|
|
x
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QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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☐
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
|
|
Delaware
|
|
20-4864095
|
(State or other jurisdiction
of incorporation or organization)
|
|
(I.R.S. Employer
Identification No.)
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3201 Carnegie Avenue, Cleveland, Ohio
|
|
44115-2634
|
(Address of principal executive offices)
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(Zip Code)
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|
Title of each class
|
Trading Symbol
|
Name of each exchange on which registered
|
Common Stock, par value $0.001 per share
|
ATHX
|
The NASDAQ Stock Market LLC
|
Large accelerated filer
|
|
☐
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|
Accelerated filer
|
|
x
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Non-accelerated filer
|
|
☐
|
|
Smaller reporting company
|
|
x
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Emerging growth company
|
|
☐
|
|
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|
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PART I. FINANCIAL INFORMATION
|
|
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ITEM 1.
|
||
ITEM 2.
|
||
ITEM 3.
|
||
ITEM 4.
|
||
PART II. OTHER INFORMATION
|
|
|
ITEM 2.
|
||
ITEM 6.
|
||
|
|
|
June 30,
2019 |
|
December 31,
2018 |
||||
|
|
(Unaudited)
|
|
|
||||
Assets
|
|
|
|
|
||||
Current assets:
|
|
|
|
|
||||
Cash and cash equivalents
|
|
$
|
44,237
|
|
|
$
|
51,059
|
|
Accounts receivable
|
|
80
|
|
|
262
|
|
||
Accounts receivable from Healios
|
|
1,778
|
|
|
1,108
|
|
||
Unbilled accounts receivable from Healios
|
|
1,130
|
|
|
3,620
|
|
||
Prepaid expenses and other
|
|
849
|
|
|
1,791
|
|
||
Total current assets
|
|
48,074
|
|
|
57,840
|
|
||
Equipment, net
|
|
3,062
|
|
|
3,002
|
|
||
Deposits and other
|
|
2,111
|
|
|
888
|
|
||
Total assets
|
|
$
|
53,247
|
|
|
$
|
61,730
|
|
Liabilities and stockholders’ equity
|
|
|
|
|
||||
Current liabilities:
|
|
|
|
|
||||
Accounts payable
|
|
$
|
10,527
|
|
|
$
|
9,163
|
|
Accrued compensation and related benefits
|
|
814
|
|
|
1,901
|
|
||
Accrued clinical trial related costs
|
|
2,469
|
|
|
1,276
|
|
||
Accrued expenses and other
|
|
869
|
|
|
461
|
|
||
Deposit from Healios
|
|
—
|
|
|
2,000
|
|
||
Deferred revenue - Healios
|
|
2
|
|
|
674
|
|
||
Total current liabilities
|
|
14,681
|
|
|
15,475
|
|
||
Advance from Healios
|
|
5,042
|
|
|
3,139
|
|
||
Other long-term liabilities
|
|
273
|
|
|
—
|
|
||
Stockholders’ equity:
|
|
|
|
|
||||
Preferred stock, at stated value; 10,000,000 shares authorized, and no shares issued and outstanding at June 30, 2019 and December 31, 2018
|
|
—
|
|
|
—
|
|
||
Common stock, $0.001 par value; 300,000,000 shares authorized, and 151,777,751 and 144,292,739 shares issued and outstanding at June 30, 2019 and December 31, 2018, respectively
|
|
152
|
|
|
144
|
|
||
Additional paid-in capital
|
|
428,785
|
|
|
416,014
|
|
||
Accumulated deficit
|
|
(395,686
|
)
|
|
(373,042
|
)
|
||
Total stockholders’ equity
|
|
33,251
|
|
|
43,116
|
|
||
Total liabilities and stockholders’ equity
|
|
$
|
53,247
|
|
|
$
|
61,730
|
