to protect our proprietary rights. We believe that to have a competitive advantage, we must develop and maintain the proprietary aspects of our technologies. Currently, we require our officers, employees, consultants, contractors, manufacturers, outside scientific collaborators and sponsored researchers, and other advisors to execute confidentiality agreements in connection with their employment, consulting, or advisory relationships with us, where appropriate. We also require our employees, consultants, and advisors who we expect to work on our products to agree to disclose and assign to us all inventions conceived during the work day, developed using our property, or which relate to our business.
We have established a broad intellectual property portfolio related to our key functional genomics technologies and product candidates. We have a broad patent estate with claims directed to compositions, methods of making, and methods of using our small molecule drug candidates. In our 5HT2c program, we have filed four patent applications with broad claims directed to ATHX-105, related compounds in the same chemical series from which ATHX-105 was derived, and back-up and second generation compounds from distinct chemical series. In our Histamine H 3 program, we have filed four patent applications with broad claims directed to compounds from two distinct chemical series. All compounds described in these patent applications were discovered at Athersys. In addition, we currently have twelve issued U.S. patents and various issued international patents relating to compositions and methods for the RAGE technology. These patents will expire in 2017. In addition, we have five U.S. and various pending international patents relating to the RAGE technology. There are also several patent applications relating to human proteins and candidate drug targets that we have identified through the application of RAGE and our other technologies.
We have a broad patent estate with claims directed to compositions, methods of production, and methods of use of MultiStem and related technologies. We acquired the stem cell technology for our MultiStem product candidate, MAPCs, as a result of our 2003 acquisition of a holding company for the intellectual property related to stem cells originally discovered at the University of Minnesota. We have one issued U.S. patent related to this

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technology, and three U.S. patent applications, as well as many corresponding international patent applications. We also have an exclusive license to additional MAPC-related inventions made by the University of Minnesota including 16 pending patent applications related to these inventions. The exclusive license expires in May 2009, and the University of Minnesota is entitled to a royalty on net sales of products developed from the MAPC technology. In addition, there are five pending applications related to research conducted by Athersys and its collaborators.
We believe that we have broad freedom to use and commercially develop our technologies and product candidates. However, if successful, a patent infringement suit brought against us may force us or any of our collaborators or licensees to stop or delay developing, manufacturing, or selling potential products that are claimed to infringe a third party’s intellectual property, unless that party grants us rights to use its intellectual property. In such cases, we may be required to obtain licenses to patents or proprietary rights of others to continue to commercialize our products. However, we may not be able to obtain any licenses required under any patents or proprietary rights of third parties on acceptable terms, or at all. Even if we were able to obtain rights to the third party’s intellectual property, these rights may be non-exclusive, thereby giving our competitors access to the same intellectual property. Ultimately, we may be unable to commercialize some of our potential products or may have to cease some of our business operations as a result of patent infringement claims, which could severely harm our business.
Government Regulation
Any products we may develop and our research and development activities are subject to stringent government regulation in the United States by the FDA and, in many instances, by corresponding foreign and state regulatory agencies. The European Union (“EU”) has vested centralized authority in the European Medicines Evaluation Agency and Committee on Proprietary Medicinal Products to standardize review and approval across EU member nations.
These regulatory agencies enforce comprehensive statutes, regulations, and guidelines governing the drug development process. This process involves several steps. Initially, the company must generate preclinical data to show safety before human testing may be initiated. In the United States, the drug company must submit an IND to the FDA prior to securing authorization for human testing. The IND must contain adequate data on product candidate chemistry, toxicology and metabolism and, where appropriate, animal research testing to support initial safety.
A CTA is the European equivalent of the U.S. IND. CTA requirements are issued by the Medicines and Healthcare Products Regulatory Agency, the United Kingdom’s health authority and were enacted through the U.K. Medicines for Human Use (Clinical Trials) Regulations 2004, which implemented the EU Clinical Trials Directive in the United Kingdom.
Any of our product candidates will require regulatory approval and compliance with regulations made by U.S. and foreign government agencies prior to commercialization in such countries. The process of obtaining FDA or foreign regulatory agency approval has historically been extremely costly and time consuming. The FDA regulates, among other things, the development, testing, manufacture, safety, efficacy, record keeping, labeling, storage, approval, advertising, promotion, sale, and distribution of biologics and new drugs.
The standard process required by the FDA before a pharmaceutical agent may be marketed in the United States includes:
    preclinical tests in animals that demonstrate a reasonable likelihood of safety and effectiveness in human patients;
 
    submission to the FDA of an IND, which must become effective before clinical trials in humans can commence. If Phase I clinical trials are to be conducted initially outside the United States, a different regulatory filing is required, depending on the location of the study;
 
    adequate and well controlled human clinical trials to establish the safety and efficacy of the drug or biologic in the intended disease indication;

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    for drugs, submission of a New Drug Application (“NDA”) or a Biologic License Application (“BLA”), with the FDA; and
 
    FDA approval of the NDA or BLA before any commercial sale or shipment of the drug.
Preclinical studies can take several years to complete, and there is no guarantee that an IND based on those studies will become effective to permit clinical trials to begin. Once clinical trials are initiated, they generally take five to seven years, or longer, to complete. After completion of clinical trials of a new drug or biologic product, FDA approval of the NDA or BLA must be obtained. This process requires substantial time and effort and there is no assurance that the FDA will accept the NDA or BLA for filing and, even if filed, that the FDA will grant approval. In the past, the FDA’s approval of an NDA or BLA has taken, on average, one to two years, but in some instances may take substantially longer. If questions regarding safety or efficacy arise, additional studies may be required, followed by a resubmission of the NDA or BLA. Review and approval of an NDA or BLA can take up to several years.
In addition to obtaining FDA approval for each product, each drug manufacturing facility must be inspected and approved by the FDA. All manufacturing establishments are subject to inspections by the FDA and by other federal, state, and local agencies, and must comply with GMP requirements. We do not currently have any GMP manufacturing capabilities, and will rely on contract manufacturers to produce ATHX-105 or MultiStem for any clinical studies that we may conduct.
We must also obtain regulatory approval in other countries in which we intend to market any drug. The requirements governing conduct of clinical trials, product licensing, pricing, and reimbursement vary widely from country to country. FDA approval does not ensure regulatory approval in other countries. The current approval process varies from country to country, and the time spent in gaining approval varies from that required for FDA approval. In some countries, the sale price of the drug must also be approved. The pricing review period often begins after market approval is granted. Even if a foreign regulatory authority approves a drug product, it may not approve satisfactory prices for the product.
In addition to regulations enforced by the FDA, we are also subject to regulation under the Occupational Safety and Health Act, the Environmental Protection Act, the Toxic Substances Control Act, the Resource Conservation and Recovery Act, and other present and potential future federal, state, or local regulations. Our research and development involves the controlled use of hazardous materials, chemicals, biological materials, and various radioactive compounds. Although we believe that our safety procedures for handling and disposing of such materials currently comply in all material respects with the standards prescribed by state and federal regulations, the risk of accidental contamination or injury from these materials cannot be completely eliminated. In the event of such an accident, we could be held liable for any damages that result and any such liability could exceed our available resources.
Employees
We believe that our success will be based on, among other things, the quality of our science, our ability to invent and develop superior and innovative technologies and products, and our ability to attract and retain capable management and other personnel. We have assembled a high quality team of scientists and executives with significant experience in the biotechnology and pharmaceutical industries.
As of March 31, 2007, we employed 30 individuals, of whom 12 hold Ph.D. degrees and four hold other advanced degrees. In addition to our employees, we also use the service and support of several outside consultants and advisors. None of our employees is represented by a union, and we believe relationships with our employees are good.
Collaborations and Partnerships
Angiotech
In May 2006, we established a collaboration with Angiotech that is focused on co-developing MultiStem for the treatment of damage caused by myocardial infarction or peripheral vascular disease. In support of the collaboration, Angiotech purchased $10,000,000 in aggregate principal amount of subordinated convertible

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promissory notes, the principal amount of which was automatically converted along with accrued interest into our Common Stock upon the closing of the Offering. We may also receive additional equity investments and cash payments based upon the successful achievement of specified clinical development and commercialization milestones. Under the terms of the collaboration, the parties will jointly fund clinical development activity with Angiotech paying for the majority of any Phase III trial costs. We will have lead responsibility for preclinical and early clinical development and manufacturing of the MultiStem product. Angiotech will take the lead on pivotal and later clinical trials and commercialization. The parties will share net profits from the sale of any approved products. In addition, we will retain the commercial rights to MultiStem for all other therapeutic applications, including treatment of stroke, bone marrow transplantation and oncology support, blood and immune system disorders, autoimmune disease, and other indications that we may elect to pursue.
Bristol-Myers Squibb
In December 2000, we entered into a collaboration with Bristol-Myers Squibb to provide cell lines expressing well validated drug targets produced using our RAGE technology for compound screening and development. This initial collaboration was expanded in 2002 and again in 2006. Bristol-Myers Squibb uses the cell lines in its internal drug development programs and, in exchange, we receive license fee and milestone payments and will be entitled to receive royalties on the sale of any approved products.
RISK FACTORS
Risks Related To Our Business and Our Industry
We have incurred losses since inception and expect to incur significant net losses in the foreseeable future and may never become profitable.
Since Athersys’ inception in 1995, it has incurred significant losses and negative cash flows from operations. Athersys has incurred net losses of $15.2 million in 2004, $14.6 million in 2005 and $10.6 million in 2006. As of December 31, 2006, Athersys had an accumulated deficit of $141.6 million, and anticipates incurring additional losses for at least the next several years. We expect to spend significant resources over the next several years to enhance our technologies and to fund research and development of our pipeline of potential products. To date, substantially all of Athersys’ revenue has been derived from corporate collaborations, license agreements, and government grants. In order to achieve profitability, we must develop products and technologies that can be commercialized by us or through future collaborations. Our ability to generate revenues and become profitable will depend on our ability, alone or with potential collaborators, to timely, efficiently and successfully complete the development of our product candidates. We have never earned revenue from selling a product and we may never do so, as none of our product candidates have been tested yet in humans. We cannot assure you that we will ever earn revenue or that we will ever become profitable. If we sustain losses over an extended period of time, we may be unable to continue our business.
We will need substantial additional funding to develop our products and for our future operations. If we are unable to obtain the funds necessary to do so, we may be required to delay, scale back or eliminate our product development or may be unable to continue our business.
The development of our product candidates will require a commitment of substantial funds to conduct the costly and time-consuming research, which may include preclinical and clinical testing, necessary to obtain regulatory approvals and bring our products to market. Net cash used in Athersys’ operations was $11.7 million in 2004, $12.1 million in 2005 and $8.4 million in 2006. We anticipate the amount of operating funds that we use will continue to increase along with our operating expenses over at least the next several years as we plan to begin costly clinical trials of ATHX-105 and MultiStem, as well as continue to advance our various research and product development activities. We believe that our planned capital needs will be met for approximately three years. Our future capital requirements will depend on many factors, including:
    the progress and costs of our research and development programs, including our ability to develop our current portfolio of therapeutic products, or discover and develop new ones;

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    our ability, or our partners ability and willingness, to advance partnered products or programs;
 
    the cost of prosecuting, defending and enforcing patent claims and other intellectual property rights;
 
    the progress, scope, costs, and results of our preclinical and clinical testing of any current or future pharmaceutical or MultiStem related products;
 
    the time and cost involved in obtaining regulatory approvals;
 
    the cost of manufacturing our product candidates;
 
    expenses related to complying with GMP manufacturing of therapeutic product candidates;
 
    costs of financing the purchases of additional capital equipment and development technologies;
 
    competing technological and market developments;
 
    our ability to establish and maintain collaborative and other arrangements with third parties to assist in bringing our products to market and the cost of such arrangements.
 
    the amount and timing of payments or equity investments that we receive from collaborators or changes in or terminations of future or existing collaboration and licensing arrangements and the timing and amount of expenses we incur to supporting these collaborations and license agreements;
 
    costs associated with the integration of any new operation, including costs relating to future mergers and acquisitions with companies that have complementary capabilities;
 
    expenses related to the establishment of sales and marketing capabilities for products awaiting approval or products that have been approved;
 
    the level of our sales and marketing expenses; and
 
    our ability to introduce and sell new products.
We cannot assure you that we will not need additional capital sooner than currently anticipated. We will need to raise substantial additional capital to fund our future operations. We cannot be certain that additional financing will be available on acceptable terms, or at all. In recent years, it has been difficult for companies to raise capital due to a variety of factors, which may or may not continue. To the extent we raise additional capital through the sale of equity securities, the ownership position of our existing stockholders could be substantially diluted. If additional funds are raised through the issuance of preferred stock or debt securities, these securities are likely to have rights, preferences and privileges senior to our Common Stock. Fluctuating interest rates could also increase the costs of any debt financing we may obtain.
Failure to successfully address ongoing liquidity requirements will have a material adverse effect on our business. If we are unable to obtain additional capital on acceptable terms when needed, we may be required to take actions that harm our business and our ability to achieve cash flow in the future, including possibly the surrender of our rights to some technologies or product opportunities, delaying our clinical trials or curtailing or ceasing operations.
We are heavily dependent on the successful development and commercialization of our two key product candidates, ATHX-105 and MultiStem, and if we encounter delays or difficulties in the development of either or both candidates, our business would be harmed.
We are developing multiple therapeutic product candidates, but we are heavily dependent upon the successful development of two particular product candidates: ATHX-105 for the treatment of obesity and MultiStem initially for the treatment of damage caused by certain cardiovascular disorders and for the treatment of bone marrow transplant support and GVHD. Our business would be materially harmed if we encounter difficulties in the development of either of these product candidates, such as: delays in the ability to make either product in quantities or in a form that is suitable for any required preclinical studies or clinical trials; delays in the design, enrollment, implementation or completion of required preclinical studies and clinical trials; an inability to follow our current development strategy for obtaining regulatory approval from the FDA because of changes in the regulatory approval process; less than desired or complete lack of efficacy or safety in preclinical studies or

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clinical trials; and intellectual property constraints that prevent us from making, using, or commercializing either product candidate.
The results seen in animal testing of our product candidates may not be replicated in humans.
This Current Report discusses the safety and efficacy seen in preclinical testing of our lead product candidates, including ATHX-105 and MultiStem, in animals, but we may not see positive results when ATHX-105, MultiStem or any of our other product candidates undergo clinical testing in humans in the future. Preclinical studies and Phase I clinical trials are not primarily designed to test the efficacy of a product candidate in humans, but rather to test safety, to study pharmacokinetics and pharmacodynamics, and to understand the product candidate’s side effects at various doses and schedules. Success in preclinical studies or completed clinical trials does not ensure that later studies or trials, including continuing preclinical studies and large-scale clinical trials, will be successful nor does it necessarily predict future results. The rate of failure is quite high, and many companies in the biotechnology and pharmaceutical industries have suffered significant setbacks in advanced clinical trials, even after promising results in earlier trials. Product candidates may fail to show desired safety and efficacy in larger and more diverse patient populations in later stage clinical trials, despite having progressed through early stage trials. Negative or inconclusive results from any of our ongoing preclinical studies or clinical trials could result in delays, modifications, or abandonment of ongoing or future clinical trials and the termination of our development of a product candidate. Additionally, even if we are able to successfully complete pivotal Phase III clinical trials, the FDA still may not approve our product candidates.
Our products are in an early stage of development and we currently have no therapeutic products approved for sale. Our product candidates require additional research, development, testing, expert reviews and/or regulatory approvals before marketing. We may be unable to develop, obtain regulatory approval or market any of our product candidates. If our product candidates are delayed or fail, our financial condition will be negatively affected, and we may have to curtail or cease our operations.
We are in the early stage of product development, and we are dependent on the application of our technologies to discover or develop therapeutic product candidates. We currently do not sell any approved therapeutic products and do not expect to have any products commercially available for several years, if at all. You must evaluate us in light of the uncertainties and complexities affecting an early stage biotechnology company. Our product candidates require additional research and development, preclinical testing, clinical testing and regulatory review and/or approvals clearances before marketing. Our strategy of using our technologies for the development of therapeutic products involves new approaches, some of which are unproven. To date, no one to our knowledge has developed or commercialized any therapeutic products using our technologies and we might never commercialize any product using our technologies and strategy. There are many reasons that our product candidates may fail or not advance to commercialization, including the possibility that our product candidates may be ineffective, unsafe or associated with unacceptable side effects; our product candidates may fail to receive the necessary regulatory approvals or otherwise fail to meet applicable regulatory standards; our product candidates may be too expensive to develop, manufacture or market; other parties may hold or acquire proprietary rights that could prevent us or our potential collaborators from developing or marketing our product candidates; physicians, patients, third-party payers or the medical community in general may not accept or use our contemplated pharmaceutical products; our potential collaborators may withdraw support for or otherwise impair the development and commercialization of our product candidates; or others may develop equivalent or superior products.
In addition, we may not succeed in developing new product candidates as an alternative to our existing portfolio of product candidates. If our current product candidates are delayed or fail, or we fail to successfully develop and commercialize new product candidates, our financial condition may be negatively affected, and we may have to curtail or cease our operations.
We may not successfully maintain our existing collaborative and licensing arrangements, or establish new ones, which could adversely affect our ability to develop and commercialize our product candidates.
A key element of our business strategy is to commercialize some of our product candidates through collaborations with other companies. Our pharmaceutical strategy includes establishing collaborations and licensing agreements

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with one or more pharmaceutical, biotechnology or device companies, preferably after we have advanced product candidates through the initial stages of clinical development. However, we may not be able to establish or maintain such licensing and collaboration arrangements necessary to develop and commercialize our product candidates, or do so on terms that are acceptable to us. Even if we are able to maintain or establish licensing or collaboration arrangements, these arrangements may not be on favorable terms and may contain provisions that will restrict our ability to develop, test and market our product candidates. Any failure to maintain or establish licensing or collaboration arrangements on favorable terms could adversely affect our business prospects, financial condition or ability to develop and commercialize our product candidates.
We expect to rely at least in part on third party collaborators to perform a number of activities relating to the development and commercialization of our product candidates, including the manufacturing of product materials, the design and conduct of clinical trials for our pharmaceutical formulations, and potentially the obtaining of regulatory approvals and marketing and distribution of any successfully developed products. Our collaborative partners may also have or acquire rights to control aspects of our product development and clinical programs. As a result, we may not be able to conduct these programs in the manner or on the time schedule we currently contemplate. In addition, if any of these collaborative partners withdraw support for our programs or product candidates or otherwise impair their development, our business could be negatively affected. To the extent we undertake any of these activities internally, our expenses may increase.
In addition, our success depends on the performance of our collaborators of their responsibilities under these arrangements. Some potential collaborators may not perform their obligations in a timely fashion or in a manner satisfactory to us. Because such agreements may be exclusive, we may not be able to enter into a collaboration agreement with any other company covering the same product field during the applicable collaborative period. In addition, our collaborators’ competitors may not wish to do business with us at all due to our relationship with our collaborators. If we are unable to enter into additional product discovery and development collaborations, our ability to sustain or expand our business will be significantly diminished.
Additionally, our agreements with our collaborators and licensees may have provisions that give rise to disputes regarding the rights and obligations of the parties. These and other possible disagreements could lead to termination of the agreement or delays in collaborative research, development, supply, or commercialization of certain product candidates, or could require or result in litigation or arbitration. Moreover, disagreements could arise with our collaborators over rights to intellectual property or our rights to share in any of the future revenues of products developed by our collaborators. Conflicts of interest may develop between us and our collaborators concerning competing programs or product development efforts, which may prompt them to terminate certain development activities that relate to our products or programs, and potentially resulting in unexpected funding limitations. These kinds of disagreements could also result in costly and time-consuming litigation. Any such conflicts with our collaborators could reduce our ability to obtain future collaboration agreements and could have a negative impact on our relationship with existing collaborators, adversely affecting our reputation and revenues.
If our collaborators do not devote sufficient time and resources to successfully carry out their contracted duties or meet expected deadlines, we may not be able to advance our product candidates in a timely manner or at all.
Typically, we cannot control the amount of resources or time our collaborators may devote to our programs or potential products that may be developed in collaboration with us. We are currently involved in multiple research and development collaborations with academic and research institutions. These collaborators frequently depend on outside sources of funding to conduct or complete research and development, such as grants or other awards. In addition, our academic collaborators may depend on graduate students, medical students, or research assistants to conduct certain work, and such individuals may not be fully trained or experienced in certain areas, or they may elect to discontinue their participation in a particular research program, creating an inability to complete ongoing research in a timely and efficient manner. As a result of these uncertainties, we are unable to control the precise timing and execution of any experiments that may be conducted. In addition, if a corporate collaborator is involved in a business combination, such as a merger or acquisition, or if a collaborator changes its business focus, its performance under its agreement with us may suffer.
Additionally, our current or future corporate collaborators will retain the ability to pursue other research, product development or commercial opportunities that may be directly competitive with our programs. If these

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collaborators elect to prioritize or pursue other programs in lieu of ours, we may not be able to advance product development programs in an efficient or effective manner, if at all. If a collaborator is pursuing a competitive program and encounters unexpected financial or capability limitations, they may be motivated to reduce the priority placed on our programs or delay certain activities related to our programs or be unwilling to properly fund their share of the development expenses for our programs. Any of these developments could harm our product and technology development efforts, which could seriously harm our business.
If our current or future collaborators delay, abandon, or do not devote sufficient resources to their efforts to develop our product candidates, we may not be able to adequately support the further development of those product candidates or programs, and we may not be able to establish new collaborations that provide support for those programs. Furthermore, any action by our collaborators to delay or abandon development activities may cause a delay in the receipt of or loss of anticipated equity investments, milestones, or other forms of consideration, including royalties or potential revenue from product sales under the terms of some of our collaborative agreements.
Under the terms of our collaboration agreement with Angiotech, either party may choose, following the completion of Phase I studies, to opt-out of its obligation to fund further product development on a product-by-product basis, provided no clinical studies concerning such product candidate are currently ongoing. If Angiotech should decide to opt-out of funding the development of any of the product candidates for the covered indications, for any reason, we may be unable to fund the development on our own and could be forced to halt one or more MultiStem development programs.
Even if we or our collaborators receive regulatory approval for our products, those products may never be commercially successful.
Even if we develop pharmaceuticals or MultiStem related products that obtain the necessary regulatory approval, and we have access to the necessary manufacturing, sales, marketing and distribution capabilities that we need, our success depends to a significant degree upon the commercial success of those products. If these products fail to achieve or subsequently maintain market acceptance or commercial viability, our business would be significantly harmed because our future royalty revenue or other revenue would be dependent upon sales of these products. In addition we could be unable to maintain our existing collaborations or attract new product discovery and development collaborators. Many factors may affect the market acceptance and commercial success of any potential products that we may discover, including health concerns, whether actual or perceived, or unfavorable publicity regarding our obesity drugs, stem cell products or those of our competitors; the timing of market entry as compared to competitive products; the rate of adoption of products by our collaborators and other companies in the industry; any product labeling that may be required by the FDA or other United States or foreign regulatory agencies for our products or competing or comparable products; convenience and ease of administration; pricing; perceived efficacy and side effects; marketing; availability of alternative treatments; levels of reimbursement and insurance coverage; and activities by our competitors.
We may experience delays in clinical trials and regulatory approval relating to our products that could adversely affect our financial results and our commercial prospects for our pharmaceutical or stem cell products.
In addition to the regulatory requirements for our pharmaceutical programs, we will also require regulatory approvals for each distinct application of our stem cell product. In each case, we will be required to conduct clinical trials to demonstrate safety and efficacy of MultiStem, or various products that incorporate or use MultiStem. For product candidates that advance to clinical testing, we cannot be certain that we or a collaborator will successfully complete the clinical trials necessary to receive regulatory product approvals. This process is lengthy and expensive.
We intend to seek approval for our pharmaceutical formulations through the FDA approval process. To obtain regulatory approvals, we must, among other requirements, complete clinical trials showing that our products are safe and effective for a particular indication. Under the approval process, we must submit clinical and non-clinical data to demonstrate the medication is safe and effective. For example, we must be able to provide data

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and information, including extended pharmacology, toxicology, reproductive toxicology, bioavailability and genotoxicity studies to establish suitability for Phase II or large scale Phase III clinical trials.
All of our product candidates, including ATHX-105 and MultiStem, are at an early stage of development, and none have yet been tested in humans. An indication of a lack of safety or lack of efficacy may result in the early termination of an ongoing trial, or may cause us or any of our collaborators to forego further development of a particular product candidate or program. The FDA or other regulatory agencies may require further clinical trials prior to granting approval, which could be costly and time consuming to conduct. Any of these developments would hinder, and potentially prohibit, our ability to commercialize our product candidates.
Other than the Phase I study for ATHX-105, which we intend to commence shortly, we do not know precisely when clinical trials for our products will commence or whether we will initiate or complete any of our clinical trials on schedule or at all. We cannot assure you that clinical trials will in fact demonstrate that our products are safe or effective.
Additionally, we may not be able to find acceptable patients or may experience delays in enrolling patients for our clinical trials. The FDA or we may suspend our clinical trials at any time if either believes that we are exposing the subjects participating in the trials to unacceptable health risks. The FDA or institutional review boards and/or institutional biosafety committees at the medical institutions and healthcare facilities where we seek to sponsor clinical trials may not permit a trial to proceed or may suspend any trial indefinitely if they find deficiencies in the conduct of the trials.
Product development costs to us and our potential collaborators will increase if we have delays in testing or approvals or if we need to perform more or larger clinical trials than planned. We expect to continue to rely on third party clinical investigators at medical institutions and healthcare facilities to conduct our clinical trials, and, as a result, we may face additional delaying factors outside our control. Significant delays may adversely affect our financial results and the commercial prospects for our product candidates and delay our ability to become profitable.
If our pharmaceutical product candidates do not successfully complete the clinical trial process, we will not be able to partner or market them. Even successful clinical trials may not result in a partnering transaction or a marketable product and may not be entirely indicative of a product’s safety or efficacy.
Many factors, known and unknown, can adversely affect clinical trials and the ability to evaluate a product’s efficacy. During the course of treatment, patients can die or suffer other adverse events for reasons that may or may not be related to the proposed product being tested. Even if unrelated to our product, certain events can nevertheless adversely impact our clinical trials. As a result, our ability to ultimately develop and market the products and obtain revenues would suffer.
Even promising results in preclinical studies and initial clinical trials do not ensure successful results in later clinical trials, which test broader human use of our products. Many companies in our industry have suffered significant setbacks in advanced clinical trials, despite promising results in earlier trials. Even successful clinical trials may not result in a marketable product or be indicative of the efficacy or safety of a product. Many factors or variables could affect the results of clinical trials and cause them to appear more promising than they may otherwise be. Product candidates that successfully complete clinical trials could ultimately be found to be unsafe or ineffective.
In addition, our ability to complete clinical trials depends on many factors, including obtaining adequate clinical supplies and having a sufficient rate of patient recruitment. For example, patient recruitment is a function of many factors, including the size of the patient population; the proximity of patients to clinical sites; the eligibility criteria for the trial; the perceptions of investigators and patients regarding safety; and the availability of other treatment options.
Even if patients are successfully recruited, we cannot be sure that they will complete the treatment process. Delays in patient enrollment or treatment in clinical trials may result in increased costs, program delays or both.
With respect to markets in other countries, we or a partner will also be subject to regulatory requirements governing clinical trials in those countries. Even if we complete clinical trials, we may not be able to submit a

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marketing application. If we submit an application, the regulatory authorities may not review or approve it in a timely manner, if at all.
Even if we obtain regulatory approval of any of our product candidates, the approved products may be subject to post-approval studies and will remain subject to ongoing regulatory requirements. If we fail to comply, or if concerns are identified in subsequent studies, our approval could be withdrawn and our product sales could be suspended.
If we are successful at obtaining regulatory approval for ATHX-105, MultiStem or any of our other product candidates, regulatory agencies in the United States and other countries where a product will be sold may require extensive additional clinical trials or post-approval clinical studies that are expensive and time consuming to conduct. In particular, therapeutic products administered for the treatment of persistent or chronic conditions, such as ATHX-105 for obesity, are likely to require extensive follow-up studies and close monitoring of patients after regulatory approval has been granted, for any signs of adverse effects that occur over a long period of time. These studies may be expensive and time consuming to conduct and may reveal side effects or other harmful effects in patients that use our therapeutic products after they are on the market, which may result in the limitation or withdrawal of our drugs from the market. Alternatively, we may not be able to conduct such additional trials, which might force us to abandon our efforts to develop or commercialize certain product candidates. Even if post-approval studies are not requested or required, after our products are approved and on the market, there might be safety issues that emerge over time that require a change in product labeling or that require withdrawal of the product from the market, which would cause our revenue to decline.
Additionally, any products that we may successfully develop will be subject to ongoing regulatory requirements after they are approved. These requirements will govern the manufacturing, packaging, marketing, distribution, and use of our products. If we fail to comply with such regulatory requirements, approval for our products may be withdrawn, and product sales may be suspended. We may not be able to regain compliance, or we may only be able to regain compliance after a lengthy delay, significant expense, lost revenues and damage to our reputation.
We will rely on third parties to manufacture our pharmaceutical product candidates and our MultiStem product candidate. There can be no guarantee that we can obtain sufficient and acceptable quantities of our pharmaceutical product candidates of our MultiStem product candidate on acceptable terms, which may delay or impair our ability to develop, test and market such products.
Our business strategy relies on third parties to manufacture and produce our pharmaceutical product candidates and MultiStem product candidate in accordance with good manufacturing practices established by the FDA, or similar regulations in other countries. Our pharmaceutical product candidates or MultiStem product may be in competition with other products or companies for access to these facilities and may be subject to delays in manufacture if third parties give other products greater priority than our product candidates. These third parties may not deliver sufficient quantities of our pharmaceutical or MultiStem product candidates, manufacture our pharmaceutical and MultiStem product candidates in accordance with specifications, or comply with applicable government regulations. Additionally, if the manufactured products fail to perform as specified, our business and reputation could be severely impacted.
We expect to enter into additional manufacturing agreements for the production of product materials. If any manufacturing agreement is terminated or any third party collaborator experiences a significant problem that could result in a delay or interruption in the supply of product materials to us, there are very few contract manufacturers who currently have the capability to produce our pharmaceutical product candidates or MultiStem product on acceptable terms, or on a timely and cost-effective basis. We cannot assure you that manufacturers on whom we will depend will be able to successfully produce our pharmaceutical product candidates or MultiStem product on acceptable terms, or on a timely or cost-effective basis. We cannot assure you that manufacturers will be able to manufacture our products in accordance with our product specifications or will meet FDA or other requirements. We must have sufficient and acceptable quantities of our product materials to conduct our clinical trials and to market our product candidates, if and when such products have been approved by the FDA for marketing. If we are unable to obtain sufficient and acceptable quantities of our product material, we may be required to delay the clinical testing and marketing of our products.

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If our contract manufacturers are not satisfying our needs and we decide not to establish our own manufacturing capabilities, it could be difficult and very expensive to change suppliers. Any change in the location of manufacturing would require FDA inspection and approval, which could interrupt the supply of products and may be time-consuming and expensive to obtain. If we are unable to identify alternative contract manufacturers that are qualified to produce our products, we may have to temporarily suspend the production of products, and would be unable to generate revenue from the sale of products.
If we do not comply with applicable regulatory requirements in the manufacture and distribution of our product candidates, we may incur penalties that may inhibit our ability to commercialize our products and adversely affect our revenue.
Our failure or the failure of our potential collaborators or third party manufacturers to comply with applicable FDA or other regulatory requirements including manufacturing, quality control, labeling, safety surveillance, promoting and reporting may result in criminal prosecution, civil penalties, recall or seizure of our products, total or partial suspension of production or an injunction, as well as other regulatory action against our product candidates or us. Discovery of previously unknown problems with a product, supplier, manufacturer or facility may result in restrictions on the sale of our products, including a withdrawal of such products from the market. The occurrence of any of these events would negatively impact our business and results of operations.
If we are unable to create and maintain sales, marketing and distribution capabilities or enter into agreements with third parties to perform those functions, we will not be able to commercialize our product candidates.
We currently have no sales, marketing or distribution capabilities. Therefore, to commercialize our product candidates, if and when such products have been approved and are ready for marketing, we expect to collaborate with third parties to perform these functions. We will either need to share the value generated from the sale of any products and/or pay a fee to the contract sales organization. If we establish any such relationships, we will be dependent upon the capabilities of our collaborators or contract service providers to effectively market, sell, and distribute our product. If they are ineffective at selling and distributing our product, or if they choose to emphasize other products over ours, we may not achieve the level of product sales revenues that we would like. If conflicts arise, we may not be able to resolve them easily or effectively, and we may suffer financially as a result. If we cannot rely on the sales, marketing and distribution capabilities of our collaborators or of contract service providers, we may be forced to establish our own capabilities. We have no experience in developing, training or managing a sales force and will incur substantial additional expenses if we decide to market any of our future products directly. Developing a marketing and sales force is also time consuming and could delay launch of our future products. In addition, we will compete with many companies that currently have extensive and well-funded marketing and sales operations. Our marketing and sales efforts may be unable to compete successfully against these companies.
If we are unable to attract and retain key personnel and advisors, it may adversely affect our ability to obtain financing, pursue collaborations or develop our product candidates.
We are highly dependent on Gil Van Bokkelen, Ph.D., our Chief Executive Officer, as well as other executive and scientific officers, including William Lehmann, J.D., M.B.A., President and Chief Operating Officer, John Harrington, Ph.D., Chief Scientific Officer and Executive Vice President, Robert Deans, Ph.D., Senior Vice President, Regenerative Medicine, and Laura Campbell, C.P.A., Vice President of Finance.
These individuals are integral to the development and integration of our technologies and to our present and future scientific collaborations, including managing the complex research processes and the product development and potential commercialization processes. Given their leadership, extensive technical, scientific and financial expertise and management and operational experience, these individuals would be difficult to replace. Consequently, the loss of services of one or more of these individuals could result in product development delays or the failure of our collaborations with current and future collaborators, which, in turn, may hurt our ability to develop and commercialize products and generate revenues. Additionally, Kurt R. Brunden, Ph.D., Senior Vice President of Biopharmaceuticals, has indicated to us that he may return to a faculty position. If Dr. Brunden leaves us and does not continue his involvement with us as a consultant, we may have to hire another individual to replace him or contract for services.

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Our future success depends on our ability to attract, retain and motivate highly qualified management and scientific, development and commercial personnel and advisors. If we are unable to attract and retain key personnel and advisors, it may negatively affect our ability to successfully develop, test and commercialize our product candidates.
We may not have adequate protection for our unpatented proprietary information, which could adversely affect our competitive position.
In addition to patents, we will substantially rely on trade secrets, know-how, continuing technological innovations and licensing opportunities to develop and maintain our competitive position. However, others may independently develop substantially equivalent proprietary information and techniques or otherwise gain access to our trade secrets or disclose our technology. To protect our trade secrets, we may enter into confidentiality agreements with employees, consultants and potential collaborators. However, these agreements may not provide meaningful protection of our trade secrets or adequate remedies in the event of unauthorized use or disclosure of such information. Likewise, our trade secrets or know-how may become known through other means or be independently discovered by our competitors. Any of these events could prevent us from developing or commercializing our product candidates.
Our ability to compete in the biopharmaceutical market may decline if we do not adequately protect our proprietary technologies.
Our success depends in part on our ability to obtain and maintain intellectual property that protects our technologies and our pharmaceutical products. Patent positions may be highly uncertain and may involve complex legal and factual questions, including the ability to establish patentability of sequences relating to chemical synthesis techniques, compounds and methods for using them for which we seek patent protection. We cannot predict the breadth of claims that will ultimately be allowed in our patent applications, if any, including those we have in-licensed or the extent to which we may enforce these claims against our competitors. The degree of future protection for our proprietary rights is therefore highly uncertain and we cannot assure you that we were the first to file patent applications or to invent the subject matter claimed in patent applications relating to the technologies or product candidates upon which we rely; others will not independently develop similar or alternative technologies or duplicate any of our technologies; others did not publicly disclose our claimed technology before we conceived the subject matter included in any of our patent applications; any of our pending or future patent applications will result in issued patents; any of our patent applications will not result in interferences or disputes with third parties regarding priority of invention; any patents that may be issued to us, our collaborators or our licensors will provide a basis for commercially viable products or will provide us with any competitive advantages or will not be challenged by third parties; we will develop additional proprietary technologies that are patentable; the patents of others will not have an adverse effect on our ability to do business; or new proprietary technologies from third parties, including existing licensors, will be available for licensing to us on reasonable commercial terms, if at all.
In addition, patent law outside the United States is uncertain and in many countries intellectual property laws are undergoing review and revision. The laws of some countries do not protect intellectual property rights to the same extent as domestic laws. It may be necessary or useful for us to participate in opposition proceedings to determine the validity of our competitors’ patents or to defend the validity of any of our or our licensor’s future patents, which could result in substantial costs and would divert our efforts and attention from other aspects of our business. With respect to certain of our inventions, we have decided not to pursue patent protection outside the United States, both because we do not believe it is cost effective and because of confidentiality concerns. Accordingly, our international competitors could develop and receive foreign patent protection for gene sequences and functions for which we are seeking U.S. patent protection, enabling them to sell products that we have developed.
Technologies licensed to us by others, or in-licensed technologies, are important to our business. The scope of our rights under our licenses may be subject to dispute by our licensors or third parties. Our rights to use these technologies and to practice the inventions claimed in the licensed patents are subject to our licensors abiding by the terms of those licenses and not terminating them.

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In particular, we depend on certain technologies relating to our MultiStem technology licensed from the University of Minnesota. As a result of this license, we have agreed to use commercially reasonable efforts to develop and commercialize this technology. If we fail to comply with those obligations, we may lose some of the rights that enable us to utilize this technology, and our ability to develop products based on MultiStem could be seriously hampered.
In addition, we may in the future acquire rights to additional technologies by licensing such rights from existing licensors or from third parties. Such in-licenses may be costly. Also, we generally do not control the patent prosecution, maintenance or enforcement of in-licensed technologies. Accordingly, we are unable to exercise the same degree of control over this intellectual property as we do over our internally developed technologies. Moreover, some of our academic institution licensors, collaborators and scientific advisors have rights to publish data and information to which we have rights. If we cannot maintain the confidentiality of our technologies and other confidential information in connection with our collaborations, our ability to protect our proprietary information or obtain patent protection in the future may be impaired, which could have a significant adverse effect on our business, financial condition and results of operations.
Many of the patent applications we and our licensors have filed have not yet been substantively examined and may not result in patents being issued or enforced.
Many of the patent applications filed by us and our licensors were filed recently with the United States Patent and Trademark Office (“U.S. PTO”), and most have not been substantively examined and may not result in patents being issued. It is difficult to predict whether any of our or our licensors’ applications will ultimately be found to be patentable or, if so, to predict the scope of any allowed claims. In addition, the disclosure in our or our licensors’ patent applications, particularly in respect of the utility of our claimed inventions, may not be sufficient to meet the statutory requirements for patentability in all cases. As a result, it is difficult to predict whether any of our or our licensors’ applications will be allowed, or, if so, to predict the scope of any allowed claims or the enforceability of the patents. Even if enforceable, others may be able to design around any patents or develop similar technologies that are not within the scope of such patents. Others may discover uses for compounds, cells, genes, or proteins other than those uses covered in our patents, and these other uses may be separately patentable. Even if we have a patent claim on a particular compound, cell, or gene sequence, the holder of a patent covering the use of that compound, cell, or gene sequence could exclude us from selling a product that is based on the same use of the patented material. Our and our licensors’ patent applications may not issue as patents that will provide us with any protection or competitive advantage.
In some cases, we have been issued patents that relate to technologies and product candidates that we believe provide us with certain proprietary rights. However, the fact that we have filed a patent application or that a patent has issued does not ensure that we will have meaningful protection from competition with regard to the underlying technology or product. Patents, if issued, may be challenged, invalidated, declared unenforceable, or circumvented. If such an event were to occur, out ability to compete could be severely diminished.
If patent applications for our owned, licensed, or future developed therapeutic products or technologies do not result in issued patents containing sufficiently broad claims, we may be limited in our ability to prevent competition and earn revenues using our products or technologies.
We cannot predict which of our patent applications or our licensor’s applications will result in the granting of patents, the scope of claims in any patent that is granted, or the timing of the granting of patents. During examination, the U.S. PTO might conclude that the claimed technology in our patent applications does not meet statutory requirements for patentability. Even if our claims are found to be patentable, if the same or similar claims are also granted to a third party, we may not be established as first to invent, in which case we would not be granted a patent. In this event, a prevailing party may require us or our collaborators to stop pursuing a potential product or to negotiate a costly license arrangement to pursue the potential product. We may not be able to obtain a license from the prevailing party on acceptable terms, or at all.
Our patent applications include multiple full-length human genes and partial gene sequences discovered with our RAGE technology. No clear policy has emerged from the U.S. PTO regarding the patentability of partial or full-length gene sequences. The U.S. PTO has taken an increasingly restrictive view as to whether a gene sequence

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has sufficient utility to be patentable. Other companies or institutions have filed and are likely to file patent applications that attempt to patent full-length genes or partial gene sequences that may be the same as or similar to some of those in our patent applications. In addition, the Human Genome Project and many companies and institutions have identified genes and deposited partial gene sequences in public databases and are continuing to do so. These public disclosures might limit the scope of our claims or make unpatentable subsequent patent applications on full-length genes.
If we are unsuccessful in obtaining further issued patents on our RAGE, MultiStem, or other technologies, genes and gene sequences discovered with RAGE, and additional patents on other inventions, then products and inventions resulting from these technologies could potentially be exploited by others without any compensation to us and we may not be able to realize revenues from these products or technologies. We have filed patent applications that seek to protect the composition of matter and method of use related to ATHX-105, as well as other compounds that we have identified. If we are unsuccessful in obtaining these patents, we may ultimately be unable to commercialize ATHX-105, or other compounds that we are developing or may elect to develop in the future.
Disputes concerning the infringement or misappropriation of our proprietary rights or the proprietary rights of others could be time consuming and extremely costly and could delay our research and development efforts.
Our commercial success, if any, will be significantly harmed if we infringe the patent rights of third parties or if we breach any license or other agreements that we have entered into with regard to our technology or business.
We are aware of other companies and academic institutions that have been performing research in the areas of adult derived stem cells. In particular, other companies and academic institutions have announced that they have identified nonembryonic stem cells isolated from bone marrow or other tissues that have the ability to form a range of cell types, or display the property of pluripotency. To the extent any of these companies or academic institutions currently have, or obtain in the future, broad patent claims, such patents could block our ability to use various aspects of our discovery and development process and might prevent us from developing or commercializing newly discovered applications of our MultiStem technology, or otherwise conducting our business. In addition, it is possible that some of the pharmaceutical product candidates we are developing may not be patentable or may be covered by intellectual property of third parties.
We are not currently a party to any litigation, interference, opposition, protest, reexamination or any other potentially adverse governmental, ex parte or inter-party proceeding with regard to our patent or trademark positions. However, the life sciences and other technology industries are characterized by extensive litigation regarding patents and other intellectual property rights. Many life sciences and other technology companies have employed intellectual property litigation as a way to gain a competitive advantage. If we become involved in litigation, interference proceedings, oppositions, reexamination, protest or other potentially adverse intellectual property proceedings as a result of alleged infringement by us of the rights of others or as a result of priority of invention disputes with third parties, we might have to spend significant amounts of money, time and effort defending our position and we may not be successful. In addition, any claims relating to the infringement of third-party proprietary rights or proprietary determinations, even if not meritorious, could result in costly litigation, lengthy governmental proceedings, divert management’s attention and resources, or require us to enter into royalty or license agreements that are not advantageous to us. If we do not have the financial resources to support such litigation or appeals, we may forfeit or lose certain commercial rights. Even if we have the financial resources to continue such litigation or appeals, we may lose. In the event that we lose, we may be forced to pay very substantial damages; we may have to obtain costly license rights, which may not be available to us on acceptable terms, if at all; or we may be prohibited from selling products that are found to infringe the patent rights of others.
Should any person have filed patent applications or obtained patents that claim inventions also claimed by us, we may have to participate in an interference proceeding declared by the relevant patent regulatory agency to determine priority of invention and, thus, the right to a patent for these inventions in the United States. Such a proceeding could result in substantial cost to us even if the outcome is favorable. Even if successful on priority grounds, an interference action may result in loss of claims based on patentability grounds raised in the interference action. Litigation, interference proceedings or other proceedings could divert management’s time

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and efforts. Even unsuccessful claims could result in significant legal fees and other expenses, diversion of management’s time and disruption in our business. Uncertainties resulting from initiation and continuation of any patent proceeding or related litigation could harm our ability to compete and could have a significant adverse effect on our business, financial condition and results of operations.
An adverse ruling arising out of any intellectual property dispute, including an adverse decision as to the priority of our inventions, could undercut or invalidate our intellectual property position. An adverse ruling could also subject us to significant liability for damages, including possible treble damages, prevent us from using technologies or developing products, or require us to negotiate licenses to disputed rights from third parties. Although patent and intellectual property disputes in the technology area are often settled through licensing or similar arrangements, costs associated with these arrangements may be substantial and could include license fees and ongoing royalties. Furthermore, necessary licenses may not be available to us on satisfactory terms, if at all. Failure to obtain a license in such a case could have a significant adverse effect on our business, financial condition and results of operations.
Many potential competitors, including those who have greater resources and experience than we do, may develop products or technologies that make ours obsolete or noncompetitive.
Many companies are engaged in the pursuit of safe and effective obesity drugs. Our future success will depend on our ability to maintain a competitive position with respect to technological advances. Technological developments by others may result in our MultiStem product platform and technologies, as well as our pharmaceutical formulations, such as ATHX-105, becoming obsolete.
We are subject to significant competition from pharmaceutical, biotechnology and diagnostic companies, academic and research institutions, and government or other publicly funded agencies that are pursuing the development of therapeutic products and technologies that are substantially similar to our proposed therapeutic products and technologies, or that otherwise address the indications we are pursuing. Most of our current and potential competitors have substantially greater research and development capabilities and financial, scientific, regulatory, manufacturing, marketing, sales, human resources, and experience than we do. Many of our competitors have several therapeutic products that have already been developed, approved and successfully commercialized, or are in the process of obtaining regulatory approval for their therapeutic products in the United States and internationally.
Many of these companies have substantially greater capital resources, research and development resources and experience, manufacturing capabilities, regulatory expertise, sales and marketing resources, established relationships with consumer products companies and production facilities.
Universities and public and private research institutions are also potential competitors. While these organizations primarily have educational objectives, they may develop proprietary technologies related to stem cells or secure patent protection that we may need for the development of our technologies and products. We may attempt to license these proprietary technologies, but these licenses may not be available to us on acceptable terms, if at all.
Our competitors, either alone or with their collaborative partners, may succeed in developing technologies or products that are more effective, safer, more affordable or more easily commercialized than ours, and our competitors may obtain intellectual property protection or commercialize products sooner than we do. Developments by others may render our product candidates or our technologies obsolete.
Our current product discovery and development collaborators are not prohibited from entering into research and development collaboration agreements with third parties in any product field. Our failure to compete effectively would have a significant adverse effect on our business, financial condition and results of operations.
We expect that our results of operations will fluctuate from period to period, and this fluctuation could cause our stock price to decline, causing investor losses.
Our operating results have fluctuated in the past and are likely to vary significantly in the future based upon a number of factors, many of which we have little or no control over. Therefore, period-to-period comparisons of our operating results are not necessarily a good indication of our future performance. Some of the factors that could cause our operating results to fluctuate include our ability to discover and develop new products; our ability

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or the ability of our product discovery and development collaborators to incorporate our technology into pharmaceutical products; our receipt of milestone payments in any particular period; the ability and willingness of collaborators to commercialize products incorporating our products on expected timelines, or at all; our ability to enter into product discovery and development collaborations and technology collaborations, or to extend the terms of any existing collaboration agreements, and our payment obligations, expected revenue and other terms of any other agreements of this type; our ability, or our collaborators’ ability, to successfully satisfy all pertinent regulatory requirements; the demand for our future products and our collaborators’ products containing our technology; and general and industry specific economic conditions, which may affect our collaborators’ research and development expenditures.
We will use hazardous and biological materials in our business. Any claims relating to improper handling, storage or disposal of these materials could be time consuming and costly.
Our products and processes will involve the controlled storage, use and disposal of certain hazardous and biological materials and waste products. We and our suppliers and other collaborators are subject to federal, state and local regulations governing the use, manufacture, storage, handling and disposal of materials and waste products. Even if we and these suppliers and collaborators comply with the standards prescribed by law and regulation, the risk of accidental contamination or injury from hazardous materials cannot be completely eliminated. In the event of an accident, we could be held liable for any damages that result, and any liability could exceed the limits or fall outside the coverage of any insurance we may obtain and exceed our financial resources. We may not be able to maintain insurance on acceptable terms, or at all. We may incur significant costs to comply with current or future environmental laws and regulations.
If we acquire products, technologies or other businesses, we will incur a variety of costs, may have integration difficulties and may experience numerous other risks that could adversely affect our business.
To remain competitive, we may decide to acquire additional businesses, products and technologies. We currently have no commitments or agreements with respect to, and are not actively seeking, any material acquisitions. We have limited experience in identifying acquisition targets, successfully acquiring them and integrating them into our current infrastructure. We may not be able to successfully integrate any businesses, products, technologies or personnel that we might acquire in the future without a significant expenditure of operating, financial and management resources, if at all. In addition, future acquisitions could require significant capital infusions and could involve many risks, including, but not limited to:
    we may have to issue convertible debt or equity securities to complete an acquisition, which would dilute our stockholders and could adversely affect the market price of the Common Stock;
 
    an acquisition may negatively impact our results of operations because it may require us to incur large one-time charges to earnings, amortize or write down amounts related to goodwill and other intangible assets, or incur or assume substantial debt or liabilities, or it may cause adverse tax consequences, substantial depreciation or deferred compensation charges;
 
    we may encounter difficulties in assimilating and integrating the business, technologies, products, personnel or operations of companies that we acquire;
 
    certain acquisitions may disrupt our relationship with existing collaborators who are competitive to the acquired business;
 
    acquisitions may require significant capital infusions and the acquired businesses, products or technologies may not generate sufficient revenue to offset acquisition costs;
 
    an acquisition may disrupt our ongoing business, divert resources, increase our expenses and distract our management;
 
    acquisitions may involve the entry into a geographic or business market in which we have little or no prior experience; and
 
    key personnel of an acquired company may decide not to work for us.
Any of the foregoing risks could have a significant adverse effect on our business, financial condition and results of operations.

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To the extent we enter markets outside of the United States, our business will be subject to political, economic, legal and social risks in those markets, which could adversely affect our business.
There are significant regulatory and legal barriers in markets outside the United States that we must overcome to the extent we enter or attempt to enter markets in countries other than the United States. We will be subject to the burden of complying with a wide variety of national and local laws, including multiple and possibly overlapping and conflicting laws. We also may experience difficulties adapting to new cultures, business customs and legal systems. Any sales and operations outside the United States would be subject to political, economic and social uncertainties including, among others, changes and limits in import and export controls; increases in custom duties and tariffs; changes in currency exchange rates; economic and political instability; changes in government regulations and laws; absence in some jurisdictions of effective laws to protect our intellectual property rights; and currency transfer and other restrictions and regulations that may limit our ability to sell certain products or repatriate profits to the United States. Any changes related to these and other factors could adversely affect our business to the extent we enter markets outside the United States.
Foreign governments often impose strict price controls on approved products, which may adversely affect our future profitability in those countries, and the re-importation of drugs to the United States from foreign countries that impose price controls may adversely affect our future profitability.
Frequently foreign governments impose strict price controls on newly approved therapeutic products. If we obtain regulatory approval to sell products in foreign countries, we may be unable to obtain a price that provides an adequate financial return on our investment. Furthermore, legislation in the United States may permit re-importation of drugs from foreign countries into the United States, including re-importation from foreign countries where the drugs are sold at lower prices than in the United States due to foreign government-mandated price controls. Such a practice, especially if it is conducted on a widespread basis, may significantly reduce our potential U.S. revenues from any drugs that we are able to develop.
If we elect not to sell our products in foreign countries that impose government mandated price controls because we decide it is uneconomical to do so, a foreign government or patent office may attempt to terminate our intellectual property rights in that country, enabling competitors to make and sell our products.
In some cases we may choose not to sell a product in a foreign country because it is uneconomical to do so under a system of government-imposed price controls, or because it could severely limit our profitability in the U.S. or other markets. In such cases, a foreign government or patent office may terminate any intellectual property rights we may obtain with respect to that product. Such a termination could enable competitors to produce and sell our product in that market. Furthermore, such products may be exported into the United States through legislation that authorizes the importation of drugs from outside the United States. In such an event, we may have to reduce our prices, or we may be unable to compete with low-cost providers of our drugs, and we could be financially harmed as a result.
We may encounter difficulties managing our growth, which could adversely affect our business.
At various times we have experienced periods of rapid growth in our employee numbers as a result of a dramatic increase in activity in technology programs, genomics programs, collaborative research programs, discovery programs, and scope of operations. At other times, we have had to reduce staff in order to bring our expenses in line with our financial resources. Our success will also depend on the ability of our officers and key employees to continue to improve our operational capabilities and our management information and financial control systems, and to expand, train and manage our work force. In connection with the 2006 audit, Athersys received a letter regarding a material weakness in internal control over financial reporting as a result of a restatement related to a past partnership. Such restatement resulted in a favorable adjustment to net assets. If we are unable to successfully implement improvements to our management information and financial control systems in an efficient and timely manner, or if we encounter deficiencies in existing systems and controls, our management may not have adequate information to manage our day-to-day operations and our inability to manage our growth effectively could increase our losses.

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We may be sued for product liability, which could adversely affect our business.
Because our business strategy involves the development and sale by either us or our collaborators of commercial products, we may be sued for product liability. We may be held liable if any product we develop and commercialize, or any product our collaborators commercialize that incorporates any of our technology, causes injury or is found otherwise unsuitable during product testing, manufacturing, marketing, sale or consumer use. In addition, the safety studies we must perform and the regulatory approvals required to commercialize our pharmaceutical products, will not protect us from any such liability.
We carry product liability insurance, as well as liability insurance for conducting clinical trials. We also intend to seek product liability insurance for any approved products that we may develop or acquire. However, in the event there are product liability claims against us, our insurance may be insufficient to cover the expense of defending against such claims, or may be insufficient to pay or settle such claims. Furthermore, we may be unable to obtain adequate product liability insurance coverage for commercial sales of any of our approved products. If such insurance is insufficient to protect us, our results of operations will suffer. If any product liability claim is made against us, our reputation and future sales will be damaged, even if we have adequate insurance coverage.
The availability, manner, and amount of reimbursement for our product candidates from government and private payers are uncertain, and our inability to obtain adequate reimbursement for any products could severely limit our product sales.
We expect that many of the patients who seek treatment with any of our products that are approved for marketing will be eligible for Medicare benefits. Other patients may be covered by private health plans. If we are unable to obtain or retain adequate levels of reimbursement from Medicare or from private health plans, our ability to sell our products will be severely limited. The application of existing Medicare regulations and interpretive coverage and payment determinations to newly approved products is uncertain and those regulations and interpretive determinations are subject to change. The Medicare Prescription Drug Improvement and Modernization Act, enacted in December 2003, provides for a change in reimbursement methodology that reduces the Medicare reimbursement rates for many drugs, which may adversely affect reimbursement for any products we may develop. Medicare regulations and interpretive determinations also may determine who may be reimbursed for certain services, and may limit the pool of patients our product candidates are being developed to serve.
Federal, state and foreign governments continue to propose legislation designed to contain or reduce health care costs. Legislation and regulations affecting the pricing of products like our potential products may change further or be adopted before any of our potential products are approved for marketing. Cost control initiatives by governments or third-party payers could decrease the price that we receive for any one or all of our potential products or increase patient coinsurance to a level that make our products under development become unaffordable. In addition, government and private health plans persistently challenge the price and cost-effectiveness of therapeutic products. Accordingly, these third parties may ultimately not consider any or all of our products under development to be cost effective, which could result in products not being covered under their health plans or covered only at a lower price. Any of these initiatives or developments could prevent us from successfully marketing and selling any of our products that are approved for commercialization.
Public perception of ethical and social issues surrounding the use of adult-derived stem cell technology may limit or discourage the use of our technologies, which may reduce the demand for our therapeutic products and technologies and reduce our revenues.
Our success will depend in part upon our ability to develop therapeutic products incorporating or discovered through our adult-derived stem cell technology. For social, ethical, or other reasons, governmental authorities in the United States and other countries may call for limits on, or regulation of the use of, adult-derived stem cell technologies. Although we do not use the more controversial stem cells derived from embryos or fetuses, claims that adult-derived stem cell technologies are ineffective, unethical or pose a danger to the environment may influence public attitudes. The subject of stem cell technologies in general has received negative publicity and aroused public debate in the United States and some other countries. Ethical and other concerns about our adult-derived stem cell technology could materially hurt the market acceptance of our therapeutic products and

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technologies, resulting in diminished sales and use of any products we are able to develop using adult-derived stem cells.
Risks Related to Our Common Stock; Liquidity Risks
The price of our Common Stock is expected to be volatile and an investment in our Common Stock could decline in value.
The market price of our Common Stock, and the market prices for securities of biotechnology companies in general, are expected to be highly volatile. The following factors, in addition to other risk factors described in this Current Report, and the potentially low volume of trades in our Common Stock, may have a significant impact on the market price of our Common Stock, some of which are beyond our control: announcements of technological innovations and discoveries by us or our competitors; developments concerning any research and development, clinical trials, manufacturing, and marketing collaborations; new products or services that we or our competitors offer; actual or anticipated variations in operating results; the initiation, conduct and/or outcome of intellectual property and/or litigation matters; changes in financial estimates by securities analysts; conditions or trends in bio-pharmaceutical or other healthcare industries; regulatory developments in the United States and other countries; changes in the economic performance and/or market valuations of other biotechnology and flavor companies; our announcement of significant acquisitions, strategic partnerships, joint ventures or capital commitments; additions or departures of key personnel; global unrest, terrorist activities, and economic and other external factors; and sales or other transactions involving our Common Stock.
The stock market in general has recently experienced relatively large price and volume fluctuations. In particular, market prices of securities of biotechnology companies have experienced fluctuations that often have been unrelated or disproportionate to the operating results of these companies. Continued market fluctuations could result in extreme volatility in the price of the Common Stock, which could cause a decline in the value of the Common Stock. Prospective investors should also be aware that price volatility may be worse if the trading volume of the Common Stock is low.
Because Athersys has become a public company as a result of the Merger and not a public offering, the Company may not attract the attention of major brokerage firms.
Security analysts of major brokerage firms may not provide coverage of the Company. No assurance can be given that brokerage firms will want to conduct any primary offerings on behalf of the Company in the future.
A significant number of the shares of Common Stock will be eligible for sale, and their sale could depress the market price of the Company’s stock.
The sale of a significant number of shares of the Common Stock in the public market could harm the market price of the Common Stock. As additional shares of the Common Stock become gradually available for resale in the public market pursuant to the registration of those shares and releases of lock-up agreements, the supply of the Common Stock will increase, which could decrease its market price. The Company issued 13,000,000 shares of Common Stock in the Offering and 5,628,368 additional shares as a result of the completion of the Merger and the Offering. Some or all of the shares of Common Stock may be offered from time to time in the open market pursuant to Rule 144 (or pursuant to a registration statement, if one is effective), and these sales may have a depressive effect on the market for the shares of Common Stock. In general, a person who has held restricted shares for a period of one year may, upon filing of a notification on Form 144 with the SEC, sell into the market Common Stock in an amount up to the greater of 1% of the outstanding shares or the average weekly number of shares sold in the last four weeks before such sale. Such sales may be repeated once each three months, and any of the restricted shares may be sold by a non-affiliate after they have been held two years. Our officers and directors and substantially all of our employees and the former Athersys stockholders that own greater than 1% of the issued and outstanding Common Stock after consummation of the Merger and the Offering are subject to lock-up provisions relating to shares of Common Stock that they will own that will prevent the sale or transfer of their shares of Common Stock until 180 days after the effective date of the resale registration statement.

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It is not anticipated that there will be an active public market for the Common Stock in the near term and you may have to hold your Common Stock for an indefinite period of time.
Although our Common Stock is eligible for trading on the OTC Bulletin Board, there currently is not an active public or other trading market for the Common Stock, and we cannot assure you that any market will develop or be sustained. Because our Common Stock is expected to be thinly traded, you cannot expect to be able to liquidate your investment in case of an emergency or if you otherwise desire to do so. It may be difficult to for you to resell a large number of your shares of Common Stock in a short period of time or at or above their purchase price. Further, the sale of shares of Common Stock may have adverse federal income tax consequences.
If we do not comply with registration rights granted to certain holders of our restricted securities, we may be required to pay damages to such holders.
We intend to file a “resale” registration statement with the SEC covering all shares of Common Stock issued in the Offering, including shares of Common Stock into which any warrants are exercisable, no later than 45 days after the Closing Date. We will use best efforts to have such “resale” registration statement declared effective by the SEC as soon as possible and, in any event, within 90 days after the filing (or within five days after receipt of a no review letter from the SEC), and to maintain its effectiveness until such time as all securities registered under the registration statement have been sold or are otherwise able to be sold under Rule 144 of the Securities Act without regard to volume limitations, whichever is earlier. We cannot assure you that we will be able to follow the required procedures or obtain or maintain such effective registration statement. Subject to certain exceptions, if the “resale” registration statement is not timely filed or declared effective by the SEC or ceases to remain effective, a 1% cash penalty will be assessed for each 30-day period until the registration statement is either filed, declared effective or becomes effective again, as applicable, capped at 10%. In addition, there are other issues affecting the liquidity of the securities required to be included in the “resale” registration statement.
Our Common Stock may be considered a “penny stock” and may be difficult to sell.
The SEC has adopted regulations which generally define “penny stock” to be an equity security that has a market or exercise price of less than $5.00 per share, subject to specific exemptions. The market price of our Common Stock may drop below $5.00 per share and therefore may be designated as a “penny stock” according to SEC rules. This designation requires any broker or dealer selling these securities to disclose certain information concerning the transaction, obtain a written agreement from the purchaser and determine that the purchaser is reasonably suitable to purchase the securities. These rules may restrict the ability of brokers or dealers to sell our Common Stock and may affect the ability of our stockholders to sell their shares. In addition, since our Common Stock is eligible for trading on the OTC Bulletin Board, our stockholders may find it difficult to obtain accurate quotations of our Common Stock and may experience a lack of buyers to purchase such stock or a lack of market makers to support the stock price.
Our stockholders may experience future dilution.
Our charter permits our Board of Directors, without your approval, to authorize shares of preferred stock, which may also be issued by the Board of Directors without your approval. The Board of Directors may classify or reclassify any preferred stock to set the preferences, rights and other terms of the classified or reclassified shares, including the issuance of shares of preferred stock that have preference rights over the Common Stock with respect to dividends, liquidation, voting and other matters or shares of Common Stock having special voting rights.
The issuance of additional shares of our capital stock could be substantially dilutive to your shares and may negatively affect the market price of the Common Stock.
Substantial future issuances of the Common Stock could depress our stock price.
The market price for the Common Stock could decline, perhaps significantly, as a result of issuances of a large number of shares of our Common Stock in the public market or even the perception that such issuances could occur. Under an existing registration rights agreement, certain holders of shares of Common Stock and other securities will have demand, piggy-back and Form S-3 registration rights. Sales of a substantial number of these

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shares of our Common Stock, or the perception that holders of a large number of shares intend to sell their shares, could depress the market price of our Common Stock. The existence of such registration rights could also make it more difficult for us to raise funds through future offerings of our equity securities.
Our stockholders may experience additional dilution upon the exercise of warrants and options.
As of the closing of the Offering, we issued warrants to investors to acquire 3,750,000 shares of Common Stock, warrants to the placement agents to acquire 1,093,525 shares of Common Stock, warrants to the former holders of Athersys’ 10% secured convertible promissory notes to acquire 132,945 shares of Common Stock, and warrants to our senior secured lenders to acquire 149,026 shares of Common Stock, which is an aggregate of 5,125,496 shares of Common Stock underlying such warrants that, if exercised or converted, could decrease the net tangible book value of your Common Stock. In addition, there are 4,500,000 shares of Common Stock that may be granted pursuant to our equity compensation plans. If the holders of equity awards exercise those awards, you may experience dilution in the net tangible book value of your Common Stock.
If we do not meet the listing standards established by the NASDAQ Capital Market or other similar markets, the Common Stock may not become listed for trading on one of those markets.
As soon as reasonably practicable, we intend to apply to list our Common Stock for trading on the NASDAQ Capital Market. The NASDAQ Capital Market has established certain quantitative criteria and qualitative standards that companies must meet in order to become and remain listed for trading on these markets. We cannot guarantee that Company will be able to meet all necessary requirements for listing; therefore, we cannot guarantee that our Common Stock will be listed for trading on the NASDAQ Capital Market or other similar markets.
The Company’s internal control over financial reporting may be insufficient to allow it to accurately report its financial results or prevent fraud, which could cause its financial statements to become materially misleading and adversely affect the trading price of the Common Stock.
Effective internal controls will be necessary for the Company to provide reliable financial reports and effectively prevent fraud and to operate successfully as a public company. Athersys’ independent public accountants have issued a letter to Athersys in which they identified certain matters as a result of a restatement related to a past partnership that they consider to constitute a material weakness in its internal control over financial reporting. If these measures, together with other remedial measures that management is in the process of implementing, are insufficient to address the issues raised, or if material weaknesses or additional significant deficiencies in the Company’s internal control over financial reporting are discovered in the future, the Company may fail to meet its financial reporting obligations. If the Company fails to meet these obligations, its financial statements could become materially misleading, which could adversely affect the trading price of the Common Stock.
FINANCIAL INFORMATION
SELECTED FINANCIAL DATA
(in thousands, except per share data)
The tables below set forth selected financial data for Athersys for the years ended December 31, 2002, 2003, 2004, 2005 and 2006 and for the three months ended March 31, 2006 and 2007. Athersys derived the selected financial data as of December 31, 2004, 2005, and 2006 and for the years then ended from its consolidated audited financial statements, which have been audited by Ernst & Young LLP, independent registered public accounting firm, and are included elsewhere in this Current Report. Athersys has derived the selected financial data as of December 31, 2002 and 2003 and for the years then ended from its consolidated audited financial statements, which have been audited by Ernst & Young LLP, independent registered public accounting firm. Athersys derived the selected financial data as of March 31, 2006 and 2007 and for the three-month periods then ended from its unaudited condensed consolidated financial statements, which are included elsewhere in this Current Report. Athersys has prepared its unaudited financial statements on the same basis as its audited financial statements. In the opinion of management, the unaudited condensed consolidated financial statements include all

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adjustments, consisting of normal recurring adjustments, that it considers necessary for a fair presentation of the financial position and operating results for these periods. Historical results are not necessarily indicative of results to be expected for any future period, and results for interim periods are not necessarily indicative of a full year’s operations.
You should read the following selected financial data in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and Athersys’ financial statements and related notes, each included elsewhere in this Current Report.

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                                            Three Months  
                                            Ended  
    Year Ended December 31,     March 31,  
    2002     2003     2004     2005     2006     2006     2007  
                                            (unaudited)  
Consolidated Statement of Operations Data:
                                                       
Revenues:
                                                       
License fees
  $ 1,285     $ 1,393     $ 820     $ 763     $ 1,908     $ 220     $ 310  
Grants
    51       759       2,318       2,833       1,817       409       569  
 
                                         
Total revenues
    1,336       2,152       3,138       3,596       3,725       629       879  
Costs and expenses:
                                                       
Research and development
    13,760       13,675       12,415       12,578       9,741       2,584       2,365  
Purchased in-process R&D
          9,500                                
General and administrative
    6,280       10,882       4,717       3,755       3,347       688       608  
Depreciation
    1,996       1,803       1,297       982       528       155       80  
Restructuring costs
          1,076       107       251                    
 
                                         
Loss from operations
    (20,700 )     (34,784 )     (15,398 )     (13,970 )     (9,891 )     (2,798 )     (2,174 )
Other income (expense):
                                                       
Other income
    594       1,000             18       91       94        
Equity in earnings of unconsolidated affiliate
    (105 )     114                   117       117        
Interest income
    1,213       644       317       317       119       29       47  
Interest expense
    (185 )     (135 )     (73 )     (964 )     (1047 )     (235 )     (333 )
Accretion of premium on convertible debt
                            (260 )           (260 )
     
Loss before cumulative effect of change in accounting principle
    (19,183 )     (33,161 )     (15,154 )     (14,599 )     (10,871 )     (2,793 )     (2,720 )
Cumulative effect of change in accounting principle
                            306       306        
     
Net loss
  $ (19,183 )   $ (33,161 )   $ (15,154 )   $ (14,599 )   $ (10,565 )   $ (2,487 )   $ (2,720 )
 
                                         
Basic and diluted net loss per common share
  $ (2.67 )   $ (4.40 )   $ (1.86 )   $ (1.79 )   $ (1.29 )   $ (0.30 )   $ (0.33 )
 
                                         
Weighted average shares used in computing basic and diluted net loss per common share
    7,193       7,530       8,152       8,137       8,179       8,127       8,197  
                                                         
    December 31,   March 31,
    2002   2003   2004   2005   2006   2006   2007
                                            (unaudited)
Consolidated Balance Sheet Data:
                                                       
Cash, cash equivalents and investments
  $ 43,871     $ 25,992     $ 17,279     $ 4,561     $ 1,528     $ 2,027     $ 3,311  
Working capital (deficit)
    26,753       18,514       17,018       1,828       (3,106 )     (1,439 )     (1,056 )
Total assets
    49,780       30,503       20,894       7,309       4,266       4,278       5,486  
Long-term obligations, less current portion
    1,062       578       7,215       4,684       9,310       3,998       13,788  
Accrued dividends
    6,747       8,911       11,236       7,473       8,882       7,820       9,257  
Total stockholders’ equity (deficit)
    35,913       14,951       1,151       (8,584 )     (20,007 )     (11,448 )     (23,059 )

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MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion contains forward-looking statements that involve numerous risks and uncertainties, such as statements of our plans, objectives, expectations, and intentions. Our actual results could differ materially from those anticipated in the forward-looking statements. Factors that could cause or contribute to these differences include those discussed in this prospectus under “Cautionary Notice Regarding Forward-Looking Statements” and “Risk Factors,” as well as those discussed elsewhere in this Current Report. You should read the following discussion and analysis in conjunction with “Selected Financial Data” and Athersys’ financial statements and related notes, each included elsewhere in this Current Report.
Overview
Athersys is a biopharmaceutical company engaged in the discovery and development of therapeutic product candidates designed to extend and enhance the quality of human life. Through the application of its proprietary technologies, Athersys has established a pipeline of therapeutic product development programs in multiple disease areas that it intends to advance into clinical trials in 2007 and 2008. Athersys’ lead product candidate is ATHX-105, which is a treatment for obesity. Athersys is also developing novel pharmaceutical products for the treatment of cognitive disorders, such as ADHD. In addition to these drug development programs, Athersys entered into a collaboration with Angiotech to jointly develop a novel, proprietary non-embryonic stem cell product, MultiStem, for the treatment of myocardial infarction and peripheral vascular disease. Athersys is also developing MultiStem for stroke, oncology support, and certain other disease indications.
Athersys has incurred losses since inception of operations in December 1995 and had an accumulated deficit of $144 million at March 31, 2007. Athersys’ losses have resulted principally from costs incurred in research and development, acquisition and licensing costs, and general and administrative costs associated with its operations. Since its inception, Athersys has completed four private placement transactions of its capital stock and sold shares of its capital stock to certain strategic collaborators. Athersys has used the financing proceeds of these transactions and other sources of capital to develop its technologies, such as RAGE, and to acquire its stem cell technology in 2003. Athersys has also built its drug development capabilities to allow it to begin clinical trials of its lead product candidate, ATHX-105, in 2007. Athersys has established strategic collaborations that provide revenues and capabilities to help to further advance its product candidates. Athersys has a pipeline of product candidates that includes potential small molecule products to treat obesity and cognitive disorders. Athersys’ stem cell product candidates may be used in the areas of cardiovascular disease, oncology support and stroke. Athersys has also built a substantial portfolio of intellectual property.
In 2003 and in 2005, Athersys completed restructurings that resulted in reductions in its personnel. Athersys refocused its activities to emphasize the development of its lead product opportunities and reduced its spending in discovery activities. As Athersys has evolved from a research-oriented company to a product-oriented company, its staffing needs have evolved, resulting in the reductions in personnel. Athersys is currently optimizing the mix of its internal capabilities with the capabilities of its outside collaborators, academic institutions, and third party contract research organizations.
In May 2007, Athersys sold certain non-core assets related to its asthma discovery program to a pharmaceutical company for $2 million, of which $1.5 million was received at closing. The remaining $500,000 will be paid when Athersys delivers any remaining assets related to the program within three months of closing. Athersys will recognize a gain on the sale of these assets in the amount of $2.0 million in connection with this sale.
Upon the close of the Merger, the majority of Athersys’ outstanding stock options were terminated. Following the Merger, we adopted two long-term incentive plans, which made available 4,500,000 shares of Common Stock for equity awards to be used to attract and retain officers, other employees, directors, consultants and other independent contractors.

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Results of Operations
Since Athersys’ inception, its revenues have consisted of license fees from its collaborators and grant proceeds from federal and state grants. Athersys recognizes revenues over the period that it performs the required activities under the terms of the agreements. Revenues from the achievement of milestones are recognized when the milestone is achieved. Revenues from grants are recorded when earned under the terms of the agreements. Athersys has derived no revenue on the sale of FDA-approved products to date. Research and development expenses consist primarily of salaries and related personnel costs, legal expenses resulting from intellectual property application processes, contracted service costs, and laboratory supply and reagent costs. Athersys expenses research and development costs as they are incurred. We expect to continue to make significant investments in research and development to enhance our technologies, conduct preclinical studies and clinical trials of our products, and manufacture our products. General and administrative expenses consist primarily of salaries and related expenses for executive, business development, finance, and other administrative personnel; professional fees; and other corporate expenses. Our general and administrative expenses are expected to increase as we expand our regulatory affairs and product development capabilities, as well as expand our business development and assume the obligations of a public reporting company. Athersys depreciates its fixed assets on a straight-line basis. To date, Athersys has financed its operations through private equity and debt financing and investments by strategic collaborators. We expect to continue to incur substantial losses through at least the next several years. We expect our development costs to increase as we initiate clinical trials of our product candidates in 2007 and 2008.

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The following table sets forth Athersys’ revenues and expenses for the periods indicated. The following tables are stated in thousands.
Revenues
                                         
    Years ended December 31,   Three months ended March 31,
    2004   2005   2006   2006   2007
License fees
  $ 820     $ 763     $ 1,908     $ 220     $ 310  
Grants
    2,318       2,833       1,817       409       569  
         
 
  $ 3,138     $ 3,596     $ 3,725     $ 629     $ 879  
         
Research and development expenses
                                         
    Years ended December 31,   Three months ended March 31,
Type of expense   2004   2005   2006   2006   2007
Personnel costs
  $ 4,451     $ 4,587     $ 2,721     $ 683     $ 597  
Research supplies
    2,661       2,286       1,208       317       204  
Facilities
    1,079       1,127       879       244       191  
Sponsored research, preclinical and clinical costs
    647       2,095       3,281       864       941  
Patent legal fees
    366       714       595       135       276  
Other
    1,203       968       781       254       125  
Stock compensation expense
    2,008       801       276       87       31  
         
 
                                       
 
  $ 12,415     $ 12,578     $ 9,741     $ 2,584     $ 2,365  
         
General and administrative expenses
                                         
    Years ended December 31,   Three months ended March 31,
Type of expense   2004   2005   2006   2006   2007
Personnel costs
  $ 2,096     $ 1,858     $ 1,891     $ 389     $ 358  
Facilities
    319       286       291       70       77  
Legal and professional fees
    303       446       590       100       82  
Other
    518       508       392       84       78  
Stock compensation expense
    1,481       657       183       45       13  
         
 
                                       
 
  $ 4,717     $ 3,755     $ 3,347     $ 688     $ 608  
         
Three Months Ended March 31, 2007 Compared to Three Months Ended March 31, 2006
Revenues . Revenues increased to $879,000 for the three months ended March 31, 2007 from $629,000 in the comparable period in 2006. License fee revenues increased $90,000 for the three months ended March 31, 2007 compared to the three months ended March 31, 2006. The increase in license fee revenue over this period is a result of the nature and timing of target acceptances under Athersys’ collaboration agreement with BMS. Grant revenue increased $160,000 for the three months ended March 31, 2007 compared to the three months ended March 31, 2006. In July 2003, Athersys was awarded a $5.0 million state grant that spanned three years and was completed in February 2006. This grant was renewed in May 2006 for approximately $3.5 million that will also span three years. The increase in grant revenue for the three months ended March 31, 2007 compared to the three months ended March 31, 2006 is principally the result of recognizing three months of revenue under this state grant in 2007 versus only two months of revenue in 2006.

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Research and Development Expenses . Research and development expenses decreased to $2.4 million for the three months ended March 31, 2007 from $2.6 million in the comparable period in 2006. The decrease of approximately $219,000 relates primarily to a decrease of $252,000 in personnel costs, research supplies and facilities costs related to the restructuring and reduction in force effected in late 2005 and carried over into early 2006, a decrease in other expenses of $129,000 and a decrease of $56,000 in stock compensation expense, offset by an increase in sponsored research and preclinical expenses of $77,000 and an increase in patent legal fees of $141,000. Included in other expenses in 2006 was a license fee of $125,000 paid in shares of common stock to the former holders of the MAPC technology. Patent legal fees increased in the first three months of 2007 as a result of maintaining Athersys’ growing and maturing portfolio of patent applications.
General and Administrative Expenses . General and administrative expenses decreased to $608,000 for the three months ended March 31, 2007 from $688,000 in the comparable period in 2006. The decrease of $80,000 relates primarily to a $18,000 decrease in legal and professional fees, a $30,000 decrease in personnel costs, facilities costs and other expenses related to the restructuring and reduction in force effected in late 2005 and carried over into early 2006, and a decrease of $32,000 in stock compensation expense.
Depreciation . Depreciation expense decreased to $80,000 for the three months ended March 31, 2007 from $155,000 for the comparable period in 2006. The decrease was due to more laboratory equipment, computer equipment, furniture, and leasehold improvements becoming fully depreciated, combined with fewer purchases of new equipment during the first three months of 2007 compared with the comparable period of 2006.
Other Income and Equity in Earnings of Unconsolidated Affiliate . In January 2006, a milestone was achieved related to Athersys’ joint venture with Oculus Pharmaceuticals, Inc, a dormant entity with rights to certain potential milestone-based consideration. As a result, Athersys received $100,000 of stock-based proceeds from Oculus, which was recorded in other income. Similarly, Oculus also received stock-based proceeds in another company in the amount of $260,000. Athersys recorded its share of Oculus’ net income (after recapturing past net losses) of $117,000 in equity in earnings of unconsolidated affiliate on the statement of operations. No additional milestones where achieved in the three months ended March 31, 2007.
Interest Income . Interest income represents interest earned on Athersys’ cash and available for sale securities. Interest income increased to $47,000 for the three months ended March 31, 2007 from $29,000 for the comparable period in 2006 due to the increase in Athersys’ average cash balances during those periods. Athersys obtained $5 million in January 2007 as a result of issuing a subordinated convertible promissory note to Angiotech related to its co-development collaboration agreement.
Interest Expense. Interest expense on Athersys’ debt outstanding under its senior loan and its subordinated convertible promissory notes increased to $333,000 for the three months ended March 31, 2007 from $235,000 for the comparable period in 2006. The increase in interest expense is due to the subordinated convertible promissory notes issued by Athersys in May 2006, October 2006 and January 2007.
Accretion of Premium on Convertible Debt . The accretion of premium on convertible debt in the amount of $260,000 for the three months ended March 31, 2007 is a result of the $2.5 million subordinated secured convertible promissory notes issued in October 2006. The notes, if not converted, were repayable with accrued interest at maturity, plus a repayment fee of 200% of the outstanding principal. Athersys has computed a premium on the debt in the amount of $5,250,000 due upon redemption, which is being accreted over the term of the notes using the effective interest method. This accretion was reversed in June 2007 when the notes were converted into common stock upon the closing of the Offering.
Cumulative effect of change in accounting principle . Effective January 1, 2006, Athersys adopted the fair value recognition provisions of Statement of Financial Accounting Standards No. 123 (revised 2004) (“SFAS No. 123R”), “Share-Based Payment,” using the modified-prospective-transition method. SFAS No. 123R requires Athersys to estimate forfeitures in calculating the expense relating to share-based

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compensation, while previously Athersys was permitted to recognize forfeitures as an expense reduction upon occurrence. The adjustment to apply estimated forfeitures to previously recognized share-based compensation was accounted for as a cumulative effect of a change in accounting principle at January 1, 2006 and reduced net loss by $306,000 for the three months ended March 31, 2006.
Year Ended December 31, 2006 Compared to year ended December 31, 2005
Revenues . Revenues increased to $3.7 million for the year ended December 31, 2006 from $3.6 million for the comparable period in 2005. License fee revenues increased $1.1 million over this period as a result of the nature and timing of target acceptances under Athersys’ collaboration agreement with Bristol-Myers Squibb. Grant revenue decreased $1.0 million for the year ended December 31, 2006 compared to the year ended December 31, 2005. In July 2003, Athersys was awarded a $5.0 million state grant that spanned three years and was completed in February 2006. This grant was renewed in May 2006 for approximately $3.5 million that will also span three years. The decrease in grant revenue for the year ended December 31, 2006 is principally the result of recognizing eight months of revenue under this state grant in 2006 versus twelve months of revenue in 2005. In addition, Athersys had fewer active NIH grant awards in 2006 as compared to 2005.
Research and Development Expenses . Research and development expenses decreased to $9.7 million in 2006 from $12.6 million in 2005. The decrease of approximately $2.9 million in research and development expenses relates primarily to a decrease in personnel costs of $1.9 million, a decrease in research supplies expenses of $1.1 million, and a decrease in facilities and other costs of $435,000 related to the restructuring and reduction in force that occurred late in 2005. In addition, patent legal fees decreased $119,000 and stock compensation expense decreased $525,000 in 2006 compared to 2005. These decreases were offset by an increase in sponsored research, preclinical and clinical expenses of $1.2 million in 2006 compared to 2005. As Athersys has evolved from a research-oriented company to a product-oriented company, its staffing needs have evolved, resulting in the reductions in personnel and related costs. Athersys is currently optimizing the mix of its internal capabilities with the capabilities of its outside collaborators, academic institutions, and third party contract research organizations resulting in an increase in these costs.
General and Administrative Expenses . General and administrative expenses decreased to $3.3 million in 2006 from approximately $3.8 million in 2005. The decrease in general and administrative expenses was due primarily to a decrease in stock compensation expense of $474,000 and a decrease in other expenses of $116,000. These decreases were offset by an increase in legal and professional fees of $144,000, which was a result of legal costs associated with potential financing and strategic transactions.
Depreciation . Depreciation expense decreased to $528,000 in 2006 from $982,000 in 2005. The decrease in depreciation expense was due to more laboratory equipment, computer equipment, furniture, and leasehold improvements becoming fully depreciated, combined with fewer purchases of new equipment.
Restructuring Costs . Restructuring costs for the year ended December 31, 2005 were a result of the restructuring and reduction in force, which occurred late in 2005.
Other Income and Equity in Earnings of Unconsolidated Affiliate. In January 2006, a milestone was achieved related to Athersys’ joint venture with Oculus Pharmaceuticals, Inc., a dormant entity with rights to certain potential milestone-based consideration. As a result, Athersys received $100,000 of stock-based proceeds from Oculus, which was recorded in other income. Similarly, Oculus also received stock-based proceeds in another company in the amount of $260,000. Athersys recorded its share of Oculus’ net income (after recapturing past net losses) of $117,000 in equity in earnings of unconsolidated affiliate on the statement of operations.
Interest Income . Interest income decreased to $119,000 for the year ended December 31, 2006 from $317,000 in 2005. Changes in interest income was due to changes in Athersys’ average cash balances and available for sale securities during those periods.

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Interest Expense. Interest expense on Athersys’ debt outstanding under its senior loan and its subordinated promissory notes increased to $1,047,000 for the year ended December 31, 2006 from $964,000 for the comparable period in 2005. The increase in interest expense is due to the subordinated convertible promissory notes issued by Athersys in May 2006 and October 2006.
Accretion of Premium on Convertible Debt . The accretion of premium on convertible debt for the year ended December 31, 2006, is a result of the $2.5 million subordinated secured convertible promissory notes issued in October 2006. The notes, if not converted, are repayable with accrued interest at maturity, plus a repayment fee of 200% of the outstanding principal. Athersys has computed a premium on the debt in the amount of $5,250,000 due upon redemption, which is being accreted over the term of the notes using the effective interest method. This accretion was reversed in June 2007 when the notes were converted into common stock upon the closing of the Offering.
Cumulative effect of change in accounting principle . Effective January 1, 2006, Athersys adopted the fair value recognition provisions of SFAS No. 123R using the modified-prospective-transition method. SFAS No. 123R requires Athersys to estimate forfeitures in calculating the expense relating to share-based compensation, while previously Athersys was permitted to recognize forfeitures as an expense reduction upon occurrence. The adjustment to apply estimated forfeitures to previously recognized share-based compensation was accounted for as a cumulative effect of a change in accounting principle at January 1, 2006 and reduced net loss by $306,000 for the year ended December 31, 2006.
Year Ended December 31, 2005 compared to year ended December 31, 2004
Revenues . Revenues increased to $3.6 million in 2005 from $3.1 million in 2004. License fee revenue decreased $57,000 from 2004 to 2005 due to the nature and timing of target acceptances under Athersys’ collaboration agreement with Bristol-Myers Squibb. The remaining increase of $515,000 from 2004 to 2005 was due primarily to increased grant revenue. In 2003, Athersys was awarded a $5 million state grant that spanned three years and was completed in April 2006.
Research and Development Expenses . Research and development expenses increased to $12.6 million in 2005 from $12.4 million in 2004. The increase of $163,000 in research and development expenses relates to a decrease in stock compensation expense of $1.2 million, a decrease in research supplies expenses of $375,000, an increase in outside sponsored research and preclinical expenses of $1.5 million, and an increase in patent legal costs of $348,000.
General and Administrative Expenses . General and administrative expenses decreased to $3.8 million in 2005 from $4.7 million in 2004. The decrease in general and administrative expenses of $962,000 is due primarily to a decrease in stock option expense of $824,000, a decrease in payroll, facilities and other expense of $281,000 related to the restructuring and reduction in force late in 2005, and an increase in legal and professional fees of $143,000.
Depreciation . Depreciation expense decreased to $1.0 million in 2005 from $1.3 million in 2004. The decrease in depreciation expense was due to more laboratory equipment, computer equipment, furniture, and leasehold improvements becoming fully depreciated, combined with fewer purchases of new equipment.
Restructuring Costs. Restructuring costs for the year ended December 31, 2005 were a result of the restructuring and reduction in force, which occurred late in 2005. Restructuring costs for the year ended December 31, 2004 were a result of the restructuring and reduction in force, which occurred late in 2003.
Interest Income . Interest income was $317,000 in 2006 and 2005. Interest income was as result of Athersys’ average cash balances and available for sale securities during those periods.
Interest Expense . Interest expense on Athersys’ debt under credit agreements increased to $964,000 in 2005 from $73,000 in 2004. The increase in interest expense was attributable to Athersys’ borrowing $7.5 million under its senior loan late in 2004 .

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Liquidity and Capital Resources
Athersys has primarily financed its operations through private equity and debt financings that have resulted in aggregate cumulative proceeds of approximately $131 million prior to the Offering.
In November 2004, Athersys entered into a Loan and Security Agreement (the “Senior Loan”) with Venture Lending & Leasing IV, Inc. and Costella Kirsch IV, L.P. (the “Senior Lenders”), pursuant to which it borrowed $7.5 million pursuant to notes that mature on June 1, 2008. Amounts outstanding under the Senior Loan are payable in 30 monthly installments following an initial interest-only period that expired on December 1, 2005. The Senior Loan has an implied fixed interest rate of approximately 13%. A final payment of $487,500 is due on June 1, 2008. As of May 31, 2007, the outstanding balance of the Senior Loan is approximately $3,528,000. Athersys’ obligations under the Senior Loan are secured by substantially all of its assets. As a result of the Offering, the Senior Lenders’ lien on Athersys’ intellectual property is being released. The lien on intellectual property could, however, re-attach at any time if the ratio of Athersys’ unrestricted cash to four months’ expenses is less than one-to-one. The agreement governing the Senior Loan contains affirmative and negative covenants customary for such financings and customary events of default. As of March 31, 2007, Athersys was in compliance with these covenants.
The Senior Lenders have the right to receive a milestone payment of $2.25 million upon the first to occur of the following milestone events: (1) a firmly underwritten initial public offering of common stock; (2) Athersys’ merger with or into another entity where its stockholders do not hold at least a majority of the voting power of the surviving entity; (3) the sale of all or substantially all of Athersys’ assets; and (4) Athersys’ liquidation or dissolution. The milestone payment is payable in cash, except that if the milestone event is an initial public offering, Athersys may elect to pay 75% of the milestone in shares of common stock at the per share offering price to the public. Although the Offering did not constitute a milestone event under the Senior Loan, Athersys is discussing an amendment with the Lenders to include the occurrence of an additional significant financing or financings (occurring subsequent to the consummation of the Merger and the Offering) as a milestone event that would obligate it to make such milestone payment or otherwise restructure the milestone payment since an initial public offering technically can no longer occur. The Senior Lenders also received warrants to purchase 149,026 shares of Common Stock with an exercise price of $5.00 upon the closing of the Offering. Athersys is evaluating the potential restructuring or prepayment of this Senior Loan.
In October 2006, Athersys completed a bridge financing of $2,500,000 in the form of 10% secured convertible promissory notes. The notes and accrued interest were converted into Common Stock at a conversion price of $5.00 upon the closing of the Offering. Prior to conversion, the notes were repayable with accrued interest at maturity plus a repayment fee of 200% of the outstanding principal. Athersys had computed a premium on the debt in the amount of $5,250,000 due upon redemption, which was being accreted over the term of the notes using the effective interest method. Athersys reversed this premium upon the conversion of the notes in June 2007. The noteholders also received warrants to purchase 999,977 shares of Common Stock, which were exercised at the closing of the Offering. In 2006, Athersys allocated $250,000 of the purchase price of the notes to the warrants based on the relative fair value of the notes and warrants.
In connection with developing MultiStem for the treatment of the cardiovascular disorders of myocardial infarction and peripheral vascular disease as part of a commercial collaboration with Angiotech that was entered into in May 2006, in support of the collaboration, Angiotech purchased $10,000,000 in aggregate principal amount of subordinated convertible promissory notes, which were converted along with accrued interest into Common Stock upon the closing of the Offering at a conversion price of $5.50, which was 110% of the price per share paid in the Offering. Athersys may also receive additional equity investments and cash payments based upon the successful achievement of specified clinical development and commercialization milestones.
Athersys’ contractual payment obligations as of December 31, 2006 are as follows:

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            Less than 1                   More than 5
    Total   year   1-3 years   3-5 years   years
Operating lease for facilities
  $ 201,000     $ 201,000                    
Long-term debt (principal and interest)
  $ 5,132,000     $ 3,332,000     $ 1,800,000              
Total
  $ 5,333,000     $ 3,533,000     $ 1,800,000              
The table above excludes Athersys’ convertible promissory notes since they were converted upon the closing of the Offering. Athersys has an operating lease for its office and laboratory space that expires in March 2009. Athersys has an option to renew the lease in six-month intervals during the term at the existing rental rate. Athersys has exercised options to renew the lease through September 2007.
Athersys has never paid dividends on its capital stock, and all accrued cumulative dividends were eliminated in June 2007 in connection with the Merger.
Upon the closing of the Offering in June 2007, the Company received net proceeds of approximately $58.8 million. The placement agents received approximately $5.5 million in fees from the gross proceeds.
At March 31, 2007, Athersys had $3.3 million in cash, cash equivalents, and available-for-sale securities.
Net cash used in operating activities was $8.4 million, $12.1 million, and $11.7 million in 2006, 2005, and 2004, respectively, and represented the use of cash in funding technology development and product development initiatives. Net cash used in operating activities was $2.1 million for the three months ended March 31, 2007 and $2.0 million for the three months ended March 31, 2006, and was primarily attributed to expenditures used to fund Athersys’ research and product development activities.
Net cash provided by investing activities was $3.4 million, $10.3 million, and $6.4 million in 2006, 2005, and 2004, respectively. Net cash provided by (used in) investing activities was $(3,000) in the three months ended March 31, 2007, and $2.0 million for the comparable period in 2006. The fluctuations from period to period are due to the timing of purchases and maturity dates of investments, and the purchase of equipment. Purchases of equipment were $83,000 in 2006, $239,000 in 2005, $173,000 in 2004, $3,000 for the three-month period ended March 31, 2007 and $4,000 for the three-month period ended March 31, 2006.
Financing activities provided cash of $5.4 million in 2006, $4.0 million in 2004 and $3.9 million in the three months ended March 31, 2007. Financing activities used cash of $446,000 in 2005 and $596,000 in the three months ended March 31, 2006. These fluctuations relate primarily to proceeds and repayments of loans and the issuance of Athersys’ convertible promissory notes in 2006 and in the first quarter of 2007.
We expect to continue to incur substantial losses through at least the next several years and may incur losses in subsequent periods. The amount and timing of our future losses are highly uncertain. Our ability to achieve and thereafter sustain profitability will be dependent upon, among other things, successfully developing, commercializing and obtaining regulatory approval or clearances for our technologies and products resulting from these technologies. The Company presumes that it will continue as a going concern.
We will require substantial additional funding in order to continue our research and product development programs, including preclinical testing and clinical trials of our product candidates. While we believe that the net proceeds from the Offering, combined with current capital resources and anticipated cash flows from licensing activities, will be sufficient to meet our capital and operating requirements for approximately three years, we cannot assure you that we will not require additional financing before that

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time. Our funding requirements may change at any time due to technological advances or competition from other companies. Our future capital requirements will also depend on numerous other factors, including scientific progress in our research and development programs, additional personnel costs, progress in preclinical testing and clinical trials, the time and cost related to proposed regulatory approvals, if any, and the costs in filing and prosecuting patent applications and enforcing patent claims. We cannot assure you that adequate funding will be available to us or, if available, that it will be available on acceptable terms. Any shortfall in funding could result in our having to curtail our research and development efforts.
Critical Accounting Policies and Management Estimates
The SEC defines critical accounting policies as those that are, in management’s view, important to the portrayal of our financial condition and results of operations and demanding of management’s judgment. Our discussion and analysis of financial condition and results of operation are based on Athersys’ consolidated financial statements, which have been prepared in accordance with U.S. generally accepted accounting principles, or GAAP. The preparation of these financial statements requires Athersys to make estimates on experience and on various assumptions that we believe are reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ from those estimates.
Athersys’ critical accounting polices include:
Revenue Recognition
Revenue is recognized over the period that Athersys performs its required activities under the terms of various agreements. Revenue from transactions that do not require future performance obligations from Athersys is recognized as contemplated in the agreements, typically upon acceptance and when collectibility is reasonably assured. Revenue resulting from the achievement of milestone events stipulated in the agreements is recognized when the milestone is achieved.
Revenue from grants consists primarily of funding under cost reimbursement programs from federal and state sources for qualified research and development activities performed by Athersys. Revenue from grants is recorded when earned under the terms of the agreements.
Research and Development
Research and development expenditures, including direct and allocated overhead expenses, are charged to expense as incurred.
Royalties
Athersys may be required to remit royalty payments based on product sales to certain parties under license agreements. Athersys has not paid any such royalties for the three-year period ended December 31, 2006 or the three-month period ended March 31, 2007.
Long-Lived Assets
Equipment is stated at acquired cost less accumulated depreciation. Laboratory and office equipment are depreciated on the straight-line basis over the estimated useful lives (three to seven years).
Impairment of long-lived assets is recognized when events or changes in circumstances indicate that the carrying amount of the asset or related group of assets may not be recoverable. If the expected future undiscounted cash flows are less than the carrying amount of the asset, an impairment loss is recognized at that time. Measurement of impairment may be based upon appraisal, market value of similar assets or discounted cash flows.

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Patent Costs and Rights
Patent costs and rights are expensed as incurred. Athersys has filed for broad intellectual property protection on its proprietary technologies. Athersys currently has numerous U.S. patent applications and corresponding international patent applications related to its technologies, as well as many issued U.S. and international patents.
Stock-Based Compensation
In December 2004, SFAS No. 123R was issued as a revision to Statement of Financial Accounting Standards No. 123 (“SFAS No. 123”), “Accounting for Stock Options.” SFAS No. 123R required to be adopted by nonpublic companies in January 2006. Prior to January 1, 2006, Athersys elected to account for its stock-based compensation in accordance with the intrinsic value method as described in the provisions of Accounting Principles Board Opinion No. 25, “Accounting for Stock Issued to Employees,” and related interpretations, as permitted by SFAS No. 123. As such, compensation was recorded in 2004 and 2005 on the date of issuance or grant as the excess of the current estimated market value of the underlying stock over the purchase or exercise price of the stock option. Any unearned compensation was recognized over the respective vesting periods of the equity instruments, if any, using the graded vesting method as prescribed by Financial Accounting Standards Board Interpretation No. 28.
Effective January 1, 2006, Athersys adopted the fair value recognition provisions of SFAS No. 123 using the modified-prospective-transition method. Under that transition method, compensation cost recognized in 2006 includes: (1) compensation cost for all share-based payments granted prior to, but not yet vested as of January 1, 2006, based on the grant date fair value estimated in accordance with the original provisions SFAS No. 123; and (2) compensation cost for all share-based payments granted subsequent to January 1, 2006, based on the grant-date fair value estimated in accordance with the provisions of SFAS No. 123R. Results for prior periods have not been restated. For some of the awards granted prior to the adoption of SFAS No. 123R, Athersys recognized compensation expense on the accelerated method. For awards granted subsequent to adoption of SFAS No. 123R, Athersys will recognize expense on the straight line method.
Income Taxes
As of December 31, 2006, Athersys had net operating loss and research and development credit carryforwards of approximately $109.9 million and $5.8 million, respectively. These carryforwards may be used to reduce future tax liabilities and expire at various dates between 2013 and 2027. Athersys’ use of its current net operating loss and research and development credit carryforwards may be substantially limited as a result of the change in ownership related to the Merger and Offering.
Recently issued accounting standards
In July 2006, the Financial Accounting Standards Board issued FASB Interpretation No. 48 (FIN 48), “Accounting for Uncertainty in Income Taxes,” which is applicable for fiscal years beginning after December 15, 2006. FIN 48 clarifies the accounting for uncertainty in income taxes recognized in an enterprise’s financial statements in accordance with SFAS No. 109, “Accounting for Income Taxes.” FIN 48 prescribes a recognition threshold and measurement attribute for financial statement recognition and measurement of a tax position reported or expected to be reported on a tax return. FIN 48 also provides guidance on derecognition, classification, interest and penalties, accounting in interim periods, disclosure, and transition. Athersys adopted the provisions of FIN 48 on January 1, 2007. Upon adoption of FIN 48 and through March 31, 2007, Athersys determined that it had no liability for uncertain income taxes as prescribed by FIN 48. Athersys’ policy is to recognize potential accrued interest and penalties related to the liability for uncertain tax benefits, if applicable, in income tax expense. Net operating loss and credit carryforwards since inception remain open to examination by taxing authorities, and will for a period post utilization. We do not anticipate any events during 2007 that would require Athersys to record a liability related to any uncertain income taxes.

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Quantitative and Qualitative Disclosures About Market Risk
Interest Rate Risk.
Our exposure to interest rate risk is related to Athersys’ investment portfolio and its borrowings. Fixed rate investments and borrowings may have their fair market value adversely impacted from changes in interest rates. Floating rate borrowings will lead to additional interest expense if interest rates increase. Due in part to these factors, Athersys’ future investment income may fall short of expectations, and Athersys’ interest expense may be above its expectations due to changes in U.S. interest rates. Further, Athersys may suffer losses in investment principal if it is forced to sell securities that have declined in market value due to changes in interest rates. Athersys invests its excess cash primarily in debt instruments of the U.S. government and its agencies.
Athersys enters into loan arrangements with financial institutions when needed. At March 31, 2007, Athersys had borrowings of approximately $4.0 million outstanding under its Senior Loan, which bears interest at a fixed rate of approximately 13%, and $12.8 million under its subordinated convertible promissory notes, which bear interest at a fixed rates of 5% and 10%.
PROPERTIES
Our principal offices are located at 3201 Carnegie Avenue in Cleveland, Ohio. We currently lease approximately 53,000 square feet of space for our corporate offices and laboratories, with about 40,000 square feet of state-of-the-art laboratory space. The lease currently expires in September 2007, and we have an option to extend the lease in six-month increments through March 2009 at our current rent of $267,000 per year.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information on the estimated beneficial ownership of Common Stock after the Merger and Offering based on the current beneficial ownership of BTHC VI Common Stock by the individuals who are our executive officers and directors and greater than 5% stockholders after the consummation of the Merger and the Offering on June 8, 2007. Beneficial ownership is determined according to rules of the SEC governing the determination of beneficial ownership of securities. A person is deemed to be a beneficial owner of any securities for which that person has a right to acquire beneficial ownership within 60 days. The table below contains the following assumptions:
                 
    Number of   Percent of
Name of Beneficial Owner   Shares   Class
Greater Than 5% Stockholders
               
 
               
OrbiMed Advisors LLC and affiliates (1)
    3,750,000       19.06 %
Radius Venture Partners and affiliates (2)
    2,400,000       12.17 %
Angiotech Pharmaceuticals, Inc. (3)
    1,885,890       9.96 %
RA Capital Biotech Fund, LP and affiliates (4)
    1,500,000       7.80 %
Accipiter Capital Management LLC and affiliates (5)
    1,500,000       7.80 %
Hambrecht & Quist Capital Management LLC and affiliates (6)
    1,000,000       5.23 %
 
               
Directors and Executive Officers
               
 
               
Gil Van Bokkelen (7)
    392,887       2.04 %
John Harrington (8)
    371,127       1.93 %

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    Number of   Percent of
Name of Beneficial Owner   Shares   Class
William Mulligan (9)
    515,235       2.72 %
George Milne (10)
    2,415,000       12.23 %
Jordan Davis (11)
    2,400,000       12.17 %
Michael Sheffery (12)
    3,750,000       19.06 %
Floyd Loop (13)
    2,400,000       12.17 %
William (BJ) Lehmann (14)
    166,250       *  
Kurt Brunden
          *  
Robert Deans (15)
    96,000       *  
Laura Campbell (16)
    83,329       *  
All directors and executive officers as a group (11 persons)
    7,789,828       39.79 %
 
*   Less than one percent
 
(1)   Includes 3,000,000 shares (2,971,698 shares held by Caduceus Private Investment III, LP and 28,302 shares held by OrbiMed Associates III, LP) of Common Stock. Also includes 750,000 shares (742,925 shares held by Caduceus Private Investment III, L.P. and 7,075 shares held by OrbiMed Associates III, LP) of Common Stock issuable upon the exercise of warrants at $6.00 per share. The address for OrbiMed Advisors LLC and its affiliates is 767 3 rd Avenue, 30 th Floor, New York, New York 10017.
 
(2)   Includes 1,600,000 shares (800,000 shares held by Radius Venture Partners II, L.P., 103,766 shares held by Radius Venture Partners III, L.P., and 696,234 shares held by Radius Venture Partners III QP, L.P.) of Common Stock. Also includes 800,000 shares (400,000 shares held by Radius Venture Partners II, L.P., 51,883 shares held by Radius Venture Partners III, L.P., and 348,117 shares held by Radius Venture Partners III QP, L.P.) of Common Stock issuable upon the exercise of warrants at $6.00 per share. The address for Radius Venture Partners II, L.P. and its affiliates is 400 Madison Avenue, 8 th Floor, New York, New York 10017.
 
(3)   Represents shares received upon the conversion of subordinated convertible promissory notes upon the closing of the Offering. The address for Angiotech Pharmaceuticals, Inc. is 1618 Station Street, Vancouver, British Columbia, Canada V6A 1B6.
 
(4)   Includes 1,200,000 shares (1,178,880 shares held by RA Capital Biotech Fund, L.P. and 21,120 shares held by RA Capital Biotech Fund II, L.P.) of Common Stock. Also includes 300,000 shares (294,720 shares held by RA Capital Biotech Fund, L.P. and 5,280 shares held by RA Capital Biotech Fund II, L.P.) of Common Stock issuable upon the exercise of warrants at $6.00 per share. The address for RA Capital Biotech Fund, LP and its affiliates is 111 Huntington Avenue, Suite 610, Boston, Massachusetts 02199.
 
(5)   Includes 1,200,000 shares (319,950 shares held by Accipiter Life Sciences Fund (Offshore), L.P., 318,500 shares held by Accipiter Life Sciences Fund, L.P., 271,450 shares held by Accipiter Life Sciences Fund II (Offshore), L.P., 157,750 shares held by Accipiter Life Sciences Fund II (QP), L.P., and 132,350 shares held by Accipiter Life Sciences Fund II, L.P.) of Common Stock. Also includes 300,000 shares (79,988 shares held by Accipiter Life Sciences Fund (Offshore), L.P., 79,625 shares held by Accipiter Life Sciences Fund, L.P., 67,863 shares held by Accipiter Life Sciences Fund II (Offshore), L.P., 39,437 shares held by Accipiter Life Sciences Fund II (QP), L.P., and 33,087 shares held by Accipiter Life Sciences Fund II, L.P.) of Common Stock issuable upon the exercise of warrants at $6.00 per share. The address for Accipiter Capital Management LLC and its affiliates is 399 Park Avenue, 38 th Floor, New York, New York 10022.
 
(6)   Includes 800,000 shares (472,000 shares held by H&Q Healthcare Investors and 328,000 shares held by H&Q Life Sciences Investors) of Common Stock. Also includes 200,000 shares (118,000 shares held by H&Q Healthcare Investors and 82,000 shares held by H&Q Life Sciences Investors) of Common Stock issuable upon the exercise of warrants at $6.00 per share. The address for Hambrecht & Quist Capital Management LLC and its affiliates is 30 Roews Wharf, Boston, Massachusetts 02110.
 
(7)   Includes 41,299 shares (537 of which are held in trust for his children) of Common Stock issued upon exchange of the Athersys shares of capital stock upon consummation of the Merger. Also includes 21,271

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    shares of Common Stock issued upon conversion of a secured subordinated convertible promissory note and the exercise of a related warrant for 39,999 shares of Common Stock at $0.01 per share. Also includes warrants to purchase 5,318 shares of Common Stock at $6.00 per share that were issued upon the conversion of the note. Also includes vested options of 285,000 granted with an exercise price of $5.00.
 
(8)   Includes 24,539 shares of Common Stock issued upon exchange of the Athersys shares of capital stock upon consummation of the Merger. Also includes 21,271 shares of Common Stock issued upon conversion of a secured subordinated convertible promissory note and the exercise of a related warrant for 39,999 shares of Common Stock at $0.01 per share. Also includes warrants to purchase 5,318 shares of Common Stock at $6.00 per share that were issued upon the conversion of the note. Also includes vested options of 280,000 granted with an exercise price of $5.00.
 
(9)   Includes 182,292 shares (175,004 shares held by Primus Capital Fund IV Limited Partnership and 7,288 shares held by Primus Executive Fund Limited Partnership) of Common Stock issued upon exchange of the Athersys shares of capital stock upon consummation of the Merger. Also includes 106,356 (102,102 shares held by Primus Capital Fund IV Limited Partnership and 4,245 shares held by Primus Executive Fund Limited Partnership) shares of Common issued upon conversion of a secured subordinated convertible promissory note and the exercise of a related warrant for 199,998 shares (191,999 shares held by Primus Capital Fund IV Limited Partnership and 7,999 shares held by Primus Executive Fund Limited Partnership) of Common Stock at $0.01 per share. Also includes warrants to purchase 26,589 shares (25,526 shares held by Primus Capital Fund IV Limited Partnership and 1,063 shares held by Primus Executive Fund Limited Partnership) of Common Stock at $6.00 per share that were issued upon the conversion of the note. Mr. Mulligan is a limited partner of the General Partner of Primus Venture Partners, L.P. and disclaims beneficial ownership of the reported securities except to the extent of his pecuniary interest therein. Mr. Mulligan was appointed to our Board of Directors in June 2007 (formerly on Athersys board since 1998).
 
(10)   Includes 1,600,000 shares (800,000 shares held by Radius Venture Partners II, L.P., 103,766 shares held by Radius Venture Partners III, L.P., and 696,234 shares held by Radius Venture Partners III QP, L.P.) of Common Stock. Also includes 800,000 shares (400,000 shares held by Radius Venture Partners II, L.P., 51,883 shares held by Radius Venture Partners III, L.P., and 348,117 shares held by Radius Venture Partners III QP, L.P.) of Common Stock issuable upon the exercise of warrants at $6.00 per share. Also includes 10,000 shares of Common Stock purchased by Dr. Milne in this Offering, and related warrants to purchase 5,000 shares of Common Stock at $6.00 per share. Dr. Milne is a venture partner of Radius Ventures, LLC and disclaims beneficial ownership of the reported securities except to the extent of his pecuniary interest therein. Dr. Milne was appointed to our Board of Directors in June 2007 (formerly on Athersys board since 2003). The address for Dr. Milne is c/o Athersys, Inc., 3201 Carnegie Avenue, Cleveland, Ohio 44115.
 
(11)   Includes 1,600,000 shares (800,000 shares held by Radius Venture Partners II, L.P., 103,766 shares held by Radius Venture Partners III, L.P., and 696,234 shares held by Radius Venture Partners III QP, L.P.) of Common Stock. Also includes 800,000 shares (400,000 shares held by Radius Venture Partners II, L.P., 51,883 shares held by Radius Venture Partners III, L.P., and 348,117 shares held by Radius Venture Partners III QP, L.P.) of Common Stock issuable upon the exercise of warrants at $6.00 per share. Mr. Davis is a managing member of the General Partner of each of Radius Venture Partners II, L.P., Radius Venture Partners III, L.P. and Radius Venture Partners III QP, L.P., and disclaims beneficial ownership of the reported securities except to the extent of his pecuniary interest therein. Mr. Davis was appointed to our Board of Directors in June 2007. The address for Mr. Davis is Radius Ventures, LLC, 400 Madison Avenue, 8 th Floor, New York, New York 10017.
 
(12)   Includes 3,000,000 shares (2,971,698 shares held by Caduceus Private Investment III, L.P. and 28,302 shares held by OrbiMed Associates III, L.P.) of Common Stock. Also includes 750,000 shares (742,925 shares held by Caduceus Private Investment III, L.P. and 7,076 shares held by OrbiMed Associates III, L.P.) of Common Stock issuable upon the exercise of warrants at $6.00 per share. Mr. Sheffery is a partner of OrbiMed Advisors LLC and disclaims beneficial ownership of the reported securities except to the extent of his pecuniary interest therein. Mr. Sheffery was appointed to our Board of Directors in June 2007. The address for Mr. Sheffery is 767 Third Avenue, 30 th Floor, New York, New York 10017.
 
(13)   Includes 1,600,000 shares (800,000 shares held by Radius Venture Partners II, L.P., 103,766 shares held by Radius Venture Partners III, L.P., and 696,234 shares held by Radius Venture Partners III QP, L.P.) of Common Stock. Also includes 800,000 shares (400,000 shares held by Radius Venture Partners II, L.P., 51,883 shares held by Radius Venture Partners III, L.P., and 348,117 shares held by Radius Venture

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    Partners III QP, L.P.) of Common Stock issuable upon the exercise of warrants at $6.00 per share. Dr. Loop is venture partner of Radius Ventures, LLC and disclaims beneficial ownership of the reported securities except to the extent of his pecuniary interest therein. Dr. Loop was appointed to our Board of Directors in June 2007. The address for Dr. Loop is c/o Athersys, Inc., 3201 Carnegie Avenue, Cleveland, Ohio 44115.
 
(14)   Includes 5,000 shares of Common Stock purchased by Mr. Lehmann in the Offering, and related warrants to purchase 1,250 shares of Common Stock at $6.00 per share. Also includes vested options of 160,000 granted with an exercise price of $5.00.
 
(15)   Includes vested options of 96,000 granted with an exercise price of $5.00.
 
(16)   Includes 1,064 shares of Common Stock issued upon conversion of a secured subordinated convertible promissory note and the exercise of a related warrant for 1,999 shares of Common Stock at $0.01 per share. Also includes warrants to purchase 266 shares of Common Stock at $6.00 per share that were issued upon the conversion of the note. Also includes vested options of 80,000 granted with an exercise price of $5.00.
DIRECTORS AND EXECUTIVE OFFICERS
The Board of Directors is responsible for the overall management of Athersys and elects the executive officers who are responsible for administering Athersys’ day-to-day operations. Athersys’ management team is comprised of experienced executives of understanding that have participated in other development stage, venture capital-funded, start-up companies and corporate development transactions and have held executive positions in publicly traded companies.
In connection with the Merger, the following persons were elected to serve as officers and directors on the board of directors of BTHC VI:
             
Name   Age   Position
Gil Van Bokkelen, Ph.D.
    46     Chief Executive Officer and Chairman
William (BJ) Lehmann
           
Jr., J.D., M.B.A.
    41     President and Chief Operating Officer
John J. Harrington, Ph.D.
    39     Chief Scientific Officer and Executive VP and Director
Kurt R. Brunden, Ph.D.
    49     Senior VP – Biopharmaceuticals
Robert J. Deans Ph.D.
    55     Senior VP – Regenerative Medicine
Laura K. Campbell, C.P.A.
    43     VP – Finance
George M. Milne, Ph.D.
    63     Director
William C. Mulligan
    53     Director
Jordan S. Davis
    45     Director
Floyd D. Loop, M.D.
    70     Director
Michael Sheffery
    56     Director
Gil Van Bokkelen, Ph.D.
Chief Executive Officer and Chairman
Dr. Van Bokkelen co-founded Athersys in October 1995 and has served as Chief Executive Officer and a director since Athersys’ founding. Prior to May 2006, he also served as Athersys’ President. He has served as Chairman of Athersys’ Board of Directors since August 2000. Dr. Van Bokkelen is the current Chairman of the Center for Stem Cells and Regenerative Medicine, and has served on a number of other boards, including the Biotechnology Industry Organization’s ECS Board of Directors from 2001 to 2004, the Kent State University Board of Trustees from 2001 to 2004 and serves as an advisor to Early Stage Partners, a venture capital firm. He received his Ph.D. in Genetics from Stanford University, his B.A. in Economics from the University of California at Berkeley, and his B.A. in Molecular Biology from the University of California at Berkeley.

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William (BJ) Lehmann, J.D., M.B.A.
President and Chief Operating Officer
William (BJ) Lehmann, Jr., J.D. joined Athersys in September 2001 and was Athersys’ Executive Vice President of Corporate Development and Finance from August 2002 until May 2006, when he became Athersys’ President. From 1994 to 2001, Mr. Lehmann was with McKinsey & Company, Inc., an international management consulting firm, where he worked extensively with new technology and service-based businesses in the firm’s Business Building practice. Prior to joining McKinsey, he worked at Wilson, Sonsini, Goodrich & Rosati, a Silicon Valley law firm, and worked with First Chicago Corporation, a financial institution. Mr. Lehmann received his J.D. from Stanford University, his M.B.A. from the University of Chicago, and his B.A. from the University of Notre Dame.
John J. Harrington
Chief Scientific Officer and Executive Vice President, and Director
Dr. Harrington co-founded Athersys in October 1995 and has served as Athersys’ Executive Vice President and Chief Scientific Officer and as a director since Athersys’ founding. Dr. Harrington led the development of the RAGE technology as well as its application for gene discovery, drug discovery and commercial protein production applications. He is a listed inventor on 20 issued or pending U.S. patents, has authored 20 scientific publications, and has received numerous awards for his work, including being named one of the top international young scientists by MIT Technology Review in 2002. Dr. Harrington has overseen the therapeutic product development programs at Athersys since their inception, and during his career he has also held positions at Amgen and Scripps Clinic. He received his Ph.D. in Cancer Biology from Stanford University and his B.A. in Biochemistry and Cell Biology from the University of California at San Diego.
Kurt R. Brunden, Ph.D.
Senior Vice President – Biopharmaceuticals
Dr. Brunden joined Athersys as Vice President of Drug Discovery in September 2000 and has served as Athersys’ Senior Vice President of Biopharmaceuticals since October 2004. Dr. Brunden was employed at Gliatech Inc., a pharmaceutical and device company, from 1991 to 2000, where his most recent position was Vice President of Research. In that capacity, he was responsible for the initiation and development of small molecule and protein drug discovery programs. From 1988 to 1991, Dr. Brunden held a tenure-track faculty position within the Department of Biochemistry at the University of Mississippi Medical Center. He was a Research Fellow at the Mayo Clinic from 1985 to 1988. Dr. Brunden received his Ph.D. in Biochemistry from Purdue University and his B.S. in Biology and Chemistry from Western Michigan University. Dr. Brunden is considering a possible return to a faculty position, which would begin in late summer 2007. If Dr. Brunden does take a faculty position, Athersys currently anticipates that he would continue his involvement with the Company as a consultant, providing his expertise to the advancement of its biopharmaceutical programs.
Robert J. Deans, Ph.D.
Senior Vice President – Regenerative Medicine
      Dr. Deans has led Athersys’ regenerative medicine research and development activities since February 2003 and has served as Vice President of Regenerative Medicine since October 2003. He was named Senior Vice President of Regenerative Medicine in June 2006. Dr. Deans is highly regarded as an expert in stem cell therapeutics, with over fifteen years of experience in this field. From 2001 to 2003, Dr. Deans worked for early-stage biotechnology companies. Dr. Deans was formerly the Vice President of Research at Osiris Therapeutics, Inc., a biotechnology company, from 1998 to 2001 and Director of Research and Development with the Immunotherapy Division of Baxter International, Inc., a global healthcare company, from 1992 to 1998. Dr. Deans was also previously on faculty at USC Medical School in Los Angeles, between 1981 and 1998, in the departments of Microbiology and Neurology at the

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Norris Comprehensive Cancer Center. Dr. Deans was an undergraduate at MIT, received his Ph.D. at the University of Michigan, and did his post-doctoral work at UCLA in Los Angeles.
Laura K. Campbell, CPA,
Vice President — Finance
Laura Campbell joined Athersys in January 1998 as Controller and has served as Vice President of Finance since May 2006. Prior to joining Athersys, she was at Ernst & Young LLP, a public accounting firm, for 11 years, in the audit practice. During her tenure with Ernst & Young LLP, Ms. Campbell specialized in entrepreneurial services and the biotechnology industry sector and participated in several initial public offerings. Ms. Campbell received her B.S., with distinction, in Business Administration from The Ohio State University.
George M. Milne, Ph.D.
Director
Dr. Milne has been a director of Athersys since January 2003 after his retirement in 2002 from Pfizer Inc, a pharmaceutical company, where he most recently served as President of Worldwide Strategic and Operations Management and Executive Vice President of Global Research and Development. He joined Pfizer Inc in 1970 and held a variety of positions conducting both chemistry and pharmacology research. Dr. Milne is a Venture Partner of Radius. Dr. Milne became Director of the Department of Immunology and Infectious Diseases at Pfizer Inc in 1981, was Executive Director from 1984 to 1985 and was Vice President of Research and Development from 1985 to 1988. He was appointed Senior Vice President in 1988 and President of Central Research in 1993 with global responsibility for Human and Veterinary Medicine R&D. Dr. Milne serves as a director of Mettler-Toledo, Inc., Charles River Laboratories, Inc., MedImmune Inc., and Aspreva Pharmaceuticals Inc. He also serves on the board of the New York Botanical Garden and the Mystic Aquarium/Institute for Exploration. Dr. Milne received his B.S. in Chemistry from Yale University and his Ph.D. in Organic Chemistry from Massachusetts Institute of Technology.
William C. Mulligan
Director
Mr. Mulligan has been a director of Athersys since October 1998. Mr. Mulligan joined Primus Venture Partners, a Cleveland-based private equity firm and an investor in Athersys, in 1985 from McKinsey & Company, Inc. Mr. Mulligan has served as a Managing Director of Primus since 1987. His previous work experience includes management positions at Deere and Company, and First Chicago Corporation. Mr. Mulligan serves as a director of several private companies and Universal Electronics, Inc. (NASDAQ: UEIC). Mr. Mulligan is a trustee of The Cleveland Clinic Foundation and chairs the Advisory Board of CCF Innovations, which is responsible for commercializing technology developed at the Cleveland Clinic. Mr. Mulligan is also a trustee of Denison University, the Western Reserve Land Conservancy. Mr. Mulligan received his B.A. in economics from Denison University and his M.B.A. from the University of Chicago.
Jordan S. Davis
Director
Mr. Davis is a Managing Partner of Radius Ventures, a health and life sciences venture capital firm, which he co-founded in 1997. Mr. Davis currently serves on the board of directors of several Radius portfolio companies, including Health Language, Inc., Heartscape Technologies, Inc., Impliant, Inc., and Zettacore, Inc. He also serves on the board of American Bank Note Holographics, Inc. (OTC: ABHH). Mr. Davis earned an M.B.A. from the Kellogg School of Management at Northwestern University and a B.A. in Economics from The State University of New York at Binghamton.

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Floyd D. Loop, M.D.
Director
Dr. Loop was the CEO and chairman of the Board of Governors of The Cleveland Clinic Foundation from 1989 to 2004. Earlier, he chaired the Department of Thoracic and Cardiovascular Surgery at the Cleveland Clinic from 1975 to 1989. Dr. Loop and his colleagues were responsible for today’s widespread use of arterial conduits in coronary artery surgery, innovations in valve repair, reoperations and numerous changes in technical procedure. As a surgeon, Dr. Loop performed more than 12,000 open heart operations and authored 350 papers on all aspects of cardiovascular surgery. During his tenure as CEO, the Cleveland Clinic revenues grew from $650 million to $3.6 billion. His accomplishments included a significant development of basic and applied research, creation of a delivery system comprised of 12 hospitals and 14 outpatient sites, a new medical school for physician investigators and construction of two hospitals in Florida. Dr. Loop is a Venture Partner of Radius. Dr. Loop was president of the American Association for Thoracic Surgery, Chairman of the Residency Review Committee, and a member of the American Board of Thoracic Surgery. Dr. Loop has received honorary degrees from Cleveland State University, Purdue University, and St. Louis University among many other international awards. He currently serves on two public boards, Tenet Healthcare Corporation and Intuitive Surgical, Inc. Dr. Loop received his M.D. from the George Washington University.
Michael B. Sheffery, Ph.D.
Director
Dr. Sheffery is a founding General Partner of OrbiMed Advisors, LLC and Co-Head of Private Equity. Dr. Sheffery was formerly Head of the Laboratory of Gene Structure and Expression at Memorial Sloan-Kettering Cancer Center. He received both his Ph.D. in Molecular Biology and his B.A. in Biology from Princeton University. Dr. Sheffery joined Mehta and Isaly in 1996 as a Senior Analyst covering the biotechnology industry. Since 1998, Dr. Sheffery had been a General Partner of OrbiMed Advisors, LLC. He is currently a Director of Affimed Therapeutics, AG, Supernus Pharmaceuticals, Inc., CoGenesys, Inc., and Sientra, Inc.
COMPENSATION DISCUSSION & ANALYSIS
This section discusses the principles underlying our executive compensation policies and decisions and the most important factors relevant to an analysis of these policies and decisions. It provides qualitative information regarding the manner and context in which compensation is awarded to and earned by our named executive officers, which we refer to further under “Executive Compensation” below, and places in perspective the data presented in the compensation tables and narratives that follow.
Compensation Objectives and Philosophy
Historically, Athersys’ board of directors has been responsible for establishing and approving the compensation of its executive officers and key employees. In connection with the completion of the Offering, the Compensation Committee of the Board of Directors was established, and will be responsible for overseeing executive and other employee compensation, as well as certain other matters. With respect to compensation matters, the initial objective of the Board of Directors and Compensation Committee will be to establish a compensation program that attracts and helps retain talented and experienced individuals for senior level positions throughout the organization, as well as to authorize appropriate compensation for our employees and key consultants.
The Board of Directors and the Compensation Committee will oversee compensation programs designed to also:
    Recruit, retain, and motivate executives and employees that can help us achieve our core business goals;

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    Provide incentives to promote and reward superior performance throughout the organization;
 
    Facilitate stock ownership and retention by our executives and other employees; and
 
    Promote alignment between executives and other employees and the long term interests of stockholders.
The Board of Directors and Compensation Committee will seek to achieve these objectives by:
    Establishing a compensation program that is market competitive and internally fair; and
 
    Linking performance with certain elements of compensation through the use of equity options, stock grants, cash performance bonuses or other means of compensation the value of which is substantially tied to the achievement of our company goals.
Components of Compensation
The Company’s executive compensation program will include the following elements:
    Base salary;
 
    Discretionary and performance-based bonuses;
 
    Long-term incentive plan awards; and
 
    Retirement and health insurance benefits.
The Compensation Committee will set a competitive rate of annual base salary for each executive officer in order to attract and retain top quality executives. However, the Compensation Committee has not yet committed to the means by which it will determine competitive rates of annual base salary in the market, which means might include executive officer and director input, input from a compensation consultant and third-party information.
We do not have a specific formula for allocating total compensation between current and long-term compensation or between cash and non-cash compensation. However, we do vary the mix of our executive officers’ compensation elements based on competitive practices and their relative management level to recognize each individual’s operating responsibilities and reward his or her ability to impact short- and long-term results.
Elements of Executive Compensation
We will pay our executive officers the following compensation:
Base Salary. We pay base salaries in order to attract executive officers and provide a basic level of financial security. We establish base salaries for our executives based on the scope of their responsibilities, taking into account competitive market compensation paid by other companies for similar positions. Base salaries are reviewed (1) at the time of renewal of an executive’s employment agreement, or (2) annually, with adjustments based on the individual’s responsibilities, performance and experience during the year. This review occurs each year at the annual review.
Discretionary and Performance-Based Bonuses. The Board of Directors expects to adopt a formal process for determining and awarding discretionary and performance-based annual bonuses later in 2007.

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The Board of Directors intends to utilize annual incentive bonuses to reward officers and other employees for achieving financial and operational goals and for achieving individual annual performance objectives. These objectives will vary depending on the individual executive and employee, but will relate generally to strategic factors, including establishment and maintenance of key strategic relationships, advancement of our product candidates, identification and advancement of additional programs or product candidates, and to financial factors, including raising capital, improving our results of operations and increasing the price per share of our common stock. Commencing in 2007, the Board of Directors will have authority to award discretionary annual bonuses to, or enter into commitments for the award of an annual bonus with, our executive officers.
Long-Term Incentive Program. We believe that we can encourage superior long-term performance by our executive officers and employees through encouraging them to own, and assisting them with the acquisition of, our stock. We have established the BTHC VI, Inc. Long-Term Incentive Plan and the BTHC VI, Inc. Equity Incentive Compensation Plan, which we refer to as our equity compensation plans, to provide our employees, including executive officers, with incentives to help align their interests with the interests of our stockholders. Our Board of Directors believes that the use of stock and stock-based awards offers the best approach to achieving our compensative objective of fostering a culture of ownership, which it believes will, in turn, motivate our executive officers to create and enhance stockholder value. Historically, Athersys has elected to use stock options as its primary long-term equity incentive vehicle. We have not adopted stock ownership guidelines, but our equity compensation plans provide a principal method for our executive officers to acquire equity in our Company.
Stock Options . Our equity compensation plans authorize us to grant options to purchase shares of Common Stock to our employees, directors and consultants. The Compensation Committee of the Board of Directors administers our equity compensation plans. Stock option grants are made at the commencement of employment and, on occasion, following a significant change in job responsibilities or to meet other special retention objectives. The Compensation Committee annually reviews and approves stock option awards to executive officers based upon a review of competitive compensation data, its assessment of individual performance, a review of each executive’s existing long-term incentives and retention considerations. Periodic stock option grants are made at the discretion of the Compensation Committee to eligible employees, including named executive officers, and, in appropriate circumstances, the Compensation Committee considers the recommendations of members of management. Our stock options are generally exercisable for a period of ten years, have an exercise price equal to the fair market value of our Common Stock on the day of grant and typically vest over a four-year period, with 25% vesting twelve months after the vesting commencement date and the remainder vesting 25% per year (on a quarterly basis) thereafter based upon continued employment. Incentive stock options also include certain other terms necessary to assure compliance with particular provisions of the Internal Revenue Code.
In June 2007, upon the closing of the Merger, we granted option awards to purchase 3,250,000 shares of Common Stock with an exercise price of $5.00 to our employees, including our executive officers, and certain consultants in June 2007 upon the closing of the Merger. These option awards generally vest 40% on the date of grant, and 20% in each of the three years (on a quarterly basis) thereafter. Dr. Van Bokkelen received stock option grants to purchase 712,500 shares of Common Stock at $5.00 per share; Dr. John Harrington received stock option grants to purchase 700,000 shares of Common Stock at $5.00 per share; Mr. Lehmann received stock option grants to purchase 400,000 shares of Common Stock at $5.00 per share; Dr. Brunden received stock option grants to purchase 50,000 shares of Common Stock at $5.00 per share; Dr. Deans received stock option grants to purchase 240,000 shares of Common Stock at $5.00 per share; and Ms. Campbell received stock option grants to purchase 200,000 shares of Common Stock at $5.00 per share. Also in June 2007, option awards to purchase 75,000 shares of Common Stock with an exercise price of $5.00 were granted to each of our directors (options for a total of 375,000 shares), which stock options vest at a rate of 50% in the first year (on a

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quarterly basis), and 25% in each of the two years (on a quarterly basis) thereafter, based on participation at quarterly meetings of the Board of Directors.
We expect to continue to use stock options as a long-term incentive vehicle because we believe:
Stock options align the interests of our executives with those of our stockholders, support a pay-for-performance culture, foster an employee stock ownership culture and focus the management team on increasing value for our stockholders;
The value of stock options is based on our performance, because all the value received by the recipient of a stock option is based on the growth of our stock price;
Stock options help to provide a balance to the overall executive compensation program because, while base salary and our discretionary annual bonus program focus on short-term compensation rewards, vesting stock options reward increases in stockholder value over the longer term; and
The vesting period of stock options encourages executive retention and their efforts to preserve stockholder value.
In determining the number of stock options to be granted to executives, we take into account the individual’s position, scope of responsibility, ability to affect profits and stockholder value and the individual’s historic and recent performance and the value of stock options in relation to other elements of the individual executive’s total compensation.
Restricted Stock and Restricted Stock Units . Our equity compensation plans authorize us to grant restricted stock and restricted stock units to our employees, directors and consultants. To date, we have not granted any restricted stock or restricted stock units under our equity compensation plans. We anticipate that in order to implement the long-term incentive goals of the Compensation Committee, we may grant restricted stock units in the future.
Retirement and Health Insurance Benefits. Consistent with our compensation philosophy, we intend to continue to maintain our current benefits for our executive officers, including medical, dental, vision and life and disability insurance coverage and the ability to contribute to a 401(k) retirement plan; however, the Board of Directors, in its discretion, may revise, amend or add to the executive officer’s benefits if it deems it advisable. We believe these benefits are currently lower than median competitive levels for comparable companies. We have no current plans to change the level of benefits provided to our executive officers.
Severance Arrangements
See the disclosure under “Potential Payments Upon Termination or Change of Control” for more information about severance arrangements with our named executive officers.
Employment Agreements and Arrangements
Dr. Gil Van Bokkelen . On December 1, 1998, Athersys entered into a one-year employment agreement, effective April 1, 1998, with Dr. Gil Van Bokkelen, to serve initially as president and chief executive officer. The agreement automatically renews for subsequent one-year terms on April 1 of each year unless either party gives notice of termination at least 30 days before the end of any term. Dr. Van Bokkelen is entitled to a base salary of $350,000, which may be increased at the discretion of the Athersys board of directors, and an annual discretionary incentive bonus of up to 33% of his base salary. Dr. Van Bokkelen also received options to purchase shares of Athersys common stock. Dr. Van Bokkelen is also entitled to life insurance coverage for the benefit of his family in the amount of approximately $2 million and is provided the use of a company automobile for business use. The agreement was amended as of May 31, 2007 to provide technical accommodations for the Merger and Offering. For more information about severance arrangements under the amended agreement, see the disclosure under “Potential Payments Upon Termination or Change of Control.” Dr. Van Bokkelen has also entered into a non-competition and confidentiality agreement with Athersys under which, during his employment and for a period of 18 months thereafter, he is restricted from, among other things, competing with Athersys.

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Dr. John J. Harrington . On December 1, 1998, Athersys entered into a one-year employment agreement, effective April 1, 1998, with Dr. John J. Harrington to serve initially as executive vice president and chief scientific officer. The agreement automatically renews for subsequent one-year terms on April 1 of each year unless either party gives notice of termination at least thirty days before the end of any term. Dr. Harrington is entitled to a base salary of $300,000, which may be increased at the discretion of the Athersys board of directors, and an annual discretionary incentive bonus of up to 33% of his base salary. Dr. Harrington also received options to purchase shares of Athersys common stock. Dr. Harrington is also entitled to life insurance coverage for the benefit of his family in the amount of approximately $2 million. The agreement was amended as of May 31, 2007 to provide technical accommodations for the Merger and Offering. For more information about severance arrangements under the amended agreement, see the disclosure under “Potential Payments Upon Termination or Change of Control.” Dr. Harrington has also entered into a non-competition and confidentiality agreement with Athersys under which, during his employment and for a period of 18 months thereafter, he is restricted from, among other things, competing with Athersys.
Laura K. Campbell . On May 22, 1998, Athersys entered into a two-year employment agreement with Laura K. Campbell to serve initially as controller. The agreement automatically renews for subsequent one-year terms on May 22 of each year unless either party gives notice of termination at least thirty days before the end of any term. Ms. Campbell is entitled to a base salary of $195,000, which may be increased at the discretion of the Athersys board of directors. Ms. Campbell also received options to purchase shares of Athersys common stock. The agreement was amended as of May 31, 2007 to provide technical accommodations for the Merger and Offering. For more information about severance arrangements under the amended agreement, see the disclosure under “Potential Payments Upon Termination or Change of Control.”
Dr. Kurt Brunden . On September 25, 2000, a subsidiary of Athersys entered into a four-year employment agreement with Dr. Kurt Brunden to serve initially as vice president of drug discovery. The agreement automatically renews for subsequent one-year terms on September 25 of each year unless either party gives notice of termination at least thirty days before the end of any term. Dr. Brunden is entitled to a base salary of $240,000, which may be increased at the discretion of the Athersys board of directors, and guaranteed bonuses for 2001 and 2002. Dr. Brunden also received options to purchase shares of Athersys common stock. Dr. Brunden is also entitled to life insurance coverage for the benefit of his family of approximately $1 million. The agreement was amended as of May 31, 2007 to provide technical accommodations for the Merger and Offering. For more information about severance arrangements under the amended agreement, see the disclosure under “Potential Payments Upon Termination or Change of Control.” Dr. Brunden has also entered into a non-competition and confidentiality agreement with Athersys under which, during his employment and for a period of 18 months thereafter, he is restricted from, among other things, competing with Athersys.
Dr. Robert Deans . On October 3, 2003, a subsidiary of Athersys entered into a four-year employment agreement with Dr. Robert Deans to serve initially as vice president of regenerative medicine. The agreement automatically renews for subsequent one-year terms on October 3 of each year unless either party gives notice of termination at least thirty days before the end of any term. Dr. Deans is entitled to a base salary of $235,000, which may be increased at the discretion of the Athersys board of directors, and an annual discretionary incentive bonus of up to 30% of his base salary. Dr. Deans also received options to purchase shares of Athersys common stock. Dr. Deans is also entitled to life insurance coverage for the benefit of his family of approximately $1 million. The agreement was amended as of May 31, 2007 to provide technical accommodations for the Merger and Offering. For more information about severance arrangements under the amended agreement, see the disclosure under “Potential Payments Upon Termination or Change of Control.” Dr. Deans has also entered into a non-competition and confidentiality agreement with Athersys under which, during his employment and for a period of 18 months thereafter, he is restricted from, among other things, competing with Athersys.
William (BJ) Lehmann . On January 1, 2004, a subsidiary of Athersys entered into a four-year employment agreement with William (BJ) Lehmann to serve initially as executive vice president of corporate development and finance. The agreement automatically renews for subsequent one-year terms on January 1 of each year unless either party gives notice of termination at least 30 days before the end of any term. Mr. Lehmann is entitled to a base salary of $300,000, which may be increased at the discretion of the Athersys board of directors. Mr. Lehmann is entitled to life insurance coverage for the benefit of his family in the amount of approximately $1 million. The agreement was amended as of May 31, 2007 to provide technical accommodations for the Merger and Offering. For more information about severance arrangements under the amended agreement, see the disclosure under “Potential Payments Upon Termination or Change of Control.” Mr. Lehmann has also entered into a non-competition and confidentiality agreement with Athersys under which, during his employment and for a period of 18 months thereafter, he is restricted from, among other things, competing with Athersys.

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Recoupment of Incentive Payments
We do not have a formal policy regarding adjusting or recovering discretionary or performance-based bonuses or long-term incentive plan awards or payments if the relevant performance metrics upon which such awards or payments are based are later restated or otherwise adjusted in a manner that reduces the actual size of the award or payment. We will consider making such adjustments on a case-by-case basis if such situations arise.
General Tax Deductibility of Executive Compensation
We intend to structure our compensation program to comply with Internal Revenue Code Sections 162(m) and 409A. Under Section 162(m) of the Internal Revenue Code, a limitation was placed on tax deductions of any publicly-held corporation for individual compensation to certain executives of such corporation exceeding $1,000,000 in any taxable year, unless the compensation is performance-based. If an executive is entitled to nonqualified deferred compensation benefits that are subject to Section 409A, and such benefits do not comply with Section 409A, then the benefits are taxable in the first year they are not subject to a substantial risk of forfeiture. In such case, the executive is subject to regular federal income tax, interest and an additional federal income of 20% of the benefit includible in income. We intend for our Compensation Committee to generally manage our incentive programs to qualify for the performance based exemption. The Compensation Committee also reserves the right to provide compensation that does not meet the exemption criteria if, in its sole discretion, it determines that doing so advances our business objectives.
EXECUTIVE COMPENSATION
The following tables and narratives provide, for the fiscal year ended December 31, 2006, descriptions of the cash compensation paid by us, as well as certain other compensation paid or accrued, for that year to Dr. Gil Van Bokkelen, Chief Executive Officer; and Laura Campbell, Vice President – Finance; and the four most highly compensated executive officers other than Dr. Van Bokkelen and Ms. Campbell who were serving as executive officers as of December 31, 2006. We refer to these individuals as our named executive officers. The stock option information set forth in this section is historical information based on the option plans of Athersys. All employee and director options under the Athersys stock option plans were terminated upon closing of the Merger, and new options were granted under the BTHC VI incentive plans.
2006 Summary Compensation Table
The following table shows compensation information for 2006 for our named executive officers:
                                                 
                                    All Other    
            Salary   Bonus   Option Awards   Compensation   Total
Name and Principal Position   Year   ($) (1)   ($)   ($) (2)   ($)   ($)
(a)   (b)   (c)   (d)   (f)   (i)   (j)
Dr. Gil Van Bokkelen, Chief Executive Officer (3)
    2006     $ 350,000     $ 25,000     $ 0     $ 149,604 (4)   $ 524,604  
 
                                               
William Lehmann, Jr., President and Chief Operating Officer
    2006     $ 300,000     $ 20,833     $ 91,015     $ 1,000     $ 412,848  
 
                                               
Dr. John Harrington, Chief Scientific Officer and Executive Vice President (3)
    2006     $ 300,000     $ 21,667     $ 0     $ 1,000     $ 322,667  
 
                                               
Dr. Kurt Brunden, Vice President – Biopharmaceuticals
    2006     $ 240,000     $ 18,333     $ 75,570     $ 2,000     $ 335,903  
 
                                               
Dr. Robert Deans, Vice President – Regenerative Medicine
    2006     $ 235,000     $ 16,667     $ 105,119     $ 6,000     $ 362,786  
 
                                               
Laura Campbell, Vice President
– Finance
    2006     $ 195,000     $ 14,219     $ 20,056     $ 0     $ 229,275  

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(1)   The 2006 salary increase was approved by Athersys’ Compensation Committee effective June 1, 2006, but payment was deferred until the closing of the Offering.
 
(2)   Amounts in column (f) do not necessarily reflect compensation actually received by Athersys’ named executive officers. The amounts in column (f) reflect the dollar amount recognized for financial statement reporting purposes for the fiscal year ended December 31, 2006, in accordance with SFAS No. 123R, for option awards granted prior to 2006. Assumptions used in the calculation of these amounts are included in Notes A and J to Athersys’ audited consolidated financial statements for the fiscal year ended December 31, 2006, which are filed as an exhibit to this Current Report on Form 8-K.
 
(3)   Drs. Van Bokkelen and Harrington also served as Athersys directors for 2006, but did not receive any compensation as Athersys directors.
 
(4)   Includes $145,604 representing a loan which was forgiven by Athersys’ Board of Directors, including certain tax benefits.
2006 Grants of Plan-Based Awards
Athersys implemented an incentive plan in 2005, which was amended in June 2007, which provides the named executive officers with cash (or equity, as applicable) bonus payments upon the achievement of certain thresholds from financing transactions, mergers or acquisitions, and asset sale transactions. Payments under this plan are set forth in the 2006 Summary Compensation Table. No plan-based awards were granted to our named executive officers during 2006.
Certain of our named executive officers are parties to employment agreements with us. For more information about these agreements, see “Compensation Discussion & Analysis—Employment Agreements and Arrangements” above. For more information about the compensation arrangements in which our named executive officers participate and the proportion of our named executive officers’ total compensation represented by base salary and bonus, see “2006 Summary Compensation Table” above.
Outstanding Equity Awards at 2006 Fiscal Year End Table
The following table shows all outstanding equity awards held by our named executive officers at the end of 2006.

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    Option Awards
                    Equity Incentive        
    Number           Plan Awards:        
    of   Number of Securities   Number of        
    Securities   Underlying   Securities        
    Underlying   Unexercised Options   Underlying Unexer-        
    Unexercised Options   (#)   cised Unearned   Option Exercise    
    (#)   Unexercisable   Options   Price   Option Expiration
Name   Exercisable   (1)   (#)   ($)   Date
(a)   (b)   (c)   (d)   (e)   (f)
Dr. Van Bokkelen
    199,980                 $ 1.65     April 1, 2008
 
    100,020                 $ 1.20     April 1, 2008
 
    45,000                 $ 3.25     April 2, 2013
 
                                       
 
    345,000                                  
Mr. Lehmann
    50,000                 $ 1.00     November 14, 2011
 
    10,000                 $ 15.60     November 14, 2011
 
    75,000                 $ 4.00     December 9, 2013
 
          25,000           $ 4.00     December 9, 2013
 
                                       
 
    135,000       25,000                          
Dr. Harrington
    199,980                 $ 1.50     April 1, 2008
 
    100,020                 $ 1.50     April 1, 2008
 
    457,500                 $ 1.50     April 1, 2008
 
                                       
 
    757,500                                  
Dr. Brunden
    50,000                 $ 1.00     September 25, 2010
 
    10,000                 $ 15.60     September 25, 2010
 
    70,000                 $ 4.00     December 9, 2013
 
          20,000           $ 4.00     December 9, 2013
 
                                       
 
    130,000       20,000                          
Dr. Deans
    7,500                 $ 13.00     October 3, 2013
 
    37,500                 $ 3.25     October 3, 2013
 
    30,000                 $ 4.00     December 9, 2013
 
          2,500           $ 13.00     October 3, 2013
 
          12,500           $ 3.25     October 3, 2013
 
          10,000           $ 4.00     December 9, 2013
 
                                       
 
    75,000       25,000                          
Ms. Campbell
    60,000                 $ 1.50     May 22, 2008
 
    30,000                 $ 1.00     February 22, 2010
 
    30,000                 $ 7.00     February 22, 2010
 
    30,000                 $ 4.00     December 9, 2013
 
                                       
 
    150,000                                  
 
(1)   The stock options listed in column (c) for Mr. Lehmann were granted on December 9, 2003, vest at a rate of 25% on each grant date anniversary, and will be fully exercisable on December 9, 2007. The stock options listed in column (c) for Dr. Brunden were granted on December 9, 2003 and vest at a rate of 11% on the date of grant, and 22% on each subsequent grant date anniversary thereafter, and will be fully exercisable on December 9, 2007. The stock options listed in column (c) for Dr. Deans were granted on October 3, 2003, October 3, 2003, and December 9, 2003, respectively, vest at a rate of 25% on each grant date anniversary, and will be fully exercisable on October 3, 2007, October 3, 2007 and December 9, 2007, respectively.
Upon the close of the Merger, the majority of Athersys’ outstanding stock options were terminated, including all of the stock options listed in the table above. Following the Merger, new grants were made to employees, including the named executive officers.
2006 Options Exercised and Stock Vested
None of our named executive officers’ stock awards vested during 2006, and none of our named executive officers exercised any stock options during 2006.

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Potential Payments Upon Termination or Change of Control
Upon termination, the named executive officers may be entitled to certain potential payments. In the event that an executive officer is terminated without cause or terminates employment for good reason including a change of control, we would be obligated to pay full base salary and other benefits for a defined period, subject to mitigation related to other employment. For Dr. Gil Van Bokkelen and Dr. John Harrington, this period is eighteen months, and for all other executive officers, the period is six months. In addition, we would be obligated to continue the participation of the executive officer in all medical, life and other employee “welfare” benefit programs for a period of eighteen months to the extent available and possible under the programs.
In the event than an executive officer is terminated for cause, other than for good reason, or as a result of death, we would be obligated to pay full base salary and other benefits, including any unpaid expense reimbursements, through the date of termination, and would have no further obligations to the executive officer. In the event that an executive officer is unable to perform duties as a result of a disability, we would be obligated to pay full base salary and other benefits until employment is terminated and for a period of twelve months from the date of such termination.

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2006 Director Compensation Table
Our non-employee directors received the following compensation for 2006:
                                 
    Fees Earned or            
    Paid in   Option   All Other    
    Cash   Awards   Compensation   Total
              Name   ($)   ($) (1)   ($)   ($)
                (a)   (b)   (d)   (g)   (h)
Dr. George M. Milne
  $ 25,000     $ 38,481 (2)   $ 0     $ 38,481  
William C. Mulligan
  $ 0     $ 0     $ 0     $ 0  
Timothy G. Biro
  $ 0     $ 0     $ 0     $ 0  
 
(1)   Amounts in column (d) do not necessarily reflect compensation actually received by Athersys’ directors. The amounts in column (d) reflect the dollar amount recognized for financial statement reporting purposes for the fiscal year ended December 31, 2006, in accordance with SFAS No. 123R, for option awards granted prior to 2006. Assumptions used in the calculation of these amounts are included in Notes A and J to Athersys’ audited consolidated financial statements for the fiscal year ended December 31, 2006, which are filed as an exhibit to this Current Report on Form 8-K. No grants of stock awards or stock options were made by Athersys to its directors in 2006. The non-employee directors had option awards outstanding as of December 31, 2006 for the following number of shares of Athersys common stock (which option awards were terminated upon the closing of the Merger): Dr. Milne, 100,000; Mr. Mulligan, 150,000; and Mr. Biro, 150,000.
 
(2)   The amount in column (d) for Dr. Milne relates to an option that Athersys granted Dr. Milne in January 2003 for 33,000 shares of Athersys common stock, at an exercise price of $10.00 per share, and an option that Athersys granted Dr. Milne in January 2003 for 67,000 shares of Athersys common stock at an exercise price of $3.25 per share. These options vested over a four-year period, and were terminated in connection with the Merger.
Athersys’ directors typically have not received cash for services they provide as directors; however, Dr. Milne has historically received $25,000 annually for his services as a board member. Also, Athersys’ non-employee directors have historically received grants of options to purchase shares of Athersys common stock. During 2006, none of Athersys’ other non-employee directors received any compensation for his service as a director.
Upon the closing of the Merger and the Offering, all existing members of the Athersys board of directors, other than Mr. Timothy Biro, along with some new individuals, were appointed to the Board. The new directors are Mr. Jordan Davis, Dr. Floyd Loop, and Mr. Michael Sheffery.
The Board approved a compensation program for the Board beginning in June 2007. The new compensation program includes an initial stock option grant to purchase 75,000 shares of Common Stock at fair market value on the date of grant, which options vest at a rate of 50% in the first year (on a quarterly basis), and 25% in each of the two years (on a quarterly basis) thereafter. Each of our non-employee directors received a grant of stock options to purchase 75,000 shares of Common Stock at $5.00 per share in June 2007.
Additionally, the non-employee directors will receive, at each anniversary of service, an option award to purchase 15,000 shares of Common Stock at fair market value on the date of grant. These additional awards will vest at a rate of 50% in the first year (on a quarterly basis), and 25% in each of the two years (on a quarterly basis) thereafter.
The non-employee directors also receive cash compensation of $30,000 per year, paid quarterly, plus

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daily fees of $1,500 for participating in person, or $500 for participating by telephone, at Board meetings. The chair of the audit committee receives additional cash compensation of $10,000 per year, paid quarterly, and the chair of the compensation committee receives additional cash compensation of $6,000 per year, paid quarterly. All audit committee and compensation committee members also receive additional daily fees of $1,000 for participating in person, or $500 for participating by telephone, at each audit committee or compensation committee meeting. Directors, however, cannot receive more than $2,500 in any one day for participation in Board and committee meetings. Directors will be reimbursed for reasonable out-of-pocket expenses incurred while attending Board and committee meetings.
Incentive Plans
Athersys has a cash incentive plan that generally will result in the payment of bonuses of one month of salary to its employees (two months of salary for officers) upon achievement of certain milestones, which included the sale of certain non-core assets related to Athersys’ asthma discovery program and the completion of this Offering. Additionally, Mr. Lehmann was eligible for a one-time bonus in the amount of $50,000 in connection with the completion of the Offering pursuant to the terms of his employment agreement. In connection with the sale of the non-core assets and the completion of the Offering, the named executive officers received the following cash bonuses: Dr. Van Bokkelen — $74,537; Dr. Harrington — $63,889; Mr. Lehmann — $113,889; Dr. Brunden — $51,111; Dr. Deans — $50,047; and Ms. Campbell — $41,528.
Equity Incentive Plans
Upon the close of the Merger, the majority of Athersys’ outstanding options were terminated. However, pursuant to the terms of the Merger Agreement, the Registrant has agreed to assume 5,052 options granted to former employees and consultants of Athersys. In June 2007, we adopted our equity plans, which authorize the Board, or a committee thereof, to provide equity-based compensation in the form of stock options, stock appreciation rights restricted stock, restricted stock units, performance shares and units, and other stock-based awards, which will be used to attract and retain qualified employees, directors and consultants. Equity awards will be granted from time to time under the guidance and approval of the Compensation Committee. Total awards under these plans are limited to 4,500,000 shares of Common Stock. Option awards to purchase 3,250,000 shares of Common Stock with an exercise price of $5.00 were granted to our employees, including our executive officers, and certain consultants in June 2007 upon the closing of the Merger. Theses option awards generally vest 40% on the date of grant, and 20% in each of the three years (on a quarterly basis) thereafter. Also in June 2007, option awards to purchase 375,000 shares of Common Stock with an exercise price of $5.00 were granted to our non-employee directors, which options vest 50% in the first year (on a quarterly basis), and 25% in each of the two years (on a quarterly basis) thereafter, based on participation at quarterly meetings on the Board of Directors.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
Directors Biro and Mulligan served as members of the compensation committee of the Athersys board of directors during 2006. No interlocking relationship within the meaning of the rules of the Securities and Exchange Commission exists regarding any of our executive officers and any executive officer of any other company, and no interlocking relationship has existed in the past. The current compensation committee of the Board of Directors of BTHC VI consists of Directors Davis, Mulligan and Sheffery.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS,
AND DIRECTOR INDEPENDENCE
BTHC VI Relationships, Indebtedness, and Related Party Transactions
In September 1999, Ballantrae Healthcare LLC (and affiliated limited liability companies including BTHC VI, LLC, collectively, “Ballantrae”), was organized for the purpose of operating nursing homes throughout the United States. On March 28, 2003, Ballantrae filed a petition for reorganization under Chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy Court, Northern District of Texas (the “Bankruptcy Court”). On November 29, 2004, the Bankruptcy Court approved the First Amended Joint Plan of Reorganization of Ballantrae and its creditors (the “Bankruptcy Plan”). On April 11, 2006, pursuant to the Bankruptcy Plan, BTHC VI, LLC was merged into BTHC VI, Inc., a Delaware corporation.
Halter Financial Group, L.P. (“HFG”) participated with Ballantrae and their creditors in structuring the Bankruptcy Plan. As part of the Bankruptcy Plan, HFG provided $76,500 to be used to pay professional fees associated with the Bankruptcy Plan confirmation process. HFG was granted an option to be repaid through the issuance of equity securities in 17 of the reorganized Ballantrae entities, including the Registrant. HFG exercised the option, and as provided in the Plan, 70% of the BTHC VI’s then-

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outstanding common stock, or 350,000 shares, were issued to HFG, in satisfaction of HFG’s administrative claims. The remaining 30% of the Registrant’s then-outstanding common stock, or 150,000 shares, were issued to 499 holders of administrative and tax claims and unsecured debt. The 500,000 shares (the “Plan Shares”) were issued pursuant to Section 1145 of the Bankruptcy Code. As further consideration for the issuance of the 350,000 Plan Shares to HFG, the Bankruptcy Plan required HFG to assist BTHC VI in identifying a potential merger or acquisition candidate. HFG was responsible for the payment of BTHC VI’s operating expenses and HFG was obligated to provide BTHC VI with consulting services at no cost to BTHC VI, including assisting BTHC VI with formulating the structure of any proposed merger or acquisition. Additionally, HFG was responsible for paying BTHC VI’s expenses incurred in consummating a merger or acquisition. On February 15, 2006, HFG transferred its 350,000 Plan Shares to Halter Financial Investments L.P., a Texas limited partnership controlled by Timothy P. Halter (“HFI”). Timothy P. Halter is the sole officer, director and shareholder of HFG and an officer and member of Halter Financial Investments GP, LLC, general partner of HFI. Mr. Halter recently served as BTHC VI’s President, Chief Executive Officer, Chief Financial Officer and sole director until his resignation in connection with Merger.
Other than the participation of HFG and Timothy P. Halter in the Plan of Reorganization and the issuance to HFG of 350,000 shares of Common Stock for satisfaction of certain administrative claims and for HFG’s agreement to provide BTHC VI with certain services as described, there were no relationships or transactions between BTHC VI and any of its directors, officers and principal stockholders.
Athersys Relationships, Indebtedness, and Related Person Transactions
The following is a description of transactions during 2004, 2005 and 2006 to which Athersys has been a party, in which the amount involved in the transaction exceeds $120,000 and in which any of Athersys’ directors, executive officers or holders (or immediate family members of holders) of more than 5% of its capital stock had or will have a direct or indirect material interest, other than compensation arrangements, which are described under “Executive Compensation.” Athersys believes the terms obtained or consideration that was paid or received, as applicable, in connection with the transactions described below were comparable to terms available or the amounts that would be paid or received, as applicable, in arm’s-length transactions.
In 2006 and 2007, Athersys issued $10,000,000 in aggregate principal amount of 5% unsecured convertible promissory notes to Angiotech, one of its collaborators. In 2006, Athersys also issued $2,500,000 in aggregate principal amount of 10% secured convertible promissory notes to bridge investors. Investors in the bridge financing consisted primarily of existing Athersys stockholders and Drs. Van Bokkelen and Harrington and Ms. Campbell. Upon the closing of the Offering on June 8, 2007, the convertible promissory notes were converted into shares of Common Stock. The securities offered in these financings to such persons were sold at their fair market value upon the same price, terms and conditions that were given to unaffiliated third parties.
In 2006, a subsidiary of Athersys forgave a 2002 loan made to Dr. Van Bokkelen in aggregate principal and accrued interest amount of approximately $122,000. In connection with loan forgiveness, Athersys paid Dr. Van Bokkelen approximately $24,000 as a partial gross up for his tax obligations in connection with such forgiveness.
Director Independence
After closing the Merger, our Board of Directors will review at least annually the independence of each director. During these reviews, our Board of Directors will consider transactions and relationships between each director (and his or her immediate family and affiliates) and our company and its management to determine whether any such transactions or relationships are inconsistent with a determination that the director was independent. Our Board of Directors will conduct its annual review of director independence and to determine if any transactions or relationships exist that would disqualify any of the individuals who then served as a director under the rules of the NASDAQ Stock Market, or require disclosure under SEC rules. Currently, we have two members of management who also serve on the

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Board of Directors, Dr. Van Bokkelen, who is also our Chairman and Chief Executive Officer, and Dr. Harrington, who is our Chief Scientific Officer and Executive Vice President. Neither Dr. Van Bokkelen nor Dr. Harrington would be considered independent under the independence rules of the NASDAQ Stock Market.
One of the requirements that the Company will have to meet in order for the Common Stock to be listed on the NASDAQ Capital Market is that a majority of the members of the Company’s Board of Directors will have to be independent. Additionally, the Company will also be required to have an audit committee comprised of at least three members, all of whom must be independent.
Related Person Transaction Policy
We give careful attention to related person transactions because they may present the potential for conflicts of interest. We refer to “related person transactions” as those transactions, arrangements, or relationships in which:
    we were, are or are to be a participant;
 
    the amount involved exceeds $120,000; and
 
    any of our directors, director nominees, executive officers or greater-than five percent shareholders (or any of their immediate family members) had or will have a direct or indirect material interest.
To identify related person transactions in advance, we rely on information supplied by our executive officers, directors and certain significant stockholders. Although we currently do not have a comprehensive written policy for the review, approval or ratification of related person transactions, our Board of Directors reviews all related person transactions identified by us, and memorializes its decisions in the written minutes of Board meetings. The Board of Directors approves or ratifies only those related person transactions that are determined by the Board of Directors to be, under all of the circumstances, in the best interest of our company and its shareholders.
LEGAL PROCEEDINGS
From time to time, the Company may become involved in various investigations, claims and legal proceedings that arise in the ordinary course of the Company’s business. These matters may relate to intellectual property, employment, tax, regulation, contract or other matters. The resolution of these matters as they arise will be subject to various uncertainties. As of the date of this current report, Athersys is not a party to any material pending legal proceeding.
MARKET PRICE OF AND DIVIDENDS ON THE REGISTRANT’S COMMON EQUITY
AND RELATED STOCKHOLDER MATTERS
Trading Market and Outstanding Equity
Prior to the Merger, BTHC VI was a shell company with no operations and no or nominal assets. BTHC VI’s Common Stock is eligible for trading on the OTC Bulletin Board, although no trading took place prior to the Merger because none of BTHC VI’s outstanding shares were able to be transferred under the terms of BTHC VI’s bankruptcy plan until the Merger was consummated. Since the completion of the Merger, there has been no established public trading market for our Common Stock. As soon as reasonably practicable, once we satisfy all necessary listing requirements, we intend to apply to list the Common Stock for trading on the NASDAQ Stock Market.
As a result of both the Merger and the Offering, we have 18,927,990 shares of Common Stock issued and outstanding. Additionally, 5,125,496 shares of Common Stock are subject to outstanding warrants to purchase our Common Stock. Of these warrant shares, 4,976,470 are subject to five-year warrants to

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purchase shares of Common Stock at an exercise price of $6.00 per share, and 149,026 are subject to seven-year warrants with a cash or cashless exercise price of $5.00 per share. The five-year warrants were issued as part of the Offering, to our placement agents, to holders of Athersys’ 10% secured convertible promissory notes, and to our lead investor, Radius. The seven-year warrants were issued to the lenders under our Senior Loan agreement.
Holders
As a result of both the Merger and the Offering, the number of holders of record at June 8, 2007 was approximately 938.
Dividends
All of our assets consist of the stock of Athersys. We would have to rely upon dividends and other payments from Athersys to generate the funds necessary to make dividend payments, if any, on our Common Stock. Athersys, however, is legally distinct from us and has no obligation to pay amounts to us. The ability of Athersys to make dividend and other payments to us is subject to, among other things, the availability of funds, the terms of our indebtedness and applicable state laws. 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.
Registration Rights
We intend to file a “resale” registration statement with the SEC covering all shares of Common Stock issued in the Offering, including shares of Common Stock into which any warrants are exercisable, no later than 45 days after June 8, 2007. We will use our best efforts to have such “resale” registration statement declared effective by the SEC as soon as possible and, in any event, within 90 days of the filing (or within five days after receipt of a no review letter from the SEC), and to maintain its effectiveness until such time as all securities registered under the registration statement have been sold or are otherwise able to be sold under Rule 144 of the Securities Act without regard to volume limitations, whichever is earlier.
Prior to the Merger, Athersys entered into a registration rights agreement that provided demand and “piggyback’’ registration rights to some of its stockholders, which rights are described below. As a condition to the closing of the Offering, the holders: waived their demand rights until 180 days after the effective date of the “resale” registration statement; and waived their “piggyback” rights in connection with the filing of the “resale” registration statement.
“Piggyback’’ Rights
Former holders of shares of Athersys capital stock that now own 3,256,845 shares of Common Stock are entitled to “piggyback’’ registration rights. If we propose to register any of our securities, we will be obligated to provide to these holders notice of the registration and include, at our expense, their shares of Common Stock in the registration, subject to certain limitations.
Demand Rights
Long-Form
Certain former holders of shares of Athersys capital stock that hold shares of Common Stock have the right to require us to file a long-form registration statement under the Securities Act with respect to shares of Common Stock owned by them. We will be required to use our reasonable best efforts to effect the requested registration.

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Short-Form
Certain former holders of shares of Athersys capital stock that hold shares of Common Stock have the right to require us to file a short-form registration statement under the Securities Act with respect to shares of Common Stock owned by them, and we will be required to use our reasonable best efforts to effect the requested registration; provided, that the reasonably anticipated price to the public for those shares requested to be registered would have equal or exceed $500,000.
All of these registration rights are subject to various conditions and limitations, among them our right to limit the number of shares included in a registration and our right to not effect a requested registration (1) within 180 days after the effective date of an initial public offering, (2) within 90 days after the effective date of a previous registration on a Form S-1 or (3) within 90 days after the effective date of a registration that included all shares requested by holders of registrable shares. We will bear all of the expenses incurred in connection with all exercises of these registration rights excluding discounts and commissions.
Shares Eligible for Future Sale
Of the 18,927,990 shares of Common Stock that we had issued and outstanding upon completion of the Merger and the Offering, 299,622 shares of Common Stock will be freely tradeable without further restriction or further registration under the Securities Act. The remaining 18,628,368 shares are deemed to be “restricted securities” as that term is defined under Rule 144 promulgated under the Securities Act (“Rule 144”). The “restricted” shares will not be registered under the Securities Act and may be transferred only pursuant to a registration under the Securities Act or pursuant to an available exemption from registration, such as Rule 144 under the Securities Act. Under Rule 144, restricted securities may be sold into the public market, subject to holding period, volume, manner of sale, public information, filing and other limitations set forth under Rule 144. In general, under Rule 144 as currently in effect, a person (or persons whose shares are aggregated) who has beneficially owned restricted shares for at least one year, including any person who may be deemed to be an “affiliate” of ours ( i.e. , directors, officers and 10% stockholders), as defined under the Securities Act, is entitled to sell, within any three-month period, an amount of shares that together with all other sales of restricted securities of the same class (including, for “affiliates,” sales of other non-restricted securities of the same class) does not exceed the greater of:
    the average weekly trading volume of the Common Stock, as reported through the automated quotation system of a registered securities association, during the four calendar weeks preceding such sale; or
 
    1% of the shares then outstanding.
In order for a stockholder to rely on Rule 144, we must have available adequate current public information with respect to its business and financial status. A person who is not deemed to be an affiliate and has not been an affiliate for the most recent three months, and who has held restricted shares for at least two years would be entitled to sell such shares under Rule 144(k) without regard to the various resale limitations of Rule 144.
Under Rule 144, the holding periods will commence as of the Effective Time for former Athersys stockholders who received shares of Common Stock in the Merger. Sales under Rule 144 are also subject to manner of sale provisions and notice requirements and to the availability of current public information about the Company.
We intend to file a “resale” registration statement with the SEC covering all shares of Common Stock issued in the Offering, including shares of Common Stock into which any warrants are exercisable, no later than 45 days after June 8, 2007. We will use our best efforts to have such “resale” registration

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statement declared effective by the SEC as soon as possible and, in any event, within 90 days of the filing (or within five days after receipt of a no review letter from the SEC), and to maintain its effectiveness until such time as all securities registered under the registration statement have been sold or are otherwise able to be sold under Rule 144 of the Securities Act without regard to volume limitations, whichever is earlier.
RECENT SALES OF UNREGISTERED SECURITIES
For more information about unregistered sales of the Company’s securities, see Item 1.01 and elsewhere in this Item 2.01 of this Current Report.
DESCRIPTION OF REGISTRANT’S CAPITAL STOCK
Common Stock
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 therefor, 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
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 the Company 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.
Warrants
As of the closing of the Offering, we issued warrants to investors to acquire 3,750,000 shares of Common Stock, warrants to the placement agents to acquire 1,093,525 shares of Common Stock, warrants to the former holders of Athersys’ 10% secured convertible promissory notes to acquire 132,945 shares of Common Stock, and warrants to our senior secured lenders to acquire 149,026 shares of Common Stock, as further described below, for an aggregate of 5,125,496 shares of Common Stock underlying such warrants.
Warrants
The warrants issued to investors have a cash exercise price of $6.00 per share and a term of five years from the closing date of the Offering. Additionally, if at any time after the one-year anniversary of the issuance of the Warrants there is no effective “resale” registration statement for the Common Stock issuable upon exercise of the Warrants, then the Warrants provide for cashless exercise. The shares of Common Stock issuable upon exercise of the Warrants will be afforded the same registration rights as all other shares of Common Stock sold in the Offering.
Placement Agent Warrants
The warrants issued to the placement agents have a cash or cashless exercise price of $6.00 per share and a term of five years from the closing date of the Offering. The shares of Common Stock issuable upon

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exercise of the placement agents’ warrants will be afforded the same registration rights as all other shares of Common Stock sold in the Offering.
Lead Investor Warrants
The warrants issued to the lead investor, Radius, have a cash or cashless exercise price of $6.00 per share and a term of five years from the closing date of the Offering. The shares of Common Stock issuable upon exercise of the Radius warrants will be afforded the same registration rights as all other shares of Common Stock sold in the Offering.
10% Secured Convertible Promissory Note Warrants
The warrants issued to the former holders of Athersys’ 10% secured convertible promissory notes have a cash exercise price of $6.00 per share and a term of five years from the closing date of the Offering. Additionally, if at any time after the one-year anniversary of the issuance of the noteholder warrants there is no effective “resale” registration statement for the Common Stock issuable upon exercise of the noteholder warrants, then the noteholder warrants will provide for cashless exercise. The shares of Common Stock issuable upon exercise of the noteholder warrants will be afforded the same registration rights as all other shares of Common Stock sold in the Offering.
Lender Warrants
The warrants issued to the lenders under Athersys’ Senior Loan Agreement have a cash or cashless exercise price of $5.00 per share and a term of seven years from the closing date of the Offering.
Delaware Anti-Takeover Law
We are subject to Section 203 of the General Corporation Law of the State of Delaware (“DGCL”). Section 203 generally prohibits a public Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a period of three years after the date of the transaction in which the person became an interested stockholder, unless:
    prior to the date of the transaction, the board of directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder;
 
    the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares outstanding (1) shares owned by persons who are directors and also officers and (2) shares owned by employee stock plans in which employee participants do not have the right to determine whether shares held subject to the plan will be tendered in a tender or exchange offer; or
 
    on or subsequent to the date of the transaction, the business combination is approved by the board and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66-2/3% of the outstanding voting stock that is not owned by the interested stockholder.
Section 203 defines a business combination to include:
    any merger or consolidation involving the corporation and the interested stockholder;
 
    any sale, transfer, pledge or other disposition involving the interested stockholder of 10% or more of the assets of the corporation;
 
    subject to exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder; and

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    the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation.
In general, Section 203 defines an interested stockholder as any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation and any entity or person affiliated with or controlling or controlled by the entity or person.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Limitation of Liability and Indemnification Matters
Delaware law provides that directors of a company will not be personally liable for monetary damages for breach of their fiduciary duty as directors, except for liabilities:
    for any breach of their duty of loyalty to the company or its stockholders;
 
    for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
 
    for unlawful payment of dividend or unlawful stock repurchase or redemption, as provided under Section 174 of the DGCL; or
 
    for any transaction from which the director derived an improper personal benefit.
Our current amended certificate of incorporation requires us to indemnify, to the fullest extent permitted by the DGCL, any and all persons we have the power to indemnify under the DGCL from and against any and all expenses, liabilities or other matters covered by the DGCL. Additionally, our current amended certificate of incorporation requires us to indemnify each of our directors and officers in each and every situation where the DGCL permits or empowers us (but does not obligate us) to provide such indemnification, subject to the provisions of our bylaws. Our bylaws require us to indemnify our directors to the fullest extent permitted by the DGCL, and permit us, to the extent authorized by the Board of Directors, to indemnify our officers and any other person we have the power to indemnify against liability, reasonable expense or other matters.
Under our current amended certificate of incorporation, indemnification may be provided to directors and officers acting in their official capacity, as well as in other capacities. Indemnification will continue for persons who have ceased to be directors, officers, employees or agents, and will inure to the benefit of their heirs, executors and administrators. Additionally, under our current amended certificate of incorporation, except under certain circumstances, our directors are not personally liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director.
Insofar as the indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons pursuant to the foregoing or otherwise, we have been advised that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.

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CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
Previous Independent Accountants.
On June 11, 2007, BTHC VI dismissed S.W. Hatfield, CPA as its independent accountant. The reports of S.W. Hatfield, CPA on the financial statements of BTHC VI for each of the past two fiscal years contained no adverse opinion or a disclaimer of opinion and were not qualified or modified as to uncertainty, audit scope or accounting principles.
The decision to change independent accountants was approved by the Audit Committee of BTHC VI’s Board of Directors on June 12, 2007.
During BTHC VI’s two most recent fiscal years and through the date of this Current Report on Form 8-K, BTHC VI has had no disagreements with S.W. Hatfield, CPA on any matter of accounting principles or practices, financial statement disclosure, or auditing scope or procedure, which disagreements, if not resolved to the satisfaction of S.W. Hatfield, CPA, would have caused it to make reference to the subject matter of such disagreements in its report on the financial statements of BTHC VI for such periods.
During BTHC VI’s two most recent fiscal years and through the date of this Current Report on Form 8-K, there were no reportable events as defined under Item 304(a)(1)(v) of Regulation S-K adopted by the SEC.
BTHC VI has provided S.W. Hatfield, CPA with a copy of this disclosure before its filing with the SEC. BTHC VI has requested the S.W. Hatfield, CPA furnish it with a letter addressed to the SEC stating whether it agrees with the above statements. A copy of such letter, dated June 11, 2007, is filed as Exhibit 16.1 to this Current Report on Form 8-K.
New Independent Accountants.
The Audit Committee of BTHC VI’s Board of Directors appointed Ernst & Young, LLP (“Ernst & Young”) as its new independent registered public accounting firm as of June 12, 2007. During the two most recent fiscal years and through the date of Ernst & Young’s engagement by BTHC VI, BTHC VI did not consult Ernst & Young regarding either (1) the application of accounting principles to a specified transaction, either completed or proposed, or the type of audit opinion that might be rendered on BTHC VI’s financial statements, or (2) any matter that was either the subject of a disagreement (as defined in Regulation S-K Item 304(a)(1)(iv) and the related instructions to Item 304) or a reportable event (as defined in Regulation S-K Item 304(a)(1)(v)). Ernst & Young served as Athersys’ independent registered public accounting firm before the Merger.
FINANCIAL STATEMENTS AND EXHIBITS
See Item 9.01 of this Current Report.
Item 3.02. Unregistered Sale of Equity Securities.
See Item 1.01 and Item 2.01 of this Current Report, which are incorporated herein by reference.
Item 3.03. Material Modification to Rights of Security Holders.
See Item 1.01 and Item 2.01 of this Current Report, which are incorporated herein by reference.
Item 4.01. Changes in Registrant’s Certifying Accountant.
See Item 2.01 of this Current Report, which is incorporated herein by reference.
Item 5.01. Changes in Control of Registrant.
See Item 1.01 and Item 2.01 of this Current Report, which are incorporated herein by reference.

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Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
See Item 2.01 of this Current Report, which is incorporated herein by reference.
Item 5.03. Amendments to Articles of Incorporation of Bylaws; Change in Fiscal Year.
On June 8, 2007, the Board of Directors of BTHC VI adopted, effective as of June 8, 2007, amended Bylaws for BTHC VI. Apart from non-substantive language and other technical edits, the Bylaws of BTHC VI (which were last adopted as of April 10, 2006) were amended by BTHC VI to:
  (i)   mandate the election of a Chief Executive Officer of BTHC VI;
 
  (ii)   establish the duties and powers of the Chief Executive Officer, which consist of: (A) general charge and supervision of BTHC VI’s business; (B) the exercise and performance of all duties incident to the office of Chief Executive Officer; (C) the direct supervision of BTHC VI’s other officers; (D) the exercise and performance of all powers and duties assigned to the Chief Executive Officer by the board of directors of BTHC VI; (E) the exercise of the powers and performance of the duties of the President of BTHC VI during the President’s absence or disability; and (F) supervise the Secretary of BTHC VI;
 
  (iii)   remove the authority of the Chairman of the board of directors of BTHC VI to: (A) sign all certificates, contracts and other instruments of BTHC VI; and (B) exercise the powers and perform the duties of the President of BTHC VI during the President’s absence or disability;
 
  (iv)   permit the Chief Executive Officer of BTHC VI to, among other things: (A) call, under certain circumstances, stockholders’ special meetings; (B) direct the delivery to stockholders of notice of stockholder meetings; (C) call, under certain circumstances, special meetings of the board of directors of BTHC VI; and (D) delegate powers and duties to the President, Secretary, Treasurer, Vice Presidents, Assistant Secretaries and Assistant Treasurers of BTHC VI from time to time; (E) sign stock certificates of BTHC VI; and (F) accept written notices of resignation from any director, officer or agent of BTHC VI;
 
  (v)   eliminate reference to BTHC VI’s certificate of incorporation to determine the size of the first board of directors of BTHC VI;
 
  (vi)   permit committees of the board of directors of BTHC VI to consist of a minimum of one (rather than two) directors, and eliminating the requirement that committees of the board of directors of BTHC VI consist of at least a majority of employee directors; and
 
  (vii)   remove the authority of the President of BTHC VI to: (A) act as the Chief Executive Officer of BTHC VI; and (B) supervise and control BTHC VI’s business and affairs.
The foregoing is a brief description of the material amendments to the Bylaws of BTHC VI and is qualified in its entirety by reference to the full text of the Revised Bylaws. This description should be read in conjunction with the amended Bylaws, a copy of which is filed herewith as Exhibit 3.2 and is incorporated herein by reference.
Item 5.06. Change in Shell Company Status.
As a result of the consummation of the Merger described in Items 1.01 and 2.01 of this Current Report, we believe that the Company is no longer a shell corporation, as that term is defined in Rule 405 of the Securities Act and Rule 12b-2 of the Exchange Act.

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Item 9.01. Financial Statements and Exhibits.
(a) Financial Statements of Businesses Acquired.
In accordance with Item 9.01(a), Athersys’ audited financial statements for the fiscal years ended December 31, 2006, 2005 and 2004 and unaudited financial statements for the three months ended March 31, 2007 and 2006 are filed with this Current Report as Exhibit 99.1 and Exhibit 99.2, respectively.
(b) Pro Forma Financial Information.
In accordance with Item 9.01(b), filed herewith as Exhibit 99.3 are the pro forma consolidated financial statements of Athersys and BTHC VI for the requisite periods.
(d) Exhibits
     
Exhibit No.   Description
 
   
2.1
  Agreement and Plan of Merger, dated as of May 24, 2007, by and among Athersys, Inc., BTHC VI, Inc. and B-VI Acquisition Corp. (incorporated herein by reference to Exhibit 10.1 to Registrant’s Current Report on Form 8-K (Commission No. 000-52108) filed with the SEC on May 24, 2007)
 
   
2.2
  First Amendment to Agreement and Plan of Merger, dated as of June 8, 2007, by and among Athersys, Inc., BTHC VI, Inc. and B-VI Acquisition Corp.
 
   
3.1
  Certificate of Incorporation of BTHC VI, Inc., last amended June 1, 2007
 
   
3.2
  Bylaws of BTHC VI, Inc., dated as of June 8, 2007
 
   
4.1
  Form of Investor Warrant
 
   
4.2
  Form of Lead Investor Warrant
 
   
4.3
  Form of Placement Agent Warrant
 
   
4.4
  Form of Lender Warrant
 
   
10.1 *
  Research Collaboration and License Agreement, dated as of December 8, 2000, by and between Athersys, Inc. and Bristol-Myers Squibb Company
 
   
10.2 *
  Cell Line Collaboration and License Agreement, dated as of July 1, 2002, by and between Athersys, Inc. and Bristol-Myers Squibb Company
 
   
10.3 *
  Extended Collaboration and License Agreement, dated as of January 1, 2006, by and between Athersys, Inc. and Bristol-Myers Squibb Company
 
   
10.4
  License Agreement, effective as of May 5, 2006, by and between Athersys, Inc. and Angiotech Pharmaceuticals, Inc.
 
   
10.5
  Sublicense Agreement, effective as of May 5, 2006, by and between Athersys, Inc. and Angiotech Pharmaceuticals, Inc.
 
   
10.6
  Amended and Restated Registration Rights Agreement, dated as of April 28, 2000, by and among Athersys, Inc. and the stockholders of Athersys, Inc. parties thereto

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Exhibit No.   Description
 
   
10.7
  Amendment No. 1 to Athersys, Inc. Amended and Restated Registration Rights Agreement, dated as of January 29, 2002, by and among Athersys, Inc., the New Stockholders, the Investors, Biotech and the Stockholders (each as defined in the Amended and Restated Registration Rights Agreement, dated as April 28, 2000, by and among Athersys, Inc. and the stockholders of Athersys, Inc. parties thereto)
 
   
10.8
  Amendment No. 2 to Athersys, Inc. Amended and Restated Registration Rights Agreement, dated as of November 19, 2002, by and among Athersys, Inc., the New Stockholders, the Investors, Biotech and the Stockholders (each as defined in the Amended and Restated Registration Rights Agreement, dated as April 28, 2000, as amended, by and among Athersys, Inc. and the stockholders of Athersys, Inc. parties thereto)
 
   
10.9
  Amendment No. 3 to Amended and Restated Registration Rights Agreement, dated as of May 15, 2007, by and among Athersys, Inc. and the Existing Stockholders (as defined therein)
 
   
10.10
  BTHC VI, Inc. Long-Term Incentive Plan
 
   
10.11
  BTHC VI, Inc. Equity Incentive Compensation Plan
 
   
10.12
  Loan and Security Agreement, and Supplement, dated as of November 2, 2004, by and among Athersys, Inc., Advanced Biotherapeutics, Inc., Venture Lending & Leasing IV, Inc., and Costella Kirsch IV, L.P.
 
   
10.13
  Amendment to Loan and Security Agreement, dated as of September 29, 2006, by and among Athersys, Inc., Advanced Biotherapeutics, Inc., Venture Lending & Leasing IV, Inc., and Costella Kirsch IV, L.P.
 
   
10.14
  Amended and Restated Employment Agreement, dated as of December 1, 1998 but effective as of April 1, 1998, by and between Athersys, Inc. and Dr. Gil Van Bokkelen
 
   
10.15
  Amendment No. 1 to Amended and Restated Employment Agreement, dated as of May 31, 2007, by and between Advanced Biotherapeutics, Inc. and Gil Van Bokkelen
 
   
10.16
  Non-Competition and Confidentiality Agreement, dated as of December 1, 1998, by and between Athersys, Inc. and Dr. Gil Van Bokkelen
 
   
10.17
  Amended and Restated Employment Agreement, dated as of December 1, 1998 but effective as of April 1, 1998, by and between Athersys, Inc. and Dr. John J. Harrington
 
   
10.18
  Amendment No. 1 to Amended and Restated Employment Agreement, dated as of May 31, 2007, by and between Advanced Biotherapeutics, Inc. and John Harrington
 
   
10.19
  Non-Competition and Confidentiality Agreement, dated as of December 1, 1998, by and between Athersys, Inc. and Dr. John J. Harrington
 
   
10.20
  Employment Agreement, dated as of May 22, 1998, by and between Athersys, Inc. and Laura K. Campbell
 
   
10.21
  Amendment No. 1 to Employment Agreement, dated as of May 31, 2007, by and between Advanced Biotherapeutics, Inc. and Laura Campbell
 
   
10.22
  Employment Agreement, dated as of September 25, 2000, by and between Advanced Biotherapeutics, Inc. and Kurt Brunden

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Table of Contents

     
Exhibit No.   Description
 
   
10.23
  Amendment No. 1 to Employment Agreement, dated as of May 31, 2007, by and between Advanced Biotherapeutics, Inc. and Kurt Brunden
 
   
10.24
  Non-Competition and Confidentiality Agreement, dated as of September 25, 2000, by and among Athersys, Inc., Advanced Biotherapeutics, Inc. and Kurt Brunden
 
   
10.25
  Employment Agreement, dated as of October 3, 2003, by and between Advanced Biotherapeutics, Inc. and Robert Deans, Ph.D.
 
   
10.26
  Amendment No. 1 to Employment Agreement, dated as of May 31, 2007, by and between Advanced Biotherapeutics, Inc. and Robert Deans
 
   
10.27
  Non-Competition and Confidentiality Agreement, dated as of October 3, 2003, by and among Athersys, Inc., Advanced Biotherapeutics, Inc. and Robert Deans
 
   
10.28
  Employment Agreement, dated as of January 1, 2004, by and between Advanced Biotherapeutics, Inc. and William Lehmann
 
   
10.29
  Amendment No. 1 to Employment Agreement, dated as of May 31, 2007, by and between Advanced Biotherapeutics, Inc. and William Lehmann
 
   
10.30
  Non-Competition and Confidentiality Agreement, dated as of September 10, 2001, by and among Athersys, Inc., Advanced Biotherapeutics, Inc. and William Lehmann
 
   
10.31
  Form Incentive Agreement by and between Advanced Biotherapeutics, Inc. and named executive officers, and acknowledged by Athersys, Inc. and ReGenesys, LLC
 
   
10.32
  Form Amendment No. 1 to Incentive Agreement by and between Advanced Biotherapeutics, Inc. and named executive officers, and acknowledged by Athersys, Inc. and ReGenesys, LLC
 
   
10.33
  Securities Purchase Agreement, dated as of June 8, 2007, by and among Athersys, BTHC VI, Inc. and Investors (as defined therein)
 
   
10.34 *
  Exclusive License Agreement, dated as of May 17, 2002, by and between Regents of the University of Minnesota and MCL LLC, assumed by ReGenesys, LLC through operation of merger on November 4, 2003
 
   
10.35 *
  Strategic Alliance Agreement, by and between Athersys, Inc. and Angiotech Pharmaceuticals, Inc., dated as of May 5, 2006
 
   
10.36
  Amendment No. 1 to Cell Line Collaboration and License Agreement, dated as of January 1, 2006, by and between Athersys, Inc. and Bristol-Myers Squibb Company
 
   
16.1
  Letter from S. W. Hatfield, CPA, dated June 11, 2007
 
   
21.1
  List of Subsidiaries
 
   
99.1
  Consolidated Audited Financial Statements of Athersys, Inc.
 
   
99.2
  Unaudited Financial Statements of Athersys, Inc.
 
   
99.3
  Pro Forma Consolidated Financial Statements of Athersys, Inc. and BTHC VI
 
   
 
 
*   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.

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SIGNATURES
     Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: June 14, 2007
         
  BTHC VI, INC.
 
 
  By:   /s/ Dr. Gil Van Bokkelen    
    Name:   Dr. Gil Van Bokkelen   
    Title:   Chief Executive Officer   

 


Table of Contents

         
EXHIBIT INDEX
     
Exhibit No.   Description
2.1
  Agreement and Plan of Merger, dated as of May 24, 2007, by and among Athersys, Inc., BTHC VI, Inc. and B-VI Acquisition Corp. (incorporated herein by reference to Exhibit 10.1 to Registrant’s Current Report on Form 8-K (Commission No. 000-52108) filed with the SEC on May 24, 2007)
 
   
2.2
  First Amendment to Agreement and Plan of Merger, dated as of June 8, 2007, by and among Athersys, Inc., BTHC VI, Inc. and B-VI Acquisition Corp.
 