|
|
|
Three months ended
June 30, |
|
Six months ended
June 30, |
||||||||||||
|
|
2019
|
|
2018
|
|
2019
|
|
2018
|
||||||||
Revenues
|
|
|
|
|
|
|
|
|
||||||||
Contract revenue from Healios
|
|
$
|
4,193
|
|
|
$
|
18,755
|
|
|
$
|
5,634
|
|
|
$
|
19,103
|
|
Royalty and other contract revenue
|
|
—
|
|
|
591
|
|
|
—
|
|
|
992
|
|
||||
Grant revenue
|
|
69
|
|
|
45
|
|
|
73
|
|
|
362
|
|
||||
Total revenues
|
|
4,262
|
|
|
19,391
|
|
|
5,707
|
|
|
20,457
|
|
||||
Costs and expenses
|
|
|
|
|
|
|
|
|
||||||||
Research and development
|
|
11,139
|
|
|
10,093
|
|
|
22,554
|
|
|
18,943
|
|
||||
General and administrative
|
|
2,867
|
|
|
2,382
|
|
|
5,973
|
|
|
5,038
|
|
||||
Depreciation
|
|
157
|
|
|
191
|
|
|
341
|
|
|
376
|
|
||||
Total costs and expenses
|
|
14,163
|
|
|
12,666
|
|
|
28,868
|
|
|
24,357
|
|
||||
Gain from insurance proceeds
|
|
—
|
|
|
20
|
|
|
—
|
|
|
383
|
|
||||
(Loss) income from operations
|
|
(9,901
|
)
|
|
6,745
|
|
|
(23,161
|
)
|
|
(3,517
|
)
|
||||
Other income, net
|
|
213
|
|
|
188
|
|
|
517
|
|
|
295
|
|
||||
Net (loss) income and comprehensive (loss) income
|
|
$
|
(9,688
|
)
|
|
$
|
6,933
|
|
|
$
|
(22,644
|
)
|
|
$
|
(3,222
|
)
|
Net (loss) income per share, basic
|
|
$
|
(0.06
|
)
|
|
$
|
0.05
|
|
|
$
|
(0.15
|
)
|
|
$
|
(0.02
|
)
|
Weighted average shares outstanding, basic
|
|
150,163
|
|
|
138,225
|
|
|
148,075
|
|
|
132,592
|
|
||||
Net (loss) income per share, diluted
|
|
$
|
(0.06
|
)
|
|
$
|
0.05
|
|
|
$
|
(0.15
|
)
|
|
$
|
(0.02
|
)
|
Weighted average shares outstanding, diluted
|
|
150,163
|
|
|
139,375
|
|
|
148,075
|
|
|
132,592
|
|
|
Preferred Stock
|
|
Common Stock
|
|
Additional
Paid-in
Capital
|
|
Accumulated
Deficit
|
|
Total
Stockholders’
Equity
|
||||||||||||||||
|
Number
of Shares
|
|
Stated
Value
|
|
Number
of Shares
|
|
Par
Value
|
|
|||||||||||||||||
Balance at December 31, 2018
|
—
|
|
|
$
|
—
|
|
|
144,292,739
|
|
|
$
|
144
|
|
|
$
|
416,014
|
|
|
$
|
(373,042
|
)
|
|
$
|
43,116
|
|
Stock-based compensation
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,090
|
|
|
—
|
|
|
1,090
|
|
|||||
Issuance of common stock, net of issuance cost
|
—
|
|
|
—
|
|
|
3,825,000
|
|
|
4
|
|
|
5,603
|
|
|
—
|
|
|
5,607
|
|
|||||
Issuance of common stock under equity compensation plan
|
—
|
|
|
—
|
|
|
158,494
|
|
|
—
|
|
|
(69
|
)
|
|
—
|
|
|
(69
|
)
|
|||||
Net comprehensive loss
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(12,956
|
)
|
|
(12,956
|
)
|
|||||
Balance at March 31, 2019
|
—
|
|
|
—
|
|
|
148,276,233
|
|
|
148
|
|
|
422,638
|
|
|
(385,998
|
)
|
|
36,788
|
|
|||||
Stock-based compensation
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,152
|
|
|
—
|
|
|
1,152
|
|
|||||
Issuance of common stock, net of issuance cost
|
—
|
|
|
—
|
|
|
3,350,000
|
|
|
4
|
|
|
5,102
|
|
|
—
|
|
|
5,106
|
|
|||||
Issuance of common stock under equity compensation plan
|
—
|
|
|
—
|
|
|
151,518
|
|
|
—
|
|
|
(107
|
)
|
|
—
|
|
|
(107
|
)
|
|||||
Net comprehensive loss
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(9,688
|
)
|
|
(9,688
|
)
|
|||||
Balance at June 30, 2019
|
—
|
|
|
$
|
—
|
|
|
151,777,751
|
|
|
$
|
152
|
|
|
$
|
428,785
|
|
|
$
|
(395,686
|
)
|
|
$
|
33,251
|
|
|
Preferred Stock
|
|
Common Stock
|
|
Additional
Paid-in
Capital