   
3.1
  Certificate of Incorporation of BTHC VI, Inc., last amended June 1, 2007
 
   
3.2
  Bylaws of BTHC VI, Inc., dated as of June 8, 2007
 
   
4.1
  Form of Investor Warrant
 
   
4.2
  Form of Lead Investor Warrant
 
   
4.3
  Form of Placement Agent Warrant
 
   
4.4
  Form of Lender Warrant
 
   
10.1 *
  Research Collaboration and License Agreement, dated as of December 8, 2000, by and between Athersys, Inc. and Bristol-Myers Squibb Company
 
   
10.2 *
  Cell Line Collaboration and License Agreement, dated as of July 1, 2002, by and between Athersys, Inc. and Bristol-Myers Squibb Company
 
   
10.3 *
  Extended Collaboration and License Agreement, dated as of January 1, 2006, by and between Athersys, Inc. and Bristol-Myers Squibb Company
 
   
10.4
  License Agreement, effective as of May 5, 2006, by and between Athersys, Inc. and Angiotech Pharmaceuticals, Inc.
 
   
10.5
  Sublicense Agreement, effective as of May 5, 2006, by and between Athersys, Inc. and Angiotech Pharmaceuticals, Inc.
 
   
10.6
  Amended and Restated Registration Rights Agreement, dated as of April 28, 2000, by and among Athersys, Inc. and the stockholders of Athersys, Inc. parties thereto
 
   
10.7
  Amendment No. 1 to Athersys, Inc. Amended and Restated Registration Rights Agreement, dated as of January 29, 2002, by and among Athersys, Inc., the New Stockholders, the Investors, Biotech and the Stockholders (each as defined in the Amended and Restated Registration Rights Agreement, dated as April 28, 2000, by and among Athersys, Inc. and the stockholders of Athersys, Inc. parties thereto)
 
   
10.8
  Amendment No. 2 to Athersys, Inc. Amended and Restated Registration Rights Agreement, dated as of November 19, 2002, by and among Athersys, Inc., the New Stockholders, the Investors, Biotech and the Stockholders (each as defined in the Amended and Restated Registration Rights Agreement, dated as April 28, 2000, as amended, by and among Athersys, Inc. and the stockholders of Athersys, Inc. parties thereto)

 


Table of Contents

EXHIBIT INDEX (CONTINUED)
     
Exhibit No.   Description
10.9
  Amendment No. 3 to Amended and Restated Registration Rights Agreement, dated as of May 15, 2007, by and among Athersys, Inc. and the Existing Stockholders (as defined therein)
 
   
10.10
  BTHC VI, Inc. Long-Term Incentive Plan
 
   
10.11
  BTHC VI, Inc. Equity Incentive Compensation Plan
 
   
10.12
  Loan and Security Agreement, and Supplement, dated as of November 2, 2004, by and among Athersys, Inc., Advanced Biotherapeutics, Inc., Venture Lending & Leasing IV, Inc., and Costella Kirsch IV, L.P.
 
   
10.13
  Amendment to Loan and Security Agreement, dated as of September 29, 2006, by and among Athersys, Inc., Advanced Biotherapeutics, Inc., Venture Lending & Leasing IV, Inc., and Costella Kirsch IV, L.P.
 
   
10.14
  Amended and Restated Employment Agreement, dated as of December 1, 1998 but effective as of April 1, 1998, by and between Athersys, Inc. and Dr. Gil Van Bokkelen
 
   
10.15
  Amendment No. 1 to Amended and Restated Employment Agreement, dated as of May 31, 2007, by and between Advanced Biotherapeutics, Inc. and Gil Van Bokkelen
 
   
10.16
  Non-Competition and Confidentiality Agreement, dated as of December 1, 1998, by and between Athersys, Inc. and Dr. Gil Van Bokkelen
 
   
10.17
  Amended and Restated Employment Agreement, dated as of December 1, 1998 but effective as of April 1, 1998, by and between Athersys, Inc. and Dr. John J. Harrington
 
   
10.18
  Amendment No. 1 to Amended and Restated Employment Agreement, dated as of May 31, 2007, by and between Advanced Biotherapeutics, Inc. and John Harrington
 
   
10.19
  Non-Competition and Confidentiality Agreement, dated as of December 1, 1998, by and between Athersys, Inc. and Dr. John J. Harrington
 
   
10.20
  Employment Agreement, dated as of May 22, 1998, by and between Athersys, Inc. and Laura K. Campbell
 
   
10.21
  Amendment No. 1 to Employment Agreement, dated as of May 31, 2007, by and between Advanced Biotherapeutics, Inc. and Laura Campbell
 
   
10.22
  Employment Agreement, dated as of September 25, 2000, by and between Advanced Biotherapeutics, Inc. and Kurt Brunden
 
   
10.23
  Amendment No. 1 to Employment Agreement, dated as of May 31, 2007, by and between Advanced Biotherapeutics, Inc. and Kurt Brunden
 
   
10.24
  Non-Competition and Confidentiality Agreement, dated as of September 25, 2000, by and among Athersys, Inc., Advanced Biotherapeutics, Inc. and Kurt Brunden
 
   
10.25
  Employment Agreement, dated as of October 3, 2003, by and between Advanced Biotherapeutics, Inc. and Robert Deans, Ph.D.
 
   
10.26
  Amendment No. 1 to Employment Agreement, dated as of May 31, 2007, by and between Advanced Biotherapeutics, Inc. and Robert Deans

 


Table of Contents

EXHIBIT INDEX (CONTINUED)
     
Exhibit No.   Description
10.27
  Non-Competition and Confidentiality Agreement, dated as of October 3, 2003, by and among Athersys, Inc., Advanced Biotherapeutics, Inc. and Robert Deans
 
   
10.28
  Employment Agreement, dated as of January 1, 2004, by and between Advanced Biotherapeutics, Inc. and William Lehmann
 
   
10.29
  Amendment No. 1 to Employment Agreement, dated as of May 31, 2007, by and between Advanced Biotherapeutics, Inc. and William Lehmann
 
   
10.30
  Non-Competition and Confidentiality Agreement, dated as of September 10, 2001, by and among Athersys, Inc., Advanced Biotherapeutics, Inc. and William Lehmann
 
   
10.31
  Form Incentive Agreement by and between Advanced Biotherapeutics, Inc. and named executive officers, and acknowledged by Athersys, Inc. and ReGenesys, LLC
 
   
10.32
  Form Amendment No. 1 to Incentive Agreement by and between Advanced Biotherapeutics, Inc. and named executive officers, and acknowledged by Athersys, Inc. and ReGenesys, LLC
 
   
10.33
  Securities Purchase Agreement, dated as of June 8, 2007, by and among Athersys, BTHC VI, Inc. and Investors (as defined therein)
 
   
10.34 *
  Exclusive License Agreement, dated as of May 17, 2002, by and between Regents of the University of Minnesota and MCL LLC, assumed by ReGenesys, LLC through operation of merger on November 4, 2003
 
   
10.35 *
  Strategic Alliance Agreement, by and between Athersys, Inc. and Angiotech Pharmaceuticals, Inc., dated as of May 5, 2006
 
   
10.36
  Amendment No. 1 to Cell Line Collaboration and License Agreement, dated as of January 1, 2006, by and between Athersys, Inc. and Bristol-Myers Squibb Company
 
   
16.1
  Letter from S. W. Hatfield, CPA, dated June 11, 2007
 
   
21.1
  List of Subsidiaries
 
   
99.1
  Consolidated Audited Financial Statements of Athersys, Inc.
 
   
99.2
  Unaudited Financial Statements of Athersys, Inc.
 
   
99.3
  Pro Forma Consolidated Financial Statements of Athersys, Inc. and BTHC VI
 
*   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.

 

 

EXHIBIT 2.2
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
     This FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this “ First Amendment ”), dated as of June 8, 2007, is made and entered into by and among BTHC VI, INC., a Delaware corporation (“ Parent ”), B-VI ACQUISITION CORP., a Delaware corporation and a direct wholly owned subsidiary of Parent (“ Sub ”), and ATHERSYS, INC., a Delaware corporation (the “ Company ”), and is made with reference to that certain AGREEMENT AND PLAN OF MERGER, dated as of May 24, 2007, by and among Parent, Sub, and the Company (the “ Merger Agreement ”). In this First Amendment, Parent, Sub, and the Company are sometimes individually referred to as a “ Party ” and collectively as the “ Parties ”. Capitalized terms used herein without definition shall have the same meanings herein as set forth in the Merger Agreement.
     WHEREAS Parent, Sub, and the Company desire to amend certain provisions contained in the Merger Agreement;
     NOW, THEREFORE, pursuant to Section 7.03 of the Merger Agreement and in consideration of the premises and mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt of which are hereby acknowledged, and intending to be legally bound, the Parties hereto agree as follows:
ARTICLE I
AMENDMENTS
     Section 1.1 Amendment to Section 8.08 . Section 8.08 of the Merger Agreement is hereby deleted and replaced in its entirety with the following:
     SECTION 8.08 Governing Law . This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflict of laws thereof (other than Section 5-1401 of the New York General Obligations Law).
ARTICLE II
MISCELLANEOUS PROVISIONS
     Section 2.1 Governing Law . This First Amendment shall be governed by, and construed in accordance with, the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflict of laws thereof (other than Section 5-1401 of the New York General Obligations Law).
     Section 2.2 Counterparts; Execution . This First Amendment may be executed in two or more counterparts, each of which will be deemed an original. A facsimile, telecopy, electronic mail, or other reproduction of this First Amendment may be executed by one or more Parties, and an executed copy of this First Amendment may be delivered by one or more Parties by facsimile, telecopy, electronic mail, or similar electronic transmission device pursuant to which the signature of or on behalf of such Party can be seen, and such execution and delivery will be considered valid, binding, and effective for all purposes. At the request of any Party, all

 


 

Parties agree to execute an original of this First Amendment as well as any facsimile, telecopy, electronic mail, or other reproduction of this First Amendment.
     Section 2.3 Full Force and Effect . Except as set forth expressly in this First Amendment, the Merger Agreement shall be and remain in full force and effect, and shall constitute the legal, valid, and binding obligations of the Parties, enforceable against the Parties in accordance with its terms. The amendments in this First Amendment shall be deemed to have prospective application only, unless otherwise stated herein.
SIGNATURE PAGE TO FOLLOW

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     IN WITNESS WHEREOF, the Parties have caused this First Amendment to be signed by their respective officers thereunto duly authorized, all as of the date first written above.
         
  BTHC VI, INC.
 
 
  by   /s/ Timothy P. Halter  
    Name:   Timothy P. Halter   
    Title:   President   
 
  B-VI ACQUISITION CORP.
 
 
  by   /s/ Timothy P. Halter  
    Name:   Timothy P. Halter   
    Title:   President   
 
  ATHERSYS, INC.
 
 
  by   /s/ Gil Van Bokkelen  
    Name:   Gil Van Bokkelen   
    Title:   CEO   
 

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EXHIBIT 3.1
State of Delaware
Secretary of State
Division of Corporations
Delivered 06:44 PM 06/07/2005
FILED 06:05 PM 06/07/2005
SRV 050476444 — 3981772 FILE
CERTIFICATE OF INCORPORATION
OF
BTHC VI, INC.
FIRST
     The name of the Corporation is BTHC VI, Inc.
SECOND
     The Corporation will have perpetual existence.
THIRD
     The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the Delaware General Corporation Law.
FOURTH
     Section 1. Authorization of Shares.
          The aggregate number of shares of capital stock which the Corporation will have authority to issue is 50,000,000 shares, consisting of 40,000,000 shares of common stock, having a par value of $.001 per share ( “Common Stock” ) , and 10,000,000 shares of preferred stock, having a par value of $.001 per share ( “Preferred Stock” ).
     Section 2. Common Stock .
          2.1 Dividends . The holders of shares of Common Stock shall be entitled to receive such dividends as from time to time may be declared by the Board of Directors of the Corporation, subject to any preferential payments to which the holders of shares of any series of Preferred Stock shall be entitled as may be stated and expressed pursuant to the resolution establishing any such series of Preferred Stock.
          2.2 Liquidation . In the event of any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, after payment shall have been made to any holders of shares of any series of Preferred Stock then outstanding of the full amounts of preferential payments to which they shall respectively be entitled as may be stated and expressed pursuant to the resolution establishing any such series of Preferred Stock, the holders of shares of Common Stock then outstanding shall be entitled to share ratably based upon the number of shares of Common Stock held by them in all remaining assets of the Corporation available for distribution to its shareholders.
          2.3 Voting Rights . All shares of Common Stock shall be identical with each other in every respect. The shares of Common Stock shall entitle the holders thereof to one vote for each share upon all matters upon which shareholders have the right to vote.

 


 

     Section 3. Preferred Stock .
          The Board of Directors is authorized to establish, from time to time, one or more series of any class of shares, to increase or decrease the number within each series, and to fix the designations, powers, preferences and relative, participating, optional or other rights of such series and any qualifications, limitations or restrictions thereof. All shares of any one series of Preferred Stock will be identical except as to the dates of issue and the dates from which dividends on shares of the series issued on different dates will cumulate, if cumulative. Authority is hereby expressly granted to the Board of Directors to authorize the issuance of one or more series of Preferred Stock, and to fix by resolution or resolutions providing for the issue of each such series the voting powers, designations, preferences, and relative, participating, optional, redemption, conversion, exchange or other special rights, qualifications, limitations or restrictions of such series, and the number of shares in each series, to the full extent now or hereafter permitted by law.
FIFTH
          No stockholder of the Corporation will, solely by reason of holding shares of any class, have any preemptive or preferential right to purchase or subscribe for any shares of the Corporation, now or hereafter to be authorized, or any notes, debentures, bonds or other securities convertible into or carrying warrants, rights or options to purchase shares of any class, now or hereafter to be authorized, whether or not the issuance of any such shares or such notes, debentures, bonds or other securities would adversely affect the dividend, voting or any other rights of such stockholder. The Board of Directors may authorize the issuance of, and the Corporation may issue, shares of any class of the Corporation, or any notes, debentures, bonds or other securities convertible into or carrying warrants, rights or options to purchase any such shares, without offering any shares of any class to the existing holders of any class of stock of the Corporation.
SIXTH
          At all meetings of stockholders, a quorum will be present if the holders of a majority of the shares entitled to vote at the meeting are represented at the meeting in person or by proxy.
SEVENTH
          Stockholders of the Corporation will not have the right of cumulative voting for the election of directors or for any other purpose.
EIGHTH
          In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors is expressly authorized to adopt, alter, amend and repeal the Bylaws of the Corporation or to adopt new Bylaws. Directors need not be elected by written ballot unless expressly required by the Bylaws of the Corporation.

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NINTH
          The Corporation will, to the fullest extent permitted by the Delaware General Corporation Law, as the same exists or may hereafter be amended, indemnify any and all persons it has power to indemnify under such law from and against any and all of the expenses, liabilities or other matters referred to in or covered by such law. In addition, the Corporation shall indemnify each of the Corporation’s directors and officers in each and every situation where, under Delaware General Corporation Law (specifically Section 145) the Corporation is not obligated, but is permitted or empowered, to make such indemnification, except as otherwise set forth in the Bylaws of the Corporation. Such indemnification may be provided pursuant to any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his director or officer capacity and as to action in another capacity while holding such office, will continue as to a person who has ceased to be a director, officer, employee or agent, and will inure to the benefit of the heirs, executors and administrators of such a person.
          If a claim under the preceding paragraph is not paid in full by the Corporation within thirty (30) days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant will be entitled to be paid also the expense of prosecuting such claim. It will be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standards of conduct that make it permissible under the laws of the State of Delaware for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense will be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he has met the applicable standard of conduct set forth in the laws of the State of Delaware nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, will be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.
TENTH
          To the fullest extent permitted by the laws of the State of Delaware as the same exist or may hereafter be amended, a director of the Corporation will not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director; provided however, that this Article shall not eliminate or limit the liability of a director: (i) for any breach of the director’s duty of loyalty to the Corporation or stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. If the Delaware General Corporation Law is amended after the date of filing of this Certificate of Incorporation to authorize corporate action further limiting or eliminating the personal liability of a director, then the liability of the directors of the Corporation shall be limited or eliminated to the fullest extent permitted by the Delaware General Corporation Law, as so amended. Any repeal or modification of this Article by the stockholders of the Corporation or otherwise shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or

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modification. The provisions of this Article shall not be deemed to limit or preclude indemnification of a director by the Corporation for any liability of a director that has not been eliminated by the provisions of this Article.
ELEVENTH
          The address of the Corporation’s initial registered office is 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle, and the name of its initial registered agent at that address is The Corporation Trust Company.
TWELFTH
          The number of directors constituting the initial Board of Directors of the Corporation is one and the name and mailing address of such person, who is to serve as director until the first annual meeting of the stockholders or until his successor is elected and qualified, is:
     
Name   Address
 
Timothy P. Halter
  12890 Hilltop Road
 
  Argyle, Texas 76226
          Hereafter, the number of directors will be determined in accordance with the Bylaws of the Corporation.
THIRTEENTH
          The powers of the incorporator will terminate upon the filing of this Certificate. The name and mailing address of the incorporator are:
     
Name   Address
 
Timothy P. Halter
  12890 Hilltop Road
 
  Argyle, Texas 76226
FOURTEENTH
          The Corporation shall not be governed by Section 203 of the Delaware General Corporation Law.
Executed as of the 7 th day of June, 2005.
         
     
  By:   /s/ Timothy P. Halter    
    Timothy P. Halter, Incorporator   
       

-4-


 

State of Delaware
Secretary of State
Division of Corporations
Delivered 12:58 PM 04/11/2006
FILED 11:16 AM 04/11/2006
SRV 060337989 — 3981772 FILE
CERTIFICATE OF MERGER
of
BTHC VI, LLC
(a Texas limited liability company)
with and into
BTHC VI, INC.
(a Delaware corporation)
Pursuant to Section 264(c) of the Delaware General Corporation Law (the “DGCL”), the undersigned corporation has executed the following Certificate of Merger:
FIRST: The names of the two parties to the merger are BTHC VI, Inc., a Delaware corporation that will survive the merger, and BTHC VI, LLC, a Texas limited liability company that is being merged into BTHC VI, Inc.
SECOND: An Agreement and Plan of Merger has been approved, adopted, certified, executed and acknowledged by the surviving corporation and the merging limited liability company in accordance with Section 264(c) of the DGCL.
THIRD: The name of the sole surviving corporation is BTHC VI, Inc. (the “Surviving Corporation”).
FOURTH: The merger will be effective upon filing with the Secretary of State of Delaware.
FIFTH: The Certificate of Incorporation of the Surviving Corporation shall be its Certificate of Incorporation, without any changes thereto by reason of the merger.
SIXTH: The executed Agreement and Plan of Merger is on file at the Surviving Corporation’s principal place of business located at 12890 Hilltop Road, Argyle, Texas 76226.
SEVENTH: A copy of the Agreement and Plan of Merger will be furnished by the Surviving Corporation upon request, without cost, to any stockholder of BTHC VI, Inc. or member of BTHC VI, LLC.
IN WITNESS WHEREOF, the Surviving Corporation has caused this certificate to be signed by an authorized officer on this 10 th day of April, 2006.
         
  BTHC VI, INC.
 
 
  By:   /s/ Timothy P. Halter    
    Timothy P. Halter, President   
       

 


 

State of Delaware
Secretary of State
Division of Corporations
Delivered 11:09 AM 06/01/2007
FILED 10:54 AM 06/01/2007
SRV 070659983 — 3981772 FILE
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
BTHC VI, INC.
          BTHC VI, INC., a corporation duly organized and existing under the General Corporation Law of the State of Delaware (the “Corporation”), does hereby certify that:
          1. The Certificate of Incorporation of the Corporation is hereby amended by deleting the provisions of “Section 1. Authorization of Shares” thereof and inserting the following in lieu thereof:
“The total number of shares that the Corporation shall have authority to issue is 110,000,000 shares, consisting of 100,000,000 shares of common stock, having a par value of $.001 per share (“Common Stock”), and 10,000,000 shares of preferred stock, having a par value of $.001 per share (“Preferred Stock”).
Upon this Certificate of Amendment of Certificate of Incorporation becoming effective pursuant to the General Corporation Law of the State of Delaware (the “Effective Time”), each share of the corporation’s Common Stock, par value $.001 per share (the “Old Common Stock”), issued and outstanding immediately prior to the Effective Time will automatically be reclassified into 1/1.67th of a share of Common Stock, par value $.001 per share, of the Corporation (the “New Common Stock”). Each certificate that theretofore represented shares of Old Common Stock represented by such certificate shall thereafter represent that number of shares of New Common Stock into which the shares of Old Common Stock represented by such certificate shall have been reclassified; provided, that each person holding of record a stock certificate or certificates that represented shares of Old Common Stock shall receive, upon surrender of such certificate or certificates, a new certificate or certificates evidencing and representing the number of shares of New Common Stock to which such person is entitled under the foregoing reclassification. No fractional shares of New Common Stock will be issued to any stockholder. Accordingly, stockholders of record who would otherwise be entitled to receive fractional shares of New Common Stock will receive a full share of New Common Stock.”

 


 

          2. The foregoing amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
     IN WITNESS WHEREOF, BTHC VI, Inc. has caused this Certificate to be executed by Timothy P. Halter, its President, on this 1 st day of June, 2007.
         
  BTHC VI, Inc.
 
 
  By:   /s/ Timothy P. Halter    
    Name:   Timothy P. Halter   
    Office: President   
 

 

 

Exhibit 3.2
BYLAWS
OF
BTHC VI, INC.

 


 

TABLE OF CONTENTS
             
        Page  
ARTICLE I
 
OFFICES
    1  
Section 1.
 
Registered Office
    1  
Section 2.
 
Other Offices
    1  
ARTICLE II
  STOCKHOLDERS     1  
Section 1.
 
Place of Meetings
    1  
Section 2.
 
Annual Meeting
    1  
Section 3.
 
List of Stockholders
    1  
Section 4.
 
Special Meetings
    1  
Section 5.
 
Notice
    2  
Section 6.
 
Quorum
    2  
Section 7.
 
Voting
    2  
Section 8.
 
Method of Voting
    2  
Section 9.
 
Record Date
    3  
Section 10.
 
Action by Consent
    3  
ARTICLE III
  BOARD OF DIRECTORS     3  
Section 1.
 
Management
    3  
Section 2.
 
Qualification; Election; Term
    3  
Section 3.
 
Number; Election; Term; Qualification
    3  
Section 4.
 
Removal
    4  
Section 5.
 
Vacancies
    4  
Section 6.
 
Place of Meetings
    4  
Section 7.
 
Annual Meeting
    4  
Section 8.
 
Regular Meetings
    4  
Section 9.
 
Special Meetings
    4  
Section 10.
 
Quorum
    4  
Section 11.
 
Interested Directors
    5  
Section 12.
 
Action by Consent
    5  
Section 13.
 
Compensation of Directors
    5  
ARTICLE IV
  COMMITTEES     5  
Section 1.
 
Designation
    5  

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TABLE OF CONTENTS
(continued)
             
        Page  
Section 2.
 
Number; Qualification; Term
    5  
Section 3.
 
Authority
    6  
Section 4.
 
Change in Number
    6  
Section 5.
 
Removal
    6  
Section 6.
 
Vacancies
    6  
Section 7.
 
Meetings
    6  
Section 8.
 
Quorum; Majority Vote
    7  
Section 9.
 
Compensation
    7  
ARTICLE V
  NOTICE     7  
Section 1.
 
Form of Notice
    7  
Section 2.
 
Waiver
    7  
ARTICLE VI
  OFFICERS AND AGENTS     7  
Section 1.
 
In General
    7  
Section 2.
 
Election
    8  
Section 3.
 
Other Officers and Agents
    8  
Section 4.
 
Compensation
    8  
Section 5.
 
Term of Office and Removal
    8  
Section 6.
 
Employment and Other Contracts
    8  
Section 7.
 
Chairman of the Board of Directors
    8  
Section 8.
 
Chief Executive Officer
    8  
Section 9.
 
President
    8  
Section 10.
 
Vice Presidents
    8  
Section 11.
 
Secretary
    9  
Section 12.
 
Assistant Secretaries
    9  
Section 13.
 
Treasurer
    9  
Section 14.
 
Assistant Treasurers
    9  
Section 15.
 
Bonding
    9  
ARTICLE VII
  CERTIFICATES REPRESENTING SHARES     10  
Section 1.
 
Form of Certificates
    10  
Section 2.
 
Lost Certificates
    10  

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TABLE OF CONTENTS
(continued)
             
        Page  
Section 3.
 
Transfer of Shares
    10  
Section 4.
 
Registration of Transfer
    11  
Section 5.
 
Registered Stockholders
    11  
Section 6.
 
Denial of Preemptive Rights
    11  
ARTICLE VIII
 
GENERAL PROVISIONS
    11  
Section 1.
 
Dividends
    11  
Section 2.
 
Reserves
    11  
Section 3.
 
Telephone and Similar Meetings
    12  
Section 4.
 
Books and Records
    12  
Section 5.
 
Fiscal Year
    12  
Section 6.
 
Seal
    12  
Section 7.
 
Advances of Expenses
    12  
Section 8.
 
Indemnification
    12  
Section 9.
 
Employee Benefit Plans
    12  
Section 10.
 
Insurance
    13  
Section 11.
 
Resignation
    13  
Section 12.
 
Amendment of Bylaws
    13  
Section 13.
 
Construction
    13  
Section 14.
 
Relation to the Certificate of Incorporation
    13  

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BYLAWS
OF
BTHC VI, INC.
ARTICLE I
OFFICES
 
     Section 1. Registered Office. The registered office and registered agent of BTHC VI, Inc. (the “Corporation”) will be as from time to time set forth in the Corporation’s Certificate of Incorporation or in any certificate filed with the Secretary of State of the State of Delaware, and the appropriate county Recorder or Recorders, as the case may be, to amend such information.
     Section 2. Other Offices. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
 
     Section 1. Place of Meetings. All meetings of the stockholders for the election of Directors will be held at such place, within or without the State of Delaware, as may be fixed from time to time by the Board of Directors. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as may be stated in the notice of the meeting or in a duly executed waiver of notice thereof.
     Section 2. Annual Meeting. An annual meeting of the stockholders will be held at such time as may be determined by the Board of Directors, at which meeting the stockholders will elect a Board of Directors, and transact such other business as may properly be brought before the meeting.
     Section 3. List of Stockholders. At least ten days before each meeting of stockholders, a complete list of the stockholders entitled to vote at said meeting, arranged in alphabetical order, with the address of and the number of voting shares registered in the name of each, will be prepared by the officer or agent having charge of the stock transfer books. Such list will be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, at the principal place of business of the Corporation. Such list will be produced and kept open at the time and place of the meeting during the whole time thereof, and will be subject to the inspection of any stockholder who may be present.
     Section 4. Special Meetings. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by law, the Certificate of Incorporation or these Bylaws, may be called by the Chairman of the Board, the Chief Executive Officer, the President, or the

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Board of Directors, or will be called by the Chief Executive Officer, President, or Secretary, at the request in writing of the holders of not less than 30% of all the shares issued, outstanding and entitled to vote. Such request will state the purpose or purposes of the proposed meeting. Business transacted at all special meetings will be confined to the purposes stated in the notice of the meeting unless all stockholders entitled to vote are present and consent.
     Section 5. Notice. Written or printed notice stating the place, day and hour of any meeting of the stockholders and, in case of a special meeting, the purpose or purposes for which the meeting is called, will be delivered not less than ten nor more than sixty days before the date of the meeting, either personally or by mail, by or at the direction of the Chairman of the Board, the Chief Executive Officer, the President, the Secretary, or the officer or person calling the meeting, to each stockholder of record entitled to vote at the meeting. If mailed, such notice will be deemed to be delivered when deposited in the United States mail, addressed to the stockholder at his address as it appears on the stock transfer books of the Corporation, with postage thereon prepaid.
     Section 6. Quorum. At all meetings of the stockholders, the presence in person or by proxy of the holders of a majority of the shares issued and outstanding and entitled to vote on that matter will be necessary and sufficient to constitute a quorum for the transaction of business except as otherwise provided by law, the Certificate of Incorporation or these Bylaws. If, however, such quorum is not present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, will have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present or represented. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting will be given to each stockholder of record entitled to vote at the meeting. At such adjourned meeting at which a quorum is present or represented, any business may be transacted that might have been transacted at the meeting as originally notified.
     Section 7. Voting. When a quorum is present at any meeting of the Corporation’s stockholders, the vote of the holders of a majority of the shares present in person or by proxy entitled to vote on, and voted for or against, any matter will decide any questions brought before such meeting, unless the question is one upon which, by express provision of law, the Certificate of Incorporation or these Bylaws, a different vote is required, in which case such express provision will govern and control the decision of such question. The stockholders present in person or by proxy at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
     Section 8. Method of Voting. Each outstanding share of the Corporation’s capital stock, regardless of class or series, will be entitled to one vote on each matter submitted to a vote at a meeting of stockholders, except to the extent that the voting rights of the shares of any class or series are limited or denied by the Certificate of Incorporation, as amended from time to time. At any meeting of the stockholders, every stockholder having the right to vote will be entitled to vote in person, or by proxy appointed by an instrument in writing subscribed by such stockholder and bearing a date not more than three years prior to such meeting, unless such instrument provides for a longer period. A telegram, telex, cablegram or similar transmission by the stockholder, or a photographic, photostatic, facsimile or similar reproduction of a writing

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executed by the stockholder, shall be treated as an execution in writing for purposes of the preceding sentence. Each proxy will be revocable unless expressly provided therein to be irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the Corporation generally. Such proxy will be filed with the Secretary of the Corporation prior to or at the time of the meeting. Voting on any question or in any election, other than for directors, may be by voice vote or show of hands unless the presiding officer orders, or any stockholder demands, that voting be by written ballot.
     Section 9. Record Date. The Board of Directors may fix in advance a record date for the purpose of determining stockholders entitled to notice of or to vote at a meeting of stockholders, which record date will not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date will not be less than ten nor more than sixty days prior to such meeting. In the absence of any action by the Board of Directors, the close of business on the date next preceding the day on which the notice is given will be the record date, or, if notice is waived, the close of business on the day next preceding the day on which the meeting is held will be the record date.
     Section 10. Action by Consent. Except as prohibited by law, any action required or permitted by law, the Certificate of Incorporation or these Bylaws to be taken at a meeting of the stockholders of the Corporation may be taken without a meeting if a consent or consents in writing, setting forth the action so taken, is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and will be delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business or an officer or agent of the Corporation having custody of the minute book.
ARTICLE III
BOARD OF DIRECTORS
 
     Section 1. Management. The business and affairs of the Corporation will be managed by or under the direction of its Board of Directors who may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law, by the Certificate of Incorporation or by these Bylaws directed or required to be exercised or done by the stockholders.
     Section 2. Qualification; Election; Term. Each Director must be a natural person at least 18 years of age. None of the Directors need be a stockholder of the Corporation or a resident of the State of Delaware. The Directors will be elected by written ballot, by plurality vote at the annual meeting of the stockholders, except as hereinafter provided, and each Director elected will hold office until whichever of the following occurs first: his successor is elected and qualified, his resignation, his removal from office by the stockholders or his death.
     Section 3. Number; Election; Term; Qualification. The number of Directors which shall constitute the Board of Directors shall be not less than one. The number of Directors which

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shall constitute the entire Board of Directors shall be determined by resolution of the Board of Directors at any meeting thereof, but shall never be less than one. No decrease in the number of Directors will have the effect of shortening the term of any incumbent Director. At each annual meeting of stockholders, Directors shall be elected to hold office until their successors are elected and qualified or until their earlier resignation, removal from office or death. No Director need be a stockholder, a resident of the State of Delaware, or a citizen of the United States.
     Section 4. Removal. Any Director may be removed either for or without cause at any special meeting of stockholders by the affirmative vote of the stockholders representing not less than two-thirds of the voting power of the issued and outstanding stock entitled to vote for the election of such Director; provided, that notice of intention to act upon such matter has been given in the notice calling such meeting.
     Section 5. Vacancies. Newly created directorships resulting from any increase in the authorized number of Directors and any vacancies occurring in the Board of Directors caused by death, resignation, retirement, disqualification or removal from office of any Directors or otherwise, may be filled by the vote of a majority of the Directors then in office, though less than a quorum, or a successor or successors may be chosen at a special meeting of the stockholders called for that purpose. A Director elected to fill a vacancy will be elected for the unexpired term of his predecessor in office or until whichever of the following occurs first: his successor is elected and qualified, his resignation, his removal from office by the stockholders or his death.
     Section 6. Place of Meetings. Meetings of the Board of Directors, regular or special, may be held at such place within or without the State of Delaware as may be fixed from time to time by the Board of Directors.
     Section 7. Annual Meeting. The first meeting of each newly elected Board of Directors will be held without further notice immediately following the annual meeting of stockholders and at the same place, unless by unanimous consent, the Directors then elected and serving change such time or place.
     Section 8. Regular Meetings. Regular meetings of the Board of Directors may be held with or without notice and at such time and place as is from time to time determined by resolution of the Board of Directors.
     Section 9. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, or the President, on oral or written notice to each Director, given either personally, by telephone, by facsimile or by mail, delivered not less than twenty-four hours in advance of the meeting; special meetings will be called by the Chairman of the Board, Chief Executive Officer, President, or Secretary in like manner and on like notice on the written request of at least two Directors. Except as may be otherwise expressly provided by law, the Certificate of Incorporation or these Bylaws, neither the business to be transacted at, nor the purpose of, any special meeting need be specified in a notice or waiver of notice.
     Section 10. Quorum. At all meetings of the Board of Directors the presence of a majority of the number of Directors then in office will be necessary and sufficient to constitute a quorum for the transaction of business, and the affirmative vote of at least a majority of the

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Directors present at any meeting at which there is a quorum will be the act of the Board of Directors, except as may be otherwise specifically provided by law, the Certificate of Incorporation or these Bylaws. If a quorum is not present at any meeting of the Board of Directors, the Directors present thereat may adjourn the meeting from time to time without notice other than announcement at the meeting, until a quorum is present.
     Section 11. Interested Directors. No contract or transaction between the Corporation and one or more of its Directors or officers, or between the Corporation and any other corporation, partnership, association or other organization in which one or more of the Corporation’s Directors or officers are directors or officers or have a financial interest, will be void or voidable solely for this reason, solely because the Director or officer is present at or participates in the meeting of the Board of Directors or committee thereof that authorizes the contract or transaction, or solely because his or their votes are counted for such purpose, if: (i) the material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative vote of a majority of the disinterested Directors, even though the disinterested Directors be less than a quorum, (ii) the material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee that authorizes the contract or transaction.
     Section 12. Action by Consent. Any action required or permitted to be taken at any meeting of the Board of Directors or any committee of the Board of Directors may be taken without such a meeting if a consent or consents in writing, setting forth the action so taken, is signed by all the members of the Board of Directors or such committee, as the case may be.
     Section 13. Compensation of Directors. Directors will receive such compensation for their services and reimbursement for their expenses as the Board of Directors, by resolution, may establish; provided that nothing herein contained will be construed to preclude any Director from serving the Corporation in any other capacity and receiving compensation therefor.
ARTICLE IV
COMMITTEES
 
     Section 1. Designation. The Board of Directors may, by resolution adopted by a majority of the whole Board, designate from among its members an executive committee and one or more such other committees as it may determine necessary.
     Section 2. Number; Qualification; Term. The executive committee and any other designated committees shall consist of one or more Directors. The committees shall serve at the pleasure of the Board of Directors.

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     Section 3. Authority. Each committee, to the extent provided in such resolution, shall have and may exercise all of the authority of the Board of Directors in the management of the business and affairs of the Corporation, except in the following matters and except where action of the full Board of Directors is required by statute or by the Certificate of Incorporation:
          (a) Amending the Certificate of Incorporation;
          (b) Amending, altering or repealing the Bylaws of the Corporation or adopting new Bylaws;
          (c) Approving and/or recommending or submitting to stockholders:
               (1) Merger
               (2) Consolidation
               (3) sale, lease (as lessor), exchange or other disposition of all or substantially all the property and assets of the Corporation;
               (4) dissolution;
          (d) Filling vacancies in the Board of Directors or any such committee;
          (e) Electing or removing officers of the Corporation or members of any such committee;
          (f) Fixing compensation of any person who is a member of any such committee;
          (g) Declaring dividends; and
          (h) Altering or repealing any resolution of the Board of Directors.
     Section 4. Change in Number. The number of committee members may be increased or decreased (but not below one) from time to time by resolution adopted by a majority of the whole Board of Directors.
     Section 5. Removal. Any committee member may be removed by the Board of Directors by the affirmative vote of a majority of the whole Board, whenever in its judgment the best interests of the Corporation will be served thereby.
     Section 6. Vacancies. A vacancy occurring in any committee (by death, resignation, removal or otherwise) may be filled by the Board of Directors in the manner provided for original designation in Section 1 of this Article.
     Section 7. Meetings. Time, place and notice (if any) of all committee meetings shall be determined by the respective committee. Unless otherwise determined by a particular committee, meetings of the committees may be called by any Director of the Corporation on not less than 12 hours notice to each member of the committee, either personally or by mail, telephone (including voice mail), email or other electronic or other delivery means. Neither the

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business to be transacted at, nor the purpose of, any meeting need be specified in a notice or waiver of notice of any meeting. (See also Section 3 of Article VIII).
     Section 8. Quorum; Majority Vote. At meetings of any committee, a majority of the number of members designated by the Board of Directors shall constitute a quorum for the transaction of business. The act of a majority of the members present at any meeting at which a quorum is present shall be the act of the committee, except as otherwise specifically provided by statute or by the Certificate of Incorporation or by these Bylaws. If a quorum is not present at a meeting of the committee, the members present thereat may adjourn the meeting from time to time, without notice other than an announcement at the meeting until a quorum is present.
     Section 9. Compensation. Compensation of committee members shall be fixed pursuant to the provisions of Section 13 of Article III of these bylaws.
ARTICLE V
NOTICE
 
     Section 1. Form of Notice. Whenever by law, the Certificate of Incorporation or of these Bylaws, notice is to be given to any Director or stockholder, and no provision is made as to how such notice will be given, such notice may be given: (i) in writing, by mail, postage prepaid, addressed to such Director or stockholder at such address as appears on the books of the Corporation or (ii) in any other method permitted by law. Any notice required or permitted to be given by mail will be deemed to be given at the time the same is deposited in the United States mail.
     Section 2. Waiver. Whenever any notice is required to be given to any stockholder or Director of the Corporation as required by law, the Certificate of Incorporation or these Bylaws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated in such notice, will be equivalent to the giving of such notice. Attendance of a stockholder or Director at a meeting will constitute a waiver of notice of such meeting, except where such stockholder or Director attends for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the ground that the meeting has not been lawfully called or convened.
ARTICLE VI
OFFICERS AND AGENTS
 
     Section 1. In General. The officers of the Corporation will be elected by the Board of Directors and will be a Chief Executive Officer, a President, a Secretary, and a Treasurer. The Board of Directors may also elect a Chairman of the Board, Vice Presidents, Assistant Vice Presidents, Assistant Secretaries, and Assistant Treasurers. Any two or more offices may be held by the same person.

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     Section 2. Election. The Board of Directors, at its first meeting after each annual meeting of stockholders, will elect the officers, none of whom need be a member of the Board of Directors.
     Section 3. Other Officers and Agents. The Board of Directors may also elect and appoint such other officers and agents as it deems necessary, who will be elected and appointed for such terms and will exercise such powers and perform such duties as may be determined from time to time by the Board of Directors.
     Section 4. Compensation. The compensation of all officers and agents of the Corporation will be fixed by the Board of Directors or any committee of the Board of Directors, if so authorized by the Board of Directors.
     Section 5. Term of Office and Removal. Each officer of the Corporation will hold office until his death, his resignation or removal from office, or the election and qualification of his successor, whichever occurs first. Any officer or agent elected or appointed by the Board of Directors may be removed at any time, for or without cause, by the affirmative vote of a majority of the entire Board of Directors, but such removal will not prejudice the contract rights, if any, of the person so removed. If the office of any officer becomes vacant for any reason, the vacancy may be filled by the Board of Directors.
     Section 6. Employment and Other Contracts. The Board of Directors may authorize any officer or officers or agent or agents to enter into any contract or execute and deliver any instrument in the name or on behalf of the Corporation, and such authority may be general or confined to specific instances. The Board of Directors may, when it believes the interest of the Corporation will best be served thereby, authorize executive employment contracts that will have terms no longer than ten years and contain such other terms and conditions as the Board of Directors deems appropriate. Nothing herein will limit the authority of the Board of Directors to authorize employment contracts for shorter terms.
     Section 7. Chairman of the Board of Directors. If the Board of Directors has elected a Chairman of the Board, he will preside at all meetings of the stockholders and the Board of Directors.
     Section 8. Chief Executive Officer. The Chief Executive Officer will have general charge and supervision of the business of the Corporation and will exercise and perform all the duties incident to the office of the Chief Executive Officer. He will have direct supervision of the other officers and will also exercise and perform such powers and duties as may be assigned to him by the Board of Directors. During the absence or disability of the President, the Chief Executive Officer will exercise the powers and perform the duties of the President.
     Section 9. President. The President will, in the absence of the Chairman of the Board, preside at all meetings of the stockholders and the Board of Directors. The President will have all powers and perform all duties incident to the office of President and will have such other powers and perform such other duties as the Board of Directors may from time to time prescribe or as the Chief Executive Officer may from time to time delegate to him.
     Section 10. Vice Presidents. Each Vice President will have the usual and customary powers and perform the usual and customary duties incident to the office of Vice President, and

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will have such other powers and perform such other duties as the Board of Directors or any committee thereof may from time to time prescribe or as the Chief Executive Officer or the President may from time to time delegate to him. In the absence or disability of the President and the Chairman of the Board, a Vice President designated by the Board of Directors, or in the absence of such designation the Vice Presidents in the order of their seniority in office, will exercise the powers and perform the duties of the President.
     Section 11. Secretary. The Secretary will attend all meetings of the stockholders and record all votes and the minutes of all proceedings in a book to be kept for that purpose. The Secretary will perform like duties for the Board of Directors and committees thereof when required. The Secretary will give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors. The Secretary will keep in safe custody the seal of the Corporation. The Secretary will be under the supervision of the Chief Executive Officer and the President. The Secretary will have such other powers and perform such other duties as the Board of Directors may from time to time prescribe or as the Chief Executive Officer or the President may from time to time delegate to him.
     Section 12. Assistant Secretaries. The Assistant Secretaries in the order of their seniority in office, unless otherwise determined by the Board of Directors, will, in the absence or disability of the Secretary, exercise the powers and perform the duties of the Secretary. They will have such other powers and perform such other duties as the Board of Directors may from time to time prescribe or as the Chief Executive Officer or the President may from time to time delegate to them.
     Section 13. Treasurer. The Treasurer will have responsibility for the receipt and disbursement of all corporate funds and securities, will keep full and accurate accounts of such receipts and disbursements, and will deposit or cause to be deposited all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer will render to the Directors whenever they may require it an account of the operating results and financial condition of the Corporation, and will have such other powers and perform such other duties as the Board of Directors may from time to time prescribe or as the Chief Executive Officer or the President may from time to time delegate to him.
     Section 14. Assistant Treasurers. The Assistant Treasurers in the order of their seniority in office, unless otherwise determined by the Board of Directors, will, in the absence or disability of the Treasurer, exercise the powers and perform the duties of the Treasurer. They will have such other powers and perform such other duties as the Board of Directors may from time to time prescribe or as the Chief Executive Officer or the President may from time to time delegate to them.
     Section 15. Bonding. The Corporation may secure a bond to protect the Corporation from loss in the event of defalcation by any of the officers, which bond may be in such form and amount and with such surety as the Board of Directors may deem appropriate.

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ARTICLE VII
CERTIFICATES REPRESENTING SHARES
 
     Section 1. Form of Certificates. Certificates, in such form as may be determined by the Board of Directors, representing shares to which stockholders are entitled will be delivered to each stockholder. Such certificates will be consecutively numbered and will be entered in the stock book of the Corporation as they are issued. Each certificate will state on the face thereof the holder’s name, the number, class of shares, and the par value of such shares or a statement that such shares are without par value. They will be signed by the Chief Executive Officer, the President, or a Vice President and the Secretary or an Assistant Secretary, and may be sealed with the seal of the Corporation or a facsimile thereof. If any certificate is countersigned by a transfer agent, or an assistant transfer agent or registered by a registrar, either of which is other than the Corporation or an employee of the Corporation, the signatures of the Corporation’s officers may be facsimiles. In case any officer or officers who have signed, or whose facsimile signature or signatures have been used on such certificate or certificates, ceases to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates have been delivered by the Corporation or its agents, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon had not ceased to be such officer or officers of the Corporation.
     Section 2. Lost Certificates. The Board of Directors may direct that a new certificate be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate to be lost or destroyed. When authorizing such issue of a new certificate, the Board of Directors, in its discretion and as a condition precedent to the issuance thereof, may require the owner of such lost or destroyed certificate, or his legal representative, to advertise the same in such manner as it may require and/or to give the Corporation a bond, in such form, in such sum, and with such surety or sureties as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost or destroyed. When a certificate has been lost, apparently destroyed or wrongfully taken, and the holder of record fails to notify the Corporation within a reasonable time after such holder has notice of it, and the Corporation registers a transfer of the shares represented by the certificate before receiving such notification, the holder of record is precluded from making any claim against the Corporation for the transfer of a new certificate.
     Section 3. Transfer of Shares. Shares of stock will be transferable only on the books of the Corporation by the holder thereof in person or by such holder’s duly authorized attorney. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate representing shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it will be the duty of the Corporation or the transfer agent of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.

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     Section 4. Registration of Transfer. The Corporation shall register the transfer of a certificate for shares presented to it for transfer if:
          (a) Endorsement. The certificate is properly endorsed by the registered owner or by his duly authorized attorney; and
          (b) Guarantee and Effectiveness of Signature. The signature of such person has been guaranteed by a national banking association or member of the New York Stock Exchange, and reasonable assurance is given that such endorsements are effective; and
          (c) Adverse Claims. The corporation has no notice of an adverse claim or has discharged any duty to inquire into such a claim; and
          (d) Collection of Taxes. Any applicable law relating to the collection of taxes has been complied with.
     Section 5. Registered Stockholders. The Corporation will be entitled to treat the holder of record of any share or shares of stock as the holder in fact thereof and, accordingly, will not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it has express or other notice thereof, except as otherwise provided by law.
     Section 6. Denial of Preemptive Rights. No stockholder of the Corporation nor other person shall have any preemptive rights whatsoever.
ARTICLE VIII
GENERAL PROVISIONS
 
     Section 1. Dividends. Dividends upon the outstanding shares of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting. Dividends may be declared and paid in cash, in property, or in shares of the Corporation, subject to the provisions of the General Corporation Law of the State of Delaware (the “DGCL”), as it may be amended from time to time, and the Certificate of Incorporation. The Board of Directors may fix in advance a record date for the purpose of determining stockholders entitled to receive payment of any dividend, such record date to be not more than sixty days prior to the payment date of such dividend or the Board of Directors may close the stock transfer books for such purpose for a period of not more than sixty days prior to the payment date of such dividend. In the absence of any action by the Board of Directors, the date upon which the Board of Directors adopts the resolution declaring such dividend will be the record date.
     Section 2. Reserves. There may be created by resolution of the Board of Directors out of the surplus of the Corporation such reserve or reserves as the Directors from time to time, in their discretion, deem proper to provide for contingencies, or to equalize dividends, or to repair or maintain any property of the Corporation, or for such other purpose as the Directors may deem beneficial to the Corporation, and the Directors may modify or abolish any such reserve in the manner in which it was created. Surplus of the Corporation to the extent so

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reserved will not be available for the payment of dividends or other distributions by the Corporation.
     Section 3. Telephone and Similar Meetings. Stockholders, Directors and committee members may participate in and hold meetings by means of conference telephone or similar communications equipment by which all persons participating in the meeting can hear each other. Participation in such a meeting will constitute presence in person at the meeting, except where a person participates in the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the ground that the meeting has not been lawfully called or convened.
     Section 4. Books and Records. The Corporation will keep correct and complete books and records of account and minutes of the proceedings of its stockholders and Board of Directors, and will keep at its registered office or principal place of business, or at the office of its transfer agent or registrar, a record of its stockholders, giving the names and addresses of all stockholders and the number and class of the shares held by each.
     Section 5. Fiscal Year. The fiscal year of the Corporation will be fixed by resolution of the Board of Directors.
     Section 6. Seal. The Corporation may have a seal, and the seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. Any officer of the Corporation will have authority to affix the seal to any document requiring it.
     Section 7. Advances of Expenses. Expenses (including attorneys’ fees) incurred by a Director or officer in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation as authorized in this Article. Such expenses (including attorneys’ fees) incurred by former Directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as the Corporation deems appropriate.
     Section 8. Indemnification. The Corporation will indemnify its Directors to the fullest extent permitted by the DGCL and may, if and to the extent authorized by the Board of Directors, so indemnify its officers and any other person whom it has the power to indemnify against liability, reasonable expense or other matter whatsoever.
     Section 9. Employee Benefit Plans. For purposes of this Article, the Corporation shall be deemed to have requested a Director or officer to serve as a trustee, employee, agent, or similar functionary of an employee benefit plan whenever the performance by him of his duties to the Corporation also imposes duties on or otherwise involves services by him to the plan or participants or beneficiaries of the plan. Excise taxes assessed on a Director or officer with respect to an employee benefit plan pursuant to applicable law are deemed fines. Action taken or omitted by a Director or officer with respect to an employee benefit plan in the performance of his duties for a purpose reasonably believed by him to be in the interest of the participants and beneficiaries of the plan is deemed to be for a purpose which is not opposed to the best interests of the Corporation.

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     Section 10. Insurance. The Corporation may at the discretion of the Board of Directors purchase and maintain insurance on behalf of the Corporation and any person whom it has the power to indemnify pursuant to law, the Certificate of Incorporation, these Bylaws or otherwise.
     Section 11. Resignation. Any Director, officer or agent may resign by giving written notice to the Chief Executive Officer, the President, or the Secretary. Such resignation will take effect at the time specified therein or immediately if no time is specified therein. Unless otherwise specified therein, the acceptance of such resignation will not be necessary to make it effective.
     Section 12. Amendment of Bylaws. These Bylaws may be altered, amended, or repealed at any meeting of the Board of Directors at which a quorum is present, by the affirmative vote of a majority of the Directors present at such meeting.
     Section 13. Construction. Whenever the context so requires, the masculine shall include the feminine and neuter, and the singular shall include the plural, and conversely.
     If any portion of these Bylaws shall be invalid or inoperative, then, so far as is reasonable and possible:
          (a) The remainder of these Bylaws shall be considered valid and operative, and
          (b) Effect shall be given to the intent manifested by the portion held invalid or inoperative.
     Section 14. Relation to the Certificate of Incorporation. These Bylaws are subject to, and governed by, the Certificate of Incorporation of the Corporation.
Adopted: June 8, 2007.

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EXHIBIT 4.1
NEITHER THESE SECURITIES NOR THE SECURITIES FOR WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH RULE 144 UNDER SUCH ACT OR THE ISSUER RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO THE ISSUER, STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACTS.
BTHC VI, INC.
FORM OF WARRANT
Warrant No. [___]   Dated: [                      ], 2007
     BTHC VI, Inc., a Delaware corporation (the “ Company ”), hereby certifies that, for value received,                                           [Name of Holder] or its registered assigns (the “ Holder ”), is entitled to purchase from the Company up to a total of [                      ] 1 shares of common stock, $0.001 par value per share (the “ Common Stock ”), of the Company (each such share, a “ Warrant Share ” and all such shares issuable under the warrants, the “ Warrant Shares ”) at an exercise price equal to $6.00 per share (as adjusted from time to time as provided in Section 9, the “ Exercise Price ”), at any time and from the date hereof and through and including the date that is five (5) years from the date of issuance hereof (the “ Expiration Date ”), and subject to the following terms and conditions. This Warrant (“ Warrant ”) is one of a series of similar warrants issued pursuant to that certain Securities Purchase Agreement, dated as of [                      ], 2007, by and among the Company, Athersys, Inc. and the Investors identified therein (the “ Purchase Agreement ”). All such warrants are referred to herein, collectively, as the “ Warrants ” and the holders thereof along with the Holder named herein, the “ Holders .”
     1.  Definitions . In addition to the terms defined elsewhere in this Warrant, capitalized terms that are not otherwise defined herein have the meanings given to such terms in the Purchase Agreement.
     2.  Registration of Warrant . The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “ Warrant Register ”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.
     3.  Registration of Transfers . The Company shall register the transfer of any portion of this Warrant in the Warrant Register, upon surrender of this Warrant, with the Form of Assignment attached hereto duly completed and signed, to the Transfer Agent or to the Company
 
1   25% warrant coverage

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at its address specified herein. Upon any such registration or transfer, a new warrant to purchase Common Stock, in substantially the form of this Warrant (any such new warrant, a “ New Warrant ”), evidencing the portion of this Warrant so transferred shall be issued to the transferee and a New Warrant evidencing the remaining portion of this Warrant not so transferred, if any, shall be issued to the transferring Holder. The acceptance of the New Warrant by the transferee thereof shall be deemed the acceptance by such transferee of all of the rights and obligations of a holder of a Warrant.
     4.  Exercise and Duration of Warrants .
          (a) This Warrant shall be exercisable by the registered Holder at any time and from time to time on or after the date hereof to and including the Expiration Date. At 6:30 P.M., New York City time on the Expiration Date, the portion of this Warrant not exercised prior thereto shall be and become void and of no value; provided that, if the average of the Closing Prices for the five Trading Days immediately prior to (but not including) the Expiration Date exceeds the Exercise Price on the Expiration Date, provided further that, if on the Expiration Date, there is no effective Registration Statement covering the resale of the Warrant Shares, or no current prospectus under such Registration Statement is available, then this Warrant shall be deemed to have been exercised in full (to the extent not previously exercised) on a “cashless exercise” basis at 6:30 P.M. New York City time on the Expiration Date. A “cashless exercise” means that in lieu of paying the aggregate purchase price for the shares being purchased upon exercise of the Warrants in cash, the Holder will forfeit a number of shares underlying the Warrants pursuant to Section 10 below.
          (b) A Holder may exercise this Warrant by delivering to the Company (i) an exercise notice, in the form attached hereto (the “ Exercise Notice ”), appropriately completed and duly signed, and (ii) payment of the Exercise Price for the number of Warrant Shares as to which this Warrant is being exercised (which may take the form of a “cashless exercise” if so indicated in the Exercise Notice only if a “cashless exercise” may occur at such time pursuant to Section 10 below), and the date such items are delivered to the Company (as determined in accordance with the notice provisions hereof) is an “ Exercise Date .” The Holder shall not be required to deliver the original Warrant in order to effect an exercise hereunder. Execution and delivery of the Exercise Notice shall have the same effect as cancellation of the original Warrant and issuance of a New Warrant evidencing the right to purchase the remaining number of Warrant Shares.
          (c) Exercise Disputes . In the case of any dispute with respect to the number of shares to be issued upon exercise of this Warrant, the Company shall promptly issue such number of shares of Common Stock that is not disputed and shall submit the disputed determinations or arithmetic calculations to the Holder via facsimile within two (2) Business Days of receipt of the Holder’s election to purchase Warrant Shares. If the Holder and the Company are unable to agree as to the determination of the Purchase Price within two (2) Business Days of such disputed determination or arithmetic calculation being submitted to the Holder, then the Company shall in accordance with this Section, submit via facsimile the disputed determination to an independent reputable accounting firm of national standing, selected jointly by the Company and the Holder. The Company shall cause such accounting firm to perform the determinations or calculations and notify the Company and the Holder of the

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results within forty-eight (48) hours from the time it receives the disputed determinations of calculations. Such accounting firm’s determination shall be binding upon all parties absent manifest error. The Company shall then on the next Business Day issue certificate(s) representing the appropriate number of Warrant Shares of Common Stock in accordance with such accounting firm’s determination and this Section. The prevailing party shall be entitled to reimbursement of all fees and expenses of such determination and calculation.
     5.  Delivery of Warrant Shares .
          (a) Upon exercise of this Warrant, the Company shall promptly (but in no event later than three Trading Days after the Exercise Date) issue or cause to be issued and cause to be delivered to or upon the written order of the Holder and in such name or names as the Holder may designate, a certificate for the Warrant Shares issuable upon such exercise, free of restrictive legends unless a registration statement covering the resale of the Warrant Shares and naming the Holder as a selling stockholder thereunder is not then effective and the Warrant Shares are not freely transferable without volume restrictions pursuant to Rule 144 under the Securities Act of 1933, as amended. The Holder, or any Person so designated by the Holder to receive Warrant Shares, shall be deemed to have become holder of record of such Warrant Shares as of the Exercise Date. The Company shall, upon request of the Holder, use its best efforts to deliver Warrant Shares hereunder electronically through the Depository Trust Corporation or another established clearing corporation performing similar functions.
          (b) This Warrant is exercisable, either in its entirety or, from time to time, for a portion of the number of Warrant Shares. Upon surrender of this Warrant following one or more partial exercises, the Company shall issue or cause to be issued, at its expense, a New Warrant evidencing the right to purchase the remaining number of Warrant Shares.
          (c) In addition to any other rights available to a Holder, if the Company fails to deliver to the Holder a certificate representing Warrant Shares by the third Trading Day after the date on which delivery of such certificate is required by this Warrant, and if after such third Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares that the Holder anticipated receiving from the Company (a “ Buy-In ”), then the Company shall, within three Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased (the “ Buy-In Price ”), at which point the Company’s obligation to deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to the Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Stock, times (B) the Closing Price on the date of the event giving rise to the Company’s obligation to deliver such certificate.
          (d) The Company’s obligations to issue and deliver Warrant Shares in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or

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any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder or any other Person of any obligation to the Company or any violation or alleged violation of law by the Holder or any other Person, and irrespective of any other circumstance which might otherwise limit such obligation of the Company to the Holder in connection with the issuance of Warrant Shares. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.
     6.  Charges, Taxes and Expenses . Issuance and delivery of certificates for shares of Common Stock upon exercise of this Warrant shall be made without charge to the Holder for any issue or transfer tax, withholding tax, transfer agent fee or other incidental tax or expense in respect of the issuance of such certificates, all of which taxes and expenses shall be paid by the Company; provided, however, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the registration of any certificates for Warrant Shares or Warrants in a name other than that of the Holder. The Holder shall be responsible for all other tax liability that may arise as a result of holding or transferring this Warrant or receiving Warrant Shares upon exercise hereof.
     7.  Replacement of Warrant . If this Warrant is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation hereof, or in lieu of and substitution for this Warrant, a New Warrant, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction and customary and reasonable bond or indemnity, if requested. Applicants for a New Warrant under such circumstances shall also comply with such other reasonable regulations and procedures and pay such other reasonable third-party costs as the Company may prescribe.
     8.  Reservation of Warrant Shares . The Company covenants that it will at all times reserve and keep available out of the aggregate of its authorized but unissued and otherwise unreserved Common Stock, solely for the purpose of enabling it to issue Warrant Shares upon exercise of this Warrant as herein provided, 100% of the number of Warrant Shares which are then issuable and deliverable upon the exercise of this entire Warrant, free from preemptive rights or any other contingent purchase rights of persons other than the Holder (after giving effect to the adjustments and restrictions of Section 9 , if any). The Company covenants that all Warrant Shares so issuable and deliverable shall, upon issuance and the payment of the applicable Exercise Price in accordance with the terms hereof, be duly and validly authorized, issued and fully paid and nonassessable. The Company will take all such action as may be necessary to assure that such shares of Common Stock may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of any securities exchange or automated quotation system upon which the Common Stock may be listed.
     9.  Certain Adjustments . The Exercise Price and number of Warrant Shares issuable upon exercise of this Warrant are subject to adjustment from time to time as set forth in this Section 9 .

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          (a) Stock Dividends and Splits . If the Company, at any time while this Warrant is outstanding, (i) pays a stock dividend on its Common Stock or otherwise makes a distribution on any class of capital stock that is payable in shares of Common Stock, (ii) subdivides outstanding shares of Common Stock into a larger number of shares, or (iii) combines outstanding shares of Common Stock into a smaller number of shares, then in each such case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to clause (i) of this paragraph shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution, and any adjustment pursuant to clause (ii) or (iii) of this paragraph shall become effective immediately after the effective date of such subdivision or combination.
          (b) Distributions Made Prior to Exercise . If the Company, at any time while this Warrant is outstanding, distributes to holders of Common Stock (i) evidences of its indebtedness, (ii) any security (other than a distribution of Common Stock covered by Section 9(a)), (iii) rights or warrants to subscribe for or purchase any security, or (iv) any other asset (in each case, a “ Distribution ”), then in each such case any Exercise Price in effect immediately prior to the close of business on the record date fixed for the determination of holders of Common Stock entitled to receive the Distribution shall be reduced, effective as of the close of business on such record date, to a price determined by multiplying such Exercise Price by a fraction of which (i) the numerator shall be the Weighted Average Price 2 of the Common Stock on the Trading Day immediately preceding such record date minus the value of the Distribution (as determined in good faith by the Company’s Board of Directors) applicable to one share of Common Stock, and (ii) the denominator shall be the Weighted Average Price of the Common Stock on the Trading Day immediately preceding such record date.
          (c) Notwithstanding the provisions set forth in Section 9(b) above, if the Company, at any time while this Warrant is outstanding, makes a Distribution to the holders of Common Stock, then in each such case the Holder shall have the option to receive such Distribution which would have been made to the Holder had such Holder been the holder of such Warrant Shares on the record date for the determination of stockholders entitled to such Distribution; provided, however, if the Holder elects to receive such Distribution, it will not be entitled to receive the adjustment to the Exercise Price specified in clause (b) above.
 
2   “Weighted Average Price” means, for any security as of any date, the dollar volume-weighted average price for such security on NASDAQ during the period beginning at 9:30:01 a.m., New York Time (or such other time as NASDAQ publicly announces is the official open of trading), and ending at 4:00:00 p.m., New York Time (or such other time as NASDAQ publicly announces is the official close of trading) as reported by Bloomberg (means Bloomberg Financial Markets) through its “Volume at Price” functions, or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York Time (or such other time as such Principal Market publicly announces is the official open of trading), and ending at 4:00:00 p.m., New York Time (or such other time as such market publicly announces is the official close of trading) as reported by Bloomberg, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported in the “pink sheets” by Pink Sheets LLC (formerly the National Quotation Bureau, Inc.). If the Weighted Average Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Weighted Average Price of such security on such date shall be the fair market value as mutually determined by the Company in good faith. All such determinations shall be appropriately adjusted for any share dividend, share split, share combination or other similar transaction during the applicable calculation period.

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          (d) Fundamental Transactions . If, at any time while this Warrant is outstanding, (i) the Company effects any merger or consolidation of the Company with or into (whether or not the Company is the surviving corporation) another Person, (ii) the Company effects any sale, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions; provided, however, that for avoidance of doubt, the granting of a lien on all or substantially all of the Company’s assets as collateral shall not be deemed a Fundamental Transaction hereunder, (iii) the Company allows another Person to make a purchase, tender or exchange offer that is accepted by the holders of more than the 50% of either the outstanding shares of Common Stock (not including any shares of Common Stock held by the Person or Persons making or party to, or associated or affiliated with the Persons making or party to, such purchase, tender or exchange offer), (iv) the Company consummates a stock purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than the 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock purchase agreement or other business combination), or (v) the Company effects any reclassification of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by Section 9(a) above) (in any such case, a “ Fundamental Transaction ”), then the Company shall use its reasonable best efforts to ensure that lawful and adequate provision shall be made whereby each Holder shall thereafter continue to have the right to purchase and receive upon the basis and upon the terms and conditions herein specified and in lieu of the Warrant Shares issuable upon exercise of the Warrants held by such Holder, shares of capital stock or similar equity interests (“ Acquirer Shares ”) in the surviving or acquiring entity (“ Acquirer ”), as the case may be, such that the aggregate value of the Holder’s warrants to purchase such number of Acquirer Shares, where the value of each new warrant to purchase one Acquirer Share is determined in accordance with the Black-Scholes Option Pricing formula set forth in Exhibit A hereto, is equivalent to the aggregate value of the Warrants held by such Holder, where the value of each Warrant to purchase one share in the Company is determined in accordance with the Black-Scholes Option Pricing formula set forth Exhibit B hereto. Furthermore, the new warrants to purchase Acquirer Shares referred to herein shall have the same expiration date as the Warrants, and shall have a strike price, KAcq, that is calculated in accordance with Exhibit A hereto. Moreover, appropriate provision shall be made with respect to the rights and interests of each Holder to the end that the provisions hereof (including, without limitation, provision for adjustment of the Exercise Price) shall thereafter be applicable, as nearly equivalent as may be practicable in relation to any Acquirer Shares thereafter deliverable upon the exercise thereof. The provisions of this Section 9(d) shall similarly apply to successive Fundamental Transactions. If the Company, in spite of using its reasonable best efforts, is unable to cause these Warrants to continue in full force and effect until the Expiration Date in connection with a ny Fundamental Transaction, then the Company shall pay the Holders in cash an amount per Warrant to purchase one share of Common Stock in the Company that is calculated in accordance with the Black-Scholes Option Pricing formula set forth in Exhibit B hereto.

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          (e) Number of Warrant Shares . Simultaneously with any adjustment to the Exercise Price pursuant to paragraph (a) of this Section, the number of Warrant Shares that may be purchased upon exercise of this Warrant shall be increased or decreased proportionately, as applicable, so that after such adjustment the aggregate Exercise Price payable hereunder for the increased or decreased, as applicable, number of Warrant Shares shall be the same as the aggregate Exercise Price in effect immediately prior to such adjustment.
          (f) Calculations . All calculations under this Section 9 shall be made to the nearest cent or the nearest 1/100th of a share, as applicable. The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the Company, and the disposition of any such shares shall be considered an issue or sale of Common Stock.
          (g) Notice of Adjustments . Upon the occurrence of each adjustment pursuant to this Section 9 , the Company at its expense will promptly compute such adjustment in accordance with the terms of this Warrant and prepare a certificate setting forth such adjustment, including a statement of the adjusted Exercise Price and adjusted number or type of Warrant Shares or other securities issuable upon exercise of this Warrant (as applicable), describing the transactions giving rise to such adjustments and showing in detail the facts upon which such adjustment is based. Upon written request, the Company will promptly deliver a copy of each such certificate to the Holder and to the Company’s Transfer Agent.
          (h) Notice of Corporate Events . If the Company (i) declares a dividend or any other distribution of cash, securities or other property in respect of its Common Stock, including without limitation any granting of rights or warrants to subscribe for or purchase any capital stock of the Company or any Subsidiary, (ii) authorizes or approves, enters into any agreement contemplating or solicits stockholder approval for any Fundamental Transaction or (iii) authorizes the voluntary dissolution, liquidation or winding up of the affairs of the Company, then the Company shall deliver to the Holder a notice describing the material terms and conditions of such transaction, at least ten calendar days prior to the applicable record or effective date on which a Person would need to hold Common Stock in order to participate in or vote with respect to such transaction, and the Company will take all steps reasonably necessary in order to insure that the Holder is given the practical opportunity to exercise this Warrant prior to such time so as to participate in or vote with respect to such transaction; provided, however, that the failure to deliver such notice or any defect therein shall not affect the validity of the corporate action required to be described in such notice.
     10.  Payment of Exercise Price . The Holder shall pay the Exercise Price in immediately available funds (a “cash exercise”); provided, however, that if at any time after the date that is one (1) year after the date of this Warrant (the “ Required Effective Date ”) a Registration Statement covering the resale of the Warrant Shares is not effective on the Exercise Date, or no current prospectus under such Registration Statement is available, the Holder may satisfy its obligation to pay the Exercise Price through a “cashless exercise,” in which event the Company shall issue to the Holder the number of Warrant Shares determined as follows:
X = Y [(A-B)/A]
     where:

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X = the number of Warrant Shares to be issued to the Holder.
Y = the number of Warrant Shares with respect to which this Warrant is being exercised (prior to cashless exercise).
A = the average of the Closing Prices for the five Trading Days immediately prior to (but not including) the Exercise Date.
B = the Exercise Price.
          For purposes of Rule 144 promulgated under the Securities Act, it is intended, understood and acknowledged that the Warrant Shares issued in a cashless exercise transaction shall be deemed to have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this Warrant was originally issued pursuant to the Purchase Agreement.
     11.  Limitation on Exercise . 3
          (a) Notwithstanding anything to the contrary contained herein, the number of shares of Common Stock that may be acquired by the Holder upon any exercise of this Warrant (or otherwise in respect hereof) shall be limited to the extent necessary to insure that, following such exercise (or other issuance), the total number of shares of Common Stock then beneficially owned by such Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act, does not exceed 9.999% 4 (the “ Maximum Percentage ”) of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock issuable upon such exercise). For such purposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. The Company’s obligation to issue shares of Common Stock in excess of the limitation referred to in this Section shall be suspended (and shall not terminate or expire notwithstanding any contrary provisions hereof) until such time, if any, as such shares of Common Stock may be issued in compliance with such limitation, but in no event later than the Expiration Date. By written notice to the Company, the Holder may waive the provisions of this Section or increase or decrease the Maximum Percentage to any other percentage specified in such notice, but (i) any such waiver or increase will not be effective until the 61st day after such notice is delivered to the Company, and (ii) any such waiver or increase or decrease will apply only to the Holder and not to any other holder of Warrants.
     12.  Fractional Shares . The Company shall not be required to issue or cause to be issued fractional Warrant Shares on the exercise of this Warrant. If any fraction of a Warrant Share would, except for the provisions of this Section, be issuable upon exercise of this Warrant, the number of Warrant Shares to be issued will be rounded up to the nearest whole share.
 
3   This provision will not be included in any warrants issued to Radius Venture Partners II, L.P., Radius Venture Partners III, L.P. or their affiliates.
 
4   The percentage may be modified at the Investor’s request.

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     13.  Notices . Any and all notices or other communications or deliveries hereunder (including without limitation any Exercise Notice) shall be in writing and shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number specified in the Purchase Agreement prior to 6:30 p.m. (New York City time) on a Trading Day, (ii) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number specified in the Purchase Agreement on a day that is not a Trading Day or later than 6:30 p.m. (New York City time) on any Trading Day, (iii) the Trading Day following the date of mailing, if sent by nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given. The address for such notices or communications shall be as set forth in the Purchase Agreement.
     14.  Warrant Agent . The Company shall serve as warrant agent under this Warrant. Upon 30 days’ notice to the Holder, the Company may appoint a new warrant agent. Any corporation into which the Company or any new warrant agent may be merged or any corporation resulting from any consolidation to which the Company or any new warrant agent shall be a party or any corporation to which the Company or any new warrant agent transfers substantially all of its corporate trust or stockholders services business shall be a successor warrant agent under this Warrant without any further act. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed (by first class mail, postage prepaid) to the Holder at the Holder’s last address as shown on the Warrant Register.
     15.  Registration of Warrant Shares . The Warrant Shares shall be entitled to registration rights as set forth in the Purchase Agreement pursuant to which this Warrant was issued.
     16.  Miscellaneous .
          (a) Subject to the restrictions on transfer set forth on the first page hereof, this Warrant may be assigned by the Holder. This Warrant may not be assigned by the Company, except to a successor in the event of a Fundamental Transaction. This Warrant shall be binding on and inure to the benefit of the parties hereto and their respective successors and assigns. Subject to the preceding sentence, nothing in this Warrant shall be construed to give to any Person other than the Company and the Holder any legal or equitable right, remedy or cause of action under this Warrant.
          (b) The Company will not, by amendment of its governing documents or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, seek to call or redeem this Warrant or avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holder against dilution or other impairment. Without limiting the generality of the foregoing, the Company (i) will not increase the par value of any Warrant Shares above the amount payable therefor on such exercise, (ii) will take all such action as may be reasonably necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares, free from all taxes, liens, security interests, encumbrances, preemptive or similar rights and charges of stockholders

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(other than those imposed by the Investors), on the exercise of the Warrant, and (iii) will not close its stockholder books or records in any manner which interferes with the timely exercise of this Warrant.
          (c) Remedies; Specific Performance . The Company acknowledges and agrees that there would be no adequate remedy at law to the Holder of this Warrant in the event of any default or threatened default by the Company in the performance of or compliance with any of the terms of this Warrant and accordingly, the Company agrees that, in addition to any other remedy to which the Holder may be entitled at law or in equity, the Holder shall be entitled to seek to compel specific performance of the obligations of the Company under this Warrant, without the posting of any bond, in accordance with the terms and conditions of this Warrant in any court of the United States or any State thereof having jurisdiction, and if any action should be brought in equity to enforce any of the provisions of this Warrant, the Company shall not raise the defense that there is an adequate remedy at law. Except as otherwise provided by law, a delay or omission by the Holder hereof in exercising any right or remedy accruing upon any such breach shall not impair the right or remedy or constitute a waiver of or acquiescence in any such breach. No remedy shall be exclusive of any other remedy. All available remedies shall be cumulative.
          (d) Amendments and Waivers . The Company may, without the consent of the Holders, by supplemental agreement or otherwise, (i) make any changes or corrections in this Agreement that are required to cure any ambiguity or to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein or (ii) add to the covenants and agreements of the Company for the benefit of the Holders (including, without limitation, reduce the Exercise Price or extend the Expiration Date), or surrender any rights or power reserved to or conferred upon the Company in this Agreement; provided that, in the case of (i) or (ii), such changes or corrections shall not adversely affect the interests of Holders of then outstanding Warrants in any material respect. This Warrant may also be amended or waived with the consent of the Company and the Holder. Further, the Company may, with the consent, in writing or at a meeting, of the Holders (the “ Required Holders ”) of the then outstanding Warrants exercisable for two-thirds (2/3) or greater of the Common Stock eligible under such Warrants, amend in any way, by supplemental agreement or otherwise, this Warrant and/or all of the outstanding Warrants; provided, however, that (i) no such amendment by its express terms shall adversely affect any Holder differently than it affects all other Holders, unless such Holder consents thereto, and (ii) no such amendment concerning the number of Warrant Shares or Exercise Price shall be made unless any Holder who will be affected by such amendment consents thereto. If a new warrant agent is appointed by the Company, it shall at the request of the Company, and without need of independent inquiry as to whether such supplemental agreement is permitted by the terms of this Section 16(d) , join with the Company in the execution and delivery of any such supplemental agreements, but shall not be required to join in such execution and delivery for such supplemental agreement to become effective.
          (e) GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL . THE CORPORATE LAWS OF THE STATE OF NEW YORK SHALL GOVERN ALL ISSUES CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND ITS STOCKHOLDERS. ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL BE

10


 

GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE COMPANY AND INVESTORS HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN FOR THE ADJUDICATION OF ANY DISPUTE BROUGHT BY THE COMPANY OR ANY INVESTOR HEREUNDER, IN CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN, AND HEREBY IRREVOCABLY WAIVE, AND AGREE NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING BROUGHT BY THE COMPANY OR ANY INVESTOR, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, OR THAT SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. THE COMPANY AND INVESTORS HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY.
          (f) The headings herein are for convenience only, do not constitute a part of this Warrant and shall not be deemed to limit or affect any of the provisions hereof.
          (g) In case any one or more of the provisions of this Warrant shall be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Warrant shall not in any way be affected or impaired thereby and the parties will attempt in good faith to agree upon a valid and enforceable provision which shall be a commercially reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Warrant.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK,
SIGNATURE PAGE FOLLOWS]

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     IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its authorized officer as of the date first indicated above.
         
  BTHC VI, INC.
 
 
  By:      
    Name:      
    Title:      
 

 


 

FORM OF EXERCISE NOTICE
(To be executed by the Holder to exercise the right to purchase shares of Common Stock under the foregoing Warrant)
To: BTHC VI, INC.
The undersigned is the Holder of Warrant No.                      (the “Warrant”) issued by BTHC VI, Inc., a Delaware corporation (the “Company”). Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Warrant.
  (a)   The Warrant is currently exercisable to purchase a total of                      Warrant Shares.
 
  (b)   The undersigned Holder hereby exercises its right to purchase                      Warrant Shares pursuant to the Warrant.
 
  (c)   The Holder shall make Payment of the Exercise Price as follows (check one):
 
      o “Cash Exercise” under Section 10
 
      o “Cashless Exercise” under Section 10
 
  (d)   If the holder is making a Cash Exercise, the holder shall pay the sum of $                      to the Company in accordance with the terms of the Warrant.
 
  (e)   Pursuant to this exercise, the Company shall deliver to the holder                      Warrant Shares in accordance with the terms of the Warrant.
 
  (f)   Following this exercise, the Warrant shall be exercisable to purchase a total of                      Warrant Shares.
 
  (g)   Notwithstanding anything to the contrary contained herein, this Exercise Notice shall constitute a representation by the Holder that, after giving effect to the exercise provided for in this Exercise Notice, the Holder (together with its affiliates) will not have beneficial ownership (together with the beneficial ownership of such Person’s affiliates) of a number of shares of Common Stock which exceeds the Maximum Percentage of the total outstanding shares of Common Stock as determined pursuant to the provisions of Section 11(a) of the Warrant.
                     
Dated:                      ,             Name of Holder:    
 
                   
        (Print)  
 
   
 
                   
        By:  
 
   
 
          Name:  
 
   
 
          Title:  
 
   
        (Signature must conform in all respects to name of holder as specified on the face of the Warrant)    

 


 

FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Warrant]
     FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                                          the right represented by the within Warrant to purchase                                  shares of Common Stock of BTHC VI, Inc. to which the within Warrant relates and appoints                      attorney to transfer said right on the books of BTHC VI, Inc. with full power of substitution in the premises.
             
Dated:                      ,      
           
 
           
 
     
 
   
 
      (Signature must conform in all respects to name of holder as specified on the face of the Warrant)    
 
           
 
     
 
   
 
      Address of Transferee    
 
           
 
     
 
   
 
           
 
     
 
   
 
           
In the presence of:
           
 
           
 
           
 
           

 


 

Exhibit A
Black Scholes Option Pricing formula to be used when calculating the value of each new warrant to purchase one Acquirer Share shall be:
C Acq = S Acq e -λ(TAcq-tAcq) N(d 1 ) — K Acq e -r(TAcq-tAcq) N(d 2 ), where
C Acq = value of each warrant to purchase one Acquirer Share
S Acq = price of one Acquirer Share as determined by reference to the average of the closing prices on the securities exchange over the 20-day period ending three trading days prior to the closing of the Fundamental Transaction described in Section 9(d) if the Acquirer Shares are then traded on such exchange, or the average of the closing bid or sale prices (whichever is applicable) in the over-the-counter market over the 20-day period ending three trading days prior to the closing of the Fundamental Transaction if the Acquirer Shares are then actively traded in the over-the-counter market, or the then most recently completed financing if the Acquirer Shares are not then traded on a securities exchange or in the over-the-counter market
T Acq = expiration date of new warrants to purchase Acquirer Shares = T Corp
t Acq = date of issue of new warrants to purchase Acquirer Shares
T Acq -t Acq = time until warrant expiration, expressed in years
s = volatility = annualized standard deviation of daily log-returns (using a 262-day annualization factor) of the price of Acquirer Shares on the securities exchange over a 20-day trading period, determined by the Holders, that is within the 100-day trading period ending on the trading day immediately after the public announcement of the Fundamental Transaction described in Section 9(d) if the Acquirer Shares are then traded on such exchange, or the annualized standard deviation of daily-log returns (using a 262-day annualization factor) of the closing bid or sale prices (whichever is applicable) in the over-the-counter market over a 20-day trading period, determined by the Holders, that is within the 100-day trading period ending on the trading day immediately after the public announcement of the Fundamental Transaction if the Acquirer Shares are then actively traded in the over-the-counter market, or 0.6 (or 60%) if the Acquirer Shares are not then traded on a securities exchange or in the over-the-counter market.
N = cumulative normal distribution function
d 1 = (ln(S Acq /K Acq ) + (r-λ+s 2 /2)(T Acq -t Acq )) ÷ (sv(T Acq -t Acq ))
ln = natural logarithm
λ = dividend rate on the Acquirer Shares for the most recent 12-month period at the time of closing of the Fundamental Transaction.
K Acq = strike price of new warrants to purchase Acquirer Shares = K Corp * (S Acq / S Corp )
r = annual yield, as reported by Bloomberg at time t Acq , of the United States Treasury security measuring the nearest time T Acq
d 2 = d 1 - sv(T Acq -t Acq )

 


 

Exhibit B
Black Scholes Option Pricing formula to be used when calculating the value of each Warrant to purchase one share of Common Stock shall be:
C Corp = S Corp e -λ(TCorp-tCorp) N(d 1 ) — K Corp e -r(TCorp-tCorp) N(d 2 ), where
C Corp = value of each Warrant to purchase one share of Common Stock
S Corp = price of Common Stock as determined by reference to the average of the closing prices on the securities exchange over the 20-day period ending three trading days prior to the closing of the Fundamental Transaction described in Section 9(d) if the Common Stock is then traded on such exchange, or the average of the closing bid or sale prices (whichever is applicable) in the over-the-counter market over the 20-day period ending three trading days prior to the closing of the Fundamental transaction if the Common Stock is then actively traded in the over-the-counter market, or the then most recently completed financing if the Common Stock is not then traded on a securities exchange or in the over-the-counter market
T Corp = expiration date of Warrants to purchase shares of Common Stock
t Corp = date of public announcement of Fundamental Transaction
T Corp -t Corp = time until Warrant expiration, expressed in years
s = volatility = the annualized standard deviation of daily log-returns (using a 262-day annualization factor) of the price of Common Stock on the securities exchange over a 20-day trading period, determined by the Holders, that is within the 100-day trading period ending on the trading day immediately after the public announcement of the Fundamental Transaction described in Section 9(d) if the Common Stock is then traded on such exchange, or the annualized standard deviation of daily-log returns (using a 262-day annualization factor) of the closing bid or sale prices (whichever is applicable) in the over-the-counter market over a 20-day trading period, determined by the Holders, that is within the 100-day trading period ending on the trading day immediately after the public announcement of the Fundamental Transaction if the Common Stock is then actively traded in the over-the-counter market, or 0.6 (or 60%) if the Common Stock is not then traded on a securities exchange or in the over-the-counter market.
N = cumulative normal distribution function
d 1 = (ln(S Corp /K Corp ) + (r-λ+s 2 /2)(T Corp -t Corp )) ÷ (sv(T Corp -t Corp ))
ln = natural logarithm
λ = dividend rate on the Common Stock for the most recent 12-month period at the time of closing of the Fundamental Transaction.
K Corp = strike price of warrant
r = annual yield, as reported by Bloomberg at time t Corp , of the United States Treasury security measuring the nearest time T Corp
d 2 = d1- sv(T Corp -t Corp )

 

 

EXHIBIT 4.2
NEITHER THESE SECURITIES NOR THE SECURITIES FOR WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH RULE 144 UNDER SUCH ACT OR THE ISSUER RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO THE ISSUER, STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACTS.
BTHC VI, INC.
FORM OF WARRANT
     
Warrant No. [___]   Dated: [_______], 2007
     BTHC VI, Inc., a Delaware corporation (the “ Company ”), hereby certifies that, for value received, __________________ [Name of Holder] or its registered assigns (the “ Holder ”), is entitled to purchase from the Company up to a total of [_____] 1 shares of common stock, $0.001 par value per share (the “ Common Stock ”), of the Company (each such share, a “ Warrant Share ” and all such shares issuable under the warrants, the “ Warrant Shares ”) at an exercise price equal to $6.00 per share (as adjusted from time to time as provided in Section 9, the “ Exercise Price ”), at any time and from the date hereof and through and including the date that is five (5) years from the date of issuance hereof (the “ Expiration Date ”), and subject to the following terms and conditions. This Warrant (“ Warrant ”) is one of a series of similar warrants issued pursuant to that certain Securities Purchase Agreement, dated as of [______], 2007, by and among the Company, Athersys, Inc. and the Investors identified therein (the “ Purchase Agreement ”). All such warrants are referred to herein, collectively, as the “ Warrants ” and the holders thereof along with the Holder named herein, the “ Holders .”
     1.  Definitions . In addition to the terms defined elsewhere in this Warrant, capitalized terms that are not otherwise defined herein have the meanings given to such terms in the Purchase Agreement.
     2.  Registration of Warrant . The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “ Warrant Register ”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.
     3.  Registration of Transfers . The Company shall register the transfer of any portion of this Warrant in the Warrant Register, upon surrender of this Warrant, with the Form of Assignment attached hereto duly completed and signed, to the Transfer Agent or to the Company
 
1   25% warrant coverage

1


 

at its address specified herein. Upon any such registration or transfer, a new warrant to purchase Common Stock, in substantially the form of this Warrant (any such new warrant, a “ New Warrant ”), evidencing the portion of this Warrant so transferred shall be issued to the transferee and a New Warrant evidencing the remaining portion of this Warrant not so transferred, if any, shall be issued to the transferring Holder. The acceptance of the New Warrant by the transferee thereof shall be deemed the acceptance by such transferee of all of the rights and obligations of a holder of a Warrant.
     4.  Exercise and Duration of Warrants .
          (a) This Warrant shall be exercisable by the registered Holder at any time and from time to time on or after the date hereof to and including the Expiration Date. At 6:30 P.M., New York City time on the Expiration Date, the portion of this Warrant not exercised prior thereto shall be and become void and of no value; provided that, if the average of the Closing Prices for the five Trading Days immediately prior to (but not including) the Expiration Date exceeds the Exercise Price on the Expiration Date, provided further that, if on the Expiration Date, there is no effective Registration Statement covering the resale of the Warrant Shares, or no current prospectus under such Registration Statement is available, then this Warrant shall be deemed to have been exercised in full (to the extent not previously exercised) on a “cashless exercise” basis at 6:30 P.M. New York City time on the Expiration Date. A “cashless exercise” means that in lieu of paying the aggregate purchase price for the shares being purchased upon exercise of the Warrants in cash, the Holder will forfeit a number of shares underlying the Warrants pursuant to Section 10 below.
          (b) A Holder may exercise this Warrant by delivering to the Company (i) an exercise notice, in the form attached hereto (the “ Exercise Notice ”), appropriately completed and duly signed, and (ii) payment of the Exercise Price for the number of Warrant Shares as to which this Warrant is being exercised (which may take the form of a “cashless exercise” if so indicated in the Exercise Notice pursuant to Section 10 below), and the date such items are delivered to the Company (as determined in accordance with the notice provisions hereof) is an “ Exercise Date .” The Holder shall not be required to deliver the original Warrant in order to effect an exercise hereunder. Execution and delivery of the Exercise Notice shall have the same effect as cancellation of the original Warrant and issuance of a New Warrant evidencing the right to purchase the remaining number of Warrant Shares.
          (c) Exercise Disputes . In the case of any dispute with respect to the number of shares to be issued upon exercise of this Warrant, the Company shall promptly issue such number of shares of Common Stock that is not disputed and shall submit the disputed determinations or arithmetic calculations to the Holder via facsimile within two (2) Business Days of receipt of the Holder’s election to purchase Warrant Shares. If the Holder and the Company are unable to agree as to the determination of the Purchase Price within two (2) Business Days of such disputed determination or arithmetic calculation being submitted to the Holder, then the Company shall in accordance with this Section, submit via facsimile the disputed determination to an independent reputable accounting firm of national standing, selected jointly by the Company and the Holder. The Company shall cause such accounting firm to perform the determinations or calculations and notify the Company and the Holder of the results within forty-eight (48) hours from the time it receives the disputed determinations of

2


 

calculations. Such accounting firm’s determination shall be binding upon all parties absent manifest error. The Company shall then on the next Business Day issue certificate(s) representing the appropriate number of Warrant Shares of Common Stock in accordance with such accounting firm’s determination and this Section. The prevailing party shall be entitled to reimbursement of all fees and expenses of such determination and calculation.
     5.  Delivery of Warrant Shares .
          (a) Upon exercise of this Warrant, the Company shall promptly (but in no event later than three Trading Days after the Exercise Date) issue or cause to be issued and cause to be delivered to or upon the written order of the Holder and in such name or names as the Holder may designate, a certificate for the Warrant Shares issuable upon such exercise, free of restrictive legends unless a registration statement covering the resale of the Warrant Shares and naming the Holder as a selling stockholder thereunder is not then effective and the Warrant Shares are not freely transferable without volume restrictions pursuant to Rule 144 under the Securities Act of 1933, as amended. The Holder, or any Person so designated by the Holder to receive Warrant Shares, shall be deemed to have become holder of record of such Warrant Shares as of the Exercise Date. The Company shall, upon request of the Holder, use its best efforts to deliver Warrant Shares hereunder electronically through the Depository Trust Corporation or another established clearing corporation performing similar functions.
          (b) This Warrant is exercisable, either in its entirety or, from time to time, for a portion of the number of Warrant Shares. Upon surrender of this Warrant following one or more partial exercises, the Company shall issue or cause to be issued, at its expense, a New Warrant evidencing the right to purchase the remaining number of Warrant Shares.
          (c) In addition to any other rights available to a Holder, if the Company fails to deliver to the Holder a certificate representing Warrant Shares by the third Trading Day after the date on which delivery of such certificate is required by this Warrant, and if after such third Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares that the Holder anticipated receiving from the Company (a “ Buy-In ”), then the Company shall, within three Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased (the “ Buy-In Price ”), at which point the Company’s obligation to deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to the Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Stock, times (B) the Closing Price on the date of the event giving rise to the Company’s obligation to deliver such certificate.
          (d) The Company’s obligations to issue and deliver Warrant Shares in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach

3


 

by the Holder or any other Person of any obligation to the Company or any violation or alleged violation of law by the Holder or any other Person, and irrespective of any other circumstance which might otherwise limit such obligation of the Company to the Holder in connection with the issuance of Warrant Shares. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.
     6.  Charges, Taxes and Expenses . Issuance and delivery of certificates for shares of Common Stock upon exercise of this Warrant shall be made without charge to the Holder for any issue or transfer tax, withholding tax, transfer agent fee or other incidental tax or expense in respect of the issuance of such certificates, all of which taxes and expenses shall be paid by the Company; provided, however, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the registration of any certificates for Warrant Shares or Warrants in a name other than that of the Holder. The Holder shall be responsible for all other tax liability that may arise as a result of holding or transferring this Warrant or receiving Warrant Shares upon exercise hereof.
     7.  Replacement of Warrant . If this Warrant is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation hereof, or in lieu of and substitution for this Warrant, a New Warrant, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction and customary and reasonable bond or indemnity, if requested. Applicants for a New Warrant under such circumstances shall also comply with such other reasonable regulations and procedures and pay such other reasonable third-party costs as the Company may prescribe.
     8.  Reservation of Warrant Shares . The Company covenants that it will at all times reserve and keep available out of the aggregate of its authorized but unissued and otherwise unreserved Common Stock, solely for the purpose of enabling it to issue Warrant Shares upon exercise of this Warrant as herein provided, 100% of the number of Warrant Shares which are then issuable and deliverable upon the exercise of this entire Warrant, free from preemptive rights or any other contingent purchase rights of persons other than the Holder (after giving effect to the adjustments and restrictions of Section 9 , if any). The Company covenants that all Warrant Shares so issuable and deliverable shall, upon issuance and the payment of the applicable Exercise Price in accordance with the terms hereof, be duly and validly authorized, issued and fully paid and nonassessable. The Company will take all such action as may be necessary to assure that such shares of Common Stock may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of any securities exchange or automated quotation system upon which the Common Stock may be listed.
     9.  Certain Adjustments . The Exercise Price and number of Warrant Shares issuable upon exercise of this Warrant are subject to adjustment from time to time as set forth in this Section 9 .
          (a) Stock Dividends and Splits . If the Company, at any time while this Warrant is outstanding, (i) pays a stock dividend on its Common Stock or otherwise makes a

4


 

distribution on any class of capital stock that is payable in shares of Common Stock, (ii) subdivides outstanding shares of Common Stock into a larger number of shares, or (iii) combines outstanding shares of Common Stock into a smaller number of shares, then in each such case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to clause (i) of this paragraph shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution, and any adjustment pursuant to clause (ii) or (iii) of this paragraph shall become effective immediately after the effective date of such subdivision or combination.
          (b) Distributions Made Prior to Exercise . If the Company, at any time while this Warrant is outstanding, distributes to holders of Common Stock (i) evidences of its indebtedness, (ii) any security (other than a distribution of Common Stock covered by Section 9(a)), (iii) rights or warrants to subscribe for or purchase any security, or (iv) any other asset (in each case, a “ Distribution ”), then in each such case any Exercise Price in effect immediately prior to the close of business on the record date fixed for the determination of holders of Common Stock entitled to receive the Distribution shall be reduced, effective as of the close of business on such record date, to a price determined by multiplying such Exercise Price by a fraction of which (i) the numerator shall be the Weighted Average Price 2 of the Common Stock on the Trading Day immediately preceding such record date minus the value of the Distribution (as determined in good faith by the Company’s Board of Directors) applicable to one share of Common Stock, and (ii) the denominator shall be the Weighted Average Price of the Common Stock on the Trading Day immediately preceding such record date.
          (c) Notwithstanding the provisions set forth in Section 9(b) above, if the Company, at any time while this Warrant is outstanding, makes a Distribution to the holders of Common Stock, then in each such case the Holder shall have the option to receive such Distribution which would have been made to the Holder had such Holder been the holder of such Warrant Shares on the record date for the determination of stockholders entitled to such Distribution; provided, however, if the Holder elects to receive such Distribution, it will not be entitled to receive the adjustment to the Exercise Price specified in clause (b) above.
          (d) Fundamental Transactions . If, at any time while this Warrant is outstanding, (i) the Company effects any merger or consolidation of the Company with or into
 
2   “Weighted Average Price” means, for any security as of any date, the dollar volume-weighted average price for such security on NASDAQ during the period beginning at 9:30:01 a.m., New York Time (or such other time as NASDAQ publicly announces is the official open of trading), and ending at 4:00:00 p.m., New York Time (or such other time as NASDAQ publicly announces is the official close of trading) as reported by Bloomberg (means Bloomberg Financial Markets) through its “Volume at Price” functions, or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York Time (or such other time as such Principal Market publicly announces is the official open of trading), and ending at 4:00:00 p.m., New York Time (or such other time as such market publicly announces is the official close of trading) as reported by Bloomberg, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported in the “pink sheets” by Pink Sheets LLC (formerly the National Quotation Bureau, Inc.). If the Weighted Average Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Weighted Average Price of such security on such date shall be the fair market value as mutually determined by the Company in good faith. All such determinations shall be appropriately adjusted for any share dividend, share split, share combination or other similar transaction during the applicable calculation period.

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(whether or not the Company is the surviving corporation) another Person, (ii) the Company effects any sale, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions; provided, however, that for avoidance of doubt, the granting of a lien on all or substantially all of the Company’s assets as collateral shall not be deemed a Fundamental Transaction hereunder, (iii) the Company allows another Person to make a purchase, tender or exchange offer that is accepted by the holders of more than the 50% of either the outstanding shares of Common Stock (not including any shares of Common Stock held by the Person or Persons making or party to, or associated or affiliated with the Persons making or party to, such purchase, tender or exchange offer), (iv) the Company consummates a stock purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than the 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock purchase agreement or other business combination), or (v) the Company effects any reclassification of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by Section 9(a) above) (in any such case, a “ Fundamental Transaction ”), then the Company shall use its reasonable best efforts to ensure that lawful and adequate provision shall be made whereby each Holder shall thereafter continue to have the right to purchase and receive upon the basis and upon the terms and conditions herein specified and in lieu of the Warrant Shares issuable upon exercise of the Warrants held by such Holder, shares of capital stock or similar equity interests (“ Acquirer Shares ”) in the surviving or acquiring entity (“ Acquirer ”), as the case may be, such that the aggregate value of the Holder’s warrants to purchase such number of Acquirer Shares, where the value of each new warrant to purchase one Acquirer Share is determined in accordance with the Black-Scholes Option Pricing formula set forth in Exhibit A hereto, is equivalent to the aggregate value of the Warrants held by such Holder, where the value of each Warrant to purchase one share in the Company is determined in accordance with the Black-Scholes Option Pricing formula set forth Exhibit B hereto. Furthermore, the new warrants to purchase Acquirer Shares referred to herein shall have the same expiration date as the Warrants, and shall have a strike price, KAcq, that is calculated in accordance with Exhibit A hereto. Moreover, appropriate provision shall be made with respect to the rights and interests of each Holder to the end that the provisions hereof (including, without limitation, provision for adjustment of the Exercise Price) shall thereafter be applicable, as nearly equivalent as may be practicable in relation to any Acquirer Shares thereafter deliverable upon the exercise thereof. The provisions of this Section 9(d) shall similarly apply to successive Fundamental Transactions. If the Company, in spite of using its reasonable best efforts, is unable to cause these Warrants to continue in full force and effect until the Expiration Date in connection with any Fundamental Transaction, then the Company shall pay the Holders in cash an amount per Warrant to purchase one share of Common Stock in the Company that is calculated in accordance with the Black-Scholes Option Pricing formula set forth in Exhibit B hereto.
          (e) Number of Warrant Shares . Simultaneously with any adjustment to the Exercise Price pursuant to paragraph (a) of this Section, the number of Warrant Shares that may be purchased upon exercise of this Warrant shall be increased or decreased proportionately, as

6


 

applicable, so that after such adjustment the aggregate Exercise Price payable hereunder for the increased or decreased, as applicable, number of Warrant Shares shall be the same as the aggregate Exercise Price in effect immediately prior to such adjustment.
          (f) Calculations . All calculations under this Section 9 shall be made to the nearest cent or the nearest 1/100th of a share, as applicable. The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the Company, and the disposition of any such shares shall be considered an issue or sale of Common Stock.
          (g) Notice of Adjustments . Upon the occurrence of each adjustment pursuant to this Section 9 , the Company at its expense will promptly compute such adjustment in accordance with the terms of this Warrant and prepare a certificate setting forth such adjustment, including a statement of the adjusted Exercise Price and adjusted number or type of Warrant Shares or other securities issuable upon exercise of this Warrant (as applicable), describing the transactions giving rise to such adjustments and showing in detail the facts upon which such adjustment is based. Upon written request, the Company will promptly deliver a copy of each such certificate to the Holder and to the Company’s Transfer Agent.
          (h) Notice of Corporate Events . If the Company (i) declares a dividend or any other distribution of cash, securities or other property in respect of its Common Stock, including without limitation any granting of rights or warrants to subscribe for or purchase any capital stock of the Company or any Subsidiary, (ii) authorizes or approves, enters into any agreement contemplating or solicits stockholder approval for any Fundamental Transaction or (iii) authorizes the voluntary dissolution, liquidation or winding up of the affairs of the Company, then the Company shall deliver to the Holder a notice describing the material terms and conditions of such transaction, at least ten calendar days prior to the applicable record or effective date on which a Person would need to hold Common Stock in order to participate in or vote with respect to such transaction, and the Company will take all steps reasonably necessary in order to insure that the Holder is given the practical opportunity to exercise this Warrant prior to such time so as to participate in or vote with respect to such transaction; provided, however, that the failure to deliver such notice or any defect therein shall not affect the validity of the corporate action required to be described in such notice.
     10.  Payment of Exercise Price . The Holder shall either (i) pay the Exercise Price in immediately available funds (a “cash exercise”) or (ii) satisfy its obligation to pay the Exercise Price through a “cashless exercise,” in which event the Company shall issue to the Holder the number of Warrant Shares determined as follows:
     
 
  X = Y [(A-B)/A]
where:
   
 
  X = the number of Warrant Shares to be issued to the Holder.
 
   
 
  Y = the number of Warrant Shares with respect to which this Warrant is being exercised (prior to cashless exercise).
 
   
 
  A = the average of the Closing Prices for the five Trading Days

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  immediately prior to (but not including) the Exercise Date.
 
   
 
  B = the Exercise Price.
          For purposes of Rule 144 promulgated under the Securities Act, it is intended, understood and acknowledged that the Warrant Shares issued in a cashless exercise transaction shall be deemed to have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this Warrant was originally issued pursuant to the Purchase Agreement.
     11.  Fractional Shares . The Company shall not be required to issue or cause to be issued fractional Warrant Shares on the exercise of this Warrant. If any fraction of a Warrant Share would, except for the provisions of this Section, be issuable upon exercise of this Warrant, the number of Warrant Shares to be issued will be rounded up to the nearest whole share.
     12.  Notices . Any and all notices or other communications or deliveries hereunder (including without limitation any Exercise Notice) shall be in writing and shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number specified in the Purchase Agreement prior to 6:30 p.m. (New York City time) on a Trading Day, (ii) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number specified in the Purchase Agreement on a day that is not a Trading Day or later than 6:30 p.m. (New York City time) on any Trading Day, (iii) the Trading Day following the date of mailing, if sent by nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given. The address for such notices or communications shall be as set forth in the Purchase Agreement.
     13.  Warrant Agent . The Company shall serve as warrant agent under this Warrant. Upon 30 days’ notice to the Holder, the Company may appoint a new warrant agent. Any corporation into which the Company or any new warrant agent may be merged or any corporation resulting from any consolidation to which the Company or any new warrant agent shall be a party or any corporation to which the Company or any new warrant agent transfers substantially all of its corporate trust or stockholders services business shall be a successor warrant agent under this Warrant without any further act. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed (by first class mail, postage prepaid) to the Holder at the Holder’s last address as shown on the Warrant Register.
     14.  Registration of Warrant Shares . The Warrant Shares shall be entitled to registration rights as set forth in the Purchase Agreement pursuant to which this Warrant was issued.
     15.  Miscellaneous .
          (a) Subject to the restrictions on transfer set forth on the first page hereof, this Warrant may be assigned by the Holder. This Warrant may not be assigned by the Company, except to a successor in the event of a Fundamental Transaction. This Warrant shall be binding on and inure to the benefit of the parties hereto and their respective successors and assigns.

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Subject to the preceding sentence, nothing in this Warrant shall be construed to give to any Person other than the Company and the Holder any legal or equitable right, remedy or cause of action under this Warrant.
          (b) The Company will not, by amendment of its governing documents or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, seek to call or redeem this Warrant or avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holder against dilution or other impairment. Without limiting the generality of the foregoing, the Company (i) will not increase the par value of any Warrant Shares above the amount payable therefor on such exercise, (ii) will take all such action as may be reasonably necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares, free from all taxes, liens, security interests, encumbrances, preemptive or similar rights and charges of stockholders (other than those imposed by the Investors), on the exercise of the Warrant, and (iii) will not close its stockholder books or records in any manner which interferes with the timely exercise of this Warrant.
          (c) Remedies; Specific Performance . The Company acknowledges and agrees that there would be no adequate remedy at law to the Holder of this Warrant in the event of any default or threatened default by the Company in the performance of or compliance with any of the terms of this Warrant and accordingly, the Company agrees that, in addition to any other remedy to which the Holder may be entitled at law or in equity, the Holder shall be entitled to seek to compel specific performance of the obligations of the Company under this Warrant, without the posting of any bond, in accordance with the terms and conditions of this Warrant in any court of the United States or any State thereof having jurisdiction, and if any action should be brought in equity to enforce any of the provisions of this Warrant, the Company shall not raise the defense that there is an adequate remedy at law. Except as otherwise provided by law, a delay or omission by the Holder hereof in exercising any right or remedy accruing upon any such breach shall not impair the right or remedy or constitute a waiver of or acquiescence in any such breach. No remedy shall be exclusive of any other remedy. All available remedies shall be cumulative.
          (d) Amendments and Waivers . The Company may, without the consent of the Holders, by supplemental agreement or otherwise, (i) make any changes or corrections in this Agreement that are required to cure any ambiguity or to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein or (ii) add to the covenants and agreements of the Company for the benefit of the Holders (including, without limitation, reduce the Exercise Price or extend the Expiration Date), or surrender any rights or power reserved to or conferred upon the Company in this Agreement; provided that, in the case of (i) or (ii), such changes or corrections shall not adversely affect the interests of Holders of then outstanding Warrants in any material respect. This Warrant may also be amended or waived with the consent of the Company and the Holder. Further, the Company may, with the consent, in writing or at a meeting, of the Holders (the “ Required Holders ”) of the then outstanding Warrants exercisable for two-thirds (2/3) or greater of the Common Stock eligible under such Warrants, amend in any way, by supplemental agreement or otherwise, this Warrant

9


 

and/or all of the outstanding Warrants; provided, however, that (i) no such amendment by its express terms shall adversely affect any Holder differently than it affects all other Holders, unless such Holder consents thereto, and (ii) no such amendment concerning the number of Warrant Shares or Exercise Price shall be made unless any Holder who will be affected by such amendment consents thereto. If a new warrant agent is appointed by the Company, it shall at the request of the Company, and without need of independent inquiry as to whether such supplemental agreement is permitted by the terms of this Section 15(d) , join with the Company in the execution and delivery of any such supplemental agreements, but shall not be required to join in such execution and delivery for such supplemental agreement to become effective.
          (e) GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL . THE CORPORATE LAWS OF THE STATE OF NEW YORK SHALL GOVERN ALL ISSUES CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND ITS STOCKHOLDERS. ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE COMPANY AND INVESTORS HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN FOR THE ADJUDICATION OF ANY DISPUTE BROUGHT BY THE COMPANY OR ANY INVESTOR HEREUNDER, IN CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN, AND HEREBY IRREVOCABLY WAIVE, AND AGREE NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING BROUGHT BY THE COMPANY OR ANY INVESTOR, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, OR THAT SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. THE COMPANY AND INVESTORS HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY.
          (f) The headings herein are for convenience only, do not constitute a part of this Warrant and shall not be deemed to limit or affect any of the provisions hereof.
          (g) In case any one or more of the provisions of this Warrant shall be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Warrant shall not in any way be affected or impaired thereby and the parties will attempt in good faith to agree upon a valid and enforceable provision which shall be a commercially reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Warrant.

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     IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its authorized officer as of the date first indicated above.
         
  BTHC VI, INC.
 
 
  By:      
    Name:      
    Title:      

 


 

         
FORM OF EXERCISE NOTICE
(To be executed by the Holder to exercise the right to purchase shares of Common Stock under the foregoing Warrant)
To: BTHC VI, INC.
The undersigned is the Holder of Warrant No. ________ (the “Warrant”) issued by BTHC VI, Inc., a Delaware corporation (the “Company”). Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Warrant.
  (a)   The Warrant is currently exercisable to purchase a total of ______________ Warrant Shares.
 
  (b)   The undersigned Holder hereby exercises its right to purchase _____________ Warrant Shares pursuant to the Warrant.
 
  (c)   The Holder shall make Payment of the Exercise Price as follows (check one):
 
            o       “Cash Exercise” under Section 10
 
            o       “Cashless Exercise” under Section 10
 
  (d)   If the holder is making a Cash Exercise, the holder shall pay the sum of $________ to the Company in accordance with the terms of the Warrant.
 
  (e)   Pursuant to this exercise, the Company shall deliver to the holder ________ Warrant Shares in accordance with the terms of the Warrant.
 
  (f)   Following this exercise, the Warrant shall be exercisable to purchase a total of ________ Warrant Shares.
 
  (g)   Notwithstanding anything to the contrary contained herein, this Exercise Notice shall constitute a representation by the Holder that, after giving effect to the exercise provided for in this Exercise Notice, the Holder (together with its affiliates) will not have beneficial ownership (together with the beneficial ownership of such Person’s affiliates) of a number of shares of Common Stock which exceeds the Maximum Percentage of the total outstanding shares of Common Stock as determined pursuant to the provisions of Section 11(a) of the Warrant.
         
Dated: _____________, _____ Name of Holder:

(Print) _______________________________________
 
 
  By:      
    Name:      
    Title:      
    (Signature must conform in all respects to name of holder as specified on the face of the Warrant)   

 


 

         
FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Warrant]
     FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto ________________ the right represented by the within Warrant to purchase ________ shares of Common Stock of BTHC VI, Inc. to which the within Warrant relates and appoints _________________ attorney to transfer said right on the books of BTHC VI, Inc. with full power of substitution in the premises.
Dated: ____________, ______
         
     
     
  (Signature must conform in all respects to name of holder as specified on the face of the Warrant)


 
  Address of Transferee 


 
   


 
   


 
 
In the presence of:


                                                                                   

 


 

Exhibit A
Black Scholes Option Pricing formula to be used when calculating the value of each new warrant to purchase one Acquirer Share shall be:
C Acq = S Acq e -λ(TAcq-tAcq) N(d 1 ) — K Acq e -r(TAcq-tAcq) N(d 2 ), where
C Acq = value of each warrant to purchase one Acquirer Share
S Acq = price of one Acquirer Share as determined by reference to the average of the closing prices on the securities exchange over the 20-day period ending three trading days prior to the closing of the Fundamental Transaction described in Section 9(d) if the Acquirer Shares are then traded on such exchange, or the average of the closing bid or sale prices (whichever is applicable) in the over-the-counter market over the 20-day period ending three trading days prior to the closing of the Fundamental Transaction if the Acquirer Shares are then actively traded in the over-the-counter market, or the then most recently completed financing if the Acquirer Shares are not then traded on a securities exchange or in the over-the-counter market
T Acq = expiration date of new warrants to purchase Acquirer Shares = T Corp
t Acq = date of issue of new warrants to purchase Acquirer Shares
T Acq -t Acq = time until warrant expiration, expressed in years
s = volatility = annualized standard deviation of daily log-returns (using a 262-day annualization factor) of the price of Acquirer Shares on the securities exchange over a 20-day trading period, determined by the Holders, that is within the 100-day trading period ending on the trading day immediately after the public announcement of the Fundamental Transaction described in Section 9(d) if the Acquirer Shares are then traded on such exchange, or the annualized standard deviation of daily-log returns (using a 262-day annualization factor) of the closing bid or sale prices (whichever is applicable) in the over-the-counter market over a 20-day trading period, determined by the Holders, that is within the 100-day trading period ending on the trading day immediately after the public announcement of the Fundamental Transaction if the Acquirer Shares are then actively traded in the over-the-counter market, or 0.6 (or 60%) if the Acquirer Shares are not then traded on a securities exchange or in the over-the-counter market.
N = cumulative normal distribution function
d 1 = (ln(S Acq /K Acq ) + (r-λ+s 2 /2)(T Acq -t Acq )) ÷ (sv(T Acq -t Acq ))
ln = natural logarithm
λ = dividend rate on the Acquirer Shares for the most recent 12-month period at the time of closing of the Fundamental Transaction.
K Acq = strike price of new warrants to purchase Acquirer Shares = K Corp * (S Acq / S Corp )
r = annual yield, as reported by Bloomberg at time t Acq , of the United States Treasury security measuring the nearest time T Acq
d 2 = d 1 - sv(T Acq -t Acq )

 


 

Exhibit B
Black Scholes Option Pricing formula to be used when calculating the value of each Warrant to purchase one share of Common Stock shall be:
C Corp = S Corp e- λ(TCorp-tCorp) N(d 1 ) — K Corp e- r(TCorp-tCorp) N(d 2 ), where
C Corp = value of each Warrant to purchase one share of Common Stock
S Corp = price of Common Stock as determined by reference to the average of the closing prices on the securities exchange over the 20-day period ending three trading days prior to the closing of the Fundamental Transaction described in Section 9(d) if the Common Stock is then traded on such exchange, or the average of the closing bid or sale prices (whichever is applicable) in the over-the-counter market over the 20-day period ending three trading days prior to the closing of the Fundamental transaction if the Common Stock is then actively traded in the over-the-counter market, or the then most recently completed financing if the Common Stock is not then traded on a securities exchange or in the over-the-counter market
T Corp = expiration date of Warrants to purchase shares of Common Stock
t Corp = date of public announcement of Fundamental Transaction
T Corp -t Corp = time until Warrant expiration, expressed in years
s = volatility = the annualized standard deviation of daily log-returns (using a 262-day annualization factor) of the price of Common Stock on the securities exchange over a 20-day trading period, determined by the Holders, that is within the 100-day trading period ending on the trading day immediately after the public announcement of the Fundamental Transaction described in Section 9(d) if the Common Stock is then traded on such exchange, or the annualized standard deviation of daily-log returns (using a 262-day annualization factor) of the closing bid or sale prices (whichever is applicable) in the over-the-counter market over a 20-day trading period, determined by the Holders, that is within the 100-day trading period ending on the trading day immediately after the public announcement of the Fundamental Transaction if the Common Stock is then actively traded in the over-the-counter market, or 0.6 (or 60%) if the Common Stock is not then traded on a securities exchange or in the over-the-counter market.
N = cumulative normal distribution function
d 1 = (ln(S Corp /K Corp ) + (r-λ+s 2 /2)(T Corp -t Corp )) ÷ (sv(T Corp -t Corp ))
ln = natural logarithm
λ = dividend rate on the Common Stock for the most recent 12-month period at the time of closing of the Fundamental Transaction.
K Corp = strike price of warrant
r = annual yield, as reported by Bloomberg at time t Corp , of the United States Treasury security measuring the nearest time T Corp
d 2 = d1- sv(T Corp -t Corp )

 

 

EXHIBIT 4.3
NEITHER THESE SECURITIES NOR THE SECURITIES FOR WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH RULE 144 UNDER SUCH ACT OR THE ISSUER RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO THE ISSUER, STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACTS.
BTHC VI, INC.
FORM OF WARRANT
     
Warrant No. [___]
  Dated: [______], 2007
     BTHC VI, Inc., a Delaware corporation (the “ Company ”), hereby certifies that, for value received, ___[Name of Holder] or its registered assigns (the “ Holder ”), is entitled to purchase from the Company up to a total of [___] 1 shares of common stock, $0.001 par value per share (the “ Common Stock ”), of the Company (each such share, a “ Warrant Share ” and all such shares issuable under the warrants, the “ Warrant Shares ”) at an exercise price equal to $6.00 per share (as adjusted from time to time as provided in Section 9, the “ Exercise Price ”), at any time and from the date hereof and through and including the date that is five (5) years from the date of issuance hereof (the “ Expiration Date ”), and subject to the following terms and conditions. This Warrant (“ Warrant ”) is one of a series of similar warrants issued pursuant to that certain Placement Agency Agreement, dated as of April 19, 2007, by and among the Company, Athersys, Inc., and Cowen and Company, LLC and National Securities Corporation, as placement agents (the “ Placement Agency Agreement ”). All such warrants are referred to herein, collectively, as the “ Warrants ” and the holders thereof along with the Holder named herein, the “ Holders .”
     1.  Definitions . In addition to the terms defined elsewhere in this Warrant, capitalized terms that are not otherwise defined herein have the meanings given to such terms in the Placement Agency Agreement.
     2.  Registration of Warrant . The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “ Warrant Register ”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.
     3.  Registration of Transfers . The Company shall register the transfer of any portion of this Warrant in the Warrant Register, upon surrender of this Warrant, with the Form of
 
1   8.5% warrant coverage

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Assignment attached hereto duly completed and signed, to the Transfer Agent or to the Company at its address specified herein. Upon any such registration or transfer, a new warrant to purchase Common Stock, in substantially the form of this Warrant (any such new warrant, a “ New Warrant ”), evidencing the portion of this Warrant so transferred shall be issued to the transferee and a New Warrant evidencing the remaining portion of this Warrant not so transferred, if any, shall be issued to the transferring Holder. The acceptance of the New Warrant by the transferee thereof shall be deemed the acceptance by such transferee of all of the rights and obligations of a holder of a Warrant.
     4.  Exercise and Duration of Warrants .
          (a) This Warrant shall be exercisable by the registered Holder at any time and from time to time on or after the date hereof to and including the Expiration Date. At 6:30 P.M., New York City time on the Expiration Date, the portion of this Warrant not exercised prior thereto shall be and become void and of no value; provided that, if the average of the Closing Prices for the five Trading Days immediately prior to (but not including) the Expiration Date exceeds the Exercise Price on the Expiration Date, provided further that, if on the Expiration Date, there is no effective Registration Statement covering the resale of the Warrant Shares, or no current prospectus under such Registration Statement is available, then this Warrant shall be deemed to have been exercised in full (to the extent not previously exercised) on a “cashless exercise” basis at 6:30 P.M. New York City time on the Expiration Date. A “cashless exercise” means that in lieu of paying the aggregate purchase price for the shares being purchased upon exercise of the Warrants in cash, the Holder will forfeit a number of shares underlying the Warrants pursuant to Section 10 below.
          (b) A Holder may exercise this Warrant by delivering to the Company (i) an exercise notice, in the form attached hereto (the “ Exercise Notice ”), appropriately completed and duly signed, and (ii) payment of the Exercise Price for the number of Warrant Shares as to which this Warrant is being exercised (which may take the form of a “cashless exercise” if so indicated in the Exercise Notice pursuant to Section 10 below), and the date such items are delivered to the Company (as determined in accordance with the notice provisions hereof) is an “ Exercise Date .” The Holder shall not be required to deliver the original Warrant in order to effect an exercise hereunder. Execution and delivery of the Exercise Notice shall have the same effect as cancellation of the original Warrant and issuance of a New Warrant evidencing the right to purchase the remaining number of Warrant Shares.
          (c) Exercise Disputes . In the case of any dispute with respect to the number of shares to be issued upon exercise of this Warrant, the Company shall promptly issue such number of shares of Common Stock that is not disputed and shall submit the disputed determinations or arithmetic calculations to the Holder via facsimile within two (2) Business Days of receipt of the Holder’s election to purchase Warrant Shares. If the Holder and the Company are unable to agree as to the determination of the Purchase Price within two (2) Business Days of such disputed determination or arithmetic calculation being submitted to the Holder, then the Company shall in accordance with this Section, submit via facsimile the disputed determination to an independent reputable accounting firm of national standing, selected jointly by the Company and the Holder. The Company shall cause such accounting firm to perform the determinations or calculations and notify the Company and the Holder of the

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results within forty-eight (48) hours from the time it receives the disputed determinations of calculations. Such accounting firm’s determination shall be binding upon all parties absent manifest error. The Company shall then on the next Business Day issue certificate(s) representing the appropriate number of Warrant Shares of Common Stock in accordance with such accounting firm’s determination and this Section. The prevailing party shall be entitled to reimbursement of all fees and expenses of such determination and calculation.
     5.  Delivery of Warrant Shares .
          (a) Upon exercise of this Warrant, the Company shall promptly (but in no event later than three Trading Days after the Exercise Date) issue or cause to be issued and cause to be delivered to or upon the written order of the Holder and in such name or names as the Holder may designate, a certificate for the Warrant Shares issuable upon such exercise, free of restrictive legends unless a registration statement covering the resale of the Warrant Shares and naming the Holder as a selling stockholder thereunder is not then effective and the Warrant Shares are not freely transferable without volume restrictions pursuant to Rule 144 under the Securities Act of 1933, as amended. The Holder, or any Person so designated by the Holder to receive Warrant Shares, shall be deemed to have become holder of record of such Warrant Shares as of the Exercise Date. The Company shall, upon request of the Holder, use its best efforts to deliver Warrant Shares hereunder electronically through the Depository Trust Corporation or another established clearing corporation performing similar functions.
          (b) This Warrant is exercisable, either in its entirety or, from time to time, for a portion of the number of Warrant Shares. Upon surrender of this Warrant following one or more partial exercises, the Company shall issue or cause to be issued, at its expense, a New Warrant evidencing the right to purchase the remaining number of Warrant Shares.
          (c) In addition to any other rights available to a Holder, if the Company fails to deliver to the Holder a certificate representing Warrant Shares by the third Trading Day after the date on which delivery of such certificate is required by this Warrant, and if after such third Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares that the Holder anticipated receiving from the Company (a “ Buy-In ”), then the Company shall, within three Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased (the “ Buy-In Price ”), at which point the Company’s obligation to deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to the Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Stock, times (B) the Closing Price on the date of the event giving rise to the Company’s obligation to deliver such certificate.
          (d) The Company’s obligations to issue and deliver Warrant Shares in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or

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any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder or any other Person of any obligation to the Company or any violation or alleged violation of law by the Holder or any other Person, and irrespective of any other circumstance which might otherwise limit such obligation of the Company to the Holder in connection with the issuance of Warrant Shares. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.
     6.  Charges, Taxes and Expenses . Issuance and delivery of certificates for shares of Common Stock upon exercise of this Warrant shall be made without charge to the Holder for any issue or transfer tax, withholding tax, transfer agent fee or other incidental tax or expense in respect of the issuance of such certificates, all of which taxes and expenses shall be paid by the Company; provided, however, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the registration of any certificates for Warrant Shares or Warrants in a name other than that of the Holder. The Holder shall be responsible for all other tax liability that may arise as a result of holding or transferring this Warrant or receiving Warrant Shares upon exercise hereof.
     7.  Replacement of Warrant . If this Warrant is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation hereof, or in lieu of and substitution for this Warrant, a New Warrant, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction and customary and reasonable bond or indemnity, if requested. Applicants for a New Warrant under such circumstances shall also comply with such other reasonable regulations and procedures and pay such other reasonable third-party costs as the Company may prescribe.
     8.  Reservation of Warrant Shares . The Company covenants that it will at all times reserve and keep available out of the aggregate of its authorized but unissued and otherwise unreserved Common Stock, solely for the purpose of enabling it to issue Warrant Shares upon exercise of this Warrant as herein provided, 100% of the number of Warrant Shares which are then issuable and deliverable upon the exercise of this entire Warrant, free from preemptive rights or any other contingent purchase rights of persons other than the Holder (after giving effect to the adjustments and restrictions of Section 9 , if any). The Company covenants that all Warrant Shares so issuable and deliverable shall, upon issuance and the payment of the applicable Exercise Price in accordance with the terms hereof, be duly and validly authorized, issued and fully paid and nonassessable. The Company will take all such action as may be necessary to assure that such shares of Common Stock may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of any securities exchange or automated quotation system upon which the Common Stock may be listed.
     9.  Certain Adjustments . The Exercise Price and number of Warrant Shares issuable upon exercise of this Warrant are subject to adjustment from time to time as set forth in this Section 9 .

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          (a) Stock Dividends and Splits . If the Company, at any time while this Warrant is outstanding, (i) pays a stock dividend on its Common Stock or otherwise makes a distribution on any class of capital stock that is payable in shares of Common Stock, (ii) subdivides outstanding shares of Common Stock into a larger number of shares, or (iii) combines outstanding shares of Common Stock into a smaller number of shares, then in each such case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to clause (i) of this paragraph shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution, and any adjustment pursuant to clause (ii) or (iii) of this paragraph shall become effective immediately after the effective date of such subdivision or combination.
          (b) Distributions Made Prior to Exercise . If the Company, at any time while this Warrant is outstanding, distributes to holders of Common Stock (i) evidences of its indebtedness, (ii) any security (other than a distribution of Common Stock covered by Section 9(a)), (iii) rights or warrants to subscribe for or purchase any security, or (iv) any other asset (in each case, a “ Distribution ”), then in each such case any Exercise Price in effect immediately prior to the close of business on the record date fixed for the determination of holders of Common Stock entitled to receive the Distribution shall be reduced, effective as of the close of business on such record date, to a price determined by multiplying such Exercise Price by a fraction of which (i) the numerator shall be the Weighted Average Price 2 of the Common Stock on the Trading Day immediately preceding such record date minus the value of the Distribution (as determined in good faith by the Company’s Board of Directors) applicable to one share of Common Stock, and (ii) the denominator shall be the Weighted Average Price of the Common Stock on the Trading Day immediately preceding such record date.
          (c) Notwithstanding the provisions set forth in Section 9(b) above, if the Company, at any time while this Warrant is outstanding, makes a Distribution to the holders of Common Stock, then in each such case the Holder shall have the option to receive such Distribution which would have been made to the Holder had such Holder been the holder of such Warrant Shares on the record date for the determination of stockholders entitled to such Distribution; provided, however, if the Holder elects to receive such Distribution, it will not be entitled to receive the adjustment to the Exercise Price specified in clause (b) above.
 
2   “ Weighted Average Price” means, for any security as of any date, the dollar volume-weighted average price for such security on NASDAQ during the period beginning at 9:30:01 a.m., New York Time (or such other time as NASDAQ publicly announces is the official open of trading), and ending at 4:00:00 p.m., New York Time (or such other time as NASDAQ publicly announces is the official close of trading) as reported by Bloomberg (means Bloomberg Financial Markets) through its “Volume at Price” functions, or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York Time (or such other time as such Principal Market publicly announces is the official open of trading), and ending at 4:00:00 p.m., New York Time (or such other time as such market publicly announces is the official close of trading) as reported by Bloomberg, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported in the “pink sheets” by Pink Sheets LLC (formerly the National Quotation Bureau, Inc.). If the Weighted Average Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Weighted Average Price of such security on such date shall be the fair market value as mutually determined by the Company in good faith. All such determinations shall be appropriately adjusted for any share dividend, share split, share combination or other similar transaction during the applicable calculation period.

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          (d) Fundamental Transactions . If, at any time while this Warrant is outstanding, (i) the Company effects any merger or consolidation of the Company with or into (whether or not the Company is the surviving corporation) another Person, (ii) the Company effects any sale, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions; provided, however, that for avoidance of doubt, the granting of a lien on all or substantially all of the Company’s assets as collateral shall not be deemed a Fundamental Transaction hereunder, (iii) the Company allows another Person to make a purchase, tender or exchange offer that is accepted by the holders of more than the 50% of either the outstanding shares of Common Stock (not including any shares of Common Stock held by the Person or Persons making or party to, or associated or affiliated with the Persons making or party to, such purchase, tender or exchange offer), (iv) the Company consummates a stock purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than the 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock purchase agreement or other business combination), or (v) the Company effects any reclassification of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by Section 9(a) above) (in any such case, a “ Fundamental Transaction ”), then the Company shall use its reasonable best efforts to ensure that lawful and adequate provision shall be made whereby each Holder shall thereafter continue to have the right to purchase and receive upon the basis and upon the terms and conditions herein specified and in lieu of the Warrant Shares issuable upon exercise of the Warrants held by such Holder, shares of capital stock or similar equity interests (“ Acquirer Shares ”) in the surviving or acquiring entity (“ Acquirer ”), as the case may be, such that the aggregate value of the Holder’s warrants to purchase such number of Acquirer Shares, where the value of each new warrant to purchase one Acquirer Share is determined in accordance with the Black-Scholes Option Pricing formula set forth in Exhibit A hereto, is equivalent to the aggregate value of the Warrants held by such Holder, where the value of each Warrant to purchase one share in the Company is determined in accordance with the Black-Scholes Option Pricing formula set forth Exhibit B hereto. Furthermore, the new warrants to purchase Acquirer Shares referred to herein shall have the same expiration date as the Warrants, and shall have a strike price, KAcq, that is calculated in accordance with Exhibit A hereto. Moreover, appropriate provision shall be made with respect to the rights and interests of each Holder to the end that the provisions hereof (including, without limitation, provision for adjustment of the Exercise Price) shall thereafter be applicable, as nearly equivalent as may be practicable in relation to any Acquirer Shares thereafter deliverable upon the exercise thereof. The provisions of this Section 9(d) shall similarly apply to successive Fundamental Transactions. If the Company, in spite of using its reasonable best efforts, is unable to cause these Warrants to continue in full force and effect until the Expiration Date in connection with any Fundamental Transaction, then the Company shall pay the Holders in cash an amount per Warrant to purchase one share of Common Stock in the Company that is calculated in accordance with the Black-Scholes Option Pricing formula set forth in Exhibit B hereto.

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          (e) Number of Warrant Shares . Simultaneously with any adjustment to the Exercise Price pursuant to paragraph (a) of this Section, the number of Warrant Shares that may be purchased upon exercise of this Warrant shall be increased or decreased proportionately, as applicable, so that after such adjustment the aggregate Exercise Price payable hereunder for the increased or decreased, as applicable, number of Warrant Shares shall be the same as the aggregate Exercise Price in effect immediately prior to such adjustment.
          (f) Calculations . All calculations under this Section 9 shall be made to the nearest cent or the nearest 1/100th of a share, as applicable. The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the Company, and the disposition of any such shares shall be considered an issue or sale of Common Stock.
          (g) Notice of Adjustments . Upon the occurrence of each adjustment pursuant to this Section 9 , the Company at its expense will promptly compute such adjustment in accordance with the terms of this Warrant and prepare a certificate setting forth such adjustment, including a statement of the adjusted Exercise Price and adjusted number or type of Warrant Shares or other securities issuable upon exercise of this Warrant (as applicable), describing the transactions giving rise to such adjustments and showing in detail the facts upon which such adjustment is based. Upon written request, the Company will promptly deliver a copy of each such certificate to the Holder and to the Company’s Transfer Agent.
          (h) Notice of Corporate Events . If the Company (i) declares a dividend or any other distribution of cash, securities or other property in respect of its Common Stock, including without limitation any granting of rights or warrants to subscribe for or purchase any capital stock of the Company or any Subsidiary, (ii) authorizes or approves, enters into any agreement contemplating or solicits stockholder approval for any Fundamental Transaction or (iii) authorizes the voluntary dissolution, liquidation or winding up of the affairs of the Company, then the Company shall deliver to the Holder a notice describing the material terms and conditions of such transaction, at least ten calendar days prior to the applicable record or effective date on which a Person would need to hold Common Stock in order to participate in or vote with respect to such transaction, and the Company will take all steps reasonably necessary in order to insure that the Holder is given the practical opportunity to exercise this Warrant prior to such time so as to participate in or vote with respect to such transaction; provided, however, that the failure to deliver such notice or any defect therein shall not affect the validity of the corporate action required to be described in such notice.
     10.  Payment of Exercise Price . The Holder shall either (i) pay the Exercise Price in immediately available funds (a “cash exercise”), or (ii) satisfy its obligation to pay the Exercise Price through a “cashless exercise,” in which event the Company shall issue to the Holder the number of Warrant Shares determined as follows:
     
 
  X = Y [(A-B)/A]
where:
   
 
  X = the number of Warrant Shares to be issued to the Holder.
 
   
 
  Y = the number of Warrant Shares with respect to which this

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  Warrant is being exercised (prior to cashless exercise).
 
   
 
  A = the average of the Closing Prices for the five Trading Days immediately prior to (but not including) the Exercise Date.
 
   
 
  B = the Exercise Price.
          For purposes of Rule 144 promulgated under the Securities Act, it is intended, understood and acknowledged that the Warrant Shares issued in a cashless exercise transaction shall be deemed to have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this Warrant was originally issued pursuant to the Purchase Agreement.
     11.  Fractional Shares . The Company shall not be required to issue or cause to be issued fractional Warrant Shares on the exercise of this Warrant. If any fraction of a Warrant Share would, except for the provisions of this Section, be issuable upon exercise of this Warrant, the number of Warrant Shares to be issued will be rounded up to the nearest whole share.
     12.  Notices . Any and all notices or other communications or deliveries hereunder (including without limitation any Exercise Notice) shall be in writing and shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number specified in the Purchase Agreement prior to 6:30 p.m. (New York City time) on a Trading Day, (ii) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number specified in the Purchase Agreement on a day that is not a Trading Day or later than 6:30 p.m. (New York City time) on any Trading Day, (iii) the Trading Day following the date of mailing, if sent by nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given. The address for such notices or communications shall be as set forth in the Placement Agency Agreement.
     13.  Warrant Agent . The Company shall serve as warrant agent under this Warrant. Upon 30 days’ notice to the Holder, the Company may appoint a new warrant agent. Any corporation into which the Company or any new warrant agent may be merged or any corporation resulting from any consolidation to which the Company or any new warrant agent shall be a party or any corporation to which the Company or any new warrant agent transfers substantially all of its corporate trust or stockholders services business shall be a successor warrant agent under this Warrant without any further act. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed (by first class mail, postage prepaid) to the Holder at the Holder’s last address as shown on the Warrant Register.
     14.  Registration of Warrant Shares . The Warrant Shares shall be entitled to registration rights pursuant to that certain Securities Purchase Agreement, dated as of June [_], 2007, by and among the Company, Athersys, Inc. and the investors listed on the Schedule of Investors attached thereto.
     15.  Miscellaneous .

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          (a) Subject to the restrictions on transfer set forth on the first page hereof, this Warrant may be assigned by the Holder. This Warrant may not be assigned by the Company, except to a successor in the event of a Fundamental Transaction. This Warrant shall be binding on and inure to the benefit of the parties hereto and their respective successors and assigns. Subject to the preceding sentence, nothing in this Warrant shall be construed to give to any Person other than the Company and the Holder any legal or equitable right, remedy or cause of action under this Warrant.
          (b) The Company will not, by amendment of its governing documents or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, seek to call or redeem this Warrant or avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holder against dilution or other impairment. Without limiting the generality of the foregoing, the Company (i) will not increase the par value of any Warrant Shares above the amount payable therefor on such exercise, (ii) will take all such action as may be reasonably necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares, free from all taxes, liens, security interests, encumbrances, preemptive or similar rights and charges of stockholders (other than those imposed by the Investors), on the exercise of the Warrant, and (iii) will not close its stockholder books or records in any manner which interferes with the timely exercise of this Warrant.
          (c) Remedies; Specific Performance . The Company acknowledges and agrees that there would be no adequate remedy at law to the Holder of this Warrant in the event of any default or threatened default by the Company in the performance of or compliance with any of the terms of this Warrant and accordingly, the Company agrees that, in addition to any other remedy to which the Holder may be entitled at law or in equity, the Holder shall be entitled to seek to compel specific performance of the obligations of the Company under this Warrant, without the posting of any bond, in accordance with the terms and conditions of this Warrant in any court of the United States or any State thereof having jurisdiction, and if any action should be brought in equity to enforce any of the provisions of this Warrant, the Company shall not raise the defense that there is an adequate remedy at law. Except as otherwise provided by law, a delay or omission by the Holder hereof in exercising any right or remedy accruing upon any such breach shall not impair the right or remedy or constitute a waiver of or acquiescence in any such breach. No remedy shall be exclusive of any other remedy. All available remedies shall be cumulative.
          (d) Amendments and Waivers . The Company may, without the consent of the Holders, by supplemental agreement or otherwise, (i) make any changes or corrections in this Agreement that are required to cure any ambiguity or to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein or (ii) add to the covenants and agreements of the Company for the benefit of the Holders (including, without limitation, reduce the Exercise Price or extend the Expiration Date), or surrender any rights or power reserved to or conferred upon the Company in this Agreement; provided that, in the case of (i) or (ii), such changes or corrections shall not adversely affect the interests of Holders of then outstanding Warrants in any material respect. This Warrant may also be amended or

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waived with the consent of the Company and the Holder. Further, the Company may, with the consent, in writing or at a meeting, of the Holders (the “ Required Holders ”) of the then outstanding Warrants exercisable for two-thirds (2/3) or greater of the Common Stock eligible under such Warrants, amend in any way, by supplemental agreement or otherwise, this Warrant and/or all of the outstanding Warrants; provided, however, that (i) no such amendment by its express terms shall adversely affect any Holder differently than it affects all other Holders, unless such Holder consents thereto, and (ii) no such amendment concerning the number of Warrant Shares or Exercise Price shall be made unless any Holder who will be affected by such amendment consents thereto. If a new warrant agent is appointed by the Company, it shall at the request of the Company, and without need of independent inquiry as to whether such supplemental agreement is permitted by the terms of this Section 15(d) , join with the Company in the execution and delivery of any such supplemental agreements, but shall not be required to join in such execution and delivery for such supplemental agreement to become effective.
          (e) GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL . THE CORPORATE LAWS OF THE STATE OF NEW YORK SHALL GOVERN ALL ISSUES CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND ITS STOCKHOLDERS. ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE COMPANY AND INVESTORS HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN FOR THE ADJUDICATION OF ANY DISPUTE BROUGHT BY THE COMPANY OR ANY INVESTOR HEREUNDER, IN CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN, AND HEREBY IRREVOCABLY WAIVE, AND AGREE NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING BROUGHT BY THE COMPANY OR ANY INVESTOR, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, OR THAT SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. THE COMPANY AND INVESTORS HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY.
          (f) The headings herein are for convenience only, do not constitute a part of this Warrant and shall not be deemed to limit or affect any of the provisions hereof.
          (g) In case any one or more of the provisions of this Warrant shall be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Warrant shall not in any way be affected or impaired thereby and the parties

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will attempt in good faith to agree upon a valid and enforceable provision which shall be a commercially reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Warrant.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK,
SIGNATURE PAGE FOLLOWS]

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     IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its authorized officer as of the date first indicated above.
         
  BTHC VI, INC.
 
 
  By:      
    Name:      
    Title:      

 


 

         
FORM OF EXERCISE NOTICE
(To be executed by the Holder to exercise the right to purchase shares of Common Stock under the foregoing Warrant)
To: BTHC VI, INC.
The undersigned is the Holder of Warrant No. _________ (the “Warrant”) issued by BTHC VI, Inc., a Delaware corporation (the “Company”). Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Warrant.
  (a)   The Warrant is currently exercisable to purchase a total of                                           Warrant Shares.
 
  (b)   The undersigned Holder hereby exercises its right to purchase                                           Warrant Shares pursuant to the Warrant.
 
  (c)   The Holder shall make Payment of the Exercise Price as follows (check one):
 
            o  “Cash Exercise” under Section 10
      o  “Cashless Exercise” under Section 10
 
  (d)   If the holder is making a Cash Exercise, the holder shall pay the sum of $                                           to the Company in accordance with the terms of the Warrant.
 
  (e)   Pursuant to this exercise, the Company shall deliver to the holder                                           Warrant Shares in accordance with the terms of the Warrant.
 
  (f)   Following this exercise, the Warrant shall be exercisable to purchase a total of                                           Warrant Shares.
 
  (g)   Notwithstanding anything to the contrary contained herein, this Exercise Notice shall constitute a representation by the Holder that, after giving effect to the exercise provided for in this Exercise Notice, the Holder (together with its affiliates) will not have beneficial ownership (together with the beneficial ownership of such Person’s affiliates) of a number of shares of Common Stock which exceeds the Maximum Percentage of the total outstanding shares of Common Stock as determined pursuant to the provisions of Section 11(a) of the Warrant.
         
Dated:              ,         Name of Holder:   
 
  (Print)     
 
  By:      
    Name:      
    Title:      
    (Signature must conform in all respects to name of holder as specified on the face of the Warrant)   

 


 

         
FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Warrant]
     FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                                           the right represented by the within Warrant to purchase                       shares of Common Stock of BTHC VI, Inc. to which the within Warrant relates and appoints                                           attorney to transfer said right on the books of BTHC VI, Inc. with full power of substitution in the premises.
         
Dated:                      , ___
       
 
       
 
       
 
  (Signature must conform in all respects to name of holder as specified on the face of the Warrant)    
 
       
 
       
 
  Address of Transferee    
 
       
 
       
 
       
 
       
 
       
In the presence of:


       
 
 
     

 


 

Exhibit A
Black Scholes Option Pricing formula to be used when calculating the value of each new warrant to purchase one Acquirer Share shall be:
C Acq = S Acq e- λ(TAcq-tAcq) N(d 1 ) — K Acq e-r (TAcq-tAcq) N(d 2 ), where
C Acq = value of each warrant to purchase one Acquirer Share
S Acq = price of one Acquirer Share as determined by reference to the average of the closing prices on the securities exchange over the 20-day period ending three trading days prior to the closing of the Fundamental Transaction described in Section 9(d) if the Acquirer Shares are then traded on such exchange, or the average of the closing bid or sale prices (whichever is applicable) in the over-the-counter market over the 20-day period ending three trading days prior to the closing of the Fundamental Transaction if the Acquirer Shares are then actively traded in the over-the-counter market, or the then most recently completed financing if the Acquirer Shares are not then traded on a securities exchange or in the over-the-counter market
T Acq = expiration date of new warrants to purchase Acquirer Shares = T Corp
t Acq = date of issue of new warrants to purchase Acquirer Shares
T Acq -t Acq = time until warrant expiration, expressed in years
s = volatility = annualized standard deviation of daily log-returns (using a 262-day annualization factor) of the price of Acquirer Shares on the securities exchange over a 20-day trading period, determined by the Holders, that is within the 100-day trading period ending on the trading day immediately after the public announcement of the Fundamental Transaction described in Section 9(d) if the Acquirer Shares are then traded on such exchange, or the annualized standard deviation of daily-log returns (using a 262-day annualization factor) of the closing bid or sale prices (whichever is applicable) in the over-the-counter market over a 20-day trading period, determined by the Holders, that is within the 100-day trading period ending on the trading day immediately after the public announcement of the Fundamental Transaction if the Acquirer Shares are then actively traded in the over-the-counter market, or 0.6 (or 60%) if the Acquirer Shares are not then traded on a securities exchange or in the over-the-counter market.
N = cumulative normal distribution function
d 1 = (ln(S Acq /K Acq ) + (r-λ+s 2 /2)(T Acq -t Acq )) ÷ (sv(T Acq -t Acq ))
ln = natural logarithm
λ = dividend rate on the Acquirer Shares for the most recent 12-month period at the time of closing of the Fundamental Transaction.
K Acq = strike price of new warrants to purchase Acquirer Shares = K Corp * (S Acq / S Corp )
r = annual yield, as reported by Bloomberg at time t Acq , of the United States Treasury security measuring the nearest time T Acq
d 2 = d 1 - sv(T Acq -t Acq )

 


 

Exhibit B
Black Scholes Option Pricing formula to be used when calculating the value of each Warrant to purchase one share of Common Stock shall be:
C Corp = S Corp e -λ(TCorp-tCorp) N(d 1 ) — K Corp e- r(TCorp-tCorp) N(d 2 ), where
C Corp = value of each Warrant to purchase one share of Common Stock
S Corp = price of Common Stock as determined by reference to the average of the closing prices on the securities exchange over the 20-day period ending three trading days prior to the closing of the Fundamental Transaction described in Section 9(d) if the Common Stock is then traded on such exchange, or the average of the closing bid or sale prices (whichever is applicable) in the over-the-counter market over the 20-day period ending three trading days prior to the closing of the Fundamental transaction if the Common Stock is then actively traded in the over-the-counter market, or the then most recently completed financing if the Common Stock is not then traded on a securities exchange or in the over-the-counter market
T Corp = expiration date of Warrants to purchase shares of Common Stock
t Corp = date of public announcement of Fundamental Transaction
T Corp -t Corp = time until Warrant expiration, expressed in years
s = volatility = the annualized standard deviation of daily log-returns (using a 262-day annualization factor) of the price of Common Stock on the securities exchange over a 20-day trading period, determined by the Holders, that is within the 100-day trading period ending on the trading day immediately after the public announcement of the Fundamental Transaction described in Section 9(d) if the Common Stock is then traded on such exchange, or the annualized standard deviation of daily-log returns (using a 262-day annualization factor) of the closing bid or sale prices (whichever is applicable) in the over-the-counter market over a 20-day trading period, determined by the Holders, that is within the 100-day trading period ending on the trading day immediately after the public announcement of the Fundamental Transaction if the Common Stock is then actively traded in the over-the-counter market, or 0.6 (or 60%) if the Common Stock is not then traded on a securities exchange or in the over-the-counter market.
N = cumulative normal distribution function
d 1 = (ln(S Corp /K Corp ) + (r-λ+s 2 /2)(T Corp -t Corp )) ÷ (sv(T Corp -t Corp ))
ln = natural logarithm
λ = dividend rate on the Common Stock for the most recent 12-month period at the time of closing of the Fundamental Transaction.
K Corp = strike price of warrant
r = annual yield, as reported by Bloomberg at time t Corp , of the United States Treasury security measuring the nearest time T Corp
d 2 = d 1 - sv(T Corp -t Corp )

 

 

Exhibit 4.4
EXHIBIT “D-2”
To
Supplement
THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN OR WILL BE ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE AND DISTRIBUTION THEREOF, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED DUE TO AN EXEMPTION THEREFROM UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF ARE ALSO SUBJECT TO THE RESTRICTIONS CONTAINED IN THAT CERTAIN AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT, DATED AS OF APRIL 28, 2000, AS AMENDED, BY AND AMONG ATHERSYS, INC. AND THE STOCKHOLDERS OF ATHERSYS, INC. (THE “STOCKHOLDERS’ AGREEMENT”).
Warrant No. _______
WARRANT TO PURCHASE
                     SHARES OF COMMON STOCK OF
ATHERSYS, INC.
 
(Void after [7 th anniversary of date of issuance] )
     This certifies that [VENTURE LENDING & LEASING IV, LLC., a Delaware limited liability company] [COSTELLA KIRSCH IV, L.P., a                      ], or its permitted assigns (the “Holder”), for value received, is entitled to purchase up to an aggregate of                                                                (                       ) fully paid and nonassessable shares of common stock, $.01 par value per share (“Common Stock”), of ATHERSYS, INC., a Delaware corporation (the “Company”), at a price of                                           Dollars ($                      ) per share (the “Stock Purchase Price”) at any time or from time to time up to and including 5:00 p.m. (Eastern time) on [7 th anniversary of date of issuance] (the “Expiration Date”), upon surrender to the Company at its principal office at                                                                (or at such other location as the Company may advise Holder in writing) of this Warrant properly endorsed with the Form of Subscription attached hereto duly filled in and signed and upon payment in cash or by check of the aggregate Stock Purchase Price for the number of shares for which this Warrant is being exercised determined in accordance with the provisions hereof. The Stock Purchase Price and the number of shares purchasable hereunder are subject to adjustment as provided in Section 4 of this Warrant.
     This Warrant is subject to the following terms and conditions:
     1.  Exercise; Issuance of Certificates; Payment for Shares .
          (a) Unless an election is made pursuant to clause (b) of this Section 1, this Warrant shall be exercisable at the option of the Holder, at any time or from time to time, on or before the Expiration Date for all or any portion of the shares of Common Stock (but not for a fraction of a share) which may be purchased hereunder for the Stock Purchase Price multiplied by the number of shares to be purchased. The Company agrees that the shares of Common Stock purchased under this Warrant shall be and are deemed to be issued to the Holder hereof as the

 


 

record owner of such shares as of the close of business on the date on which this Warrant shall have been surrendered and payment made for such shares. Subject to the provisions of Section 2, certificates for the shares of Common Stock so purchased, together with any other securities or property to which the Holder hereof is entitled upon such exercise, shall be delivered to the Holder hereof by the Company at the Company’s expense within a reasonable time after the rights represented by this Warrant have been so exercised. Except as provided in clause (b) of this Section 1, in case of a purchase of less than all the shares which may be purchased under this Warrant, the Company shall cancel this Warrant and execute and deliver to the Holder hereof within a reasonable time a new Warrant or Warrants of like tenor for the balance of the shares purchasable under this Warrant surrendered upon such purchase. Each stock certificate so delivered shall be in such denominations of Common Stock as may be requested by the Holder hereof and shall be registered in the name of such Holder or such other name as shall be designated by such Holder, subject to the limitations contained in Section 2.
          (b) The Holder, in lieu of exercising this Warrant by the payment of the Stock Purchase Price pursuant to clause (a) of this Section 1, may elect, at any time on or before the Expiration Date, to receive, through conversion of this Warrant or any portion hereof into that number of shares of Common Stock equal to the quotient of: (i) the difference between (A) the Per Share Price (as hereinafter defined) of the Common Stock, less (B) the Stock Purchase Price then in effect, multiplied by the number of shares of Common Stock the Holder would otherwise have been entitled to purchase hereunder pursuant to clause (a) of this Section 1 (or such lesser number of shares as the Holder may designate in the case of a partial exercise of this Warrant); over (ii) the Per Share Price.
          (c) For purposes of clause (b) of this Section 1, “Per Share Price” means: (i) (A) if the Common Stock is then listed or admitted to trading on any national securities exchange or traded on any national market system, the average of the last reported sale price of the Common Stock on such exchange or market system or (B) if the Common Stock is not listed or admitted to trading on any national securities exchange or traded on any national market system but is traded in the domestic over-the-counter market, the average of the closing bid and asked prices on the OTC Bulletin Board or in the domestic over-the-counter market as reported by Pink Sheets, LLC, as applicable, in either case for the ten (10) consecutive trading days prior to the date of the Holder’s election to convert hereunder; (ii) if this Warrant is being converted in conjunction with a firmly underwritten initial public offering of the Common Stock, the price to the public per share pursuant to such offering; or (iii) if neither subclauses (i) or (ii) of this clause (c) of this Section 1 are applicable, the price per share as determined in good faith by the Board of Directors by the Company.
     2.  Limitation on Transfer .
          (a) This Warrant and the Common Stock shall not be transferable except upon the conditions specified in this Section 2, which conditions are, among other things, intended to insure compliance with the provisions of the Securities Act. Each holder of this Warrant or the Common Stock issuable hereunder will cause any proposed transferee of the Warrant or Common Stock to agree to take and hold such securities subject to the provisions and upon the conditions specified in this Section 2 and the restrictions contained in the Stockholders’ Agreement. Notwithstanding the foregoing and any other provision of this Section 2, subject to compliance with Sections 2 and 3 of the Stockholders’ Agreement, the initial Holder hereof may freely transfer all or part of this Warrant or the shares issuable upon exercise of this Warrant at any time to any affiliate of such initial Holder by giving the Company notice of the portion of the Warrant being transferred setting forth the name, address and taxpayer identification number of the transferee and surrendering this Warrant to the Company for reissuance to the transferee(s) (and Holder, if applicable).
          (b) Each certificate representing this Warrant or the Common Stock shall (unless otherwise permitted by the provisions of this Section 2 or unless such securities have been registered under the Securities Act) be stamped or otherwise imprinted with a legend substantially in the form set forth on the face of this Warrant.
          (c) The Holder of this Warrant and each person to whom this Warrant is subsequently transferred represents and warrants to the Company (by acceptance of such transfer) that it will not transfer this Warrant (or securities issuable upon exercise hereof) except pursuant to (i) an effective registration statement under the Securities Act, (ii) Rule 144 under the Securities Act (or any similar rule under the Securities Act relating to the

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disposition of restricted securities), or (iii) an opinion of counsel, reasonably satisfactory to counsel for the Company, that an exemption from such registration is available.
     3.  Shares to be Fully Paid; Reservation of Shares . The Company covenants and agrees that all shares of Common Stock which may be issued upon the exercise of the rights represented by this Warrant will, upon issuance, be duly authorized, validly issued, fully paid and nonassessable and free from all preemptive rights of any stockholder and free of all taxes, liens and charges with respect to the issue thereof. The Company further covenants and agrees that during the period within which the rights represented by this Warrant may be exercised, the Company will at all times have authorized and reserved, for the purpose of issue or transfer upon exercise of the subscription rights evidenced by this Warrant, a sufficient number of shares of authorized but unissued Common Stock, when and as required to provide for the exercise of the rights represented by this Warrant. The Company will take all such action as may be reasonably necessary to ensure that such shares of Common Stock may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of any domestic securities exchange upon which the Common Stock may be listed.
     4.  Adjustment of Stock Purchase Price and Number of Shares . The Stock Purchase Price and the number of shares purchasable upon the exercise of this Warrant shall be subject to adjustment from time to time upon the occurrence of certain events described in this Section 4. Upon each adjustment of the Stock Purchase Price, the Holder of this Warrant shall thereafter be entitled to purchase, at the Stock Purchase Price resulting from such adjustment, the number of shares obtained by multiplying the Stock Purchase Price in effect immediately prior to such adjustment by the number of shares purchasable pursuant hereto immediately prior to such adjustment, and dividing the product thereof by the Stock Purchase Price resulting from such adjustment.
          4.1 Subdivision or Combination of Stock . In case the Company shall at any time subdivide its outstanding shares of Common Stock into a greater number of shares, the Stock Purchase Price in effect immediately prior to such subdivision shall be proportionately reduced, and conversely, in case the outstanding shares of Common Stock of the Company shall be combined into a smaller number of shares, the Stock Purchase Price in effect immediately prior to such combination shall be proportionately increased.
          4.2 Dividends in Preferred Stock, Other Stock, Property, Reclassification . If at any time or from time to time the holders of Common Stock (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received or become entitled to receive, without payment therefor,
               (a) by way of dividend or other distribution, any shares of stock or other securities, whether or not such securities are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing (other than shares of Common Stock issued as a stock split, adjustments in respect of which shall be covered by the terms of Section 4.1 above),
               (b) any cash paid or payable otherwise than as a cash dividend, or
               (c) additional stock or other securities or property (including cash) by way of spin-off, split-up, reclassification, combination of shares or similar corporate rearrangement, (other than shares of Common Stock issued as a stock split, adjustments in respect of which shall be covered by the terms of Section 4.1 above),
then and in each such case, the Holder hereof shall, upon the exercise of this Warrant, be entitled to receive, in addition to the number of shares of Common Stock receivable thereupon, and without payment of any additional consideration therefore, the amount of stock and other securities and property (including cash in the cases referred to in clauses (b) and (c) above) which such Holder would hold or be entitled to receive, as the case may be, on the date of such exercise had he been the holder of record of such Common Stock as of the date on which holders of Common Stock received or became entitled to receive such shares and/or all other additional stock and other securities and property.

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          4.3 Reorganization, Reclassification, Consolidation, Merger or Sale . If any capital reorganization of the capital stock of the Company, or any consolidation or merger of the Company with another entity, or other reorganization, or the sale of all or substantially all of its assets to another entity shall be effected in such a way that holders of Common Stock shall be entitled to receive stock, securities or assets with respect to or in exchange for Common Stock, then, as a condition of such reorganization, reclassification, consolidation, merger or sale, lawful and adequate provisions shall be made whereby the holder hereof shall thereafter have the right to purchase and receive (in lieu of the shares of the Common Stock of the Company immediately theretofore purchasable and receivable upon the exercise of the rights represented hereby) such shares of stock, securities or assets as may be issued or payable with respect to or in exchange for a number of outstanding shares of such Common Stock equal to the number of shares of such stock immediately theretofore purchasable and receivable upon the exercise of the rights represented hereby. In any such case, appropriate provision shall be made with respect to the rights and interests of the holder of this Warrant to the end that the provisions hereof (including, without limitation, provisions for adjustments of the Stock Purchase Price and of the number of shares purchasable and receivable upon the exercise of this Warrant) shall thereafter be applicable, as nearly as may be possible, in relation to any shares of stock, securities or assets thereafter deliverable upon the exercise hereof. Within twenty (20) days following the closing of any such consolidation, merger or sale, the successor corporation (if other than the Company) resulting from such consolidation or merger or the corporation purchasing such assets shall deliver to the registered Holder hereof at the last address of such Holder appearing on the books of the Company, notice of such shares of stock, securities or assets as, in accordance with the foregoing provisions, such Holder may be entitled to purchase.
          4.4 Notice of Adjustment . Upon any adjustment of the Stock Purchase Price, and/or any increase or decrease in the number of shares purchasable upon the exercise of this Warrant the Company shall give written notice thereof, by first class mail, postage prepaid, addressed to the registered holder of this Warrant at the address of such holder as shown on the books of the Company. The notice shall be signed by the Company’s chief financial officer and shall state the Stock Purchase Price resulting from such adjustment and the increase or decrease, if any, in the number of shares purchasable at such price upon the exercise of this Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based.
          4.5 Other Notices . If at any time:
               (a) the Company shall declare any cash dividend upon its Common Stock;
               (b) the Company shall declare any dividend upon its Common Stock payable in capital stock, or make any special dividend or other distribution to the holders of its Common Stock;
               (c) the Company shall issue to all holders of outstanding shares of its Common Stock rights entitling such holders to subscribe for or purchase any additional shares of Common Stock;
               (d) there shall be any capital reorganization or reclassification of the capital stock of the Company, or consolidation or merger of the Company with, or sale of all or substantially all of its assets to, another entity; or
               (e) there shall be a voluntary or involuntary dissolution, liquidation or winding-up of the Company;
then, in any one or more of said cases, the Company shall give, by first class mail, postage prepaid, addressed to the Holder at the address of Holder as shown on the books of the Company, (i) at least twenty (20) day’s prior written notice of the date on which the books of the Company shall close or a record shall be taken for establishing the right to receive such dividend, distribution or subscription rights, and (ii) with respect to any other action, notice of which is given to holders of the Common Stock, at the same time such notice as is actually provided to such holders. Any notice given in accordance with the foregoing clause (i) shall also specify, in the case of any such dividend, distribution or subscription rights, the date on which the holders of stock shall be entitled thereto. Any notice given in accordance with the foregoing clause (ii) shall, if applicable, also specify the date on which the holders of

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Common Stock shall be entitled to exchange their Common Stock for securities or other property deliverable upon any reorganization, reclassification, consolidation, merger, sale, dissolution, liquidation or winding-up.
     5.  Issue Tax . The issuance of certificates for shares of Preferred Stock upon the exercise of this Warrant shall be made without charge to the Holder of this Warrant for any issue tax in respect thereof; provided, however, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any certificate in a name other than that of the then Holder of this Warrant being exercised.
     6.  Closing of Books . The Company will at no time close its transfer books against the transfer of this Warrant or of any shares of Common Stock issued or issuable upon the exercise of any warrant in any manner which interferes with the timely exercise of this Warrant.
     7.  No Voting or Dividend Rights; Limitation of Liability . Nothing contained in this Warrant shall be construed as conferring upon the Holder hereof the right to vote or to consent as a stockholder in respect of meetings of stockholders for the election of directors of the Company or any other matters or any rights whatsoever as a stockholder of the Company. No dividends or interest shall be payable or accrued in respect of this Warrant or the interest represented hereby or the shares purchasable hereunder until, and only to the extent that, this Warrant shall have been exercised. No provisions hereof, in the absence of affirmative action by the Holder to purchase shares of Common Stock, and no mere enumeration herein of the rights or privileges of the Holder hereof, shall give rise to any liability of such Holder for the Stock Purchase Price or as a stockholder of the Company, whether such liability is asserted by the Company or by its creditors.
     8.  Rights and Obligations Survive Exercise of Warrant . The rights and obligations of the Company, of the Holder of this Warrant and of the holder of shares of Common Stock issued upon exercise of this Warrant, contained in Section 6 shall survive the exercise of this Warrant.
     9.  Modification and Waiver . This Warrant and any provision hereof may be changed, waived, discharged or terminated only by an instrument in writing signed by the party against which enforcement of the same is sought.
     10.  Notices . Any notice, request or other document required or permitted to be given or delivered to the Holder or the Company shall be deemed to have been given (i) upon receipt if delivered personally or by courier, (ii) upon confirmation of receipt if by telecopy, or (iii) three business days after deposit in the U.S. mail, with postage prepaid and certified or registered, to each such Holder at its address as shown on the books of the Company or to the Company at the address indicated therefor in the first paragraph of this Warrant.
     11.  Binding Effect on Successors . This Warrant shall be binding upon any entity succeeding the Company by merger, consolidation or acquisition of all or substantially all of the Company’s assets. All of the obligations of the Company relating to the Common Stock issuable upon the exercise of this Warrant shall survive the exercise and termination of this Warrant. All of the covenants and agreements of the Company shall inure to the benefit of the successors and assign of the holder hereof. The Company will, at the time of the exercise of this Warrant, in whole or in part, upon request of the Holder hereof but at the Company’s expense, acknowledge in writing its continuing obligation to the Holder hereof in respect of any rights (including, without limitation, any right to registration of the shares of Common Stock) to which the Holder hereof shall continue to be entitled after such exercise in accordance with this Warrant; provided, that the failure of the Holder hereof to make any such request shall not affect the continuing obligation of the Company to the Holder hereof in respect of such rights.
     12.  Descriptive Headings and Governing Law . The descriptive headings of the several sections and paragraphs of this Warrant are inserted for convenience only and do not constitute a part of this Warrant. This Warrant shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the State of California.

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     13.  Lost Warrants or Stock Certificates . The Company represents and warrants to the Holder hereof that upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction, or mutilation of any Warrant or stock certificate and, in the case of any such loss, theft or destruction, upon receipt of an indemnity reasonably satisfactory to the Company, or in the case of any such mutilation upon surrender and cancellation of such Warrant or stock certificate, the Company at its expense will make and deliver a new Warrant or stock certificate, of like tenor, in lieu of the lost, stolen, destroyed or mutilated Warrant or stock certificate.
     14.  Fractional Shares . No fractional shares shall be issued upon exercise of this Warrant. The Company shall, in lieu of issuing any fractional share, pay the holder entitled to such fraction a sum in cash equal to such fraction multiplied by the then effective Stock Purchase Price.
     15.  Representations of Holder . With respect to this Warrant, Holder represents and warrants to the Company as follows:
          15.1 Experience . It is experienced in evaluating and investing in companies engaged in businesses similar to that of the Company; it understands that investment in this Warrant involves substantial risks; it has made detailed inquiries concerning the Company, its business and services, its officers and its personnel; the officers of the Company have made available to Holder any and all written information it has requested; the officers of the Company have answered to Holder’s satisfaction all inquiries made by it; in making this investment it has relied upon information made available to it by the Company; and it has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of investment in the Company and it is able to bear the economic risk of that investment.
          15.2 Investment . It is acquiring this Warrant for investment for its own account and not with a view to, or for resale in connection with, any distribution thereof. It understands that the Warrant, the shares of Common Stock issuable upon exercise thereof, have not been registered under the Securities Act nor qualified under applicable state securities laws.
          15.3 Rule 144 . It acknowledges that this Warrant and the Common Stock must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. It has been advised or is aware of the provisions of Rule 144 promulgated under the Securities Act.
          15.4 Access to Data . It has had an opportunity to discuss the Company’s business, management and financial affairs with the Company’s management and has had the opportunity to inspect the Company’s facilities.
     16.  Additional Representations and Covenants of the Company . The Company hereby represents, warrants and agrees as follows:
          16.1 Corporate Power . The Company has all requisite corporate power and authority to execute and deliver this Warrant and to perform its obligations hereunder.
          16.2 Authorization . This Warrant has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Holder, constitutes a valid and binding obligation of the Company, enforceable in accordance with its terms, except that the enforcement thereof may be subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles, whether such principles are considered in a proceeding at law or in equity.
          16.3 Offering . Assuming the truth and accuracy of Holder’s representations set forth in Section 16 hereof, the offer, issuance and sale of this Warrant by the Company to the Holder is, and the issuance of Common Stock upon exercise of this Warrant by the Holder will be, exempt from the registration requirements of the Securities Act.

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          16.4 Stock Issuance . Upon exercise of this Warrant, the Company will use its reasonable best efforts to cause stock certificates representing the shares of Common Stock purchased pursuant to the exercise to be issued in the name of Holder, its nominees or permitted assignees, as applicable, at the time of such exercise.
          16.5 Certificate and By-Laws . The Company has provided Holder with true and complete copies of the Company’s Certificate of Incorporation, By-Laws, and each Certificate of Determination or other charter document setting, forth any rights, preferences and privileges of Company’s capital stock, each as amended and in effect on the date of issuance of this Warrant.
          16.6 Financial and Other Reports . From time to time up to the earlier of the Expiration Date or the complete exercise of this Warrant, the Company shall furnish to Holder (i) within 120 days after the close of each fiscal year of the Company, an audited balance sheet and statement of changes in financial position at and as of the end of such fiscal year, together with an audited statement of income for such fiscal year; (ii) within 45 days after the close of each fiscal quarter of the Company, an unaudited balance sheet and statement of cash flows at and as of the end of such quarter, together with an unaudited statement of income for such quarter; and (iii) promptly after sending, making available, or filing, copies of all reports, proxy statements, and financial statements that the Company sends or makes available to its stockholders and all registration statements and reports that the Company files with the Securities and Exchange Commission (the “SEC”); provided, however, that after the closing of a firmly underwritten public offering of the Company’s Common Stock, so long as the Company files all annual, quarterly and current reports with the SEC within the time periods specified in the SEC’s rules and regulations, the Company shall be deemed to have satisfied the obligations in this Section 16.6.
     IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its officers, thereunto duly authorized this ___ day of                                           , 200___.
         
ATHERSYS, INC.
 
   
By:        
  Name:        
  Title:        
 

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FORM OF SUBSCRIPTION
(To be signed only upon exercise of Warrant)
To:                                          
   The undersigned, the holder of the within Warrant, hereby irrevocably elects to exercise the purchase right represented by such Warrant for, and to purchase thereunder,                                           (                      )(1) shares of Common Stock of Athersys, Inc., and herewith makes payment of                                           Dollars ($                      ) therefor, and requests that the certificates for such shares be issued in the name of, and delivered to,                                           , whose address is                                                                                     .
 
   The undersigned hereby elects to convert                      percent (___%) of the value of the Warrant pursuant to the provisions of Section 1(b) of the Warrant.
     The undersigned represents that it is acquiring such Common Stock for its own account for investment and not with a view to or for sale in connection with any distribution thereof (subject, however, to any requirement of law that the disposition thereof shall at all times be within its control.
     DATED:                                          
     
 
 
 
(Signature must conform in all respects to name of holder as specified on the face of the Warrant)

 
 
 


 
 
 
(Address)
 
(1)   Insert here the number of shares called for on the face of the Warrant (or, in the case of a partial exercise, the portion thereof as to which the Warrant is being exercised), in either case without making any adjustment for additional Common Stock or any other stock or other securities or property or cash which, pursuant to the adjustment provisions of the Warrant, may be deliverable upon exercise.

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ASSIGNMENT
     FOR VALUE RECEIVED, the undersigned, the holder of the within Warrant, hereby sells, assigns and transfers all of the rights of the undersigned under the within Warrant, with respect to the number of shares of Common Stock covered thereby set forth herein below, unto:
     
Name of Assignee   Address     No. of Shares
Dated: ___________________________
     
 
 
 
(Signature must conform in all respects to name of holder as specified on the face of the Warrant

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EXHIBIT 10.1
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THE REDACTED PORTIONS OF THIS EXHIBIT, AND SUCH CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
RESEARCH COLLABORATION AND LICENSE AGREEMENT
      This Research Collaboration and License Agreement (the “Agreement”) is made and entered into as of December 8, 2000 (the “Effective Date”) by and between Athersys, Inc. , a Delaware corporation having its principal offices at 3201 Carnegie Avenue, Cleveland, Ohio 44115 (“Athersys”), and Bristol-Myers Squibb Company , a Delaware corporation having offices at Route 206 and Province Line Road, Princeton, New Jersey 08543 (“BMS”). Athersys and BMS may be referred to herein individually as a “Party” and collectively as the “Parties.”
Recitals
      A.  Athersys has developed and owns technology and intellectual property rights relating to methods for activating gene or protein expression in cells, referred to by Athersys as the Random Activation of Gene Expression or RAGE technology, which includes the RAGE-VT technology useful for creating cell lines that express particular desired proteins.
      B.  BMS desires to engage Athersys to create certain such cell lines, using the RAGE-VT technology, each of which expresses a specific cell surface or cellular protein of interest to BMS, and to obtain license rights to use such cell lines for internal research, development and commercialization of pharmaceutical products.
      C.  Athersys is willing to create and provide BMS with the desired cell lines pursuant to the terms of this Agreement.
      Now, Therefore , in consideration of the foregoing and the covenants and promises contained in this Agreement, the Parties agree as follows:
1. Definitions
     As used herein, the following capitalized terms shall have the following meanings (with terms defined in the singular having the same meanings when used in the plural):
      1.1 “Accepted Cell Line” shall have the meaning assigned to such term in Section 2.3.
      1.2 “Affiliate” shall mean, with respect to a Party, any corporation or other entity that, directly or indirectly, controls, is controlled by or is under the common control with such Party. For the purpose of this definition, “control” shall mean (a) the direct or indirect ownership of fifty percent (50%) or more of the outstanding shares or other voting rights of the subject entity to elect directors, or (b) if such amount of ownership of a foreign entity is not permitted by law, ownership of the maximum amount of such entity as permitted by law, or (c) the actual ability to control and direct the management of the subject entity.
      1.3 “Athersys Know How” shall mean the Information that is Controlled by Athersys during the term of this Agreement and relates directly to Collaboration Cell Lines, but excluding Athersys Patents.

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      1.4 “Athersys Patents” shall mean all Patents that are Controlled by Athersys during the term of the Agreement and contain a Valid Claim covering a Collaboration Cell Line or its method of manufacture or use in the Field.
      1.5 “Athersys Technology” shall mean the Athersys Know-How and Athersys Patents collectively.
      1.6 “Candidate Compound” shall mean:
           (a) any compound that has activity, with respect to the target protein expressed by the applicable Accepted Cell Line, initially discovered or detected by using an Accepted Cell Line or materials or assays derived from an Accepted Cell Line, where such activity is potentially useful for therapeutic or prophylactic use, or
           (b) any compound that is an analog, homolog, isomer or other chemical derivative of a compound that meets the criteria in subsection (a) above (the “Parent Compound”), provided that such compound (i) was made by or on behalf of BMS or its Affiliate or sublicensee based on information relating to the Parent Compound, and (ii) has activity that is potentially useful for therapeutic or prophylactic use and is similar or related to the activity of such Parent Compound (with the understanding that such activity may be superior to the activity of the Parent Compound, in any appropriate criteria).
      1.7 “Collaboration Cell Line” shall mean any cell line made by Athersys pursuant to its work under this Agreement using the RAGE Technology.
      1.8 “Confidential Information” shall mean (a) any proprietary or confidential information or material of a Party in tangible form disclosed hereunder that is (i) marked as “Confidential” at the time it is delivered to the receiving Party, or (ii) designated as confidential or proprietary in a written memorandum provided to the receiving Party by the disclosing Party within thirty (30) days of such disclosure, or (b) any proprietary or confidential information of a Party disclosed orally hereunder that is identified as confidential or proprietary when disclosed and designated as confidential or proprietary in a written memorandum provided to the receiving Party by the disclosing Party within thirty (30) days of such oral disclosure by the disclosing Party. Further, it is agreed that if Athersys discloses to BMS that it is working on a particular protein or gene target, such information shall be treated by BMS as the Confidential Information of Athersys. Still further, it is agreed that Athersys shall treat the fact that BMS has nominated a specific target under Section 2.1 (and/or Section 2.5, as the case may be) and the fact that Athersys has provided BMS with a corresponding Collaboration Cell Line under Section 2.2 as Confidential Information of BMS.
      1.9 “Controlled” shall mean, with respect to any material, Information or intellectual property right, that a Party owns or has a license to such material, Information or intellectual property right and has the ability to grant to the other Party the licenses or sublicenses thereto as provided for herein without violating the terms of any agreement with any Third Party.
      1.10 “Field” shall mean use of the Accepted Cell Lines by BMS solely for BMS’s internal discovery, research, development and/or commercialization of Products. For the avoidance of doubt, subject to Section 3.5(b), the Field shall include BMS’s use of the Accepted

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Cell Lines in connection with any bona fide collaboration between BMS and an academic and/or corporate collaborator, provided that any compounds initially discovered or detected pursuant to such collaboration by using an Accepted Cell Line or materials or assays derived from an Accepted Cell Line shall be deemed to be Candidate Compounds.
      1.11 “Improvement” shall mean any improvement, modification or enhancement to the Athersys Know-How or Athersys Patents or to the Accepted Cell Lines, and any Information relating thereto that the possessing Party has the right to disclose to the other Party without violating contractual obligations to a Third Party. Furthermore, any Improvement that can be practiced or has utility solely in connection with one or more Accepted Cell Lines and/or the Athersys Know-How or Athersys Patents (but, as to the latter, only to the extent that such Athersys Patent covers a particular Accepted Cell Line) shall be referred to as a “Specific Improvement,” and any other Improvement shall be referred to as a “General Improvement.”
      1.12 “Information” shall mean information, results and/or data of any type whatsoever, in any tangible or intangible form, including without limitation databases, inventions, practices, methods, techniques, specifications, formulations, formulae, knowledge, know-how, skill, experience, test data including pharmacological, biological, chemical, biochemical, toxicological and clinical test data, analytical and quality control data, stability data, studies and procedures, and patent and other legal information or descriptions.
      1.13 “License” shall have the meaning assigned to it in Section 3.2.
      1.14 “Net Sales” shall mean the amount invoiced or otherwise billed by BMS or its Affiliate or licensee for sales or other commercial disposition of a Product to a Third Party purchaser, less the following to the extent included in such billing or otherwise actually allowed or incurred with respect to such sales: (i) discounts, including cash, trade and quantity discounts, price reduction programs, retroactive price adjustments with respect to sales of a product, charge-back payments and rebates granted to managed health care organizations or to federal, state and local governments (or their respective agencies, purchasers and reimbursers) or to trade customers, including but not limited to, wholesalers and chain and pharmacy buying groups; (ii) credits or allowances actually granted upon rejections or returns of Products, including for recalls or damaged goods; (iii) freight, postage, shipping and insurance charges actually allowed or paid for delivery of Products, to the extent billed; (iv) customs duties, tariffs, surcharges and other governmental charges incurred in connection with the exportation or importation of a Product; (v) bad debts relating to sales of Products that are actually written off by BMS in accordance with generally accepted accounting principles, consistently applied, during the applicable royalty calculation period, and (vi) taxes, duties or other governmental charges levied on, absorbed or otherwise imposed on sale of Products, including without limitation value-added taxes, or other governmental charges otherwise measured by the billing amount, when included in billing, as adjusted for rebates and refunds, but specifically excluding taxes based on net income of the seller; provided that all of the foregoing deductions are calculated in accordance with generally accepted accounting principles consistently applied throughout the party’s organization.
Notwithstanding the foregoing, if any Product is sold under a bundled or capitated arrangement with other BMS products, then, solely for the purpose of calculating Net Sales for royalty purposes hereunder, any discount on such Product sold under such an arrangement shall be no

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greater, on a percentage basis based on the gross selling price prior to discount, than the largest percentage discount applied on the other pharmaceutical products sold within such bundled arrangement for the applicable accounting period. In case of any dispute as to the applicable discount numbers under the preceding sentence, the determination of same shall be calculated and certified by BMS’ independent public accountants, whose decision shall be binding.
A sale of a Product is deemed to occur upon the earliest of invoicing or transfer of title in the Product to the Third Party purchaser. In the event that BMS, after reasonable efforts, cannot calculate accurately the Net Sales of a sublicensee in a particular country, the Parties will meet and negotiate in good faith an appropriate means for calculating “Net Sales” in such a situation.
For sake of clarity and avoidance of doubt, sales by BMS, its Affiliates or sublicensees of a Product to a Third Party distributor of such Product in a given country shall be considered sales to a Third Party customer, but sales and/or transfers of a Product between or among BMS, its Affiliates or sublicensees shall not be considered sales to a Third Party customer, so long as such recipient subsequently resells the Product. Any Products used (but not sold for consideration) for promotional or advertising purposes or used for clinical or other research purposes shall not be considered in determining Net Sales hereunder.
In the event a Product is sold as an end-user product consisting of a combination of active functional elements or as a combined product and/or service, Net Sales, for purposes of determining royalty payments on such Product, shall be calculated by multiplying the Net Sales of the end-user product and/or service by the fraction A over A+B, in which A is the gross selling price of the Product portion of the end-user product and/or service when such Product is sold separately during the applicable accounting period in which the sales of the end-user product were made, and B is the gross selling price of the other active elements and/or service, as the case may be, of the end-user product and/or service sold separately during the accounting period in question. All gross selling prices of the elements of such end-user product and/or service shall be calculated as the average gross selling price of the said elements during the applicable accounting period for which the Net Sales are being calculated. In the event that, in any country or countries, no separate sale of either such above-designated Product or such above designated elements of the end-user product and/or service are made during the accounting period in which the sale was made or if gross retail selling price for an active functional element, component or service, as the case may be, cannot be determined for an accounting period, Net Sales allocable to the Product in each such country shall be determined by mutual agreement reached in good faith by the Parties prior to the end of the accounting period in question based on an equitable method of determining same that takes into account, on a country by country basis, variations in potency, the relative contribution of each active agent, component or service, as the case may be, in the combination, and relative value to the end user of each active agent, component or service, as the case may be.
Notwithstanding the foregoing, it is agreed that drug delivery vehicles, adjuvants, and excipients shall not be deemed to be “active ingredients” or “active functional elements,” the presence of which in a Product would be deemed to create a combination product subject to the terms of the preceding paragraph.

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      1.15 “Patents” shall mean all issued United States and foreign patents (including all reissues, extensions, renewals, substitutions, re-examinations, supplementary protection certificates and the like, and patents of addition) and pending United States and foreign patent applications (including, without limitation, all provisional and nonprovisional applications and all continuations, continuations-in-part and divisions thereof).
      1.16 “Product” shall mean any product containing a Candidate Compound, including any formulation, dosage form, packaged form or delivery means thereof.
      1.17 “RAGE Technology” shall mean any and all intellectual property, whether or not patentable, that is owned or licensed by Athersys and relates to Athersys’ techniques for activating gene expression, which are referred to by Athersys collectively as Random Activation of Gene Expression or RAGE technology.
      1.18 “Term” shall have the meaning assigned to it in Section 11.1.
      1.19 “Third Party” means any entity other than Athersys, BMS or an Affiliate of either of them.
      1.20 “Valid Claim” shall mean either (i) a claim of issued and unexpired letters patent which has not been held permanently revoked, unenforceable or invalid by a decision of a court or other governmental agency of competent jurisdiction, unappealable or unappealed within the time allowed for appeal and that is not admitted to be invalid or unenforceable through reissue, disclaimer or otherwise, or (ii) a claim of a pending patent application that has not been pending for more than seven (7) years and that has not been abandoned or finally rejected without the possibility of appeal or refiling.
2. Collaboration Program
      2.1 Review of Proposed Cell Lines by Athersys. Athersys shall have the right to review and approve, as provided in Exhibit A, the target protein to be expressed in each RAGE-VT cell line that BMS proposes be made under this collaboration, as set forth in Exhibit A. Athersys shall complete such review within thirty (30) days after the Effective Date of this Agreement, or the date Athersys receives information from BMS regarding a proposed target to be expressed in a RAGE-VT cell line (if later), or upon any other schedule to which the Parties may mutually agree. If Athersys approves of a proposed RAGE-VT cell line, Athersys shall promptly thereafter commence work under Section 2.2 to create a RAGE-VT cell line based thereon, and any such cell line shall be a “Collaboration Cell Line.” If Athersys rejects any of the proposed RAGE-VT cell lines in accordance with the parameters set forth in Exhibit A, Athersys shall promptly notify BMS and BMS shall have the right to amend Exhibit A in order to designate a replacement RAGE-VT cell line (for each one of the RAGE-VT cell lines originally proposed and rejected by Athersys) within sixty (60) days after receiving notice of the rejection; provided, however, that Athersys shall again have the right to review and approve any such proposed replacement cell line, as above. Athersys shall not be obligated to supply to BMS more than a total of six (6) Collaboration Cell Lines unless BMS exercises its option under Section 2.5.

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      2.2 Supply of Collaboration Cell Lines; Status Reports. Athersys shall use reasonable efforts to deliver to BMS each Collaboration Cell Line that Athersys approves under Section 2.1 within six (6) months after such approval. Prior to the first Anniversary Date (as defined in Section 2.5 below), Athersys shall provide BMS with summary reports, which shall be written, of the status and progress of Athersys’s efforts to provide Collaboration Cell Lines every six (6) weeks. Such reports shall be sent to the attention of the BMS Project Coordinator. If the Parties proceed with additional Collaboration Cell Lines under Section 2.5, Athersys will provide BMS such progress reports as the Parties reasonably agree to at such time.
      2.3 Review of Collaboration Cell Lines by BMS.
           (a) BMS shall have the right, for a period of forty-five (45) days after receiving each Collaboration Cell Line, to review such Collaboration Cell Line for the purpose of evaluating whether or not the production of protein meets the applicable requirements referred to in Exhibit A. Unless BMS provides written notice to Athersys that such Collaboration Cell Line does not meet such requirements within such period, such Collaboration Cell Line shall be accepted by BMS and shall be an “Accepted Cell Line” for all purposes hereunder. Even if any Collaboration Cell Line fails to produce the amount of protein meeting the applicable requirements set forth in Exhibit A, BMS shall nonetheless have the right, but not the obligation, to accept such Collaboration Cell Line as an Accepted Cell Line, by written notice to Athersys within such forty-five (45) day period. If BMS does not accept a Collaboration Cell Line, BMS and Athersys shall discuss the reason(s) such Collaboration Cell Line was not accepted, and if BMS and Athersys agree that modifying the approach to creating a Collaboration Cell Line is feasible, Athersys shall make such modification and present such modified Collaboration Cell Line to BMS for evaluation and acceptance (if applicable) as provided herein.
           (b) Athersys shall provide the BMS Project Coordinator with at least two (2) weeks’ advance notice of Athersys’ intent to deliver a Collaboration Cell Line to BMS for review under Section 2.3(a), so that BMS may attempt to allocate internal resources appropriately. In the event Athersys fails to do so with respect to any given Collaboration Cell Line, the BMS review period therefor shall be extended to sixty (60) days.
      2.4 Infringement by Accepted Cell Lines. If at any time during the term of the License applicable to a particular Accepted Cell Line, such Accepted Cell Line becomes, or in Athersys’ opinion is likely to become, the subject of a Third Party patent infringement claim based on BMS’ practice of such License, then Athersys shall use commercially reasonable efforts, at its sole expense, either (i) to procure for BMS the right to continue using such Accepted Cell Line, or (ii) to replace or modify such Accepted Cell Line so that it becomes noninfringing while still having substantially the same functionality and efficacy as prior to such replacement or modification. In the event Athersys is not successful in its efforts under clause (i) and/or (ii) of the preceding sentence within three (3) months after any such claim arises, Athersys shall, at BMS’s request, meet to discuss in good faith other possible solutions to the claim.
      2.5 Option To Expand Collaboration Cell Lines. Provided that at least five (5) of the six (6) Collaboration Cell Lines initially provided to BMS pursuant to Section 2.2 have achieved the “HTPS Completion for Accepted Cell Line” milestone as set forth in Exhibit B by

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the fourteen month anniversary of the Effective Date (the first “Anniversary Date”), BMS shall at its option have the right (the “BMS Option”), to gain access to up to forty-four (44) additional Collaboration Cell Lines as follows: BMS shall have the initial right to designate the construction by Athersys of up to a maximum of fifteen (15) additional Collaboration Cell Lines, each of which shall become subject to the terms and conditions of this Agreement. Upon the achievement of the “HTPS Completion for Accepted Cell Line” milestone for the 10th of such additional Cell Lines, BMS would have the right to designate up to fifteen (15) more Collaboration Cell Lines for production hereunder, and the foregoing process would be repeated for up to a maximum of forty-four (44) additional Collaboration Cell Lines. The foregoing is subject to the additional proviso that Athersys shall not be required to provide to BMS more than fifteen (15) Collaboration Cell Lines per year commencing on the Anniversary Date. Notwithstanding any provision of this Section 2.5 to the contrary, the Parties will meet on or about each subsequent Anniversary Date to discuss in good faith whether continuation of the collaboration, as contemplated by this Section 2, is reasonably in accordance with the scientific and business objectives of the Parties. In the event the Parties determine that such continuation is not reasonably within Athersys’s business objectives, any different terms the Parties may negotiate with respect to any continued collaboration hereunder shall be reasonably consistent with the terms on which Athersys is then performing, or reasonably proposing to perform, services of similar character and quantity for Third Parties.
      2.6 Project Coordinators. Each Party shall designate an individual (a “Project Coordinator”) to coordinate, on such Party’s behalf, the day-to-day interaction of and communication between the parties under this Agreement. Each Project Coordinator shall possess the education, training and experience necessary to make him or her reasonably technically qualified to serve as a Project Coordinator. Each Party shall be free to replace its Project Coordinator with new a appointee who has authority to act on behalf of such Party, upon notice to the other Party.
      2.7 Use of Accepted Cell Lines as Validation Tools. The Parties acknowledge and agree that in the future BMS may wish to use one or more particular Accepted Cell Lines to validate and confirm characteristics and properties of compounds whose activity with respect to the applicable target protein was identified other than by use of such Accepted Cell Line (or materials derived therefrom), and thus which do not fall within the definition of Candidate Compounds. If BMS decides that it wishes to obtain a license to make such use of an Accepted Cell Line, BMS shall so notify Athersys at any time during the term of the License with respect to such Accepted Cell Line. Following Athersys’ receipt of such notice, the Parties shall negotiate, diligently and in good faith, commercially reasonable terms and conditions upon which Athersys shall grant BMS such a license. Such negotiations shall continue for a period of 120 days (or such longer period as the Parties may agree to).
3. Licenses.
      3.1 Evaluation License. Subject to the terms of this Agreement, as to each Collaboration Cell Line provided to BMS by Athersys hereunder, Athersys grants to BMS a royalty-free, non-exclusive , worldwide license, without the right to sublicense, under the Athersys Technology solely to conduct internal research evaluation of such Collaboration Cell

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Line as provided in Section 2.3 of this Agreement during the forty-five (45) day period after BMS first receives such Collaboration Cell Line.
      3.2 Research and Development License. Subject to the terms of this Agreement, and effective upon BMS’s acceptance of a particular Accepted Cell Line, Athersys grants to BMS a royalty-bearing, nonexclusive, worldwide license, without the right to sublicense, under the Athersys Technology solely to use each such Accepted Cell Line in the Field (the “License”).
      3.3 General Improvement License. Subject to the terms of this Agreement, BMS grants to Athersys a royalty-free, non-exclusive, worldwide, perpetual, irrevocable license, without the right to sublicense, under BMS’s intellectual property interests in the General Improvements, solely for the conduct of Athersys’s internal research and development activities.
      3.4 Duration of Athersys License.
           (a) Initial License Duration. The License shall terminate, as to a particular Accepted Cell Line, three (3) years after the date that BMS first accepts such Accepted Cell Line from Athersys hereunder, unless extended as provided in subsection (b) below.
           (b) Extended License Duration. BMS shall have the right to extend the term of a particular License, as to each Accepted Cell Line, for additional periods beyond the initial License term, upon notice to Athersys at least thirty (30) days before the expiration of the existing term and upon payment of the applicable Extended License Fee pursuant to Section 4.1(b).
      3.5 Negative Covenants.
           (a) No Other Use by BMS. BMS covenants and agrees that it shall not use the Collaboration Cell Lines for any purpose other than as set forth in Section 3.1 and shall not use the Accepted Cell Lines or any materials derived therefrom for any purpose other than as set forth in Section 3.2. BMS further covenants and agrees that it shall not use or practice the Athersys Technology for any purpose except as expressly permitted in the licenses granted to BMS under Sections 3.1 and 3.2 of this Agreement.
           (b) No Transfer to Third Parties. BMS covenants and agrees that BMS shall not transfer Collaboration Cell Lines or Accepted Cell Lines, or any Information pertaining thereto or any materials derived therefrom, to any Third Party for any purpose, except that BMS may transfer such Information and materials to collaborators to the extent necessary for BMS to exercise its right to use the Accepted Cell Lines in connection with bona fide collaborations with academic and/or commercial partners in the Field, but may not transfer the Accepted Cell Lines to such entities except with Athersys’ prior written consent.
           (c) No Other Use by Athersys. Athersys covenants and agrees that it shall not use or practice the General Improvements for any purpose except as expressly permitted in the licenses granted to Athersys under Section 3.3.
      3.6 Athersys Reserved Rights. BMS understands and agrees that Athersys owns and reserves to itself all rights, title and interest in the Athersys Technology, and to the Collaboration

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Cell Lines and the Accepted Cell Lines, subject only to the licenses granted in Sections 3.1 and 3.2, respectively.
      3.7 Records And Reports.
           (a) Records. BMS shall maintain complete and accurate records that fully and properly reflect all work done and all results achieved, including raw data, in the evaluation of Collaboration Cell Lines, the use of Accepted Cell Lines and the discovery, research and development of Candidate Compounds (“Records”). The Records shall be kept with sufficient detail and in good scientific manner appropriate for patent and regulatory purposes and shall be kept separate and distinct from other work conducted by BMS, all in a manner consistent with BMS’ other internal research and development record keeping.
           (b) Copies and Inspection of Records. Athersys shall have the right, during normal business hours and upon reasonable notice, to inspect the Records for purposes consistent with this Agreement. Athersys shall maintain all Information learned from such inspection of the Records in confidence in accordance with Article 7. All inspections, copying and visits hereunder shall be conducted in a manner and frequency so as not to disrupt BMS’s business and in a manner so as not to cause any disclosure of any other BMS Confidential Information.
           (c) Semi-Annual Reports. Within 30 days following the end of each six (6) month period during the term of the License with respect to each Accepted Cell Line, BMS shall provide to Athersys a written progress report that shall describe the results and developments of the use of such Accepted Cell Line, and the discovery, research and development of Candidate Compounds therewith. With such reports, BMS shall disclose to Athersys in summary form ( i.e., in a manner that does not require BMS to disclose sensitive or competitively-enabling data or information) the development, making, conception or reduction to practice of all Candidate Compounds that are discovered, made, investigated, conceived or reduced to practice by use of such Accepted Cell Line or assays based thereon. In addition, BMS shall fully disclose to Athersys in each such report any Improvements that BMS may have developed during the period covered by such report.
4. Payments.
      4.1 License Fees.
           (a) Initial License Fees. For each Accepted Cell Line, BMS shall pay Athersys a license fee of [$*] * (each, an “Initial License Fee”). The Initial License Fees shall be payable within thirty (30) days after the date of acceptance by BMS of the applicable Accepted Cell Line.
           (b) Extended License Fee. If BMS elects to exercise its rights under Section 3.4(b) to extend the term of the License as to a particular Accepted Cell Line, then BMS shall at its option pay Athersys for each Accepted Cell Line subject to such extension either (i) [$*] for
 
*   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.