|
|
Accumulated
Deficit
|
|
Total
Stockholders’
Equity
|
||||||||||||||||
|
Number
of Shares
|
|
Stated
Value
|
|
Number
of Shares
|
|
Par
Value
|
|
|||||||||||||||||
Balance at December 31, 2017
|
—
|
|
|
$
|
—
|
|
|
122,077,453
|
|
|
$
|
122
|
|
|
$
|
373,884
|
|
|
$
|
(350,630
|
)
|
|
$
|
23,376
|
|
Stock-based compensation
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
813
|
|
|
—
|
|
|
813
|
|
|||||
Issuance of warrant to Healios at fair value
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
5,300
|
|
|
—
|
|
|
5,300
|
|
|||||
Issuance of common stock, net of issuance cost
|
—
|
|
|
—
|
|
|
3,750,000
|
|
|
4
|
|
|
5,412
|
|
|
—
|
|
|
5,416
|
|
|||||
Issuance of common stock to Healios, net of issuance costs
|
—
|
|
|
—
|
|
|
12,000,000
|
|
|
12
|
|
|
20,983
|
|
|
—
|
|
|
20,995
|
|
|||||
Issuance of common stock under equity compensation plan
|
—
|
|
|
—
|
|
|
131,092
|
|
|
—
|
|
|
(84
|
)
|
|
—
|
|
|
(84
|
)
|
|||||
Cumulative effect of accounting change
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,871
|
|
|
1,871
|
|
|||||
Net comprehensive loss
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(10,155
|
)
|
|
(10,155
|
)
|
|||||
Balance at March 31, 2018
|
—
|
|
|
—
|
|
|
137,958,545
|
|
|
138
|
|
|
406,308
|
|
|
(358,914
|
)
|
|
47,532
|
|
|||||
Stock-based compensation
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
824
|
|
|
—
|
|
|
824
|
|
|||||
Issuance of common stock, net of issuance cost
|
—
|
|
|
—
|
|
|
500,000
|
|
|
1
|
|
|
1,214
|
|
|
—
|
|
|
1,215
|
|
|||||
Issuance of common stock to Healios, net of issuance costs
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(149
|
)
|
|
—
|
|
|
(149
|
)
|
|||||
Issuance of common stock under equity compensation plan
|
—
|
|
|
—
|
|
|
125,128
|
|
|
—
|
|
|
(106
|
)
|
|
—
|
|
|
(106
|
)
|
|||||
Net comprehensive income
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
6,933
|
|
|
6,933
|
|
|||||
Balance at June 30, 2018
|
—
|
|
|
$
|
—
|
|
|
138,583,673
|
|
|
$
|
139
|
|
|
$
|
408,091
|
|
|
$
|
(351,981
|
)
|
|
$
|
56,249
|
|
|
|
Six months ended
June 30, |
||||||
|
|
2019
|
|
2018
|
||||
Operating activities
|
|
|
|
|
||||
Net loss
|
|
$
|
(22,644
|
)
|
|
$
|
(3,222
|
)
|
Adjustments to reconcile net loss to net cash used in operating activities:
|
|
|
|
|
||||
Depreciation
|
|
341
|
|
|
376
|
|
||
Stock-based patent license and settlement expense
|
|
—
|
|
|
315
|
|
||
Stock-based compensation
|
|
2,242
|
|
|
1,637
|
|
||
Discount on revenue from issuance of warrant
|
|
—
|
|
|
1,080
|
|
||
Deferred revenue from prior period
|
|
—
|
|
|
(250
|
)
|
||
Changes in operating assets and liabilities:
|
|
|
|
|
||||
Accounts receivable
|
|
182
|
|
|
41
|
|
||
Accounts receivable from Healios - billed and unbilled
|
|
1,820
|
|
|
(8,649
|
)
|
||
Prepaid expenses, deposits and other
|
|
677
|
|
|
(2,014
|
)
|
||
Accounts payable and accrued expenses
|
|
1,192
|
|
|
6,267
|
|
||
Deferred revenue - Healios
|
|
(672
|
)
|
|
1,402
|
|
||
Advances and deposits from Healios
|
|
(97
|
)
|
|
1,731
|
|
||
Net cash used in operating activities
|
|
(16,959
|
)
|
|
(1,286
|
)
|
||
Investing activities
|
|
|
|
|
||||
Purchases of equipment
|
|
(400
|
)
|
|
(749
|
)
|
||
Net cash used in investing activities
|
|
(400
|