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each successive additional one-year extension of such License term or (ii) a one-time payment of [$*] * for the use of such Accepted Cell Line in perpetuity (either, the “Extended License Fee”).
      4.2 Milestone Payments. For each Accepted Cell Line, and for each Candidate Compound identified for clinical development by BMS or its Affiliate or sublicensee, BMS shall pay Athersys the milestone payments set forth in Exhibit B and Exhibit C, respectively, within forty-five (45) days after each milestone event has been achieved for the particular Accepted Cell Line or Candidate Compound (as applicable).
      4.3 Royalty Payments. BMS shall pay Athersys a royalty equal to [*] percent [*%] of Net Sales of all Products worldwide. Each payment of royalties under this Agreement shall be accompanied by a statement of the amount of the total amounts received and calculated as Net Sales during such period, and all other information necessary to determine the appropriate amount of such payments.
      4.4 Royalty Term. For each Product, on a country-by-country basis, BMS shall pay to Athersys royalties under Section 4.3 commencing on the first commercial sale in the applicable country and continuing until the later of (a) the last to expire Patent in such country owned or controlled by BMS or its affiliate or licensee containing a Valid Claim covering such Product or the Candidate Compound therein, or covering the manufacture, use or formulation of such Product or compound, or (b) ten (10) years from the date of such first commercial sale in such country.
      4.5 Blocked Currency. In each country where the local currency is blocked and cannot be removed from the country, at the election of Athersys, royalties accrued in that country shall be paid to Athersys in such country in local currency by deposit in a local bank designated by Athersys.
      4.6 Non-Monetary Consideration. In the event BMS (or its Affiliates or sublicensees) receives any non-monetary consideration in connection with the sale or other commercial disposition of Products, Athersys’s royalty shall be based on the fair monetary value of such other consideration. In such case, BMS shall disclose to Athersys, on a confidential basis, the terms of such arrangement, and the Parties shall agree in good faith on such monetary value, which shall then be included in Net Sales for the period in which it was received by BMS (or its Affiliates or sublicensees).
5. Records and Audit.
      5.1 Records and Audit. During the term of this Agreement and for a period of three (3) years thereafter, BMS shall keep complete and accurate records pertaining to the sale or other disposition of all Products, in sufficient detail to permit Athersys to confirm the accuracy of all payments due hereunder. Athersys shall have the right to cause an independent, certified public accountant to audit such records to confirm BMS’s Net Sales and royalty payments and payments under Section 4.2; provided, however, that such auditor shall not disclose BMS’s Confidential Information to Athersys, except to the extent such disclosure is necessary to verify
 
*   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.

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the portion of the amount of royalties and payments due under this Agreement. Such audits may be exercised once a year, within three (3) years after the period to which such records relate, upon notice to BMS and during normal business hours. Athersys shall bear the full cost of such audit unless such audit discloses a variance of more than five percent (5%) from the amount of royalties and payments under Section 4.2 previously paid for such year. In such case, BMS shall bear the full cost of such audit. The terms of this Section 5.1 shall survive any termination or expiration of this Agreement for a period of three (3) years.
6. Intellectual Property.
      6.1 Ownership .
           (a) Athersys. Athersys shall remain the sole owner of the Athersys Technology, the RAGE Technology, the Collaboration Cell Lines and the Accepted Cell Lines, including any improvements thereto made by Athersys. Athersys shall have the sole responsibility, at its discretion, for patent prosecution and choice of patent counsel in relation to Athersys Patents, and shall pay all expenses associated therewith. BMS hereby assigns and agrees to assign to Athersys its entire interest in any Specific Improvements, which shall be deemed to be part of the Athersys Technology.
           (b) BMS. BMS shall be the sole owner of any inventions and information resulting from BMS’ use of the Accepted Cell Lines, including any Products and General Improvements, but excluding any and all Specific Improvements. BMS shall have the sole responsibility, at its discretion, for patent prosecution and choice of patent counsel in relation to such BMS-owned inventions and the Products and shall pay all expenses associated therewith.
      6.2 Enforcement of Patent Rights . Each Party shall have the sole right, but not the obligation, to institute, prosecute or control any action or proceeding with respect to infringement by a Third Party of one or more issued Patents owned by such Party.
7. Confidentiality.
      7.1 Confidential Information. The Parties agree that, for the Term of this Agreement and for five (5) years thereafter, the receiving Party shall keep completely confidential and shall not publish or otherwise disclose and shall not use for any purpose, except for the purposes expressly permitted by this Agreement, any Confidential Information furnished to it by the disclosing Party. The foregoing obligation shall not apply to any information received by a Party to the extent that it can be established by such receiving Party by competent evidence that such information:
           (a) was already known to the receiving Party, other than under an obligation of confidentiality, at the time of disclosure;
           (b) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the receiving Party;

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           (c) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the receiving Party in breach of this Agreement;
           (d) was independently developed by the receiving Party as demonstrated by competent written evidence prepared contemporaneously with such independent development; or
           (e) was subsequently lawfully disclosed to the receiving Party by a person other than a Party hereto.
      7.2 Authorized Disclosure . Notwithstanding the foregoing, a Party may disclose the Confidential Information of the other Party to the extent such disclosure is necessary to be disclosed in the following instances:
           (a) Regulatory filings made by BMS;
           (b) Prosecuting or defending litigation or responding to valid subpoenas;
           (c) Complying with applicable governmental regulations;
           (d) Conducting clinical trials of BMS, its Affiliates and sublicensees;
           (e) Disclosure, in connection with the performance of this Agreement, to Affiliates, employees, consultants, or agents, each of whom prior to disclosure must be bound by similar obligations of confidentiality and non-use at least equivalent in scope to those set forth in this Section 7;
           (f) Disclosure that is required by applicable law or governmental regulation; and
           (g) Disclosure of the existence and terms of this Agreement and of general summaries of the progress made by the Parties under this Agreement (but excluding the identification of any target nominated by BMS under Section 2.1 and of any Collaboration Cell Line or Accepted Cell Line developed by Athersys hereunder) to existing or potential investment bankers, investors and/or merger or acquisition parties, provided that the disclosing Party obtains from such recipient prior to disclosure an agreement to be bound by obligations of confidentiality and non-use at least similar in scope to those set forth in this Section 7.
      7.3 Disclosure. If a Party is required to make any disclosure of another Party’s Confidential Information that is authorized under subsections (a), (b), (c), (d) or (f) of this Section 7.2, it will give reasonable advance notice to the latter Party of such disclosure and will afford the latter Party a reasonable opportunity, and will cooperate reasonably with such Party, to secure confidential treatment of such information prior to its disclosure (whether through protective orders or otherwise) and to limit the extent of the disclosure as much as possible. Except as otherwise required by law, neither Party shall issue a press release or make any other disclosure of the terms of this Agreement or any aspect of the research conducted pursuant to this Agreement without the prior approval of such press release or disclosure by the other Party hereto. Each Party shall submit any such press release or disclosure to the other Party, and the

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receiving Party shall have ten (10) business days to review and approve any such press release or disclosure, which approval shall not be unreasonably withheld. If the receiving Party does not respond within such ten (10) day period, the press release or disclosure shall be deemed approved. In addition, if a public disclosure is required by law, including without limitation in a filing with the Securities and Exchange Commission, the disclosing Party shall provide copies of the disclosure reasonably in advance of such filing or other disclosure for the nondisclosing Party’s prior review and comment.
      7.4 Confidential Terms. Except as expressly provided herein, each Party agrees not to disclose any terms of this Agreement or any aspect of the research conducted pursuant to this Agreement to any Third Party without the consent of the other Party.
8. Representations and Warranties.
      8.1 Athersys. Athersys represents and warrants that: (i) it is a corporation duly organized validly existing and in good standing under the laws of the State of Delaware; (ii) the execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate action on the part of Athersys; (iii) the performance of Athersys’s obligations under this Agreement will not conflict with its charter documents or result in a material breach of any agreements, contracts or other arrangements to which it is a party; (iv) Athersys will not, during the Term of this Agreement, enter into any agreements, contracts or other arrangements that would be materially inconsistent with its obligations under this Agreement; (v) Athersys has sufficient facilities, experienced personnel and other capabilities reasonably suited to enable it to perform its obligations under this Agreement; (vi) Athersys is the owner of, or has licensed rights to, all of the Athersys Patents in existence on the Effective Date, and has the right to grant the licenses or sublicenses, as the case may be, therefor granted under this Agreement; and (vii) as of the Effective Date, Athersys is not aware of any asserted or unasserted claim or demand which is being, or which Athersys believes can be, rightfully enforced by a Third Party against any of the Athersys Patents that would materially limit, hinder, delay or otherwise adversely affect BMS’s enjoyment of its rights and satisfaction of its obligations under this Agreement.
      8.2 BMS. BMS represents and warrants that: (i) it is a corporation duly organized validly existing and in good standing under the laws of the State of Delaware; (ii) the execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate action on the part of BMS; (iii) the performance of BMS’s obligations under this Agreement will not conflict with its charter documents or result in a material breach of any agreements, contracts or other arrangements to which it is a party; ); (iv) BMS has sufficient facilities, experienced personnel and other capabilities reasonably suited to enable it to perform its obligations under this Agreement; and (v) BMS will not, during the Term of this Agreement, enter into any agreements, contracts or other arrangements that would be materially inconsistent with its obligations under this Agreement.
      8.3 Disclaimer of Warranties. THE ATHERSYS KNOW-HOW, ATHERSYS PATENTS AND COLLABORATION CELL LINES ARE PROVIDED AND LICENSED TO BMS “AS IS”, AND ATHERSYS AND ITS RESPECTIVE AFFILIATES MAKE NO REPRESENTATIONS AND EXTEND NO WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT THERETO OR TO THE

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PRODUCTS OR ATHERSYS TECHNOLOGY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, VALIDITY OF THE PATENT RIGHTS LICENSED HEREUNDER, OR NONINFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.
      8.4 Unknown Biological Properties. BMS understands and agrees that the Collaboration Cell Lines may have unpredictable and unknown biological and/or chemical properties, that they are to be used with caution, and that they are not to be used for testing in or treatment of humans. BMS shall use the Collaboration Cell Lines in compliance with all applicable laws and regulations, including, but not limited to, any laws or regulations relating to the research, testing, production, storage, transportation, export, packaging, labeling or other authorized use of the Collaboration Cell Lines.
      9.  Dispute Resolution.
      9.1 Mediation. If a dispute arises out of or relates to this Agreement, or the breach thereof, and if said dispute cannot be settled through negotiation, the Parties agree first to try in good faith to settle the dispute by good faith discussions by the Vice President of External Science and Technology of BMS and the CEO or senior executive officer of Athersys (or each such person’s designee), and failing resolution thereby by mediation under the Commercial Mediation Rules of the American Arbitration Association, before resorting to arbitration, litigation, or some other dispute resolution procedure.
      9.2 Arbitration. Subject to Section 9.1, Athersys and BMS agree that any dispute or controversy arising out of, in relation to, or in connection with this Agreement, or the validity, enforceability, construction, performance or breach thereof, shall be settled by binding arbitration in New York, New York, under the then-current Rules of Commercial Arbitration of the American Arbitration Association by one (1) arbitrator appointed in accordance with such Rules. The arbitrator shall determine what discovery will be permitted, based on the principle of limiting the cost and time that the Parties must expend on discovery; provided, however, that the arbitrator shall permit such discovery as he or she deems necessary to achieve an equitable resolution of the dispute. The decision and/or award rendered by the arbitrator shall be written, final and non-appealable, absent manifest error, and may be entered in any court of competent jurisdiction. The Parties agree that, any provision of applicable law notwithstanding, they will not request, and the arbitrator shall have no authority to award punitive or exemplary damages against any Party. The costs of any arbitration, including administrative fees and fees of the arbitrator, shall be shared equally by the Parties, unless the arbitrator determines otherwise.
10. Indemnification.
      10.1 By BMS. Subject to Section 10.3, BMS shall indemnify, defend and hold harmless Athersys and its directors, officers and employees (each an “Athersys Indemnitee”) from and against any and all liabilities, damages, losses, costs or expenses (including attorneys’ and professional fees and other expenses of litigation and/or arbitration) (each a “Liability”) resulting from a claim, suit or proceeding made or brought by a Third Party against an Athersys

14


 

Indemnitee arising from or occurring as a result of (i) any breach of the representations and warranties set forth in Section 8.2, or (ii) the performance by BMS of its obligations hereunder.
      10.2 By Athersys. Subject to Section 10.3, Athersys shall indemnify, defend and hold harmless BMS and its directors, officers and employees (each a “BMS Indemnitee”) from and against any and all Liabilities resulting from a claim, suit or proceeding made or brought by a Third Party against a BMS Indemnitee arising from or occurring as a result of (i) any breach of the representations and warranties set forth in Section 8.1, or (ii) the performance by Athersys of its obligations hereunder.
      10.3 Limitation on Indemnity Obligations.
           (a) Negligence, etc. No Athersys Indemnitee or BMS Indemnitee (each, an “Indemnitee”) shall be entitled to the indemnification under Section 10.1 or 10.2, as the case may be, to the comparative extent the Liability for which indemnification is sought was caused by a grossly negligent, reckless or intentional act or omission by the Party with which such Indemnitee is affiliated or any of such Party’s Affiliates or sublicensees or any of their respective directors, officers, employees or authorized agents.
           (b) Target Proteins and Collaboration Cell Lines. Athersys acknowledges and agrees that it will conduct a reasonable intellectual property investigation of each target protein that is the basis of a particular Collaboration Cell Line, and of matters relating to the creation of the Collaboration Cell Line, that BMS selects and Athersys agrees to produce pursuant to Section 2.1, which shall be in addition to any such investigation that BMS may have conducted. BMS also acknowledges and agrees that it will conduct a reasonable intellectual property investigation of each target protein that BMS proposes for selection by Athersys as the basis for producing a Collaboration Cell Line pursuant to Section 2.1, which shall be in addition to any such investigation that Athersys may conduct, and shall disclose to Athersys the results of such investigation. BMS shall not be obligated to provide indemnification under Section 10.1 against any Liabilities resulting from a claim, suit or proceeding to the extent it is alleged, proven or agreed in such claim, suit or proceeding that any such target protein (or the creation of the corresponding Collaboration Cell Line) infringes upon or otherwise violates the intellectual property rights of any Third Party, except to the comparative extent such infringement or violation results from a grossly negligent, reckless or intentional act or omission by BMS or any of BMS’ Affiliates or any of their respective directors, officers, employees or authorized agents.
      10.4 Procedure. In the event that an Indemnitee intends to claim indemnification under this Article 10, it shall promptly notify the indemnifying Party in writing of such alleged Liability. The indemnifying Party shall have the sole right to control the defense and settlement thereof. The indemnifying Party shall have the right to settle or compromise any Liabilities for which it is providing indemnification under this Article 10, provided that the consent of the Indemnitee (which shall not be unreasonably withheld or delayed) shall be required in the event any such settlement or compromise would adversely affect the interests of such Indemnitee. The Indemnitees shall cooperate with the indemnifying Party and its legal representatives in the investigation of any action, claim or liability covered by this Article 10. The Indemnitees shall not, except at their own cost, voluntarily make any payment or incur any expense with respect to

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any claim or suit without the prior written consent of the indemnifying Party, which the indemnifying Party shall not be required to give.
11. Term and Termination.
      11.1 Term of Agreement. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue until expiration upon the end of all royalty and payment obligations of BMS under Article 4, or until such earlier date as the Parties agree in writing to terminate the Agreement or the Agreement terminates as provided below.
      11.2 Termination for Cause. Either Party may terminate this Agreement in the event the other Party has materially breached or defaulted in the performance of any of its obligations hereunder, and such default has continued without cure for sixty (60) days after written notice thereof was provided to the breaching Party by the non-breaching Party. Any termination shall become effective at the end of such sixty (60) day period unless the breaching Party has cured any such breach or default prior to the expiration of the sixty (60) day period. Notwithstanding the above, in the case of a failure to timely pay any amounts due hereunder, the period for cure of any subsequent default following notice thereof shall be thirty (30) days and, unless payment is made within such period the termination shall become effective at the end of such period.
      11.3 Effect of Termination.
           (a) Accrued Rights and Obligations. Termination of this Agreement for any reason shall not release any Party hereto from any liability which, at the time of such termination, has already accrued to the other Party or which is attributable to a period prior to such termination nor preclude either Party from pursuing any rights and remedies it may have hereunder or at law or in equity with respect to any breach of this Agreement. It is understood and agreed that monetary damages may not be a sufficient remedy for any breach of this Agreement and that the non-breaching Party may be entitled to injunctive relief as a remedy for any such breach.
           (b) Return of Confidential Information. Upon any termination of this Agreement, each of Athersys and BMS shall promptly return to the other Party all Confidential Information of the other; provided that counsel of each Party may retain one (1) copy of such Confidential Information solely for archival purposes.
           (c) Survival. Sections 3.3, 3.5 and 11.3, and Articles 4, 5, 6, 7, 9, 10 and 12 of this Agreement shall survive termination of this Agreement for any reason.
12. Miscellaneous.
      12.1 Governing Law. This Agreement and any dispute, including without limitation any arbitration, arising from the performance or breach hereof shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to its conflict of laws rules and regulations.
      12.2 Independent Contractors. The relationship of the parties hereto is that of independent contractors. The parties hereto are not deemed to be agents, partners or joint

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venturers of the others for any purpose as a result of this Agreement or the transactions contemplated thereby.
      12.3 Assignment. Neither Party may assign its rights or obligations under this Agreement absent the prior written consent of the other Party, not to be unreasonably withheld; provided, however, that either Party may assign this Agreement without such consent to any of its Affiliates or to any successor in interest by merger, acquisition or sale of all or substantially all of its assets in a manner such that the assignee will be liable and responsible for the performance and observance of all its duties and obligations hereunder. This Agreement shall be binding upon the successors and permitted assigns of the Parties. Any attempted delegation or assignment not in accordance with this Section 12.3 shall be void and of no force or effect.
      12.4 Notices. All notices, requests and other communications hereunder shall be in writing and shall be personally delivered or sent by telecopy or other electronic facsimile transmission or by registered or certified mail, return receipt requested, postage prepaid, in each case to the respective address specified below, or such other address as may be specified in writing to the other parties hereto:
     
If to BMS:
  Bristol-Myers Squibb Company
 
  Route 206 and Province Line Road
 
  P. O. Box 4000
 
  Princeton, New Jersey 08543-4000
 
  Attn: Vice President and Senior Counsel,
 
           Pharmaceutical Research Institute and
 
           Worldwide Business Development
 
  Fax No.: (609) 252-4232
 
   
If to Athersys:
  Athersys, Inc.
 
  3201 Carnegie Avenue
 
  Cleveland, Ohio 44115-2634
 
  Attn: President
 
  Fax No.: (216) 361-9495
      12.5 Force Majeure. Neither Party shall lose any rights hereunder or be liable to the other Party for damages or losses (except for payment obligations) on account of failure of performance by the defaulting Party if the failure is occasioned by war, strike, fire, Act of God, earthquake, flood, lockout, embargo, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence, intentional conduct or misconduct of the nonperforming Party has exerted all reasonable efforts to avoid or remedy such force majeure; provided, however, that in no event shall a Party be required to settle any labor dispute or disturbance.
      12.6 Advice of Counsel. BMS and Athersys have each consulted counsel of their choice regarding this Agreement, and each acknowledges and agrees that this Agreement shall not be deemed to have been drafted by one Party or another and will be construed accordingly.

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      12.7 Compliance with Laws. Each Party will comply with all applicable laws and regulations in connection with its performance under this Agreement. Each Party shall furnish to the other Party any information requested or required by that Party during the term of this Agreement or any extensions hereof to enable that Party to comply with the requirements of any U.S. or foreign federal, state and/or government agency.
      12.8 Severability. In the event that any provisions of this Agreement are determined to be invalid or unenforceable by a court of competent jurisdiction, the remainder of the Agreement shall remain in full force and effect without said provision. In such event, the parties shall in good faith attempt to negotiate a substitute clause for any provision declared invalid or unenforceable, which substitute clause shall most nearly approximate the intent of the Parties in agreeing to such invalid provision, without itself being invalid.
      12.9 Waiver. It is agreed that no waiver by either Party hereto of any breach or default of any of the covenants or agreements herein set forth shall be deemed a waiver as to any subsequent and/or similar breach or default.
      12.10 Complete Agreement. This Agreement, together with its Exhibits, constitutes the entire agreement, both written and oral, between the Parties with respect to the subject matter hereof, and that all prior agreements, including the term sheet, respecting the subject matter hereof, either written or oral, expressed or implied, are merged and canceled, and are null and void and of no effect. No amendment or change hereof or addition hereto shall be effective or binding on either of the parties hereto unless reduced to writing and duly executed on behalf of both parties.
      12.11 Use of Name. Unless otherwise permitted by this Agreement or required by applicable laws or regulations, neither Party shall use the name or trademarks of the other Party without the prior written consent of such other Party.
      12.12 Headings. The captions to the several Sections and Articles hereof are not a part of this Agreement, but are included merely for convenience of reference only and shall not affect its meaning or interpretation.
      12.13 Counterparts. This Agreement may be executed in two counterparts, each of which shall be deemed an original and which together shall constitute one instrument.

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      In Witness Whereof , BMS and Athersys have executed this Agreement by their respective duly authorized representatives.
                                     
Bristol-Myers Squibb Company       Athersys, Inc.    
 
                                   
By:
                  By:                
 
               
 
                                   
Print Name:           Print Name:        
 
                               
 
                                   
Title:               Title:            
 
                       

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Exhibit A
RAGE-VT CELL LINES
Promptly after the Effective Date the Parties shall agree upon an initial list of specific proteins with respect to which Athersys will create RAGE libraries and promptly thereafter screen and isolate Athersys Cell Lines expressing such proteins. Such list shall be deemed to constitute a part of this Exhibit A. Such list may be supplemented from time to time by mutual agreement of the Parties or by designation of additional specific proteins by BMS and acceptance of such proteins by Athersys, as provided in Section 2.1 (and Section 2.5, to the extent applicable) and in accordance with the procedure provided below.
From time to time, BMS may nominate specific proteins for consideration by Athersys under Section 2.1 (and Section 2.5, to the extent applicable), for use in constructing a Collaboration Cell Line using its RAGE technology and other Athersys Know-How. Any such Collaboration Cell Line shall conform to the general specifications set forth in Exhibit B and to any other specific requirements agreed to by the Parties.
Athersys shall have the right, before accepting such request of a particular protein by BMS hereunder, to review and approve the technical and intellectual property feasibility of constructing the requested Collaboration Cell Line. If requested by Athersys, BMS shall promptly provide to Athersys the relevant technical requirements of BMS for the requested Collaboration Cell Line. Athersys shall make its determination of technical feasibility, intellectual property analysis and/or conflict with preexisting exclusive research obligations to Third Parties or preexisting internal research programs for which screening has commenced prior to receiving notice (a “Pre-existing Program”), within thirty (30) days of the request by BMS. If Athersys believes that the project is not constrained by any of these considerations or fails to provide any such notice within such thirty (30) day period, then the nominated protein (and corresponding Collaboration Cell Line) shall be deemed to be added to this Exhibit A. If Athersys believes the project is constrained by any of such considerations and provides such notice within such thirty (30) day period, such protein and cell line shall not be added to Exhibit A; provided that Athersys shall provide to BMS all pertinent information Controlled by Athersys regarding the basis for its rejection of such request. In that event, BMS shall be entitled to nominate another protein (with the foregoing process being repeated), until a protein nominated by BMS hereunder is accepted by Athersys. For purposes of calculating the maximum number of cell lines permitted under this Agreement, any substitute request made by BMS shall be deemed to have been made as of the date of the original request.
In addition, in the event Athersys commences a Pre-existing Program with respect to a target (either internally or with a Third Party), and BMS subsequently proposes such target under Section 2.1, Athersys shall promptly inform BMS of such program and request that BMS propose a substitute target. In such event, Athersys shall, upon BMS’ request, provide, on a confidential basis, a reasonable demonstration of such commencement and prosecution of any such Pre-existing Program for a given target prior to the date of BMS’ proposal of such target under Section 2.1.

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Exhibit B
MILESTONE PAYMENTS – ACCEPTED CELL LINES
     
Milestone   Payment
HTS Completion for Accepted Cell Line
  [$*] *
Verification of target amplification
   
Provide quantitation of target mRNA expression level in the selected clonal cells, with comparison to basal level expression in cells without target amplification. When known regulators of the target pathway give the expected physiological response.
   
 
   
Quantitative assay performance
   
Calculated signal window of Z’ assay performance parameters will be determined, on a cell line-by-cell line basis, during the validation study, but in each case will be equal to, or greater than, 0.4, with an optimal level of 0.5 or greater, and meet screening requirements; performance in such range for the duration of the screen, or three months, whichever is less.
   
 
   
Screening deck size
   
To be specified upon completion of analysis by BMS.
   
 
   
Potency determination
   
Potency values for reference compounds vary by less than a factor of 5 during the course of the screen and evaluation of the screen “hits.”
   
 
   
Transition to Full Discovery
  [$*]
Upon Program Transition to Full Discovery, as passed by BMS’ Lead Discovery Operating Committee, of a Candidate Compound the activity of which was initially discovered through the use of an Accepted Cell Line or materials or assays developed from such Accepted Cell Line; provided, however, that after BMS has made this milestone payment with respect to any Candidate Compound initially discovered through the use of an Accepted Cell Line (or such related materials or assays), BMS shall not be required to make this payment with respect to any other Candidate Compounds discovered through the use of such Accepted Cell Line (or such related materials or assays).
   
 
Early Candidate Notice (“ECN”)
  [$*]
Upon delivery of an ECN to BMS’ Early Development Operating Committee that a Candidate Compound has been selected for exploratory development and a first-in-man study; provided, however, that after BMS
   
 
*   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.

21


 

     
Milestone   Payment
has made this milestone payment with respect to any Candidate Compound initially discovered through the use of an Accepted Cell Line (or such related materials or assays), BMS shall not be required to make this payment with respect to any other Candidate Compounds discovered through the use of such Accepted Cell Line (or such related materials or assays).
   
BMS shall promptly notify Athersys of the first occurrence of any of the foregoing milestones.

22


 

Exhibit c
MILESTONE PAYMENTS – CANDIDATE COMPOUNDS
     
Milestone   Payment
Filing of first IND for the Candidate Compound directed against a designated target expressed by an Accepted Cell Line
  [$*] *
Initiation of first Phase II clinical study for the Candidate Compound
  [$*]
Initiation of first Phase III clinical study for the Candidate Compound
  [$*]
Approval of a Product containing the Candidate Compound by Food and Drug Administration as drug
  [$*]
As used in this Exhibit C, the phrase “Initiation of first Phase III clinical study” shall be deemed to include, if a party conducts a Phase II/III study on a Candidate Compound, the point during such Phase II/III clinical trial when the party conducting the trial has the regulatory approval to proceed with such trial as a pivotal trial.
BMS shall promptly notify Athersys of the first occurrence of any milestone with respect to each Candidate Compound. Milestone payments shall be made only once with respect to any given Candidate Compound, regardless of the number of indications sought (or approvals obtained) with respect to such Candidate Compound, whether alone or in combination with other compounds or products, and regardless of any new dosage strengths, preparations or forms of administration for such Candidate Compound.
If BMS develops as a back-up compound that inhibits or otherwise modulates the activity of a particular molecular target of a Candidate Compound on which BMS is already making milestone payments, then BMS may conduct clinical development on such back-up or follow-on compounds and shall not be obligated to make any milestone payments with respect to any such back-up or follow-on compound, except as otherwise provided below. In the event that a particular Candidate Compound is dropped from active clinical development work or marketing for safety or efficacy reasons and is specifically replaced with a different compound targeting the same molecular target as such dropped Candidate Compound, such new compound shall be deemed a “Replacement Compound.” BMS shall not be obligated to make milestone payments that were earlier made with respect to a dropped Candidate Compound and replaced by a Replacement Compound, but, subject to the preceding paragraph, BMS shall pay all milestone payments for milestone events achieved by such Replacement Compound that had not been achieved by such dropped Candidate Compound.
 
*   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.

23


 

Table Of Contents
                 
            Page
1.   Definitions     1  
 
  1.1   “Accepted Cell Line”     1  
 
  1.2   “Affiliate”     1  
 
  1.3   “Athersys Know How”     1  
 
  1.4   “Athersys Patents”     2  
 
  1.5   “Athersys Technology”     2  
 
  1.6   “Candidate Compound”     2  
 
  1.7   “Collaboration Cell Line”     2  
 
  1.8   “Confidential Information”     2  
 
  1.9   “Controlled”     2  
 
  1.10   “Field”     2  
 
  1.11   “Improvement”     2  
 
  1.12   “Information”     2  
 
  1.13   “License”     3  
 
  1.14   “Net Sales”     3  
 
  1.15   “Patents”     4  
 
  1.16   “Product”     4  
 
  1.17   “RAGE Technology”     4  
 
  1.18   “Term”     4  
 
  1.19   “Third Party”     4  
 
2.   Collaboration Program     5  
 
  2.1   Review of Proposed Cell Lines by Athersys     5  
 
  2.2   Supply of Collaboration Cell Lines     5  
 
  2.3   Review of Collaboration Cell Lines by BMS     5  
 
  2.4   Option To Expand Collaboration Cell Lines     5  
 
3.   Licenses.     5  
 
  3.1   Evaluation License     5  
 
  3.2   Research and Development License     6  
 
  3.3   Term of Athersys License     6  
 
      (a) Initial License Term     6  
 
      (b) Extended License Term     6  

i.


 

Table Of Contents
(continued)
                 
            Page
 
  3.4   Negative Covenants     6  
 
      (a) No Other Use     6  
 
      (b) No Transfer to Third Parties     6  
 
  3.5   Athersys Reserved Rights     6  
 
  3.6   Records And Reports     6  
 
      (a) Records     6  
 
      (b) Copies and Inspection of Records     7  
 
      (c) Quarterly Reports     7  
 
4.   Payments     7  
 
  4.1   License Fees     7  
 
      (a) Initial License Fees     7  
 
      (b) Extended License Fee     7  
 
  4.2   Milestone Payments     7  
 
  4.3   Royalty Payments     7  
 
  4.4   Royalty Term     8  
 
  4.5   Blocked Currency     8  
 
  4.6   Non-Monetary Consideration     8  
 
5.   Records and Audit     8  
 
  5.1   Records and Audit     8  
 
6.   Intellectual Property     8  
 
  6.1   Ownership     8  
 
      (a )Athersys     8  
 
      (b) BMS     8  
 
  6.2   Enforcement of Patent Rights     9  
 
7.   Confidentiality     9  
 
  7.1   Confidential Information     9  
 
  7.2   Authorized Disclosure     9  
 
  7.3   Public Disclosure     10  
 
  7.4   Confidential Terms     10  
 
8.   Representations and Warranties     10  
 
  8.1   Athersys     10  

ii.


 

Table Of Contents
(continued)
                 
            Page
 
  8.2   BMS     10  
 
  8.3   Disclaimer of Warranties     10  
 
  8.4   Unknown Biological Properties     11  
 
9.   Dispute Resolution     11  
 
  9.1   Mediation     11  
 
  9.2   Arbitration     11  
 
10.   Indemnification     11  
 
  10.1   BMS     11  
 
  10.2   Athersys     12  
 
  10.3   Procedure     12  
 
11.   Term and Termination     12  
 
  11.1   Term of Agreement     12  
 
  11.2   Termination for Cause     12  
 
  11.3   Effect of Termination     12  
 
      (a) Accrued Rights and Obligations     12  
 
      (b) Return of Confidential Information     13  
 
      (c) Survival     13  
 
12.   Miscellaneous     13  
 
  12.1   Governing Law     13  
 
  12.2   Independent Contractors     13  
 
  12.3   Assignment     13  
 
  12.4   Notices     13  
 
  12.5   Force Majeure     14  
 
  12.6   Advice of Counsel     14  
 
  12.7   Compliance with Laws     14  
 
  12.8   Further Assurances     14  
 
  12.9   Severability     14  
 
  12.10   Waiver     14  
 
  12.11   Complete Agreement     14  
 
  12.12   Use of Name     15  
 
  12.13   Headings     15  
 
  12.14   Counterparts     15  

iii.


 

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5.

 

EXHIBIT 10.2
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THE REDACTED PORTIONS OF THIS EXHIBIT, AND SUCH CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CELL LINE COLLABORATION AND LICENSE AGREEMENT
      This Cell Line Collaboration and License Agreement (the “Agreement”) is made and entered into as of July 1, 2002 (the “Effective Date”), by and between Athersys, Inc. , a Delaware corporation having its principal offices at 3201 Carnegie Avenue, Cleveland, Ohio 44115 (“Athersys”), and Bristol-Myers Squibb Company , a Delaware corporation having offices at Route 206 and Province Line Road, Princeton, New Jersey 08543 (“BMS”). Athersys and BMS may be referred to herein individually as a “Party” and collectively as the “Parties.”
Recitals
      A.  Athersys has developed and owns technology and intellectual property rights relating to methods for activating gene or protein expression in cells, referred to by Athersys as the Random Activation of Gene Expression or RAGE technology, which includes the RAGE-VT technology useful for creating cell lines that express particular desired proteins.
      B.  BMS desires to engage Athersys to create certain such cell lines, using the RAGE-VT technology, each of which expresses a specific cell surface or cellular protein of interest to BMS, and to obtain license rights to use such cell lines for internal research, development and commercialization of pharmaceutical products.
      C.  Athersys is willing to create and provide BMS with the desired cell lines pursuant to the terms of this Agreement.
      D.  Concurrently with entering into this Agreement, Athersys and BMS are amending that certain Research Collaboration and License Agreement between the Parties dated December 8, 2000 (the “Original Agreement”), regarding a pilot program relating to Athersys creating certain cell lines for BMS expressing particular desired proteins using the RAGE-VT technology. For the avoidance of doubt, the Parties’ respective rights and obligations with respect to such cell lines shall continue to be governed by the Original Agreement (as may be amended from time to time) and not this Agreement.
      Now, Therefore , in consideration of the foregoing and the covenants and promises contained in this Agreement, the Parties agree as follows:
1.   Definitions
     As used herein, the following capitalized terms shall have the following meanings (with terms defined in the singular having the same meanings when used in the plural):
      1.1 “Accepted Cell Line” shall have the meaning assigned to such term in Section 2.3(a).

 


 

      1.2 “Affiliate” shall mean, with respect to a Party, any corporation or other entity that, directly or indirectly, controls, is controlled by or is under the common control with such Party. For the purpose of this definition, “control” shall mean (a) the direct or indirect ownership of fifty percent (50%) or more of the outstanding shares or other voting rights of the subject entity to elect directors, or (b) if such amount of ownership of a foreign entity is not permitted by law, ownership of the maximum amount of such entity as permitted by law, or (c) the actual ability to control and direct the management of the subject entity.
      1.3 “Athersys Know-How” shall mean the Information that is Controlled by Athersys during the term of this Agreement and relates directly to Collaboration Cell Lines or their method of manufacture or use in the Field or for Counterscreening, as applicable, but excluding Athersys Patents.
      1.4 “Athersys Patents” shall mean all Patents that are Controlled by Athersys during the term of the Agreement and contain a Valid Claim covering a Collaboration Cell Line or its method of manufacture or use in the Field or for Counterscreening, as applicable.
      1.5 “Athersys Technology” shall mean the Athersys Know-How and Athersys Patents collectively.
      1.6 “Candidate Compound” shall mean:
           (a) any compound that has activity, with respect to the target protein expressed by the applicable Accepted Cell Line, which activity is initially discovered or detected by using an Accepted Cell Line or materials or assays derived from an Accepted Cell Line, where such activity is potentially useful for therapeutic or prophylactic use, or
           (b) any compound that is an analog, homolog, isomer or other chemical derivative of a compound that meets the criteria in subsection (a) above (the “Parent Compound”), provided that such compound (i) was made by or on behalf of BMS or its Affiliate or sublicensee based on information relating to the Parent Compound, and (ii) has activity that is potentially useful for therapeutic or prophylactic use and is similar or related to the activity of such Parent Compound (with the understanding that such activity may be superior to the activity of the Parent Compound, in any appropriate criteria).
      1.7 “Collaboration Cell Line” shall have the meaning assigned to such term in Section 2.1(b).
      1.8 “Confidential Information” shall mean (a) any proprietary or confidential information or material of a Party in tangible form disclosed hereunder that is (i) marked as “Confidential” at the time it is delivered to the receiving Party, or (ii) designated as confidential or proprietary in a written memorandum provided to the receiving Party by the disclosing Party within thirty (30) days of such disclosure, or (b) any proprietary or confidential information of a Party disclosed orally hereunder that is identified as confidential or proprietary when disclosed and designated as confidential or proprietary in a written memorandum provided to the receiving Party by the disclosing Party within thirty (30) days of such oral disclosure by the disclosing Party. Further, it is agreed that if Athersys discloses to BMS that it is working on a particular protein or gene target, such information shall be treated by BMS as the Confidential Information

 


 

of Athersys. Still further, it is agreed that Athersys shall treat the fact that BMS has nominated a specific target under Section 2.1 and the fact that Athersys has provided BMS with a corresponding Collaboration Cell Line under Section 2.2 as Confidential Information of BMS.
      1.9 “Controlled” shall mean, with respect to any material, Information or intellectual property right, that a Party owns or has a license to such material, Information or intellectual property right and has the ability to grant to the other Party the licenses or sublicenses thereto as provided for herein without violating the terms of any agreement with any Third Party.
      1.10 “Counterscreening” shall mean testing a BMS compound, which has known activity against one target, for activity against another target that is expressed in an Accepted Cell Line, for the purpose of determining the relative selectivity and potency of the BMS compound for the first target.
      1.11 “Counterscreening Cell Line” shall mean an Accepted Cell Line that was selected by BMS to be used in Counterscreening as provided in Section 2.5.
      1.12 “Counterscreening License” shall have the meaning assigned to it in Section 3.3.
      1.13 “Field” shall mean use of the Accepted Cell Lines by BMS solely for BMS’s internal discovery, research, development and/or commercialization of Products. For the avoidance of doubt, subject to Section 3.5(b), the Field shall include BMS’s use of the Accepted Cell Lines in connection with any bona fide collaboration between BMS and an academic and/or corporate collaborator, provided that any compounds initially discovered or detected pursuant to such collaboration by using an Accepted Cell Line or materials or assays derived from an Accepted Cell Line shall be deemed to be Candidate Compounds. The Field expressly excludes the use of Accepted Cell Lines by BMS for Counterscreening.
      1.14 “HTS” shall mean high throughput screening using BMS’ test deck of compounds in primary screening of the Accepted Cell Line. HTS shall be deemed “completed” when BMS has screened the test deck, confirmed positive responses, and completed standard data analysis.
      1.15 “Improvement” shall mean any improvement, modification or enhancement to the Athersys Know-How or the inventions claimed in the Athersys Patents (and/or the practice thereof), and any Information and intellectual property rights relating thereto, that the possessing Party has the right to disclose to the other Party without violating contractual obligations to a Third Party. For the avoidance of doubt, the following shall be owned by BMS and shall not comprise Improvements: (i) Information comprising the results of any assays or other screening or testing generated by BMS through use of the Accepted Cells Lines under the terms of this Agreement, and any Information developed based on evaluating or using such results (which shall exclude, for clarity, any such Information that relates to the manufacture of such Accepted Cell Lines via the RAGE-VT method or use of same); (ii) any methodology, process or tool, whether previously existing or created during the Term (without use of an Accepted Cell Line), that is proprietary to BMS and that BMS uses to generate the Information referred to in clause (i); and (iii) any invention based on, or improvement, modification, or enhancement of, the

 


 

proprietary know-how of BMS that is created in connection with the subject matter of this Agreement and the use or practice of which does not involve the use of any Athersys Technology.
      1.16 “Information” shall mean information, results and/or data of any type whatsoever, in any tangible or intangible form, including without limitation databases, inventions, practices, methods, techniques, specifications, formulations, formulae, knowledge, know-how, skill, experience, test data including pharmacological, biological, chemical, biochemical, toxicological and clinical test data, analytical and quality control data, stability data, studies and procedures, and patent and other legal information or descriptions.
      1.17 “License” shall have the meaning assigned to it in Section 3.2.
      1.18 “Net Sales” shall mean the amount invoiced or otherwise billed by BMS or its Affiliate or licensee for sales or other commercial disposition of a Product to a Third Party purchaser, less the following to the extent included in such billing or otherwise actually allowed or incurred with respect to such sales: (i) discounts, including cash, trade and quantity discounts, price reduction programs, retroactive price adjustments with respect to sales of a product, charge-back payments and rebates granted to managed health care organizations or to federal, state and local governments (or their respective agencies, purchasers and reimbursers) or to trade customers, including but not limited to, wholesalers and chain and pharmacy buying groups; (ii) credits or allowances actually granted upon rejections or returns of Products, including for recalls or damaged goods; (iii) freight, postage, shipping and insurance charges actually allowed or paid for delivery of Products, to the extent billed; (iv) customs duties, tariffs, surcharges and other governmental charges incurred in connection with the exportation or importation of a Product; (v) bad debts relating to sales of Products that are actually written off by BMS in accordance with generally accepted accounting principles, consistently applied, during the applicable royalty calculation period, and (vi) taxes, duties or other governmental charges levied on, absorbed or otherwise imposed on sale of Products, including without limitation value-added taxes, or other governmental charges otherwise measured by the billing amount, when included in billing, as adjusted for rebates and refunds, but specifically excluding taxes based on net income of the seller; provided that all of the foregoing deductions are calculated in accordance with generally accepted accounting principles consistently applied throughout the party’s organization.
Notwithstanding the foregoing, if any Product is sold under a bundled or capitated arrangement with other BMS products, then, solely for the purpose of calculating Net Sales for royalty purposes hereunder, any discount on such Product sold under such an arrangement shall be no greater, on a percentage basis based on the gross selling price prior to discount, than the largest percentage discount applied on the other pharmaceutical products sold within such bundled arrangement for the applicable accounting period. In case of any dispute as to the applicable discount numbers under the preceding sentence, the determination of same shall be calculated and certified by BMS’ independent public accountants, whose decision shall be binding.
A sale of a Product is deemed to occur upon the earliest of invoicing or transfer of title in the Product to the Third Party purchaser. In the event that BMS, after reasonable efforts, cannot calculate accurately the Net Sales of a sublicensee in a particular country, the Parties will meet and negotiate in good faith an appropriate means for calculating “Net Sales” in such a situation.

 


 

For sake of clarity and avoidance of doubt, sales by BMS, its Affiliates or sublicensees of a Product to a Third Party distributor of such Product in a given country shall be considered sales to a Third Party customer, but sales and/or transfers of a Product between or among BMS, its Affiliates or sublicensees shall not be considered sales to a Third Party customer, so long as such recipient subsequently resells the Product. Any Products used (but not sold for consideration) for promotional or advertising purposes or used for clinical or other research purposes shall not be considered in determining Net Sales hereunder.
In the event a Product is sold as an end-user product consisting of a combination of active functional elements or as a combined product and/or service, Net Sales, for purposes of determining royalty payments on such Product, shall be calculated by multiplying the Net Sales of the end-user product and/or service by the fraction A over A+B, in which A is the gross selling price of the Product portion of the end-user product and/or service when such Product is sold separately during the applicable accounting period in which the sales of the end-user product were made, and B is the gross selling price of the other active elements and/or service, as the case may be, of the end-user product and/or service sold separately during the accounting period in question. All gross selling prices of the elements of such end-user product and/or service shall be calculated as the average gross selling price of the said elements during the applicable accounting period for which the Net Sales are being calculated. In the event that, in any country or countries, no separate sale of either such above-designated Product or such above designated elements of the end-user product and/or service are made during the accounting period in which the sale was made or if gross retail selling price for an active functional element, component or service, as the case may be, cannot be determined for an accounting period, Net Sales allocable to the Product in each such country shall be determined by mutual agreement reached in good faith by the Parties prior to the end of the accounting period in question based on an equitable method of determining same that takes into account, on a country by country basis, variations in potency, the relative contribution of each active agent, component or service, as the case may be, in the combination, and relative value to the end user of each active agent, component or service, as the case may be.
Notwithstanding the foregoing, it is agreed that drug delivery vehicles, adjuvants, and excipients shall not be deemed to be “active ingredients” or “active functional elements,” the presence of which in a Product would be deemed to create a combination product subject to the terms of the preceding paragraph.
      1.19 “Patents” shall mean all issued United States and foreign patents (including all reissues, extensions, renewals, substitutions, re-examinations, supplementary protection certificates and the like, and patents of addition) and pending United States and foreign patent applications (including, without limitation, all provisional and nonprovisional applications and all continuations, continuations-in-part and divisions thereof).
      1.20 “Product” shall mean any product containing a Candidate Compound, including any formulation, dosage form, packaged form or delivery means thereof.
      1.21 “RAGE Technology” shall mean any and all intellectual property, whether or not patentable, that is owned or licensed by Athersys and relates to Athersys’ techniques for

 


 

activating gene expression, which are referred to by Athersys collectively as Random Activation of Gene Expression or RAGE technology.
      1.22 “Term” shall have the meaning assigned to it in Section 11.1.
      1.23 “Third Party” means any entity other than Athersys, BMS or an Affiliate of either of them.
      1.24 “Valid Claim” shall mean either (i) a claim of issued and unexpired letters patent which has not been held permanently revoked, unenforceable or invalid by a decision of a court or other governmental agency of competent jurisdiction, unappealable or unappealed within the time allowed for appeal and that is not admitted to be invalid or unenforceable through reissue, disclaimer or otherwise, or (ii) a claim of a pending patent application that has not been pending for more than seven (7) years and that has not been abandoned or finally rejected without the possibility of appeal or refiling.
2.   Collaboration Program
      2.1 Review of Proposed Cell Lines by Athersys.
           (a) Subject to the limits set forth in Section 2.2, Athersys shall create new Accepted Cell Lines based on RAGE-VT cell lines that BMS proposes, as set forth in Exhibit A, and Athersys has accepted as provided below. BMS shall use reasonable, good faith efforts to assure that the aggregate level of technical difficulties and legal risks associated with the cell lines that BMS nominates is balanced and provides Athersys a reasonable opportunity to perform hereunder. Athersys shall have the right to review and approve, as provided in Exhibit A, the target protein to be expressed in each RAGE-VT cell line that BMS proposes be made under this Agreement. Athersys shall complete such review within forty-five (45) days after the date Athersys receives information from BMS regarding a proposed target to be expressed in a RAGE-VT cell line, or upon any other schedule to which the Parties may mutually agree in writing. Athersys shall use reasonable, good faith efforts to assure that the aggregate level of technical difficulties and legal risks associated with the cell lines that Athersys accepts is balanced and provides a reasonable opportunity for the generation of Accepted Cell Lines hereunder.
           (b) While Athersys is completing such review, the Parties shall promptly negotiate specific Acceptance Criteria for such cell line based upon the Acceptance Criteria as generically set forth in Exhibit A. Upon agreement by the Parties on the specific Acceptance Criteria for a particular proposed RAGE-VT cell line, such Acceptance Criteria shall be included in Exhibit A, and, subject to review and subsequent approval of the target protein by Athersys under this Section 2.1, Athersys shall promptly thereafter commence work under Section 2.2 to create a RAGE-VT cell line based thereon, and any such cell line shall be a “Collaboration Cell Line.”
           (c) If Athersys rejects any of the proposed RAGE-VT cell lines in accordance with the parameters set forth in Exhibit A, Athersys shall promptly notify BMS, and BMS shall have the right to amend Exhibit A in order to designate a replacement RAGE-VT cell line (for each one of the RAGE-VT cell lines originally proposed and rejected by Athersys) within sixty

 


 

(60) days after receiving notice of the rejection; provided, however, that Athersys shall again have the right to review and approve any such proposed replacement cell line, as above.
           (d) BMS shall propose RAGE-VT cell lines hereunder from time to time in quantities reasonably believed (taking into account, among other things, Athersys’ right under this Section 2.1, to reject cell lines that BMS proposes) to be sufficient for Athersys to generate, and for BMS to accept (subject to satisfaction of the acceptance criteria agreed upon by the Parties), a minimum of fifteen (15) Collaboration Cell Lines over a three (3) year period (subject to Section 2.9), beginning on the Effective Date, with five (5) in year one, five (5) in year two and five (5) in year three; provided, however, that in the event Athersys rejects a RAGE-VT cell line nominated by BMS, BMS shall always have a full sixty (60) day period within which to nominate a replacement cell line, regardless of the deadline for meeting any applicable minimum under this Section 2.1.
      2.2 Supply of Collaboration Cell Lines; Status Reports. Athersys shall use reasonable efforts to deliver to BMS each Collaboration Cell Line that Athersys approves under Section 2.1 within six (6) months after such approval. Athersys shall provide BMS with summary reports, which shall be written, of the status and progress of Athersys’s efforts to provide Collaboration Cell Lines every eight (8) weeks. Such reports shall be sent to the attention of the BMS Project Coordinator. Athersys shall not be obligated to supply to BMS more than a total of eight (8) Collaboration Cell Lines per year over the Term.
      2.3 Review of Collaboration Cell Lines by BMS.
           (a) BMS shall have the right, for a period of forty-five (45) days after receiving a particular Collaboration Cell Line, to review such Collaboration Cell Line for the purpose of evaluating whether or not the production of protein meets the specific Acceptance Criteria for the particular Collaboration Cell Line as agreed by the Parties (pursuant to Section 2.1) and set forth in Exhibit A. Unless BMS provides written notice to Athersys that such Collaboration Cell Line does not meet such specific Acceptance Criteria within such period, such Collaboration Cell Line shall be accepted by BMS and shall be an “Accepted Cell Line” for all purposes hereunder. Even if any Collaboration Cell Line fails to produce the amount of protein meeting the specific Acceptance Criteria set forth in Exhibit A, BMS shall nonetheless have the right, but not the obligation, to accept such Collaboration Cell Line as an Accepted Cell Line, by written notice to Athersys within such forty-five (45) day period. If BMS does not accept a Collaboration Cell Line, BMS and Athersys shall discuss the reason(s) such Collaboration Cell Line was not accepted, and if BMS and Athersys agree that modifying the approach to creating a Collaboration Cell Line is feasible and desirable, Athersys shall make such modification and present such modified Collaboration Cell Line to BMS for evaluation and acceptance (if applicable) as provided herein.
           (b) Athersys shall provide the BMS Project Coordinator with at least two (2) weeks’ advance notice of Athersys’ intent to deliver a Collaboration Cell Line to BMS for review under Section 2.3(a), so that BMS may attempt to allocate internal resources appropriately. In the event Athersys fails to give such notice with respect to any given Collaboration Cell Line, the BMS review period therefor shall be extended to sixty (60) days.

 


 

      2.4 Infringement by Accepted Cell Lines. If at any time during the term of the License or Counterscreening License applicable to a particular Accepted Cell Line, such Accepted Cell Line becomes, or in Athersys’ opinion is likely to become, the subject of a Third Party patent infringement claim based on BMS’ practice of such License or Counterscreening License, then Athersys shall use commercially reasonable efforts, at its sole expense, either (i) to procure for BMS the right to continue using such Accepted Cell Line, or (ii) to replace or modify such Accepted Cell Line so that it becomes noninfringing while still having substantially the same functionality and efficacy as prior to such replacement or modification. In the event Athersys is not successful in its efforts under clause (i) and/or (ii) of the preceding sentence within three (3) months after any such claim arises, Athersys shall, at BMS’s request, meet to discuss in good faith other possible solutions to the claim.
      2.5 Selection of Counterscreening Cell Lines. As to a particular cell line that BMS requests to be made under Section 2.1, BMS may specify in writing, at the time the request for such cell line is made, that such cell line will be a Counterscreening Cell Line when accepted under Section 2.3, and such cell line then would be used solely for Counterscreening pursuant to the Counterscreening License. BMS may so specify no more than fifty percent (50%) of the Collaboration Cell Lines requested in a particular year be used for Counterscreening.
      2.6 Project Coordinators. Each Party shall designate an individual (a “Project Coordinator”) to coordinate, on such Party’s behalf, the day-to-day interaction of and communication between the Parties under this Agreement. Each Project Coordinator shall possess the education, training and experience necessary to make him or her reasonably technically qualified to serve as a Project Coordinator. Each Party shall be free to replace its Project Coordinator with new a appointee who has authority to act on behalf of such Party, upon notice to the other Party.
      2.7 BMS Diligence. BMS agrees that, for each Accepted Cell Line (but excluding all Counterscreening Cell Lines), BMS shall initiate and use reasonably diligent efforts to complete an HTS program for such Accepted Cell Line as soon as practicable after the date such cell line is designated or deemed an Accepted Cell Line. Notwithstanding the preceding sentence, an Accepted Cell Line shall be deemed to have completed HTS twelve (12) months after acceptance unless the Cell Line fails to perform as prescribed in Exhibit A. BMS shall provide Athersys with reasonable reports regarding its progress in conducting such HTS screening.
      2.8 BMS Termination of Cell Lines.
           (a) Prior to Cell Line Acceptance. With respect to Collaboration Cell Lines for which acceptance has not yet occurred, upon thirty (30) days notice to Athersys, BMS may terminate Athersys’ development of one Collaboration Cell Line per year during the period prior to which the Collaboration Cell Line is eligible to be deemed an Accepted Cell Line pursuant to Section 2.3(a). If a Collaboration Cell Line is so terminated, then BMS shall be obligated to pay Athersys fifty percent (50%) of the payment due for achievement of the milestone subsequent to the last previously achieved milestone, under Section 4.1(a) or 4.1(c), as the case may be, for such Collaboration Cell Line.

 


 

           (b) Following HTS Completion. With respect to any Accepted Cell Line (other than Counterscreening Cell Lines) for which HTS completion has occurred and BMS has paid the corresponding milestone payment under Section 4.1(a), upon thirty (30) days notice to Athersys, BMS may, for reasonable business, scientific and/or technical reasons (which shall be disclosed to Athersys, on a confidential basis), terminate its License with respect to such Accepted Cell Line, which termination shall be effective after payment of the next license fee due under Section 4.1(b). On the due date of such payment the license to such Accepted Cell Line granted under Section 3.2 shall automatically terminate, and after payment of such license fee BMS shall have no further payment obligations to Athersys with respect to such Accepted Cell Line subject to the following covenant. With respect to any such Accepted Cell Line for which BMS has terminated its license rights pursuant to this Section 2.8(b), BMS covenants that BMS and its Affiliates and licensees shall not use, develop or commercialize any materials, results, data or information (including, without limitation, any compound or composition, or any derivative, homolog or isomer thereof) that was originally created or originally identified through BMS’ prior use of such Accepted Cell Line; provided, however, that the foregoing covenant shall not preclude BMS and its Affiliates from continuing to conduct discovery, research, development and commercialization activities with respect to the target protein expressed by such Accepted Cell Line so long as BMS and its Affiliates abide by such covenant in so doing.
      2.9 BMS Termination of Collaboration Program. BMS shall have the right to terminate the collaboration program contemplated by this Section 2 at the end of the second year of the collaboration program, by giving Athersys written notice of such termination at least ninety (90) days prior to the second anniversary of the commencement of the collaboration program. BMS acknowledges that Athersys will incur certain wind-down and FTE re-allocation costs and expenses in the event of any such early termination and, therefore, agrees to pay Athersys the sum of $125,000 to help offset such costs. Such payment shall be made within thirty (30) days after delivery of BMS’ termination notice pursuant to this Section 2.9.
3.   Licenses.
      3.1 Evaluation License. Subject to the terms of this Agreement, as to each Collaboration Cell Line provided to BMS by Athersys hereunder, Athersys grants to BMS a royalty-free, non-exclusive , worldwide license, without the right to sublicense, under the Athersys Technology solely to conduct internal research evaluation of such Collaboration Cell Line as provided in Section 2.3 of this Agreement during the forty-five (45) day period after BMS first receives such Collaboration Cell Line.
      3.2 Research and Development License. Subject to the terms of this Agreement, and effective upon BMS’s acceptance of a particular Accepted Cell Line (other than a Counterscreening Cell Line), Athersys grants to BMS a royalty-bearing, non-exclusive, worldwide license, without the right to sublicense, under the Athersys Technology solely to use such Accepted Cell Line in the Field (the “License”).
      3.3 Counterscreening License. Subject to the terms of this Agreement, and effective only upon BMS’s acceptance of a particular Accepted Cell Line that BMS elected under Section

 


 

2.5 to be a Counterscreening Cell Line, Athersys hereby grants to BMS a non-exclusive, worldwide license (the “Counterscreening License”), without the right to sublicense, under the Athersys Technology solely to use each such Counterscreening Cell Line for Counterscreening. For clarity, a particular Accepted Cell Line may not be used by BMS (or its Affiliate) for use both in the Field and for Counterscreening except as specified in 4.1 (e).
      3.4 Duration of Athersys Licenses.
           (a) Field License Duration. The License granted in Section 3.2, as to a particular Accepted Cell Line, shall be perpetual, subject to payment of all applicable fees, unless terminated by BMS as provided in Section 2.8(b).
           (b) Counterscreening License Duration. Subject to payment of all applicable fees, the Counterscreening License granted in Section 3.3 shall be perpetual, as to a particular Counterscreening Cell Line.
      3.5 Negative Covenants.
           (a) No Other Use by BMS. BMS covenants and agrees that it shall not use the Collaboration Cell Lines for any purpose other than as set forth in Section 3.1 and shall not use the Accepted Cell Lines or any materials derived therefrom for any purpose other than as set forth in Sections 3.2 and 3.3, as applicable. BMS further covenants and agrees that it shall not use or practice the Athersys Technology for any purpose except as expressly permitted in the licenses granted to BMS under Sections 3.1, 3.2 and 3.3, as applicable.
           (b) No Transfer to Third Parties. BMS covenants and agrees that BMS shall not transfer Collaboration Cell Lines or Accepted Cell Lines or any Information pertaining thereto or any materials derived therefrom, to any Third Party for any purpose, except that BMS may transfer such Information and materials to collaborators to the extent necessary for BMS to exercise its right to use the Accepted Cell Lines in connection with bona fide collaborations with academic and/or commercial partners in the Field, but may not transfer the Accepted Cell Lines to such entities except with Athersys’ prior written consent. For clarity, BMS covenants and agrees that BMS shall not transfer Collaboration Cell Lines or Accepted Cell Lines, or any Information pertaining thereto or any materials derived therefrom, to any Third Party for Counterscreening.
      3.6 Athersys Reserved Rights. BMS understands and agrees that Athersys owns and reserves to itself all rights, title and interest in the Athersys Technology, and to the Collaboration Cell Lines and the Accepted Cell Lines, subject only to the licenses granted in Sections 3.1, 3.2 and 3.3, respectively.
      3.7 Records And Reports.
           (a) Records. BMS shall maintain complete and accurate records that fully and properly reflect all work done and all results achieved, including raw data, in the evaluation of Collaboration Cell Lines, the use of Accepted Cell Lines and the discovery, research and development of Candidate Compounds (“Records”). The Records shall be kept with sufficient detail and in good scientific manner appropriate for patent and regulatory purposes and shall be

 


 

kept separate and distinct from other work conducted by BMS, all in a manner consistent with BMS’ other internal research and development record keeping.
           (b) Copies and Inspection of Records. Athersys shall have the right, during normal business hours and upon reasonable notice, to inspect the Records for purposes consistent with this Agreement. Athersys shall maintain all Information learned from such inspection of the Records in confidence in accordance with Article 7. All inspections, copying and visits hereunder shall be conducted in a manner and frequency so as not to disrupt BMS’s business and in a manner so as not to cause any disclosure of any other BMS Confidential Information.
           (c) Semi-Annual Reports. Within thirty (30) days following the end of each six (6) month period during the term of the License with respect to each Accepted Cell Line, BMS shall provide to Athersys a written progress report that shall describe the results and developments of the use of such Accepted Cell Line, and the discovery, research and development of Candidate Compounds therewith. With such reports, BMS shall disclose to Athersys in summary form ( i.e., in a manner that does not require BMS to disclose sensitive or competitively-enabling data or information) the development, making, conception or reduction to practice of all Candidate Compounds that are discovered, made, investigated, conceived or reduced to practice by use of such Accepted Cell Line or assays based thereon. In addition, BMS shall fully disclose to Athersys in each such report any Improvements that BMS may have developed during the period covered by such report.
4.   Payments.
      4.1 License Fees.
 
1 Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.
           (a) Screening License Fees. For each Collaboration Cell Line requested by BMS that is to be used in the Field ( i.e., excluding the Counterscreening Cell Lines), BMS shall pay Athersys non-refundable license fees upon achievement of the milestone events as provided in the following schedule:
         
Event   Payment
Agreed upon Acceptance Criteria
  $ [*]  
    Athersys accepts BMS’ request for the development of a Collaboration Cell Line, and the Parties mutually agree upon Acceptance Criteria therefor
       
 
       
 
       
Clonal Cell Line Isolated
  $ [*]  
    Verified through RT- PCR proof of appropriate vector integration
       
 
       
 
       
Cell Line Acceptance (designation of Accepted Cell Line)
  $ [*]  
    Achievement, pursuant to Section 2.3(a), of all specific Acceptance Criteria mutually previously agreed upon by the Parties for the proposed Accepted Cell Line
       
 
       
HTS Completion for Accepted Cell Line
  $ [*]  
 
       

 


 

BMS and Athersys shall jointly determine the occurrence of any of the foregoing milestone events with respect to a particular Collaboration Cell Line, and the applicable payments for each event shall be due and payable within thirty (30) days of the Parties’ having made such a determination.
           (b) Additional Annual License Fees. For each Accepted Cell Line that is to be used in the Field ( i.e., excluding the Counterscreening Cell Lines) with respect to which the License has not terminated due to BMS previously exercising its right to terminate its License under Section 2.8(b), BMS shall also pay Athersys non-refundable license fees upon achievement of the milestone events as provided in the following schedule:
         
Event   Payment
Six (6) Month Anniversary of Completion of HTS for Accepted Cell Line
  $ [*]  
    Payable at the end of the six (6) month period beginning on the date BMS completes HTS for such Accepted Cell Line
       
 
       
Twelve (12) Month Anniversary of Completion of HTS for Accepted Cell Line
  $ [*]  
    Payable at the end of the twelve (12) month period beginning on the date BMS completes HTS for such Accepted Cell Line
       
 
       
Eighteen (18) Month Anniversary of Completion of HTS for Accepted Cell Line
  $ [*]  
    Payable at the end of the eighteen (18) month period beginning on the date BMS completes HTS for such Accepted Cell Line
       
 
       
Twenty-Four (24) Month Anniversary of Completion of HTS for Accepted Cell Line
  $ [*]  
    Payable at the end of the twenty-four (24) month period beginning on the date BMS completes HTS for such Accepted Cell Line
       
For clarity, if BMS exercises its right to terminate the License as provided in Section 2.8(b) as to a particular Accepted Cell Line, BMS shall make the next payment due as provided above after serving notice of such termination.
 
1   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.

 


 

           (c) Counterscreening License Fees. For each Counterscreening Cell Line requested to be made by BMS, BMS shall pay Athersys non-refundable license fees upon achievement of the milestone events as provided in the following schedule:
         
Event   Payment
Agreed upon Acceptance Criteria
  $ [*]  
    Athersys accepts BMS’ request for the development of a Collaboration Cell Line, and the Parties mutually agree upon Acceptance Criteria therefor
       
 
       
Clonal Cell Line Isolated
  $ [*]  
    Verified through RT- PCR proof of appropriate vector integration
       
 
       
Cell Line Acceptance (designation of Counterscreening Cell Line)
  $ [*]  
    Achievement, pursuant to Section 2.3(a), of all specific Acceptance Criteria previously mutually agreed upon by the Parties for the proposed Counterscreening Cell Line
       
 
1   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.
BMS and Athersys shall jointly determine the occurrence of any of the foregoing milestone events with respect to a particular Counterscreening Cell Line, and the applicable payments for each event shall be due and payable within thirty (30) days of the Parties’ having made such a determination.
           (d) Additional Counterscreening License Fees. For each Accepted Cell Line specified as a Counterscreening Cell Line pursuant to Section 2.5 that is accepted by BMS pursuant to Section 2.3, BMS shall pay Athersys a non-refundable license fee of either: (i) an aggregate of [*] dollars ($[*]) license fee, which shall be payable in six (6) installments of [*] dollars ($[*]) each, to be paid at the end of each six (6) month period after the date of acceptance by BMS of the applicable Accepted Cell Line; or (ii) [*] dollars ($[*]) for the use, in perpetuity, of the Counterscreening License, such fee to be payable on the six (6) month anniversary of the date of acceptance by BMS of the applicable Accepted Cell Line.
           (e) Counterscreening License Fee for Accepted Cell Line. For any particular Accepted Cell Line used in the Field for which BMS has completed payment of all milestone payments under Sections 4.1(a) and (b) ( i.e. , a total of $[*] for such Accepted Cell Line), BMS may elect in writing to Athersys to obtain the perpetual right to use such Accepted Cell Line in Counterscreening (under the terms of a Counterscreening License under Section 3.3) by a one-time payment of $[*] to be made within thirty (30) days of such notice.
      4.2 Milestone Payments. For each Accepted Cell Line used in the Field, BMS shall pay Athersys the milestone payments set forth in Exhibit B within thirty (30) days after each milestone event has been achieved for each Candidate Compound identified for clinical development by BMS or its Affiliate or sublicensee for the particular Accepted Cell Line.

 


 

      4.3 Royalty Payments. BMS shall pay Athersys a royalty equal to [*] percent ([*]%) of Net Sales of all Products worldwide. Each payment of royalties under this Agreement shall be accompanied by a statement of the amount of the total amounts received and calculated as Net Sales during such period, and all other information necessary to determine the appropriate amount of such payments.
      4.4 Royalty Term. For each Product, on a country-by-country basis, BMS shall pay to Athersys royalties under Section 4.3 commencing on the first commercial sale in the applicable country and continuing until the later of (a) the last to expire Patent in such country owned or controlled by BMS or its affiliate or licensee containing a Valid Claim covering such Product or the Candidate Compound therein, or covering the manufacture, use or formulation of such Product or compound, or (b) ten (10) years from the date of such first commercial sale in such country.
      4.5 Blocked Currency. In each country where the local currency is blocked and cannot be removed from the country, at the election of Athersys, royalties accrued in that country shall be paid to Athersys in such country in local currency by deposit in a local bank designated by Athersys.
      4.6 Non-Monetary Consideration. In the event BMS (or its Affiliates or sublicensees) receives any non-monetary consideration in connection with the sale or other commercial disposition of Products, Athersys’s royalty shall be based on the fair monetary value of such other consideration. In such case, BMS shall disclose to Athersys, on a confidential basis, the terms of such arrangement, and the Parties shall agree in good faith on such monetary value, which shall then be included in Net Sales for the period in which it was received by BMS (or its Affiliates or sublicensees).
5.   Records and Audit.
      5.1 Records and Audit. During the term of this Agreement and for a period of three (3) years thereafter, BMS shall keep complete and accurate records pertaining to the sale or other disposition of all Products, in sufficient detail to permit Athersys to confirm the accuracy of all payments due hereunder. Athersys shall have the right to cause an independent, certified public accountant to audit such records to confirm BMS’s Net Sales and royalty payments and payments under Section 4.2; provided, however, that such auditor shall not disclose BMS’s Confidential Information to Athersys, except to the extent such disclosure is necessary to verify the portion of the amount of royalties and payments due under this Agreement. Such audits may be exercised once a year, within three (3) years after the period to which such records relate, upon notice to BMS and during normal business hours. Athersys shall bear the full cost of such audit unless such audit discloses a variance of more than five percent (5%) from the amount of royalties and payments under Section 4.2 previously paid for such year. In such case, BMS shall bear the full cost of such audit. The terms of this Section 5.1 shall survive any termination or expiration of this Agreement for a period of three (3) years.
 
1   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.

 


 

6.   Intellectual Property.
      6.1 Ownership .
           (a) Athersys. Athersys shall remain the sole owner of the Athersys Technology, the RAGE Technology, the Collaboration Cell Lines and the Accepted Cell Lines, including any improvements thereto made by Athersys. Athersys shall have the sole responsibility, at its discretion, for patent prosecution and choice of patent counsel in relation to Athersys Patents, and shall pay all expenses associated therewith. BMS hereby assigns and agrees to assign to Athersys its entire interest in any Improvements, which shall be deemed to be part of the Athersys Technology.
           (b) BMS. BMS shall be the sole owner of any inventions and information resulting from BMS’ use of the Accepted Cell Lines, including any Products, but excluding all Improvements. BMS shall have the sole responsibility, at its discretion, for patent prosecution and choice of patent counsel in relation to such BMS-owned inventions and the Products and shall pay all expenses associated therewith.
      6.2 Enforcement of Patent Rights . Each Party shall have the sole right, but not the obligation, to institute, prosecute or control any action or proceeding with respect to infringement by a Third Party of one or more issued Patents owned by such Party.
7.   Confidentiality; Publicity.
      7.1 Confidential Information. The Parties agree that, for the Term of this Agreement and for five (5) years thereafter, the receiving Party shall keep completely confidential and shall not publish or otherwise disclose and shall not use for any purpose, except for the purposes expressly permitted by this Agreement, any Confidential Information furnished to it by the disclosing Party. The foregoing obligation shall not apply to any information received by a Party to the extent that it can be established by such receiving Party by competent evidence that such information:
           (a) was already known to the receiving Party, other than under an obligation of confidentiality, at the time of disclosure;
           (b) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the receiving Party;
           (c) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the receiving Party in breach of this Agreement;
           (d) was independently developed by the receiving Party as demonstrated by competent written evidence prepared contemporaneously with such independent development; or
           (e) was subsequently lawfully disclosed to the receiving Party by a person other than a Party hereto.

 


 

      7.2 Authorized Disclosure . Notwithstanding the foregoing, a Party may disclose the Confidential Information of the other Party to the extent such disclosure is necessary to be disclosed in the following instances:
           (a) Regulatory filings made by BMS;
           (b) Prosecuting or defending litigation or responding to valid subpoenas;
           (c) Complying with applicable governmental regulations;
           (d) Conducting clinical trials of BMS, its Affiliates and sublicensees;
           (e) Disclosure, in connection with the performance of this Agreement, to Affiliates, employees, consultants, or agents, each of whom prior to disclosure must be bound by similar obligations of confidentiality and non-use at least equivalent in scope to those set forth in this Section 7;
           (f) Disclosure that is required by applicable law or governmental regulation; and
           (g) Disclosure of the existence and terms of this Agreement and of general summaries of the progress made by the Parties under this Agreement (but excluding the identification of any target nominated by BMS under Section 2.1 and of any Collaboration Cell Line or Accepted Cell Line developed by Athersys hereunder) to existing or potential investment bankers, investors and/or merger or acquisition parties, provided that the disclosing Party obtains from such recipient prior to disclosure an agreement to be bound by obligations of confidentiality and non-use at least similar in scope to those set forth in this Section 7.
      7.3 Disclosure. If a Party is required to make any disclosure of another Party’s Confidential Information that is authorized under subsections (a), (b), (c), (d) or (f) of Section 7.2, it will give reasonable advance notice to the latter Party of such disclosure and will afford the latter Party a reasonable opportunity, and will cooperate reasonably with such Party, to secure confidential treatment of such information prior to its disclosure (whether through protective orders or otherwise) and to limit the extent of the disclosure as much as possible. Except as otherwise required by law, and subject to Section 7.5, neither Party shall issue a press release or make any other disclosure of the terms of this Agreement or any aspect of the research conducted pursuant to this Agreement without the prior approval of such press release or disclosure by the other Party hereto. Each Party shall submit any such press release or disclosure to the other Party, and the receiving Party shall have ten (10) business days to review and approve any such press release or disclosure, which approval shall not be unreasonably withheld. If the receiving Party does not respond within such ten (10) day period, the press release or disclosure shall be deemed approved. In addition, if a public disclosure is required by law, including without limitation in a filing with the Securities and Exchange Commission, the disclosing Party shall provide copies of the disclosure reasonably in advance of such filing or other disclosure for the nondisclosing Party’s prior review and comment.

 


 

      7.4 Confidential Terms. Except as expressly provided herein, each Party agrees not to disclose any terms of this Agreement or any aspect of the research conducted pursuant to this Agreement to any Third Party without the consent of the other Party.
      7.5 Initial Press Release. The Parties shall issue a mutually approved, initial press release promptly after the Effective Date. The Parties agree that this press release shall be in the form of the press release attached to this Agreement as Exhibit C.
8.   Representations and Warranties.
      8.1 Athersys. Athersys represents and warrants that: (i) it is a corporation duly organized validly existing and in good standing under the laws of the State of Delaware; (ii) the execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate action on the part of Athersys; (iii) the performance of Athersys’s obligations under this Agreement will not conflict with its charter documents or result in a material breach of any agreements, contracts or other arrangements to which it is a party; (iv) Athersys will not, during the Term of this Agreement, enter into any agreements, contracts or other arrangements that would be materially inconsistent with its obligations under this Agreement; (v) Athersys has sufficient facilities, experienced personnel and other capabilities reasonably suited to enable it to perform its obligations under this Agreement; (vi) Athersys is the owner of, or has licensed rights to, all of the Athersys Patents in existence on the Effective Date, and has the right to grant the licenses or sublicenses, as the case may be, therefor granted under this Agreement; and (vii) as of the Effective Date, Athersys is not aware of any asserted or unasserted claim or demand which is being, or which Athersys believes can be, rightfully enforced by a Third Party against any of the Athersys Patents that would materially limit, hinder, delay or otherwise adversely affect BMS’s enjoyment of its rights and satisfaction of its obligations under this Agreement.
      8.2 BMS. BMS represents and warrants that: (i) it is a corporation duly organized validly existing and in good standing under the laws of the State of Delaware; (ii) the execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate action on the part of BMS; (iii) the performance of BMS’s obligations under this Agreement will not conflict with its charter documents or result in a material breach of any agreements, contracts or other arrangements to which it is a party; (iv) BMS has sufficient facilities, experienced personnel and other capabilities reasonably suited to enable it to perform its obligations under this Agreement; and (v) BMS will not, during the Term of this Agreement, enter into any agreements, contracts or other arrangements that would be materially inconsistent with its obligations under this Agreement.
      8.3 Disclaimer of Warranties. THE ATHERSYS KNOW-HOW, ATHERSYS PATENTS AND COLLABORATION CELL LINES ARE PROVIDED AND LICENSED TO BMS “AS IS”, AND ATHERSYS AND ITS RESPECTIVE AFFILIATES MAKE NO REPRESENTATIONS AND EXTEND NO WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT THERETO OR TO THE PRODUCTS OR ATHERSYS TECHNOLOGY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, VALIDITY OF THE PATENT RIGHTS LICENSED HEREUNDER, OR

 


 

NONINFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.
      8.4 Unknown Biological Properties. BMS understands and agrees that the Collaboration Cell Lines may have unpredictable and unknown biological and/or chemical properties, that they are to be used with caution, and that they are not to be used for testing in or treatment of humans. BMS shall use the Collaboration Cell Lines in compliance with all applicable laws and regulations, including, but not limited to, any laws or regulations relating to the research, testing, production, storage, transportation, export, packaging, labeling or other authorized use of the Collaboration Cell Lines.
9.   Dispute Resolution.
      9.1 Mediation. If a dispute arises out of or relates to this Agreement, or the breach thereof, and if said dispute cannot be settled through negotiation, the Parties agree first to try in good faith to settle the dispute by good faith discussions by the Vice President of External Science and Technology of BMS and the CEO or senior executive officer of Athersys (or each such person’s designee), and failing resolution thereby by mediation under the Commercial Mediation Rules of the American Arbitration Association, before resorting to arbitration, litigation, or some other dispute resolution procedure.
      9.2 Arbitration. Subject to Section 9.1, Athersys and BMS agree that any dispute or controversy arising out of, in relation to, or in connection with this Agreement, or the validity, enforceability, construction, performance or breach thereof, shall be settled by binding arbitration in New York, New York, under the then-current Rules of Commercial Arbitration of the American Arbitration Association by one (1) arbitrator appointed in accordance with such Rules. The arbitrator shall determine what discovery will be permitted, based on the principle of limiting the cost and time that the Parties must expend on discovery; provided, however, that the arbitrator shall permit such discovery as he or she deems necessary to achieve an equitable resolution of the dispute. The decision and/or award rendered by the arbitrator shall be written, final and non-appealable, absent manifest error, and may be entered in any court of competent jurisdiction. The Parties agree that, any provision of applicable law notwithstanding, they will not request, and the arbitrator shall have no authority to award punitive or exemplary damages against any Party. The costs of any arbitration, including administrative fees and fees of the arbitrator, shall be shared equally by the Parties, unless the arbitrator determines otherwise.
10.   Indemnification.
      10.1 By BMS. Subject to Section 10.3, BMS shall indemnify, defend and hold harmless Athersys and its directors, officers and employees (each an “Athersys Indemnitee”) from and against any and all liabilities, damages, losses, costs or expenses (including attorneys’ and professional fees and other expenses of litigation and/or arbitration) (each a “Liability”) resulting from a claim, suit or proceeding made or brought by a Third Party against an Athersys Indemnitee arising from or occurring as a result of (i) any breach of the representations and warranties set forth in Section 8.2, or (ii) the performance (or failure to perform) by BMS of its obligations hereunder.

 


 

      10.2 By Athersys. Subject to Section 10.3, Athersys shall indemnify, defend and hold harmless BMS and its directors, officers and employees (each a “BMS Indemnitee”) from and against any and all Liabilities resulting from a claim, suit or proceeding made or brought by a Third Party against a BMS Indemnitee arising from or occurring as a result of (i) any breach of the representations and warranties set forth in Section 8.1, or (ii) the performance (or failure to perform) by Athersys of its obligations hereunder.
      10.3 Limitation on Indemnity Obligations.
           (a) Negligence, etc. No Athersys Indemnitee or BMS Indemnitee (each, an “Indemnitee”) shall be entitled to the indemnification under Section 10.1 or 10.2, as the case may be, to the comparative extent the Liability for which indemnification is sought was caused by a grossly negligent, reckless or intentional act or omission by the Party with which such Indemnitee is affiliated or any of such Party’s Affiliates or sublicensees or any of their respective directors, officers, employees or authorized agents.
           (b) Target Proteins and Collaboration Cell Lines. Athersys acknowledges and agrees that it will conduct a reasonable intellectual property investigation of each target protein that is the basis of a particular Collaboration Cell Line, and of matters relating to the creation of the Collaboration Cell Line, that BMS selects and Athersys agrees to produce pursuant to Section 2.1, which shall be in addition to any such investigation that BMS may have conducted. BMS also acknowledges and agrees that it will conduct a reasonable intellectual property investigation of each target protein that BMS proposes for selection by Athersys as the basis for producing a Collaboration Cell Line pursuant to Section 2.1, which shall be in addition to any such investigation that Athersys may conduct, and shall disclose to Athersys the results of such investigation. BMS shall not be obligated to provide indemnification under Section 10.1 against any Liabilities resulting from a claim, suit or proceeding to the extent it is alleged, proven or agreed in such claim, suit or proceeding that any such target protein (or the creation of the corresponding Collaboration Cell Line) infringes upon or otherwise violates the intellectual property rights of any Third Party, except to the comparative extent such infringement or violation results from a grossly negligent, reckless or intentional act or omission by BMS or any of BMS’ Affiliates or any of their respective directors, officers, employees or authorized agents.
      10.4 Procedure. In the event that an Indemnitee intends to claim indemnification under this Article 10, it shall promptly notify the indemnifying Party in writing of such alleged Liability. The indemnifying Party shall have the sole right to control the defense and settlement thereof. The indemnifying Party shall have the right to settle or compromise any Liabilities for which it is providing indemnification under this Article 10, provided that the consent of the Indemnitee (which shall not be unreasonably withheld or delayed) shall be required in the event any such settlement or compromise would adversely affect the interests of such Indemnitee. The Indemnitees shall cooperate with the indemnifying Party and its legal representatives in the investigation of any action, claim or liability covered by this Article 10. The Indemnitees shall not, except at their own cost, voluntarily make any payment or incur any expense with respect to any claim or suit without the prior written consent of the indemnifying Party, which the indemnifying Party shall not be required to give.

 


 

11.   Term and Termination.
      11.1 Term of Agreement. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue until expiration upon the end of all royalty and payment obligations of BMS under Article 4, or until such earlier date as the Parties agree in writing to terminate the Agreement or the Agreement terminates as provided below.
      11.2 Termination for Cause. Either Party may terminate this Agreement in the event the other Party has materially breached or defaulted in the performance of any of its obligations hereunder, and such default has continued without cure for sixty (60) days after written notice thereof was provided to the breaching Party by the non-breaching Party. Any termination shall become effective at the end of such sixty (60) day period unless the breaching Party has cured any such breach or default prior to the expiration of the sixty (60) day period. Notwithstanding the above, in the case of a failure to timely pay any amounts due hereunder, the period for cure of any subsequent default following notice thereof shall be thirty (30) days and, unless payment is made within such period the termination shall become effective at the end of such period.
      11.3 Effect of Termination.
           (a) Accrued Rights and Obligations. Termination of this Agreement for any reason shall not release any Party hereto from any liability which, at the time of such termination, has already accrued to the other Party or which is attributable to a period prior to such termination nor preclude either Party from pursuing any rights and remedies it may have hereunder or at law or in equity with respect to any breach of this Agreement. It is understood and agreed that monetary damages may not be a sufficient remedy for any breach of this Agreement and that the non-breaching Party may be entitled to injunctive relief as a remedy for any such breach.
           (b) Return of Confidential Information. Upon any termination of this Agreement, each of Athersys and BMS shall promptly return to the other Party all Confidential Information of the other; provided that counsel of each Party may retain one (1) copy of such Confidential Information solely for archival purposes.
           (c) Survival. Sections 3.5 and 11.3, and Articles 4, 5, 6, 7, 9, 10 and 12 of this Agreement shall survive termination of this Agreement for any reason.
12.   Miscellaneous.
      12.1 Governing Law. This Agreement and any dispute, including without limitation any arbitration, arising from the performance or breach hereof shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to its conflict of laws rules and regulations.
      12.2 Independent Contractors. The relationship of the parties hereto is that of independent contractors. The parties hereto are not deemed to be agents, partners or joint venturers of the others for any purpose as a result of this Agreement or the transactions contemplated thereby.

 


 

      12.3 Assignment. Neither Party may assign its rights or obligations under this Agreement absent the prior written consent of the other Party, not to be unreasonably withheld; provided, however, that either Party may assign this Agreement without such consent to any of its Affiliates or to any successor in interest by merger, acquisition or sale of all or substantially all of its assets in a manner such that the assignee will be liable and responsible for the performance and observance of all its duties and obligations hereunder. This Agreement shall be binding upon the successors and permitted assigns of the Parties. Any attempted delegation or assignment not in accordance with this Section 12.3 shall be void and of no force or effect. In the case of BMS, if any such successor in interest had, before its merger with, or acquisition or purchase of, BMS, an agreement with Athersys providing such entity with a license to the RAGE Technology, then within ninety (90) day after the effective date of such merger, acquisition or purchase Athersys may terminate this agreement, upon written notice to such successor in interest.
      12.4 Notices. All notices, requests and other communications hereunder shall be in writing and shall be personally delivered or sent by telecopy or other electronic facsimile transmission or by registered or certified mail, return receipt requested, postage prepaid, in each case to the respective address specified below, or such other address as may be specified in writing to the other parties hereto:
     
If to BMS:
  Bristol-Myers Squibb Company
 
  Route 206 and Province Line Road
 
  P. O. Box 4000
 
  Princeton, New Jersey 08543-4000
 
  Attn: Vice President and Senior Counsel,
 
            Pharmaceutical Research Institute and
 
            Worldwide Business Development
 
  Fax No.: (609) 252-4232
 
   
If to Athersys:
  Athersys, Inc.
 
  3201 Carnegie Avenue
 
  Cleveland, Ohio 44115-2634
 
  Attn: President
 
  Fax No.: (216) 361-9495
      12.5 Force Majeure. Neither Party shall lose any rights hereunder or be liable to the other Party for damages or losses (except for payment obligations) on account of failure of performance by the defaulting Party if the failure is occasioned by war or terrorism, strike, fire, Act of God, earthquake, flood, lockout, embargo, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence, intentional conduct or misconduct of the nonperforming Party has exerted all reasonable efforts to avoid or remedy such force majeure; provided, however, that in no event shall a Party be required to settle any labor dispute or disturbance.
      12.6 Advice of Counsel. BMS and Athersys have each consulted counsel of their choice regarding this Agreement, and each acknowledges and agrees that this Agreement shall not be deemed to have been drafted by one Party or another and will be construed accordingly.

 


 

      12.7 Compliance with Laws. Each Party will comply with all applicable laws and regulations in connection with its performance under this Agreement. Each Party shall furnish to the other Party any information requested or required by that Party during the term of this Agreement or any extensions hereof to enable that Party to comply with the requirements of any U.S. or foreign federal, state and/or government agency.
      12.8 Severability. In the event that any provisions of this Agreement are determined to be invalid or unenforceable by a court of competent jurisdiction, the remainder of the Agreement shall remain in full force and effect without said provision. In such event, the parties shall in good faith attempt to negotiate a substitute clause for any provision declared invalid or unenforceable, which substitute clause shall most nearly approximate the intent of the Parties in agreeing to such invalid provision, without itself being invalid.
      12.9 Waiver. It is agreed that no waiver by either Party hereto of any breach or default of any of the covenants or agreements herein set forth shall be deemed a waiver as to any subsequent and/or similar breach or default.
      12.10 Complete Agreement. This Agreement, together with its Exhibits, constitutes the entire agreement, both written and oral, between the Parties with respect to the subject matter hereof, and that all prior agreements, including the term sheet, respecting the subject matter hereof, either written or oral, expressed or implied, are merged and canceled, and are null and void and of no effect as of the Effective Date. No amendment or change hereof or addition hereto shall be effective or binding on either of the parties hereto unless reduced to writing and duly executed on behalf of both Parties. For clarity, the cells lines created under the Original Agreement, and any amendments thereto, are not considered within the subject matter of this Agreement.
      12.11 Use of Name. Unless otherwise permitted by this Agreement or required by applicable laws or regulations, neither Party shall use the name or trademarks of the other Party without the prior written consent of such other Party.
      12.12 Headings. The captions to the several Sections and Articles hereof are not a part of this Agreement, but are included merely for convenience of reference only and shall not affect its meaning or interpretation.
      12.13 Counterparts. This Agreement may be executed in two counterparts, each of which shall be deemed an original and which together shall constitute one instrument.
* * *

 


 

      In Witness Whereof , BMS and Athersys have executed this Agreement by their respective duly authorized representatives.
                     
Bristol-Myers Squibb Company       Athersys, Inc.    
 
                   
By:
          By:        
 
 
 
         
 
   
 
                   
Print Name:
          Print Name:        
 
 
 
         
 
   
 
                   
Title:
          Title:        
 
 
 
         
 
   

 


 

Exhibit A
RAGE-VT CELL LINES
A. Creation of Collaboration Cell Lines
Within ninety (90) days after the Effective Date, BMS shall provide Athersys with an initial list of specific proteins for which BMS requests that Athersys will create RAGE libraries, for Athersys’ review under Section 2.1(a). If Athersys accepts such proposed proteins as provided therein, Athersys shall seek to create RAGE libraries, and screen and isolate Collaboration Cell Lines expressing such proteins after the Parties agree upon Acceptance Criteria for each particular Collaboration Cell Line. Such list may be supplemented from time to time by mutual agreement of the Parties or by designation of additional specific proteins by BMS and acceptance of such proteins by Athersys, as provided in Section 2.1 and in accordance with the procedure provided below.
From time to time, BMS may nominate specific proteins for consideration by Athersys under Section 2.1 for use in constructing a Collaboration Cell Line using its RAGE technology and other Athersys Know-How. Any such Collaboration Cell Line shall conform to the general specifications set forth in Section B below and to any other specific requirements agreed to by the Parties.
Athersys shall have the right, before accepting such request of a particular protein by BMS hereunder, to review and approve the technical and intellectual property feasibility of constructing the requested Collaboration Cell Line. If requested by Athersys, BMS shall promptly provide to Athersys the relevant technical requirements of BMS for the requested Collaboration Cell Line. Athersys shall make its determination of technical feasibility, intellectual property analysis and/or conflict with preexisting exclusive research obligations to Third Parties or preexisting internal research programs for which research has commenced prior to receiving notice (a “Pre-existing Program”), within forty-five (45) days of the request by BMS. If Athersys believes that the project is not constrained by any of these considerations or fails to provide any such notice within such forty-five (45) day period, then the nominated protein (and corresponding Collaboration Cell Line) shall be deemed to be added to this Exhibit A. If Athersys believes the project is constrained by any of such considerations and provides such notice within such forty-five (45) day period, such protein and cell line shall not be added to Exhibit A; provided that Athersys shall provide to BMS all pertinent information Controlled by Athersys regarding the basis for its rejection of such request. In that event, BMS shall be entitled to nominate another protein (with the foregoing process being repeated), until a protein nominated by BMS hereunder is accepted by Athersys. For purposes of calculating the maximum number of cell lines permitted under this Agreement, any substitute request made by BMS shall be deemed to have been made as of the date of the original request.
In addition, in the event Athersys commences a Pre-existing Program with respect to a target (either internally or with a Third Party), and BMS subsequently proposes such target under Section 2.1, Athersys shall promptly inform BMS of such program and request that BMS propose a substitute target. In such event, Athersys shall, upon BMS’ request, provide, on a confidential basis, a reasonable demonstration of such commencement and prosecution of any

 


 

such Pre-existing Program for a given target prior to the date of BMS’ proposal of such target under Section 2.1.
B. Acceptance Criteria for Collaboration Cell Lines
The Parties shall discuss and agree upon a set of specific Acceptance Criteria for each Collaboration Cell Line based upon the Generic Criteria set forth below. Such Acceptance Criteria shall be deemed to constitute a part of this Exhibit A. In each case, BMS and Athersys shall agree upon one primary assay (with respect to each Collaboration Cell Line, the “Primary Assay”) as the determining criterion for optimization and proof of target over-expression for purposes of determining whether a particular Collaboration Cell Line satisfies various of its Acceptance Criteria. If BMS wishes to have receptor density as determined by radioligand binding (which may require MTX amplification) as an acceptance criterion, BMS may specify up to three (3) such Collaboration Cell Lines in a particular year, and, in the aggregate, not more than fifty percent (50%) of the Collaboration Cell Lines during the term of this Agreement, for such acceptance treatment. If BMS wishes Athersys perform multiple assay validation and/or make radioligand binding determinations in addition to those specified in the preceding sentence, BMS shall bear the additional cost thereof.
Generic Collaboration Cell Line Acceptance Criteria
         
        Testing to determine if
Category   Criteria   Criteria are Met by:
1. Vector integration upstream of target gene in HEK 293 or HT 1080 cells or other cell lines specified by the Parties
  RT-PCR demonstrating RIG vector (RAGE specific vector) spliced to target sequence mRNA   Athersys
 
       
2. Target gene mRNA over-expression (RAGE vs. parental)
  Quantitative PCR (qPCR) demonstrating >10 fold mRNA increase   Athersys
 
       
3. Target protein over-expression (RAGE vs. parental) and functionality (Primary Assay format)
 
     Functional assay: such as FLIPR with dose response, agonist/antagonist, cAMP determination
  Athersys
 
       
 
  or    
 
       
 
 
     Protein over-expression: a ten-fold increase of Target protein in RAGE clone versus parental, as determined by Western blot or FACS analysis
   
 
       
4. RAGE clone robustness
 
     Freeze/thaw
  Athersys
 
       
 
 
     Expression stability (e.g. qPCR) over four weeks
   
 
       
5. RAGE cell line performance in HTS
  Performance in Primary Assay under simulated HTS conditions and general Cell Line characteristics.   BMS

 


 

Exhibit B
MILESTONE PAYMENTS – CANDIDATE COMPOUNDS
         
Milestone   Payment
Filing of first IND for the Candidate Compound directed against a designated target expressed by an Accepted Cell Line
  $ [*]  
Initiation of first Phase II clinical study for the Candidate Compound
  $ [*]  
Initiation of first Phase III clinical study for the Candidate Compound
  $ [*]  
Approval of a Product containing the Candidate Compound by Food and Drug Administration as drug
  $ [*]  
As used in this Exhibit B, the phrase “Initiation of first Phase III clinical study” shall be deemed to include, if a party conducts a Phase II/III study on a Candidate Compound, the point during such Phase II/III clinical trial when the party conducting the trial has the regulatory approval to proceed with such trial as a pivotal trial.
BMS shall promptly notify Athersys of the first occurrence of any milestone with respect to each Candidate Compound. Milestone payments shall be made only once with respect to any given Candidate Compound, regardless of the number of indications sought (or approvals obtained) with respect to such Candidate Compound, whether alone or in combination with other compounds or products, and regardless of any new dosage strengths, preparations or forms of administration for such Candidate Compound.
If BMS develops as a back-up Candidate Compound that inhibits or otherwise modulates the activity of a particular molecular target of a Candidate Compound on which BMS is already making milestone payments, then BMS may conduct clinical development on such back-up or follow-on Candidate Compounds and shall not be obligated to make any milestone payments with respect to any such back-up or follow-on Candidate Compound, except as otherwise provided below. In the event that a particular Candidate Compound is dropped from active clinical development work or marketing for safety or efficacy reasons and is specifically replaced with a different Candidate Compound targeting the same molecular target as such dropped Candidate Compound, such new Candidate Compound shall be deemed a “Replacement Compound.” BMS shall not be obligated to make milestone payments that were earlier made with respect to a dropped Candidate Compound and replaced by a Replacement Compound, but, subject to the preceding paragraph, BMS shall pay all milestone payments for milestone events achieved by such Replacement Compound that had not been achieved by such dropped Candidate Compound.
 
1   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.

 


 

Exhibit C
FORM PRESS RELEASE
[Athersys to supply initial draft]

2.

 

EXHIBIT 10.3
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THE REDACTED PORTIONS OF THIS EXHIBIT, AND SUCH CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXTENDED COLLABORATION AND LICENSE AGREEMENT
      This Extended Collaboration and License Agreement (the “Agreement”) is made and entered into as of January 1, 2006 (the “Effective Date”), by and between Athersys, Inc. , a Delaware corporation having its principal offices at 3201 Carnegie Avenue, Cleveland, Ohio 44115 (“Athersys”), and Bristol-Myers Squibb Company , a Delaware corporation having offices at Route 206 and Province Line Road, Princeton, New Jersey 08543 (“BMS”). Athersys and BMS may be referred to herein individually as a “Party” and collectively as the “Parties.”
Recitals
      A.  Athersys has developed and owns technology and intellectual property rights relating to methods for activating gene or protein expression in cells, referred to by Athersys as the Random Activation of Gene Expression or RAGE technology, which includes the RAGE-VT technology useful for creating cell lines that express particular desired proteins.
      B.  BMS desires to engage Athersys to create certain such cell lines, using the RAGE-VT technology, each of which expresses a specific cell surface or cellular protein of interest to BMS, and to obtain license rights to use such cell lines for internal research, development and commercialization of pharmaceutical products.
      C.  Athersys is willing to create and provide BMS with the desired cell lines pursuant to the terms of this Agreement.
      D.  The Parties entered into a Research Collaboration and License Agreement, dated December 8, 2000 (the “Original Agreement”) and subsequently entered into a Cell Line Collaboration and License Agreement dated July 1, 2002 (the “Prior Agreement”), each related to the creation of cell lines by Athersys for use by BMS.
      E.  Concurrently with entering into this Agreement, Athersys and BMS are amending the Prior Agreement to acknowledge that BMS has fulfilled its obligation to propose and accept a minimum number of cell lines as set forth in the Prior Agreement.
      F.  For avoidance of doubt, all cell lines nominated by BMS after July 1, 2002 and prior to the Effective Date of this Agreement shall be governed by the Prior Agreement and all cell lines nominated by BMS prior to July 1, 2002 shall be governed by the Original Agreement and not this Agreement. All cell lines nominated by BMS after the Effective Date of this Agreement shall be governed by this Agreement.
      Now, Therefore , in consideration of the foregoing and the covenants and promises contained in this Agreement, the Parties agree as follows:


 

  2

1.   Definitions
     As used herein, the following capitalized terms shall have the following meanings (with terms defined in the singular having the same meanings when used in the plural):
      1.1 “Accepted Cell Line” shall have the meaning assigned to such term in Section 2.3(a).
      1.2 “Affiliate” shall mean, with respect to a Party, any corporation or other entity that, directly or indirectly, controls, is controlled by or is under the common control with such Party. For the purpose of this definition, “control” shall mean (a) the direct or indirect ownership of fifty percent (50%) or more of the outstanding shares or other voting rights of the subject entity to elect directors, or (b) if such amount of ownership of a foreign entity is not permitted by law, ownership of the maximum amount of such entity as permitted by law, or (c) the actual ability to control and direct the management of the subject entity.
      1.3 “Athersys Know-How” shall mean the Information that is Controlled by Athersys during the term of this Agreement and relates directly to Collaboration Cell Lines or their method of manufacture or use in the Field or for Counterscreening, as applicable, but excluding Athersys Patents.
      1.4 “Athersys Patents” shall mean all Patents that are Controlled by Athersys during the term of the Agreement and contain a Valid Claim covering a Collaboration Cell Line or its method of manufacture or use in the Field or for Counterscreening, as applicable.
      1.5 “Athersys Technology” shall mean the Athersys Know-How and Athersys Patents collectively.
      1.6 “Candidate Compound” shall mean:
           (a) any compound that has activity, with respect to the target protein expressed by the applicable Accepted Cell Line, which activity is initially discovered or detected by using an Accepted Cell Line or materials or assays derived from an Accepted Cell Line, where such activity is potentially useful for therapeutic or prophylactic use, or
           (b) any compound that is an analog, homolog, isomer or other chemical derivative of a compound that meets the criteria in subsection (a) above (the “Parent Compound”), provided that such compound (i) was made by or on behalf of BMS or its Affiliate or sublicensee based on information relating to the Parent Compound, and (ii) has activity that is potentially useful for therapeutic or prophylactic use and is similar or related to the activity of such Parent Compound (with the understanding that such activity may be superior to the activity of the Parent Compound, in any appropriate criteria).
      1.7 “Collaboration Cell Line” shall have the meaning assigned to such term in Section 2.1(b).
      1.8 “Confidential Information” shall mean (a) any proprietary or confidential information or material of a Party in tangible form disclosed hereunder that is (i) marked as


 

3

“Confidential” at the time it is delivered to the receiving Party, or (ii) designated as confidential or proprietary in a written memorandum provided to the receiving Party by the disclosing Party within thirty (30) days of such disclosure, or (b) any proprietary or confidential information of a Party disclosed orally hereunder that is identified as confidential or proprietary when disclosed and designated as confidential or proprietary in a written memorandum provided to the receiving Party by the disclosing Party within thirty (30) days of such oral disclosure by the disclosing Party. Further, it is agreed that if Athersys discloses to BMS that it is working on a particular protein or gene target, such information shall be treated by BMS as the Confidential Information of Athersys. Still further, it is agreed that Athersys shall treat the fact that BMS has nominated a specific target under Section 2.1 and the fact that Athersys has provided BMS with a corresponding Collaboration Cell Line under Section 2.2 as Confidential Information of BMS.
      1.9 “Controlled” shall mean, with respect to any material, Information or intellectual property right, that a Party owns or has a license to such material, Information or intellectual property right and has the ability to grant to the other Party the licenses or sublicenses thereto as provided for herein without violating the terms of any agreement with any Third Party.
      1.10 “Counterscreening” shall mean testing a BMS compound, which has known activity against one target, for activity against another target that is expressed in an Accepted Cell Line, for the purpose of determining the relative selectivity and potency of the BMS compound for the first target.
      1.11 “Counterscreening Cell Line” shall mean an Accepted Cell Line that was selected by BMS to be used in Counterscreening as provided in Section 2.5.
      1.12 “Counterscreening License” shall have the meaning assigned to it in Section 3.3.
      1.13 “Field” shall mean use of the Accepted Cell Lines by BMS solely for BMS’s internal discovery, research, development and/or commercialization of Products. For the avoidance of doubt, subject to Section 3.5(b), the Field shall include BMS’s use of the Accepted Cell Lines in connection with any bona fide collaboration between BMS and an academic and/or corporate collaborator, provided that any compounds initially discovered or detected pursuant to such collaboration by using an Accepted Cell Line or materials or assays derived from an Accepted Cell Line shall be deemed to be Candidate Compounds. The Field expressly excludes the use of Accepted Cell Lines by BMS for Counterscreening.
      1.14 “HTS” shall mean high throughput screening using BMS’ test deck of compounds in primary screening of the Accepted Cell Line. HTS shall be deemed “completed” when BMS has screened the test deck, confirmed positive responses, and completed standard data analysis.
      1.15 “Improvement” shall mean any improvement, modification or enhancement to the Athersys Know-How or the inventions claimed in the Athersys Patents (and/or the practice thereof), and any Information and intellectual property rights relating thereto, that the possessing Party has the right to disclose to the other Party without violating contractual obligations to a Third Party. For the avoidance of doubt, the following shall be owned by BMS and shall not


 

4

comprise Improvements: (i) Information comprising the results of any assays or other screening or testing generated by BMS through use of the Accepted Cells Lines under the terms of this Agreement, and any Information developed based on evaluating or using such results (which shall exclude, for clarity, any such Information that relates to the manufacture of such Accepted Cell Lines via the RAGE-VT method or use of same); (ii) any methodology, process or tool, whether previously existing or created during the Term (without use of an Accepted Cell Line), that is proprietary to BMS and that BMS uses to generate the Information referred to in clause (i); and (iii) any invention based on, or improvement, modification, or enhancement of, the proprietary know-how of BMS that is created in connection with the subject matter of this Agreement and the use or practice of which does not involve the use of any Athersys Technology.
      1.16 “Information” shall mean information, results and/or data of any type whatsoever, in any tangible or intangible form, including without limitation databases, inventions, practices, methods, techniques, specifications, formulations, formulae, knowledge, know-how, skill, experience, test data including pharmacological, biological, chemical, biochemical, toxicological and clinical test data, analytical and quality control data, stability data, studies and procedures, and patent and other legal information or descriptions.
      1.17 “License” shall have the meaning assigned to it in Section 3.2.
      1.18 “Net Sales” shall mean the amount invoiced or otherwise billed by BMS or its Affiliate or licensee for sales or other commercial disposition of a Product to a Third Party purchaser, less the following to the extent included in such billing or otherwise actually allowed or incurred with respect to such sales: (i) discounts, including cash, trade and quantity discounts, price reduction programs, retroactive price adjustments with respect to sales of a product, charge-back payments and rebates granted to managed health care organizations or to federal, state and local governments (or their respective agencies, purchasers and reimbursers) or to trade customers, including but not limited to, wholesalers and chain and pharmacy buying groups; (ii) credits or allowances actually granted upon rejections or returns of Products, including for recalls or damaged goods; (iii) freight, postage, shipping and insurance charges actually allowed or paid for delivery of Products, to the extent billed; (iv) customs duties, tariffs, surcharges and other governmental charges incurred in connection with the exportation or importation of a Product; (v) bad debts relating to sales of Products that are actually written off by BMS in accordance with generally accepted accounting principles, consistently applied, during the applicable royalty calculation period, and (vi) taxes, duties or other governmental charges levied on, absorbed or otherwise imposed on sale of Products, including without limitation value-added taxes, or other governmental charges otherwise measured by the billing amount, when included in billing, as adjusted for rebates and refunds, but specifically excluding taxes based on net income of the seller; provided that all of the foregoing deductions are calculated in accordance with generally accepted accounting principles consistently applied throughout the party’s organization.
Notwithstanding the foregoing, if any Product is sold under a bundled or capitated arrangement with other BMS products, then, solely for the purpose of calculating Net Sales for royalty purposes hereunder, any discount on such Product sold under such an arrangement shall be no greater, on a percentage basis based on the gross selling price prior to discount, than the largest percentage discount applied on the other pharmaceutical products sold within such bundled


 

5

arrangement for the applicable accounting period. In case of any dispute as to the applicable discount numbers under the preceding sentence, the determination of same shall be calculated and certified by BMS’ independent public accountants, whose decision shall be binding.
A sale of a Product is deemed to occur upon the earliest of invoicing or transfer of title in the Product to the Third Party purchaser. In the event that BMS, after reasonable efforts, cannot calculate accurately the Net Sales of a sublicensee in a particular country, the Parties will meet and negotiate in good faith an appropriate means for calculating “Net Sales” in such a situation.
For sake of clarity and avoidance of doubt, sales by BMS, its Affiliates or sublicensees of a Product to a Third Party distributor of such Product in a given country shall be considered sales to a Third Party customer, but sales and/or transfers of a Product between or among BMS, its Affiliates or sublicensees shall not be considered sales to a Third Party customer, so long as such recipient subsequently resells the Product. Any Products used (but not sold for consideration) for promotional or advertising purposes or used for clinical or other research purposes shall not be considered in determining Net Sales hereunder.
In the event a Product is sold as an end-user product consisting of a combination of active functional elements or as a combined product and/or service, Net Sales, for purposes of determining royalty payments on such Product, shall be calculated by multiplying the Net Sales of the end-user product and/or service by the fraction A over A+B, in which A is the gross selling price of the Product portion of the end-user product and/or service when such Product is sold separately during the applicable accounting period in which the sales of the end-user product were made, and B is the gross selling price of the other active elements and/or service, as the case may be, of the end-user product and/or service sold separately during the accounting period in question. All gross selling prices of the elements of such end-user product and/or service shall be calculated as the average gross selling price of the said elements during the applicable accounting period for which the Net Sales are being calculated. In the event that, in any country or countries, no separate sale of either such above-designated Product or such above designated elements of the end-user product and/or service are made during the accounting period in which the sale was made or if gross retail selling price for an active functional element, component or service, as the case may be, cannot be determined for an accounting period, Net Sales allocable to the Product in each such country shall be determined by mutual agreement reached in good faith by the Parties prior to the end of the accounting period in question based on an equitable method of determining same that takes into account, on a country by country basis, variations in potency, the relative contribution of each active agent, component or service, as the case may be, in the combination, and relative value to the end user of each active agent, component or service, as the case may be.
Notwithstanding the foregoing, it is agreed that drug delivery vehicles, adjuvants, and excipients shall not be deemed to be “active ingredients” or “active functional elements,” the presence of which in a Product would be deemed to create a combination product subject to the terms of the preceding paragraph.
      1.19 “Patents” shall mean all issued United States and foreign patents (including all reissues, extensions, renewals, substitutions, re-examinations, supplementary protection


 

6

certificates and the like, and patents of addition) and pending United States and foreign patent applications (including, without limitation, all provisional and nonprovisional applications and all continuations, continuations-in-part and divisions thereof).
      1.20 “Product” shall mean any product containing a Candidate Compound, including any formulation, dosage form, packaged form or delivery means thereof.
      1.21 “RAGE Technology” shall mean any and all intellectual property, whether or not patentable, that is owned or licensed by Athersys and relates to Athersys’ techniques for activating gene expression, which are referred to by Athersys collectively as Random Activation of Gene Expression or RAGE technology.
      1.22 “Term” shall have the meaning assigned to it in Section 11.1.
      1.23 “Third Party” means any entity other than Athersys, BMS or an Affiliate of either of them.
      1.24 “Valid Claim” shall mean either (i) a claim of issued and unexpired letters patent which has not been held permanently revoked, unenforceable or invalid by a decision of a court or other governmental agency of competent jurisdiction, unappealable or unappealed within the time allowed for appeal and that is not admitted to be invalid or unenforceable through reissue, disclaimer or otherwise, or (ii) a claim of a pending patent application that has not been pending for more than seven (7) years and that has not been abandoned or finally rejected without the possibility of appeal or refiling.
2.   Collaboration Program
      2.1 Review of Proposed Cell Lines by Athersys.
           (a) Subject to the limits set forth in Section 2.2, Athersys shall create new Accepted Cell Lines based on RAGE-VT cell lines that BMS proposes, as set forth in Exhibit A , and Athersys has accepted as provided below. BMS shall use reasonable, good faith efforts to assure that the aggregate level of technical difficulties and legal risks associated with the cell lines that BMS nominates is balanced and provides Athersys a reasonable opportunity to perform hereunder. Athersys shall have the right to review and approve, as provided in Exhibit A , the target protein to be expressed in each RAGE-VT cell line that BMS proposes be made under this Agreement. Athersys shall complete such review within forty-five (45) days after the date Athersys receives information from BMS regarding a proposed target to be expressed in a RAGE-VT cell line, or upon any other schedule to which the Parties may mutually agree in writing. Athersys shall use reasonable, good faith efforts to assure that the aggregate level of technical difficulties and legal risks associated with the cell lines that Athersys accepts is balanced and provides a reasonable opportunity for the generation of Accepted Cell Lines hereunder.
           (b) While Athersys is completing such review, the Parties shall promptly negotiate specific Acceptance Criteria for such cell line based upon the Acceptance Criteria as generically set forth in Exhibit A . Upon agreement by the Parties on the specific Acceptance Criteria for a particular proposed RAGE-VT cell line, such Acceptance Criteria shall be included


 

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in Exhibit A , and, subject to review and subsequent approval of the target protein by Athersys under this Section 2.1, Athersys shall promptly thereafter commence work under Section 2.2 to create a RAGE-VT cell line based thereon, and any such cell line shall be a “Collaboration Cell Line.”
           (c) If Athersys rejects any of the proposed RAGE-VT cell lines in accordance with the parameters set forth in Exhibit A , Athersys shall promptly notify BMS, and BMS shall amend Exhibit A in order to designate a replacement RAGE-VT cell line (for each one of the RAGE-VT cell lines originally proposed and rejected by Athersys) within sixty (60) days after receiving notice of the rejection; provided, however, that Athersys shall again have the right to review and approve any such proposed replacement cell line, as above.
           (d) BMS shall be obligated to propose at least three (3), but not more than seven (7), RAGE-VT cell lines per year beginning on the Effective Date and ending on the third anniversary of the Effective Date. If Athersys rejects one or more cell lines subject to this Section 2.1, then BMS shall replace each rejected cell line with a new proposed cell line, until Athersys has at least 3 cell lines in the current year. BMS shall have sixty (60) days to replace each rejected cell line, regardless of the deadline for meeting any applicable minimum under this Section 2.1.For avoidance of doubt, any proposed cell lines in excess of the minimum in a given year may not be applied to future annual obligations.
      2.2 Supply of Collaboration Cell Lines; Status Reports. Athersys shall use reasonable efforts to deliver to BMS each Collaboration Cell Line that Athersys approves under Section 2.1 within six (6) months after such approval. Athersys shall provide BMS with summary reports, which shall be written, of the status and progress of Athersys’s efforts to provide Collaboration Cell Lines every eight (8) weeks. Such reports shall be sent to the attention of the BMS Project Coordinator. Athersys shall not be obligated to supply to BMS more than a total of eight (8) Collaboration Cell Lines per year over the Term.
      2.3 Review of Collaboration Cell Lines by BMS.
           (a) BMS shall have the right, for a period of forty-five (45) days after receiving a particular Collaboration Cell Line, to review such Collaboration Cell Line for the purpose of evaluating whether or not the production of protein meets the specific Acceptance Criteria for the particular Collaboration Cell Line as agreed by the Parties (pursuant to Section 2.1) and set forth in Exhibit A . Unless BMS provides written notice to Athersys that such Collaboration Cell Line does not meet such specific Acceptance Criteria within such period, such Collaboration Cell Line shall be accepted by BMS and shall be an “Accepted Cell Line” for all purposes hereunder. Even if any Collaboration Cell Line fails to produce the amount of protein meeting the specific Acceptance Criteria set forth in Exhibit A , BMS shall nonetheless have the right, but not the obligation, to accept such Collaboration Cell Line as an Accepted Cell Line, by written notice to Athersys within such forty-five (45) day period. If BMS does not accept a Collaboration Cell Line, BMS and Athersys shall discuss the reason(s) such Collaboration Cell Line was not accepted, and if BMS and Athersys agree that modifying the approach to creating a Collaboration Cell Line is feasible and desirable, Athersys shall make such modification and present such modified Collaboration Cell Line to BMS for evaluation and acceptance (if applicable) as provided herein.


 

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           (b) Athersys shall provide the BMS Project Coordinator with at least two (2) weeks’ advance notice of Athersys’ intent to deliver a Collaboration Cell Line to BMS for review under Section 2.3(a), so that BMS may attempt to allocate internal resources appropriately. In the event Athersys fails to give such notice with respect to any given Collaboration Cell Line, the BMS review period therefor shall be extended to sixty (60) days.
      2.4 Infringement by Accepted Cell Lines. If at any time during the term of the License or Counterscreening License applicable to a particular Accepted Cell Line, such Accepted Cell Line becomes, or in Athersys’ opinion is likely to become, the subject of a Third Party patent infringement claim based on BMS’ practice of such License or Counterscreening License, then Athersys shall use commercially reasonable efforts, at its sole expense, either (i) to procure for BMS the right to continue using such Accepted Cell Line, or (ii) to replace or modify such Accepted Cell Line so that it becomes noninfringing while still having substantially the same functionality and efficacy as prior to such replacement or modification. In the event Athersys is not successful in its efforts under clause (i) and/or (ii) of the preceding sentence within three (3) months after any such claim arises, Athersys shall, at BMS’s request, meet to discuss in good faith other possible solutions to the claim.
      2.5 Selection of Counterscreening Cell Lines. As to a particular cell line that BMS requests to be made under Section 2.1, BMS may specify in writing, at the time the request for such cell line is made, that such cell line will be a Counterscreening Cell Line when accepted under Section 2.3, and such cell line then would be used solely for Counterscreening pursuant to the Counterscreening License. BMS may so specify no more than fifty percent (50%) of the Collaboration Cell Lines requested in a particular year be used for Counterscreening. For purposes of clarity, at any time subsequent to a cell line’s designation as a Counterscreening Cell Line, BMS may elect to initiate an HTS program with respect to such Cell Line, subject to the terms and conditions of this Agreement with respect to an Accepted Cell Line.
      2.6 Project Coordinators. Each Party shall designate an individual (a “Project Coordinator”) to coordinate, on such Party’s behalf, the day-to-day interaction of and communication between the Parties under this Agreement. Each Project Coordinator shall possess the education, training and experience necessary to make him or her reasonably technically qualified to serve as a Project Coordinator. Each Party shall be free to replace its Project Coordinator with new a appointee who has authority to act on behalf of such Party, upon notice to the other Party.
      2.7 BMS Diligence. BMS agrees that, for each Accepted Cell Line (but excluding all Counterscreening Cell Lines), BMS shall initiate and use reasonably diligent efforts to complete an HTS program for such Accepted Cell Line as soon as practicable after the date such cell line is designated or deemed an Accepted Cell Line. Notwithstanding the preceding sentence, an Accepted Cell Line shall be deemed to have completed HTS twelve (12) months after acceptance unless the Cell Line fails to perform as prescribed in Exhibit A . BMS shall provide Athersys with reasonable reports regarding its progress in conducting such HTS screening.


 

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      2.8 BMS Termination of Cell Lines.
           (a) Prior to Cell Line Acceptance. With respect to Collaboration Cell Lines for which acceptance has not yet occurred, upon thirty (30) days notice to Athersys, BMS may terminate Athersys’ development of any Collaboration Cell Line, provided that BMS has paid all milestones achieved prior to termination pursuant to Section 4.1(a) or 4.1(c), as the case may be, for each such Collaboration Cell Line.
           (b) Following HTS Completion. With respect to any Accepted Cell Line (other than Counterscreening Cell Lines) for which HTS completion has occurred and BMS has paid the corresponding milestone payment under Section 4.1(a), upon thirty (30) days notice to Athersys, BMS may, for reasonable business, scientific and/or technical reasons (which shall be disclosed to Athersys, on a confidential basis), terminate its License with respect to such Accepted Cell Line, which termination shall be effective after payment of the next license fee due under Section 4.1(b). On the due date of such payment the license to such Accepted Cell Line granted under Section 3.2 shall automatically terminate, and after payment of such license fee BMS shall have no further payment obligations to Athersys with respect to such Accepted Cell Line subject to the following covenant. With respect to any such Accepted Cell Line for which BMS has terminated its license rights pursuant to this Section 2.8(b), BMS covenants that BMS and its Affiliates and licensees shall not use, develop or commercialize any materials, results, data or information (including, without limitation, any compound or composition, or any derivative, homolog or isomer thereof) that was originally created or originally identified through BMS’ prior use of such Accepted Cell Line; provided, however, that the foregoing covenant shall not preclude BMS and its Affiliates from continuing to conduct discovery, research, development and commercialization activities with respect to the target protein expressed by such Accepted Cell Line so long as BMS and its Affiliates abide by such covenant in so doing.
      2.9 BMS Termination of Collaboration Program. BMS shall have the right to terminate the collaboration program contemplated by this Section 2 at the end of each year of the collaboration program, by giving Athersys written notice of such termination at least sixty (60) days prior to the anniversary of the Effective Date, provided that BMS has accepted an aggregate of at least fifteen (15) cell lines since July 1, 2002 (i.e., the effective date of the Prior Agreement). BMS acknowledges that Athersys will incur certain wind-down and FTE re- allocation costs and expenses in the event of any such early termination and, therefore, agrees to pay Athersys the sum of $125,000 to help offset such costs. Such payment shall be made within thirty (30) days after delivery of BMS’ termination notice pursuant to this Section 2.9.
3.   Licenses.
      3.1 Evaluation License. Subject to the terms of this Agreement, as to each Collaboration Cell Line provided to BMS by Athersys hereunder, Athersys grants to BMS a royalty-free, non-exclusive , worldwide license, without the right to sublicense, under the Athersys Technology solely to conduct internal research evaluation of such Collaboration Cell


 

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Line as provided in Section 2.3 of this Agreement during the forty-five (45) day period after BMS first receives such Collaboration Cell Line.
      3.2 Research and Development License. Subject to the terms of this Agreement, and effective upon BMS’s acceptance of a particular Accepted Cell Line (other than a Counterscreening Cell Line), Athersys grants to BMS a royalty-bearing, non-exclusive, worldwide license, without the right to sublicense, under the Athersys Technology solely to use such Accepted Cell Line in the Field (the “License”).
      3.3 Counterscreening License. Subject to the terms of this Agreement, and effective only upon BMS’s acceptance of a particular Accepted Cell Line that BMS elected under Section 2.5 to be a Counterscreening Cell Line, Athersys hereby grants to BMS a non-exclusive, worldwide license (the “Counterscreening License”), without the right to sublicense, under the Athersys Technology solely to use each such Counterscreening Cell Line for Counterscreening. For clarity, a particular Accepted Cell Line may not be used by BMS (or its Affiliate) for use both in the Field and for Counterscreening except as specified in 4.1 (e).
      3.4 Duration of Athersys Licenses.
           (a) Field License Duration. The License granted in Section 3.2, as to a particular Accepted Cell Line, shall be perpetual, subject to payment of all applicable fees, unless terminated by BMS as provided in Section 2.8(b).
           (b) Counterscreening License Duration. Subject to payment of all applicable fees, the Counterscreening License granted in Section 3.3 shall be perpetual, as to a particular Counterscreening Cell Line.
      3.5 Negative Covenants.
           (a) No Other Use by BMS. BMS covenants and agrees that it shall not use the Collaboration Cell Lines for any purpose other than as set forth in Section 3.1 and shall not use the Accepted Cell Lines or any materials derived therefrom for any purpose other than as set forth in Sections 3.2 and 3.3, as applicable. BMS further covenants and agrees that it shall not use or practice the Athersys Technology for any purpose except as expressly permitted in the licenses granted to BMS under Sections 3.1, 3.2 and 3.3, as applicable.
           (b) No Transfer to Third Parties. BMS covenants and agrees that BMS shall not transfer Collaboration Cell Lines or Accepted Cell Lines or any Information pertaining thereto or any materials derived therefrom, to any Third Party for any purpose, except that BMS may transfer such Information and materials to collaborators to the extent necessary for BMS to exercise its right to use the Accepted Cell Lines in connection with bona fide collaborations with academic and/or commercial partners in the Field, but may not transfer the Accepted Cell Lines to such entities except with Athersys’ prior written consent. For clarity, BMS covenants and agrees that BMS shall not transfer Collaboration Cell Lines or Accepted Cell Lines, or any Information pertaining thereto or any materials derived therefrom, to any Third Party for Counterscreening.


 

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      3.6 Athersys Reserved Rights. BMS understands and agrees that Athersys owns and reserves to itself all rights, title and interest in the Athersys Technology, and to the Collaboration Cell Lines and the Accepted Cell Lines, subject only to the licenses granted in Sections 3.1, 3.2 and 3.3, respectively.
      3.7 Records And Reports.
           (a) Records. BMS shall maintain complete and accurate records that fully and properly reflect all work done and all results achieved, including raw data, in the evaluation of Collaboration Cell Lines, the use of Accepted Cell Lines and the discovery, research and development of Candidate Compounds (“Records”). The Records shall be kept with sufficient detail and in good scientific manner appropriate for patent and regulatory purposes and shall be kept separate and distinct from other work conducted by BMS, all in a manner consistent with BMS’ other internal research and development record keeping.
           (b) Copies and Inspection of Records. Athersys shall have the right, during normal business hours and upon reasonable notice, to inspect the Records for purposes consistent with this Agreement. Athersys shall maintain all Information learned from such inspection of the Records in confidence in accordance with Article 7. All inspections, copying and visits hereunder shall be conducted in a manner and frequency so as not to disrupt BMS’s business and in a manner so as not to cause any disclosure of any other BMS Confidential Information.
           (c) Semi-Annual Reports. Within thirty (30) days following the end of each six (6) month period during the term of the License with respect to each Accepted Cell Line, BMS shall provide to Athersys a written progress report that shall describe the results and developments of the use of such Accepted Cell Line, and the discovery, research and development of Candidate Compounds therewith. With such reports, BMS shall disclose to Athersys in summary form ( i.e., in a manner that does not require BMS to disclose sensitive or competitively-enabling data or information) the development, making, conception or reduction to practice of all Candidate Compounds that are discovered, made, investigated, conceived or reduced to practice by use of such Accepted Cell Line or assays based thereon. In addition, BMS shall fully disclose to Athersys in each such report any Improvements that BMS may have developed during the period covered by such report.
4.   Payments.
      4.1 License Fees.
           (a) Screening License Fees. For each Collaboration Cell Line requested by BMS that is to be used in the Field ( i.e., excluding the Counterscreening Cell Lines), BMS shall pay Athersys non-refundable license fees upon achievement of the milestone events as provided in the following schedule:


 

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Event   Payment
Agreed upon Acceptance Criteria
  $[*]
    Athersys accepts BMS’ request for the development of a Collaboration Cell Line, and the Parties mutually agree upon Acceptance Criteria therefor
   
Clonal Cell Line Isolated
  $[*]
    Verified through RT- PCR proof of appropriate vector integration
   
 
   
Cell Line Acceptance (designation of Accepted Cell Line)
  $[*]
   Achievement, pursuant to Section 2.3(a), of all specific Acceptance Criteria mutually previously agreed upon by the Parties for the proposed Accepted Cell Line
   
 
   
HTS Completion for Accepted Cell Line
  $[*]
 
1   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.
BMS and Athersys shall jointly determine the occurrence of any of the foregoing milestone events with respect to a particular Collaboration Cell Line, and the applicable payments for each event shall be due and payable within thirty (30) days of the Parties’ having made such a determination.
           (b) Additional Annual License Fees. For each Accepted Cell Line that is to be used in the Field ( i.e., excluding the Counterscreening Cell Lines) with respect to which the License has not terminated due to BMS previously exercising its right to terminate its License under Section 2.8(b), BMS shall also pay Athersys non-refundable license fees upon achievement of the milestone events as provided in the following schedule:
     
Event   Payment
Six (6) Month Anniversary of Completion of HTS for Accepted Cell Line
  $[*]
    Payable at the end of the six (6) month period beginning on the date BMS completes HTS for such Accepted Cell Line
   
 
   
Twelve (12) Month Anniversary of Completion of HTS for Accepted Cell Line
  $[*]
    Payable at the end of the twelve (12) month period beginning on the date BMS completes HTS for such Accepted Cell Line
   
 
   
Eighteen (18) Month Anniversary of Completion of HTS for Accepted Cell Line
  $[*]
    Payable at the end of the eighteen (18) month period beginning on the date BMS completes HTS for such Accepted Cell Line
   
 
   
Twenty-Four (24) Month Anniversary of Completion of HTS for Accepted Cell Line
  $[*]
    Payable at the end of the twenty-four (24) month period beginning on the date BMS completes HTS for such Accepted Cell Line
   


 

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1   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.
For clarity, if BMS exercises its right to terminate the License as provided in Section 2.8(b) as to a particular Accepted Cell Line, BMS shall make the next payment due as provided above after serving notice of such termination.
           (c) Counterscreening License Fees. For each Counterscreening Cell Line requested to be made by BMS, BMS shall pay Athersys non-refundable license fees upon achievement of the milestone events as provided in the following schedule:
     
Event   Payment
Agreed upon Acceptance Criteria
  $[*]
    Athersys accepts BMS’ request for the development of a Collaboration Cell Line, and the Parties mutually agree upon Acceptance Criteria therefor
   
 
   
Clonal Cell Line Isolated
  $[*]
    Verified through RT- PCR proof of appropriate vector integration
   
 
   
Cell Line Acceptance (designation of Counterscreening Cell Line)
  $[*]
    Achievement, pursuant to Section 2.3(a), of all specific Acceptance Criteria previously mutually agreed upon by the Parties for the proposed Counterscreening Cell Line
   
 
1   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.
BMS and Athersys shall jointly determine the occurrence of any of the foregoing milestone events with respect to a particular Counterscreening Cell Line, and the applicable payments for each event shall be due and payable within thirty (30) days of the Parties’ having made such a determination.
           (d) Additional Counterscreening License Fees. For each Accepted Cell Line specified as a Counterscreening Cell Line pursuant to Section 2.5 that is accepted by BMS pursuant to Section 2.3, BMS shall pay Athersys a non-refundable license fee of either: (i) an aggregate of [*] dollars ($[*]) license fee, which shall be payable in six (6) installments of [*] dollars ($[*]) each, to be paid at the end of each six (6) month period after the date of acceptance by BMS of the applicable Accepted Cell Line; or (ii)  [*] dollars ($[*]) for the use, in perpetuity, of the Counterscreening License, such fee to be payable on the six (6) month anniversary of the date of acceptance by BMS of the applicable Accepted Cell Line.


 

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           (e) Counterscreening License Fee for Accepted Cell Line. For any particular Accepted Cell Line used in the Field for which BMS has completed payment of all milestone payments under Sections 4.1(a) and (b) ( i.e. , a total of [*] dollars ($[*]) for such Accepted Cell Line), BMS may elect in writing to Athersys to obtain the perpetual right to use such Accepted Cell Line in Counterscreening (under the terms of a Counterscreening License under Section 3.3) by a one-time payment of [*] dollars ($[*]) to be made within thirty (30) days of such notice.
 
1   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.
      4.2 Milestone Payments. For each Accepted Cell Line used in the Field, BMS shall pay Athersys the milestone payments set forth in Exhibit B within thirty (30) days after each milestone event has been achieved for each Candidate Compound identified for clinical development by BMS or its Affiliate or sublicensee for the particular Accepted Cell Line.
      4.3 Royalty Payments. BMS shall pay Athersys a royalty equal to [*] percent ([*]%) of Net Sales of all Products worldwide; provided that BMS may elect, on a Product-by-Product basis and in its sole discretion, and by giving written notice to Athersys at any time prior to the date which is ninety (90) days subsequent to the approval of a given Product by Food and Drug Administration, that BMS will, in lieu of such one and one-half (1.5%) royalty, (i) pay to Athersys a royalty of [*] ([*]%) of Net Sales of such Product worldwide and (ii) pay to Athersys a one-time sales milestone of [*] dollars ($[*]) upon the achievement of five hundred million dollars of aggregate Net Sales for such Product. Each payment of royalties under this Agreement shall be accompanied by a statement of the amount of the total amounts received and calculated as Net Sales during such period, and all other information necessary to determine the appropriate amount of such payments.
      4.4 Royalty Term. For each Product, on a country-by-country basis, BMS shall pay to Athersys royalties under Section 4.3 commencing on the first commercial sale in the applicable country and continuing until the later of (a) the last to expire Patent in such country owned or controlled by BMS or its affiliate or licensee containing a Valid Claim covering such Product or the Candidate Compound therein, or covering the manufacture, use or formulation of such Product or compound, or (b) ten (10) years from the date of such first commercial sale in such country.
      4.5 Blocked Currency. In each country where the local currency is blocked and cannot be removed from the country, at the election of Athersys, royalties accrued in that country shall be paid to Athersys in such country in local currency by deposit in a local bank designated by Athersys.
      4.6 Non-Monetary Consideration. In the event BMS (or its Affiliates or sublicensees) receives any non-monetary consideration in connection with the sale or other commercial disposition of Products, Athersys’s royalty shall be based on the fair monetary value of such other consideration. In such case, BMS shall disclose to Athersys, on a confidential basis, the terms of such arrangement, and the Parties shall agree in good faith on such monetary


 

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value, which shall then be included in Net Sales for the period in which it was received by BMS (or its Affiliates or sublicensees).
5.   Records and Audit.
      5.1 Records and Audit. During the term of this Agreement and for a period of three (3) years thereafter, BMS shall keep complete and accurate records pertaining to the sale or other disposition of all Products, in sufficient detail to permit Athersys to confirm the accuracy of all payments due hereunder. Athersys shall have the right to cause an independent, certified public accountant to audit such records to confirm BMS’s Net Sales and royalty payments and payments under Section 4.2; provided, however, that such auditor shall not disclose BMS’s Confidential Information to Athersys, except to the extent such disclosure is necessary to verify the portion of the amount of royalties and payments due under this Agreement. Such audits may be exercised once a year, within three (3) years after the period to which such records relate, upon notice to BMS and during normal business hours. Athersys shall bear the full cost of such audit unless such audit discloses a variance of more than five percent (5%) from the amount of royalties and payments under Section 4.2 previously paid for such year. In such case, BMS shall bear the full cost of such audit. The terms of this Section 5.1 shall survive any termination or expiration of this Agreement for a period of three (3) years.
6.   Intellectual Property.
      6.1 Ownership .
           (a) Athersys. Athersys shall remain the sole owner of the Athersys Technology, the RAGE Technology, the Collaboration Cell Lines and the Accepted Cell Lines, including any improvements thereto made by Athersys. Athersys shall have the sole responsibility, at its discretion, for patent prosecution and choice of patent counsel in relation to Athersys Patents, and shall pay all expenses associated therewith. BMS hereby assigns and agrees to assign to Athersys its entire interest in any Improvements, which shall be deemed to be part of the Athersys Technology.
           (b) BMS. BMS shall be the sole owner of any inventions and information resulting from BMS’ use of the Accepted Cell Lines, including any Products, but excluding all Improvements. BMS shall have the sole responsibility, at its discretion, for patent prosecution and choice of patent counsel in relation to such BMS-owned inventions and the Products and shall pay all expenses associated therewith.
      6.2 Enforcement of Patent Rights . Each Party shall have the sole right, but not the obligation, to institute, prosecute or control any action or proceeding with respect to infringement by a Third Party of one or more issued Patents owned by such Party.
7.   Confidentiality; Publicity.
      7.1 Confidential Information. The Parties agree that, for the Term of this Agreement and for five (5) years thereafter, the receiving Party shall keep completely


 

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confidential and shall not publish or otherwise disclose and shall not use for any purpose, except for the purposes expressly permitted by this Agreement, any Confidential Information furnished to it by the disclosing Party. The foregoing obligation shall not apply to any information received by a Party to the extent that it can be established by such receiving Party by competent evidence that such information:
           (a) was already known to the receiving Party, other than under an obligation of confidentiality, at the time of disclosure;
           (b) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the receiving Party;
           (c) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the receiving Party in breach of this Agreement;
           (d) was independently developed by the receiving Party as demonstrated by competent written evidence prepared contemporaneously with such independent development; or
           (e) was subsequently lawfully disclosed to the receiving Party by a person other than a Party hereto.
      7.2 Authorized Disclosure . Notwithstanding the foregoing, a Party may disclose the Confidential Information of the other Party to the extent such disclosure is necessary to be disclosed in the following instances:
           (a) Regulatory filings made by BMS;
           (b) Prosecuting or defending litigation or responding to valid subpoenas;
           (c) Complying with applicable governmental regulations;
           (d) Conducting clinical trials of BMS, its Affiliates and sublicensees;
           (e) Disclosure, in connection with the performance of this Agreement, to Affiliates, employees, consultants, or agents, each of whom prior to disclosure must be bound by similar obligations of confidentiality and non-use at least equivalent in scope to those set forth in this Section 7;
           (f) Disclosure that is required by applicable law or governmental regulation; and
           (g) Disclosure of the existence and terms of this Agreement and of general summaries of the progress made by the Parties under this Agreement (but excluding the identification of any target nominated by BMS under Section 2.1 and of any Collaboration Cell Line or Accepted Cell Line developed by Athersys hereunder) to existing or potential investment bankers, investors and/or merger or acquisition parties, provided that the disclosing Party obtains


 

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from such recipient prior to disclosure an agreement to be bound by obligations of confidentiality and non-use at least similar in scope to those set forth in this Section 7.
      7.3 Disclosure. If a Party is required to make any disclosure of another Party’s Confidential Information that is authorized under subsections (a), (b), (c), (d) or (f) of Section 7.2, it will give reasonable advance notice to the latter Party of such disclosure and will afford the latter Party a reasonable opportunity, and will cooperate reasonably with such Party, to secure confidential treatment of such information prior to its disclosure (whether through protective orders or otherwise) and to limit the extent of the disclosure as much as possible. Except as otherwise required by law, and subject to Section 7.5, neither Party shall issue a press release or make any other disclosure of the terms of this Agreement or any aspect of the research conducted pursuant to this Agreement without the prior approval of such press release or disclosure by the other Party hereto. Each Party shall submit any such press release or disclosure to the other Party, and the receiving Party shall have ten (10) business days to review and approve any such press release or disclosure, which approval shall not be unreasonably withheld. If the receiving Party does not respond within such ten (10) day period, the press release or disclosure shall be deemed approved. In addition, if a public disclosure is required by law, including without limitation in a filing with the Securities and Exchange Commission, the disclosing Party shall provide copies of the disclosure reasonably in advance of such filing or other disclosure for the nondisclosing Party’s prior review and comment.
      7.4 Confidential Terms. Except as expressly provided herein, each Party agrees not to disclose any terms of this Agreement or any aspect of the research conducted pursuant to this Agreement to any Third Party without the consent of the other Party.
      7.5 Initial Press Release. The Parties shall issue a mutually approved, initial press release promptly after the Effective Date. The Parties agree that this press release shall be in the form of the press release attached to this Agreement as Exhibit C .
8.   Representations and Warranties.
      8.1 Athersys. Athersys represents and warrants that: (i) it is a corporation duly organized validly existing and in good standing under the laws of the State of Delaware; (ii) the execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate action on the part of Athersys; (iii) the performance of Athersys’s obligations under this Agreement will not conflict with its charter documents or result in a material breach of any agreements, contracts or other arrangements to which it is a party; (iv) Athersys will not, during the Term of this Agreement, enter into any agreements, contracts or other arrangements that would be materially inconsistent with its obligations under this Agreement; (v) Athersys has sufficient facilities, experienced personnel and other capabilities reasonably suited to enable it to perform its obligations under this Agreement; (vi) Athersys is the owner of, or has licensed rights to, all of the Athersys Patents in existence on the Effective Date, and has the right to grant the licenses or sublicenses, as the case may be, therefor granted under this Agreement; and (vii) as of the Effective Date, Athersys is not aware of any asserted or unasserted claim or demand which is being, or which Athersys believes can be, rightfully enforced by a Third Party against any of the Athersys Patents that would materially limit, hinder, delay or otherwise adversely affect BMS’s enjoyment of its rights and satisfaction of its obligations under this Agreement.


 

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      8.2 BMS. BMS represents and warrants that: (i) it is a corporation duly organized validly existing and in good standing under the laws of the State of Delaware; (ii) the execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate action on the part of BMS; (iii) the performance of BMS’s obligations under this Agreement will not conflict with its charter documents or result in a material breach of any agreements, contracts or other arrangements to which it is a party; (iv) BMS has sufficient facilities, experienced personnel and other capabilities reasonably suited to enable it to perform its obligations under this Agreement; and (v) BMS will not, during the Term of this Agreement, enter into any agreements, contracts or other arrangements that would be materially inconsistent with its obligations under this Agreement.
      8.3 Disclaimer of Warranties. THE ATHERSYS KNOW-HOW, ATHERSYS PATENTS AND COLLABORATION CELL LINES ARE PROVIDED AND LICENSED TO BMS “AS IS”, AND ATHERSYS AND ITS RESPECTIVE AFFILIATES MAKE NO REPRESENTATIONS AND EXTEND NO WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT THERETO OR TO THE PRODUCTS OR ATHERSYS TECHNOLOGY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, VALIDITY OF THE PATENT RIGHTS LICENSED HEREUNDER, OR NONINFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.
      8.4 Unknown Biological Properties. BMS understands and agrees that the Collaboration Cell Lines may have unpredictable and unknown biological and/or chemical properties, that they are to be used with caution, and that they are not to be used for testing in or treatment of humans. BMS shall use the Collaboration Cell Lines in compliance with all applicable laws and regulations, including, but not limited to, any laws or regulations relating to the research, testing, production, storage, transportation, export, packaging, labeling or other authorized use of the Collaboration Cell Lines.
9.   Dispute Resolution.
      9.1 Mediation. If a dispute arises out of or relates to this Agreement, or the breach thereof, and if said dispute cannot be settled through negotiation, the Parties agree first to try in good faith to settle the dispute by good faith discussions by the Vice President of External Science and Technology of BMS and the CEO or senior executive officer of Athersys (or each such person’s designee), and failing resolution thereby by mediation under the Commercial Mediation Rules of the American Arbitration Association, before resorting to arbitration, litigation, or some other dispute resolution procedure.
      9.2 Arbitration. Subject to Section 9.1, Athersys and BMS agree that any dispute or controversy arising out of, in relation to, or in connection with this Agreement, or the validity, enforceability, construction, performance or breach thereof, shall be settled by binding arbitration in New York, New York, under the then-current Rules of Commercial Arbitration of the American Arbitration Association by one (1) arbitrator appointed in accordance with such Rules. The arbitrator shall determine what discovery will be permitted, based on the principle of


 

19

limiting the cost and time that the Parties must expend on discovery; provided, however, that the arbitrator shall permit such discovery as he or she deems necessary to achieve an equitable resolution of the dispute. The decision and/or award rendered by the arbitrator shall be written, final and non-appealable, absent manifest error, and may be entered in any court of competent jurisdiction. The Parties agree that, any provision of applicable law notwithstanding, they will not request, and the arbitrator shall have no authority to award punitive or exemplary damages against any Party. The costs of any arbitration, including administrative fees and fees of the arbitrator, shall be shared equally by the Parties, unless the arbitrator determines otherwise.
10.   Indemnification.
      10.1 By BMS. Subject to Section 10.3, BMS shall indemnify, defend and hold harmless Athersys and its directors, officers and employees (each an “Athersys Indemnitee”) from and against any and all liabilities, damages, losses, costs or expenses (including attorneys’ and professional fees and other expenses of litigation and/or arbitration) (each a “Liability”) resulting from a claim, suit or proceeding made or brought by a Third Party against an Athersys Indemnitee arising from or occurring as a result of (i) any breach of the representations and warranties set forth in Section 8.2, or (ii) the performance (or failure to perform) by BMS of its obligations hereunder.
      10.2 By Athersys. Subject to Section 10.3, Athersys shall indemnify, defend and hold harmless BMS and its directors, officers and employees (each a “BMS Indemnitee”) from and against any and all Liabilities resulting from a claim, suit or proceeding made or brought by a Third Party against a BMS Indemnitee arising from or occurring as a result of (i) any breach of the representations and warranties set forth in Section 8.1, or (ii) the performance (or failure to perform) by Athersys of its obligations hereunder.
      10.3 Limitation on Indemnity Obligations.
           (a) Negligence, etc. No Athersys Indemnitee or BMS Indemnitee (each, an “Indemnitee”) shall be entitled to the indemnification under Section 10.1 or 10.2, as the case may be, to the comparative extent the Liability for which indemnification is sought was caused by a grossly negligent, reckless or intentional act or omission by the Party with which such Indemnitee is affiliated or any of such Party’s Affiliates or sublicensees or any of their respective directors, officers, employees or authorized agents.
           (b) Target Proteins and Collaboration Cell Lines. Athersys acknowledges and agrees that it will conduct a reasonable intellectual property investigation of each target protein that is the basis of a particular Collaboration Cell Line, and of matters relating to the creation of the Collaboration Cell Line, that BMS selects and Athersys agrees to produce pursuant to Section 2.1, which shall be in addition to any such investigation that BMS may have conducted. BMS also acknowledges and agrees that it will conduct a reasonable intellectual property investigation of each target protein that BMS proposes for selection by Athersys as the basis for producing a Collaboration Cell Line pursuant to Section 2.1, which shall be in addition to any such investigation that Athersys may conduct, and shall disclose to Athersys the results of such investigation. BMS shall not be obligated to provide indemnification under Section 10.1 against any Liabilities resulting from a claim, suit or proceeding to the extent it is alleged, proven


 

20

or agreed in such claim, suit or proceeding that any such target protein (or the creation of the corresponding Collaboration Cell Line) infringes upon or otherwise violates the intellectual property rights of any Third Party, except to the comparative extent such infringement or violation results from a grossly negligent, reckless or intentional act or omission by BMS or any of BMS’ Affiliates or any of their respective directors, officers, employees or authorized agents.
      10.4 Procedure. In the event that an Indemnitee intends to claim indemnification under this Article 10, it shall promptly notify the indemnifying Party in writing of such alleged Liability. The indemnifying Party shall have the sole right to control the defense and settlement thereof. The indemnifying Party shall have the right to settle or compromise any Liabilities for which it is providing indemnification under this Article 10, provided that the consent of the Indemnitee (which shall not be unreasonably withheld or delayed) shall be required in the event any such settlement or compromise would adversely affect the interests of such Indemnitee. The Indemnitees shall cooperate with the indemnifying Party and its legal representatives in the investigation of any action, claim or liability covered by this Article 10. The Indemnitees shall not, except at their own cost, voluntarily make any payment or incur any expense with respect to any claim or suit without the prior written consent of the indemnifying Party, which the indemnifying Party shall not be required to give.
11.   Term and Termination.
      11.1 Term of Agreement. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue until expiration upon the end of all royalty and payment obligations of BMS under Article 4, or until such earlier date as the Parties agree in writing to terminate the Agreement or the Agreement terminates as provided below.
      11.2 Termination for Cause. Either Party may terminate this Agreement in the event the other Party has materially breached or defaulted in the performance of any of its obligations hereunder, and such default has continued without cure for sixty (60) days after written notice thereof was provided to the breaching Party by the non-breaching Party. Any termination shall become effective at the end of such sixty (60) day period unless the breaching Party has cured any such breach or default prior to the expiration of the sixty (60) day period. Notwithstanding the above, in the case of a failure to timely pay any amounts due hereunder, the period for cure of any subsequent default following notice thereof shall be thirty (30) days and, unless payment is made within such period the termination shall become effective at the end of such period.
      11.3 Effect of Termination.
           (a) Accrued Rights and Obligations. Termination of this Agreement for any reason shall not release any Party hereto from any liability which, at the time of such termination, has already accrued to the other Party or which is attributable to a period prior to such termination nor preclude either Party from pursuing any rights and remedies it may have hereunder or at law or in equity with respect to any breach of this Agreement. It is understood and agreed that monetary damages may not be a sufficient remedy for any breach of this Agreement and that the non-breaching Party may be entitled to injunctive relief as a remedy for any such breach.


 

21

           (b) Return of Confidential Information. Upon any termination of this Agreement, each of Athersys and BMS shall promptly return to the other Party all Confidential Information of the other; provided that counsel of each Party may retain one (1) copy of such Confidential Information solely for archival purposes.
           (c) Survival. Sections 3.5 and 11.3, and Articles 4, 5, 6, 7, 9, 10 and 12 of this Agreement shall survive termination of this Agreement for any reason.
12.   Miscellaneous.
      12.1 Governing Law. This Agreement and any dispute, including without limitation any arbitration, arising from the performance or breach hereof shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to its conflict of laws rules and regulations.
      12.2 Independent Contractors. The relationship of the parties hereto is that of independent contractors. The parties hereto are not deemed to be agents, partners or joint venturers of the others for any purpose as a result of this Agreement or the transactions contemplated thereby.
      12.3 Assignment. Neither Party may assign its rights or obligations under this Agreement absent the prior written consent of the other Party, not to be unreasonably withheld; provided, however, that either Party may assign this Agreement without such consent to any of its Affiliates or to any successor in interest by merger, acquisition or sale of all or substantially all of its assets in a manner such that the assignee will be liable and responsible for the performance and observance of all its duties and obligations hereunder. This Agreement shall be binding upon the successors and permitted assigns of the Parties. Any attempted delegation or assignment not in accordance with this Section 12.3 shall be void and of no force or effect. In the case of BMS, if any such successor in interest had, before its merger with, or acquisition or purchase of, BMS, an agreement with Athersys providing such entity with a license to the RAGE Technology, then within ninety (90) day after the effective date of such merger, acquisition or purchase Athersys may terminate this agreement, upon written notice to such successor in interest.
      12.4 Notices. All notices, requests and other communications hereunder shall be in writing and shall be personally delivered or sent by telecopy or other electronic facsimile transmission or by registered or certified mail, return receipt requested, postage prepaid, in each case to the respective address specified below, or such other address as may be specified in writing to the other parties hereto:


 

22

     
If to BMS:
  Bristol-Myers Squibb Company
 
  Route 206 and Province Line Road
 
  P. O. Box 4000
 
  Princeton, New Jersey 08543-4000
 
  Attn:    Vice President and Senior Counsel,
 
                 Pharmaceutical Research Institute and
 
                 Worldwide Business Development
 
  Fax No.: (609) 252-4232
 
   
If to Athersys:
  Athersys, Inc.
 
   3201 Carnegie Avenue
 
  Cleveland, Ohio 44115-2634
 
  Attn: President
 
  Fax No.: (216) 361-9495
      12.5 Force Majeure. Neither Party shall lose any rights hereunder or be liable to the other Party for damages or losses (except for payment obligations) on account of failure of performance by the defaulting Party if the failure is occasioned by war or terrorism, strike, fire, Act of God, earthquake, flood, lockout, embargo, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence, intentional conduct or misconduct of the nonperforming Party has exerted all reasonable efforts to avoid or remedy such force majeure; provided, however, that in no event shall a Party be required to settle any labor dispute or disturbance.
      12.6 Advice of Counsel. BMS and Athersys have each consulted counsel of their choice regarding this Agreement, and each acknowledges and agrees that this Agreement shall not be deemed to have been drafted by one Party or another and will be construed accordingly.
      12.7 Compliance with Laws. Each Party will comply with all applicable laws and regulations in connection with its performance under this Agreement. Each Party shall furnish to the other Party any information requested or required by that Party during the term of this Agreement or any extensions hereof to enable that Party to comply with the requirements of any U.S. or foreign federal, state and/or government agency.
      12.8 Severability. In the event that any provisions of this Agreement are determined to be invalid or unenforceable by a court of competent jurisdiction, the remainder of the Agreement shall remain in full force and effect without said provision. In such event, the parties shall in good faith attempt to negotiate a substitute clause for any provision declared invalid or unenforceable, which substitute clause shall most nearly approximate the intent of the Parties in agreeing to such invalid provision, without itself being invalid.
      12.9 Waiver. It is agreed that no waiver by either Party hereto of any breach or default of any of the covenants or agreements herein set forth shall be deemed a waiver as to any subsequent and/or similar breach or default.
      12.10 Complete Agreement. This Agreement, together with its Exhibits, constitutes the entire agreement, both written and oral, between the Parties with respect to the subject matter


 

23

hereof, and that all prior agreements, including the term sheet, respecting the subject matter hereof, either written or oral, expressed or implied, are merged and canceled, and are null and void and of no effect as of the Effective Date. No amendment or change hereof or addition hereto shall be effective or binding on either of the parties hereto unless reduced to writing and duly executed on behalf of both Parties. For clarity, the cells lines created under the Original Agreement and the Prior Agreement, and any amendments thereto, are not considered within the subject matter of this Agreement.
      12.11 Use of Name. Unless otherwise permitted by this Agreement or required by applicable laws or regulations, neither Party shall use the name or trademarks of the other Party without the prior written consent of such other Party.
      12.12 Headings. The captions to the several Sections and Articles hereof are not a part of this Agreement, but are included merely for convenience of reference only and shall not affect its meaning or interpretation.
      12.13 Counterparts. This Agreement may be executed in two counterparts, each of which shall be deemed an original and which together shall constitute one instrument.
* * *


 

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      In Witness Whereof , BMS and Athersys have executed this Agreement by their respective duly authorized representatives.
                     
Bristol-Myers Squibb Company       Athersys, Inc.    
 
                   
By:
          By:        
 
 
 
         
 
   
 
                   
Print Name:
          Print Name:        
 
 
 
         
 
   
 
                   
Title:
          Title:        
 
 
 
         
 
   


 

25

Exhibit A
RAGE-VT CELL LINES
A. Creation of Collaboration Cell Lines
Within ninety (90) days after the Effective Date, BMS shall provide Athersys with an initial list of specific proteins for which BMS requests that Athersys will create RAGE libraries, for Athersys’ review under Section 2.1(a). If Athersys accepts such proposed proteins as provided therein, Athersys shall seek to create RAGE libraries, and screen and isolate Collaboration Cell Lines expressing such proteins after the Parties agree upon Acceptance Criteria for each particular Collaboration Cell Line. Such list may be supplemented from time to time by mutual agreement of the Parties or by designation of additional specific proteins by BMS and acceptance of such proteins by Athersys, as provided in Section 2.1 and in accordance with the procedure provided below.
From time to time, BMS may nominate specific proteins for consideration by Athersys under Section 2.1 for use in constructing a Collaboration Cell Line using its RAGE technology and other Athersys Know-How. Any such Collaboration Cell Line shall conform to the general specifications set forth in Section B below and to any other specific requirements agreed to by the Parties.
Athersys shall have the right, before accepting such request of a particular protein by BMS hereunder, to review and approve the technical and intellectual property feasibility of constructing the requested Collaboration Cell Line. If requested by Athersys, BMS shall promptly provide to Athersys the relevant technical requirements of BMS for the requested Collaboration Cell Line. Athersys shall make its determination of technical feasibility, intellectual property analysis and/or conflict with preexisting exclusive research obligations to Third Parties or preexisting internal research programs for which research has commenced prior to receiving notice (a “Pre-existing Program”), within forty-five (45) days of the request by BMS. If Athersys believes that the project is not constrained by any of these considerations or fails to provide any such notice within such forty-five (45) day period, then the nominated protein (and corresponding Collaboration Cell Line) shall be deemed to be added to this Exhibit A . If Athersys believes the project is constrained by any of such considerations and provides such notice within such forty-five (45) day period, such protein and cell line shall not be added to Exhibit A ; provided that Athersys shall provide to BMS all pertinent information Controlled by Athersys regarding the basis for its rejection of such request. In that event, BMS shall be entitled to nominate another protein (with the foregoing process being repeated), until a protein nominated by BMS hereunder is accepted by Athersys. For purposes of calculating the maximum number of cell lines permitted under this Agreement, any substitute request made by BMS shall be deemed to have been made as of the date of the original request.
In addition, in the event Athersys commences a Pre-existing Program with respect to a target (either internally or with a Third Party), and BMS subsequently proposes such target under Section 2.1, Athersys shall promptly inform BMS of such program and request that BMS propose a substitute target. In such event, Athersys shall, upon BMS’ request, provide, on a confidential basis, a reasonable demonstration of such commencement and prosecution of any


 

26

such Pre-existing Program for a given target prior to the date of BMS’ proposal of such target under Section 2.1.
B. Acceptance Criteria for Collaboration Cell Lines
The Parties shall discuss and agree upon a set of specific Acceptance Criteria for each Collaboration Cell Line based upon the Generic Criteria set forth below. Such Acceptance Criteria shall be deemed to constitute a part of this Exhibit A . In each case, BMS and Athersys shall agree upon one primary assay (with respect to each Collaboration Cell Line, the “Primary Assay”) as the determining criterion for optimization and proof of target over-expression for purposes of determining whether a particular Collaboration Cell Line satisfies various of its Acceptance Criteria. If BMS wishes to have receptor density as determined by radioligand binding (which may require MTX amplification) as an acceptance criterion, BMS may specify not more than fifty percent (50%) of the Collaboration Cell Lines in a particular year, for such acceptance treatment. If BMS wishes Athersys perform multiple assay validation and/or make radioligand binding determinations in addition to those specified in the preceding sentence, BMS shall bear the additional cost thereof.
Generic Collaboration Cell Line Acceptance Criteria
         
        Testing to determine if
Category   Criteria   Criteria are Met by:
1. Vector integration upstream of target gene in HEK 293 or HT 1080 cells or other cell lines specified by the Parties
  RT-PCR demonstrating RIG vector (RAGE specific vector) spliced to target sequence mRNA   Athersys
 
       
2. Target gene mRNA over-expression (RAGE vs. parental)
  Quantitative PCR (qPCR) demonstrating >10 fold mRNA increase   Athersys
 
       
3. Target protein over-expression (RAGE vs. parental) and functionality (Primary Assay format)
 
     Functional assay: such as FLIPR with dose response, agonist/antagonist, cAMP determination
   
 
       
 
  or    
 
       
 
 
     Protein over-expression: a ten-fold increase of Target protein in RAGE clone versus parental, as determined by Western blot or FACS analysis
  Athersys
 
       
4. RAGE clone robustness
 
     Freeze/thaw
   
 
       
 
 
     Expression stability (e.g. qPCR) over four weeks
  Athersys
 
       
5. RAGE cell line performance in HTS
  Performance in Primary Assay under simulated HTS conditions and general Cell Line characteristics.   BMS


 

 

Exhibit B
MILESTONE PAYMENTS – CANDIDATE COMPOUNDS
     
Milestone   Payment
Filing of first IND for the Candidate Compound directed against a designated target expressed by an Accepted Cell Line
  $[*]
Initiation of first Phase II clinical study for the Candidate Compound
  $[*]
Initiation of first Phase III clinical study for the Candidate Compound
  $[*]
Approval of a Product containing the Candidate Compound by Food and Drug Administration as drug
  $[*]
As used in this Exhibit B , the phrase “Initiation of first Phase III clinical study” shall be deemed to include, if a party conducts a Phase II/III study on a Candidate Compound, the point during such Phase II/III clinical trial when the party conducting the trial has the regulatory approval to proceed with such trial as a pivotal trial.
BMS shall promptly notify Athersys of the first occurrence of any milestone with respect to each Candidate Compound. Milestone payments shall be made only once with respect to any given Candidate Compound, regardless of the number of indications sought (or approvals obtained) with respect to such Candidate Compound, whether alone or in combination with other compounds or products, and regardless of any new dosage strengths, preparations or forms of administration for such Candidate Compound.
If BMS develops as a back-up Candidate Compound that inhibits or otherwise modulates the activity of a particular molecular target of a Candidate Compound on which BMS is already making milestone payments, then BMS may conduct clinical development on such back-up or follow-on Candidate Compounds and shall not be obligated to make any milestone payments with respect to any such back-up or follow-on Candidate Compound, except as otherwise provided below. In the event that a particular Candidate Compound is dropped from active clinical development work or marketing for safety or efficacy reasons and is specifically replaced with a different Candidate Compound targeting the same molecular target as such dropped Candidate Compound, such new Candidate Compound shall be deemed a “Replacement Compound.” BMS shall not be obligated to make milestone payments that were earlier made with respect to a dropped Candidate Compound and replaced by a Replacement Compound, but, subject to the preceding paragraph, BMS shall pay all milestone payments for milestone events achieved by such Replacement Compound that had not been achieved by such dropped Candidate Compound.
 
1   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.


 

2

Exhibit C
FORM PRESS RELEASE
[Athersys to supply initial draft]

 

 

EXHIBIT 10.4
CONFIDENTIAL
      Execution Copy
LICENSE AGREEMENT
By And Between
ATHERSYS, INC.
And
ANGIOTECH PHARMACEUTICALS, INC.
Effective as of May 5, 2006

 


 

TABLE OF CONTENTS
             
        Page
 
           
ARTICLE I. DEFINITIONS     1  
 
           
ARTICLE II. LICENSES     3  
2.1
  License Grants By Athersys     3  
2.2
  License Grants to Joint IP     4  
2.3
  Sublicense Grant By Athersys     4  
2.4
  Reservation Of Rights     4  
 
           
ARTICLE III. CONSIDERATION     4  
3.1
  Profit Sharing in Lieu of Royalty     4  
 
           
ARTICLE IV. CONFIDENTIAL INFORMATION     4  
4.1
  Confidentiality Obligations     4  
 
           
ARTICLE V. INTELLECTUAL PROPERTY OWNERSHIP AND PROTECTION     5  
5.1
  Ownership Of Intellectual Property     5  
5.2
  Ownership Of New Intellectual Property     5  
5.3
  Patent Prosecution Of Patent Rights Solely Owned     5  
5.4
  Patent Prosecution Of Joint IP     6  
5.5
  Costs Of Patent Prosecution     6  
5.6
  Cooperation     6  
5.7
  Third Party Infringement     7  
5.8
  Defense and Enforcement of Patent Rights     7  
5.9
  Other Intellectual Property Infringement     9  
 
           
ARTICLE VI. TERM AND TERMINATION     10  
6.1
  Term     10  
6.2
  Survival Of Obligations     10  
 
           
ARTICLE VII. MISCELLANEOUS PROVISIONS     10  
7.1
  Governing Law     10  
7.2
  Assignment     10  
7.3
  Compliance With Laws     10  
7.4
  Further Assurances     11  

-i-


 

TABLE OF CONTENTS
(continued)
             
        Page
 
           
7.5
  Severability     11  
7.6
  Waivers And Amendments; Preservation Of Remedies     11  
7.7
  Headings     11  
7.8
  Counterparts     11  
7.9
  Successors     11  
7.10
  Notices     11  
7.11
  No Consequential Damages     12  
7.12
  Independent Contractor     12  
7.13
  Complete Agreement     13  
SCHEDULES
Schedule 1.5
Schedule 1.6
Schedule 2.1

-ii-


 

LICENSE AGREEMENT
     This License Agreement (this “License Agreement” ) is made and entered into as of May 5, 2006 (the “Effective Date” ), by and between Athersys, Inc., a corporation organized under the laws of Delaware and having a place of business at 3201 Carnegie Avenue, Cleveland, Ohio 44115 ( “Athersys” ), and Angiotech Pharmaceuticals, Inc., a corporation organized under the laws of British Columbia and having a place of business at 1618 Station Street, Vancouver, BC Canada, V6A 1B6 (“ Angiotech ”). In this License Agreement, Athersys and Angiotech may each be referred to as a “Party” and collectively as the “ Parties .”
RECITALS
     A. Concurrently with the execution of this License Agreement, Athersys and Angiotech are entering into that certain Strategic Alliance Agreement (such agreement and the exhibits and schedules thereto, the “ Strategic Alliance Agreement ”) concerning the alliance between Angiotech and Athersys to research, develop, manufacture, market and commercialize certain stem cells and stem cell therapies for certain indications.
     B. The Strategic Alliance Agreement includes a license from Athersys to Angiotech regarding certain technology and intellectual property owned by Athersys, and a sublicense to certain technology and intellectual property licensed to and sublicensable by Athersys, all as set forth below.
     C. Athersys owns or Controls the Intellectual Property of MCL LLC (which was subsequently transferred by MCL LLC to Regenesys LLC, and then by Regenesys LLC to Athersys) that pertains to the subject matter of this License Agreement.
AGREEMENT
     NOW, THEREFORE, in consideration of the covenants and obligations expressed herein, and intending to be legally bound, the Parties agree as follows:
ARTICLE I.
DEFINITIONS
     Any capitalized terms not defined in this License Agreement shall have the meaning given such term(s) in the Strategic Alliance Agreement. Any references in this License Agreement to “Sections” shall refer to Sections of this License Agreement, unless specified to be referring to Sections of the Strategic Alliance Agreement. For purposes of this License Agreement, the following capitalized terms in this License Agreement, whether used in the singular or plural, shall have the following meanings:
     1.1 “ Action ” has the meaning ascribed to it in Section 5.8(b) .
     1.2 “ Angiotech ” has the meaning ascribed to it in the preamble.
     1.3 “ Athersys ” has the meaning ascribed to it in the preamble.

 


 

     1.4 “ Athersys Stem Cells ” means any and all stem cells described by or in the Athersys Stem Cell Technology.
     1.5 “ Athersys Stem Cell Technology ” means all Intellectual Property that meets all of the following conditions: (a) is owned or Controlled by Athersys; (b) is related to, or necessary or useful in, the research, development and/or exploitation (including, without limitation, characterization, harvesting, growth, sorting, reproduction, priming, differentiation, storage, use or application) of stem cells; (c) is existing as of the Effective Date or comes into existence as a result of Athersys’ and/or its Affiliates’ internal or collaborative research and development or as a result of an agreement with a Third Party during the License Agreement Term; and (d) is not Company Technology, a Company Patent, University Technology, a University Patent, or Joint IP. Athersys Stem Cell Technology includes, but is not limited to, the Patent Rights listed on Schedule 1.5 .
     1.6 “ Company Patent ” means a Patent that claims as an invention one or more aspects of the Company Technology, and that is owned or Controlled by Athersys during the Term. Company Patents include, but are not limited to, the Patent Rights listed on Schedule 1.6 .
     1.7 “ Company Technology ” means the Intellectual Property owned by Athersys through the Ownership Agreement, namely, the “COMPANY Technology,” as defined in the Ownership Agreement.
     1.8 “ Control(s) ” or “ Controlled ” means with respect to any (a) material, Know-How or other information or documentation, or (b) Intellectual Property, the possession of (whether by ownership or license, other than pursuant to this License Agreement), or the ability of a Party or its Affiliates to grant access to, or a license or sublicense of, such item or right as provided for herein without violating the terms of any agreement or other arrangement with any Third Party existing at the time such Party would be required hereunder to grant the other Party such access or license or sublicense, except to the extent that any of the foregoing rights arise by virtue of the grant of rights under this License Agreement.
     1.9 “ Declined Action ” has the meaning ascribed to it in Section 5.8(c).
     1.10 “ Effective Date ” has the meaning ascribed to it in the preamble.
     1.11 “ Joint IP ” has the meaning ascribed to it in Section 5.2.
     1.12 “ License Agreement ” has the meaning ascribed to it in the preamble.
     1.13 “ License Agreement Term ” has the meaning ascribed to it in Section 6.1.
     1.14 “ Ownership Agreement ” means that certain Ownership Agreement, dated as of May 17, 2002, by and between the University and MCL LLC.
     1.15 “ Party ” and/or “ Parties ” has the meaning ascribed to it in the preamble.
     1.16 “ Prior Third Party Agreement ” means those agreements between Athersys and a Third Party set forth on Schedule 2.1 , as such agreements exist as of the Effective Date.

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     1.17 “ Responsible Party ” has the meaning ascribed to it in Section 5.3 .
     1.18 “ Strategic Alliance Agreement ” has the meaning ascribed to it in the Recitals.
     1.19 “ University ” means the Regents of the University of Minnesota, a constitutional educational corporation under the laws of the State of Minnesota.
     1.20 “ University License Agreement ” means that certain Exclusive License Agreement, dated as of May 17, 2002, by and between the University and MCL LLC.
     1.21 “ University Patents ” means a Patent Right that claims as an invention one or more aspects of the University Technology.
     1.22 “ University Technology ” means the Intellectual Property that is owned by the University pursuant to the Ownership Agreement, namely, the “University Technology,” as defined in the Ownership Agreement.
ARTICLE II.
LICENSES
     2.1 License Grants By Athersys . Subject to the provisions of this License Agreement, the Strategic Alliance Agreement, the applicable provisions of the Ownership Agreement and University License Agreement, and the Prior Third Party Agreements, Athersys grants to Angiotech during the License Agreement Term:
          (a) a co-exclusive (meaning that only Athersys, Angiotech and their Affiliates and permitted subcontractors can act in each country of the Territory), worldwide, license and sublicense (as the case may be), with the right to sublicense (through multiple tiers of sublicensing), under the Company Technology, Company Patents and Athersys Stem Cell Technology to research, develop, and otherwise use and exploit (but excluding to make and have made) Cells and Clinical Development Candidates in the Therapeutic Field in the Territory as necessary or useful to conduct any Clinical Development Program, Pre-Clinical Development Program and/or New Pre-Clinical Development Program and/or its activities under any Transaction Agreement;
          (b) an exclusive (even as to Athersys), worldwide, license and sublicense (as the case may be), with the right to sublicense (through multiple tiers of sublicensing), under the Company Technology, Company Patents and Athersys Stem Cell Technology to promote, market, distribute, advertise, sell, have sold, offer for sale, import and have imported Cell Therapy Products in the Therapeutic Field in the Territory; and
          (c) in the event that Angiotech obtains rights to manufacture Cells, Clinical Development Candidates and Cell Therapy Products pursuant to the terms of the Strategic Alliance Agreement, a co-exclusive (meaning that only Athersys, Angiotech and their Affiliates and permitted subcontractors can act in each country of the Territory) worldwide, license and sublicense (as the case may be), with the right to sublicense (through multiple tiers of sublicensing), under the Company Technology, Company Patents and Athersys Stem Cell

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Technology to make and have made Cells, Clinical Development Candidates and Cell Therapy Products in the Therapeutic Field in the Territory.
     2.2 License Grants to Joint IP .
          (a) Athersys hereby grants to Angiotech a non-exclusive, worldwide, fully paid-up, royalty-free, irrevocable right and license, with the right to sublicense (through multiple tiers of sublicensing), in all fields under Athersys’ undivided interest in the Joint IP to research, develop, make, have made, promote, market, distribute, advertise, sell, have sold, offer for sale, import, have imported, and otherwise use and exploit products and processes.
          (b) Angiotech hereby grants to Athersys a non-exclusive, worldwide, fully paid-up, royalty-free, irrevocable right and license, with the right to sublicense (through multiple tiers of sublicensing), in all fields under Angiotech’s undivided interest in the Joint IP to research, develop, make, have made, promote, market, distribute, advertise, sell, have sold, offer for sale, import, have imported, and otherwise use and exploit products and processes.
     2.3 Sublicense Grant By Athersys . Athersys grants to Angiotech a sublicense under University Technology and University Patents pursuant to and in accordance with the terms and conditions of the Sublicense Agreement. The foregoing includes the right to sublicense (through multiple tiers of sublicensing).
     2.4 Reservation Of Rights . Except as expressly set forth in Sections 2.1 , 2.2(b) and 2.3 , Athersys reserves all right, title and interest in, to and under the Company Technology, Company Patents, Athersys Stem Cell Technology, and all other Intellectual Property owned by or licensed to Athersys or any of its Affiliates. For the avoidance of doubt, no right or license is granted under this License Agreement by Athersys or any of its Affiliates to Angiotech or any of its Affiliates, whether expressly, impliedly, by estoppel or otherwise, in, to or under the Company Technology, Company Patents, Athersys Stem Cell Technology, or any other material, technology or intellectual property rights owned by or licensed to Athersys or any of its Affiliates, except as expressly set forth in Sections 2.1 , 2.2(b) and 2.3 .
ARTICLE III.
CONSIDERATION
     3.1 Profit Sharing in Lieu of Royalty . In complete consideration for the rights granted to Angiotech under this License Agreement, and with respect to any Cell Therapy Product(s), Athersys shall receive a share of the Profits (as described in the Strategic Alliance Agreement), and with respect to any Sole Development Product(s), Athersys shall receive a royalty and share of Sole Development Income (as described in the Strategic Alliance Agreement).
ARTICLE IV.
CONFIDENTIAL INFORMATION
     4.1 Confidentiality Obligations . All information exchanged by the Parties pursuant to this License Agreement shall be subject to the obligations of confidentiality, as applicable, set forth in ARTICLE XIII of the Strategic Alliance Agreement; provided, however , that any

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disclosure by either Party as required under the Ownership Agreement shall be deemed a permitted disclosure under Section 13.3 of the Strategic Alliance Agreement.
ARTICLE V.
INTELLECTUAL PROPERTY OWNERSHIP AND PROTECTION
     5.1 Ownership Of Intellectual Property . Athersys shall retain all of its ownership interests in the Athersys Stem Cell Technology, the Company Technology, and the Company Patents, as such exist as of the Effective Date. Angiotech shall retain all of its ownership interests in its Intellectual Property , as such exists as of the Effective Date, and shall have sole responsibility for Patent Prosecution related thereto. Nothing in this License Agreement shall be construed to transfer ownership of any Intellectual Property rights existing as of the Effective Date from one Party to the other Party.
     5.2 Ownership Of New Intellectual Property . Inventorship of all Intellectual Property, whether patentable or not, made, created, identified, conceived, reduced to practice or derived as a direct result of the exercise of a Party’s rights or performance of a Party’s obligations under any Pre-Clinical Development Program, Clinical Development Program or any Transaction Agreement shall be determined in accordance with United States patent laws. As between Athersys and Angiotech, ownership of Intellectual Property made, created, identified, conceived, reduced to practice or derived as a result of the exercise of a Party’s rights or obligations under the Transaction Agreements shall be determined consistent with inventorship. Any Intellectual Property jointly owned by the Parties pursuant to this Section 5.2 is referred to herein as “ Joint IP .”
     5.3 Patent Prosecution Of Patent Rights Solely Owned . The responsibility for Patent Prosecution related to an invention owned solely by Athersys pursuant to Sections 5.1 or 5.2 , or an invention solely owned by Angiotech pursuant to Section 5.2 , shall be the responsibility of the Party owning the invention that is the subject thereof (“ Responsible Party ”). With respect to Patent Prosecution of Patent Rights necessary or useful in connection with Cell Therapy in any Therapeutic Field, the following obligations shall apply:
          (a) The Responsible Party shall perform Patent Prosecution of all Patent Rights for which it responsible throughout the Territory, using Commercially Reasonable Efforts.
          (b) The Responsible Party shall consult with the other Party regarding Patent Prosecution of all Patents Rights for which it is responsible in the Territory, and shall provide copies to the other Party of all official correspondence with patent authorities related thereto.
          (c) The Responsible Party shall give the other Party a reasonable opportunity to review and provide substantive input for material decisions relating to the prosecution and maintenance of each application for Patent, shall consult with the other Party with respect to each such application for Patent, and shall supply the other Party with a copy of each such application for Patent as filed, together with notice of its filing date and serial number. For the avoidance of doubt, the Responsible Party may take ministerial and non-material procedural actions regarding the Patent Rights for which it is responsible without obtaining prior input from the other Party.

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          (d) During the Term, the Responsible Party shall keep the JSC and the other Party informed of the status of all such material Patent Prosecution activities, shall provide written reports to the other Party at least semi-annually regarding the status of the Patent Rights for which it is responsible. The other Party shall have the right to request and promptly receive additional information regarding such Patent Rights from the Responsible Party.
          (e) In the event that the Athersys elects to finally abandon the subject matter of any patent application or issued patent within the Patent Rights for which it is responsible, Athersys shall give Angiotech at least thirty (30) thirty days prior written notice of any such planned abandonment. Angiotech shall then have the right to continue the prosecution of any such abandoned application or patent and to maintain the same, all at Angiotech’s sole cost and expense. If Angiotech exercises such right to continue the prosecution and maintenance of any such patent application or patent to be abandoned by Athersys, Athersys shall continue to own such patent or patent application (as applicable) but shall give power of attorney to Angiotech and/or its legal representative to continue the prosecution and maintenance of such patent application or patent; provided, however, that all terms and conditions of the license granted to Angiotech in this License Agreement shall continue to apply and Angiotech shall have no rights outside of the Therapeutic Field. Athersys agrees to cooperate in such activities, but shall have no obligation to incur any expense in connection therewith.
     5.4 Patent Prosecution Of Joint IP . The JSC shall determine whether to conduct Patent Prosecution with respect to all Joint IP. The JSC will assign responsibility to one Party to conduct Patent Prosecution of such Patent(s) and application(s) for Patent(s), and such Party shall thereafter be deemed the Responsible Party with respect to such Patent(s) and application(s) for Patent(s); provided, however, that both Parties shall be entitled to actively participate in such Patent Prosecution in connection with Joint IP, and shall jointly decide upon the strategy and content of such Patent Prosecution activities and submissions to governmental authorities associated therewith. With respect to Patent Prosecution in connection with Joint IP, and subject to the foregoing sentence, the Responsible Party shall have the obligations set forth in Section 5.3 ; provided, however, that such obligations shall not be limited to Patent Rights necessary or useful in connection with Cell Therapy in the Therapeutic Field.
     5.5 Costs Of Patent Prosecution . All out-of-pocket Patent Prosecution costs and expenses, including attorneys’ fees, incurred by a Party in the performance of Patent Prosecution pursuant to this License Agreement shall be (a) borne solely by the Responsible Party in the case of Patent Rights owned solely by a Party, and (b) shared equally by the Parties in the case of Joint IP. In the case of Joint IP, the Responsible Party shall keep the other Party informed of such costs and expenses from time to time, including by providing backup documentation evidencing the out-of-pocket costs and expenses incurred, and the other Party shall promptly reimburse the Responsible Party for fifty percent (50%) of such costs and expenses within thirty (30) days after receipt of written notice thereof, together with documentation supporting such costs and expenses.
     5.6 Cooperation . With respect to all Patent Prosecution activities under this License Agreement, each Party shall:

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          (a) execute all further instruments to document its respective ownership consistent with this ARTICLE V as reasonably requested by the other Party;
          (b) make its employees, agents and consultants reasonably available to the other Party (or to the other Party’s authorized attorneys, agents or representatives), to the extent reasonably necessary to enable the Responsible Party hereunder to undertake Patent Prosecution;
          (c) cooperate, if necessary and appropriate, with the other Party in gaining patent term extensions; and
          (d) endeavor in good faith to coordinate its efforts under this License Agreement with the other Party to minimize or avoid inconsistencies or interference with the Patent Prosecution of the other Party regarding Intellectual Property licensed to Angiotech hereunder or Joint IP.
     5.7 Third Party Infringement .
          (a) Notice . Except as provided in Section 5.7(b) , and with respect to any Patent Rights licensed hereunder, each Party shall promptly notify the other Party in writing of any alleged or threatened infringement of such Patent Rights of which it becomes aware, and shall provide to the other Party available evidence thereof. The Parties shall consult with respect to potential strategies for terminating such alleged or threatened infringement without litigation.
          (b) Notice — ANDA Filing . Each Party shall promptly provide to the other Party copies of any allegations of alleged patent invalidity or non-infringement of a Patent Right licensed hereunder pursuant to a certification under 21 U.S.C. § 355(b)(2)(A)(iv) by a Third Party filing an Abbreviated New Drug Application thereunder or any supplements or successor provisions thereto. Such copies shall be provided promptly, but in any event within ten (10) business days of receipt of such certification.
     5.8 Defense and Enforcement of Patent Rights .
          (a) Defense of Declaratory Judgment Action . In the event of an assertion of invalidity or unenforceability of the Patent Rights licensed hereunder, the Party receiving notice of such assertion shall promptly advise the other Party in writing of such assertion and of all relevant facts and circumstances known to such Party pertaining to such assertion. Angiotech and Athersys shall thereafter consult and cooperate fully to determine an appropriate course of action.
          (b) Action within the Licensed Field . Athersys shall have the first right, but not the obligation, to commence and control any legal action or proceeding, or the filing of any counterclaim, related to any alleged infringement of any Patent Rights licensed to Angiotech hereunder (“ Action” ) within any Therapeutic Field. In the event that Athersys elects, in its sole discretion, to undertake such an Action, (i) Athersys shall reasonably consider Angiotech’s input with respect to such Action; (ii) Angiotech agrees to reasonably cooperate with Athersys, including providing access to all necessary documents, executing all papers and performing such other acts as may be reasonably required for such Action, including, but not limited to, consenting to be joined as a Party plaintiff in such Action, at Athersys’ sole expense; and (iii)

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each Party shall assert and not waive the joint defense privilege with respect to all communications between the Parties reasonably the subject thereof. Athersys shall control such Action, and Athersys may enter into settlements, stipulated judgments or other arrangements respecting such infringement; provided, however, that without the prior written consent of Angiotech, no settlement, stipulated judgment or other voluntary final disposition of a suit under this Section 5.8(b) may be undertaken by Athersys without the consent of Angiotech if such settlement, stipulated judgment or other voluntary final disposition would require Angiotech to be subject to an injunction, admit wrongdoing, make a monetary payment or would otherwise materially adversely affect Angiotech’s rights under the Transaction Agreements. Athersys shall keep Angiotech reasonably apprised of the progress of any such Action. Angiotech may, at its option and sole expense, be represented by counsel of its choice, but all other costs associated with any such Action shall be at the sole expense of Athersys.
          (c) Declined Action . If, within ninety (90) days after discovering or being notified by Angiotech in writing of an alleged infringement that would be the basis of a potential Action within any Therapeutic Field, Athersys declines to commence an Action, then Angiotech shall have the right, but not the obligation, to commence an Action with respect to such alleged infringement (“ Declined Action ”); provided that prior to commencing any such Declined Action, Angiotech shall reasonably consider Athersys’ reasons for declining to commence the Action. In the event that Angiotech elects, in its sole discretion, to commence such Declined Action, (i) Angiotech shall reasonably consider Athersys’ input with respect to such Declined Action; and (ii) Athersys agrees to reasonably cooperate with Angiotech, including providing access to all necessary documents, executing all papers and performing such other acts as may be reasonably required for such Declined Action, such as consenting to be joined as a party plaintiff in such Declined Action, at Angiotech’s sole expense; and (iii) each Party shall assert and not waive the joint defense privilege with respect to all communications between the Parties reasonably the subject thereof. Angiotech shall control such Action, and Angiotech may enter into settlements, stipulated judgments or other arrangements respecting such infringement; provided, however, that without the prior written consent of Athersys, no settlement, stipulated judgment or other voluntary final disposition of a suit under this Section 5.8(c) may be undertaken by Angiotech without the consent of Athersys if such settlement, stipulated judgment or other voluntary final disposition would require Athersys to be subject to an injunction, admit wrongdoing, make a monetary payment or would otherwise materially adversely affect Athersys’ rights under the Transaction Agreements or the Patent Rights licensed to Angiotech hereunder. Angiotech shall keep Athersys reasonably apprised of the progress of any such Declined Action. Athersys may, at its option and sole expense, be represented by counsel of its choice, but all other costs associated with any such Declined Action shall be at the sole expense of Angiotech.
          (d) Action Outside of the Licensed Field . Athersys shall have the first right, but not the obligation, to commence and control any Action that is not addressed in Section 5.8(b) or (c) ; provided, however, where such Action could reasonably be expected to adversely effect Angiotech’s rights under the Transaction Agreements, Athersys shall reasonably consider the interests of Angiotech and shall not settle or make any agreement that would have a material adverse effect on Angiotech’s rights in any Therapeutic Field under this License Agreement, without the prior written consent of Angiotech.

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          (e) Recoveries . In any Action or Declined Action pursuant to Section 5.8(b) or (c) , any damages or other recovery, including compensatory and other non-compensatory damages or recovery actually received from a Third Party, shall be allocated first to reimburse the costs and expenses, including reasonable attorneys’ fees and expert witness fees, of the Party commencing such Action or Declined Action and then to reimburse the other Party for such costs and expenses, if any. Such reimbursement shall be made first from any compensatory damages, including attorneys’ fees and costs recovered. If any balance remains of the damages or other recovery made from the Third Party after such reimbursement, any remaining compensatory damages that are attributable to lost sales of Cell Therapy Products shall be considered Profit and subject to the sharing of Profits pursuant to the Strategic Alliance Agreement. Any remaining balance of damages or other recovery, if any, shall be payable to the Party commencing such Action or Declined Action (as applicable).
     5.9 Other Intellectual Property Infringement .
          (a) Notice .
          (i) Each Party shall notify the other in writing of any allegations it receives from a Third Party that the manufacture, production, use, development, sale or distribution of Clinical Development Candidates, Cell Therapy Products or any technology or Intellectual Property licensed to Angiotech under this License Agreement infringes the Intellectual Property rights of such Third Party. Such notice shall be provided promptly, but in no event after more than fifteen (15) business days, following receipt of such allegations.
          (ii) In the event that a Party receives notice that it or any of its Affiliates have been individually named as a defendant in a legal proceeding by a Third Party alleging infringement of a Third Party patent or other Intellectual Property right as a result of the manufacture, production, use, development, sale or distribution of Clinical Development Candidates, Cell Therapy Products or any technology or Intellectual Property licensed to Angiotech under this License Agreement, such Party shall immediately notify the other Party in writing and in no event notify such other Party later than ten (10) business days after the receipt of such notice. Such written notice shall include a copy of any summons or complaint (or the equivalent thereof) received regarding the foregoing. Each Party shall assert and not waive the joint defense privilege with respect to all communications between the Parties reasonably the subject thereof.
          (b) Settlement . The Parties shall keep each other informed of the status of and of their respective activities regarding any litigation or settlement thereof initiated by a Third Party concerning a Party’s manufacture, production, use, development, sale or distribution of Clinical Development Candidates, Cell Therapy Products or any technology or Intellectual Property licensed to Angiotech under this License Agreement; provided , however , that no settlement, stipulated judgment or other voluntary final disposition of a suit under this Section 5.9 may be undertaken by a Party without the consent of the other Party if such settlement, stipulated judgment or other voluntary final disposition would require the other Party to be subject to an injunction, admit wrongdoing, make a monetary payment or would otherwise adversely affect the other Party’s rights under this License Agreement.

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          (c) Use Of Name And Trademarks . Unless required by law or an order of a court or governmental agency, Angiotech shall not use the name or trademarks of Athersys or the University, or any of the University’s faculty, staff, or student body members in promoting or advertising any Cells, Clinical Development Candidates or Cell Therapy Product without the prior written approval of Athersys and, with respect to the name or the trademarks of the University or any of the University’s faculty, staff or student body members, the prior written approval of the University.
ARTICLE VI.
TERM AND TERMINATION
     6.1 Term . This License Agreement shall commence on the Effective Date and shall terminate upon the expiration or termination of the Strategic Alliance Agreement (except as provided for in Section 16.3 of the Strategic Alliance Agreement). The period of time from the Effective Date until termination is the “ License Agreement Term .”
     6.2 Survival Of Obligations . The termination or expiration of this License Agreement shall not relieve the Parties of any obligations accruing prior to such termination, and any such termination shall be without prejudice to the rights of either Party against the other. In addition, the provisions of Article I, to the extent definitions are embodied in the following listed Articles and Sections of this Agreement; Article IV; and Sections 2.2, 2.4, 5.1 — 5.6, this 6.2, 7.1 and 7.4 — 7.13 shall survive any termination of this License Agreement for any reason.
ARTICLE VII.
MISCELLANEOUS PROVISIONS
     7.1 Governing Law . The Transaction Agreements shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to the principles of conflict of laws.
     7.2 Assignment . Neither Party shall be permitted to assign or otherwise transfer any of its rights or obligations under the Transaction Agreements without the prior written consent of the other Party; provided, however, that, subject to Section 16.2(e) of the Strategic Alliance Agreement, a Party may assign or otherwise transfer all of its rights and obligations under the Transaction Agreements without the prior written consent of the other Party (a) in connection with a sale of all or substantially all of its business or assets, whether by merger, sale of stock, sale of assets or otherwise or (b) to an Affiliate of such Party. Notwithstanding the foregoing, in the event of any such permitted assignment or other transfer, all rights and obligations under the Transaction Agreements must be assigned or otherwise transferred together in their entirety to such assignee or successor.
     7.3 Compliance With Laws . Each Party shall comply with all applicable laws, rules and regulations in connection with its performance of its obligations and exercise of its rights under the Transaction Agreements. Each Party shall furnish to the other Party any information reasonably requested or required by the requesting Party during the License Agreement Term to enable the requesting Party to comply with the requirements of any United States or foreign federal, state, and/or government agency.

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     7.4 Further Assurances . At any time, or from time to time, following the date of this License Agreement, each Party shall, at the request of the other Party (a) deliver or cause to be delivered to the requesting Party any records, data or other documents consistent with the provisions of this License Agreement, (b) duly execute and deliver, or cause to be duly executed or delivered, all such consents, assignments, documents or further instruments of transfer or license as required by this License Agreement, and (c) take or cause to be taken all such actions, in each case as the requesting Party may reasonably deem necessary in order for the requesting Party to obtain the full benefits of this License Agreement and the transactions contemplated hereby.
     7.5 Severability . In the event that any provision of the Transaction Agreements is determined to be invalid or unenforceable by a court of competent jurisdiction, the remainder of the Transaction Agreements shall remain in full force and effect without said provision. In such event, the Parties shall in good faith attempt to negotiate a substitute clause for any provision declared invalid or unenforceable, which substitute clause shall most nearly approximate the intent of the Parties in agreeing to such invalid provision, without itself being invalid.
     7.6 Waivers And Amendments; Preservation Of Remedies . This License Agreement may be amended, modified, superseded, canceled, renewed or extended, and the terms and conditions hereof may be waived, only by a written instrument signed by the Parties or, in the case of a waiver, the Party waiving compliance. No delay on the part of any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any Party of any right, power or privilege hereunder, nor any single or partial exercise of any right, power or privilege hereunder, preclude any other or other exercise thereof hereunder. The rights and remedies herein provided are cumulative and are not exclusive of any rights or remedies which any Party may otherwise have at law or in equity.
     7.7 Headings . The captions to the several Articles and Sections hereof are not a part of the Transaction Agreements, but are included merely for convenience of reference only and shall not affect its meaning or interpretation.
     7.8 Counterparts . The Transaction Agreements may be executed by original or facsimile signature in any number of counterparts, and each such counterpart shall be deemed to be an original instrument, and all of which counterparts together shall constitute one instrument.
     7.9 Successors . This License Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
     7.10 Notices . All notices, requests, demands, claims and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered personally, by fax, sent by nationally recognized overnight courier or mailed by registered or certified mail (return receipt requested), postage prepaid, to the Parties at the addresses set forth below (or at such other address for such party as shall be specified by like notice). All such notices and other communications shall be deemed to have been given and received (a) in the case of personal delivery, on the date of such delivery, (b) in the case of delivery by facsimile transmission, on the date of such delivery, (c) in the case of delivery by nationally recognized

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express courier, on the date of such delivery, and (d) in the case of mailing within the United States, on the fifth (5 th ) business day following such mailing.
If to Angiotech :
Angiotech Pharmaceuticals, Inc.
1618 Station Street
Vancouver, BC Canada V6A 1B6
Fax: 604-221-2330
Attn: Vice President Business Development
with a required copy to:
Angiotech Pharmaceuticals, Inc.

1618 Station Street
Vancouver, BC Canada V6A 1B6
Fax: 604-221-2330
Attn: General Counsel
If to Athersys :
Athersys, Inc.
3201 Carnegie Avenue
Cleveland, OH 44115-2634
Fax: (216) 361-9495
Attn: Chief Executive Officer
with a copy (which shall not constitute notice) to:
Jones Day
North Point
901 Lakeside Avenue
Cleveland, OH 44114
Fax: (216) 579-0212
Attn: Thomas A. Briggs, Esq.
     7.11 No Consequential Damages . EXCEPT IN CONNECTION WITH A PARTY’S OBLIGATIONS UNDER ARTICLE XV OF THE STRATEGIC ALLIANCE AGREEMENT , IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE.
     7.12 Independent Contractor . Neither Party shall be construed to be a partner, joint venturer, franchisee, employee, principal, agent, representative or participant of or with the other Party for any purpose whatsoever by virtue of the Transaction Agreements. No Party has any

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right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other Party in any manner by virtue of the Transaction Agreements.
     7.13 Complete Agreement . This License Agreement, together with its Schedules and Exhibits, and any Pre-Clinical Development Plans and Clinical Development Plans approved by the Parties, the Strategic Alliance Agreement, Sublicense Agreement, Note and Purchase Agreement, and the Mutual Confidential Disclosure Agreement between the Parties dated July 20, 2005, along with any other letters or agreements signed by both Parties and of even date herewith, constitute the entire agreement, both written and oral, between the Parties with respect to the subject matter hereof, and all prior agreements respecting the subject matter hereof, either written or oral, expressed or implied, are merged and canceled, and are null and void and of no effect.
[Signature page follows]

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     IN WITNESS WHEREOF, the Parties have caused this License Agreement to be executed by their duly authorized officers, effective as of the Effective Date.
         
  ATHERSYS, INC.
 
 
 
               
  By:      
    Name:   Gil Van Bokkelen   
    Title:   President and Chief Executive Officer   
 
 
               
  ANGIOTECH PHARMACEUTICALS, INC.
 
 
 
               
  By:      
    Name:      
    Title:      
 
 

EXHIBIT 10.5
CONFIDENTIAL
Execution Copy
SUBLICENSE AGREEMENT
By And Between
ATHERSYS, INC.
And
ANGIOTECH PHARMACEUTICALS, INC.
Effective as of May 5, 2006

 


 

TABLE OF CONTENTS
                     
                Page
 
                   
ARTICLE I. DEFINITIONS     2  
 
                   
ARTICLE II. LICENSE GRANT     5  
 
    2.1     License Grants By Athersys     6  
 
    2.2     Reservation Of Rights     6  
 
                   
ARTICLE III. PAYMENTS     6  
 
    3.1     Payments     6  
 
    3.2     Reports     7  
 
    3.3     Manner Of Conversion     7  
 
    3.4     Records Retention And Audit Rights     7  
 
                   
ARTICLE IV. PATENTS     7  
 
    4.1     Patent Filing, Prosecution and Commencement or Settlement of Litigation     7  
 
    4.2     Patent Infringement     8  
 
                   
ARTICLE V. ADDITIONAL COVENANTS     8  
 
    5.1     Compliance     8  
 
    5.2     Covenants Regarding The Manufacture Of Licensed Products     8  
 
    5.3     Use Of The University’s Name And Trademarks Or The Names Of University Faculty, Staff Or Students     8  
 
                   
ARTICLE VI. TERM AND TERMINATION     9  
 
    6.1     Term     9  
 
    6.2     Use of Technology Not Covered by University Patent     9  
 
    6.3     Termination     9  
 
                   
ARTICLE VII. CONFIDENTIALITY     9  
 
                   
ARTICLE VIII. REPRESENTATIONS; WARRANTIES; COVENANTS     10  
 
    8.1     Authority     10  
 
    8.2     Additional Representations, Warranties and Covenants of Athersys     10  
 
    8.3     No Conflicts     11  
 
    8.4     Disclaimers     11  
 
    8.5     Indemnification Of University By Angiotech     11  

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TABLE OF CONTENTS
(continued)
                     
                Page
 
                   
ARTICLE IX. DISPUTE RESOLUTION     11  
 
                   
ARTICLE X. MISCELLANEOUS     11  
 
    10.1     Governing Law     11  
 
    10.2     Minnesota Government Data Practices Act And Trade Secret Information     12  
 
    10.3     Assignment     12  
 
    10.4     Compliance With Laws     12  
 
    10.5     Further Assurances     13  
 
    10.6     Severability     13  
 
    10.7     Waivers And Amendments; Preservation Of Remedies     13  
 
    10.8     Headings     13  
 
    10.9     Counterparts     13  
 
    10.10     Successors     13  
 
    10.11     Notices     13  
 
    10.12     No Consequential Damages     14  
 
    10.13     Independent Contractor     14  
 
    10.14     Complete Agreement     15  
 
                   
SCHEDULES        
Schedule 1.15        
Schedule 1.31        
Schedule 2.1        
 
                   
EXHIBITS        
Exhibit A        

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SUBLICENSE AGREEMENT
     This Sublicense Agreement (this “ Sublicense Agreement ”) is made and entered into as of May 5, 2006 (the “ Effective Date ”), by and between Athersys, Inc., a corporation organized under the laws of Delaware and having a place of business at 3201 Carnegie Avenue, Cleveland, Ohio 44115 (“ Athersys ”), and Angiotech Pharmaceuticals, Inc., a corporation organized under the laws of British Columbia and having a place of business at 1618 Station Street, Vancouver, BC Canada, V6A 1B6 (“ Angiotech ”). In this Sublicense Agreement, Athersys and Angiotech may each be referred to as a “ Party ” and collectively as the “ Parties .”
RECITALS
     WHEREAS, MCL LLC and the University (as defined below) entered into an Exclusive License Agreement, dated May 17, 2002 (“ University License Agreement ”), and an Ownership Agreement, dated May 17, 2002 (“ Ownership Agreement ”);
     WHEREAS, effective as of November 4, 2003, MCL LLC was merged into ReGenesys, LLC, a subsidiary of Athersys, and thereafter the Ownership Agreement, the University License Agreement and certain technology, including that which is the subject of the Ownership Agreement and the University License Agreement, were assigned to Athersys, and as a result thereof, Athersys is the exclusive licensee of the “University Patents” and “University Technology,” as each is defined in the University License Agreement;
     WHEREAS, concurrently with the execution of this Sublicense Agreement, Athersys and Angiotech are entering into that certain Strategic Alliance Agreement (such agreement and the exhibits and schedules thereto, the “ Strategic Alliance Agreement ”) concerning the alliance between Angiotech and Athersys to research, develop, manufacture, market and commercialize certain stem cells and stem cell therapies for certain indications;
     WHEREAS, concurrently with the execution of this Sublicense Agreement, Athersys and Angiotech are entering into that certain License Agreement which grants to Angiotech rights to certain technology and intellectual property owned by Athersys (the “ License Agreement ”);
     WHEREAS, collectively, the Strategic Alliance Agreement, the License Agreement and this Sublicense Agreement are referred to herein as the “ Transaction Agreements ”; and
     WHEREAS, this Sublicense Agreement sets forth the terms and condition under which Athersys is granting a sublicense to Angiotech to the technology and intellectual property licensed to Athersys pursuant to the University License Agreement, including the “University Patents” and “University Technology,” as further described below.
AGREEMENT
     NOW, THEREFORE, in consideration of the covenants and obligations expressed herein, and intending to be legally bound the Parties agree as follows:

 


 

ARTICLE I.
DEFINITIONS
     1.1 “ Affiliate” means, with respect to any Party, any corporation or other business entity which directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with such Party, but only for so long as the relationship exists. A corporation or other entity shall be regarded as in control of another corporation or entity (a) if it (or any of its subsidiaries or parents) beneficially owns, holds or directly or indirectly controls more than fifty percent (50%) of the voting capital stock (or such lesser maximum percentage permitted by applicable law) or other ownership interest of such other corporation or entity, or (b) if it possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other corporation or entity, or (c) if it possesses, directly or indirectly, the power to elect or appoint more than fifty percent (50%) of the members of the governing body of such other corporation or entity.
     1.2 “ Angiotech ” has the meaning ascribed to it in the preamble to this Sublicense Agreement.
     1.3 “ Athersys ” has the meaning ascribed to it in the preamble to this Sublicense Agreement.
     1.4 “ Cells ” means the following cells identified, developed, and/or intended for use for treatment and/or prophylaxis of a disease or condition in humans: (a) MAPCs; (b) progeny or components of any MAPCs; (c) derivatives of any of the foregoing (a) or (b); (d) genetically-modified MAPCs; and (e) Athersys Stem Cells; and including, without limitation, cells or tissues that are derived from any of the foregoing, as any of the foregoing cells might be at the time of treatment (i) in their native, undifferentiated state, (ii) in a partially or fully pre-differentiated state, (iii) primed for differentiation (for example, through the introduction of a protein, peptide, gene, polynucleotide, small molecule or other active pharmaceutical ingredient), or (iv) in a modified form.
     1.5 “ Cell Therapy ” means the treatment and/or prophylaxis of a disease or condition, by regional, local, systemic or other delivery, localization and/or administration of Cells. The term “ Cell Therapy ” specifically excludes using (a) any of the Cells as reagents; (b) any of the Cells for diagnostic applications or assays; and (c) any of the Cells for drug and drug target validation screening. The term “ Cell Therapy ” specifically includes (x) delivery, localization and/or administration of a protein, peptide, gene, polynucleotide, small molecule or other active pharmaceutical ingredient (or any combination of the foregoing) at or near the time of delivery, localization and/or administration of Cells; (y) delivery, localization and/or administration of one or more fractions and/or subsets of Cells; and (z) delivery, localization and/or administration of one or more other cell types at or near the time of delivery, localization or administration of Cells.
     1.6 “ Cell Therapy Product ” means a therapeutic and/or prophylactic product for humans that (a) includes a Cell developed under the Strategic Alliance Agreement that is intended for use or used as Cell Therapy for at least one Therapeutic Indication, and (b) has obtained Regulatory Approval in a given country or jurisdiction in the Territory.

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     1.7 “ Clinical Development Candidate ” means (a) a Cell(s) that meets certain criteria and has certain characteristics that are necessary and desirable for the submission of an Investigational New Drug (“IND”) application for use of such Cell(s) in Cell Therapy for at least one Therapeutic Indication (and, therefore, make such Cell(s) suitable for a Clinical Development Program), as determined by the JSC; or (b) a Cell(s) that is or has been the subject of an IND for use of such Cell(s) in Cell Therapy for at least one Therapeutic Indication. The term “Clinical Development Candidate” shall expressly exclude Cell Therapy Products.
     1.8 “ Clinical Development Plan ” means, for each Clinical Development Candidate, a detailed plan that sets forth the responsibilities of, and the activities to be conducted by, each of the Parties in advancing each such Clinical Development Candidate to regulatory approval for a Therapeutic Indication (including a detailed budget corresponding to each such plan).
     1.9 “ Clinical Development Program ” means the clinical development activities conducted by (or to be conducted by) each Party pursuant to a Clinical Development Plan.
     1.10 “ Company Technology ” means the technology owned by Athersys through the Ownership Agreement, namely, the “COMPANY Technology,” as defined in the Ownership Agreement.
     1.11 “ Effective Date ” has the meaning ascribed to it in the preamble to this Sublicense Agreement.
     1.12 “ License Agreement ” has the meaning ascribed to it in the Recitals to this Sublicense Agreement.
     1.13 “ Licensed Patent ” means a Patent that claims as an invention one or more aspects of the Technology.
     1.14 “ Licensed Product ” means any Technology which is within the scope of one or more claims of a Licensed Patent and, but for the sublicense granted in this Sublicense Agreement, would infringe, constitute contributory infringement, or constitute inducement to infringe of one or more such claims when made by, made for, used, sold, offered for sale, imported, exported, leased or otherwise disposed of by Angiotech (or its permitted assignees, sublicensees, or transferees).
     1.15 “ MAPC ” means any multipotent adult progenitor cell, including without limitation those described in the Patent Rights listed on Schedule 1.15 or described in any Patent Rights that claim priority to any such Patent Rights listed on Schedule 1.15 .
     1.16 “ Ownership Agreement ” has the meaning ascribed to it in the Recitals to this Sublicense Agreement.
     1.17 “ Party ” and “ Parties ” each has the meaning ascribed to it in the preamble to this Sublicense Agreement.
     1.18 “ Patent ” means any and all issued letters patents, including, but not limited to, implementation, improvement, addition, utility model, or appearance design patents and

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inventors certificates, as well as patents that may issue from any divisions, reissues, continuation, renewals and extensions of any of the foregoing.
     1.19 “ Patent Rights ” means rights in (a) issued Patents and pending provisional and non-provisional applications for Patents, including, without limitation, any continuations, continuations-in-part or divisions directed to inventions disclosed therein; (b) any re-examinations, reissues, renewals, substitutions or extensions of any Patents; and (c) foreign counterparts or equivalents of any of the foregoing.
     1.20 “ Pre—Clinical Development Program ” means the pre-clinical development activities conducted by or for a Party in furtherance of advancing a Cell(s) into one or more potential Clinical Development Candidates for a Therapeutic Indication.
     1.21 “ Prior Third Party Agreement ” means those agreements between Athersys and a Third Party set forth on Schedule 2.1 , as such agreements exist as of the Effective Date.
     1.22 “ Strategic Alliance Agreement ” has the meaning ascribed to it in the Recitals to this Sublicense Agreement.
     1.23 “ Sublicense Agreement Term ” shall have the meaning set forth in Section 6.1 .
     1.24 “ Sublicense Net Sales ” shall mean the amount invoiced for sales and other dispositions of Licensed Products sold during the term of this Sublicense Agreement in any arm’s-length transactions to any unrelated third-party transferee in any channels of distribution less the following deductions: (a) all trade, quantity, cash or prompt payment discounts or rebates actually allowed, (b) all credits and allowances actually granted due to rejections, returns, defective Licensed Product, replacements, warranty, outdating, billing errors, and retroactive price reductions, (c) customs duties and tariffs, (d) excise, sale, use, turnover, inventory, value-added, foreign withholding, and equivalent taxes or other government charges, but not net income or net profit taxes, (e) outbound transportation, insurance charges separately billed to buyer or prepaid, and advertising allowances, (f) special outbound packing separately billed to buyer or prepaid, (g) any sales agents, or brokers commissions paid to non-Affiliates, and (h) all charges in connection with converting, transmitting, or remitting currency. Sales, credits, refunds, and uncollectible accounts shall be accounted for when recognized by Angiotech according to generally accepted accounting principles. Shipments between Angiotech and its Affiliates will not be considered to be sold or otherwise disposed of until they are sold to a third party customer of Angiotech or of its Affiliates. If a Licensed Product is sold in combination with another component, Sublicense Net Sales, for purposes of determining royalties on the combination, will be calculated by multiplying Sublicense Net Sales of the combination by the fraction A/(A+B), where A is the invoice price of the Licensed Product if sold separately and B is the invoice price of any other component(s) in the combination if sold separately. If the Licensed Product and the other component(s) in the combination are not sold separately, Sublicense Net Sales, for purposes of determining royalties on the combination, will be calculated by multiplying Sublicense Net Sales of the combination by the fraction C/(C+D), where C is the direct cost of manufacturing the Licensed Product and D is the direct cost of manufacturing any other component(s) in the combination. Cost of manufacturing will be determined in accordance with generally accepted accounting principles. In the event any

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Licensed Product is leased or sold on an installment basis, Sublicense Net Sales shall mean the revenue stream as and when recognized as revenue by Athersys in accordance with generally accepted accounting principles. Sublicense Net Sales shall not include any charitable gift by Angiotech of any Licensed Product or the transfer of Licensed Product to an Affiliate or non-Affiliate for conducting research or product development for Angiotech’s or Athersys’ benefit. Sublicense Net Sales shall also exclude the transfer of Licensed Product to a research or educational institution for research or educational purposes, provided such transfer was made for no more than de minimus consideration.
     1.25 “ Technology ” means Company Technology and University Technology, including but not limited to, multipotent postnatal derived progenitor cells, precursors, progeny or components thereof, products and information obtained from the foregoing, processes and products utilized in production or processing of any of the foregoing, methods of utilizing any of the foregoing, and any Trade Secret Information or know-how relating to the foregoing. The term “ Technology ” shall also include any invention involving multipotent postnatal derived progenitor cells (i) that is the result of research conducted by or under the direction of Drs. Catherine Verfaillie, Leo Furcht or Morayama Reyes while at the University or is the result of research conducted at the University by a University faculty, staff or student using such cells provided by the University pursuant to Section 3.3(a) of the University License Agreement; (ii) that is owned by the University pursuant to its policies and agreements with its employees; and (iii) that is disclosed to the University no later than the seventh (7 th ) anniversary of the “Effective Date” of the University License Agreement.
     1.26 “ Territory ” means the world.
     1.27 “ Therapeutic Field ” means, as the context requires, a field comprising certain cardiovascular indications.
     1.28 “ Trade Secret Information ” means trade secret as defined under the Minnesota Uniform Trade Secrets Act, Minn. Stat. Section 325C.011 et seq.
     1.29 “ University ” means the Regents of the University of Minnesota, a constitutional, educational corporation existing under the laws of the State of Minnesota, U.S.A.
     1.30 “ University License Agreement ” has the meaning ascribed to it in the Recitals to this Sublicense Agreement.
     1.31 “ University Patents ” means a Patent Right that claims as an invention one or more aspects of the University Technology. University Patents include, but are not limited to, the Patent Rights listed on Schedule 1.31
     1.32 “ University Technology ” means the technology that is owned by the University pursuant to the Ownership Agreement, namely, the “University Technology,” as defined in the Ownership Agreement.
ARTICLE II.
LICENSE GRANT

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     2.1 License Grants By Athersys . Subject to the provisions of this Sublicense Agreement, the applicable provisions of the Ownership Agreement and the University License Agreement, and the Prior Third Party Agreements, Athersys grants to Angiotech during the Sublicense Agreement Term:
          (a) a co-exclusive (meaning that only Athersys, Angiotech and their Affiliates can act in each country of the Territory), worldwide, sublicense, with the right to further sublicense (through multiple tiers of sublicensing), under the University Patents and University Technology to research, develop, and otherwise use and exploit (but excluding make and have made) Cells and Clinical Development Candidates in the Therapeutic Field in the Territory as necessary or useful to conduct any Clinical Development Program, Pre-Clinical Development Program and/or New Pre-Clinical Development Program and/or its activities under any Transaction Agreement;
          (b) an exclusive (even as to Athersys), worldwide, sublicense, with the right to further sublicense (through multiple tiers of sublicensing), under the University Patents and University Technology to promote, market, distribute, advertise, sell, have sold, offer for sale, import and have imported Cell Therapy Products in the Therapeutic Field in the Territory; and
          (c) in the event that Angiotech obtains rights to manufacture Cells, Clinical Development Candidates and Cell Therapy Products pursuant to the terms of the Strategic Alliance Agreement, a co-exclusive (meaning that only Athersys, Angiotech and their Affiliates and permitted subcontractors can act in each country of the Territory) worldwide, sublicense, with the right to sublicense (through multiple tiers of sublicensing), under the University Patents and University Technology to make and have made Cells, Clinical Development Candidates and Cell Therapy Products in the Therapeutic Field in the Territory.
     2.2 Reservation Of Rights . Except as expressly set forth in Section 2.1 , Athersys reserves all right, title and interest in, to and under the University Technology and University Patents and all other technologies and intellectual property rights owned by or licensed to Athersys or any of its Affiliates (other than the licenses granted to Angiotech pursuant to the License Agreement). No right or license is granted under this Sublicense Agreement by Athersys or any of its Affiliates to Angiotech or any of its Affiliates, whether expressly, impliedly, by estoppel or otherwise, in, to or under the University Technology or University Patents or any other material, technology or intellectual property rights licensed to Athersys or any of its Affiliates, except as expressly set forth in Section 2.1 . The University reserves the rights set forth in Section 3.2 and Section 3.3 of the University License Agreement.
ARTICLE III.
PAYMENTS
     3.1 Payments . All amounts to be paid by Angiotech for the rights granted by Athersys pursuant to this Sublicense Agreement are included as part of the consideration to be paid by Angiotech under the Strategic Alliance Agreement. For the avoidance of doubt, Athersys’ obligations to University under ARTICLE 5 of the University License Agreement shall remain in full force and effect, and Athersys, in its sole responsibility and at its sole expense, shall make any required payments thereunder.

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     3.2 Reports . The University License Agreement requires reporting of sales, leases or other dispositions of Licensed Products notwithstanding that no separate payment is required by Angiotech to Athersys under this Sublicense Agreement with respect thereto. Accordingly, within forty-five (45) days after the last day of a calendar quarter during the Sublicense Agreement Term, Angiotech shall deliver to Athersys a written report (a copy of the form of which is attached to this Sublicense Agreement as Exhibit A ), certified by Angiotech’s chief financial officer as complete and correct, recounting the number and Sublicense Net Sales amount (expressed in United States Dollars) of all sales, leases or other dispositions of Licensed Products during such calendar quarter. If the number and Sublicense Net Sales amount of such sales, leases or other dispositions of Licensed Products in any calendar quarter is zero, then Angiotech shall deliver a written report to Athersys stating such information.
     3.3 Manner Of Conversion . All computations under this Sublicense Agreement shall be in United States dollars. For purposes of determining the dollar value of transactions conducted in non-United States dollar currencies, the exchange rate for the currency in dollars shall be the rate set by Citibank, N.A., in New York, New York on the last business day of the month in which the transaction was entered into.
     3.4 Records Retention And Audit Rights .
          (a) Throughout the Sublicense Agreement Term, Angiotech, at its expense, shall keep and maintain for a period of three (3) years complete and accurate records of all sales, leases and other dispositions of Licensed Products during the Sublicense Agreement Term.
          (b) On behalf of the University or Athersys, an independent certified public accountant, at the University’s or Athersys’ expense, shall have the right to inspect and audit, once each year, Angiotech’s records referred to in Section 3.4(a) at Angiotech’s address set forth in the preamble of this Sublicense Agreement during Angiotech’s normal business hours. If the independent certified public accountant, in accordance with the results of such inspection and audit, determines that Angiotech has underpaid amounts owed to Athersys hereunder by at least five percent (5%) or Forty-Two Thousand Dollars ($42,000), whichever is smaller, in any annual reporting period, Angiotech shall reimburse the University or Athersys, whichever performed the audit, for all of the University’s or Athersys’ reasonable expenses paid or owed to the accountants to inspect and audit such records, in addition to payment to Athersys of all underpaid amounts.
ARTICLE IV.
PATENTS
     4.1 Patent Filing, Prosecution and Commencement or Settlement of Litigation . To the extent permitted by the University License Agreement, and in a manner consistent with the Strategic Alliance Agreement and the License Agreement, Athersys shall consult with Angiotech regarding preparation, filing, prosecution, maintenance, and commencement or settlement of patent infringement litigation related to University Patents and actual and potential patent applications on any of the Technology for which Athersys is responsible, and shall provide copies to Angiotech all official correspondence with patent authorities or courts related thereto. Athersys shall (a) give Angiotech a reasonable opportunity to review and provide substantive

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input for material decisions relating to the filing, prosecution, maintenance and patent infringement litigation commencement or settlement related to, and (b) shall consult with Angiotech with respect to, each such University Patent and each such actual and potential patent application, and shall supply Angiotech with a copy of each such University Patent and patent application as filed, together with notice of its filing date and serial number. For the avoidance of doubt, Athersys may take ministerial and non-material procedural actions regarding such University Patents and patent applications without obtaining prior input from Angiotech. Athersys shall keep Angiotech informed of the status of all such material patent filing, prosecution, maintenance and patent infringement litigation commencement or settlement activities, shall provide written reports to Angiotech at least semi-annually regarding the status of all filings, analyses, strategies, decisions and proceedings involving such University Patents and patent applications. Angiotech shall have the right to request and promptly receive additional information regarding such University Patents and patent applications from Athersys.
     4.2 Patent Infringement . To the extent permitted by the University License Agreement, and in a manner consistent with the Strategic Alliance Agreement and the License Agreement, Athersys shall grant to Angiotech the same or substantially similar rights regarding enforcement of University Patents, or defense of third-party claims alleging that the manufacture, production, use, development, sale or distribution of products or any technology or intellectual property licensed to Angiotech under this Sublicense Agreement infringes the patent rights of such third party.
ARTICLE V.
ADDITIONAL COVENANTS
     5.1 Compliance . Each Party is solely responsible for compliance with, and shall comply with, all applicable international, federal, state and local laws, rules and regulations in connection with such Party’s use of the Technology, including, without limitation, all environmental, import/export, security and food and drug laws, rules and regulations.
     5.2 Covenants Regarding The Manufacture Of Licensed Products . To the extent that Angiotech has a right to manufacture Licensed Products, the following shall apply. Angiotech will employ commercially reasonable efforts commensurate with the prevailing industry practices pertaining to the Technology and/or the Licensed Products to minimize Licensed Products that are defective in design or manufacture. Angiotech will manufacture, sell, or transfer Licensed Products that comply with all applicable federal and state law, including all federal export laws and regulations. Angiotech shall manufacture Licensed Products in the United States of America if (a) the Licensed Product is to be sold in the United States of America and (b) the Licensed Product embodies or is produced through use of an invention which is subject to the rights of the federal government of the United States of America, unless Angiotech is granted a waiver of these restrictions by the United States of America.
     5.3 Use Of The University’s Name And Trademarks Or The Names Of University Faculty, Staff Or Students . Unless required by law or an order of a court or governmental agency, Angiotech shall not use the name or trademarks of the University in promoting or advertising Angiotech or any product of Angiotech or any Cell Therapy Product without the University’s prior written approval. Angiotech may use the name of any of the University’s

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faculty, staff or student body members, upon obtaining such member’s written approval. Notwithstanding this provision, Angiotech and its employees shall have the right to make truthful, fair, good faith, non-promotional statements about the Technology, including the identity of the University and any individuals involved with the Technology.
ARTICLE VI.
TERM AND TERMINATION
     6.1 Term . This Sublicense Agreement shall commence on the Effective Date and, unless sooner terminated under Section 6.3, shall expire at the end of the life of the last to expire University Patent. The period from the Effective Date through expiration or termination of this Sublicense Agreement is the “ Sublicense Agreement Term .”
     6.2 Use of Technology Not Covered by University Patent . During and after the expiration or earlier termination of this Sublicense Agreement, Angiotech shall continue to have the right to make, have made, use, sell, offer to sell, import, export, lease, or otherwise dispose of any Technology that is not covered by a claim of a Licensed Patent.
     6.3 Termination .
          (a) Automatic . This Sublicense Agreement shall automatically terminate upon termination of the License Agreement (except as provided for in Section 16.3 of the Strategic Alliance Agreement) or termination of the University License Agreement. Termination of this Sublicense Agreement due to termination of the University License Agreement does not by itself automatically terminate the License Agreement.
          (b) Breach . The failure by a Party to substantially comply with any of the material obligations contained in this Sublicense Agreement shall entitle the other Party to give notice to have the default cured. If such default is not cured within sixty (60) days after the receipt of such notice, or if by its nature such default is not capable of cure within such sixty (60)-day period, the notifying Party shall be entitled, without prejudice to any of its other rights conferred on it by this Sublicense Agreement, and in addition to any other remedies that may be available to it, to terminate this Sublicense Agreement.
          (c) Effect Of Termination . Upon expiration or termination of this Sublicense Agreement for any reason, the provisions of Article I, to the extent definitions are embodied in the following listed Articles and Sections of this Agreement; Articles VII and IX; and Sections 2.2, 3.2 — 3.3 (solely with respect to Net Sales accrued before termination), 3.4, 6.2, this 6.3(c), 8.4, 8.5, 10.1, 10.2, and 10.5 — 10.14, as well as any obligations accrued, arising or owed before the termination of this Sublicense Agreement shall survive any termination of this Sublicense Agreement, as applicable.
ARTICLE VII.
CONFIDENTIALITY
     The terms of this Sublicense Agreement and the activities conducted and information shared hereunder shall be considered “Confidential Information” under the Strategic Alliance Agreement and subject to all of the terms and conditions with respect thereto under the Strategic

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Alliance Agreement; provided, however , that any disclosure by either Party as required under the University License Agreement shall be deemed a permitted disclosure under Section 13.3 of the Strategic Alliance Agreement.
ARTICLE VIII.
REPRESENTATIONS; WARRANTIES; COVENANTS
     8.1 Authority . Each Party represents and warrants that, as of the Effective Date, it has the full right, power and authority to enter into this Sublicense Agreement and that this Sublicense Agreement has been duly executed by such Party and constitutes a legal, valid and binding obligation of such Party, enforceable in accordance with its terms.
     8.2 Additional Representations, Warranties and Covenants of Athersys. Athersys represents, warrants and covenants that:
          (a) it has provided Angiotech with a complete, current and accurate copy of the University License Agreement, including all amendments thereto, as such agreement exists on the Effective Date;
          (b) except as expressly provided in the University License Agreement, the Strategic Alliance Agreement or the License Agreement, Athersys has no commitments or agreements with any Third Party which would materially, individually or in the aggregate, interfere with or preclude the fulfillment of its obligations under this Sublicense Agreement;
          (c) Athersys has carried out all requirements under the University License Agreement that are necessary to enable it to validly grant sublicenses to Angiotech pursuant to the terms of the University License Agreement, and that there are no other requirements necessary to enable Athersys to validly grant sublicenses to Angiotech under the University License Agreement;
          (d) Athersys has received no notice of default under the University License Agreement, and Athersys is not in default and, to the best of Athersys’ knowledge after due inquiry, there are no circumstances existing on the Effective Date which, with notice or the passage of time or both, could result in a default under the University License Agreement;
          (e) to the best of Athersys’ knowledge, the University License Agreement is a legal, valid and binding agreement, enforceable in accordance with its terms except as enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles;
          (f) Athersys will use commercially reasonable efforts to negotiate and execute a letter agreement with University that agrees and acknowledges that, should the University License Agreement terminate through no fault of Angiotech, Angiotech, providing that it is not in default under its sublicense from Athersys, shall have the right to continue to research, develop, promote, market, distribute, advertise, sell, have sold, offer for sale, import and have imported and otherwise use and exploit Licensed Products, as a direct licensee of University on

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substantially the same terms as the University License Agreement, to the extent such rights are granted to Angiotech under this Sublicense Agreement;
          (g) Athersys will not take any action, or fail to take any required action, either of which results in the termination of the University License Agreement prior to the expiration of its natural term; and
          (h) within five (5) days of receipt, Athersys will provide Angiotech with copies of all notices received from the University under Section 8.1.2 of the University License Agreement, and Angiotech may, at its discretion, take any actions necessary and useful to cure or prevent a breach of the University License Agreement that would likely lead to termination under such Section.
     8.3 No Conflicts . Each Party represents and warrants that the execution, delivery and performance of this Sublicense Agreement and the other Transaction Agreements do not conflict with, or constitute a breach or default under, any of its charter or organizational documents, any law, order, judgment or governmental rule or regulation applicable to it, or any material agreement, contract, commitment or instrument to which it is a party.
     8.4 Disclaimers . EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SUBLICENSE AGREEMENT OR ANY TRANSACTION AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS NOR EXTENDS ANY WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, CONCERNING THE TECHNOLOGY, LICENSED PRODUCTS AND UNIVERSITY PATENTS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
     8.5 Indemnification Of University By Angiotech . Throughout the Sublicense Agreement Term and thereafter, Angiotech shall indemnify, defend and hold the University harmless from all suits, actions, claims, liabilities, demands, damages, losses, or reasonable and necessary expenses (including reasonable attorneys’ fees and investigative expenses), relating to or arising out of Angiotech’s acts relating to the manufacture, use, lease, sale or other disposition of Licensed Product by Angiotech, including, without limitation, breach of contract, warranty, and products liability claims relating to Licensed Product.
ARTICLE IX.
DISPUTE RESOLUTION
     The Parties shall resolve all disputes under this Sublicense Agreement in accordance with the rules and procedures specified in the Strategic Alliance Agreement.
ARTICLE X.
MISCELLANEOUS
     10.1 Governing Law . This Sublicense Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to the principles of conflict of laws thereof.

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     10.2 Minnesota Government Data Practices Act And Trade Secret Information . Angiotech acknowledges that the University is subject to the terms and provisions of the Minnesota Government Data Practices Act, Minnesota Statutes, §13.01 et seq. (the “ Act ”). Angiotech further acknowledges that the Act requires, with certain exceptions, the University to permit the public to inspect and copy any information which the University shall have collected, created, received, maintained or disseminated. Angiotech further acknowledges that in connection with the performance of its obligations to the University, Athersys may deliver to the University certain Trade Secret Information (as defined by the Act) that Angiotech deems proprietary and confidential and, notwithstanding anything to the contrary in any agreement between Athersys and Angiotech or their respective Affiliates, such delivery shall not be a breach of any such agreement. In the event the University receives a request under the Act for the inspection of information collected, created, received, maintained or disseminated, including, but not limited to, any Trade Secret Information, the University should promptly notify Athersys of such request and should refuse to disclose such information. In no event shall the University be required to commence any action to prohibit the inspection and copying of any such information. However, the University should cooperate with Angiotech and Athersys if Angiotech or Athersys commences or defends any action to prohibit such inspection or copying. Angiotech shall reimburse the University for any of the University’s reasonable and necessary expenses resulting from such cooperation. Angiotech shall defend, indemnify and hold harmless the University and each of its regents, officers, employees and agents from and against any claim, suit, demand or expense (including reasonable attorneys’ fees and investigation expenses) that arose out of or are related to Angiotech’s request that the University refuse to divulge any such information. If the University complies with the requirements of this Section 10.2 , Angiotech for itself and its employees and agents waives any claim or cause of action of whatever nature against the University and each of its regents, officers, employees and agents that arose out of or is related to a request to inspect or copy any such information and the University shall not be liable to any person for any expenses or damages, including, but not limited to, consequential, special or incidental damages, or lost profits, in connection with the inspection or copying of any such information.
     10.3 Assignment . Neither Party shall be permitted to assign or otherwise transfer any of its rights or obligations under the Transaction Agreements without the prior written consent of the other Party; provided, however, that, subject to Section 16.2(e) of the Strategic Alliance Agreement, a Party may assign or otherwise transfer all of its rights and obligations under the Transaction Agreements without the prior written consent of the other Party (a) in connection with a sale of all or substantially all of its business or assets, whether by merger, sale of stock, sale of assets or otherwise or (b) to an Affiliate of such Party. Notwithstanding the foregoing, in the event of any such permitted assignment or other transfer, all rights and obligations under the Transaction Agreements must be assigned or otherwise transferred together in their entirety to such assignee or successor.
     10.4 Compliance With Laws . Each Party shall comply with all applicable laws, rules and regulations in connection with its performance of its obligations and exercise of its rights under the Transaction Agreements. Each Party shall furnish to the other Party any information reasonably requested or required by the requesting Party during the Sublicense Agreement Term to enable the requesting Party to comply with the requirements of any United States or foreign federal, state, and/or government agency.

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     10.5 Further Assurances . At any time, or from time to time, following the date of the Transaction Agreements, each Party shall, at the request of the other Party (a) deliver or cause to be delivered to the requesting Party any records, data or other documents consistent with the provisions of the Transaction Agreements, (b) duly execute and deliver, or cause to be duly executed or delivered, all such consents, assignments, documents or further instruments of transfer or license as required by the Transaction Agreements, and (c) take or cause to be taken all such actions, in each case as the requesting Party may reasonably deem necessary in order for the requesting Party to obtain the full benefits of the Transaction Agreements and the transactions contemplated hereby.
     10.6 Severability . In the event that any provision of the Transaction Agreements is determined to be invalid or unenforceable by a court of competent jurisdiction, the remainder of the Transaction Agreements shall remain in full force and effect without said provision. In such event, the Parties shall in good faith attempt to negotiate a substitute clause for any provision declared invalid or unenforceable, which substitute clause shall most nearly approximate the intent of the Parties in agreeing to such invalid provision, without itself being invalid.
     10.7 Waivers And Amendments; Preservation Of Remedies . The Transaction Agreements may be amended, modified, superseded, canceled, renewed or extended, and the terms and conditions hereof may be waived, only by a written instrument signed by the Parties or, in the case of a waiver, the Party waiving compliance. No delay on the part of any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any Party of any right, power or privilege hereunder, nor any single or partial exercise of any right, power or privilege hereunder, preclude any other or other exercise thereof hereunder. The rights and remedies herein provided are cumulative and are not exclusive of any rights or remedies which any Party may otherwise have at law or in equity.
     10.8 Headings . The captions to the several Articles and Sections hereof are not a part of the Transaction Agreements, but are included merely for convenience of reference only and shall not affect its meaning or interpretation.
     10.9 Counterparts . The Transaction Agreements may be executed by original or facsimile signature in any number of counterparts, and each such counterpart shall be deemed to be an original instrument, and all of which counterparts together shall constitute one instrument.
     10.10 Successors . This Sublicense Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
     10.11 Notices . All notices, requests, demands, claims and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered personally, by fax, sent by nationally recognized overnight courier or mailed by registered or certified mail (return receipt requested), postage prepaid, to the Parties at the addresses set forth below (or at such other address for such party as shall be specified by like notice). All such notices and other communications shall be deemed to have been given and received (a) in the case of personal delivery, on the date of such delivery, (b) in the case of delivery by facsimile transmission, on the date of such delivery, (c) in the case of delivery by nationally recognized

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express courier, on the date of such delivery, and (d) in the case of mailing within the United States, on the fifth (5 th ) business day following such mailing.
If to Angiotech :
Angiotech Pharmaceuticals, Inc.
1618 Station Street
Vancouver, BC Canada V6A 1B6
Fax: 604-221-2330
Attn: Vice President Business Development
with a required copy to:
Angiotech Pharmaceuticals, Inc.
1618 Station Street
Vancouver, BC Canada V6A 1B6
Fax: 604-221-2330
Attn: General Counsel
If to Athersys :
Athersys, Inc.
3201 Carnegie Avenue
Cleveland, OH 44115-2634
Fax: (216) 361-9495
Attn: Chief Executive Officer
with a copy (which shall not constitute notice) to:
Jones Day
North Point
901 Lakeside Avenue
Cleveland, OH 44114
Fax: (216) 579-0212
Attn: Thomas A. Briggs, Esq.
     10.12 No Consequential Damages . EXCEPT IN CONNECTION WITH A PARTY’S OBLIGATIONS UNDER ARTICLE XV OF THE STRATEGIC ALLIANCE AGREEMENT , IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE.
     10.13 Independent Contractor . Neither Party shall be construed to be a partner, joint venturer, franchisee, employee, principal, agent, representative or participant of or with the other Party for any purpose whatsoever by virtue of the Transaction Agreements. No Party has any

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right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other Party in any manner by virtue of the Transaction Agreements.
     10.14 Complete Agreement . This Sublicense Agreement, together with its Schedules and Exhibits, and any Pre-Clinical Development Plans and Clinical Development Plans approved by the Parties, the Strategic Alliance Agreement, License Agreement, Note and Purchase Agreement, and the Mutual Confidential Disclosure Agreement between the Parties dated July 20, 2005, along with any other letters or agreements signed by both Parties and of even date herewith, constitute the entire agreement, both written and oral, between the Parties with respect to the subject matter hereof, and all prior agreements respecting the subject matter hereof, either written or oral, expressed or implied, are merged and canceled, and are null and void and of no effect.
{Signature page follows.}

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     IN WITNESS WHEREOF, the Parties have caused this Sublicense Agreement to be executed by their duly authorized officers, effective as of the Effective Date.
                 
    ATHERSYS, INC.    
 
               
 
               
 
  By:            
             
 
      Name:   Gil Van Bokkelen    
 
      Title:   President and Chief Executive Officer    
 
               
 
               
    ANGIOTECH PHARMACEUTICALS, INC.    
 
               
 
               
 
  By:            
             
 
      Name:        
 
      Title:        
 

EXHIBIT 10.6
ATHERSYS, INC.
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
          THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement” ), dated as of the 28th day of April, 2000, is by and among Athersys, Inc. (the “Company” ), Primus Capital Fund IV Limited Partnership, Primus Executive Fund Limited Partnership, Blue Chip Capital Fund II Limited Partnership, Miami Valley Venture Fund L.P., Sentron Medical Incorporated, Warburg Dillon Read LLC, Ohio Innovation Fund I, L.P., The EBTC Foundation, Athersys Investors II, LLC, Hoegh Invest, AS and NeoMed Innovation, ASA (collectively, the “Class C Investors” ), and the investors listed on Schedule A attached hereto (collectively the “Class F Investors” with the Class C Investors and Class F Investors collectively being referred to as the “Investors” ), Biotech 3 Investment L.L.C. ( “Biotech” ), and each of the stockholders of the Company listed on Schedule B attached hereto (individually, a “Stockholder” and collectively, the “Stockholders” ).
WITNESSETH:
          WHEREAS, the Class F Investors and the Company executed that certain Securities Purchase Agreement dated as of March 30, 2000 (the “Securities Purchase Agreement” ), pursuant to which the Class F Investors agreed to purchase from the Company shares of the Company’s Class F Convertible Preferred Stock, par value $.01 per share, on certain terms and conditions contained in the Securities Purchase Agreement (the “Purchase” ); and
          WHEREAS, in connection with the Purchase the parties hereto execute this Agreement to amend and restate the Amended and Restated Registration Rights Agreement, dated March 30, 2000, by and among the Company, Biotech, the Class C Investors, certain Class F Investors and the Stockholders; and
          WHEREAS, the Company desires to induce Class F Investors to consummate the Purchase by executing this Agreement.
          NOW, THEREFORE, in consideration of the foregoing and the covenants and agreements contained herein, the parties agree as follows:
     1.  Definitions .
           “Agreement” has the meaning set forth in the Recitals.
           “Amended Certificate” means the Amended and Restated Certificate of Incorporation of the Company.
           “Biotech” has the meaning set forth in the Preamble to this Agreement.

 


 

           Biotech Shares” means (i) any equity securities of the Company issued or issuable upon the conversion of Preferred Shares held by Biotech or any transferee, successor or assign of Biotech; (ii) any shares of equity securities of the Company held as the date hereof or acquired hereafter by Biotech; (iii) any equity securities of the Company issued or issuable with respect to the securities referred to in clauses (i) and (ii) by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization; and (iv) any other shares of equity securities of the Company held by persons holding securities referred to in clauses (i), (ii) and (iii); provided, however , that Biotech Shares shall not include any securities the sale of which has been registered pursuant to the Securities Act or sold to the public pursuant to Rule 144 promulgated by the Commission under the Securities Act. For purposes of this Agreement, a Person will be deemed to be a Holder of Biotech Shares whenever such Person holds a security exercisable for or convertible into such Biotech Shares, whether or not such exercise or conversion has actually been effected.
           “Class C Investors” has the meaning set forth in the Preamble to this Agreement.
           “Class C Investors’ Shares” means, at any time, the following shares held by any Class C Investors: (i) any shares of Common Stock then outstanding that were issued upon conversion of the Class C Preferred; (ii) any shares of Common Stock then issuable upon conversion of the Class C Preferred; (iii) any shares of Common Stock then outstanding which were issued as, or were issued directly or indirectly upon the conversion or exercise of other securities issued as, a dividend or other distribution with respect to or in replacement of other Class C Investors’ Shares; (iv) any shares of Common Stock then issuable directly or indirectly upon the conversion or exercise of other securities which were issued as a dividend or other distribution with respect to or in replacement of other Class C Investors’ Shares; and (v) any other Shares held by a Class C Investor; provided, however , that Class C Investors’ Shares shall not include any shares of Common Stock the sale of which has been registered pursuant to the Securities Act or sold to the public pursuant to Rule 144 promulgated by the Commission under the Securities Act. For purposes of this Agreement, a Person will be deemed to be a Holder of Class C Investors’ Shares whenever such Person holds a security exercisable for or convertible into such Class C Investors’ Shares, whether or not such exercise or conversion has actually been effected.
           “Class C Preferred” means the Class C Convertible Preferred Stock, par value $.01, of the Company.
           “Class F Preferred” means the Class F Convertible Preferred Stock, par value $.01, of the Company.
           “Class F Investors’ Shares” means, at any time, the following shares held by any Class F Investors: (i) any shares of Common Stock then outstanding that were issued upon conversion of the Class F Preferred; (ii) any shares of Common Stock then issuable upon conversion of the Class F Preferred; (iii) any shares of Common Stock then outstanding which were issued as, or were issued directly or indirectly upon the conversion or exercise of other securities issued as, a dividend or other distribution with respect to or in replacement of other Class F Investors’ Shares; (iv) any shares of Common Stock then issuable directly or indirectly upon the conversion or exercise of other securities which were issued as a dividend or other distribution with respect to or in replacement of other Class F Investors’ Shares; and (v) any

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other Shares held by a Class F Investor; provided, however , that Class F Investors’ Shares shall not include any shares of Common Stock the sale of which has been registered pursuant to the Securities Act or sold to the public pursuant to Rule 144 promulgated by the Commission under the Securities Act. For purposes of this Agreement, a Person will be deemed to be a Holder of Class F Investors’ Shares whenever such Person holds a security exercisable for or convertible into such Class F Investors’ Shares, whether or not such exercise or conversion has actually been effected.
           “Common Stock” means common stock, par value $.01, of the Company.
           “Company” has the meaning set forth in the Preamble to this Agreement.
           “Demand Registrations” means, collectively, Long-Form Demand Registrations and Short-Form Demand Registrations.
           “Demanding Shareholders” has the meaning set forth in Section 3(d) .
           “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder, all as the same shall be in effect at that time.
           “Holder” means any holder of Investors’ Shares or Registrable Securities who is a party to this Agreement (or becomes a party hereto pursuant to Section 12 hereof) or is a successor or assign or subsequent holder contemplated by Section 13(e) hereof.
           “Investors” has the meaning set forth in the Preamble to this Agreement.
           “Investors’ Shares” means, collectively, Class C Investors’ Shares and Class F Investors’ Shares.
           “IPO” means the Company’s first underwritten public offering of shares of common stock consummated pursuant to a registration statement declared effective under the Securities Act, other than a registration statement relating solely to the sale of securities to participants in a company stock plan or a registration relating solely to a Rule 145 transaction.
           “Long-Form Demand Registration” has the meaning set forth in Section 3(a)(v) .
           “Long-Form Registration” has the meaning set forth in Section 3(a)(i) .
           “Person” means any individual, sole proprietorship, partnership, corporation, limited liability company, unincorporated society or association, trust or other entity.
           “Piggyback Registration” has the meaning set forth in Section 2(a) .
           “Preferred Shares” means the Class A Convertible Preferred Stock, $.01 par value, the Class B Convertible Preferred Stock, $.01 par value, the Class C Convertible Preferred

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Stock, $.01 par value, the Class D Convertible Preferred Stock, $.01 par value, the Class F Convertible Preferred Stock, $.01 par value, the Class G Convertible Preferred Stock, $.01 par value, and any Blank Check Preferred Stock, $.01 par value, now or hereafter issued.
           “Purchase” has the meaning set forth in the Preamble to this Agreement.
           “Registrable Securities” means, collectively the Class C Investors’ Shares, the Class F Investors’ Shares and the Biotech Shares.
           “Registration Expenses” has the meaning set forth in Section 6(a) .
           “S-2 Short-Form Registration” has the meaning set forth in Section 3(a)(iii) .
           “S-3 Short-Form Registration” has the meaning set forth in Section 3(a)(iii) .
           “SEC” means the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act.
           “Shares” means shares of capital stock of the Company.
           “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder, all as the same shall be in effect at that time.
           “Securities Purchase Agreement” has the meaning set forth in the Preamble to this Agreement.
           “Short-Form Demand Registration” has the meaning set forth in Section 3(a)(v) .
           “Short-Form Registration” has the meaning set forth in Section 3(a)(iii) .
           “Stockholder” and “Stockholders” have the meanings set forth in the Preamble to this Agreement.
     2.  Piggyback Registrations .
     (a) Right to Piggyback . Whenever the Company proposes to register any of its securities under the Securities Act, and the registration form to be used may be used for the registration of Registrable Securities, the Company will give prompt written notice to Biotech, the Investors and the Stockholders of its intention to effect such a registration (a “Piggyback Registration” ). The Company will include in such registration (i) all Registrable Securities with respect to which the Company has received written requests for inclusion therein within fifteen (15) days after the receipt of the Company’s notice, and (ii) such other securities of the Company held by the Stockholders with respect to which the Company has received written requests for inclusion therein within fifteen (15) days after the receipt of the Company’s notice; provided, however , that no registration of securities held by the Stockholders or any other stockholders pursuant to this Section 2 shall be at the exclusion of any Registrable Securities.

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     (b) Priority on Primary Registrations . If a Piggyback Registration is an underwritten primary registration on behalf of the Company, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number that can be sold in an orderly manner in such offering within a price range acceptable to the Company, the Company will include in such registration shares in the following order until such limitation has been met: first , the securities the Company proposes to sell; second , the Registrable Securities requested to be included in such registration, pro rata among the holders of such Registrable Securities on the basis of the number of Shares owned by each such holder; third , the securities requested to be included in such registration by the Stockholders; and fourth , other securities requested to be included in such registration; provided that in any event, after the IPO, the Holders of the Registrable Securities shall be entitled to have their Shares represent at least twenty-five percent (25%) of the total shares included in any such registration.
     (c) Expiration of Piggyback Registration Rights . The “ piggyback ” registration rights granted to Holders of Registrable Securities under this Section 2 shall expire at the later of (i) ninety (90) days after all Registrable Securities are freely tradeable to the public through a broker, dealer or market maker in compliance with Rule 144(k) under the Securities Act, without limitation (or any similar rule then in force) or (ii) five (5) years after the closing of the IPO.
     3.  Demand Registration .
     (a) Requests for Registration .
     (i) Subject to the terms and conditions of this Agreement, the Holders of a majority of the then outstanding Class C Investors’ Shares at any time after the earlier of (i) the consummation of the IPO or (ii) October 31, 2000 may request registration under the Securities Act of all or part of their Class C Investors’ Shares on Form S-1 or any similar long-form registration statement ( “Long-Form Registration” ) by delivering a written request to the Company to that effect; provided, however , that, in the case of any such Long-Form Registration, the aggregate offering value of all of the shares to be offered must be reasonably expected to equal at least Five Million Dollars ($5,000,000).
     (ii) Subject to the terms and conditions of this Agreement, the Holders of at least twenty-five percent (25%) of the then outstanding Class F Investors’ Shares at any time after the earlier of (i) the consummation of an IPO or (ii) October 31, 2000, may request a Long Form Registration by delivering a written request to the Company to that effect; provided, however, that, in the case of any such Long Form Registration, the aggregate offering value of all of the shares to be offered must be reasonably expected to equal at least Five Million Dollars ($5,000,000).
     (iii) Subject to the terms and conditions of this Agreement, the Holders of at least twenty-five percent (25%) of the then outstanding Class C Investors’

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Shares and Biotech Shares at any time may request registration under the Securities Act of all or part of their Registrable Securities on Form S-2 ( “S-2 Short-Form Registration” ) or S-3 ( “S-3 Short-Form Registration” ) or any similar short-form registration statement (collectively, a “Short-Form Registration” ), if available, by delivering a written request to the Company to that effect; provided, however , that, in the case of any such Short-Form Registration, the aggregate offering value of the Class C Investors’ Shares and Biotech Shares requested to be included in such registration pursuant to Section 3(a) , including, without limitation, Section  3(a)(v) , must be reasonably expected to equal at least Five Hundred Thousand Dollars ($500,000).
     (iv) Subject to the terms and conditions of this Agreement, the Holders of the then outstanding Class F Investors’ Shares at any time may request a S-3 Short-Form Registration of their Class F Investors’ Shares, if available, by delivering a written request to the Company to that effect; provided, however , that, in the case of any such S-3 Short-Form Registration, the aggregate offering value of the Class F Investors’ Shares requested to be included in such registration pursuant to Section 3(a) , including, without limitation, Section  3(a)(v) , must be reasonably expected to equal at least Five Hundred Thousand Dollars ($500,000).
     (v) If the Holders of Registrable Securities initiating a registration pursuant to Section 3(a) intend to distribute the Registrable Securities by means of an underwriting, they shall so advise the Company in their written notice. Within ten (10) days after receipt of any written request pursuant to (i), (ii), (iii) or (iv) above, the Company will give written notice of such request to all of the Investors and Biotech, and will include, subject to the terms of Section 3(d) , in any such registration that constitutes a Demand Registration all securities with respect to which the Company has received written requests from the Investors and Biotech, for inclusion therein within fifteen (15) days after receipt of the Company’s notice. Any Long-Form Registration and any Short-Form Registration requested pursuant to this Section 3(a) , other than a registration in which the Company sells any of its securities in a primary offering, are referred to herein, respectively, as a “Long-Form Demand Registration” , and a “Short-Form Demand Registration” . The Company may elect to include its securities in a primary offering in any registration requested pursuant to this Section 3(a) ; provided, however , that if the Company sells any of its securities in a primary offering, such offering shall not be deemed to be a Demand Registration and shall be considered a Piggyback Registration and will be governed by Section 2 .
     (b)  Long-Form Demand Registrations . The Holders of Class C Investors’ Shares may request one Long-Form Demand Registration pursuant to Section 3(a)(i), and the Holders of Class F Investors’ Shares may request two (2) Long-Form Demand Registrations pursuant to Section  3(a)(ii) . The Company will pay the Registration Expenses therefor of the Company and the Holders of Investors’ Shares. A registration will not count as a Long-Form Demand Registration under this Section 3 until (i) it has become effective (and is not the subject of any stop order, injunction or other order or

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requirement of the SEC or other governmental agency or court for any reason); (ii) the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration statement are satisfied and (iii) the Holders are able to register and sell at least seventy-five percent (75%) of their desired Shares. Notwithstanding the terms of the preceding sentence, a registration which does not become effective after the Company has filed a registration statement with respect thereto solely by reason of the refusal to proceed of the Holders of Investors’ Shares (unless such refusal is due to the disclosure of adverse information concerning the Company after such demand is made) shall be deemed to have been effected by such Holders and count as a Long-Form Demand Registration under this Section 3 , unless the Holders of Investors’ Shares making such demand shall have elected to pay the Registration Expenses of the Holders of Investors’ Shares incurred in connection therewith.
     (c)  Short-Form Demand Registration . The Holders of Registrable Securities will be entitled to request pursuant to Section  3(a)(iii) or Section  3(a)(iv) , respectively, no more than two (2) Short-Form Demand Registrations in any twelve (12) month period. The Company will pay the Registration Expenses therefor of the Company and the Holders of Registrable Securities in connection with any such registration. A registration will not count as one of the Short-Form Demand Registrations under this Section 3(c) until it has become effective; provided that in any event the Company will pay the Registration Expenses of the Company and the Holders of Registrable Securities in connection with any such registration initiated as a Short-Form Demand Registration. Notwithstanding the terms of the preceding sentence, a registration that does not become effective after the Company has filed a registration statement with respect thereto solely by reason of the refusal to proceed of the Holders of Registrable Securities (unless such refusal is due to the disclosure of adverse information concerning the Company after such demand is made) shall be deemed to have been effected by such Holders and count as a Short-Form Demand Registration under this Section 3(c) , unless the Holders of Registrable Securities making such demand shall have elected to pay the Registration Expenses of the Holders of Registrable Securities incurred in connection therewith.
     (d)  Priority on Demand Registrations . If a Demand Registration is an underwritten public offering and the managing underwriters advise the Company that in their opinion the number of Registrable Securities and other securities requested to be included exceeds the number of Registrable Securities and other securities which can be sold in an orderly manner in such offering without materially adversely affecting the price of the Shares to be sold in such registrations, the Company will include in such registration shares in the following order until such limitation has been met: first , the number of securities requested to be included therein by the Holders of Registrable Securities pro rata among Holders of Registrable Securities on the basis of the number of Shares owned by such Holders (the “Demanding Shareholders” ), second , securities requested by the Company to be included in such registration pursuant to “ piggyback ” rights hereunder; and third , other securities requested by the Stockholders to be included in such registration.
     (e)  Restrictions on Registrations .

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     (i) The Company may postpone for a reasonable period, not to exceed an aggregate of one hundred twenty (120) days in any twelve (12) month period, the filing or the effectiveness of a registration statement for a Demand Registration, if the Company determines reasonably and in good faith that such filing would have a material adverse effect on any proposal or plan of the Company to engage in any transaction, provided that in such event the Holders of Investors’ Shares initially requesting such Demand Registration will be entitled to withdraw such request and, if such request is withdrawn, such Demand Registration will not count as a permitted Demand Registration hereunder, and the Company will pay all Registration Expenses in connection with such withdrawn registration. In addition, the Company shall not be required to effect any registration in accordance with the terms of this Agreement within one hundred eighty (180) days after the effective date of the IPO or ninety (90) days after the effective date of any subsequent primary offering (or combined primary and secondary offering) of its securities (other than a registration statement on Form S-8, or any successor forms or a registration on Form S-4 or relating to a Rule 145 transaction). The Company may only provide the Delay Notice only once in any twelve (12) month period.
     (ii) The rights granted under Section  3(a)(iii) and Section 3(a)(iv) shall expire ninety (90) days after all Registrable Securities are freely tradeable to the public through a broker, dealer or market maker in compliance with Rule 144(k) under the Securities Act, without limitation (or any similar rule than in force).
     (iii) The Company shall not be required to effect a Long-Form Demand Registration unless it is a firmly underwritten offering by an underwriter of nationally recognized standing (but not limited to “Tier 1” or “Tier 2” underwriters). The Company shall have the sole right to select such underwriter; provided, that in the event the Company has not selected an underwriter within thirty (30) days of the request for Demand Registration, the Demanding Shareholders may select such underwriter subject to approval of the Company not to be unreasonably withheld.
     (f) The Company shall give prompt notice to all holders of Registrable Securities of the receipt of a request for registration pursuant to this Section 3 .
     4.  Holdback Agreements .
     (a) Biotech, the Investors and each Stockholder agree not to effect any public sale or distribution (including sales pursuant to Rule 144 promulgated pursuant to the Securities Act) of equity securities of the Company, or any securities convertible into or exchangeable or exercisable for such securities without the prior written consent of the Company or the managing underwriter for such period of time (not to exceed the period beginning seven days prior to and during the 180-day period beginning on the effective date of the registration statement of the IPO) (except for sales of (i) securities as part of such IPO, (ii) securities purchased in the IPO or (iii) securities purchased on the open market after the IPO and as otherwise permitted under Rule 144(k)), unless the

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underwriters managing the IPO otherwise agree; provided that all officers and directors of the Company and, the holders of at least one percent (1%) of the Company’s capital stock enter into similar agreements; further, provided , that the Company and the managing underwriter shall agree not to release any of those other persons from the lock-up prior to the release of all of the Investors and Biotech.
     (b) The Company agrees not to effect any public sale or distribution of its equity securities, or any securities convertible into or exchangeable or exercisable for such securities, during the seven days prior to and during the 180-day period beginning on the effective date of any underwritten Piggyback Registration (except as part of such underwritten registration or pursuant to registrations on Form S-8 or Form S-4 or any successor form), unless the underwriters managing the registered public offering otherwise agree.
     5.  Registration Procedures . Whenever the Holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Company will use its best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Company will expeditiously as possible:
     (a) Prepare and file with the SEC a registration statement with respect to such Registrable Securities, and use its best efforts to cause such registration statement to become effective and remain effective until the earlier of (i) the date when all Registrable Securities covered by the registration statement have been sold, or (ii) 180 days from the effective date of the registration statement; provided, however, that such 180-day period shall be extended for a period of time equal to the period the holder refrains from selling any securities included in such registration at the request of the Company or an underwriter of any securities of the Company pursuant to Section 5(e) ; provided, further, that before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Holders of a majority of the Registrable Securities covered by such registration statement copies of all such documents proposed to be filed including documents that are to be incorporated by reference into such registration statement or supplement, which documents will be subject to the review of such counsel, and which proposed registration statement or amendment or supplement thereto shall not be filed by the Company if the Holders of a majority of the Registrable Securities covered by such statement, amendment or supplement reasonably object to such filing;
     (b) Prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to make and to keep such registration statement effective for the period referred to in Section 5(a) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
     (c) Furnish to each Holder of Registrable Securities such number of copies of such registration statement, each amendment and supplement thereto, the prospectus

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included in such registration statement (including each preliminary prospectus) and any other documents as such Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder;
     (d) Use its best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as may be reasonably necessary and do any and all other acts and things that may be reasonably necessary or advisable to enable such Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Holder;
     (e) Promptly notify each Holder of such Registrable Securities at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such Holder, the Company will promptly prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading; provided that, at the request of the Company or the underwriter, each Holder shall refrain from selling securities included in such registration until notified by the Company or the underwriter that such prospectus has been supplemented or amended and no longer contains an untrue statement of material fact nor omits any fact necessary to make the statements therein not misleading;
     (f) Promptly notify the Holders of Registrable Securities and the underwriters of the following events: (i) the filing of the prospectus or any prospectus supplement and the registration statement and any amendment or post-effective amendment thereto and, with respect to the registration statement or any post-effective amendment thereto, the declaration of the effectiveness of such documents; (ii) any requests by the SEC for amendments or supplements to the registration statement or the prospectus or for additional information; (iii) the issuance or threat of issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; and (iv) the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threat of initiation of any proceeding for such purpose;
     (g) Cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if not so listed, to be listed on the NASD automated quotation system and, if listed on the NASD automated quotation system, use its best efforts to secure designation of all such Registrable Securities covered by such registration statement as a NASDAQ “national market system security” within the meaning of Rule 11Aa2-1 under the Exchange Act, failing that, to secure NASDAQ authorization for such Registrable Securities and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with the NASD;

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     (h) Provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
     (i) Enter into any customary agreements (including, without limitation, underwriting agreements in customary form), and take all other actions as the Holders of a majority of the Registrable Securities being sold or the underwriters reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares);
     (j) Make available for inspection to any Holder of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such Holder or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such Holder, underwriter, attorney, accountant or agent in connection with such registration statement, provided that, each such Holder or underwriter, shall, upon the reasonable request of the Company, execute and deliver to the Company a confidentiality and nondisclosure agreement relating to such information, provided that such agreement shall contain such reasonable terms and conditions relating to confidentiality and nondisclosure matters mutually agreeable to such Holder or underwriter and the Company;
     (k) Otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
     (l) Permit any Holder of Registrable Securities to participate in the preparation of such registration or comparable statement and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder and its counsel should be included;
     (m) Make every reasonable effort to prevent the entry of any order suspending the effectiveness of the registration statement and, in the event of the issuance of any such stop order, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any security included in such registration statement for sale in any jurisdiction, the Company will use its best efforts promptly to obtain the withdrawal of such order;
     (n) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Holders thereof to consummate the disposition of such Registrable Securities;
     (o) Cooperate with the selling Holders of Registrable Securities and the underwriters to facilitate the timely preparation and delivery of certificates representing

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Registrable Securities to be sold and not bearing any restrictive legends, and enable such Registrable Securities to be in such lots and registered in such names as the underwriters may request at least two business days prior to any delivery of Registrable Securities to the underwriters;
     (p) Provide a CUSIP number for all Registrable Securities not later than the effective date of the registration statement;
     (q) Prior to the effectiveness of the registration statement and any post-effective amendment thereto and at each closing of an underwritten offering, obtain “cold comfort” letters and updates thereof from the Company’s independent certified public accountants addressed to the selling Holders of Registrable Securities and the underwriters, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters by underwriters in connection with primary underwritten offerings; and
     (r) Take all such other actions either necessary or appropriate to permit the Registrable Securities of a Holder to be registered and disposed of in accordance with the method of disposition described herein.
     6.  Registration Expenses .
     (a) All expenses incident to the Company’s performance of or compliance with this Agreement including, without limitation, all registration and filing fees, fees and expenses of compliance with securities or blue sky laws, printing expenses, messenger and delivery expenses, fees and disbursements of counsel for the Company, fees and disbursements of one counsel selected by the participating Holders of Investors’ Shares in an amount not to exceed Twenty Thousand Dollars ($20,000) for a Long-Form Demand Registration and Fifteen Thousand Dollars ($15,000) for each Short-Form Demand Registration and Piggyback Registration, and all independent certified public accountants, underwriters (excluding discounts and commissions) and other persons retained by the Company (all such expenses being herein called “Registration Expenses” ), will be borne by the Company and the Company will pay its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit or quarterly review, the expense of any liability insurance and the expenses and fees for listing the securities to be registered on each securities exchange on which similar securities issued by the Company are then listed or on the NASD automated quotation system.
     (b) To the extent Registration Expenses are not required to be paid by the Company, each Holder of securities included in any registration hereunder will pay those expenses (including discounts and commissions) allocable to the registration of such Holder’s securities so included, and any expenses (including discounts and commissions) not so allocable will be borne by all sellers of securities included in such registration in proportion to the aggregate selling price of the securities to be so registered.
     7.  Indemnification .

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     (a) The Company agrees to indemnify to the extent permitted by law, each Holder of Registrable Securities, its officers, directors and partners, as the case may be, and each person who controls such Holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses caused by any untrue or allegedly untrue statement of material fact contained in any registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto, or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or contained in any information furnished in writing to the Company by such Holder expressly for use therein or by such Holder’s failure to deliver a copy of the registration statement or prospectus or any amendments or supplements thereto after the Company has furnished such Holder with a sufficient number of copies of the same. In connection with an underwritten offering, the Company will indemnify such underwriters, their officers, directors and partners, as the case may be, and each person who controls such underwriters (within the meaning of the Securities Act) to the same extent as provided above with respect to the indemnification of the Holders of Registrable Securities.
     (b) In connection with any registration statement in which a Holder of Registrable Securities is participating, each such Holder will furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such registration statement or prospectus and, to the extent permitted by law, will, severally and not jointly, if Registrable Securities held by such Holder are included in the securities as to which such registration, qualification or compliance is being effected, indemnify the Company, its directors and officers and each person who controls the Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and expenses resulting from any untrue or allegedly untrue statement of material fact contained in the registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto, or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in any information so furnished in writing by such Holder; provided , that the obligation to indemnify will be individual to each Holder and will be limited to the net amount of proceeds received by such Holder from the sale of Registrable Securities pursuant to such registration statement.
     (c) Any person entitled to indemnification hereunder will (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified party and the indemnifying party may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed by the indemnifying party, the indemnified party will not be subject to any liability for any settlement made by the indemnifying party without its consent (but such consent will not be unreasonably withheld); provided, however, that any consent to entry of any judgment or entry into any settlement must include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a full release

13


 

from all liability in respect to such claim or litigation. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. The failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations under this Section 7 unless the failure to give such notice is materially prejudicial to an indemnifying party’s ability to defend such action, and then in such case, it shall be relieved only to the extent of such material prejudice.
     (d) The indemnification provided for under this Agreement will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling person of such indemnified party and will survive the transfer of securities, the completion of any offering of Registrable Securities in a registration statement and the termination of this Agreement. The Company also agrees to make such provisions, as are reasonably requested by an indemnified party, for contribution to such party in the event the Company’s indemnification is unavailable for any reason.
     8.  Participation in Underwritten Registrations . No person may participate in any registration hereunder that is underwritten unless such person (a) agrees to sell such person’s securities on the basis provided in any underwriting arrangements approved by the person or persons entitled hereunder to approve such arrangements, and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements.
     9.  Reports Under the Securities Laws . With a view to making available to the Holders of Registrable Securities the benefits of Rule 144 promulgated under the Securities Act and any other rule or regulation of the SEC that may at any time permit such Holder to sell securities of the Company to the public without registration, the Company agrees to use its best efforts to:
     (a) Make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act, at all times subsequent to ninety (90) days after the effective date of any registration statement covering an underwritten public offering filed under the Securities Act by the Company;
     (b) File with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act, at any time after it is subject to such registration requirements; and
     (c) Furnish to any such Holder so long as such Holder owns any of the Registrable Securities forthwith upon request a written statement by the Company that it has complied with the reporting requirements of Rule 144 (at any time after ninety (90) days after the effective date of the first registration statement filed by the Company for an offering of its securities to the general public), and of the Securities Act and the Exchange Act any time after it has become subject to such reporting requirements), a

14


 

copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed by the Company as may be reasonably requested by any such Holder in availing any such Holder of any rule or regulation of the SEC permitting the selling of any such securities without registration.
     10.  Certain Limitations in Connection with Future Grants of Registration Rights . From and after the date of this Agreement, the Company shall not enter into any agreement with any holder or prospective holder of any securities of the Company providing for the granting to such holder of registration rights unless such agreement is approved by the Holders of seventy-five percent (75%) of the Registrable Securities then outstanding. Notwithstanding the foregoing, any amendments or agreements that affect the rights of the Class C Preferred or grant rights which are senior to or pari passu to the rights of the Class C Preferred must be approved by Holders of at least seventy-five percent (75%) of the Class C Preferred, and any amendments or agreements that affect the rights of the Class F Preferred or grant rights which are senior to or pari passu to the rights of the Class F Preferred must be approved by Holders of at least seventy-five percent (75%) of the Class F Preferred.
     11.  Financial Statements; Inspection .
     (a) Delivery of Financial Statements . The Company shall deliver to each Holder of at least 100,000 Class F Investors’ Shares (subject to adjustments for stock splits and the like) (a “Major Class F Holder”):
               (i) Monthly Reports. As soon as available and in any event within thirty (30) days after the end of each of the first eleven (11) months of each fiscal year of the Company, consolidated balance sheets of the Company and its subsidiaries as of the end of such months and consolidated statements of income and cash flows of the Company and its subsidiaries for such month and for the period commencing at the beginning of the fiscal year, and ending with the end of such month setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year, and including comparisons to monthly budgets, all in reasonable detail; and
               (ii) Annual Reports. As soon as available and in any event within ninety (90) days after the end of each fiscal year of the Company, a copy of the annual audit report for such year for the Company and its subsidiaries, including therein consolidated balance sheets of the Company and its subsidiaries as of the end of such fiscal year and consolidated statements of income and cash flows of the Company and its subsidiaries for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year; and
               (iii) Budgets. As soon as available after approval by the Board of Directors, but in any event at least thirty (30) days prior to the beginning of each fiscal year, a business plan and operating budgets (prepared on a monthly basis) for the forthcoming fiscal year.
     (b) Inspection. The Company shall permit each Major Class F Holder, with such Holder to pay its own expenses, to visit and inspect the Company’s properties

15


 

during normal working hours, to examine its books of account and records and make copies thereof and to discuss the Company’s affairs, finances and accounts with its officers, all at such reasonable times, and upon reasonable notice, as may be requested by such Holder and all such queries to be reasonably related to the Holder’s investment in the Company; provided , however , that the Company shall not be obligated pursuant to this Section 11(b) to provide access to any information which it deems in good faith to be a trade secret or other confidential or proprietary information.
     (c) Termination of Information and Inspection Rights. The rights set forth in Section 11(a) and (b) shall terminate as to each Holder and be of no further force or effect when the Company is required to file reports (and does so) pursuant to Section 13 or 15(d) of the Exchange Act.
     12.  Transfer of Registration Rights . Provided that the Company is given written notice by the Holder of Registrable Securities prior to, at the time of or reasonably soon after such transfer stating the name and address of the transferee and identifying the securities with respect to which the rights under this Agreement are being assigned, and provided that to the Company’s reasonable satisfaction, such proposed transferee is not a competitor or potential competitor of the Company, the rights granted to Holders hereunder may be transferred to any transferee acquiring, in the aggregate, shares representing at least 100,000 Shares (subject to adjustments for stock splits and the like).
     13.  Miscellaneous .
     (a) No Inconsistent Agreements . The Company will not hereafter enter into any agreement with respect to its securities which is inconsistent with or violates the rights granted to the Holders of Registrable Securities in this Agreement.
     (b) Adjustments Affecting Registrable Securities . The Company will not take any action, or permit any change to occur, with respect to its securities which would materially and adversely affect the ability of the Holders of Registrable Securities to include such Registrable Securities in a registration undertaken pursuant to this Agreement or which would materially and adversely affect the marketability of such Registrable Securities in any such registration (including, without limitation, effecting a stock split or a combination of shares).
     (c) Remedies . Any person having rights under any provision of this Agreement will be entitled to enforce such rights specifically to recover damages caused by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law. The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any party may in its sole discretion apply to any court of law or equity of competent jurisdiction (without posting any bond or other security) for specific performance and for other injunctive relief in order to enforce or prevent violation of the provisions of this Agreement.
     (d) Amendments and Waivers . Except as otherwise provided herein, the provisions of this Agreement may be amended or waived only upon the prior written

16


 

consent of the Company and Holders of at least seventy-five percent (75%) of the Registrable Securities (excluding all Registrable Securities held by the Company). Notwithstanding the foregoing, any amendments or agreements that affect the rights of the Class C Preferred or grant rights which are senior to or pari passu to the rights of the Class C Preferred must be approved by Holders of at least seventy-five percent (75%) of the Class C Preferred, and any amendments or agreements that affect the rights of the Class F Preferred or grant rights which are senior to or pari passu to the rights of the Class F Preferred must be approved by Holders of at least seventy-five percent (75%) of the Class F Preferred.
     (e) Successors and Assigns . All covenants and agreements in this Agreement by or on behalf of any of the parties hereto will bind and inure to the benefit of the respective successors and assigns of the parties hereto whether so expressed or not. In addition, whether or not any express assignment has been made, the provisions of this Agreement which are for the benefit of purchasers or Holders of Registrable Securities are also for the benefit of, and enforceable by, any subsequent Holder of Registrable Securities.
     (f) Severability . Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.
     (g) Counterparts . This Agreement may be executed in two or more counterparts, each of which constitutes an original and all of which counterparts taken together shall constitute one and the same Agreement.
     (h) Descriptive Headings; Interpretation . The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement. The use of the word “including” in this Agreement shall be by way of example rather than limitation.
     (i) Governing Law . This Agreement shall be governed and construed in accordance with the laws of the State of Delaware.
     (j) Notices . All notices, requests, demands, claims, and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered personally, telecopied, sent by nationally recognized overnight courier (charges prepaid) or mailed by registered or certified mail (return receipt requested), postage prepaid, to the parties at the addresses specified in the Class F Stock Purchase Agreement (or at such other address for a party as shall be specified by like notice).
     (k) Delays or Omissions . No delay or omission to exercise any right, power or remedy accruing to any party to this Agreement, whether or not upon any breach or default of the other party, shall impair any such right, power or remedy of such party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of any similar breach or default thereafter occurring; nor shall any waiver of

17


 

any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of any provisions or conditions of this Agreement, must be made in writing, shall be effective only to the extent specifically set forth in such writing and comply with Section 13(d) above. All remedies, either under this Agreement, or by law or otherwise afforded to any Holder, shall be cumulative and not alternative.
     (l) Entire Agreement . This Agreement and the documents referred to herein constitute the entire agreement between the parties hereto pertaining to the subject matter hereof and any other written or oral agreements between the parties hereto are expressly canceled.
[BALANCE OF PAGE LEFT BLANK INTENTIONALLY]

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          IN WITNESS WHEREOF, the parties have executed this Amended and Restated Registration Rights Agreement as of the date first above written.
         
  ATHERSYS, INC.
 
 
  By:   /s/  Gil Van Bokkelen  
    Name:   Gil Van Bokkelen, Ph.D.   
    Title:   President and Chief Executive Officer   
 
[STOCKHOLDER SIGNATURES BEGIN ON FOLLOWING PAGE]
*Note: conformed signatures of Investors, Biotech and the Stockholders intentionally omitted from this filing

19

 

EXHIBIT 10.7
AMENDMENT NO. 1 TO
ATHERSYS, INC. AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
     This Amendment No. 1, dated as of January 29, 2002 (this “ Amendment ”) to the Amended and Restated Registration Rights Agreement (the “ Agreement ”) dated as of April 28, 2000, is by and among Athersys, Inc., a Delaware corporation (the “ Company ”), the New Stockholders (as defined below) (the “ New Stockholders ”), the Investors, Biotech and the Stockholders (each as defined in the Agreement).
RECITALS:
     WHEREAS, the Company and certain investors (the “ New Stockholders ”) have entered into Securities Purchase Agreements, dated as of the date hereof (collectively, the “ Securities Purchase Agreements" ), pursuant to which the New Stockholders agreed to purchase from the Company shares of the Company’s Common Stock, par value $.01 per share, on certain terms and conditions contained in the Securities Purchase Agreements; and
     WHEREAS, it is a condition precedent to the closing of the transactions contemplated by each Securities Purchase Agreement, that the Company, the Investors, Biotech and the Stockholders enter into this Amendment and that the New Stockholders become party to the Agreement and this Amendment.
AGREEMENTS:
     NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
     1. Effective as of the date of this Amendment, the New Stockholders will be included on Schedule B to the Agreement and such New Investors shall for all purposes under the Agreement be Stockholders (as defined in the Agreement).
     2. All covenants and agreements in this Amendment by or on behalf of any of the parties hereto will bind and inure to the benefit of the respective successors and assigns of the parties hereto whether so expressed or not.
     3. This Amendment may be executed in two or more counterparts, each of which constitutes an original, and all of which taken together shall constitute one and the same Amendment.
     4. This Amendment shall be governed by the laws of the State of Delaware, without reference to its conflict of law principles.
     5. Where necessary or appropriate to the meaning hereof, the singular, plural, masculine, feminine and neuter shall be deemed to include each other.

 


 

     6. Whenever possible, each provision of this Amendment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Amendment is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Amendment.
     7. This Amendment and the Agreement constitute the entire agreement of the parties and there are no other agreements, written or oral, between the parties related to the subject matter of this Amendment and the Agreement.
     8. Capitalized terms used but not otherwise defined herein have the meanings set forth in the Agreement.
[SIGNATURES BEGIN ON FOLLOWING PAGE]

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     IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Amended and Restated Registration Rights Agreement as of the day and year first above written.
         
  ATHERSYS, INC.
 
 
  By:   /s/ Gil Van Bokkelen  
    Gil Van Bokkelen   
    President and Chief Executive Officer   
 
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
 
  * Note:   conformed signatures of New Stockholders, Investors, Biotech and the Stockholders intentionally omitted from this filing.

-3-

 

EXHIBIT 10.8
AMENDMENT NO. 2 TO
ATHERSYS, INC. AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT
     This Amendment No. 2, dated as of November 19, 2002 (this “ Amendment ”) to the Amended and Restated Registration Rights Agreement dated as of April 28, 2000, and as amended by Amendment No. 1 to Athersys, Inc. Amended and Restated Registration Rights Agreement dated as of January 29, 2002 (as so amended, the “ Agreement ”), is by and among Athersys, Inc., a Delaware corporation (the “ Company ”), the New Stockholders (as defined below), the Investors, Biotech and the Stockholders (each as defined in the Agreement).
RECITALS:
     WHEREAS, the Company, MCL LLC (“ MCL ”) and Leo T. Furcht, M.D. (“ Furcht ”) have entered into an Option Agreement (the “ Option Agreement ”), pursuant to which the Company has granted MCL an irrevocable option, exercisable at certain times and under certain conditions as set forth in the Option Agreement, to cause MCL to merge with and into a wholly owned subsidiary of the Company on the terms and conditions set forth in an agreement and plan of merger to be entered into by and among the Company, Merger Sub, MCL and Furcht (the “ Merger Agreement ), and (ii) MCL has granted to the Company an irrevocable option, exercisable at certain times and under certain conditions as set forth in the Option Agreement, to cause MCL to merge with and into Merger Sub on the terms and conditions set forth in the Merger Agreement; and
     WHEREAS, pursuant to the terms of the Merger Agreement, shares of the Company’s Common Stock, par value $.01 per share, are to be issued on the terms and conditions contained in the Merger Agreement to the Holders, as defined in the Merger Agreement (the “ New Stockholders ”); and
     WHEREAS, it is a condition precedent to the closing of the transactions contemplated by the Merger Agreement, that the Company, the Investors, Biotech and the Stockholders enter into this Amendment and that the New Stockholders become party to the Agreement and this Amendment.
AGREEMENTS:
     NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
     1. Effective as of the Effective Time, as defined in the Merger Agreement, the New Stockholders will be included on Schedule B to the Agreement and thereafter deemed to be parties to such Agreement and such New Stockholders thereafter shall for all purposes under the Agreement be deemed to be Stockholders (as defined in the Agreement).

 


 

     2.  Schedule B to the Agreement shall be deemed amended in a manner consistent with this Agreement.
     3. All covenants and agreements in this Amendment by or on behalf of any of the parties hereto will bind and inure to the benefit of the respective successors and assigns of the parties hereto whether so expressed or not.
     4. This Amendment may be executed in multiple counterparts, each of which constitutes an original, and all of which taken together shall constitute one and the same Amendment.
     5. This Amendment shall be governed by the laws of the State of Delaware, without reference to its conflict of law principles.
     6. Where necessary or appropriate to the meaning hereof, the singular, plural, masculine, feminine and neuter shall be deemed to include each other.
     7. Whenever possible, each provision of this Amendment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Amendment is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Amendment.
     8. This Amendment and the Agreement constitute the entire agreement of the parties and there are no other agreements, written or oral, between the parties related to the subject matter of this Amendment and the Agreement.
     9. Capitalized terms used but not otherwise defined herein have the meanings set forth in the Agreement.
[SIGNATURES BEGIN ON FOLLOWING PAGE]

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     IN WITNESS WHEREOF, the parties have executed this Amendment No. 2 to Amended and Restated Registration Rights Agreement as of the day and year first above written.
         
  ATHERSYS, INC.
 
 
  By:   /s/ Gil Van Bokkelen  
    Gil Van Bokkelen   
    President and Chief Executive Officer   
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
 
  * Note:   conformed signatures of New Stockholders, Investors, Biotech and the Stockholders intentionally omitted from this filing.

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EXHIBIT 10.9
ATHERSYS, INC.
AMENDMENT NO. 3
TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
     This Amendment No. 3, dated as of May 15, 2007 (this “ Amendment ”) to the Amended and Restated Registration Rights Agreement (the “ Agreement ”) dated as of April 28, 2000, as amended, is by and among Athersys, Inc., a Delaware corporation (the “ Company ”), and the holders of shares of capital stock of the Company who from time to time have executed counterparts to the Agreement (collectively, the “ Existing Stockholders ”).
RECITALS:
     WHEREAS, the Company plans to effect a transaction by which a wholly owned subsidiary of a publicly traded company (“ PubCo ”) will merge with and into the Company, the Company will become a wholly owned subsidiary of PubCo, and the existing stockholders of the Company will obtain majority ownership and control of PubCo immediately after such transaction (the “ Merger ”);
     WHEREAS, concurrent with and as a condition to the closing of the Merger, PubCo intends to conduct a private placement transaction (the “ Offering ”) pursuant to Regulation D promulgated under the Securities Act of 1933, as amended;
     WHEREAS, in connection with the Offering, PubCo, the Company and certain investors (the “ New Stockholders ”) will enter into a Securities Purchase Agreement (the “ Securities Purchase Agreement” ), the form of which is attached hereto as Exhibit A, pursuant to which the New Stockholders agree to purchase from PubCo Units consisting of one share of Pubco’s common stock (“ Common Stock ”) and a warrant (a “ Warrant ”) to purchase 0.25 shares of Common Stock on certain terms and conditions contained in the Securities Purchase Agreement;
     WHEREAS, the New Stockholders and certain other holders of securities of PubCo (collectively, the “ Holders ”) will be granted registration rights relating to Common Stock pursuant to the terms of the Securities Purchase Agreement;
     WHEREAS, pursuant to Section 10 of the Agreement, the Existing Stockholders must approve any future agreement granting registration rights to any holders of the Company’s securities;
     WHEREAS, it is a condition precedent to the closing of the Offering and the Merger that the Existing Stockholders waive certain rights existing under this Agreement; and
     WHEREAS, under Section 13(d) of the Agreement, the Existing Stockholders may waive any rights granted to them under the Agreement.

 


 

AGREEMENTS:
     NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
     1. Effective as of the date of this Amendment, the Existing Stockholders hereby approve the Securities Purchase Agreement and the registration rights granted therein.
     2. Effective as of the date of this Amendment, the Existing Stockholders hereby waive any rights to Piggyback Registration granted under Section 2 of the Agreement in connection with any registration rights granted to or exercised by the Holders under the Securities Purchase Agreement, except and only to the extent permitted by Section 6.7 of the Securities Purchase Agreement.
     3. Effective as of the date of this Amendment, the Existing Stockholders hereby agree that, in connection with an underwritten public offering as described in Section 6.7 of the Securities Purchase Agreement, the Holders and the Existing Stockholders shall have the priorities with respect to inclusion in such offering provided for in the Securities Purchase Agreement, and that, where inconsistent, the terms of the Securities Purchase Agreement shall supersede the terms of the Agreement for any such offering.
     4. Effective as of the date of this Amendment, the Existing Stockholders hereby agree that they will not exercise any rights to Demand Registration granted under Section 3 of the Agreement from and after the date of this Amendment until the date six months following (i) the effective date of the registration statement filed pursuant to Section 6.1 of the Securities Purchase Agreement or (ii) in the event that the Company is required to file any additional registration statements pursuant to Section 6.8 of the Securities Purchase Agreement, until the later of (a) the one-year anniversary of the First Closing under the Securities Purchase Agreement and (b) the six-month anniversary of the effective date of the first registration statement filed pursuant to Section 6.1 of Securities Purchase Agreement that is declared effective by the SEC.
     5. All covenants and agreements in this Amendment by or on behalf of any of the parties hereto will bind and inure to the benefit of the respective successors and assigns of the parties hereto whether so expressed or not.
     6. This Amendment may be executed in two or more counterparts, each of which constitutes an original, and all of which taken together shall constitute one and the same Amendment. It is understood that all parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by email delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
     7. This Amendment shall be governed by the laws of the State of Delaware, without reference to its conflict of law principles.
     8. Where necessary or appropriate to the meaning hereof, the singular, plural,

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masculine, feminine and neuter shall be deemed to include each other.
     9. Whenever possible, each provision of this Amendment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Amendment is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Amendment.
     10. This Amendment and the Agreement constitute the entire agreement of the parties and there are no other agreements, written or oral, between the parties related to the subject matter of this Amendment and the Agreement.
     11. Capitalized terms used but not otherwise defined herein have the meanings set forth in the Agreement.
[SIGNATURES BEGIN ON FOLLOWING PAGE]

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     IN WITNESS WHEREOF, the parties have executed this Amendment No. 3 to the Amended and Restated Registration Rights Agreement of Athersys, Inc. as of the day and year first above written.
         
  ATHERSYS, INC.
 
 
  By:   /s/ William Lehmann  
    William Lehmann   
    President   
 
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
*Note: conformed signatures of Existing Stockholders intentionally omitted from this filing.

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EXHIBIT 10.10
BTHC VI, INC.
LONG-TERM INCENTIVE PLAN
     1.  Purpose. The purpose of this Long-Term Incentive Plan is to attract and retain officers, other employees, Directors, consultants and other independent contractors of BTHC VI, Inc., a Delaware corporation (the “Company”), and its Subsidiaries and to provide to such persons incentives and rewards for performance.
     2.  Definitions. As used in this Plan,
          (a) “Appreciation Right” means a right granted pursuant to Section 5 of this Plan, and will include both Free-Standing Appreciation Rights and Tandem Appreciation Rights.
          (b) “Base Price” means the price to be used as the basis for determining the Spread upon the exercise of a Free-Standing Appreciation Right or a Tandem Appreciation Right.
          (c) “Board” means the Board of Directors of the Company and, to the extent of any delegation by the Board to a committee (or subcommittee thereof) pursuant to Section 10 of this Plan, such committee (or subcommittee).
          (d) “Change in Control” has the meaning set forth in Section 12 of this Plan.
          (e) “Code” means the Internal Revenue Code of 1986, as amended from time to time.
          (f) “Common Shares” means the shares of common stock, par value $0.001 per share, of the Company or any security into which such Common Shares may be changed by reason of any transaction or event of the type referred to in Section 11 of this Plan.
          (g) “Company” means BTHC VI, Inc., a Delaware corporation and its successors.
          (h) “Covered Employee” means a Participant who is, or is determined by the Board to be likely to become, a “covered employee” within the meaning of Section 162(m) of the Code (or any successor provision).
          (i) “Date of Grant” means the date specified by the Board on which a grant of Option Rights, Appreciation Rights, Performance Shares, Performance Units or other awards contemplated by Section 9 of this Plan, or a grant or sale of Restricted Stock, Restricted Stock Units, or other awards contemplated by Section 9 of this Plan will become effective (which date will not be earlier than the date on which the Board takes action with respect thereto).
          (j) “Director” means a member of the Board of Directors of the Company.

 


 

          (k) “Effective Date” means the date of approval of the Plan by the Company’s stockholders.
          (l) “Evidence of Award” means an agreement, certificate, resolution or other type or form of writing or other evidence approved by the Board that sets forth the terms and conditions of the awards granted. An Evidence of Award may be in an electronic medium, may be limited to notation on the books and records of the Company and, with the approval of the Board, need not be signed by a representative of the Company or a Participant.
          (m) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder, as such law, rules and regulations may be amended from time to time.
          (n) “Free-Standing Appreciation Right” means an Appreciation Right granted pursuant to Section 5 of this Plan that is not granted in tandem with an Option Right.
          (o) “Incentive Stock Options” means Option Rights that are intended to qualify as “incentive stock options” under Section 422 of the Code or any successor provision.
          (p) “Incumbent Directors” means the individuals who, as of the Effective Date, are Directors of the Company and any individual becoming a Director subsequent to the Effective Date whose election, nomination for election by the Company’s stockholders, or appointment was approved by a vote of at least two-thirds of the then Incumbent Directors (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director, without objection to such nomination), including, without limitation, after consummation of the proposed transaction (the “Transaction”) contemplated by that certain non-binding letter of intent, dated as of April 18, 2007, to which the Company is a party; provided , however , that an individual shall not be an Incumbent Director if such individual’s election or appointment to the Board occurs as a result of an actual or threatened election contest (as described in Rule 14a-12(c) of the Exchange Act) with respect to the election or removal of Directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board.
          (q) “Management Objectives” means the measurable performance objective or objectives established pursuant to this Plan for Participants who have received grants of Performance Shares or Performance Units or, when so determined by the Board, Option Rights, Appreciation Rights, Restricted Stock, Restricted Stock Units, dividend credits and other awards pursuant to this Plan. Management Objectives may be described in terms of Company-wide objectives or objectives that are related to the performance of the individual Participant or of a Subsidiary, division, department or function within the Company or a Subsidiary. The Board may provide, in connection with the setting of the Management Objectives, that any evaluation of performance may include or exclude certain items that may occur during any fiscal year, including, but not limited to the following: (i) asset write downs; (ii) litigation or claim judgments or settlements; (iii) the effect of changes in tax laws, accounting principles, or other laws or provisions affecting reported results; (iv) any reorganization and restructuring programs; (v) extraordinary nonrecurring items as described in Accounting Principles Board Opinion No. 30 and/or in management’s discussion and analysis of financial condition and

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results of operations appearing in the Company’s annual report to stockholders for the applicable year; (vi) acquisitions or divestitures; and (vii) foreign exchange gains and losses. To the extent such inclusions or exclusions affect the awards to Covered Employees, they shall be prescribed in a form that meets the requirements of Section 162(m) of the Code for deductibility and the Management Objectives applicable to any award to a Covered Employee will be based on specified levels of, or relative peer company performance in any one or more of the following objectives, or any combination thereof, as determined by the Board in its sole discretion:
  (i)   Adjusted net earnings
 
  (ii)   Cash flow (including free cash flow)
 
  (iii)   Cost of capital
 
  (iv)   Cost reduction
 
  (v)   Customer service
 
  (vi)   Debt reduction
 
  (vii)   Development milestone achievement
 
  (viii)   Earnings and earnings growth (including earnings per share and earnings before taxes and earnings before interest and taxes)
 
  (ix)   Economic value added
 
  (x)   Establishment of partnerships and collaborations
 
  (xi)   Financing proceeds
 
  (xii)   Gross profit
 
  (xiii)   Inventory management
 
  (xiv)   Market share
 
  (xv)   Market value added
 
  (xvi)   Net income
 
  (xvii)   Operating profit and operating income
 
  (xviii)   Partnership milestone achievement
 
  (xix)   Productivity improvement
 
  (xx)   Profit after taxes
 
  (xxi)   Project execution
 
  (xxii)   Quality
 
  (xxiii)   Recruitment and development of associates
 
  (xxiv)   Reduction of fixed costs
 
  (xxv)   Return on assets and return on net assets
 
  (xxvi)   Return on equity
 
  (xxvii)   Return on invested capital
 
  (xxviii)   Sales and sales growth
 
  (xxix)   Successful start-up of new facility
 
  (xxx)   Successful acquisition/divestiture
 
  (xxxi)   Total stockholder return and improvement of stockholder return
 
  (xxxii)   Unit volume
 
  (xxxiii)   Unit cost
 
  (xxxiv)   Pricing
 
  (xxxv)   Working capital

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     If the Board determines that a change in the business, operations, corporate structure or capital structure of the Company, or the manner in which it conducts its business, or other events or circumstances render the Management Objectives unsuitable, the Board may in its discretion modify such Management Objectives or the related levels of achievement, in whole or in part, as the Board deems appropriate and equitable, except in the case of a Covered Employee where such action would result in the loss of the otherwise available exemption of the award under Section 162(m) of the Code. In such case, the Board will not make any modification of the Management Objectives or the level or levels of achievement with respect to such Covered Employee.
          (r) “Market Value per Share” means, as of any particular date, the closing sales price of the Common Shares or, as determined by the Board, the average closing sales price of the Common Shares over a period of time, either before or after any particular date, of one to ten days, as reported on the Nasdaq Stock Market (including, without limitation, the Nasdaq Global Select Market, the Nasdaq Global Market or the Nasdaq Capital Market, as applicable) or, if not listed on such exchange, on any other national securities exchange on which the Common Shares are listed or, if not listed on any such other national securities exchange, the NASD OTC Bulletin Board or any other quotation facility on which the Common Shares are quoted. If there is no regular trading market for such Common Shares, the Market Value per Share shall be determined by the Board.
          (s) “Non-Employee Director” means a Director who is not an employee of the Company or any Subsidiary.
          (t) “Optionee” means the optionee named in an Evidence of Award evidencing an outstanding Option Right.
          (u) “Option Price” means the purchase price payable on exercise of an Option Right.
          (v) “Option Right” means the right to purchase Common Shares upon exercise of an option granted pursuant to Section 4 of this Plan.
          (w) “Participant” means a person who is selected by the Board to receive benefits under this Plan and who is at the time an officer or other employee of the Company or any one or more of its Subsidiaries, or who has agreed to commence serving in such capacities within 90 days of the Date of Grant, or who is a consultant or other independent contractor, or a Non-Employee Director of the Company or a Subsidiary.
          (x) “Performance Period” means, in respect of a Performance Share or Performance Unit, a period of time established pursuant to Section 8 of this Plan within which the Management Objectives relating to such Performance Share or Performance Unit are to be achieved.
          (y) “Performance Share” means a bookkeeping entry that records the equivalent of one Common Share awarded pursuant to Section 8 of this Plan.

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          (z) “Performance Unit” means a bookkeeping entry awarded pursuant to Section 8 of this Plan that records a unit equivalent to $1.00 or such other value as is determined by the Board.
          (aa) “Plan” means this BTHC VI, Inc. Long-Term Incentive Plan, as may be amended from time to time.
          (bb) “Restricted Stock” means Common Shares granted or sold pursuant to Section 6 of this Plan as to which neither the substantial risk of forfeiture nor the prohibition on transfers has expired.
          (cc) “Restriction Period” means the period of time during which Restricted Stock Units are subject to restrictions, as provided in Section 7 of this Plan.
          (dd) “Restricted Stock Unit” means an award made pursuant to Section 7 of this Plan of the right to receive Common Shares or cash at the end of a specified period.
          (ee) “Spread” means the excess of the Market Value per Share on the date when an Appreciation Right is exercised, or on the date when Option Rights are surrendered in payment of the Option Price of other Option Rights, over the Option Price or Base Price provided for in the related Option Right or Free-Standing Appreciation Right, respectively.
          (ff) “Subsidiary” means a corporation, company or other entity (i) at least 50 percent of whose outstanding shares or securities (representing the right to vote for the election of directors or other managing authority) are, or (ii) which does not have outstanding shares or securities (as may be the case in a partnership, joint venture or unincorporated association), but at least 50 percent of whose ownership interest representing the right generally to make decisions for such other entity is, now or hereafter, owned or controlled, directly or indirectly, by the Company except that for purposes of determining whether any person may be a Participant for purposes of any grant of Incentive Stock Options, “Subsidiary” means any corporation in which at the time the Company owns or controls, directly or indirectly, at least 50 percent of the total combined voting power represented by all classes of stock issued by such corporation.
          (gg) “Tandem Appreciation Right” means an Appreciation Right granted pursuant to Section 5 of this Plan that is granted in tandem with an Option Right.
          (hh) “2007 Stock Split” means the approximately 1-for-1.67 reverse stock split of Common Shares that is expected to occur on or about the Effective Date.
          (ii) “Voting Stock” means securities entitled to vote generally in the election of directors.
     3.  Shares Available Under the Plan.
          (a) Maximum Shares Available Under Plan . Subject to adjustment as provided in Section 11 of this Plan, the number of Common Shares that may be issued or transferred (i) upon the exercise of Option Rights or Appreciation Rights, (ii) in payment of

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Restricted Stock and released from substantial risks of forfeiture thereof, (iii) as Restricted Stock Units, (iv) in payment of Performance Shares or Performance Units that have been earned, (v) as awards contemplated by Section 9 of this Plan, or (vi) in payment of dividend equivalents paid with respect to awards made under the Plan will not exceed in the aggregate 3,035,000 Common Shares (after giving effect to the 2007 Stock Split). Common Shares covered by an award granted under the Plan shall not be counted as used unless and until they are actually issued and delivered to a Participant. Without limiting the generality of the foregoing, the number of Common Shares available under this Plan will be adjusted to account for shares relating to awards that expire, are forfeited, terminated or cancelled without the issuance of Common Shares and to awards settled in cash in lieu of Common Shares. Shares issued under the Plan may be shares of original issuance or treasury shares or a combination of the foregoing.
          (b) Life of Plan Limits .
  (i)   Notwithstanding anything in this Section 3, or elsewhere in this Plan, to the contrary and subject to adjustment as provided in Section 11 of this Plan, the aggregate number of Common Shares actually issued or transferred by the Company upon the exercise of Incentive Stock Options will not exceed 3,035,000 Common Shares (after giving effect to the 2007 Stock Split).
 
  (ii)   Awards will not be granted under Section 9 of the Plan to the extent they would involve the issuance of more than 3,035,000 shares in the aggregate (after giving effect to the 2007 Stock Split).
          (c) Individual Participant Limits . Notwithstanding anything in this Section 3, or elsewhere in this Plan to the contrary, and subject to adjustment as provided in Section 11 of this Plan:
  (i)   No Participant will be granted Option Rights or Appreciation Rights, in the aggregate, for more than 750,000 Common Shares during any calendar year.
 
  (ii)   No Participant will be granted Restricted Stock or Restricted Stock Units that specify Management Objectives, Performance Shares or other awards under Section 9 of this Plan, in the aggregate, for more than 750,000 Common Shares during any calendar year.
 
  (iii)   Notwithstanding any other provision of this Plan to the contrary, in no event will any Participant in any calendar year receive an award of Performance Units having an aggregate maximum value as of their respective Dates of Grant in excess of $3,000,000.
          (d) Impact of Election on the Limit . If, under this Plan, a Participant has elected to give up the right to receive compensation in exchange for Common Shares based on fair market value, such Common Shares will be counted against the number of shares available in Section 3(a) above.

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     4.  Option Rights. The Board may, from time to time and upon such terms and conditions as it may determine, authorize the granting to Participants of options to purchase Common Shares. Each such grant will be subject to all of the requirements contained in the following provisions:
          (a) Each grant will specify the number of Common Shares to which it pertains subject to the limitations set forth in Section 3 of this Plan.
          (b) Each grant will specify an Option Price per share, which may not be less than the Market Value per Share on the Date of Grant.
          (c) Each grant will specify whether the Option Price will be payable (i) in cash or by check acceptable to the Company or by wire transfer of immediately available funds, (ii) by the actual or constructive transfer to the Company of Common Shares owned by the Optionee having a value at the time of exercise equal to the total Option Price (or other consideration authorized pursuant to Section 4(d)), (iii) by a combination of such methods of payment, or (iv) by such other methods as may be approved by the Board.
          (d) The Board may determine, at the Date of Grant, that payment of the Option Price of any Option Right (other than an Incentive Stock Option) may also be made in whole or in part in the form of Restricted Shares or other Common Shares that are forfeitable or subject to restrictions on transfer. Unless otherwise determined by the Board at the Date of Grant, whenever any Option Price is paid in whole or in part by means of any of the forms of consideration specified in this Section 4(d), the Common Shares received upon the exercise of the Option Rights shall be subject to the same risks of forfeiture or restrictions on transfer as may correspond to any that apply to the consideration surrendered; provided , however , that such risks of forfeiture or restrictions on transfer shall apply only to the same number of Common Shares received by the Optionee as applied to the forfeitable or restricted Common Shares surrendered by the Optionee.
          (e) To the extent permitted by law, any grant may provide for deferred payment of the Option Price from the proceeds of sale through a bank or broker on a date satisfactory to the Company of some or all of the shares to which such exercise relates.
          (f) To the extent permitted by law, any grant may provide for payment of the Option Price, at the election of the Optionee, in installments, with or without interest, upon terms determined by the Board.
          (g) Successive grants may be made to the same Participant whether or not any Option Rights previously granted to such Participant remain unexercised.
          (h) Each grant will specify the period or periods of continuous service by the Optionee with the Company or any Subsidiary that is necessary before the Option Rights or installments thereof will become exercisable. A grant of Option Rights may provide for the earlier exercise of such Option Rights in the event of the retirement, death or disability of a Participant or a Change in Control.

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          (i) Any grant of Option Rights may specify Management Objectives that must be achieved as a condition to the exercise of such rights.
          (j) Option Rights granted under this Plan may be (i) options, including, without limitation, Incentive Stock Options, that are intended to qualify under particular provisions of the Code, (ii) options that are not intended so to qualify, or (iii) combinations of the foregoing. Incentive Stock Options may only be granted to Participants who meet the definition of “employees” under Section 3401(c) of the Code.
          (k) The exercise of an Option Right will result in the cancellation on a share- for-share basis of any Tandem Appreciation Right authorized under Section 5 of this Plan.
          (l) No Option Right will be exercisable more than 10 years from the Date of Grant.
          (m) The Board may, at the Date of Grant of any Option Rights (other than Incentive Stock Options), provide for the payment of dividend equivalents to the Optionee on either a current or deferred or contingent basis or may provide that such equivalents shall be credited against the Option Price.
          (n) Each grant of Option Rights will be evidenced by an Evidence of Award. Each Evidence of Award shall be subject to this Plan and shall contain such terms and provisions, consistent with this Plan, as the Board may approve.
     5.  Appreciation Rights.
          (a) The Board may also authorize the granting (i) to any Optionee, of Tandem Appreciation Rights in respect of Option Rights granted hereunder, and (ii) to any Participant, of Free-Standing Appreciation Rights. A Tandem Appreciation Right will be a right of the Optionee, exercisable by surrender of the related Option Right, to receive from the Company an amount determined by the Board, which will be expressed as a percentage of the Spread (not exceeding 100 percent) at the time of exercise. Tandem Appreciation Rights may be granted at any time prior to the exercise or termination of the related Option Rights; provided , however , that a Tandem Appreciation Right awarded in relation to an Incentive Stock Option must be granted concurrently with such Incentive Stock Option. A Free-Standing Appreciation Right will be a right of the Participant to receive from the Company an amount determined by the Board, which will be expressed as a percentage of the Spread (not exceeding 100 percent) at the time of exercise.
          (b) Each grant of Appreciation Rights will be subject to all of the requirements contained in the following provisions:
  (i)   Any grant may specify that the amount payable on exercise of an Appreciation Right may be paid by the Company in cash, in Common Shares or in any combination thereof and may either grant to the Participant or retain in the Board the right to elect among those alternatives.

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  (ii)   Any grant may specify that the amount payable on exercise of an Appreciation Right may not exceed a maximum specified by the Board at the Date of Grant.
 
  (iii)   Any grant may specify waiting periods before exercise and permissible exercise dates or periods.
 
  (iv)   Any grant may specify that such Appreciation Right may be exercised only in the event of, or earlier in the event of, the retirement, death or disability of a Participant or a Change in Control.
 
  (v)   Any grant of Appreciation Rights may specify Management Objectives that must be achieved as a condition of the exercise of such Appreciation Rights.
 
  (vi)   To the extent permitted by law, any grant may provide for the payment to the Participant of dividend equivalents thereon in cash or Common Shares on a current, deferred or contingent basis.
 
  (vii)   Each grant of Appreciation Rights will be evidenced by an Evidence of Award, which Evidence of Award will describe such Appreciation Rights, identify the related Option Rights (if applicable), and contain such other terms and provisions, consistent with this Plan, as the Board may approve.
          (c) Any grant of Tandem Appreciation Rights will provide that such Tandem Appreciation Rights may be exercised only at a time when the related Option Right is also exercisable and at a time when the Spread is positive, and by surrender of the related Option Right for cancellation. Successive grants of Tandem Appreciation Rights may be made to the same Participant regardless of whether any Tandem Appreciation Rights previously granted to the Participant remain unexercised.
          (d) Regarding Free-Standing Appreciation Rights only:
  (i)   Each grant will specify in respect of each Free-Standing Appreciation Right a Base Price, which may not be less than the Market Value per Share on the Date of Grant;
 
  (ii)   Successive grants may be made to the same Participant regardless of whether any Free-Standing Appreciation Rights previously granted to the Participant remain unexercised; and
 
  (iii)   No Free-Standing Appreciation Right granted under this Plan may be exercised more than 10 years from the Date of Grant.

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     6.  Restricted Stock. The Board may also authorize the grant or sale of Restricted Stock to Participants. Each such grant or sale will be subject to all of the requirements contained in the following provisions:
          (a) Each such grant or sale will constitute an immediate transfer of the ownership of Common Shares to the Participant in consideration of the performance of services, entitling such Participant to voting, dividend and other ownership rights, but subject to the substantial risk of forfeiture and restrictions on transfer hereinafter referred to.
          (b) Each such grant or sale may be made without additional consideration or in consideration of a payment by such Participant that is less than the Market Value per Share at the Date of Grant.
          (c) Each such grant or sale will provide that the Restricted Stock covered by such grant or sale that vests upon the passage of time will be subject to a “substantial risk of forfeiture” within the meaning of Section 83 of the Code for a period to be determined by the Board at the Date of Grant, or may provide that the Restricted Stock will vest upon the achievement of Management Objectives (as provided in Section 6(e) below); provided , however , that if Restricted Stock vests based on the passage of time rather than the achievement of Management Objectives, the period of time will be no shorter than three years, except that the restrictions may be removed on an annual, ratable basis during the three year period.
          (d) Each such grant or sale will provide that during the period for which such substantial risk of forfeiture is to continue, the transferability of the Restricted Stock will be prohibited or restricted in the manner and to the extent prescribed by the Board at the Date of Grant (which restrictions may include, without limitation, rights of repurchase or first refusal in the Company or provisions subjecting the Restricted Stock to a continuing substantial risk of forfeiture in the hands of any transferee).
          (e) Any grant of Restricted Stock may specify Management Objectives that, if achieved, will result in termination or early termination of the restrictions applicable to such Restricted Stock; provided , however , that notwithstanding subparagraph (c) above, restrictions relating to Restricted Stock that vests upon the achievement of Management Objectives may not terminate sooner than one year from the Date of Grant. Each grant may specify in respect of such Management Objectives a minimum acceptable level of achievement and may set forth a formula for determining the number of shares of Restricted Stock on which restrictions will terminate if performance is at or above the minimum level, but falls short of maximum achievement of the specified Management Objectives. The grant of Restricted Stock will specify that, before the termination or early termination of restrictions applicable to such Restricted Stock, the Board must determine that the Management Objectives have been satisfied; provided , however , that notwithstanding Section 6(c) above, the substantial risk of forfeiture relating to Restricted Stock that vests upon the achievement of Management Objections may not terminate sooner than one year from the Date of Grant.
          (f) Notwithstanding anything to the contrary contained in this Plan, any grant or sale of Restricted Stock may provide for the earlier lapse of the substantial risk of

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forfeiture in the event of the retirement, death or disability of a Participant or a Change in Control.
          (g) Any such grant or sale of Restricted Stock may require that any or all dividends or other distributions paid thereon during the period of such restrictions be automatically deferred and reinvested in additional shares of Restricted Stock, which may be subject to the same restrictions as the underlying award.
          (h) Each grant or sale of Restricted Stock will be evidenced by an Evidence of Award and will contain such terms and provisions, consistent with this Plan, as the Board may approve. Unless otherwise directed by the Board, all certificates representing shares of Restricted Stock will be held in custody by the Company until all restrictions thereon will have lapsed, together with a stock power or powers executed by the Participant in whose name such certificates are registered, endorsed in blank and covering such Shares.
     7.  Restricted Stock Units. The Board may also authorize the granting or sale of Restricted Stock Units to Participants. Each such grant or sale will be subject to all of the requirements contained in the following provisions:
          (a) Each such grant or sale will constitute the agreement by the Company to deliver Common Shares or cash to the Participant in the future in consideration of the performance of services, but subject to the fulfillment of such conditions (which may include the achievement of Management Objectives) during the Restriction Period as the Board may specify. If a grant of Restricted Stock Units specifies that the Restriction Period will terminate upon the achievement of Management Objectives, then, notwithstanding anything to the contrary contained in subparagraph (c) below, such Restriction Period may not terminate sooner than one year from the Date of Grant. Each grant may specify in respect of such Management Objectives a minimum acceptable level of achievement and may set forth a formula for determining the number of shares of Restricted Stock Units on which restrictions will terminate if performance is at or above the minimum level, but falls short of maximum achievement of the specified Management Objectives. The grant of such Restricted Stock Units will specify that, before the termination or early termination of restrictions applicable to such Restricted Stock Units, the Board must determine that the Management Objectives have been satisfied.
          (b) Each such grant or sale may be made without additional consideration or in consideration of a payment by such Participant that is less than the Market Value per Share at the Date of Grant.
          (c) If the Restriction Period lapses only by the passage of time rather than the achievement of Management Objectives as provided in subparagraph (a) above. Each such grant or sale will be subject to a Restriction Period of not less than one year.
          (d) Notwithstanding anything to the contrary contained in this Plan, any grant or sale of Restricted Stock Units may provide for the earlier lapse or other modification of the Restriction Period in the event of the retirement, death or disability of a Participant or a Change in Control.

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          (e) During the Restriction Period, the Participant will have no right to transfer any rights under his or her award and will have no rights of ownership in the Restricted Stock Units and will have no right to vote them, but the Board may at the Date of Grant, authorize the payment of dividend equivalents on such Restricted Stock Units on either a current or deferred or contingent basis, either in cash or in additional Common Shares.
          (f) Each grant or sale will specify the time and manner of payment of the Restricted Stock Units that have been earned. Any grant or sale may specify that the amount payable with respect thereto may be paid by the Company in cash, in Common Shares or in any combination thereof and may either grant to the Participant or retain in the Board the right to elect among those alternatives.
          (g) Each grant or sale of Restricted Stock Units will be evidenced by an Evidence of Award and will contain such terms and provisions, consistent with this Plan, as the Board may approve.
     8.  Performance Shares and Performance Units. The Board may also authorize the granting of Performance Shares and Performance Units that will become payable to a Participant upon achievement of specified Management Objectives during the Performance Period. Each such grant will be subject to all of the requirements contained in the following provisions:
          (a) Each grant will specify the number of Performance Shares or Performance Units to which it pertains, which number may be subject to adjustment to reflect changes in compensation or other factors; provided , however , that no such adjustment will be made in the case of a Covered Employee where such action would result in the loss of the otherwise available exemption of the award under Section 162(m) of the Code.
          (b) The Performance Period with respect to each Performance Share or Performance Unit will be such period of time (not less than three years) as will be determined by the Board at the time of grant, which may be subject to earlier lapse or other modification in the event of the retirement, death or disability of a Participant or a Change in Control.
          (c) Any grant of Performance Shares or Performance Units will specify Management Objectives which, if achieved, will result in payment or early payment of the award, and each grant may specify in respect of such specified Management Objectives a level or levels of achievement and will set forth a formula for determining the number of Performance Shares or Performance Units that will be earned if performance is at or above the minimum level or levels, but falls short of maximum achievement of the specified Management Objectives. The grant of Performance Shares or Performance Units will specify that, before the Performance Shares or Performance Units will be earned and paid, the Board must determine that the Management Objectives have been satisfied.
          (d) Each grant will specify the time and manner of payment of Performance Shares or Performance Units that have been earned. Any grant may specify that the amount payable with respect thereto may be paid by the Company in cash, in Common Shares or in any

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combination thereof and may either grant to the Participant or retain in the Board the right to elect among those alternatives.
          (e) Any grant of Performance Shares may specify that the amount payable with respect thereto may not exceed a maximum specified by the Board at the Date of Grant. Any grant of Performance Units may specify that the amount payable or the number of Common Shares issued with respect thereto may not exceed maximums specified by the Board at the Date of Grant.
          (f) The Board may at the Date of Grant of Performance Shares, provide for the payment of dividend equivalents to the holder thereof on either a current or deferred or contingent basis, either in cash or in additional Common Shares.
          (g) Each grant of Performance Shares or Performance Units will be evidenced by an Evidence of Award and will contain such other terms and provisions, consistent with this Plan, as the Board may approve.
     9.  Other Awards.
          (a) The Board may, subject to limitations under applicable law, grant to any Participant such other awards that may be denominated or payable in, valued in whole or in part by reference to, or otherwise based on, or related to, Common Shares or factors that may influence the value of such shares, including, without limitation, convertible or exchangeable debt securities, other rights convertible or exchangeable into Common Shares, purchase rights for Common Shares, awards with value and payment contingent upon performance of the Company or specified Subsidiaries, affiliates or other business units thereof or any other factors designated by the Board, and awards valued by reference to the book value of Common Shares or the value of securities of, or the performance of specified Subsidiaries or affiliates or other business units of the Company. The Board shall determine the terms and conditions of such awards. Common Shares delivered pursuant to an award in the nature of a purchase right granted under this Section 9 shall be purchased for such consideration, paid for at such time, by such methods, and in such forms, including, without limitation, cash, Common Shares, other awards, notes or other property, as the Board shall determine.
          (b) Cash awards, as an element of or supplement to any other award granted under this Plan, may also be granted pursuant to this Section 9 of this Plan.
          (c) The Board may grant Common Shares as a bonus, or may grant other awards in lieu of obligations of the Company or a Subsidiary to pay cash or deliver other property under this Plan or under other plans or compensatory arrangements, subject to such terms as shall be determined by the Board.
     10.  Administration of the Plan.
          (a) This Plan will be administered by the Board, which may from time to time delegate all or any part of its authority under this Plan to a committee of the Board (or a subcommittee thereof) consisting of non-employee Directors, as constituted from time to time.

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To the extent of any such delegation, references in this Plan to the Board will be deemed to be references to such committee or subcommittee.
          (b) The interpretation and construction by the Board of any provision of this Plan or of any agreement, notification or document evidencing the grant of Option Rights, Appreciation Rights, Restricted Stock, Restricted Stock Units, Performance Shares, Performance Units or other awards pursuant to Section 9 of this Plan and any determination by the Board pursuant to any provision of this Plan or of any such agreement, notification or document will be final and conclusive.
          (c) The Board or, to the extent of any delegation as provided in Section 10(a), the committee, may delegate to one or more of its members or to one or more officers of the Company, or to one or more agents or advisors, such administrative duties or powers as it may deem advisable, and the Board, the committee, or any person to whom duties or powers have been delegated as aforesaid, may employ one or more persons to render advice with respect to any responsibility the Board, the committee or such person may have under the Plan. The Board or the committee may, by resolution, authorize one or more officers of the Company to do one or both of the following on the same basis as the Board or the committee: (i) designate employees to be recipients of awards under this Plan; (ii) determine the size of any such awards; provided , however , that (A) the Board or the Committee shall not delegate such responsibilities to any such officer for awards granted to an employee who is an executive officer or any person subject to Section 162(m) of the Code; (B) the resolution providing for such authorization sets forth the total number of Common Shares such officer(s) may grant; and (iii) the officer(s) shall report periodically to the Board or the committee, as the case may be, regarding the nature and scope of the awards granted pursuant to the authority delegated.
     11.  Adjustments. The Board shall make or provide for such adjustments in the numbers of Common Shares authorized under the Plan, subject to limits contained in Section 3 of the Plan, and covered by outstanding Option Rights, Appreciation Rights, Restricted Stock Units, Performance Shares and Performance Units granted hereunder and, if applicable, in the number of Common Shares covered by other awards granted pursuant to Section 9 hereof, in the Option Price and Base Price, and in the kind of shares covered thereby, as the Board, in its sole discretion may determine is equitably required to prevent dilution or enlargement of the rights of Participants or Optionees that otherwise would result from (a) any stock dividend, extraordinary dividend, stock split, combination of shares, recapitalization or other change in the capital structure of the Company, or (b) any Change in Control, merger, consolidation, spin-off, split- off, spin-out, split-up, reorganization, partial or complete liquidation or other distribution of assets, issuance of rights or warrants to purchase securities, or (c) any other corporate transaction or event having an effect similar to any of the foregoing; provided , however , that no further adjustment shall be made pursuant to this Section 11 after the Effective Date in connection with the 2007 Stock Split. Moreover, in the event of any such transaction or event, the Board, in its discretion, may provide in substitution for any or all outstanding awards under this Plan such alternative consideration (including cash), if any, as it may determine to be equitable in the circumstances and may require in connection therewith the surrender of all awards so replaced. The Board shall also make or provide for such adjustments in the numbers of shares specified in Section 3 of this Plan as the Board in its sole discretion, exercised in good faith, may determine is appropriate to reflect any transaction or event described in this Section 11; provided , however ,

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that any such adjustment to the number specified in Section 3(b) will be made only if and to the extent that (i) such adjustment would not cause any option intended to qualify as an Incentive Stock Option to fail so to qualify and (ii) such adjustment would not result in negative tax consequences under Section 409A of the Code. Without limiting the generality of the foregoing, in the event that the Company issues warrants or other rights to acquire Common Shares on a pro rata basis to all stockholders, the Board shall make such adjustments in the number of Common Shares authorized under the Plan and in the limits contained herein as it may deem to be equitable, including, without limitation, proportionately increasing the number of authorized Common Shares or any such limit.
     12.  Change in Control. For purposes of this Plan, except as may be otherwise prescribed by the Board in an Evidence of Award made under this Plan, a “Change in Control” shall be deemed to have occurred upon the occurrence of any of the following events:
          (a) any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a “Person”) is or becomes the beneficial owner (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 50% or more of the combined voting power of the then-outstanding Voting Stock of the Company; provided , however , that:
  (i)   for purposes of this Section 12(a), the following acquisitions shall not constitute a Change in Control: (A) any acquisition of Voting Stock of the Company directly from the Company that is approved by a majority of the Incumbent Directors, (B) any acquisition of Voting Stock of the Company by the Company or any Subsidiary, (C) any acquisition of Voting Stock of the Company by the trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any Subsidiary, and (D) any acquisition of Voting Stock of the Company by any Person pursuant to a Business Transaction that complies with clauses (i), (ii) and (iii) of Section 12(c) below;
 
  (ii)   a Change in Control will not be deemed to have occurred if a Person is or becomes the beneficial owner of 50% or more of the Voting Stock of the Company as a result of a reduction in the number of shares of Voting Stock of the Company outstanding pursuant to a transaction or series of transactions that is approved by a majority of the Incumbent Directors unless and until such Person thereafter becomes the beneficial owner of any additional shares of Voting Stock of the Company representing 1% or more of the then-outstanding Voting Stock of the Company, other than as a result of a stock dividend, stock split or similar transaction effected by the Company in which all holders of Voting Stock are treated equally;
 
  (iii)   if at least a majority of the Incumbent Directors determine in good faith that a Person has acquired beneficial ownership of 50% or more of the Voting Stock of the Company inadvertently, and such Person divests as promptly as practicable but no later than the date, if any, set by the Incumbent Board a sufficient number of shares so that such Person beneficially owns less than 50% of the Voting Stock of the Company, then

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      no Change in Control shall have occurred as a result of such Person’s acquisition;
 
  (iv)   the consummation of the Transaction shall not constitute a Change in Control; or
          (b) a majority of the Board ceases to be comprised of Incumbent Directors; or
          (c) the consummation of a reorganization, merger or consolidation, or sale or other disposition of all or substantially all of the assets of the Company or the acquisition of the stock or assets of another corporation, or other transaction (each, a “Business Transaction”), unless, in each case, immediately following such Business Transaction (i) the Voting Stock of the Company outstanding immediately prior to such Business Transaction continues to represent (either by remaining outstanding or by being converted into Voting Stock of the surviving entity or any parent thereof), more than 60% of the combined voting power of the then outstanding shares of Voting Stock of the entity resulting from such Business Transaction (including, without limitation, an entity which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries), (ii) no Person (other than the Company, such entity resulting from such Business Transaction, or any employee benefit plan (or related trust) sponsored or maintained by the Company, any Subsidiary or such entity resulting from such Business Transaction) beneficially owns, directly or indirectly, 50% or more of the combined voting power of the then outstanding shares of Voting Stock of the entity resulting from such Business Transaction, and (iii) at least a majority of the members of the Board of Directors of the entity resulting from such Business Transaction were Incumbent Directors at the time of the execution of the initial agreement or of the action of the Board providing for such Business Transaction; or
          (d) approval by the stockholders of the Company of a complete liquidation or dissolution of the Company, except pursuant to a Business Transaction that complies with clauses (i), (ii) and (iii) of Section 12(c).
     13.  Non U.S. Participants. In order to facilitate the making of any grant or combination of grants under this Plan, the Board may provide for such special terms for awards to Participants who are foreign nationals or who are employed by the Company or any Subsidiary outside of the United States of America or who provide services to the Company under an agreement with a foreign nation or agency, as the Board may consider necessary or appropriate to accommodate differences in local law, tax policy or custom. Moreover, the Board may approve such supplements to or amendments, restatements or alternative versions of this Plan (including, without limitation, sub-plans) as it may consider necessary or appropriate for such purposes, without thereby affecting the terms of this Plan as in effect for any other purpose, and the Secretary or other appropriate officer of the Company may certify any such document as having been approved and adopted in the same manner as this Plan. No such special terms, supplements, amendments or restatements, however, will include any provisions that are inconsistent with the terms of this Plan as then in effect unless this Plan could have been amended to eliminate such inconsistency without further approval by the stockholders of the Company.

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     14.  Transferability.
          (a) Except as otherwise determined by the Board, no Option Right, Appreciation Right or other derivative security granted under the Plan shall be transferable by the Participant except by will or the laws of descent and distribution. Except as otherwise determined by the Board, Option Rights and Appreciation Rights will be exercisable during the Participant’s lifetime only by him or her or, in the event of the Participant’s legal incapacity to do so, by his or her guardian or legal representative acting on behalf of the Participant in a fiduciary capacity under state law and/or court supervision.
          (b) The Board may specify at the Date of Grant that part or all of the Common Shares that are (i) to be issued or transferred by the Company upon the exercise of Option Rights or Appreciation Rights, upon the termination of the Restriction Period applicable to Restricted Stock Units or upon payment under any grant of Performance Shares or Performance Units or (ii) no longer subject to the substantial risk of forfeiture and restrictions on transfer referred to in Section 6 of this Plan, will be subject to further restrictions on transfer.
     15.  Withholding Taxes. To the extent that the Company is required to withhold federal, state, local or foreign taxes in connection with any payment made or benefit realized by a Participant or other person under this Plan, and the amounts available to the Company for such withholding are insufficient, it will be a condition to the receipt of such payment or the realization of such benefit that the Participant or such other person make arrangements satisfactory to the Company for payment of the balance of such taxes required to be withheld, which arrangements (in the discretion of the Board) may include relinquishment of a portion of such benefit. If a Participant’s benefit is to be received in the form of Common Shares, and such Participant fails to make arrangements for the payment of tax, the Company shall withhold such Common Shares having a value equal to the amount required to be withheld. Notwithstanding the foregoing, when a Participant is required to pay the Company an amount required to be withheld under applicable income and employment tax laws, the Participant may elect to satisfy the obligation, in whole or in part, by electing to have withheld, from the shares required to be delivered to the Participant, Common Shares having a value equal to the amount required to be withheld (except in the case of Restricted Stock where an election under Section 83(b) of the Code has been made), or by delivering to the Company other Common Shares held by such Participant. The shares used for tax withholding will be valued at an amount equal to the Market Value per Share of such Common Shares on the date the benefit is to be included in Participant’s income. In no event shall the Market Value per Share of the Common Shares to be withheld and/or delivered pursuant to this Section to satisfy applicable withholding taxes in connection with the benefit exceed the minimum amount of taxes required to be withheld. Participants shall also make such arrangements as the Company may require for the payment of any withholding tax obligation that may arise in connection with the disposition of Common Shares acquired upon the exercise of Option Rights.
     16.  Compliance with Section 409A of the Code.
          (a) To the extent applicable, it is intended that this Plan and any grants made hereunder comply with the provisions of Section 409A of the Code. This Plan and any grants made hereunder shall be administrated in a manner consistent with this intent, and any provision

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that would cause this Plan or any grant made hereunder to fail to satisfy Section 409A of the Code shall have no force and effect until amended to comply with Section 409A of the Code (which amendment may be retroactive to the extent permitted by Section 409A of the Code and may be made by the Company without the consent of Participants). Any reference in this Plan to Section 409A of the Code will also include any proposed, temporary or final regulations, or any other guidance, promulgated with respect to such Section by the U.S. Department of the Treasury or the Internal Revenue Service.
          (b) In order to determine for purposes of Section 409A of the Code whether a Participant is employed by a member of the Company’s controlled group of corporations under Section 414(b) of the Code (or by a member of a group of trades or businesses under common control with the Company under Section 414(c) of the Code) and, therefore, whether the Common Shares that are or have been purchased by or awarded under this Plan to the Participant are shares of “service recipient” stock within the meaning of Section 409A of the Code:
  (i)   In applying Code Section 1563(a)(1), (2) and (3) for purposes of determining the Company’s controlled group under Section 414(b) of the Code, the language “at least 50 percent” is to be used instead of “at least 80 percent” each place it appears in Code Section 1563(a)(1), (2) and (3), and
 
  (ii)   In applying Treasury Regulation Section 1.414(c)-2 for purposes of determining trades or businesses under common control with the Company for purposes of Section 414(c) of the Code, the language “at least 50 percent” is to be used instead of “at least 80 percent” each place it appears in Treasury Regulation Section 1.414(c)-2.
     17.  Amendments.
          (a) The Board may at any time and from time to time amend this Plan in whole or in part; provided , however , that if an amendment to this Plan (i) would materially increase the benefits accruing to participants under this Plan, (ii) would materially increase the number of securities which may be issued under this Plan, (iii) would materially modify the requirements for participation in this Plan or (iv) must otherwise be approved by the stockholders of the Company in order to comply with applicable legal requirements or the requirements of the principal national securities exchange upon which the Common Shares are traded or quoted, then, such amendment will be subject to stockholder approval and will not be effective unless and until such approval has been obtained.
          (b) The Board will not, without the further approval of the stockholders of the Company, authorize the amendment of any outstanding Option Right to reduce the Option Price. Furthermore, no Option Right will be cancelled and replaced with awards having a lower Option Price without further approval of the stockholders of the Company. This Section 17(b) is intended to prohibit the repricing of “underwater” Option Rights and will not be construed to prohibit the adjustments provided for in Section 11 of this Plan.

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          (c) If permitted by Section 409A of the Code, in case of termination of employment by reason of death, disability or normal or early retirement, or in the case of unforeseeable emergency or other special circumstances, of a Participant who holds an Option Right or Appreciation Right not immediately exercisable in full, or any shares of Restricted Stock as to which the substantial risk of forfeiture or the prohibition or restriction on transfer has not lapsed, or any Restricted Stock Units as to which the Restriction Period has not been completed, or any Performance Shares or Performance Units which have not been fully earned, or any other awards made pursuant to Section 9 subject to any vesting schedule or transfer restriction, or who holds Common Shares subject to any transfer restriction imposed pursuant to Section 14(b) of this Plan, the Board may, in its sole discretion, accelerate the time at which such Option Right, Appreciation Right or other award may be exercised or the time at which such substantial risk of forfeiture or prohibition or restriction on transfer will lapse or the time when such Restriction Period will end or the time at which such Performance Shares or Performance Units will be deemed to have been fully earned or the time when such transfer restriction will terminate or may waive any other limitation or requirement under any such award.
          (d) Subject to Section 17(b) hereof, the Board may amend the terms of any award theretofore granted under this Plan prospectively or retroactively, except in the case of a Covered Employee where such action would result in the loss of the otherwise available exemption of the award under Section 162(m) of the Code. In such case, the Board will not make any modification of the Management Objectives or the level or levels of achievement with respect to such Covered Employee. Subject to Section 11 above, no such amendment shall impair the rights of any Participant without his or her consent. The Board may, in its discretion, terminate this Plan at any time. Termination of this Plan will not affect the rights of Participants or their successors under any awards outstanding hereunder and not exercised in full on the date of termination.
     18.  Governing Law. The Plan and all grants and awards and actions taken thereunder shall be governed by and construed in accordance with the internal substantive laws of the State of Delaware.
     19.  Effective Date/Termination. This Plan will be effective as of the Effective Date. No grant will be made under this Plan more than 10 years after the Effective Date, but all grants made on or prior to such date will continue in effect thereafter subject to the terms thereof and of this Plan.
     20.  Miscellaneous Provisions.
          (a) The Company will not be required to issue any fractional Common Shares pursuant to this Plan. The Board may provide for the elimination of fractions or for the settlement of fractions in cash.
          (b) This Plan will not confer upon any Participant any right with respect to continuance of employment or other service with the Company or any Subsidiary, nor will it interfere in any way with any right the Company or any Subsidiary would otherwise have to terminate such Participant’s employment or other service at any time.

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          (c) To the extent that any provision of this Plan would prevent any Option Right that was intended to qualify as an Incentive Stock Option from qualifying as such, that provision will be null and void with respect to such Option Right. Such provision, however, will remain in effect for other Option Rights and there will be no further effect on any provision of this Plan.
          (d) Any Evidence of Award may provide, in the event that the Participant engages in any activity that is detrimental to the Company (as such activity may be defined in any Evidence of Award): (i) for the forfeiture of any award granted under the Plan, (ii) that the Participant return to the Company any Common Shares that the Participant has not disposed of that were offered pursuant to the Plan, and/or (iii) that the Participant pay to the Company in cash the difference between any amount actually paid by a Participant for any Common Shares received under the Plan that the Participant has disposed of and the Market Value per Share of the Common Shares on the date the Participant acquired the Common Shares under the Plan.
          (e) No award under this Plan may be exercised by the holder thereof if such exercise, and the receipt of cash or stock thereunder, would be, in the opinion of counsel selected by the Board, contrary to law or the regulations of any duly constituted authority having jurisdiction over this Plan.
          (f) Absence on leave approved by a duly constituted officer of the Company or any of its Subsidiaries shall not be considered interruption or termination of service of any employee for any purposes of this Plan or awards granted hereunder, except that no awards may be granted to an employee while he or she is absent on leave.
          (g) No Participant shall have any rights as a stockholder with respect to any shares subject to awards granted to him or her under this Plan prior to the date as of which he or she is actually recorded as the holder of such shares upon the stock records of the Company.
          (h) The Board may condition the grant of any award or combination of awards authorized under this Plan on the surrender or deferral by the Participant of his or her right to receive a cash bonus or other compensation otherwise payable by the Company or a Subsidiary to the Participant.
          (i) Participants shall provide the Company with a written election form setting forth the name and contact information of the person who will have beneficial ownership rights upon the death of the Participant.
          (j) If any provision of this Plan is or becomes invalid, illegal or unenforceable in any jurisdiction, or would disqualify this Plan or any award under any law deemed applicable by the Board, such provision shall be construed or deemed amended or limited in scope to conform to applicable laws or, in the discretion of the Board, it shall be stricken and the remainder of this Plan shall remain in full force and effect.
Approved by Stockholders — June 1, 2007
Adopted by the Board — May 9, 2007

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EXHIBIT 10.11
BTHC VI, INC.
EQUITY INCENTIVE COMPENSATION PLAN
     1.  Purpose. The purpose of this Equity Incentive Compensation Plan is to attract and retain officers, other employees, Directors, consultants and other independent contractors of BTHC VI, Inc., a Delaware corporation (the “Company”), and its Subsidiaries and to provide to such persons incentives and rewards for performance.
     2.  Definitions. As used in this Plan,
          (a) “Appreciation Right” means a right granted pursuant to Section 5 of this Plan, and will include both Free-Standing Appreciation Rights and Tandem Appreciation Rights.
          (b) “Base Price” means the price to be used as the basis for determining the Spread upon the exercise of a Free-Standing Appreciation Right or a Tandem Appreciation Right.
          (c) “Board” means the Board of Directors of the Company and, to the extent of any delegation by the Board to a committee (or subcommittee thereof) pursuant to Section 10 of this Plan, such committee (or subcommittee).
          (d) “Change in Control” has the meaning set forth in Section 12 of this Plan.
          (e) “Code” means the Internal Revenue Code of 1986, as amended from time to time.
          (f) “Common Shares” means the shares of common stock, par value $0.001 per share, of the Company or any security into which such Common Shares may be changed by reason of any transaction or event of the type referred to in Section 11 of this Plan.
          (g) “Company” means BTHC VI, Inc., a Delaware corporation and its successors.
          (h) “Date of Grant” means the date specified by the Board on which a grant of Option Rights, Appreciation Rights, Performance Shares, Performance Units or other awards contemplated by Section 9 of this Plan, or a grant or sale of Restricted Stock, Restricted Stock Units, or other awards contemplated by Section 9 of this Plan will become effective (which date will not be earlier than the date on which the Board takes action with respect thereto).
          (i) “Director” means a member of the Board of Directors of the Company.
          (j) “Effective Date” means the date of approval of the Plan by the Company’s Board of Directors.
          (k) “Evidence of Award” means an agreement, certificate, resolution or other type or form of writing or other evidence approved by the Board that sets forth the terms and

 


 

conditions of the awards granted. An Evidence of Award may be in an electronic medium, may be limited to notation on the books and records of the Company and, with the approval of the Board, need not be signed by a representative of the Company or a Participant.
          (l) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder, as such law, rules and regulations may be amended from time to time.
          (m) “Free-Standing Appreciation Right” means an Appreciation Right granted pursuant to Section 5 of this Plan that is not granted in tandem with an Option Right.
          (n) “Incumbent Directors” means the individuals who, as of the Effective Date, are Directors of the Company and any individual becoming a Director subsequent to the Effective Date whose election, nomination for election by the Company’s stockholders, or appointment was approved by a vote of at least two-thirds of the then Incumbent Directors (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director, without objection to such nomination), including, without limitation, after consummation of the proposed transaction (the “Transaction”) contemplated by that certain non-binding letter of intent, dated as of April 18, 2007, to which the Company is a party; provided , however , that an individual shall not be an Incumbent Director if such individual’s election or appointment to the Board occurs as a result of an actual or threatened election contest (as described in Rule 14a-12(c) of the Exchange Act) with respect to the election or removal of Directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board.
          (o) “Management Objectives” means the measurable performance objective or objectives established pursuant to this Plan for Participants who have received grants of Performance Shares or Performance Units or, when so determined by the Board, Option Rights, Appreciation Rights, Restricted Stock, Restricted Stock Units, dividend credits and other awards pursuant to this Plan. Management Objectives may be described in terms of Company-wide objectives or objectives that are related to the performance of the individual Participant or of a Subsidiary, division, department or function within the Company or a Subsidiary. The Board may provide, in connection with the setting of the Management Objectives, that any evaluation of performance may include or exclude certain items that may occur during any fiscal year, including, but not limited to the following: (i) asset write downs; (ii) litigation or claim judgments or settlements; (iii) the effect of changes in tax laws, accounting principles, or other laws or provisions affecting reported results; (iv) any reorganization and restructuring programs; (v) extraordinary nonrecurring items as described in Accounting Principles Board Opinion No. 30 and/or in management’s discussion and analysis of financial condition and results of operations appearing in the Company’s annual report to stockholders for the applicable year; (vi) acquisitions or divestitures; and (vii) foreign exchange gains and losses. It is intended generally that the Management Objectives applicable to any award will be based on specified levels of, or relative peer company performance in any one or more of the following objectives, or any combination thereof, as determined by the Board in its sole discretion:
  (i)   Adjusted net earnings
 
  (ii)   Cash flow (including free cash flow)

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  (iii)   Cost of capital
 
  (iv)   Cost reduction
 
  (v)   Customer service
 
  (vi)   Debt reduction
 
  (vii)   Development milestone achievement
 
  (viii)   Earnings and earnings growth (including earnings per share and earnings before taxes and earnings before interest and taxes)
 
  (ix)   Economic value added
 
  (x)   Establishment of partnerships and collaborations
 
  (xi)   Financing proceeds
 
  (xii)   Gross profit
 
  (xiii)   Inventory management
 
  (xiv)   Market share
 
  (xv)   Market value added
 
  (xvi)   Net income
 
  (xvii)   Operating profit and operating income
 
  (xviii)   Partnership milestone achievement
 
  (xix)   Productivity improvement
 
  (xx)   Profit after taxes
 
  (xxi)   Project execution
 
  (xxii)   Quality
 
  (xxiii)   Recruitment and development of associates
 
  (xxiv)   Reduction of fixed costs
 
  (xxv)   Return on assets and return on net assets
 
  (xxvi)   Return on equity
 
  (xxvii)   Return on invested capital
 
  (xxviii)   Sales and sales growth
 
  (xxix)   Successful start-up of new facility
 
  (xxx)   Successful acquisition/divestiture
 
  (xxxi)   Total stockholder return and improvement of stockholder return
 
  (xxxii)   Unit volume
 
  (xxxiii)   Unit cost
 
  (xxxiv)   Pricing
 
  (xxxv)   Working capital
     If the Board determines that a change in the business, operations, corporate structure or capital structure of the Company, or the manner in which it conducts its business, or other events or circumstances render the Management Objectives unsuitable, the Board may in its discretion modify such Management Objectives or the related levels of achievement, in whole or in part, as the Board deems appropriate and equitable.
          (p) “Market Value per Share” means, as of any particular date, the closing sales price of the Common Shares or, as determined by the Board, the average closing sales price of the Common Shares over a period of time, either before or after any particular date, of one to ten days, as reported on the Nasdaq Stock Market (including, without limitation, the Nasdaq Global Select Market, the Nasdaq Global Market or the Nasdaq Capital Market, as

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applicable) or, if not listed on such exchange, on any other national securities exchange on which the Common Shares are listed or, if not listed on any such other national securities exchange, the NASD OTC Bulletin Board or any other quotation facility on which the Common Shares are quoted. If there is no regular trading market for such Common Shares, the Market Value per Share shall be determined by the Board.
          (q) “Non-Employee Director” means a Director who is not an employee of the Company or any Subsidiary.
          (r) “Optionee” means the optionee named in an Evidence of Award evidencing an outstanding Option Right.
          (s) “Option Price” means the purchase price payable on exercise of an Option Right.
          (t) “Option Right” means the right to purchase Common Shares upon exercise of an option granted pursuant to Section 4 of this Plan.
          (u) “Participant” means a person who is selected by the Board to receive benefits under this Plan and who is at the time an officer or other employee of the Company or any one or more of its Subsidiaries, or who has agreed to commence serving in such capacities within 90 days of the Date of Grant, or who is a consultant or other independent contractor, or a Non-Employee Director of the Company or a Subsidiary.
          (v) “Performance Period” means, in respect of a Performance Share or Performance Unit, a period of time established pursuant to Section 8 of this Plan within which the Management Objectives relating to such Performance Share or Performance Unit are to be achieved.
          (w) “Performance Share” means a bookkeeping entry that records the equivalent of one Common Share awarded pursuant to Section 8 of this Plan.
          (x) “Performance Unit” means a bookkeeping entry awarded pursuant to Section 8 of this Plan that records a unit equivalent to $1.00 or such other value as is determined by the Board.
          (y) “Plan” means this BTHC VI, Inc. Equity Incentive Compensation Plan, as may be amended from time to time.
          (z) “Restricted Stock” means Common Shares granted or sold pursuant to Section 6 of this Plan as to which neither the substantial risk of forfeiture nor the prohibition on transfers has expired.
          (aa) “Restriction Period” means the period of time during which Restricted Stock Units are subject to restrictions, as provided in Section 7 of this Plan.
          (bb) “Restricted Stock Unit” means an award made pursuant to Section 7 of this Plan of the right to receive Common Shares or cash at the end of a specified period.

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          (cc) “Spread” means the excess of the Market Value per Share on the date when an Appreciation Right is exercised, or on the date when Option Rights are surrendered in payment of the Option Price of other Option Rights, over the Option Price or Base Price provided for in the related Option Right or Free-Standing Appreciation Right, respectively.
          (dd) “Subsidiary” means a corporation, company or other entity (i) at least 50 percent of whose outstanding shares or securities (representing the right to vote for the election of directors or other managing authority) are, or (ii) which does not have outstanding shares or securities (as may be the case in a partnership, joint venture or unincorporated association), but at least 50 percent of whose ownership interest representing the right generally to make decisions for such other entity is, now or hereafter, owned or controlled, directly or indirectly, by the Company.
          (ee) “Tandem Appreciation Right” means an Appreciation Right granted pursuant to Section 5 of this Plan that is granted in tandem with an Option Right.
          (ff) “Voting Stock” means securities entitled to vote generally in the election of directors.
     3.  Shares Available Under the Plan.
          (a) Maximum Shares Available Under Plan . Subject to adjustment as provided in Section 11 of this Plan, the number of Common Shares that may be issued or transferred (i) upon the exercise of Option Rights or Appreciation Rights, (ii) in payment of Restricted Stock and released from substantial risks of forfeiture thereof, (iii) as Restricted Stock Units, (iv) in payment of Performance Shares or Performance Units that have been earned, (v) as awards contemplated by Section 9 of this Plan, or (vi) in payment of dividend equivalents paid with respect to awards made under the Plan will not exceed in the aggregate 1,465,000 Common Shares. Common Shares covered by an award granted under the Plan shall not be counted as used unless and until they are actually issued and delivered to a Participant. Without limiting the generality of the foregoing, the number of Common Shares available under this Plan will be adjusted to account for shares relating to awards that expire, are forfeited, terminated or cancelled without the issuance of Common Shares and to awards settled in cash in lieu of Common Shares. Shares issued under the Plan may be shares of original issuance or treasury shares or a combination of the foregoing.
          (b) Life of Plan Limits . Awards will not be granted under Section 9 of the Plan to the extent they would involve the issuance of more than 1,465,000 shares in the aggregate.
          (c) Individual Participant Limits . Notwithstanding anything in this Section 3, or elsewhere in this Plan to the contrary, and subject to adjustment as provided in Section 11 of this Plan:
  (i)   No Participant will be granted Option Rights or Appreciation Rights, in the aggregate, for more than 750,000 Common Shares during any calendar year.

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  (ii)   No Participant will be granted Restricted Stock or Restricted Stock Units that specify Management Objectives, Performance Shares or other awards under Section 9 of this Plan, in the aggregate, for more than 750,000 Common Shares during any calendar year.
 
  (iii)   Notwithstanding any other provision of this Plan to the contrary, in no event will any Participant in any calendar year receive an award of Performance Units having an aggregate maximum value as of their respective Dates of Grant in excess of $3,000,000.
          (d) Impact of Election on the Limit . If, under this Plan, a Participant has elected to give up the right to receive compensation in exchange for Common Shares based on fair market value, such Common Shares will be counted against the number of shares available in Section 3(a) above.
     4.  Option Rights. The Board may, from time to time and upon such terms and conditions as it may determine, authorize the granting to Participants of options to purchase Common Shares. Each such grant will be subject to all of the requirements contained in the following provisions:
          (a) Each grant will specify the number of Common Shares to which it pertains subject to the limitations set forth in Section 3 of this Plan.
          (b) Each grant will specify an Option Price per share, which may not be less than the Market Value per Share on the Date of Grant.
          (c) Each grant will specify whether the Option Price will be payable (i) in cash or by check acceptable to the Company or by wire transfer of immediately available funds, (ii) by the actual or constructive transfer to the Company of Common Shares owned by the Optionee having a value at the time of exercise equal to the total Option Price (or other consideration authorized pursuant to Section 4(d)), (iii) by a combination of such methods of payment, or (iv) by such other methods as may be approved by the Board.
          (d) The Board may determine, at the Date of Grant, that payment of the Option Price of any Option Right may also be made in whole or in part in the form of Restricted Shares or other Common Shares that are forfeitable or subject to restrictions on transfer. Unless otherwise determined by the Board at the Date of Grant, whenever any Option Price is paid in whole or in part by means of any of the forms of consideration specified in this Section 4(d), the Common Shares received upon the exercise of the Option Rights shall be subject to the same risks of forfeiture or restrictions on transfer as may correspond to any that apply to the consideration surrendered; provided , however , that such risks of forfeiture or restrictions on transfer shall apply only to the same number of Common Shares received by the Optionee as applied to the forfeitable or restricted Common Shares surrendered by the Optionee.
          (e) To the extent permitted by law, any grant may provide for deferred payment of the Option Price from the proceeds of sale through a bank or broker on a date satisfactory to the Company of some or all of the shares to which such exercise relates.

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          (f) To the extent permitted by law, any grant may provide for payment of the Option Price, at the election of the Optionee, in installments, with or without interest, upon terms determined by the Board.
          (g) Successive grants may be made to the same Participant whether or not any Option Rights previously granted to such Participant remain unexercised.
          (h) Each grant will specify the period or periods of continuous service by the Optionee with the Company or any Subsidiary that is necessary before the Option Rights or installments thereof will become exercisable. A grant of Option Rights may provide for the earlier exercise of such Option Rights in the event of the retirement, death or disability of a Participant or a Change in Control.
          (i) Any grant of Option Rights may specify Management Objectives that must be achieved as a condition to the exercise of such rights.
          (j) Option Rights granted under this Plan will be nonqualified options under the Code.
          (k) The exercise of an Option Right will result in the cancellation on a share- for-share basis of any Tandem Appreciation Right authorized under Section 5 of this Plan.
          (l) No Option Right will be exercisable more than 10 years from the Date of Grant.
          (m) The Board may, at the Date of Grant of any Option Rights, provide for the payment of dividend equivalents to the Optionee on either a current or deferred or contingent basis or may provide that such equivalents shall be credited against the Option Price.
          (n) Each grant of Option Rights will be evidenced by an Evidence of Award. Each Evidence of Award shall be subject to this Plan and shall contain such terms and provisions, consistent with this Plan, as the Board may approve.
     5.  Appreciation Rights.
          (a) The Board may also authorize the granting (i) to any Optionee, of Tandem Appreciation Rights in respect of Option Rights granted hereunder, and (ii) to any Participant, of Free-Standing Appreciation Rights. A Tandem Appreciation Right will be a right of the Optionee, exercisable by surrender of the related Option Right, to receive from the Company an amount determined by the Board, which will be expressed as a percentage of the Spread (not exceeding 100 percent) at the time of exercise. Tandem Appreciation Rights may be granted at any time prior to the exercise or termination of the related Option Rights. A Free-Standing Appreciation Right will be a right of the Participant to receive from the Company an amount determined by the Board, which will be expressed as a percentage of the Spread (not exceeding 100 percent) at the time of exercise.
          (b) Each grant of Appreciation Rights will be subject to all of the requirements contained in the following provisions:

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  (i)   Any grant may specify that the amount payable on exercise of an Appreciation Right may be paid by the Company in cash, in Common Shares or in any combination thereof and may either grant to the Participant or retain in the Board the right to elect among those alternatives.
 
  (ii)   Any grant may specify that the amount payable on exercise of an Appreciation Right may not exceed a maximum specified by the Board at the Date of Grant.
 
  (iii)   Any grant may specify waiting periods before exercise and permissible exercise dates or periods.
 
  (iv)   Any grant may specify that such Appreciation Right may be exercised only in the event of, or earlier in the event of, the retirement, death or disability of a Participant or a Change in Control.
 
  (v)   Any grant of Appreciation Rights may specify Management Objectives that must be achieved as a condition of the exercise of such Appreciation Rights.
 
  (vi)   To the extent permitted by law, any grant may provide for the payment to the Participant of dividend equivalents thereon in cash or Common Shares on a current, deferred or contingent basis.
 
  (vii)   Each grant of Appreciation Rights will be evidenced by an Evidence of Award, which Evidence of Award will describe such Appreciation Rights, identify the related Option Rights (if applicable), and contain such other terms and provisions, consistent with this Plan, as the Board may approve.
          (c) Any grant of Tandem Appreciation Rights will provide that such Tandem Appreciation Rights may be exercised only at a time when the related Option Right is also exercisable and at a time when the Spread is positive, and by surrender of the related Option Right for cancellation. Successive grants of Tandem Appreciation Rights may be made to the same Participant regardless of whether any Tandem Appreciation Rights previously granted to the Participant remain unexercised.
          (d) Regarding Free-Standing Appreciation Rights only:
  (i)   Each grant will specify in respect of each Free-Standing Appreciation Right a Base Price, which may not be less than the Market Value per Share on the Date of Grant;
 
  (ii)   Successive grants may be made to the same Participant regardless of whether any Free-Standing Appreciation Rights previously granted to the Participant remain unexercised; and

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  (iii)   No Free-Standing Appreciation Right granted under this Plan may be exercised more than 10 years from the Date of Grant.
     6.  Restricted Stock. The Board may also authorize the grant or sale of Restricted Stock to Participants. Each such grant or sale will be subject to all of the requirements contained in the following provisions:
          (a) Each such grant or sale will constitute an immediate transfer of the ownership of Common Shares to the Participant in consideration of the performance of services, entitling such Participant to voting, dividend and other ownership rights, but subject to the substantial risk of forfeiture and restrictions on transfer hereinafter referred to.
          (b) Each such grant or sale may be made without additional consideration or in consideration of a payment by such Participant that is less than the Market Value per Share at the Date of Grant.
          (c) Each such grant or sale will provide that the Restricted Stock covered by such grant or sale that vests upon the passage of time will be subject to a “substantial risk of forfeiture” within the meaning of Section 83 of the Code for a period to be determined by the Board at the Date of Grant, or may provide that the Restricted Stock will vest upon the achievement of Management Objectives (as provided in Section 6(e) below); provided , however , that if Restricted Stock vests based on the passage of time rather than the achievement of Management Objectives, the period of time will be no shorter than three years, except that the restrictions may be removed on an annual, ratable basis during the three year period.
          (d) Each such grant or sale will provide that during the period for which such substantial risk of forfeiture is to continue, the transferability of the Restricted Stock will be prohibited or restricted in the manner and to the extent prescribed by the Board at the Date of Grant (which restrictions may include, without limitation, rights of repurchase or first refusal in the Company or provisions subjecting the Restricted Stock to a continuing substantial risk of forfeiture in the hands of any transferee).
          (e) Any grant of Restricted Stock may specify Management Objectives that, if achieved, will result in termination or early termination of the restrictions applicable to such Restricted Stock; provided , however , that notwithstanding subparagraph (c) above, restrictions relating to Restricted Stock that vests upon the achievement of Management Objectives may not terminate sooner than one year from the Date of Grant. Each grant may specify in respect of such Management Objectives a minimum acceptable level of achievement and may set forth a formula for determining the number of shares of Restricted Stock on which restrictions will terminate if performance is at or above the minimum level, but falls short of maximum achievement of the specified Management Objectives. The grant of Restricted Stock will specify that, before the termination or early termination of restrictions applicable to such Restricted Stock, the Board must determine that the Management Objectives have been satisfied; provided , however , that notwithstanding Section 6(c) above, the substantial risk of forfeiture relating to Restricted Stock that vests upon the achievement of Management Objections may not terminate sooner than one year from the Date of Grant.

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          (f) Notwithstanding anything to the contrary contained in this Plan, any grant or sale of Restricted Stock may provide for the earlier lapse of the substantial risk of forfeiture in the event of the retirement, death or disability of a Participant or a Change in Control.
          (g) Any such grant or sale of Restricted Stock may require that any or all dividends or other distributions paid thereon during the period of such restrictions be automatically deferred and reinvested in additional shares of Restricted Stock, which may be subject to the same restrictions as the underlying award.
          (h) Each grant or sale of Restricted Stock will be evidenced by an Evidence of Award and will contain such terms and provisions, consistent with this Plan, as the Board may approve. Unless otherwise directed by the Board, all certificates representing shares of Restricted Stock will be held in custody by the Company until all restrictions thereon will have lapsed, together with a stock power or powers executed by the Participant in whose name such certificates are registered, endorsed in blank and covering such Shares.
     7.  Restricted Stock Units. The Board may also authorize the granting or sale of Restricted Stock Units to Participants. Each such grant or sale will be subject to all of the requirements contained in the following provisions:
          (a) Each such grant or sale will constitute the agreement by the Company to deliver Common Shares or cash to the Participant in the future in consideration of the performance of services, but subject to the fulfillment of such conditions (which may include the achievement of Management Objectives) during the Restriction Period as the Board may specify. If a grant of Restricted Stock Units specifies that the Restriction Period will terminate upon the achievement of Management Objectives, then, notwithstanding anything to the contrary contained in subparagraph (c) below, such Restriction Period may not terminate sooner than one year from the Date of Grant. Each grant may specify in respect of such Management Objectives a minimum acceptable level of achievement and may set forth a formula for determining the number of shares of Restricted Stock Units on which restrictions will terminate if performance is at or above the minimum level, but falls short of maximum achievement of the specified Management Objectives. The grant of such Restricted Stock Units will specify that, before the termination or early termination of restrictions applicable to such Restricted Stock Units, the Board must determine that the Management Objectives have been satisfied.
          (b) Each such grant or sale may be made without additional consideration or in consideration of a payment by such Participant that is less than the Market Value per Share at the Date of Grant.
          (c) If the Restriction Period lapses only by the passage of time rather than the achievement of Management Objectives as provided in subparagraph (a) above. Each such grant or sale will be subject to a Restriction Period of not less than one year.
          (d) Notwithstanding anything to the contrary contained in this Plan, any grant or sale of Restricted Stock Units may provide for the earlier lapse or other modification of

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the Restriction Period in the event of the retirement, death or disability of a Participant or a Change in Control.
          (e) During the Restriction Period, the Participant will have no right to transfer any rights under his or her award and will have no rights of ownership in the Restricted Stock Units and will have no right to vote them, but the Board may at the Date of Grant, authorize the payment of dividend equivalents on such Restricted Stock Units on either a current or deferred or contingent basis, either in cash or in additional Common Shares.
          (f) Each grant or sale will specify the time and manner of payment of the Restricted Stock Units that have been earned. Any grant or sale may specify that the amount payable with respect thereto may be paid by the Company in cash, in Common Shares or in any combination thereof and may either grant to the Participant or retain in the Board the right to elect among those alternatives.
          (g) Each grant or sale of Restricted Stock Units will be evidenced by an Evidence of Award and will contain such terms and provisions, consistent with this Plan, as the Board may approve.
     8.  Performance Shares and Performance Units. The Board may also authorize the granting of Performance Shares and Performance Units that will become payable to a Participant upon achievement of specified Management Objectives during the Performance Period. Each such grant will be subject to all of the requirements contained in the following provisions:
          (a) Each grant will specify the number of Performance Shares or Performance Units to which it pertains, which number may be subject to adjustment to reflect changes in compensation or other factors.
          (b) The Performance Period with respect to each Performance Share or Performance Unit will be such period of time (not less than three years) as will be determined by the Board at the time of grant, which may be subject to earlier lapse or other modification in the event of the retirement, death or disability of a Participant or a Change in Control.
          (c) Any grant of Performance Shares or Performance Units will specify Management Objectives which, if achieved, will result in payment or early payment of the award, and each grant may specify in respect of such specified Management Objectives a level or levels of achievement and will set forth a formula for determining the number of Performance Shares or Performance Units that will be earned if performance is at or above the minimum level or levels, but falls short of maximum achievement of the specified Management Objectives. The grant of Performance Shares or Performance Units will specify that, before the Performance Shares or Performance Units will be earned and paid, the Board must determine that the Management Objectives have been satisfied.
          (d) Each grant will specify the time and manner of payment of Performance Shares or Performance Units that have been earned. Any grant may specify that the amount payable with respect thereto may be paid by the Company in cash, in Common Shares or in any

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combination thereof and may either grant to the Participant or retain in the Board the right to elect among those alternatives.
          (e) Any grant of Performance Shares may specify that the amount payable with respect thereto may not exceed a maximum specified by the Board at the Date of Grant. Any grant of Performance Units may specify that the amount payable or the number of Common Shares issued with respect thereto may not exceed maximums specified by the Board at the Date of Grant.
          (f) The Board may at the Date of Grant of Performance Shares, provide for the payment of dividend equivalents to the holder thereof on either a current or deferred or contingent basis, either in cash or in additional Common Shares.
          (g) Each grant of Performance Shares or Performance Units will be evidenced by an Evidence of Award and will contain such other terms and provisions, consistent with this Plan, as the Board may approve.
     9.  Other Awards.
          (a) The Board may, subject to limitations under applicable law, grant to any Participant such other awards that may be denominated or payable in, valued in whole or in part by reference to, or otherwise based on, or related to, Common Shares or factors that may influence the value of such shares, including, without limitation, convertible or exchangeable debt securities, other rights convertible or exchangeable into Common Shares, purchase rights for Common Shares, awards with value and payment contingent upon performance of the Company or specified Subsidiaries, affiliates or other business units thereof or any other factors designated by the Board, and awards valued by reference to the book value of Common Shares or the value of securities of, or the performance of specified Subsidiaries or affiliates or other business units of the Company. The Board shall determine the terms and conditions of such awards. Common Shares delivered pursuant to an award in the nature of a purchase right granted under this Section 9 shall be purchased for such consideration, paid for at such time, by such methods, and in such forms, including, without limitation, cash, Common Shares, other awards, notes or other property, as the Board shall determine.
          (b) Cash awards, as an element of or supplement to any other award granted under this Plan, may also be granted pursuant to this Section 9 of this Plan.
          (c) The Board may grant Common Shares as a bonus, or may grant other awards in lieu of obligations of the Company or a Subsidiary to pay cash or deliver other property under this Plan or under other plans or compensatory arrangements, subject to such terms as shall be determined by the Board.
     10.  Administration of the Plan.
          (a) This Plan will be administered by the Board, which may from time to time delegate all or any part of its authority under this Plan to a committee of the Board (or a subcommittee thereof) consisting of non-employee Directors, as constituted from time to time.

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To the extent of any such delegation, references in this Plan to the Board will be deemed to be references to such committee or subcommittee.
          (b) The interpretation and construction by the Board of any provision of this Plan or of any agreement, notification or document evidencing the grant of Option Rights, Appreciation Rights, Restricted Stock, Restricted Stock Units, Performance Shares, Performance Units or other awards pursuant to Section 9 of this Plan and any determination by the Board pursuant to any provision of this Plan or of any such agreement, notification or document will be final and conclusive.
          (c) The Board or, to the extent of any delegation as provided in Section 10(a), the committee, may delegate to one or more of its members or to one or more officers of the Company, or to one or more agents or advisors, such administrative duties or powers as it may deem advisable, and the Board, the committee, or any person to whom duties or powers have been delegated as aforesaid, may employ one or more persons to render advice with respect to any responsibility the Board, the committee or such person may have under the Plan. The Board or the committee may, by resolution, authorize one or more officers of the Company to do one or both of the following on the same basis as the Board or the committee: (i) designate employees to be recipients of awards under this Plan; (ii) determine the size of any such awards; (B) the resolution providing for such authorization sets forth the total number of Common Shares such officer(s) may grant; and (iii) the officer(s) shall report periodically to the Board or the committee, as the case may be, regarding the nature and scope of the awards granted pursuant to the authority delegated.
     11.  Adjustments. The Board shall make or provide for such adjustments in the numbers of Common Shares authorized under the Plan, subject to limits contained in Section 3 of the Plan, and covered by outstanding Option Rights, Appreciation Rights, Restricted Stock Units, Performance Shares and Performance Units granted hereunder and, if applicable, in the number of Common Shares covered by other awards granted pursuant to Section 9 hereof, in the Option Price and Base Price, and in the kind of shares covered thereby, as the Board, in its sole discretion may determine is equitably required to prevent dilution or enlargement of the rights of Participants or Optionees that otherwise would result from (a) any stock dividend, extraordinary dividend, stock split, combination of shares, recapitalization or other change in the capital structure of the Company, or (b) any Change in Control, merger, consolidation, spin-off, split- off, spin-out, split-up, reorganization, partial or complete liquidation or other distribution of assets, issuance of rights or warrants to purchase securities, or (c) any other corporate transaction or event having an effect similar to any of the foregoing. Moreover, in the event of any such transaction or event, the Board, in its discretion, may provide in substitution for any or all outstanding awards under this Plan such alternative consideration (including cash), if any, as it may determine to be equitable in the circumstances and may require in connection therewith the surrender of all awards so replaced. The Board shall also make or provide for such adjustments in the numbers of shares specified in Section 3 of this Plan as the Board in its sole discretion, exercised in good faith, may determine is appropriate to reflect any transaction or event described in this Section 11; provided , however , that any such adjustment to the number specified in Section 3(b) will be made only if and to the extent that such adjustment would not result in negative tax consequences under Section 409A of the Code. Without limiting the generality of the foregoing, in the event that the Company issues warrants or other rights to

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acquire Common Shares on a pro rata basis to all stockholders, the Board shall make such adjustments in the number of Common Shares authorized under the Plan and in the limits contained herein as it may deem to be equitable, including, without limitation, proportionately increasing the number of authorized Common Shares or any such limit.
     12.  Change in Control. For purposes of this Plan, except as may be otherwise prescribed by the Board in an Evidence of Award made under this Plan, a “Change in Control” shall be deemed to have occurred upon the occurrence of any of the following events:
          (a) any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a “Person”) is or becomes the beneficial owner (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 50% or more of the combined voting power of the then-outstanding Voting Stock of the Company; provided , however , that:
  (i)   for purposes of this Section 12(a), the following acquisitions shall not constitute a Change in Control: (A) any acquisition of Voting Stock of the Company directly from the Company that is approved by a majority of the Incumbent Directors, (B) any acquisition of Voting Stock of the Company by the Company or any Subsidiary, (C) any acquisition of Voting Stock of the Company by the trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any Subsidiary, and (D) any acquisition of Voting Stock of the Company by any Person pursuant to a Business Transaction that complies with clauses (i), (ii) and (iii) of Section 12(c) below;
 
  (ii)   a Change in Control will not be deemed to have occurred if a Person is or becomes the beneficial owner of 50% or more of the Voting Stock of the Company as a result of a reduction in the number of shares of Voting Stock of the Company outstanding pursuant to a transaction or series of transactions that is approved by a majority of the Incumbent Directors unless and until such Person thereafter becomes the beneficial owner of any additional shares of Voting Stock of the Company representing 1% or more of the then-outstanding Voting Stock of the Company, other than as a result of a stock dividend, stock split or similar transaction effected by the Company in which all holders of Voting Stock are treated equally;
 
  (iii)   if at least a majority of the Incumbent Directors determine in good faith that a Person has acquired beneficial ownership of 50% or more of the Voting Stock of the Company inadvertently, and such Person divests as promptly as practicable but no later than the date, if any, set by the Incumbent Board a sufficient number of shares so that such Person beneficially owns less than 50% of the Voting Stock of the Company, then no Change in Control shall have occurred as a result of such Person’s acquisition;
 
  (iv)   the consummation of the Transaction shall not constitute a Change in Control; or

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          (b) a majority of the Board ceases to be comprised of Incumbent Directors; or
          (c) the consummation of a reorganization, merger or consolidation, or sale or other disposition of all or substantially all of the assets of the Company or the acquisition of the stock or assets of another corporation, or other transaction (each, a “Business Transaction”), unless, in each case, immediately following such Business Transaction (i) the Voting Stock of the Company outstanding immediately prior to such Business Transaction continues to represent (either by remaining outstanding or by being converted into Voting Stock of the surviving entity or any parent thereof), more than 60% of the combined voting power of the then outstanding shares of Voting Stock of the entity resulting from such Business Transaction (including, without limitation, an entity which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries), (ii) no Person (other than the Company, such entity resulting from such Business Transaction, or any employee benefit plan (or related trust) sponsored or maintained by the Company, any Subsidiary or such entity resulting from such Business Transaction) beneficially owns, directly or indirectly, 50% or more of the combined voting power of the then outstanding shares of Voting Stock of the entity resulting from such Business Transaction, and (iii) at least a majority of the members of the Board of Directors of the entity resulting from such Business Transaction were Incumbent Directors at the time of the execution of the initial agreement or of the action of the Board providing for such Business Transaction; or
          (d) approval by the stockholders of the Company of a complete liquidation or dissolution of the Company, except pursuant to a Business Transaction that complies with clauses (i), (ii) and (iii) of Section 12(c).
     13.  Non U.S. Participants. In order to facilitate the making of any grant or combination of grants under this Plan, the Board may provide for such special terms for awards to Participants who are foreign nationals or who are employed by the Company or any Subsidiary outside of the United States of America or who provide services to the Company under an agreement with a foreign nation or agency, as the Board may consider necessary or appropriate to accommodate differences in local law, tax policy or custom. Moreover, the Board may approve such supplements to or amendments, restatements or alternative versions of this Plan (including, without limitation, sub-plans) as it may consider necessary or appropriate for such purposes, without thereby affecting the terms of this Plan as in effect for any other purpose, and the Secretary or other appropriate officer of the Company may certify any such document as having been approved and adopted in the same manner as this Plan. No such special terms, supplements, amendments or restatements, however, will include any provisions that are inconsistent with the terms of this Plan as then in effect unless this Plan could have been amended to eliminate such inconsistency without further approval by the stockholders of the Company.
     14.  Transferability.
          (a) Except as otherwise determined by the Board, no Option Right, Appreciation Right or other derivative security granted under the Plan shall be transferable by the Participant except by will or the laws of descent and distribution. Except as otherwise

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determined by the Board, Option Rights and Appreciation Rights will be exercisable during the Participant’s lifetime only by him or her or, in the event of the Participant’s legal incapacity to do so, by his or her guardian or legal representative acting on behalf of the Participant in a fiduciary capacity under state law and/or court supervision.
          (b) The Board may specify at the Date of Grant that part or all of the Common Shares that are (i) to be issued or transferred by the Company upon the exercise of Option Rights or Appreciation Rights, upon the termination of the Restriction Period applicable to Restricted Stock Units or upon payment under any grant of Performance Shares or Performance Units or (ii) no longer subject to the substantial risk of forfeiture and restrictions on transfer referred to in Section 6 of this Plan, will be subject to further restrictions on transfer.
     15.  Withholding Taxes. To the extent that the Company is required to withhold federal, state, local or foreign taxes in connection with any payment made or benefit realized by a Participant or other person under this Plan, and the amounts available to the Company for such withholding are insufficient, it will be a condition to the receipt of such payment or the realization of such benefit that the Participant or such other person make arrangements satisfactory to the Company for payment of the balance of such taxes required to be withheld, which arrangements (in the discretion of the Board) may include relinquishment of a portion of such benefit. If a Participant’s benefit is to be received in the form of Common Shares, and such Participant fails to make arrangements for the payment of tax, the Company shall withhold such Common Shares having a value equal to the amount required to be withheld. Notwithstanding the foregoing, when a Participant is required to pay the Company an amount required to be withheld under applicable income and employment tax laws, the Participant may elect to satisfy the obligation, in whole or in part, by electing to have withheld, from the shares required to be delivered to the Participant, Common Shares having a value equal to the amount required to be withheld (except in the case of Restricted Stock where an election under Section 83(b) of the Code has been made), or by delivering to the Company other Common Shares held by such Participant. The shares used for tax withholding will be valued at an amount equal to the Market Value per Share of such Common Shares on the date the benefit is to be included in Participant’s income. In no event shall the Market Value per Share of the Common Shares to be withheld and/or delivered pursuant to this Section to satisfy applicable withholding taxes in connection with the benefit exceed the minimum amount of taxes required to be withheld. Participants shall also make such arrangements as the Company may require for the payment of any withholding tax obligation that may arise in connection with the disposition of Common Shares acquired upon the exercise of Option Rights.
     16.  Compliance with Section 409A of the Code.
          (a) To the extent applicable, it is intended that this Plan and any grants made hereunder comply with the provisions of Section 409A of the Code. This Plan and any grants made hereunder shall be administrated in a manner consistent with this intent, and any provision that would cause this Plan or any grant made hereunder to fail to satisfy Section 409A of the Code shall have no force and effect until amended to comply with Section 409A of the Code (which amendment may be retroactive to the extent permitted by Section 409A of the Code and may be made by the Company without the consent of Participants). Any reference in this Plan to Section 409A of the Code will also include any proposed, temporary or final regulations, or

16


 

any other guidance, promulgated with respect to such Section by the U.S. Department of the Treasury or the Internal Revenue Service.
          (b) In order to determine for purposes of Section 409A of the Code whether a Participant is employed by a member of the Company’s controlled group of corporations under Section 414(b) of the Code (or by a member of a group of trades or businesses under common control with the Company under Section 414(c) of the Code) and, therefore, whether the Common Shares that are or have been purchased by or awarded under this Plan to the Participant are shares of “service recipient” stock within the meaning of Section 409A of the Code:
  (i)   In applying Code Section 1563(a)(1), (2) and (3) for purposes of determining the Company’s controlled group under Section 414(b) of the Code, the language “at least 50 percent” is to be used instead of “at least 80 percent” each place it appears in Code Section 1563(a)(1), (2) and (3), and
 
  (ii)   In applying Treasury Regulation Section 1.414(c)-2 for purposes of determining trades or businesses under common control with the Company for purposes of Section 414(c) of the Code, the language “at least 50 percent” is to be used instead of “at least 80 percent” each place it appears in Treasury Regulation Section 1.414(c)-2.
     17.  Amendments.
          (a) The Board may at any time and from time to time amend this Plan in whole or in part; provided , however , that if an amendment to this Plan (i) would materially increase the benefits accruing to participants under this Plan, (ii) would materially increase the number of securities which may be issued under this Plan, (iii) would materially modify the requirements for participation in this Plan or (iv) must otherwise be approved by the stockholders of the Company in order to comply with applicable legal requirements or the requirements of the principal national securities exchange upon which the Common Shares are traded or quoted, then, such amendment will be subject to stockholder approval and will not be effective unless and until such approval has been obtained.
          (b) The Board will not, without the further approval of the stockholders of the Company, authorize the amendment of any outstanding Option Right to reduce the Option Price. Furthermore, no Option Right will be cancelled and replaced with awards having a lower Option Price without further approval of the stockholders of the Company. This Section 17(b) is intended to prohibit the repricing of “underwater” Option Rights and will not be construed to prohibit the adjustments provided for in Section 11 of this Plan.
          (c) If permitted by Section 409A of the Code, in case of termination of employment by reason of death, disability or normal or early retirement, or in the case of unforeseeable emergency or other special circumstances, of a Participant who holds an Option Right or Appreciation Right not immediately exercisable in full, or any shares of Restricted Stock as to which the substantial risk of forfeiture or the prohibition or restriction on transfer

17


 

has not lapsed, or any Restricted Stock Units as to which the Restriction Period has not been completed, or any Performance Shares or Performance Units which have not been fully earned, or any other awards made pursuant to Section 9 subject to any vesting schedule or transfer restriction, or who holds Common Shares subject to any transfer restriction imposed pursuant to Section 14(b) of this Plan, the Board may, in its sole discretion, accelerate the time at which such Option Right, Appreciation Right or other award may be exercised or the time at which such substantial risk of forfeiture or prohibition or restriction on transfer will lapse or the time when such Restriction Period will end or the time at which such Performance Shares or Performance Units will be deemed to have been fully earned or the time when such transfer restriction will terminate or may waive any other limitation or requirement under any such award.
          (d) Subject to Section 17(b) hereof, the Board may amend the terms of any award theretofore granted under this Plan prospectively or retroactively. Subject to Section 11 above, no such amendment shall impair the rights of any Participant without his or her consent. The Board may, in its discretion, terminate this Plan at any time. Termination of this Plan will not affect the rights of Participants or their successors under any awards outstanding hereunder and not exercised in full on the date of termination.
     18.  Governing Law. The Plan and all grants and awards and actions taken thereunder shall be governed by and construed in accordance with the internal substantive laws of the State of Delaware.
     19.  Effective Date/Termination. This Plan will be effective as of the Effective Date. No grant will be made under this Plan more than 10 years after the Effective Date, but all grants made on or prior to such date will continue in effect thereafter subject to the terms thereof and of this Plan.
     20.  Miscellaneous Provisions.
          (a) The Company will not be required to issue any fractional Common Shares pursuant to this Plan. The Board may provide for the elimination of fractions or for the settlement of fractions in cash.
          (b) This Plan will not confer upon any Participant any right with respect to continuance of employment or other service with the Company or any Subsidiary, nor will it interfere in any way with any right the Company or any Subsidiary would otherwise have to terminate such Participant’s employment or other service at any time.
          (c) Any Evidence of Award may provide, in the event that the Participant engages in any activity that is detrimental to the Company (as such activity may be defined in any Evidence of Award): (i) for the forfeiture of any award granted under the Plan, (ii) that the Participant return to the Company any Common Shares that the Participant has not disposed of that were offered pursuant to the Plan, and/or (iii) that the Participant pay to the Company in cash the difference between any amount actually paid by a Participant for any Common Shares received under the Plan that the Participant has disposed of and the Market Value per Share of the Common Shares on the date the Participant acquired the Common Shares under the Plan.

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          (d) No award under this Plan may be exercised by the holder thereof if such exercise, and the receipt of cash or stock thereunder, would be, in the opinion of counsel selected by the Board, contrary to law or the regulations of any duly constituted authority having jurisdiction over this Plan.
          (e) Absence on leave approved by a duly constituted officer of the Company or any of its Subsidiaries shall not be considered interruption or termination of service of any employee for any purposes of this Plan or awards granted hereunder, except that no awards may be granted to an employee while he or she is absent on leave.
          (f) No Participant shall have any rights as a stockholder with respect to any shares subject to awards granted to him or her under this Plan prior to the date as of which he or she is actually recorded as the holder of such shares upon the stock records of the Company.
          (g) The Board may condition the grant of any award or combination of awards authorized under this Plan on the surrender or deferral by the Participant of his or her right to receive a cash bonus or other compensation otherwise payable by the Company or a Subsidiary to the Participant.
          (h) Participants shall provide the Company with a written election form setting forth the name and contact information of the person who will have beneficial ownership rights upon the death of the Participant.
          (i) If any provision of this Plan is or becomes invalid, illegal or unenforceable in any jurisdiction, or would disqualify this Plan or any award under any law deemed applicable by the Board, such provision shall be construed or deemed amended or limited in scope to conform to applicable laws or, in the discretion of the Board, it shall be stricken and the remainder of this Plan shall remain in full force and effect.
Adopted by the Board —June 8, 2007

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EXHIBIT 10.12
LOAN AND SECURITY AGREEMENT
Dated as of November 2, 2004
among
ATHERSYS, INC.,
a Delaware corporation
and
ADVANCED BIOTHERAPEUTICS, INC.,
a Delaware corporation
each sometimes individually as a “Borrower”, and sometimes collectively as “Borrowers”,
and
VENTURE LENDING & LEASING IV, INC. (“VLL”),
a Maryland corporation,
as “Agent” and “Lender”,
and
COSTELLA KIRSCH IV, L.P.
as “Lender”,
each individually a “Lender” and collectively, “Lenders”

 


 

LOAN AND SECURITY AGREEMENT
     The Borrowers, Agent and Lenders identified on the cover page of this document have entered or anticipate entering into one or more transactions pursuant to which each Lender severally, but not jointly, agrees to make available to Borrowers a loan facility governed by the terms and conditions set forth in this document and one or more Supplements executed by Borrowers, Agent and Lenders which incorporate this document by reference. Each Supplement constitutes a supplement to and forms part of this document, and will be read and construed as one with this document, so that this document and the Supplement constitute a single agreement among the parties (collectively referred to as this “Agreement”).
     Accordingly, the parties agree as follows:
ARTICLE 1 — INTERPRETATION
      1.1 Definitions. The terms defined in Article 11 and in the Supplement will have the meanings therein specified for purposes of this Agreement.
      1.2 Inconsistency. In the event of any inconsistency between the provisions of any Supplement and this document, the provisions of the Supplement will be controlling for the purpose of all relevant transactions.
      1.3 Each reference herein to “Borrower” shall mean and refer to each Borrower individually, and to all Borrowers collectively, except as the context or meaning may otherwise require; and all Obligations of the Borrowers shall be joint and several.
ARTICLE 2 — THE COMMITMENT AND LOANS
      2.1 The Commitment . Subject to the terms and conditions of this Agreement, each of the Lenders agrees severally, but not jointly, to make term loans to Borrowers from time to time from the Closing Date and to, but not including, the Termination Date in an aggregate principal amount not exceeding such Lender’s Commitment Percentage of the Commitment. Each Lender’s Commitment under this Agreement is not a revolving credit commitment, and Borrower does not have the right to repay and reborrow hereunder. Each Loan requested by Borrower to be made on a single Business Day shall be for a minimum principal amount set forth in the Supplement, except to the extent the remaining Commitment is a lesser amount.
      2.2 Notes Evidencing Loans; Repayment . Each Loan shall be evidenced by a separate Note executed jointly and severally by Borrowers payable to the order of each Lender, in the total principal amount of the Loan. Principal and interest of each Loan shall be payable at the times set forth in the Note and, at the election of any Lender, regularly scheduled payments thereof and each Terminal Payment shall be effected by automatic debit of the appropriate funds from Borrower’s Primary Operating Account as specified in the Supplement hereto or by wire transfer to such Lender’s account according to the instructions shown on such Supplement opposite such Lender’s name. Any payment received by the Agent or any Lender hereunder for the account of any other Lender shall be paid promptly to such Lender, in like funds, for the Loan in respect of which such payment is made.
      2.3 Procedures for Borrowing .
     (a) Whenever the Borrowers desire to borrow under this Agreement, the Borrowers shall give the Agent written notice of such proposal, stating the total amount requested, in substantially the form of the Borrowing Request attached to the Supplement as Exhibit “B” . The total amount of the borrowing shall be allocated among the Lenders in accordance with the provisions of the Supplement, to be advanced as separate Loans in the aggregate amount requested. Each Borrowing Request shall be irrevocable and shall be effective only if received by the Agent not later than 10:00 a.m. Pacific time on the date that is at least five (5) Business Days prior to a proposed Borrowing Date. If any such Borrowing Request is by facsimile transmission, it shall be confirmed in a writing sent by the Borrowers to the Agent on the next Business Day.
     (b) Promptly upon receipt of a Borrowing Request, but not later than one (1) Business Day after receipt of the Borrowing Request and the related documentation, the Agent shall calculate each Lender’s Funding Amount, and notify each Lender telephonically of the Borrowing Request and such Lender’s Funding Amount, and shall transmit copies of the Borrowing Request and the Funding Amounts by facsimile to each Lender.