)
|
|
(749
|
)
|
||
Financing activities
|
|
|
|
|
||||
Proceeds from issuance of common stock, net
|
|
10,713
|
|
|
5,416
|
|
||
Proceeds from issuance of common stock to Healios, net
|
|
—
|
|
|
20,847
|
|
||
Shares retained for withholding tax payments on stock-based awards
|
|
(176
|
)
|
|
(191
|
)
|
||
Net cash provided by financing activities
|
|
10,537
|
|
|
26,072
|
|
||
(Decrease) increase in cash and cash equivalents
|
|
(6,822
|
)
|
|
24,037
|
|
||
Cash and cash equivalents at beginning of the period
|
|
51,059
|
|
|
29,316
|
|
||
Cash and cash equivalents at end of the period
|
|
$
|
44,237
|
|
|
$
|
53,353
|
|
|
Three months ended June 30, 2019
|
|
Six months ended
June 30, 2019 |
||||
Operating lease cost
|
$
|
122
|
|
|
$
|
242
|
|
Short-term lease cost
|
11
|
|
|
22
|
|
||
Variable lease cost
(1)
|
52
|
|
|
157
|
|
||
Total lease cost
|
$
|
185
|
|
|
$
|
421
|
|
2019
(1)
|
$
|
246
|
|
2020
|
407
|
|
|
2021
|
101
|
|
|
2022
|
14
|
|
|
2023
|
12
|
|
|
Thereafter
|
2
|
|
|
Total minimum lease payments
|
782
|
|
|
Less: amount of lease payments representing interest
|
37
|
|
|
Present value of operating lease liabilities
|
$
|
745
|
|
|
|
Three months ended
June 30, |
|
Six months ended
June 30, |
||||||||
|
|
2019
|
|
2018
|
|
2019
|
|
2018
|
||||
Stock-based awards
|
|
16,791
|
|
|
5,939
|
|
|
16,791
|
|
|
12,847
|
|
Healios Warrant – see Note 7
|
|
4,000
|
|
|
20,000
|
|
|
4,000
|
|
|
20,000
|
|
Total
|
|
20,791
|
|
|
25,939
|
|
|
20,791
|
|
|
32,847
|
|
|
|
Three months ended
June 30, 2019 |
|
Three months ended
June 30, 2018 |
||||||||||||
|
|
Point in
Time
|
|
Over Time
|
|
Point in
Time
|
|
Over Time
|
||||||||
Contract Revenue from Healios
|
|
|
|
|
|
|
|
|
||||||||
License fee revenue
|
|
$
|
1,624
|
|
|
$
|
—
|
|
|
$
|
17,530
|
|
|
$
|
—
|
|
Product supply revenue
|
|
905
|
|
|
—
|
|
|
223
|
|
|
—
|
|
||||
Service revenue
|
|
—
|
|
|
1,664
|
|
|
—
|
|
|
1,002
|
|
||||
Other contract revenue
|
|
—
|
|
|
—
|
|
|
250
|
|
|
—
|
|
||||
Total disaggregated revenues
|
|
$
|
2,529
|
|
|
$
|
1,664
|
|
|
$
|
18,003
|
|
|
$
|
1,002
|
|
|
|
Six months ended
June 30, 2019 |
|
Six months ended
June 30, 2018 |
||||||||||||
|
|
Point in
Time
|
|
Over Time
|
|
Point in
Time
|
|
Over Time
|
||||||||
Contract Revenue from Healios
|
|
|
|
|
|
|
|
|
||||||||
License fee revenue
|
|
$
|
1,624
|
|
|
$
|
—
|
|
|
$
|
17,530
|
|
|
$
|
—
|
|
Product supply revenue
|
|
1,871
|
|
|
—
|
|
|
450
|
|
|
—
|
|
||||
Service revenue
|
|
—
|
|
|
2,139
|
|
|
—
|
|
|
1,123
|
|
||||
Other contract revenue
|
|
—
|
|
|
—
|
|
|
250
|
|
|
—
|
|
||||
Total disaggregated revenues
|
|
$
|
3,495
|
|
|
$
|
2,139
|
|
|
$
|
18,230
|
|
|
$
|
1,123
|
|
•
|
our ability to raise capital to fund our operations;
|
•
|
the timing and nature of results from MultiStem clinical trials, including the MASTERS-2 Phase 3 clinical trial and the Healios TREASURE and ONE-BRIDGE clinical trials in Japan;
|
•
|
the possibility of delays in, adverse results of, and excessive costs of the development process;
|
•
|
our ability to successfully initiate and complete clinical trials of our product candidates;
|
•
|
the possibility of delays, work stoppages or interruptions in manufacturing by third parties or us, such as due to material supply constraints, contaminations, or regulatory issues, which could negatively impact our trials and the trials of our collaborators;