 


 

      2.4 Required Borrowing Documentation. The Borrower, on or prior to the Borrowing Date stated in a Borrowing Request, which shall be a date that is not less than five (5) Business Days after receipt by Agent of the Borrowing Request, and as of the date of the making of any related Loan, shall have satisfied all applicable conditions precedent to such borrowing contained in this Agreement, including delivery to each Lender of executed original Notes evidencing such Loan. Without limiting the generality of the foregoing, not later than 1:00 p.m. Pacific time on the Business Day that is two (2) Business Days prior to the Borrowing Date, Borrowers shall have executed and delivered to Agent an original Note for each Lender for its Loan to be advanced, and shall have authorized Agent to file any UCC-1 financing statements, amendments, releases or termination statements that may be required by Agent. Such promissory notes and UCC statements, if any, shall have been prepared by Agent and delivered to Borrowers promptly following receipt of the related Borrowing Request, but in no event less than twenty-four hours prior to the deadline referenced in the immediately preceding sentence unless otherwise agreed to by the parties. Agent shall cause each Lender’s original executed promissory note and copies of any such UCC statements relating to the Loan to be delivered to such Lender prior to the Borrowing Date to facilitate the funding of its Loan.
      2.5 Disbursement of Loan Proceeds. Subject to the satisfaction of all of the conditions precedent to borrowing specified herein and in the Supplement and so long as no Event of Default or Default has occurred and is continuing, not later than 1:00 p.m. , Pacific time, on the Borrowing Date specified in the Borrowing Request, for each borrowing, each Lender shall transfer its respective Funding Amount, allocated in accordance with the provisions of the Supplement, to the Parent’s Primary Operating Account set forth in the Supplement, as the same may be amended from time to time in accordance with the terms of Section 5.10 of this Agreement, by wire transfer according to the instructions shown therein, or by other method but in any event in immediately available funds.
      2.6 Time and Method of Payments.
     (a) Not later than one Business Day after receipt of the Borrowing Request, the Agent shall prepare and distribute to each of the Lenders and the Borrower an amortization schedule showing the principal amount of each Lender’s Loan that is to be advanced to the Parent’s Primary Operating Account on the Borrowing Date and the regularly scheduled, monthly installment amount to be paid by the Borrower in respect of each Lender’s Loan made on such Borrowing Date. Each Lender shall be responsible for verifying such amounts; however, the Agent’s calculation shall be presumed correct absent manifest error unless rebutted by such Lender or the Borrower. Agent shall not be liable for any error in calculating a Lender’s Loan installment amount. If at any time or from time to time a Lender desires to collect late charges and/or interest at the Default Rate, it shall promptly notify Parent and Agent, and appropriate adjustment shall be made to the loan schedule to reflect any changes in the monthly installment payable by Borrower in respect of such Lender’s Loan(s).
     (b) All payments of principal, interest, fees and other amounts (including indemnities) payable by the Borrower hereunder shall be made, in immediately available funds not later than 1:00 p.m., Pacific time, on the date on which such payment shall become due (the “Payment Date”), by disbursement to each Lender of its respective share of such payment on each Payment Date to the address of such Lender for payments shown on the Supplement and, if indicated on such Schedule, by wiretransfer to such Lender’s account according to the instructions shown on such Schedule opposite such Lender’s name; provided , however, that Parent hereby (i) authorizes each Lender to initiate debit entries to Parent’s “Primary Operating Account” as specified in the Supplement, through Automated Clearinghouse (“ACH”) or other transfers, in order to satisfy regularly scheduled payments of principal, interest or fees; (ii) agrees to provide each Lender at least ten (10) days’ written notice in advance of any change in Parent’s Primary Operating Account; and (iii) grants each Lender any additional authorizations necessary to begin ACH debits from a new account which becomes the Primary Operating Account. Any payment received by the Agent or any Lender hereunder for the account of any other Lender shall be paid promptly by Agent or Lender, as applicable, to such Lender, in like funds, for the Loan in respect of which such payment is made.
      2.7 Several Obligations. The failure of any Lender to make any Loan to be made by it on the date specified therefor shall not relieve the other Lenders of their respective obligations to make their Loans on such date; but in no event shall any Lender be responsible for the failure of the other Lenders to make Loans to be made by such other Lenders.

2


 

      2.8 Pro Rata Treatment Among Lenders. Except as otherwise provided herein: (i) each scheduled payment of principal and Basic Interest on the Loans, if timely paid by Borrower, and any voluntary prepayments of principal, shall be paid to the Lenders according to the amortization schedule provided for in each Lender’s Note evidencing such Loans (in the event such scheduled payment is less than the aggregate amount due to be paid to all Lenders under their Notes, but prior to any acceleration of the Notes, such payment shall be allocated Pro Rata among the Lenders in proportion to the regular installment amounts provided in the Notes); and (ii) all Terminal Payments shall be allocated Pro Rata among the Lenders. If any payment under clause (i) or (ii) of this Section 2.8 is not paid Pro Rata among the Lenders, whether as a result of the Borrower’s failure to make a particular payment to one or more Lenders while paying other Lenders, or otherwise, then each Lender that has actually received a payment in excess of its Pro Rata share shall promptly remit to the other Lender who received no payment or payment less than its Pro Rata share such amount as is necessary to ensure the Pro Rata treatment of such payment and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share in such payments Pro Rata in the aforesaid manner (however, no such adjustments shall affect the calculation of Pro Rata items or the determination of Majority Lenders). If prior to all Obligations of Borrower to the Lenders having been paid in full, any action to realize upon the Collateral is taken following an Event of Default, then proceeds of Collateral and any other payments or distributions received on account of the Loans shall be distributed in accordance with the terms of this Agreement.
      2.9 Sharing of Payments and Set-Off Among Lenders. Borrower hereby agrees that, in addition to (and without limitation of) any right of set-off, banker’s lien or counterclaim a Lender may otherwise have, each Lender shall be entitled, at its option, to offset balances held by it at any of its offices against any principal of or interest on any of its Loans hereunder, or any fee payable to it, that is not paid when due in which case it shall promptly notify the Borrower and the other Lenders thereof, provided that its failure to give such notice shall not affect the validity thereof. If a Lender shall effect payment of any principal of or interest on Loans held by it under this Agreement through the exercise of any right of set-off, banker’s lien, counterclaim or similar right, it shall promptly remit to the other Lender such amounts and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such payment pro rata in accordance with the unpaid principal and interest on the Loans held by each of them (however, no such adjustments shall affect the calculation of Pro Rata items or the determination of Majority Lenders). To such end, all the Lenders shall make appropriate adjustments among themselves if such payment is rescinded or must otherwise be restored. Nothing contained herein shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise and retain the benefits of exercising, any such right with respect to any other indebtedness or obligation of the Borrower.
      2.10 Interest . Except as otherwise specified in the applicable Note, Basic Interest on the outstanding principal balance of each Loan shall accrue daily at the Designated Rate from the Borrowing Date until the Maturity Date. If the outstanding principal balance of such Loan is not paid on the Maturity Date, interest shall accrue at the Default Rate until paid in full, as further set forth herein.
      2.11 Terminal Payment . Except as otherwise specified in the applicable Note, Borrower shall pay the Terminal Payment with respect to each Loan on the Maturity Date of such Loan.
      2.12 Interest Rate Calculation . Basic Interest, along with charges and fees under this Agreement and any Loan Document, shall be calculated for actual days elapsed on the basis of a 360-day year, which results in higher interest, charge or fee payments than if a 365-day year were used. In no event shall Borrower be obligated to pay any Lender interest, charges or fees at a rate in excess of the highest rate permitted by applicable law from time to time in effect.
      2.13 Default Interest . Any unpaid payments of principal or interest or the Terminal Payment, or any portion thereof, with respect to any Loan shall bear interest from their respective maturities, whether scheduled or accelerated, at the Designated Rate for such Loan plus five percent (5.00%) per annum, until paid in full, whether before or after judgment (the “Default Rate”). Borrower shall pay such interest on demand.
      2.14 Late Charges. If Borrower is late in making any payment of principal or interest or

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Terminal Payment under this Agreement by more than five (5) Business Days, Borrower agrees to pay a late charge of five percent (5%) of the unpaid amount due, but not less than fifty dollars ($50.00) for any one such delinquent payment. This late charge may be charged by the Lenders for the purpose of defraying the expenses incidental to the handling of such delinquent amounts. Borrower acknowledges that such late charge represents a reasonable sum considering all of the circumstances existing on the date of this Agreement and represents a fair and reasonable estimate of the costs that will be sustained by Lenders due to the failure of Borrower to make timely payments. Borrower further agrees that proof of actual damages would be costly and inconvenient. Such late charge shall be paid without prejudice to the rights of Lenders to collect any other amounts provided to be paid or to declare a default under this Agreement or any of the other Loan Documents or from exercising any other rights and remedies of Lenders.
      2.15 Lender’s Records . Principal, Basic Interest, Terminal Payments and all other sums owed under any Loan Document shall be evidenced by entries in records maintained by each Lender for such purpose. Each payment on and any other credits with respect to principal, Basic Interest, Terminal Payments and all other sums outstanding under any Loan Document shall be evidenced by entries in such records. Absent manifest error, a Lender’s records shall be conclusive evidence thereof.
     2.16 Grant of Security Interests; Filing of Financing Statements.
           (a) To secure the timely payment and performance of all of Borrower’s Obligations to Lenders, Borrower hereby grants to Agent for the benefit of the Lenders continuing security interests in all of the Collateral. In connection with the foregoing, Borrower authorizes Agent to prepare and file any financing statements describing the Collateral without otherwise obtaining the Borrower’s signature or consent with respect to the filing of such financing statements.
           (b) Borrower is and shall remain absolutely and unconditionally liable for the performance of its obligations under the Loan Documents, including, without limitation, any deficiency by reason of the failure of the Collateral to satisfy all amounts due Lenders under any of the Loan Documents.
           (c) All Collateral pledged by Borrower under this Agreement and any Supplement shall secure the timely payment and performance of all Obligations under this Agreement, the Notes and the other Loan Documents. Except as expressly provided in this Agreement, no Collateral pledged under this Agreement or any Supplement shall be released until such time as all Obligations under this Agreement and the other Loan Documents have been satisfied and paid in full.
ARTICLE 3 — REPRESENTATIONS AND WARRANTIES
     Borrower represents and warrants to Agent and each Lender that, except as set forth in either the Supplement or the Schedule of Exceptions hereto, as of the Closing Date and each Borrowing Date:
      3.1 Due Organization . Borrower is a corporation duly organized and validly existing in good standing under the laws of the jurisdiction of its incorporation, and is duly qualified to conduct business and is in good standing in each other jurisdiction in which its business is conducted or its properties are located, except where the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect.
      3.2 Authorization, Validity and Enforceability . The execution, delivery and performance of all Loan Documents executed by Borrower are within Borrower’s powers, have been duly authorized, and are not in conflict with Borrower’s certificate of incorporation or by laws, or the terms of any charter or other organizational document of Borrower, as amended from time to time; and all such Loan Documents constitute valid and binding obligations of Borrower, enforceable in accordance with their terms (except as may be limited by bankruptcy, insolvency and similar laws affecting the enforcement of creditors’ rights in general, and subject to general principles of equity).
      3.3 Compliance with Applicable Laws . Borrower has complied with all material licensing, permit and fictitious name requirements necessary to lawfully conduct the business in which it is engaged, and to any sales, leases or the furnishing of services by Borrower, including without limitation those requiring consumer or other disclosures, the noncompliance with which would have a Material Adverse Effect.
      3.4 No Conflict . The execution, delivery, and performance by Borrower of all Loan Documents and Warrants are not in conflict with any law, rule,

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regulation, order or directive applicable to Borrower, or any indenture, agreement, or undertaking to which Borrower is a party or by which Borrower may be bound or affected, except where such conflict would not have a Material Adverse Effect. Without limiting the generality of the foregoing, the issuance of the Warrants to Lenders (or their designees) will not violate any agreement or instrument by which Borrower is bound or require the consent of any holders of Borrower’s securities other than consents which have been obtained prior to the Closing Date or prior to the issuance of Warrants, as applicable.
      3.5 No Litigation, Claims or Proceedings . There is no litigation, tax claim, proceeding or dispute pending, or, to the knowledge of Borrower, threatened against or affecting Borrower, or its property or the conduct of business, which is reasonably likely to be determined adversely to Borrower and , if so adversely determined, would result in a Material Adverse Effect.
      3.6 Correctness of Financial Statements . Parent’s financial statements which have been delivered to each Lender fairly and accurately reflect in all material respects Borrowers’ consolidated financial condition in accordance with GAAP (except for the absence of footnote disclosures and subject to normal year end adjustments) as of the latest date of such financial statements; and, since that date there has been no Material Adverse Change.
      3.7 No Subsidiaries . As of the Closing Date, Borrower is not a majority owner of or in a control relationship with any other business entity. Borrower may from time to time amend or update the Schedule of Exceptions to reflect additions and/or deletions of subsidiaries and control relationships with other entities. Each such update shall be effective immediately upon delivery to Agent.
      3.8 Environmental Matters . To its knowledge, Borrower is in compliance with Environmental Laws applicable to its business, except to the extent a failure to be in such compliance would not have a Material Adverse Effect.
      3.9 No Event of Default . No Default or Event of Default has occurred and is continuing.
      3.10 Full Disclosure . None of the representations or warranties made by Borrower in the Loan Documents as of the date such representations and warranties are made or deemed made, and none of the factual statements contained in any exhibit, report, statement or certificate furnished by or on behalf of Borrower in connection with the Loan Documents (including disclosure materials delivered by or on behalf of Borrower to any Lender prior to the Closing Date or pursuant to Section 5.2 hereof), contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they are made, not misleading as of the time when made or delivered; it being understood and agreed that Borrower gives no representation or warranty with respect to projections, forecasts or other forward-looking statements prepared in good faith.
      3.11 Specific Representations Regarding Collateral.
      (a) Title. Except for the security interests created by this Agreement and Permitted Liens, (i) Borrower is and will be the unconditional legal and beneficial owner of the Collateral, and (ii) the Collateral is genuine and subject to no Liens, rights or defenses of others. Except for any applicable Permitted Liens, there exist no assignments or encumbrances properly recorded with the U.S. Patent and Trademark Office or the U.S. Copyright Office currently affecting any Collateral in favor of any third party.
      (b) Rights to Payment. The names of the obligors, amount owing to Borrower, due dates and all other information with respect to the Rights to Payment are and will be correctly stated in all material respects in all Records relating to the Rights to Payment. Borrower further represents and warrants, to its knowledge, that each Person appearing to be obligated on a Right to Payment has authority and capacity to contract and is bound as it appears to be.
      (c) Location of Collateral. Borrower’s chief executive office, Inventory, Records, Equipment, and any other offices or places of business are located at the address(es) shown on the Supplement. Any notice of a change of location provided pursuant to section 5.1(a) shall amend the Supplement automatically on the thirtieth day after receipt thereof.
      (d) Business Names. Other than its full corporate name, Borrower has not conducted business using any trade names or fictitious business names except as shown on the Supplement.
      3.12 Copyrights, Patents, Trademarks and Licenses .

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     (a) Borrower owns or is licensed or otherwise has the right to use or has in its possession all of the patents, trademarks, service marks, trade names, copyrights, contractual franchises, authorizations and other similar rights that are reasonably necessary for the operation of its business as currently conducted, to Borrower’s knowledge, without conflict with the rights of any other Person.
     (b) To Borrower’s knowledge, no slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by Borrower infringes upon any rights held by any other Person.
     (c) No claim or litigation involving Borrower regarding any of the subject matter of Section 3.12(a) and (b) is pending or, to Borrower’s knowledge, threatened, and, to Borrower’s knowledge, no statute, law, rule, regulation, standard or code applicable to Borrower is pending or proposed which, if became effective, could reasonably be expected to have a Material Adverse Effect.
      3.13 Debt Obligations Current. Borrower is solvent and able to pay its debts (including trade debts) as they mature.
      3.14 Regulatory Compliance. Borrower has met the minimum funding requirements of ERISA with respect to any employee benefit plans subject to ERISA. No event has occurred resulting from Borrower’s failure to comply with ERISA that will have a Material Adverse Effect. Borrower is not required to register as an “investment company” or a company “controlled” by an entity required to register as an “investment company” within the meaning of the Investment Company Act of 1940. Borrower is not engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulations T and U of the Board of Governors of the Federal Reserve System). Borrower has complied in all material respects with all the provisions of the Federal Fair Labor Standards Act.
      3.15 Survival. The representations and warranties of Borrower as set forth in this Agreement survive the execution and delivery of this Agreement.
ARTICLE 4 — CONDITIONS PRECEDENT
      4.1 Conditions to First Loan . The obligation of each Lender to make its first Loan hereunder is, in addition to the conditions precedent specified in Section 4.2 and in the Supplement, subject to the fulfillment of the following conditions and to the receipt by Agent of the documents described below, duly executed and in form and substance satisfactory to Agent and Lenders:
      (a) Resolutions . A certified copy of the resolutions of the Board of Directors of each Borrower authorizing the execution, delivery and performance by Borrower of the Loan Documents.
      (b) Incumbency and Signatures . A certificate of an authorized officer of Borrower certifying the names of the officer or officers of Borrower authorized to sign the Loan Documents, together with a sample of the true signature of each such officer.
      (c) Legal Opinion . The opinion of legal counsel for each Borrower as to such matters as Agent or any Lender may reasonably request, in substantially the form of Exhibit “E” to the Supplement.
      (d) Charter and By Laws . Certified copies of the Certificate of Incorporation and By Laws of each Borrower, as amended through the Closing Date.
      (e) This Agreement . Original counterparts of this Agreement and an initial Supplement, with all schedules completed and attached thereto, and disclosing such information as is acceptable to Agent and Lenders exercising reasonable discretion.
      (f) Financing Statements; Lien Perfection Documents . Filing copies (or other evidence of filing satisfactory to Agent, Lenders and their respective counsel) of such UCC financing statements, collateral assignments, account control agreements, and termination statements, with respect to the Collateral as Agent or Lenders shall reasonably request.
      (g) Lien Searches . Uniform Commercial Code lien, judgment, bankruptcy and tax lien searches of Borrower from such jurisdictions or offices as Agent or any Lender may reasonably request, all as of a date reasonably satisfactory to Agent, Lenders and their counsel.
      (h) Good Standing Certificate . A Certificate of status or good standing of each Borrower as of a date acceptable to Agent from the jurisdiction of such Borrower’s organization and any material foreign jurisdictions where Borrower is qualified to do business.

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      (i) Other Documents . Such other documents and instruments as Agent or Lenders may reasonably request to effectuate the intents and purposes of this Agreement.
      4.2 Conditions to All Loans . The obligation of each Lender to make its initial Loan and each subsequent Loan is subject to the following further conditions precedent that:
      (a) No Default . No Default or Event of Default has occurred and is continuing or will result from the making of any such Loan, and the representations and warranties of Borrower contained in Article 3 of this Agreement and Part 3 of the Supplement are true and correct (i) in all respects, with respect to those representations and warranties qualified by materiality, and (ii) in all material respects, with respect to those representations and warranties not so qualified as of the Borrowing Date of such Loan.
      (b) No Material Adverse Change . No Material Adverse Effect has occurred since the date of the Parent’s last annual audited financial statements.
      (c) Borrowing Request . Borrowers shall have delivered to Agent a Borrowing Request for such Loan.
      (d) Note . Borrowers shall have delivered to Agent an original executed Note for each Lender evidencing such Lender’s Loan, substantially in the form of Exhibit “A” attached to the Supplement.
      (e) Supplemental Lien Filings . Borrowers shall have executed and delivered such amendments or supplements to this Agreement and additional Security Documents, financing statements and third party waivers as Agent may reasonably request in connection with the proposed Loan, in order to create, protect or perfect or to maintain the perfection of Agent’s Liens on the Collateral for the benefit of the Lenders.
      (f) VCOC Limitation . Absent the failure of VLL to exercise commercially reasonable efforts and to act in good faith to qualify and remain so qualified, VLL shall not be obligated to make any Loan under its Commitment if at the time of or after giving effect to the proposed Loan VLL would no longer qualify as: (A) a “venture capital operating company” under U.S. Department of Labor Regulations Section 2510.3-101(d), Title 29 of the Code of Federal Regulations, as amended; and (B) a “business development company” under the provisions of federal Investment Company Act of 1940, as amended; and (C) a “regulated investment company” under the provisions of the Internal Revenue Code of 1986, as amended. VLL does not know, and has no reason to know of any facts or circumstances that could reasonably be expected to cause VLL to no longer qualify as (A) a “venture capital operating company”, (B) a “business development company”, or (C) a “regulated investment company” as those terms are defined above.
      (g) Financial Projections. Borrower shall have delivered to each Lender Borrower’s financial projections or business plan as prepared by or at the direction of Borrower’s management.
ARTICLE 5 — AFFIRMATIVE COVENANTS
     During the term of this Agreement so long as any Obligations to Agent and Lenders remain outstanding, Borrower will:
      5.1 Notice to Lender . Promptly give written notice to Lenders of:
     (a) Any litigation or administrative or regulatory proceeding affecting Borrower where the amount claimed against Borrower is at the Threshold Amount or more, or where the granting of the relief requested would reasonably be expected to have a Material Adverse Effect.
     (b) Any substantial dispute which may exist between Borrower or any governmental or regulatory authority.
     (c) The occurrence of any Default or any Event of Default.
     (d) Any change in the location of any of Borrower’s places of business or Collateral within thirty (30) days of such change, or of the establishment of any new, or the discontinuance of any existing, place of business.
     (e) Any dispute or default by Borrower or any other party under any joint venture, partnering, distribution, cross-licensing, strategic alliance, collaborative research or manufacturing, license or similar agreement which would reasonably be expected to have a Material Adverse Effect.
     (f) Any other matter which has resulted in a Material Adverse Change since December 31, 2003.

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      5.2 Financial Statements . Deliver to each Lender or cause to be delivered to each Lender, in form and detail satisfactory to Lenders the following financial information, which Parent warrants shall be accurate and complete in all material respects:
      (a) Monthly Financial Statements . As soon as available but no later than thirty (30) days after the end of each month, Parent’s consolidated unaudited balance sheet as of the end of such period, and its consolidated unaudited income statement and consolidated unaudited cash flow statement for such period and for that portion of its financial reporting year ending with such period, prepared in accordance with GAAP (except for the absence of footnotes and subject to normal year end adjustments), and attested by a responsible financial officer of Parent as being complete and correct and fairly presenting in all material respects Borrowers’ financial condition on a consolidated basis and the results of Borrowers’ operations. After an Initial Public Offering, the foregoing interim financial statements may be provided on a quarter-annual basis and shall be deemed delivered upon timely filing by Parent of its quarterly and annual reports with the Securities and Exchange Commission (“SEC”).
      (b) Year-End Financial Statements . As soon as available but no later than one hundred twenty (120) days after and as of the end of each financial reporting year, a complete copy of Parent’s audit report, which shall include consolidated balance sheet, income statement, statement of changes in equity and statement of cash flows for such year, prepared in accordance with GAAP, and certified by an independent certified public accountant selected by Parent (the “Accountant”). The Accountant’s certification shall not be qualified or limited without the prior written consent of each Lender.
      (c) Compliance Certificates . Simultaneously with the delivery of each set of financial statements referred to in paragraphs (a) and (b) above, a certificate of the chief financial officer or other executive officer of Parent substantially in the form of Exhibit “C” to the Supplement stating whether any Default or Event of Default exists on the date of such certificate, and if so, setting forth in reasonable detail thereof and the action which Borrower is taking or proposes to take with respect thereto.
      (d) Government Required Reports; Press Releases . Promptly after sending, issuing, making available, or filing, copies of all statements released to any news media for publication, all annual and quarterly reports, proxy statements, and financial statements that Parent sends or makes available to its stockholders, and, not later than five (5) Business Days after actual filing or the date such filing was first due, all registration statements and reports that Parent files or is required to file with the Securities and Exchange Commission, or any other governmental or regulatory authority.
      (e) Other Information . Such other statements, lists of property and accounts, budgets, forecasts, reports, or other information as Agent or any Lender may from time to time reasonably request.
      5.3 Managerial Assistance from VLL . Permit VLL to substantially participate in, and substantially influence the conduct of management of Borrower through the exercise of “management rights,” as that term is defined in 29 C.F.R. § 2510.3-101(d), including without limitation the following rights:
     (a) Borrower agrees that (i) it will make its officers, directors, employees and affiliates available at such times as VLL may reasonably request for VLL to consult with and advise as to the conduct of Borrower’s business, its equipment and financing plans, and its financial condition and prospects, (ii) VLL shall have the right to inspect Borrower’s books, records, facilities and properties at reasonable times during normal business hours on reasonable advance notice at its own expense, and (iii) VLL shall be entitled to recommend prospective candidates for election or nomination for election to Borrower’s Board of Directors, and Borrower shall give due consideration to (but shall not be bound by) such recommendations, it being the intention of the parties that VLL shall be entitled through such rights, inter alia , to furnish “significant managerial assistance”, as defined in Section 2(a)(47) of the Investment Company Act of 1940, to Borrower.
     (b) Without limiting the generality of (a) above, if VLL reasonably believes that financial or other developments affecting Borrower have impaired or are likely to impair Borrower’s ability to perform its obligations under this Agreement, permit VLL reasonable access to Borrower’s management and/or Board of Directors and opportunity to present VLL’s views with respect to such developments.
VLL shall cooperate with Borrower to ensure that the exercise of VLL’s rights shall not disrupt the business of Borrower. The rights enumerated above shall not be construed as giving VLL control over Borrower’s management or policies. Borrower

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agrees that this Section 5.3 does not apply to any Lender hereunder other than VLL. VLL agrees that it will indemnify, defend and hold harmless each other Lender for any claims arising as a result of VLL’s exercise of its rights under this Section 5.3.
      5.4 Existence . Maintain and preserve Borrower’s existence, present form of business, and all material rights and privileges necessary or desirable in the normal course of its business; and keep all Borrower’s property in good working order and condition, ordinary wear and tear excepted.
      5.5 Insurance . Obtain and keep in force insurance in such amounts and types as is usual in the type of business conducted by Borrower with insurance carriers having a policyholder rating of not less than “A-” and financial category rating of Class VII in “Best’s Insurance Guide,” unless otherwise approved by Agent. Such insurance policies must be in form and substance satisfactory to Agent. All property policies will have a lender’s loss payable endorsement showing Agent, for the benefit of Lenders, as a loss payee and all liability policies will show the Agent, for the benefit of Lenders, as an additional insured. At Agent’s request, Borrower will deliver to Agent certified copies of policies, endorsements or a certificate of insurance evidencing the same, and evidence of all premium payments. If no Event of Default has occurred and is continuing, proceeds payable under any casualty policy will, at Borrower’s option, be payable to Borrower to replace the property subject to the claim, provided that any such replacement property shall be deemed Collateral in which Agent, for the benefit of Lenders, has been granted a first priority security interest. If an Event of Default has occurred and is continuing, then proceeds payable under any policy will be payable to Agent, for the benefit of Lenders, toward the satisfaction of the Obligations in accordance with the terms of this Agreement.
      5.6 Accounting Records . Maintain adequate books, accounts and records, and prepare all financial statements in accordance with GAAP (except for the absence of footnotes and subject to normal year end adjustments with respect to unaudited financial statements), and in compliance with the regulations of any governmental or regulatory authority having jurisdiction over Borrower or Borrower’s business; and permit employees or agents of Agent and any Lender at such reasonable times and upon reasonable notice as they may request, at Borrower’s expense after the occurrence of an Event of Default, to inspect Borrower’s properties, and to examine, and make copies and memoranda of Borrower’s books, accounts and records.
      5.7 Compliance With Laws . Comply with all laws (including, without limitation, Environmental Laws) rules, regulations applicable to, and all orders and directives of any governmental or regulatory authority having jurisdiction over, Borrower or Borrower’s business, and with all material agreements to which Borrower is a party, except where the failure to so comply would not have a Material Adverse Effect.
      5.8 Taxes and Other Liabilities . Pay all Borrower’s Indebtedness when due; and pay all taxes and other governmental or regulatory assessments before delinquency or before any penalty attaches thereto, in each case, except as may be contested in good faith by the appropriate procedures and for which Borrower shall maintain appropriate reserves in accordance with GAAP; and timely file all required tax returns.
      5.9 Special Collateral Covenants.
      (a) Maintenance of Collateral; Inspection. Do all things reasonably necessary to maintain, preserve, protect and keep all tangible Collateral in good working order and salable condition, ordinary wear and tear excepted, utilize the Collateral for its intended use or as otherwise may be used in the ordinary course of Borrower’s business, and use the Collateral lawfully and, to the extent applicable, only as permitted by Borrower’s insurance policies. Maintain, or cause to be maintained, complete and accurate Records relating to the Collateral. Upon reasonable prior notice at reasonable times during normal business hours, Borrower hereby authorizes Agent and each Lender’s officers, employees, representatives and agents to inspect the Collateral and to discuss the Collateral and the Records relating thereto with Borrower’s officers and employees, and, in the case of any Right to Payment, with any Person which is or may be obligated thereon.
      (b) Financing Statements and Other Actions. Execute and deliver to Agent all financing statements, account control agreements, notices and other documents from time to time reasonably requested by Agent to maintain a first perfected security interest in the Collateral in favor of Agent, for the benefit of Lenders subject only to Permitted Liens; perform such other acts, and execute and deliver to Agent such additional conveyances, assignments, agreements and instruments, as Agent may at any time reasonably

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request in connection with the administration and enforcement of this Agreement or Agent’s or Lender’s rights, powers and remedies hereunder.
      (c) Liens . Not create, incur, assume or permit to exist any Lien or grant any other Person a negative pledge on any Collateral, except Permitted Liens.
      (d) Documents of Title. Other than as required in connection with Permitted Liens or as set forth in Section 6.1, not sign or authorize the signing of any financing statement or other document naming Borrower as debtor or obligor, or acquiesce or cooperate in the issuance of any bill of lading, warehouse receipt or other document or instrument of title with respect to any Collateral, except those negotiated to Agent, or those naming Agent as secured party.
      (e) Change in Location or Name. Without at least 30 days’ prior written notice to Lenders: (a) not relocate any Collateral or Records, its chief executive office, or establish a place of business at a location other than as specified in the Supplement; and (b) not change its name, mailing address, location of Collateral, jurisdiction of incorporation or its legal structure.
      (f) Decals, Markings. At the request of Agent, firmly affix a decal, stencil or other marking to designated items of Equipment, indicating thereon the security interest of Agent.
      (g) [Intentionally omitted]
      (h) Certain Agreements on Rights to Payment. Other than in the ordinary course of business, not make any material discount, credit, rebate or other reduction in the original amount owing on a Right to Payment or accept in satisfaction of a Right to Payment an amount materially less than the original amount thereof.
      5.10 Authorization for Automated Clearinghouse Funds Transfer. (i) Authorize each Lender to initiate debit entries to Borrower’s Primary Operating Account, specified in the Supplement hereto, through Automated Clearinghouse (“ACH”) transfers, in order to satisfy regularly scheduled payments of principal, interest and Terminal Payments; (ii) provide Lenders at least thirty (30) days notice of any change in Borrower’s Primary Operating Account; and (iii) grant Lenders any additional authorizations necessary to begin ACH debits from a new account which becomes the Primary Operating Account.
ARTICLE 6 — NEGATIVE COVENANTS
     During the term of this Agreement so long as any Obligations remain outstanding, Borrower will not (without Majority Lenders’ prior written consent):
      6.1 Indebtedness. Be indebted for borrowed money, the deferred purchase price of property, or leases which would be capitalized in accordance with GAAP; or become liable as a surety, guarantor, accommodation party or otherwise for or upon the obligation of any other Person, except:
     (a) Indebtedness existing on the date hereof;
     (b) Indebtedness incurred for the acquisition of supplies or inventory on normal trade credit;
     (c) Indebtedness incurred pursuant to one or more transactions permitted under Section 6.4 ;
     (d) Indebtedness of Borrower under this Agreement;
     (e) any Subordinated Debt;
     (f) Indebtedness arising out of earnout and similar contingent payment obligations of Borrower in existence as of the Closing Date;
     (g) bridge loan financing, whether or not convertible into Borrower’s equity securities; and
     (h) and, in addition to the foregoing, up to Three Million Dollars ($3,000,000) in aggregate principal amount of Indebtedness outstanding at any time.
      6.2 Liens . Create, incur, assume or permit to exist any Lien, or grant any other Person a negative pledge, on any of Borrower’s property, except Permitted Liens. Borrower and Lender agree that this covenant is not intended to constitute a lien, deed of trust, equitable mortgage, or security interest of any kind on any of Borrower’s real property, and this Agreement shall not be recorded or recordable. Without limiting the generality of the foregoing, and as a material inducement to the Lenders’ making of the Commitment and entering into the Loan Documents, Borrower agrees that it shall not assign, mortgage, pledge, grant a security interest in, or encumber any of Borrower’s Intellectual Property, or enter into any agreement, document, instrument or other arrangement (except with or in favor of Agent and Lenders) with any Person which directly or

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indirectly prohibits or has the effect of prohibiting Borrower from assigning, mortgaging, pledging, granting a security interest in or upon, or encumbering any of Borrower’s Intellectual Property, except as is otherwise permitted in Section 6.5 of this Agreement and the definition of “Permitted Lien” herein.
      6.3 Dividends . Except after an Initial Public Offering, pay any dividends or purchase, redeem or otherwise acquire or make any other distribution with respect to any of Parent’s capital stock, except (a) dividends or other distributions solely of capital stock of Parent, (b) cash payments for fractional shares of Parent’s capital stock, including, without limitation, upon the exercise or conversion of options, warrants, rights and other similar instruments exercisable or convertible into Parent’s capital stock, (c) dividends by Advanced Biotheropeutics, Inc. to its Parent, and (d) so long as no Event of Default has occurred and is continuing, (i) repurchases of stock from employees, directors or consultants upon termination of employment under reverse vesting or similar repurchase plans not to exceed $100,000 in aggregate in any calendar year and (ii) dividends and distributions in respect of Financing Shares equating to periodic, unaccelerated cash payments of non-default rate accrued interest on comparable Subordinated Debt financing.
      6.4 Changes/Mergers . Liquidate or dissolve; or enter into any consolidation, merger or other combination in which the stockholders of the Borrower immediately prior to the first such transaction own less than 50% of the voting stock of the Borrower or the entity that results from such merger or consolidation (the “Surviving Entity”) immediately after giving effect to such transaction or related series of such transactions, except that Borrower may consolidate or merge so long as: (A) the Surviving Entity shall have executed and delivered to Agent an agreement in form and substance reasonably satisfactory to Lenders, containing an assumption by the Surviving Entity of the due and punctual payment and performance of all Obligations and performance and observance of each covenant and condition of Borrower in the Loan Documents; (B) all such obligations of the Surviving Entity to Lenders shall be guaranteed by any entity that directly or indirectly owns or controls more than 50% of the voting stock of the Surviving Entity; (C) immediately after giving effect to such merger or consolidation, no Default or Event of Default shall have occurred and be continuing; and (D) the credit risk to Lenders, in their sole discretion, of the Surviving Entity shall not be increased. In determining whether the proposed merger or consolidation would result in an increased credit risk, Lenders may consider, among other things, changes in Borrower’s management team, employee base, access to equity markets, venture capital support, financial position and/or disposition of intellectual property rights which may reasonably be anticipated as a result of the transaction.
      6.5 Sales of Assets . Sell, transfer, lease, license or otherwise dispose of (a “Transfer”) any of Borrower’s assets except (i) exclusive and non-exclusive licenses of Intellectual Property consistent with industry practice, including, without limitation, research and product development collaborations (so long as no one exclusive license or series of exclusive licenses to any one licensee covers all or substantially all of Borrower’s Intellectual Property assets and rights); (ii) Transfers of worn-out, obsolete or surplus property (each as determined by the Borrower in its reasonable judgment) not constituting Equipment as to which a Loan was made hereunder; (iii) Transfers of Inventory not constituting Equipment as to which a Loan was made hereunder; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers in connection with research and product development collaborations involving a joint venture or Delayed Joint Venture, (vii) Transfers of equity interests to a Collaborator pursuant to a Delayed Joint Venture, and (viii) Transfers of Collateral for fair consideration and in the ordinary course of its business.
      6.6 Loans/Investments . Make or suffer to exist any loans, guaranties, advances, or investments, except:
     (a) Accounts receivable in the ordinary course of Borrower’s business;
     (b) Investments other than in accordance with the investment policy approved by the Parent’s Board of Directors, a copy of which has been made available to the Agent.
     (c) Temporary advances to cover incidental expenses to be incurred in the ordinary course of business;
     (d) Investments in and loans to joint ventures, strategic alliances, licensing and similar arrangements customary in Borrower’s industry;

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     (e) other than as provided in Section 6.5, investments and loans which do not require Borrower to assume or otherwise become liable for the obligations of any third party not directly related to or arising out of such arrangement or, without the prior written consent of Lender, require Borrower to transfer ownership of non-cash assets to a joint venture or other similar entity;
     (f) Investments and loans by Parent to direct and indirect in its wholly-owned subsidiaries, including re-advance of Loan proceeds by Parent to its wholly-owned subsidiaries;
     (g) Investments and loans outstanding on the date hereof; and
     (h) Other loans, investments and advances in any amount not to exceed the Threshold Amount at anytime outstanding.
      6.7 Transactions With Related Persons . Except as permitted under Section 6.6(f), or except in connection with a strategic collaboration and as approved by Parent’s Board of Directors, directly or indirectly enter into any transaction with or for the benefit of a Related Person on terms more favorable to the Related Person than would have been obtainable in an “arms’ length” dealing except agreements and transactions with and payments to Related Persons that are entered into outside the ordinary course of business, not otherwise prohibited by this Loan Agreement and affirmatively approved by a majority of the disinterested directors and of the stockholders of Borrower.
      6.8 Other Business . Engage in any material line of business other than the business Borrower conducts as of the Closing Date or any business reasonably related or incidental thereto.
      6.9 Compliance. Become required to register as an “investment company” or controlled by an entity required to register as an “investment company,” within the meaning of the Investment Company Act of 1940, or become principally engaged in, or undertake as one of its important activities, the business of extending credit for the purpose of purchasing or carrying margin stock, or use the proceeds of any Loan for such purpose. Fail to meet the minimum funding requirements of ERISA, permit a Reportable Event or Prohibited Transaction, as defined in ERISA, to occur, fail to comply in all material respects with the Federal Fair Labor Standards Act or violate any law or regulation, but only to the extent any such violation results in a Material Adverse Effect or a material adverse effect on the Collateral or the priority of Agent’s Lien on the Collateral, or permit any of its subsidiaries to do any of the foregoing.
      6.11 Other Deposit and Securities Accounts. Maintain any deposit accounts or accounts holding securities owned by Borrower except (i) Deposit Accounts and investment/securities accounts as set forth in the Supplement, and (ii) other Deposit Accounts and securities/investment accounts, in each case, Agent shall have taken such action as Lenders reasonably deem necessary to obtain a perfected first security interest therein.
      6.12 Prepayment of Indebtedness . Prepay, redeem or otherwise satisfy in any manner prior to the scheduled repayment thereof any Indebtedness (other than the Loans).
      6.13 Relationship of Borrowers . Parent ceases to own all of the issued and outstanding capital stock of Advanced Biotherapeutics, Inc.
ARTICLE 7 — EVENTS OF DEFAULT
      7.1 Events of Default; Acceleration . Upon the occurrence and during the continuation of any Default, the obligation of each Lender to make any additional Loan shall be suspended. The occurrence of any of the following (each, an “Event of Default”) shall terminate any obligation of Lenders to make any additional Loan; and shall, at the option of Majority Lenders (1) make all sums of Basic Interest and principal, all Terminal Payments, and any Obligations and other amounts owing under any Loan Documents immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands, and (2) give Agent and Lenders the right to exercise any other right or remedy provided by contract or applicable law:
     (a) Borrower shall fail to pay any principal or interest or Terminal Payment under this Agreement or any Note when due; or shall fail to pay any fees or other charges when due under any Loan Document and such failure continues for five (5) Business Days or more after the same first becomes due; or an Event of Default as defined in any other Loan Document shall have occurred.
     (b) Any representation or warranty made, or financial statement, certificate or other document provided, by Borrower under any Loan Document

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shall prove to have been false or misleading in any material respect when made or deemed made herein.
     (c) Borrower shall fail to pay its debts generally as they become due or shall commence any Insolvency Proceeding with respect to itself; an involuntary Insolvency Proceeding shall be filed against Borrower, or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of Borrower, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or is not dismissed within forty five (45) days; or results in the dissolution or termination of the business of Borrower.
     (d) Borrower shall be in default beyond any applicable period of grace or cure under any other agreement involving the borrowing of money, the purchase of property, the advance of credit or any other monetary liability of any kind to Lenders or to any Person which results in the acceleration of payment of such obligation in an amount in excess of the Threshold Amount.
     (e) Any governmental or regulatory authority shall take any judicial or administrative action, or any defined benefit pension plan maintained by Borrower shall have any unfunded liabilities, any of which, in the reasonable judgment of Agent, would result in a Material Adverse Effect.
     (f) Any sale, transfer or other disposition of all or substantially all of the assets of Borrower, including without limitation to any trust or similar entity, shall occur except as permitted under Sections 6.4 or 6.5.
     (g) Any judgment(s) singly or in the aggregate in excess of the Threshold Amount shall be entered against Borrower which is not fully covered by insurance and which remain unsatisfied, unvacated or unstayed pending appeal for thirty (30) or more days after entry thereof.
     (h) Any Person or two or more Persons who are not stockholders of Parent as of the Closing Date acting in concert shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission) of the voting stock of Parent representing fifty percent (50%) or more of the outstanding voting power of Parent.
     (i) Borrower shall fail to perform or observe any covenant contained in Article 6 of this Agreement.
     (j) Borrower shall fail to perform or observe any covenant contained in Section 5.9 of this Agreement.
     (k) Borrower shall fail to perform or observe any covenant contained in this Agreement or any other Loan Document (other than a covenant which is dealt with specifically elsewhere in this Article 7) and, if capable of being cured, the breach of such covenant is not cured within 30 days after the sooner to occur of Borrower’s receipt of notice of such breach from Agent or any Lender or the date on which such breach first becomes known to any officer of Borrower; provided , however that if such breach is not capable of being cured within such 30-day period and Borrower timely notifies Agent of such fact and Borrower diligently pursues such cure, then the cure period shall be extended to the date requested in Borrower’s notice but in no event more than 90 days from the initial breach; provided , further , that such additional 60-day opportunity to cure shall not apply in the case of any failure to perform or observe any covenant which has been the subject of a prior failure within the preceding 180 days or which is a willful and knowing breach by Borrower.
      7.2 Remedies Upon Default. Upon the occurrence and during the continuance of an Event of Default, Agent shall be entitled to, at the direction of the Majority Lenders, exercise any or all of the rights and remedies available to a secured party under the UCC or any other applicable law, and exercise any or all of its rights and remedies provided for in this Agreement and in any other Loan Document, including, without limitation, delivering a notice of exclusive control (or similar document) under a deposit account control agreement and/or securities account control agreement, as applicable; provided, however, that Agent agrees and acknowledges that neither it nor any Lender shall deliver any such notice of exclusive control (or similar document) until an Event of Default occurs and continues thereafter without cure before such notice has been given. The obligations of Borrower under this Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any Obligations is rescinded or must otherwise be returned by Agent or any Lender upon, on account of, or in connection with, the insolvency, bankruptcy or reorganization of Borrower or otherwise, all as though such payment had not been made.
      7.3 Sale of Collateral. Subject only to all rights of redemption and rights of stay or appeal afforded to Borrower under applicable law, upon the occurrence and during the continuance of an Event of Default,

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Agent shall, at the direction of the Majority Lenders, sell all or any part of the Collateral, at public or private sales, to a wholesaler, retailer or investor, for cash, upon credit or for future delivery, and at such price or prices as Agent may deem commercially reasonable. The Agent and/or any Lender may bid and purchase at any public sale of the Collateral. Any such public or private sales shall be held at such times and at such place(s) as Agent may determine. In case of the sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Agent until the selling price is paid by the purchaser, but Agent shall not incur any liability in case of the failure of such purchaser to pay for the Collateral and, in case of any such failure, such Collateral may be resold. Agent shall, at the direction of the Majority Lenders instead of exercising its power of sale, proceed to enforce the Lenders’ security interest in the Collateral by seeking a judgment or decree of a court of competent jurisdiction.
      7.4 Borrower’s Obligations Upon Default. Upon the request of Agent after the occurrence and during the continuance of an Event of Default, Borrower will:
      (a)  Assemble and make available to Agent the Collateral at such place(s) as Agent shall reasonably designate, segregating all Collateral so that each item is capable of identification; and
      (b)  Subject to the rights of any lessor, permit Agent, by Agent’s officers, employees, agents and representatives, to enter any premises where any Collateral is located, to take possession of the Collateral, to complete the processing, manufacture or repair of any Collateral, and to remove the Collateral, or to conduct any public or private sale of the Collateral, all without any liability of Agent or any Lender for rent or other compensation for the use of Borrower’s premises.
ARTICLE 8 — SPECIAL COLLATERAL PROVISIONS
      8.1 Compromise and Collection. Borrower, Agent and Lenders recognize that setoffs, counterclaims, defenses and other claims may be asserted by obligors with respect to certain of the Rights to Payment; that certain of the Rights to Payment may be or become uncollectible in whole or in part; and that the expense and probability of success of litigating a disputed Right to Payment may exceed the amount that reasonably may be expected to be recovered with respect to such Right to Payment. Borrower hereby authorizes Agent, after and during the continuance of an Event of Default, to compromise with the obligor, accept in full payment of any Right to Payment such amount as Agent shall negotiate with the obligor, or abandon any Right to Payment. Any such action by Agent shall be considered commercially reasonable so long as Agent acts in good faith based on information known to it at the time it takes any such action.
      8.2 Performance of Borrower’s Obligations. Without having any obligation to do so, upon reasonable prior notice to Borrower, Agent may perform or pay any obligation which Borrower has agreed to perform or pay under this Agreement, including, without limitation, the payment or discharge of taxes or Liens levied or placed on or threatened against the Collateral. In so performing or paying, Agent shall determine the action to be taken and the amount necessary to discharge such obligations. Borrower shall reimburse Agent on demand for any amounts paid by Agent pursuant to this Section, which amounts shall constitute Obligations secured by the Collateral and shall bear interest from the date of demand at the Default Rate.
      8.3 Power of Attorney. For the purpose of protecting and preserving the Collateral and Agent’s and each Lender’s rights under this Agreement, Borrower hereby irrevocably appoints Agent for the benefit of Lenders, with full power of substitution, as its attorney-in-fact with full power and authority, after the occurrence and during the continuance of an Event of Default, to do any act which Borrower is obligated to do hereunder; to exercise such rights with respect to the Collateral as Borrower might exercise; to use such Inventory, Equipment, Fixtures or other property as Borrower might use; to enter Borrower’s premises; to give notice of Agent’s security interest in, and to collect the Collateral; and before or after Default, to execute and file in Borrower’s name any financing statements, amendments and continuation statements necessary or desirable to perfect or continue the perfection of Agent’s security interests in the Collateral. Borrower hereby ratifies all that Agent shall lawfully do or cause to be done by virtue of this appointment.
      8.4 Authorization for Agent to Take Certain Action. The power of attorney created in Section 8.3 is a power coupled with an interest and shall be irrevocable. The powers conferred on Agent hereunder are solely to protect Lenders’ interests in the Collateral and shall not impose any duty upon Agent or any Lender to exercise such powers. Agent shall be

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accountable only for amounts that it actually receives as a result of the exercise of such powers and in no event shall Agent or any of its directors, officers, employees, agents or representatives be responsible to Borrower for any act or failure to act, except for gross negligence or willful misconduct. After the occurrence and during the continuance of an Event of Default, Agent may exercise this power of attorney without notice to or assent of Borrower, in the name of Borrower, or in Agent’s or any Lender’s own name, from time to time in Agent’s sole discretion and at Borrower’s expense. To further carry out the terms of this Agreement, after the occurrence and during the continuance of an Event of Default, Agent may:
      (a)  Execute any statements or documents or take possession of, and endorse and collect and receive delivery or payment of, any checks, drafts, notes, acceptances or other instruments and documents constituting Collateral, or constituting the payment of amounts due and to become due or any performance to be rendered with respect to the Collateral.
      (b)  Sign and endorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts; drafts, certificates and statements under any commercial or standby letter of credit relating to Collateral; assignments, verifications and notices in connection with Accounts; or any other documents relating to the Collateral, including without limitation the Records.
      (c)  Use or operate Collateral or any other property of Borrower for the purpose of preserving or liquidating Collateral.
      (d)  File any claim or take any other action or proceeding in any court of law or equity or as otherwise deemed appropriate by Agent in its reasonable discretion for the purpose of collecting any and all monies due or securing any performance to be rendered with respect to the Collateral.
      (e)  Commence, prosecute or defend any suits, actions or proceedings or as otherwise deemed appropriate by Agent for the purpose of protecting or collecting the Collateral. In furtherance of this right, upon the occurrence and during the continuance of an Event of Default, Agent may apply for the appointment of a receiver or similar official to operate Borrower’s business.
      (f)  Prepare, adjust, execute, deliver and receive payment under insurance claims, and collect and receive payment of and endorse any instrument in payment of loss or returned premiums or any other insurance refund or return, and apply such amounts at Agent’s sole discretion, toward repayment of the Obligations or replacement of the Collateral.
      8.5 Application of Proceeds. Any Proceeds and other monies or property received by Agent or any Lender pursuant to the terms of this Agreement or any Loan Document shall be applied in accordance with the terms of this Agreement.
      8.6 Deficiency. If the Proceeds of any disposition of the Collateral are insufficient to cover all costs and expenses of such sale and the payment in full of all the Obligations, plus all other sums required to be expended or distributed by Agent or any Lender, then Borrower shall be liable for any such deficiency.
      8.7 Lender Transfer. Upon the transfer of all or any part of the Obligations, any Lender may transfer all or part of its interest in the Collateral and shall be fully discharged thereafter from all liability and responsibility with respect to such Collateral so transferred, and the transferee shall be vested with all the rights and powers of such Lender hereunder with respect to such Collateral so transferred, but with respect to any Collateral not so transferred, such Lender shall retain all rights and powers hereby given.
8.8 Agent’s Duties.
      (a)  Agent shall use reasonable care in the custody and preservation of any Collateral in its possession. Without limitation on other conduct which may be considered the exercise of reasonable care, Agent shall be deemed to have exercised reasonable care in the custody and preservation of such Collateral if such Collateral is accorded treatment substantially equal to that which Agent accords its own property, it being understood that Agent and Lenders shall not have any responsibility for ascertaining or taking action with respect to calls, conversions, exchanges, maturities, declining value, tenders or other matters relative to any Collateral, regardless of whether Agent or any Lender has or is deemed to have knowledge of such matters; or taking any necessary steps to preserve any rights against any Person with respect to any Collateral. Under no circumstances shall Agent or any Lender be responsible for any injury or loss to the Collateral, or any part thereof, arising from any cause beyond the reasonable control of Agent.
      (b)  Agent may at any time deliver the Collateral or any part thereof to Borrower and the receipt of Borrower shall be a complete and full acquittance for

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the Collateral so delivered, and Agent and Lenders shall thereafter be discharged from any liability or responsibility therefor.
      (c)  Neither Agent, any Lender, nor any of their respective directors, officers, employees, agents, attorneys or any other person affiliated with or representing Agent or any Lender shall be liable for any claims, demands, losses or damages, of any kind whatsoever, made, claimed, incurred or suffered by Borrower or any other party other than by the gross negligence and/or willful misconduct of Agent or any Lender, or any of their respective directors, officers, employees, agents, attorneys or any other person affiliated with or representing Agent or any Lender.
      8.9 Termination of Security Interests. Upon the indefeasible payment in full of the Obligations (other than contingent indemnification obligations) and satisfaction of all Borrower’s obligations under this Agreement and the other Loan Documents, and if Lenders have no further obligations under their respective Commitments, the security interest granted hereby shall terminate and all rights to the Collateral shall revert to Borrower. Upon any such termination, the Agent shall, at Borrower’s expense, execute and deliver to Borrower such documents as Borrower shall reasonably request to evidence such termination.
ARTICLE 9 — THE AGENT
      9.1 Appointment, Powers and Immunities. Each Lender hereby irrevocably appoints and authorizes Agent to act as its agent hereunder, under the Security Documents and the other Loan Documents with such powers as are specifically delegated to the Agent by the terms of this Agreement, the Security Documents and the other Loan Documents together with such other powers as are reasonably incidental thereto. The Agent shall have no duties or responsibilities except those expressly set forth in this Agreement, the Security Documents and the other Loan Documents and shall not be a trustee for any Lender. The Agent shall not be responsible to the Lenders for any recitals, statements, representations or warranties contained in this Agreement, the Security Documents, or the other Loan Documents, or in any certificate or other document referred to or provided for in, or received by any of them under, this Agreement, the Security Documents or the other Loan Documents, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Security Documents, the other Loan Documents, or any other document referred to or provided for herein or therein, or for the collectibility of the Loans or for the validity, effectiveness or value of any interest or security covered by the Security Documents or for the value of any Collateral or for the validity or effectiveness of any assignment, mortgage, pledge, security agreement, financing statement, document or instrument, or for any failure by the Borrower to perform any of its obligations here-under or under the other Loan Documents. Agent may employ agents and attorneys-in-fact and shall only be answerable, including as to money or securities received by it or its authorized agents, for the gross negligence and/or willful misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder, under the Security Documents or the other Loan Documents or in connection herewith or therewith, except for its or their own gross negligence, willful misconduct, or breach of this Agreement.
      9.2 Reliance by Agent. Agent shall be entitled to rely upon any certification, notice or other communication (including any thereof by telephone, facsimile transmission, or email) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person or persons, and upon advice and statements of legal counsel, independent accountants and other experts selected by Agent. As to any matters not expressly provided for by this Agreement, the Security Documents or the other Loan Documents, Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder, under the Security Documents or the other Loan Documents in accordance with instructions signed by the Majority Lenders, and such instructions of the Majority Lenders and any action taken or failure to act pursuant thereto shall be binding on all of the Lenders.
      9.3 Knowledge of Default; Cross Defaults. Agent shall not be deemed to have knowledge of the occurrence of a default or event of default, however defined in any Loan Document, unless Agent has received notice from a Lender or the Borrower specifying such default or event of default and stating that such notice is a “Notice of Default”. In the event that Agent receives such a notice of the occurrence of a default or event of default, Agent shall give notice thereof to the Lenders. The occurrence of an Event of Default under this Agreement shall constitute an Event of Default under each other Loan Document. Upon becoming aware of the occurrence of an Event

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of Default under this Agreement, a Lender shall give notice thereof to all Lenders.
      9.4 Rights as a Lender. With respect to its Commitment and the Loans made by it, Agent in its capacity as a Lender hereunder shall have the same rights and powers hereunder as any other Lender and may exercise the same as though it were not acting as an Agent, and the term “Lender” or “Lenders” shall, unless the context other-wise indicates, include Agent in its individual capacity.
      9.5 Indemnification. The Lenders shall indemnify Agent ratably in accordance with the aggregate principal amount of the Loans made by the Lenders (or, if no Loans are at the time outstanding, ratably in accordance with their respective Commitments), for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever that may be imposed on, incurred by or asserted against the Agent in any way relating to or arising out of this Agreement, the Security Documents or any of the other Loan Documents or any other documents contemplated by or referred to herein or therein or the transactions contemplated by or referred to herein or therein or the transactions contemplated hereby and thereby (but excluding, unless a default or event of default has occurred and is continuing, normal administrative costs and expenses incident to the performance of its agency duties hereunder or under the Security Documents) or the enforcement of any of the terms hereof or of the Security Documents, or of any such other documents, provided that no Lender shall be liable for any of the foregoing to the extent they arise from the gross negligence, breach of this Agreement, or willful misconduct of the party to be indemnified.
      9.6 Failure to Act. Except for action expressly required of an Agent hereunder or under the Security Documents, Agent shall in all cases be fully justified in failing or refusing to act hereunder or thereunder unless it shall be indemnified to its satisfaction by the Lenders against any and all liability, cost and expense that may be incurred by it by reason of taking or continuing to take any such action.
      9.7 Resignation or Removal of Agent. If at any time Agent deems it advisable, in its sole discretion, it may submit to each of the Lenders a written notification of its resignation as Agent under this Agreement and the Security Documents, such resignation to be effective on the thirtieth (30th) day after the date of such notice. Agent may be removed at any time, with or without cause, by vote of the Majority Lenders, provided, that if Agent is also one of the Lenders its vote shall not be counted and the decision of the remaining Lenders must be unanimous. Upon any such resignation or removal, the Majority Lenders shall have the right to appoint a successor Agent from among the Lenders. If no successor Agent shall have been so appointed by the Majority Lenders and accepted such appointment within 30 days after the retiring Agent’s giving of notice of resignation, then the retiring Agent may, on behalf of Lenders, appoint a successor Agent, which successor Agent shall be either an existing Lender or a commercial bank organized under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $100,000,000, and which successor Agent (if not also a Lender), if no event of default on the part of Borrower shall have occurred and be continuing, shall be reasonably satisfactory to Borrower. Upon the acceptance of any appointment as Agent hereunder by a successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under this Agreement. Borrower and the Lenders shall execute such documents as shall be necessary to effect such appointment. After any retiring Agent’s resignation hereunder as Agent, the provisions of this Section 9.7 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement.
      9.8 Credit Decision. Each Lender acknowledges that none of Agent or the other Lenders has made any representation or warranty to it, and that no act by Agent or one Lender hereinafter taken, including any review of the affairs of Borrower, shall be deemed to constitute any representation or warranty by the Agent or such Lender to any other Lender. Each Lender represents to the other Lenders that it has, independently and without reliance upon any other Lender and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of Borrower, and all applicable bank, lending, interest rate and securities regulatory laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to Borrower thereunder. Each Lender also represents that it will, independently and without reliance upon any other

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Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of Borrower. Except for any notices, reports and other documents expressly herein required to be furnished to other Lenders by a Lender, such Lender shall not have any duty or responsibility to provide such other Lenders with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of Borrower which may come into the possession of any of such Lender.
      9.9 Lenders’ Representations Regarding IRS Withholding; Delivery of Tax Forms. To the extent Agent may hold from time to time payments for the account of the Lenders, each Lender represents and agrees as follows:
      (a)  Lender represents and warrants that it is entitled to receive any payments under the Loan Documents to which it is a party without the withholding of any tax, and will furnish to the Agent such forms, certifications, statements and other documents as Agent may request from time to time to evidence such Lender’s exemption from the withholding of any tax imposed by any jurisdiction or to enable Agent to comply with any applicable laws or regulations relating thereto.
      (b)  Without limiting the effect of the foregoing, if Lender is not created or organized under the laws of the United States or any state thereof, Lender further represents and warrants (i) that it is engaged in the conduct of a business within the United States and that the payments made hereunder are or are reasonably expected to be effectively connected with the conduct of that trade or business and are or will be includible in its gross income; or (ii) if Lender is not engaged in a U.S. trade or business with which such payments are effectively connected, that Lender is entitled to the benefits of a tax convention which exempts the income from U.S. withholding tax and that it has satisfied all requirements to qualify for the exemption from tax.
      (c)  Lender agrees that it will, immediately upon the request of Agent, furnish to Agent Form 4224 or Form 1001 of the Internal Revenue Service, or such other forms, certifications, statements or documents, duly executed and completed by Lender as evidence of Lender’s exemption from the withholding of U.S. tax with respect thereto. If Lender determines that, as a result of any change in applicable law, regulation, or treaty or in any official application or interpretation thereof, it ceases to qualify for exemption from any tax imposed by any jurisdiction with respect to payments made hereunder, Lender shall promptly notify Agent of such fact and Agent may, but shall not be required to withhold the amount of any such applicable tax from amounts paid to Lender hereunder. Agent shall not be obligated to make any payments hereunder to Lender in respect of Lender’s Loan until Lender shall have furnished to Agent the requested form, certification, statement or document and may withhold the amount of such applicable tax from amounts paid to Lender hereunder.
      (d)  Lender shall reimburse, indemnify and hold Agent harmless for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed upon, incurred by or asserted against Agent due to its reliance upon the representation hereby made that Lender is exempt from withholding of tax. Unless Agent receives written notice to the contrary, Lender shall be deemed to have made the representations contained in this Section 9.9 and in each subsequent tax year of Lender.
ARTICLE 10 — GENERAL PROVISIONS
      10.1 Notices . Any notice given by any party under any Loan Document shall be in writing and personally delivered, sent by overnight courier, or United States mail, postage prepaid, or sent by facsimile, or other authenticated message, charges prepaid, to the other party’s or parties’ addresses shown on the Supplement. Each party may change the address or facsimile number to which notices, requests and other communications are to be sent by giving written notice of such change to each other party. Notice given by hand delivery shall be deemed received on the date delivered; if sent by overnight courier, on the next Business Day after delivery to the courier service; if by first class mail, on the third Business Day after deposit in the U.S. Mail; and if by facsimile, on the date of transmission.
      10.2 Binding Effect . The Loan Documents shall be binding upon and inure to the benefit of Borrower, Agent and Lenders and their respective

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successors and permitted assigns; provided, however, that Borrower may not assign or transfer Borrower’s rights or obligations under any Loan Document (except as otherwise provided herein). Each Lender reserves the right to sell, assign, transfer, negotiate or grant participations in all or any part of, or any interest in, such Lender’s rights and obligations under the Loan Documents. In connection with any of the foregoing, any Lender may disclose all documents and information which Agent or such Lender now or hereafter may have relating to the Loans, Borrower, or its business; provided that any person who receives such information shall have agreed in writing in advance to maintain the confidentiality of such information on terms reasonably acceptable to Borrower. It is the intention of the parties that, as a “venture capital operating company,” Venture Lending & Leasing IV, LLC (“LLC”), the parent and sole owner of VLL, shall have the benefit of, and the power to exercise independent of any other Lender, those “management rights” provided in Section 5.3. To that end, the references to Lender and VLL in Sections 4.2(f), 5.1, 5.2, 5.3 and 5.9(a) hereof shall include LLC, and LLC shall have the right to exercise the advisory, inspection, information and other rights given to Lender under those Sections independently of any Lender. No amendment or modification of this Agreement shall alter or diminish LLC’s rights under the preceding sentence without the consent of LLC.
      10.3 No Waiver . Without the written consent of each Lender affected thereby (and the Agent if expressly required in this Agreement or any of the Loan Documents), no amendment, modification or waiver of any provision of this Agreement or any of the other Loan Documents shall be effective if the result of which would be to (i) extend the Termination Date, (ii) extend the Maturity Date of, or otherwise forgive or waive default in payment of, or postpone any date fixed for any payment of principal or interest due from the Borrower under the Notes, (iii) change the rate of interest applicable to any Loan, (iv) release the Lien on any portion of the Collateral granted under any of the Security Documents except as and to the extent expressly contemplated under the Security Documents or this Agreement, (v) change any provision of this Agreement, or any of the Security Documents which, by its terms, requires the consent of all Lenders, (vi) change the percentage specified in the definition of Majority Lenders, or (vii) change the Commitment set forth on the Supplement with respect to any Lender. Each Lender agrees that if the assignee of any Lender is a creditor of such Lender to whom such Lender has granted a security interest in this Agreement, then following the occurrence of an event of default (however defined) under or with respect to the indebtedness held by such assignee or the occurrence of an event which with the giving of notice or the passage of time or both would constitute such an event of default, the written consent of such assignee, rather than of such assignor Lender, shall be required for any modification or amendment to this Agreement. Any waiver, consent or approval by Agent or any Lender of any Event of Default or breach of any provision, condition, or covenant of any Loan Document must be in writing and shall be effective only to the extent set forth in writing. No waiver of any breach or default shall be deemed a waiver of any later breach or default of the same or any other provision of any Loan Document. No failure or delay on the part of Agent or any Lender in exercising any power, right, or privilege under any Loan Document shall operate as a waiver thereof, and no single or partial exercise of any such power, right, or privilege shall preclude any further exercise thereof or the exercise of any other power, right or privilege. Agent or any Lender has the right at its sole option to continue to accept interest and/or principal payments due under the Loan Documents after default, and such acceptance shall not constitute a waiver of said default or an extension of the Maturity Date unless Agent or such Lender agrees otherwise in writing.
      10.4 Rights Cumulative . All rights and remedies existing under the Loan Documents are cumulative to, and not exclusive of, any other rights or remedies available under contract or applicable law.
      10.5 Unenforceable Provisions . Any provision of any Loan Document executed by Borrower which is prohibited or unenforceable in any jurisdiction, shall be so only as to such jurisdiction and only to the extent of such prohibition or unenforceability, but all the remaining provisions of any such Loan Document shall remain valid and enforceable.
      10.6 Accounting Terms . Except as otherwise provided in this Agreement, accounting terms and financial covenants and information shall be determined and prepared in accordance with GAAP.
      10.7 Indemnification; Exculpation . Borrower shall pay and protect, defend and indemnify Agent and all Lenders and Agent and each Lender’s employees, officers, directors, shareholders, affiliates, agents and representatives (collectively, the

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“Indemnitees”) against, and hold Indemnitees harmless from, all claims, actions, proceedings, liabilities, damages, losses, expenses (including, without limitation, reasonable attorneys’ fees and costs) and other amounts actually incurred by such Indemnitee arising from (i) the matters contemplated by this Agreement or any other Loan Documents (ii) any dispute between Borrower and a third party or (iii) any contention that Borrower has failed to comply with any law, rule, regulation, order or directive applicable to Borrower’s business; provided, however , that this indemnification shall not apply to any of the foregoing incurred solely as the result of any Indemnitee’s gross negligence or willful misconduct. This indemnification shall survive the payment and satisfaction of all of Borrower’s Obligations to Agent and Lenders.
      10.8 Reimbursement . Borrower shall reimburse Agent and each Lender for all costs and expenses, including without limitation reasonable attorneys’ fees and disbursements expended or incurred by Agent or any Lender in any arbitration, mediation, judicial reference, legal action or otherwise in connection with (a) the preparation and negotiation of the Loan Documents, (b) the amendment and enforcement of the Loan Documents, including without limitation during any workout, attempted workout, and/or in connection with the rendering of legal advice as to Agent’s or any Lender’s rights, remedies and obligations under the Loan Documents, (c) collecting any sum which becomes due Lenders under any Loan Document, (d) any proceeding for declaratory relief, any counterclaim to any proceeding, or any appeal, or (e) the protection, preservation or enforcement of any rights of Agent or Lenders. For the purposes of this section, attorneys’ fees shall include, without limitation, reasonable and actual documented fees incurred in connection with the following: (1) contempt proceedings; (2) discovery; (3) any motion, proceeding or other activity of any kind in connection with an Insolvency Proceeding; (4) garnishment, levy, and debtor and third party examinations; and (5) postjudgment motions and proceedings of any kind, including without limitation any activity taken to collect or enforce any judgment. All of the foregoing costs and expenses shall be payable upon demand by Lender, and if not paid within forty-five (45) days of presentation of invoices shall bear interest at the highest applicable Default Rate.
      10.9 Execution in Counterparts . This Agreement may be executed in any number of counterparts which, when taken together, shall constitute but one agreement.
      10.10 Entire Agreement . The Loan Documents are intended by the parties as the final expression of their agreement and therefore contain the entire agreement between the parties and supersede all prior understandings or agreements concerning the subject matter hereof. This Agreement may be amended only in a writing signed by each Borrower, Agent and Lenders.
      10.11 Governing Law and Jurisdiction .
      (a)  THIS AGREEMENT AND THE LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA.
      (b)  ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH BORROWER, AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH BORROWER, AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. BORROWER, AGENT AND EACH LENDER EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY CALIFORNIA LAW.
      10.12 Waiver of Jury Trial . EACH BORROWER, AGENT AND LENDER WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN

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ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. BORROWER, AGENT AND LENDER EACH AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEMS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
ARTICLE 11 — DEFINITIONS
     The definitions appearing in this Agreement or any Supplement shall be applicable to both the singular and plural forms of the defined terms:
“Account” means any “account,” as such term is defined in the UCC, now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest and, in any event, shall include, without limitation, all accounts receivable, book debts and other forms of obligations (other than forms of obligations evidenced by Chattel Paper, Documents or Instruments) now owned or hereafter received or acquired by or belonging or owing to Borrower (including, without limitation, under any trade name, style or division thereof) whether arising out of goods sold or services rendered by Borrower or from any other transaction, whether or not the same involves the sale of goods or services by Borrower (including, without limitation, any such obligation that may be characterized as an account or contract right under the UCC) and all of Borrower’s rights in, to and under all purchase orders or receipts now owned or hereafter acquired by it for goods or services, and all of Borrower’s rights to any goods represented by any of the foregoing (including, without limitation, unpaid seller’s rights of rescission, replevin, reclamation and stoppage in transit and rights to returned, reclaimed or repossessed goods), and all monies due or to become due to Borrower under all purchase orders and contracts for the sale of goods or the performance of services or both by Borrower or in connection with any other transaction (whether or not yet earned by performance on the part of Borrower), now in existence or hereafter occurring, including, without limitation, the right to receive the proceeds of said purchase orders and contracts, and all collateral security and guarantees of any kind given by any Person with respect to any of the foregoing.
“Affiliate” means any Person which directly or indirectly controls, is controlled by, or is under common control with Borrower. “Control,” “controlled by” and “under common control with” mean direct or indirect possession of the power to direct or cause the direction of management or policies (whether through ownership of voting securities, by contract or otherwise); provided, that control shall be conclusively presumed when any Person or affiliated group directly or indirectly owns ten percent (10%) or more of the securities having ordinary voting power for the election of directors of a corporation.
“Agreement” means this Loan and Security Agreement and each Supplement thereto, as each may be amended or supplemented from time to time.
“Agent” means Venture Lending & Leasing IV, Inc., not in its individual capacity, but solely in its capacity as agent on behalf of and for the benefit of Lenders and any permitted successor agent appointed hereunder.
“Bankruptcy Code” means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et seq .), as amended.
“Basic Interest” means the fixed rate of interest payable on the outstanding balance of each Loan at the applicable Designated Rate.
“Borrowing Date” means the Business Day on which the proceeds of a Loan are disbursed by Lender.
“Borrowing Request” means a written request from Borrower in substantially the form of Exhibit “B” to the Supplement, requesting the funding of one or more Loans on a particular Borrowing Date.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks in New York City or San Francisco are authorized or required by law to close.

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“Chattel Paper” means any “chattel paper,” as such term is defined in the UCC, now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest.
“Closing Date” means the date of this Agreement.
“Collateral” means, with respect to a Borrower, all of such Borrower’s right, title and interest in and to the following property, whether now owned or hereafter acquired and wherever located: (a) all Receivables; (b) all Equipment; (c) all Fixtures; (d) all General Intangibles; (e) all Inventory; (f) all Investment Property; (g) all Deposit Accounts; (h) all other Goods and personal property of Borrower, whether tangible or intangible and whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and wherever located; (i) all Records; and (j) all Proceeds of each of the foregoing and all accessions to, substitutions and replacements for, and rents, profits and products of each of the foregoing; provided, however, that except as otherwise provided in the Supplement upon the happening of certain events, “Collateral” shall not include Intellectual Property.
“Commitment” means the obligation of each Lender to make Loans to Borrower up to the aggregate principal amount set forth in the Supplement opposite the name of such Lender.
“Commitment Percentage” is defined in the Supplement.
“Copyright License” means any written agreement granting any right to use any Copyright or Copyright registration now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest.
“Copyrights” means all of the following now owned or hereafter acquired by Borrower or in which Borrower now hold or hereafter acquires any interest: (i) all copyrights, whether registered or unregistered, held pursuant to the laws of the United States, any State thereof or of any other country; (ii) all registrations, applications and recordings in the United States Copyright Office or in any similar office or agency of the United States, any State thereof or any other country; (iii) all renewals or extensions thereof; and (iv) any registrations to be issued under any pending copyright applications.
“Default” means an event which with the giving of notice, or passage of time, or both would constitute an Event of Default.
“Default Rate” is defined in Section 2.13.
“Deposit Accounts” means any “deposit accounts,” as such term is defined in the UCC, now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest.
“Designated Rate” means the rate of interest per annum described in the Supplement as being applicable to an outstanding Loan from time to time.
“Documents” means any “documents,” as such term is defined in the UCC, now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest.
“Environmental Laws” means all federal, state or local laws, statutes, common law duties, rules, regulations, ordinances and codes, together with all administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any governmental authorities, in each case relating to environmental, health, or safety matters.
“Equipment” means any “equipment,” as such term is defined in the UCC, now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest and any and all additions, substitutions and replacements of any of the foregoing, wherever located, together with all attachments, components, parts, equipment and accessories installed thereon or affixed thereto.
“Event of Default” means any event described in Section 7.1.
“Financing Shares” means shares of Parent’s preferred stock issued to investors in connection with a financing round occurring after the Closing Date in lieu of comparable debt securities of Parent.
“Fixtures” means any “fixtures,” as such term is defined in the UCC, now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest.
“Funding Amount” means the amount of the Loan to be made by each respective Lender on the Borrowing Date (net of any payments of interest and/or principal required to be paid by the Borrower

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on the Borrowing Date under the terms of this Agreement).
“GAAP” means generally accepted accounting principles and practices consistent with those principles and practices promulgated or adopted by the Financial Accounting Standards Board and the Board of the American Institute of Certified Public Accountants, their respective predecessors and successors. Each accounting term used but not otherwise expressly defined herein shall have the meaning given it by GAAP.
“General Intangibles” means any “general intangibles,” as such term is defined in the UCC, now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest and, in any event, shall include, without limitation, all right, title and interest that Borrower may now or hereafter have in or under any contract, all customer lists, Intellectual Property, claims in or under insurance policies, including unearned premiums, uncertificated securities, money, cash or cash equivalents, deposit, checking and other bank accounts, right to sue for past, present and future infringement of Copyrights, Trademarks and Patents, rights to receive tax refunds and other payments and rights of indemnification.
“Goods” means any “goods,” as such term is defined in the UCC, now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest.
“Indebtedness” of any Person means at any date, without duplication and without regard to whether matured or unmatured, absolute or contingent: (i) all obligations of such Person for borrowed money; (ii) all obligations of such Person evidenced by bonds, debentures, notes, or other similar instruments; (iii) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business; (iv) all obligations of such Person as lessee under capital leases; (v) all obligations of such Person to reimburse or prepay any bank or other Person in respect of amounts paid under a letter of credit, banker’s acceptance, or similar instrument, whether drawn or undrawn; (vi) other than obligations related to any subsidiary of Parent, all obligations of such Person to purchase, redeem, exchange, convert or otherwise acquire for cash any capital stock of such Person or any warrants, rights or options to acquire such capital stock, now or hereafter outstanding, except to the extent that such obligations remain performable solely at the option of such Person; (vii) all obligations to repurchase assets previously sold (including any obligation to repurchase any accounts or chattel paper under any factoring, receivables purchase, or similar arrangement); (viii) obligations of such Person under interest rate swap, cap, collar or similar hedging arrangements; and (ix) all obligations of others of any type described in clause (i) through clause (viii) above guaranteed by such Person.
“Insolvency Proceeding” means (a) any case, action or proceeding before any court or other governmental authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for the benefit of creditors, composition, marshalling of assets for creditors, or other, similar arrangement in respect of its creditors generally or any substantial portion of its creditors, undertaken under U.S. Federal, state or foreign law, including the Bankruptcy Code.
“Instruments” means any “instrument,” as such term is defined in the UCC, now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest.
“Intellectual Property” means all Copyrights, Trademarks, Patents, Licenses, trade secrets, source codes, customer lists, proprietary or confidential information, inventions (whether or not patented or patentable), technical information, designs, knowledge, know-how, software, databases, processes, models, drawings, materials, records and goodwill associated
with the foregoing.
“Inventory” means any “inventory,” as such term is defined in the UCC, wherever located, now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest, and, in any event, shall include, without limitation, all inventory, goods and other personal property that are held by or on behalf of Borrower for sale or lease or are furnished or are to be furnished under a contract of service or that constitute raw materials, work in process or materials used or consumed or to be used or consumed in Borrower’s business, or the processing, packaging, promotion, delivery or shipping of the same, and all finished goods, whether or not the same is in transit or in the constructive, actual or exclusive possession of Borrower or is held by others for Borrower’s account, including, without limitation, all goods covered by purchase orders and contracts with suppliers and all goods billed and held by suppliers and all such property first may be in the possession or custody of any carriers, forwarding

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agents, truckers, warehousemen, vendors, selling agents or other Persons.
“Investment Property” means any “investment property,” as such term is defined in the UCC, now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest.
“Letter of Credit Rights” means any “letter of credit rights,” as such term is defined in the UCC, now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest, including any right to payment under any letter of credit.
“License” means any Copyright License, Patent License, Trademark License or other license of rights or interests now held or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest and any renewals or extensions thereof.
“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment for security, security interest, encumbrance, levy, lien or charge of any kind, whether voluntarily incurred or arising by operation of law or otherwise, against any property, any conditional sale or other title retention agreement, any lease in the nature of a security interest, and the filing of any financing statement (other than a precautionary financing statement with respect to a lease that is not in the nature of a security interest) under the UCC or comparable law of any jurisdiction.
“Loan” means an extension of credit by a Lender under this Agreement.
“Loan Documents” means, individually and collectively, this Loan and Security Agreement, each Supplement, each Note, and any other security or pledge agreement(s) (including any account control agreements), and all other contracts, instruments, addenda and documents executed in connection with this Agreement or the extensions of credit which are the subject of this Agreement.
“Majority Lenders” means, at any time while no Loans are outstanding hereunder, Lenders having Commitment Percentages totaling at least 51% of the aggregate Commitments, and at any time while Loans are outstanding, Lenders holding at least 51% of the outstanding aggregate principal amount of the Loans.
“Material Adverse Effect” or “ Material Adverse Change ” means (a) on a consolidated basis for all Borrowers and their respective subsidiaries, a material adverse change in, or a material adverse effect upon, the operations, business, properties, or condition (financial or otherwise) of any Borrower; (b) a material impairment of the ability of Borrower to materially perform under any Loan Document; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against Borrower of any Loan Document.
“Maturity Date” means, with regard to a Loan, the earlier of (i) its maturity by reason of acceleration, or (ii) its stated maturity date; and is the date on which payment of all outstanding principal, accrued interest, and the Terminal Payment with respect to such Loan is due.
“Note” means a promissory note substantially in the form of Exhibit “A-1 or Exhibit “A-2 ” attached to the Supplement, executed by Borrowers evidencing each Loan.
“Obligations” means all debts, obligations and liabilities of Borrower to Agent or any Lender currently existing or now or hereafter made, incurred or created under, pursuant to or in connection with this Agreement or any other Loan Document, whether voluntary or involuntary and however arising or evidenced, whether direct or acquired by Agent or such Lender by assignment or succession, whether due or not due, absolute or contingent (except as otherwise described below), liquidated or unliquidated, determined or undetermined, and whether Borrower may be liable individually or jointly, or whether recovery upon such debt may be or become barred by any statute of limitations or otherwise unenforceable; and all renewals, extensions and modifications thereof; and all attorneys’ fees and costs incurred by Agent or any Lender in connection with the collection and enforcement thereof as provided for in any Loan Document excluding for all purposes (i) contingent obligations for indemnity for which no claim has been asserted and (ii) upon issuance thereof, all obligations in connection with or arising under the Warrants prior to exercise.
“Parent” means Borrower Athersys, Inc.
“Patent License” means any written agreement granting any right with respect to any Patent now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest.

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“Patents” means all of the following property now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest: (a) all patents, or rights corresponding thereto granted in, the United States or any other country, all applications for patents or rights corresponding thereto existing in, the United States or any other country, including, without limitation, applications in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State thereof or any other country; (b) all reissues, continuations, continuations-in-part or extensions thereof; (c) all petty patents, divisionals, and patents of addition; and (d) all patents to be issued under any such applications.
“Permitted Lien” means
      (a)  involuntary Liens which, in the aggregate, would not have a Material Adverse Effect and which in any event would not exceed, in the aggregate, the Threshold Amount;
      (b)  Liens for current taxes or other governmental or regulatory assessments which are not delinquent, or which are contested in good faith by the appropriate procedures and for which appropriate reserves are maintained;
      (c)  security interests on any property held or acquired by Borrower in the ordinary course of business securing Indebtedness incurred or assumed for the purpose of financing all or any part of the cost of acquiring such property; provided , that such Lien attaches solely to the property acquired with such Indebtedness and that the principal amount of such Indebtedness does not exceed one hundred percent (100%) of the cost of such property; and further provided , that such property is not Eligible Equipment or other property with respect to which a Loan has been made hereunder to finance the acquisition thereof;
      (d)  Liens in favor of Agent for the benefit of Lenders hereunder;
      (e)  bankers’ liens, rights of setoff and similar Liens incurred on deposits made in the ordinary course of business;
      (f)  materialmen’s, mechanics’, repairmen’s, employees’ or other like Liens arising in the ordinary course of business and which are not delinquent for more than 45 days or are being contested in good faith by appropriate proceedings;
      (g)  any judgment, attachment or similar Lien, unless the judgment it secures has not been discharged or execution thereof effectively stayed and bonded against pending appeal within 30 days of the entry thereof;
      (h)  to the extent permitted under Section 6.5, non-exclusive and exclusive licenses or sublicenses of Patents, Patent Licenses, Trademarks or Trademark Licenses;
      (i)  Liens existing on the Closing Date and which are set forth on the schedule of exceptions attached hereto;
      (j)  any interest or title of a lessor under any lease entered into by Borrower in the ordinary course of its business and covering the assets so leased; and
      (k)  purchase money Liens in favor of a Collaborator or an affiliate for assets purchased using Eligible Funding, including, without limitation, any license agreement between the Collaborator and Borrower.
“Person” means any individual, sole proprietorship, partnership, joint venture, trust, unincorporated organization, association, corporation, limited liability company, institution, public benefit corporation, other entity or government (whether federal, state, county, city, municipal, local, foreign, or otherwise, including any instrumentality, division, agency, body or department thereof).
“Proceeds” means “proceeds,” as such term is defined in the UCC and, in any event, shall include, without limitation, (a) any and all Accounts, Chattel Paper, Instruments, cash or other forms of money or currency or other proceeds payable to Borrower from time to time in respect of the Collateral, (b) any and all proceeds of any insurance, indemnity, warranty or guaranty payable to Borrower from time to time with respect to any of the Collateral, (c) any and all payments (in any form whatsoever) made or due and payable to Borrower from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any part of the Collateral by any governmental authority (or any Person acting under color of governmental authority), (d) any claim of Borrower against third parties (i) for past, present or future infringement of any Copyright, Patent or Patent License or (ii) for past, present or future infringement or dilution of any Trademark or Trademark License or for injury to the goodwill associated with any Trademark, Trademark

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registration or Trademark licensed under any Trademark License and (e) any and all other amounts from time to time paid or payable under or in connection with any of the Collateral.
“Pro Rata” means, as to any Lender at any time, (a) with respect to the Loans, the percentage equivalent at such time of (i) such Lender’s aggregate unpaid principal amount of Loans, divided by (ii) the combined aggregate unpaid principal amount of all Loans of all Lenders, and (b) with respect to the Commitments, the percentage equivalent at such time of (i) such Lender’s Commitment, divided by (ii) the amount of the Total Commitment of all Lenders.
“Receivables” means all of Borrower’s Accounts, Instruments, Documents, Chattel Paper, Supporting Obligations, and letters of credit and Letter of Credit Rights.
“Records” means all Borrower’s computer programs, software, hardware, source codes and data processing information, all written documents, books, invoices, ledger sheets, financial information and statements, and all other writings concerning Borrower’s business.
“Related Person” means any Affiliate of Borrower, or any officer, employee, director or equity security holder of Borrower or any Affiliate.
“Rights to Payment” means all Borrower’s accounts, instruments, contract rights, documents, chattel paper and all other rights to payment, including, without limitation, the Accounts, all negotiable certificates of deposit and all rights to payment under any Patent License, any Trademark License, or any commercial or standby letter of credit.
“Security Documents” means this Loan and Security Agreement, the Supplement hereto, and any and all account control agreements, collateral assignments, chattel mortgages, financing statements, amendments to any of the foregoing and other documents from time to time executed or filed to create, perfect or maintain the perfection of the Agent’s and Lender’s Liens on the Collateral.
“Subordinated Debt” means Indebtedness subordinated to the Obligations, including without limiting the generality of the foregoing, subordination of such Indebtedness in right of payment to the prior payment in full of the Obligations, the subordination of the priority of any Lien (other than Permitted Liens) at any time securing such Indebtedness to the Lien of Agent for the benefit of Lenders in the collateral covered thereby, and the subordination of the rights of the holder of such Indebtedness to enforce its junior Lien following the occurrence and continuation of an Event of Default hereunder pursuant to a written subordination agreement approved by Agent in its sole and good faith discretion, which agreement may provide that regularly scheduled payments of accrued interest on such subordinated Indebtedness may be paid by Borrower and retained by the holder so long as no Event of Default has occurred and is continuing.
“Supplement” means that certain supplement to the Loan and Security Agreement, as the same may be amended or restated from time to time, and any other supplements entered into between Borrower and Lenders, as the same may be amended or restated from time to time.
“Supporting Obligations” means any “supporting obligations,” as such term is defined in the UCC, now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest.
“Terminal Payment” means, with respect to each Loan, an amount payable on the Maturity Date of such Loan in an amount equal to that percentage of the original principal amount of such Loan as is specified in the Supplement.
“Termination Date” has the meaning specified in the Supplement.
“Threshold Amount” has the meaning specified in the Supplement.
“Total Commitment” means the aggregate Commitments of the Lenders to make Loans hereunder.
“Trademark License” means any written agreement granting any right to use any Trademark or Trademark registration now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest.
“Trademarks” means all of the following property now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest: (a) all trademarks, tradenames, corporate names, business names, service marks, logos, other source or business identifiers, designs of like nature, all registrations and recordings thereof, and any

26


 

applications in connection therewith, including, without limitation, registrations, recordings and applications in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State thereof or any other country or any political subdivision thereof and (b) extensions or renewals thereof.
“UCC” means the Uniform Commercial Code as the same may, from time to time, be in effect in the State of California; provided , that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of, or remedies with respect to, Agent’s or any Lender’s Lien on any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of California, the term “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority or remedies and for purposes of definitions related to such provisions. Unless otherwise defined herein, terms that are defined in the UCC and used herein shall have the meanings given to them in the UCC.

27


 

     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
         
BORROWER:

ATHERSYS, INC.

 
   
By:        
  Name:        
  Title:        
 
 
LENDERS:

VENTURE LENDING & LEASING IV, INC., as

a Lender and in its capacity as Agent
 
   
By:        
  Name:        
  Title:        
 
 
COSTELLA KIRSCH IV, L.P.,
as a Lender

 
   
By:        
  Name:        
  Title:        

 


 

Signature Page to Loan and Security Agreement
         
BORROWER (together with Athersys, Inc.):

ADVANCED BIOTHERAPEUTICES, INC.

 
   
By:        
  Name:        
  Title:        

 

 

EXHIBIT 10.13
AMENDMENT
TO
LOAN AND SECURITY AGREEMENT
     This Amendment (this “ Amendment ”) is made as of September 29, 2006, by and among ATHERSYS, INC. , a Delaware corporation (“ Athersys ”), ADVANCED BIOTHERAPEUTICS, INC. , a Delaware corporation (“ ABI ,” and collectively with Athersys, the “ Borrowers ”), and VENTURE LENDING & LEASING IV, INC. (“ VLL4 ”), and COSTELLA KIRSCH IV, L.P. (“ CK ,” and collectively with VLL4, the “ Lenders ”).
     A. Borrowers and Lenders are parties to that certain Loan and Security Agreement dated as of November 2, 2004 (the “ Loan and Security Agreement ”), together with a Supplement (the “ Supplement ”) thereto of even date therewith (sometimes referred to together as the “ Loan Agreement ”).
     B. Athersys intends to raise additional capital through a new convertible bridge financing and/or a new round of equity financing in which it proposes to raise aggregate gross proceeds of not less than $10,000,000. Borrowers have requested that Lenders temporarily reduce the amount of the monthly repayment obligation of Borrowers by deferring principal on the Loans and permitting interest-only payments on the Loans, in each case for up to four months, subject to certain terms and conditions.
     C. Lenders are willing to provide such accommodations on the terms and subject to the conditions set forth in this Amendment.
     D. Except where the context otherwise requires, or unless this Amendment otherwise provides, all words and expressions defined in the Loan Agreement when used or referred to in this Amendment shall have the same meaning as those provided for in the Loan Agreement.
     NOW, THEREFORE, in consideration of the mutual obligations in this Amendment and the Loan Agreement, and for other good consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows:
      1.  Defined Terms . All capitalized terms used in this Amendment and not otherwise defined herein have the meanings ascribed to them in Article 10 of the Loan and Security Agreement and in the Supplement. The following defined terms are also used in this Amendment:
          “ Next Round” means the next bona fide sale of equity securities (including debt securities convertible into equity securities) by Athersys after September 30, 2006 resulting in aggregate gross proceeds of at least $10,000,000.00 from one or more financial (as opposed to strategic) investors in a single transaction or a series of related transactions. The receipt by Athersys after September 30, 2006 of gross proceeds from the issuance of bridge notes convertible into such equity securities shall be counted toward the foregoing dollar amount.

 


 

           “Next Round Securities” means the equity securities of Athersys issued and sold in the Next Round; provided , however , that in the case of an issuance of debt securities convertible into equity securities, “Next Round Securities” means the equity securities issuable upon conversion of such debt securities.
          “ Deferral Period” means the period commencing October 1, 2006, and ending on the earliest of (i) January 2, 2007, (ii) the non-payment of an Interest-only Payment (as defined below) when due as set forth in Table 1 (in Section 2.1 of this Amendment), (iii) the occurrence of an Event of Default, and (iv) the date on which the Borrowers elect to pay the deferred principal portion of the Loans.
      2.  Deferral of Principal; Restructured Amortization . Notwithstanding anything to the contrary contained in the Loan Agreement or in any Note made and delivered in connection with an outstanding Loan, the parties agree that:
           2.1 Interest-Only Payments . Commencing on the first day of the first month of the Deferral Period, and continuing on the first Business Day of each successive month during the Deferral Period, the principal portion of the regularly scheduled amortization payments under each of Lenders’ Notes shall be deferred until the expiration of the Deferral Period, and only the interest set forth in Table 1 below (each, an “ Interest-only Payment ”) shall be due and owing:
Table 1 :
                 
    Interest-only   Interest-only
Interest-only Payment Date   Payment to CK   Payment to VLL4
October 1, 2006
  $ 14,617.14     $ 44,017.11  
November 1, 2006
  $ 14,617.14     $ 44,017.11  
December 1, 2006
  $ 14,617.14     $ 44,017.11  
January 2, 2007
  $ 14,617.14     $ 44,017.11  
Borrowers may pay the deferred principal portion of the Loans at any time without premium or penalty. The deferral of principal and payment of interest only during the Deferral Period is subject, in the case of each monthly payment, to the occurrence of each event shown in Table 2 below on or before the first Business Day of the corresponding month:
Table 2 :
     
Interest-only Payment Date   Condition Precedent Event
October 1, 2006
  On or before 10/1/06, Athersys shall have received one or more bona fide letters of intent, in form and substance reasonably satisfactory to Lenders, from investors expressing an intent to invest in the Next Round.
 
   
November 1, 2006
  On or before 11/1/06, Athersys shall have obtained gross proceeds of at least $1.5 million from a convertible bridge financing and/or an equity financing.
 
   
December 1, 2006
  Satisfaction of the above condition to the November 1 Interest-only Payment
 
   
January 2, 2007
  Satisfaction of the above condition to the November 1 Interest-only Payment

2


 

           2.2 Payment of Deferred Principal . The parties acknowledge and agree that the total amount of principal that would otherwise have been paid during the full Deferral Period under the outstanding Notes is $890,233.47, which is allocated between the Lenders as shown in the following Table 3 (each, a “ Deferred Amount ”):
Table 3 :
                         
Month of Deferral Period   Deferred Amounts:
    CK Loans   VLL4 Loans   Totals
October 2006
  $ 54,774.36     $ 164,157.39     $ 218,931.75  
November 2006
  $ 55,372.94     $ 165,958.97     $ 221,331.91  
December 2006
  $ 55,978.05     $ 167,780.32     $ 223,758.37  
January 2007
  $ 56,589.77     $ 169,621.67     $ 226,211.44  
Totals:
  $ 222,715.12     $ 667,518.35     $ 890,233.47  
If Borrowers are entitled to make each of the four Interest-only Payments to Lenders in accordance with the terms of this Amendment, unless Athersys has closed the Next Round by January 16, 2007, the total outstanding Deferred Amounts shall become due and payable in full on the later of (i) January 16, 2007 and (ii) the date on which Athersys receives at least $5,000,000 of gross proceeds from a strategic investor from the issuance of either debt or equity securities. If the Next Round has closed prior to January 16, 2007, then each Lender’s total outstanding Deferred Amounts shall be fully amortized, together with interest thereon at the rate(s) per annum applicable to the Loans, in the same number of equal monthly installments that remain under each of the Note(s) evidencing the Loans, commencing February 1, 2007 (and payable with the regular amortization payments required under Section 2.3 below).
           2.3 Resumption of Regularly Scheduled Amortization Installments . Commencing on the first day of the month after the termination of the Deferral Period (whether scheduled or accelerated, and in any event no later than February 1, 2007), Borrowers shall resume payments in the full amount of the regularly scheduled monthly amortization payments of principal and interest called for under each of the Notes evidencing the Loans.
           2.4 Interest Rate . Notwithstanding the terms of this Amendment, the Loans shall continue to accrue interest at the rate(s) per annum prescribed in the Loan Agreement and the Notes.
      3.  Issuance of Additional Warrants to Lenders; Vesting Schedule . As consideration for the execution and delivery of this Amendment, contemporaneously with the closing of the Next Round, Athersys shall issue and deliver to each of the Lenders a warrant (the “ Additional Warrants ”) to purchase up to its ratable portion (that is, 25% to CK and 75% to VLL4) of a number of shares of Next Round Securities with an initial per share exercise price equal to the lowest per share price paid (or, in the case of an issuance of convertible debt

3


 

securities, the conversion price thereof) by any new investor in the Next Round (the “ Exercise Price ”); the total number of shares of Next Round Securities for which the Additional Warrants shall be exercisable initially (the “ Initial Number of Shares ”) shall be equal to the quotient obtained by dividing 50% of $890,233.47 ($445,116,74) by the Exercise Price. Each Additional Warrant shall be vested and exercisable by the holder thereof immediately upon issuance for up to one-half (1/2) of the Lender’s ratable portion of the Initial Number of Shares, and shall thereafter become vested and exercisable for an additional one-quarter (1/4) of the Lender’s ratable portion of the Initial Number of Shares if the Deferred Period has not expired as of December 2, 2006, and shall become vested and exercisable for the remaining one-quarter (1/4) of the Initial Number of Shares if the Deferral Period has not expired as of January 3, 2007. In all other respects, the Additional Warrants shall substantially be in the same form as the form of warrant attached as Exhibit D-1 to the Supplement, and the securities issuable thereunder shall entitle Lenders to the same rights, preferences and privileges as granted to the investors in connection with the Next Round. Athersys acknowledges that VLL4 has assigned its rights to receive its Additional Warrant to its parent, Venture Lending & Leasing IV, LLC; in connection therewith, Athersys shall issue the warrant directly to Venture Lending & Leasing IV, LLC.
     As a condition precedent to the issuance of Additional Warrants and any securities issuable upon exercise thereof to any Lender (or assignee thereof), each Lender (or assignee thereof) must execute an instrument of joinder agreeing to be bound by the terms and conditions of that certain Amended and Restated Stockholders’ Agreement, dated as of April 28, 2000, among Athersys and certain of its stockholders, namely, Biotech 3 Investment, LLC, Elan International Services, Inc., and the Class C Investors and the Class F Investors (as defined therein), and any transferee and/or assignees thereof (as amended, the “ Stockholders’ Agreement ”) or any other stockholders’ agreement of Athersys in existence immediately prior to such issuance.
      4.  Effectiveness of Amendment; Continued Effect of Original Agreement .
           4.1 Continued Effect of Original Agreement . All provisions of the Loan Agreement and other Loan Documents, except as modified by this Amendment, shall remain in full force and effect. This Amendment shall not operate as a waiver of any condition or obligation imposed on the parties under the Loan Agreement. Notwithstanding anything to the contrary in the foregoing, the consummation of the Next Round shall not be deemed to be an Event of Default under Section 7.1(h) of the Loan and Security Agreement.
           4.2 Interpretation of Amendment . In the event of any conflict, inconsistency, or incongruity between any provision of this Amendment and any provision of the Loan Documents, the provisions of this Amendment shall govern and control.
           4.3 Conditions to Effectiveness . This Amendment shall not be effective until each of the following conditions precedent has been fulfilled to the satisfaction of Lenders:
               (a) This Amendment shall have been duly executed and delivered by the respective parties hereto and, shall be in full force and effect and shall be in form and substance reasonably satisfactory to Lenders.

4


 

               (b) All action on the part of Borrowers necessary for the valid execution, delivery and performance by Borrowers of this Amendment shall have been duly and effectively taken; provided , however , that Lenders acknowledge that, in connection with the issuance of the Additional Warrants, Athersys must either obtain the requisite approval of certain of its stockholders to waive their rights of first refusal under the Stockholders’ Agreement or the requisite period of time must elapse after Athersys provides notice to certain of its stockholders under the Stockholders’ Agreement. Athersys will seek a waiver of such stockholders’ rights of first refusal or give a New Issue Notice (as defined in the Stockholders’ Agreement) to such stockholders, describing the terms and conditions on which Lenders have agreed to defer principal payments as consideration for the issuance of the Additional Warrants.
           4.4 Borrowers’ Representations . Each Borrower hereby represents and warrants to Lenders that: such Borrower has full corporate power and authority to execute and deliver this Amendment and to perform the obligations of its part to be performed hereunder and under the Loan Agreement as amended hereby; such Borrower has taken all necessary action, corporate or otherwise, to authorize the execution and delivery of this Amendment; no consent or approval of any person, no waiver of any lien or similar right, and no consent, license, approval or authorization of any governmental authority or agency is or will be required in connection with the execution or delivery by such Borrower of this Amendment or the performance by such Borrower of the Loan Documents as amended hereby; and this Amendment and the Loan Documents as amended hereby are, or upon delivery thereof to Lenders will be, the legal, valid and binding obligations of such Borrower, enforceable against such Borrower in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; provided , however , that, notwithstanding anything to the contrary in the foregoing, to issue the Additional Warrants, Athersys must either obtain the requisite approval of certain of its stockholders to waive their rights of first refusal under the Stockholders’ Agreement or the requisite period of time must elapse after Athersys provides notice to certain of its stockholders under the Stockholders’ Agreement.
      5.  Miscellaneous .
           5.1 Successors and Assigns . The terms and conditions of this Amendment shall inure to the benefit of and be binding upon the respective successors and assigns of the parties.
           5.2 Governing Law . This Amendment shall be governed by and construed under the internal laws of the State of California.
           5.3 Amendments and Waivers . Any term of this Amendment may be amended and the observance of any term of this Amendment may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of Borrowers and Lenders.
           5.4 Severability . If one or more provisions of this Amendment are held to be unenforceable under applicable law, such provision shall be excluded from this Amendment and

5


 

the balance of the Amendment shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.
           5.5 Entire Agreement . This Amendment and the Loan Documents and the exhibits and schedules hereto and thereto constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof.
           5.6 Fees and Costs . All reasonable legal fees and costs incurred by Lenders in connection with the preparation, negotiation and execution of this Amendment and the Additional Warrants shall be reimbursed by Borrowers by addition of such amounts to the outstanding balance of the Loans .
           5.7 Counterparts . This Amendment may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement.
[Remainder of this page intentionally left blank.]

6


 

[Signature Page to First Amendment to Loan Agreement]
     IN WITNESS WHEREOF, the parties have caused this Amendment to Loan and Security Agreement to be duly executed as of the date and year first written above.
         
  BORROWERS:


ATHERSYS, INC.

 
 
  By:      
    Name:      
    Title:      
 
  ADVANCED BIOTHERAPEUTICS, INC.
 
 
  By:      
    Name:      
    Title:      
 
  LENDERS:

VENTURE LENDING & LEASING IV, INC., as a
Lender and in its capacity as Agent

 
 
  By:      
    Name:      
    Title:      
 
  COSTELLA KIRSCH IV, L.P.,
as a Lender

 
 
  By:      
    Name:      
    Title:      
 

7

 

EXHIBIT 10.14
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
     THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”) is made as of the first day of December, 1998 and effective April 1, 1998 between DR. GIL VAN BOKKELEN, an individual (“Employee”), and ATHERSYS, INC., a Delaware corporation (“Athersys”).
     WHEREAS, Athersys and Employee have entered into an Employment Agreement dated as of January 1, 1996 (the “Agreement”); and
     WHEREAS, Athersys and Employee desire to amend and restate the Agreement.
     NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, and for other good and valuable consideration, the parties hereto hereby agree as follows:
     1.  Employment . Athersys agrees to employ Employee, and Employee agrees to serve Athersys, on the terms and conditions set forth in this Agreement.
     2.  Term . Subject to the provisions for termination as hereinafter provided, the term of this Agreement will begin on April 1, 1998 (the “Effective Date”) and continue through March 31, 1999. Such term will automatically be extended for one additional year on April 1 of each succeeding year, beginning on April 1, 1999 and thereafter, unless (i) this Agreement is terminated as provided in Section 7, or (ii) either Employee or Athersys gives written notice of termination of this Agreement to the other at least thirty (30) days prior to such date.
     3.  Position and Duties . Employee will serve as President and Chief Executive Officer of Athersys and will have such responsibilities, duties and authority as are customary of President and Chief Executive Officer of a company the size and structure of Athersys (or any position to which he may be promoted after the date of this Agreement) and as may from time to time be assigned to Employee by the Board of Directors of Athersys (the “Board”) that are consistent with such responsibilities, duties, authority and applicable law. Employee will devote substantially all his working time and efforts to the business and affairs of Athersys.
     4.  Place of Performance . In connection with Employee’s employment by Athersys, Employee will be based at the principal executive offices of Athersys in the greater Cleveland, Ohio area.
     5.  Compensation and Related Matters . As compensation and consideration for the performance by Employee of Employee’s duties, responsibilities and covenants pursuant to this Agreement, Athersys will pay Employee and Employee agrees to accept in full payment for such performance the amounts and benefits set forth below:

 


 

     (a) Salary . Athersys will pay to Employee an annual base salary (“Base Salary”) at a rate of One Hundred Fifty Thousand Dollars ($150,000) which shall be retroactive to the Effective Date. In all cases, the Board will review the Base Salary upon the closing of an initial public offering or a sale of all or substantially all of the stock or assets of Athersys for adjustment to a Base Salary at a rate which is comparable to that of an executive of a company the size and structure of Athersys. The Base Salary may be increased from time to time by the Board in its sole discretion and, if so increased, will not thereafter during the term of this Agreement be decreased. The Board will review the Base Salary at least annually to determine, in its sole discretion, whether an increase is appropriate. Compensation of Employee by salary payments will not be deemed exclusive and will not prevent Employee from participating in any other compensation or benefit plan of Athersys.
     (b) Bonus . Employee will be eligible for a bonus of up to Thirty-three percent (33%) of Base Salary upon the achievement of certain performance goals as determined by the Board on an annual basis, as set forth on Exhibit A.
     (c) Expenses . Employee will be entitled to receive prompt reimbursement for all reasonable and customary travel and entertainment expenses or other out-of-pocket business expenses incurred by Employee in fulfilling Employee’s duties and responsibilities under this Agreement, including all expenses of travel and living expenses while away from home on business or at the request of and in the service of Athersys, provided that such expenses are incurred and accounted for in accordance with the policies and procedures established by Athersys.
     (d) Other Benefits . Employee will be entitled to participate in all of the employee benefit plans and arrangements of Athersys and enjoy all of the perquisites provided to the employees of Athersys (including, without limitation, each retirement, thrift and profit sharing plan, group life insurance and accident plan, medical and/or dental insurance plan, and disability plan); provided, however, that a change may be made to a plan in which salaried employees of Athersys participate, including termination of any such plan, arrangement or perquisite, if it does not result in a proportionately greater reduction in the rights of or benefits to Employee as compared with any other salaried employee of Athersys or is required by law or a technical change. Employee will be entitled to participate in and receive benefits under any employee benefit plan, arrangement or perquisite made available by Athersys in the future to its executive employees, subject to and on a basis consistent with the terms, conditions and overall administration of such plans, arrangements and perquisites. Nothing paid to Employee under any plan, arrangement or perquisite presently in effect or made available in the future will be deemed to be in lieu of the salary payable to Employee pursuant to paragraph (a) of this Section 5.
     (e) Vacations . Employee will be entitled to paid vacation in each calendar year, determined in accordance with Athersys’ vacation policy, but in all events in an amount of not less than three (3) weeks per calendar year. Employee will also be entitled to all paid holidays and personal days given by Athersys to its executive employees.

2


 

     (f) Automobile Allowance . Employee will receive a monthly automobile allowance of Four Hundred Dollars ($400) and is entitled to reimbursement for the cost of gasoline used during business related travel, subject to appropriate documentation.
     (g) Life Insurance . Athersys shall purchase for Employee a life insurance policy in the amount of $1,000,000 for the benefit of the family of Employee.
     6.  Stock Options . Employee will be granted an option (the “Option”) to purchase One Hundred (100) shares of Common Stock of Athersys, which will vest equally on the Effective Date over a period of three (3) years. The average exercise price of the Option will be Four Thousand Five Hundred Dollars ($4500) per share. The terms and conditions of the Option are governed by the Option Agreement between Athersys and Employee.
     7.  Termination . Employee’s employment under this Agreement may be terminated under the following circumstances:
     (a) Death . Employee’s employment under this Agreement will terminate upon his death.
     (b) Disability . If, in the written opinion of a qualified physician selected by Athersys and agreed to by Employee (or if no agreement is reached within thirty (30) days of the commencement of discussions between Athersys and Employee, then of a qualified physician agreed upon by the physician selected by Athersys and a physician selected by Employee), Employee becomes unable to perform his duties under this Agreement due to physical or mental illness, Athersys may terminate Employee’s employment under this Agreement.
     (c) Cause . Athersys may terminate Employee’s employment under this Agreement for Cause. For purposes of this Agreement, Athersys will have “Cause” to terminate Employee’s employment under this Agreement upon:
     (i) the willful and continuous neglect or willful and continuous refusal to perform Employee’s duties or responsibilities under this Agreement which continues for a period of at least thirty (30) days after being brought to the attention of Employee in writing (other than any such failure resulting from Employee’s incapacity due to physical or mental illness or any such actual or anticipated failure after the issuance of a Notice of Termination (as defined in paragraph (e) of this Section 7) by Employee for Good Reason (as defined in paragraph (d) of this Section 7)); or
     (ii) the willful act, willful failure to act or willful misconduct by Employee which is materially and manifestly injurious to Athersys and which is brought to the attention of Employee in writing not more than thirty (30) days from the date of its discovery by Athersys or the Board.

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     For purposes of this paragraph (c), no act, or failure to act, on Employee’s part will be considered “willful” unless done, or omitted to be done, by him not in good faith or without reasonable belief that his action or omission was in the best interest of Athersys. Notwithstanding the foregoing, Employee will not be deemed to have been terminated for Cause without (1) reasonable written notice to Employee specifying in detail the specific reasons for Athersys’ intention to terminate for Cause, (2) an opportunity for Employee, together with his counsel, to be heard before the Board, and (3) delivery to Employee of a Notice of Termination, as defined in paragraph (e) of this Section 7, approved by the affirmative vote of not less than a majority of the entire membership of the Board finding that in the good faith opinion of the Board, Employee was guilty of conduct set forth in clause (i) or (ii) above.
     (d) Good Reason .
     (i) Employee may terminate his employment under this Agreement (X) for Good Reason or (Y) otherwise upon written notice to Athersys.
     (ii) For purposes of this Agreement, “Good Reason” includes the occurrence of any of the following circumstances, without Employee’s express consent, unless, in the case of clauses (A), (B), (C), (D), (F), (G) and (I) below, such circumstances are fully corrected prior to the Date of Termination (as defined in paragraph (f) of this Section 7) specified in the Notice of Termination (as defined in paragraph (e) of this Section 7) given in respect thereof and such circumstances do not reoccur: (A) a diminution in Employee’s position, duties, responsibilities or authority (except during periods when Employee is unable to perform all or substantially all of Employee’s duties and/or responsibilities as a result of Employee’s illness (either physical or mental) or other incapacity); (B) a reduction in either Employee’s Base Salary or level of participation in any bonus or incentive plan for which he is eligible under Section 5(b); (C) an elimination or reduction of Employee’s participation in any benefit plan generally available to executive employees of Athersys, unless Athersys continues to offer Employee benefits substantially similar to those made available by such plan; provided, however, that a change to a plan in which salaried employees of Athersys generally participate, including termination of any such plan, if it does not result in a proportionately greater reduction in the rights of or benefits to Employee as compared with the other salaried employees of Athersys or is required by law or a technical change, will not be deemed to be Good Reason; (D) failure to provide facilities or services which are suitable to Employee’s position and adequate for the performance of Employee’s duties and responsibilities; (E) failure of any successor (whether direct or indirect, by purchase of stock or assets, merger, consolidation or otherwise) to Athersys to assume Athersys’ obligations under this Agreement or failure by Athersys to remain liable to Employee under this Agreement after an assignment by Athersys of this Agreement, in each case as contemplated by Section 9; (F) any purported termination by Athersys of Employee’s employment which is not effected pursuant to a Notice of Termination satisfying the requirements of paragraph (e) of this Section 7 (and for purposes of this Agreement no such purported termination will be effective); (G) a

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change in the location of Athersys’ principal executive offices to outside the greater Cleveland, Ohio area; (H) a termination of employment by Employee within ninety (90) days following a Change in Control (as defined in paragraph (g) of this Section 7); provided, however, that Good Reason will not exist if Employee has accepted employment with the successor entity and such successor entity has assumed this Agreement; (I) a breach of this Agreement by Athersys; or (J) any similar circumstances which Employee reasonably believes are contrary to this Agreement. Employee’s right to terminate employment pursuant to this paragraph (d) will not be affected by Employee’s incapacity due to physical or mental illness. Employee’s continued employment will not constitute consent to, or a waiver of rights with respect to, any circumstance constituting Good Reason; provided, however , that Employee will be deemed to have waived his rights pursuant to circumstances constituting Good Reason if he has not provided to Athersys a Notice of Termination within ninety (90) days following his knowledge of the circumstances constituting Good Reason.
     (e) Notice of Termination . Any termination of Employee’s employment by Athersys or by Employee (other than a termination pursuant to paragraph (a) of this Section 7) must be communicated by written Notice of Termination to the other party in accordance with Section 10. For purposes of this Agreement, a “Notice of Termination” means a notice which indicates the specific termination provision in this Agreement relied upon and sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Employee’s employment under the provision so indicated.
     (f) Date of Termination . “Date of Termination” means (i) if Employee’s employment is terminated pursuant to paragraph (a) above, the date of his death, (ii) if Employee’s employment is terminated pursuant to paragraph (b) above, thirty (30) days after Notice of Termination is given (provided that Employee has not returned to the full-time performance of Employee’s duties during such thirty (30) day period), (iii) if Employee’s employment is terminated pursuant to paragraph (c) or (d) above, the date specified in the Notice of Termination which, in the case of a termination by Athersys for Cause will not be less than fifteen (15) days from the date such Notice of Termination is given, and, in the case of a termination by Employee pursuant to Section 7(d)(i), such date will not be less than fifteen (15) days nor more than thirty (30) days from the date such Notice of Termination is given, (iv) if Employee’s employment is terminated by Athersys other than for Cause, thirty (30) days from the date Employee is notified of such termination, or (v) if Employee terminates his employment and fails to provide written notice to Athersys of such termination, the date of such termination.
     (g) Change in Control . For purposes of this Agreement, a “Change in Control” will occur (i) upon the sale or other disposition to a person, entity or group (as such term is used in Rule 13d-5 promulgated under the Securities Exchange Act of 1934, as amended) (such a person, entity or group being referred to as an “Outside Party”) of 50% or more of the consolidated assets of Athersys taken as a whole, or (ii) if shares representing a majority of the voting power of Athersys are acquired by a person or group (as such term is used in

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Rule 13d-5) of persons other than the holders of the capital stock of Athersys as of the date of this Agreement, or (iii) if following an underwritten public offering of equity securities pursuant to an effective registration statement under the Securities Act of 1933, as amended, the individuals who are directors of Athersys immediately following the effective date of such public offering (or individuals nominated by such directors) no longer constitute a majority of the whole Board.
     8.  Compensation Upon Termination .
     (a) Disability . During any period that Employee fails to perform his duties under this Agreement as a result of incapacity due to physical or mental illness, Employee will continue to receive his full Base Salary at the rate then in effect for such period (offset by any payments to Employee received pursuant to disability benefit plans maintained by Athersys) and all other compensation and benefits under this Agreement (including pro rata payment for vacation days not taken) until his employment is terminated pursuant to Section 6(b) and for a period of twelve (12) months from the date of such termination.
     (b) Cause or Death . If Employee’s employment is terminated by Athersys for Cause or by Employee other than for Good Reason or as a result of Employee’s death, Athersys will pay to Employee his full Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts, if any, to which Employee is entitled as of the Date of Termination, including any expenses owed pursuant to Section 5(c) and amounts under any compensation plan or program of Athersys, at the time such payments are due and Athersys will, thereafter, have no further obligations to Employee under this Agreement.
     (c) Good Reason . If (i) in breach of this Agreement, Athersys terminates Employee’s employment (it being understood that a purported termination for disability pursuant to Section 7(b) or for Cause which is disputed and finally determined not to have been proper will be a termination by Athersys in breach of this Agreement), or (ii) Employee terminates his employment for Good Reason; then
  (i)   Athersys will continue to pay to Employee his full Base Salary and all other compensation and benefits provided for in this Agreement for a period of eighteen (18) months from the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts, if any, to which Employee is entitled as of the Date of Termination, including any expenses owed pursuant to Section 5(c); provided, however, if during such eighteen (18) month period, Employee violates any provision of the Non-Competition and Confidentiality Agreement between Employee and Athersys, then Athersys will not be required to make any further payments to Employee. The Option shall immediately vest in full on the Date of Termination; and

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  (ii)   Athersys will continue the participation of Employee for a period of eighteen (18) months in all medical, life and other employee “welfare” benefit plans and programs in which Employee was entitled to participate immediately prior to the Date of Termination provided that Employee’s continued participation is possible under the general terms and provisions of such plans and programs.
     (d) Mitigation . Employee will be required to mitigate the amount of any payment provided for in this Section 8 by seeking other employment or otherwise, and the amount of any payment or benefit provided for in this Section 8 will be reduced by any compensation earned by Employee as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by Employee to Athersys, or otherwise.
     (e) Survival of Obligations . The obligations of Athersys to make payments and provide benefits under this Section 8 will survive the termination of this Agreement.
     9.  Binding Agreement . This Agreement and all rights of Employee under this Agreement will inure to the benefit of and be enforceable by Employee’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devises and legatees. If Employee dies while any amounts would still be payable to him under this Agreement if he had continued to live, all such amounts, unless otherwise provided in this Agreement, will be paid in accordance with the terms of this Agreement to Employee’s devisee, legatee, or other designee or, if there be no such designee, to Employee’s estate. This Agreement and all rights of Athersys under this Agreement will inure to the benefit of and be enforceable by Athersys’ successors or assigns; provided, however, any assignment of this Agreement by Athersys will not relieve Athersys from any liability it may have under this Agreement.
     10.  Notice . Notices, demands and all other communications provided for in this Agreement will be in writing and will be deemed to have been duly given when delivered, if delivered personally, or (unless otherwise specified) mailed by United States certified or registered mail, return receipt requested, postage prepaid, and when received if delivered otherwise, addressed as follows:
     If to Employee:
Dr. Gil Van Bokkelen
2311 South Overlook, North Unit
Cleveland Heights, Ohio 44106
     If to Athersys:
Athersys, Inc.
11000 Cedar Avenue, Suite 210
Cleveland, Ohio 44106
Attention: Dr. John J. Harrington, Executive Vice President

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or to such other address as any party may have furnished to the other in writing, except that notices of change of address will be effective only upon receipt.
     11.  General Provisions . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing signed by the parties hereto. No waiver by either party to this Agreement at any time of any breach by the other party of, or compliance with, any condition or provision of this Agreement to be performed by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. The validity, interpretation, construction and performance of this Agreement will be governed by the laws of the State of Ohio without regard to its conflicts of law principles.
     12.  Validity . The invalidity or unenforceability of any provision or provisions, in whole or in part, of this Agreement will not affect the validity or enforceability of any other provision or enforceable part of such partially unenforceable provision of this Agreement, which will remain in full force and effect.
     13.  Counterparts . This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which together will constitute one and the same instrument.
     14.  Captions . The headings of paragraphs are included solely for convenience of reference only and are not part of this Agreement and will not be used in construing it.
     15.  Consent to Jurisdiction and Forum . Employee expressly and irrevocably agrees that Athersys may bring any action, whether at law or in equity, arising out of or based upon this Agreement in the State of Ohio or in any federal court therein. Employee irrevocably consents to personal jurisdiction in such court and to accept service of process in accordance with the provisions of the laws of the State of Ohio.
     16.  Entire Agreement . This Agreement sets forth the entire agreement of the parties in respect of the subject matter contained in this Agreement and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party; and any prior agreement of the parties in respect of the subject mater contained in this Agreement is terminated and canceled.
     IN WITNESS WHEREOF, the parties have executed this Employment Agreement as of the date first above written.

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ATHERSYS, INC.
  “EMPLOYEE”    
 
           
By:
  /s/ Dr. John J. Harrington   /s/ Dr. Gil Van Bokkelen    
 
           
 
  Dr. John J. Harrington,Vice President   Dr. Gil Van Bokkelen    

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EXHIBIT 10.15
AMENDMENT NO. 1 TO
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
     This Amendment No. 1 (this “Amendment”), dated as of May 31, 2007, to the Employment Agreement (“Agreement”), dated as of December 1, 1998, between Gil Van Bokkelen (“Employee”) and ADVANCED BIOTHERAPEUTICS, INC. (“Employer”).
     WHEREAS, Employee is employed by Advanced Biotherapeutics, Inc., a wholly-owned subsidiary of Athersys, Inc. (“Athersys”); and
     WHEREAS, Employer and Employee wish to amend the Agreement in connection with the planned merger (the “Merger”) of Athersys with a wholly-owned subsidiary of a shell company (as such term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) that has a class of equity securities registered under Section 12 of the Exchange Act (“PubCo”); and
     WHEREAS, concurrent with and as a condition to the closing of the Merger, PubCo intends to conduct a private placement transaction pursuant to Regulation D promulgated under the Securities Act of 1933, as amended, whereby PubCo will receive gross proceeds of at least $40 million as consideration for the issuance of its equity securities (the “Offering”).
     NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
     1. Notwithstanding anything to the contrary in the Agreement, neither the consummation of the Merger nor the consummation of the Offering shall be deemed a “Change in Control” for purposes of the Agreement.
     2. This Amendment and the Agreement shall bind and inure to the benefit of and be enforceable by Employee, Employer and their respective heirs, executors, personal representatives, successors and assigns, except that neither party may assign any rights or delegate any obligations hereunder without the prior written consent of the other party. Notwithstanding anything to the contrary in the foregoing, Employee hereby consents to the assignment by Employer of all of its rights and obligations hereunder to any successor to Employer by merger or consolidation or purchase of all or substantially all of Employer’s assets, including, without limitation, any deemed assignment that occurs as a result of the consummation of the Merger.
     3. This Amendment may be executed in two or more counterparts, each of which constitutes an original, and all of which taken together shall constitute one and the same Amendment. It is understood that all parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by email delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the

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party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
     4. The validity, interpretation, construction and performance of this Amendment will be governed by the laws of the State of Ohio without regard to its conflicts of law principles.
     5. Capitalized terms used but not otherwise defined herein have the meanings set forth in the Agreement.

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     IN WITNESS WHEREOF, each of the parties has executed this Amendment as of the day and year first written above.
                             
Gil Van Bokkelen       Advanced Biotherapeutics, Inc.    
 
                           
 
      /s/ Gil Van Bokkelen       By:       /s/ William (BJ) Lehmann    
                          
                      
 
                  Name:   William (BJ) Lehmann    
 
                  Title:   President and Chief Operating Officer    
 
                           
             
Date
              Date            
 
                           
Acknowledged By:                    
 
                           
Athersys, Inc.       ReGenesys, LLC    
 
                           
By:
      /s/ John Harrington       By:       /s/ William (BJ) Lehmann    
                      
 
  Name:   John Harrington           Name:   William (BJ) Lehmann    
 
  Title:   Executive Vice President & CSO           Title:   Vice President, Secretary & Treasurer    
 
                           
             
Date
              Date            

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EXHIBIT 10.16
NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
     This Non-Competition and Confidentiality Agreement (“Agreement”), is made as of the first day of December, 1998 between DR. GIL VAN BOKKELEN, an individual (“Employee”), and ATHERSYS, INC., a Delaware corporation (“Athersys”).
RECITALS :
     A. Athersys is engaged in the competitive business of developing, marketing and selling certain core biotechnologies for the diagnosis and treatment of genetic and infectious disease.
     B. Athersys employs Employee as of the date hereof (provided that nothing stated herein shall be deemed to be a promise by Athersys of future employment).
     C. As a part of such employment, Employee has access to certain “Confidential Information” (as herein defined).
     D. In consideration of the new employment arrangements set forth in the Amended and Restated Employment Agreement between Employee and Athersys dated as of the date hereof (the “Employment Agreement”), Employee has agreed to execute this Agreement.
     E. For the purposes of this Agreement, the term “Athersys” shall be deemed to include Athersys, its predecessor and any affiliates or subsidiaries, together with their respective successors or assigns.
AGREEMENTS:
     NOW THEREFORE, for and in consideration of the premises, mutual covenants and undertakings set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties to this Agreement hereby agree as follows:
     1.  Non-Competition and Confidentiality .
     (a) Employee agrees that, so long as he remains employed by Athersys in any capacity and for a period of eighteen (18) months after the effective date of the termination of said employment by Athersys or Employee. Employee shall not do or suffer any of the following:
     (i) Own, control or manage, or participate in the ownership, control or management of, render consulting services to, or be employed by any corporation, partnership or other entity that is engaged in the business of researching, developing, marketing or selling any technology relating to the field of gene therapy, including,

 


 

without limitation, synthetic microchromosomal technologies, gene activation technologies, centromere technologies or any other type of technology, which is substantially similar to that researched, developed, marketed or sold or contemplated to be researched, developed, marketed or sold by Athersys prior to the Termination Effective Date in any geographic areas in the United States or any countries outside the United States where Athersys has researched, developed, marketed or sold such technologies prior to the Termination Effective Date. For the purposes of this subsection (i), the term “ownership” shall be defined as holding five percent (5%) or more ownership interest or voting control interest in the entity in issue;
     (ii) Knowingly attempt to employ or employ, attempt to assist in employing or assist in employing, or otherwise interfere with the employment of, any employee or officer of Athersys; or
     (iii) Solicit, divert or attempt to divert any customer, sponsor, investor, research collaborator or other business relations of Athersys from associating, collaborating or otherwise doing business with Athersys.
     Notwithstanding the foregoing, the provisions of this Section 1(a) shall terminate on the date that Employee ceases to receive the termination compensation from Athersys pursuant to Section 8(c) of the Employment Agreement.
     (b) Employee agrees that from and after the date of this Agreement, Employee shall not disclose, divulge, discuss, copy or otherwise use or suffer to be used any item of confidential information of Athersys, including, without limitation, technologies, product development procedures, new products, customer lists, client lists, sales methods, pricing or cost data, software or software documentation, methods, product research or engineering data, documents, instruments, drawings, or designs (“Confidential Information”). The term “Confidential Information” shall include, by way of example not limitation, any information which, in the good faith opinion of the Board of Directors, constitutes “trade secrets” of Athersys, as such term is defined in Ohio Revised Code Section 1333.51.
     2.  Injunctive Relief . Employee acknowledges and agrees that: (i) each term of Section 1 of this Agreement is fully required to protect Athersys’ interest and that no term in Section 1 confers a benefit on Athersys that is disproportionate to the detriment imposed on Employee and each provision of such Section 1 is reasonable in time and territory and does not stifle Employee’s inherent skill and experience and will not operate as a bar to Employee’s sole means of support; (ii) the remedy at law for any breach by Employee of any term of Section 1 would be inadequate; and (iii) the damages flowing from such breach are not readily susceptible to measurement in monetary terms. Accordingly, upon adequate proof of Employee’s violation of any legally enforceable provision of Section 1 of this Agreement, Athersys shall be entitled to immediate injunctive relief and may obtain a temporary order restraining any threatened or future breach. Nothing in this Agreement shall be deemed to limit Athersys’ remedies at law or in equity for any breach by Employee of any term of this Agreement.

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     3.  Ownership of Technology . Any technology, procedure, design feature, invention, improvement, development or discovery (whether or not patentable or copyrightable) that Employee may conceive of, make, invent, suggest, or otherwise obtain knowledge of during the course of Employee’s employment or other relationship with Athersys (whether individually or jointly with any other person or persons), relating in any way to the field of gene therapy or any other business of Athersys or to the proposed contemplated business of which Athersys will be a part of, shall be the sole, exclusive and absolute property of Athersys, as shall all physical embodiments and manifestations thereof and all research data regarding, including, without limitation, all proprietary rights, techniques, specifications, any methods and apparatuses for data manipulation and utilization. Employee will immediately disclose any such technology, procedure, design feature, invention, improvement, development or discovery to Athersys and will, at any time, upon Athersys’ request and without additional compensation, execute any documents and give all lawful testimony which may be required respecting the patenting or copyrighting of any such technology, procedure, design feature, invention, improvement, development or discovery, as well as any papers which may be considered necessary or helpful by Athersys in the processing of applications for patents thereon, to vest title thereto in Athersys, or which may relate to any litigation or controversy in connection therewith, all expenses incident thereto to be borne by Athersys. Employee, whether or not still employed by Athersys, will cooperate with Athersys, at Athersys’ expense, in any litigation or other matter relating to Athersys’ right in any of the foregoing.
     4.  Severability . In the event that Sections 1, 2 and 3 shall be found by a court of competent jurisdiction to be invalid or unenforceable as against public policy, such court shall exercise its discretion in reforming such provisions to the end that Employee shall be subject to nondisclosure, noncompetitive and noninterference covenants that are reasonable under the circumstances and enforceable by Athersys. In the event that any other provision or term of this Agreement is found to be void or unenforceable to any extent for any reason, it is the agreed-upon intent of the parties hereto that all remaining provisions or terms of this Agreement shall remain in full force and effect to the maximum extent permitted and that this Agreement shall be enforceable as if such void or unenforceable provision or term had never been a part hereof. To the extent that any obligations of Employee in this Agreement shall be illegal and/or unenforceable with respect to any jurisdiction, said covenants shall not be affected thereby with respect to each other jurisdiction, such covenants with respect to each such jurisdiction being construed as severable and independent. In the event Seller shall violate any legally enforceable provision of this Agreement as to which there is a specific time period during which Athersys is prohibited from taking certain actions or from engaging in certain activities, as set forth in this Agreement, then, in such event, such violation shall toll the running of such time period from the date such violation commences until, and including, the date such violation shall cease.
     5.  Notice . Notices, demands and all other communications provided for in this Agreement will be in writing and will be deemed to have been duly given when delivered, if delivered personally, or (unless otherwise specified) mailed by United States certified or

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registered mail, return receipt requested, postage prepaid, and when received if delivered otherwise, addressed as follows:
     If to Employee:
Dr. Gil Van Bokkelen
2311 South Overlook, North Unit
Cleveland, Ohio 44106
     If to Athersys:
Athersys, Inc.
11000 Cedar Road, Suite 210
Cleveland, Ohio 44106
Attention: Dr. John J. Harrington, Vice President
or to such other address as any party may have furnished to the other in writing, except that notices of change of address will be effective only upon receipt.
     6.  General Provisions . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing signed by the parties hereto. No waiver by either party to this Agreement at any time of any breach by the other party of, or compliance with, any condition or provision of this Agreement to be performed by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. The validity, interpretation, construction and performance of this Agreement will be governed by the laws of the State of Ohio without regard to its conflicts of law principles.
     7.  Counterparts . This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which together will constitute one and the same instrument.
     8.  Captions . The headings of paragraphs are included solely for convenience of reference only and are not part of this Agreement and will not be used in construing it.
     9.  Consent to Jurisdiction and Forum . Employee expressly and irrevocably agrees that Athersys may bring any action, whether at law or in equity, arising out of or based upon this Agreement in the State of Ohio or in any federal court therein. Employee irrevocably consents to personal jurisdiction in such court and to accept service of process in accordance with the provisions of the laws of the State of Ohio.

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     10.  Entire Agreement . This Agreement sets forth the entire agreement of the parties in respect of the subject matter contained in this Agreement and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party; and any prior agreement of the parties in respect of the subject mater contained in this Agreement is terminated and canceled.
     IN WITNESS WHEREOF, the parties have executed this Non-Competition and Confidentiality Agreement as of the date first above written.
         
  ATHERSYS, INC.
 
 
  By:   /s/ Dr. John J. Harrington  
    Dr. John J. Harrington   
    Vice President   
 
  “EMPLOYEE”
 
 
  /s/ Dr. Gil Van Bokkelen  
  Dr. Gil Van Bokkelen   
     
 

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EXHIBIT 10.17
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
     THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”) is made as of the first day of December, 1998, and is effective as of April 1, 1998, between DR. JOHN J. HARRINGTON, an individual (“Employee”), and ATHERSYS, INC., a Delaware corporation (“Athersys”).
     WHEREAS, Athersys and Employee have entered into an Employment Agreement dated as of January 1, 1996 (the “Agreement”); and
     WHEREAS, Athersys and Employee desire to amend and restate the Agreement.
     NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, and for other good and valuable consideration, the parties hereto hereby agree as follows:
     1.  Employment . Athersys agrees to employ Employee, and Employee agrees to serve Athersys, on the terms and conditions set forth in this Agreement.
     2.  Term . Subject to the provisions for termination as hereinafter provided, the term of this Agreement will begin on April 1, 1998 (the “Effective Date”) and continue through March 31, 1999. Such term will automatically be extended for one additional year on April 1 of each succeeding year, beginning on April 1, 1999 and thereafter, unless (i) this Agreement is terminated as provided in Section 7, or (ii) either Employee or Athersys gives written notice of termination of this Agreement to the other at least thirty (30) days prior to such date.
     3.  Position and Duties . Employee will serve as Executive Vice President and Chief Scientific Officer of Athersys and will have such responsibilities, duties and authority as are customary of a Executive Vice President and Chief Scientific Officer of a company the size and structure of Athersys (or any position to which he may be promoted after the date of this Agreement) and as may from time to time be assigned to Employee by the Board of Directors of Athersys (the “Board”) that are consistent with such responsibilities, duties, authority and applicable law. Employee will devote substantially all his working time and efforts to the business and affairs of Athersys.
     4.  Place of Performance . In connection with Employee’s employment by Athersys, Employee will be based at the principal executive offices of Athersys in the greater Cleveland, Ohio area.
     5.  Compensation and Related Matters . As compensation and consideration for the performance by Employee of Employee’s duties, responsibilities and covenants pursuant to this Agreement, Athersys will pay Employee and Employee agrees to accept in full payment for such performance the amounts and benefits set forth below:
     (a) Salary . Athersys will pay to Employee an annual base salary (“Base Salary”) at a rate of One Hundred Fifty Thousand Dollars ($150,000), which shall be retroactive to the Effective Date. In all cases, the Board will review the Base Salary upon the closing of an initial public offering or a sale of all or substantially all of the stock or assets of Athersys for

 


 

adjustment to Base Salary at a rate which is comparable to that of an executive of a company the size and structure of Athersys. The Base Salary may be increased from time to time by the Board in its sole discretion and, if so increased, will not thereafter during the term of this Agreement be decreased. The Board will review the Base Salary at least annually to determine, in its sole discretion, whether an increase is appropriate. Compensation of Employee by salary payments will not be deemed exclusive and will not prevent Employee from participating in any other compensation or benefit plan of Athersys.
     (b) Bonus . Employee shall be eligible for a bonus of up to Thirty-three percent (33%) of Base Salary upon the achievement of certain performance goals as determined by the Board on an annual basis, as set forth on Exhibit A.
     (c) Expenses . Employee will be entitled to receive prompt reimbursement for all reasonable and customary travel and entertainment expenses or other out-of-pocket business expenses incurred by Employee in fulfilling Employee’s duties and responsibilities under this Agreement, including all expenses of travel and living expenses while away from home on business or at the request of and in the service of Athersys, provided that such expenses are incurred and accounted for in accordance with the policies and procedures established by Athersys.
     (d) Other Benefits . Employee will be entitled to participate in all of the employee benefit plans and arrangements of Athersys and enjoy all of the perquisites provided to the employees of Athersys (including, without limitation, each retirement, thrift and profit sharing plan, group life insurance and accident plan, medical and/or dental insurance plan, and disability plan); provided, however, that a change may be made to a plan in which salaried employees of Athersys participate, including termination of any such plan, arrangement or perquisite, if it does not result in a proportionately greater reduction in the rights of or benefits to Employee as compared with any other salaried employee of Athersys or is required by law or a technical change. Employee will be entitled to participate in and receive benefits under any employee benefit plan, arrangement or perquisite made available by Athersys in the future to its executive employees, subject to and on a basis consistent with the terms, conditions and overall administration of such plans, arrangements and perquisites. Nothing paid to Employee under any plan, arrangement or perquisite presently in effect or made available in the future will be deemed to be in lieu of the Base Salary payable to Employee pursuant to paragraph (a) of this Section 5.
     (e) Vacations . Employee will be entitled to paid vacation in each calendar year, determined in accordance with Athersys’ vacation policy, but in all events in an amount of not less than three (3) weeks per calendar year. Employee will also be entitled to all paid holidays and personal days given by Athersys to its executive employees.
     (f) Life Insurance . Athersys shall purchase for Employee a life insurance policy in the amount of $1,000,000 for the benefit of the family of Employee.

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     6.  Stock Options .
     (a) Employee will be granted an option (the “Option”) to purchase One Hundred (100) shares of Common Stock of Athersys, which will vest equally on the Effective Date over a period of three (3) years. The average exercise price of the Option will be Four Thousand Five Hundred Dollars ($4500) per share. The terms and conditions of the stock options are governed by the Option Agreement between Athersys and Employee of even date herewith.
     (b) Employee will be granted an additional option (the “Second Option”) to purchase One Hundred Fifty-two and one half (152.5) shares of Common Stock of Athersys, which will vest immediately upon execution of this Agreement. The exercise price of the Second Option will be Four Thousand Five Hundred Dollars ($4500) per share. The terms and conditions of the Second Option are governed by the Option Agreement between Athersys and Employee of even date herewith.
     7.  Termination . Employee’s employment under this Agreement may be terminated under the following circumstances:
     (a) Death . Employee’s employment under this Agreement will terminate upon his death.
     (b) Disability . If, in the written opinion of a qualified physician selected by Athersys and agreed to by Employee (or if no agreement is reached within thirty (30) days of the commencement of discussions between Athersys and Employee, then of a qualified physician agreed upon by the physician selected by Athersys and a physician selected by Employee), Employee becomes unable to perform his duties under this Agreement due to physical or mental illness, Athersys may terminate Employee’s employment under this Agreement.
     (c) Cause . Athersys may terminate Employee’s employment under this Agreement for Cause. For purposes of this Agreement, Athersys will have “Cause” to terminate Employee’s employment under this Agreement upon:
     (i) the willful and continuous neglect or willful and continuous refusal to perform Employee’s duties or responsibilities under this Agreement which continues for a period of at least thirty (30) days after being brought to the attention of Employee in writing (other than any such failure resulting from Employee’s incapacity due to physical or mental illness or any such actual or anticipated failure after the issuance of a Notice of Termination (as defined in paragraph (e) of this Section 7) by Employee for Good Reason (as defined in paragraph (d) of this Section 7)); or

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     (ii) the willful act, willful failure to act or willful misconduct by Employee which is materially and manifestly injurious to Athersys and which is brought to the attention of Employee in writing not more than thirty (30) days from the date of its discovery by Athersys or the Board.
     For purposes of this paragraph (c), no act, or failure to act, on Employee’s part will be considered “willful” unless done, or omitted to be done, by him not in good faith or without reasonable belief that his action or omission was in the best interest of Athersys. Notwithstanding the foregoing, Employee will not be deemed to have been terminated for Cause without (1) reasonable written notice to Employee specifying in detail the specific reasons for Athersys’ intention to terminate for Cause, (2) an opportunity for Employee, together with his counsel, to be heard before the Board, and (3) delivery to Employee of a Notice of Termination, as defined in paragraph (e) of this Section 7, approved by the affirmative vote of not less than a majority of the entire membership of the Board finding that in the good faith opinion of the Board, Employee was guilty of conduct set forth in clause (i) or (ii) above.
     (d) Good Reason .
     (i) Employee may terminate his employment under this Agreement (X) for Good Reason or (Y) otherwise upon written notice to Athersys.
     (ii) For purposes of this Agreement, “Good Reason” includes the occurrence of any of the following circumstances, without Employee’s express consent, unless, in the case of clauses (A), (B), (C), (D), (F), (G) and (I) below, such circumstances are fully corrected prior to the Date of Termination (as defined in paragraph (f) of this Section 7) specified in the Notice of Termination (as defined in paragraph (e) of this Section 7) given in respect thereof and such circumstances do not reoccur: (A) a diminution in Employee’s position, duties, responsibilities or authority (except during periods when Employee is unable to perform all or substantially all of Employee’s duties and/or responsibilities as a result of Employee’s illness (either physical or mental) or other incapacity); (B) a reduction in either Employee’s Base Salary or level of participation in any bonus or incentive plan for which he is eligible under Section 5(b); (C) an elimination or reduction of Employee’s participation in any benefit plan generally available to executive employees of Athersys, unless Athersys continues to offer Employee benefits substantially similar to those made available by such plan; provided, however, that a change to a plan in which salaried employees of Athersys generally participate, including termination of any such plan, if it does not result in a proportionately greater reduction in the rights of or benefits to Employee as compared with the other salaried employees of Athersys or is required by law or a technical change, will not be deemed to be Good Reason; (D) failure to provide facilities or services which are suitable to Employee’s position and adequate for the performance of Employee’s duties and responsibilities; (E) failure of any successor (whether direct or indirect, by purchase of stock or assets, merger, consolidation or otherwise) to Athersys to

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assume Athersys’ obligations under this Agreement or failure by Athersys to remain liable to Employee under this Agreement after an assignment by Athersys of this Agreement, in each case as contemplated by Section 9; (F) any purported termination by Athersys of Employee’s employment which is not effected pursuant to a Notice of Termination satisfying the requirements of paragraph (e) of this Section 7 (and for purposes of this Agreement no such purported termination will be effective); (G) a change in the location of Athersys’ principal executive offices to outside the greater Cleveland, Ohio area; (H) a termination of employment by Employee within ninety (90) days following a Change in Control (as defined in paragraph (g) of this Section 7); provided, however, that Good Reason will not exist if Employee has accepted employment with the successor entity and such successor entity has assumed this Agreement; (I) a breach of this Agreement by Athersys; or (J) any similar circumstances which Employee reasonably believes are contrary to this Agreement. Employee’s right to terminate employment pursuant to this paragraph (d) will not be affected by Employee’s incapacity due to physical or mental illness. Employee’s continued employment will not constitute consent to, or a waiver of rights with respect to, any circumstance constituting Good Reason; provided, however , that Employee will be deemed to have waived his rights pursuant to circumstances constituting Good Reason if he has not provided to Athersys a Notice of Termination within ninety (90) days following his knowledge of the circumstances constituting Good Reason.
     (e) Notice of Termination . Any termination of Employee’s employment by Athersys or by Employee (other than a termination pursuant to paragraph (a) of this Section 7) must be communicated by written Notice of Termination to the other party in accordance with Section 10. For purposes of this Agreement, a “Notice of Termination” means a notice which indicates the specific termination provision in this Agreement relied upon and sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Employee’s employment under the provision so indicated.

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     (f) Date of Termination . “Date of Termination” means (i) if Employee’s employment is terminated pursuant to paragraph (a) above, the date of his death, (ii) if Employee’s employment is terminated pursuant to paragraph (b) above, thirty (30) days after Notice of Termination is given (provided that Employee has not returned to the full-time performance of Employee’s duties during such thirty (30) day period), (iii) if Employee’s employment is terminated pursuant to paragraph (c) or (d) above, the date specified in the Notice of Termination which, in the case of a termination by Athersys for Cause will not be less than fifteen (15) days from the date such Notice of Termination is given, and, in the case of a termination by Employee pursuant to Section 7(d)(i), such date will not be less than fifteen (15) days nor more than thirty (30) days from the date such Notice of Termination is given, (iv) if Employee’s employment is terminated by Athersys other than for Cause, thirty (30) days from the date Employee is notified of such termination, or (v) if Employee terminates his employment and fails to provide written notice to Athersys of such termination, the date of such termination.
     (g) Change in Control . For purposes of this Agreement, a “Change in Control” will occur (i) upon the sale or other disposition to a person, entity or group (as such term is used in Rule 13d-5 promulgated under the Securities Exchange Act of 1934, as amended) (such a person, entity or group being referred to as an “Outside Party”) of 50% or more of the consolidated assets of Athersys taken as a whole, or (ii) if shares representing a majority of the voting power of Athersys are acquired by a person or group (as such term is used in Rule 13d-5) of persons other than the holders of the capital stock of Athersys as of the date of this Agreement, or (iii) if following an underwritten public offering of equity securities pursuant to an effective registration statement under the Securities Act of 1933, as amended, the individuals who are directors of Athersys immediately following the effective date of such public offering (or individuals nominated by such directors) no longer constitute a majority of the whole Board.
     8.  Compensation Upon Termination .
     (a) Disability . During any period that Employee fails to perform his duties under this Agreement as a result of incapacity due to physical or mental illness, Employee will continue to receive his full Base Salary at the rate then in effect for such period (offset by any payments to Employee received pursuant to disability benefit plans maintained by Athersys) and all other compensation and benefits under this Agreement (including pro rata payment for vacation days not taken) until his employment is terminated pursuant to Section 7(b) and for a period of twelve (12) months from the date of such termination.
     (b) Cause or Death . If Employee’s employment is terminated by Athersys for Cause or by Employee other than for Good Reason or as a result of Employee’s death, Athersys will pay to Employee his full Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts, if any, to which Employee is entitled as of the Date of Termination, including any expenses owed pursuant to Section 5(c) and amounts under any compensation plan or program of Athersys,

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at the time such payments are due and Athersys will, thereafter, have no further obligations to Employee under this Agreement.
     (c) Good Reason . If (i) in breach of this Agreement, Athersys terminates Employee’s employment (it being understood that a purported termination for disability pursuant to Section 7(b) or for Cause which is disputed and finally determined not to have been proper will be a termination by Athersys in breach of this Agreement), or (ii) Employee terminates his employment for Good Reason; then
     (i) Athersys will continue to pay to Employee his full Base Salary and all other compensation and benefits provided for in this Agreement for a period of eighteen (18) months from the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts, if any, to which Employee is entitled as of the Date of Termination, including any expenses owed pursuant to Section 5(c); provided, however, if during such eighteen (18) month period, Employee violates any provision of the Non-Competition and Confidentiality Agreement between Employee and Athersys, then Athersys will not be required to make any further payments to Employee. The Option and the Second Option shall immediately vest in full on the Date of Termination; and
     (ii) Athersys will continue the participation of Employee for a period of eighteen (18) months in all medical, life and other employee “welfare” benefit plans and programs in which Employee was entitled to participate immediately prior to the Date of Termination provided that Employee’s continued participation is possible under the general terms and provisions of such plans and programs.
     (d) Mitigation . Employee will be required to mitigate the amount of any payment provided for in this Section 8 by seeking other employment or otherwise, and the amount of any payment or benefit provided for in this Section 8 will be reduced by any compensation earned by Employee as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by Employee to Athersys, or otherwise.
     (e) Survival of Obligations . The obligations of Athersys to make payments and provide benefits under this Section 8 will survive the termination of this Agreement.
     9.  Binding Agreement . This Agreement and all rights of Employee under this Agreement will inure to the benefit of and be enforceable by Employee’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devises and legatees. If Employee dies while any amounts would still be payable to him under this Agreement if he had continued to live, all such amounts, unless otherwise provided in this Agreement, will be paid in accordance with the terms of this Agreement to Employee’s devisee, legatee, or other designee or, if there be no such designee, to Employee’s estate. This Agreement and all rights of Athersys under this Agreement will inure to the benefit of and be enforceable by Athersys’ successors or assigns;

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provided, however, any assignment of this Agreement by Athersys will not relieve Athersys from any liability it may have under this Agreement.
     10.  Notice . Notices, demands and all other communications provided for in this Agreement will be in writing and will be deemed to have been duly given when delivered, if delivered personally, or (unless otherwise specified) mailed by United States certified or registered mail, return receipt requested, postage prepaid, and when received if delivered otherwise, addressed as follows:
     If to Employee:
John J. Harrington
6487 Meadowbrook Dr.
Mentor, Ohio 44060
     If to Athersys:
Athersys, Inc.
11000 Cedar Road, Suite 210
Cleveland, Ohio 44106
Attention: Dr. Gil Van Bokkelen, President
or to such other address as any party may have furnished to the other in writing, except that notices of change of address will be effective only upon receipt.
     11.  General Provisions . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing signed by the parties hereto. No waiver by either party to this Agreement at any time of any breach by the other party of, or compliance with, any condition or provision of this Agreement to be performed by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. The validity, interpretation, construction and performance of this Agreement will be governed by the laws of the State of Ohio without regard to its conflicts of law principles.
     12.  Validity . The invalidity or unenforceability of any provision or provisions, in whole or in part, of this Agreement will not affect the validity or enforceability of any other provision or enforceable part of such partially unenforceable provision of this Agreement, which will remain in full force and effect.
     13.  Counterparts . This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which together will constitute one and the same instrument.
     14.  Captions . The headings of paragraphs are included solely for convenience of reference only and are not part of this Agreement and will not be used in construing it.

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     15.  Consent to Jurisdiction and Forum . Employee expressly and irrevocably agrees that Athersys may bring any action, whether at law or in equity, arising out of or based upon this Agreement in the State of Ohio or in any federal court therein. Employee irrevocably consents to personal jurisdiction in such court and to accept service of process in accordance with the provisions of the laws of the State of Ohio.
     16.  Entire Agreement . This Agreement sets forth the entire agreement of the parties in respect of the subject matter contained in this Agreement and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party; and any prior agreement of the parties in respect of the subject mater contained in this Agreement is terminated and canceled.
     IN WITNESS WHEREOF, the parties have executed this Employment Agreement as of the date first above written.
         
  ATHERSYS, INC.
 
 
  By:   /s/ Dr. Gil Van Bokkelen  
    Dr. Gil Van Bokkelen, President and Chief Executive Officer   
       
 
  “EMPLOYEE”
 
 
  /s/ Dr. John J. Harrington  
  Dr. John J. Harrington   
     

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EXHIBIT 10.18
AMENDMENT NO. 1 TO
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
     This Amendment No. 1 (this “Amendment”), dated as of May 31, 2007, to the Employment Agreement (“Agreement”), dated as of December 1, 1998, between John Harrington (“Employee”) and ADVANCED BIOTHERAPEUTICS, INC. (“Employer”).
     WHEREAS, Employee is employed by Advanced Biotherapeutics, Inc., a wholly-owned subsidiary of Athersys, Inc. (“Athersys”); and
     WHEREAS, Employer and Employee wish to amend the Agreement in connection with the planned merger (the “Merger”) of Athersys with a wholly-owned subsidiary of a shell company (as such term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) that has a class of equity securities registered under Section 12 of the Exchange Act (“PubCo”); and
     WHEREAS, concurrent with and as a condition to the closing of the Merger, PubCo intends to conduct a private placement transaction pursuant to Regulation D promulgated under the Securities Act of 1933, as amended, whereby PubCo will receive gross proceeds of at least $40 million as consideration for the issuance of its equity securities (the “Offering”).
     NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
     1. Notwithstanding anything to the contrary in the Agreement, neither the consummation of the Merger nor the consummation of the Offering shall be deemed a “Change in Control” for purposes of the Agreement.
     2. This Amendment and the Agreement shall bind and inure to the benefit of and be enforceable by Employee, Employer and their respective heirs, executors, personal representatives, successors and assigns, except that neither party may assign any rights or delegate any obligations hereunder without the prior written consent of the other party. Notwithstanding anything to the contrary in the foregoing, Employee hereby consents to the assignment by Employer of all of its rights and obligations hereunder to any successor to Employer by merger or consolidation or purchase of all or substantially all of Employer’s assets, including, without limitation, any deemed assignment that occurs as a result of the consummation of the Merger.
     3. This Amendment may be executed in two or more counterparts, each of which constitutes an original, and all of which taken together shall constitute one and the same Amendment. It is understood that all parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by email delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the

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party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
     4. The validity, interpretation, construction and performance of this Amendment will be governed by the laws of the State of Ohio without regard to its conflicts of law principles.
     5. Capitalized terms used but not otherwise defined herein have the meanings set forth in the Agreement.

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     IN WITNESS WHEREOF, each of the parties has executed this Amendment as of the day and year first written above.
               
john harrington     Advanced Biotherapeutics, Inc.
 
 
/s/ John Harrington   By:   /s/ Gil Van Bokkelen  
      Name:   Gil Van Bokkelen   
      Title:   Chief Executive Officer  
 
Date    Date   
 
Acknowledged By:

Athersys, Inc.   
   

ReGenesys, LLC
  
 
 
By:  /s/ Gil Van Bokkelen   By:   /s/ William (BJ) Lehmann  
  Name:  Gil Van Bokkelen      Name:  William (BJ) Lehmann   
  Title:  Chief Executive Officer     Title:  Vice President, Secretary & Treasurer  
 
Date    Date   
 

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EXHIBIT 10.19
NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
     This Non-Competition and Confidentiality Agreement (“Agreement”), is made as of the first day of December, 1998 and effective April 1, 1998 between DR. JOHN J. HARRINGTON, an individual (“Employee”), and ATHERSYS, INC., a Delaware corporation (“Athersys”).
RECITALS :
     A. Athersys is engaged in the competitive business of developing, marketing and selling certain core biotechnologies for the diagnosis and treatment of genetic and infectious disease.
     B. Athersys employs Employee as of the date hereof (provided that nothing stated herein shall be deemed to be a promise by Athersys of future employment).
     C. As a part of such employment, Employee has access to certain “Confidential Information” (as herein defined).
     D. In consideration of the new employment arrangements set forth in the Amended and Restated Employment Agreement between Employee and Athersys dated as of the date hereof (the “Employment Agreement”), Employee has agreed to execute this Agreement.
     E. For the purposes of this Agreement, the term “Athersys” shall be deemed to include Athersys, its predecessor and any affiliates or subsidiaries, together with their respective successors or assigns.
AGREEMENTS:
     NOW THEREFORE, for and in consideration of the premises, mutual covenants and undertakings set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties to this Agreement hereby agree as follows:
     1.  Non-Competition and Confidentiality .
     (a) Employee agrees that, so long as he remains employed by Athersys in any capacity and for a period of eighteen (18) months after the effective date of the termination of said employment by Athersys or Employee, Employee shall not do or suffer any of the following:
     (i) Own, control or manage, or participate in the ownership, control or management of, render consulting services to, or be employed by any corporation, partnership or other entity that is engaged in the business of researching, developing, marketing or selling any technology relating to the field of gene therapy, including,

 


 

without limitation, synthetic microchromosomal technologies, gene activation technologies, centromere technologies or any other type of technology, which is substantially similar to that researched, developed, marketed or sold or contemplated to be researched, developed, marketed or sold by Athersys prior to the Termination Effective Date in any geographic areas in the United States or any countries outside the United States where Athersys has researched, developed, marketed or sold such technologies prior to the Termination Effective Date. For the purposes of this subsection (i), the term “ownership” shall be defined as holding five percent (5%) or more ownership interest or voting control interest in the entity in issue;
     (ii) Knowingly attempt to employ or employ, attempt to assist in employing or assist in employing, or otherwise interfere with the employment of, any employee or officer of Athersys; or
     (iii) Solicit, divert or attempt to divert any customer, sponsor, investor, research collaborator or other business relations of Athersys from associating, collaborating or otherwise doing business with Athersys.
     Notwithstanding the foregoing, the provisions of this Section 1(a) shall terminate on the date that Employee ceases to receive the termination compensation from Athersys pursuant to Section 8(c) of the Employment Agreement.
     (b) Employee agrees that from and after the date of this Agreement, Employee shall not disclose, divulge, discuss, copy or otherwise use or suffer to be used any item of confidential information of Athersys, including, without limitation, technologies, product development procedures, new products, customer lists, client lists, sales methods, pricing or cost data, software or software documentation, methods, product research or engineering data, documents, instruments, drawings, or designs (“Confidential Information”). The term “Confidential Information” shall include, by way of example not limitation, any information which, in the good faith opinion of the Board of Directors, constitutes “trade secrets” of Athersys, as such term is defined in Ohio Revised Code Section 1333.51.
     2.  Injunctive Relief . Employee acknowledges and agrees that: (i) each term of Section 1 of this Agreement is fully required to protect Athersys’ interest and that no term in Section 1 confers a benefit on Athersys that is disproportionate to the detriment imposed on Employee and each provision of such Section 1 is reasonable in time and territory and does not stifle Employee’s inherent skill and experience and will not operate as a bar to Employee’s sole means of support; (ii) the remedy at law for any breach by Employee of any term of Section 1 would be inadequate; and (iii) the damages flowing from such breach are not readily susceptible to measurement in monetary terms. Accordingly, upon adequate proof of Employee’s violation of any legally enforceable provision of Section 1 of this Agreement, Athersys shall be entitled to immediate injunctive relief and may obtain a temporary order restraining any threatened or future breach. Nothing in this Agreement shall

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be deemed to limit Athersys’ remedies at law or in equity for any breach by Employee of any term of this Agreement.
     3.  Ownership of Technology . Any technology, procedure, design feature, invention, improvement, development or discovery (whether or not patentable or copyrightable) that Employee may conceive of, make, invent, suggest, or otherwise obtain knowledge of during the course of Employee’s employment or other relationship with Athersys (whether individually or jointly with any other person or persons), relating in any way to the field of gene therapy or any other business of Athersys or to the proposed contemplated business of which Athersys will be a part of, shall be the sole, exclusive and absolute property of Athersys, as shall all physical embodiments and manifestations thereof and all research data regarding, including, without limitation, all proprietary rights, techniques, specifications, any methods and apparatuses for data manipulation and utilization. Employee will immediately disclose any such technology, procedure, design feature, invention, improvement, development or discovery to Athersys and will, at any time, upon Athersys’ request and without additional compensation, execute any documents and give all lawful testimony which may be required respecting the patenting or copyrighting of any such technology, procedure, design feature, invention, improvement, development or discovery, as well as any papers which may be considered necessary or helpful by Athersys in the processing of applications for patents thereon, to vest title thereto in Athersys, or which may relate to any litigation or controversy in connection therewith, all expenses incident thereto to be borne by Athersys. Employee, whether or not still employed by Athersys, will cooperate with Athersys, at Athersys’ expense, in any litigation or other matter relating to Athersys’ right in any of the foregoing.
     4.  Severability . In the event that Sections 1, 2 and 3 shall be found by a court of competent jurisdiction to be invalid or unenforceable as against public policy, such court shall exercise its discretion in reforming such provisions to the end that Employee shall be subject to nondisclosure, noncompetitive and noninterference covenants that are reasonable under the circumstances and enforceable by Athersys. In the event that any other provision or term of this Agreement is found to be void or unenforceable to any extent for any reason, it is the agreed-upon intent of the parties hereto that all remaining provisions or terms of this Agreement shall remain in full force and effect to the maximum extent permitted and that this Agreement shall be enforceable as if such void or unenforceable provision or term had never been a part hereof. To the extent that any obligations of Employee in this Agreement shall be illegal and/or unenforceable with respect to any jurisdiction, said covenants shall not be affected thereby with respect to each other jurisdiction, such covenants with respect to each such jurisdiction being construed as severable and independent. In the event Seller shall violate any legally enforceable provision of this Agreement as to which there is a specific time period during which Athersys is prohibited from taking certain actions or from engaging in certain activities, as set forth in this Agreement, then, in such event, such violation shall toll the running of such time period from the date such violation commences until, and including, the date such violation shall cease.

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     5.  Notice . Notices, demands and all other communications provided for in this Agreement will be in writing and will be deemed to have been duly given when delivered, if delivered personally, or (unless otherwise specified) mailed by United States certified or registered mail, return receipt requested, postage prepaid, and when received if delivered otherwise, addressed as follows:
     If to Employee:
Dr. John J. Harrington
6487 Meadowbrook Dr.
Mentor, Ohio 44060
     If to Athersys:
Athersys, Inc.
11000 Cedar Avenue, Suite 210
Cleveland, Ohio 44106
Attention: Dr. Gil Van Bokkelen, President
or to such other address as any party may have furnished to the other in writing, except that notices of change of address will be effective only upon receipt.
     6.  General Provisions . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing signed by the parties hereto. No waiver by either party to this Agreement at any time of any breach by the other party of, or compliance with, any condition or provision of this Agreement to be performed by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. The validity, interpretation, construction and performance of this Agreement will be governed by the laws of the State of Ohio without regard to its conflicts of law principles.
     7.  Counterparts . This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which together will constitute one and the same instrument.
     8.  Captions . The headings of paragraphs are included solely for convenience of reference only and are not part of this Agreement and will not be used in construing it.
     9.  Consent to Jurisdiction and Forum . Employee expressly and irrevocably agrees that Athersys may bring any action, whether at law or in equity, arising out of or based upon this Agreement in the State of Ohio or in any federal court therein. Employee irrevocably consents to personal jurisdiction in such court and to accept service of process in accordance with the provisions of the laws of the State of Ohio.

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     10.  Entire Agreement . This Agreement sets forth the entire agreement of the parties in respect of the subject matter contained in this Agreement and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party; and any prior agreement of the parties in respect of the subject mater contained in this Agreement is terminated and canceled.
     IN WITNESS WHEREOF, the parties have executed this Non-Competition and Confidentiality Agreement as of the date first above written.
         
  ATHERSYS, INC.
 
 
  By:   /s/ Gil Van Bokkelen  
    Gil Van Bokkelen, President & CEO   
       
 
  “EMPLOYEE”
 
 
  /s/ Dr. John J. Harrington  
  Dr. John J. Harrington   
     
 

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EXHIBIT 10.20
EMPLOYMENT AGREEMENT
     THIS EMPLOYMENT AGREEMENT (“Agreement”) is made as of the 22 day of May, 1998 between Laura K. Campbell, an individual (“Employee”), and ATHERSYS, INC., a Delaware corporation (“Athersys”).
RECITALS :
A. Athersys is engaged in the competitive business of developing, marketing and selling certain core biotechnologies for the diagnosis and treatment of genetic and infectious disease.
B. Athersys desires to employ Employee on the terms and conditions set forth in this Agreement.
C. Employee is willing to accept employment on the terms and conditions expressed in this Agreement.
AGREEMENTS:
     NOW, THEREFORE, the parties agree as follows:
(1) Employment . Athersys agrees to employ Employee, and Employee agrees to serve Athersys, on the terms and conditions set forth in this Agreement.
     (a)  Term . Subject to the provisions for termination as hereinafter provided, the term of this Agreement will begin on May 22, 1998 (the “Effective Date”) and continue through May 22, 2000. Such term will automatically be extended for one additional year on May 22 of each succeeding calendar year, beginning on May 22, 2000 and thereafter, unless (i) this Agreement is terminated as provided in Section 4, or (ii) either Employee or Athersys gives written notice of termination of this Agreement to the other at least thirty (30) days prior to such date.
     (b)  Position and Duties . Employee will serve as Controller at Athersys and will have such responsibilities, duties and authority as are customary of the Controller of a company the size and structure of Athersys (or any position to which Employee may be promoted after the date of this Agreement) and as may from time to time be assigned to Employee by the Board of Directors of Athersys (the “Board”) that are consistent with such responsibilities, duties, authority and applicable law. Employee will devote substantially all of their working time and efforts to the business and affairs of Athersys.
     (c)  Place of Performance . In connection with Employee’s employment by Athersys, Employee will be based at the principal executive offices of Athersys in the greater Cleveland, Ohio area.
(2) Compensation and Related Matters . As compensation and consideration for the performance by Employee of Employee’s duties, responsibilities and covenants pursuant to this Agreement, Athersys will pay Employee the amounts and benefits set forth below:

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     (a)  Salary . Athersys will pay to Employee an initial annual base salary at a rate seventy thousand two hundred Dollars ($70,200), which is based on working three days per week, commencing on December 1, 1998 ($45.00 per hour prior to December 1, 1998), such wages to be paid in substantially equal installments no less frequently than monthly.
     (b)  Bonus. Employee will participate in any management incentive plans that may in the future be made generally available to executives of Athersys in comparable positions.
     (c)  Expenses . Employee will be entitled to receive prompt reimbursement for all reasonable and customary travel and entertainment expenses or other out-of-pocket business expenses incurred by Employee in fulfilling Employee’s duties and responsibilities under this Agreement, including all expenses of travel and living expenses while away from home on business or at the request of and in the service of Athersys, provided that such expenses are incurred and accounted for in accordance with the policies and procedures established by Athersys.
     (d)  Other Benefits . Employee will be entitled to participate in all of the employee benefit plans and arrangements of Athersys and enjoy all of the perquisites provided to the employees of Athersys (including, without limitations each retirement, thrift and profit sharing plan, group life insurance and accident plan, medical and/or dental insurance plan, and disability plan); provided, however, that a change may be made to a plan in which salaried employees of Athersys participate, including termination of any such plan, arrangement or perquisite, if it does not result in a proportionately greater reduction in the rights of or benefits to Employee as compared with any other salaried employee of Athersys or is required by law or a technical change. Employee will be entitled to participate in and receive benefits under any employee benefit plan, arrangement or perquisite made available by Athersys in the future to its executive employees, subject to and on a basis consistent with the terms, conditions and overall administration of such plans, arrangements and perquisites. Nothing paid to Employee under any plan, arrangement or perquisite presently in effect or made available in the future will be deemed to be in lieu of the salary payable to Employee pursuant to paragraph (a) of this Section 2.
     (e)  Vacations . Employee will be entitled to paid vacation in each calendar year, determined in accordance with Athersys’ vacation policy, but in all events in an amount of not less than two (3) weeks per calendar year, prorated during periods of part-time employment (initially 2.25 weeks when employment is three days per week). Employee will also be entitled to all paid holidays and personal days given by Athersys to its executive employees.
(3) Grant of Stock Options . Athersys hereby grants to Employee an incentive stock option to purchase up to twenty shares (20 shares) of common stock of Athersys on the date of the grant (the “Option”). The terms and conditions of the stock options are governed by the Option Agreement between Athersys and Employee of even date herewith.
(4) Termination . Employee’s employment under this Agreement may be terminated under the following circumstances:

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     (a)  Death — Employee’s employment under this Agreement will terminate upon Employee’s death.
     (b)  Disability . If, in the written opinion of a qualified physician selected by Athersys and agreed to by Employee (or if no agreement is reached within thirty (30) days of the commencement of discussions between Athersys and Employee, then of a qualified physician agreed upon by the physician selected by Athersys and a physician selected by Employee), Employee becomes unable to perform her duties under this Agreement due to physical or mental illness, Athersys may terminate Employee’s employment under this Agreement.
     (c)  Cause . Athersys may terminate Employee’s employment under this Agreement for Cause. For purposes of this Agreement, Athersys will have “Cause” to terminate Employee’s employment under this Agreement upon:
          (i) The willful and continuous neglect or willful and continuous refusal to perform Employee’s duties or responsibilities under this Agreement which continues for a period of at least thirty (30) days after being brought to the attention of Employee in writing (other than any such failure resulting from Employee’s incapacity due to physical or mental illness or any such actual or anticipated failure after the issuance of a Notice of Termination (as defined in paragraph (e) of this Section 4) by Employee for Good Reason (as defined in paragraph (d) of this Section 4)); or
          (ii) The willful act, willful failure to act or willful misconduct by Employee which is materially and manifestly injurious to Athersys and which is brought to the attention of Employee in writing not more than thirty (30) days from the date of its discovery by Athersys or the Board.
     For purposes of this paragraph (c), no act, or failure to act, on Employee’s part will be considered “willful” unless done, or omitted to be done, by him/her not in good faith or without reasonable belief that her action or omission was in the best interest of Athersys. Notwithstanding the foregoing, Employee will not be deemed to have been terminated for Cause without (1) reasonable written notice to Employee specifying in detail the specific reasons for Athersys’ intention to terminate for Cause, (2) an opportunity for Employee, together with her counsel, to be heard before the Board, and (3) delivery to Employee of a Notice of Termination, as defined in paragraph (e) of this Section 4, approved by the affirmative vote of not less than a majority of the entire membership of the Board finding that in the good faith opinion of the Board, Employee was guilty of conduct set forth in clause (i) or (ii) above.
     (d)  Good Reason .
          (i) Employee may terminate her employment under this Agreement (X) for Good Reason or (Y) otherwise upon written notice to Athersys.

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          (ii) For purposes of this Agreement, “Good Reason” includes the occurrence of any of the following circumstances, without Employee’s express consent, unless, in the case of clauses (A), (B), (C), (D), (F), (G) and (I) below, such circumstances are fully corrected prior to the Date of Termination (as defined in paragraph (f) of this Section 4) specified in the Notice of Termination (as defined in paragraph (e) of this Section 4) given in respect thereof and such circumstances do not reoccur: (A) a diminution in Employee’s position, duties, responsibilities or authority (unless such diminution occurs with the prior written consent of Employee, or except during periods when Employee is unable to perform all or substantially all of Employee’s duties and/or responsibilities as a result of Employee’s illness (either physical or mental) or other incapacity); (B) a reduction in either Employee’s annual rate of base salary or level of participation in any bonus or incentive plan for which she is eligible under Section 2(b); (C) an elimination or reduction of Employee’s participation in any benefit plan generally available to executive employees of Athersys, unless Athersys continues to offer Employee benefits substantially similar to those made available by such plan; provided, however, that a change to a plan in which salaried employees of Athersys generally participate, including termination of any such plan, if it does not result in a proportionately greater reduction in the fights of or benefits to Employee as compared with the other salaried employees of Athersys or is required by law or a technical change, will not be deemed to be Good Reason; (D) failure to provide facilities or services which are suitable to Employee’s position and adequate for the performance of Employee’s duties and responsibilities; (E) failure of any successor (whether direct or indirect, by purchase of stock or assets, merger, consolidation or otherwise) to Athersys to assume Athersys’ obligations under this Agreement or failure by Athersys to remain liable to Employee under this Agreement after an assignment by Athersys of this Agreement, in each case as contemplated by Section 6; (F) any purported termination by Athersys of Employee’s employment which is not effected pursuant to a Notice of Termination satisfying the requirements of paragraph (e) of this Section 4 (and for purposes of this Agreement no such purported termination will be effective); (G) a change in the location of Athersys’ principal executive offices to outside the greater Cleveland, Ohio area; (H) a termination of employment by Employee within ninety (90) days following a Change in Control (as defined in paragraph (g) of this Section 4); provided, however, that Good Reason will not exist if Employee has accepted employment with the successor entity and such successor entity has assumed this Agreement; (I) a breach of this Agreement by Athersys — or (J) any similar circumstances which Employee reasonably believes are contrary to this Agreement. Employee’s right to terminate employment pursuant to this paragraph (d) will not be affected by Employee’s incapacity due to physical or mental illness. Employee’s continued employment will not constitute consent to, or a waiver of rights with respect to, any circumstance constituting Good Reason; provided, however, that Employee will be deemed to have waived her rights pursuant to circumstances constituting Good Reason if Employee has not provided to Athersys a Notice of Termination within ninety (90) days following her knowledge of the circumstances constituting Good Reason.
     (e)  Notice of Termination . Any termination of Employee’s employment by Athersys or by Employee (other than a termination pursuant to paragraph (a) of this Section 4) must be communicated by written Notice of Termination to the other party in accordance with Section 7. For purposes of this Agreement, a “Notice of Termination” means a notice which indicates the specific termination provision in this Agreement relied upon and sets forth in reasonable

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detail the facts and circumstances claimed to provide a basis for termination of Employee’s employment under the provision so indicated.
     (f)  Date of Termination . “Date of Termination” means (i) if Employee’s employment is terminated pursuant to paragraph (a) above, the date of her death, (ii) if Employee’s employment is terminated pursuant to paragraph (b) above, thirty (30) days after Notice of Termination is given (provided that Employee has not returned to the performance of Employee’s duties during such thirty (30) day period), (iii) if Employee’s employment is terminated pursuant to paragraph (c) or (d) above, the date specified in the Notice of Termination which, in the case of a termination by Athersys for Cause will not be less than fifteen (15) days from the date such Notice of Termination is given, and, in the case of a termination by Employee pursuant to Section 4(d)(i), such date will not be less than fifteen (15) days nor more than thirty (30) days from the date such Notice of Termination is given, (iv) if Employee’s employment is terminated by Athersys other than for Cause, thirty (30) days from the date Employee is notified of such termination, or (v) if Employee terminates her employment and fails to provide written notice to Athersys of such termination, the date of such termination.
     (g)  Change in Control . For purposes of this Agreement, a “Change in Control” will occur (i) upon the sale or other disposition to a person, entity or group (as such term is used in Rule 13d-5 promulgated under the Securities Exchange Act of 1934, as amended) (such a person, entity or group being referred to as an “Outside Party”) of 50% or more of the consolidated assets of Athersys taken as a whole, or (ii) if shares representing a majority of the voting power of Athersys are acquired by a person or group (as such term is used in Rule 13d-5) of persons other than the holders of the capital stock of Athersys as of the date of this Agreement, or (iii) if following an underwritten public offering of equity securities pursuant to an effective registration statement under the Securities Act of 1933, as amended, the individuals who are directors of Athersys immediately following the effective date of such public offering (or individuals nominated by such directors) no longer constitute a majority of the whole Board.
(5) Compensation Upon Termination .
     (a)  Disability . During any period that Employee fails to perform her duties under this Agreement as a result of incapacity due to physical or mental illness, Employee will continue to receive her full base salary at the rate then in effect for such period (offset by any payments to Employee received pursuant to disability benefit plans maintained by Athersys) and all other compensation and benefits under this Agreement (including pro rata payment for vacation days not taken) until her employment is terminated pursuant to Section 4(b) and for a period of twelve (12) months from the date of such termination.
     (b)  Cause or Death . If Employee’s employment is terminated by Athersys for Cause or by Employee other than for Good Reason or as a result of Employee’s death, Athersys will pay to Employee her full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts, if any, to which Employee is entitled as of the Date of Termination, including any expenses owed pursuant to Section 2(c)

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and amounts under any compensation plan or program of Athersys, at the time such payments are due and Athersys will, thereafter, have no further obligations to Employee under this Agreement.
     (c)  Good Reason . If (i) in breach of this Agreement, Athersys terminates Employee’s employment (it being understood that a purported termination for disability pursuant to Section 4(b) or for Cause which is disputed and finally determined not to have been proper will be a termination by Athersys in breach of this Agreement), or (ii) Employee terminates her employment for Good Reason; then
          (i) Athersys will continue to pay to Employee her full base salary for a period of six months from the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts, if any, to which Employee is entitled as of the Date of Termination, including any expenses owed pursuant to Section 2(c); provided, however, if during such six month period, Employee violates any provision of the Non-Competition and Confidentiality Agreement between Employee and Athersys, then Athersys will not be required to make any further payments to Employee; and
          (ii) Athersys will permit Employee, at Employee’s option and expense, to continue the participation of Employee for a period of eighteen (18) months in all medical, life and other employee “welfare” benefit plans and programs in which Employee was entitled to participate immediately prior to the Date of Termination provided that Employee’s continued participation is possible under the general terms and provisions of such plans and programs.
     (d)  Mitigation . Employee will be required to mitigate the amount of any payment provided for in this Section 5 by seeking other employment or otherwise, and the amount of any payment or benefit provided for in this Section 5 will be reduced by any compensation earned by Employee as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by Employee to Athersys, or otherwise.
     (e)  Survival of Obligations . The obligations of Athersys to make payments and provide benefits under this Section 5 will survive the termination of this Agreement.
(6) Binding Agreement . This Agreement and all rights of Employee under this Agreement will inure to the benefit of and be enforceable by Employee’s personal or legal representatives, executors, administrators, successors, heirs, distributes, devises and legatees. If Employee dies while any amounts would still be payable to her under this Agreement if she had continued to live, all such amounts, unless otherwise provided in this Agreement, will be paid in accordance with the terms of this Agreement to Employee’s devisee, legatee, or other designee or, if there be no such designee, to Employee’s estate. This Agreement and all rights of Athersys under this Agreement will inure to the benefit of and be enforceable by Athersys’ successors or assigns; provided, however, any assignment of this Agreement by Athersys will not relieve Athersys from any liability it may have under this Agreement.
(7) Notice . Notices, demands and all other communications provided for in this Agreement will be in writing and will be deemed to have been duly given when delivered, if delivered

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personally, or (unless otherwise specified) mailed by United States certified or registered mail, return receipt requested, postage prepaid, and when received if delivered otherwise, addressed as follows:
If to Employee:
Laura K. Campbell
9774 Silverleaf Drive
N. Royalton, Ohio 44133
If to Athersys:
Athersys, Inc.
11000 Cedar Avenue
Cleveland, Ohio 44106
Attention: Chief Executive Officer or Chief Financial Officer
Copy to:
James M. Hill, Esq.
Benesch, Friedlander, Coplan & Aronoff LLP
2300 BP America Building
200 Public Square
Cleveland, Ohio 44114-2378
or to such other address as any party may have furnished to the other in writing, except that notices of change of address will be effective only upon receipt.
(8) General Provisions . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing signed by the parties hereto. No waiver by either party to this Agreement at any time of any breach by the other party of, or compliance with, any condition or provision of tlis Agreement to be performed by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. The validity, interpretation, construction and performance of this Agreement will be governed by the laws of the State of Ohio without regard to its conflicts of law principles.
(9) Validity . The invalidity or unenforceability of any provision or provisions, in whole or in part, of this Agreement will not affect the validity or enforceability of any other provision or enforceable part of such partially unenforceable provision of this Agreement, which will remain in full force and effect.
(10) Counterparts . This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which together will constitute one and the same instrument.

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(11) Captions . The headings of paragraphs are included solely for convenience of reference only and are not part of this Agreement and will not be used in construing it.
(12) Consent to Jurisdiction and Forum . Employee expressly and irrevocably agrees that Athersys may bring any action, whether at law or in equity, arising out of or based upon this Agreement in the State of Ohio or in any federal court therein. Employee irrevocably consents to personal jurisdiction in such court and to accept service of process in accordance with the provisions of the laws of the State of Ohio.
(13) Entire Agreement . This Agreement sets forth the entire agreement of the parties in respect of the subject matter contained in this Agreement and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party; and any prior agreement of the parties in respect of the subject mater contained in this Agreement is terminated and canceled.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as of the date first above written.
         
ATHERSYS , INC.    
 
       
By:
  /s/   Dr. Gil Van Bokkelen  
 
 
 
   
 
  Dr. Gil Van Bokkelen    
 
  President & CEO    
 
       
/s/   Laura K. Campbell
 
     
Employee: Laura K. Campbell    

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EXHIBIT 10.21
AMENDMENT NO. 1 TO
EMPLOYMENT AGREEMENT
     This Amendment No. 1 (this “Amendment”), dated as of May 31, 2007, to the Employment Agreement (“Agreement”), dated as of May 22, 1998, between Laura Campbell (“Employee”) and ADVANCED BIOTHERAPEUTICS, INC. (“Employer”).
     WHEREAS, Employee is employed by Advanced Biotherapeutics, Inc., a wholly-owned subsidiary of Athersys, Inc. (“Athersys”); and
     WHEREAS, Employer and Employee wish to amend the Agreement in connection with the planned merger (the “Merger”) of Athersys with a wholly-owned subsidiary of a shell company (as such term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) that has a class of equity securities registered under Section 12 of the Exchange Act (“PubCo”); and
     WHEREAS, concurrent with and as a condition to the closing of the Merger, PubCo intends to conduct a private placement transaction pursuant to Regulation D promulgated under the Securities Act of 1933, as amended, whereby PubCo will receive gross proceeds of at least $40 million as consideration for the issuance of its equity securities (the “Offering”).
     NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
     1. Notwithstanding anything to the contrary in the Agreement, neither the consummation of the Merger nor the consummation of the Offering shall be deemed a “Change in Control” for purposes of the Agreement.
     2. This Amendment and the Agreement shall bind and inure to the benefit of and be enforceable by Employee, Employer and their respective heirs, executors, personal representatives, successors and assigns, except that neither party may assign any rights or delegate any obligations hereunder without the prior written consent of the other party. Notwithstanding anything to the contrary in the foregoing, Employee hereby consents to the assignment by Employer of all of its rights and obligations hereunder to any successor to Employer by merger or consolidation or purchase of all or substantially all of Employer’s assets, including, without limitation, any deemed assignment that occurs as a result of the consummation of the Merger.
     3. This Amendment may be executed in two or more counterparts, each of which constitutes an original, and all of which taken together shall constitute one and the same Amendment. It is understood that all parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by email delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the

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party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
     4. The validity, interpretation, construction and performance of this Amendment will be governed by the laws of the State of Ohio without regard to its conflicts of law principles.
     5. Capitalized terms used but not otherwise defined herein have the meanings set forth in the Agreement.

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     IN WITNESS WHEREOF, each of the parties has executed this Amendment as of the day and year first written above.
                             
Laura Campbell       Advanced Biotherapeutics, Inc.    
 
                           
/s/   Laura Campbell
      By:   /s/   Gil Van Bokkelen    
                 
 
                  Name:
Title:
  Gil Van Bokkelen
Chief Executive Officer
   
 
                           
             
Date           Date        
 
                           
Acknowledged By:                    
 
                           
Athersys, Inc.       ReGenesys, LLC    
 
                           
By:
  /s/   John Harrington       By:   /s/   William (BJ) Lehmann    
                     
 
  Name:   John Harrington           Name:   William (BJ) Lehmann    
 
  Title:   Executive Vice President & CSO           Title:   Vice President, Secretary & Treasurer    
 
                           
             
Date           Date        

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EXHIBIT 10.22
EMPLOYMENT AGREEMENT
     THIS EMPLOYMENT AGREEMENT (“Agreement”) is made as of September 25, 2000 between Kurt Brunden, an individual (“Employee”), and Advanced Biotherapeutics, Inc. (“ABT”), a wholly-owned subsidiary of Athersys, Inc., a Delaware corporation (“Athersys”), (together “the Company”).
RECITALS :
     A. ABT, d.b.a. Athersys, Inc., is engaged in the competitive business of developing, marketing and selling certain core biotechnologies for the diagnosis and treatment of genetic and infectious disease.
     B. ABT desires to employ Employee on the terms and conditions set forth in this Agreement.
     C. Employee is willing to accept employment on the terms and conditions expressed in this Agreement.
AGREEMENTS:
     NOW, THEREFORE, the parties agree as follows:
     1.  Employment . ABT agrees to employ Employee, and Employee agrees to serve ABT, on the terms and conditions set forth in this Agreement.
          (a) Term . Subject to the provisions for termination as hereinafter provided, the term of this Agreement will begin on September 25, 2000 (the “Effective Date”) and continue through the fourth anniversary of the Effective Date. Such term will automatically be extended for one additional year on each anniversary of the Effective Date beginning on the fourth anniversary of the Effective Date unless (i) this Agreement is terminated as provided in Section 4, or (ii) either Employee or ABT gives written notice of termination of this Agreement to the other at least thirty (30) days prior to such date.
          (b) Position and Duties . Employee will serve as Vice President of Drug Discovery at ABT and will have such responsibilities, duties and authority as are customary of a Vice President of Drug Discovery of a company the size and structure of ABT (or any position to which Employee may be promoted after the date of this Agreement) and as may from time to time be assigned to Employee by the Board of Directors of ABT (the “Board”) that are consistent with such responsibilities, duties, authority and applicable law, including those responsibilities, duties and authority described on Exhibit A. Employee will devote substantially all of his working time and effort to the business and affairs of ABT.
          (c) Place of Performance . In connection with Employee’s employment by ABT, Employee will be based at the principal executive offices of ABT in the greater Cleveland, Ohio area.

 


 

          (d) Continuous Employment . For all purposes under this Agreement, the Employee shall be considered to have been continuously employed by ABT without regard to any change of duties or position of the Employee, including transfers between and among ABT and its affiliates, so long as Employee is continuously employed by ABT or any of its affiliates, including Athersys.
     2.  Compensation and Related Matters . As compensation and consideration for the performance by Employee of Employee’s duties, responsibilities and covenants pursuant to this Agreement, ABT will pay Employee the amounts and benefits set forth below:
          (a) Salary . ABT will pay to Employee an initial annual base salary (“Base Salary”) at a rate of One Hundred and Fifty-Five Thousand Dollars ($155,000.00) commencing on the Effective Date, such salary to be paid in substantially equal installments no less frequently than monthly. The Base Salary may be adjusted to One Hundred Sixty Thousand Dollars ($160,000) following a three-month performance evaluation. The Base Salary may be increased from time to time by the Board in its sole discretion and, if so increased, will not thereafter during the term of this Agreement be decreased. The Board will review the Base Salary at least annually to determine, in its sole discretion, whether an increase is appropriate. Compensation of Employee by salary payments will not be deemed exclusive and will not prevent Employee from participating in any other compensation or benefit plan of ABT.
          (b) Bonus . Employee will receive a guaranteed bonus of $30,000 on September 25, 2001 and September 25, 2002.
          (c) Expenses . Employee will be entitled to receive prompt reimbursement for all reasonable and customary travel and entertainment expenses or other out-of-pocket business expenses incurred by Employee in fulfilling Employee’s duties and responsibilities under this Agreement, including all expenses of travel and living expenses while away from home on business or at the request of and in the service of ABT, provided that such expenses are incurred and accounted for in accordance with the policies and procedures established by ABT. .
          (d) Other Benefits . Employee will be entitled to participate in all of the employee benefit plans and arrangements of ABT and enjoy all of the perquisites provided to the employees of ABT (including, without limitations each retirement, thrift and profit sharing plan, group life insurance and accident plan, medical and/or dental insurance plan, and disability plan); provided, however, that a change may be made to a plan in which salaried employees of ABT participate, including termination of any such plan, arrangement or perquisite, if it does not result in a proportionately greater reduction in the rights of or benefits to Employee as compared with the other salaried employees of ABT or is required by law or a technical change. Employee will be entitled to participate in and receive benefits under any employee benefit plan, arrangement or perquisite made available by ABT in the future to its executive employees, subject to and on a basis consistent with the terms, conditions and overall administration of such plans, arrangements and perquisites. Nothing paid to Employee under any plan, arrangement or perquisite presently in effect or made available in the future will be deemed to be in lieu of the salary payable to Employee pursuant to paragraph (a) of this Section 2.
          (e) Vacations . Employee will be entitled to paid vacation in each calendar year, determined in accordance with ABT’s vacation policy, but in all events in an amount of not less than three (3) weeks per calendar year. Employee will also be entitled to all paid holidays and personal days given by ABT to its executive employees.

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     3.  Stock Options . The Board will grant to Employee, under the 1995 Incentive Plan of Athersys, Inc., as amended (the “Plan”), nonqualified stock options to purchase Fifty Thousand (50,000) shares of common stock of Athersys at One Dollar ($1.00) per share, and incentive stock options to purchase Ten Thousand (10,000) shares of common stock of Athersys at Fifteen Dollars and Sixty Cents ($15.60) per share. The stock options vest over a four year period and shall be subject to the terms and conditions of the Plan and one or more stock option agreements between Athersys and Employee of even date herewith.
     4.  Termination . Employee’s employment under this Agreement may be terminated under the following circumstances:
          (a) Death . Employee’s employment under this Agreement will terminate upon Employee’s death.
          (b) Disability . If, in the written opinion of a qualified physician selected by ABT and agreed to by Employee (or if no agreement is reached within thirty (30) days of the commencement of discussions between ABT and Employee, then of a qualified physician agreed upon by the physician selected by ABT and a physician selected by Employee), Employee becomes unable to perform his duties under this Agreement due to physical or mental illness, ABT may terminate Employee’s employment under this Agreement.
          (c) Cause . ABT may terminate Employee’s employment under this Agreement for Cause. For purposes of this Agreement, ABT will have “Cause” to terminate Employee’s employment under this Agreement upon:
          (i) The willful and continuous neglect or willful and continuous refusal to perform Employee’s duties or responsibilities under this Agreement which continues for a period of at least thirty (30) days after being brought to the attention of Employee in writing (other than any such failure resulting from Employee’s incapacity due to physical or mental illness or any such actual or anticipated failure after the issuance of a Notice of Termination (as defined in paragraph (e) of this Section 4) by Employee for Good Reason (as defined in paragraph (d) of this Section 4)); or
          (ii) The willful act, willful failure to act or willful misconduct by Employee which is materially and manifestly injurious to ABT and which is brought to the attention of Employee in writing not more than thirty (30) days from the date of its discovery by ABT or the Board.
     For purposes of this paragraph (c), no act, or failure to act, on Employee’s part will be considered “willful” unless done, or omitted to be done, by him not in good faith or without reasonable belief that his action or omission was in the best interest of ABT. Notwithstanding the foregoing, Employee will not be deemed to have been terminated for Cause without (1) reasonable written notice to Employee specifying in detail the specific reasons for ABT’ intention to terminate for Cause, (2) an opportunity for Employee, together with his counsel, to be heard before the Board, and (3) delivery to Employee of a Notice of Termination, as defined in paragraph (e) of this Section 4, approved by the affirmative vote of not less than a majority of the entire membership of the Board finding that in the good faith opinion of the Board, Employee was guilty of conduct set forth in clause (i) or (ii) above.