|
•
|
uncertainty regarding market acceptance of our product candidates and our ability to generate revenues, including MultiStem cell therapy for the treatment of ischemic stroke, ARDS, AMI and trauma, and the prevention of GvHD and other disease indications;
|
•
|
changes in external market factors;
|
•
|
changes in our industry’s overall performance;
|
•
|
changes in our business strategy;
|
•
|
our ability to protect and defend our intellectual property and related business operations, including the successful prosecution of our patent applications and enforcement of our patent rights, and operate our business in an environment of rapid technology and intellectual property development;
|
•
|
our possible inability to realize commercially valuable discoveries in our collaborations with pharmaceutical and other biotechnology companies;
|
•
|
our ability to meet milestones and earn royalties under our collaboration agreements, including the success of our collaboration with Healios;
|
•
|
our collaborators’ ability to continue to fulfill their obligations under the terms of our collaboration agreements and generate sales related to our technologies;
|
•
|
the success of our efforts to enter into new strategic partnerships and advance our programs, including, without limitation, in North America, Europe and Japan;
|
•
|
our possible inability to execute our strategy due to changes in our industry or the economy generally;
|
•
|
changes in productivity and reliability of suppliers;
|
•
|
the success of our competitors and the emergence of new competitors; and
|
•
|
the risks mentioned elsewhere in our Annual Report on Form 10-K for the year ended
December 31, 2018
under Item 1A, “Risk Factors.”
|
Exhibit No.
|
|
Description
|
|
|
|
10.1
|
|
|
|
|
|
10.2
|
|
|
|
|
|
10.3
|
|
|
|
|
|
10.4
|
|
|
|
|
|
10.5
|
|
|
|
|
|
10.6
|
|
|
|
|
|
31.1
|
|
|
|
|
|
31.2
|
|
|
|
|
|
32.1
|
|
|
|
|
|
101.INS
|
|
XBRL Instance Document
|
|
|
|
101.SCH
|
|
XBRL Taxonomy Extension Schema Document
|
|
|
|
101.CAL
|
|
XBRL Taxonomy Extension Calculation Linkbase Document
|
|
|
|
101.DEF
|
|
XBRL Taxonomy Extension Definition Linkbase Document
|
|
|
|
101.LAB
|
|
XBRL Taxonomy Extension Label Linkbase Document
|
|
|
|
101.PRE
|
|
XBRL Taxonomy Extension Presentation Linkbase Document
|
|
|
ATHERSYS, INC.
|
|
|
|
|
|
Date: August 7, 2019
|
|
/s/ Gil Van Bokkelen
|
|
|
|
Gil Van Bokkelen
|
|
|
|
Chairman and Chief Executive Officer
|
|
|
|
(principal executive officer authorized to sign on behalf of the registrant)
|
|
|
|
/s/ Laura K. Campbell
|
|
|
|
Laura K. Campbell
|
|
|
|
Senior Vice President of Finance
|
|
|
|
(principal financial and accounting officer authorized to sign on behalf of the registrant)
|
|
1.
|
Grant of Stock Option.
Subject to and upon the terms, conditions, and restrictions set forth in this Agreement, the Company hereby grants to Optionee an Option Right (the “Option”) to purchase [[SHARESGRANTEDWORDS]] ([[SHARESGRANTED]]) Common Shares (the “Option Shares”). The Option may be exercised from time to time in accordance with the terms of this Agreement.
|
2.
|
Type of Option.