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          (d) Good Reason .
          (i) Employee may terminate his employment under this Agreement (X) for Good Reason or (Y) otherwise upon written notice to ABT.
          (ii) For purposes of this Agreement, “Good Reason” includes the occurrence of any of the following circumstances, without Employee’s express consent, unless such circumstances are fully corrected prior to the Date of Termination (as defined in paragraph (f) of this Section 4) specified in the Notice of Termination (as defined in paragraph (e) of this Section 4) given in respect thereof and such circumstances do not reoccur: (A) a diminution in Employee’s position, duties, responsibilities or authority (unless such diminution occurs with the prior written consent of Employee, or except during periods when Employee is unable to perform all or substantially all of Employee’s duties and/or responsibilities as a result of Employee’s illness (either physical or mental) or other incapacity); (B) a reduction in either Employee’s annual rate of Base Salary or level of participation in any bonus or incentive plan for which he is eligible under Section 2(b); (C) an elimination or reduction of Employee’s participation in any benefit plan generally available to executive employees of ABT, unless ABT continues to offer Employee benefits substantially similar to those made available by such plan; provided, however, that a change to a plan in which salaried employees of ABT generally participate, including termination of any such plan, if it does not result in a proportionately greater reduction in the rights of or benefits to Employee as compared with the other salaried employees of ABT or is required by law or a technical change, will not be deemed to be Good Reason; (D) failure to provide facilities or services which are suitable to Employee’s position and adequate for the performance of Employee’s duties and responsibilities; (E) failure of any successor (whether direct or indirect, by purchase of stock or assets, merger, consolidation or otherwise) to ABT to assume ABT’s obligations under this Agreement or failure to remain liable to Employee under this Agreement after an assignment by ABT of this Agreement, in each case as contemplated by Section 6; (F) any purported termination by ABT of Employee’s employment which is not effected pursuant to a Notice of Termination satisfying the requirements of paragraph (e) of this Section 4 (and for purposes of this Agreement no such purported termination will be effective); (G) a change in the location of ABT’s principal executive offices to outside the greater Cleveland, Ohio area; (H) a termination of employment by Employee within ninety (90) days following a Change in Control (as defined in paragraph (g) of this Section 4); provided, however, that Good Reason will not exist if Employee has accepted employment with the successor entity and such successor entity has assumed this Agreement; (I) a breach of this Agreement by ABT; or (J) any similar circumstances which Employee reasonably believes are contrary to this Agreement. Employee’s right to terminate employment pursuant to this paragraph (d) will not be affected by Employee’s incapacity due to physical or mental illness. Employee’s continued employment will not constitute consent to, or a waiver of rights with respect to, any circumstance constituting Good Reason; provided, however, that Employee will be deemed to have waived his rights pursuant to circumstances constituting Good Reason if Employee has not provided to ABT a Notice of Termination within ninety (90) days following his knowledge of the circumstances constituting Good Reason.
          (e) Notice of Termination . Any termination of Employee’s employment by ABT or by Employee (other than a termination pursuant to paragraph (a) of this Section 4) must be communicated by written Notice of Termination to the other party in accordance with Section

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7. For purposes of this Agreement, a “Notice of Termination” means a notice which indicates the specific termination provision in this Agreement relied upon and sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Employee’s employment under the provision so indicated.
          (f) Date of Termination . “Date of Termination” means (i) if Employee’s employment is terminated pursuant to paragraph (a) above, the date of his death, (ii) if Employee’s employment is terminated pursuant to paragraph (b) above, thirty (30) days after Notice of Termination is given (provided that Employee has not returned to the full-time performance of Employee’s duties during such thirty (30) day period), (iii) if Employee’s employment is terminated pursuant to paragraph (c) or (d) above, the date specified in the Notice of Termination which, in the case of a termination by ABT for Cause will not be less than fifteen (15) days from the date such Notice of Termination is given, and, in the case of a termination by Employee pursuant to Section 4(d)(i), such date will not be less than fifteen (15) days nor more than thirty (30) days from the date such Notice of Termination is given, (iv) if Employee’s employment is terminated by ABT other than for Cause, thirty (30) days from the date Employee is notified of such termination, or (v) if Employee terminates his employment and fails to provide written notice to ABT of such termination, the date of such termination.
          (g) Change in Control . For purposes of this Agreement, a “Change in Control” will occur (i) upon the sale or other disposition to a person, entity or group (as such term is used in Rule 13d-5 promulgated under the Securities Exchange Act of 1934, as amended) (such a person, entity or group being referred to as an “Outside Party”) of 50% or more of the consolidated assets of Athersys taken as a whole, or (ii) if shares representing a majority of the voting power of Athersys are acquired by a person or group (as such term is used in Rule 13d-5 promulgated under the Securities Exchange Act of 1934, as amended) of persons other than the holders of the capital stock of Athersys as of the date of this Agreement, or (iii) if following an underwritten public offering of equity securities of Athersys pursuant to an effective registration statement under the Securities Act of 1933, as amended, the individuals who are directors of Athersys immediately following the effective date of such public offering (or individuals nominated by such directors) no longer constitute a majority of the whole Board.
     5.  Compensation Upon Termination .
          (a) Disability . During any period that Employee fails to perform his duties under this Agreement as a result of incapacity due to physical or mental illness, Employee will continue to receive his full Base Salary at the rate then in effect for such period (offset by any payments to Employee received pursuant to disability benefit plans maintained by ABT) and all other compensation and benefits under this Agreement (including pro rata payment for vacation days not taken) until his employment is terminated pursuant to Section 4(b) and for a period of twelve (12) months from the date of such termination.
          (b) Cause or Death . If Employee’s employment is terminated by ABT for Cause or by Employee other than for Good Reason or as a result of Employee’s death, ABT will pay to Employee his full Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts, if any, to which Employee is entitled as of the Date of Termination, including any bonus owed pursuant to Section 2(b), expenses owed pursuant to Section 2(c) and amounts under any compensation plan or program of ABT, at the time such payments are due and ABT will, thereafter, have no further obligations to Employee under this Agreement.

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          (c) Good Reason . If (i) in breach of this Agreement, ABT terminates Employee’s employment (it being understood that a purported termination for disability pursuant to Section 4(b) or for Cause which is disputed and finally determined not to have been proper will be a termination by ABT in breach of this Agreement), or (ii) Employee terminates his employment for Good Reason; then
          (i) ABT will continue to pay to Employee his full base salary for a period of six months from the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts, if any, to which Employee is entitled as of the Date of Termination, including any bonus owed pursuant to Section 2(b) and any expenses owed pursuant to Section 2(c); provided, however, if during such six month period, Employee violates any provision of the Agreement for Disclosure of Confidential Information between Employee and Athersys, then ABT will not be required to make any further payments to Employee; and
          (ii) ABT will permit Employee, at Employee’s option and expense, to continue the participation of Employee for a period of eighteen (18) months in all medical, life and other employee “welfare” benefit plans and programs in which Employee was entitled to participate immediately prior to the Date of Termination provided that Employee’s continued participation is possible under the general terms and provisions of such plans and programs.
          (d) Mitigation . Employee will be required to mitigate the amount of any payment provided for in this Section 5 by seeking other employment or otherwise, and the amount of any payment or benefit provided for in this Section 5 will be reduced by any compensation earned by Employee as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by Employee to ABT, or otherwise.
          (e) Survival of Obligations . The obligations of ABT to make payments and provide benefits under this Section 5 will survive the termination of this Agreement.
     6.  Binding Agreement . This Agreement and all rights of Employee under this Agreement will inure to the benefit of and be enforceable by Employee’s personal or legal representatives, executors, administrators, successors, heirs, distributes, devises and legatees. If Employee dies while any amounts would still be payable to him under this Agreement if he had continued to live, all such amounts, unless otherwise provided in this Agreement, will be paid in accordance with the terms of this Agreement to Employee’s devisee, legatee, or other designee or, if there be no such designee, to Employee’s estate. This Agreement and all rights of ABT under this Agreement will inure to the benefit of and be enforceable by ABT’s successors or assigns; provided, however, any assignment of this Agreement by ABT will not relieve ABT from any liability it may have under this Agreement.
     7.  Notice . Notices, demands and all other communications provided for in this Agreement will be in writing and will be deemed to have been duly given when delivered, if delivered personally, or (unless otherwise specified) mailed by United States certified or registered mail, return receipt requested, postage prepaid, and when received if delivered otherwise, addressed as follows:

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If to Employee:
Kurt Brunden
664 Glen Eden Ct.
Aurora, OH 44202
If to ABT:
Advanced Biotherapeutics, Inc., d.b.a. Athersys, Inc.
3201 Carnegie Avenue
Cleveland, Ohio 44115-2634
Attention: President & Chief Executive Officer
Copy to:
Christopher M. Kelly, Esq.
Jones, Day, Reavis & Pogue
North Point, 901 Lakeside Avenue
Cleveland, Ohio 44114
or to such other address as any party may have furnished to the other in writing, except that notices of change of address will be effective only upon receipt.
     8.  General Provisions . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing signed by the parties hereto. No waiver by either party to this Agreement at any time of any breach by the other party of, or compliance with, any condition or provision of this Agreement to be performed by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. The validity, interpretation, construction and performance of this Agreement will be governed by the laws of the State of Ohio without regard to its conflicts of law principles.
     9.  Validity . The invalidity or unenforceability of any provision or provisions, in whole or in part, of this Agreement will not affect the validity or enforceability of any other provision or enforceable part of such partially unenforceable provision of this Agreement, which will remain in full force and effect.
     10.  Counterparts . This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which together will constitute one and the same instrument.
     11.  Captions . The headings of paragraphs are included solely for convenience of reference only and are not part of this Agreement and will not be used in construing it.
     12.  Consent to Jurisdiction and Forum . Employee expressly and irrevocably agrees that ABT may bring any action, whether at law or in equity, arising out of or based upon this Agreement in the State of Ohio or in any federal court therein. Employee irrevocably consents to personal jurisdiction in such court and to accept service of process in accordance with the provisions of the laws of the State of Ohio.

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     13.  Entire Agreement . This Agreement sets forth the entire agreement of the parties in respect of the subject matter contained in this Agreement and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party; and any prior agreement of the parties in respect of the subject mater contained in this Agreement is terminated and canceled.
     IN WITNESS WHEREOF, the parties have executed this Employment Agreement as of the date first above written.
                     
Advanced Biotherapeutics, Inc.       EMPLOYEE:    
 
                   
By:
  /s/   Gil Van Bokkelen       By:   /s/   Kurt Brunden    
 
 
 
Gil Van Bokkelen
         
 
Kurt Brunden
   
 
  President & Chief Executive Officer                

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EXHIBIT 10.23
AMENDMENT NO. 1 TO
EMPLOYMENT AGREEMENT
     This Amendment No. 1 (this “Amendment”), dated as of May 31, 2007, to the Employment Agreement (“Agreement”), dated as of September 25, 2000, between Kurt Brunden (“Employee”) and ADVANCED BIOTHERAPEUTICS, INC. (“Employer”).
     WHEREAS, Employee is employed by Advanced Biotherapeutics, Inc., a wholly-owned subsidiary of Athersys, Inc. (“Athersys”); and
     WHEREAS, Employer and Employee wish to amend the Agreement in connection with the planned merger (the “Merger”) of Athersys with a wholly-owned subsidiary of a shell company (as such term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) that has a class of equity securities registered under Section 12 of the Exchange Act (“PubCo”); and
     WHEREAS, concurrent with and as a condition to the closing of the Merger, PubCo intends to conduct a private placement transaction pursuant to Regulation D promulgated under the Securities Act of 1933, as amended, whereby PubCo will receive gross proceeds of at least $40 million as consideration for the issuance of its equity securities (the “Offering”).
     NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
     1. Notwithstanding anything to the contrary in the Agreement, neither the consummation of the Merger nor the consummation of the Offering shall be deemed a “Change in Control” for purposes of the Agreement.
     2. This Amendment and the Agreement shall bind and inure to the benefit of and be enforceable by Employee, Employer and their respective heirs, executors, personal representatives, successors and assigns, except that neither party may assign any rights or delegate any obligations hereunder without the prior written consent of the other party. Notwithstanding anything to the contrary in the foregoing, Employee hereby consents to the assignment by Employer of all of its rights and obligations hereunder to any successor to Employer by merger or consolidation or purchase of all or substantially all of Employer’s assets, including, without limitation, any deemed assignment that occurs as a result of the consummation of the Merger.
     3. This Amendment may be executed in two or more counterparts, each of which constitutes an original, and all of which taken together shall constitute one and the same Amendment. It is understood that all parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by email delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and

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effect as if such facsimile or “.pdf” signature page were an original thereof.
     4. The validity, interpretation, construction and performance of this Amendment will be governed by the laws of the State of Ohio without regard to its conflicts of law principles.
     5. Capitalized terms used but not otherwise defined herein have the meanings set forth in the Agreement.

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     IN WITNESS WHEREOF, each of the parties has executed this Amendment as of the day and year first written above.
                             
Kurt Brunden       Advanced Biotherapeutics, Inc.    
 
                           
 
  /s/ Kurt Brunden        By:   /s/ Gil Van Bokkelen    
                 
 
                  Name:   Gil Van Bokkelen    
 
                  Title:   Chief Executive Officer    
 
                           
             
Date
              Date            
 
                           
Acknowledged By:                    
 
                           
Athersys, Inc.       ReGenesys, LLC    
 
                           
By:
  /s/ John Harrington       By:   /s/ William (BJ) Lehmann    
                     
 
  Name:   John Harrington           Name:   William (BJ) Lehmann    
 
  Title:   Executive Vice President & CSO           Title:   Vice President, Secretary & Treasurer    
 
                           
             
Date
              Date            

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EXHIBIT 10.24
NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
     This Non-Competition and Confidentiality Agreement (“Agreement”), is made as of the 25th day of September, 2000 between Kurt Brunden, an individual (“Employee”), Advanced Biotherapeutics, Inc. (“ABT”), a wholly-owned subsidiary of Athersys, Inc., and Athersys, Inc., a Delaware corporation (“Athersys”).
RECITALS :
     A. ABT, d.b.a. Athersys, Inc., is engaged in the competitive business of developing, marketing and selling certain core biotechnologies for the diagnosis and treatment of genetic and infectious disease.
     B. ABT employs Employee as September 25, 2000.
     C. As a part of such employment, Employee has access to certain “Confidential Information” (as herein defined).
     D. In consideration of the recent employment arrangements set forth in the Employment Agreement between Employee and ABT dated as of September 25, 2000 (the “Employment Agreement”), Employee has agreed to execute this Agreement.
     E. For the purposes of this Agreement, the term “Athersys” shall be deemed to include Athersys, Inc., and any affiliates or subsidiaries, together with their respective successors or assigns.
AGREEMENTS:
     NOW THEREFORE, for and in consideration of the premises, mutual covenants and undertakings set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties to this Agreement hereby agree as follows:
     1.  Non-Competition and Confidentiality .
     (a) Employee agrees that, so long as he remains employed by Athersys in any capacity, and for a period of six (6) months after the effective date of the termination of said employment by Athersys or Employee, Employee shall not do or suffer any of the following:
     (i) Own, control or manage, or participate in the ownership, control or management of, render consulting services to, or be employed by any corporation, partnership or other entity that is engaged in the business of researching, developing, marketing or selling any technology relating to the field of gene therapy, including, without limitation, synthetic microchromosomal technologies, gene activation technologies, centromere technologies or any other type of technology, which is

 


 

substantially similar to that researched, developed, marketed or sold or contemplated to be researched, developed, marketed or sold by Athersys prior to the Employee’s effective date of termination in any geographic areas in the United States or any countries outside the United States where Athersys has researched, developed, marketed or sold such technologies prior to the Employee’s effective date of termination. For the purposes of this subsection (i), the term “ownership” shall be defined as holding five percent (5%) or more ownership interest or voting control interest in the entity in issue;
     (ii) Knowingly attempt to employ or employ, attempt to assist in employing or assist in employing, or otherwise interfere with the employment of, any employee or officer of Athersys; or
     (iii) Solicit, divert or attempt to divert any customer, sponsor, investor, research collaborator or other business relations of Athersys from associating, collaborating or otherwise doing business with Athersys.
     Notwithstanding the foregoing, the provisions of this Section 1(a) shall terminate on the date that Employee ceases to receive the termination compensation from Athersys pursuant to Section 5(c) of the Employment Agreement.
     (b) Employee agrees that from and after the date of this Agreement, Employee shall not disclose, divulge, discuss, copy or otherwise use or suffer to be used any item of confidential information of Athersys, including, without limitation, technologies, product development procedures, new products, customer lists, client lists, sales methods, pricing or cost data, software or software documentation, methods, product research or engineering data, documents, instruments, drawings, or designs (“Confidential Information”). The term “Confidential Information” shall include, by way of example not limitation, any information which, in the good faith opinion of the Board of Directors, constitutes “trade secrets” of Athersys, as such term is defined in Ohio Revised Code Section 1333.51.
     2.  Injunctive Relief . Employee acknowledges and agrees that: (i) each term of Section 1 of this Agreement is fully required to protect Athersys’ interest and that no term in Section 1 confers a benefit on Athersys that is disproportionate to the detriment imposed on Employee and each provision of such Section 1 is reasonable in time and territory and does not stifle Employee’s inherent skill and experience and will not operate as a bar to Employee’s sole means of support; (ii) the remedy at law for any breach by Employee of any term of Section 1 would be inadequate; and (iii) the damages flowing from such breach are not readily susceptible to measurement in monetary terms. Accordingly, upon adequate proof of Employee’s violation of any legally enforceable provision of Section 1 of this Agreement, Athersys shall be entitled to immediate injunctive relief and may obtain a temporary order restraining any threatened or future breach. Nothing in this Agreement shall be deemed to limit Athersys’ remedies at law or in equity for any breach by Employee of any term of this Agreement.

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     3.  Ownership of Technology . Any technology, procedure, design feature, invention, improvement, development or discovery (whether or not patentable or copyrightable) that Employee may conceive of, make, invent, suggest, or otherwise obtain knowledge of during the course of Employee’s employment or other relationship with Athersys (whether individually or jointly with any other person or persons), relating in any way to the field of gene therapy or any other business of Athersys or to the proposed contemplated business of which Athersys will be a part of, shall be the sole, exclusive and absolute property of Athersys, as shall all physical embodiments and manifestations thereof and all research data regarding, including, without limitation, all proprietary rights, techniques, specifications, any methods and apparatuses for data manipulation and utilization. Employee will immediately disclose any such technology, procedure, design feature, invention, improvement, development or discovery to Athersys and will, at any time, upon Athersys’ request and without additional compensation, execute any documents and give all lawful testimony which may be required respecting the patenting or copyrighting of any such technology, procedure, design feature, invention, improvement, development or discovery, as well as any papers which may be considered necessary or helpful by Athersys in the processing of applications for patents thereon, to vest title thereto in Athersys, or which may relate to any litigation or controversy in connection therewith, all expenses incident thereto to be borne by Athersys. Employee, whether or not still employed by Athersys, will cooperate with Athersys, at Athersys’ expense, in any litigation or other matter relating to Athersys’ right in any of the foregoing.
     4.  Severability . In the event that Sections 1, 2 and 3 shall be found by a court of competent jurisdiction to be invalid or unenforceable as against public policy, such court shall exercise its discretion in reforming such provisions to the end that Employee shall be subject to nondisclosure, noncompetitive and noninterference covenants that are reasonable under the circumstances and enforceable by Athersys. In the event that any other provision or term of this Agreement is found to be void or unenforceable to any extent for any reason, it is the agreed-upon intent of the parties hereto that all remaining provisions or terms of this Agreement shall remain in full force and effect to the maximum extent permitted and that this Agreement shall be enforceable as if such void or unenforceable provision or term had never been a part hereof. To the extent that any obligations of Employee in this Agreement shall be illegal and/or unenforceable with respect to any jurisdiction, said covenants shall not be affected thereby with respect to each other jurisdiction, such covenants with respect to each such jurisdiction being construed as severable and independent. In the event Employee shall violate any legally enforceable provision of this Agreement as to which there is a specific time period during which Athersys is prohibited from taking certain actions or from engaging in certain activities, as set forth in this Agreement, then, in such event, such violation shall toll the running of such time period from the date such violation commences until, and including, the date such violation shall cease.
     5.  Notice . Notices, demands and all other communications provided for in this Agreement will be in writing and will be deemed to have been duly given when delivered, if delivered personally, or (unless otherwise specified) mailed by United States certified or

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registered mail, return receipt requested, postage prepaid, and when received if delivered otherwise, addressed as follows:
     If to Employee:
Kurt Brunden
664 Glen Eden Ct.
Aurora, OH 44202
     If to Athersys:
ATHERSYS, INC.
3201 Carnegie Avenue
Cleveland, Ohio 44115-2634
Attention: Gil Van Bokkelen, President & CEO
or to such other address as any party may have furnished to the other in writing, except that notices of change of address will be effective only upon receipt.
     6.  General Provisions . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing signed by the parties hereto. No waiver by either party to this Agreement at any time of any breach by the other party of, or compliance with, any condition or provision of this Agreement to be performed by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. The validity, interpretation, construction and performance of this Agreement will be governed by the laws of the State of Ohio without regard to its conflicts of law principles.
     7.  Counterparts . This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which together will constitute one and the same instrument.
     8.  Captions . The headings of paragraphs are included solely for convenience of reference only and are not part of this Agreement and will not be used in construing it.
     9.  Consent to Jurisdiction and Forum . Employee expressly and irrevocably agrees that Athersys may bring any action, whether at law or in equity, arising out of or based upon this Agreement in the State of Ohio or in any federal court therein. Employee irrevocably consents to personal jurisdiction in such court and to accept service of process in accordance with the provisions of the laws of the State of Ohio.

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     10.  Entire Agreement . This Agreement sets forth the entire agreement of the parties in respect of the subject matter contained in this Agreement and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party; and any prior agreement of the parties in respect of the subject mater contained in this Agreement is terminated and canceled.
     IN WITNESS WHEREOF, the parties have executed this Non-Competition and Confidentiality Agreement as of the date first above written.
         
  ATHERSYS, INC.
 
 
  By:   /s/ Gil Van Bokkelen  
    Gil Van Bokkelen    
    President and Chief Executive Officer   
 
         
  ADVANCED BIOTHERAPEUTICS, INC.
 
 
  By:   /s/ Gil Van Bokkelen  
    Gil Van Bokkelen   
    President and Chief Executive Officer   
 
         
  EMPLOYEE
 
 
  /s/ Kurt Brunden   
  Kurt Brunden   
     
 

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EXHIBIT 10.25
EMPLOYMENT AGREEMENT
     THIS EMPLOYMENT AGREEMENT (“Agreement”) is made as of October 3, 2003 between Robert Deans, Ph.D. an individual (“Employee”), and Advanced Biotherapeutics, Inc. (“ABT”), a wholly-owned subsidiary of Athersys, Inc., a Delaware corporation (“Athersys”), (together “the Company”).
RECITALS :
     A. ABT, d.b.a. Athersys, Inc., is engaged in the competitive business of developing, marketing and selling certain core biotechnologies for the diagnosis and treatment of genetic and infectious disease.
     B. ABT desires to employ Employee on the terms and conditions set forth in this Agreement.
     C. Employee is willing to accept employment on the terms and conditions expressed in this Agreement.
AGREEMENTS:
     NOW, THEREFORE, the parties agree as follows:
1.   Employment . ABT agrees to employ Employee, and Employee agrees to serve ABT, on the terms and conditions set forth in this Agreement.
  (a)   Term . Subject to the provisions for termination as hereinafter provided, the term of this Agreement will begin on the date set forth above (the “Effective Date”) and continue through the fourth anniversary of the Effective Date (the “Employment Period”). The Employment Period will automatically be extended for one additional year on each anniversary of the Effective Date beginning on the fourth anniversary of the Effective Date unless (i) this Agreement is terminated as provided in Section 4, or (ii) either Employee or ABT gives written notice of termination of this Agreement to the other at least thirty (30) days prior to such date.
 
  (b)   Position and Duties . Employee will serve as Vice President of Regenerative Medicine of ABT and will have such responsibilities, duties and authority as are customary of a Vice President of a company the size and structure of ABT (or any position to which Employee may be promoted after the date of this Agreement) and as may from time to time be assigned to Employee by the Board of Directors of ABT (the “Board”) that are consistent with such responsibilities, duties, authority and applicable law. Employee will devote substantially all of his working time and effort to the business and affairs of ABT.
 
  (c)   Place of Performance . In connection with Employee’s employment by ABT, Employee will be based at either his present residence in southern

 


 

      California, the principal executive offices of ABT in the greater Cleveland, Ohio area, or at a different location as mutually agreed upon by the Employee and CEO. During the time that the Employee’s principal place of performance is not in greater Cleveland, Employee will commute to the Cleveland corporate offices on a periodic basis as needed, which is currently estimated at several days per month. The Employee and CEO will review the place of performance annually and will mutually agree to any change in the Employee’s place of performance that is in the best interests of the Company.
 
  (d)   Continuous Employment . For all purposes under this Agreement, the Employee shall be considered to have been continuously employed by ABT without regard to any change of duties or position of the Employee, including transfers between and among ABT and its affiliates, so long as Employee is continuously employed by ABT or any of its affiliates, including Athersys.
2.   Compensation and Related Matters . As compensation and consideration for the performance by Employee of Employee’s duties, responsibilities and covenants pursuant to this Agreement, ABT will pay Employee the amounts and benefits set forth below:
  (a)   Salary . ABT will pay to Employee an annual base salary (“Base Salary”) during the Employment Period at a rate of Two Hundred Thousand Dollars ($200,000.00) commencing on the Effective Date, such salary to be paid in substantially equal installments no less frequently than monthly. The Base Salary may be increased from time to time by the Board in its sole discretion and, if so increased, will not thereafter during the term of this Agreement be decreased. The Board will review the Base Salary at least annually to determine, in its sole discretion, whether an increase is appropriate. Compensation of Employee by salary payments will not be deemed exclusive and will not prevent Employee from participating in any other compensation or benefit plan of ABT.
 
  (b)   Bonus . During the Employment Period, Employee will be eligible for an annual bonus of 30% of Base Salary, based upon individual and company performance and subject to Board approval, and will participate in any incentive plans that may in the future be made generally available to officers of Athersys in comparable positions.
 
  (c)   Expenses . Employee will be entitled to receive prompt reimbursement for all reasonable and customary travel and entertainment expenses or other out-of-pocket business expenses incurred by Employee during the Employment Period in fulfilling Employee’s duties and responsibilities under this Agreement, including all expenses of travel and living expenses while away from home on business or at the request of and in the service of ABT, provided that such expenses are incurred and accounted for in accordance with the policies and procedures established by ABT. In addition, in the event Employee relocates to a location closer to the Company, the Company will reimburse the Employee for the physical relocation of his possessions (i.e., ordinary packing and moving

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      expenses), but shall not include any expenses associated with the sale of his existing property or the cost of new property.
 
  (d)   Other Benefits . Employee will be entitled during the Employment Period to participate, on the same basis as other officers of ABT, in all of the employee benefit plans and arrangements of ABT and enjoy all of the perquisites for which substantially all of the other officers of ABT are from time to time generally eligible, as determined from time to time by the Board (including, without limitations each retirement, thrift and profit sharing plan, group life insurance and accident plan, medical and/or dental insurance plan, and disability plan); provided, however, that a change may be made to a plan in which salaried employees of ABT participate, including termination of any such plan, arrangement or perquisite, if it does not result in a proportionately greater reduction in the rights of or benefits to Employee as compared with the other salaried employees of ABT or is required by law or a technical change. Employee will be entitled to participate in and receive benefits under any employee benefit plan, arrangement or perquisite made available by ABT in the future to its officers, subject to and on a basis consistent with the terms, conditions and overall administration of such plans, arrangements and perquisites. Nothing paid to Employee under any plan, arrangement or perquisite presently in effect or made available in the future will be deemed to be in lieu of the salary payable to Employee pursuant to paragraph (a) of this Section 2.
 
  (e)   Vacations . During the Employment Period, Employee will be entitled to paid vacation in each calendar year, determined in accordance with ABT’s vacation policy, but in all events in an amount of not less than three (3) weeks per calendar year. Employee will also be entitled to all paid holidays and personal days given by ABT to its employees during the Employment Period.
3.   Stock Options . Within one month from the Effective Date, the Board will grant to Employee, under the 2000 Stock Incentive Plan of Athersys, Inc. (the “Plan”), nonqualified stock options to purchase Fifty Thousand (50,000) shares of common stock of Athersys at Three Dollars and Twenty-Five Cents ($3.25) per share, and incentive stock options to purchase Ten Thousand (10,000) shares of common stock of Athersys at the fair market value per share on the date of grant. The stock options will vest in four annual increments, which will commence as of the Effective Date, and shall be subject to the terms and conditions of the Plan and one or more stock option agreements between Athersys and Employee. Employee shall also be granted a non-qualified stock option to purchase Twenty Thousand (20,000) shares of common stock of Athersys, which will be granted and fully vested upon the establishment of a Regenerative Medicine corporate partnership consisting of at least $50 million in guaranteed payments, and which will have an exercise price set at 50% of the fair market value of Athersys common stock at the time of the grant.
 
4.   Termination . The Employment Period may be terminated under the following circumstances:

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  (a)   Death . The Employment Period will terminate upon Employee’s death.
 
  (b)   Disability . If, in the written opinion of a qualified physician selected by ABT and agreed to by Employee (or if no agreement is reached within thirty (30) days of the commencement of discussions between ABT and Employee, then of a qualified physician agreed upon by the physician selected by ABT and a physician selected by Employee), Employee becomes unable to perform his duties under this Agreement due to physical or mental illness, ABT may terminate the Employment Period.
 
  (c)   Cause . ABT may terminate the Employment Period for Cause. For purposes of this Agreement, ABT will have “Cause” to terminate the Employment Period as a result of any of the following events: (i) the commission of an act of fraud, embezzlement, theft or other criminal act constituting a felony; (ii) the willful or wanton disregard of the rules or policies of the Company or its Subsidiaries which results in a material loss, damage or injury to the Company or its Subsidiaries; (iii) the repeated failure of Employee to perform duties consistent with Employee’s position or to follow or comply with the reasonable directives of the Company’s or its Subsidiaries’ Board of Directors or Employee’s superiors after having been given notice thereof (e.g., the insubordination of Employee); or (iv) the material breach of any provision contained in a written non-competition, confidentiality or non-disclosure agreement between the Company or any of its Subsidiaries and Employee.
 
  (d)   Good Reason . Employee may terminate the Employment Period for Good Reason. For purposes of this Agreement, “Good Reason” includes the occurrence of any of the following circumstances, without Employee’s express consent, unless such circumstances are fully corrected prior to the Date of Termination (as defined in paragraph (g) of this Section 4) specified in the Notice of Termination (as defined in paragraph (f) of this Section 4) given in respect thereof and such circumstances do not reoccur: (A) a diminution in Employee’s position, duties, responsibilities or authority (unless such diminution occurs during periods when Employee is unable to perform all or substantially all of Employee’s duties and/or responsibilities as a result of Employee’s illness (either physical or mental) or other incapacity); (B) a reduction in either Employee’s annual rate of Base Salary or level of participation in any bonus or incentive plan for which he is eligible under Section 2(b); (C) an elimination or reduction of Employee’s participation in any benefit plan generally available to officers of ABT, unless ABT continues to offer Employee benefits substantially similar to those made available by such plan; provided, however, that a change to a plan in which salaried employees of ABT generally participate, including termination of any such plan, if it does not result in a proportionately greater reduction in the rights of or benefits to Employee as compared with the other salaried employees of ABT or is required by law or a technical change, will not be deemed to be Good Reason; (D) failure to provide facilities or services which are suitable to Employee’s position and adequate for the performance of Employee’s duties and responsibilities; (E) failure of any successor (whether direct or indirect, by purchase of stock or assets,

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      merger, consolidation or otherwise) to ABT to assume ABT’s obligations under this Agreement, as contemplated by Section 6; (F) any purported termination by ABT of the Employment Period which is not effected pursuant to a Notice of Termination satisfying the requirements of paragraph (f) of this Section 4 (and for purposes of this Agreement no such purported termination will be effective); (G) a change in the location of ABT’s principal executive offices to outside the greater Cleveland, Ohio area; (H) a termination of the Employment Period by Employee within ninety (90) days following a Change in Control (as defined in paragraph (h) of this Section 4); provided, however, that Good Reason will not exist if Employee has accepted employment with the successor entity and such successor entity has assumed this Agreement; (I) a breach of this Agreement by ABT; or (J) any similar circumstances which Employee reasonably believes are contrary to this Agreement. Employee’s right to terminate the Employment Period pursuant to this paragraph (d) will not be affected by Employee’s incapacity due to physical or mental illness. Employee’s continued employment will not constitute consent to, or a waiver of rights with respect to, any circumstance constituting Good Reason; provided, however, that Employee will be deemed to have waived his rights pursuant to circumstances constituting Good Reason if Employee has not provided to ABT a Notice of Termination within ninety (90) days following his knowledge of the circumstances constituting Good Reason.
 
  (e)   Non-Extension . ABT or Employee may terminate the Employment Period by providing the notice described in Section 1(a)(ii) hereof.
 
  (f)   Notice of Termination . Any termination of the Employment Period by ABT or by Employee (other than a termination pursuant to paragraph (a) of this Section 4) must be communicated by written Notice of Termination to the other party in accordance with Section 9. For purposes of this Agreement, a “Notice of Termination” means a notice which indicates the specific termination provision in this Agreement relied upon and sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Employment Period under the provision so indicated.
 
  (g)   Date of Termination . “Date of Termination” means (i) if the Employment Period is terminated pursuant to paragraph (a) above, the date of Employee’s death, (ii) if the Employment Period is terminated pursuant to paragraph (b) above, thirty (30) days after Notice of Termination is given (provided that Employee has not returned to the full-time performance of Employee’s duties during such thirty (30) day period), (iii) if the Employment Period is terminated pursuant to paragraph (c) or (d) above, the date specified in the Notice of Termination which, in the case of a termination by ABT for Cause will not be less than fifteen (15) days from the date such Notice of Termination is given, and, in the case of a termination by Employee pursuant to Section 4(d), such date will not be less than fifteen (15) days nor more than thirty (30) days from the date such Notice of Termination is given, (iv) if the Employment Period is terminated by ABT other than for Cause, thirty (30) days from the date Employee is notified of such termination, or (v) if Employee terminates the Employment Period and fails

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      to provide written notice to ABT of such termination, the date of such termination.
 
  (h)   Change in Control . For purposes of this Agreement, a “Change in Control” will occur (i) upon the sale or other disposition to a person, entity or group (as such term is used in Rule 13d-5 promulgated under the Securities Exchange Act of 1934, as amended) (such a person, entity or group being referred to as an “Outside Party”) of 50% or more of the consolidated assets of Athersys taken as a whole, or (ii) if shares representing a majority of the voting power of Athersys are acquired by a person or group (as such term is used in Rule 13d-5 promulgated under the Securities Exchange Act of 1934, as amended) of persons other than the holders of the capital stock of Athersys as of the date of this Agreement, or (iii) if following an underwritten public offering of equity securities of Athersys pursuant to an effective registration statement under the Securities Act of 1933, as amended, the individuals who are directors of Athersys immediately following the effective date of such public offering (or individuals nominated by such directors) no longer constitute a majority of the whole Board.
5.   Compensation Upon Termination .
  (a)   Disability . During any period that Employee fails to perform his duties under this Agreement as a result of incapacity due to physical or mental illness, Employee will continue to receive his full Base Salary at the rate then in effect for such period (offset by any payments to Employee received pursuant to disability benefit plans maintained by ABT) and all other compensation and benefits under this Agreement (including pro rata payment for vacation days not taken) until the Employment Period is terminated pursuant to Section 4(b) and for a period of twelve (12) months from the date of such termination.
 
  (b)   Cause or Death . If the Employment Period is terminated by ABT for Cause or by Employee other than for Good Reason or as a result of Employee’s death, ABT will pay to Employee his full Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts, if any, to which Employee is entitled as of the Date of Termination, including any bonus owed pursuant to Section 2(b), expenses owed pursuant to Section 2(c) and amounts under any compensation plan or program of ABT, at the time such payments are due and ABT will, thereafter, have no further obligations to Employee under this Agreement.
 
  (c)   Good Reason . If (i) in breach of this Agreement, ABT terminates the Employment Period (it being understood that a purported termination for disability pursuant to Section 4(b) or for Cause which is disputed and finally determined not to have been proper will be a termination by ABT in breach of this Agreement), or (ii) Employee terminates the Employment Period for Good Reason; then

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  (i)   ABT will continue to pay to Employee his full Base Salary for a period of six months from the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts, if any, to which Employee is entitled as of the Date of Termination, including any bonus owed pursuant to Section 2(b) and any expenses owed pursuant to Section 2(c); provided, however, if during such six month period, Employee violates any provision of the Agreement for Disclosure of Confidential Information between Employee and Athersys, then ABT will not be required to make any further payments to Employee; and
 
  (ii)   ABT will permit Employee, at Employee’s option and expense, to continue the participation of Employee for a period of eighteen (18) months in all medical, life and other employee “welfare” benefit plans and programs in which Employee was entitled to participate immediately prior to the Date of Termination provided that Employee’s continued participation is possible under the general terms and provisions of such plans and programs. Employee agrees that the period of coverage under such plans shall count against such plans’ obligation to provide continuation coverage pursuant to the requirements of Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”).
  (d)   Mitigation . Employee will be required to mitigate the amount of any payment provided for in this Section 5 by seeking other employment or otherwise, and the amount of any payment or benefit provided for in this Section 5 will be reduced by any compensation earned by Employee as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by Employee to ABT, or otherwise.
 
  (e)   Survival of Obligations . The obligations of ABT to make payments and provide benefits under this Section 5 will survive the termination of this Agreement.
6.   Successors and Assigns . This Agreement and all rights of Employee under this Agreement will inure to the benefit of and be enforceable by Employee’s personal or legal representatives, executors, administrators, successors, heirs, distributes, devises and legatees. If Employee dies while any amounts would still be payable to him under this Agreement if he had continued to live, all such amounts, unless otherwise provided in this Agreement, will be paid in accordance with the terms of this Agreement to Employee’s devisee, legatee, or other designee or, if there be no such designee, to Employee’s estate. This Agreement and all rights of ABT under this Agreement will inure to the benefit of and be enforceable by ABT’s successors or assigns. Employee hereby consents to the assignment by ABT of all of its rights and obligations hereunder to any successor to ABT by merger or consolidation or purchase of all or substantially all of ABT’s assets, provided such transferee or successor assumes the liabilities of ABT hereunder.

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7.   Employee Representations : Employee represents and warrants to ABT that (i) the execution, delivery and performance of this Agreement by Employee does not and will not conflict with, breach, violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which Employee is a party or by which Employee is bound, (ii) Employee is not a party to or bound by any employment agreement, noncompete agreement or confidentiality agreement with any other person or entity and (iii) upon the execution and delivery of this Agreement by ABT, this Agreement shall be the valid and binding obligation of Employee, enforceable in accordance with its terms.
 
8.   Withholding of Taxes . ABT may withhold from any amounts payable under this Agreement all federal, state, city or other taxes as ABT is required to withhold pursuant to any applicable law, regulation or ruling.
 
9.   Notice . Notices, demands and all other communications provided for in this Agreement will be in writing and will be deemed to have been duly given when delivered, if delivered personally, or (unless otherwise specified) mailed by United States certified or registered mail, return receipt requested, postage prepaid, and when received if delivered otherwise, addressed as follows:
If to Employee:
Robert Deans, Ph.D.
415 Furman Drive
Claremont, CA 91711
If to ABT:
Advanced Biotherapeutics, Inc., d.b.a. Athersys, Inc.
3201 Carnegie Avenue
Cleveland, Ohio 44115-2634
Attention: President & Chief Executive Officer
Copy to:
Christopher M. Kelly, Esq.
Jones Day
North Point, 901 Lakeside Avenue
Cleveland, Ohio 44114
or to such other address as any party may have furnished to the other in writing, except that notices of change of address will be effective only upon receipt.
10.   Amendment and Waiver . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing signed by the parties hereto. No waiver by either party to this Agreement at any time of any breach by the other party of, or compliance with, any condition or provision of this Agreement to be performed by such other party will be deemed a waiver of similar

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    or dissimilar provisions or conditions at the same or at any prior or subsequent time. No course of conduct or failure or delay in enforcing the provisions of this Agreement shall affect the validity, binding effect or enforceability of this Agreement.
 
11.   Choice of Law . The validity, interpretation, construction and performance of this Agreement will be governed by the laws of the State of Ohio without regard to its conflicts of law principles.
 
12.   Severability . Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.
 
13.   Counterparts . This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which together will constitute one and the same instrument.
 
14.   Captions . The headings of paragraphs are included solely for convenience of reference only and are not part of this Agreement and will not be used in construing it.
 
15.   Consent to Jurisdiction and Forum . Employee expressly and irrevocably agrees that ABT may bring any action, whether at law or in equity, arising out of or based upon this Agreement in the State of Ohio or in any federal court therein. Employee irrevocably consents to personal jurisdiction in such court and to accept service of process in accordance with the provisions of the laws of the State of Ohio.
 
16.   Entire Agreement . This Agreement sets forth the entire agreement of the parties in respect of the subject matter contained in this Agreement and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party; and any prior agreement of the parties in respect of the subject mater contained in this Agreement is terminated and canceled.
     IN WITNESS WHEREOF, the parties have executed this Employment Agreement as of the date first above written.
                     
Advanced Biotherapeutics, Inc.       EMPLOYEE:    
 
                   
By:
 
/s/ Gil Van Bokkelen
      By:  
/s/ Robert Deans
   
 
  Gil Van Bokkelen           Robert Deans, Ph.D.    
 
  President & Chief Executive Officer                

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EXHIBIT 10.26
AMENDMENT NO. 1 TO
EMPLOYMENT AGREEMENT
     This Amendment No. 1 (this “Amendment”), dated as of May 31, 2007, to the Employment Agreement (“Agreement”), dated as of October 3, 2003, between Robert Deans (“Employee”) and ADVANCED BIOTHERAPEUTICS, INC. (“Employer”).
     WHEREAS, Employee is employed by Advanced Biotherapeutics, Inc., a wholly-owned subsidiary of Athersys, Inc. (“Athersys”); and
     WHEREAS, Employer and Employee wish to amend the Agreement in connection with the planned merger (the “Merger”) of Athersys with a wholly-owned subsidiary of a shell company (as such term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) that has a class of equity securities registered under Section 12 of the Exchange Act (“PubCo”); and
     WHEREAS, concurrent with and as a condition to the closing of the Merger, PubCo intends to conduct a private placement transaction pursuant to Regulation D promulgated under the Securities Act of 1933, as amended, whereby PubCo will receive gross proceeds of at least $40 million as consideration for the issuance of its equity securities (the “Offering”).
     NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
     1. Notwithstanding anything to the contrary in the Agreement, neither the consummation of the Merger nor the consummation of the Offering shall be deemed a “Change in Control” for purposes of the Agreement.
     2. Upon consummation of the Offering, the grant of 20,000 stock options that was contemplated as a milestone payment in Section 3 of the Agreement will be waived by Employee and be deleted from the Agreement.
     3. This Amendment and the Agreement shall bind and inure to the benefit of and be enforceable by Employee, Employer and their respective heirs, executors, personal representatives, successors and assigns, except that neither party may assign any rights or delegate any obligations hereunder without the prior written consent of the other party. Notwithstanding anything to the contrary in the foregoing, Employee hereby consents to the assignment by Employer of all of its rights and obligations hereunder to any successor to Employer by merger or consolidation or purchase of all or substantially all of Employer’s assets, including, without limitation, any deemed assignment that occurs as a result of the consummation of the Merger.
     3. This Amendment may be executed in two or more counterparts, each of which constitutes an original, and all of which taken together shall constitute one and the

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same Amendment. It is understood that all parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by email delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
     4. The validity, interpretation, construction and performance of this Amendment will be governed by the laws of the State of Ohio without regard to its conflicts of law principles.
     5. Capitalized terms used but not otherwise defined herein have the meanings set forth in the Agreement.

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     IN WITNESS WHEREOF, each of the parties has executed this Amendment as of the day and year first written above.
                     
Robert Deans   Advanced Biotherapeutics, Inc.  
 
                   
/s/ Robert Deans   By:    /s/ Gil Van Bokkelen    
 
          Name:  Gil Van Bokkelen    
 
          Title:  Chief Executive Officer    
 
                   
Date
  Date    
 
                   
 
                   
Acknowledged By:                
 
                   
 
                   
Athersys, Inc.   ReGenesys, LLC  
 
                   
By:
/s/ John Harrington   By:   /s/ William (BJ) Lehmann    
 
Name:  John Harrington       Name: William (BJ) Lehmann    
 
Title:  Executive Vice President & CSO       Title: Vice President, Secretary & Treasurer    
 
                   
Date
  Date    

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EXHIBIT 10.27
NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
     This Non-Competition and Confidentiality Agreement (“Agreement”), is made as of the 3rd day of October, 2003 between Robert Deans, Ph.D., an individual (“Employee”), Advanced Biotherapeutics, Inc. (“ABT”), a wholly-owned subsidiary of Athersys, Inc., and Athersys, Inc., a Delaware corporation (“Athersys”).
RECITALS :
     A. ABT, d.b.a. Athersys, Inc., is engaged in the competitive business of developing, marketing and selling certain core biotechnologies for the diagnosis and treatment of genetic and infectious disease.
     B. ABT employs Employee as October 3, 2003.
     C. As a part of such employment, Employee has access to certain “Confidential Information” (as herein defined).
     D. In consideration of the recent employment arrangements set forth in the Employment Agreement between Employee and ABT dated as of October 3, 2003 (the “Employment Agreement”), Employee has agreed to execute this Agreement.
     E. For the purposes of this Agreement, the term “Athersys” shall be deemed to include Athersys, Inc., and any affiliates or subsidiaries, together with their respective successors or assigns.
AGREEMENTS:
     NOW THEREFORE, for and in consideration of the premises, mutual covenants and undertakings set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties to this Agreement hereby agree as follows:
     1.  Non-Competition and Confidentiality .
     (a) Employee agrees that, so long as he remains employed by Athersys in any capacity, and for a period of six (6) months after the effective date of the termination of said employment by Athersys or Employee, Employee shall not do or suffer any of the following:
     (i) Own, control or manage, or participate in the ownership, control or management of, render consulting services to, or be employed by any corporation, partnership or other entity that is engaged in the business of researching, developing, marketing or selling any technology relating to the field of cell therapy, tissue engineering, or gene therapy, including, without limitation, adult or embryonic stem cell technologies, synthetic microchromosomal technologies, gene activation technologies, or

 


 

any other type of technology, which is substantially similar to that researched, developed, marketed or sold or contemplated to be researched, developed, marketed or sold by Athersys prior to the Employee’s effective date of termination in any geographic areas in the United States or any countries outside the United States where Athersys has researched, developed, marketed or sold such technologies prior to the Employee’s effective date of termination. For the purposes of this subsection (i), the term “ownership” shall be defined as holding five percent (5%) or more ownership interest or voting control interest in the entity in issue;
     (ii) Knowingly attempt to employ or employ, attempt to assist in employing or assist in employing, or otherwise interfere with the employment of, any employee or officer of Athersys; or
     (iii) Solicit, divert or attempt to divert any customer, sponsor, investor, research collaborator or other business relations of Athersys from associating, collaborating or otherwise doing business with Athersys.
     Notwithstanding the foregoing, the provisions of this Section 1(a) shall terminate on the date that Employee ceases to receive the termination compensation from Athersys pursuant to Section 5(c) of the Employment Agreement.
     (b) Employee agrees that from and after the date of this Agreement, Employee shall not disclose, divulge, discuss, copy or otherwise use or suffer to be used any item of confidential information of Athersys, including, without limitation, technologies, product development procedures, new products, customer lists, client lists, sales methods, pricing or cost data, software or software documentation, methods, product research or engineering data, documents, instruments, drawings, or designs (“Confidential Information”). The term “Confidential Information” shall include, by way of example not limitation, any information, which, in the good faith opinion of the Board of Directors, constitutes “trade secrets” of Athersys, as such term is defined in Ohio Revised Code Section 1333.51.
     2.  Injunctive Relief . Employee acknowledges and agrees that: (i) each term of Section 1 of this Agreement is fully required to protect Athersys’ interest and that no term in Section 1 confers a benefit on Athersys that is disproportionate to the detriment imposed on Employee and each provision of such Section 1 is reasonable in time and territory and does not stifle Employee’s inherent skill and experience and will not operate as a bar to Employee’s sole means of support; (ii) the remedy at law for any breach by Employee of any term of Section 1 would be inadequate; and (iii) the damages flowing from such breach are not readily susceptible to measurement in monetary terms. Accordingly, upon adequate proof of Employee’s violation of any legally enforceable provision of Section 1 of this Agreement, Athersys shall be entitled to immediate injunctive relief and may obtain a temporary order restraining any threatened or future breach. Nothing in this Agreement shall be deemed to limit Athersys’ remedies at law or in equity for any breach by Employee of any term of this Agreement.

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     3.  Ownership of Technology . Any technology, procedure, design feature, invention, improvement, development or discovery (whether or not patentable or copyrightable) that Employee may conceive of, make, invent, suggest, or otherwise obtain knowledge of during the course of Employee’s employment or other relationship with Athersys (whether individually or jointly with any other person or persons), relating in any way to the field of cell therapy, tissue engineering, or gene therapy or any other business of Athersys or to the proposed contemplated business of which Athersys will be a part of, shall be the sole, exclusive and absolute property of Athersys, as shall all physical embodiments and manifestations thereof and all research data regarding, including, without limitation, all proprietary rights, techniques, specifications, any methods and apparatuses for data manipulation and utilization. Employee will immediately disclose any such technology, procedure, design feature, invention, improvement, development or discovery to Athersys and will, at any time, upon Athersys’ request and without additional compensation, execute any documents and give all lawful testimony which may be required respecting the patenting or copyrighting of any such technology, procedure, design feature, invention, improvement, development or discovery, as well as any papers which may be considered necessary or helpful by Athersys in the processing of applications for patents thereon, to vest title thereto in Athersys, or which may relate to any litigation or controversy in connection therewith, all expenses incident thereto to be borne by Athersys. Employee, whether or not still employed by Athersys, will cooperate with Athersys, at Athersys’ expense, in any litigation or other matter relating to Athersys’ right in any of the foregoing.
     4.  Severability . In the event that Sections 1, 2 and 3 shall be found by a court of competent jurisdiction to be invalid or unenforceable as against public policy, such court shall exercise its discretion in reforming such provisions to the end that Employee shall be subject to nondisclosure, noncompetitive and noninterference covenants that are reasonable under the circumstances and enforceable by Athersys. In the event that any other provision or term of this Agreement is found to be void or unenforceable to any extent for any reason, it is the agreed-upon intent of the parties hereto that all remaining provisions or terms of this Agreement shall remain in full force and effect to the maximum extent permitted and that this Agreement shall be enforceable as if such void or unenforceable provision or term had never been a part hereof. To the extent that any obligations of Employee in this Agreement shall be illegal and/or unenforceable with respect to any jurisdiction, said covenants shall not be affected thereby with respect to each other jurisdiction, such covenants with respect to each such jurisdiction being construed as severable and independent. In the event Employee shall violate any legally enforceable provision of this Agreement as to which there is a specific time period during which Athersys is prohibited from taking certain actions or from engaging in certain activities, as set forth in this Agreement, then, in such event, such violation shall toll the running of such time period from the date such violation commences until, and including, the date such violation shall cease.
     5.  Notice . Notices, demands and all other communications provided for in this Agreement will be in writing and will be deemed to have been duly given when delivered, if delivered personally, or (unless otherwise specified) mailed by United States certified or

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registered mail, return receipt requested, postage prepaid, and when received if delivered otherwise, addressed as follows:
     If to Employee:
Robert Deans, Ph.D.
415 Furman Dr.
Claremont, CA 91711
     If to Athersys:
ATHERSYS, INC.
3201 Carnegie Avenue
Cleveland, Ohio 44115-2634
Attention: Gil Van Bokkelen, President & CEO
or to such other address as any party may have furnished to the other in writing, except that notices of change of address will be effective only upon receipt.
     6.  General Provisions . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing signed by the parties hereto. No waiver by either party to this Agreement at any time of any breach by the other party of, or compliance with, any condition or provision of this Agreement to be performed by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. The validity, interpretation, construction and performance of this Agreement will be governed by the laws of the State of Ohio without regard to its conflicts of law principles.
     7.  Counterparts . This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which together will constitute one and the same instrument.
     8.  Captions . The headings of paragraphs are included solely for convenience of reference only and are not part of this Agreement and will not be used in construing it.
     9.  Consent to Jurisdiction and Forum . Employee expressly and irrevocably agrees that Athersys may bring any action, whether at law or in equity, arising out of or based upon this Agreement in the State of Ohio or in any federal court therein. Employee irrevocably consents to personal jurisdiction in such court and to accept service of process in accordance with the provisions of the laws of the State of Ohio.

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     10.  Entire Agreement . This Agreement sets forth the entire agreement of the parties in respect of the subject matter contained in this Agreement and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party; and any prior agreement of the parties in respect of the subject mater contained in this Agreement is terminated and canceled.
     IN WITNESS WHEREOF, the parties have executed this Non-Competition and Confidentiality Agreement as of the date first above written.
         
  ATHERSYS, INC.
 
 
  By:   /s/ Gil Van Bokkelen   
    Gil Van Bokkelen   
    President and Chief Executive Officer   
 
  ADVANCED BIOTHERAPEUTICS, INC.
 
 
  By:   /s/ Gil Van Bokkelen   
    Gil Van Bokkelen   
    President and Chief Executive Officer   
 
  EMPLOYEE

/s/ Robert Deans, Ph.D.
 
  Robert Deans, Ph.D.
 
 
     

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EXHIBIT 10.28
EMPLOYMENT AGREEMENT
     THIS EMPLOYMENT AGREEMENT (“Agreement”) is made as of January 1, 2004 between William Lehmann, an individual (“Employee”), and Advanced Biotherapeutics, Inc. (“ABT”), a wholly-owned subsidiary of Athersys, Inc., a Delaware corporation (“Athersys”), (together “the Company”).
RECITALS :
     A. ABT, d.b.a. Athersys, Inc., is engaged in the competitive business of developing, marketing and selling certain core biotechnologies for the diagnosis and treatment of genetic and infectious disease.
     B. ABT desires to employ Employee on the terms and conditions set forth in this Agreement.
     C. Employee is willing to accept employment on the terms and conditions expressed in this Agreement.
     D. ABT and Employee desire to terminate the Employment Agreement, by and between William Lehmann and ABT, dated as of September 10, 2001, as amended on November 14, 2001, which is hereby superceded in its entirety by this Agreement.
AGREEMENTS:
     NOW, THEREFORE, the parties agree as follows:
1.   Employment . ABT agrees to employ Employee, and Employee agrees to serve ABT, on the terms and conditions set forth in this Agreement.
  (a)   Term . Subject to the provisions for termination as hereinafter provided, the term of this Agreement will begin on January 1, 2004 (the “Effective Date”) and continue through the fourth anniversary of the Effective Date (the “Employment Period”). The Employment Period will automatically be extended for one additional year on each anniversary of the Effective Date beginning on the fourth anniversary of the Effective Date unless (i) this Agreement is terminated as provided in Section 4, or (ii) either Employee or ABT gives written notice of termination of this Agreement to the other at least thirty (30) days prior to such date.
 
  (b)   Position and Duties . Employee will serve as Executive Vice President of Corporate Development and Finance of ABT and will have such responsibilities, duties and authority as are customary of an Executive Vice President of a company the size and structure of ABT (or any position to which Employee may be promoted after the date of this Agreement) and as may from time to time be assigned to Employee by the Board of Directors of ABT (the “Board”) that are consistent with such responsibilities, duties, authority and applicable law.

 


 

      Employee will devote substantially all of his working time and effort to the business and affairs of ABT.
  (c)   Place of Performance . In connection with Employee’s employment by ABT, Employee will be based at the principal executive offices of ABT in the greater Cleveland, Ohio area.
 
  (d)   Continuous Employment . For all purposes under this Agreement, the Employee shall be considered to have been continuously employed by ABT without regard to any change of duties or position of the Employee, including transfers between and among ABT and its affiliates, so long as Employee is continuously employed by ABT or any of its affiliates, including Athersys.
2.   Compensation and Related Matters . As compensation and consideration for the performance by Employee of Employee’s duties, responsibilities and covenants pursuant to this Agreement, ABT will pay Employee the amounts and benefits set forth below:
  (a)   Salary . ABT will pay to Employee an annual base salary (“Base Salary”) during the Employment Period at a rate of Two Hundred Fifty Thousand Dollars ($250,000.00) commencing on January 1, 2004, such salary to be paid in substantially equal installments no less frequently than monthly. The Base Salary may be increased from time to time by the Board in its sole discretion and, if so increased, will not thereafter during the term of this Agreement be decreased. The Board will review the Base Salary at least annually to determine, in its sole discretion, whether an increase is appropriate. Compensation of Employee by salary payments will not be deemed exclusive and will not prevent Employee from participating in any other compensation or benefit plan of ABT.
 
  (b)   Bonus . During the Employment Period, Employee will participate in any incentive plans that may in the future be made generally available to officers of ABT in comparable positions. In addition, Employee will be eligible for the performance bonus as set forth on Exhibit A.
 
  (c)   Expenses . Employee will be entitled to receive prompt reimbursement for all reasonable and customary travel and entertainment expenses or other out-of-pocket business expenses incurred by Employee during the Employment Period in fulfilling Employee’s duties and responsibilities under this Agreement, including all expenses of travel and living expenses while away from home on business or at the request of and in the service of ABT, provided that such expenses are incurred and accounted for in accordance with the policies and procedures established by ABT.
 
  (d)   Other Benefits . Employee will be entitled during the Employment Period to participate, on the same basis as other employees of ABT in similar positions, in all of the employee benefit plans and arrangements of ABT and enjoy all of the perquisites for which substantially all of the other employees of ABT in similar positions are from time to time generally eligible, as determined from time to time

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      by the Board (including, without limitations each retirement, thrift and profit sharing plan, group life insurance and accident plan, medical and/or dental insurance plan, and disability plan); provided, however, that a change may be made to a plan in which salaried employees of ABT participate, including termination of any such plan, arrangement or perquisite, if it does not result in a proportionately greater reduction in the rights of or benefits to Employee as compared with the other salaried employees of ABT or is required by law or a technical change. Employee will be entitled to participate in and receive benefits under any employee benefit plan, arrangement or perquisite made available by ABT in the future to its employees in similar positions, subject to and on a basis consistent with the terms, conditions and overall administration of such plans, arrangements and perquisites. Also, ABT shall purchase for Employee a life insurance policy in the amount of $1 million for the benefit of the family of Employee. Nothing paid to Employee under any plan, arrangement or perquisite presently in effect or made available in the future will be deemed to be in lieu of the salary payable to Employee pursuant to paragraph (a) of this Section 2.
  (e)   Vacations . During the Employment Period, Employee will be entitled to paid vacation in each calendar year, determined in accordance with ABT’s vacation policy, but in all events in an amount of not less than three (3) weeks per calendar year. Employee will also be entitled to all paid holidays and personal days given by ABT to its employees during the Employment Period.
3.   Termination . The Employment Period may be terminated under the following circumstances:
  (a)   Death . The Employment Period will terminate upon Employee’s death.
 
  (b)   Disability . If, in the written opinion of a qualified physician selected by ABT and agreed to by Employee (or if no agreement is reached within thirty (30) days of the commencement of discussions between ABT and Employee, then of a qualified physician agreed upon by the physician selected by ABT and a physician selected by Employee), Employee becomes unable to perform his duties under this Agreement due to physical or mental illness, ABT may terminate the Employment Period.
 
  (c)   Cause . ABT may terminate the Employment Period for Cause. For purposes of this Agreement, ABT will have “Cause” to terminate the Employment Period as a result of any of the following events: (i) the commission of an act of fraud, embezzlement, theft or other criminal act constituting a felony; (ii) the willful or wanton disregard of the rules or policies of the Company or its Subsidiaries which results in a material loss, damage or injury to the Company or its Subsidiaries; (iii) the repeated failure of Employee to perform duties consistent with Employee’s position or to follow or comply with the reasonable directives of the Company’s or its Subsidiaries’ Board of Directors or Employee’s superiors after having been given notice thereof (e.g., the insubordination of Employee); or (iv) the material breach of any provision contained in a written non-competition,

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      confidentiality or non-disclosure agreement between the Company or any of its Subsidiaries and Employee.
  (d)   Good Reason . Employee may terminate the Employment Period for Good Reason. For purposes of this Agreement, “Good Reason” includes the occurrence of any of the following circumstances, without Employee’s express consent, unless such circumstances are fully corrected prior to the Date of Termination (as defined in paragraph (g) of this Section 4) specified in the Notice of Termination (as defined in paragraph (f) of this Section 4) given in respect thereof and such circumstances do not reoccur: (A) a diminution in Employee’s position, duties, responsibilities or authority (unless such diminution occurs during periods when Employee is unable to perform all or substantially all of Employee’s duties and/or responsibilities as a result of Employee’s illness (either physical or mental) or other incapacity); (B) a reduction in either Employee’s annual rate of Base Salary or level of participation in any bonus or incentive plan for which he is eligible under Section 2(b); (C) an elimination or reduction of Employee’s participation in any benefit plan generally available to employees of ABT in similar positions, unless ABT continues to offer Employee benefits substantially similar to those made available by such plan; provided, however, that a change to a plan in which salaried employees of ABT generally participate, including termination of any such plan, if it does not result in a proportionately greater reduction in the rights of or benefits to Employee as compared with the other salaried employees of ABT or is required by law or a technical change, will not be deemed to be Good Reason; (D) failure to provide facilities or services which are suitable to Employee’s position and adequate for the performance of Employee’s duties and responsibilities; (E) failure of any successor (whether direct or indirect, by purchase of stock or assets, merger, consolidation or otherwise) to ABT to assume ABT’s obligations under this Agreement, as contemplated by Section 6; (F) any purported termination by ABT of the Employment Period which is not effected pursuant to a Notice of Termination satisfying the requirements of paragraph (f) of this Section 4 (and for purposes of this Agreement no such purported termination will be effective); (G) a change in the location of ABT’s principal executive offices to outside the greater Cleveland, Ohio area; (H) a termination of the Employment Period by Employee within ninety (90) days following a Change in Control (as defined in paragraph (h) of this Section 4); provided, however, that Good Reason will not exist if Employee has accepted employment with the successor entity and such successor entity has assumed this Agreement; (I) a breach of this Agreement by ABT; or (J) any similar circumstances which Employee reasonably believes are contrary to this Agreement. Employee’s right to terminate the Employment Period pursuant to this paragraph (d) will not be affected by Employee’s incapacity due to physical or mental illness. Employee’s continued employment will not constitute consent to, or a waiver of rights with respect to, any circumstance constituting Good Reason; provided, however, that Employee will be deemed to have waived his rights pursuant to circumstances constituting Good Reason if Employee has not provided to ABT a Notice of Termination within ninety (90) days following his knowledge of the circumstances constituting Good Reason.

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  (e)   Non-Extension . ABT or Employee may terminate the Employment Period by providing the notice described in Section 1(a)(ii) hereof.
 
  (f)   Notice of Termination . Any termination of the Employment Period by ABT or by Employee (other than a termination pursuant to paragraph (a) of this Section 4) must be communicated by written Notice of Termination to the other party in accordance with Section 9. For purposes of this Agreement, a “Notice of Termination” means a notice which indicates the specific termination provision in this Agreement relied upon and sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Employment Period under the provision so indicated.
 
  (g)   Date of Termination . “Date of Termination” means (i) if the Employment Period is terminated pursuant to paragraph (a) above, the date of Employee’s death, (ii) if the Employment Period is terminated pursuant to paragraph (b) above, thirty (30) days after Notice of Termination is given (provided that Employee has not returned to the full-time performance of Employee’s duties during such thirty (30) day period), (iii) if the Employment Period is terminated pursuant to paragraph (c) or (d) above, the date specified in the Notice of Termination which, in the case of a termination by ABT for Cause will not be less than fifteen (15) days from the date such Notice of Termination is given, and, in the case of a termination by Employee pursuant to Section 4(d), such date will not be less than fifteen (15) days nor more than thirty (30) days from the date such Notice of Termination is given, (iv) if the Employment Period is terminated by ABT other than for Cause, thirty (30) days from the date Employee is notified of such termination, or (v) if Employee terminates the Employment Period and fails to provide written notice to ABT of such termination, the date of such termination.
 
  (h)   Change in Control . For purposes of this Agreement, a “Change in Control” will occur (i) upon the sale or other disposition to a person, entity or group (as such term is used in Rule 13d-5 promulgated under the Securities Exchange Act of 1934, as amended) (such a person, entity or group being referred to as an “Outside Party”) of 50% or more of the consolidated assets of Athersys taken as a whole, or (ii) if shares representing a majority of the voting power of Athersys are acquired by a person or group (as such term is used in Rule 13d-5 promulgated under the Securities Exchange Act of 1934, as amended) of persons other than the holders of the capital stock of Athersys as of the date of this Agreement, or (iii) if following an underwritten public offering of equity securities of Athersys pursuant to an effective registration statement under the Securities Act of 1933, as amended, the individuals who are directors of Athersys immediately following the effective date of such public offering (or individuals nominated by such directors) no longer constitute a majority of the whole Board.
4.   Compensation Upon Termination .

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  (a)   Disability . During any period that Employee fails to perform his duties under this Agreement as a result of incapacity due to physical or mental illness, Employee will continue to receive his full Base Salary at the rate then in effect for such period (offset by any payments to Employee received pursuant to disability benefit plans maintained by ABT) and all other compensation and benefits under this Agreement (including pro rata payment for vacation days not taken) until the Employment Period is terminated pursuant to Section 4(b) and for a period of twelve (12) months from the date of such termination.
 
  (b)   Cause or Death . If the Employment Period is terminated by ABT for Cause or by Employee other than for Good Reason or as a result of Employee’s death, ABT will pay to Employee his full Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts, if any, to which Employee is entitled as of the Date of Termination, including any bonus owed pursuant to Section 2(b), expenses owed pursuant to Section 2(c) and amounts under any compensation plan or program of ABT, at the time such payments are due and ABT will, thereafter, have no further obligations to Employee under this Agreement.
 
  (c)   Good Reason . If (i) in breach of this Agreement, ABT terminates the Employment Period (it being understood that a purported termination for disability pursuant to Section 4(b) or for Cause which is disputed and finally determined not to have been proper will be a termination by ABT in breach of this Agreement), or (ii) Employee terminates the Employment Period for Good Reason; then
  (i)   ABT will continue to pay to Employee his full Base Salary for a period of six months from the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts, if any, to which Employee is entitled as of the Date of Termination, including any bonus owed pursuant to Section 2(b) and any expenses owed pursuant to Section 2(c); provided, however, if during such six month period, Employee violates any provision of the Agreement for Disclosure of Confidential Information between Employee and Athersys, then ABT will not be required to make any further payments to Employee; and
 
  (ii)   ABT will permit Employee, at Employee’s option and expense, to continue the participation of Employee for a period of eighteen (18) months in all medical, life and other employee “welfare” benefit plans and programs in which Employee was entitled to participate immediately prior to the Date of Termination provided that Employee’s continued participation is possible under the general terms and provisions of such plans and programs. Employee agrees that the period of coverage under such plans shall count against such plans’ obligation to provide continuation coverage pursuant to the requirements of Part 6 of Subtitle B

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      of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”).
  (d)   Mitigation . Employee will be required to mitigate the amount of any payment provided for in this Section 5 by seeking other employment or otherwise, and the amount of any payment or benefit provided for in this Section 5 will be reduced by any compensation earned by Employee as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by Employee to ABT, or otherwise.
 
  (e)   Survival of Obligations . The obligations of ABT to make payments and provide benefits under this Section 5 will survive the termination of this Agreement.
5.   Successors and Assigns . This Agreement and all rights of Employee under this Agreement will inure to the benefit of and be enforceable by Employee’s personal or legal representatives, executors, administrators, successors, heirs, distributes, devises and legatees. If Employee dies while any amounts would still be payable to him under this Agreement if he had continued to live, all such amounts, unless otherwise provided in this Agreement, will be paid in accordance with the terms of this Agreement to Employee’s devisee, legatee, or other designee or, if there be no such designee, to Employee’s estate. This Agreement and all rights of ABT under this Agreement will inure to the benefit of and be enforceable by ABT’s successors or assigns. Employee hereby consents to the assignment by ABT of all of its rights and obligations hereunder to any successor to ABT by merger or consolidation or purchase of all or substantially all of ABT’s assets, provided such transferee or successor assumes the liabilities of ABT hereunder.
6.   Employee Representations : Employee represents and warrants to ABT that (i) the execution, delivery and performance of this Agreement by Employee does not and will not conflict with, breach, violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which Employee is a party or by which Employee is bound, (ii) Employee is not a party to or bound by any employment agreement, noncompete agreement or confidentiality agreement with any other person or entity and (iii) upon the execution and delivery of this Agreement by ABT, this Agreement shall be the valid and binding obligation of Employee, enforceable in accordance with its terms.
7.   Withholding of Taxes . ABT may withhold from any amounts payable under this Agreement all federal, state, city or other taxes as ABT is required to withhold pursuant to any applicable law, regulation or ruling.
8.   Notice . Notices, demands and all other communications provided for in this Agreement will be in writing and will be deemed to have been duly given when delivered, if delivered personally, or (unless otherwise specified) mailed by United States certified or registered mail, return receipt requested, postage prepaid, and when received if delivered otherwise, addressed as follows:

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If to Employee:
William Lehmann
                                         
                                          , OH                     
If to ABT:
Advanced Biotherapeutics, Inc., d.b.a. Athersys, Inc.
3201 Carnegie Avenue
Cleveland, Ohio 44115-2634
Attention: President & Chief Executive Officer
Copy to:
Christopher M. Kelly, Esq.
Jones Day
North Point, 901 Lakeside Avenue
Cleveland, Ohio 44114
or to such other address as any party may have furnished to the other in writing, except that notices of change of address will be effective only upon receipt.
9.   Amendment and Waiver . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing signed by the parties hereto. No waiver by either party to this Agreement at any time of any breach by the other party of, or compliance with, any condition or provision of this Agreement to be performed by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No course of conduct or failure or delay in enforcing the provisions of this Agreement shall affect the validity, binding effect or enforceability of this Agreement.
 
10.   Choice of Law . The validity, interpretation, construction and performance of this Agreement will be governed by the laws of the State of Ohio without regard to its conflicts of law principles.
11.   Severability . Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.
12.   Counterparts . This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which together will constitute one and the same instrument.

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13.   Captions . The headings of paragraphs are included solely for convenience of reference only and are not part of this Agreement and will not be used in construing it.
14.   Consent to Jurisdiction and Forum . Employee expressly and irrevocably agrees that ABT may bring any action, whether at law or in equity, arising out of or based upon this Agreement in the State of Ohio or in any federal court therein. Employee irrevocably consents to personal jurisdiction in such court and to accept service of process in accordance with the provisions of the laws of the State of Ohio.
15.   Entire Agreement . This Agreement sets forth the entire agreement of the parties in respect of the subject matter contained in this Agreement and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party; and any prior agreement of the parties in respect of the subject mater contained in this Agreement is terminated and canceled.
     IN WITNESS WHEREOF, the parties have executed this Employment Agreement as of the date first above written.
                     
Advanced Biotherapeutics, Inc.       EMPLOYEE:    
 
                   
By:
  /s/ Gil Van Bokkelen        By:   /s/ William Lehmann     
 
 
 
Gil Van Bokkelen
         
 
William Lehmann
   
 
  President & Chief Executive Officer                

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EXHIBIT 10.29
Executive
AMENDMENT NO. 1 TO
EMPLOYMENT AGREEMENT
     This Amendment No. 1 (this “Amendment”), dated as of May 31, 2007, to the Employment Agreement (“Agreement”), dated as of January 1, 2004, between William Lehmann (“Employee”) and ADVANCED BIOTHERAPEUTICS, INC. (“Employer”).
     WHEREAS, Employee is employed by Advanced Biotherapeutics, Inc., a wholly-owned subsidiary of Athersys, Inc. (“Athersys”); and
     WHEREAS, Employer and Employee wish to amend the Agreement in connection with the planned merger (the “Merger”) of Athersys with a wholly-owned subsidiary of a shell company (as such term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) that has a class of equity securities registered under Section 12 of the Exchange Act (“PubCo”); and
     WHEREAS, concurrent with and as a condition to the closing of the Merger, PubCo intends to conduct a private placement transaction pursuant to Regulation D promulgated under the Securities Act of 1933, as amended, whereby PubCo will receive gross proceeds of at least $40 million as consideration for the issuance of its equity securities (the “Offering”).
     NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
     1. Notwithstanding anything to the contrary in the Agreement, neither the consummation of the Merger nor the consummation of the Offering shall be deemed a “Change in Control” for purposes of the Agreement.
     2. Upon consummation of the Offering, Athersys shall be deemed to have successfully completed Milestone A described on Exhibit A to the Agreement and Employee shall be entitled to a $50,000 bonus, and all other milestone payments on Exhibit A to the Agreement will waived by Employee and be deleted from the Agreement.
     3. This Amendment and the Agreement shall bind and inure to the benefit of and be enforceable by Employee, Employer and their respective heirs, executors, personal representatives, successors and assigns, except that neither party may assign any rights or delegate any obligations hereunder without the prior written consent of the other party. Notwithstanding anything to the contrary in the foregoing, Employee hereby consents to the assignment by Employer of all of its rights and obligations hereunder to any successor to Employer by merger or consolidation or purchase of all or substantially all of Employer’s assets, including, without limitation, any deemed assignment that occurs as a result of the consummation of the Merger.

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     4. This Amendment may be executed in two or more counterparts, each of which constitutes an original, and all of which taken together shall constitute one and the same Amendment. It is understood that all parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by email delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
     5. The validity, interpretation, construction and performance of this Amendment will be governed by the laws of the State of Ohio without regard to its conflicts of law principles.
     6. Capitalized terms used but not otherwise defined herein have the meanings set forth in the Agreement.

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     IN WITNESS WHEREOF, each of the parties has executed this Amendment as of the day and year first written above.
                             
William Lehmann       Advanced Biotherapeutics, Inc.    
 
                           
 
/s/ William Lehmann       By:   /s/ Gil Van Bokkelen    
                 
 
                  Name:
Title:
  Gil Van Bokkelen
Chief Executive Officer
   
 
                           
 
                           
             
Date
              Date            
 
                           
Acknowledged By:                    
 
Athersys, Inc.       ReGenesys, LLC    
 
                           
By:   /s/ John Harrington       By:   /s/ Gil Van Bokkelen    
                     
 
  Name:
Title:
  John Harrington
Executive Vice President & CSO
          Name:
Title:
  Gil Van Bokkelen
President
   
 
                           
 
                           
             
Date
              Date            

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EXHIBIT 10.30
NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
     This Non-Competition and Confidentiality Agreement (“Agreement”), is made as of the 10th day of September, 2001 between William Lehmann, an individual (“Employee”), Advanced Biotherapeutics, Inc. (“ABT”), a wholly-owned subsidiary of Athersys, Inc., and Athersys, Inc., a Delaware corporation (“Athersys”).
RECITALS :
     A. ABT, d.b.a. Athersys, Inc., is engaged in the competitive business of developing, marketing and selling certain core biotechnologies for the diagnosis and treatment of genetic and infectious disease.
     B. ABT employs Employee as September 10, 2001.
     C. As a part of such employment, Employee has access to certain “Confidential Information” (as herein defined).
     D. In consideration of the recent employment arrangements set forth in the Employment Agreement between Employee and ABT dated as of September 10, 2001 (the “Employment Agreement”), Employee has agreed to execute this Agreement.
     E. For the purposes of this Agreement, the term “Athersys” shall be deemed to include Athersys, Inc., and any affiliates or subsidiaries, together with their respective successors or assigns.
AGREEMENTS:
     NOW THEREFORE, for and in consideration of the premises, mutual covenants and undertakings set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties to this Agreement hereby agree as follows:
     1.  Non-Competition and Confidentiality .
     (a) Employee agrees that, so long as he remains employed by Athersys in any capacity, and for a period of six (6) months after the effective date of the termination of said employment by Athersys or Employee, Employee shall not do or suffer any of the following:
     (i) Own, control or manage, or participate in the ownership, control or management of, render consulting services to, or be employed by any corporation, partnership or other entity that is engaged in the business of researching, developing, marketing or selling any technology relating to the field of gene therapy, including, without limitation, synthetic microchromosomal technologies, gene activation technologies, centromere technologies or any other type of technology, which is

 


 

substantially similar to that researched, developed, marketed or sold or contemplated to be researched, developed, marketed or sold by Athersys prior to the Employee’s effective date of termination in any geographic areas in the United States or any countries outside the United States where Athersys has researched, developed, marketed or sold such technologies prior to the Employee’s effective date of termination. For the purposes of this subsection (i), the term “ownership” shall be defined as holding five percent (5%) or more ownership interest or voting control interest in the entity in issue;
     (ii) Knowingly attempt to employ or employ, attempt to assist in employing or assist in employing, or otherwise interfere with the employment of, any employee or officer of Athersys; or
     (iii) Solicit, divert or attempt to divert any customer, sponsor, investor, research collaborator or other business relations of Athersys from associating, collaborating or otherwise doing business with Athersys.
     Notwithstanding the foregoing, the provisions of this Section 1(a) shall terminate on the date that Employee ceases to receive the termination compensation from Athersys pursuant to Section 5(c) of the Employment Agreement.
     (b) Employee agrees that from and after the date of this Agreement, Employee shall not disclose, divulge, discuss, copy or otherwise use or suffer to be used any item of confidential information of Athersys, including, without limitation, technologies, product development procedures, new products, customer lists, client lists, sales methods, pricing or cost data, software or software documentation, methods, product research or engineering data, documents, instruments, drawings, or designs (“Confidential Information”). The term “Confidential Information” shall include, by way of example not limitation, any information, which, in the good faith opinion of the Board of Directors, constitutes “trade secrets” of Athersys, as such term is defined in Ohio Revised Code Section 1333.51.
     2.  Injunctive Relief . Employee acknowledges and agrees that: (i) each term of Section 1 of this Agreement is fully required to protect Athersys’ interest and that no term in Section 1 confers a benefit on Athersys that is disproportionate to the detriment imposed on Employee and each provision of such Section 1 is reasonable in time and territory and does not stifle Employee’s inherent skill and experience and will not operate as a bar to Employee’s sole means of support; (ii) the remedy at law for any breach by Employee of any term of Section 1 would be inadequate; and (iii) the damages flowing from such breach are not readily susceptible to measurement in monetary terms. Accordingly, upon adequate proof of Employee’s violation of any legally enforceable provision of Section 1 of this Agreement, Athersys shall be entitled to immediate injunctive relief and may obtain a temporary order restraining any threatened or future breach. Nothing in this Agreement shall be deemed to limit Athersys’ remedies at law or in equity for any breach by Employee of any term of this Agreement.

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     3.  Ownership of Technology . Any technology, procedure, design feature, invention, improvement, development or discovery (whether or not patentable or copyrightable) that Employee may conceive of, make, invent, suggest, or otherwise obtain knowledge of during the course of Employee’s employment or other relationship with Athersys (whether individually or jointly with any other person or persons), relating in any way to the field of gene therapy or any other business of Athersys or to the proposed contemplated business of which Athersys will be a part of, shall be the sole, exclusive and absolute property of Athersys, as shall all physical embodiments and manifestations thereof and all research data regarding, including, without limitation, all proprietary rights, techniques, specifications, any methods and apparatuses for data manipulation and utilization. Employee will immediately disclose any such technology, procedure, design feature, invention, improvement, development or discovery to Athersys and will, at any time, upon Athersys’ request and without additional compensation, execute any documents and give all lawful testimony which may be required respecting the patenting or copyrighting of any such technology, procedure, design feature, invention, improvement, development or discovery, as well as any papers which may be considered necessary or helpful by Athersys in the processing of applications for patents thereon, to vest title thereto in Athersys, or which may relate to any litigation or controversy in connection therewith, all expenses incident thereto to be borne by Athersys. Employee, whether or not still employed by Athersys, will cooperate with Athersys, at Athersys’ expense, in any litigation or other matter relating to Athersys’ right in any of the foregoing.
     4.  Severability . In the event that Sections 1, 2 and 3 shall be found by a court of competent jurisdiction to be invalid or unenforceable as against public policy, such court shall exercise its discretion in reforming such provisions to the end that Employee shall be subject to nondisclosure, noncompetitive and noninterference covenants that are reasonable under the circumstances and enforceable by Athersys. In the event that any other provision or term of this Agreement is found to be void or unenforceable to any extent for any reason, it is the agreed-upon intent of the parties hereto that all remaining provisions or terms of this Agreement shall remain in full force and effect to the maximum extent permitted and that this Agreement shall be enforceable as if such void or unenforceable provision or term had never been a part hereof. To the extent that any obligations of Employee in this Agreement shall be illegal and/or unenforceable with respect to any jurisdiction, said covenants shall not be affected thereby with respect to each other jurisdiction, such covenants with respect to each such jurisdiction being construed as severable and independent. In the event Employee shall violate any legally enforceable provision of this Agreement as to which there is a specific time period during which Athersys is prohibited from taking certain actions or from engaging in certain activities, as set forth in this Agreement, then, in such event, such violation shall toll the running of such time period from the date such violation commences until, and including, the date such violation shall cease.
     5.  Notice . Notices, demands and all other communications provided for in this Agreement will be in writing and will be deemed to have been duly given when delivered, if delivered personally, or (unless otherwise specified) mailed by United States certified or

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registered mail, return receipt requested, postage prepaid, and when received if delivered otherwise, addressed as follows:
If to Employee:
     William Lehmann
     2912 Huntington Road
     Shaker Heights, OH 44120
If to Athersys:
     ATHERSYS, INC.
     3201 Carnegie Avenue
     Cleveland, Ohio 44115-2634
     Attention: Gil Van Bokkelen, President & CEO
or to such other address as any party may have furnished to the other in writing, except that notices of change of address will be effective only upon receipt.
     6.  General Provisions . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing signed by the parties hereto. No waiver by either party to this Agreement at any time of any breach by the other party of, or compliance with, any condition or provision of this Agreement to be performed by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. The validity, interpretation, construction and performance of this Agreement will be governed by the laws of the State of Ohio without regard to its conflicts of law principles.
     7.  Counterparts . This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which together will constitute one and the same instrument.
     8.  Captions . The headings of paragraphs are included solely for convenience of reference only and are not part of this Agreement and will not be used in construing it.
     9.  Consent to Jurisdiction and Forum . Employee expressly and irrevocably agrees that Athersys may bring any action, whether at law or in equity, arising out of or based upon this Agreement in the State of Ohio or in any federal court therein. Employee irrevocably consents to personal jurisdiction in such court and to accept service of process in accordance with the provisions of the laws of the State of Ohio.

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     10.  Entire Agreement . This Agreement sets forth the entire agreement of the parties in respect of the subject matter contained in this Agreement and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party; and any prior agreement of the parties in respect of the subject mater contained in this Agreement is terminated and canceled.
     IN WITNESS WHEREOF, the parties have executed this Non-Competition and Confidentiality Agreement as of the date first above written.
         
  ATHERSYS, INC.
 
 
  By:   /s/ Gil Van Bokkelen  
    Gil Van Bokkelen   
    President and Chief Executive Officer   
 
  ADVANCED BIOTHERAPEUTICS, INC.
 
 
  By:   /s/ Gil Van Bokkelen  
    Gil Van Bokkelen   
    President and Chief Executive Officer   
 
  EMPLOYEE    
     
  /s/ William Lehmann  
  William Lehmann   
     
 

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Exhibit 10.31
Executive
INCENTIVE AGREEMENT
     This Incentive Agreement (“Agreement”) is entered into this ___ day of November, 2005 (the “Effective Date”), between [INSERT EMPLOYEE NAME] (“Employee”) and ADVANCED BIOTHERAPEUTICS, INC. (individually, “Employer,” and, collectively with its affiliates, Athersys, Inc. (“Athersys”) and ReGenesys, LLC, the “Company”).
     WHEREAS, the Employee is employed by Advanced Biotherapeutics, Inc., a wholly-owned subsidiary of Athersys; and
     WHEREAS, the Company is actively pursuing potential business and financial transactions to provide the Company with additional capital to further develop the Company’s product opportunities; and
     WHEREAS, the Company is undertaking a restructuring and refocusing of the Company’s internal programs; and
     WHEREAS, the Board of Directors of Athersys believes that the loss of certain employees could materially impact the Company’s ability to close a business or financial transaction; and
     WHEREAS, the Board of Directors of Athersys believes that it is in the best interests of Athersys and its stockholders to provide the Employee with an incentive to continue his or her employment and to motivate the Employee to maximize the value of Athersys for the benefit of the stockholders and other stakeholders.
     NOW THEREFORE, in consideration of the mutual covenants herein contained, and in consideration of the continuing employment of Employee by the Company, the parties agree as follows:
  1.   Definitions. For purposes of this Agreement, the following definitions shall apply:
  a.   “Asset Sale Bonus” shall mean a lump sum cash (except as provided below) payment equal to Employee’s Pro Rata Share of 5% of the Gross Value of the aggregate consideration received in an Asset Sale Transaction. The Asset Sale Bonus will be paid to Employee on the Asset Sale Transaction closing date. Notwithstanding the foregoing, in the event that the proceeds from the Asset Sale Transaction consist entirely of equity consideration, Employee agrees, at the Company’s option, to take 50% of the Asset Sale Bonus in cash and 50% of the Asset Sale Bonus in the equity received by the Company if the Company is permitted to transfer such equity to Employee.

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  b.   “Asset Sale Transaction” shall mean any sale or other conveyance of assets of the Company (e.g., a sale of rights to a business program) or capital stock of any subsidiary of the Company in which the Gross Value of the aggregate consideration received is at least equal to $1,000,000, in any case other than a Financing Transaction — Level One, a Financing Transaction — Level Two or an M&A Transaction.
 
  c.   “Bonus” shall mean any one or a combination of an Asset Sale Bonus, a Financing Bonus, or an M&A Bonus.
 
  d.   “Cause” shall mean: (i) the commission of an act of fraud, embezzlement, theft or other criminal act constituting a felony; (ii) the willful or wanton disregard of the rules or policies of the Employer or its affiliates that results in a material loss, damage or injury to the Employer or its affiliates; (iii) the repeated failure of Employee to perform duties consistent with Employee’s position or to follow or comply with the reasonable directives of the Employer’s or its affiliates’ Board of Directors (or applicable officer in the case of ReGenesys, LLC) or Employee’s superiors after having been given notice thereof (e.g., the insubordination of Employee); or (iv) the material breach of any provision contained in a written non-competition, confidentiality or non-disclosure agreement between the Employer or any of its affiliates and Employee.
 
  e.   “Financing Bonus — Level One” shall mean a lump sum cash payment equal to two (2) months of Employee’s base salary, paid to Employee in two equal installments, the first being paid on the later of June 30, 2006 or the Financing Transaction — Level One closing date, and the second being paid on December 31, 2006. For the avoidance of doubt, a Financing Bonus — Level One can be paid only once.
 
  f.   “Financing Bonus — Level Two” shall mean a lump sum cash payment equal to an additional two (2) months of Employee’s base salary paid to Employee in two equal installments, the first being paid on the later of June 30, 2006 or the Financing Transaction — Level Two closing date, and the second being paid on December 31, 2006. A Financing Bonus — Level One, together with a Financing Bonus — Level Two, are referred to together herein as a “Financing Bonus.” For the avoidance of doubt, a Financing Bonus — Level Two can only be paid once.
 
  g.   “Financing Transaction — Level One” shall mean the receipt by the Company, or the promise to pay or make payments to the Company, of at least $10 million in the aggregate of non-contingent cash payments or investments, including without limitation license fees, up-front payments, payments in exchange for the issuance of capital stock of the Company, committed research payments, and any other form of cash payment that is not contingent on future events or milestones, in connection with one or

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      more collaborative, licensing, or equity (including debt securities that may be convertible into equity securities) financing transactions that close by December 31, 2006.
 
  h.   “Financing Transaction — Level Two” shall mean the receipt by the Company, or the promise to pay or make payments to make payments to the Company, of at least $25 million in the aggregate of non-contingent cash payments or investments, including without limitation license fees, up-front payments, payments in exchange for the issuance of capital stock of the Company, committed research payments, and any other form of cash payment that is not contingent on future events or milestones, in connection with one or more collaborative, licensing or equity (including debt securities that may be convertible into equity securities) financing transactions that close by December 31, 2006. For the avoidance of doubt, a Financing Transaction — Level Two includes any non-contingent cash payments from a Financing Transaction — Level One. For example, if the cash payments to the Company from a financing transaction are $15 million and another financing transaction is consummated at a later date (but prior to December 31, 2006) in which the cash payments to the Company are $10 million, both the Financing Transaction — Level One and the Financing Transaction — Level Two milestones will be met. If the cash payments to the Company from a financing transaction are $10 million and another financing transaction is consummated at a later date (but prior to December 31, 2006) in which the cash payments to the Company are $10 million, only the Financing Transaction — Level One milestone will be met (and only one Financing Bonus — Level One shall be payable).
 
  i.   “Gross Value” shall mean, with respect to consideration received by the Company, the value of all consideration (in all cash and non-cash forms) received. All such consideration shall be measured in actual dollars received, when paid in cash, and, when payable in a form other than cash, the fair market value of the non-cash consideration. The fair market value of any non-cash consideration shall be determined in good faith by the Board of Directors of Athersys.
 
  j.   “Key Employees” shall mean Dr. Gil Van Bokkelen, Dr. John Harrington, Dr. Kurt Brunden, Dr. Robert Deans, Mr. William (BJ) Lehmann, and Mrs. Laura Campbell.
 
  k.   “M&A Bonus” shall mean a lump sum cash (except as provided below) payment equal to the greater of (i) Employee’s Pro Rata Share of $1 million and (ii) Employee’s Pro Rata Share of 5% of the Gross Value of the aggregate consideration received in an M&A Transaction. The M&A Bonus will be paid to Employee on the M&A Transaction closing date. Notwithstanding the foregoing, in the event that the proceeds from the

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      M&A Transaction consist entirely of equity consideration payable to the Company, Employee agrees, at the Company’s or the surviving corporation’s option, to take 50% of the M&A Bonus in cash and 50% of the M&A Bonus in the equity received by the Company’s stockholders if the Company or surviving corporation is permitted to transfer such equity to Employee.
 
  l.   “M&A Transaction” shall mean (i) the sale, lease, assignment, transfer or other conveyance of all or substantially all of the assets or capital stock of Athersys (other than by way of merger or consolidation), or (ii) (A) Athersys consolidating with any person, (B) Athersys merging with and into any person, pursuant to which merger such person is the surviving entity, (C) any person merging with and into Athersys, pursuant to which merger Athersys is the surviving entity and the holders of capital stock of Athersys outstanding immediately prior to such merger hold less than a majority of the voting power of the capital stock of Athersys immediately after giving effect to the merger, or (D) any other transaction deemed to be an M&A Transaction per the non-executive members of the Board of Directors of Athersys.
 
  m.   “Pro Rata Share” shall mean a share of compensation equal to the percentage of Employee’s gross annual salary at the time of such measurement divided by the total gross annual salary of the Key Employees.
 
  n.   “Terminated Without Cause” shall mean the termination of Employee’s employment with the Company for any reason other than a termination for Cause.
  2.   Payment of Bonus; Effect of Termination of Employment.
  a.   Triggering Event for Financing Bonus. Upon the achievement by the Company of a Financing Transaction — Level One and/or a Financing Transaction — Level Two, and as long as Employee has maintained continuous employment with the Employer or the Company from the Effective Date hereof through the respective payment dates of any Financing Bonus (except as otherwise provided in Section 2.d. below), Employee shall be entitled to receive the applicable Financing Bonus, not to exceed four (4) months of salary in the aggregate.
 
  b.   Triggering Event for M&A Bonus. Upon the achievement by the Company of an M&A Transaction, and as long as Employee has maintained continuous employment with the Employer or the Company from the Effective Date hereof through the payment date of any M&A Bonus (except as otherwise provided in Section 2.d. below), Employee shall be entitled to receive the M&A Bonus.

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  c.   Triggering Event for Asset Sale Bonus. Upon the achievement by the Company of an Asset Sale Transaction, and as long as Employee has maintained continuous employment with the Employer or the Company from the Effective Date hereof through the payment date of any Asset Sale Bonus (except as otherwise provided in Section 2.d. below), Employee shall be entitled to receive the Asset Sale Bonus.
 
  d.   In the event that a Bonus has been earned, but, after such Bonus has been earned, Employee’s employment has been (i) Terminated Without Cause, (ii) terminated due to death or (iii) terminated due to disability on or prior to the payment dates of the Bonus, the Bonus will be paid to Employee, or his or her legal representative or guardian, as applicable, in the event of termination due to items (ii) or (iii) above, on the date Employee’s employment is terminated, provided that (A) in the case of item (i) above, Employee, and (B) in the case of items (ii) or (iii) above, Employee’s legal representative or guardian, as applicable, has executed a standard general release agreement.
 
  e.   Taxes. Payment of any Bonus will be subject to withholding of applicable income and employment taxes.
 
  f.   No Bonus. No Bonus will be payable hereunder to Employee if Employee’s employment is terminated voluntarily or for Cause prior to any Bonus payment date hereunder.
  3.   At-Will Employment. This Agreement does not guarantee or imply any right to continued employment for any period whatsoever. Employer and Employee acknowledge that the Employee’s employment is and shall continue to be at-will, as defined under applicable law.
 
  4.   Non-Disparagement. Employee agrees not to, directly or indirectly, engage in negative conduct regarding Company. Such conduct, which includes but is not limited to oral and written statements, is that which could adversely affect a current or prospective entity’s decision to do business with Company or that which could impugn, disparage or damage Company, or its officers’, directors’, or employees’ professional or business reputation. Additionally, Employee agrees to not, directly or indirectly, make or cause any third parties to engage in negative conduct towards Company. Further, Employee represents and warrants that he/she has not previously engaged in any negative conduct towards Company. The provisions of this Section 4 shall apply during the term of this Agreement and for a period of two (2) years after Employee’s employment terminates for any reason.
 
  5.   Nondisclosure of Terms.

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  a.   Employee and Company agree that the terms, conditions, amount, and fact of this Agreement are to be kept and shall remain confidential and are not to be disclosed, discussed, or divulged in any manner, except as required by law. This prohibition includes, but is not limited to, discussions with any print, television, internet, radio, or any other media. However, Employee may discuss the terms of this Agreement with immediate family members, legal counsel, and tax advisors (who shall also keep this Agreement confidential). Employee agrees that he or she will notify any such immediate family members, legal counsel, and tax advisors of the confidential nature of this Agreement.
 
  b.   In the event that Employee receives any order, subpoena or other compulsory legal process demanding production or disclosure of this Agreement, Employee agrees that he or she will promptly notify Company in writing of the requested disclosure, including the proposed date of the disclosure, the reason for the requested disclosure, and the identity of the individual or entity requesting the disclosure, at least ten (10) business days prior to the date that such disclosure is to be made or immediately upon receipt of the requested disclosure. Employee agrees not to oppose any action that Company might take with respect to any such requested disclosure.
  6.   Effect On Prior Agreements. Employee acknowledges and agrees that, with the exception of the Employment Agreement Relating to Intellectual Property and Confidential Information, the Option Agreements, the Employee Shareholder Agreement, the Employment Agreement, the Directors and Officers Indemnification Agreement, and the Non-Competition Agreement by and between the Company and Employee, this Agreement constitutes the entire agreement between the parties with respect to the subject matter herein and supersedes and extinguishes all prior negotiations and agreements, whether written or oral, between the parties concerning their employment relationship. Employee agrees to continue to honor the Employment Agreement Relating to Intellectual Property and Confidential Information, which remains in full force and effect.
 
  7.   Duration. The terms of this Agreement shall terminate upon the date that all obligations of the parties hereunder have been satisfied; provided, however, that this Agreement may be extended for an additional period or periods by resolution adopted by the Board of Directors at any time during the period that the Agreement is in effect; and provided, further, that the provisions of Sections 4 and 5 will survive termination of this Agreement.
 
  8.   Miscellaneous Provisions.
  a.   Whole Agreement. No agreements, representations or understandings (whether oral or written and whether express or implied) which are not

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      expressly set forth in this Agreement have been made or entered into by either party with respect to the subject matter hereof.
 
  b.   Modification. This Agreement may not be modified or terminated orally, but rather can be terminated or modified only by way of a writing, signed by both parties.
 
  c.   Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.
 
  d.   Remedies. In the event of a breach of this Agreement by any party, the other party shall have the right to exercise any and all remedies at law. Furthermore, Employee acknowledges and agrees that in the event Employee breaches the Agreement, Employee immediately forfeits any right to future payments under this Agreement. Employee further acknowledges and agrees that any breach by the Employee of this Agreement cannot be compensated by money damages alone, and therefore agrees that the Company, in addition to and without limiting Company’s right to any other remedy, shall have a right to obtain an injunction against Employee from any court of competent jurisdiction.
 
  e.   Choice of Law. The terms of this Agreement are to be construed and interpreted in accordance with the laws of the State of Ohio.
 
  f.   Successors and Assigns. This Agreement shall bind and inure to the benefit of and be enforceable by Employee, the Company and their respective heirs, executors, personal representatives, successors and assigns, except that neither party may assign any rights or delegate any obligations hereunder without the prior written consent of the other party. Notwithstanding anything to the contrary in the foregoing, Employee hereby consents to the assignment by the Company of all of its rights and obligations hereunder to any successor to the Company by merger or consolidation or purchase of all or substantially all of the Company’s assets.
 
  g.   Severability. The provisions of this Agreement are severable, and thus if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions will be binding and enforceable.

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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as of the day and year first written above.
                 
 
               
                             
[Employee Name]       Advanced Biotherapeutics, Inc.    
 
                           
 
              By:            
               
 
                  Name:   Gil Van Bokkelen    
 
                  Title:   President & CEO    
 
                           
             
Date       Date    
 
                           
Acknowledged By:                    
 
                           
Athersys, Inc.       ReGenesys, LLC    
 
                           
By:
              By:            
                     
 
  Name:   John Harrington           Name:   William (BJ) Lehmann    
 
  Title:   Executive Vice President & CSO           Title:   Vice President, Secretary & Treasurer    
 
                           
             
Date           Date    

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EXHIBIT 10.32
Executive
AMENDMENT NO. 1 TO
INCENTIVE AGREEMENT
     This Amendment No. 1 (this “Amendment”), dated as of May ___, 2007, to the Incentive Agreement (“Agreement”), dated as of [November ___], 2005, between [INSERT EMPLOYEE NAME] (“Employee”) and ADVANCED BIOTHERAPEUTICS, INC. (individually, “Employer,” and, collectively with its affiliates, Athersys, Inc. (“Athersys”) and ReGenesys, LLC, the “Company”).
     WHEREAS, the Employee is employed by Advanced Biotherapeutics, Inc., a wholly-owned subsidiary of Athersys; and
     WHEREAS, Athersys has previously consummated a Financing Transaction — Level One, and pursuant to the terms of the Agreement, the Employee has received a Financing Bonus — Level One; and
     WHEREAS, the Company and the Employee wish to amend the Agreement in connection with the planned merger (the “Merger”) of Athersys with a wholly owned subsidiary of a shell company (as such term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) that has a class of equity securities registered under Section 12 of the Exchange Act (“PubCo”); and
     WHEREAS, concurrent with and as a condition to the closing of the Merger, PubCo intends to conduct a private placement transaction pursuant to Regulation D promulgated under the Securities Act of 1933, as amended, whereby PubCo will receive gross proceeds of at least $40 million as consideration for the issuance of its equity securities (the “Offering”).
     NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
     1. Notwithstanding anything to the contrary in the Agreement, the consummation of the Offering shall be deemed a “Financing Transaction — Level Two” and the Employee shall be entitled to receive a Financing Bonus — Level Two that shall be payable as of the closing date of the Offering.
     2. Notwithstanding anything to the contrary in the Agreement, the consummation of the Merger shall not be deemed a “M&A Transaction” and the Employee shall not be entitled to a M&A Bonus in connection with the consummation of the Merger.
     3. This Amendment and the Agreement shall bind and inure to the benefit of and be enforceable by Employee, the Company and their respective heirs, executors, personal representatives, successors and assigns, except that neither party may assign any rights or delegate any obligations hereunder without the prior written consent of the other

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party. Notwithstanding anything to the contrary in the foregoing, Employee hereby consents to the assignment by the Company of all of its rights and obligations hereunder to any successor to the Company by merger or consolidation or purchase of all or substantially all of the Company’s assets, including, without limitation, any deemed assignment that occurs as a result of the consummation of the Merger.
     4. This Amendment may be executed in two or more counterparts, each of which constitutes an original, and all of which taken together shall constitute one and the same Amendment. It is understood that all parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by email delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
     5. This Amendment shall be construed and interpreted in accordance with the laws of the State of Ohio.
     6. Capitalized terms used but not otherwise defined herein have the meanings set forth in the Agreement.

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     IN WITNESS WHEREOF, each of the parties has executed this Amendment as of the day and year first written above.
               
[Employee Name]     Advanced Biotherapeutics, Inc.
 
 
    By:      
      Name:   Gil Van Bokkelen   
      Title:   Chief Executive Officer  
 
Date    Date   
 
Acknowledged By:

Athersys, Inc.   
   

ReGenesys, LLC
  
 
 
By:      By:      
  Name:  John Harrington      Name:  William (BJ) Lehmann   
  Title:  Executive Vice President & CSO     Title:  Vice President, Secretary & Treasurer  
 
Date    Date   
 

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EXHIBIT 10.33
SECURITIES PURCHASE AGREEMENT
     This SECURITIES PURCHASE AGREEMENT (this “Agreement”), dated as of June 8, 2007, is made by and among BTHC VI, Inc., a Delaware corporation with headquarters located at 12890 Hilltop Road, Argyle, Texas 76226 (the “Company”), Athersys, Inc., a Delaware corporation with headquarters located at 3201 Carnegie Avenue, Cleveland, Ohio 44115 (“Athersys”), and the investors listed on the Schedule of Investors attached hereto as Exhibit A-1 (individually, an “Investor” and collectively, the “Investors”).
BACKGROUND
     A. The Company and Athersys are parties to a Merger Agreement and Plan of Reorganization (the “ Merger Agreement ”) pursuant to which, in exchange for certain consideration payable to the security holders of Athersys prior to the Merger (the “ Athersys Stockholders ”), a wholly-owned subsidiary of the Company will be merged with and into Athersys, with Athersys as the surviving entity (the “ Merger ”). As a result of the Merger, Athersys will be a wholly-owned subsidiary of the Company. The closing date for the Merger is targeted for any date up to and including June 29, 2007 (the “ First Closing Date ”).
     B. The Company and each Investor are executing and delivering this Agreement in reliance upon the exemption from registration afforded by Section 4(2) of the Securities Act of 1933, as amended (the “ Securities Act ”), and Rule 506 of Regulation D (“ Regulation D ”) as promulgated by the United States Securities and Exchange Commission (the “ SEC ”) under the Securities Act.
     C. Each Investor, severally and not jointly, wishes to purchase, and the Company wishes to sell, upon the terms and conditions stated in this Agreement, (i) that aggregate number of shares of the Common Stock, par value $0.001 per share, of the Company (the “ Common Stock ”), set forth opposite such Investor’s name in column two (2) on the Schedule of Investors in Exhibit A-1 (“ Initial Common Shares ”), (ii) initial warrants, in substantially the form attached hereto as Exhibit E (the “ Initial Warrants ”) to acquire up to that number of additional shares of Common Stock set forth opposite such Investor’s name in column three (3) on the Schedule of Investors (as exercised, collectively, the “ Initial Warrant Shares ”).
     D. Each Investor listed on Exhibit A-2 hereto (the “ Second Closing Schedule of Investors ”), severally and not jointly, wishes to purchase, and the Company wishes to sell, upon the terms and conditions stated in this Agreement in a Second Closing (as defined in Section 2.1(b) below) (i) that aggregate number of shares of the Common Stock, par value $0.001 per share, of the Company, set forth opposite such Investor’s name in column two (2) on the Second Closing Schedule of Investors (“ Additional Common Shares ” and collectively with the Initial Common Shares, the “ Common Shares ”), (ii) warrants, in substantially the form attached hereto as Exhibit E (the “ Additional Warrants ” and collectively with the Initial Warrants, the “ Warrants ”) to acquire up to that number of additional shares of Common Stock set forth opposite such Investor’s name in column three (3) on such Second Closing Schedule of Investors (as exercised, collectively, the

 


 

Additional Warrant Shares ” and collectively with the Initial Warrant Shares, the “ Warrant Shares ”).
     E. The aggregate number of shares of Common Stock that is required to be sold in the First Closing is at least 8,000,000 shares, although it is currently contemplated that at least 12,600,000 shares (and up to a total of 13,000,000 shares) of Common Stock shall be sold in the First Closing, with the aggregate number of shares of Common Stock to be sold to Investors in both the First Closing and the Second Closing not to exceed 13,000,000 shares of Common Stock.
     F. The Common Shares, the Warrants and the Warrant Shares issued pursuant to this Agreement are collectively referred to herein as the “ Securities,” and the Common Shares and the Warrants are collectively referred to in the Private Placement Memorandum (as defined in Section 3.1(g) below) as “Units” .
     G. At the time of the First Closing, 3,210,523 shares of Common Stock will be issued to the Athersys Stockholders in connection with the Merger in accordance with the Merger Agreement.
     H. Athersys, the Agents (as defined in Section 3.1(o) below) and Signature Bank, as escrow agent (the “ Escrow Agent ”), have entered into an Escrow Agreement (the “ Escrow Agreement ”) to provide for the safekeeping of funds received and documents executed in connection with the offering of the Securities. Such funds shall be held in escrow until the Closing and delivered by the Escrow Agent on behalf of the Investors to the Company upon the satisfaction of the Company’s closing conditions.
     NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Company and the Investors agree as follows:
ARTICLE I
DEFINITIONS
     1.1 Definitions . In addition to the terms defined elsewhere in this Agreement, the following terms have the meanings indicated:
     “ Additional Common Shares ” has the meaning set forth in recitals to this Agreement.
     “ Additional Purchase Price ” has the meaning set forth in Section 2.1 .
     “ Additional Warrant Shares ” has the meaning set forth in recitals to this Agreement.
     “ Additional Warrants ” has the meaning set forth in recitals to this Agreement.
     “ Affiliate ” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 144 under the Securities Act.

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     “ Agents ” has the meaning set forth in Section 3.1(o) .
     “ Agreement ” has the meaning set forth in the preamble to this Agreement.
     “ Athersys” has the meaning set forth in the preamble to this Agreement.
     “ Athersys Counsel ” means Jones Day, counsel to Athersys.
     “ Beneficial Interest Holder ” has the meaning set forth in Section 3.3(a) .
     “ Benefit Arrangements ” means all material plans, contracts, bonuses, commissions, profit-sharing, savings, stock options, insurance, deferred compensation, or other similar fringe or employee benefits covering former or current employees of the Company or any of its Subsidiaries or under which the Company or any of its Subsidiaries has any obligation or liability.
     “ Best Efforts ” means the reasonable best efforts that a prudent person desirous of achieving a result would use in similar circumstances to ensure that such result is achieved as expeditiously as practical; provided, however , that an obligation to use Best Efforts under this Agreement does not require the Company to dispose of or make any change to its business, expend any material funds or incur any other material burden.
     “ Bridge Noteholders ” means the holders of the Bridge Notes that execute a joinder agreement agreeing to be bound by the terms of Article VI of this Agreement.
     “ Bridge Notes ” means the $2,500,000 in aggregate principal amount of convertible secured notes of Athersys issued in October 2006.
     “ Bridge Shares ” means the shares of Common Stock issuable pursuant to the exercise of the Bridge Warrants and the 531,781 shares of Common Stock issuable upon conversion of the Bridge Notes.
     “ Bridge Warrants ” means the warrants to acquire 132,945 shares of Common Stock issuable to the Bridge Noteholders in connection with the consummation of the offering the Securities.
     “ Business Day ” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed.
     “ Closing ” has the meaning set forth in Section 2.1(c) .
     “ Closing Date ” has the meaning set forth in Section 2.3 .
     “ Closing Price ” means, for any date, the closing price per share of the Common Stock for such date (or the nearest preceding date) on the primary Eligible Market or Trading Market on which the Common Stock is then listed or quoted.

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     “ Company” has the meaning set forth in the preamble to this Agreement.
     “ Company Counsel ” means (a) with respect to certain pre-Merger matters, Thelen Reid Brown Raysman & Steiner LLP, and (b) with respect to certain post-Merger matters, Jones Day, in each case counsel to the Company.
     “ Common Shares ” has the meaning set forth in the recitals to this Agreement.
     “ Common Stock ” has the meaning set forth in the recitals to this Agreement.
     “ Common Stock Equivalents ” means, collectively, Options and Convertible Securities.
     “ Contingent Obligation ” has the meaning set forth in Section 3.1(cc) .
     “ Convertible Securities ” means any capital stock or securities (other than Options) convertible into or exercisable or exchangeable for Common Stock.
     “ Covering Shares ” has the meaning set forth in Section 4.1(b) .
     “ Cut Back Securities ” has the meaning set forth in Section 6.8 .
     “ Disclosure Materials ” has the meaning set forth in Section 3.1(g) .
     “ Effective Date ” means the date that the Registration Statement is first declared effective by the SEC.
     “ Effectiveness Period ” has the meaning set forth in Section 6.1(b) .
     “ 8-K Filing ” has the meaning set forth in Section 4.5 .
     “ Eligible Market ” means any of the New York Stock Exchange, the American Stock Exchange, The Nasdaq Global Select Market, The Nasdaq Global Market, The Nasdaq Capital Market or the NASD OTC Bulletin Board.
     “ Environmental Laws ” has the meaning set forth in Section 3.1(ff) .
     “ Event ” has the meaning set forth in Section 6.1(d) .
     “ Event Payments ” has the meaning set forth in Section 6.1(d) .
     “ Exchange Act ” means the Securities Exchange Act of 1934, as amended.
     “ Excluded Events ” has the meaning set forth in Section 6.1(d)(ii) .
     “ Excluded Investors ” means Cowen and Company, LLC and its Affiliates, National Securities Corporation and its Affiliates, and any other Investor that executes a confidentiality

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agreement in connection with the receipt of material non-public information regarding the Company or Athersys.
     “ Filing Date ” means 45 days after the First Closing Date.
     “ First Closing” has the meaning set forth in Section 2.1(a) .
     “ First Closing Date” has the meaning set forth in recitals to this Agreement.
     “ GAAP ” has the meaning set forth in Section 3.1(h) .
     “ Hazardous Materials ” has the meaning set forth in Section 3.1(ff) .
     “ Indebtedness ” has the meaning set forth in Section 3.1(cc) .
     “ Indemnified Party ” has the meaning set forth in Section 6.4(c) .
     “ Indemnifying Party ” has the meaning set forth in Section 6.4(c) .
     “ Insolvent ” has the meaning set forth in Section 3.1(k) .
     “ Intellectual Property Rights ” has the meaning set forth in Section 3.1(v) .
     “ Initial Common Shares ” has the meaning set forth in recitals to this Agreement.
     “ Initial Purchase Price ” has the meaning set forth in Section 2.1 .
     “ Initial Warrant Shares ” has the meaning set forth in recitals to this Agreement.
     “ Investor ” has the meaning set forth in the preamble to this Agreement. For purposes of Article VI of this Agreement only, the term Investor shall also include the Agents and the Bridge Noteholders.
     “ knowledge of the Company ” means the knowledge of the Company and the Subsidiaries, including Athersys.
     “ Lien ” means any lien, charge, claim, security interest, encumbrance, right of first refusal or other restriction.
     “ Losses ” means any and all losses, claims, damages, liabilities, settlement costs and expenses, including, without limitation, reasonable attorneys’ fees, but excluding any decrease in the market price of the Common Stock.
     “ Material Adverse Effect ” means (i) a material adverse effect on the results of operations, assets, business, prospects or financial condition of the Company and the Subsidiaries, taken as a whole on a consolidated basis, or (ii) materially and adversely impair the Company’s ability to

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perform its obligations under any of the Transaction Documents, provided, that none of the following alone shall be deemed, in and of itself, to constitute a Material Adverse Effect: (i) a change in the market price or trading volume of the Common Stock or (ii) changes in general economic conditions or changes affecting the industry in which the Company operates generally (as opposed to Company-specific changes) so long as such changes do not have a disproportionate effect on the Company and its Subsidiaries taken as a whole.
     “ Material Permits ” has the meaning set forth in Section 3.1(x) .
     “ Options ” means any outstanding rights, warrants or options to subscribe for or purchase Common Stock or Convertible Securities.
     “ Person ” means any individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, or joint stock company.
     “ Placement Agency Agreement ” means that certain Placement Agency Agreement dated as of April 19, 2007 among Athersys and the Agents.
     “ Placement Agent Securities ” mean the Placement Agent Warrants and the Placement Agent Warrant Shares.
     “ Placement Agent Warrants ” mean the warrants to purchase Common Stock issuable to the Agents as partial consideration for their services as placement agents in connection with the sale of the Securities in accordance with the terms of the Placement Agency Agreement.
     “ Placement Agent Warrant Shares ” mean the shares of Common Stock issuable to the Agents or their designees upon exercise of the Placement Agent Warrants.
     “ Private Placement Memorandum ” has the meaning set forth in Section 3.1(g) .
     “ Proceeding ” means an action, claim, suit, investigation or proceeding, whether commenced or threatened in writing.
     “ Prospectus ” means the prospectus included in the Registration Statement (including, without limitation, a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A or Rule 430C promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by the Registration Statement, and all other amendments and supplements to the Prospectus including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.
     “ Purchase Price ” has the meaning set forth in Section 2.1 .
     “ Qualification Date ” has the meaning set forth in Section 6.1(c) .

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     “ Qualification Deadline ” has the meaning set forth in Section 6.1(c) .
     “ Radius ” means Radius Venture Partners II, LLC, Radius Venture Partners III, LLC or any of their respective Affiliates.
     “ Radius Director ” has the meaning set forth in Section 4.7 .
     “ Registrable Securities ” means the Common Shares and the Warrant Shares issued or issuable pursuant to the Transaction Documents or the Placement Agent Warrant Shares issued or issuable pursuant to the Placement Agent Warrants and the Bridge Shares, together with any securities issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing, provided, that a security shall cease to be a Registrable Security upon (a) sale pursuant to the Registration Statement or Rule 144 under the Securities Act or (b) such security becoming eligible for sale immediately and without restriction pursuant to Rule 144(k) under the Securities Act.
     “ Registration Statement ” means each registration statement required to be filed under Article VI of the Agreement, including (in each case) the Prospectus, amendments and supplements to such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference in such registration statement.
     “ Regulation D ” has the meaning set forth in the recitals to this Agreement.
     “ Related Person ” has the meaning set forth in Section 3.3 .
     “ Repurchase Notice ” has the meaning set forth in Section 6.1 .
     “ Repurchase Price ” has the meaning set forth in Section 6.1 .
     “ Required Effectiveness Date ” means the date which is the earliest of (a) ninety (90) days after the Filing Date and (b) if the Registration Statement does not become subject to review by the SEC, five (5) Trading Days after the Company receives written notification from the SEC that the Registration Statement will not be subject to review.
     “ Rule 144 ,” “ Rule 415 ,” and “ Rule 424 ” means Rule 144, Rule 415 and Rule 424, respectively, promulgated by the SEC pursuant to the Securities Act, as such Rules may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC having substantially the same effect as such Rule.
     “ SEC” has the meaning set forth in the recitals to this Agreement.
     “ SEC Reports ” has the meaning set forth in Section 3.1(g) .
     “ Second Closing” has the meaning set forth in Section 2.1(b) .

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     “ Second Closing Date” has the meaning set forth in Section 2.3 .
     “ Second Closing Notice” has the meaning set forth in Section 2.3 .
     “ Second Closing Schedule of Investors ” has the meaning set forth in the recitals to this Agreement.
     “ Securities ” has the meaning set forth in the recitals to this Agreement.
     “ Securities Act ” has the meaning set forth in the recitals to this Agreement.
     “ Shares ” means shares of the Company’s Common Stock.
     “ Shelf Registration Statement ” has the meaning set forth in Section 6.1(c) .
     “ Significant Investor ” means any Investor that purchases at least $3,000,000 of Securities pursuant to this Agreement.
     “ Short Sales ” has the meaning set forth in Section 3.2(h) .
     “ Subsidiary ” means any direct or indirect subsidiary of the Company, including Athersys after consummation of the Merger.
     “ Substitute Director ” has the meaning set forth in Section 4.7 .
     “ Trading Day ” means (a) any day on which the Common Stock is listed or quoted and traded on its primary Trading Market, (b) if the Common Stock is not then listed or quoted and traded on any Trading Market, then a day on which trading occurs on the Nasdaq Global Select Market (or any successor thereto), or (c) if trading ceases to occur on the Nasdaq Global Select Market (or any successor thereto), any Business Day.
     “ Trading Market ” means any Eligible Market, or any other national securities exchange, market or trading or quotation facility on which the Common Stock is then listed or quoted.
     “ Transaction Documents ” means this Agreement, including the schedules and exhibits attached hereto, the Warrants, the Transfer Agent Instructions, the Escrow Agreement, the Placement Agency Agreement and the Placement Agent Warrants.
     “ Transfer Agent ” means National City Bank, or any successor transfer agent for the Company.
     “ Transfer Agent Instructions ” means, with respect to the Company, the Irrevocable Transfer Agent Instructions, substantially in the form of Exhibit C , executed by the Company and delivered to and acknowledged in writing by the Transfer Agent.
     “ Warrants ” has the meaning set forth in the recitals to this Agreement.

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     “ Warrant Shares ” has the meaning set forth in the recitals to this Agreement.
     “ Wiring Institution ” has the meaning set forth in Section 3.3(b) .
     “ Withdrawing Director ” has the meaning set forth in Section 4.7 .
ARTICLE II
PURCHASE AND SALE
     2.1 Closings .
          (a) First Closing . Subject to the terms and conditions set forth in this Agreement, the Company shall issue and sell to each Investor, and each Investor shall, severally and not jointly, purchase from the Company on the First Closing Date, such number of Initial Common Shares and Initial Warrants set forth opposite such Investor’s name on Exhibit A-1 for the First Closing hereto under the headings “Common Shares” and “Warrants” (the “ First Closing ”). Notwithstanding anything to the contrary in this Agreement, up to 13,000,000 shares of Common Stock may be issued and sold at the First Closing.
          (b) Second Closing . The Company agrees to issue and sell to each Investor listed on the Second Closing Schedule of Investors, and each Investor agrees, severally and not jointly, to purchase from the Company on such Second Closing Date (as defined below), up to such number of Additional Common Shares and Additional Warrants set forth opposite such Investor’s name on the Second Closing Schedule of Investors for the Second Closing under the headings “Common Shares” and “Warrants” (the “ Second Closing ”). Notwithstanding the foregoing, the aggregate number of shares of Common Stock to be sold to Investors in both the First Closing and the Second Closing shall not exceed 13,000,000 shares of Common Stock.
          (c) Closing. The First Closing and the Second Closing are each referred to in this Agreement as a “ Closing. ” The date and time of each Closing shall occur on the applicable Closing Date at the offices of Jones Day, North Point, 901 Lakeside Avenue, Cleveland, Ohio 44114-1190 or remotely via the exchange of documents and signatures.
          (d) Purchase Price . The purchase price for each Investor of the Initial Common Shares and the related Initial Warrants to be purchased by each such Investor at the First Closing shall be the amount set forth opposite such Investor’s name on Exhibit A-1 for the First Closing (the “ Initial Purchase Price ”). The purchase price for each Investor of the Additional Common Shares and the related Additional Warrants to be purchased by each such Investor at the Second Closing shall be the amount set forth opposite such Investor’s name on the Second Closing Schedule of Investors at the Second Closing (the “ Additional Purchase Price ”, and together with the Initial Purchase Price, the “ Purchase Price ”).

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     2.2 First Closing Date . Subject to the terms and conditions set forth in this Agreement, the date and time of the First Closing shall be the First Closing Date (or such later date as is mutually agreed to by the Company and each Investor).
     2.3 Second Closing Date . Subject to the terms and conditions set forth in this Agreement, the date and time of the Second Closing (the “ Second Closing Date ,” and together with the First Closing Date, each a “ Closing Date ” and collectively, the “ Closing Dates ”) shall be 11:00 a.m., New York City Time, on the date mutually agreed to by the Company and the Investor listed in the Second Closing Schedule of Investors; provided , however , that such date is not expected to be later than five (5) Business Days following the First Closing Date.
     2.4 Closing Deliveries .
          (a) At the First Closing, the Company shall deliver or cause to be delivered to each Investor the following:
               (i) a legal opinion of (A) Company Counsel and (B) Athersys Counsel, in each case dated as of the date of such Closing, substantially in the form reasonably acceptable to counsel for the Agents and counsel for Radius; and
               (ii) duly executed Transfer Agent Instructions substantially in the form of Exhibit D hereto acknowledged by the Company’s transfer agent.
          (b) On the First Closing Date, each Investor shall deliver or cause to be delivered to the Company the Initial Purchase Price set forth opposite such Investor’s name on Exhibit A-1 hereto under the heading “Purchase Price” by paying United States dollars via bank, certified or personal check which has cleared prior to the First Closing Date or in immediately available funds, by wire transfer to the following escrow account:
Acct. Name: Signature Bank as Escrow Agent for Athersys, Inc.
ABA Number: 026013576
Acct Number: 1500892524
On the Second Closing Date, each Investor listed on the Second Closing Schedule of Investors shall pay the Additional Purchase Price set forth opposite such Investor’s name on the Second Closing Schedule of Investors to the Company for the Additional Common Shares to be issued and sold to such Investor at the Additional Closing by paying United States dollars via bank, certified or personal check which has cleared prior to the Second Closing Date or in immediately available funds, by wire transfer to the above-referenced escrow account.
          (c) The Company shall cause its Transfer Agent to issue one or more stock certificates to each Investor, free and clear of all restrictive and other legends (except as expressly provided in Section 4.1(b ) hereof), evidencing such number of Common Shares equal

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to the number of Shares set forth opposite such Investor’s name on Exhibit A-1 hereto or the Second Closing Schedule of Investors, as applicable, under the heading “Common Shares” registered in the name of such Investor within five (5) Business Days of the applicable Closing.
          (d) The Company shall cause its Transfer Agent to issue a Warrant to each Investor, issued in the name of such Investor, pursuant to which such Investor shall have the right to acquire such number of Warrant Shares set forth opposite such Investor’s name on Exhibit A-1 hereto or the Second Closing Schedule of Investors, as applicable, under the heading “Warrant Shares” issued in the name of such Investor within five (5) Business Days of the applicable Closing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
     3.1 Representations and Warranties of the Company . The Company hereby represents and warrants to the Investors as follows (which representations and warranties shall be deemed to apply, where appropriate, to each Subsidiary of the Company, including Athersys, after giving effect to the Merger):
          (a) Subsidiaries . The Company has no Subsidiaries other than Athersys and those listed in Schedule 3.1(a ) hereto. Except as disclosed in Schedule 3.1(n ) hereto, the Company owns, directly or indirectly, all of the capital stock or comparable equity interests of each Subsidiary free and clear of any Lien and all the issued and outstanding shares of capital stock or comparable equity interest of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights.
          (b) Organization and Qualification . Each of the Company and the Subsidiaries is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization (as applicable), with the requisite legal authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any Subsidiary is in violation of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to do business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect.
          (c) Authorization; Enforcement . The Company has the requisite corporate authority to enter into and to consummate the transactions contemplated by each of the Transaction Documents to which it is a party and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of each of the Transaction Documents to which it is a party by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company and no further consent or action is required by the Company, its Board of Directors or its

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stockholders. Each of the Transaction Documents to which it is a party has been (or upon delivery will be) duly executed by the Company and is, or when delivered in accordance with the terms hereof, will constitute, the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as may be limited by (i) applicable bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting the enforcement of creditors’ rights generally, and (ii) the effect of rules of law governing the availability of specific performance and other equitable remedies.
          (d) No Conflicts . The execution, delivery and performance of the Transaction Documents to which it is a party by the Company and the consummation by the Company of the transactions contemplated hereby and thereby do not, and will not, (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound, or affected, except to the extent that such conflict, default, termination, amendment, acceleration or cancellation right would not reasonably be expected to have a Material Adverse Effect, (iii) other than as contemplated in this Agreement, the other Transaction Documents or in the Placement Agency Agreement or except as disclosed in Schedule 3.1(d) hereto, result in any obligation of the Company or any of its Subsidiaries to make any payment as a result of the consummation of the Merger or the transactions contemplated by this Agreement or (iv) result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including, assuming the accuracy of the representations and warranties of the Investors set forth in Section 3.2 hereof, federal and state securities laws and regulations and the rules and regulations of any self-regulatory organization to which the Company or its securities are subject, including all applicable Trading Markets), or by which any property or asset of the Company or a Subsidiary is bound or affected, except to the extent that such violation would not reasonably be expected to have a Material Adverse Effect.
          (e) The Securities . The Securities (including the Warrant Shares) and the Placement Agent Securities (including the Placement Agent Warrant Shares) have been duly authorized, and the Common Shares, the Warrant Shares and the Placement Agent Warrant Shares, when issued and paid for in accordance with the Transaction Documents, will be validly issued, fully paid and non-assessable, free and clear of all Liens and shall not be subject to preemptive or similar rights of stockholders. Assuming the accuracy of the representations and warranties of (i) each Investor set forth in Section 3.2 hereof and (ii) the Agents set forth in the Placement Agency Agreement, it is not necessary in connection with the offer and sale of the Common Shares and the Warrants to the Investors to register such Common Shares and the Warrants under the Securities Act and the Securities will be issued in compliance with applicable federal and state securities laws.

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          (f) Capitalization .
                    (i) Immediately prior to the Merger, the aggregate number of shares and type of all authorized, issued and outstanding classes of capital stock, options and other securities of the Company (whether or not presently convertible into or exercisable or exchangeable for shares of capital stock of the Company) is set forth in Schedule 3.1(f) hereto.
                    (ii) Immediately prior to the Merger, the aggregate number of shares and type of all authorized, issued and outstanding classes of capital stock, options and other securities of Athersys (whether or not presently convertible into or exercisable or exchangeable for shares of capital stock of Athersys) is set forth in Schedule 3.1(f) hereto.
                    (iii) As of the date hereof, immediately prior to the First Closing and immediately after the Merger, the aggregate number of shares and type of all authorized, issued and outstanding classes of capital stock, options and other securities of the Company (whether or not presently convertible into or exercisable or exchangeable for shares of capital stock of the Company) is set forth in Schedule 3.1(f) hereto.
                    (iv) All outstanding shares of capital stock of the Company and Athersys are duly authorized, validly issued, fully paid and nonassessable and have been issued in compliance in all material respects with all applicable securities laws.
                    (v) Except as disclosed in Schedule 3.1(f) hereto and except in connection with the sale of the Securities, as of the date hereof, immediately prior to the First Closing and immediately after the Merger, the Company does not have outstanding any other options, warrants, script rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or entered into any agreement giving any Person any right to subscribe for or acquire, any shares of Common Stock or Common Stock Equivalents. Except as set forth on Schedule 3.1(f) hereto, and except for customary adjustments as a result of stock dividends, stock splits, combinations of shares, reorganizations, recapitalizations, reclassifications or other similar events, as of the date hereof, there are no anti-dilution or price adjustment provisions contained in any security issued by the Company (or in any agreement providing rights to security holders), and the issuance and sale of the Securities will not obligate the Company to issue shares of Common Stock or other securities to any Person (other than the Investors) and will not result in a right of any holder of securities to adjust the exercise, conversion, exchange or reset price under such securities. To the knowledge of the Company, except as disclosed in the SEC Reports and any Schedules filed with the SEC pursuant to Rule 13d-1 of the Exchange Act by reporting persons or in Schedule 3.1(f) hereto and except in connection with the sale of the Securities, as of the date hereof, no Person or group of related Persons beneficially owns (as determined pursuant to Rule 13d-3 under the Exchange Act), or has the right to acquire, by agreement with or by obligation binding upon the Company, beneficial ownership of in excess of 5% of the outstanding Common Stock.
          (g) SEC Reports . The Company has filed all reports required to be filed by it under the Exchange Act, including pursuant to Section 13(a) or Section 15(d) thereof, for the 12

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months preceding the date hereof (or for such shorter period the Company was required to file such reports) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension and has filed all reports required to be filed by it under the Exchange Act, including pursuant to Section 13(a) or Section 15(d) thereof, for the two years preceding the date hereof. Such reports required to be filed by the Company under the Exchange Act, including pursuant to Section 13(a) or Section 15(d) thereof, together with any materials filed or furnished by the Company under the Exchange Act, whether or not any such reports were required being collectively referred to herein as the “ SEC Reports ” and, together with this Agreement, including the Schedules and Exhibits hereto, and Athersys’ Confidential Private Placement Memorandum, dated April 19, 2007, and any amendment or supplement thereto (the “ Private Placement Memorandum ”), are collectively referred to as the “ Disclosure Materials ”. As of their respective dates, the SEC Reports filed by the Company complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder, and none of the SEC Reports, when filed by the Company, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
          (h) Financial Statements . The financial statements of the Company included in the SEC Reports comply in all material respects with applicable the rules and regulations of the SEC with respect thereto as in effect at the time of filing. Such financial statements and the financial statements of Athersys included in the Private Placement Memorandum, have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“ GAAP ”), except as may be otherwise specified in such financial statements, the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP or may be condensed or summary statements, and fairly present in all material respects the consolidated financial position of the Company and Athersys, as applicable, as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments.
          (i) Absence of Undisclosed Liabilities Except (a) as disclosed in the SEC Reports or the Private Placement Memorandum, (b) current liabilities incurred and obligations under agreements entered into in the usual and ordinary course of business and (c) as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, neither the Company nor any of its Subsidiaries has any debt, obligation or liability (whether accrued, absolute, contingent, liquidated or otherwise, whether due or to become due, whether or not known to the Company) arising out of any transaction entered into at or prior to the Closing, or any act or omission at or prior to the Closing, or any state of facts existing at or prior to the Closing, including taxes with respect to or based upon the transactions or events occurring at or prior to the Closing, and including, without limitation, unfunded past service liabilities under any pension, profit sharing or similar plan.

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          (j) Material Agreements . As of the date hereof and prior to the Merger, all material agreements to which the Company or any Subsidiary is a party or to which the property or assets of the Company or any Subsidiary are subject are included as part of or identified in the SEC Reports or the Private Placement Memorandum, except as disclosed on Schedule 3.1(j) . Except as described in Schedule 3.1(j) , neither the Company nor any Subsidiary, except in each case as would not, individually or in the aggregate, reasonably be expected to have or result in a Material Adverse Effect, is in default under or in violation of (and no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or any Subsidiary received written notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived).
          (k) Absence of Certain Developments . Since December 31, 2006, except as disclosed in the SEC Reports or the Private Placement Memorandum and except in connection with the Merger, (i) there has been no event, occurrence or development that, individually or in the aggregate, has had or that would result in a Material Adverse Effect, (ii) the Company has not incurred any material liabilities other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or required to be disclosed in filings made with the SEC, (iii) the Company has not altered its method of accounting or the changed its auditors, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders, in their capacities as such, or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock (except for repurchases by the Company of shares of capital stock or options therefor held by current or former employees, officers, directors, or consultants pursuant to Athersys’ incentive plans being terminated in connection with the Merger or an option of the Company to repurchase such shares upon the termination of employment or services), and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company stock-based plans. Except as disclosed in the SEC Reports, the Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. After giving effect to the transactions contemplated hereby to occur at the applicable Closing, the Company will not be Insolvent (as defined below). For purposes of this Section 3.1(k) , “Insolvent” means (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3.1(y) ), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

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          (l) Absence of Litigation . Except as disclosed in the SEC Reports or the Private Placement Memorandum, there is no Proceeding before or by any court, public board, government agency, self-regulatory organization or body pending or, to the knowledge of the Company, threatened in writing against or affecting the Company or any of its Subsidiaries that would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
          (m) Compliance with Law .
                    (i) Neither the Company nor any Subsidiary, except in each case as would not, individually or in the aggregate, reasonably be expected to have or result in a Material Adverse Effect, (A) is in violation of any order of any applicable court, arbitrator or governmental body, or (B) is or has been in violation of any applicable statute, rule or regulation of any governmental authority.
                    (ii) The Company and the Subsidiaries are in compliance, and for the past three years have been in compliance, with all applicable rules and regulations of the United States Food and Drug Administration (“ FDA ”) (including the “Good Manufacturing Practices” regulations, if and when applicable), and all applicable rules and regulations of any analogous foreign regulatory authority. The Company and its subsidiaries have developed and maintain quality control procedures in accordance with applicable rules and regulations of the FDA and any analogous foreign regulatory authority. None of the products manufactured, marketed, or currently in development by the Company or the Subsidiaries has been the subject of any voluntary or involuntary recall or any governmental investigation other than routine inspections of the Subsidiaries’ facilities and any United States and international regulatory approvals or premarket notifications therefor are owned by and registered in the name one of the Subsidiaries and are in full force and effect. Neither the Company nor any of the Subsidiaries has received any notice from the FDA or any other federal, state or foreign regulatory agency questioning its practices or threatening to impose any penalties or sanctions, and neither the Company nor any of the Subsidiaries is aware of any intent to deliver any such notice.
          (n) Title to Assets; Condition of Properties . The Company and the Subsidiaries have good and marketable title to all real property owned by them that is material to the business of the Company and the Subsidiaries and good and marketable title in all tangible personal property owned by them that is material to the business of the Company and the Subsidiaries, in each case free and clear of all Liens, except as described in Schedule 3.1(n) and except for Liens that do not, individually or in the aggregate, have or result in a Material Adverse Effect. Any real property and facilities held under lease by the Company and the Subsidiaries are held by them under leases that are valid, binding and enforceable against the Company or such Subsidiary and, to the Company’s knowledge, the other parties thereto. All facilities, machinery, equipment, fixtures, vehicles and other properties owned, leased or used by the Company and the Subsidiaries and necessary for their respective businesses are in good operating condition and repair, are reasonably fit and usable for the purposes for which they are being used, are adequate and sufficient for the Company’s or such Subsidiary’s business.

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          (o) No General Solicitation; Placement Agent’s Fees . Neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf (other than the Agents and their respective Affiliates, with respect to whom the Company makes no representation or warranty), has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with the offer or sale of the Securities. The Company shall be responsible for the payment of any placement agent’s fees, financial advisory fees, or brokers’ commission (other than for persons engaged by any Investor or its investment advisor) relating to or arising out of the issuance of the Securities pursuant to this Agreement. The Company shall pay, and hold each Investor harmless against, any Loss arising in connection with any such claim for fees arising out of the issuance of the Securities pursuant to this Agreement. Athersys acknowledges that it has engaged Cowen and Company, LLC and National Securities Corporation as its exclusive placement agents (the “ Agents ”) in connection with the sale of the Securities. Other than the Agents, the Company has not engaged any placement agent or other agent in connection with the sale of the Securities.
          (p) Private Placement . Neither the Company nor any of its Affiliates, nor any Person acting on its or their behalf (other than the Agents and their respective Affiliates, with respect to whom the Company makes no representation or warranty) has, directly or indirectly, at any time within the past six months, made any offer or sale of any security or solicitation of any offer to buy any security under circumstances that would (i) eliminate the availability of the exemption from registration under the Securities Act under Section 4(2) thereof in connection with the offer and sale by the Company of the Securities as contemplated hereby or (ii) cause the offering of the Securities pursuant to the Transaction Documents to be integrated with prior offerings by the Company for purposes of any applicable law, regulation or stockholder approval provisions, including, without limitation, under the rules and regulations of any Trading Market. The Company is not required to be registered as an “investment company” within the meaning of the Investment Company Act of 1940, as amended. The Company is not required to be registered as a United States real property holding corporation within the meaning of the Foreign Investment in Real Property Tax Act of 1980.
          (q) Listing and Maintenance Requirements . The Company has not, in the twelve months preceding the date hereof, received notice (written or oral) from any Trading Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading Market. The Company is in compliance with all applicable listing and maintenance requirements of any such Trading Market.
          (r) Registration Rights . Except as contemplated pursuant to this Agreement, the Company has not granted or agreed to grant to any Person any rights (including “piggy-back” registration rights) to have any securities of the Company registered pursuant to the Registration Statement contemplated by Section 6.1(a) that have not been satisfied or waived.
          (s) Application of Takeover Protections . There is no control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other

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similar anti-takeover provision under the Company’s charter documents or the laws of its state of incorporation that is or could become applicable to any of the Investors as a result of the Investors and the Company fulfilling their obligations or exercising their rights under the Transaction Documents, including, without limitation, as a result of the Company’s issuance of the Securities and the Investors’ ownership of the Securities.
          (t) Disclosure . The Company confirms that neither it nor any of its officers, directors or, to its knowledge, Affiliates has knowingly provided any of the Investors (other than Excluded Investors) or their agents or counsel with any information that constitutes or might constitute material, nonpublic information (other than the existence and terms of the issuance of Securities, as contemplated by this Agreement). The Company understands and confirms that each of the Investors will rely on the foregoing representations in effecting transactions in securities of the Company (other than Excluded Investors). All disclosure provided by the Company (including by Athersys) to the Investors regarding the Company, its business and the transactions contemplated hereby, including the Schedules to this Agreement, furnished by or on the behalf of the Company are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. To the Company’s knowledge, except for the Merger and the transactions contemplated by this Agreement, no event or circumstance has occurred or information exists with respect to the Company or any of its Subsidiaries or its or their respective businesses, properties, operations or financial condition, which, under applicable law, rule or regulation, requires public disclosure or announcement by the Company but which has not been so publicly announced or disclosed. The Company acknowledges and agrees that no Investor (other than Excluded Investors) makes or has made any representations or warranties with respect to the transactions contemplated hereby other than those set forth in the Transaction Documents.
          (u) Acknowledgment Regarding Investors’ Purchase of Securities . Based upon the assumption that the transactions contemplated by this Agreement are consummated in all material respects in conformity with the Transaction Documents, the Company acknowledges and agrees that each of the Investors (other than the Agents) is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby. The Company further acknowledges that no Investor (other than the Agents) is acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to this Agreement and the transactions contemplated hereby and any advice given by any Investor (other than the Agents) or any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby and thereby is merely incidental to the Investors’ purchase of the Securities. The Company further represents to each Investor that the Company’s decision to enter into this Agreement has been based solely on the independent evaluation of the transactions contemplated hereby by the Company and its representatives.
          (v) Patents and Trademarks . To the Company’s knowledge, the Company and the Subsidiaries own, or possess adequate rights or licenses to use, all registered trademarks, trade

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names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets and other intellectual property rights (“ Intellectual Property Rights ”) necessary to conduct their respective businesses now conducted. None of the Company’s or the Subsidiaries’ Intellectual Property Rights have expired, or are expected to expire, within six months from the date of this Agreement. The Company does not have any knowledge of any infringement by the Company or the Subsidiaries of Intellectual Property Rights of others. Except as set forth on Schedule 3.1(v) hereto, there is no Proceeding being made or brought, or to the knowledge of the Company, being threatened in writing, against the Company or the Subsidiaries regarding its Intellectual Property Rights.
          (w) Insurance . The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses and location in which the Company and the Subsidiaries are engaged.
          (x) Regulatory Permits . The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports and the Private Placement Memorandum (“ Material Permits ”), except where the failure to possess such permits would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, and neither the Company nor any Subsidiary has received any written notice of Proceedings relating to the revocation or modification of any Material Permit.
          (y) Transactions With Affiliates and Employees . Except as set forth in the Company’s SEC Reports or in the Private Placement Memorandum, none of the officers, directors or employees of the Company is presently a party to any transaction that would be required to be reported pursuant to Item 404 of Regulation S-K promulgated under the Securities Act with the Company or any of its Subsidiaries (other than for ordinary course services as employees, officers or directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any such officer, director or employee or, to the Company’s knowledge, any corporation, partnership, trust or other entity in which any such officer, director, or employee has a substantial interest or is an officer, director, trustee or partner.
          (z) Internal Accounting Controls . The Company and the Subsidiaries, taken as a whole, maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the

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existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
          (aa) Sarbanes-Oxley Act . The Company is in compliance in all material respects with applicable requirements of the Sarbanes-Oxley Act of 2002 and applicable rules and regulations promulgated by the SEC thereunder, except where such noncompliance would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
          (bb) Foreign Corrupt Practices . Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or other Person acting on behalf of the Company or any of its Subsidiaries has, in the course of its actions for, or on behalf of, the Company (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any foreign or domestic government official or employee.
          (cc) Indebtedness . Except as disclosed in the SEC Reports, the Private Placement Memorandum or Schedule 3.1(cc) , neither the Company nor any of its Subsidiaries (i) has any outstanding Indebtedness (as defined below), (ii) is in violation of any term of or in default under any contract, agreement or instrument relating to any Indebtedness, except where such violations and defaults would not result, individually or in the aggregate, in a Material Adverse Effect, or (iii) is a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s officers, has or is expected to have a Material Adverse Effect. For purposes of this Agreement: (x) “Indebtedness” of any Person means, without duplication (A) all indebtedness for borrowed money, (B) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (other than trade payables entered into in the ordinary course of business), (C) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (D) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses, (E) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to any property or assets acquired with the proceeds of such indebtedness (even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such property), (F) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principles, consistently applied for the periods covered thereby, is classified as a capital lease, (G) all indebtedness referred to in clauses (A) through (F) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, charge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which

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owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (H) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (A) through (G) above; and (y) “Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto.
          (dd) Employee Matters .
                    (i) The Company and its Subsidiaries are in compliance with all applicable laws regarding employment, wages, hours, equal opportunity, collective bargaining and payment of social security and other taxes except to the extent that noncompliance would not, in the aggregate, reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or employs any member of a union. Neither the Company nor any of its Subsidiaries is engaged in any unfair labor practice or discriminatory employment practice, and no complaint has been filed or, to the Company’s knowledge, threatened to be filed against the Company or any of its Subsidiaries with or by the National Labor Relations Board, the Equal Employment Opportunity Commission or any other administrative agency, federal or state, that regulates labor or employment practices, nor is any grievance filed or, to the Company’s knowledge, threatened to be filed, against the Company or any Subsidiary by any employee pursuant to any collective bargaining or other employment agreement to which the Company or any Subsidiary is a party or is bound. The Company and its Subsidiaries are in compliance with all applicable foreign, federal, state and local laws and regulations regarding occupational safety and health standards except to the extent that noncompliance would not reasonably be expected to have a Material Adverse Effect, and has received no complaints from any foreign, federal, state or local agency or regulatory body alleging violations of any such laws and regulations.
                    (ii) Except as disclosed in the SEC Reports or in the Private Placement Memorandum, no executive officer of the Company or any of its Subsidiaries has notified the Company or any such Subsidiary that such officer intends to terminate such officer’s employment with the Company or any such Subsidiary. To the knowledge of the Company or any such Subsidiary, no executive officer of the Company or any of its Subsidiaries is in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement, non-competition agreement, or any other contract or agreement or any restrictive covenant between the Company or any Subsidiary and such executive officer. All sums required to be paid prior to the Closing Date for employee compensation and benefits, and all vacation time owing to any employees of the Company or any of its Subsidiaries as of the Closing Date, has either been paid or accrued on the accounting records of the Company and its Subsidiaries.

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                    (iii) To the knowledge of the Company, the Benefit Arrangements have been administered in substantial compliance with their terms and with the requirements of applicable law. All payments made by the Company and its Subsidiaries to current or former employees of the Company or any of its Subsidiaries prior to the Closing Date pursuant to the Benefit Arrangements have been or, to the knowledge of the Company, will be deductible under the Internal Revenue Code of 1986, as amended.
     (ee) Labor Matters . The Company and its Subsidiaries are in compliance in all material respects with all applicable federal, state, local and foreign laws and regulations respecting labor, employment practices, benefits, terms and conditions of employment and wages and hours, except where failure to be in compliance would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
     (ff) Environmental Laws . The Company and its Subsidiaries (i) are in compliance with any and all Environmental Laws (as hereinafter defined), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit, license or approval where, in each of the foregoing clauses (i), (ii) and (iii), the failure to so comply would be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. The term “Environmental Laws” means all federal, state, local or foreign laws relating to pollution or protection of human health (with respect to exposure to releases of Hazardous Materials into the environment) or the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata), including, without limitation, laws relating to emissions, discharges, releases or threatened releases of Hazardous Materials into the environment, or otherwise relating to the manufacture, processing, distribution, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as all legally binding codes, decrees, injunctions, judgments, orders or regulations issued, entered or promulgated thereunder. The term “Hazardous Materials” means chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes as defined in or regulated under any Environmental Law.
     (gg) Subsidiary Rights . The Company or one of its Subsidiaries has the unrestricted right to vote, and (subject to limitations imposed by applicable law) to receive dividends and distributions on, all capital stock or other equity securities of its Subsidiaries as owned by the Company or such Subsidiary.
     (hh) Tax Status. The Company and each of its Subsidiaries (i) has made or filed all foreign, federal and state income and all other material tax returns, reports and declarations required by any jurisdiction to which it is subject to be filed prior to the date hereof, (ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations, except those being contested in good faith and (iii) has set aside on its books provision reasonably adequate for the payment of all taxes for periods ending on or prior to the date hereof for which a tax return, report or declaration has not yet been filed or for periods that include but do not end on

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the date hereof. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction.
     3.2 Representations, Warranties and Covenants of the Investors . Each Investor hereby, as to itself only and for no other Investor, represents, warrants and covenants to the Company as follows:
          (a) Organization; Authority . Such Investor is either (i) an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with the requisite corporate, partnership or other power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise to carry out its obligations hereunder and thereunder or (ii) a natural person who has reached the age of 21 with the requisite power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents. The purchase by such Investor of the Securities hereunder has been duly authorized by all necessary corporate, partnership or other action on the part of such Investor. This Agreement has been duly executed and delivered by such Investor and constitutes the valid and binding obligation of such Investor, enforceable against it in accordance with its terms, except as may be limited by (i) applicable bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting the enforcement of creditors’ rights generally, and (ii) the effect of rules of law governing the availability of specific performance and other equitable remedies.
          (b) No Public Sale or Distribution . Such Investor is (i) acquiring the Common Shares and the Warrants and (ii) upon exercise of the Warrants will acquire the Warrant Shares issuable upon exercise thereof, in the ordinary course of business for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered under the Securities Act or under an exemption from such registration and in compliance with applicable federal and state securities laws, and such Investor does not have a present arrangement to effect any distribution of the Securities to or through any person or entity; provided , however , that by making the representations herein, such Investor does not agree to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act.
          (c) Investor Status . At the time such Investor was offered the Securities, it was, and at the date hereof it is, an “accredited investor” as defined in Rule 501(a) under the Securities Act or a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities Act. Such Investor is not a registered broker dealer registered under Section 15(a) of the Exchange Act, or a member of the NASD, Inc. or an entity engaged in the business of being a broker dealer. Except as otherwise disclosed in writing to the Company on Exhibit B-2 (attached hereto) on or prior to the date of this Agreement, such Investor is not affiliated with any broker dealer registered under Section 15(a) of the Exchange Act, or a member of the NASD, Inc. or an entity engaged in the business of being a broker dealer.
          (d) Experience of Such Investor . Such Investor, either alone or together with its representatives has such knowledge, sophistication and experience in business and financial

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matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities, and has so evaluated the merits and risks of such investment. Such Investor understands that it must bear the economic risk of this investment in the Securities indefinitely, and is able to bear such risk and is able to afford a complete loss of such investment.
          (e) Access to Information . Such Investor acknowledges that it has reviewed the Disclosure Materials and has been afforded: (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Securities and the merits and risks of investing in the Securities; (ii) access to information (other than material non-public information) about the Company and the Subsidiaries and their respective financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment. Neither such inquiries nor any other investigation conducted by or on behalf of such Investor or its representatives or counsel shall modify, amend or affect such Investor’s right to rely on the truth, accuracy and completeness of the Disclosure Materials and the Company’s representations and warranties contained in the Transaction Documents. Such Investor acknowledges receipt of copies of the SEC Reports which the Company has made available to such Investor through the EDGAR system.
          (f) No Governmental Review . Such Investor understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of the investment in the Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities.
          (g) No Conflicts . The execution, delivery and performance by such Investor of this Agreement and the consummation by such Investor of the transactions contemplated hereby will not (i) result in a violation of the organizational documents, if any, of such Investor or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which such Investor is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws) applicable to such Investor, except in the case of clauses (ii) and (iii) above, for such that are not material and do not otherwise affect the ability of such Investor to consummate the transactions contemplated hereby.
          (h) Prohibited Transactions . No Investor, directly or indirectly, and no Person acting on behalf of or pursuant to any understanding with any Investor, has engaged in any purchases or sales of any securities, including any derivatives, of the Company (including, without limitation, any Short Sales involving any of the Company’s securities) (a “ Transaction ”) since the time that such Investor was first contacted by the Company, Athersys, the Agents or any other Person regarding an investment in the Company. Such

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Investor covenants that neither it nor any Person acting on its behalf or pursuant to any understanding with such Investor will engage, directly or indirectly, in any Transactions prior to the time the transactions contemplated by this Agreement are publicly disclosed. “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act and all types of direct and indirect stock pledges, forward sale contracts, options, puts, calls, short sales, swaps, derivatives and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker-dealers or foreign regulated brokers.
          (i) Restricted Securities . The Investors understand that the Securities are characterized as “restricted securities” under the U.S. federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Securities Act only in certain limited circumstances.
          (j) Legends . It is understood that, except as provided in Section 4.1(b) of this Agreement, certificates evidencing such Securities may bear the legend set forth in Section 4.1(b)
          (k) No Legal, Tax or Investment Advice . Such Investor understands that nothing in this Agreement or any other materials presented by or on behalf of the Company to the Investor in connection with the purchase of the Securities constitutes legal, tax or investment advice. Such Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Securities. Such Investor understands that the Agents have acted solely as the agent of the Company in this placement of the Securities, and that the Agents make no representation or warranty with regard to the merits of this transaction or as to the accuracy of any information such Investor may have received in connection therewith. Such Investor acknowledges that he has not relied on any information or advice furnished by or on behalf of the Agents.
          3.3 Patriot Act Compliance . To induce the Company to accept the Investor’s investment, each Investor severally and not jointly hereby makes the following representations, warranties and covenants to the Company:
          (a) The undersigned represents and warrants that no holder of any beneficial interest in the Investor (each a “ Beneficial Interest Holder ”) and, no Related Person (in the case the undersigned is an entity) is or will be:
                    (i) A person or entity whose name appears on the list of specially designated nationals and blocked persons maintained by the Office of Foreign Asset Control from time to time;
                    (ii) A Foreign Shell Bank; or

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          (iii) A person or entity resident in or whose subscription funds are transferred from or through an account in a Non-Cooperative Jurisdiction.
     (b) The Investor represents that the bank or other financial institution (the “ Wiring Institution ”) from which the Investor’s funds will be wired is located in a FATF Country.
     (c) The Investor represents that:
          (i) Neither it, any Beneficial Interest Holder nor any Related Person (in the case of the undersigned is an entity) is a Senior Foreign Political Figure, any member of a Senior Foreign Political Figure’s Immediate Family or any Close Associate of a Senior Foreign Political Figure; or
          (ii) Neither it, any Beneficial Interest Holder nor any Related Person (in the case the undersigned is an entity) is resident in, or organized or chartered under the laws of, a jurisdiction that has been designated by the Secretary of the Treasury under Section 311 or 312 of the USA PATRIOT Act as warranting special measures due to money laundering concerns.
          (iii) Its investment funds do not originate from, nor will they be routed through, an account maintained at a Foreign Shell Bank, an “offshore bank,” or a bank organized or chartered under the laws of a Non-Cooperative Jurisdiction.
        (d) For purposes of this Section 3.3 , the following definitions shall apply:
      Close Associate : With respect to a Senior Foreign Political Figure, a person who is widely and publicly known internationally to maintain an unusually close relationship with the Senior Foreign Political Figure, and includes a person who is in a position to conduct substantial domestic and international financial transactions on behalf of the Senior Foreign Political Figure.
      FATF : The Financial Action Task Force on Money Laundering.
      FATF Country : A country that is a member of FATF. As of September 1, 2003, the countries which are members of FATF are: Argentina; Australia; Austria; Belgium; Brazil; Canada; Denmark; Finland; France; Germany; Greece; Hong Kong; Iceland; Ireland; Italy; Japan; Luxembourg; Mexico; Kingdom of the Netherlands; New Zealand; Norway; Portugal; Singapore; South Africa; Spain; Sweden; Switzerland; Turkey; United Kingdom and United States. For a current list of FATF members see http://www1.oecd.org/fatf/Members_en.htm.
      Foreign Bank : An organization that (i) is organized under the laws of a country outside the United States; (ii) engages in the business of banking; (iii) is recognized as a bank by the bank supervisory or monetary authority of the country of its organization or principal banking operations; (iv) receives deposits to a substantial extent in the regular course of its business; and (v) has the power to accept demand deposits, but does not include the U.S. branches or agencies of a foreign bank.

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      Foreign Shell Bank : A Foreign Bank without a Physical Presence in any country, but does not include a Regulated Affiliate.
      Government Entity : Any government or any state, department or other political subdivision thereof, or any governmental body, agency, authority or instrumentality in any jurisdiction exercising executive, legislative, regulatory or administrative functions of or pertaining to government.
      Immediate Family : With respect to a Senior Foreign Political Figure, typically includes the political figure’s parents, siblings, spouse, children and in-laws.
      Non-Cooperative Jurisdiction : Any foreign country or territory that has been designated as non-cooperative with international anti-money laundering principles or procedures by an intergovernmental group or organization, such as FATF, of which the United States is a member and with which designation the United States representative to the group or organization continues to concur. See http://www1.oecd.org/fatf/NCCT_en.htm for FATF’s list of non-cooperative countries and territories.
      Physical Presence : A place of business that is maintained by a Foreign Bank and is located at a fixed address, other than solely a post office box or an electronic address, in a country in which the Foreign Bank is authorized to conduct banking activities, at which location the Foreign Bank: (a) employs one or more individuals on a full-time basis; (b) maintains operating records related to its banking activities; and (c) is subject to inspection by the banking authority that licensed the Foreign Bank to conduct banking activities.
      Publicly Traded Company : An entity whose securities are listed on a recognized securities exchange or quoted on an automated quotation system in the U.S. or country other than a Non-Cooperative Jurisdiction or a wholly-owned subsidiary of such an entity.
      Qualified Plan : A tax qualified pension or retirement plan in which at least 100 employees participate that is maintained by an employer that is organized in the U.S. or is a U.S. Government Entity.
      Regulated Affiliate : A Foreign Shell Bank that: (a) is an affiliate of a depository institution, credit union, or Foreign Bank that maintains a Physical Presence in the U.S. or a foreign country, as applicable; and (b) is subject to supervision by a banking authority in the country regulating such affiliated depository institution, credit union, or Foreign Bank.
      Related Person : With respect to any entity, any interest holder, director, senior officer, trustee, beneficiary or grantor of such entity; provided that in the case of an entity that is a Publicly Traded Company or a Qualified Plan, the term “Related Person” shall exclude any interest holder holding less than 5% of any class of securities of such Publicly Traded Company and beneficiaries of such Qualified Plan.

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      Senior Foreign Political Figure : A senior official in the executive, legislative, administrative, military or judicial branches of a non-U.S. government (whether elected or not), a senior official of a major non-U.S. political party, or a senior executive of a non-U.S. government-owned corporation. In addition, a Senior Foreign Political Figure includes any corporation, business or other entity that has been formed by, or for the benefit of, a Senior Foreign Political Figure.
      USA PATRIOT Act : The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001 (Pub. L. No. 107-56).
ARTICLE IV
OTHER AGREEMENTS OF THE PARTIES
     4.1 Transfer Restrictions .
          (a) The Investors covenant that the Securities will only be disposed of pursuant to an effective registration statement under, and in compliance with the requirements of, the Securities Act or pursuant to an available exemption from the registration requirements of the Securities Act, and in compliance with any applicable state securities laws. In connection with any transfer of Securities other than pursuant to an effective registration statement or to the Company, or pursuant to Rule 144(k), the Company may require the transferor to provide to the Company an opinion of counsel selected by the transferor, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration under the Securities Act. Notwithstanding the foregoing, the Company hereby consents to and agrees to register on the books of the Company and with its Transfer Agent, without any such legal opinion, except to the extent that the Transfer Agent requests such legal opinion, any transfer of Securities by an Investor to an Affiliate of such Investor, provided that the transferee certifies to the Company that it is an “accredited investor” as defined in Rule 501(a) under the Securities Act and provided that such Affiliate does not request any removal of any existing legends on any certificate evidencing the Securities.
          (b) The Investors agree to the imprinting, so long as is required by this Section 4.1(b ), of the following legend on any certificate evidencing any of the Securities:
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), OR ANY APPLICABLE STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM,

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OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS OR BLUE SKY LAWS.
Certificates evidencing Securities shall not be required to contain such legend or any other legend (i) while a registration statement (including the Registration Statement) covering the resale of the Securities is effective under the Securities Act, (ii) following any sale of such Securities pursuant to Rule 144 if the holder provides the Company with a legal opinion (and the documents upon which the legal opinion is based) reasonably acceptable to the Company to the effect that the Securities can be sold under Rule 144, (iii) if the holder provides the Company with a legal opinion (and the documents upon which the legal opinion is based) reasonably acceptable to the Company to the effect that the Securities are eligible for sale under Rule 144(k), or (iv) if the holder provides the Company with a legal opinion (and the documents upon which the legal opinion is based) reasonably acceptable to the Company to the effect that the legend is not required under applicable requirements of the Securities Act (including controlling judicial interpretations and pronouncements issued by the Staff of the SEC). The Company shall issue a certificate in the form included in the Transfer Agent Instructions to the Transfer Agent on the Effective Date. Following the Effective Date or at such earlier time as a legend is no longer required for certain Securities, the Company will no later than three Trading Days following the delivery by an Investor to the Company or the Transfer Agent of (i) a legended certificate representing such Securities, and (ii) an opinion of counsel to the extent required by Section 4.1(a) , deliver or cause to be delivered to such Investor a certificate representing such Securities that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section.
     If within three Trading Days after the Company’s receipt of a legended certificate and the other documents as specified in Clauses (i) and (ii) of the paragraph immediately above, the Company shall fail to issue and deliver to such Investor a certificate representing such Securities that is free from all restrictive and other legends, and if on or after such Trading Day the Investor purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Investor of shares of Common Stock that the Investor anticipated receiving from the Company without any restrictive legend (the “ Covering Shares ”), then the Company shall, within three Trading Days after the Investor’s request, pay cash to the Investor in an amount equal to the excess (if any) of the Investor’s total purchase price (including brokerage commissions, if any) for the Covering Shares, over the product of (A) the number of Covering Shares, times (B) the closing sale price on the primary Trading Market on which the Common Stock is listed or quoted on the date of delivery of such certificate and the other documents as specified in Clauses (i) and (ii) of the paragraph immediately above.
     (c) The Company will not object to and shall permit (except as prohibited by law) an Investor to pledge or grant a security interest in some or all of the Securities in connection with a bona fide margin agreement or other loan or financing arrangement secured by the Securities, and if required under the terms of such agreement, loan or arrangement, the

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Company will not object to and shall permit (except as prohibited by law) such Investor to transfer pledged or secured Securities to the pledges or secured parties, provided, that such pledgee or holder of security interest is an “accredited investor” as defined in Rule 501(a) under the Securities Act. Except as required by law, such a pledge or transfer would not be subject to approval of the Company, no legal opinion of the pledgee, secured party or pledgor shall be required in connection therewith, and no notice shall be required of such pledge. Each Investor acknowledges that the Company shall not be responsible for any pledges relating to, or the grant of any security interest in, any of the Securities or for any agreement, understanding or arrangement between any Investor and its pledgee or secured party. At the appropriate Investor’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Securities may reasonably request in connection with a pledge or transfer of the Securities, including the preparation and filing of any required prospectus supplement under Rule 424(b)(3) of the Securities Act or other applicable provision of the Securities Act to appropriately amend the list of Selling Stockholders thereunder. Provided that the Company is in compliance with the terms of this Section 4.1(c), the Company’s indemnification obligations pursuant to Section 6.4 shall not extend to any Proceeding or Losses arising out of or related to this Section 4.1(c).
     4.2 Furnishing of Information . Until the date that any Investor owning Common Shares or Warrant Shares may sell all of them under Rule 144(k) of the Securities Act (or any successor provision), the Company covenants to use its commercially reasonable efforts to (a) timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act and (b) make and keep adequate “current public information” (as such term is described in Rule 144) available.
     4.3 Integration . The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities in a manner that would require the registration under the Securities Act of the sale of the Securities to the Investors or that would be integrated with the offer or sale of the Securities for purposes of the rules and regulations of any Trading Market.
     4.4 Reservation of Securities . The Company shall maintain a reserve from its duly authorized shares of Common Stock for issuance pursuant to the Warrants in such amount as may be required to fulfill its obligations to issue such Warrant Shares. In the event that at any time the then authorized shares of Common Stock are insufficient for the Company to satisfy its obligations to issue such Warrant Shares under the Warrants, the Company shall promptly take such actions as may be required to increase the number of authorized shares.
     4.5 Securities Laws Disclosure; Publicity . The Company shall, on or before 8:30 a.m., New York time, on the first Trading Day following execution of this Agreement, issue a press release disclosing all material terms of the transactions contemplated hereby. On or prior to the fourth Business Date following the First Closing Date, the Company shall file a Current Report on Form 8-K with the SEC (the “ 8-K Filing ”) providing a summary of the material terms of the transactions

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contemplated by the Transaction Documents and including as exhibits to such Current Report on Form 8-K copies of this Agreement and a form of Warrant (including the schedules and the names, and addresses of the Investors and the amount(s) of Securities respectively purchased). Thereafter, the Company shall timely file any filings and notices required by the SEC or applicable law with respect to the transactions contemplated hereby. Except as herein provided, the Company shall not publicly disclose the name of any Investor, or include the name of any Investor in any press release without the prior written consent of such Investor, unless otherwise required by law, including, without limitation, in the Registration Statement. The Company shall not, and shall cause each of its Subsidiaries and its and each of their respective officers, directors, employees and agents not to, provide any Investor with any material nonpublic information regarding the Company or any of its Subsidiaries from and after the issuance of the above referenced press release without the express written consent of such Investor, other than to any representative of any Investor that is serving on the Company’s board of directors.
     4.6 Use of Proceeds . The Company intends to use the net proceeds from the sale of the Securities substantially as set forth in the Private Placement Memorandum. Pending these uses, the Company intends to invest the net proceeds from this offering in short-term, interest-bearing, investment-grade securities, or as otherwise pursuant to the Company’s customary investment policies.
     4.7 Radius Director . If Radius purchases Securities pursuant to this Agreement for an aggregate purchase price of at least $6,000,000, and for so long as Radius owns beneficially (within the meaning of Rule 13d-3 under the Exchange Act) at least 25% of the shares of Common Stock purchased by Radius pursuant to this Agreement, the Company agrees that it shall take, and shall cause its Board of Directors to take, all action within its powers to nominate one (1) representative designated by Radius (the “ Radius Director ”) as a member of the Board of Directors, who shall be initially Jordan Davis. In the event that any Radius Director designated in the manner set forth in this Section 4.7 is unable to serve, or once having commenced to serve, is removed or withdraws from the Board of Directors (a “ Withdrawing Director ”), the Company agrees that it shall take, and shall cause its Board of Directors to take, all action within its powers to nominate or elect an individual designated by Radius (the “ Substitute Director ”) as such Withdrawing Director’s replacement.
ARTICLE V
CONDITIONS
     5.1 Conditions Precedent to the Obligations of the Investors . The obligation of each Investor to acquire Securities at the First Closing is subject to the satisfaction or waiver by such Investor, at or before the First Closing, of each of the following conditions:
          (a) Representations and Warranties . The representations and warranties of the Company contained herein shall be true and correct in all material respects as of the date when made and as of the First Closing as though made on and as of such date.

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               (b) Performance . The Company and each other Investor shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by it at or prior to the First Closing.
               (c) Merger . Contemporaneously with the First Closing, the Merger shall have been consummated.
               (d) Injunction . There shall be no effective injunction, writ, preliminary restraining order or any order of any nature issued by a court of competent jurisdiction directing that the transactions provided for herein or any of them not be consummated as herein provided..
               (e) Officer’s Certificate . Each of the Significant Investors shall have received a certificate, dated the First Closing Date, signed by the Chief Executive Officer of the Company, certifying that the conditions specified in the foregoing Sections 5.1(a) through 5.1(e) hereof have been fulfilled.
               (f) Closing Deliveries . All closing deliveries required to be made by the Company pursuant to Section 2.4(a) hereof shall have been made.
               (g) Consents and Waivers . Athersys shall have obtained the consents and waivers set forth on Schedule 5.1(g) hereto, and such consents and waivers shall be in full force and effect.
          5.2 Conditions Precedent to the Obligations of the Company . The obligation of the Company to sell the Securities at the First Closing is subject to the satisfaction or waiver by the Company, at or before the First Closing, of each of the following conditions:
               (a) Representations and Warranties . The representations and warranties of the Investors contained herein shall be true and correct in all material respects as of the date when made and as of the First Closing Date as though made on and as of such date.
               (b) Performance . The Investors shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Investors at or prior to the First Closing.
               (c) Merger . Contemporaneously with the First Closing, the Merger shall have been consummated.
               (d) Closing Deliveries . All closing deliveries required to be made by the Investors pursuant to Section 2.4(b) hereof shall have been made.
               (e) Injunction . There shall be no effective injunction, writ, preliminary restraining order or any order of any nature issued by a court of competent jurisdiction directing

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that the transactions provided for herein or any of them not be consummated as herein provided.
ARTICLE VI
REGISTRATION RIGHTS
          6.1 Registration Statement .
               (a) As promptly as practical, and in any event on or prior to the Filing Date, the Company shall prepare and file with the SEC a Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-1 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-1, in which case such registration shall be on another appropriate form in accordance with the Securities Act, and except that, if eligible, the Company may use Form S-3) and shall contain (except if otherwise directed by the Investors or requested by the SEC) the “Plan of Distribution” in substantially the form attached hereto as Exhibit C .
               (b) The Company shall use its Best Efforts to cause the Registration Statement to be declared effective by the SEC as promptly as possible after the filing thereof, but in any event prior to the Required Effectiveness Date, and shall use its Best Efforts to keep the Registration Statement continuously effective under the Securities Act until the earlier of the date that all Common Shares and Warrant Shares covered by such Registration Statement have been sold or can be sold publicly under Rule 144(k) (the “Effectiveness Period ”).
               (c) The Company shall timely file all reports and other material required to be filed pursuant to the Exchange Act and otherwise use commercially reasonable efforts to qualify and remain qualified to register securities pursuant to a registration statement on Form S-3 (or any successor form) under the Securities Act. Subject to Section 6.1(e) , promptly following the date (the “ Qualification Date ”) upon which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, but in no event more than thirty (30) days after the Qualification Date (the “ Qualification Deadline ”), the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to a registration statement on Form S-1) (a “ Shelf Registration Statement ”) and shall use commercially reasonable efforts to cause such Shelf Registration Statement to be declared effective as promptly as practicable thereafter.
               (d) Should an Event (as defined below) occur, then upon the occurrence of such Event, and on every monthly anniversary thereof until the applicable Event is cured (or, in the case of Events relating to nonconsecutive Trading Days, upon the re-occurrence of such Event), the Company shall pay to each Investor (other than an Agent with respect to Placement Agent Warrant Shares or a Bridge Noteholder with respect to Bridge Shares) an amount in cash, as liquidated damages and not as a penalty, equal to one percent (1.0%) of (i) the number of Common Shares held by such Investor as of the date of such Event that are not registered pursuant to an effective Registration Statement, or not listed or quoted, or are suspended from trading on an Eligible Market (as the case may be), multiplied by (ii) the Purchase Price paid by

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such Investor for such Common Shares; provided , however , that the total amount of payments pursuant to this Section 6.1(d) shall not exceed, when aggregated with all such payments paid to all Investors, ten percent (10%) of the aggregate Purchase Price paid by all Investors. The payments to which an Investor shall be entitled pursuant to this Section 6.1(d) are referred to herein as “ Event Payments. ” Any Event Payments payable pursuant to the terms hereof shall apply on a pro rated basis for any portion of a month prior to the cure of an Event. In the event the Company fails to make Event Payments in a timely manner, such Event Payments shall bear interest at the rate of one percent (1.0%) per month (pro rated for partial months) until paid in full. All pro rated calculations made pursuant to this paragraph shall be based upon the actual number of days in such pro rated month.
For such purposes, each of the following shall constitute an “Event”:
                    (i) the Registration Statement is not filed on or prior to the Filing Date or is not declared effective on or prior to the Required Effectiveness Date;
                    (ii) except as provided for in Section 6.1(e ) (the “ Excluded Events ”), after the Effective Date, the Registration Statement or a subsequent Registration Statement filed in replacement thereof) ceases to be effective for purposes of resale by the Investors (other than an Agent with respect to Placement Agent Warrant Shares or a Bridge Noteholder with respect to Bridge Shares) for any reason (including without limitation by reason of a stop order or the Company’s failure to update the Registration Statement, other than the fault of such Investor) for five or more consecutive Trading Days or for an aggregate of 15 Trading Days (whether or not consecutive) in any 12-month period; and
                    (iii) except as a result of the Excluded Events, the Common Stock is not listed or quoted, or is suspended from trading, on an Eligible Market for a period of three Trading Days (which need not be consecutive Trading Days) during the Effectiveness Period.
               (e) Notwithstanding anything in this Agreement to the contrary, after 60 consecutive Trading Days of continuous effectiveness of the initial Registration Statement filed and declared effective pursuant to this Agreement, the Company may, by written notice to the Investors, suspend sales under a Registration Statement after the Effective Date thereof and/or require that the Investors immediately cease the sale of shares of Common Stock pursuant thereto and/or defer the filing of any subsequent Registration Statement if the Company, in the reasonable judgment of its Board of Directors after consultation with counsel, believes that (i) there is or may be in existence material nonpublic information or events involving the Company, the failure of which to be disclosed in the prospectus included in the Registration Statement could result in a violation of the Securities Act, the Exchange Act or any provision of any applicable state securities law or (ii) it is in the best interests of the Company to suspend sales under such registration at such time. Upon receipt of such notice, each Investor shall immediately discontinue any sales of Registrable Securities pursuant to such registration until such Investor is advised in writing by the Company that the current Prospectus or amended Prospectus, as applicable, may be used. In no event, however, shall this right be exercised to suspend sales beyond the period during which (in the reasonable judgment of its Board of

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Directors after consultation with counsel) the failure to require such suspension would be materially detrimental to the Company. The Company’s rights under this Section 6(e) may be exercised for a period of no more than 20 Trading Days at a time and not more than twice in any twelve-month period, without such suspension being considered as part of an Event Payment determination. Immediately after the end of any suspension period under this Section 6(e) , the Company shall take all necessary actions (including filing any required supplemental prospectus) to restore the effectiveness of the applicable Registration Statement and the ability of the Investors to publicly resell their Registrable Securities pursuant to such effective Registration Statement.
          6.2 Registration Procedures . In connection with the Company’s registration obligations hereunder, the Company shall:
               (a) Not less than three Trading Days prior to the filing of a Registration Statement or any related Prospectus or any amendment or supplement thereto, furnish via email to those Significant Investors who have supplied the Company with email addresses copies of all such documents proposed to be filed, which documents (other than any document that is incorporated or deemed to be incorporated by reference therein) will be subject to the review of such Significant Investors. The Company shall reflect in each such document when so filed with the SEC such comments regarding the Significant Investors and the plan of distribution as the Significant Investors may reasonably and promptly propose no later than two Trading Days after the Significant Investors have been so furnished with copies of such documents as aforesaid.
               (b) (i) Subject to Section 6.1(e) , prepare and file with the SEC such amendments, including post-effective amendments, to each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective, as to the applicable Registrable Securities for the Effectiveness Period and prepare and file with the SEC such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424; (iii) respond as promptly as reasonably possible to any comments received from the SEC with respect to the Registration Statement or any amendment thereto; and (iv) comply in all material respects with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Investors thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
               (c) Notify the Significant Investors as promptly as reasonably possible, and (if requested by the Significant Investors) confirm such notice in writing no later than two Trading Days thereafter, of any of the following events: (i) the SEC notifies the Company whether there will be a “review” of any Registration Statement; (ii) the SEC comments in writing on any Registration Statement; (iii) any Registration Statement or any post-effective amendment is declared effective; (iv) the SEC or any other Federal or state governmental authority requests any amendment or supplement to any Registration Statement or Prospectus or requests additional

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information related thereto; (v) the SEC issues any stop order suspending the effectiveness of any Registration Statement or initiates any Proceedings for that purpose; (vi) the Company receives notice of any suspension of the qualification or exemption from qualification of any Registrable Securities for sale in any jurisdiction, or the initiation or threat in writing of any Proceeding for such purpose; or (vii) any Registration Statement or Prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
               (d) Use its reasonable Best Efforts to avoid the issuance of or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of any Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, as soon as possible.
               (e) If requested by an Investor, provide such Investor, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the SEC.
               (f) Promptly deliver to each Investor, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Investors in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto to the extent permitted by federal and state securities laws and regulations.
               (g) (i) In the time and manner required by each Trading Market, prepare and file with such Trading Market any applicable additional shares listing application covering all of the Registrable Securities, (ii) take all steps necessary to cause such Registrable Securities to be approved for listing on each Trading Market as soon as possible thereafter, and (iii) except as a result of the Excluded Events, during the Effectiveness Period, maintain the listing of such Common Shares on each such Trading Market.
               (h) Prior to any public offering of Registrable Securities, use its reasonable Best Efforts to register or qualify or cooperate with the selling Investors in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as any Investor requests in writing, to keep each such registration or qualification (or exemption therefrom) effective for so long as required, but not to exceed the duration of the Effectiveness Period, and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided , however , that the Company shall not be obligated to file any general consent to service of process or to qualify as a

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foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
               (i) Cooperate with the Investors to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by this Agreement and under law, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Investors may reasonably request.
               (j) Upon the occurrence of any event described in Section 6.2(c)(vii ), subject to Section 6.1(e) , as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
               (k) Cooperate with any reasonable due diligence investigation undertaken by the Investors in connection with the sale of Registrable Securities, including, without limitation, by making available documents and information; provided that the Company will not knowingly deliver or make available to any Investor material, nonpublic information unless such Investor requests in advance in writing to receive material, nonpublic information and agrees to keep such information confidential.
               (l) Comply in all material respects with all rules and regulations of the SEC applicable to the registration of the Registrable Securities.
               (m) It shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the Registrable Securities of any particular Investor or to make any Event Payments set forth in Section 6.1(d) to such Investor that such Investor furnish to the Company the information specified in Exhibits B-1 , B-2 and B-3 hereto and such other information regarding itself, the Registrable Securities and other shares of Common Stock held by it and the intended method of disposition of the Registrable Securities held by it (if different from the Plan of Distribution set forth on Exhibit C hereto) as shall be reasonably required to effect the registration of such Registrable Securities, including, without limitation, requested by the SEC in connection with any review of the Registration Statement or otherwise, and shall complete and execute such documents in connection with such registration as the Company may reasonably request.
          6.3 Registration Expenses . The Company shall pay all fees and expenses of the Company incident to the performance of or compliance with Article VI of this Agreement by the Company, including without limitation (a) all registration and filing fees and expenses, including without

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limitation those related to filings with the SEC, any Trading Market and in connection with applicable state securities or blue sky laws, (b) printing expenses (including without limitation expenses of printing certificates for Registrable Securities), (c) messenger, telephone and delivery expenses, (d) fees and disbursements of counsel for the Company, (e) fees and expenses of all other Persons retained by the Company in connection with the consummation of the transactions contemplated by this Agreement, and (f) all listing fees to be paid by the Company to the Trading Market. The Company shall also reimburse the Agents for the fees and disbursements of their counsel in connection with registration, filing or qualification of the Registration Statement and to make the necessary filings with NASD Rule 2710 on behalf of the Placement Agents, which amount shall be limited to $10,000; provided , however , that such amount shall be limited to $5,000 if the SEC does not review the Registration Statement. The Company will also pay all filing fees and reasonable legal fees in connection with the Agents’ NASD Rule 2710 filing to be prepared by Agents’ counsel. The Company shall not be obligated to pay any fees of the Investors in connection with the performance of or compliance with Article VI of this Agreement, including any underwriting discounts or commissions or transfer taxes.
          6.4 Indemnification
               (a) Indemnification by the Company . The Company shall, notwithstanding any termination of this Agreement, indemnify and hold harmless each Investor, the officers, directors, partners, members, agents and employees of each of them, each Person who controls any such Investor (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, partners, members, agents and employees of each such controlling Person, to the fullest extent permitted by applicable law, from and against any and all Losses, as incurred, arising out of or relating to (i) any misrepresentation by the Company of any representation or warranty made by the Company in the Transaction Documents or any other certificate, instrument or document contemplated hereby or thereby, (ii) any breach by the Company of any covenant, agreement or obligation of the Company contained in the Transaction Documents or any other certificate, instrument or document contemplated hereby or thereby, or (iii) any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any Prospectus or any form of Company prospectus or in any amendment or supplement thereto or in any Company preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or form of prospectus or supplement thereto, in the light of the circumstances under which they were made) not misleading, except to the extent, but only to the extent, that (A) such untrue statements, alleged untrue statements, omissions or alleged omissions are based solely upon information regarding such Investor furnished in writing to the Company by such Investor for use therein, or to the extent that such information relates to such Investor or such Investor’s proposed method of distribution of Registrable Securities and was reviewed and expressly approved by such Investor expressly for use in the Registration Statement, or (B) with respect to any prospectus, if the untrue statement or omission of material fact contained in such prospectus was corrected on a timely basis in the prospectus, as then amended or supplemented, or in any free writing prospectus if such corrected prospectus or free writing prospectus was timely made available by the Company to the Investor,

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and the Investor seeking indemnity hereunder was advised in writing not to use the incorrect prospectus prior to the use giving rise to Losses.
               (b) Indemnification by Investors . Each Investor shall, severally and not jointly, indemnify and hold harmless the Company, its directors, officers, agents and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents or employees of such controlling Persons, to the fullest extent permitted by applicable law, from and against all Losses arising solely out of any untrue statement of a material fact contained in the Registration Statement, any Prospectus, or any form of prospectus, or in any amendment or supplement thereto, or arising out of or relating to any omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or form of prospectus or supplement thereto, in the light of the circumstances under which they were made) not misleading, but only to the extent that such untrue statement or omission is contained in any information so furnished by such Investor in writing to the Company specifically for inclusion in such Registration Statement or such Prospectus or to the extent that such untrue statements or omissions are based solely upon information regarding such Investor furnished to the Company by such Investor in writing expressly for use therein, or to the extent that such information relates to such Investor or such Investor’s proposed method of distribution of Registrable Securities and was reviewed and expressly approved by such Investor expressly for use in the Registration Statement (it being understood that the information provided by the Investor to the Company in Exhibits B-1 , B-2 and B-3 and the Plan of Distribution set forth on Exhibit C , as the same may be modified by such Investor and other information provided by the Investor to the Company in or pursuant to the Transaction Documents constitutes information reviewed and expressly approved by such Investor in writing expressly for use in the Registration Statement), such Prospectus or such form of Prospectus or in any amendment or supplement thereto. In no event shall the liability of any selling Investor hereunder be greater in amount than the dollar amount of the net proceeds received by such Investor upon the sale of the Registrable Securities giving rise to such indemnification obligation.
               (c) Conduct of Indemnification Proceedings . If any Proceeding shall be brought or asserted against any Person entitled to indemnity hereunder (an “ Indemnified Party ”), such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “ Indemnifying Party ”) in writing, and the Indemnifying Party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof; provided, that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have proximately and materially adversely prejudiced the Indemnifying Party.
          An Indemnified Party shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the

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expense of such Indemnified Party or Parties unless: (i) the Indemnifying Party has agreed in writing to pay such fees and expenses; or (ii) the Indemnifying Party shall have failed promptly to assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding; or (iii) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and such Indemnified Party shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and the reasonable fees and expenses of separate counsel shall be at the expense of the Indemnifying Party). It being understood, however, that the Indemnifying Party shall not, in connection with any one such Proceeding (including separate Proceedings that have been or will be consolidated before a single judge) be liable for the fees and expenses of more than one separate firm of attorneys at any time for all Indemnified Parties, which firm shall be appointed by a majority of the Indemnified Parties. The Indemnifying Party shall not be liable for any settlement of any such Proceeding effected without its written consent, which consent shall not be unreasonably withheld. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding.
          All reasonable fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section) shall be paid to the Indemnified Party, as incurred, within 20 Trading Days of written notice thereof to the Indemnifying Party (regardless of whether it is ultimately determined that an Indemnified Party is not entitled to indemnification hereunder; provided, that the Indemnifying Party may require such Indemnified Party to undertake to reimburse all such fees and expenses to the extent it is finally judicially determined that such Indemnified Party is not entitled to indemnification hereunder).
               (d) Contribution . If a claim for indemnification under Section 6.4(a ) or (b ) is unavailable to an Indemnified Party (by reason of public policy or otherwise), then each Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include, subject to the limitations set forth in Section 6.4(c ), any reasonable attorneys’ or other reasonable

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fees or expenses incurred by such party in connection with any Proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in this Section was available to such party in accordance with its terms.
          The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4(d ) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 6.4(d ), no Investor shall be required to contribute, in the aggregate, any amount in excess of the amount by which the net proceeds actually received by such Investor from the sale of the Registrable Securities subject to the Proceeding exceeds the amount of any damages that such Investor has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
          The indemnity and contribution agreements contained in this Section are in addition to any liability that the Indemnifying Parties may have to the Indemnified Parties.
          6.5 Dispositions . Each Investor agrees that it will comply with the prospectus delivery requirements of the Securities Act as applicable to it in connection with sales of Registrable Securities pursuant to the Registration Statement and shall sell its Registrable Securities in accordance with the Plan of Distribution set forth in the Prospectus. Each Investor further agrees that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 6.2(c)(v ), (vi ) or (vii ), such Investor will discontinue disposition of such Registrable Securities under the Registration Statement until such Investor is advised in writing by the Company that the use of the Prospectus, or amended Prospectus, as applicable, may be used. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
          6.6 No Piggyback on Registrations . The Company may not include any of its securities (whether for its own account or the account of any of its security holders (other than the Investors in such capacity pursuant hereto)) in the Registration Statement other than the Registrable Securities.
          6.7 Piggy-Back Registrations . If at any time during the Effectiveness Period there is not an effective Registration Statement covering all of the Registrable Securities and the Company shall determine to prepare and file with the SEC a registration statement relating to an offering for its own account or the account of others under the Securities Act of any of its equity securities, other than on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities to be issued solely in connection with any acquisition of any entity or business or equity securities issuable in connection with stock option or other employee benefit plans, then the Company shall send to each Investor not then eligible to sell all of their Registrable Securities under Rule 144 in a three-month period, written notice of such determination and if, within ten days after receipt of such notice, any such Investor shall so request in writing, the Company shall include in such registration statement all or any part of such Registrable Securities such Investor requests to be registered. Notwithstanding the foregoing, in the event that, in connection with any underwritten public offering, the managing

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underwriter(s) thereof shall impose a limitation on the number of shares of Common Stock which may be included in the Registration Statement because, in such underwriter(s)’ judgment, marketing or other factors dictate such limitation is necessary to facilitate public distribution, then the Company shall be obligated to include in such Registration Statement only such limited portion of the Registrable Securities with respect to which such Investor has requested inclusion hereunder as the underwriter shall permit; provided , however , that (i) the Company shall not exclude any Registrable Securities unless the Company has first excluded all outstanding securities, the holders of which are not contractually entitled to inclusion of such securities in such Registration Statement or are not contractually entitled to pro rata inclusion with the Registrable Securities and (ii) after giving effect to the immediately preceding proviso, any such exclusion of Registrable Securities shall be made pro rata among the Investors seeking to include Registrable Securities and officers, directors and the holders of other securities having the contractual right to inclusion of their securities in such Registration Statement by reason of demand or piggy-back registration rights, in proportion to the number of Registrable Securities or other securities, as applicable, sought to be included by each such Investor or other holder; and provided further that, to the extent Cut Back Securities (as defined in Section 6.8 hereof) exist, (i) the Company shall not exclude any Registrable Securities unless the Company has first excluded all outstanding securities held by officers, directors and all other holders of securities of the Company (other than Registrable Securities and other than securities held by holders who by contractual right demanded such registration (“ Demanding Holders ”)) and (ii) after giving effect to the immediately preceding proviso, any such exclusion of Registrable Securities shall be made pro rata among the Investors seeking to include Registrable Securities and the Demanding Holders, in proportion to the number of Registrable Securities or other securities, as applicable, sought to be included by each such Investor or other holder. If an offering in connection with which an Investor is entitled to registration under this Section 6.7 is an underwritten offering, then each Investor whose Registrable Securities are included in such Registration Statement shall, unless otherwise agreed by the Company, offer and sell such Registrable Securities in an underwritten offering using the same underwriter or underwriters and, subject to the provisions of this Agreement, on the same terms and conditions as other shares of Common Stock included in such underwritten offering and shall enter into an underwriting agreement in a form and substance reasonably satisfactory to the Company and the underwriter or underwriters. Upon the effectiveness of the registration statement for which piggy-back registration has been provided in this Section 6.7 , any Event Payments payable to an Investor whose Securities are included in such registration statement shall terminate with respect to the Registrable Securities included in such registration statement.
          6.8 Reduction of Registrable Securities Included in a Registration Statement . Notwithstanding anything contained herein, in the event that the SEC requires the Company to reduce the number of Registrable Securities to be included in a Registration Statement in order to allow the Company to rely on Rule 415 with respect to a Registration Statement, then the Company shall be obligated to include in such Registration Statement (which may be a subsequent Registration Statement if the Company needs to withdraw the initial Registration Statement and refile a new Registration Statement in order to rely on Rule 415) only such limited portion of the Registrable Securities as the SEC shall permit. Any exclusion of Registrable

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Securities shall be made pro rata among the Investors in proportion to the number of Registrable Securities held such persons; provided, however, that 100% of the Registrable Securities held by the Bridge Noteholders shall be excluded prior to the exclusion of any Registrable Securities held by the remaining Investors, and 100% of the Registrable Securities held by the Agents shall be excluded prior to the exclusion of any Registrable Securities held by the remaining Investors. Thereafter, the order of Registrable Securities to be excluded shall be the Warrant Shares (which may be some or all of such securities) and lastly, the Common Shares (in such limited number until Rule 415 can be utilized). Any Registrable Securities that are excluded in accordance with the foregoing terms are hereinafter referred to as “Cut Back Securities.” To the extent Cut Back Securities exist, as soon as may be permitted by the SEC, the Company shall be required to file a registration statement on Form S-3 (or, if Form S-3 is not then available to the Company, on Form S-1 or such other form of registration statement as is then available to effect a registration for resale of the Cut Back Securities) covering the resale of the Cut Back Securities and shall use Best Efforts to cause such Registration Statement to be declared effective as promptly as practicable thereafter; provided, however, that the foregoing obligation shall cease with respect to any Cut Back Securities at such time such Cut Back Securities are eligible for sale immediately and without restriction pursuant to Rule 144(k) under the Securities Act.
          6.9 Other Registrations . Prior to and for a period of six months following the Effective Date of the Registration Statement (or, in the event that the Company is required to file any additional Registration Statements pursuant to Section 6.8 , prior to and for a period ending on the later of (a) the one-year anniversary of the First Closing and (b) the six-month anniversary of the effective date of the first Registration Statement covering Registrable Securities that is declared effective by the SEC), the Company shall not prepare and file with the SEC a registration statement relating to an offering for its own account or the account of others (other than Investors) under the Securities Act of any of its equity securities, other than any registration statement or post-effective amendment to a registration statement (or supplement thereto) on Form S-4 or relating to shares of Common Stock issuable in connection with the Company’s employee benefit plans on Form S-8. The Company will not, on or after the date of this Agreement, enter into any agreement with respect to its securities that conflicts with the rights granted to the holders of the Registrable Securities in this Agreement. The rights granted to the holders of the Registrable Securities hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of the Company’s securities under any agreement in effect on the date hereof, except to the extent that such rights have been otherwise waived.
ARTICLE VII
MISCELLANEOUS
          7.1 Termination . This Agreement may be terminated by the Company, Athersys or any Investor, by written notice to the other parties, if the Closing has not been consummated by the third Business Day following the date of this Agreement; provided that no such termination will affect the right of any party to sue for any breach by the other party (or parties).

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          7.2 Fees and Expenses . Except as expressly set forth in the Transaction Documents or the Private Placement Memorandum to the contrary, each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all transfer agent fees, stamp taxes and other taxes and duties levied in connection with the sale and issuance of the Securities by the Company.
          7.3 Entire Agreement . The Transaction Documents, together with the Exhibits and Schedules thereto, contain the entire understanding of the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules. At or after the Closing, and without further consideration, the Company will execute and deliver to the Investors such further documents as may be reasonably requested in order to give practical effect to the intention of the parties under the Transaction Documents.
          7.4 Notices . Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication is delivered via facsimile or email at the facsimile number or email address specified in this Section prior to 6:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile or email at the facsimile number or email address specified in this Section on a day that is not a Trading Day or later than 6:30 p.m. (New York City time) on any Trading Day, (c) the Trading Day following the date of deposit with a nationally recognized overnight courier service, or (d) upon actual receipt by the party to whom such notice is required to be given. The addresses, facsimile numbers and email addresses for such notices and communications are those set forth on the signature pages hereof, or such other address or facsimile number as may be designated in writing hereafter, in the same manner, by any such Person.
          7.5 Amendments; Waivers . No provision of this Agreement may be waived or amended except in a written instrument signed, in the case of an amendment, by the Company, Athersys and each of the Investors or, in the case of a waiver, by the party against whom enforcement of any such waiver is sought. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of either party to exercise any right hereunder in any manner impair the exercise of any such right. Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of Investors under Article VI may be given by Investors holding at least a majority of the Registrable Securities to which such waiver or consent relates.
          7.6 Construction . The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.

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          7.7 Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Investors. Any Investor may assign its rights under this Agreement to any Person to whom such Investor assigns or transfers any Securities, provided (i) such transferor agrees in writing with the transferee or assignee to assign such rights, and a copy of such agreement is furnished to the Company after such assignment, (ii) the Company is furnished with written notice of (x) the name and address of such transferee or assignee and (y) the Registrable Securities with respect to which such registration rights are being transferred or assigned, (iii) following such transfer or assignment, the further disposition of such securities by the transferee or assignee is restricted under the Securities Act and applicable state securities laws, (iv) such transferee agrees in writing to be bound, with respect to the transferred Securities, by the provisions hereof that apply to the “Investors” and (v) such transfer shall have been made in accordance with the applicable requirements of this Agreement and with all laws applicable thereto.
          7.8 No Third-Party Beneficiaries . This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except that each Indemnified Party is an intended third party beneficiary of Section 6.4 and (in each case) may enforce the provisions of such Sections directly against the parties with obligations thereunder and the Placement Agents are intended third party beneficiaries of the representations and warranties made by (x) the Company in Section 3.1 and (y) the Investors in Section 3.2 and 3.3 and the covenants of the Company set forth in Article IV and Article VI.
          7.9 Governing Law; Venue; Waiver of Jury Trial . THE CORPORATE LAWS OF THE STATE OF DELAWARE SHALL GOVERN ALL ISSUES CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND ITS STOCKHOLDERS. ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE COMPANY AND INVESTORS HEREBY IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN FOR THE ADJUDICATION OF ANY DISPUTE BROUGHT BY THE COMPANY OR ANY INVESTOR HEREUNDER, IN CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO THE ENFORCEMENT OF ANY OF THE TRANSACTION DOCUMENTS), AND HEREBY IRREVOCABLY WAIVE, AND AGREE NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING BROUGHT BY THE COMPANY OR ANY INVESTOR, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, OR THAT SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR

-45-


 

NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. THE COMPANY AND INVESTORS HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY.
          7.10 Survival . The representations, warranties, agreements and covenants contained herein shall survive the Closing.
          7.11 Execution . This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or email attachment, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or email-attached signature page were an original thereof.
          7.12 Severability . If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired thereby and the parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement.
          7.13 Rescission and Withdrawal Right . Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) the Transaction Documents, whenever any Investor exercises a right, election, demand or option owed to such Investor by the Company under a Transaction Document and the Company does not timely perform its related obligations within the periods therein provided, then, prior to the performance by the Company of the Company’s related obligation, such Investor may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole or in part without prejudice to its future actions and rights.
          7.14 Replacement of Securities . If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof, or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction and the execution by the holder thereof of a customary lost certificate affidavit of that fact and an agreement to indemnify and hold harmless the Company for any losses in connection therewith. The applicants for a new certificate or instrument under such circumstances shall also pay any reasonable third-party costs associated with the issuance of such replacement Securities.
          7.15 Remedies . In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Investors and the Company will be entitled to seek specific performance under the Transaction Documents. The parties agree that

-46-


 

monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations described in the foregoing sentence.
          7.16 Payment Set Aside . To the extent that the Company makes a payment or payments to any Investor hereunder or any Investor enforces or exercises its rights hereunder or thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company by a trustee, receiver or any other person under any law (including, without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.
          7.17 Adjustments in Share Numbers and Prices . In the event of any stock split, subdivision, dividend or distribution payable in shares of Common Stock (or other securities or rights convertible into, or entitling the holder thereof to receive directly or indirectly shares of Common Stock), combination or other similar recapitalization or event occurring after the date hereof and prior to the Closing, each reference in any Transaction Document to a number of shares or a price per share shall be amended to appropriately account for such event.
          7.18 Independent Nature of Investors’ Obligations and Rights . The obligations of each Investor under any Transaction Document are several and not joint with the obligations of any other Investor, and no Investor shall be responsible in any way for the performance of the obligations of any other Investor under any Transaction Document. The decision of each Investor to purchase Securities pursuant to this Agreement has been made by such Investor independently of any other Investor and independently of any information, materials, statements or opinions as to the business, affairs, operations, assets, properties, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company which may have been made or given by any other Investor or by any agent or employee of any other Investor, and no Investor or any of its agents or employees shall have any liability to any other Investor (or any other person) relating to or arising from any such information, materials, statements or opinions. Nothing contained herein or in any Transaction Document, and no action taken by any Investor pursuant thereto, shall be deemed to constitute the Investors as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Investors are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Document. Each Investor acknowledges that no other Investor has acted as agent for such Investor in connection with making its investment hereunder and that no other Investor will be acting as agent of such Investor in connection with monitoring its investment hereunder. Each Investor shall be entitled to independently protect and enforce its rights, including without limitation the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Investor to be joined as an additional party in any proceeding for such purpose.
[SIGNATURE PAGES TO FOLLOW]

-47-


 

COMPANY SIGNATURE PAGE
          IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
         
  BTHC VI, INC.
 
 
  By:   /s/ Gil Van Bokkelen    
    Name:   Gil Van Bokkelen   
    Title:   Chief Executive Officer   
 
  ATHERSYS, INC.
 
 
  By:   /s/ Gil Van Bokkelen    
    Name:   Gil Van Bokkelen   
    Title:   Chief Executive Officer   
 
  Address for Notice:
3201 Carnegie Avenue
Cleveland, Ohio 44115-2634
Facsimile No.: (216) 432-2461
Telephone No.: (216) 431-9900
Attn: Laura K. Campbell

With a copy to:
Jones Day
901 Lakeside Avenue
Cleveland, Ohio 44114
Facsimile: (216) 579-0212
Telephone: (216) 586-3939
Attn: Christopher M. Kelly, Esq.
 
 
     
     
     
 

 


 

INVESTOR SIGNATURE PAGE
     By its execution and delivery of this signature page, the undersigned Investor hereby joins in and agrees to be bound by the terms and conditions of the Securities Purchase Agreement dated as of June 8, 2007 (the “Purchase Agreement”) by and among BTHC VI, Inc., Athersys and the Investors (as defined therein), as to the number of shares of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to the Purchase Agreement or counterparts thereof.
             
    Name of Investor:    
 
           
   
 
   
 
           
 
  By:        
 
     
 
Name:
   
 
      Title:    
Address:                                                                         
                                                                                         
                                                                                         

Telephone No.:                                                              
Facsimile No.:                                                                 
Email Address:                                                               
Number of Shares:                                                         
Number of Warrants:                                                    
Aggregate Purchase Price: $                                        

-2-


 

Exhibits:
     
A-1
  Schedule of Investors for First Closing
A-2
  Schedule of Investors for Second Closing
B
  Instruction Sheet for Investors
B-1
  Stock Certificate Questionnaire
B-2
  Registration Statement Questionnaire
B-3
  Certificate for Individual Investors
B-4
  Certificate for Corporate, Partnership, Limited Liability Company, Trust, Foundation and Joint Investors
C
  Plan of Distribution
D
  Company Transfer Agent Instructions
E
  Form of Warrant

-3-


 

Exhibit A-1
Schedule of Investors
                         
Investor   Common Shares   Warrant Shares   Purchase Price
Roger J. & M. Jenai Sullivan Wall
    10,000       2,500     $ 50,000  
Adam Tymrakiewicz
    10,000       2,500     $ 50,000  
Robert A. Koch
    20,000       5,000     $ 100,000  
Antonius Dekonink
    5,000       1,250     $ 25,000  
Richard & Jeffrey K. Ward
    5,000       1,250     $ 25,000  
Goldberg & Associates
    20,000       5,000     $ 100,000  
LBJ 8001 LP
    40,000       10,000     $ 200,000  
Jennifer R. Hohneke & West Thomas Houle
    15,000       3,750     $ 75,000  
R & F Industries Inc.
    10,000       2,500     $ 50,000  
Cyber Calling Inc.
    5,000       1,250     $ 25,000  
Paradise Wire & Cable
Defined Benefit Pension
Plan
    5,000       1,250     $ 25,000  
J. Russell LaBarge Jr. Revocable Trust
    5,000       1,250     $ 25,000  
William Ristvedt
    5,000       1,250     $ 25,000  
V. Gopikrishna Reddy
    5,000       1,250     $ 25,000  
Dilmus R. Richey
    5,000       1,250     $ 25,000  
Gary W. Sargent
    20,000       5,000     $ 100,000  
Joseph G. Ruppert
    10,000       2,500     $ 50,000  

 


 

                         
Investor   Common Shares   Warrant Shares   Purchase Price
John P. & Kathleen J. Gangl
    10,000       2,500     $ 50,000  
Richard & Kathleen Basch
    10,000       2,500     $ 50,000  
Neil H. & Karen J. Rolstad
    5,000       1,250     $ 25,000  
Paul Yurfest
    20,000       5,000     $ 100,000  
Peter Ohler
    5,000       1,250     $ 25,000  
Jim Swift
    5,000       1,250     $ 25,000  
Thomas Richard Bollinger
    5,000       1,250     $ 25,000  
Craig R. Whited
    70,000       17,500     $ 350,000  
Garry Ard
    20,000       5,000     $ 100,000  
John Gregory VanSchaack
    10,000       2,500     $ 50,000  
William F. Herbes
    10,000       2,500     $ 50,000  
Louis Joseph & Carolyn
Hope Knauff
    15,000       3,750     $ 75,000  
Jeff Pengra & Allen
Ofstehage
    10,000       2,500     $ 50,000  
Lloyd & Deborah Schill
    10,000       2,500     $ 50,000  
John Anthony DeRungs
    20,000       5,000     $ 100,000  
Eldon Marier
    10,000       2,500     $ 50,000  
Khuan K. Phu
    5,000       1,250     $ 25,000  
Bill Feniger
    10,000       2,500     $ 50,000  
Steve Huffman
    20,000       5,000     $ 100,000  
Manzoor Hasan
    30,000       7,500     $ 150,000  

-2-


 

                         
Investor   Common Shares   Warrant Shares   Purchase Price
Bobby Sweeney
    10,000       2,500     $ 50,000  
West & Laurie Houle
    200,000       50,000     $ 1,000,000  
Yadon Arad Sep IRA
    10,000       2,500     $ 50,000  
Mike Kooyman
    30,000       7,500     $ 150,000  
Stevan Birnbaum Trust
    9,600       2,400     $ 48,000  
Charles Lowden
    10,000       2,500     $ 50,000  
Arthur G. Caputo
    40,000       10,000     $ 200,000  
Wayne & Chen Lin
    5,000       1,250     $ 25,000  
John Cotter
    10,000       2,500     $ 50,000  
W.P. Malone Inc.
    5,000       1,250     $ 25,000  
Alan M. Johnson III & Marta I. Johnson
    5,000       1,250     $ 25,000  
Henry Schwarzbach
    5,000       1,250     $ 25,000  
Brian E. Rabune
    10,000       2,500     $ 50,000  
Adel Sheshtawy
    10,000       2,500     $ 50,000  
Mayank C. Patel
    6,000       1,500     $ 30,000  
Steven & Rita Yaroch
    5,000       1,250     $ 25,000  
Joseph C. & Loretta A. Pillari
    10,000       2,500     $ 50,000  
Stephen Weiss
    5,000       1,250     $ 25,000  
Leonard DeOliveira
    20,000       5,000     $ 100,000  
Ira & Paula Spodek
    10,000       2,500     $ 50,000  
Joel Hirsh
    5,000       1,250     $ 25,000  

-3-


 

                         
Investor   Common Shares   Warrant Shares   Purchase Price
Mark Wiley
    5,000       1,250     $ 25,000  
Rocco Fuschetto
    10,000       2,500     $ 50,000  
Paul Duncan
    20,000       5,000     $ 100,000  
Charles P. Nicholson
    5,000       1,250     $ 25,000  
Clay Gibson
    5,000       1,250     $ 25,000  
Tom & Molly Hicks
    10,000       2,500     $ 50,000  
Ahmed Mohamed
    5,000       1,250     $ 25,000  
James H. & Carole A. Deney
    5,000       1,250     $ 25,000  
Robert Deane
    5,000       1,250     $ 25,000  
Graham A. Wilshier
    5,000       1,250     $ 25,000  
Mark A. Koerner
    10,000       2,500     $ 50,000  
Dennis Weichert
    5,000       1,250     $ 25,000  
William N. Strawbridge
    8,000       2,000     $ 40,000  
Steven J. & Sherri L. Glock
    10,000       2,500     $ 50,000  
Anthony W. McCarthy
    20,000       5,000     $ 100,000  
Kathleen Egan-Jerone
    5,000       1,250     $ 25,000  
Robert Jerone
    5,000       1,250     $ 25,000  
Joseph A. ManFredo
    10,000       2,500     $ 50,000  
Maurice & Karen
DeVerteuil
    10,000       2,500     $ 50,000  
Mark Peeples
    20,000       5,000     $ 100,000  

-4-


 

                         
Investor   Common Shares   Warrant Shares   Purchase Price
David Coates
    15,000       3,750     $ 75,000  
Kathleen Ammann
    20,000       5,000     $ 100,000  
Matthew Caldwell Nicholls
    8,000       2,000     $ 40,000  
Joseph Q. Gibson
    5,000       1,250     $ 25,000  
Al Steffes
    200,000       50,000     $ 1,000,000  
Gary Gengenbach
    8,000       2,000     $ 40,000  
Sowmini Sriram
    5,000       1,250     $ 25,000  
James Hess Inc. ESOP
    5,000       1,250     $ 25,000  
Tees & Novelties Inc.
    5,000       1,250     $ 25,000  
Fergus Burke
    10,000       2,500     $ 50,000  
Gerald Singer
    10,000       2,500     $ 50,000  
NG Company
    9,000       2,250     $ 45,000  
Abraham Garfinkel
    5,000       1,250     $ 25,000  
Alan Kushner
    5,000       1,250     $ 25,000  
Elco Securities Ltd.
    5,000       1,250     $ 25,000  
Frederick Stanley
Shenstone
    5,000       1,250     $ 25,000  
Sio Partners, LP
    40,000       10,000     $ 200,000  
John W. & Linda C. Irvine
    5,000       1,250     $ 25,000  
Richard C. Ernest
    6,000       1,500     $ 30,000  
Thomas P. Darmstadter
    10,000       2,500     $ 50,000  

-5-


 

                         
Investor   Common Shares   Warrant Shares   Purchase Price
ATA Rahman
    5,000       1,250     $ 25,000  
William Baisley
    5,000       1,250     $ 25,000  
Joseph Sensi Jr.
    10,000       2,500     $ 50,000  
Nayer Imam
    8,000       2,000     $ 40,000  
David T. Gallagher
    10,000       2,500     $ 50,000  
Gary B. Kabat
    5,000       1,250     $ 25,000  
David E. Anglemeyer
    5,000       1,250     $ 25,000  
Richard Carver
    8,000       2,000     $ 40,000  
Bartholomew Murphy
    10,000       2,500     $ 50,000  
Richard H. Kantor
    10,000       2,500     $ 50,000  
James T. & Linda J. Bego
    10,000       2,500     $ 50,000  
Theodore R. Reviglio
    10,000       2,500     $ 50,000  
John Boulton
    5,000       1,250     $ 25,000  
Marc Kadish
    5,000       1,250     $ 25,000  
Chester P. Sadowski IRA
    8,000       2,000     $ 40,000  
Tom Coehlo
    10,000       2,500     $ 50,000  
William Carroll Campbell
    5,000       1,250     $ 25,000  
Casey C. Christofferson
    5,000       1,250     $ 25,000  
Timothy J. Smidt
    10,000       2,500     $ 50,000  
Mark & Judith Bowers
    5,000       1,250     $ 25,000  
Daniel I. & Sally E. Waki
    10,000       2,500     $ 50,000  
Noah Drezner
    5,000       1,250     $ 25,000  

-6-


 

                         
Investor   Common Shares   Warrant Shares   Purchase Price
Mark J. Ehlert
    10,000       2,500     $ 50,000  
Magnus Coxner
    10,000       2,500     $ 50,000  
David W. Drezner
    5,000       1,250     $ 25,000  
Bernie & Rita’s Limited Partnership
    5,000       1,250     $ 25,000  
Nelson Penarreta &
Patricia Davila
    5,000       1,250     $ 25,000  
David Shively
    7,400       1,850     $ 37,000  
Higginbotham Family Trust
    5,000       1,250     $ 25,000  
Michael Moeller
    5,000       1,250     $ 25,000  
Caduceus Private Investment III, L.P.
    2,971,698       742,925     $ 14,858,490  
OrbiMed Associates III, L.P.
    28,302       7,075     $ 141,510  
RA Capital Biotech Fund, L.P.
    1,178,880       294,720     $ 5,894,400  
RA Capital Biotech Fund II, L.P.
    21,120       5,280     $ 105,600  
Accipiter Life Sciences Fund, L.P.
    318,500       79,625     $ 1,592,500  
Accipiter Life Sciences Fund (Offshore), L.P.
    319,950       79,988     $ 1,599,750  
Accipiter Life Sciences Fund II (Offshore), L.P.
    271,450       67,863     $ 1,357,250  
Accipiter Life Sciences Fund II, L.P.
    132,350       33,087     $ 661,750  

-7-


 

                         
Investor   Common Shares   Warrant Shares   Purchase Price
Accipiter Life Sciences Fund II (QP), L.P.
    157,750       39,437     $ 788,750  
H&Q Healthcare Investors
    472,000       118,000     $ 2,360,000  
H&Q Life Science Investors
    328,000       82,000     $ 1,640,000  
Highbridge International
LLC
    400,000       100,000     $ 2,000,000  
MPM Bioequities
Investors Fund, LLC
    5,100       1,275     $ 25,500  
MPM Bioequities Master Fund, L.P.
    394,900       98,725     $ 1,974,500  
SF Capital Partners, Ltd.
    400,000       100,000     $ 2,000,000  
Capital Ventures
International
    400,000       100,000     $ 2,000,000  
A.M. Pappas Life Science Ventures III, L.P.
    338,928       84,732     $ 1,694,640  
PV III CEO Fund, L.P.
    21,072       5,268     $ 105,360  
Passport Global Master Fund SPC, Ltd.
    160,000       40,000     $ 800,000  
Wexford Spectrum
Investors, LLC
    165,000       41,250     $ 825,000  
Cornell Capital Partners, L.P.
    160,000       40,000     $ 800,000  
Crystal Cascades, L.P.
    80,000       20,000     $ 400,000  
Cranshire Capital, L.P.
    79,000       19,750     $ 395,000  

-8-


 

                         
Investor   Common Shares   Warrant Shares   Purchase Price
HSMR Capital Partners (QP), L.P.
    71,000       17,750     $ 355,000  
Camber Capital Fund, L.P.
    37,000       9,250     $ 185,000  
Bristol Investment Fund, Ltd.
    40,000       10,000     $ 200,000  
Chestnut Ridge Partners, L.P.
    38,000       9,500     $ 190,000  
RHP Master Fund, Ltd.
    35,000       8,750     $ 175,000  
Radius Venture Partners II, L.P.
    800,000       400,000*     $ 4,000,000  
Radius Venture Partners III, L.P.
    103,766       51,883*     $ 518,830  
Radius Venture Partners III QP, L.P.
    696,234       348,117*     $ 3,481,170  
Dilip J. Mehta
    10,000       5,000*     $ 50,000  
George M. Milne, Jr.
    10,000       5,000*     $ 50,000  
Sigma Capital Corp.
    400,000       167,500**     $ 2,000,000  
Biakum Trading, Inc
    10,000       5,000*     $ 50,000  
Silver Investments Holdings Corp.
    151,000       62,750***     $ 755,000  
Kevin O’Connell
    20,000       5,000     $ 100,000  
Meythaler Investment
Partners LC
    20,000       5,000     $ 100,000  

-9-


 

                         
Investor   Common Shares   Warrant Shares   Purchase Price
Frantz Medical Ventures Fund I, L.P.
    20,000       5,000     $ 100,000  
Barry and Lisa Bergman, JTWROS
    20,000       5,000     $ 100,000  
Philip Halpern
    8,000       2,000     $ 40,000  
William O. Lehmann, Jr.
    5,000       1,250     $ 25,000  
FIRST CLOSING TOTAL
    12,990,000       3,747,500     $ 64,950,000  
 
*   50% of these warrants are in the modified form for lead investors (“ Lead Investor Warrants ”), which includes a cashless exercise provision, as described in the Private Placement Memorandum
 
**   67,500 of these warrants are Lead Investor Warrants
 
***   25,000 of these warrants are Lead Investor Warrants

-10-


 

Exhibit A-2
Schedule of Investors
Second Closing
                         
Investor   Common Shares   Warrant Shares   Purchase Price
Christian Tonsberg     10,000       2,500     $ 50,000  

 


 

Exhibit B
INSTRUCTION SHEET FOR INVESTORS
(to be read in conjunction with the entire Securities Purchase Agreement)
A.   Complete the following items in the Securities Purchase Agreement :
  1.   Complete and execute the Investor Signature Page. The Agreement must be executed by an individual authorized to bind the Investor.
 
  2.   Exhibit B-1 — Stock Certificate Questionnaire:
    Provide the information requested by the Stock Certificate Questionnaire ;
  3.   Exhibit B-2 — Registration Statement Questionnaire:
    Provide the information requested by the Registration Statement Questionnaire .
  4.   Exhibit B-3/B-4 — Investor Certificate:
    Provide the information requested by the Certificate for Individual Investors (B-3) or the Certificate for Corporate, Partnership, Trust, Foundation and Joint Investors (B-4), as applicable.
  5.   Return, via facsimile, the signed Securities Purchase Agreement including the properly completed Exhibits B-1 through B-4, to either:
Cowen and Company, LLC
Attn: Gregg Smith
Facsimile: (646) 562-1269
-or-
National Securities Corporation
Attn: Matt Portes
Facsimile: (312) 751-0769
  6.   After completing instruction number five (5) above, deliver the original signed Securities Purchase Agreement including the properly completed Exhibits B-1 through B-4 to either:

 


 

COWEN AND COMPANY, LLC
1221 Avenue of the Americas
New York, NY 10020
Phone: (646) 562-1000
Fax: (646) 562-1269
Attn: Gregg Smith
Or
NATIONAL SECURITIES CORPORATION
875 N. Michigan Ave., Suite 1560
Chicago, IL 60611
Phone: (312) 867-3447
Fax: (312) 751-0769
Attn: Matt Portes
B.   Instructions regarding the wire transfer of funds for the purchase of Units are as follows:
Signature Bank as Escrow Agent for Athersys Inc.
ABA Number: 026013576
Acct Number: 1500892524

-2-


 

Exhibit B-1
STOCK CERTIFICATE QUESTIONNAIRE
         
 
  Please provide us with the following information:    
 
       
1.
  The exact name that the Securities are to be registered in (this is the name that will appear on the stock certificate(s)). You may use a nominee name if appropriate:  
                                                              
 
       
2.
  The relationship between the Investor of the Securities and the Registered Holder listed in response to item 1 above:  
                                                              
 
       
3.
  The mailing address, telephone and telecopy number and email address of the Registered Holder listed in response to item 1 above:  
                                                              
 
       
 
                                                                    
 
       
 
                                                                    
 
       
 
                                                                    
 
       
 
                                                                    
 
       
4.
  The Tax Identification Number of the Registered Holder listed in response to item 1 above:                                                                 

 


 

Exhibit B-2
REGISTRATION STATEMENT QUESTIONNAIRE
     In connection with the Registration Statement, please provide us with the following information regarding the Investor.
1. Please state your or your organization’s name exactly as it should appear in the Registration Statement:
                                                                                                                                                                           
    Except as set forth below, you or your organization does not hold any equity securities of the Company on behalf of another person or entity.
 
    State any exceptions here:
                                                                                                                                                                           
2. Your address or the address of your organization:
                                                                                                                                                  
                                                                                                                                                  
Telephone:                                                               
Fax:                                                                                    
Contact Person:                                                               
3. If your organization is not, and is not a wholly-owned subsidiary of an entity that is, required to file periodic and other reports with the SEC pursuant to Section 13(a) or Section 15(d) of the Exchange Act, identify any natural person(s) who exercise voting and investment power over any equity securities of the Company:
                                                                                                                                                  
                                                                                                                                                  
4. Have you or your organization had any position, office or other material relationship within the past three years with the Company or its affiliates? (Include any relationships involving you or your affiliates, officers, directors, or principal equity holders (5% or more) that has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during the past three years.)

 


 

      o       Yes                      o       No
     If yes, please indicate the nature of any such relationship below:
5. Are you the beneficial owner of any other securities of the Company? (Include any equity securities that you beneficially own or have a right to acquire within 60 days after the date hereof, and as to which you have sole voting power, shared voting power, sole investment power or shared investment power.)
      o       Yes                      o       No
     If yes, please describe the nature and amount of such ownership as of a recent date.
6. Please provide details regarding the beneficial ownership of any equity securities of the Company:
                                                                                                                                                  
                                                                                                                                                  
7. Have you made or are you aware of any arrangements relating to the distribution of the shares of the Company pursuant to the Registration Statement?
      o       Yes                      o       No
     If yes, please describe the nature and amount of such arrangements.

-2-


 

8. NASD Matters
     (a) State below whether (i) you or any associate or affiliate of yours are a member of the NASD, a controlling shareholder of an NASD member , a person assoc i ated with a member , a direct or indirect affiliate of a member , or an underwriter or related person with respect to the proposed offering; (ii) you or any associate or affiliate of yours owns any stock or other securities of any NASD member not purchased in the open market; or (iii) you or any associate or affiliate of yours has made any outstanding subordinated loans to any NASD member . If you are a general or limited partnership, a no answer asserts that no such relationship exists for you as well as for each of your general or limited partners.
Yes:                                No:
o                                     o
    If “yes,” please identify the NASD member and describe your relationship, including, in the case of a general or limited partner, the name of the partner:
    If you answer “no” to Question 7(a), you need not respond to Question 7(b).
          (b) State below whether you or any associate or affiliate of yours has been an underwriter, or a controlling person or member of any investment banking or brokerage firm which has been or might be an underwriter for securities of the Corporation or any affiliate thereof including, but not limited to, the common stock now being registered.
Yes:                                No:
o                                     o
    If “yes,” please identify the NASD member and describe your relationship, including, in the case of a general or limited partner, the name of the partner.

-3-


 

ACKNOWLEDGEMENT
     The undersigned hereby agrees to notify the Company promptly of any changes in the foregoing information which should be made as a result of any developments, including the passage of time. The undersigned also agrees to provide the Company and the Company’s counsel any and all such further information regarding the undersigned promptly upon request in connection with the preparation, filing, amending, and supplementing of the Registration Statement (or any prospectus contained therein). The undersigned hereby consents to the use of all such information in the Registration Statement.
     The undersigned understands and acknowledges that the Company will rely on the information set forth herein for purposes of the preparation and filing of the Registration Statement.
     The undersigned understands that the undersigned may be subject to serious civil and criminal liabilities if the Registration Statement, when it becomes effective, either contains an untrue statement of a material fact or omits to state a material fact required to be stated in the Registration Statement or necessary to make the statements in the Registration Statement not misleading. The undersigned represents and warrants that all information it provides to the Company and its counsel is currently accurate and complete and will be accurate and complete at the time the Registration Statement becomes effective and at all times subsequent thereto, and agrees during the Effectiveness Period and any additional period in which the undersigned is making sales of Shares under and pursuant to the Registration Statement, and agrees during such periods to notify the Company immediately of any misstatement of a material fact in the Registration Statement, and of the omission of any material fact necessary to make the statements contained therein not misleading.
Dated:                     
         
     
  Name   
     
  Signature     
     
  Name and Title of Signatory     

-4-


 

Exhibit B-3
CERTIFICATE FOR INDIVIDUAL INVESTORS
     If the investor is an individual, including married couples and IRA accounts of individual investors, pleased complete, date and sign this Certificate.
CERTIFICATE
     The undersigned certifies that the representations and responses below are true and accurate:
     (a) The investor has full power and authority to invest in the Company. If the investment is to be held jointly, each investor must execute and deliver the Securities Purchase Agreement and initial their investor status as requested in section (c) below.
     (b) Indicate the form of ownership:
           o Individual
           o IRA
           o Joint Tenants
           o Tenants in Common
           o Tenants in the Entirety
           o Community Property
           o Grantor of a Revocable Trust (identify each grantor and indicate under what circumstances the trust is revocable by the grantor):
          
 
          
 
(Continue on a separate piece of paper, if necessary.)
     (c) In order for the Company to offer and sell the Units in conformance with state and federal securities laws, the following information must be obtained regarding your investor status. Please initial each category applicable to you as an investor in the Company.
  o   1. I certify that I have a net worth (including home, furnishings and automobiles) in excess of $1 million either individually or through aggregating my individual holdings and those in which I have a joint, community property or other similar shared ownership interest with my spouse.
 
  o   2. I certify that I have had an annual gross income for the past two years of at least $200,000 (or $300,000 jointly with my spouse) and expect my income (or joint income, as appropriate) to reach the same level in the current year.

 


 

  o   3. I certify that I am a director or executive officer of Athersys, Inc. or Pubco.
Please provide the following personal investor information:
Investor Name(s):                                                                                                                                                                                                 
Individual executing Profile or Trustee:                                                                                                                                                            
Social Security Numbers / Federal I.D. Number:                                                                                                                                              
Date of Birth:                                                                                 Marital Status:                                                                                              
Joint Party Date of Birth:                                                                  Investment Experience (Years):                                                               
Annual Income:                                                                            Liquid Net Worth:                                                                                           
Net Worth:                                                                                         
Home Street Address:                                                                                                                                                                                              
Home City, State & Zip Code:                                                                                                                                                                                
Home Phone:                                                                                            Home Fax:                                                                                       
Home Email:                                                                                         
Employer:                                                                                                                                                                                                                     
Employer Street Address:                                                                                                                                                                                         
Employer City, State & Zip Code:                                                                                                                                                                      
Bus. Phone:                                                                                            Bus. Fax:                                                                                       
Bus. Email:                                                  
Type of Business:                                                                                                                                                                                            
NSC Account Executive / Outside Broker/Dealer:                                                                                    
Form of Payment — Check or Wire Transfer
      o   Check payable to “ Signature Bank, As Agent for ATHERSYS, INC.”
      o   Wire funds from my outside account according to the wiring instructions on the last page of this certificate
      o   Wire funds from my Brokerage Account
      o   The funds for this investment are rolled over, tax deferred from                      within the allowed 60-day window

-2-


 

     
Dated:                      , 2007
   
 
   
 
   
 
   
Print Name of Investor
  Print Name of Investor
 
   
 
   
Signature
  Signature

-3-


 

Exhibit B-4
CERTIFICATE FOR CORPORATE, PARTNERSHIP, LIMITED LIABILITY COMPANY,
TRUST, FOUNDATION AND JOINT INVESTORS
     If the investor is a corporation, partnership, limited liability company, trust, pension plan, foundation, joint Investor (other than a married couple) or other entity, an authorized officer, partner, or trustee must complete, date and sign this Certificate.
CERTIFICATE
     The undersigned certifies that the representations and responses below are true and accurate:
     (a) The investor has been duly formed and is validly existing and has full power and authority to invest in the Company. The person signing on behalf of the undersigned has the authority to execute and deliver the Securities Purchase Agreement on behalf of the Investor and to take other actions with respect thereto.
     (b) Indicate the form of entity of the undersigned:
           o Limited Partnership
           o General Partnership
           o Limited Liability Company
           o Corporation
           o Revocable Trust (identify each grantor, indicate under what circumstances the trust is revocable by the grantor and have each grantor complete and deliver Exhibit B-3):                                                                                    
          
 
(Continue on a separate piece of paper, if necessary.)
           o Other type of Trust (indicate type of trust and, for trusts other than pension trusts, name the grantors and beneficiaries):                                                                                                                                                    
          
 
(Continue on a separate piece of paper, if necessary.)
           o Other form of organization (indicate form of organization (                                                                                     ).
          (c) Indicate the approximate date the undersigned entity was formed:                                                                         .

 


 

     (d) In order for the Company to offer and sell the Units in conformance with state and federal securities laws, the following information must be obtained regarding your investor status. Please initial each category applicable to you as an investor in the Company.
  o   1. A bank as defined in Section 3(a)(2) of the Securities Act, or any savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Securities Act whether acting in its individual or fiduciary capacity;
 
  o   2. A broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934;
 
  o   3. An insurance company as defined in Section 2(13) of the Securities Act;
 
  o   4. An investment company registered under the Investment Company Act of 1940 or a business development company as defined in Section 2(a)(48) of that Act;
 
  o   5. A Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958;
 
  o   6. A plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, if such plan has total assets in excess of $5,000,000;
 
  o   7. An employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, if the investment decision is made by a plan fiduciary, as defined in Section 3(21) of such Act, which is either a bank, savings and loan association, insurance company, or registered investment advisor, or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons that are accredited investors;
 
  o   8. A private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940;
 
  o   9. Any partnership or corporation or any organization described in Section 501(c)(3) of the Internal Revenue Code or similar business trust, not formed for the specific purpose of acquiring the Shares and Warrants, with total assets in excess of $5,000,000;
 
  o   10. A trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the Shares and Warrants, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) of the Securities Act;
 
  o   11. An entity in which all of the equity owners qualify under any of the above subparagraphs. If the undersigned belongs to this investor category only, list the

-2-


 

      equity owners of the undersigned, and have each equity owner complete and deliver Exhibit B-3:                                                               
     
 
(Continue on a separate piece of paper, if necessary.)
     Please set forth in the space provided below the (i) states, if any, in the U.S. in which you maintained your principal office during the past two years and the dates during which you maintained your office in each state, (ii) state(s), if any, in which you are incorporated or otherwise organized and (iii) state(s), if any, in which you pay income taxes.
     
 
     
 
     
 
Dated:                      , 2007
     
 
   
 
Print Name of Investor
   
 
   
 
   
Name:
   
Title:
   
(Signature and title of authorized officer, partner or trustee)
   

-3-


 

SECURITIES DELIVERY INSTRUCTIONS
Please instruct us as to where you would like the Securities delivered to at Closing:
Name:                                                                                                                                                                           
Company:                                                                                                                                                                    
Address:                                                                                                                                                               
                                                                                                                                                                               
Telephone:                                                                                                                                                           
Other Special Instructions:                                                                                                                                  

-4-


 

Exhibit C
PLAN OF DISTRIBUTION
The selling stockholders may, from time to time, sell any or all of their shares of common stock on any stock exchange, market or trading facility on which the shares are traded or in private transactions. These sales may be at fixed or negotiated prices. The selling stockholders may use any one or more of the following methods when selling shares:
  ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
 
  block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;
 
  purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
 
  an exchange distribution in accordance with the rules of the applicable exchange;
 
  privately negotiated transactions;
 
  short sales;
 
  broker-dealers may agree with the selling stockholders to sell a specified number of such shares at a stipulated price per share;
 
  a combination of any such methods of sale; and
 
  any other method permitted pursuant to applicable law.
     The selling stockholders may also sell shares under Rule 144 under the Securities Act, if available, rather than under this prospectus.
     Broker-dealers engaged by the selling stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the selling stockholders (or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in amounts to be negotiated. The selling stockholders do not expect these commissions and discounts to exceed what is customary in the types of transactions involved. No such broker-dealer will receive compensation in excess of that permitted by NASD Rule 2440 and IM-2440. In no event will any broker-dealer receive total compensation in excess of 8%. Any profits on the resale of shares of common stock by a broker-dealer acting as principal might be deemed to be underwriting discounts or commissions under the Securities Act. Discounts, concessions, commissions and similar selling expenses, if any, attributable to the sale of shares will be borne by a selling stockholder. The selling stockholders may agree to indemnify any agent, dealer or broker-dealer that

 


 

participates in transactions involving sales of the shares if liabilities are imposed on that person under the Securities Act.
     The selling stockholders may from time to time pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock from time to time under this prospectus after we have filed a supplement to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act of 1933 supplementing or amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus.
     The selling stockholders also may transfer the shares of common stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus and may sell the shares of common stock from time to time under this prospectus after we have filed a supplement to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act of 1933 supplementing or amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus.
     The selling stockholders and any broker-dealers or agents that are involved in selling the shares of common stock may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares of common stock purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act.
     We are required to pay all fees and expenses incident to the registration of the shares of common stock (other than underwriting discounts and commissions). We have agreed to indemnify the selling stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
     The selling stockholders have advised us that they have not entered into any agreements, understandings or arrangements with any underwriters or broker-dealers regarding the sale of their shares of common stock, nor is there an underwriter or coordinating broker acting in connection with a proposed sale of shares of common stock by any selling stockholder. If we are notified by any selling stockholder that any material arrangement has been entered into with a broker-dealer for the sale of shares of common stock, if required, we will file a supplement to this prospectus. If the selling stockholders use this prospectus for any sale of the shares of common stock, they will be subject to the prospectus delivery requirements of the Securities Act.
     The anti-manipulation rules of Regulation M under the Securities Exchange Act of 1934 may apply to sales of our common stock and activities of the selling stockholders.

-2-


 

Exhibit D
COMPANY TRANSFER AGENT INSTRUCTIONS
[TRANSFER AGENT NAME AND ADDRESS]
Attention:
Ladies and Gentlemen:
Reference is made to that certain Securities Purchase Agreement, dated as of [                                           XX], 2007 (the “ Agreement” ), by and among BTHC VI, Inc., a Delaware corporation (the “ Company ”), Athersys, Inc., a Delaware corporation (“ Athersys ”), and the investors named on the Schedule of Investors attached thereto (collectively, the “ Holders” ), pursuant to which the Company is issuing to the Holders shares (the “ Common Shares ”) of Common Stock of the Company, par value $0.001 per share (the “ Common Stock ”), and Warrants (the “ Warrants ”), which are exercisable for shares of Common Stock.
     This letter shall serve as our irrevocable authorization and direction to you (provided that you are the transfer agent of the Company at such time):
     (i) to issue shares of Common Stock upon transfer or resale of the Common Shares; and
     (ii) to issue shares of Common Stock upon the exercise of the Warrants (the “ Warrant Shares ”) to or upon the order of a Holder from time to time upon delivery to you of a properly completed and duly executed Exercise Notice, in the form attached hereto as Exhibit I , which has been acknowledged by the Company as indicated by the signature of a duly authorized officer of the Company thereon.
     You acknowledge and agree that so long as you have previously received (a) written confirmation from the Company that either (i) a registration statement covering resales of the Common Shares and the Warrant Shares has been declared effective by the Securities and Exchange Commission (the “ SEC ”) under the Securities Act of 1933, as amended (the “ 1933 Act ”) and that resales of the Common Shares and the Warrant Shares may be made thereunder, or (ii) sales of the Common Shares and the Warrant Shares may be made in conformity with Rule 144 under the 1933 Act (“ Rule 144 ”), (b) if applicable, a copy of such registration statement, and (c) notice from the Company or any Holder that a transfer of Common Shares and/or Warrant Shares has been effected either pursuant to the registration statement (and a prospectus delivered to the transferee) or pursuant to Rule 144, then, unless otherwise required by law, within three (3) business days of your receipt of the notice referred to in (c), you shall issue the certificates representing the Common Shares and the Warrant Shares so sold to the transferees registered in the names of such transferees, and such

 


 

certificates shall not bear any legend restricting transfer of the Common Shares and the Warrant Shares thereby and should not be subject to any stop-transfer restriction.
     Please be advised that the Holders are relying upon this letter as an inducement to enter into the Agreement and, accordingly, each Holder is a third party beneficiary to these instructions.
     Please execute this letter in the space indicated to acknowledge your agreement to act in accordance with these instructions. Should you have any questions concerning this matter, please contact me at 216-431-9900.
         
  Very truly yours,

BTHC VI, INC.
 
 
  By:      
    Name:      
    Title:      
 
         
THE FOREGOING INSTRUCTIONS ARE
ACKNOWLEDGED AND AGREED TO
this      day of ___, 2007

NATIONAL CITY BANK
 
   
By:        
  Name:        
  Title:        
 
Enclosures

-2-


 

Exhibit E
FORM OF WARRANT
[Provided See Exhibit 4.2 to Current Report on Form 8-K filed on June 14, 2007]

 


 

Schedules
Schedule 3.1(a)
SUBSIDIARIES
BTHC VI has the following direct or indirect Subsidiaries:
  1.   B-VI Acquisition Corp. Subsidiary formed to merge with and into Athersys, with Athersys being the surviving corporation and a wholly-owned subsidiary of BTHC VI .
Athersys has the following direct or indirect Subsidiaries:
  1.   Advanced Biotherapeutics, Inc. Operating subsidiary of Athersys, owned 100% by Athersys. Formed in March 2000.
 
  2.   Athersys Limited. Subsidiary formed in UK related to clinical trial of ATHX 105. Owned 100% by Athersys. Formed in June 2006.
 
  3.   ReGenesys LLC. Merger subsidiary formed for acquisition of MAPC technology. Owned 100% by Athersys. Formed in September 2003.
 
  4.   ReGenesys BVBA. Subsidiary formed in Belgium related to potential collaboration. Owned 100% by Athersys indirectly. Formed in October 2005.
 
  5.   Athersys-Singapore PTE, LTD. Inactive subsidiary currently in dissolution. Owned 100% by Athersys. Formed in January 2003.
 
  6.   Oculus Pharmaceuticals, Inc. Inactive joint venture, owned 50% by Athersys. Formed in September 2001.

 


 

Schedule 3.1(d)
No Conflicts
The following obligations of Athersys will be incurred as a result of the Merger or the transactions contemplated by this Agreement:
  1.   Employee bonuses in the amount of approximately $455,000 (including routine payroll taxes), pursuant to Incentive Agreements between Athersys and its employees.
 
  2.   Officer retroactive salary adjustments in the amount of approximately $255,000 (including routine payroll taxes), pursuant to resolutions of the Athersys Board of Directors. The new salaries will take effect upon the First Closing.
 
  3.   Employee bonus in the amount of $50,000 for William Lehmann, pursuant to the Employment Agreement, dated January 1, 2004, by and between Athersys and William Lehmann.
 
  4.   One employee with an incentive agreement has not waived any potential right to M&A Bonus under Incentive Agreement because he is out of the country, but he is expected to execute a waiver after consummation of the Offering; any bonus that employee would otherwise be eligible for would be equal to one month of salary; employee’s current monthly salary is $8,242.
Milestone payment related to the MultiStem technology payable to the former holders of the MAPC technology in the amount of $500,000 in cash and 38,462 shares of common stock (1,378 shares as adjusted for merger exchange).

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Schedule 3.1(f)
CAPITALIZATION
                 
Prior to Merger   Authorized   Issued and Outstanding
 
               
PubCo:
               
 
               
Common Stock
    100,000,000       300,000  
 
               
Preferred Stock
    10,000,000       0  
 
               
Long-Term Incentive Plan (shares of Common Stock reserved for future issuance)
    3,035,000       0  

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Prior to Merger   Authorized   Issued and Outstanding
 
               
Athersys:
               
 
               
Common Stock (1)
    90,000,000       89,522,842  
 
               
Stock Option Plans (2)
    6,740,053       2,842,918  
 
               
Convertible Notes, convertible upon First Closing (3)
           
 
               
Common Stock Warrants, issuable to lenders upon First Closing (4)
           
 
(1)   Assumes the conversion of all series of Athersys preferred stock into common stock. Also assumes the exercise of all existing warrants by Athersys’ bridge investors, which are issuable upon the conversion of the preferred stock. Excludes 38,462 shares of common stock issuable upon the First Closing related to a milestone regarding the MultiStem technology. Also excludes shares of common stock that may be issuable to Athersys’ senior secured lenders upon the achievement of a milestone. Also excludes shares of common stock that may be issuable to Angiotech Pharmaceuticals, Inc. upon the achievement of certain milestones related to a strategic alliance.
 
(2)   Stock options granted to current employees, directors and consultants of Athersys will be terminated in connection with the merger. BTHC will assume certain stock option agreements with former employees and consultants of Athersys, which will amount to 5,052 option shares after taking the Merger Exchange Rate into consideration.
 
(3)   Athersys has secured notes issued to bridge investors ($2.5 million principal) and unsecured notes issued to Angiotech Pharmaceuticals, Inc. ($10 million principal) that will convert along with accrued interest upon the First Closing.
 
(4)   Athersys’ senior secured lenders are entitled to warrants with a nominal value of approximately $745,000, which are issuable upon the First Closing.

 


 

                 
Prior to the First Closing (5)   Authorized   Issued and Outstanding
 
               
Common Stock (6)
    100,000,000       3,510,523  
 
               
Preferred Stock
    10,000,000       0  
 
               
Long-Term Incentive Plan (shares of Common Stock reserved for future issuance)
    3,035,000       0  
 
               
Common Stock Warrants, issuable to lenders upon First Closing (shares of Common Stock reserved for future issuance) (7)
           
 
(5)   After the First Closing, Radius and other new investors may be beneficial owners of in excess of 5% of Common Stock, and upon the conversion of its note, Angiotech Pharmaceuticals, Inc. would be a beneficial owner of in excess of 5% of Common Stock.
 
(6)   Includes 1,378 shares of Common Stock issuable upon the First Closing related to a milestone regarding the MultiStem technology. Excludes the conversion of Athersys convertible notes. Excludes shares that may be issuable to Athersys’ senior lenders upon achievement of a milestone. Also excludes shares of Common Stock that may be issuable to Angiotech Pharmaceuticals, Inc. upon the achievement of certain milestones related to a strategic alliance.
 
(7)   Athersys’ senior secured lenders are entitled to warrants with a nominal value of approximately $745,000, which are issuable upon the First Closing. Based on the $5.00 offering price, warrants will be issued to the lenders for 149,026 shares of Common Stock.

 


 

Schedule 3.1(j)
MATERIAL AGREEMENTS
1.   Research Collaboration and License Agreement, dated as of December 8, 2000, by and between the Company and Bristol-Myers Squibb Company.
 
2.   Cell Line Collaboration and License Agreement, dated as of July 1, 2002, by and between the Company and Bristol-Myers Squibb Company, as amended as of January 1, 2006.
 
3.   Extended Collaboration and License Agreement, dated as of January 1, 2006, by and between the Company and Bristol-Myers Squibb Company.
 
4.   Exclusive License Agreement, dated as of May 17, 2002, by and between Regents of the University of Minnesota and MCL LLC, assumed by ReGenesys, LLC through operation of merger on November 4, 2003.
 
5.   Ownership Agreement, dated as of May 17, 2002, by and between Regents of the University of Minnesota and MCL LLC, assumed by ReGenesys, LLC through operation of merger on November 4, 2003.
 
6.   Strategic Alliance Agreement, by and between Athersys, Inc. and Angiotech Pharmaceuticals, Inc., dated as of May 5, 2006.
 
7.   License Agreement, by and between Athersys, Inc. and Angiotech Pharmaceuticals, Inc., dated as of May 5, 2006.
 
8.   Sublicense Agreement, by and between Athersys, Inc. and Angiotech Pharmaceuticals, Inc., dated as of May 5, 2006.
 
9.   Convertible Promissory Note in the amount of $5,000,000 from Athersys, Inc. to Angiotech Pharmaceuticals, Inc., dated as of May 5, 2006.
 
10.   Convertible Promissory Note in the amount of $5,000,000 from Athersys, Inc. to Angiotech Pharmaceuticals, Inc., dated as of January 16, 2007.
 
11.   Amended and Restated Registration Rights Agreement, dated as of April 28, 2000, as amended as of January 29, 2002, as of November 19, 2002, and as of May 31, 2007, by and

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    among the Company and certain of its stockholders.
 
12.   Secured Convertible Promissory Notes in the aggregate amount of $2,500,000 from Athersys, Inc. to Investors, dated as of October 19, 2006.
 
13.   Warrants to Investors, dated as of October 19, 2006.
 
14.   1995 Incentive Plan of Athersys, Inc., as amended.
 
15.   2000 Stock Incentive Plan of Athersys, Inc.
 
16.   BTHC VI, Inc. Long-Term Incentive Plan .
 
17.   Loan and Security Agreement, and Supplement, dated as of November 2, 2004, by and among the Company, Advanced Biotherapeutics, Inc., Venture Lending & Leasing IV, Inc., and Costella Kirsch IV, L.P.
 
18.   Promissory Notes made by the Company and Advanced Biotherapeutics, Inc., on behalf of Venture Lending & Leasing IV, Inc., and Costella Kirsch IV, L.P., dated November 12, 2004 (numbers CK-001 and 4035-001), and dated December 29, 2004 (numbers CK-002 and 4035-002).
 
19.   Amendment to Loan and Security Agreement, dated as of September 29, 2006, by and among the Company, Advanced Biotherapeutics, Inc., Venture Lending & Leasing IV, Inc., and Costella Kirsch IV, L.P.
 
20.   Intellectual Property Security Agreement, dated as of February 14, 2006, by and between Athersys, Inc. and Venture Lending & Leasing IV, Inc.
 
21.   Security Agreement, by and between Athersys, Inc. and Investors, dated as of October 19, 2006.
 
22.   Amended and Restated Employment agreement dated April 1, 1998 by and between Athersys, Inc. and Gil Van Bokkelen.
 
23.   Amended and Restated Employment agreement dated April 1, 1998 by and between Athersys, Inc. and John Harrington.

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24.   Employment agreement dated May 22, 1998 by and between Athersys, Inc. and Laura Campbell.
 
25.   Employment agreement dated September 25, 2000 by and between Athersys, Inc., Advanced Biotherapeutics, Inc. and Kurt Brunden.
 
26.   Employment agreement dated October 3, 2003 by and between Athersys, Inc., Advanced Biotherapeutics, Inc. and Robert Deans, Ph.D.
 
27.   Employment agreement dated January 1, 2004 by and between Athersys, Inc., Advanced Biotherapeutics, Inc. and William Lehmann.
 
28.   Form Incentive agreement — entered into with named executives.
 
29.   Non-competition agreements and D&O indemnification agreements with key members of management.
 
30.   D&O indemnification agreements with board members
 
31.   Separation and General Release Agreements with terminated employees, 2005, 2003, 2002.
 
32.   Engagement Letter, dated as of October 31, 2005, by and between the Company and Merrill Lynch & Co.
 
33.   Summary of Principle Terms, dated as of February 21, 2007, by and between the Company and Radius Ventures, as amended on March 19, 2007.
 
34.   Engagement Agreement, dated as of February 28, 2007, by and between the Company and National Securities Corporation.
 
35.   Amendment to Engagement Agreement, dated as of April 16, 2007, by and among the Company, National Securities Corporation, and Cowen and Company, LLC.
 
36.   Asset Purchase and License Agreement, dated as of May 22, 2007, by and between Athersys and Wyeth Pharmaceuticals, Inc.
 
37.   Merger Agreement, dated as of May 24, 2007, by and among Athersys, BTHC VI, Inc. and B-VI-Acquisition Corp.

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Schedule 3.1(n)
Liens
      Athersys has granted a security interest in substantially all of its assets, including without limitation, the capital stock or other equity interests of its subsidiaries, pursuant to the agreements and instruments set forth below.
  1.   Loan and Security Agreement, and Supplement, dated as of November 2, 2004, by and among the Company, Advanced Biotherapeutics, Inc., Venture Lending & Leasing IV, Inc., and Costella Kirsch IV, L.P.
 
  2.   Promissory Notes made by the Company and Advanced Biotherapeutics, Inc., on behalf of Venture Lending & Leasing IV, Inc., and Costella Kirsch IV, L.P., dated November 12, 2004 (numbers CK-001 and 4035-001), and dated December 29, 2004 (numbers CK-002 and 4035-002).
 
  3.   Amendment to Loan and Security Agreement, dated as of September 29, 2006, by and among the Company, Advanced Biotherapeutics, Inc., Venture Lending & Leasing IV, Inc., and Costella Kirsch IV, L.P.
 
  4.   UCC Financing Statements of the Company and Advanced Biotherapeutics, Inc. naming Venture Lending & Leasing IV, Inc., as agent, as secured party.
 
  5.   Intellectual Property Security Agreement, dated as of February 14, 2006, by and between Athersys, Inc. and Venture Lending & Leasing IV, Inc.
 
  6.   Control Agreement Concerning Deposit Accounts, dated as of November 2, 2004, by and among the Company, Advanced Biotherapeutics, Inc., Venture Lending & Leasing IV, Inc., Costella Kirsch IV, L.P., and National City Bank.
 
  7.   Account Control Agreement, dated as of November 2, 2004, by and among the Company, Advanced Biotherapeutics, Inc., Venture Lending & Leasing IV, Inc., Costella Kirsch IV, L.P., and NatCity Investments.
 
  8.   Secured Convertible Promissory Notes in the aggregate amount of $2,500,000 from Athersys, Inc. to Investors, dated as of October 19, 2006.

-5-


 

  9.   Security Agreement, by and between Athersys, Inc. and Investors, dated as of October 19, 2006.

-6-


 

Schedule 3.1(v)
PATENTS AND TRADEMARKS
     In April 2007, Athersys received a letter from REGENESIS BIOMEDICAL regarding Athersys’ application to register the mark REGENESYS. The letter was a request for Athersys to abandon its application and to cease from using the REGENESYS mark. The REGENESYS mark is not necessary to conduct Athersys’ business. Athersys believes that REGENESIS does not operate in the same field as REGENESYS. However, Athersys is considering its options in this matter.

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Schedule 3.1(cc)
INDEBTEDNESS
Athersys has the following debt outstanding under the agreements listed below, with balances as of May 31, 2007, including accrued interest, of:
    Senior secured loan with Venture Lending/Costella Kirsch ($3,527,715)
 
    Secured promissory notes with Bridge Investors ($2,658,219), which will convert into common stock of BTHC upon Closing of the Offering.
Unsecured promissory notes with Angiotech ($10,370,993), which will convert into common stock of BTHC upon Closing of the Offering.
 
1.   Loan and Security Agreement, and Supplement, dated as of November 2, 2004, by and among the Company, Advanced Biotherapeutics, Inc., Venture Lending & Leasing IV, Inc., and Costella Kirsch IV, L.P.
 
2.   Promissory Notes made by the Company and Advanced Biotherapeutics, Inc., on behalf of Venture Lending & Leasing IV, Inc., and Costella Kirsch IV, L.P., dated November 12, 2004 (numbers CK-001 and 4035-001), and dated December 29, 2004 (numbers CK-002 and 4035-002).
 
3.   Amendment to Loan and Security Agreement, dated as of September 29, 2006, by and among the Company, Advanced Biotherapeutics, Inc., Venture Lending & Leasing IV, Inc., and Costella Kirsch IV, L.P.
 
4.   Secured Convertible Promissory Notes in the aggregate amount of $2,500,000 from Athersys, Inc. to Investors, dated as of October 19, 2006.
 
5.   Convertible Promissory Note in the amount of $5,000,000 from Athersys, Inc. to Angiotech Pharmaceuticals, Inc., dated as of May 5, 2006.
 
6.   Convertible Promissory Note in the amount of $5,000,000 from Athersys, Inc. to Angiotech Pharmaceuticals, Inc., dated as of January 16, 2007.

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Schedule 5.1(h)
CONSENTS AND WAIVERS
1.   Stockholder consent to amend the Athersys Stockholders’ Agreement to provide for its termination upon the closing of the Offering and the Merger, and waiver of preemptive rights relating to the Offering.
2.   Stockholder consent to amend the Athersys Registration Rights Agreement to approve the registration rights being provided in this Offering and to waive certain registration rights.

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EXHIBIT 10.34
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THE REDACTED PORTIONS OF THIS EXHIBIT, AND SUCH CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXCLUSIVE LICENSE AGREEMENT
      THIS EXCLUSIVE LICENSE AGREEMENT is made and entered into as of May                      , 2002, by and between Regents of the University of Minnesota, (“University”), a constitutional, educational corporation under the laws of the state of Minnesota, having an office at 600 McNamara Alumni Center, 200 Oak Street SE, Minneapolis, MN 55455-2070 and MCL, LLC (“Company”), a limited liability corporation organized under the laws of the State of Minnesota, having a principal place of business at 2100 West 21st Street, Minneapolis, MN 55405.
      WHEREAS , Dr. Catherine Verfaillie, Dr. Leo Furcht and Dr. Morayama Reyes have developed Technology relating to multipotent postnatal derived progenitor cells, their precursors, progeny and components, products made therefrom, processes used in their production and processing, and methods for their use.
      WHEREAS , that Technology is described inter alia in the Patent Applications;
      WHEREAS , the University, has waived its interest to certain parts of the Technology, inter alia , the multipotent postnatal derived progenitor cells, and that waived part of the Technology (“Company Technology”) is assigned to and owned by the Company; and
      WHEREAS , the remaining part of the Technology (“University Technology”) is owned by the University and ownership of the Company Technology and the University Technology is governed by a separate agreement between the University and the Company; and
      WHEREAS , the University desires to grant to the Company and the Company desires to receive an exclusive license to the University Technology subject to the terms of this Agreement;
      NOW, THEREFORE , the University and the Company agree as follows:
ARTICLE 1 — DEFINITIONS
     1.1 Definitions . Whenever used in this Agreement, unless otherwise clearly indicated by the context, the following terms shall have the meaning ascribed to them in this article 1.1:
     “Affiliate” shall mean any legal entity directly or indirectly controlling, controlled by or under common control with the Company. For purposes of this Agreement, “control” means the (i) direct or indirect ownership of more than fifty percent of the outstanding voting securities of a legal entity, (ii) right to receive more than fifty percent of the profits or earnings of a legal entity, or (iii) right to control the policy decisions of a legal entity.

 


 

     “Agreement” shall mean this agreement, entitled Exclusive License Agreement, between the University and the Company entered into on the Effective Date.
     “Common Stock” shall mean the Common Stock of the Company as it exists on the Effective Date, which has no anti-dilution, pre-emptive, or cumulative voting rights provision and as described in the articles of incorporation on file with the Secretary of State of the State of Minnesota.
     “Company” shall mean MCL, LLC, a limited liability corporation organized under the laws of the State of Minnesota.
     “Company Technology” shall mean that part of the Technology that is owned by the Company pursuant to that certain Ownership Agreement dated as of the Effective Date.
     “Effective Date” shall mean the date set forth in the first paragraph of this Agreement.
     “Field of Use” shall mean any and all fields of use, including but not limited to diagnostic, therapeutic and research applications.
     “Licensed Patent” shall mean a Patent that claims as an invention one or more aspects of the Technology.
     “Licensed Product” shall mean any Technology which is within the scope of one or more claims of a Licensed Patent and, but for the license granted in this Agreement, would infringe, constitute contributory infringement, or constitute inducement to infringe of one or more such claims when made by, made for, used, sold, offered for sale, imported, exported, leased, or otherwise disposed of by the Company (or its permitted assignees, sublicensees, or transferees).
     “Net Sales” shall mean the amount invoiced for sales and other dispositions of Licensed Products sold during the Term of this Agreement and the Post-Termination Period, in any arm’s-length transactions to any unrelated third-party transferee in any channels of distribution less the following deductions (i) all trade, quantity, cash or prompt payment discounts or rebates actually allowed, (ii) all credits and allowances actually granted due to rejections, returns, defective Licensed Product, replacements, warranty, outdating, billing errors, and retroactive price reductions, (iii) customs duties and tariffs, (iv) excise, sale, use, turnover, inventory, value-added, foreign withholding, and equivalent taxes or other government charges, but not net income or net profit taxes (v) outbound transportation, insurance charges separately billed to buyer or prepaid, and advertising allowances, (vi) special outbound packing separately billed to buyer or prepaid, (vii) any sales, agents, or brokers commissions paid to non-Affiliates, and (viii) all charges in connection with converting, transmitting, or remitting currency. Sales, credits, refunds, and uncollectable accounts shall be accounted for when recognized by the Company according to generally accepted accounting principles. Shipments between the Company and its Affiliates will not be considered to be sold or otherwise disposed of until they are sold to a third party customer of the Company or of its Affiliates. If a Licensed Product is sold in combination with another component, Net Sales, for purposes of determining royalties on the combination, will be calculated by multiplying Net Sales of the combination by the fraction A/(A+B), where A

2


 

is the invoice price of the Licensed Product if sold separately and B is the invoice price of any other component(s) in the combination if sold separately. If the Licensed Product and the other component(s) in the combination are not sold separately, Net Sales, for purposes of determining royalties on the combination, will be calculated by multiplying Net Sales of the combination by the fraction C/(C+D), where C is the direct cost of manufacturing the Licensed Product and D is the direct cost of manufacturing any other component(s) in the combination. Cost of manufacturing will be determined in accordance with generally accepted accounting principles. In the event any Licensed Product is leased or sold on an installment basis, Net Sales shall mean the revenue stream as and when recognized as revenue by the Company in accordance with generally accepted accounting principles. Net Sales shall not include any charitable gift by the Company of any Licensed Product or the transfer of Licensed Product to an Affiliate or non-Affiliate for conducting research or product development for the Company’s benefit. Net Sales shall also exclude the transfer of Licensed Product to a research or educational institution for research or educational purposes, provided such transfer was made for no more than de minims consideration.
     “Patent” shall mean any and all issued letters patents, including but not limited to implementation, improvement, addition, utility model, or appearance design patents and inventors certificates, as well as patents that may issue from any divisions, reissues, continuation, renewals, and extension of any of the foregoing.
     “Patent Applications” shall mean the applications listed in Exhibit A.
     “Post-Termination Period” shall mean the one hundred eighty (180) day period commencing on the date of termination of this Agreement as described in article 8.3.
     “Royalty Rate” shall mean [*%].
     “Sublicensees” shall mean any sublicensees of the Company, including Affiliates of the Company.
     “Technology” shall mean Company Technology and University Technology, including but not limited to, multipotent postnatal derived progenitor cells, precursors, progeny or components thereof, products and information obtained from the foregoing, processes and products utilized in production or processing of any of the foregoing, methods of utilizing any of the foregoing, and any Trade Secret Information or know-how relating to the foregoing. The term “Technology” shall also include any invention involving multipotent postnatal derived progenitor cells (a) that is the result of research conducted by or under the direction of Drs. Catherine Verfaillie, Leo Furcht or Morayama Reyes while at the University or is the result of research conducted at the University by a University faculty, staff or student using such cells provided by the University pursuant to sub-article 3.3(a) of this Agreement; (b) that is owned by the University pursuant to its p * olicies and agreements with its employees; and (c) that is disclosed to the University no later than the seventh (7 th ) anniversary of the Effective Date.
 
*   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.

3


 

     “Term” shall mean the period commencing on the Effective Date and expiring upon the occurrence of any of the events set forth in article 2.
     “Territory” shall mean worldwide.
     “Trade Secret Information” shall mean trade secret as defined under the Minnesota Uniform Trade Secrets Act, Minn. Stat. Section 325C.011, et seq.
     “University” shall mean the Regents of the University of Minnesota, a constitutional, educational corporation under the laws of the State of Minnesota.
     “University Technology” shall mean that part of the Technology that is owned by the University pursuant to that certain Ownership Agreement dated as of the Effective Date.
     “Up-Front Payment-In-Kind” shall mean the transfer by the Company to the University of 5% of the Company’s Common Stock.
ARTICLE 2 — TERM
     2.1 Term . The Term of this Agreement shall commence on the Effective Date and, unless terminated earlier as provided in Article 8, this Agreement shall terminate at the end of the life of the last to expire Licensed Patent.
     2.2. Initial Fixed Term . Notwithstanding any provision of this Agreement to the contrary, without the written consent of the University and the Company, the Company shall not terminate this Agreement during the first two (2) years of the Term.
     2.3 Use of Technology Not Covered By Licensed Patent . During and after the expiration of this Agreement, the Company shall continue to have the right to make, have made, use, sell, offer to sell, import, export, lease, or otherwise dispose of any Technology that is not covered by a claim of a Licensed Patent.
ARTICLE 3 — GRANT OF LICENSE
     3.1 The Company’s Rights .
     (a) Subject to the terms and conditions of this Agreement, the University grants to the Company and the Company accepts, an irrevocable, exclusive right and license in any and all Fields of Use, including the right to sublicense to Affiliates or unrelated third parties, to the Licensed Patents and the University Technology to make, have made, use, sell, offer to sell, import and export, lease or otherwise dispose of Licensed Product in the Territory.
     (b) The Company, without the prior approval of the University, may assign this Agreement to another if (i) the Company delivers to the University written notice of the proposed assignment (along with pertinent information about the terms of the assignment and the assignee) at least thirty (30) days prior to the date of the event described below in part ii of this

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sub-article 3.1(b), and (ii) the assignment is made as a part of and in connection with (a) the sale by the Company of all or substantially all of its assets to a single purchaser, (b) the sale, transfer, or exchange by the shareholders, partners, or equity owners of the Company of a majority interest in the Company to a single purchaser, or (c) the merger of the Company into another corporation or other business entity. Any assignment made in violation of this sub-article 3.1(b) shall be void.
     (c) The Company shall give the University at least ten (10) days advance written notice of any proposed sublicense prior to its execution so that the University may review its proposed terms. Any sublicense granted by the Company to a third party shall be subject in all applicable respects to the terms contained in this Agreement.
     3.2 The United States Government’s Rights . This Agreement, including the grant of license set forth above in sub-article 3.1, may be subject to the applicable terms of the United States laws concerning government funded inventions (including, without limitation, 37 Code of Federal Regulations Sec. 401) and subject to the associated rights of and obligations owed to the federal government of the United States of America for any such portion of the Technology the development of which was supported by United States government funding. As of the Effective Date, to the knowledge of the University the research and development resulting in the creation of Technology was performed with grant rights independent of the normal march-in rights of the federal government of the United States of America. Should the federal government of the United States of America assert any such rights, the University shall fully cooperate with the Company and shall assist the Company to obtain copies of any records relevant to this matter within the control of the University and allow the Company to interview any individual at the University with knowledge relevant to this matter. If in the future during the term of this Agreement, the University accepts funding from the United States government or any other sponsor for research and development of any Technology, the University shall notify the Company within 14 days of such acceptance.
     3.3 The University’s Rights .
     (a) The University reserves an irrevocable, nonexclusive, and transferable (transferable only to the extent as set forth below in this sub-article 3.3(a)) right to the University Technology and the Company grants to the University an irrevocable, nonexclusive, and transferable (transferable only to the extent as set forth below in this sub-article 3.3(a)) right and license to the Company Technology (i) for use by the University for its own non-commercial educational and non-commercial research purposes and (ii) to provide to not-for-profit research institutions and to not-for-profit educational institutions for such institution’s non-commercial educational and non-commercial research purposes, the multipotent post natal progenitor cells; protocols, methods and information related to or derived from the isolation, purification, use and propagation of the cells; protocols, methods and information related to or derived from the differentiation of the cells into various cell types; protocols, methods and information related to or derived from the isolation of purified differentiated cells, and the use of the differentiated cells. This right to use and provide the Technology specifically excludes the right to use or provide for use the Technology for any commercial purposes and for any in vivo use in humans. The University shall not assign the University’s rights granted or reserved in this sub-article

5


 

3.3(a) to use or provide the Technology. The University may transfer (i) the Company’s Technology to the extent granted to the University by the Company under this sub-article 3.3(a) and (ii) the University Technology to the extent the University has reserved rights in the University Technology under this sub-article 3.3(a) so long as such transfer is substantially in accordance with the terms of the Material Transfer Agreement, attached to this Agreement as Exhibit C. The University shall provide such Technology only after receiving an agreement substantially in accordance with the terms of such Material Transfer Agreement signed by the institution and the University. The University shall deliver a copy of the signed Material Transfer Agreement to the Company within 14 days after its receipt by the University.
     (b) The University shall have the right to publish or otherwise disclose in writing, information concerning the Technology, except as limited by this sub-article. At least thirty (30) days prior to the publication, presentation, or the disclosure of the Technology, the University shall deliver to the Company a copy of the paper, slides, or other media containing such information to be published, presented or electronically distributed. Upon request made by the Company in writing within such thirty-day period, the University shall withhold publication, presentation, or disclosure of the Technology until after intellectual property protection has been applied for, but in no event shall the University be obligated to so withhold for more than ninety (90) days after the Company has delivered its written request. The University acknowledges the Company’s interest in preserving the patentability of the Technology. Notwithstanding any language in this Agreement to the contrary, the University shall, if the Company requests, prohibit the publication or otherwise disclose any information concerning the Technology if the publication or disclosure would violate the terms of any valid nondisclosure agreement between the Company and the University.
ARTICLE 4 — COMMERCIALIZATION
     4.1 Commercialization . The Company shall use commercially reasonable efforts commensurate with the prevailing industry practices pertaining to the Technology and/or any Licensed Product and the early-stage research and development nature of the Company, to:
     (a) in preparation for meeting with the Food and Drug Administration, initiate a regulatory audit of and provide a written report to the University on the status of the Technology in terms of safety and efficacy within 2 years, which shall include making a reasonable determination whether more animal studies for safety and efficacy are needed and the general nature of these studies.
     (b) submit an application to the Food and Drug Administration for use of the Technology as an orphan drug within 4 years.
     (c) submit an IND application to the Food and Drug Administration for use of the Technology in a selected therapeutic category within 6 years and commence clinical trails as soon as practical once the IND has been approved.
     (d) commercialize a Licensed Product within 10 years.

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     (e) satisfy one of the following fund raising milestones:
  (i)   raise two hundred fifty thousand dollars ($250,000) over and above the Company capitalization existing as of the Effective Date, either singularly or a combination thereof from venture capital firms, investment banks, corporate partners, private investors or SBIR grants within 2 years, or
 
  (ii)   make an R&D investment in the University’s stem cell research laboratory of which Catherine Verfaillie is the head of at least two hundred fifty thousand dollars ($250,000) within 2 years.
     All dates referenced in milestones 4.1 subsections a-e commence on the Effective Date
     4.2 Covenants Regarding the Manufacture of Licensed Products . The Company, its assignees, or its Sublicensees will employ commercially reasonable efforts commensurate with the prevailing industry practices pertaining to the Technology and/or the Licensed Product to minimize Licensed Products that are defective in design or manufacture. The Company, its assignees, or its Sublicensees will manufacture, sell, or transfer Licensed Products that comply with all applicable federal and state law, including all federal export laws and regulations. The Company shall, and it shall require and cause any assignees or Sublicensees to, manufacture Licensed Products in the United States of America if (a) the Licensed Product is to be sold in the United States of America and (b) the Licensed Product embodies or is produced through use of an invention which is subject to the rights of the federal government of the United States of America, as described above in sub-article 3.2, unless the Company is granted a waiver of these restrictions by the United States of America.
     4.3 Commercialization Reports . Throughout the Term and during the Post-Termination Period, the Company shall deliver to the University along with the Report described below in article 5.2, a written annual report describing the Company’s efforts and plans to achieve the commercialization goals set forth in sub-article 4.1.
     4.4 Use of the University’s Name and Trademarks or the Names of University Faculty, Staff or Students . Unless required by law or an order of a court or governmental agency, the Company shall not use the name or trademarks of the University in promoting or advertising the Company or any product of the Company without the University’s prior written approval. The Company may use the name of any of the University’s faculty, staff, or student body members, upon obtaining such members’ written approval. Notwithstanding this provision, the Company and its employees shall have the right to make truthful, fair, good faith, non-promotional statements about the Technology, including the identity of the University and any individuals involved with the Technology.
     4.5 Press Release . The University and the Company will issue, within 45 days following execution of this Agreement, a joint press release announcing that the University has entered into an agreement granting an exclusive, worldwide license of the University Technology to the Company. Such press release will be reviewed and agreed to by both the University and the Company prior to release. The financial terms of this Agreement shall remain confidential unless required by law or by an order of a court of competent jurisdiction or other

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governmental agency to be disclosed. At any time after the joint release of such press release, the Company shall have the right to disclose any and all information about this Agreement, including its terms, to any other person or to the public.
ARTICLE 5 — PAYMENTS, REIMBURSEMENTS, REPORTS AND RECORDS
     5.1 Payments .
     5.1.1 Up-Front Payment-In-Kind . Within thirty (30) business days of the Effective Date, the Company shall deliver to the University the Up-Front Payment-In-Kind. The University shall enter into the Company’s Subscription Agreement, attached to this Agreement as Exhibit D, prior to delivery of the Company’s shares of Common Stock.
     5.1.2 Royalty Payments On Net Sales . Within 60 days after the last day of a calendar quarter during the Term and during the Post-Termination Period, the Company shall deliver to the University its check for royalty payments on Net Sales in an amount equal to the Royalty Rate multiplied by the Net Sales of Licensed Products sold, leased, or otherwise disposed of to a third party that is not an Affiliate of the Company less (a) the amount of any fees (such as awards or settlement amounts payable to third parties for past infringement as a result of a credible threat of litigation or actual litigation) and (b) any lump sum and/or periodic royalties the Company shall be required pay to any third party to license intellectual property rights, including but not limited to any patent rights as either (i) a result of patent infringement litigation against the Company as referred to in Article 7.2, or (ii) that are necessary or commercially desirable to permit the Company to manufacture, sell, lease, or otherwise dispose of Product. The deduction from royalty payments on Net Sales in connection with any fees, lump sums, or periodic royalties to any third party shall not exceed the aggregate of the lesser of 1 / 2 of the royalty paid by the Company to any such third party or [*%] of Net Sales of any such third party, otherwise due the University if no such deduction were allowed.
     5.1.3 Sublicense Payments . In the event of any sublicenses by the Company to a third party that is not an Affiliate, the Company shall pay a royalty to the University in the amount of the lesser of 1 / 2 of the royalty paid to the Company by such Sublicense or [*]% of Net Sales of such Sublicensee, if and when the Company actually collects a royalty payment on such Net Sales. The Company shall pay to the University [*%] * of any cash payments (if such payments are not based upon a royalty on Net Sales of Product of the Sublicensee) the Company receives from the sublicense, if and when such cash payments are paid to the Company. Since the University will share any benefit that inures to the Company due to the University’s ownership of Common Stock (the University’s Up-Front Payment-In-Kind) in the Company, the Company shall not be obligated to pay a percentage of or share with the University any (i) equity in a Sublicense received by the Company from any Sublicensee, (ii) equity investment a Sublicensee makes in the Company, or (ii) cash received by the Company for research,
 
*   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.

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development, clinical studies, and Licensed Products and/or cells produced for the Company or Sublicensee for research studies that will benefit the Company. Notwithstanding that the Company is not obligated to pay a percentage of or share with the University any equity or cash as set forth in the previous sentence, in the event the Company (i) assigns this Agreement in connection with a transaction described in sub-article 3.1(b) or (ii) assigns substantially all of its rights in the Technology and Licensed Patents to a third party or enters into a transaction that is tantamount to such, the University shall receive a share of any equity received by the Company in exchange for such assignment. The University’s percentage share of the equity shall be equal to the University’s percentage share of its equity in the Company on the date of such assignment.
     5.1.4 Licensed Product Covered by Valid and Subsisting Claim . Royalty payments under sub-article 5.1.2 and sublicense payments under sub-article 5.1.3 shall be due only for Net Sales of Licensed Product covered by a valid and subsisting claim of a Licensed Patent. Royalty payments and sublicense payments shall not be due for Net Sales of any product covered only by a claim of a pending application.
     5.1.5 Currency and Checks . All computations and payments made under this agreement shall be in United States dollars. For purposes of determining the dollar value of transactions conducted in non-United States dollar currencies, the exchange rate for the currency in dollars shall be the rate set by Citibank, N.A., in New York, New York on the last business day of the month in which the transaction was entered into. All checks to the University shall be made payable to the “Regents of the University of Minnesota” and shall be sent to the address specified in article 12.10 of this Agreement.
     5.2 The Company’s Reports . Within 60 days after the last day of a calendar quarter during the Term and the Post-Termination Period, the Company shall deliver to the University a written report (a copy of the form of which is attached to this Agreement as Exhibit B) recounting the number and Net Sales amount (expressed in U. S. dollars) of all sales, leases or other dispositions of Licensed Products during such calendar quarter. The Company shall deliver such written report to the University even if the Company is not required to pay to the University a payment for sales, leases or other dispositions of Licensed Products during the calendar quarter.
     5.3 Records Retention and Audit Rights .
     5.3.1 Throughout the Term, the Post-Termination period, and after the Post-Termination period, the Company, at its expense, shall keep and maintain for a period of three (3) years complete and accurate records of all sales, leases, and other dispositions of Licensed Products during the Term and the Post-Termination period. The Company may discard any records older than three (3) years.
     5.3.2 On behalf of the University an independent certified public accountant, at the University’s expense except as set forth below in this sub-article 5.3.2, shall have the right to inspect and audit, once each year, the Company’s records referred to in sub-article

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     5.3.1 at the Company’s address as set forth in article 12.10 or such other location as the University and the Company shall mutually agree during the Company’s normal business hours. If the independent certified public accountant, in accordance with the results of such inspection and audit, determines that the Company has underpaid amounts owed to the University by at least 5% percent or $42,000, whichever is smaller, in any annual reporting period, the Company shall reimburse the University for all of the University’s reasonable expenses to the accountants to inspect and audit such records.
     5.4 Interest . Interest computed at six percent (6%) per annum shall accrue on all unpaid amounts to the University under this Agreement, commencing on the date payment for such amount was due and owing.
ARTICLE 6 – PATENT APPLICATIONS AND PATENTS
     6.1 Pre-License Patent Filings . The University and the Company acknowledge that as of the Effective Date, no Patents have issued on any of the Patent Applications. The University and the Company each acknowledge that it has reviewed the Patent Applications and that neither the University nor the Company has any basis to challenge or dispute the work product of any of the Patent Applications. In connection with the filing and prosecution of the Patent Applications and of any other patent applications filed pursuant to this Agreement, the Company shall pay for all costs, including attorney’s fees, related to the Patent Applications and such other patent applications.
     6.2 The Filing and Prosecution of Patent Applications Covering the Technology During the Term of this Agreement . At this time and in the future, the Company, at its discretion, shall determine if it will file a patent application on any of the Technology; in which countries to file a patent application; if it will continue to prosecute any patent application; or whether to pay or continue to pay any maintenance fees on any Licensed Patents; and, subject to the terms of sub-article 7.1 of this Agreement, whether to commence and or settle any patent infringement litigation involving any Licensed Patent. The Company, in consultation with and the reasonable approval of, the University, shall choose patent counsel to prepare and prosecute or continue to prosecute any foreign or domestic patent application covering the Technology; provided, however, the Company’s determination as to the expertise of a particular attorney to prosecute a patent application shall be accorded great weight in the decision to select and retain counsel. The Company shall pay all costs, including attorney’s fees, associated with prosecution of any patent applications, incurred during the Term.
     The University shall throughout the Term of the Agreement cause its employees, faculty, staff and students who are conducting research, development or other inventive work and others under such an obligation to the University to disclose to the University inventions that are or reasonably could be deemed to be within the definition of Technology as used in this Agreement and to assign to the University rights in such invention such that the Company shall receive, by this Agreement, the license agreed to be granted to the Company.
     The University shall inform the Company 30 days prior to any event -including but not limited to, any publication or public display of an aspect of the Technology not previously

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published or publicly displayed- that would statutorily bar the Company from filing a patent application on that aspect of the Technology in the United States of America or any other country. If the Company declines to file a patent application on any Technology, it shall so inform the University. The University shall have the option to file a patent application on such Technology at the University’s expense. The University shall own any patent that issues on such patent application without any obligation to license any such patent to the Company.
     The University and the Company shall inform each other, from time to time and within a reasonable time, of the status of any patent application not yet filed but in progress and the subsequent prosecution of the patent application, including delivering to the each other pertinent notices, written and oral communications with governmental officials, and documents. Each, if they wish, may comment on the drafting of any patent application and on the prosecution of the patent application, which the other, in good faith, shall consider.
     6.3 Company’s Right to Monitor Technology. The University shall use reasonable efforts to provide the Company with access to the Technology created during the Term of this Agreement for the purpose of monitoring and reviewing the progress and results of the Technology, including but not limited to, facilitating the Company to meet on a monthly basis with University employees, faculty, staff, and students conducting the research and development of the Technology.
ARTICLE 7 — INFRINGEMENT
     7.1 Third Party Infringement of the Patent .
     7.1.1 Notice of Third Party’s Infringement . In the event the University or the Company learns of substantial, credible evidence that a third party is making, having made, using, selling or importing a product in the Field of Use and in the Territory that infringes any Licensed Patent, the University or the Company, as the case may be, having such evidence shall promptly deliver written notice of possible infringement to the other, describing in detail the information suggesting infringement.
     7.1.2 The Company’s Authority .
     (a) The Company shall have the sole discretion and authority for the enforcement of all rights relating to a Licensed Patent. Upon the delivery of the notice described above in sub-article 7.1.2, the Company shall within 18 months thereafter complete its investigation of the matter and inform the University of its decision whether or not to commence litigation against the third party to enjoin the third party from infringing the Licensed Patent and/or to seek compensation for the acts of infringement and reimbursement for related costs and expenses; to enter into a sublicense agreement with the third party; or to settle the matter with the third party. If the Company’s decision is not to commence litigation and it has not settled the matter with the third party or entered into a sublicense agreement with the third party, the University shall have the right to commence litigation at its sole expense and shall be entitled to any and all proceeds or awards of monetary damages for past infringement resulting from such

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litigation. If the Company’s decision is to commence litigation, both the Company and the University shall each have the right to fund a percentage of the cost of litigation and to share in any and all proceeds or awards of monetary damages for past infringement resulting from such litigation in direct proportion to their respective funding share of the litigation. The funding share shall not exceed 50% for the Company and 50% for the University, but in the event one of the parties agrees to a percentage share less than its maximum of 50%, the other party shall have the right to fund the litigation by a percentage share equal to 100% less the other parties agreed to funding share. If the total of agreed to funding shares of the University and the Company is less than 100%, neither party shall be required to pursue the litigation. If, during the Company’s 18 month investigative period, the Company sublicenses the Licensed Patents and/or the Technology to a third party and/or enters into a settlement agreement with a third party and thereby receives any lump sum cash payment, then the University shall be entitled to [*%] * of any such lump sum cash payment (after deduction of attorneys fees and out-of-pocket costs incurred by the Company in connection with the settlement or the sublicense). In the event any on-going royalties based on Net Sales of a third party, as referred to in the previous sentence, are to be paid to the Company for future use of the Technology and/or the Licensed Patents, pursuant to a sublicense agreement or settlement, the University shall be paid in accordance with sub-article 5.1.3, except that the Company shall retain all on-going royalties based on Net Sales of such third party until all of the Company’s attorneys fees and out-of-pocket costs incurred in connection with the sublicense or settlement (which fees and costs during the Company’s 18 month investigative period have not been previously recouped based upon the circumstances set forth in the previous sentence) are recouped. The Company may consider when making its decision to (i) initiate any litigation, (ii) settle any claim it may have against a third party prior to or during litigation, or (iii) sublicense such third party prior to or during litigation, whether the cost-benefit and risk-reward ratios of doing so are favorable to the Company.
     (b) Suit jointly by the Company and the University .
     If it is legally required that the University join in any litigation, the University shall do so as a co-party with the Company. A reasoned opinion of the Company’s patent infringement counsel that the University is a necessary party shall be an adequate basis to require the University to join as a co-party in the litigation. The University and the Company shall, in good faith, make reasonable efforts to agree upon counsel to represent them jointly in the action. Unless the University otherwise agrees in writing, the Company shall pay all reasonable and necessary attorney fees and court costs of such joint engagement. Notwithstanding the previous sentence if the University has chosen to participate in the litigation pursuant to sub-article 7.1.2(a), the Company shall not be obligated to pay any such fees and costs. In the absence of an agreement on joint engagement of counsel, the University and the Company, at the sole expense of each for its respective counsel, may engage separate counsel to represent it in the action. In any
 
*   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.

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litigation involving the Licensed Patents, the University shall cooperate with the Company.
     7.2 The Company’s Alleged Infringement .
     7.2.1 Notice and Investigation of Alleged Infringement . In the event the University learns of substantial, credible evidence that the Company’s manufacture, sale, lease, or other disposition of Licensed Products potentially or likely infringes the patent rights of a third party, the University shall promptly thereafter deliver written notice of the possible infringement to the Company, describing in detail the information suggesting such infringement.
     7.2.2 Settlement and Defense . If the University or both the University and the Company are named as parties in a third party’s infringement action based upon acts of the Company, the Company shall defend the University and the University shall cooperate with the Company in the defense of the action. The University and the Company shall mutually agree upon the terms of any settlement of the third party’s claims arising out of the manufacture, sale, offer for sale, use, lease or other disposition of Licensed Products, if the settlement would require the University to pay any sum of money or be restrained in any way. The Company shall have no obligation to defend the University against any claim by a third party that is based on acts by the University.
ARTICLE 8 — TERMINATION
     8.1 By the University .
     8.1.1 The following events shall constitute an event of default by the Company:
  (i)   if royalties due the University are unpaid and overdue pursuant to this Agreement; or
 
  (ii)   if the Company fails to perform a material term of this Agreement.
     8.1.2 Upon the occurrence on an event of default by the Company, the University shall deliver to the Company a written notice of default. The University may terminate this Agreement and the Company’s right to use the Licensed Patents by delivering to the Company a written notice of termination if the default set forth in sub-article 8.1.1.1(i) has not been cured in full within 30 days of the delivery to the Company of the notice of default or if the default set forth in sub-article 8.1.1.1(ii) has not been cured in full within 60 days of the delivery to the Company of the notice of default.
     8.2 By the Company . The Company may terminate this Agreement at any time after the expiration of the period described in article 2.2, by delivering to the University a written notice of termination at least 60 days prior to the effective date of termination.
     8.3 Post-Termination Period . Even after the termination under sub-articles 8.1.2, 8.2, or 8.4 of this Agreement, the Company may sell, offer for sale, lease, or otherwise dispose of

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Licensed Products in the Territory, provided the Licensed Products were manufactured or were in the process of being manufactured prior to the effective date of termination of this Agreement. Otherwise, the Company shall not make, have made, use, sell, offer to sell, import, export, lease, or otherwise dispose of any Licensed Products in a manner that would infringe the claims of any Licensed Patent after the effective date of termination of this Agreement.
     8.4 Bankruptcy . The University may terminate this Agreement at any time should the Company cease operations, be adjudicated by a United States Bankruptcy court to be bankrupt, make a general assignment for the benefit of its creditors, or permit the appointment of a receiver for its business or assets.
ARTICLE 9 — RELEASE, INDEMNIFICATION AND INSURANCE
     9.1 The Company’s Indemnification . Throughout the Term and thereafter, the Company shall indemnify, defend, and hold the University harmless from all suits, actions, claims, liabilities, demands, damages, losses, or reasonable and necessary expenses (including reasonable attorney’s fees and investigative expenses), relating to or arising out of the Company’s acts relating to the manufacture, use, lease, sale, or other disposition of Licensed Product by the Company, including, without limitation, breach of contract, warranty, and products liability claims relating to Licensed Product.
     9.2 The University’s Indemnification . Subject to the limitations on liability set forth in article 11, throughout the Term and thereafter, the University shall indemnify, defend and hold the Company harmless from all suits, actions, claims, liabilities, demands, damages, losses or expenses (including reasonable attorney’s fees and investigative expenses), relating to or arising out of the University’s breach of the express warranties set forth in article 10.
     9.3 The Company’s Insurance .
     9.3.1 Commencing with the onset of human clinical trials by the Company and throughout the remainder of the Term, the Company shall maintain in full force and effect comprehensive general liability (CGL) insurance, with an aggregate claim limit of $1,000,000 and a single claim limit of $500,000. Prior to the sale by the Company of a Food and Drug Administration approved Licensed Product, the University and the Company shall mutually agree upon commercially reasonable insurance limits for such a product and upon such agreement, the Company shall amend the limits set forth in the first sentence to such new agreed upon limits. Such insurance policy shall include coverage for claims that may be asserted by the University against the Company under articles 9.1 and for claims by a third party against the Company or the University arising out of purchase or use of a Licensed Product. Such insurance policy shall name the University as an additional insured. Upon receipt of the University’s written request, the Company shall deliver to the University a copy of the certificate of insurance for such policy.
     9.3.2 The provisions of Article 9.3.1 shall not apply if the University agrees in writing to accept a self-insurance plan of the Company as adequate insurance.

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ARTICLE 10 — WARRANTIES
     10.1 Authority . The University and the Company each represent and warrant to the other that it has full corporate power and authority to execute, deliver, and perform this Agreement and no other corporate proceedings are necessary by it to authorize the execution or delivery of this Agreement.
     10.2 Exclusive Rights . The University warrants that except for the possible rights of the federal government as described in sub-article 3.2, to the best of its knowledge, the University owns or has acquired the exclusive rights (including all patent and other intellectual property rights) in the University Technology.
     10.3 Disclaimers .
     10.3.1 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN ARTICLE 10, THE UNIVERSITY DISCLAIMS AND EXCLUDES ALL WARRANTIES, EXPRESS AND IMPLIED, CONCERNING THE TECHNOLOGY, THE PATENT APPLICATIONS, THE LICENSED PATENTS, AND ANY LICENSED PRODUCTS INCORPORATING THE TECHNOLOGY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE.
     10.3.2 The University expressly disclaims any warranties and makes no representations:
  (i)   that the Patent Applications and any other patent applications filed by the Company pursuant to this Agreement will be approved by any patent office of any nation or that a patent will issue;
 
  (ii)   concerning the validity or scope of any Licensed Patent that may be issued; or
 
  (iii)   that the manufacture, use, sale, lease, importation or other disposition of Licensed Products will not infringe a third party’s patent or violate its intellectual property rights.
     10.3.3 Notwithstanding sub-article 10.3.2, the University represents and warrants that it will cooperate with the Company in the prosecution and maintenance of any Patent Application and any other patent applications filed pursuant to this Agreement after the Effective Date and that the University will promptly bring to the attention of the Company prior art or other information that the University becomes aware of and that would adversely affect the patentability of any Patent Application or such patent application or the validity and/or enforceability of any Licensed Patent.

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ARTICLE 11 — DAMAGES
     11.1 Remedy Limitation . EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, IN NO EVENT SHALL THE UNIVERSITY OR THE COMPANY BE LIABLE TO THE OTHER FOR (A) PERSONAL INJURY OR PROPERTY DAMAGES OR (B) LOST PROFITS, LOST BUSINESS OPPORTUNITY, INVENTORY LOSS, WORK STOPPAGE, LOST DATA, ANY OTHER RELIANCE OR EXPECTANCY, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OF ANY KIND.
     11.2 Damage Cap . IN NO EVENT SHALL THE UNIVERSITY’S OR THE COMPANY’S TOTAL LIABILITY FOR THE BREACH OR NONPERFORMANCE OF THIS AGREEMENT EXCEED THE AMOUNT OF ROYALTIES PAID TO THE UNIVERSITY UNDER ARTICLE 5.1 OF THIS AGREEMENT. THIS LIMITATION SHALL APPLY TO CONTRACT, TORT, AND ANY OTHER CLAIM OF WHATEVER NATURE.
ARTICLE 12 — MISCELLANEOUS PROVISIONS
     12.1 Amendment and Waiver . This Agreement may be amended from time to time only by a written instrument signed by the University and the Company. No term or provision of this Agreement shall be waived and no breach excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. No waiver of a breach shall be deemed to be a waiver of a different or subsequent breach.
     12.2 Assignment . Except as provided in Article 3.1(b) of this Agreement, the Company shall not assign or delegate its duties under the terms of this Agreement, unless the University consents to the assignment or delegation. Any assignment or delegation made in violation of this sub-article 12.2 shall be void. Absent the consent of the University, an assignment or delegation shall not release the Company from its obligations under this Agreement.
     This Agreement shall inure to the benefit of the Company and the University and their respective permitted assignees and sublicensees.
     12.3 Applicable Law . The internal laws of the state of Minnesota shall govern the validity, construction, and enforceability of this Agreement, without giving effect to the conflict of laws principles of the state of Minnesota.
     12.4 Minnesota Government Data Practices Act and Trade Secret Information . The University and the Company acknowledge that the University is subject to the terms and provisions of the Minnesota Government Data Practices Act, Minnesota Statutes, §13.01 et seq. (the “Act”). The University and the Company further acknowledge that the Act requires, with certain exceptions, the University to permit the public to inspect and copy any information which the University shall have collected, created, received, maintained, or disseminated. The University and the Company further acknowledge that in connection with the performance of

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this Agreement, the Company may deliver to the University certain Trade Secret Information, which the Company deems proprietary and confidential. In the event the University receives a request under the Act for the inspection of information collected, created, received, maintained or disseminated, including but not limited to any Trade Secret Information, the University shall promptly notify the Company of such request and shall refuse to disclose such information. In no event shall the University be required to commence any action to prohibit the inspection and copying of any such information. However, the University shall cooperate with the Company if the Company commences or defends any action to prohibit such inspection or copying. The Company shall reimburse the University for any of the University’s reasonable and necessary expenses resulting from such cooperation. The Company shall defend, indemnify, and hold harmless the University and each of its regents, officers, employees and agents from and against any claim, suit, demand, or expense (including reasonable attorney’s fees and investigation expenses) that arose out of or are related to the Company’s request that the University refuse to divulge any such information. If the University complies with the requirements of this sub-article 12.4, the Company for itself and its employees and agents waives any claim or cause of action of whatever nature against the University and each of its regents, officers, employees, and agents that arose out of or is related to a request to inspect or copy any such information and the University shall not be liable to any person for any expenses or damages, including, but not limited to, consequential, special, or incidental damages, or lost profits, in connection with the inspection or copying of any such information.
     To the extent permitted by law, the University shall hold in confidence and disclose only to University employees, faculty, staff and students who need to know the reports and other information described in sub-articles 4.1(a)-(c), 4.3, 5.2, and 5.3. No provision of this Agreement shall prohibit, limit, or condition the University’s right to use and disclose any information in connection with enforcing this Agreement, in court or elsewhere.
     12.5 Construction . The headings preceding and labeling the articles of this Agreement are for the purpose of identification only and shall not in any event be employed or used for the purpose of construction or interpretation of any portion of this Agreement. As used in this Agreement and where necessary, the singular shall include the plural and vice versa, and masculine, feminine and neuter expressions shall be interchangeable.
     12.6 Enforceability . If a court of competent jurisdiction adjudges a provision of this Agreement unenforceable, invalid or void, such determination shall not impair the enforceability of any of the remaining provisions and such provisions shall remain in full force and effect.
     12.7. Entire Agreement; No Third Party Beneficiaries . This Agreement is intended by the University and the Company as the final and binding expression and the complete and exclusive statement of the terms of their agreement with respect to the subject matter of this Agreement. This Agreement cancels, supersedes, and revokes all prior negotiations, representations, and agreements between the University and the Company, whether oral or written, relating to the subject matter of this Agreement. Notwithstanding the preceding two sentences, that certain Ownership Agreement between the University and the Company also dated as of the Effective Date of this Agreement shall be a part of this Agreement to the extent set forth in that certain Ownership Agreement.

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     No provision of this Agreement, express or implied, is intended to confer upon any person other than the University and the Company any rights, remedies, obligations, or liabilities under this Agreement.
     12.8 Language and Currency . Unless otherwise expressly provided in this Agreement, all notices, reports, and other documents and instruments that the University and the Company are required by the terms of this Agreement to deliver to the other shall be in English, and all notices, reports, and other documents and instruments detailing Net Sales shall be United States dollar denominated.
     12.9 Notices/Administration . All notices, requests, and other communications that the University and the Company are required to deliver shall be in writing and shall be delivered personally or by facsimile (provided such delivery is confirmed) or by a recognized overnight courier service or by United States mail, first-class, certified, or registered, postage prepaid, return receipt requested, to the other at its address set forth below in this sub-article 12.9 or to such other address as may be designated by notice given pursuant to this article:
         
If to the University:   Patent and Technology Marketing
 
      University of Minnesota
 
      Attention:
 
      University Gateway Center, Suite 450
 
      200 Oak Street S. E.
 
      Minneapolis, MN 55455
 
      Facsimile No.: (612) 624-6554
 
       
If to the Company:
      MCL, LLC
 
      Attention: Leo T. Furcht, MD, and President
 
      2100 West 21 st St.
 
      Minneapolis, MN 55405
 
      Facsimile No.:                     
     12.10 Relationship of Parties . In entering into, and performing their duties under this Agreement, the University and the Company are acting as independent contractors and independent employers. No provision of this Agreement shall create or be construed as creating a partnership, joint venture, or agency relationship between the University and the Company. Neither the University nor the Company shall have the authority to act for or bind the other in any respect.
     12.11 Survival . Upon termination or expiration of this Agreement, the Company’s obligations that accrued prior to the effective date of termination or expiration of this Agreement (e.g., the obligation to report and make payments of royalties on Net Sales) and the obligations specified in Article 5.3 of the Agreement shall survive.
     12.12 Collection Costs and Attorney’s Fees . If the University or the Company shall fail to perform an obligation or otherwise breaches one or more of the terms of this Agreement, the other may recover from the non-performing breaching party all its necessary and reasonable

18


 

costs, including reasonable attorneys fees and investigative fees, to enforce the terms of this Agreement.
     12.13 Forum Selection . A suit, claim or other action to enforce the terms of this Agreement shall be brought exclusively in the District Court of Hennepin County, Minnesota. The University and the Company submits to the jurisdiction of that court and waives any objections either may have to that court asserting jurisdiction over the University and the Company or either’s assets and property.
      IN WITNESS WHEREOF , the University and the Company have caused this Agreement to be duly executed by their respective authorized representatives.
         
REGENTS OF THE UNIVERSITY OF MINNESOTA    
 
       
By:
       
 
       
 
  Anthony L. Strauss    
 
  Acting Assistant Vice President for    
 
  Patent & Technology Marketing    
 
       
MCL, LLC    
 
       
By:
       
 
       
 
  Leo Furcht    
 
  President    

19


 

EXHIBIT A TO EXCLUSIVE LICENSE AGREEMENT
     
Application Number   Filing Date
60/147,324
  8/5/99
60/164,650
  11/10/99
PCT/US00/21387
  8/4/00
AU 66218/00
  2/14/02
CA national phase
  2/4/02
EP national phase
  3/5/02
IL 147990
  2/4/02
IN national phase
  2/28/02
JP 2001-515800
  2/5/02
NZ 517002
  2/4/02
SG 200200649-2
  2/4/02
US 10/048,757
  2/1/02
ZA 2002/1125
  2/8/02
60/268,786
  2/14/01
60/269,062
  2/15/01
60/310,625
  8/7/01
60/343,386
  10/25/01
PCT/US02/
  2/14/02

A-1


 

Exhibit B to Exclusive License Agreement
University of Minnesota
 
     
Patents and Technology Marketing
  450 University Gateway
 
  200 Oak Street SE
 
  Minneapolis, MN 55455-2070
Royalty Report
Date
Company Name & Address
License Number                     
             
Reporting Period:
 
 
  Report Due Date:  
 
This report must be submitted regardless of whether royalties are owed.
Please do not leave any column blank. State all information requested below.
                             
 
  U of M                 Quantity/        
  Docket #     Product Description     Royalty Rate     Net Sales     Royalty Due  
 





 
                         
 
             
Report Completed by:
      Total Royalties Due:    
 
           
         
Telephone Number:
       
 
       
     
If you have questions please contact:
  Julie Hodder
 
  612-625-4537
 
  hodde001@ptm.umn.edu
Please make check payable to: Regents of the University of Minnesota


 

EXHIBIT C TO EXCLUSIVE LICENSE AGREEMENT
         
For Internal University Use Only    
 
       
PTM Docket Number(s):
       
 
       
 
       
     
MATERIAL TRANSFER AGREEMENT
      THIS AGREEMENT (the “Agreement”) is dated and effective as of the date of last signature hereto, and is made by and among the Regents of the University of Minnesota, a constitutional educational corporation under the laws of the state of Minnesota, having an office at 450 McNamara Alumni Center, 200 Oak Street SE, Minneapolis, Minnesota 55455-2070 (the “University”), and the Institution (the “Institution”) and Scientist/Researcher (the “Researcher”) each as identified in section 1 of Schedule A. The Institution and Researcher are collectively referred to as the “Recipient”.
     The parties agree that:
1. Delivery of the Biological Material . Subject to the terms of this Agreement, the University shall deliver to the Researcher the multipotent post-natal progenitor stem cell line materials identified in Schedule A (the “Biological Material”) to the address set forth in section 2 of Schedule A. Additionally, the University, at its option, may disclose to Recipient know-how or other information related to the Biological Material, including but not limited to, protocols, methods and information related to or derived from the isolation, purification, use and propagation of the multipotent post-natal progenitor cells; protocols, methods and information related to or derived from the differentiation of such cells into various cell types; protocols, methods and information related to or derived from the isolation of purified differentiated cells, and the use of the differentiated cells. All such Biological Materials and Know-how or other information, and all copies thereof (including materials resulting from propagation of the Biological Material) shall be deemed “Confidential Information” for purposes of this Agreement. Confidential Information shall be used only in connection with the permitted use of the Biological Material, and its use shall be limited in the same fashion and subject to the same terms, conditions and restrictions as those set forth for the Biological Material in this Agreement.
2. Use of the Biological Material and the Confidential Information .
     2.1. The University grants Recipient a limited nonexclusive license to use the Biological Material and Confidential Information solely for non-commercial research and academic purposes within the United States and solely in accordance with the terms in this Agreement. The Biological Material and Confidential Information shall only be used in connection with the research project described in Schedule B (the “Research Project”) and only under the direction of Researcher in Researcher’s laboratory facilities identified in Schedule B. The Biological Material and Confidential Information shall not be transferred to any other facilities, shall not be taken, shipped, communicated or otherwise transferred outside of the

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United States and shall be only used in conformance with all applicable federal, state and local laws, rules, and regulations, including, without limitation, all such related to exports from the United States, and all applicable policies and procedures of the Institution.
     2.2. The Biological Material shall not be used for any human diagnostic or human in vivo therapeutic purpose, including, but not limited to, the use of the Biological Material in human or non-human embryos.
     2.3. The Biological Material and the Confidential Information shall not be delivered to, nor shall access to such be provided to, any person unless that person is working at the Institution under the Researcher’s direct supervision on the Research Project and is bound by a written obligation of confidentiality with respect to the Biological Material and the Confidential Information or is likewise bound by an obligation of confidentiality under the Institution’s written policy regarding confidentiality. Each person who is to receive the Biological Material and/or Confidential Information shall be notified of his or her obligations of confidentiality by Recipient prior to being provided with the Biological Material or Confidential Information. At no time may the Biological Material nor the Confidential Information be provided to any guest or visitors (including for example visiting professors, post doctoral students, graduate students and students) to the laboratory of the Researcher or the Institution without the execution of a written agreement by the guest or visitor to be bound by the terms of this Agreement.
     2.4. Except for projects sponsored solely by the National Institutes of Health pursuant to which the federal government of the United States of America under 37 CFR 401 et seq. has rights as described in this section, the Biological Material and/or the Confidential Information shall not be used in any research project under which a third party has been, or will be, granted any rights of whatever nature, including, without limitation, license, option or first refusal rights, in inventions or the results of the research project.
     2.5. The Researcher shall have primary responsibility for monitoring use of the Biological Material and the Confidential Information and for ensuring conformance with the terms of this Agreement. The Institution shall at all times remain responsible for use of the Biological Materials and Confidential Information by Researcher and any individual who may receive access to the Biological Material and Confidential Information as a result of this Agreement or as a result of any breach of this Agreement.
3. Inventions .
     3.1. The Institution shall promptly disclose to the University each invention (“Biological Material Invention”) conceived of and/or reduced to practice using the Biological Material or Confidential Information, whether or not patentable. Disclosure of each such Biological Material Invention to the University shall include tangible samples of the invention which shall be delivered to the University. At least thirty (30) days prior to the filing of any and all applications seeking patent or other intellectual property protection for Biological Material Inventions, the Institution shall deliver a copy of such application to the University for its review and comment.

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     3.2. The inventorship of each Biological Material Invention shall be determined under the federal patent laws of the United States of America.
     3.3. With respect to each jointly owned Biological Material Invention, the Institution hereby grants the University an irrevocable, freely assignable and sublicensable, fully paid up, worldwide exclusive license in all fields of use to all the Institution’s intellectual property rights (including American and foreign patent rights) in each such Biological Material Invention. The University and the Institution shall enter into an interinstitutional agreement for the marketing and licensing of the Biological Material Invention. Such agreement shall provide, unless the parties otherwise mutually agree, that the University and the Institution shall share equally the net revenues earned from the licensing of such Biological Material Invention to third parties and that the University shall have primary right and responsibility for marketing such Biological Material Invention and the right to prosecute and maintain all applications for intellectual property protection of such inventions world-wide including but not limited to patents. The Parties agree to negotiate in good faith and to use their best efforts to enter into and execute such an agreement within one hundred and eighty (180) days of the disclosure of each Biological Material Invention.
     3.4. With respect to Biological Material Inventions owned by the Institution, the Institution hereby grants the University an exclusive, irrevocable, freely assignable, fully paid up, option to obtain a worldwide exclusive license in all fields of use to the Institution’s intellectual property rights (including American and foreign patent rights) in each such Biological Material Invention (the “Option”). The Option shall be exercisable for each Biological Material Invention basis during the one hundred twenty day period following disclosure of the Biological Material Invention to the University (the “Option Period”). The University may exercise the Option during the Option Period, by providing notice in writing to the Institution of its desire to exercise the Option. The Option shall expire if it is not exercised within the Option Period. Upon exercise of the Option by the University, the parties shall negotiate in good faith and use their best efforts to execute a license agreement with respect to the Biological Material Invention within one hundred and eighty (180) days of the University’s exercise of the Option. In the event that the University does not exercise its Option, the Institution further grants the University an irrevocable, freely assignable right of first refusal with respect to the Biological Material Invention and all intellectual property rights therein such that prior to the Institution’s granting to any third party a license to the subject invention, the Institution will provide the University with notice of the proposed license including the terms thereof. Within fifteen (15) days of receiving such notice, the University may exercise its right of first refusal by providing the Institution with written notice of its desire to enter into a license on the same terms. If the right of first refusal is exercised, the parties agree to negotiate in good faith and to use their best efforts to execute such a license within a reasonable time. In no event shall the institution enter into a license agreement regarding, assign, sell, or otherwise transfer, a Biological Material Invention and/or the intellectual property rights therein to a third party on terms more favorable to the third party than those offered to the University without first offering such terms to the University.
     3.5. Notwithstanding the terms of sections 3.4 and 3.5, the Institution shall grant to the University a nonexclusive, irrevocable license to make and use each Biological Material Invention for non-commercial research and academic purposes.

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4. Publishing and Reports .
     4.1. The Researcher shall have the right to publish, present or otherwise disclose information concerning the Biological Material (“Biological Material Information”), except as limited by the confidentiality provisions of section 6 of this Agreement and by the terms of this section 4. At least thirty (30) days prior to the publication, presentation or disclosure of any Biological Material Information, the Researcher shall deliver to the University (to Patents and Technology Marketing, Attn. Director, Health Technologies Marketing, 450 McNamara Center, 200 Oak Street SE, Minneapolis, MN 55455) a copy of all papers, slides or other items containing such information to be published. If requested by the University, the Researcher shall withhold publication, presentation or disclosure of the Biological Material Information until after intellectual property protection has been applied for, but in no event shall the Researcher be obligated to so withhold for more than ninety (90) days after the University has delivered its written request. The University shall hold in confidence the materials delivered by the Researcher under this section.
     4.2. For so long as this Agreement shall remain in effect, within fifteen (15) days of each anniversary of the commencement of this Agreement, the Researcher shall provide to the University a written report describing all research carried out with the Biological Materials and the Confidential Information under the Researcher’s direction within the preceding year. Additionally, the Researcher shall provide a similar report within thirty (30) days of any termination or expiration of this Agreement which provides the details of all research performed with the Biological Materials and the Confidential Information provided to Recipient under this Agreement.
5. The University’s Use of the Biological Materials . No provision of this Agreement limits, conditions or otherwise affects the University’s right (i) to use the Biological Material or the Confidential Information, (ii) to deliver the Biological Material or the Confidential Information to a third party, or (iii) to grant a third party an exclusive or nonexclusive license or other right to the Biological Material.
6. Confidentiality and the Confidential Information .
     6.1. For purposes of this Agreement, the term “Confidential Information” refers to any nonpublic, proprietary, information disclosed by the University to the Recipient in connection with this Agreement, provided (i) that the Recipient is notified by the University of the confidential nature of the disclosure such as by marking written, printed or electronic materials as “Confidential Trade Secret Information” or with a similar designation, or (ii) the University notifies the Recipient of the confidential nature of the disclosure within thirty (30) days of the disclosure and provides to Recipient a written recordation of the disclosure. The parties acknowledge and agree that the Biological Material is and shall be Confidential Information.
     6.2. The term “Confidential Information” shall not include, and the restrictions in section 6.3 of this Agreement shall not apply to, any information that:
(a) at the time the University disclosed it to the Recipient, was in the public domain;

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(b) after the University’s disclosure of it to the Recipient, was placed in the public domain, other than through the Recipient’s acts or omissions, including, but not limited to, its breach of any term of this Agreement; or
(c) at the time the University disclosed it to the Recipient, the Recipient had written evidence of its actual knowledge of the information, provided the Recipient acquired such knowledge in conformance with all applicable laws and not as the receiver, directly or indirectly, of such information in violation of a valid and enforceable confidentiality agreement.
     6.3. Throughout the five (5) year period commencing on the date on which the University disclosed the Confidential Information to the Recipient, except as permitted under section 2 of this Agreement or by the University in a separate written consent, Confidential Information shall be maintained in confidence and shall not be used or disclosed.
7. Intellectual Property Rights .
     7.1 Except for the right to use the Biological Material and the Confidential Information as described in section 2 and the right to publish as described in section 4 of this Agreement, neither the Institution nor the Researcher shall have any right to use or disclose the Biological Material or the Confidential Information nor any of the intellectual property rights therein. Additionally, Recipient shall not sell, grant any licenses to or property rights in, nor otherwise encumber with liens or otherwise, the Biological Material or the Confidential Information or any intellectual property rights therein.
     7.2 No provision of this Agreement grants the Institution or the Researcher (i) any right or interest in the patent, copyright, trademark, or equivalent rights in the Biological Material or the Confidential Information, nor (ii) any license, right, or option (A) to commercially utilize the Biological Material under such patent, copyright, trademark, or equivalent right or (B) to make or use any products or processes derived from or with Biological Material for profit-making or commercial purposes.
     7.3. The Institution shall obtain a license prior to making any profit from, or any commercial use of, any product or process derived from the Biological Material. The University shall have no obligation to grant any such a license to the Institution.
     7.4. As between the parties, the University shall be the sole and exclusive owner of all rights, title, and interest in and to the Biological Material and the Confidential Information and hereby expressly retains all rights not explicitly granted to Recipient under this Agreement.
     7.5 Upon the University’s written request at any time, the Biological Material and all documents, papers, samples and other tangible goods and property delivered to the Researcher which contain or reflect the Confidential Information shall be delivered to the University; provided, however, the Institution may retain one copy of any documents and papers containing or reflecting the Confidential Information for the sole purpose of determining Institution’s obligations under this Agreement. Upon the University’s request, the Institution shall certify in writing its and the Researcher’s compliance with the requirements of this section 7.5.

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8. No Warranties or Liability . The Institution and the Researcher acknowledge their understanding that the Biological Material is experimental in nature. THE INSTITUTION AND THE RESEARCHER ACCEPT THE BIOLOGICAL MATERIAL “AS IS, WITH ALL FAULTS.” THE INSTITUTION AND THE RESEARCHER ACKNOWLEDGE THAT IT, HE OR SHE HAS NOT RELIED UPON ANY STATEMENTS MADE BY THE UNIVERSITY CONCERNING THE BIOLOGICAL MATERIAL. THE UNIVERSITY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND THAT THE USE OF THE BIOLOGICAL MATERIAL WILL NOT INFRINGE ANY THIRD PARTY’S PATENT, COPYRIGHT, TRADEMARK, OR OTHER RIGHTS. IN NO EVENT SHALL THE UNIVERSITY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, PECUNIARY, EXPECTANCYOR COMPENSATORY DAMAGES, INCLUDING LOST PROFITS OR LOST BUSINESS OPPORTUNITY .
9. Release . The Institution, for itself and its employees and agents, releases the University and its employees and agents from any claim, suit, action or liability arising out of this Agreement, including, without limitation, the Institution’s use of the Biological Material. In no event shall the University be liable for any use of such Biological Material.
10. Indemnification . The Institution shall defend, indemnify, and hold the University harmless from any loss, claim, damage, or liability, of whatsoever kind or nature, which may arise from or in connection with this Agreement or the use of such Biological Material.
11. Term and Termination .
     11.1. This Agreement shall commence as of the date of the last signature and shall, subject to earlier termination in accordance with its terms, naturally expire on the date set forth in Schedule B, or if no such date is specified, two (2) years from the date of the last signature hereto. This Agreement shall be renewable for additional one year periods upon mutual agreement of the parties, such agreement shall only be effective if executed by the parties in writing.
     11.2. If the Recipient fails to perform one or more of its, his or her duties under this Agreement, the University may deliver a written notice of default to Recipient. If the default is not cured within thirty (30) days after the delivery of a notice of default, the University may terminate this Agreement by delivering to the Institution a written notice of termination. Upon termination of this Agreement, the Researcher shall promptly deliver to the University all Biological Material and Confidential Information in his or her possession and the Institution shall deliver to the University a written certification that all Biological Material and Confidential Information has been delivered to the University. The Institution and the Researcher acknowledge that their failure to perform their obligations under this Agreement will irreparably harm the University and that specific performance is an appropriate remedy for their nonperformance.

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     11.3 Should the Researcher’s status as an employee of the Institution be discontinued at any time, this Agreement shall immediately terminate and the Recipient shall promptly return all Biological Material and Confidential Information to the University.
12. Survival . Despite any expiration or termination of this Agreement, sections 3, 4, 5, 6, 7, 8, 9, 10, 13 and 14 of this Agreement shall survive.
13. Further Assurances . Each party hereby agrees to execute documents and do things as reasonably requested by the other party in order for the other party to protect rights to which it is entitled under this Agreement, including intellectual property rights.
14. Notice : Any notice to be given under this Agreement shall be in writing and shall be deemed to have been sufficiently given or made for all purposes if mailed by certified U.S. mail or by a common overnight delivery carrier, postage prepaid, addressed to the other party at the address identified in the first paragraph of this Agreement or in Schedule A.
15. General Terms . This Agreement shall constitute the entire understanding of the parties with respect to the subject matter hereof, and shall supersede all prior agreements and understandings of the parties on such subject matter. This Agreement shall be amended only in a writing duly executed by all the parties. No party may assign or delegate any right or duty under this Agreement unless the other party has consented in writing to such assignment or delegation. An assignment or delegation made in violation of this section 15 shall be void and shall not bind the other party. This Agreement shall be interpreted in accordance with the laws (with the exception of conflicts of laws provisions) of the state of Minnesota. All claims, suits or causes of action arising out of this Agreement shall be brought in the courts of the state of Minnesota, county of Hennepin.

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      IN WITNESS WHEREOF , the parties have caused this Material Transfer Agreement to be duly executed by their respective representatives.
         
REGENTS OF THE UNIVERSITY OF MINNESOTA    
 
       
By:
       
 
       
 
  Michael F. Moore    
 
  Director, Health Technologies Marketing    
 
       
Date:                      , 20____    
 
       
INSTITUTION    
 
       
By:
       
 
       
Its:
       
 
       
 
       
Date:                      , 20____    
 
       
RESEARCHER    
 
       
By:
       
 
       
 
       
Date:                      , 20____    

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For Internal University Use Only    
 
       
PTM Docket Number(s):
       
 
       
 
       
     
Schedule A
Material Transfer Agreement Worksheet
1.   Name of Institution and Researcher:
 
2.   Shipping Address:

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Schedule B
Research Project
[Insert description of the Research Project including anticipated term of the project and the location of the laboratory facilities where the project will be performed.]

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EXHIBIT D TO EXCLUSIVE LICENSE AGREEMENT
MCL LLC
SUBSCRIPTION AGREEEMNT
INCLUDING INVESTMENT REPRESETNATIONS
UNITS OF MEMBERSHIP INTEREST
     The undersigned, Regents of the University of Minnesota, hereby subscribes for the purchase from MCL LLC (the “Company”) of                      Units of membership interest (the “Units”). In consideration of the Units, the undersigned hereby transfers all right, title and interest in the patent application entitled “Totipotent Adult Stem Cells and Methods for Isolation” and all related intellectual property, concepts, technology, products and know-how related to such invention which the undersigned may develop in the future relating to the Company’s business (collectively the “Products”). The undersigned agrees to execute such further documents and take such further action as the Company may reasonably request and to perform such other lawful acts as the Company may reasonably require to fully secure and/or evidence the rights or interests provided herein.
     The Company shall have the right to prosecute the above-referenced patent and to apply for patents to cover the Products in the U.S. and foreign countries in the Company’s own name including the right to claim any priority rights to which such applications are entitled under international conventions, treaties or otherwise. The undersigned agrees to fully cooperate with the Company in the filing of such patents and agrees to execute, or cause to be executed, all documents reasonably necessary to effectuate and properly document such assignments and transfers, including, without limitations, securing the signature of any individual inventor required to be listed on such patent application assigning all rights in the application, and in the invention described in, to the Company. Any filing fees required to document such transfers shall be payable by the Company.
     The preceding two paragraphs are included in this Agreement only for the purpose of providing a partial summary of certain of the mutual consideration that the Company and the University are exchanging for the Units. The full and complete statement of the mutual consideration exchanged by the parties is collectively contained in the Ownership Agreement and Exclusive License Agreement entered into by the parties, and those two agreements shall govern and not this Agreement should there be a conflict between those two agreement and this Agreement.
     1.  Certain Representations of the Subscriber . In connection with, and in consideration of, the sale of the Units to the undersigned, the undersigned hereby represents and warrants to the Company and its managers, governors, employees, agents and members that the undersigned:

D-1


 

  (a)   Has had an opportunity to review and ask questions of the executive managers of the Company concerning its business and desires no further information.
 
  (b)   Realizes that the Company has had no operations and must raise additional funds to support its ongoing operations and to develop products essential to the Company’s long-term viability.
 
  (c)   Realizes that a purchase of the Units represents a speculative investment involving a high degree of risk.
 
  (d)   Can bear the economic risk of an investment in the Units for an indefinite period of time, can afford to sustain a complete loss of such investment, has no need for liquidity in connection with an investment in the Units, and can afford to hold the Units indefinitely.
 
  (e)   Realizes that there will be no market for the Units after this offering and that there are significant statutory and contractual restrictions on the transferability of the Units as set forth in Sections 2 and 3 below.
 
  (f)   Realizes that the Units have not been registered for sale under the Securities Act of 1933, as amended (the “Act”) or applicable state securities laws (the “State Laws”) and may be sold only pursuant to registration under the Act and State Laws or an opinion of counsel that such registration is not required.
 
  (g)   Is experienced and knowledgeable in financial and business matters, capable of evaluating the merits and risks of investing in the Units, and does not need or desire the assistance of a knowledgeable representative to aid in the evaluation of such risks.
     2.  180-Day Restriction on Transfer After A Public Offering . The undersigned understands that the Company at a future date may file a registration or offering statement (the “Registration Statement”) with the Securities and Exchange Commission to facilitate a public offering of its securities. The undersigned agrees, for the benefit of the Company, that should such an initial public offering be made and should the managing underwriter of such offering require, the undersigned will not, without the prior written consent of the Company and such underwriter, during the 180-day period of commencing on the effective date of the Registration Statement (the “Lockup Period”) (i) sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of any of the Units beneficially held by the undersigned during the Lockup Period, (ii) sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of any options, rights or warrants to purchase any of the Units beneficially held by the undersigned during the Lockup Period, or (iii) sell or grant, or agree to sell or grant, options, rights or warrants with respect to any of the Units. The foregoing does not prohibit gifts to donees or restrictions set forth herein or transfers by

D-2


 

will or the laws of descent to heirs or beneficiaries provided such donees, heirs and beneficiaries shall be bound by the restrictions set forth herein.
     3.  Investment Intent . The undersigned has been advised that the Units have not been registered under the Act or the relevant State Laws but are being offered, and will be offered, and sold pursuant to exemptions from the Act and State Laws, and the Company’s reliance upon such exemptions is predicated in part of the undersigned’s representations contained herein. The undersigned represents and warrants that the Units are being purchased for the undersigned’s own account and for long term investment and without the intention of reselling or redistributing the Units, that the undersigned had made no agreement with others regarding any of the Units, and that the undersigned’s financial condition is such that it is not likely that it will be necessary for the undersigned to dispose of any the Units in the foreseeable future. The undersigned represents and warrants that the undersigned has a financial net worth or anticipated income such that a sale of such Units need not be made in the foreseeable future to satisfy any financial obligation of which the undersigned is, or contemplates, being subject. The undersigned is aware that (i) there is presently no public market for the Units, and, in the view of the Securities and Exchange Commission, a purchase of securities with an intent to resell by reason of any foreseeable specific contingency or anticipated change in market values, or any change in the liquidation or settlement of any loan obtained for the acquisition of any of the Units and for which the Units were or may be pledged as security would represent an intent inconsistent with the investment representations set forth above and (ii) the transferability of the Units is restricted and (A) requires the written consent of the Company and, in the event the Company is effecting the initial public offering of its securities, the managing underwriter of such offering, and (B) will further restricted by a legend placed on the certificate(s) representing the Units containing substantially the following language:
“The securities represented by this certificate have not been registered under either the Securities Act of 1933 or applicable state securities laws and may not be sold, transferred, assigned, offered, pledged or otherwise distributed for value unless there is an effective registration statement under such Act and such laws concerning such securities, or the Company receives an opinion of counsel acceptable to the Company stating that such sale; transfer, assignment, offer, pledge or the distribution for value is exempt from the registration and prospectus delivery requirement of such Act and such laws. Sale or other transfer of these securities of the Company by the terms of a Subscription Agreement, a copy of which is available for inspection at the offices of the Company.”
     The undersigned further represents and agrees that if, contrary to the undersigned’s foregoing intentions, the undersigned should later desire to dispose of or transfer any of the Units in any manner, the undersigned shall not do so without first obtaining (i) an opinion of counsel satisfactory to the Company that such proposed disposition or transfer may be made lawfully without the registration of such Units pursuant to the Act and applicable State Laws and an agreement by the transferee to be bound by terms and restrictions of this Subscription Agreement, or (ii) registration of

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such Units (it being expressly understood that the Company shall not have any obligation to register such Units).
     4.  Residence . The undersigned represents and warrants that the undersigned is a bona fide resident of (or if any entity is organized or incorporated under the laws of, and is domiciled in), the State of Minnesota and that the Units are being purchased by the undersigned in the undersigned’s name solely for the undersigned’s own beneficial interest and not as nominee for, on behalf of, for the beneficial interest of, or with the intention to transfer to, any other person, trust or organization.
     5.  Miscellaneous .
  (a)   The undersigned agrees that the undersigned understands the meaning and legal consequences of the agreements, representations and warranties contained herein, agrees that such agreements, representations and warranties shall survive and remain in full force and effect after the execution hereof and payment for an issuance of the Units, and further agrees to indemnify and hold harmless the Company, each current and future officer, director, employee, agent and shareholder from and against any and all loss, damage or liability due to, or arising out of, a breach of any agreement, representation or warranty of the undersigned contained herein.
 
  (b)   This Agreement shall be construed and interpreted in accordance with Minnesota law.

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Dated: May       , 2002    
 
       
Regents of the University of Minnesota    
 
       
By:
       
 
       
 
  Anthony L. Strauss    
 
  Acting Assistant Vice President, PTM    
 
       
Address to Which Correspondence    
Should be Directed:    
 
       
200 Oak Street SE, Suite 450    
Minneapolis, MN 55405    
 
       
     
Tax Identification or Social Security Number    
 
       
ACCEPTANCE:    
 
       
MCL LLC hereby accepts this subscription for                      Units On ** day of **, 19**.    
 
       
By:
       
 
       
 
  Title: *    

D-5

 

EXHIBIT 10.35
CONFIDENTIAL
Execution Copy
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THE REDACTED PORTIONS OF THIS EXHIBIT, AND SUCH CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
STRATEGIC ALLIANCE AGREEMENT
By and Between
ATHERSYS, INC.
and
ANGIOTECH PHARMACEUTICALS, INC.
Effective as of May 5, 2006

 


 

TABLE OF CONTENTS
                 
    Page        
ARTICLE I. DEFINITIONS
    2          
 
               
ARTICLE II. CERTAIN TRANSACTION COMPONENTS
    11          
 
               
2.1 Concurrent Execution.
    11          
 
2.2 Right of First Negotiation for Non-Licensed Cardiovascular Indications.
    11          
 
2.3 Additional Investment.
    13          
 
2.4 Phase I Milestone Fee.
    13          
 
2.5 Exclusivity.
    14          
 
2.6 Retained Rights.
    14          
 
2.7 Costs Borne by Each Party.
    15          
 
2.8 Certain Restrictions on Athersys’ Activities Outside of Cardiovascular Indications.
    15          
 
 
               
ARTICLE III. JOINT STEERING COMMITTEE
    15          
 
               
3.1 Joint Steering Committee.
    15          
 
3.2 Subcommittees.
    15          
 
3.3 Chairperson.
    15          
 
3.4 JSC Meetings.
    15          
 
3.5 Responsibilities of the Joint Steering Committee.
    16          
 
3.6 Voting; Decision-Making.
    19          
 
3.7 JSC Disputes.
    19          
 
               
ARTICLE IV. PRE-CLINICAL DEVELOPMENT
    20          
 
               
4.1 Existing Pre–Clinical Development Programs.
    20          
 
4.2 Costs for Existing Pre-Clinical Development Programs.
    21          
 
4.3 New Pre-Clinical Development Programs.
    21          
 
               
ARTICLE V. CLINICAL DEVELOPMENT
    21          
 
               
5.1 Proposed Clinical Plans; Clinical Development Plans.
    21          
 
5.2 Athersys Responsibilities.
    21          
 
5.3 Angiotech Responsibilities.
    22          
 
5.4 Subcontracting.
    22          
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TABLE OF CONTENTS
(continued)
         
    Page
ARTICLE VI. OPT-OUT RIGHTS
    23  
 
       
6.1 Opt-Out Rights.
    23  
 
6.2 Development Updates.
    25  
 
6.3 Failure to Exercise Sole Development Option.
    25  
 
6.4 Diligence Requirement.
    25  
 
       
ARTICLE VII. COSTS, PAYMENTS AND FINANCIAL RECORD KEEPING
    26  
 
       
7.1 Clinical Development Costs.
    26  
 
7.2 Development Costs Quarterly Reconciliation.
    26  
 
7.3 Milestone Payments.
    27  
 
7.4 Profit Sharing.
    27  
 
7.5 Royalties on Sole Development Products.
    27  
 
7.6 Calculation and Payment of Royalties.
    29  
 
7.7 Sharing of Sole Development Income.
    30  
 
7.8 Financial Record Keeping.
    31  
 
7.9 Audits.
    31  
 
7.10 Late Payments.
    31  
 
       
ARTICLE VIII. COMMERCIALIZATION
    32  
 
       
8.1 Commercialization of Cell Therapy Products.
    32  
 
       
ARTICLE IX. MANUFACTURE AND SUPPLY OF CLINICAL DEVELOPMENT CANDIDATES AND CELL THERAPY PRODUCTS
    32  
 
       
9.1 Athersys’ Manufacturing Obligation.
    32  
 
9.2 Manufacturing Costs.
    33  
 
9.3 Manufacturing Compliance.
    33  
 
9.4 Product Conformity.
    33  
 
9.5 Ordering; Forecasting; Acceptance and Rejection.
    33  
 
9.6 Inspection.
    34  
 
9.7 Supply Disruption.
    34  
 
9.8 Back-Up Supplier.
    34  
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TABLE OF CONTENTS
(continued)
         
    Page
ARTICLE X. REGULATORY MATTERS
    35  
 
       
10.1 Ownership of Regulatory Documentation and Reference Rights; Regulatory Strategy.
    35  
 
10.2 Regulatory Communications.
    35  
 
10.3 Other Regulatory Responsibilities.
    36  
 
10.4 Cell Therapy Product Complaints and Recalls.
    36  
 
10.5 Compliance With All Applicable Laws and Regulations; Cooperation.
    36  
 
       
ARTICLE XI. INTELLECTUAL PROPERTY
    37  
 
       
11.1 Existing Intellectual Property Rights Retained.
    37  
 
11.2 Ownership Of New Intellectual Property.
    37  
 
       
ARTICLE XII. CLINICAL PROGRAM RECORD KEEPING
    37  
 
       
12.1 Scientific, Patent and Regulatory Records.
    37  
 
12.2 Review of Records.
    37  
 
12.3 Policies For Records.
    38  
 
       
ARTICLE XIII. CONFIDENTIAL INFORMATION
    38  
 
       
13.1 Confidential Information.
    38  
 
13.2 Confidentiality Obligations.
    38  
 
13.3 Permitted Disclosures.
    39  
 
13.4 Publication.
    41  
 
       
ARTICLE XIV. REPRESENTATIONS AND WARRANTIES
    41  
 
       
14.1 Authority.
    41  
 
14.2 No Conflicts.
    41  
 
14.3 Additional Representations and Warranties of Athersys.
    42  
 
14.4 Additional Covenants of Athersys.
    44  
 
14.5 Additional Covenants of Angiotech.
    46  
 
14.6 Disclaimer Of Warranties.
    47  
 
       
ARTICLE XV. INDEMNIFICATION AND INSURANCE
    47  
 
       
15.1 Indemnification By Athersys.
    47  
 
15.2 Indemnification By Angiotech.
    48  
 
15.3 Insurance.
    49  
 - iii -

 


 

TABLE OF CONTENTS
(continued)
         
    Page
ARTICLE XVI. TERM AND TERMINATION
    49  
 
       
16.1 Term.
    49  
 
16.2 Termination.
    49  
 
16.3 Effects of Termination.
    52  
 
16.4 Survival Of Obligations.
    53  
 
       
ARTICLE XVII. DISPUTE RESOLUTION
    53  
 
       
17.1 Dispute Resolution Process.
    53  
 
17.2 Injunctive Relief.
    54  
 
       
ARTICLE XVIII. MISCELLANEOUS PROVISIONS
    55  
 
       
18.1 Governing Law.
    55  
 
18.2 Assignment.
    55  
 
18.3 Compliance With Laws.
    55  
 
18.4 Further Assurances.
    55  
 
18.5 Severability.
    55  
 
18.6 Waivers And Amendments; Preservation Of Remedies.
    56  
 
18.7 Headings.
    56  
 
18.8 Counterparts.
    56  
 
18.9 Successors.
    56  
 
18.10 Notices.
    56  
 
18.11 No Consequential Damages.
    57  
 
18.12 Independent Contractor.
    57  
 
18.13 Complete Agreement.
    57  
SCHEDULES
Schedule 1.13
Schedule 1.14
Schedule 1.33
Schedule 1.45
Schedule 2.2
Schedule 4.1
Schedule 7.3
Schedule 7.4
Schedule 14.3(b)
Schedule 14.3(g)
 - iv -

 


 

TABLE OF CONTENTS
(continued)
         
    Page
Schedule 14.3(l)
       
 
       
EXHIBITS
       
Exhibit A – Note Purchase Agreement
       
Exhibit B – License Agreement
       
Exhibit C – Sublicense Agreement
       

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STRATEGIC ALLIANCE AGREEMENT
     This Strategic Alliance Agreement (this “ Strategic Alliance Agreement ”) is made and entered into as of May 5, 2006 (the “ Effective Date ”), by and between Athersys, Inc., a corporation organized under the laws of Delaware and having a place of business at 3201 Carnegie Avenue, Cleveland, Ohio 44115 (“ Athersys ”), and Angiotech Pharmaceuticals, Inc., a corporation organized under the laws of British Columbia and having a place of business at 1618 Station Street, Vancouver, British Columbia, Canada V6A 1B6 (“ Angiotech ”). In this Strategic Alliance Agreement, Athersys and Angiotech may each be referred to as a “ Party ” and collectively as the “ Parties .”
RECITALS
     A. Angiotech is engaged in, among other things, design, research, development, manufacture and commercialization of medical devices and therapeutic, biopharmaceutical and biosurgery products and biomaterials.
     B. Athersys is engaged in, among other things, the research and development of therapeutic biologics to treat disease.
     C. Angiotech and Athersys desire to enter into a strategic alliance relating to the research, development, manufacture, market and commercialization of clinical development candidates and cell therapy products for the treatment and/or prophylaxis of certain cardiovascular diseases, disorders and conditions.
     D. Concurrently with the execution of this Strategic Alliance Agreement, Angiotech and Athersys are entering into that certain Note Purchase Agreement attached hereto as Exhibit A , pursuant to which Angiotech will loan $5,000,000.00 to Athersys pursuant to a convertible promissory note (the “ Note ”) on the terms and conditions set forth therein (such Note Purchase Agreement and the exhibits and schedules thereto, the “ Purchase Agreement ”).
     E. Concurrently with the execution of this Strategic Alliance Agreement, Angiotech and Athersys are entering into that certain License Agreement attached hereto as Exhibit B (such License Agreement and the exhibits and schedules thereto, the “ License Agreement ”) concerning Athersys’ license to Angiotech of technology and intellectual property related to certain stem cells and stem cell therapies.
     F. Concurrently with the execution of this Strategic Alliance Agreement, Angiotech and Athersys are entering into that certain Sublicense Agreement attached hereto as Exhibit C (such Sublicense Agreement and the exhibits and schedules thereto, the “ Sublicense Agreement” ) concerning Athersys’ sublicense to Angiotech of technology and intellectual property related to certain stem cells and stem cell therapies licensed from the University of Minnesota.
     G. This Strategic Alliance Agreement, the License Agreement and the Sublicense Agreement hereinafter shall be referred to collectively as the “ Transaction Agreements ”, and unless expressly specified otherwise in the License Agreement, the Sublicense Agreement or this

 


 

Strategic Alliance Agreement, the terms and conditions of this Strategic Alliance Agreement shall apply to all Transaction Agreements.
AGREEMENT
     NOW, THEREFORE, in consideration of the covenants and obligations expressed herein, and intending to be legally bound, the Parties agree as follows:
ARTICLE I.
DEFINITIONS
     1.1 “ Affiliate ” means, with respect to any Party, any corporation or other business entity which directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with such Party, but only for so long as the relationship exists. A corporation or other entity shall be regarded as in control of another corporation or entity (a) if it (or any of its subsidiaries or parents) beneficially owns, holds or directly or indirectly controls more than fifty percent (50%) of the voting capital stock (or such lesser maximum percentage permitted by applicable law considered a control percentage) or other ownership interest of such other corporation or entity, or (b) if it possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other corporation or entity, or (c) if it possesses, directly or indirectly, the power to elect or appoint more than fifty percent (50%) of the members of the governing body of such other corporation or entity.
     1.2 “ Angiotech ” has the meaning ascribed to it in the preamble.
     1.3 “ Angiotech Indemnitees ” has the meaning ascribed to it in Section 15.1 .
     1.4 “ Athersys ” has the meaning ascribed to it in the preamble.
     1.5 “ Athersys Indemnitees ” has the meaning ascribed to it in Section 15.2 .
     1.6 “ Athersys Stem Cells ” has the meaning ascribed to it in the License Agreement.
     1.7 “ Athersys Stem Cell Technology ” has the meaning ascribed to it in the License Agreement.
     1.8 “ Cardiovascular Indications ” means myocardial infarction (whether chronic (e.g., ischemia) or acute) and peripheral vascular disease (excluding neurovascular) in humans.
     1.9 “ Cells ” means the following cells identified, developed, and/or intended for use for treatment and/or prophylaxis of a disease or condition in humans: (a) MAPCs; (b) progeny or components of any MAPCs; (c) derivatives of any of the foregoing (a) or (b); (d) genetically-modified MAPCs; and (e) Athersys Stem Cells; and including, without limitation, cells or tissues that are derived from any of the foregoing, as any of the foregoing cells might be at the time of treatment (i) in their native, undifferentiated

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state, (ii) in a partially or fully pre-differentiated state, (iii) primed for differentiation (for example, through the introduction of a protein, peptide, gene, polynucleotide, small molecule or other active pharmaceutical ingredient), or (iv) in a modified form.
     1.10 “ Cell Therapy ” means the treatment and/or prophylaxis of a disease or condition, by regional, local, systemic or other delivery, localization and/or administration of Cells. The term “ Cell Therapy ” specifically excludes using (a) any of the Cells as reagents; (b) any of the Cells for diagnostic applications or assays; and (c) any of the Cells for drug and drug target validation screening. The term “ Cell Therapy ” specifically includes (x) delivery, localization and/or administration of a protein, peptide, gene, polynucleotide, small molecule or other active pharmaceutical ingredient (or any combination of the foregoing) at or near the time of delivery, localization and/or administration of Cells; (y) delivery, localization and/or administration of one or more fractions and/or subsets of Cells; and (z) delivery, localization and/or administration of one or more other cell types at or near the time of delivery, localization or administration of Cells.
     1.11 “ Cell Therapy Product ” means a therapeutic and/or prophylactic product for humans that (a) includes a Cell developed under this Agreement that is intended for use or used as Cell Therapy for at least one Cardiovascular Indication, and (b) has obtained Regulatory Approval in a given country or jurisdiction in the Territory.
     1.12 “ Clinical Development Candidate ” means (a) a Cell(s) that meets certain criteria and has certain characteristics that are necessary and desirable for the submission of an IND for use of such Cell(s) in Cell Therapy for at least one Cardiovascular Indication (and, therefore, make such Cell(s) suitable for a Clinical Development Program), as determined by the JSC; or (b) a Cell(s) that is or has been the subject of an IND for use of such Cell(s) in Cell Therapy for at least one Cardiovascular Indication. The term “Clinical Development Candidate” shall expressly exclude Cell Therapy Products.
     1.13 “ Clinical Development Costs ” means the costs incurred by the Parties in connection with their respective activities under a Clinical Development Plan, as such costs are more fully described on Schedule 1.13 .
     1.14 “ Clinical Development Plan ” means, for each Clinical Development Candidate, a detailed plan that sets forth the responsibilities of, and the activities to be conducted by, each of the Parties in advancing each such Clinical Development Candidate to Regulatory Approval for a Cardiovascular Indication (including a detailed budget corresponding to each such plan). Each such Clinical Development Plan shall include, without limitation, the following activities (or their equivalents), to the extent applicable:
          (a) conducting pre-clinical research, pre-clinical development and other pre-clinical studies that are intended to support clinical development of a Clinical Development Candidate for a Cardiovascular Indication;

- 3 -


 

          (b) preparation and filing of an IND for a Clinical Development Candidate for a Cardiovascular Indication;
          (c) conducting clinical trials of such Clinical Development Candidate for a Cardiovascular Indication, including clinical trials that are intended to support Regulatory Approvals for such Clinical Development Candidate for such Cardiovascular Indication; and
          (d) preparation and filing of documentation, applications (including, for example, an NDA/BLA) and related activities to enable the Parties to seek Regulatory Approval for such Clinical Development Candidate for such Cardiovascular Indication.
Each Clinical Development Plan approved by the Parties shall be attached hereto as Schedule 1.14 .
     1.15 “ Clinical Development Program ” means the clinical development activities conducted by (or to be conducted by) each Party pursuant to a Clinical Development Plan.
     1.16 “ Commercialization Costs ” means the costs incurred by Angiotech in connection with the promotion, marketing, advertising, sale and/or distribution of Cell Therapy Products, as such costs are more fully described on Schedule 1.13 .
     1.17 “ Commercially Reasonable Efforts ” shall mean efforts and deployment of resources, consistent with the exercise of reasonable and prudent scientific and business judgment, normally used by a research-based pharmaceutical company for a product owned by it or to which it has rights, which is of similar market potential at a similar stage in its development or product life, taking into account issues of safety and efficacy, product profile, the competitiveness of the marketplace, the proprietary position of the product, the regulatory and reimbursement structure involved, the cost of scaling up a manufacturing process (including facility costs), the profitability of the applicable products, and other relevant factors.
     1.18 “ Confidential Information ” has the meaning ascribed to it in Section 13.1 .
     1.19 “ Disclosing Party ” has the meaning ascribed to it in Section 13.1 .
     1.20 “ Effective Date ” has the meaning ascribed to it in the preamble.
     1.21 “ FDA ” means the United States Food and Drug Administration and any successor governmental agency having substantially the same function.
     1.22 “ FDA Approval ” means the receipt by a Party of all approvals by the FDA necessary or required for the commercialization in the United States of a Cell Therapy Product.

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     1.23 “ First Commercial Sale ” shall mean, for each Cell Therapy Product in each country in the Territory on a country-by-country basis, the first sale by Angiotech, or a sublicensee of Angiotech, of a Cell Therapy Product to an independent Third Party after the required Regulatory Approval to sell such Cell Therapy Product in that country has been granted by the relevant regulatory authority. If Regulatory Approval is not required in order to sell a Cell Therapy Product in a particular jurisdiction, then First Commercial Sale shall mean the first transfer of title by Angiotech, or a sublicensee of Angiotech, of a Cell Therapy Product to an independent Third Party for consideration in any arm’s-length transaction in such jurisdiction. Cell Therapy Product sale shall be deemed to occur on the earlier of (a) the date the Cell Therapy Product is shipped to the purchaser, or (b) the date of the invoice to the purchaser of the Cell Therapy Product.
     1.24 “ IND ” means (a) an Investigational New Drug Application, as defined in the United States Federal Food, Drug and Cosmetic Act, as amended, and the rules and regulations promulgated thereunder, that is required to be filed with the FDA before beginning clinical testing in the United States of a Clinical Development Candidate in human subjects, or any successor application or procedure; and (b) all supplements and amendments thereto, including any supplemental Investigational New Drug Application; and (c) any related foreign counterparts of (a) and (b) that may be filed with respect to the foregoing.
     1.25 “ Intellectual Property ” means all of the following (including any substantial equivalent or counterpart) in any jurisdiction throughout the Territory: (a) Patents and Patent Rights; (b) trademarks, service marks, trade dress, trade names, corporate names, logos and Internet domain names; (c) copyrights, software, source code and copyrightable works; (d) applications and registrations for any of the foregoing; and (e) Know-How.
     1.26 “ JSC ” has the meaning ascribed to it in Section 3.1 .
     1.27 “ JSC Dispute ” has the meaning ascribed to it in Section 3.7(a) .
     1.28 “ Know-How ” means inventions, discoveries, data, information, trade secrets, processes, methods, techniques, materials, technology, results or other know-how, whether or not patentable.
     1.29 “ License Agreement ” has the meaning ascribed to it in the Recitals.
     1.30 “ Local Therapeutic Company ” means a corporation or other business entity engaged in the business of exploiting products for human or veterinary uses wherein all or a substantial portion of the activities of such corporation or other business entity are competitive with those of Angiotech.
     1.31 “ Manufacturing Costs ” means, with respect to each Clinical Development Candidate and Cell Therapy Product, the costs incurred by Athersys in connection with the manufacture and supply of the Clinical Development Candidate or Cell Therapy Product (respectively) to Angiotech or any Third Party on Angiotech’s behalf, as such costs are more fully described on Schedule 1.13 .

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     1.32 “ Major Market ” means the following markets: United States, Australia, Canada, United Kingdom, Germany, France, Italy, Spain and Japan.
     1.33 “ MAPC ” means any multipotent adult progenitor cell, including without limitation those described in the Patent Rights listed on Schedule 1.33 or described in any Patent Rights that claim priority to any such Patent Rights listed on Schedule 1.33 .
     1.34 “ NDA/BLA ” means (a) a New Drug Application and/or a Biologics License Application as defined in the United States Federal Food, Drug and Cosmetic Act or the United States Public Health Service Act, each as amended, and the rules and regulations promulgated thereunder, that is required to be filed with the FDA before commercialization of a product in the United States, and any successor application or procedure; (b) all supplements and amendments thereto; and (c) any related foreign counterparts of (a) and (b) that may be filed with respect to the foregoing.
     1.35 “ Net Sales ” means the gross amount invoiced for sale or other commercial disposition of a Cell Therapy Product (or any Cells sold for use in the Therapeutic Field) by Athersys or Angiotech or any of their Affiliates or their respective direct or indirect licensees, sublicensees or subcontractors, to a Third Party (including, without limitation, sales to distributors), in bona fide, arm’s-length transactions, after deduction of the following items (to the extent actually incurred and to the extent not already deducted in the amount invoiced):
          (a) all trade, quantity and cash discounts, wholesaler-charge backs or rebates (including, but not limited to, rebates to governmental agencies, managed care organizations, health management organizations, pharmacy benefit managers and group purchasing organizations) actually allowed;
          (b) all credits or allowances actually granted for rejection or return of a previously sold Cell Therapy Product (or Cells sold for use in the Therapeutic Field);
          (c) excise, sales and other consumption taxes and customs duties;
          (d) retroactive price reductions including, but not limited to, those imposed by governmental agencies; and
          (e) any charge for freight or insurance if separately stated on the same invoice as for the sale of the Cell Therapy Product (or Cells sold for use in the Therapeutic Field) and directly related to the sale or distribution of the Cell Therapy Product (or Cells sold for use in the Therapeutic Field);
all in accordance with standard allocation procedures, allowance methodologies and accounting methods consistently applied, which procedures and methodologies shall be in accordance with generally accepted accounting principles (“ GAAP ”). A “ sale ” of a Cell Therapy Product (or Cells sold for use in the Therapeutic Field) is deemed to occur upon the invoicing, or if no invoice is issued, upon the earlier of shipment or transfer of title in the Cell Therapy Product (or the Cells) to the Third Party. Sales between or among a Party, on the one hand, and its Affiliates, licensees or sublicensees, on the other

- 6 -


 

hand, shall not be used to calculate “Net Sales” unless the purchasing Affiliate, licensee or sublicensee is an end-user. “ Net Sales ” for purposes of this Strategic Alliance Agreement includes all such sales by assignees or other successors to either Party’s rights under this Strategic Alliance Agreement. If a Cell Therapy Product (or the Cells) is sold as part of a larger bundle or kit that incorporates or includes other products in addition to the Cell Therapy Product (or the Cells), Net Sales will be computed using an average net selling price of the Cell Therapy Product (or the Cells) sold separately or, if such average net selling price is unavailable, it will include only that part of such sale reasonably allocated by the JSC to the value of the Cell Therapy Product (or the Cells) as compared to the value of the larger bundle or kit sold without the Cell Therapy Product (or the Cells).
     1.36 “ Non-Licensed Cardiovascular Indications ” means any disease, disorder, condition, or the prevention, palliation, treatment, or correction of the same, which involves or relates to the heart and/or blood vessels, other than the Cardiovascular Indications and neurovascular disease (including stroke). Non-Licensed Cardiovascular Indications explicitly includes, but is not limited to, congestive heart failure.
     1.37 “ Party ” and/or “ Parties ” has the meaning ascribed to it in the preamble.
     1.38 “ Patent ” means any and all issued and granted patents, or other registration of ownership of an invention, granted by any governmental authority in the Territory, including, but not limited to, patents of implementation, improvement or addition; utility patents; design patents; and inventors’ certificates, as well as those patents that may issue or be granted from any divisions, reissues, continuations (in whole or in part), reexaminations, renewals, substitutions and extensions of any of the foregoing.
     1.39 “ Patent Prosecution ” means the (a) preparation, filing and/or prosecution of applications (of all types) for Patent(s); (b) maintenance of any Patent Rights; and (c) management of any interference or opposition proceeding relating to the foregoing.
     1.40 “ Patent Rights ” means rights in (a) issued Patents and pending provisional and non-provisional applications for Patents, including, without limitation, any continuations, continuations-in-part or divisions directed to inventions disclosed therein; (b) any re-examinations, reissues, renewals, substitutions or extensions of any Patents; and (c) foreign counterparts or equivalents of any of the foregoing.
     1.41 “ Phase I Study ” means a clinical study in human subjects that is intended to initially evaluate the tolerance, safety and/or pharmacological effects of (or to otherwise satisfy the requirements of 21 C.F.R. § 312.21(a) or its foreign equivalent with respect to) a Clinical Development Candidate for a particular Cardiovascular Indication.
     1.42 “ Phase II Study ” means a clinical study in human patients that is intended to initially evaluate the effectiveness of (or to otherwise satisfy the requirements of 21 C.F.R. § 312.21(b) or its foreign equivalent with respect to) a Clinical Development Candidate for a particular Cardiovascular Indication.

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     1.43 “ Phase III Study ” means a pivotal clinical study in human patients with a defined dose or set of doses of a Clinical Development Candidate that is designed to ascertain the safety and efficacy of (or to otherwise satisfy the requirements of 21 C.F.R. § 312.21(c) or its foreign equivalent with respect to) such Clinical Development Candidate for a particular Cardiovascular Indication, which Phase III Study is conducted for the purpose of enabling the preparation and submission of applications for Regulatory Approval to the competent regulatory authorities in a country of the Territory.
     1.44 “ Phase IV Study ” means any clinical study in human patients that is commenced after receipt of Regulatory Approval of a Cell Therapy Product in any country of the Territory, which study is conducted within the parameters of the Regulatory Approval, and shall include studies required or requested by the Regulatory Authority as a condition of, or in connection with, obtaining Regulatory Approval with respect to such Cell Therapy Product for a particular Cardiovascular Indication. Phase IV Studies also shall include studies conducted to gather additional information regarding such Cell Therapy Product, including, without limitation, potential risks, medical or pharmacoeconomic benefits, optimal use, dose, route and schedule of administration, modeling and pharmacoeconomic studies, and investigator-sponsored clinical trials.
     1.45 “ Pre-Clinical Development Plan ” means a detailed plan that sets forth the responsibilities of, and activities to be conducted by, Athersys (and Angiotech pursuant to Section 4.3 ) in advancing one or more Cells and/or Cell Therapies into one or more potential Clinical Development Candidates for a particular Cardiovascular Indication (including a detailed budget corresponding to each such plan). Each such Pre-Clinical Development Plan shall include, without limitation, the following activities (or their equivalents), to the extent applicable:
          (a) conducting research and development activities related to Cells and Cell Therapy, as a step in the ultimate objective of identifying and characterizing Clinical Development Candidates; and
          (b) conducting pre-clinical research, pre-clinical development and other pre-clinical studies that are intended to facilitate and support progression of one or more Cells and/or Cell Therapies to selection as Clinical Development Candidates, and ultimately to Regulatory Approval of such Clinical Development Candidate(s) as a Cell Therapy Product(s);
An initial draft Pre-Clinical Development Plan(s) has been prepared by Athersys and presented to Angiotech prior to the Effective Date. Within ninety (90) days after the Effective Date, the JSC shall finalize such draft Pre-Clinical Development Plan(s), and such final Pre-Clinical Development Plan shall be attached hereto as Schedule 1.45 .
     1.46 “ Pre–Clinical Development Program ” means the pre-clinical development activities conducted by (or to be conducted by) each Party pursuant to a Pre-Clinical Development Plan.
     1.47 “ Profit(s) ” has the meaning ascribed to it on Schedule 7.4 .

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     1.48 “ Purchase Agreement ” has the meaning ascribed to it in the Recitals.
     1.49 “ Receiving Party ” has the meaning ascribed to it in Section 13.1 .
     1.50 “ Regulatory Approval ” means any and all approvals (including any applicable governmental price and reimbursement approvals), licenses, registrations or authorizations of any federal, national, multinational, state, provincial or local regulatory agency, department, bureau, commission, council or other governmental entity necessary for the commercial manufacture, use, storage, import, export, transport, distribution, promotion, marketing, offer for sale and sale of a therapeutic and/or prophylactic product in a country of the Territory.
     1.51 “ Royalty Term ” shall mean, for a particular Sole Development Product in a particular country in the Territory, the period of time from First Commercial Sale of such Sole Development Product to the date on which market exclusivity in such country ends, which shall mean the later date to occur of the following: (a) the expiration of all Patent Rights covering such Sole Development Product in such country; or (b) the expiration of market exclusivity related to such Sole Development Product in such country.
     1.52 “ Sole Development Income ” shall mean any payments that the Developing Party receives from a licensee or sublicensee of the rights owned by or granted to the Developing Party hereunder, in consideration for the license or sublicense of such rights as applicable to a Sole Development Product, including, without limitation, license fees, milestone payments, license maintenance fees, and other payments received for such a license or sublicense, but specifically excluding royalty-type payments based on Net Sales, bona fide payments for research and development, marketing, sales and/or other services, bona fide reimbursement for costs and expenses incurred by the Developing Party (such as patent prosecution costs), payments to the extent of fair market value for the issuance of equity or debt (or for debt financing such as loans), and payments resulting from any bona fide arms length agreement relating to the supply to such licensee or sublicensee of the applicable Sole Development Products (and/or ingredients or components thereof).
     1.53 “ Sole Development Product ” has the meaning ascribed to it in Section 6.1.
     1.54 “ Strategic Alliance Agreement ” has the meaning ascribed to it in the preamble.
     1.55 “ Sublicense Agreement ” has the meaning ascribed to it in the Recitals.
     1.56 “ Successful Completion ” means, with respect to a clinical study of a Clinical Development Candidate in human patients, (a) completion of such clinical study; (b) the meeting of all primary and secondary clinical endpoints of such clinical study or the advancement of the Clinical Development Candidate to the next phase of clinical trials (or to commercialization, where the subject clinical study is a Phase III Study), even though the Clinical Development Candidate does not meet all secondary endpoints; and

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(c) delivery to the JSC of the corresponding written, completed study report prepared according to the study protocol.
     1.57 “ Term ” has the meaning ascribed to it in Section 16.1 .
     1.58 “ Territory ” means the world.
     1.59 “ Therapeutic Field ” means, as the context requires, a field comprising any one or more of the Cardiovascular Indications.
     1.60 “ Third-Party ” means a person or entity other than Angiotech or Athersys.
     1.61 “ Third Party Payments ” shall mean all amounts payable to a Third Party for rights or licenses to Intellectual Property in connection with the manufacture, use, sale, offer for sale or importation of Clinical Development Candidates and/or Cell Therapy Products, including without limitation license fees, milestone payments, license maintenance fees, royalties and other payments made for such a right or license.
     1.62 “ Transaction Agreements ” has the meaning ascribed to it in the Recitals.
     1.63 Additional Definitions.
     
Defined Term   Section in which Defined
CFOs
  7.2(c)
Change of Control
  16.2(e)
Change of Control Notice
  16.2(e)
CHF Offer
  2.2(b)
CHF Offer Notice
  2.2(b)
Co-Chair
  3.3
Code
  16.2(c)
Developing Party
  6.1
Diligence Requirement
  6.4
Discontinuing Party
  6.1
Existing Third Party Agreement
  4.1
for cause
  16.2(d)(i)
GAAP
  1.35
Heads of Research
  3.7(b)
Negotiation Notice
  2.2(a)
New Pre-Clinical Development Programs
  4.3
Offer Notice
  2.2(a)

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Defined Term   Section in which Defined
Offer Period
  2.2(a)
Opt-Out Notice
  6.1
Paying Party
  7.6(a)
Phase I Milestone Fee
  2.4(a)
Product Specifications
  9.4
Proposed Clinical Plan(s)
  3.5(c)
Replacement Fee
  2.4(b)(i)
Royalty Recipient
  7.6(a)
Sole Development Option
  6.1
Supply Disruption
  9.7
Terms and Conditions
  2.2(b)
ARTICLE II.
CERTAIN TRANSACTION COMPONENTS
     2.1 Concurrent Execution . Each Party shall execute all of the Transaction Agreements and the Purchase Agreement, and shall deliver each of them to the other Party, and each of the Transaction Agreements and the Purchase Agreement shall be effective as of the Effective Date. Neither Party shall have any obligations under any of the Transaction Agreements or the Purchase Agreement unless and until all of the Transaction Agreements and the Purchase Agreement have been so executed and delivered.
     2.2 Right of First Negotiation for Non-Licensed Cardiovascular Indications .
          (a) Throughout the Term, Angiotech shall have the first right to negotiate to obtain an exclusive license to Cell Therapy for all or any part of the Non-Licensed Cardiovascular Indications. Athersys shall promptly notify Angiotech in writing if: (a) Athersys intends to initiate a research and/or development and/or commercialization program for Cell Therapy involving any of the Non-Licensed Cardiovascular Indications; (b) Athersys intends to take any action to initiate any process to license (whether exclusively or non-exclusively) to a Third Party (or otherwise grant to a Third Party) any rights to develop or commercialize Cell Therapy for any of the Non-Licensed Cardiovascular Indications; or (c) Athersys receives an unsolicited offer from a Third Party that desires to acquire any rights to develop or commercialize Cell Therapy for any of the Non-Licensed Cardiovascular Indications (where each of the events set forth in (a-c) above shall obligate Athersys to provide such written notice, hereinafter termed an “ Offer Notice ”). The Offer Notice shall specify the indications within the Non-Licensed Cardiovascular Indications to which the notice applies, and in the case of (c), shall summarize the terms of the Third Party’s offer. Upon Angiotech’s receipt of the Offer Notice, Angiotech shall have fifteen (15) days (the “ Offer Period ”) to notify Athersys that Angiotech desires to negotiate with Athersys to obtain a license for Cell Therapy for

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the applicable Non-Licensed Cardiovascular Indications (such notice by Angiotech is hereinafter referred to as the “ Negotiation Notice ”). If Angiotech delivers such Negotiation Notice to Athersys, Athersys shall negotiate in good faith exclusively with Angiotech, for a period of not less than ninety (90) days from the date of Athersys’ receipt of the Negotiation Notice (the “ Negotiation Period ”), mutually acceptable, commercially reasonable terms and conditions of an exclusive license to Angiotech for the applicable Non-Licensed Cardiovascular Indications. Accordingly, Angiotech shall have the right of first and exclusive negotiation to obtain an exclusive license to Cell Therapy for all or any part of the Non-Licensed Cardiovascular Indications identified in the Negotiation Notice. If Angiotech fails to deliver the Negotiation Notice prior to expiration of the Offer Period, or if Athersys and Angiotech are unable to consummate a mutually acceptable transaction prior to expiration of the Negotiation Period, Athersys shall be free to license Cell Therapy for the applicable Non-Licensed Cardiovascular Indications to a Third Party. If Athersys is unable to complete a transaction granting rights to Cell Therapy for the applicable Non-Licensed Cardiovascular Indications to a Third Party within ninety days (90) days after (y) the expiration of the applicable Offer Period if Angiotech has not delivered a Negotiation Notice, or (z) the expiration of the applicable Negotiation Period if Angiotech has delivered a Negotiation Notice, then Athersys’ notification requirement shall “reset” with respect to Cell Therapy for the applicable Non-Licensed Cardiovascular Indications. For the avoidance of doubt, this right of first negotiation shall apply to Cell Therapy for all indications within the Non-Licensed Cardiovascular Indications.
          (b) In addition to Section 2.2(a) above, throughout the Term with respect to Cell Therapy involving congestive heart failure, Angiotech shall have the right of first refusal to obtain a license to Cell Therapy for congestive heart failure as described in this Section 2.2(b) . Upon the receipt by Athersys from a Third Party of any offer for any rights relating to Cell Therapy for congestive heart failure that Athersys desires to accept (a “ CHF Offer ”), Athersys shall provide written notice of such CHF Offer to Angiotech (the “ CHF Offer Notice ”). The CHF Offer Notice shall include a detailed summary of the material terms and conditions of the CHF Offer (the “ Terms and Conditions ”). If the Terms and Conditions are substantially more favorable to such Third Party than the terms and conditions offered by Angiotech pursuant to Section 2.2(a) , Angiotech shall have thirty (30) days from receipt of the CHF Offer Notice to accept or reject the CHF Offer according to the Terms and Conditions. If Athersys and Angiotech do not conclude such transaction within a ninety (90)-day period of exclusive, good faith negotiations that begins on receipt of Angiotech’s notice of “acceptance,” or if Angiotech does not provide such written notice before expiration of its 30-day acceptance period (or if Angiotech rejects the CHF Offer in writing before the end of such 30-day period), Athersys shall then have ninety (90) days to negotiate definitive, binding agreements with such Third Party on terms and conditions not substantially more favorable to such Third Party than the Terms and Conditions. If (i) Athersys is unable to complete such a transaction within such ninety (90) day period with such Third Party, then the notification requirement shall “reset” with respect to Cell Therapy for congestive heart failure, or (ii) the terms and conditions negotiated with such Third Party and acceptable to both Athersys and such Third Party concerning such transaction are substantially more favorable to such Third Party than the Terms and Conditions, then the terms and conditions of the transaction as

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negotiated shall be considered to be a new CHF Offer that is subject to the right of first refusal on behalf of Angiotech described in this Section 2.2(b) .
     2.3 Additional Investment .
          (a) Angiotech shall make an additional $5,000,000.00 investment in Athersys pursuant to the terms described in Section 2.3(b) within ten (10) business days after Athersys fulfills the first of the following conditions to occur (provided that if Athersys fulfills any such condition prior to January 1, 2007, then such condition shall be deemed to have been fulfilled on January 1, 2007):
          (i) Athersys has commenced at least one additional pre-clinical animal study between the Effective Date and January 1, 2007 (in accordance with the applicable Pre-Clinical Development Plan) and either (A) such study has been completed prior to January 1, 2007 in accordance with the applicable pre-clinical animal study protocol; or (B) such study is ongoing as of January 1, 2007 and is being conducted in accordance with the applicable pre-clinical animal study protocol, or
          (ii) at any time after January 1, 2007 Athersys completes at least one additional pre-clinical study (in accordance with the applicable Pre-Clinical Development Plan) in accordance with the applicable pre-clinical animal study protocol.
          (b) With respect to the investment described in (a) above:
          (i) if the Note has not been converted into capital stock of Athersys prior to the date of such investment, then Angiotech and Athersys shall enter into a note purchase agreement, in substantially the form of the Purchase Agreement, pursuant to which Angiotech shall loan $5,000,000.00 in cash to Athersys pursuant to a convertible promissory note having the same terms and conditions as the Note; and
          (ii) if the Note has been converted into capital stock of Athersys prior to the date of such investment, then Angiotech and Athersys shall enter into a securities purchase agreement, in substantially the form of the Purchase Agreement (except for necessary adaptations for a securities purchase instead of a note purchase), pursuant to which Angiotech shall purchase with cash the number of whole shares of capital stock of Athersys that can be purchased with $5,000,000.00 in cash, at one hundred ten percent (110%) of the per share price at which stock is sold in the Bona Fide Financial Investment (as defined in the Note), on the terms and conditions set forth therein. The class and series of capital stock shall be the same as that sold in the Bona Fide Financial Investment.
     2.4 Phase I Milestone Fee .
          (a) As soon as reasonably practicable after the passage of thirty (30) days (or such other period of time during which the FDA may then be permitted to impose a

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clinical hold) following the first IND submission to the FDA in connection with the first Clinical Development Candidate hereunder without the FDA imposing a clinical hold, thereby enabling the Parties to lawfully initiate a Phase I Study of such Clinical Development Candidate, subject to Section 2.4(b) below, the Parties shall enter into a one-time only securities purchase agreement, in substantially the form of the Purchase Agreement (except for necessary adaptations for a securities purchase instead of a note purchase), pursuant to which Angiotech shall purchase with cash the number of whole shares of capital stock of Athersys that can be purchased with [$*] in cash, at the per share price determined in accordance with Schedule 2.2 , on the terms and conditions set forth therein (the “ Phase I Milestone Fee ”). For the avoidance of doubt, Angiotech shall not be required to enter into any further securities purchase agreement(s) in connection with any subsequent IND submission .
          (b) Angiotech, in its sole discretion, may elect to decline payment of the Phase I Milestone Fee by providing written notice of such election within the applicable 30-day period set forth in Section 2.4(a) . Within thirty (30) days after receipt of such written notice from Angiotech, Athersys shall provide written notice to Angiotech choosing one of the following items as a replacement for the Phase I Milestone Fee:
          (i) requiring Angiotech to, within ten (10) business days following the Successful Completion of the first Phase III Study for a Clinical Development Candidate in the U.S. (or foreign equivalent trial) in any Cardiovascular Indication, pay to Athersys a one-time milestone payment in cash equal to [$*] (the “ Replacement Fee ”) upon the Successful Completion of the first Phase III Study for a Clinical Development Candidate in the U.S. (or foreign equivalent trial) in any of the Cardiovascular Indications; or
          (ii) modifying the split of Profits from the commercialization of a Cell Therapy Product described in Schedule 7.4 to be [*%] to Athersys and [*%] to Angiotech.
     2.5 Exclusivity . Except as expressly provided pursuant to a Clinical Development Plan or in any Transaction Agreement, during the Term Athersys shall not engage (itself or with a Third Party) in any clinical development or commercialization activities directed to the Cardiovascular Indications using any stem cells.
     2.6 Retained Rights . Except as expressly set forth herein or as otherwise mutually agreed by the Parties in writing, no Intellectual Property rights or licenses are granted by Angiotech to Athersys under this Strategic Alliance Agreement. Angiotech retains all rights to Angiotech Intellectual Property. Except as expressly set forth herein or as otherwise mutually agreed by the Parties in writing, no Intellectual Property rights or licenses are granted by Athersys to Angiotech under this Strategic Alliance Agreement.
 
*   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.

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Athersys retains all rights to Athersys Intellectual Property to the extent such Intellectual Property rights are not expressly granted to Angiotech hereunder.
     2.7 Costs Borne by Each Party . Except as expressly set forth herein, including without limitation Sections 7.1 , 7.2 and 7.4 and Schedule 7.4 , all costs and expenses connected with a Party’s activities or performance under any Pre-Clinical Development Program, Clinical Development Plan or this Strategic Alliance Agreement shall be borne solely by that Party.
     2.8 Certain Restrictions on Athersys’ Activities Outside of Cardiovascular Indications . In its research and development activities in connection with Third Parties related to products for Cell Therapy outside of the Cardiovascular Indications, Athersys shall make Commercially Reasonable Efforts to position such products in a way that reduces the potential for such products to be used off label in any of the Cardiovascular Indications.
ARTICLE III.
JOINT STEERING COMMITTEE
     3.1 Joint Steering Committee . Promptly following the Effective Date, the Parties shall establish a Joint Steering Committee (“ JSC ”) to oversee and coordinate the Parties’ responsibilities and activities in accordance with and in furtherance of the Pre-Clinical Development Plan(s), Clinical Development Plan(s) and this Strategic Alliance Agreement. The JSC shall be composed of up to four (4) senior, qualified representatives from each Party (or from a Party’s Affiliate). The total number of JSC members will initially be up to eight (8), but the number may be increased or decreased from time-to-time by mutual written agreement of the Parties; provided that the number of representatives from Angiotech shall always be equal to the number of representatives from Athersys. Each of Angiotech and Athersys may replace any of its representatives on the JSC at will by giving written notice thereof to the other Party.
     3.2 Subcommittees . The JSC shall be empowered to create one or more subcommittees, project teams or working groups, as it may deem appropriate or necessary. Each such subcommittee, project team and working group shall report to the JSC, which shall have authority to approve or reject recommendations or actions proposed thereby, subject to the terms of this Strategic Alliance Agreement. In general, the Parties contemplate that all JSC subcommittees shall have an equal number of members appointed by each Party.
     3.3 Chairperson . Each Party shall appoint one of its representatives on the JSC as a co-chair of the JSC (each, a “ Co-Chair ”), and a Party may change its Co-Chair from time to time by written notice to the other Party. Each Party’s Co-Chair shall serve as a co-chair of the JSC meetings, unless the Co-Chairs jointly determine that they shall alternate responsibility for chairing JSC meetings (whether on a meeting-by-meeting, calendar quarter-by-calendar quarter or calendar year-by-calendar year basis).
     3.4 JSC Meetings .

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          (a) The JSC shall meet at least once every calendar quarter during the Term, either in person, by video conference or by telephone conference, as appropriate, as reasonably arranged by the Co-Chairs; provided that at least one (1) JSC meeting per calendar year shall be held in person. Meetings of the JSC shall be effective only if at least one (1) JSC representative of each Party participates in the meeting (in person or by telephone or videoconference). The Co-Chairs (or the responsible JSC chairperson, if applicable) shall be responsible for scheduling meetings of the JSC, preparing agendas for JSC meetings, sending to all JSC members notices of all regular JSC meetings (at least thirty (30) days before such meetings) and agendas for such meetings (at least ten (10) days before such meetings).
          (b) In addition, either Co-Chair may from time to time request a special JSC meeting by contacting the other Co-Chair and providing a proposed agenda for such meeting. The Co-Chairs shall arrange a mutually acceptable time for such special JSC meeting as promptly thereafter as reasonably possible, and shall prepare and circulate an agenda for such special JSC meeting as far in advance of such meeting as reasonably possible.
          (c) The Co-Chairs (or the responsible JSC chairperson, if applicable) shall be responsible for having minutes of each JSC meeting prepared and circulated among the JSC members. The JSC meeting minutes will be documented in writing and shall provide a description in reasonable detail of the discussions held at the JSC meeting, and a list of any actions, decisions or determinations taken or approved by the JSC. In addition, the JSC meeting minutes shall include, with respect to the Parties’ responsibilities, activities and tasks hereunder, (i) the Parties’ progress to date, (ii) difficulties encountered by the Parties to date, (iii) schedules for performing and completing the Parties’ tasks and activities, (iv) each Party’s action plans, and (v) any JSC recommendation that the Parties approve a Proposed Clinical Plan or end an existing Clinical Development Plan. The responsible Co-Chair shall distribute the minutes of the JSC meeting to the Parties and the JSC members within ten (10) days after the conclusion of each JSC meeting. The JSC meeting minutes shall be deemed to be approved by the JSC members if no written objections to the meeting minutes are submitted to the JSC within ten (10) days after being distributed to the JSC members. Each Party shall be responsible for expenses incurred by its JSC representatives in attending or otherwise participating in JSC meetings.
     3.5 Responsibilities of the Joint Steering Committee .
          (a) Clinical Development Plans and Clinical Development Candidates . In addition to its general responsibility to oversee and coordinate the activities of the Parties in connection with the Pre-Clinical Development Plans, Clinical Development Plans and this Strategic Alliance Agreement, the JSC shall in particular:
          (i) monitor the progress made by Athersys in connection with the Pre-Clinical Development Programs in a manner consistent with the corresponding Pre-Clinical Development Plans and this Strategic Alliance Agreement;

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          (ii) monitor the Existing Third Party Agreements and any other agreements with a Third Party related to the Pre-Clinical Development Plans, Clinical Development Plans and/or Cell Therapy in the Therapeutic Field, including without limitation monitoring compliance with such agreements and activities thereunder, reviewing reports prepared by or for a Party, evaluating Intellectual Property resulting from such agreements and ensuring that the appropriate Party obtains rights to any such Intellectual Property when advisable;
          (iii) designate Cell(s) as Clinical Development Candidate(s) in accordance with criteria determined by the JSC;
          (iv) monitor the progress made, and direct the activities to be undertaken, by the Parties in connection with the Clinical Development Programs in a manner consistent with the corresponding Clinical Development Plans and this Strategic Alliance Agreement;
          (v) review, modify as it deems appropriate, and recommend, as necessary from time-to-time, the Clinical Development Plan(s);
          (vi) oversee and, whenever practicable, expedite the implementation of each Pre-Clinical Development Plan and each Clinical Development Plan;
          (vii) create and update a risk analysis plan;
          (viii) clarify or adjust the tasks of the respective Parties under the Pre-Clinical Development Plans and Clinical Development Plans, in a manner consistent with this Strategic Alliance Agreement;
          (ix) ensure adequate resources are assigned by each Party for research planning, project management and personnel and other resource management related to the Clinical Development Plans;
          (x) create, review, modify as it deems appropriate, and recommend an annual budget corresponding to each Clinical Development Plan, in a manner consistent with this Strategic Alliance Agreement;
          (xi) reasonably determine or adjust milestones and progress related to the Clinical Development Plans; and
          (xii) recommend whether or not, and to what extent, research or development studies, beyond those identified in an existing Pre-Clinical Development Plan or Clinical Development Plan, should be conducted.
          (b) Existing Third Party Agreements . Within thirty (30) days after the Effective Date, Athersys shall provide to the JSC a report describing the status of, purpose of, scope of activities encompassed by, recent activities conducted under, and Intellectual Property developed under each Existing Third Party Agreement related to the

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Pre-Clinical Development Plans, Clinical Development Plans and/or Cell Therapy in the Therapeutic Field, together with complete, unredacted copies of each such agreement and any reports delivered by or provided to Athersys thereunder, subject to confidentiality obligations to the counterparty to each such Agreement; provided that where such obligations of confidentiality preclude or limit any such disclosures hereunder, Athersys shall use Commercially Reasonable Efforts to obtain consent from such counterparty to permit such disclosures to Angiotech.
          (c) Proposed Clinical Plans . The Parties, either separately or jointly, may submit written proposals for Clinical Development Plans for any Clinical Development Candidate (“ Proposed Clinical Plans ”) to the JSC for review (which review shall take place at the first JSC meeting following submission of a Proposed Clinical Plan to the JSC) and recommendation to the Parties; provided that each Party may submit no more than one Proposed Clinical Plan per calendar quarter during the Term. Each Proposed Clinical Plan shall include, as appropriate, (i) an objective, key milestones and a timetable for the Proposed Clinical Plan; (ii) a summary of resources expected to be required to conduct the Proposed Clinical Plan to completion; (iii) a summary of expected Third Party arrangements that may be necessary or useful, including, without limitation, license agreements and/or supply arrangements; and (iv) a proposed budget and term for the Proposed Clinical Plan. Any Proposed Clinical Plan that is recommended by the JSC and approved in writing by the Parties will be deemed a Clinical Development Plan, and each such approved Clinical Development Plan shall be a part of, and subject to all of the provisions of, this Strategic Alliance Agreement and the other Transaction Agreements, as applicable.
          (d) New Pre-Clinical Development Programs . The JSC shall oversee and coordinate the Parties’ responsibilities and activities, and shall recommend to the Parties appropriate cost-sharing by the Parties, in connection with each New Pre-Clinical Development Program.
          (e) Advancement or Termination of Clinical Development Plans . Upon the completion of each Clinical Development Plan, the JSC will have sixty (60) days thereafter to provide written recommendations to the Parties as to whether the Clinical Development Plan should either (i) be advanced to the next phase of development or commercialization, as applicable, or (ii) be terminated by the Parties. With the prior written approval of both Parties, the JSC will also have the authority to terminate a Clinical Development Plan at any time.
          (f) Other Responsibilities . The JSC shall have such other responsibilities as are expressly set forth elsewhere in this Strategic Alliance Agreement, the Transaction Agreements or as are assigned to it as mutually agreed upon by the Parties.
          (g) Angiotech Proposals . During the term of this Strategic Alliance Agreement, Angiotech may, but is not obligated to, present to the JSC for consideration medical devices, biomaterials, compositions and methods that may enhance the development of Cells, Clinical Development Candidates and/or Cell Therapy Products in the Cardiovascular Field. The JSC shall consider the value of any such enhancements

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(including where appropriate, for example, an evaluation of market analysis, financial projections, costs, resources, responsibilities of Athersys and Angiotech, and timelines). After due consideration, the Steering Committee shall accept or reject each such proposed enhancement. If the JSC accepts a proposed enhancement, then the JSC shall (i) recommend appropriate compensation to Angiotech with respect to such enhancement and the applicable Pre-Clinical Development Plan or Clinical Development Plan shall be modified to include such enhancement; and (ii) determine ownership of any Intellectual Property related to the accepted enhancement that may be made, created, identified, conceived, reduced to practice or derived by or on behalf of the Parties (either alone or jointly) during the course of performance of a Party’s obligations under the applicable Pre-Clinical Development Plan or Clinical Development Plan; provided that Angiotech shall own all Intellectual Property related to any proposed or accepted enhancement that is made, created, identified, conceived, reduced to practice or derived by or on behalf of Angiotech or its Affiliates at or prior to the time the enhancement is presented to the JSC for consideration.
     3.6 Voting; Decision-Making . Regardless of the number of JSC representatives from any Party, Angiotech shall present one consolidated view and have one vote on any issue before the JSC, to be cast by Angiotech’s Co-Chair or his/her designee, and Athersys shall present one consolidated view and have one vote on any issue before the JSC, to be cast by Athersys’ Co-Chair or his/her designee. Except as otherwise expressly set forth herein, the JSC may only act by unanimous written agreement. Except as otherwise expressly set forth herein, the JSC shall have final decision-making authority (which decision-making authority may be delegated to a subcommittee by the JSC, in its discretion) regarding all issues relating to the Pre-Clinical Development Plans and Clinical Development Plans; provided that the JSC may not modify or renegotiate any terms or conditions of this Strategic Alliance Agreement. In making decisions on the JSC, each Party shall duly consider in good faith any suggestions, opinions and proposals made by the other Party, and shall use good faith efforts to reach consensus with the other Party. If the JSC fails to reach unanimous agreement on any matter within the scope of its responsibilities, as described in this Strategic Alliance Agreement or as expressly delegated to the JSC by written agreement of the Parties, the dispute shall be resolved as set forth in Section 3.7 .
     3.7 JSC Disputes .
          (a) If, before adjourning any JSC meeting, the JSC fails to reach unanimous agreement on any matter or issue upon which the JSC has voted at such JSC meeting, and upon which the JSC has authority to vote, in accordance with this ARTICLE III (each such matter or issue, a “ JSC Dispute ”), such JSC Dispute shall automatically be added as an agenda item for the next regular meeting of the JSC. Between the meeting in which the JSC Dispute arose and such next regularly scheduled JSC meeting, the JSC and/or the Parties may negotiate in good faith to attempt to resolve the JSC Dispute. At any time during such interim time period, the JSC may call a special meeting to attempt to resolve the JSC Dispute.