Except to the extent of the $100,000 limitation set forth in Section 422(d) of the Code, the Option is intended to be an Incentive Stock Option, and this Agreement shall be construed in a manner that will enable this Option to be so qualified. To the extent, if any, that the $100,000 limitation set forth in Section 422(d) of the Code is exceeded, the Option shall constitute two separate options with the first option covering the number of Common Shares up to the $100,000 limitation intended to be an Incentive Stock Option and the second option covering any excess Common Shares intended to be a nonqualified stock option.
|
3.
|
Option Price.
The Option Shares may be purchased pursuant to this Option at a price of [[GRANTPRICE]] per Common Share, subject to adjustment as hereinafter provided (the “Option Price”).
|
4.
|
Term of Option/Agreement.
The term of the Option shall commence on the Date of Grant and, unless earlier terminated in accordance with Section 7 hereof, shall terminate and expire automatically and without further notice ten (10) years from the Date of Grant.
|
5.
|
Right to Exercise.
|
(a)
|
Subject to Sections 5(b) and (c), Section 7 and Section 10 below, the Option will vest and become exercisable as provided in the attached Exhibit A, for so long as Optionee remains continuously employed with the Company or any Subsidiary. To the extent the Option is exercisable, it may be exercised in whole or in part. In no event shall Optionee be entitled to acquire a fraction of one Option Share pursuant to this Option. Optionee shall be entitled to the privileges of ownership, including dividends, only with respect to Option Shares purchased and delivered to Optionee upon the exercise of all or part of this Option.
|
(b)
|
Notwithstanding Section 5(a) above, the Option shall become immediately exercisable in full, if at any time prior to the termination of the Option, a Change in Control shall occur.
|
(c)
|
Notwithstanding Section 5(a) above, if the Optionee should die or become permanently disabled while in the employ of the Company or any Subsidiary, this Option shall immediately become exercisable in full and shall remain exercisable until terminated in accordance with Section 7 below. The Optionee shall be considered to have become permanently disabled if the Optionee’s employment terminates on account of the Optionee having become “permanently and totally disabled”, as defined in Section 22(e)(3) of the Code.
|
6.
|
Notice of Exercise; Payment.
To the extent then exercisable, the Option may be exercised in whole or in part by written notice to the Company stating the number of Option Shares for which the Option is being exercised and the intended manner of payment. The date of such notice shall be the exercise date. The Option Price shall be payable (a) in cash or by check acceptable to the Company or by wire transfer of immediately available funds, (b) by actual or constructive transfer to the Company of nonforfeitable, unrestricted Common Shares that have been owned by the Optionee for more than six (6) months prior to the date of exercise, (c) for exercises of Options that occur more than one (1) year following the Date of Grant, by transfer to the Company of shares or vested Options (including Options under this Agreement) for the purchase of Common Shares having a fair market value (net of the exercise price) at the time of exercise equal to the portion of the Option Price for which such transfer is made, or (d) by a combination of such methods of payment. The requirement of payment in cash shall be deemed satisfied if the Optionee shall have made arrangements satisfactory to the Company with a bank or a broker who is a member of the National Association of Securities Dealers, Inc. to sell on the exercise date a sufficient number of the shares being purchased so that the net proceeds of the sale transaction will at least equal the Option Price plus payment of any applicable withholding taxes and pursuant to which the bank or broker undertakes to deliver the full Option Price plus payment of any applicable withholding taxes to the Company on a date satisfactory to the Company, but not later than the date on which the sale transaction will settle in the ordinary course of business. As soon as practicable upon the Company’s receipt of Optionee’s notice of exercise and payment, the Company shall direct the due issuance of the Option Shares so purchased.
|
7.
|
Termination.
This Option shall terminate on the earliest of the following dates:
|
(a)
|
The date on which the Optionee ceases to be an employee of the Company or any Subsidiary, if the Optionee’s employment with the Company or a Subsidiary is terminated for Cause ("Cause" being defined as (i) the commission of an act of fraud, embezzlement, theft or other criminal act constituting a felony; or (ii) 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 Optionee);
|
(b)
|
Three (3) months after the Optionee ceases to be an employee of the Company or a Subsidiary, unless the Optionee ceases to be such employee by reason of death, permanent and total disability, Retirement or termination for Cause;
|
(c)
|
One (1) year after the death of the Optionee if the Optionee dies (i) while an employee of the Company or a Subsidiary (in which case the Option becomes immediately exercisable in full pursuant to Section 5(c) herein), (ii) within the three (3) month period following a termination without Cause or (iii) within the three (3) month period following Retirement;
|
(d)
|
One (1) year after the permanent and total disability of the Optionee if the Optionee becomes permanently and totally disabled (as described in Section 5(c) above) while an employee of the Company or a Subsidiary (in which case the Option becomes immediately exercisable in full pursuant to Section 5(c) herein);
|
(e)
|
Five (5) years after the date that the Optionee shall Retire. For this purpose, “Retire” (or similar terms) shall mean that Optionee terminates Optionee’s employment by reason of Optionee’s retirement entitling Optionee to early, normal or late retirement benefits under the provisions of any retirement plan of the Company or its Subsidiaries in which Optionee participates (or if no such plan exists, at or after age sixty-five (65)); and
|
(f)
|
Ten (10) years from the Date of Grant.
|
8.
|
Option Nontransferable.
This Option is not transferable by the Optionee otherwise than by will or the laws of descent and distribution. In no event will any such award granted under this Agreement be transferred for value. This Option may be exercised, during the lifetime of the Optionee, only by Optionee, or in the event of Optionee’s legal incapacity, by Optionee’s guardian or legal representative acting on behalf of Optionee in a fiduciary capacity under state law or court supervision.
|
9.
|
Compliance with Law.
This Option shall not be exercisable if such exercise would involve a violation of any applicable federal, state or other securities law.
|
10.
|
Adjustments.
This Option and the Option Shares subject thereto, and the other terms and conditions of the grant evidenced by this Agreement, are subject to mandatory adjustment, including as provided in Section 12 of the Plan.
|
11.
|
Taxes and Withholding.
To the extent that the Company is required to withhold federal, state, local or foreign taxes or other amounts in connection with any payment made or benefit realized by the Grantee or another person under this Agreement, the Grantee agrees that the Company will withhold any taxes required to be withheld by the Company under federal, state, local or foreign law from the Option Shares in an amount sufficient to satisfy the minimum statutory withholding amount permissible (unless the Committee takes action subsequent to the Date of Grant requiring such withholding amount to be paid by the Grantee in cash). The Option Shares so retained shall be credited against any such withholding requirement at the market value of such Common Shares on the date of such withholding. In no event will the market value of the Common Shares to be withheld pursuant to this Section 11 to satisfy applicable withholding taxes exceed the maximum amount of taxes or other amounts that could be required to be withheld.
|
12.
|
Mandatory Notice of Disqualifying Disposition.
Without limiting any other provision hereof, Optionee hereby agrees that if Optionee disposes (whether by sale, exchange, gift or otherwise) of any of the Option Shares acquired pursuant to the exercise of any Incentive Stock Option memorialized by this Agreement within two (2) years of the Date of Grant or within one (1) year after the transfer of such share or shares to Optionee, Optionee shall notify the Company of such disposition in writing within thirty (30) days from the date of such disposition. Such written notice shall state the principal terms of such disposition and the type and amount of the consideration received for such share or shares by Optionee in connection therewith.
|
13.
|
Continuous Employment.
For purposes of this Agreement, the continuous employment of the Optionee with the Company or a Subsidiary shall not be deemed to have been interrupted, and the Optionee shall not be deemed to have ceased to be an employee of the Company or Subsidiary, by reason of the (a) transfer of the Optionee’s employment among the Company and its Subsidiaries or (b) an approved leave of absence.
|
14.
|
No Employment Contract.
This Option is a voluntary, discretionary award being made on a one-time basis and it does not constitute a commitment to make any future awards. This Option and any payments made hereunder will not be considered salary or other compensation for purposes of any severance pay or similar allowance, except as otherwise required by law. Nothing in this Agreement will give the Optionee any right to continue employment with the Company or any Subsidiary, as the case may be, or interfere in any way with the right of the Company or a Subsidiary to terminate the employment of the Optionee.
|
15.
|
Information.