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          (b) If the JSC members are unable to resolve such JSC Dispute before or at the next regularly scheduled JSC meeting, such JSC Dispute shall be referred for resolution to the Chief Scientific Officer (or person fulfilling the equivalent function) of each Party (each, a “ Head of Research ”). Resolution of such JSC Dispute by the Heads of Research shall occur within thirty (30) days after the date of referral to the Heads of Research. If the Heads of Research are unable to reach consensus and resolve such JSC Dispute within such 30-day period after good faith attempts to reach such consensus and resolution, then the JSC Dispute shall be referred for final resolution to Athersys’ President (or other designated executive level officer of Athersys), if the JSC Dispute relates to a Phase I Study completion or earlier matter or issue, and to Angiotech’s CFO (or other designated executive level officer of Angiotech), if the JSC Dispute relates to a post-Phase I Study (or later) or commercialization matter or issue; provided that, when exercising such final, decision-making authority, neither Party’s President, CFO (or other designated executive level officer) shall be empowered to alter the Parties’ respective rights or obligations under this Strategic Alliance Agreement; and provided further that neither Party’s President, CFO (or other designated executive level officer) shall have final decision-making authority with respect to approval or modification of (i) designation of any Cell as a Clinical Development Candidate; (ii) any Pre-Clinical Development Plan or Clinical Development Plan (but expressly excluding any immaterial modifications to such Pre-Clinical Development Plan or Clinical Development Plan); (iii) any Clinical Development Plan budget (but expressly excluding any immaterial modifications to such Clinical Development Plan budget), (iv) any IND filing pertaining to a Clinical Development Candidate, (v) any NDA/BLA filing pertaining to a Clinical Development Candidate; (vi) clinical trial design; or (vii) termination, or advancement to the next stage, of development of a Clinical Development Candidate; instead, such designations, plans, budgets filings, designs, termination and advancements set forth in (i-vii) shall be approved or modified only by consensus of the Parties and shall not be subject to the dispute resolution process described in ARTICLE XVII .
ARTICLE IV.
PRE-CLINICAL DEVELOPMENT
     4.1 Existing Pre–Clinical Development Programs . Athersys shall conduct, and shall be responsible for, the Pre-Clinical Development Programs in existence as of the Effective Date within the Cardiovascular Indications. With respect to each such existing Pre-Clinical Development Program, Athersys may modify its activities and undertake new activities in connection with such Pre-Clinical Development Program, but only after consultation with and approval of the JSC; provided that Athersys shall: (a) use its Commercially Reasonable Efforts to make available the resources specified in the Pre-Clinical Development Plan (or otherwise by mutual agreement of the Parties), (b) use its Commercially Reasonable Efforts to undertake its obligations and responsibilities in the Pre-Clinical Development Plan (or otherwise by mutual agreement of the Parties), (c) perform its activities and discharge the responsibilities that will facilitate the ability of the Parties to obtain Regulatory Approval to manufacture Cells to be used in Clinical Development Candidates and in Cell Therapy Products in the United States and other countries of the Territory, as determined by the JSC, and (d) manufacture the Cells in conformance with the quantity and quality reasonably required for the conduct of the Pre-

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Clinical Development Programs. With respect to each such existing Pre-Clinical Development Program, and subject to the foregoing sentence, Athersys shall consider in good faith any recommendations and requests made by Angiotech and its representatives on the JSC concerning the existing Pre-Clinical Development Program. Athersys may subcontract any of its obligations under this Section 4.1 , provided that it furnishes the JSC and Angiotech with advance written notice thereof specifying the work to be subcontracted, and with an opportunity to object to such subcontract for sound business reasons. Any dispute regarding Athersys’ use of a subcontractor pursuant to the foregoing sentence shall be referred to the JSC, and any corresponding JSC Dispute shall be resolved in accordance with Section 3.7 . As of the Effective Date, Athersys has executed agreements related to the existing Pre-Clinical Development Programs with the Third Parties listed on Schedule 4.1 of this Strategic Alliance Agreement (each such agreement, an “ Existing Third Party Agreement ”).
     4.2 Costs for Existing Pre-Clinical Development Programs . Athersys shall be fully and solely responsible for all costs and expenses relating to the activities conducted by or for Athersys in connection with the existing Pre-Clinical Development Programs.
     4.3 New Pre-Clinical Development Programs . During the Term, the Parties expect to undertake additional Pre-Clinical Development Programs (“ New Pre-Clinical Development Programs ”), and the Parties acknowledge that Angiotech may assume certain responsibilities, and may conduct certain activities, in connection with such New Pre-Clinical Development Programs. Irrespective of Angiotech’s responsibilities or activities in connection with any New Pre-Clinical Development Program, the JSC shall assume oversight and coordination of the Parties’ responsibilities and activities (if any), and shall recommend appropriate compensation to Angiotech with respect to its activities under each New Pre-Clinical Development Program and any Intellectual Property and materials (including without limitation biomaterials and medical devices) contributed by Angiotech to such New Pre-Clinical Development Program.
ARTICLE V.
CLINICAL DEVELOPMENT
     5.1 Proposed Clinical Plans; Clinical Development Plans . Angiotech and/or Athersys may prepare and submit a Proposed Clinical Plan to the JSC in accordance with Section 3.5(c) for any Clinical Development Candidate. Each Proposed Clinical Plan shall address the specific roles and responsibilities of each Party consistent with this Strategic Alliance Agreement, shall address and/or incorporate any JSC recommendations, and shall propose appropriate Clinical Development Programs for each stage of development set out in such Proposed Clinical Plan. The responsibilities of the Parties set forth in this ARTICLE V will apply only to those Clinical Development Plans approved by the Parties in accordance with Section 3.5 and 3.7 .
     5.2 Athersys Responsibilities . During each Clinical Development Program, Athersys, after consulting with the JSC, shall direct all Clinical Development Program activities through the completion of Phase I Studies. In this regard, Athersys’ President shall have ultimate, final decision-making authority for JSC Disputes pertaining to Phase

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I Study completion or earlier matters and issues, as described in Section 3.7(b) . During the Term, Athersys shall: (a) use its Commercially Reasonable Efforts to make available the resources specified as the responsibility of Athersys in the Clinical Development Plan (or otherwise by mutual agreement of the Parties), (b) use its Commercially Reasonable Efforts to undertake the obligations and responsibilities assigned to Athersys in the Clinical Development Plan (or otherwise by mutual agreement of the Parties), (c) perform the activities and discharge the responsibilities that are required to obtain Regulatory Approval to manufacture Cells that are used in Clinical Development Candidates and in Cell Therapy Products in the United States and other countries of the Territory, as determined by the JSC, and (d) manufacture the Cells in conformance with the quantity and quality reasonably required for the conduct of the Clinical Development Programs, and supply such Cells to Angiotech (or its designee) or to one or more Third Parties engaged by a Party to perform clinical studies of Clinical Development Candidates and/or Cell Therapy Products in accordance with this Strategic Alliance Agreement.
     5.3 Angiotech Responsibilities . During each Clinical Development Program, Angiotech shall direct all Clinical Development Program activities after the completion of Phase I Studies. In this regard, Angiotech’s CFO shall have ultimate, final decision-making authority for JSC Disputes pertaining to post-Phase I Study (or later) matters and issues, as described in Section 3.7(b) . During the Term, Angiotech shall: (a) use its Commercially Reasonable Efforts to make available the resources specified as the responsibility of Angiotech in the Clinical Development Plan (or otherwise by mutual agreement of the Parties), (b) use its Commercially Reasonable Efforts to undertake the obligations and responsibilities assigned to Angiotech in the Clinical Development Plan (or otherwise by mutual agreement of the Parties), and (c) perform the activities and discharge the responsibilities that are required to obtain Regulatory Approval to market and sell Cell Therapy Products in the United States and the other countries of the Territory, as determined by the JSC (to the extent such Regulatory Approval is not described as an obligation of Athersys pursuant to Section 5.2) .
     5.4 Subcontracting . Either Party may subcontract any of its obligations under a Clinical Development Plan, provided that it furnishes the JSC and the other Party with advance written notice thereof specifying the work to be subcontracted, and with an opportunity to object to such subcontract for sound business reasons. Any dispute regarding a Party’s use of a subcontractor pursuant to the foregoing sentence shall be referred to the JSC, and any corresponding JSC Dispute shall be resolved in accordance with Section 3.7 . In any subcontract agreement with a Third Party, the subcontracting Party shall ensure that (a) such Third Party subcontractor is bound by obligations of confidentiality no less stringent than those imposed on the Parties under this Strategic Alliance Agreement, (b) all inventions, copyrightable subject matter, discoveries or materials created, identified, conceived, reduced to practice or developed by the Third Party subcontractor in the scope of its, his or her engagement with a Party in connection with the subcontract agreement, and in furtherance of a Clinical Development Program or this Strategic Alliance Agreement, are appropriately documented and disclosed to the subcontracting Party, and (c) all such inventions, copyrightable subject matter, discoveries or materials directly related to the Cells (and not related to Angiotech

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Intellectual Property) shall be owned solely by Athersys (or jointly with Angiotech in the case of Joint IP), or in the case of subcontractors that are not-for-profit institutions, (i) either owned solely by Athersys (or jointly with Angiotech in the case of Joint IP), (ii) jointly owned by Athersys and the institution (and jointly with Angiotech in the case of Joint IP), or (iii) owned solely by the institution, and in the case of (ii) or (iii), the institution’s right, title and interest in such inventions, copyrightable subject matter, discoveries or materials related to the Cells shall be either exclusively licensed to Athersys (and Angiotech in the case of Joint IP) or the institution shall have granted to Athersys (and Angiotech in the case of Joint IP) the exclusive option to obtain an exclusive license thereto; provided, however, that the foregoing shall not require Athersys to modify the terms or conditions of any of the Existing Third Party Agreements which the Parties recognize may not contain the terms described in this sentence. Any subcontract agreement under this Section 5.4 shall (w) grant to the subcontracting Party a right to inspect the subcontractor’s relevant records and facilities; (x) require the subcontractor to be in good standing with all applicable regulatory authorities; (y) require the subcontractor to comply (as appropriate) with current good laboratory practices, current good manufacturing laboratory practices and applicable laws, regulations, rules and guidelines; and (z) require that the subcontractor have no outstanding violations or citations that would or may impair the services or deliverables to be provided to the subcontracting Party by such subcontractor; provided, however, that the foregoing shall not require Athersys to modify the terms or conditions of any of the Existing Third Party Agreements which the Parties recognize may not contain the terms described in this sentence.
ARTICLE VI.
OPT-OUT RIGHTS
     6.1 Opt-Out Rights . Either Party may elect to discontinue (a “ Discontinuing Party ”) joint research on, development and commercialization of a Clinical Development Candidate or a Cell Therapy Product upon six (6) months prior written notice (“ Opt-Out Notice ”) to the other Party; provided that the effective date of either Party’s election to opt out shall not be prior to the completion of the first Phase I Study conducted by the Parties hereunder, and provided further that neither Party shall be relieved of its obligations to pay for its share of Clinical Development Costs for a clinical study that is ongoing at the effective date of a Party’s election to opt-out with respect to the applicable Clinical Development Candidate. Notwithstanding the foregoing, if a Party is unable to pay any or all of its portion of Clinical Development Costs when due, such Party shall be deemed to have delivered an Opt-Out Notice on the date such payment was due. Upon delivery of the Opt-Out Notice, the subject Clinical Development Candidate or Cell Therapy Product shall be deemed a “ Rejected Product .” The Discontinuing Party shall be required to continue co-funding all of its activities under this Strategic Alliance Agreement during such six (6) month notice period (subject to the first sentence of this Section 6.1 ). Upon receipt of an Opt-Out Notice for a Clinical Development Candidate or Cell Therapy Product, the non-discontinuing Party shall have the option (the “ Sole Development Option ”), exercisable by providing written notice to the Discontinuing Party by the end of such six (6) month period, to continue the development and commercialization of such Rejected Product in the Therapeutic Field (and in such event,

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such Rejected Product shall thereafter be referred to as a “ Sole Development Product ”), at its own expense. Upon the exercise of such option, the non-discontinuing Party shall be deemed the “ Developing Party ,” and the Developing Party shall be released from its exclusivity obligations set forth in Section 2.5 above with respect only to such Sole Development Product. The Parties shall have the following rights and obligations upon exercise of the Sole Development Option:
          (a) if Angiotech is the Developing Party, such Sole Development Product shall continue to be considered a Clinical Development Candidate or Cell Therapy Product (as applicable) for purposes of the Transaction Agreements; provided, however that (i) the provisions of Section 2.4 and ARTICLES III, V, VII (other than Sections 7.5-7.10 ) and IX (other than Sections 9.7 and 9.8 ) shall no longer apply to such Sole Development Product; (ii) a Supply Disruption shall be deemed to have occurred pursuant to Section 9.7 (and Section 9.7 shall apply in its entirety with respect to such Supply Disruption), and Angiotech shall have the right to engage a back-up supplier pursuant to Section 9.8 (and Section 9.8 shall apply in its entirety with respect to engagement of such back-up supplier); and further provided that if neither a Third-Party manufacturer nor a Third-Party back-up manufacturer of the Cells, Clinical Development Candidates and/or Cell Therapy Products is reasonably available at the effective date of Athersys’ opt-out, Athersys shall manufacture and supply Cells, Clinical Development Candidates and/or Cell Therapy Products to Angiotech (as the supply chain for each exists at such time) for the Territory for a period of up to twenty-four (24) months after the effective date of such opt-out (during which Section 9.6 shall apply in its entirety), wherein such Cells, Clinical Development Candidates and/or Cell Therapy Products supply shall be provided by Athersys on commercially reasonable terms and conditions to be discussed and agreed upon by Angiotech and Athersys at such time (which terms shall include a reasonable price, and shall set forth any subsequent period (after such 24-month period) during which Athersys is willing (in its sole discretion) to supply Cells, Clinical Development Candidates and/or Cell Therapy Products to Angiotech); and (iii) Angiotech shall be responsible for all activities described in ARTICLE X with respect to such Sole Development Product;
          (b) if Athersys is the Developing Party, such Sole Development Product shall no longer be considered a Clinical Development Candidate or Cell Therapy Product for purposes of the License Agreement and Sublicense Agreement, but shall continue to be considered a Clinical Development Candidate or Cell Therapy Product for purposes of this Strategic Alliance Agreement; provided, however, that (i) the provisions of ARTICLES II, III, V, VII (other than Sections 7.5-7.10 ), VIII and IX shall no longer apply to such Sole Development Product, and (ii) Athersys shall be responsible for all activities described in ARTICLE X with respect to such Sole Development Product;
          (c) any Regulatory Approvals filed, and clinical data owned or licensed, and any product trademarks owned or licensed by the Discontinuing Party or its Affiliates relating to the applicable Sole Development Product shall be (i) assigned or (ii) exclusively licensed to the Developing Party or any Third Party or Affiliate designated by such Party, until such time as the Developing Party or its designee is qualified to hold such Regulatory Approvals or product trademarks under applicable laws and regulations,

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and then shall be transferred or assigned to the Developing Party or its designee, as appropriate, as soon as practicable thereafter; provided, however, that in any country where such transfer or assignment is not possible, the Discontinuing Party shall use Commercially Reasonable Efforts to ensure that the Developing Party has the benefit of such Regulatory Approvals and product trademarks, and to this end consents to any regulatory authority cross-referencing to the data and information on file with any regulatory authority as may be necessary; and
          (d) the Developing Party shall pay a royalty on Sole Development Products to the Discontinuing Party and shall share Sole Development Income with the Discontinuing Party in accordance with Sections 7.5 through 7.10 below.
     6.2 Development Updates . At least every six (6) months during the Term, the Developing Party shall provide the Discontinuing Party with a written update regarding the status of the Developing Party’s efforts to develop and commercialize Sole Development Products. All information provided by the Developing Party to the Discontinuing Party pursuant to this Section 6.2 shall be considered Confidential Information (as defined in Section 13.1 ) of the Developing Party.
     6.3 Failure to Exercise Sole Development Option . In the event the non-discontinuing Party does not exercise the Sole Development Option within the six (6) month time period set forth in Section 6.1 above, and if agreed upon in writing by the Parties, the JSC may seek, or designate one of the Parties to seek, qualified Third Party(ies) to develop the applicable Clinical Development Candidate or Cell Therapy Product. Both Parties shall have the right to approve any such qualified Third Party(ies). The Parties shall share equally all (a) income received from such Third Party(ies) and (b) Clinical Development Costs, Commercialization Costs and Manufacturing Costs (as applicable) associated with the wind-down of activities related to the applicable Clinical Development Candidate or Cell Therapy Product.
     6.4 Diligence Requirement . The Developing Party’s right to exclusively develop and commercialize a Sole Development Product is expressly conditioned on such Party’s continuing effort to use Commercially Reasonable Efforts to develop such Sole Development Product (the “ Diligence Requirement ”). The Diligence Requirement shall be conditioned upon the continuing absence of any adverse condition or event that warrants a delay in the development, clinical testing or commercialization of a particular Sole Development Product; provided that a delay shall only be warranted for as long as the condition or event preventing the performance continues and, upon cessation of such condition or event, the Developing Party shall promptly resume performance hereunder. Such conditions and events shall include, without limitation, the inability to produce preclinical or clinical supplies, events that would cause delays in clinical studies (e.g., negative toxicological or pharmacological test results or an adverse clinical event), challenges within the regulatory process, or intellectual property impediments to developing a Sole Development Product that the Developing Party could not reasonably have foreseen. If the Discontinuing Party reasonably believes that the Developing Party has failed to satisfy the Diligence Requirement with respect to a Sole Development Product, it shall so notify the Developing Party in writing and the Developing Party shall

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then have ninety (90) days to demonstrate to the Discontinuing Party’s reasonable satisfaction that the Diligence Requirement for such Sole Development Product has been satisfied. Any dispute regarding the satisfaction of the Diligence Requirement shall be resolved by the Parties under the terms of ARTICLE XVII below. If it is determined that the Diligence Requirement has not been satisfied with respect to a Sole Development Product, then the Parties shall meet and discuss in good faith a mutually agreeable process for development and commercialization of the Sole Development Product.
ARTICLE VII.
COSTS, PAYMENTS AND FINANCIAL RECORD KEEPING
     7.1 Clinical Development Costs . All Clinical Development Costs incurred in accordance with the corresponding Clinical Development Plan budget shall be borne by Athersys and Angiotech in the following proportions:
          (a) Clinical Development Costs associated with the execution of any Phase I Study or Phase II Study pursuant to any Clinical Development Plan shall be shared [*] percent ([*%]) by Athersys and [*] percent ([*%]) by Angiotech;
          (b) Clinical Development Costs associated with the execution of the first Phase III Study conducted pursuant to this Strategic Alliance Agreement shall be shared [*] percent ([*%]) by Athersys and [*] percent ([*%]) by Angiotech; and
          (c) Clinical Development Costs associated with the execution of any Phase III Study that is subsequent to the first Phase III Study trial described in clause (b) above shall be shared [*] percent ([*%]) by Athersys and [*] percent ([*%]) by Angiotech.
     7.2 Development Costs Quarterly Reconciliation .
          (a) Within thirty (30) days following the end of each calendar quarter during the Term, Athersys shall submit to Angiotech a written report setting forth in reasonable detail, and separately with respect to each Clinical Development Plan and each of the categories of Clinical Development Costs set forth in Section 7.1(a-c) , all associated Clinical Development Costs incurred by Athersys in the immediately preceding calendar quarter.
          (b) Within thirty (30) days following the end of each calendar quarter during the Term, Angiotech shall submit to Athersys a written report setting forth in reasonable detail, and separately with respect to each Clinical Development Plan and each of the categories of Clinical Development Costs set forth in Section 7.1(a-c) , all associated Clinical Development Costs incurred by Angiotech in the immediately preceding calendar quarter.
 
*   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.

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          (c) Within forty-five (45) days following the end of each calendar quarter, Angiotech shall submit to Athersys a written report (i) reconciling the Clinical Development Costs set forth in the reports required under Section 7.2(a) and Section 7.2(b) , and (ii) setting forth the calculation of any net amount owed by Athersys to Angiotech, or by Angiotech to Athersys (as the case may be) in order to ensure the sharing of such Clinical Development Costs in accordance with Section 7.1 . The net amount payable in accordance with clause (ii) shall be paid by Angiotech or Athersys, as the case may be, within ten (10) business days after Athersys’ receipt of such written report, without regard to any dispute as to the amounts incurred by a Party or owed to a Party under this Section 7.2(c) in accordance with the applicable budget. In the event of such dispute under this Section 7.2(c) , the disputing Party shall provide written notice to the other Party within such ten (10)-business day period after receipt of the written report in question, specifying in detail such dispute. The Chief Financial Officers (“ CFOs ”) of the Parties shall promptly thereafter meet and shall negotiate in good faith a final resolution to such dispute.
     7.3 Milestone Payments . Angiotech shall provide written notice to Athersys within thirty (30) days of achievement of any milestone set forth on Schedule 7.3 ; provided that such notice with respect to items 4 and 5 on Schedule 7.3 shall be given within thirty (30) days following the calendar quarter in which such milestone occurred. Angiotech shall pay to Athersys the corresponding amount set forth on Schedule 7.3 within ten (10) business days following receipt of such written notice by Athersys. An additional milestone payment is described in Section 2.4 .
     7.4 Profit Sharing . Angiotech and Athersys shall share Profits from the sale of Cell Therapy Products in accordance with Schedule 7.4 .
     7.5 Royalties on Sole Development Products .
          (a) Royalty Amounts . During the Royalty Term for each Sole Development Product commercialized by the Developing Party under ARTICLE VI , the Developing Party will pay the Discontinuing Party a royalty on Net Sales of such Sole Development Product (except to the extent otherwise provided under Section 7.5(b) ) at the following rates:
          (i) if, as of the date the Opt-Out Notice is delivered, the first patient has not yet been enrolled in a Phase II Study of such Sole Development Product, such royalty shall be [*] percent ([*%]) with respect to Net Sales of Sole Development Products for which Angiotech is the Developing Party, and no royalty with respect to Net Sales of Sole Development Products for which Athersys is the Developing Party;
          (ii) if, as of the date the Opt-Out Notice is delivered, the first patient has been enrolled in a Phase II Study of such Sole Development Product
 
*   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.

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but the first patient has not yet been enrolled in a Phase III Study of such Sole Development Product, such royalty shall be [*] percent ([*%]) with respect to Net Sales of Sole Development Products for which Angiotech is the Developing Party, and [*] percent ([*%]) with respect to Net Sales of Sole Development Products for which Athersys is the Developing Party; and
          (iii) if, as of the date the Opt-Out Notice is delivered, the first patient has been enrolled in a Phase III Study for such Sole Development Product and thereafter, such royalty shall be [*] percent ([*%]) with respect to Net Sales of Sole Development Products regardless of which Party is the Developing Party;
provided, however, that if it is unclear whether a clinical trial is in a particular phase, the actual phase of such clinical trial shall be determined by reference to the next following clinical trial for such Sole Development Product (e.g. , a Phase I/II clinical trial would be considered a Phase II Study if, following completion of such trial, the Developing Party commences a Phase III Study of such Sole Development Product). If (xi) Angiotech is the Discontinuing Party and has elected to decline payment of the Phase I Milestone Fee pursuant to Section 2.4(b) , and (xii) Athersys has elected to receive a greater share of Profits pursuant to Section 2.4(b)(ii) , then the royalty rate payable to Angiotech pursuant to clause (ii) above shall be [*] percent [*%] and the royalty rate payable to Angiotech pursuant to clause (iii) above shall be [*] percent [*%]. The royalties payable pursuant to this Section 7.5(a) shall not be creditable against any other payment by the Developing Party under this ARTICLE VII .
          (b) Licensee and Sublicensee Royalties on Sole Development Products . Any sales of Sole Development Products by a licensee or sublicensee of a Developing Party or its Affiliate shall be subject to royalties under Section 7.5(a) to the same extent as if the sale had been made by the Developing Party; provided that the royalty payable to the Discontinuing Party pursuant to (i) Section 7.5(a)(i) shall not exceed twenty-five percent (25%) of the royalty revenue received by the Developing Party from such licensee or sublicensee; (ii) Section 7.5(a)(ii) shall not exceed thirty percent (30%) of the royalty revenue received by the Developing Party from such licensee or sublicensee; and (iii) Section 7.5(a)(iii) shall not exceed thirty-five percent (35%) of the royalty revenue received by the Developing Party from such licensee or sublicensee. The royalties payable pursuant to this Section 7.3(b) shall not be creditable against any other payment by the Developing Party under this ARTICLE VII .
          (c) Third Party Payments on Sole Development Products . The Developing Party shall pay all Third Party Payments due as a result of any Sole Development Product sold by the Developing Party. For the avoidance of doubt, such Third Party Payments shall be in addition to any royalties that may be due pursuant to Sections 7.5(a) and 7.5(b) .
 
*   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.

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          (d) Reduction due to Royalty Stacking . In the event the Developing Party obtains or possesses a license to one or more Patent Rights of a Third Party in order to make, have made, use, lease, offer to sell, sell, export or import a Sole Development Product and is required to pay Third Party Payments with respect to the Sole Development Product in connection with such license(s), then the Developing Party may deduct, from royalties due the other Party pursuant to this Section 7.5(d) , fifty percent (50%) of the Third Party Payments that are actually paid and are attributable to such Sole Development Product, but in no event may the royalties due to the other Party pursuant to this Section 7.5(d) be reduced by more than fifty percent (50%) as a result of this provision. Any amounts for which the Developing Party is entitled to receive credit, which are not deducted as a result of the fifty percent (50%) cap, shall be carried forward and credited against future royalties due to such Party.
     7.6 Calculation and Payment of Royalties .
          (a) Timing of Royalty Payments . A Party paying a royalty required under Section 7.5 (the “ Paying Party ”) shall pay all such royalties to the other Party (the “ Royalty Recipient ”) within forty-five (45) days after the last day of the calendar quarter in which such royalties accrue; provided that the Paying Party shall be entitled to offset any such royalty payment against amounts owed to the Paying Party by the Royalty Recipient; and provided further that if: (i) Angiotech is the Royalty Recipient and has elected to decline payment of the Phase I Milestone Fee pursuant to Section 2.4(b) ; (ii) Athersys has elected to receive the Replacement Fee pursuant to Section 2.4(b)(i) ; and (iii) the Replacement Fee has not yet been paid, then before paying any royalties to Angiotech under Section 7.5 or Sole Development Income to Angiotech under Section 7.7 , Athersys shall be entitled to withhold from such royalties and Sole Development Income the Replacement Fee (plus interest) on the unpaid amount of the Replacement Fee, at the rate set forth in Section 7.10 , from the date of Successful Completion of the first Phase III Study for a Clinical Development Candidate in the U.S. in any Cardiovascular Indication(s), until the unpaid amounts of the Replacement Fee (plus interest) are recovered by Athersys.
          (b) Payment Method . The Paying Party shall pay royalties hereunder in U.S. dollars by wire transfer in immediately available funds to an account designated by the Royalty Recipient.
          (c) Accrual of Royalties . Sales between a Party and its Affiliates or their respective direct or indirect licensees, sublicensees or subcontractors , or between such parties, shall not be subject to royalties, but in such cases royalties shall be calculated upon the quarterly Net Sales of Sole Development Products by such parties to an independent Third Party. Only one (1) royalty payment shall accrue with respect to the same unit of a Sole Development Product. No royalties shall accrue on disposition of reasonable quantities of Sole Development Products for no charge as samples, pursuant to an indigent patient assistance program, or donations to Third Parties. Royalties shall accrue on Sole Development Products distributed for free other than as described in the preceding sentence based on average Net Sales for such Sole Development Product during the corresponding period, excluding such free Sole Development Product.

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          (d) Taxes . Any withholding of taxes levied by tax authorities on the payments hereunder shall be deducted by the Paying Party from the sums otherwise payable by the Paying Party hereunder for payment to the proper tax authorities on behalf of the Royalty Recipient and shall be paid by the Paying Party to such proper tax authorities. The Parties agree to cooperate with each other in the event the Royalty Recipient claims exemption from such withholding or seeks deductions under any double taxation or other similar treaty or agreement from time to time in force, such cooperation to consist of providing receipts of payment of such withheld tax or other documents reasonably available to the Parties.
          (e) Royalty Reports . Within forty-five (45) days after the last day of each calendar quarter in which royalties are due, the Paying Party shall deliver to the Royalty Recipient a report setting forth in reasonable detail the calculation of Net Sales and of royalties payable to the Royalty Recipient for such calendar quarter identifying, by country, the Sole Development Products sold by the Paying Party and its Affiliates, licensees, sublicensees and distributors. Such reports shall be considered Confidential Information of the Paying Party subject to the terms of ARTICLE XII hereof.
     7.7 Sharing of Sole Development Income . The Developing Party shall pay to the Discontinuing Party the following percentage share of all Sole Development Income received by the Developing Party that is attributable to the rights owned by or granted to the Developing Party hereunder: (i) if the royalty rate specified in Section 7.5(a)(i) would be payable on Net Sales of such Sole Development Product, [*] percent ([*%]) of all such Sole Development Income; (ii) if the royalty rate specified in Section 7.5(a)(ii) would be payable on Net Sales of such Sole Development Product, [*] percent ([*%]) of all such Sole Development Income; or (iii) if the royalty rate specified in Section 7.5(a)(iii) would be payable on Net Sales of such Sole Development Product, [*] percent ([*%]) of all such Sole Development Income. All such amounts owed by the Developing Party in accordance with this Section 7.7 shall be due and payable to the Discontinuing Party within thirty (30) days after receipt of such Sole Development Income by the Developing Party, subject to any right of offset pursuant to Section 7.6(a) . In the case of receipt by the Developing Party of any non-cash consideration from a licensee or sublicensee in consideration for the granting of a license or sublicense to a Sole Development Product that is attributable to the rights owned by or granted to the Developing Party hereunder (but excluding, for the avoidance of doubt, consideration received by the Developing Party that is attributable to the items excluded from the definition of Sole Development Income, and further excluding standard contractual benefits, such as indemnities, warranties, diligence and confidentiality obligations and the like), Sole Development Income shall be calculated based on the value of such non-cash consideration received by the Developing Party (and shall be combined with the value of any cash consideration received for purposes of determining the applicable percentage share above).
 
*   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.

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     7.8 Financial Record Keeping . During the Term and for seven (7) years thereafter, each Party shall keep complete and accurate records of its Clinical Development Costs, Manufacturing Costs, Commercialization Costs, Net Sales and other business and financial data and information underlying the reconciliations, cost reports, calculation of costs and Profits, and payments that are the subject of the Transaction Agreements.
     7.9 Audits . Upon at least forty-five (45) days prior written notice to the other Party, a Party will have the right, once annually at its own expense, to have an independent, certified public accounting firm, selected by such Party and reasonably acceptable to the other Party, inspect relevant books and records of the other Party in the location(s) where such books and records are maintained by the other Party. The written notice from the auditing Party shall name the accounting firm and shall describe the scope of the audit to be conducted and the records and statements sought to be verified. Such audit shall be conducted during regular business hours and under obligations of strict confidence, and shall be conducted for the sole purpose of verifying the basis and accuracy of any report(s) submitted by the audited Party and the payment of costs and Profit-sharing amounts hereunder, as applicable, all to ascertain that all costs charged and payments made hereunder are correct in accordance with the Transaction Agreements, in each case with respect to relevant books and records corresponding to the prior twenty-four (24) month period. If such audit of such books and records concludes that the audited Party has failed to accurately report any cost, Profit or payment information, then in the event of any underpayment, the audited Party shall pay to the auditing Party any undisputed additional amounts due within thirty (30) days after the date the audited Party receives such accounting firm’s written report so concluding, together with interest calculated using the prime rate (as published in The Wall Street Journal on the date when payment was due) plus three percent (3%) for the time from which the amounts should have been paid until the time of actual payment. If such undisputed underpayment exceeds seven and one-half percent (7.5%) of the payments that were to be paid to the auditing Party during the period audited, the audited Party also shall reimburse the auditing Party for the amounts (reasonable fees and expenses) paid to the accounting firm in conducting the audit. If such accounting firm concludes that the audited Party overpaid the auditing Party, the auditing Party shall refund such undisputed overpayments to the audited Party within thirty (30) days after the date the auditing Party receives such accounting firm’s report so concluding. If the audited Party disputes the results of the audit, such dispute shall be resolved by the Parties’ CFOs, and any purported underpayment shall be withheld until such dispute is finally resolved.
     7.10 Late Payments . Interest will be assessed on any overdue payments at a rate equal to the prime rate (as published in The Wall Street Journal on the date when payment was due) plus three percent (3%) for the time from which the amounts should have been paid until the time of actual payment, or at such lower maximum rate permitted by law. The payment of such interest will not prevent the Party to which such payment is due from exercising any other rights it may have as a consequence of the lateness of any payment.

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ARTICLE VIII.
COMMERCIALIZATION
     8.1 Commercialization of Cell Therapy Products . During the Term, Angiotech shall have the sole authority and the exclusive right to commercialize Cell Therapy Products (itself or through one or more Third Parties selected by Angiotech), and shall have sole authority and responsibility in all matters relating to the commercialization of Cell Therapy Products including, without limitation, the following activities (and other associated activities) with respect to Cell Therapy Products: (a) executing product promotion, marketing and sales activities; (b) booking sales; (c) handling all aspects of order intake and processing, invoicing and collection, distribution, warehousing, inventory and receivables, and collection of data of sales to hospitals and other end users (i.e. , market research data); (d) handling all privacy and reimbursement-related activities; (e) handling the logistics of all recalls; (f) handling all returns; (g) handling all other customer service related functions; and (h) filing Cell Therapy Product promotional materials with the relevant regulatory authority as permitted or required under applicable law. Angiotech shall use Commercially Reasonable Efforts to commercialize at least one Cell Therapy Product (at its discretion) for a myocardial infarction indication and a peripheral vascular disease indication in countries of the Territory where Regulatory Approval has been obtained for such Cell Therapy Product(s); provided that Angiotech shall consider in good faith any recommendations and requests by Athersys’ representatives on the JSC regarding commercialization of Cell Therapy Products.
ARTICLE IX.
MANUFACTURE AND SUPPLY OF CLINICAL DEVELOPMENT CANDIDATES AND CELL THERAPY PRODUCTS
     9.1 Athersys’ Manufacturing Obligation . Athersys shall be responsible for manufacturing and supplying Clinical Development Candidates and Cell Therapy Products for development and commercialization by the Parties in accordance with the Transaction Agreements. In accordance with this ARTICLE IX , Athersys shall supply (or shall engage a Third-Party manufacturer to supply) sufficient quantities of the Clinical Development Candidates and Cell Therapy Products in final packaged form to the extent reasonably required by Athersys and Angiotech to implement the Clinical Development Programs and by Angiotech to commercialize the Cell Therapy Products in the Territory. The specific terms and procedures by and upon which Athersys shall supply the Cell Therapy Products to Angiotech hereunder shall be reasonably mutually determined by the Parties in good faith, and shall be set forth in a separate manufacturing and supply agreement not less than twelve (12) months prior to the anticipated First Commercial Sale of a Cell Therapy Product in the Territory, such terms and procedures to be commercially reasonable and consistent with the provisions of the Transaction Agreements. The Parties also may agree to negotiate in good faith a separate quality agreement that sets forth the Parties’ obligations with respect to current good manufacturing practices, production, release and/or distribution of Clinical Development Candidates and Cell Therapy Products in the Territory, the first draft of which shall be prepared collaboratively by the quality departments of each Party. Unless otherwise provided herein, Athersys shall have the exclusive right and obligation to manufacture

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(itself and/or through Third Parties selected by Athersys) and supply Clinical Development Candidates and Cell Therapy Products for development and commercialization hereunder.
     9.2 Manufacturing Costs . Athersys shall keep, and shall require all Third-Party manufacturers of the Clinical Development Candidates and/or Cell Therapy Products to keep, accurate records in sufficient detail concerning the Manufacturing Costs. Angiotech shall be entitled to engage an independent public accounting firm to audit the Manufacturing Costs as provided in, and in accordance with, Section 7.6 . For this purpose, Athersys itself shall keep, and to the extent that Athersys has obtained records or documents from its Third-Party manufacturers shall keep, such account books and related records or documents for a period of at least seven (7) years after the end of the fiscal year to which the Manufacturing Costs relate.
     9.3 Manufacturing Compliance . All Clinical Development Candidates and Cell Therapy Products supplied hereunder shall be manufactured by or on behalf of Athersys in compliance with current good manufacturing practices, other applicable requirements of relevant regulatory authorities, and other applicable laws and regulations, including applicable laws and regulations relating to the transportation, storage, use, handling and disposal of waste materials and hazardous materials used to manufacture Clinical Development Candidates and/or Cell Therapy Products. Athersys, at its expense, shall obtain and maintain, and/or shall require that its Third-Party manufacturers obtain and maintain, for so long as Athersys is supplying Clinical Development Candidates and/or Cell Therapy Products hereunder, all facility licenses and government permits necessary to manufacture and supply the Clinical Development Candidates and Cell Therapy Products.
     9.4 Product Conformity . Angiotech, in consultation with the JSC, shall determine the Clinical Development Product and Cell Therapy Product specifications and testing methods (“ Product Specifications ”) for the Clinical Development Products and Cell Therapy Products to be supplied by Athersys hereunder, and such specifications and testing methods shall be consistent with industry standards and applicable regulatory requirements. When Regulatory Approval is obtained in any country of the Territory, the Product Specifications shall be those specifications and testing methods which have been approved by the regulatory authority in that country. The Product Specifications may be amended from time to time by written mutual agreement of the Parties. Athersys shall, and shall ensure that any Third-Party manufacturer shall, manufacture the Clinical Development Products and Cell Therapy Products in conformance with the Product Specifications and in compliance with the requirements set forth in Section 9.3 .
     9.5 Ordering; Forecasting; Acceptance and Rejection . The terms and procedures set forth in the manufacturing and supply agreement described in Section 9.1 may include provisions related to Cell Therapy Product orders and forecasts, Cell Therapy Product acceptance, and, subject to the provisions of this Section 9.5 , Cell Therapy Product rejection and remedies for defective Cell Therapy Product. Any dispute arising between Athersys and Angiotech concerning a shipment of Cell Therapy Product that the Parties do not resolve within thirty (30) days of Angiotech providing a notice of shipment of

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defective Cell Therapy Product shall be submitted to a reputable independent test organization located in the Territory, to be mutually agreed upon by the Parties. Such independent test organization shall determine whether the Cell Therapy Product in a given shipment was defective, and the decision of said independent test organization shall be final and binding on Athersys and Angiotech. If the defective Cell Therapy Product was supplied by a Third-Party manufacturer or by Athersys, then any expenses actually incurred by Athersys in connection with such defective Cell Therapy Product shall be borne solely by Athersys, and shall not be included in Manufacturing Costs hereunder.
     9.6 Inspection . With respect to the manufacture of the Clinical Development Candidates and Cell Therapy Products, Angiotech may, at its expense, upon reasonable notice and during normal business hours, conduct appropriate review and inspection of the Clinical Development Candidates and Cell Therapy Products manufacturing facilities, procedures and related documentation to verify Athersys’ and/or its Third-Party manufacturer’s (as applicable) compliance with current good manufacturing practices, other applicable requirements of relevant regulatory authorities, and other applicable laws and regulations, and conformity of Clinical Development Candidates and Cell Therapy Products with the applicable Product Specifications.
     9.7 Supply Disruption . In the event that Athersys is materially unable, at any time, to fulfill its obligation to supply Clinical Development Candidates or Cell Therapy Products in a timely manner, as required hereunder, for any reason (a “ Supply Disruption ”), Athersys shall promptly notify Angiotech of such Supply Disruption and the estimated extent of such Supply Disruption (including the anticipated delay time and the quantity of Clinical Development Candidate or Cell Therapy Product involved). Athersys shall use its Commercially Reasonable Efforts to cure the Supply Disruption as soon as practicable. In the event that such Supply Disruption is expected to continue for at least three (3) months from the date of such notification, Angiotech shall have the right to have the Clinical Development Candidate or Cell Therapy Product (as applicable) manufactured by itself or by a Third-Party supplier/manufacturer, and Athersys shall cooperate and use its Commercially Reasonable Efforts to transfer to Angiotech (or Angiotech’s designee) all Athersys Intellectual Property (including, without limitation, Athersys Stem Cell Technology and production and manufacturing technology) that is necessary or useful to enable Angiotech to establish (or be) a source for supply of the Clinical Development Candidate or Cell Therapy Product (as applicable). In addition, Athersys shall teach and instruct personnel of Angiotech (or Angiotech’s designee) how to obtain appropriate raw materials and how to reproduce the production and manufacturing processes and techniques used by Athersys for production and manufacturing of the Clinical Development Candidate or Cell Therapy Product (as applicable).
     9.8 Back-Up Supplier . If Angiotech, through exercise of reasonable business judgment, determines that it is reasonable and prudent to obtain a back-up supplier to prevent a Supply Disruption, then Athersys shall use its Commercially Reasonable Efforts to identify, engage and qualify at least one back-up supplier for the Clinical Development Candidate(s) or Cell Therapy Product(s). If a Third-Party is or will be the principal manufacturer of the Clinical Development Candidate(s) or Cell Therapy Product(s), such back-up supplier may be Athersys or its

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Affiliate or Angiotech or its Affiliate. In a manner similar to that described in Section 9.7 regarding a Supply Disruption, Athersys shall transfer or license to each such back-up supplier such Athersys Intellectual Property as is necessary or useful to permit such back-up supplier to implement and practice processes related to manufacture and supply of Clinical Development Candidate(s) or Cell Therapy Product(s), and/or to maintain its status as a qualified manufacturing entity under any and all applicable laws and regulations with respect to such processes or Clinical Development Candidate(s) or Cell Therapy Product(s). If Athersys decides to designate and qualify a back-up supplier, Athersys agrees to consult with Angiotech in identifying and selecting an appropriate Third Party as back-up supplier, and the Parties shall work together to establish each selected Third Party back-up supplier as expeditiously as reasonably possible, so as to minimize the period of absence of supply of Clinical Development Candidate(s) and/or Cell Therapy Product(s), as the case may be.
ARTICLE X.
REGULATORY MATTERS
     10.1 Ownership of Regulatory Documentation and Reference Rights; Regulatory Strategy . Athersys (in collaboration with Angiotech) shall prepare and file, in its own name, all IND applications for Clinical Development Candidates throughout the Territory, such filings to be consistent with the JSC’s regulatory strategy and decisions and subject to Angiotech’s prior written approval. Upon Angiotech’s reasonable request and to the extent permitted by applicable law, within thirty (30) days after the completion of each such Phase I Study hereunder, Athersys shall assign and transfer to Angiotech Athersys’ entire right, title and interest in and to any corresponding IND and other regulatory filings and documentation pertaining thereto. Angiotech shall own (a) all regulatory filings and documentation pertaining to all post-Phase I Studies of Clinical Development Candidates, and all Regulatory Approvals and related regulatory documents prepared for and/or submitted to the applicable regulatory authorities in the Territory for all Cell Therapy Products. Upon the reasonable request of Angiotech, and within a time period that is reasonable and appropriate in view of the nature and volume of documents so requested, Athersys shall make available to Angiotech such regulatory filings and related regulatory documents owned by Athersys (including a right to reference the foregoing) if and to the extent necessary to enable Angiotech to fulfill its obligations and to exercise its rights under the Transaction Agreements.
     10.2 Regulatory Communications . Athersys shall have the primary responsibility for communicating with any regulatory authority regarding any IND application or other regulatory filing pertaining to a Clinical Development Candidate that has not yet completed a Phase I Study. Angiotech shall have the primary responsibility for communicating with any regulatory authority regarding any IND application or other regulatory filing pertaining to a Clinical Development Candidate that has completed a Phase I Study, and regarding any Clinical Development Candidate or Cell Therapy Product that has been submitted for, or has obtained, Regulatory Approval. Each Party shall reasonably advise, assist and cooperate with the other Party with respect to regulatory communications within the primary responsibility of the other Party. Each Party shall promptly notify the other Party in writing of any material communications

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with a regulatory authority regarding any Clinical Development Candidate or any Cell Therapy Product in the Territory.
     10.3 Other Regulatory Responsibilities . At the time when the first Phase I Study is completed for any Clinical Development Candidate, Angiotech thereafter shall be responsible for (a) overseeing, monitoring and coordinating all regulatory actions, communications and filings with, and submissions to, each regulatory authority with respect to such Clinical Development Candidate and any resulting Cell Therapy Product(s); (b) interfacing, corresponding and meeting with each regulatory authority; (c) maintaining all regulatory filings; (d) responding to any action by a regulatory authority that would prohibit the marketing or the continued marketing of a Cell Therapy Product, or that would result in any shortage or projected shortage of a Cell Therapy Product; and (e) filing all adverse event reports. Using its Commercially Reasonable Efforts, Athersys shall cooperate with Angiotech and assist Angiotech in the performance of all such activities, and shall provide Angiotech with any information in Athersys’ possession or control that Angiotech or Athersys reasonably deems to be relevant to any such activities. To the extent either Party or its Affiliate has or receives any information regarding any new adverse event or any serious adverse event that may be relevant to the use of any Clinical Development Candidate or Cell Therapy Product, such Party shall immediately contact the other Party and provide the other Party with all such information in accordance with the adverse event reporting procedures established by Angiotech from time to time.
     10.4 Cell Therapy Product Complaints and Recalls . Angiotech shall be solely responsible for responding to any Cell Therapy Product complaints. In the event (a) any governmental agency or regulatory authority issues a request, directive or order that a Cell Therapy Product be recalled; (b) a court of competent jurisdiction orders that Cell Therapy Product be recalled; or (c) Angiotech reasonably determines that a Cell Therapy Product should be recalled or withdrawn from the market by Angiotech, or that a “Dear Doctor” letter should be sent relating to use of a Cell Therapy Product (wherein Angiotech shall determine the form and content of each such “Dear Doctor” letter), then Angiotech shall take all appropriate remedial actions with respect thereto. The cost of any recall, field alert, Cell Therapy Product withdrawal, or field corrective action shall be considered a Commercialization Cost, unless such recall, field alert, Cell Therapy Product withdrawal, or field corrective action is caused in material part by a Party’s breach of its obligations under this Strategic Alliance Agreement (including obligations regarding manufacturing, advertising, distribution and storage of the Cell Therapy Products) or applicable laws, or by its willful misconduct; then such cost shall be borne by the breaching Party to the extent such recall, field alert, Cell Therapy Product withdrawal, or field corrective action was due to such causes.
     10.5 Compliance With All Applicable Laws and Regulations; Cooperation . Each Party shall perform its obligations under the Transaction Agreements, and its responsibilities and rights under the Clinical Development Plans and otherwise in connection with the development and commercialization of Clinical Development Candidates and Cell Therapy Products, in accordance with all applicable laws, rules and regulations, including those of all regulatory authorities in the Territory, applicable

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reporting obligations, applicable import and export laws and regulations, current good clinical practices. Each Party shall fully cooperate with the other Party in all reasonable respects useful or necessary to enable each to be and remain in compliance with all such applicable laws, rules and regulations.
ARTICLE XI.
INTELLECTUAL PROPERTY
     11.1 Existing Intellectual Property Rights Retained . Angiotech and Athersys shall each retain all of their respective ownership interests in their respective Intellectual Property, as such exists as of the Effective Date. Nothing in this Strategic Alliance Agreement or any Transaction Agreement shall be construed to transfer ownership of any Intellectual Property rights existing as of the Effective Date from one Party to another Party.
     11.2 Ownership Of New Intellectual Property . Ownership and treatment of Intellectual Property resulting from the Parties’ activities under the Transaction Agreements shall be as set forth in the License Agreement.
ARTICLE XII.
CLINICAL PROGRAM RECORD KEEPING
     12.1 Scientific, Patent and Regulatory Records . When performing its responsibilities and activities under each Pre-Clinical Development Program, New Pre-Clinical Development Program and Clinical Development Program or under any Transaction Agreement, each Party shall maintain, and shall cause its employees and contractors to maintain, scientific and regulatory records, in sufficient and reasonable detail and in good scientific manner appropriate for patent and regulatory purposes, which shall fully and properly reflect all work done and results achieved in the performance of such responsibilities and activities by such Party.
     12.2 Review of Records . On reasonable advance written notice, and at reasonable intervals, during normal business hours each Party shall have the right to inspect and copy records of the other Party maintained in connection with the activities conducted, work performed and results achieved in the performance of its responsibilities and activities under each Pre-Clinical Development Program, New Pre-Clinical Development Program and Clinical Development Program or under any Transaction Agreement, including, without limitation, records reflecting inventions, ideas, information or data developed by a Party in the course of or work done hereunder, to the extent such access is reasonably necessary or useful for a Party to exercise its rights and perform its obligations under this Strategic Alliance Agreement or other Transaction Agreements. Notwithstanding the definition of “Confidential Information” all such records and the information disclosed therein shall constitute Confidential Information of the Party creating such records, and shall be maintained in confidence by the receiving Party in accordance with ARTICLE XIII .

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     12.3 Policies For Records . In order to protect each Party’s Patent Rights under United States and foreign law in any inventions conceived or reduced to practice in connection with any activities or work performed by the Parties under this Strategic Alliance Agreement or any Transaction Agreement, each Party shall require its employees to record and maintain data and information developed pursuant to the Transaction Agreements in such a manner as to enable the Parties to use such records to establish inventorship and corroborated and documented dates of conception, diligence to reduction to practice and/or actual reduction to practice. Each Party shall require its employees engaged in activities or work in connection with the Transaction Agreements to assign all Intellectual Property created, conceived or reduced to practice in connection therewith to their respective employer, and each Party shall ensure that each such employee has signed such an agreement before any activities or work in connection with the Transaction Agreements commences.
ARTICLE XIII.
CONFIDENTIAL INFORMATION
     13.1 Confidential Information . “ Confidential Information ” means all proprietary, non-public Intellectual Property and other information, including, but not limited to, proprietary information and materials (whether or not patentable) regarding a Party’s technology, products, business information or objectives, that is communicated in any way or form by such Party (a “Disclosing Party” ) to the other Party (a “Receiving Party” ), and all copies thereof made, in whole or in part, by the Receiving Party in any form. Notwithstanding the foregoing, the term “Confidential Information” shall not include any information of a Disclosing Party that: (a) was already known by the Receiving Party, other than under an obligation of confidentiality, at the time of disclosure by the Disclosing Party; (b) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the Receiving Party; (c) became generally available to the public or otherwise part of the public domain after its disclosure to the Receiving Party and other than through any act or omission of the Receiving Party in breach of this Strategic Alliance Agreement or any Transaction Agreement; (d) was subsequently lawfully disclosed to the Receiving Party by a Third Party on a non-confidential basis; (e) can be shown by written records of the Receiving Party to have been independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party, and without breach of any of the provisions of this Strategic Alliance Agreement or any Transaction Agreement; or (f) is information that the Disclosing Party has specifically agreed in writing that the Receiving Party may disclose. The existence and terms of each of the Transaction Agreements, the transactions described thereby and the performance of any Party’s rights or any Party’s obligations under them shall be considered the Confidential Information of both of the Parties for which each of the Parties are deemed to be the Disclosing Party.
     13.2 Confidentiality Obligations . For the Term and for five (5) years thereafter:
          (a) Except as expressly permitted in the Transaction Agreements, the Receiving Party shall keep completely confidential, and shall not publish or otherwise

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disclose, and shall not use for any purpose, any Confidential Information of the Disclosing Party; provided, however, that the Receiving Party may disclose any Confidential Information of the Disclosing Party to a Third Party to the extent necessary to allow the Receiving Party to collaborate with such Third Party in performing any of its obligations or exercising any of its rights under any Transaction Agreement or to allow the Disclosing Party to make the regulatory filings with such Third Party as advisable or required to obtain approval to conduct clinical trials or obtain Regulatory Approval for a Clinical Development Candidate or Cell Therapy Product, and in each case then only after (i) first advising such Third Party of the Receiving Party’s obligations under this Strategic Alliance Agreement and the Transaction Agreements, and (ii) securing from such Third Party a written obligation of confidentiality no less stringent than that imposed on the Receiving Party under this Strategic Alliance Agreement and the Transaction Agreements (except when not possible with regard to governmental authorities or agencies).
          (b) Except as expressly permitted in the Transaction Agreements, the Receiving Party shall not disclose the Confidential Information of the Disclosing Party to any person or entity except the Receiving Party, its Affiliates and their respective employees, consultants and agents who have a need to know such Confidential Information of the Disclosing Party to further the purposes of any of the Transaction Agreements, and then only after (i) first advising such employees, consultants and agents of the Receiving Party’s obligations under this Strategic Alliance Agreement and the Transaction Agreements, and (ii) securing from such employees, consultants and agents a written obligation of confidentiality no less stringent than that imposed on the Receiving Party under this Strategic Alliance Agreement and the Transaction Agreements.
          (c) Except with the prior written consent of the other Party, a Party shall not make any public announcement or press release concerning any of the Transaction Agreements, the transactions contemplated by any of them, the rights or obligations of the Parties under any of them, or any of the activities that have occurred or may occur thereunder.
          (d) The Parties agree on the importance of coordinating their public announcements respecting the Transactional Agreements and the subject matter thereof (other than academic, scientific or medical publications that are subject to the publication provision set forth below). Angiotech and Athersys shall, from time to time, and at the request of the other Party, discuss and agree on the general information content relating to the Transactional Agreements which may be publicly disclosed (including, without limitation, by means of any printed publication or oral presentation).
     13.3 Permitted Disclosures . Notwithstanding Section 13.2 :
          (a) The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent the Receiving Party is compelled to disclose such information by a court or other tribunal of competent jurisdiction; provided, however, that in such case the Receiving Party shall immediately give notice to the Disclosing Party, so that the Disclosing Party may seek a protective order or other remedy from said

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court or tribunal. In any event, the Receiving Party shall disclose only that portion of the Confidential Information of the Disclosing Party that, in the opinion of its legal counsel, is legally required to be disclosed, and will exercise reasonable efforts to ensure that any such Confidential Information of the Disclosing Party so disclosed will be accorded confidential treatment by said court or tribunal.
          (b) The Receiving Party may disclose the terms and conditions of this Strategic Alliance Agreement or any Transaction Agreement (including providing a copy hereof or thereof, redacted as appropriate) to any bona fide potential permitted assignee or successor to a Party’s interest under this Strategic Alliance Agreement or any Transaction Agreement, or to a bona fide potential lender from which a Party is considering borrowing money, or to a bona fide potential collaborator in connection with the Transaction Agreements, or in the case of Athersys, to any bona fide financial investor from which it may take money; provided, however, in any such case such that the Receiving Party shall first obtain a written obligation of confidentiality no less stringent than that imposed on the Receiving Party under this Strategic Alliance Agreement and the Transaction Agreements from the bona fide potential permitted assignee or successor, bona fide potential lender, bona fide potential collaborator or bona fide financial investor.
          (c) The Receiving Party may disclose the terms and conditions of this Strategic Alliance Agreement and/or the Transaction Agreements (including providing a copy hereof, redacted (as appropriate) with the prior written approval of the other Party, such approval not to be unreasonably withheld or delayed) in connection with filings with the U.S. Securities and Exchange Commission or otherwise pursuant to applicable securities laws and regulations, filings with the Internal Revenue Service and otherwise pursuant to applicable tax laws and regulations, and other filings required by law or regulation; provided, however, that the Receiving Party shall provide to the other Party a copy of any such proposed filing at least two (2) business days in advance of the filing, and shall consider in good faith the other Party’s suggested redactions. In any event, the Receiving Party shall disclose only that portion of the Confidential Information of the Disclosing Party that, in the reasonable opinion of its legal counsel, is legally required to be disclosed by law or regulation. Additionally, so long as Athersys’ securities are not publicly traded, Athersys may disclose (including providing a copy hereof, redacted as appropriate) to any bona fide potential purchaser of Athersys’ securities the foregoing information; provided, however, that Athersys first obtains a written obligation of confidentiality from the recipient that is no less stringent than Athersys’ obligations under this Strategic Alliance Agreement and the Transaction Agreements.
          (d) The Third Party collaborators set forth on Schedule 4.1 with which Athersys has executed an agreement as of the Effective Date, and which might be considered a subcontractor of Athersys’ obligations under this Strategic Alliance Agreement and the Transaction Agreements may have limited rights to publish their results obtained pursuant to such agreements. Any publication by a Third Party collaborator in accordance with the terms and conditions of its executed Existing Third Party Agreement with Athersys shall not be considered a breach of Athersys’ obligations hereunder.

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          (e) The Parties agree that the public announcement of the execution of this Strategic Alliance Agreement shall be in the form of a press release to be mutually agreed upon within five (5) business days after the Effective Date; provided that such press release shall not be publicly disseminated by either Party prior to May 15, 2006. A Party may republish, reuse or disclose the same content of any prior publication, press release or disclosure, if such republication, reuse or disclosure is presented in substantially the same form in which it was previously published, used or disclosed, without modification of the content that was previously published, used or disclosed.
     13.4 Publication . Except as provided in Section 13.3(e) , during the Term each Party will submit to the other Party for review and approval all proposed academic, scientific and medical publications and public presentations relating to the Pre-Clinical Development Programs, New Pre-Clinical Development Programs, Clinical Development Programs, or the Transactional Agreements, for review in connection with preservation of Patent Rights and/or to determine whether any of such other Party’s Confidential Information should be modified or deleted. Written copies of such proposed publications and presentations shall be submitted to the non-publishing Party no later than thirty (30) days before submission for publication or presentation, and the non-publishing Party shall provide its comments with respect to such publications and presentations within fifteen (15) business days of its receipt of such written copy. The review period may be extended for an additional thirty (30) days in the event the non-publishing Party can demonstrate reasonable need for such extension, including, but not limited to, the preparation and filing of patent applications. By mutual agreement, this period may be further extended. Athersys and Angiotech will each comply with standard academic practice regarding authorship of scientific publications and recognition of contribution of other parties in any publications pursuant to this Section 13.4 . With regard to proposed publications and presentations by a Third Party pursuant to an Existing Third Party Agreement, the time periods set forth above shall be complied with by the Parties to the extent possible, taking into account the applicable provisions of the subject Existing Third Party Agreement.
ARTICLE XIV.
REPRESENTATIONS AND WARRANTIES
     14.1 Authority . Each Party represents and warrants that, as of the Effective Date, it has the full right, power and authority to enter into this Strategic Alliance Agreement and the other Transaction Agreements, and that this Strategic Alliance Agreement and the other Transaction Agreements have been duly executed by such Party and constitute the legal, valid and binding obligations of such Party, enforceable in accordance with their terms, subject to (a) the effect of any applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights and remedies generally, and (b) the effect of general equitable principles, regardless of whether asserted in a proceeding in equity or at law.
     14.2 No Conflicts . Each Party represents and warrants that the execution, delivery and performance of this Strategic Alliance Agreement and the other Transaction Agreements do not conflict with, or constitute a breach or default under, any of its charter

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or organizational documents, any law, order, judgment or governmental rule or regulation applicable to it, or any material agreement, contract, commitment or instrument to which it is a party.
     14.3 Additional Representations and Warranties of Athersys . In addition to the representations and warranties made by Athersys in Sections 14.1 and 14.2 , Athersys, subject to Section 14.6 , hereby represents and warrants that as of the Effective Date:
          (a) it has not granted to any Third Party any right or license which would conflict with the rights granted by it to Angiotech under any of the Transaction Agreements;
          (b) except as disclosed in Schedule 14.3(b) attached hereto, Athersys is the sole and exclusive owner of the Athersys Patent Rights set forth in Schedule 1.33 , and Athersys has not placed, or suffered to be placed, any liens, charges or encumbrances on or against such Athersys Patent Rights;
          (c) Schedule 1.33 is a true and complete list of Athersys’ Patent Rights that pertain to the subject matter of the Transaction Agreements.;
          (d) Athersys has submitted to the United States Patent and Trademark Office all information related to the Cells, pre-clinical development candidates, Clinical Development Candidates and Cell Therapy Products that is required to be submitted in accordance with 37 C.F.R. 1.56, 1.97 and 1.98;
          (e) the Athersys Intellectual Property that is the subject of the rights and licenses granted to Angiotech under the Transaction Agreements constitutes all intellectual property owned or controlled by Athersys that is necessary or useful to manufacture, research, develop, use or commercialize the Cells, pre-clinical development candidates, Clinical Development Candidates and Cell Therapy Products for the Cardiovascular Indications, and to the knowledge of Athersys there is no other Intellectual Property necessary for such purposes that is owned or controlled by Athersys;
          (f) the Athersys Patent Rights set forth in Schedule 1.33 are existing and inventorship of the Athersys Patent Rights not licensed by Athersys from the University of Minnesota has been properly determined and to Athersys’ knowledge inventorship of the Athersys Patent Rights licensed from the University of Minnesota has been properly determined, and to Athersys’ knowledge, no issued or granted patents within the Athersys Patent Rights licensed or sublicensed to Angiotech under the Transaction Agreements are invalid or unenforceable;
          (g) except as set forth in Schedule 14.3(g) attached hereto, no Athersys Patent Rights listed in Schedule 1.33 are subject to any funding agreement with any government or government agency;
          (h) Athersys has received no written notice alleging infringement of a Third Party Patent Right in connection with its research and development of Cells, pre-clinical development candidates, Clinical Development Candidates and/or Cell Therapy

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Products, and Athersys has disclosed to Angiotech all material information of which Athersys is aware as to whether the research, development, manufacture, use, sale, offer for sale or importation of Clinical Development Candidates or Cell Therapy Products infringes or would infringe issued or granted patents owned by a Third Party as of the Effective Date;
          (i) the Athersys Patent Rights licensed or sublicensed to Angiotech under the Transaction Agreements are not subject to any litigation, judgments or settlements against or owed by Athersys, nor has Athersys received written notice of any threats of such litigation;
          (j) the Athersys Patent Rights licensed or sublicensed to Angiotech under the Transaction Agreements are not the subject of any interference, opposition, reissue or reexamination proceeding in the United States or, to the knowledge of Athersys, any opposition proceeding outside of the United States;
          (k) Athersys has not knowingly used any Intellectual Property misappropriated from a Third Party in connection with the subject matter of the Transactional Agreements, and Athersys is not aware of any claim by a Third Party that Intellectual Property misappropriated from such Third Party has been used by Athersys in its research and development of Cells, pre-clinical development candidates, Clinical Development Candidates and/or Cell Therapy Products;
          (l) except as set forth in Schedule 14.3(l) attached hereto, to Athersys’ knowledge, there is no unauthorized use, infringement or misappropriation of any of the Intellectual Property that is the subject of the rights and licenses granted to Angiotech under the Transaction Agreements by any Third Party, including any current or former employee or consultant of Athersys and its Affiliates;
          (m) with respect to activities conducted by Athersys, and to Athersys’ knowledge with respect to activities conducted by Third Parties on behalf of Athersys, there has not been any scientific fraud regarding Cells, Clinical Development Candidates or Cell Therapy Products or Intellectual Property of Athersys licensed to Angiotech under the Transaction Agreements;
          (n) to Athersys’ knowledge, no employee or agent of Athersys or any of its Affiliates has made an untrue statement of a material fact to any governmental authority with respect to the Cells, pre-clinical development candidates, Clinical Development Candidates and/or Cell Therapy Products (whether in any submission to such governmental authority or otherwise), or failed to disclose a material fact required to be disclosed to any governmental authority with respect to the Cells, pre-clinical development candidates, Clinical Development Candidates and/or Cell Therapy Products;
          (o) none of it, its officers, directors, employees, or Affiliates is debarred under the Generic Drug Enforcement Act or convicted of a crime which could lead to debarment, and it has not knowingly utilized, and has not knowingly utilized, the services of any individual or entity in conducting its manufacturing activities hereunder that has

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been debarred under the Generic Drug Enforcement Act or convicted of a crime that could lead to debarment;
          (p) that its employees have complied materially with all safety and environmental procedures, protocols, systems, laws, rules and regulations applicable to or associated with its Cell isolation, purification and production activities hereunder;
          (q) Athersys and its Affiliates have complied materially with all applicable laws, rules, regulations, permits, governmental licenses, registrations, approvals, concessions, franchises, authorizations, orders, injunctions and decrees, including the Federal Food, Drug and Cosmetic Act, in the research, development, manufacture and use of the Cells, pre-clinical development candidates, Clinical Development Candidates and/or Cell Therapy Products, and neither Athersys nor any of its Affiliates has received any written notice from any regulatory authority claiming that any such activities as conducted by them are not in such compliance; and
          (r) that the Cells are not derived from embryonic sources (i.e., the Cells are not embryonic stem cells).
     14.4 Additional Covenants of Athersys . In addition to the representations and warranties made by Athersys in Sections 14.1 , 14.2 , and 14.3 Athersys, subject to Section 14.6 , hereby covenants to Angiotech that during the Term:
          (a) it will not grant to any Third Party any right or license which would conflict with the rights granted by it to Angiotech under any of the Transaction Agreements;
          (b) Athersys will not place, or suffer to be placed, any liens, charges or encumbrances on or against any Athersys Patent Rights that may have an adverse effect on Angiotech’s rights or licenses with respect to Athersys Patent Rights licensed to Angiotech under the Transaction Agreements;
          (c) Athersys will submit to the United States Patent and Trademark Office all information related to the Cells, pre-clinical development candidates, Clinical Development Candidates and Cell Therapy Products that is required to be submitted in accordance with 37 C.F.R. 1.56, 1.97 and 1.98;
          (d) the Athersys Intellectual Property that is the subject of the rights and licenses granted to Angiotech under the Transaction Agreements constitutes all intellectual property owned or controlled by Athersys that is necessary or useful to manufacture, research, develop, use or commercialize the Cells, pre-clinical development candidates, Clinical Development Candidates and Cell Therapy Products for the Cardiovascular Indications, and to the knowledge of Athersys there is no other Intellectual Property necessary for such purposes that is owned or controlled by Athersys;
          (e) Athersys will take all steps necessary to ensure that the Athersys Patent Rights set forth in Schedule 1.33 are existing and that inventorship of the Athersys Patent Rights is properly determined, and Athersys’ will promptly inform Angiotech in

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writing if any issued or granted patents within the Athersys Patent Rights licensed or sublicensed to Angiotech under the Transaction Agreements become invalid or unenforceable;
          (f) Athersys will promptly inform Angiotech in writing of receipt of any written notice alleging infringement of a Third Party Patent Right in connection with Athersys’ research and development of Cells, pre-clinical development candidates, Clinical Development Candidates and/or Cell Therapy Products, and Athersys will disclose to Angiotech all material information of which Athersys becomes aware as to whether the research, development, manufacture, use, sale, offer for sale or importation of Clinical Development Candidates or Cell Therapy Products might constitute infringement of issued or granted patents owned by a Third Party;
          (g) Athersys will promptly inform Angiotech in writing if Athersys Patent Rights licensed or sublicensed to Angiotech under the Transaction Agreements become subject to any litigation, judgments or settlements against or owed by Athersys, or if Athersys receives written notice of any threats of such litigation;
          (h) Athersys will promptly inform Angiotech in writing if the Athersys Patent Rights licensed or sublicensed to Angiotech under the Transaction Agreements become the subject of any interference, opposition, reissue or reexamination proceeding in the United States or, if Athersys learns of any opposition proceeding outside of the United States with respect to the Athersys Patent Rights licensed to Angiotech under the Transaction Agreements;
          (i) Athersys will not knowingly use any Intellectual Property misappropriated from a Third Party in connection with the subject matter of the Transactional Agreements, and Athersys will promptly inform Angiotech in writing of any claim by a Third Party that Intellectual Property misappropriated from such Third Party has been used by Athersys in its research and development of Cells, pre-clinical development candidates, Clinical Development Candidates and/or Cell Therapy Products;
          (j) Athersys will promptly inform Angiotech in writing of any unauthorized use, infringement or misappropriation of any of the Intellectual Property that is the subject of the rights and licenses granted to Angiotech under the Transaction Agreements by any Third Party, including any current or former employee or consultant of Athersys and its Affiliates;
          (k) there will not be any scientific fraud by Athersys or its Affiliates regarding Cells, Clinical Development Candidates or Cell Therapy Products or Intellectual Property of Athersys licensed to Angiotech under the Transaction Agreements, and with respect to activities conducted on behalf of Athersys, Athersys shall make Commercially Reasonable Efforts to ensure that there will not be any scientific fraud by any such Third Party regarding Cells, Clinical Development Candidates or Cell Therapy Products or Intellectual Property of Athersys licensed to Angiotech under the Transaction Agreements;

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          (l) no employee or agent of Athersys or any of its Affiliates will make an untrue statement of a material fact to any governmental authority with respect to the Cells, pre-clinical development candidates, Clinical Development Candidates and/or Cell Therapy Products (whether in any submission to such governmental authority or otherwise), or fail to disclose a material fact required to be disclosed to any governmental authority with respect to the Cells, pre-clinical development candidates, Clinical Development Candidates and/or Cell Therapy Products;
          (m) none of it, its officers, directors, employees, or Affiliates will be debarred under the Generic Drug Enforcement Act or will be convicted of a crime which could lead to debarment, and it will not knowingly utilize, the services of any individual or entity in conducting its manufacturing activities hereunder that has been debarred under the Generic Drug Enforcement Act or convicted of a crime that could lead to debarment;
          (n) that its employees will comply materially with all safety and environmental procedures, protocols, systems, laws, rules and regulations applicable to or associated with its Cell isolation, purification and production activities hereunder;
          (o) Athersys and its Affiliates will comply materially with all applicable laws, rules, regulations, permits, governmental licenses, registrations, approvals, concessions, franchises, authorizations, orders, injunctions and decrees, including the Federal Food, Drug and Cosmetic Act, in the research, development, manufacture and use of the Cells, pre-clinical development candidates, Clinical Development Candidates and/or Cell Therapy Products, and Athersys will promptly inform Angiotech in writing if either Athersys or any of its Affiliates receive any written notice from any regulatory authority claiming that any such activities as conducted by them are not in such compliance; and
          (p) that the Cells will not be derived from embryonic sources (i.e., the Cells will not be embryonic stem cells).
     14.5 Additional Covenants of Angiotech . In addition to the representations and warranties made by Angiotech in Sections 14.1 and 14.2 , Angiotech, subject to Section 14.6 , hereby covenants to Athersys that during the Term:
          (a) Angiotech will not knowingly use any Intellectual Property misappropriated from a Third Party in connection with the subject matter of the Transactional Agreements, and Angiotech will promptly inform Athersys in writing of any claim by a Third Party that Intellectual Property misappropriated from such Third Party has been used by Angiotech in its research and development of Cells, pre-clinical development candidates, Clinical Development Candidates and/or Cell Therapy Products;
          (b) Angiotech will promptly inform Athersys in writing of any unauthorized use, infringement or misappropriation of any of the Intellectual Property that is the subject of the rights and licenses granted to Angiotech under the Transaction Agreements by any Third Party;

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          (c) there will not be any scientific fraud by Angiotech or its Affiliates regarding Cells, Clinical Development Candidates or Cell Therapy Products licensed to Angiotech under the Transaction Agreements, and with respect to activities conducted on behalf of Angiotech, Angiotech shall make Commercially Reasonable Efforts to ensure that there will not be any scientific fraud by any such Third Party regarding Cells, Clinical Development Candidates or Cell Therapy Products licensed to Angiotech under the Transaction Agreements;
          (d) no employee or agent of Angiotech or any of its Affiliates will make an untrue statement of a material fact to any governmental authority with respect to the Cells, pre-clinical development candidates, Clinical Development Candidates and/or Cell Therapy Products (whether in any submission to such governmental authority or otherwise), or fail to disclose a material fact required to be disclosed to any governmental authority with respect to the Cells, pre-clinical development candidates, Clinical Development Candidates and/or Cell Therapy Products;
          (e) none of it, its officers, directors, employees, or Affiliates will be debarred under the Generic Drug Enforcement Act or will be convicted of a crime which could lead to debarment, and it will not knowingly utilize, the services of any individual or entity in conducting its manufacturing activities hereunder that has been debarred under the Generic Drug Enforcement Act or convicted of a crime that could lead to debarment; and
          (f) Angiotech and its Affiliates will comply materially with all applicable laws, rules, regulations, permits, governmental licenses, registrations, approvals, concessions, franchises, authorizations, orders, injunctions and decrees, including the Federal Food, Drug and Cosmetic Act, in the research, development, manufacture and use of the Cells, pre-clinical development candidates, Clinical Development Candidates and/or Cell Therapy Products, and Angiotech will promptly inform Athersys in writing if either Angiotech or any of its Affiliates receive any written notice from any regulatory authority claiming that any such activities as conducted by them are not in such compliance.
     14.6 Disclaimer Of Warranties . EXCEPT AS EXPRESSLY SET FORTH IN THIS STRATEGIC ALLIANCE AGREEMENT OR ANY TRANSACTION AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS NOR EXTENDS ANY WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
ARTICLE XV.
INDEMNIFICATION AND INSURANCE
     15.1 Indemnification By Athersys . Athersys shall indemnify, defend and hold Angiotech, its Affiliates and their permitted contractors and agents, employees, officers and directors (the “ Angiotech Indemnitees ”) harmless from and against any and all

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liability, damage, loss, cost or expense (including reasonable attorneys’ fees) arising out of Third Party claims or lawsuits related to (a) Athersys’ performance of its obligations under the Transaction Agreements, (b) a breach by Athersys of any of its covenants, representations or warranties set forth in the Transaction Agreements; (c) arising out of the use of the Company Technology, Company Patents, University Technology, and/or University Patents and/or the development, manufacture, use, storage, handling, distribution or sale of any Clinical Development Candidates or Cell Therapy Products by or on behalf of Athersys or its Affiliates (other than those Cell Therapy Products for which the Parties share Profits); or (d) the failure of Clinical Development Candidates or Cell Therapy Products manufactured by or on behalf of Athersys to meet the Clinical Development Candidate or Cell Therapy Product (as applicable) specifications or to be manufactured in compliance with current Good Manufacturing Practices or other applicable laws and regulations; provided, however , all of the foregoing is only to the extent that such claims or suits do not result from a breach of any of the provisions of the Transaction Agreements, gross negligence or willful misconduct of any of the Angiotech Indemnitees. Upon the assertion of any such claim or suit, Angiotech shall promptly notify Athersys thereof and Athersys shall appoint counsel reasonably acceptable to the affected Angiotech Indemnitees to represent such Angiotech Indemnitees with respect to any claim or suit for which indemnification is sought. Neither Athersys nor the Angiotech Indemnitees shall enter into any settlement agreement with any Third Party without the consent of the other Party, which consent shall not be unreasonably withheld; provided that affected Angiotech Indemnitees shall be permitted in their sole discretion to settle any such claim or suit if they have first waived their rights to indemnification hereunder.
     15.2 Indemnification By Angiotech . Angiotech shall indemnify, defend and hold Athersys, its Affiliates and their permitted contractors and agents, employees, officers and directors (the “ Athersys Indemnitees ”) harmless from and against any and all liability, damage, loss, cost or expense (including reasonable attorneys’ fees) arising out of Third Party claims or lawsuits related to (a) Angiotech’s performance of its obligations under the Transaction Agreements; (b) a breach by Angiotech of any of its covenants, representations or warranties set forth in the Transaction Agreements; or (c) arising out of the use of the Company Technology, Company Patents, University Technology, and/or University Patents and/or the development, manufacture, use, storage, handling, distribution or sale of any Clinical Development Candidates or Cell Therapy Products by or on behalf of Angiotech or its Affiliates (other than those Cell Therapy Products for which the Parties share Profits); provided, however, all of the foregoing is only to the extent that such claims or suits do not result from a breach of any of the provisions of the Transaction Agreements, gross negligence or willful misconduct of the Athersys Indemnitees. Upon the assertion of any such claim or suit, Athersys shall promptly notify Angiotech thereof and Angiotech shall appoint counsel reasonably acceptable to the affected Athersys Indemnitees to represent such Athersys Indemnitees with respect to any claim or suit for which indemnification is sought. Neither Angiotech nor the Athersys Indemnitees shall enter into any settlement agreement with any Third Party without the consent of the other Party, which consent shall not be unreasonably withheld; provided that affected Athersys Indemnitees shall be permitted in their sole

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discretion to settle any such claim or suit if they have first waived their rights to indemnification hereunder.
     15.3 Insurance . During the Term and for a period of two (2) years thereafter, each Party shall obtain and maintain commercial general liability insurance, including products liability insurance, with reputable and financially secure insurance carriers with respect to its obligations, responsibilities and activities under the Transaction Agreements. Such insurance shall be in such amounts and subject to such deductibles as the Parties may agree based upon standards prevailing in the industry at the time, but in each case with limits of not less than Five Million Dollars ($5,000,000.00) per occurrence and in the aggregate.
ARTICLE XVI.
TERM AND TERMINATION
     16.1 Term . This Strategic Alliance Agreement shall commence on the Effective Date and, unless terminated earlier pursuant to Section 16.2 , shall continue in full force and effect until the earlier to occur of: (a) five (5) years after the Effective Date, if the JSC has not approved any Clinical Development Program on or before such fifth year anniversary; (b) if at least one Cell Therapy Product has obtained Regulatory Approval in the Territory and the Parties have shared Profits with respect to at least one Cell Therapy Product, on the date that there has been no sales for twelve (12) months of any Cell Therapy Product that has been the subject of Profit-sharing, unless a Clinical Development Candidate is in Phase III Studies or later; or (c) the later of (i) the expiration date of the last-to-expire patent licensed to Angiotech under the Transaction Agreements, or (ii) fifteen (15) years after the Effective Date. The period of time from the Effective Date until expiration or early termination is the “ Term .”
     16.2 Termination .
          (a) Uncured Breach of Athersys . The failure by Athersys to substantially comply with any of the material obligations contained in this Strategic Alliance Agreement or any Transaction Agreement shall entitle Angiotech to give written notice to have the default cured. If such default is not cured within sixty (60) days after the receipt of such written notice, or if by its nature such default is not capable of cure within such sixty (60)-day period, then Angiotech shall be entitled, without prejudice to any of its other rights conferred on it by this Strategic Alliance Agreement or any Transaction Agreement, and in addition to any other remedies that may be available to it, to terminate this Strategic Alliance Agreement; provided, however , that such right to terminate shall be stayed in the event that, during such sixty (60)-day period, Athersys shall have: (i) initiated dispute resolution in accordance with ARTICLE XVII below with respect to the alleged default, and (ii) diligently and in good faith cooperated in the prompt resolution of such dispute resolution process.
          (b) Uncured Breach of Angiotech . The failure by Angiotech to substantially comply with any of the material obligations contained in this Strategic Alliance Agreement or any Transaction Agreement shall entitle Athersys to give written

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notice to have the default cured. If such default is not cured within sixty (60) days after the receipt of such written notice, or if by its nature such default is not capable of cure within such sixty (60)-day period, then Athersys shall be entitled, without prejudice to any of its other rights conferred on it by this Strategic Alliance Agreement or any Transaction Agreement, and in addition to any other remedies that may be available to it, to terminate this Strategic Alliance Agreement; provided, however, that such right to terminate shall be stayed in the event that, during such sixty (60)-day period, Angiotech shall have: (i) initiated dispute resolution in accordance with ARTICLE XVII below with respect to the alleged default, and (ii) diligently and in good faith cooperated in the prompt resolution of such dispute resolution process.
          (c) Insolvency of Athersys . In the event that Athersys has filed or instituted bankruptcy, reorganization, liquidation or receivership proceedings, or has assigned a substantial portion of its assets for the benefit of creditors during the Term, Angiotech may immediately terminate the Transaction Agreements in their entirety upon written notice of termination to Athersys; provided, however, that in the event of any involuntary bankruptcy or receivership proceeding, such right of Angiotech to terminate the Transaction Agreements shall only become effective if Athersys consents to the involuntary bankruptcy or receivership or such proceeding is not dismissed within ninety (90) days after the filing thereof; and further provided that, if the Transaction Agreements are terminated by Angiotech due to the rejection of this Strategic Alliance Agreement or any Transaction Agreement by or on behalf of Athersys under Section 365 of the United States Bankruptcy Code (the “ Code ”), all licenses and rights to licenses granted under or pursuant to the Transaction Agreements by Athersys to Angiotech are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the Code, licenses of rights to “intellectual property” as defined under Section 1010(35A) of the Code. The Parties agree that Angiotech, as a licensee of such rights under the Transaction Agreements, shall retain and may fully exercise all of its rights and elections under the Code, and that upon commencement of a bankruptcy proceeding by or against Athersys under the Code, Angiotech shall be entitled to a complete duplicate of, or complete access to (as Angiotech deems appropriate), any such intellectual property and all embodiments of such intellectual property. Such intellectual property and all embodiments thereof shall be promptly delivered to Angiotech (a) upon any such commencement of a bankruptcy proceeding and upon written request therefor by Angiotech, unless Athersys elects to continue, and does continue, to perform all of its obligations under the Transaction Agreements, or (b) if not delivered under (a) above, upon the rejection of this Strategic Alliance Agreement or any Transaction Agreement by or on behalf of Athersys and upon written request therefor by Angiotech. Athersys agrees not to interfere with Angiotech’s exercise under the Code of rights and licenses to intellectual property licensed hereunder and embodiments thereof in accordance with this Section 16.2(c) and agrees to use Commercially Reasonable Efforts to assist Angiotech to obtain such intellectual property and embodiments thereof in the possession or control of Third Parties as are reasonably necessary or useful for Angiotech to exercise such rights and licenses in accordance with the Transaction Agreements. The foregoing provisions are without prejudice to any rights Angiotech may have arising under the Code or other applicable law.

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          (d) Termination for Cause . Angiotech shall have a right to terminate the Transaction Agreements for cause (as set forth in (i) or (ii) below), which termination right may be exercised at any time during the Term. Such termination shall require at least one hundred twenty (120) days prior written notice by Angiotech that terminates for cause, and during such 120-day period the Parties shall continue to share costs that are incurred and Profit that is obtained in connection with activities under the Transaction Agreements that have been commenced but not yet completed.
     (i) Grounds that Constitute “For Cause” . If Angiotech, using its reasonable and sound business judgment, determines that (A) a primary endpoint(s) in a clinical study within a Clinical Development Plan has not been fulfilled or met; (B) at least one (1) IND has not been filed by the Parties within three (3) years after the Effective Date; (C) clinical efficacy and/or safety with respect to Cells, a Clinical Development Candidate or a Cell Therapy Product have not been demonstrated; (D) applicable regulatory requirements for Cells, a Clinical Development Candidate or a Cell Therapy Product in one or more Major Markets in the Territory shall have a material adverse impact on the ability to obtain Regulatory Approval for a Cell Therapy Product in such countries; (E) Athersys data regarding Cells, a Clinical Development Candidate or a Cell Therapy Product were obtained, in whole or in part, through scientific fraud; and/or (F) a Cell Therapy Product is not (or is not expected to be) commercially viable or profitable for a Party in at least one of the Major Market in the Territory, then any of the conditions (A-F) above shall constitute a grounds for termination of the Transaction Agreements “ for cause .”
     (ii) Decision to Terminate For Cause . If Angiotech decides to terminate the Transaction Agreements for cause, then Angiotech shall provide written notice to Athersys of such decision (and this written notice shall also serve as a notice of termination as specified in such written notice); provided that with respect to each instance of an event giving rise to the applicable grounds for termination, in order to be effective such written notice shall be provided to Athersys within one hundred eighty (180) days after Angiotech, using its reasonable and sound business judgment, makes a determination that such event has occurred.
          (e) Change of Control of Athersys . For purposes of this clause (e), “ Change of Control ” means the consummation of a transaction during the Term in which a Third Party acquires, merges or consolidates with Athersys; or possesses (directly or indirectly) the power to direct or cause the direction of management or policies of Athersys through ownership of a majority of securities, partnership, or other ownership rights or agreements; or in which Athersys transfers or sells all or substantially all of its assets or business to which the Transaction Agreements relate; provided, however, that none of the following shall be considered a Change in Control: (i) a merger effected exclusively for the purpose of changing the domicile of Athersys; (ii) an equity financing in which Athersys is the surviving corporation; or (iii) a transaction in which the stockholders of Athersys immediately prior to the transaction own fifty percent (50%) or more of the voting power of the surviving corporation following the transaction. In the

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event of a Change of Control of Athersys during the Term, Athersys shall provide written notice of such Change of Control to Angiotech no later than ten (10) business days after the occurrence of such event (“ Change of Control Notice ”). If the Change of Control results in Athersys becoming controlled by a Local Therapeutic Company, or if Angiotech has other sound business reasons, Angiotech may, in its sole discretion and at its election, terminate the Transaction Agreements by giving Athersys and the Third Party successor to Athersys written notice of termination within ninety (90) days after the later to occur of: (x) the date of consummation of such transaction, or (xi) the date Angiotech received the Change of Control Notice from Athersys. Any such notice of termination by Angiotech shall be effective sixty (60) days after delivery of such notice to Athersys and the Third Party successor to Athersys. If Angiotech does not exercise this right of termination, Angiotech, Athersys and the Third Party successor to Athersys shall continue thereafter to fulfill their respective rights and obligations under the Transaction Agreements.
     16.3 Effects of Termination .
          (a) Termination by Angiotech . Upon termination of the Transaction Agreements by Angiotech pursuant to Section 16.2(a) or Section 16.2(c) , Athersys shall be deemed to be the Discontinuing Party and to have delivered an Opt-Out Notice on the effective date of such termination with respect to all Clinical Development Candidates and Cell Therapy Products pursuant to Section 6.1 (notwithstanding whether or not the first Phase I Trial has been completed) and Angiotech shall be entitled to exercise the Sole Development Option as described in Section 6.1 . If Angiotech exercises the Sole Development Option as described in the foregoing sentence, the Parties’ rights and obligations set forth in the Transaction Agreements (including, without limitation, Intellectual Property licenses) shall survive in perpetuity to the extent necessary for Angiotech and Athersys to exercise their rights and obligations as Developing Party and Discontinuing Party (respectively) pursuant to ARTICLE VI ; provided, however, that if Angiotech exercises the Sole Development Option as described in this Section 16.3(a) : (i) the Replacement Fee (if any is outstanding at the time of termination) shall remain payable to Athersys as described in Section 2.4 , and (ii) notwithstanding the provisions of Section 6.1(a) , the achievement of each regulatory approval or commercialization milestone pursuant to Section 7.3 (as described in Schedule 7.3, Items 2-5 ) shall result in an amount payable to Athersys equal to (A) twenty five percent (25%) of the amount described for such milestone in Schedule 7.3, Items 2-5 (as applicable), if the Transaction Agreements are terminated by Angiotech pursuant to Section 16.2(a) , or (B) fifty percent (50%) of the amount described for such milestone in Schedule 7.3, Items 2-5 (as applicable), if the Transaction Agreements are terminated by Angiotech pursuant to Section 16.2(c) .
          (b) Termination by Athersys . Upon termination of the Transaction Agreements by Athersys pursuant to Section 16.2(b) , Angiotech shall be deemed to be the Discontinuing Party and to have delivered an Opt-Out Notice on the effective date of such termination with respect to all Clinical Development Candidates and Cell Therapy Products pursuant to Section 6.1 (notwithstanding whether or not the first Phase I Trial has been completed) and Athersys shall be entitled to exercise the Sole Development

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Option as described in Section 6.1 . If Athersys exercises the Sole Development Option as described in the foregoing sentence, the Parties’ rights and obligations set forth in the Transaction Agreements (including, without limitation, Intellectual Property licenses) shall survive in perpetuity to the extent necessary for Athersys and Angiotech to exercise their rights and obligations as Developing Party and Discontinuing Party (respectively) pursuant to ARTICLE VI .
     16.4 Survival Of Obligations . The termination or expiration of this Strategic Alliance Agreement or any Transaction Agreement shall not relieve the Parties of any obligations accruing prior to such expiration or termination, and any such expiration or termination shall be without prejudice to the rights of any Party against another Party. In addition, the provisions of Article I, to the extent definitions are embodied in the following listed Articles and Sections of this Agreement; Articles VII (to the extent any payments have accrued as of the effective date of expiration or termination, but have not yet been paid), XI, XIII, XV and XVII (with respect to disputes arising during the Term that have not been resolved); Sections 2.6, 2.7, 3.7 (with respect to disputes arising during the Term that have not been resolved), 7.8, 7.9 (once within one year after termination), 7.10, 9.5 (with respect to rejection of any Cell Therapy Product), 12.2, 14.6, 16.3, this 16.4, 18.1, and 18.4-18.13, shall survive any expiration or termination of this Strategic Alliance Agreement for any reason. In each situation, where one of the surviving provisions requires action or review by the JSC, the JSC will also survive expiration or termination to the extent necessary.
ARTICLE XVII.
DISPUTE RESOLUTION
     17.1 Dispute Resolution Process . The Parties acknowledge and agree that their long-term mutual interests as of the Effective Date will be best served by effecting a rapid and fair resolution of any claims or disputes which may arise out of this Strategic Alliance Agreement or any Transaction Agreement. Therefore, the Parties agree to use their commercially reasonable best efforts to resolve in good faith all such disputes as rapidly as possible on a fair and equitable basis.
          (a) Except as set forth in Section 3.7 , Section 5.2 , Section 5.3 and Section 7.2(c) , if any dispute, controversy or claim arising under this Strategic Alliance Agreement or any other Transaction Agreement cannot be readily resolved by the Parties, then the Parties agree to refer the matter to a panel consisting of the President of Angiotech and the President of Athersys for review and resolution. A copy of the terms of this Strategic Alliance Agreement and the other Transaction Agreements, agreed-upon facts (and areas of disagreement), and a concise summary of the basis for each Party’s position and contentions will be provided to such Presidents, who shall review the same, confer in good faith and reach a mutual resolution of the issue.
          (b) If a dispute, controversy or claim cannot be settled through negotiation of the Presidents of the Parties pursuant to Section 17.1(a) , then, except as otherwise specified in any of the Transaction Agreements, the Parties agree to submit the dispute to

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mediation under the Commercial Mediation Rules of the American Arbitration Association.
          (c) If efforts at mediation are unsuccessful within sixty (60) days after the date that one Party notifies the other Party that it desires to resolve a dispute, controversy or claim through mediation, any unresolved dispute, controversy or claim between the Parties shall be resolved at the mutual agreement of the Parties by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except as modified herein. Failing mutual agreement to submit such unresolved dispute, controversy or claim to arbitration, either Party may resort to other legal remedies.
          (d) If the Parties mutually agree to submit an unresolved dispute, controversy or claim to arbitration, each Party shall select one arbitrator and the two (2) arbitrators so selected shall choose a third arbitrator to resolve the dispute. Prior to the commencement of arbitration, each Party shall certify that its chosen arbitrator is competent to decide such dispute and the two (2) arbitrators so certified shall jointly certify that their chosen third arbitrator is likewise competent to decide such dispute. Such competence may include the ability to understand disputes which are primarily scientific in nature or which require expertise and knowledge of processes related to the commercial development of a pharmaceutical/medical device product which is peculiar to persons in the biotechnology/pharmaceutical industry. A reasoned arbitration decision shall be rendered in writing within six (6) months of the conclusion of mediation and shall be binding and not be appealable to any court in any jurisdiction. The prevailing Party may enter such decision in any court having competent jurisdiction. The mediation and arbitration proceedings shall be conducted in the English language and shall be held in New York, New York, U.S.A. The Parties agree that they shall share equally the cost of the mediation and arbitration filing and hearing fees, and the cost of the mediator/arbitrator. Each Party must bear its own attorneys’ fees and associated costs and expenses with respect to any such mediation and arbitration proceedings.
     17.2 Injunctive Relief . Each Party acknowledges that (a) the covenants and the restrictions of the other Party that are contained in this Strategic Alliance Agreement and the other Transaction Agreements are an inducement to enter into this Strategic Alliance Agreement and the other Transaction Agreements, and are necessary and required for the protection of the Parties, (b) such covenants and restrictions may relate to matters that are of a special, unique and extraordinary character that may give each of such covenants a special, unique and extraordinary value, and (c) a material breach of any of such covenants and restrictions may result in irreparable harm and damages to a Party in an amount that may be difficult to ascertain, and which may not be adequately compensated by a monetary award. Accordingly, in addition to any of the relief to which a Party may be entitled under this Strategic Alliance Agreement or any other Transaction Agreement, at law or in equity, such Party shall be entitled to seek temporary and permanent injunctive relief from any such breach or threatened breach of such covenants or restrictions without proof of actual damages that have been or may be caused to such Party by such breach or threatened breach. In the event an action for injunctive relief is

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brought by a Party, the other Party waives any right to require the Party bringing such action to post any bond or other security with the court in connection therewith.
ARTICLE XVIII.
MISCELLANEOUS PROVISIONS
     18.1 Governing Law . The Transaction Agreements shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to the principles of conflict of laws.
     18.2 Assignment . Neither Party shall be permitted to assign or otherwise transfer any of its rights or obligations under the Transaction Agreements without the prior written consent of the other Party; provided, however, that, subject to Section 16.2(e) , a Party may assign or otherwise transfer all of its rights and obligations under the Transaction Agreements without the prior written consent of the other Party (a) in connection with a sale of all or substantially all of its business or assets, whether by merger, sale of stock, sale of assets or otherwise or (b) to an Affiliate of such Party. Notwithstanding the foregoing, in the event of any such permitted assignment or other transfer, all rights and obligations under the Transaction Agreements must be assigned or otherwise transferred together in their entirety to such assignee or successor.
     18.3 Compliance With Laws . Each Party shall comply with all applicable laws, rules and regulations in connection with its performance of its obligations and exercise of its rights under the Transaction Agreements. Each Party shall furnish to the other Party any information reasonably requested or required by the requesting Party during the Term to enable the requesting Party to comply with the requirements of any United States or foreign federal, state, and/or government agency.
     18.4 Further Assurances . At any time, or from time to time, following the date of the Transaction Agreements, each Party shall, at the request of the other Party (a) deliver or cause to be delivered to the requesting Party any records, data or other documents consistent with the provisions of the Transaction Agreements, (b) duly execute and deliver, or cause to be duly executed or delivered, all such consents, assignments, documents or further instruments of transfer or license as required by the Transaction Agreements, and (c) take or cause to be taken all such actions, in each case as the requesting Party may reasonably deem necessary in order for the requesting Party to obtain the full benefits of the Transaction Agreements and the transactions contemplated hereby.
     18.5 Severability . In the event that any provision of the Transaction Agreements is determined to be invalid or unenforceable by a court of competent jurisdiction, the remainder of the Transaction Agreements shall remain in full force and effect without said provision. In such event, the Parties shall in good faith attempt to negotiate a substitute clause for any provision declared invalid or unenforceable, which substitute clause shall most nearly approximate the intent of the Parties in agreeing to such invalid provision, without itself being invalid.

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     18.6 Waivers And Amendments; Preservation Of Remedies . The Transaction Agreements may be amended, modified, superseded, canceled, renewed or extended, and the terms and conditions hereof may be waived, only by a written instrument signed by the Parties or, in the case of a waiver, the Party waiving compliance. No delay on the part of any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any Party of any right, power or privilege hereunder, nor any single or partial exercise of any right, power or privilege hereunder, preclude any other or other exercise thereof hereunder. The rights and remedies herein provided are cumulative and are not exclusive of any rights or remedies which any Party may otherwise have at law or in equity.
     18.7 Headings . The captions to the several Articles and Sections hereof are not a part of the Transaction Agreements, but are included merely for convenience of reference only and shall not affect its meaning or interpretation.
     18.8 Counterparts . The Transaction Agreements may be executed by original or facsimile signature in any number of counterparts, and each such counterpart shall be deemed to be an original instrument, and all of which counterparts together shall constitute one instrument.
     18.9 Successors . This Strategic Alliance Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
     18.10 Notices . All notices, requests, demands, claims and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered personally, by fax, sent by nationally recognized overnight courier or mailed by registered or certified mail (return receipt requested), postage prepaid, to the Parties at the addresses set forth below (or at such other address for such party as shall be specified by like notice). All such notices and other communications shall be deemed to have been given and received (a) in the case of personal delivery, on the date of such delivery, (b) in the case of delivery by facsimile transmission, on the date of such delivery, (c) in the case of delivery by nationally recognized express courier, on the date of such delivery, and (d) in the case of mailing within the United States, on the fifth (5 th ) business day following such mailing.
If to Angiotech :
Angiotech Pharmaceuticals, Inc.
1618 Station Street
Vancouver, BC Canada V6A 1B6
Fax: 604-221-2330
Attn: Vice President Business Development
with a required copy to:
Angiotech Pharmaceuticals, Inc.
1618 Station Street

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Vancouver, BC Canada V6A 1B6
Fax: 604-221-2330
Attn: General Counsel
If to Athersys :
Athersys, Inc.
3201 Carnegie Avenue
Cleveland, OH 44115-2634
Fax: (216) 361-9495
Attn: Chief Executive Officer
with a copy (which shall not constitute notice) to:
Jones Day
North Point
901 Lakeside Avenue
Cleveland, OH 44114
Fax: (216) 579-0212
Attn: Thomas A. Briggs, Esq.
     18.11 No Consequential Damages . EXCEPT IN CONNECTION WITH A PARTY’S OBLIGATIONS UNDER ARTICLE XV , IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE.
     18.12 Independent Contractor . Neither Party shall be construed to be a partner, joint venturer, franchisee, employee, principal, agent, representative or participant of or with the other Party for any purpose whatsoever by virtue of the Transaction Agreements. No Party has any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other Party in any manner by virtue of the Transaction Agreements.
     18.13 Complete Agreement . This Strategic Alliance Agreement, together with its Schedules and Exhibits, and any Pre-Clinical Development Plans and Clinical Development Plans approved by the Parties, the Note and Purchase Agreement, and the Mutual Confidential Disclosure Agreement between the Parties dated July 20, 2005, along with any other letters or agreements signed by both Parties and of even date herewith, constitute the entire agreement, both written and oral, between the Parties with respect to the subject matter hereof, and all prior agreements respecting the subject matter hereof, either written or oral, expressed or implied, are merged and canceled, and are null and void and of no effect.

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[Signature page follows]

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     IN WITNESS WHEREOF, the Parties have caused this Strategic Alliance Agreement to be executed by their duly authorized officers, effective as of the Effective Date.
             
    ATHERSYS, INC.    
 
           
 
  By:        
 
           
 
  Name:        
 
           
 
  Title:        
 
           
 
           
    ANGIOTECH PHARMACEUTICALS, INC.    
 
           
 
  By:        
 
           
 
  Name:        
 
           
 
  Title:        
 
           
[Signature page to Strategic Alliance Agreement]

 


 

Schedule 1.13
Cost Definitions
1.   Clinical Development Costs ” means, with respect to each Clinical Development Plan, all of the external and internal costs and expenses (including applicable overhead costs and expenses, including applicable general and administrative expenses, but excluding any Commercialization Costs and Commercial Manufacturing Costs) incurred or paid by a Party and its Affiliates in connection with the clinical development of Clinical Development Candidates or Cell Therapy Products, including, without limitation, the following costs to the extent such costs are actually incurred by a Party, accounted for in accordance with U.S. GAAP as consistently applied by such Party and attributable to the activities assigned to it under the Clinical Development Plan (except to the extent such costs constitute Commercialization Costs or Commercial Manufacturing Costs):
  (a)   All direct costs of preparing and conducting clinical trials that is/are subject of the Clinical Development Plan, including all direct costs related to site recruitment, enrollment, project management, site management and monitoring, biostatistics, clinical event classification, medical communication, data management, outcome studies, regulatory submissions and compliance, safety surveillance, clinical monitoring and all Clinical Manufacturing Costs; and
 
  (b)   A reasonable allocation of indirect costs associated with the foregoing.
2.   Commercialization Costs ” means, with respect to each Cell Therapy Product, all of the external and internal costs and expenses (including applicable overhead costs and expenses, including applicable general and administrative expenses, but excluding any Clinical Development Costs and Commercial Manufacturing Costs) incurred or paid by Angiotech and its Affiliates in connection with the commercialization of Cell Therapy Products, including, without limitation, the following costs to the extent such costs are actually incurred by a Party, accounted for in accordance with U.S. GAAP as consistently applied by such Party and attributable to the promotion, marketing, advertising, sale, or distribution of the Cell Therapy Product and preparing and conducting Phase IV Studies:
  (a)   All direct costs of promoting, marketing, advertising and selling the Cell Therapy Product, including sales commissions, product labels, marketing brochures, graphic and media design, website modification and license fees (if any);
 
  (b)   All Third Party Payments; and
 
  (c)   A reasonable allocation of indirect costs associated with the foregoing;
 
      provided that any costs described above incurred or paid by Angiotech and its Affiliates in connection with the preparation for commercialization of a Clinical Development Candidate that Angiotech reasonably believes will obtain Regulatory Approval for at least one Cardiovascular Indication (and thereby become a “Cell Therapy Product” hereunder) shall also be deemed to be “Commercialization Costs”.

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3.   Manufacturing Costs ” means, with respect to each Clinical Development Candidate (the “ Clinical Manufacturing Costs ”) and Cell Therapy Product (the “ Commercial Manufacturing Costs ”), all of the external and internal costs and expenses (including applicable overhead costs and expenses, including applicable general and administrative expenses, but excluding any Clinical Development Costs) incurred or paid by Athersys and its Affiliates (or Angiotech and its Affiliates if Angiotech has acquired manufacturing rights hereunder) in connection with the manufacturing of Clinical Development Candidates or Cell Therapy Products (as applicable), including, without limitation, the following costs to the extent such costs are actually incurred by the manufacturing Party, accounted for in accordance with U.S. GAAP as consistently applied by the manufacturing Party and attributable to the manufacture and supply of the Clinical Development Candidate or Cell Therapy Product (as applicable) to Angiotech or any Third Party:
  (a)   All direct costs of manufacturing and supply the Clinical Development Candidate or Cell Therapy Product (as applicable), including all direct costs of raw materials, labor, license fees (if any), maintenance and repair of equipment used to manufacture the Clinical Development Candidate or Cell Therapy Product (as applicable), storage and packaging and shipping costs; and
 
  (b)   A reasonable allocation of indirect costs associated with the foregoing, including depreciation associated with the cost of capital for equipment used to manufacture the Clinical Development Candidate or Cell Therapy Product (as applicable).

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Schedule 1.14
Clinical Development Plans
[Each Clinical Development Plan to be developed by the Parties in accordance with the
Strategic Alliance Agreement and attached hereto]

 


 

Schedule 1.33
Patent Rights Related To MAPCs
[attached]

 


 

Schedule 1.45
Pre-Clinical Development Plans
[Each Pre-Clinical Development Plan to be developed by the Parties in accordance with the
Strategic Alliance Agreement and attached hereto]

 


 

Schedule 2.2
Equity Valuation
1.   For the purpose of any Athersys capital stock issued to Angiotech pursuant to this Strategic Alliance Agreement, the price per share of such Athersys capital stock shall be calculated as follows:
  (a)   If at the time of issuance Athersys common stock is publicly traded, the capital stock shall be Athersys common stock and the price per share of Athersys common stock shall be equal to (i) the Average Closing Price (as defined below) plus (ii) 12.5% of the Average Closing Price.
 
  (b)   If at the time of issuance Athersys common stock is not publicly traded, the capital stock shall be Athersys common stock and the price per share of Athersys common stock shall be equal to the price per share for the purchase of common stock during the last round of funding by Athersys from any Third Party financial investor plus 12.5% of such amount and.
2.   For purposes of this Schedule, the following terms shall have the meanings indicated below:
  (a)   Average Closing Price ” shall mean the arithmetic mean of the Closing Prices (as defined below) for the twenty (20) days immediately preceding the fifth trading day prior to the date of issuance.
 
  (b)   Closing Price ” shall mean the price per share of the last sale of Athersys common stock, as reported on the relevant national exchange on which the Athersys common stock is publicly traded, at the close of the trading day.

 


 

Schedule 4.1
Existing Third Party Agreement
[attached]

 


 

Schedule 7.3
Milestone Payments
1.   Upon first Successful Completion of a Phase II Study for a Clinical Development Candidate in the U.S. (or foreign equivalent trial) in any of the Cardiovascular Indications, one of the following shall occur:
  (a)   If both Athersys and Angiotech agree that such Clinical Development Candidate should proceed to a Phase III Study, then the following shall apply:
  (i)   Angiotech shall pay to Athersys a one-time milestone payment in cash equal to $[*]; and
 
  (ii)   Angiotech shall enter into a securities purchase agreement, in substantially the form of the Purchase Agreement (except for necessary adaptations for a securities purchase instead of a note purchase), pursuant to which Angiotech shall make a one-time purchase of $[*]of capital stock of Athersys, of the class and at the per share price determined in accordance with Schedule 2.2 , on the terms and conditions set forth therein.
  (b)   If both Athersys and Angiotech agree that an additional Phase II Study needs to be conducted for such Clinical Development Candidate, then the following shall apply:
  (i)   Angiotech shall pay to Athersys a one-time milestone payment in cash equal to $[*]; and
 
  (ii)   Upon next Successful Completion of a Phase II Study for any Clinical Development Candidate in any Cardiovascular Indication, and a mutual determination that such Clinical Development Candidate should proceed to a Phase III Study, Angiotech shall enter into a securities purchase agreement, in substantially the form of the Purchase Agreement (except for necessary adaptations for a securities purchase instead of a note purchase), pursuant to which Angiotech shall make a one-time purchase of $[*]of capital stock of Athersys, of the class and at the per share price determined in accordance with Schedule 2.2 , on the terms and conditions set forth therein.
  (c)   If Angiotech believes that the Clinical Development Candidate should proceed to a Phase III Study and Athersys does not agree with Angiotech then, if such disagreement persists after attempts at resolution by the Heads of Research and the Party’s President, CFO (or other designated executive level officer) pursuant to Section 3.7(b) , the following shall apply:
 
*   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.

- 1 -


 

  (i)   Angiotech shall pay to Athersys a one-time milestone payment in cash equal to $[*];
 
  (ii)   Athersys shall be deemed to have delivered an Opt-Out Notice with respect to such Clinical Development Candidate pursuant to ARTICLE VI and all such provisions in ARTICLE VI shall apply; and
 
  (iii)   Upon the next Successful Completion of a Phase II Study for any Clinical Development Candidate in any Cardiovascular Indication, and a mutual determination that such Clinical Development Candidate should proceed to a Phase III Study, Angiotech shall enter into a securities purchase agreement, in substantially the form of the Purchase Agreement (except for necessary adaptations for a securities purchase instead of a note purchase), pursuant to which Angiotech shall make a one-time purchase of $[*]of capital stock of Athersys, of the class and at the per share price determined in accordance with Schedule 2.2 , on the terms and conditions set forth therein.
  (d)   If Athersys believes that the Clinical Development Candidate should proceed to a Phase III Study and Angiotech does not agree with Athersys then, if such disagreement persists after attempts at resolution by the Heads of Research and the Party’s President, CFO (or other designated executive level officer) pursuant to Section 3.7(b) , the following shall apply:
  (i)   No milestone payment shall be paid by Angiotech to Athersys with respect to such Phase II Study;
 
  (ii)   Angiotech shall be deemed to have delivered an Opt-Out Notice with respect to such Clinical Development Candidate pursuant to ARTICLE VI and all such provisions in ARTICLE VI shall apply; and
 
  (iii)   Upon the next Successful Completion of a Phase II Study for any Clinical Development Candidate in any Cardiovascular Indication, and a mutual determination that such Clinical Development Candidate should proceed to a Phase III Study, the following shall apply:
  (A)   Angiotech shall pay to Athersys a one-time milestone payment in cash equal to $[*]; and
 
  (B)   Angiotech shall enter into a securities purchase agreement, in substantially the form of the Purchase Agreement (except for necessary adaptations for a securities purchase instead of a note purchase), pursuant to which Angiotech shall make a one-time purchase of $[*]of capital stock of Athersys, of the class and at the per share price determined in accordance with Schedule 2.2 , on the terms and conditions set forth therein.
 
*   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.

- 2 -


 

  (e)   If both Athersys and Angiotech agree that such Clinical Development Candidate should NOT proceed to a Phase III Study and that an additional Phase II should NOT be conducted for such Clinical Development Candidate, then the following shall apply:
  (i)   No milestone payment shall be paid by Angiotech to Athersys with respect to such Phase II Study; and
 
  (ii)   The provisions of this Schedule 7.3, Item 1 shall apply to future Phase II Studies with respect to other Clinical Development Candidates in any Cardiovascular Indications as if such prior Phase II Studies had not been conducted.
     For the avoidance of doubt, in no event shall Angiotech be obligated to pay to Athersys during the Term more than $[*]in the aggregate under this Schedule 7.3, Item 1.
2.   Upon the approval of the first NDA/BLA for the first Clinical Development Candidate in the U.S. in any of the Cardiovascular Indications, Angiotech shall pay to Athersys a one-time milestone payment in cash equal to $[*].
3.   Upon the approval of the first NDA/BLA equivalent application for the first Clinical Development Candidate in Europe for any of the Cardiovascular Indications, Angiotech shall pay to Athersys a one-time milestone payment in cash equal to $[*].
4.   For Net Sales (of all Cell Therapy Products in the aggregate on a worldwide basis) reaching $500,000,000.00, Angiotech shall pay to Athersys a one-time milestone payment in cash equal to $[*].
5.   For Net Sales (of all Cell Therapy Products in the aggregate on a worldwide basis) reaching $1,000,000,000.00, Angiotech shall pay to Athersys a one-time milestone payment in cash equal to $[*].
     For the avoidance of doubt, for purposes of this Schedule 7.3 and the milestone payment obligations described herein, “Cell Therapy Products” shall not include Sole Development Products, except as and to the extent specifically provided in Section 16.3(a) .
 
*   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission

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Schedule 7.4
Profit Sharing
1.   Profits ” means, with respect to any calendar quarter, the aggregate of all Net Sales of all Cell Therapy Products in such quarter minus the aggregate of all Commercial Manufacturing Costs and Commercialization Costs incurred in such quarter.
2.   Profits from the commercialization of a Cell Therapy Product, whether such calculation leads to a positive or negative number, will be split [*]% by Athersys and [*]% by Angiotech (subject to modification pursuant to Section 2.4(b) ) according to the following procedure:
  (a)   Within forty-five (45) following the end of each calendar quarter, Angiotech shall submit to Athersys a written report setting forth in reasonable detail:
  (i)   separately with respect to each Cell Therapy Product on a country by country basis, all Net Sales of Cell Therapy Products in the immediately preceding calendar quarter and the basis for such calculation; and
 
  (ii)   all Commercialization Costs in the immediately preceding calendar quarter and the basis for such calculation.
  (b)   Within forty-five (45) days following the end of each calendar quarter, Athersys shall submit to Angiotech a written report setting forth in reasonable detail all Commercial Manufacturing Costs for the immediately preceding calendar quarter.
 
  (c)   Within sixty (60) days following the end of each calendar quarter, Angiotech shall submit to Athersys a written report setting forth the calculation of Profits and the amount to be paid by one Party to the other Party to split Profits in accordance with this Schedule. The net amount payable by a Party shall be paid by Angiotech or Athersys, as the case may be, to the other Party within ten (10) business days after receipt of such written report, without regard to any dispute as to the amount to be paid thereunder. In the event of a dispute, the disputing Party shall provide written notice within such ten (10) business day period after receipt of the written report in question, specifying in detail such dispute. The Parties shall promptly thereafter meet and negotiate in good faith a resolution to such dispute. In the event that the Parties are unable to resolve such dispute within thirty (30) days after notice by the disputing Party, the CFOs of the Parties shall resolve such dispute.
 
*   Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission

 


 

Schedule 14.3(b)
Ownership or Liens, Charges or Encumbrances

 


 

Schedule 14.3(g)
Government Funding

 


 

Schedule 14.3(l)
Unauthorized Use, Infringement or Misappropriation of Intellectual Property

 


 

Exhibit A
Note Purchase Agreement

 


 

Exhibit B
License Agreement

 


 

Exhibit C
Sublicense Agreement

 

 

EXHIBIT 10.36
AMENDMENT No. 1 TO
CELL LINE COLLABORATION AND LICENSE AGREEMENT
THIS AMENDMENT NO. 1 (this “Amendment”), dated as of January 1, 2006 (the “Effective Date”), by and between Athersys, Inc, a Delaware corporation having its principal offices at 3201 Carnegie Avenue, Cleveland, Ohio 44115 (“Athersys”), and Bristol-Myers Squibb Company, a Delaware corporation having offices at Route 206 and Province Line Road, Princeton, New Jersey 08543 (“BMS”). Athersys and BMS may be referred to herein individually as a “Party” and collectively as the “Parties.”
RECITALS
     A. Athersys and BMS are parties to the Cell Line Collaboration and License Agreement, dated as of July 1, 2002 (the “Agreement”), whereby BMS has engaged Athersys to create a designated minimum number of cell lines over a three-year period using Athersys’ proprietary RAGE-VT technology, and to obtain license rights to use such cell lines for internal research, development and commercialization of pharmaceutical products (“Subject Matter”).
     B. The Parties desire to amend the Agreement to acknowledge that BMS has fulfilled its obligation to propose and accept a minimum number of RAGE VT cell lines under the Agreement.
     C. Concurrently with the execution of this Amendment, the Parties are entering into a new collaboration agreement (the “Extended Collaboration and License Agreement”) to provide for the creation of additional, new RAGE-VT cell lines by Athersys for BMS’ use, and the providing of such new cell lines will be governed by the new collaboration agreement.
NOW, THEREFORE, in consideration of the foregoing and the covenants and promises contained in this Agreement, the Parties agree as follows:
  1.   As of the Effective Date of this Amendment and upon execution of the Extended Collaboration and License Agreement, the Parties acknowledge and agree that BMS has fulfilled all of its obligations to nominate and accept a minimum number of Collaboration Cell Lines over the three (3) year period as set forth in Section 2.1(d) of the Agreement.
 
  2.   This Amendment and the Agreement constitute the entire agreement of the Parties with respect to the subject matter hereof and thereof and supersedes all prior agreements and undertakings, both written and oral, with respect to the subject matter hereof and thereof.
 
  3.   Except as specifically stated herein, all other terms and conditions of the Agreement remain unchanged, and any capitalized term which is not defined in

 


 

      this Amendment shall have the meaning ascribed to it in the Agreement. To the extent that any term of the Agreement conflicts with this Amendment , the terms of this Amendment shall apply.
  4.   This Amendment may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and to this Amendment were upon the same instrument.
 
  5.   This Amendment shall be construed in accordance with and governed by the internal substantive law of the State of New York, without giving effect to its conflict of laws rules and regulations.
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment by their duly authorized representatives.
                             
ATHERSYS, INC.       BRISTOL-MYERS SQUIBB COMPANY    
 
                           
By:
              By:            
                     
 
  Name:               Name:        
 
   Title:  
 
          Title:  
 
   
Date:
     
 
      Date:      
 
   
                     

 

 

EXHIBIT 16.1
Letterhead of S. W. Hatfield, CPA
June 11, 2007
U. S. Securities and Exchange Commission
100 F Street, NE
Washington, DC 20549-2001
Gentlemen:
On June 11, 2007, this Firm received a draft copy of a Form 8-K to be filed by BTHC VI, Inc. (Company) (SEC File #000-52108, CIK #1368148) reporting an Item 4.01 — Change in Registrant’s Certifying Accountant.
We have no disagreements with the statements made in the draft Form 8-K, Item 4.01 disclosures provided to us.
Yours truly,
/s/ S. W. Hatfield, CPA
S. W. Hatfield, CPA
Dallas, Texas
 

EXHIBIT 21.1
SUBSIDIARIES OF BHTC VI, INC.
         
Name of Subsidiary
  Jurisdiction
 
 
       
Athersys, Inc.
  Delaware
Advanced Biotherapeutics, Inc.
  Delaware
Athersys Limited
  United Kingdom
ReGenesys LLC
  Delaware
ReGenesys BVBA
  Belgium
Athersys-Singapore PTE, LTD
  Singapore
Oculus Pharmaceuticals, Inc. (50% ownership)
  Delaware

 

Exhibit 99.1
Consolidated Financial Statements
Athersys, Inc.
Years Ended December 31, 2004, 2005, and 2006

 


 

Athersys, Inc.
Consolidated Financial Statements
Years Ended December 31, 2004, 2005, and 2006
Contents
         
Report of Independent Registered Public Accounting Firm
    1  
 
       
Consolidated Financial Statements
       
 
       
Consolidated Balance Sheets
    2  
Consolidated Statements of Operations
    3  
Consolidated Statements of Changes in Stockholders’ Equity (Deficit)
    4  
Consolidated Statements of Cash Flows
    5  
Notes to Consolidated Financial Statements
    6  

 


 

Report of Independent Registered Public Accounting Firm
The Board of Directors and Stockholders
Athersys, Inc.
We have audited the accompanying consolidated balance sheets of Athersys, Inc. as of December 31, 2005 and 2006, and the related consolidated statements of operations, changes in stockholders’ equity (deficit), and cash flows for each of the three years in the period ended December 31, 2006. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. We were not engaged to perform an audit of the Company’s internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Athersys, Inc. at December 31, 2005 and 2006, and the consolidated results of its operations and its cash flows for each of the three years in the period ended December 31, 2006, in conformity with U.S. generally accepted accounting principles.
The accompanying financial statements have been prepared assuming that Athersys, Inc. will continue as a going concern. As more fully described in Note A, the Company has incurred recurring operating losses from its inception and lacks sufficient liquidity to fund its operations. These conditions raise substantial doubt about the Company’s ability to continue as a going concern. Management’s plans in regard to these matters are also described in Note A. The financial statements do not include any adjustments to reflect the possible future effects on the recoverability and classification of assets or the amounts and classification of liabilities that may result from the outcome of this uncertainty.
As discussed in Note A to the consolidated financial statements, the Company adopted the provisions of Statement of Financial Accounting Standards No. 123(R), Share-Based Payment , effective January 1, 2006.
As discussed in Note I to the consolidated financial statements, the Company restated the consolidated balance sheet at December 31, 2005, and the statement of changes in stockholders’ equity (deficit) for the year ended December 31, 2005.
/s/ Ernst & Young LLP
Cleveland, Ohio
March 22, 2007

1


 

Athersys, Inc.
Consolidated Balance Sheets
(In Thousands)
                 
    December 31
    2005   2006
     
    (Restated)        
Assets
               
Current assets:
               
Cash and cash equivalents
  $ 1,080     $ 1,528  
Available for sale securities
    3,481        
Accounts receivable
    628       872  
Prepaid expenses and other
    375       361  
     
Total current assets
    5,564       2,761  
 
               
Notes receivable from related parties
    682       562  
Equipment, net
    954       509  
Accounts receivable, net
          117  
Equity investment and other assets
    109       317  
     
Total assets
  $ 7,309     $ 4,266  
     
 
               
Liabilities and stockholders’ equity (deficit)
               
Current liabilities:
               
Accounts payable
  $ 365     $ 898  
Accrued compensation and related benefits
    119       423  
Accrued expenses and other
    721       1,214  
Current portion of long-term debt
    2,531       3,332  
     
Total current liabilities
    3,736       5,867  
 
               
Long-term debt
    4,684       1,800  
Convertible promissory notes, net
          7,510  
Accrued interest
          214  
Accrued dividends
    7,473       8,882  
 
               
Stockholders’ equity:
               
Convertible preferred stock, at stated value; 13,432,350 shares authorized; 10,168,231 shares issued and outstanding at December 31, 2005 and 2006; aggregate liquidation preference of $68,187 at December 31, 2005 and 2006
    68,301       68,301  
Common stock, $.01 par value; 40,000,000 shares authorized; 8,117,926 and 8,196,850 shares issued and outstanding at December 31, 2005 and 2006, respectively
    82       83  
Additional paid-in capital
    55,097       53,412  
Treasury stock, at cost
    (250 )     (250 )
Accumulated other comprehensive loss
    (17 )      
Unearned compensation — common stock options
    (809 )      
Accumulated deficit
    (130,988 )     (141,553 )
     
Total stockholders’ equity (deficit)
    (8,584 )     (20,007 )
     
Total liabilities and stockholders’ equity (deficit)
  $ 7,309     $ 4,266  
     
See accompanying notes.

2


 

Athersys, Inc.
Consolidated Statements of Operations
(In Thousands, Except Per Share Amounts)
                         
    Year Ended December 31
    2004   2005   2006
     
Revenues
                       
License fees
  $ 820     $ 763     $ 1,908  
Grant revenue
    2,318       2,833       1,817  
     
Total revenues
    3,138       3,596       3,725  
 
                       
Costs and expenses
                       
Research and development (including stock compensation expense of $2,008, $801, and $276 in 2004, 2005, and 2006, respectively)
    12,415       12,578       9,741  
General and administrative (including stock compensation expense of $1,481, $657, and $183 in 2004, 2005, and 2006, respectively)
    4,717       3,755       3,347  
Depreciation
    1,297       982       528  
Restructuring costs (including stock compensation expense of $56 and $(128) in 2004 and 2005, respectively)
    107       251        
     
Total costs and expenses
    18,536       17,566       13,616  
     
Loss from operations
    (15,398 )     (13,970 )     (9,891 )
Other income
          18       91  
Equity in earnings of unconsolidated affiliate
                117  
Interest income
    317       317       119  
Interest expense
    (73 )     (964 )     (1,047 )
Accretion of premium on convertible debt
                (260 )
     
Loss before cumulative effect of change in accounting principle
    (15,154 )     (14,599 )     (10,871 )
Cumulative effect of change in accounting principle
                306  
     
Net loss
  $ (15,154 )   $ (14,599 )   $ (10,565 )
     
 
                       
Basic and diluted net loss per common share
                       
Loss before cumulative effect of change in accounting principle
  $ (1.86 )   $ (1.79 )   $ (1.33 )
Cumulative effect of change in accounting principle
                0.04  
     
Net loss
  $ (1.86 )   $ (1.79 )   $ (1.29 )
     
 
                       
Weighted average shares outstanding, basic and diluted
    8,152       8,137       8,179  
See accompanying notes.

3


 

Athersys, Inc.
Consolidated Statements of Changes in Stockholders’ Equity (Deficit)
(In Thousands)
                                                                                 
    Convertible                                   Accumulated   Unearned           Total
    Preferred Stock   Common Stock   Additional           Other   Compensation—           Stockholders’
    Number   Stated   Number   Par   Paid-in   Treasury   Comprehensive   Common Stock   Accumulated   Equity
    of Shares   Value   of Shares   Value   Capital   Stock   Income (Loss)   Options   Deficit   (Deficit)
     
Balance at January 1, 2004
    11,785     $ 68,301       8,149     $ 81     $ 54,639     $     $ 35     $ (6,870 )   $ (101,235 )     14,951  
Issuance of common stock, net
                6       1       14                               15  
Issuance of common stock warrant
                            189                               189  
Unearned compensation — common stock options
                            9                   (9 )            
Amortization of unearned compensation
                                              3,489             3,489  
Compensation expense related to options issued to employees and consultants
                            56                               56  
Forfeitures of common stock options
                            (833 )                 833              
Accrued dividends — Class C preferred
                            (1,208 )                             (1,208 )
Accrued dividends — Class E preferred
                            (1,117 )                             (1,117 )
Net loss
                                                    (15,154 )     (15,154 )
Unrealized loss on available for sale securities
                                        (70 )                 (70 )
     
Total comprehensive loss
                                                                            (15,224 )
     
Balance at December 31, 2004
    11,785       68,301       8,155       82       51,749             (35 )     (2,557 )     (116,389 )     1,151  
Issuance of common stock, net
                2             3                               3  
Repurchase of common and preferred stock
    (1,617 )           (39 )                 (250 )                       (250 )
Amortization of unearned compensation
                                              1,330             1,330  
Forfeitures of common stock options
                            (418 )                 418              
Accrued dividends — Class C preferred
                            (1,306 )                             (1,306 )
Accrued dividends — Class E preferred
                            (947 )                             (947 )
Reversal of Class E accrued preferred dividends
                            6,016                               6,016  
Net loss
                                                    (14,599 )     (14,599 )
Unrealized loss on available for sale securities
                                        18                   18  
     
Total comprehensive loss
                                                                            (14,581 )
     
Balance at December 31, 2005 (Restated)
    10,168       68,301       8,118       82       55,097       (250 )     (17 )     (809 )     (130,988 )     (8,584 )
Issuance of common stock
                79       1       129                               130  
Issuance of common stock warrant
                            250                               250  
Adoption of FAS 123R
                            (809 )                 809              
Stock based compensation
                            153                               153  
Accrued dividends — Class C preferred
                            (1,408 )                             (1,408 )
Net loss
                                                    (10,565 )     (10,565 )
Unrealized loss on available for sale securities
                                        17                   17  
     
Total comprehensive loss
                                                                            (10,548 )
     
Balance at December 31, 2006
    10,168     $ 68,301       8,197     $ 83     $ 53,412     $ (250 )   $     $     $ (141,553 )   $ (20,007 )
     
See accompanying notes.

4


 

Athersys, Inc.
Consolidated Statements of Cash Flows
(In Thousands)
                         
    Year Ended December 31
    2004   2005   2006
     
Operating activities
                       
Net loss
  $ (15,154 )   $ (14,599 )   $ (10,565 )
Adjustments to reconcile net loss to net cash used in operating activities:
                       
Depreciation
    1,297       982       528  
Fixed asset impairment
          87        
Gain on sale of equipment
          (18 )      
Equity in earnings of unconsolidated affiliate
                (117 )
Accretion of premium on convertible debt
                260  
Forgiveness of note receivable from related party
                122  
Compensation — common stock options
    3,545       1,330       459  
Income from cumulative effect of change in accounting principle
                (306 )
Amortization of premium (discount) on available for sale securities and other
    125       (44 )     15  
Changes in operating assets and liabilities:
                       
Accounts receivable
    (119 )     22       (361 )
Prepaid expenses and other assets
    (65 )     10       21  
Accounts payable and accrued expenses
    (1,297 )     112       1,546  
     
Net cash used in operating activities
    (11,668 )     (12,118 )     (8,398 )
 
                       
Investing activities
                       
Purchase of available for sale securities
    (12,238 )     (5,006 )     (3,426 )
Maturities of available for sale securities
    18,809       15,563       6,932  
Proceeds from sale of equipment
          23        
Purchases of equipment
    (173 )     (239 )     (83 )
     
Net cash provided by investing activities
    6,398       10,341       3,423  
 
                       
Financing activities
                       
Principal payments on debt
    (4,148 )     (199 )     (2,083 )
Proceeds from long-term debt
    7,500              
Proceeds from convertible promissory notes and warrants
                7,500  
Deferred financing costs
    (44 )            
Cash released from collateral for debt
    670              
Repurchase of common and preferred stock held in treasury
          (250 )      
Proceeds from issuance of common stock, net
    15       3       6  
     
Net cash (used in) provided by financing activities
    3,993       (446 )     5,423  
     
 
                       
Increase (decrease) in cash and cash equivalents
    (1,277 )     (2,223 )     448  
Cash and cash equivalents at beginning of year
    4,580       3,303       1,080  
     
Cash and cash equivalents at end of year
  $ 3,303     $ 1,080     $ 1,528  
     
See accompanying notes.

5


 

Athersys, Inc.
Notes to Consolidated Financial Statements
Years Ended December 31, 2004, 2005, and 2006
A. Background and Accounting Policies
Background
Athersys, Inc. (Athersys or the Company) is a biopharmaceutical company engaged in the development and commercialization of therapeutic products in one business segment. Operations consist primarily of research and product development activities. Prior to 2005, the Company had been considered in the development stage.
The accompanying consolidated financial statements have been prepared on the basis that the Company will continue as a going concern. Since inception, the Company has incurred annual losses and negative cash flows from operations and has an accumulated deficit at December 31, 2006. The Company expects to incur additional operating losses over the next several years. The Company has limited liquidity and capital resources and must obtain significant additional capital resources in order to sustain its product development efforts, including preclinical and clinical testing of anticipated products, pursuit of regulatory approval, and establishment of production capabilities, and meet other working capital requirements. The Company relies on proceeds from equity and debt offerings, proceeds from the transfer or sale of intellectual property rights, grant proceeds, and funding from collaborative arrangements to fund its operations. The Company is currently pursuing multiple potential collaborative and fundraising opportunities. If the Company exhausts its liquid assets and is unable to obtain adequate funding, it may be unable to continue operations and meet contractual obligations. The financial statements do not include any adjustments to reflect the possible future effects on the recoverability and classification of assets or the amounts and classification of liabilities that may result from the outcome of this uncertainty.
Principles of Consolidation
The consolidated financial statements include the accounts and results of operations of the Company and its wholly owned subsidiaries. All intercompany accounts and transactions have been eliminated in consolidation. Investments in joint ventures and collaborations are accounted for using the equity method when the Company does not control the investee but has the ability to exercise significant influence over the investee’s operations and financial policies.

6


 

Athersys, Inc.
Notes to Consolidated Financial Statements (continued)
A. Background and Accounting Policies (continued)
Revenue Recognition
Revenue is recognized over the period that the Company performs its required activities under the terms of various agreements. Revenue from transactions that do not require future performance obligations from the Company is recognized as contemplated in the agreements, typically upon acceptance and when collectibility is reasonably assured. Revenue resulting from the achievement of milestone events stipulated in the agreements is recognized when the milestone is achieved.
Revenue from grants consists primarily of funding under cost reimbursement programs from federal and state sources for qualified research and development activities performed by the Company. Revenue from grants is recorded when earned under the terms of the agreements.
Cash and Cash Equivalents
The Company considers all highly liquid investments with a maturity of three months or less, when purchased, to be cash equivalents. Cash equivalents are primarily invested in money market funds. The carrying amount of the Company’s cash equivalents approximates fair value due to the short maturity of the investments.
Research and Development
Research and development expenditures, including direct and allocated overhead expenses, are charged to expense as incurred.
Royalties
The Company may be required to remit royalty payments based on product sales to certain parties under license agreements. The Company has not paid any such royalties for the three-year period ended December 31, 2006.

7


 

Athersys, Inc.
Notes to Consolidated Financial Statements (continued)
A. Background and Accounting Policies (continued)
Financial Instruments
Management determines the appropriate classification of investment securities at the time of purchase and reevaluates such designation as of each balance sheet date. The Company’s investments typically consist primarily of U.S. government obligations, all of which are classified as available-for-sale. Available-for-sale securities are carried at fair value, with the unrealized gains and losses, net of tax, reported as a separate component of stockholder’s equity. The amortized cost of the debt securities is adjusted for amortization of premiums and accretion of discounts to maturity. Such amortization or accretion is included in interest income. Realized gains and losses on available-for-sale securities are included in interest income. The cost of securities sold is based on the specific identification method. Interest earned on securities classified as available-for-sale is included in interest income.
Long-Lived Assets
Equipment is stated at acquired cost less accumulated depreciation. Laboratory and office equipment are depreciated on the straight-line basis over the estimated useful lives (three to seven years).
Impairment of long-lived assets is recognized when events or changes in circumstances indicate that the carrying amount of the asset or related group of assets may not be recoverable. If the expected future undiscounted cash flows are less than the carrying amount of the asset, an impairment loss is recognized at that time. Measurement of impairment may be based upon appraisal, market value of similar assets or discounted cash flows. No such impairment losses were recorded in 2004 or 2006. See Note B regarding an impairment loss recorded in 2005.
Patent Costs and Rights
Patent costs and rights are expensed as incurred. As of December 31, 2006, the Company has filed for broad intellectual property protection on its proprietary technologies. The Company currently has numerous U.S. patent applications and corresponding international patent applications related to its technologies, as well as many issued U.S. and international patents.

8


 

Athersys, Inc.
Notes to Consolidated Financial Statements (continued)
A. Background and Accounting Policies (continued)
Comprehensive Loss
Unrealized gains and losses on the Company’s available for sale securities is the only component of total comprehensive income or loss. Total comprehensive income or loss has been disclosed in the consolidated statement of changes in stockholders’ equity.
Concentration of Credit Risk
Accounts receivable are subject to concentration of credit risk due to the absence of a large number of customers. At December 31, 2006 and 2005, one customer accounted for 78% and 15% of accounts receivables, respectively. The Company does not require collateral from its customers.
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes. Actual results could differ from those estimates.
Stock-Based Compensation
In December 2004, FASB Statement No. 123(R), Share-Based Payments, was issued as a revision to FASB Statement No. 123, Accounting for Stock Options . The new statement is required to be adopted by nonpublic companies in January 2006. Prior to January 1, 2006, the Company elected to account for its stock-based compensation in accordance with the intrinsic value method as described in the provisions of Accounting Principles Board Opinion No. 25, Accounting for Stock Issued to Employees , and related interpretations, as permitted by Statement of Financial Accounting Standards SFAS No. 123. As such, compensation was recorded in 2004 and 2005 on the date of issuance or grant as the excess of the current estimated market value of the underlying stock over the purchase or exercise price of the stock option. Any unearned compensation was recognized over the respective vesting periods of the equity instruments, if any, using the graded vesting method as prescribed by Financial Accounting Standards Board Interpretation No. 28.

9


 

Athersys, Inc.
Notes to Consolidated Financial Statements (continued)
A. Background and Accounting Policies (continued)
Effective January 1, 2006, the Company adopted the fair value recognition provisions of FASB Statement No. 123(R), Share-Based Payment , using the modified-prospective-transition method. Under that transition method, compensation cost recognized in 2006 includes: (a) compensation cost for all share-based payments granted prior to, but not yet vested as of January 1, 2006, based on the grant date fair value estimated in accordance with the original provisions of Statement 123, and (b) compensation cost for all share-based payments granted subsequent to January 1, 2006, based on the grant-date fair value estimated in accordance with the provisions of Statement 123(R). Results for prior periods have not been restated. For some of the awards granted prior to the adoption of SFAS 123R, the Company recognized compensation expense on the accelerated method. For awards granted subsequent to adoption of SFAS 123R, the Company will recognize expense on the straight line method.
SFAS No. 123R requires the Company to estimate forfeitures in calculating the expense relating to share-based compensation, while previously the Company was permitted to recognize forfeitures as an expense reduction upon occurrence. The adjustment to apply estimated forfeitures to previously recognized share-based compensation was accounted for as a cumulative effect of a change in accounting principle at January 1, 2006, and reduced net loss by $305,587 for the year ended December 31, 2006. As a result of adopting SFAS No. 123R, the Company’s loss from operations for the year ended December 31, 2006 increased $197,100.
The following table illustrates the effect on net income if the Company had applied the fair value recognition provisions of Statement 123 to options granted under the Company’s stock option plans in all periods presented prior to the adoption of Statement 123(R). For purposes of this pro forma disclosure, the value of the options is estimated using a Black-Scholes-Merton option-pricing formula and amortized to expense over the options’ vesting periods (in thousands):
                 
    Year Ended December 31
    2004   2005
     
Net loss:
               
As reported
  $ (15,154 )   $ (14,599 )
Total stock compensation expense included in net loss, as reported
    3,384       1,260  
Total stock compensation expense under the fair value method for all awards
    (3,030 )     (2,312 )
     
Pro forma net loss
  $ (14,800 )   $ (15,651 )
     
 
               
Net loss per common share:
               
Basic and diluted — as reported
  $ (1.86 )   $ (1.79 )
Basic and diluted — pro forma
  $ (1.82 )   $ (1.92 )

10


 

Athersys, Inc.
Notes to Consolidated Financial Statements (continued)
A. Background and Accounting Policies (continued)
The following weighted-average input assumptions were used in determining the fair value:
                         
    December 31
    2004   2005   2006
     
 
                       
Volatility
    51.9 %     49.8 %     53.6 %
Risk-free interest rate
    3.4 %     3.7 %     4.8 %
Expected life of option
  4 years   4 years   4 years
Expected dividend yield
    0.0 %     0.0 %     0.0 %
Net Loss per Share
Basic and diluted net loss per share has been computed using the weighted-average number of common stock outstanding during the period. During the three years ended December 31, 2006, the Company had outstanding certain options, warrants, convertible debt and convertible preferred stock which have not been used in the calculation of diluted net loss per share because, to do so would be anti-dilutive. As such, the numerator and the denominator used in computing both basic and diluted net loss per share are equal.
For the years ended December 31, 2004, 2005 and 2006, outstanding stock options to purchase 4.2 million, 3.9 million and 3.2 million shares of commons stock, respectively, were not included in computing diluted earnings per share because their effects were anti-dilutive.
For the years ended December 31, 2004, 2005 and 2006, warrants to purchase common stock of 1.1 million, 715,000 and 715,000, respectively, and warrants that were issuable but not outstanding, were not included in computing diluted earnings per share because their effects were anti-dilutive.
For the years ended December 31, 2004, 2005 and 2006, 12.4 million, 10.2 million and 10.2 million shares, respectively, issuable upon conversion of the convertible preferred stock, were not included in the computation of diluted earnings per share because to do so would have been anti-dilutive.
For the year ended December 31, 2006, an estimated 4.6 million shares issuable upon conversion of the convertible promissory notes, were not included in the computation of diluted earnings per share because to do so would have been anti-dilutive.

11


 

Athersys, Inc.
Notes to Consolidated Financial Statements (continued)
B. Equipment
Equipment consists of (in thousands):
                 
    December 31
    2005   2006
     
 
               
Laboratory equipment
  $ 5,755     $ 5,825  
Office equipment and leasehold improvements
    3,321       3,334  
     
 
    9,076       9,159  
Accumulated depreciation
    (8,122 )     (8,650 )
     
 
  $ 954     $ 509  
     
In connection with a restructuring in 2005 (also see Note J), the Company reduced the carrying value of certain laboratory equipment to its realizable value, resulting in an impairment loss of $87,000. The fair value of the equipment was determined based on prices for similar assets. The impairment loss is included in restructuring costs in the statement of operations.
C. Notes Receivable From Related Parties
The Company had a note receivable from an officer with an unpaid principal and interest balance of $122,000 in connection with a loan made in 2002, which was forgiven in 2006. Also, the Company has a note receivable from the former owner of MCL LLC (MCL) with an unpaid principal balance of $511,000 as a result of the merger between the Company and MCL in November 2003 (see Note L). Under the terms of the note, interest accrued on the unpaid principal at approximately 5% per annum for the first two years of the note, at which time the accrual of interest is dependent on certain events at the Company, as defined in the note agreement. In November 2005, interest on the note ceased to accrue. Principal and accrued interest is repayable (i) out of a percentage of proceeds, as defined, from the sale of shares of the Company’s stock held by the note holder as he elects to sell his shares, and (ii) out of a percentage of a milestone that may be due to the holder, as defined, which the Company has the right to offset as repayment on the note. If the proceeds that are subject to repayment of the note are insufficient to repay the principal and interest in full, then any remaining balance due will be forgiven by the Company after the holder has sold all shares of the Company’s stock and the holder is no longer entitled to any milestone consideration related to the merger.

12


 

Athersys, Inc.
Notes to Consolidated Financial Statements (continued)
D. Financial Instruments
Investments
The following is a summary of available for sale securities (in thousands):
                                 
            Gross   Gross   Estimated
    Amortized   Unrealized   Unrealized   Fair
    Cost   Losses   Gains   Value
     
December 31, 2005:
                               
U.S. government obligations
  $ 3,498     $ (17 )   $     $ 3,481  
     
The Company had no significant realized gains or losses on the sale of available for sale securities for any of the periods presented. The net unrealized losses on available for sale securities is included as a component of accumulated other comprehensive income or loss in stockholders’ equity and was $(17,000) as of December 31, 2005.
The amortized cost of available for sale securities approximated fair value at December 31, 2005, and all maturities were due in one year or less. Actual maturities may differ from contractual maturities because the issuers of the securities may have the right to repay the obligations without prepayment penalties.
Financing Arrangements
The Company leases office and laboratory space under an operating lease. The Company entered into the lease in April 1, 2000, and a letter agreement in 2003, which together provide the Company options to renew the lease in six-month increments through March 2009 at the initial rental rate. The Company has executed its option to renew through September 2007. Rent expense for the facility was approximately $267,000 in each of 2004, 2005, and 2006. The future annual minimum lease commitment at December 31, 2006, is approximately $200,000 for 2007.
Long-Term Debt
A summary of the Company’s long-term debt outstanding is as follows (in thousands):
                 
    December 31
    2005   2006
     
 
               
Notes payable to lenders
  $ 7,215     $ 5,132  
Less — current portion
    2,531       3,332  
     
 
  $ 4,684     $ 1,800  
     

13


 

Athersys, Inc.
Notes to Consolidated Financial Statements (continued)
D. Financial Instruments (continued)
In November 2004, the Company entered into a $7,500,000 note payable to lenders, the proceeds of which are unrestricted and used for general corporate purposes. The notes are payable in 30 monthly payments after the initial interest-only period that expired December 1, 2005, with a fixed interest rate of 13% and a maturity date of June 1, 2008. A terminal payment of $487,500 (6.5% of the borrowings) is due June 1, 2008. The debt has no financial covenants, and is secured by substantially all of the Company’s assets. Intellectual property, however, was initially subject only to a negative pledge with an automatic spring lien available to the lenders in the event the cash balance fell below a defined threshold. The spring lien is in effect starting February 2006, in accordance with the terms of the agreement. The lien can be released in accordance with the agreement upon the achievement of certain levels of financing.
Deferred financing costs of $44,000 were capitalized in 2004 in connection with the note, which are being amortized over the term of the note using the effective interest method. As of December 31, 2006 and 2005, the unamortized deferred financing costs were $9,000 and $24,000, respectively.
The lenders have the right to receive a milestone payment of $2,250,000 upon the Company’s initial public offering, sale, merger, or dissolution, as defined. The milestone is payable in cash; however, if the milestone payment relates to an initial public offering, the Company may elect to pay 75% of such milestone in common stock at the per share public offering price. No amounts have been recorded in relation to the milestone as of December 31, 2006.
The lenders also have the right to receive warrants upon the Company’s initial public offering, sale, merger, or next financing event with financial investors. The warrants will be issued in an amount equal to 7% of loans advanced, and will be exercisable for the type of equity instrument issued in the financing event (or common stock if initial public offering, sale or merger) with an exercise price equal to the price per share in the financing. In connection with the 2006 loan amendment, the lenders also have the right to receive additional warrants equal to 50% of the two deferred principal payments, with the same terms as the initial warrant rights. No warrants were issued as of December 31, 2006.
Fair value of the Company’s long-term debt at December 31, 2006, is not determinable due to lack of marketability of the fixed-rate debt. Interest expense is representative of cash paid for the years ended December 31, 2004 and 2005, and the Company paid interest expense of $832,000 during the year ended December 31, 2006.

14


 

Athersys, Inc.
Notes to Consolidated Financial Statements (continued)
D. Financial Instruments (continued)
In September 2006, the loan was amended to provide for a potential deferral of four monthly principal payments. Two such principal payments were deferred, and were subsequently repaid along with accumulated interest in January 2007. The amortization of the remaining loan balance is based on the original terms and was not adjusted as a result of the amendment.
The scheduled maturities of long-term debt are as follows (in thousands):
         
2007
  $ 3,332  
2008
    1,800  
 
     
 
  $ 5,132  
 
     
E. Convertible Notes
In 2006, the Company entered into a co-development collaboration with a pharmaceutical company. The Company issued a $5 million convertible promissory note to the collaborator at the inception of the program, which was followed by the issuance of an additional convertible promissory note of $5 million in January 2007 upon the achievement of certain milestones. The notes bear interest at 5%, have a 6-year term, are unsecured, and are subordinated to the Company’s long-term secured debt. The notes are convertible into shares of stock of the same class as issued in the Company’s next bona fide equity financing, as defined, at a conversion price of 110% of the price per share in the bona fide equity financing. The notes, if not converted, are repayable with accrued interest at maturity.
Also in connection with the collaboration, the Company may receive future proceeds in the form of equity investments and cash payments based upon the successful achievement of specified clinical development and commercialization milestones.
Also in 2006, the Company completed a bridge financing of $2.5 million in the form of convertible promissory notes. The notes were issued primarily to existing stockholders of the Company. The notes bear interest at 10%, have a 3-year term, and are secured by all the assets of the Company (subordinated to the Company’s secured long-term debt). The notes are convertible into shares of stock of the same class as issued in the Company’s next bona fide equity financing, as defined, at a conversion price equal to the price per share in the bona fide equity financing. The notes, if not converted, are repayable with accrued interest at maturity, plus a repayment fee of 200% of the outstanding principal. Of the total amount due under the bridge financing at December 31, 2006, $205,000 is due to three members of management.

15


 

Athersys, Inc.
Notes to Consolidated Financial Statements (continued)
E. Convertible Notes (continued)
The bridge investors also received warrants in connection with the bridge financing. The warrants are exercisable for shares of common stock only upon a restructuring of the Company’s capital stock in connection with a bona fide financing. The number of shares that can be purchased under the warrants are based on a formula related to the pre-money value of the Company, as defined. The exercise price of the warrants is $0.01 per share. The Company allocated $250,000 of the purchase price of the debt to the warrants based on the relative fair value of the notes and the warrants.
The Company has computed a premium on the debt in the amount of $5,250,000 due upon redemption, which is being accreted over the term of the notes using the effective interest method.
F. Income Taxes
At December 31, 2006, the Company had net operating loss and research and development tax credit carry forwards of approximately $109,909,000 and $5,759,000, respectively, for income tax purposes. Such losses and credits may be used to reduce future taxable income and tax liabilities and expire at various dates between 2013 and 2027.
Significant components of the Company’s deferred tax assets are as follows (in thousands):
                 
    December 31
    2005   2006
     
 
               
Net operating loss carryforwards
  $ 31,160     $ 37,369  
Research and development credit carryforwards
    5,132       5,759  
Compensation expense
    4,224       4,275  
Equity in loss of joint ventures
    3,077        
Other
    381       568  
     
Total deferred tax assets
    43,974       47,971  
Valuation allowance for deferred tax assets
    (43,974 )     (47,971 )
     
Net deferred tax assets
  $     $  
     
Because of the Company’s cumulative losses, the deferred tax assets have been fully offset by a valuation allowance. The Company has not paid income taxes for the three-year period ended December 31, 2006.

16


 

Athersys, Inc.
Notes to Consolidated Financial Statements (continued)
G. Capitalization
In 2004, the Company issued a warrant to purchase 19,500 shares of the Company’s common stock at $15.60 per share related to consulting services provided in 2003. In January 2007, the warrant was repurchased and cancelled by the Company for a nominal fee.
In 2005, the Company purchased shares of the Company’s common stock, Class F Convertible Preferred stock and Class A Convertible Preferred Stock from a stockholder, and the shares are held in treasury at December 31, 2005 and 2006.
Also see Note D regarding warrants related to the Company’s long-term debt, and Note E regarding warrants issued in connection with a bridge financing.
The following shares of common stock were reserved for future issuance (in thousands):
                 
    December 31
    2005   2006
     
Stock option plans
    7,453       7,720  
Conversion of Class A, B, C, D, F, and G preferred stock
    10,763       10,751  
Conversion of Blank Check preferred stock
    250       250  
Warrants to purchase common stock
    715       715  
     
Subtotal
    19,181       19,436  
     
 
               
Conversion of notes issued in connection with collaboration
          Note E
Conversion of notes issued in connection with bridge financing
          Note E
Warrants issuable to lenders related to long-term debt
          Note D
Warrants issued to investors in bridge financing
          Note E

17


 

Athersys, Inc.
Notes to Consolidated Financial Statements (continued)
H. Joint Ventures
Athersys owns 50.2% of Oculus Pharmaceuticals, Inc. (Oculus) related to a 2001 joint venture. Athersys accounts for its investment in Oculus under the equity method due to significant minority investor rights (i.e., “substantive participating rights,” as defined by EITF 96-16) retained by the other investors. In 2006, a milestone was achieved and Athersys received $100,000 of stock-based proceeds in another company related to its investment in Oculus, which is included in ‘other income’ on the Company’s 2006 statement of operations.
Also in connection with the milestone achievement in 2006, Oculus received stock based proceeds in another company in the amount of $260,000. Athersys recognized approximately $117,000 as its share of the Oculus net income, after recapturing prior losses in excess of the Company’s investment in and advances to the joint venture. Consistent with its wind-up strategy, Oculus will remain in existence as a dormant entity only as long as it is necessary to serve as a pass through of any further milestone-based consideration and final distribution to its remaining shareholders. As of December 31, 2005 and 2006, Oculus had no significant assets, liabilities, stockholders’ equity or results of operations, other than the milestone proceeds in 2006 as described above.
In 1999, the Company entered into an agreement to establish a joint venture with a pharmaceutical company. The joint venture had no significant assets, liabilities, stockholders’ equity or results of operations as of December 31, 2005 and 2006. In November 2006, the Company terminated the related collaboration agreements with the pharmaceutical company and dissolved the joint venture effective January 2007. There were no significant costs or proceeds related to this dissolution.
I. Convertible Preferred Stock
Each share of the Company’s preferred stock, except for Class E Preferred Stock, is convertible at the stockholders’ option at any time into one share of Athersys common stock, subject to adjustment if the fair value of each share of common stock is less than the stated value of the convertible preferred shares, as defined. When and if declared, all classes of preferred stock, except for Class C Convertible Preferred Stock and Class E Preferred Stock, have a noncumulative dividend rate of 8% per annum. Dividends on the Class C Convertible Preferred Stock are cumulative at a rate of 8% per annum. Preferred stockholders, except for Class E Preferred Stockholders, are entitled to the number of votes they would have upon conversion of their preferred shares into common stock.

18


 

Athersys, Inc.
Notes to Consolidated Financial Statements (continued)
I. Convertible Preferred Stock (continued)
The Class E Preferred Stock has limited voting rights and liquidation rights. As of October 2005, the shares of Class E Preferred stock were no longer convertible into shares of common stock, and the 7% accrued dividend was no longer payable. As the dividend was no longer payable effective October 2005, the balance sheet and statement of changes in stockholders’ equity (deficit) at December 31, 2005, have been restated to reflect the reversal of accrued dividends that had been incorrectly recorded in the balance sheet. This restatement decreases previously reported accrued dividends by $6,016,000 and increases additional paid-in capital by $6,016,000. The Company terminated the inactive joint venture with the Class E Preferred stockholder in November 2006 (see Note H).
In the event of liquidation of the Company, holders of Class A, B, C, D, E, F, and G Preferred stock shall have liquidation preferences of $0.64, $1.25, $3.67, $1.35, $1,000, $12.00 and $1.85 per share, respectively, together with any declared, but unpaid, or accrued dividends over holders of common stock. The Class F Preferred Stock has a liquidation preference over the other classes of Preferred Stock.
The authorized, issued and outstanding Class A, B, C, D, E, F, and G shares of preferred stock were as follows (in thousands, except per share data) at December 31, 2005 and 2006:
                                 
            Shares     Issuance     Aggregate  
    Shares     Issued and     Price     Liquidation  
    Authorized     Outstanding     Per Share     Preference  
     
                                 
Class A
    3,939       2,739     $ 0.64     $ 1,753  
Class B
    320       320     $ 1.25       399  
Class C
    4,116       2,766     $ 3.67       10,143  
Class D
    150       150     $ 1.35       202  
Class E
    18       12     $ 1,000       12,015  
Class F
    4,000       3,541     $ 12.00       42,492  
Class G
    640       640     $ 1.85       1,183  
 
                               
Total
    13,183       10,168             $ 68,187  
 
                               
There were no issuances of preferred stock in 2004 through 2006.
In addition, the Company had 250,000 shares of Blank Check Preferred Stock authorized at December 31, 2005 and 2006, that are not included in the table above. These shares were not issued or outstanding at December 31, 2005 or 2006.

19


 

Athersys, Inc.
Notes to Consolidated Financial Statements (continued)
J. Stock Option Plans and Restructurings
In 1995, the Company adopted the 1995 Incentive Plan of Athersys, Inc. (the 1995 Plan). The 1995 Plan provides for the grant of incentive stock options, nonqualified stock options, stock bonus awards and restricted shares for employees, directors and consultants. The 1995 Plan carried a 10-year term and expired in November 2005. No new awards can be granted under the 1995 Plan, but outstanding awards will continue in full force and effect according to their terms. As of December 31, 2006, 2,588,500 shares of common stock are reserved to cover outstanding awards under the 1995 Plan. The options generally vest over periods ranging from three to four years and generally expire at the end of ten years.
In 2000, the Company adopted the 2000 Stock Incentive Plan (the 2000 Plan). The 2000 Plan provides for the grant of incentive stock options, nonqualified stock options, appreciation rights, performance units, performance shares, restricted shares and deferred shares. The payment of dividend equivalents on awards granted under the plan is also permitted. As of December 31, 2006, 5,076,679 shares of common stock were authorized for issuance under the 2000 Plan. The options generally vest over periods ranging from three to four years and generally expire at the end of ten years.
In 2003, the Company completed a restructuring that involved a reduction in force and an internal prioritization on certain therapeutic development opportunities. In connection with the restructuring, the Company granted 55,250 options to certain employees who were terminated. The stock options were granted under a separate plan approved by the Company’s Board of Directors, and therefore were not granted under the 1995 Plan or the 2000 Plan. There are no additional options reserved under this plan. The options are immediately exercisable and expire at the end of five years. Of the total restructuring costs, $107,000 was recognized in 2004 (including stock compensation related to these options of approximately $56,000) and is disclosed separately on the statement of operations.
In 2005, the Company completed a restructuring that involved a reduction in force and the refocusing of the Company’s internal activities, which was completed by December 31, 2005. The total cost of the 2005 restructuring, which primarily consists of severance payments, reduction of equipment carrying values, and reversal of stock option compensation, was $251,000 in 2005, and is disclosed separately on the statement of operations. At December 31, 2005, the severance liability was $36,000, which was paid in 2006. Also see Note B.

20


 

Athersys, Inc.
Notes to Consolidated Financial Statements (continued)
J. Stock Option Plans and Restructurings (continued)
A summary of the Company’s stock option activity and related information is as follows (in thousands, except per share data):
                         
            Weighted   Weighted
            Average   Average
    Number   Exercise   Fair
    of Options   Price   Value
     
 
                       
Outstanding January 1, 2004
    4,534     $ 3.58     $ 4.75  
Granted below deemed market value
    6       4.67       9.44  
Granted equal to deemed market value
    25       13.00       5.85  
Exercised
    (5 )     2.85       1.69  
Forfeited
    (403 )     6.87       6.70  
     
Outstanding December 31, 2004
    4,157       3.32       4.58  
Granted equal to deemed market value
    41       13.00       5.55  
Exercised
    (2 )     1.50       0.85  
Forfeited
    (324 )     4.80       4.36  
     
Outstanding December 31, 2005
    3,872       3.30       4.61  
Granted equal to deemed market value
                 
Exercised
    (2 )     3.00       1.47  
Forfeited
    (632 )     5.41       5.32  
     
Outstanding December 31, 2006
    3,238     $ 2.89     $ 4.47  
     
                                         
    December 31, 2006
    Options Outstanding   Options Exercisable
            Weighted                
            Average   Weighted           Weighted
    Number   Remaining   Average   Number   Average
    of   Contractual   Exercise   of   Exercise
Exercise Price   Options   Life   Price   Options   Price
 
 
                                       
$1.00—1.20
    280       2.97     $ 1.07       280     $ 1.07  
$1.50—1.65
    1,437       1.31     $ 1.52       1,438     $ 1.52  
$2.50—3.00
    586       2.18     $ 2.51       586     $ 2.51  
$3.25—7.00
    739       5.54     $ 3.98       664     $ 3.95  
$8.00—15.60
    196       4.99     $ 12.49       175     $ 12.42  
 
                                       
 
    3,238                       3,143          
 
                                       

21


 

Athersys, Inc.
Notes to Consolidated Financial Statements (continued)
J. Stock Option Plans and Restructurings (continued)
Options exercisable at December 31, 2004, 2005, and 2006, were approximately 3,517,000, 3,557,000, and 3,143,000, respectively. The total fair value of shares vested in 2004, 2005, and 2006 was $3,030,000, $2,312,000, and $428,000, respectively.
K. Profit Sharing Plan and 401(k) Plan
The Company has a profit sharing and 401(k) plan that covers substantially all employees. The Plan allows for discretionary contributions by the Company. The Company made no contributions to this Plan in 2004, 2005, or 2006.
L. Acquisition Agreement
In 2003, the Company completed a merger with MCL related to the multipotent adult stem cell (MAPC) technology. The Company formed a wholly owned subsidiary, ReGenesys LLC, as the entity into which MCL merged. The results of operations of ReGenesys LLC have been included since the effective date of the merger. In addition to the purchase price for the merger, the Company may be obligated to make certain milestone payments. In 2006, the first milestone was conferred resulting in the issuance of 76,924 shares of Athersys stock to the former members of MCL. The value placed on the shares was approximately $125,000 using fair value estimates at the time of the milestone achievement. The Company may be required to issue up to an additional 38,462 shares of the Company’s common stock and up to $1,000,000 (payable in cash or shares of common stock at the holders’ option) in the event that certain additional milestones relating to the MAPC technology are achieved.
M. Subsequent Events (Unaudited)
On June 8, 2007, the Company effected a merger into a wholly-owned subsidiary of a public company (the Merger). The public company, BTHC VI, Inc. (“BTHC VI”), was a shell corporation with no assets, liabilities or operations as of the date of the merger. Upon the closing of the Merger, the officers and directors of Athersys assumed control over the operations of BTHC VI, and Athersys’ operations became the sole operations of BTHC VI on a consolidated basis.
Immediately prior to the consummation of the Merger, all the convertible preferred stock of Athersys was converted into 2,209,341 shares of common stock, the warrants that were issued to the former holders of Class C Convertible Preferred Stock were terminated, and the accrued dividend payable to the former holders of Class C Convertible Preferred Stock was eliminated. The Company also retired the shares of stock held in treasury.
Immediately after the Merger, BTHC VI completed an offering of 13,000,000 shares of common stock for aggregate gross proceeds of $65,000,000 (“The Offering”). The Offering included the issuance of warrants to purchase 3,250,000 shares of common stock to the investors with an exercise price of $6.00 and a five-year term. BTHC VI also issued warrants to purchase 500,000 shares of common stock to the lead investor and warrants to purchase 1,093,525 shares of common stock to the placement agents, both with an exercise price of $6.00 and a five-year term. The placement agents received fees of 8.5% of the gross proceeds, less proceeds from existing investors in the Company. In consideration for certain advisory services, the Company paid an affiliate and largest stockholder of BTHC VI a one-time fee of $350,000 in cash upon consummation of the Merger.
The $10,000,000 of convertible notes issued to the pharmaceutical company were converted (see Note E) along with accrued interest upon the closing of the Offering into 1,885,890 shares of common stock at a conversion price of $5.50 per share, which was 110% of the price per share in the Offering in accordance with the note.
The notes issued to the bridge investors were converted along with accrued interest upon the closing of the Offering into 531,781 shares of common stock, at a conversion price of $5.00 per share, which was the price per share in the Offering. The bridge investors also exercised their $0.01 warrants upon the closing of the Offering for 999,977 shares of common stock at an exercise price of $10,000. Upon the conversion of the bridge notes, the bridge investors also received warrants to purchase 132,945 shares of common stock at $6.00 per share with a five-year term, which was consistent with the warrants issued to new investors in the Offering.
In connection with the Merger and the required Form 8-K Current Report, these consolidated financial statements have been updated to include earnings per share data in the consolidated statement of operations and notes to the consolidated financial statements. In addition Note N, Quarterly Financial Data (unaudited), has been included in the notes to the financial statements.

22


 

Athersys, Inc.
Notes to Consolidated Financial Statements (continued)
N. Quarterly Financial Data (Unaudited)
The following table presents quarterly data for the years ended December 31, 2005 and 2006, in thousands, except per share data:
                                         
    2005
    First Quarter   Second Quarter   Third Quarter   Fourth Quarter   Full Year
     
 
                                       
Revenues
  $ 952     $ 870     $ 833     $ 941     $ 3,596  
Net loss
  $ (3,804 )   $ (3,888 )   $ (3,542 )   $ (3,365 )   $ (14,599 )
Net loss per share, basic and diluted
  $ (0.47 )   $ (0.48 )   $ (0.43 )   $ (0.41 )   $ (1.79 )
                                         
    2006
    First Quarter   Second Quarter   Third Quarter   Fourth Quarter   Full Year
     
 
                                       
Revenues
  $ 629     $ 490     $ 1,126     $ 1,480     $ 3,725  
Loss before cumulative effect of change in accounting principle
  $ (2,793 )   $ (3,295 )   $ (2,067 )   $ (2,716 )   $ (10,871 )
Net loss
  $ (2,487 )   $ (3,295 )   $ (2,067 )   $ (2,716 )   $ (10,565 )
 
                                       
Basic and diluted net loss per share
                                       
Loss before cumulative effect of change in accounting principle
  $ (0.34 )   $ (0.40 )   $ (0.26 )   $ (0.33 )   $ (1.33 )
Cumulative effect of change in accounting principle
    0.04                         0.04  
     
Net loss
  $ (0.30 )   $ (0.40 )   $ (0.26 )   $ (0.33 )   $ (1.29 )
     

23

 

Exhibit 99.2
FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Athersys, Inc.
Unaudited Condensed Consolidated Balance Sheets
(In Thousands)
                 
    December 31   March 31
    2006   2007
       
Assets
               
Current assets:
               
Cash and cash equivalents
  $ 1,528     $ 3,311  
Accounts receivable
    872       295  
Prepaid expenses and other
    361       450  
       
Total current assets
    2,761       4,056  
 
Notes receivable from related parties
    562       562  
Equipment, net
    509       430  
Accounts receivable, net
    117       121  
Equity investment and other assets
    317       317  
       
Total assets
  $ 4,266     $ 5,486  
       
 
               
Liabilities and stockholders’ equity (deficit)
               
Current liabilities:
               
Accounts payable
  $ 898     $ 903  
Accrued compensation and related benefits
    423       263  
Accrued expenses and other
    1,214       966  
Current portion of long-term debt
    3,332       2,980  
       
Total current liabilities
    5,867       5,112  
 
               
Long-term debt
    1,800       1,018  
Convertible promissory notes, net
    7,510       12,770  
Accrued interest
    214       388  
Accrued dividends
    8,882       9,257  
 
               
Stockholders’ equity:
               
Convertible preferred stock, at stated value
    68,301       68,301  
Common stock
    83       83  
Additional paid-in capital
    53,412       53,080  
Treasury stock, at cost
    (250 )     (250 )
Accumulated deficit
    (141,553 )     (144,273 )
       
Total stockholders’ equity (deficit)
    (20,007 )     (23,059 )
       
Total liabilities and stockholders’ equity (deficit)
  $ 4,266     $ 5,486  
       
See accompanying notes.


 

Athersys, Inc.
Unaudited Condensed Consolidated Statements of Operations
(In Thousands, Except Per Share Amounts)
                 
    Three Months ended March 31,
    2006   2007
       
Revenues
               
License fees
  $ 220     $ 310  
Grant revenue
    409       569  
       
Total revenues
    629       879  
 
               
Costs and expenses
               
Research and development
    2,584       2,365  
General and administrative
    688       608  
Depreciation
    155       80  
       
Total costs and expenses
    3,427       3,053  
       
Loss from operations
    (2,798 )     (2,174 )
Other income
    94        
Equity in earnings of unconsolidated affiliate
    117        
Interest income
    29       47  
Interest expense
    (235 )     (333 )
Accretion of premium on convertible debt
          (260 )
       
Loss before cumulative effect of change in accounting principle
    (2,793 )     (2,720 )
Cumulative effect of change in accounting principle
    306        
       
Net loss
  $ (2,487 )   $ (2,720 )
       
 
               
Comprehensive loss
  $ (2,476 )   $ (2,720 )
       
 
               
Basic and diluted net loss per common share:
               
Net loss before cumulative effect of change in accounting principle
  $ (0.34 )   $ (0.33 )
Cumulative effect of change in accounting principle
    0.04        
       
Net loss
  $ (0.30 )   $ (0.33 )
       
 
               
Weighted average shares outstanding, basic and diluted
    8,127       8,197  
       
See accompanying notes.


 

Athersys, Inc.
Unaudited Condensed Consolidated Statements of Cash Flows
(In Thousands)
                 
    Three Months ended
    March 31,
    2006   2007
     
Operating activities
               
Net loss
  $ (2,487 )   $ (2,720 )
Adjustments to reconcile net loss to net cash used in operating activities:
               
Depreciation
    155       80  
Equity in earnings of unconsolidated affiliate
    (117 )      
Accretion of premium on convertible debt
          260  
Compensation – common stock options
    132       44  
Income from cumulative effect of change in accounting principle
    (306 )      
Amortization of premium on available for sale securities and other
    20        
Changes in operating assets and liabilities:
               
Accounts receivable
    392       572  
Prepaid expenses and other assets
    173       (86 )
Accounts payable and accrued expenses
    88       (229 )
     
Net cash used in operating activities
    (1,950 )     (2,079 )
 
               
Investing activities
               
Maturities of available for sale securities
    2,000        
Purchases of equipment
    (4 )     (3 )
     
Net cash provided by (used in) investing activities
    1,996       (3 )
 
               
Financing activities
               
Principal payments on debt
    (602 )     (1,134 )
Proceeds from convertible promissory note
          5,000  
Proceeds from issuance of common stock, net
    6        
     
Net cash (used in) provided by financing activities
    (596 )     3,865  
     
 
               
(Decrease) increase in cash and cash equivalents
    (550 )     1,783  
Cash and cash equivalents at beginning of the period
    1,080       1,528  
     
Cash and cash equivalents at end of the period
  $ 530     $ 3,311  
     
See accompanying notes.


 

Athersys, Inc.
Notes to Unaudited Condensed Consolidated Financial Statements
A. Background and Accounting Policies
Background
Athersys, Inc. (Athersys or the Company) is a biopharmaceutical company engaged in the development and commercialization of therapeutic products in one business segment. Operations consist primarily of research and product development activities. Prior to 2005, the Company had been considered in the development stage.
The accompanying unaudited condensed consolidated financial statements have been prepared on the basis that the Company will continue as a going concern. Since inception, the Company has incurred annual losses and negative cash flows from operations and has an accumulated deficit at March 31, 2007. The Company expects to incur additional operating losses over the next several years. The Company has limited liquidity and capital resources and must obtain significant additional capital resources in order to sustain its product development efforts, including preclinical and clinical testing of anticipated products, pursuit of regulatory approval, and establishment of production capabilities, and meet other working capital requirements. The Company relies on proceeds from equity and debt offerings, proceeds from the transfer or sale of intellectual property rights, grant proceeds, and funding from collaborative arrangements to fund its operations. The Company is currently pursuing multiple potential collaborative and fundraising opportunities. If the Company exhausts its liquid assets and is unable to obtain adequate funding, it may be unable to continue operations and meet contractual obligations. The financial statements do not include any adjustments to reflect the possible future effects on the recoverability and classification of assets or the amounts and classification of liabilities that may result from the outcome of this uncertainty.
Basis of Presentation
The accompanying unaudited condensed consolidated financial statements should be read in conjunction with the audited financial statements and notes thereto included in this Securities and Exchange Commission (“SEC”) filing. The accompanying financial statements have been prepared in accordance with U.S. generally accepted accounting principles (“GAAP”) for interim financial information and Article 10 of Regulation S-X. Accordingly, since they are interim statements, the accompanying financial statements do not include all of the information and notes required by GAAP for complete financial statements. The accompanying financial statements reflect all adjustments, consisting of normal recurring adjustments, that are, in the opinion of management, necessary for a fair presentation of financial position and results of operations for the interim periods presented. Interim results are not necessarily indicative of results for a full year.
The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes. Actual results could differ from those estimates.
Stock-Based Compensation
In December 2004, FASB Statement No. 123(R), Share-Based Payments, was issued as a revision to FASB Statement No. 123, Accounting for Stock Options . The new statement was required to be adopted by the Company in January 2006. Prior to January 1, 2006, the Company elected to account for its stock-based compensation in accordance with the intrinsic value method as described in the provisions of


 

Accounting Principles Board Opinion No. 25, Accounting for Stock Issued to Employees , and related interpretations, as permitted by Statement of Financial Accounting Standards SFAS No. 123. As such, compensation was recorded in 2004 and 2005 on the date of issuance or grant as the excess of the current estimated market value of the underlying stock over the purchase or exercise price of the stock option. Any unearned compensation was recognized over the respective vesting periods of the equity instruments, if any, using the graded vesting method as prescribed by Financial Accounting Standards Board Interpretation No. 28.
Effective January 1, 2006, the Company adopted the fair value recognition provisions of FASB Statement No. 123(R), Share-Based Payment , using the modified-prospective-transition method. Under that transition method, compensation cost recognized in 2006 includes: (a) compensation cost for all share-based payments granted prior to, but not yet vested as of January 1, 2006, based on the grant date fair value estimated in accordance with the original provisions of Statement 123, and (b) compensation cost for all share-based payments granted subsequent to January 1, 2006, based on the grant-date fair value estimated in accordance with the provisions of Statement 123(R). For some of the awards granted prior to the adoption of SFAS 123R, the Company recognized compensation expense on the accelerated method. For awards granted subsequent to adoption of SFAS 123R, the Company will recognize expense on the straight line method.
SFAS No. 123R requires the Company to estimate forfeitures in calculating the expense relating to share-based compensation, while previously the Company was permitted to recognize forfeitures as an expense reduction upon occurrence. The adjustment to apply estimated forfeitures to previously recognized share-based compensation was accounted for as a cumulative effect of a change in accounting principle at January 1, 2006 and reduced net loss by $305,587 for the three month period ended March 31, 2006.
New Pronouncements
In July 2006, the Financial Accounting Standards Board issued FASB Interpretation No. 48, Accounting for Uncertainty in Income Taxes (FIN 48), which is applicable for fiscal years beginning after December 15, 2006. FIN 48 clarifies the accounting for uncertainty in income taxes recognized in an enterprise’s financial statements in accordance with SFAS No. 109, Accounting for Income Taxes. FIN 48 prescribes a recognition threshold and measurement attribute for financial statement recognition and measurement of a tax position reported or expected to be reported on a tax return. FIN 48 also provides guidance on derecognition, classification, interest and penalties, accounting in interim periods, disclosure, and transition. The Company adopted the provisions of FIN 48 on January 1, 2007. Upon adoption of FIN 48 and through March 31, 2007, the Company determined that it had no liability for uncertain income taxes as prescribed by FIN 48. It is the Company’s policy to recognize potential accrued interest and penalties related to the liability for uncertain tax benefits, if applicable, in income tax expense. Net operating loss and credit carryforwards since inception remain open to examination by taxing authorities, and will for a period post utilization. No events are anticipated during 2007 that would require the Company to record a liability related to any uncertain income taxes.
Net Loss per Share
Basic and diluted net loss per share attributable to common stock holders are presented in conformity with SFAS No. 128, “Earnings per Share,” for all periods presented. In accordance with SFAS No. 128, basic and diluted net loss per share has been computed using the weighted-average number of common stock outstanding during the period.
The Company has outstanding certain options, warrants, convertible debt and convertible preferred stock, which have not been used in the calculation of diluted net loss per share because, to do so would be anti-dilutive. As such, the numerator and the denominator used in computing both basic and diluted net loss per share attributable to common stock holders are equal.


 

B. Long-Term Debt
A summary of the Company’s long-term debt outstanding is as follows (in thousands):
                 
    December 31,   March 31,
    2006   2007
     
Notes payable to lenders
  $ 5,132     $ 3,998  
Less – current portion
    3,332       2,980  
     
 
  $ 1,800     $ 1,018  
     
In November 2004, the Company entered into a $7,500,000 note payable to lenders, the proceeds of which are unrestricted and used for general corporate purposes. The notes are payable in 30 monthly payments after the initial interest-only period that expired December 1, 2005, with a fixed interest rate of 13% and a maturity date of June 1, 2008.
The lenders have the right to receive a milestone payment of $2.25 million upon the first to occur of the following milestone events: (1) a firmly underwritten initial public offering of common stock; (2) our merger with or into another entity where our stockholders do not hold at least a majority of the voting power of the surviving entity; (3) the sale of all or substantially all of our assets; and (4) our liquidation or dissolution. The milestone payment is payable in cash, except that if the milestone event is an initial public offering, we may elect to pay 75% of the milestone in shares of common stock at the per share offering price to the public. The lenders also have the right to receive warrants to purchase 149,026 shares of common stock with an exercise price of $5.00 upon the closing of a financing, as defined. We are evaluating the potential restructuring or prepayment of this Senior Loan. No amounts have been recorded in relation to the milestone as of March 31, 2007.
The lenders also have a right to receive warrants upon the closing of our next equity financing with financial investors.
C. Convertible Notes
In 2006, the Company entered into a co-development collaboration with a pharmaceutical company. The Company issued a $5 million convertible promissory note to the collaborator at the inception of the program, which was followed by the issuance of an additional convertible promissory note of $5 million in January 2007 upon the achievement of certain milestones.
Also in 2006, the Company completed a bridge financing of $2.5 million in the form of convertible promissory notes. The notes were issued primarily to existing stockholders of the Company. The notes bear interest at 10%, have a 3-year term, and are secured by all the assets of the Company (subordinated to the Company’s secured long-term debt). The notes, if not converted, are repayable with accrued interest at maturity, plus a repayment fee of 200% of the outstanding principal. The Company computed a premium on the debt in the amount of $5,250,000 due upon redemption, which is being accreted over the term of the notes using the effective interest method. The bridge investors also receive warrants to purchase common stock, which are exercisable only upon a restructuring of the Company’s capital stock in connection with a financing. The exercise price is $0.01 and the number of shares issuable is based on a formula tied to the pre-money value of the Company.
D. Subsequent Events


 

In May 2007, the Company sold certain non-core assets to a pharmaceutical company related to an early-stage research program. Aggregate proceeds were $2 million, of which $1.5 million was received on closing with the remainder due within 30 days as the assets are transferred. Athersys will recognize a gain on the sale of these assets in the amount of $2.0 million in connection with this sale.
In April 2007, a warrant holder exercised his warrant for 89,700 shares of common stock for a nominal exercise price.
In June 2007, the Company effected a merger into a wholly-owned subsidiary of a public company (the “Merger”). The public company, BTHC VI, Inc. (“BTHC VI”), was a shell corporation with no assets, liabilities or operations. Upon the closing of the merger, the officers and directors of Athersys assumed control over the operations of BTHC VI, and Athersys’ operations became the sole operations of BTHC VI on a consolidated basis. All shares of Athersys capital stock were exchanged for shares of BTHC VI with an exchange ratio of 0.0358493.
Immediately prior to the consummation of the Merger, all the convertible preferred stock of Athersys was converted into 2,209,341 shares of common stock, the warrants that were issued to the former holders of Class C Convertible Preferred Stock were terminated, and the accrued dividend payable to the former holders of Class C Convertible Preferred Stock was eliminated. The Company also retired the shares of stock held in treasury.
The Company also terminated the stock option awards to its officers, employees, directors and consultants effective upon the closing of the merger. Only a nominal number of option awards held by former employees and consultants were assumed by BTHC VI. BTHC VI adopted an incentive plan prior to closing the Merger which made available 3,035,000 shares of common stock to employees, directors and consultants. Upon closing the Merger, another similar incentive plan was adopted which made available 1,465,000 shares of common stock. Upon closing the Merger, options for 3,625,000 shares of stock were issued under these plans to employees, directors and consultants at $5.00 per share.
Immediately after the Merger, BTHC VI completed an offering of 13,000,000 shares of common stock for aggregate gross proceeds of $65,000,000 (“The Offering”). The Offering included the issuance of warrants to purchase 3,250,000 shares of common stock to the investors with an exercise price of $6.00 and a five-year term. BTHC VI also issued warrants to purchase 500,000 shares of common stock to the lead investor and warrants to purchase 1,093,525 shares of common stock to the placement agents, both with an exercise price of $6.00 and a five-year term. The placement agents received fees of 8.5% of the gross proceeds, less proceeds from existing investors in the Company. In consideration for certain advisory services, the Company paid an affiliate and largest stockholder of BTHC VI a one-time fee of $350,000 in cash upon consummation of the merger.
The $10,000,000 of convertible notes issued to the pharmaceutical company were converted (see Note C) along with accrued interest upon the closing of the Offering into 1,885,890 shares of common stock at a conversion price of $5.50 per share, which was 110% of the price per share in the Offering in accordance with the note.
The notes issued to the bridge investors were converted along with accrued interest upon the closing of the Offering into 531,781 shares of common stock, at a conversion price of $5.00 per share, which was the price per share in the Offering. The bridge investors also exercised their $0.01 warrants upon the closing of the Offering for 999,977 shares of common stock at an exercise price of $10,000. Upon the


 

conversion of the bridge notes, the bridge investors also received warrants to purchase 132,945 shares of common stock at $6.00 per share with a five-year term, which was consistent with the warrants issued to new investors in the Offering.
Upon the closing of the Offering, the warrants which were to be issued to the Company’s lenders were awarded to purchase 149,026 shares of common stock with an exercise price of $5.00 per share, with a seven-year term.
Upon the closing of the Offering, the Company achieved a milestone related to its stem cell technology and will issue 1,379 shares of common stock and pay $500,000 cash to the former holders of the technology. The Company may be required to pay cash of $1 million upon the achievement of one additional milestone related to the technology.
The Company is required to file a “resale” registration statement with the SEC covering all shares of common stock issued in the Offering, including shares of Common Stock into which any warrants issued in the Offering are exercisable (as well as the 531,781 shares of common stock issued to the bridge investors and their 132,945 shares underlying warrants), no later than 45 days after the closing date. Subject to certain exceptions, if the “resale” registration statement is not timely filed or declared effective by the SEC or ceases to remain effective, a 1% cash penalty will be assessed for each 30-day period until the registration statement is either filed, declared effective or becomes effective again, as applicable, capped at 10%.
Athersys has net operating loss and research and development credit carryforwards that result in deferred tax assets that have been fully offset by a valuation allowance. Athersys’ use of its current net operating loss and research and development credit carryforwards may be substantially limited as a result of the change in ownership related to the Merger and Offering.

 

Exhibit 99.3
UNAUDITED PRO FORMA FINANCIAL INFORMATION
The following unaudited financial information has been developed by application of pro forma adjustments to the historical financial statements of Athersys appearing elsewhere in this Current Report. The unaudited pro forma information gives effect to the Merger, the conversion of the convertible notes, the Offering, and the specific application of the net proceeds from the Offering and the issuance of various warrants as a result of the Offering. Such transactions have been assumed to have occurred on March 31, 2007 for purposes of the pro forma balance sheet and as of January 1, 2006 for purposes of the statement of operations for the year ended December 31, 2006 and the three months ended March 31, 2007.
The unaudited pro forma adjustments are based upon available information and certain assumptions, as described in the accompanying notes that we believe are reasonable under the circumstances. The unaudited pro forma financial information is presented for informational purposes only and does not purport to represent what the results of operations or financial position of Athersys would have been had the transactions described above actually occurred on the dates indicated, nor do they purport to project the financial condition of Athersys for any future period or as of any future date. The unaudited pro forma financial information should be read in conjunction with the information contained in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and Athersys’ financial statements and notes thereto included elsewhere in this Current Report.


 

Athersys, Inc.
Unaudited Pro Forma Balance Sheet
As of March 31, 2007

(In Thousands)
                                                         
                                                    Pro
    Athersys   BTHC   Merger           Convert   Close   Forma
    Actual   Actual   Adjustments   Post   Notes   Offering   Post
    (1)   (1)   (2)   Merger   (3)   (4)   Offering
Assets
                                                       
Current assets:
                                                       
Cash and cash equivalents
  $ 3,311     $     $ 10     $ 3,321     $     $ 58,310     $ 61,631  
Accounts receivable
    295                     295                   295  
 
                                                       
Prepaid expenses and other
    450                     450             (133 )     317  
               
Total current assets
    4,056             10       4,066             58,177       62,243  
 
                                                       
Notes receivable from related parties
    562                     562                   562  
 
                                                       
Equipment, net
    430                     430                   430  
 
                                                       
Accounts receivable, net
    121                     121                   121  
 
                                                       
Equity investment and other assets
    317                     317                   317  
               
Total assets
  $ 5,486     $     $ 10     $ 5,496     $     $ 58,177     $ 63,673  
                 
 
                                                       
Liabilities and stockholders’ equity (deficit)
                                                       
Current liabilities:
                                                       
Accounts payable
  $ 903     $     $     $ 903     $     $     $ 903  
 
                                                       
Accrued compensation and related benefits
    263                     263                   263  
 
                                                       
Accrued expenses and other
    966                     966             (20 )     946  
 
                                                       
Advances from shareholder
          20             20                   20  
 
                                                       
Current portion of long-term debt
    2,980                     2,980                   2,980  
               
 
                                                       
Total current liabilities
    5,112       20             5,132             (20 )     5,112  
 
                                                       
Long-term debt
    1,018                     1,018                   1,018  
 
                                                       
Convertible promissory notes, net
    12,770                     12,770       (12,770 )            
 
                                                       
Accrued interest
    388                     388       (388 )            
 
                                                       
Accrued dividends
    9,257               (9,257 )                        
 
                                                       
Stockholders’ equity:
                                                       
Convertible preferred stock, at stated value (5)
    68,301               (68,301 )                        
Common stock (6)
    83       1       (81 )     4       2       13       19  
Additional paid-in capital
    53,080               77,399       130,476       13,156       59,257       202,889  
Treasury stock, at cost
    (250 )             250                          


 

                                                         
                                                    Pro
    Athersys   BTHC   Merger           Convert   Close   Forma
    Actual   Actual   Adjustments   Post   Notes   Offering   Post
    (1)   (1)   (2)   Merger   (3)   (4)   Offering
Accumulated deficit
    (144,273 )     (21 )           (144,291 )           (1,073 )     (145,364 )
                 
Total stockholders’ equity (deficit)
    (23,059 )     (20 )     9,267       (13,812 )     13,158       58,197       57,543  
                 
Total liabilities and stockholders’ equity (deficit)
  $ 5,486     $     $ 10     $ 5,496     $     $ 58,177     $ 63,673  
                 
Notes to Pro forma Adjustments:
1)   Actual historical balances as of March 31, 2007.
 
2)   Reflects the reclassification within equity to present the exchange of shares in the Merger with a resulting 3,508,940 shares outstanding (3,209,318 held by Athersys stockholders and 299,622 held by BTHC VI stockholders). Also, includes the effects of eliminating accrued dividends on preferred stock of Athersys, retiring treasury stock, and receiving $10,000 in cash upon the exercise of bridge warrants at $0.01 per share.
 
3)   Reflects the conversion of the $2,500,000 of bridge notes (and related premium and discount on the bridge notes) plus accrued interest into 531,781 shares of Common Stock and the conversion of the $10,000,000 Angiotech notes plus accrued interest into 1,885,890 shares of Common Stock.
 
4)   Reflects gross proceeds of $65,000,000 from issuing 13,000,000 shares of Common Stock and warrants to purchase 3,750,000 shares of Common Stock at $6.00 per share and related Offering and Merger costs. Also reflects the issuance of warrants to purchase 1,093,525 shares of Common Stock to the placement agents at a price of $6.00 per share and the issuance of warrants to our bridge investors to purchase 132,945 shares of Common Stock at a price of $5.00 per share. The placement agent warrants were valued at fair value, which was included in offering costs as an offset against paid-in capital, resulting in a zero net effect on equity.
 
    Also reflects the issuance of warrants to our senior lenders to purchase 149,026 shares of Common Stock at a price of $5.00 per share and the issuance of 1,379 shares of Common Stock and a cash payment of $500,000 to the former holders of the MAPC technology.
 
    The adjustments to the accumulated deficit as a result of the Offering are (1) $350,000 of Merger costs, (2) $216,000 of interest expense related to the issuance of the 149,026 senior lender warrants and (3) $507,000 related to the MAPC milestone.
 
5)   After the Merger, BTHC VI has 10,000,000 shares of blank check preferred stock authorized. No shares of preferred stock were issued in the Transactions.
 
6)   After the Merger, BTHC VI has 100,000,000 shares of Common Stock authorized at $0.001 per share with 18,927,990 shares outstanding after the closing of the Offering. Excludes 4,500,000 shares of Common Stock reserved for issuance under the BTHC VI stock incentive plans, under which options for 3,625,000 shares of Common Stock were granted on the closing date of the Merger, and total warrants outstanding to purchase 5,125,496 shares of Common Stock.


 

Athersys, Inc.
Unaudited Pro Forma Statements of Operations

(In Thousands, Except Share and Per Share Amounts)
                                                 
    Year Ended   Three Months Ended
    December 31, 2006   March 31, 2007
    As           Pro   As       Pro
    Reported   Adjustments   Forma   Reported   Adjustments   Forma
    (1)   (2)   (4)   (1)   (2)   (4)
Revenues
                                               
License fees
  $ 1,908     $     $ 1,908     $ 310     $     $ 310  
Grant revenue
    1,817               1,817       569               569  
           
Total revenues
    3,725             3,725       879             879  
 
                                               
Costs and expenses
                                               
 
                                               
Research and development
    9,741               9,741       2,365               2,365  
 
                                               
General and administrative
    3,347               3,347       608               608  
Depreciation
    528               528       80               80  
           
Total costs and expenses
    13,616               13,616       3,053               3,053  
           
Loss from operations
    (9,891 )           (9,891 )     (2,174 )           (2,174 )
Other income
    91               91                      
Equity in earnings of unconsolidated affiliate
    117               117                      
Interest income
    119               119       47               47  
Interest expense
    (1,047 )     214       (833 )     (333 )     174       (159 )
Accretion of premium on convertible debt
    (260 )     260             (260 )     260        
               
Loss before cumulative effect of change in accounting principle
  $ (10,871 )   $ 474     $ (10,397 )   $ (2,720 )   $ 434     $ (2,286 )
               
 
                                               
     
Loss per share(3)
  $ (1.33 )           $ (0.55 )   $ (0.33 )           $ (0.12 )
           
 
                                               
Weighted average shares outstanding, basic and diluted
    8,179               18,928       8,197               18,928  
Notes to Pro forma Adjustments:
1)   Actual historical balances for the period indicated.
 
2)   Reflects a reduction in interest expense and accretion of premium on convertible debt, related to the convertible notes, which are assumed to be converted into Common Stock as of January 1, 2006.
 
3)   Per share information for the period ended December 31, 2006 and the three months ended March 31, 2007 have been reported on a basis consistent with the consolidated financial statements. Pro forma per share information has been calculated using the weighted average numbers of shares issued as a result of the Offering, assuming that those shares were issued at January 1, 2006.
 
4)   The following expenses are nonrecurring charges, which resulted directly from the Offering and therefore, have not been included in the pro forma statement of operations:
 
    (1) $350,000 of Merger costs, (2) $216,000 of interest expense related to the issuance of the 149,026 senior lender warrants and (3) $507,000 related to the MAPC milestone.