Information about the Optionee and the Optionee’s participation in the Plan may be collected, recorded and held, used and disclosed for any purpose related to the administration of the Plan. The Optionee understands that such processing of this information may need to be carried out by the Company and its Subsidiaries and by third party administrators whether such persons are located within the Optionee’s country or elsewhere, including the United States of America. The Optionee consents to the processing of information relating to the Optionee and the Optionee’s participation in the Plan in any one or more of the ways referred to above.
|
16.
|
Relation to Plan.
This Agreement is subject to the terms and conditions of the Plan. In the event of any inconsistency between the provisions of this Agreement and the Plan, the Plan shall govern. All terms used herein with initial capital letters and not otherwise defined herein that are defined in the Plan shall have the meanings assigned to them in the Plan. The Board (or a committee of the Board) acting pursuant to the Plan, as constituted from time to time, shall, except as expressly provided otherwise herein, have the right to determine any questions which arise in connection with the grant of the Option hereunder.
|
17.
|
Amendments.
Any amendment to the Plan shall be deemed to be an amendment to this Agreement to the extent that the amendment is applicable hereto;
provided
,
however
, that no amendment shall materially adversely affect the rights of the Optionee under this Agreement without the Optionee’s consent.
|
18.
|
Severability.
If any provision of this Agreement or the application of any provision hereof to any person or circumstances is held invalid, unenforceable or otherwise illegal, the remainder of this Agreement and the application of such provision to any other person or circumstances shall not be affected, and the provisions so held to be invalid, unenforceable or otherwise illegal shall be reformed to the extent (and only to the extent) necessary to make it enforceable, valid and legal.
|
19.
|
Successors and Assigns.
Without limiting Section 8 hereof, the provisions of this Agreement shall inure to the benefit of, and be binding upon, the successors, administrators, heirs, legal representatives and assigns of the Optionee, and the successors and assigns of the Company.
|
20.
|
Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same Agreement.
|
21.
|
Governing Law.
This Agreement shall be governed by and construed in accordance with the internal substantive laws of the State of Delaware, without giving effect to any principle of law that would result in the application of the law of any other jurisdiction.
|
22.
|
Notices.
Any notice to the Company provided for herein shall be in writing to the Company, marked Attention: President, and any notice to Optionee shall be addressed to said Optionee at Optionee’s address on file with the Company at the time of such notice. Except as otherwise provided herein, any written notice shall be deemed to be duly given if and when delivered personally or deposited in the United States mail, first class registered mail, postage and fees prepaid, and addressed as aforesaid. Any party may change the address to which notices are to be given hereunder by written notice to the other party as herein specified (provided that for this purpose any mailed notice shall be deemed given on the third business day following deposit of the same in the United States mail).
|
1.
|
Grant of Stock Option.
Subject to and upon the terms, conditions, and restrictions set forth in this Agreement, the Company hereby grants to Optionee an Option Right (the “Option”) to purchase _____ Thousand, _______ Hundred and ________ (___,___) Common Shares (the “Option Shares”). The Option may be exercised from time to time in accordance with the terms of this Agreement.
|
2.
|
Type of Option.
The Option is intended to be a nonqualified stock option and shall not be treated as an Incentive Stock Option.
|
3.
|
Option Price.
The Option Shares may be purchased pursuant to this Option at a price of ____ Dollars and _____ Cents ($_____) per Common Share, subject to adjustment as hereinafter provided (the “Option Price”).
|
4.
|
Term of Option/Agreement.
The term of the Option shall commence on the Date of Grant and, unless earlier terminated in accordance with Section 7 hereof, shall terminate and expire automatically and without further notice ten (10) years from the Date of Grant.
|
5.
|
Right to Exercise.
|
(a)
|
Subject to Section 5(b) and (c), Section 7 and Section 10, the Option will vest and become exercisable as provided in the attached Exhibit A, for so long as Optionee remains continuously employed with the Company or any Subsidiary. To the extent the Option is exercisable, it may be exercised in whole or in part. In no event shall Optionee be entitled to acquire a fraction of one Option Share pursuant to this Option. Optionee shall be entitled to the privileges of ownership, including dividends, only with respect to Option Shares purchased and delivered to Optionee upon the exercise of all or part of this Option.
|
(b)
|
Notwithstanding Section 5(a) above, the Option shall become immediately exercisable in full, if at any time prior to the termination of the Option, a Change in Control shall occur.
|
(c)
|
Notwithstanding Section 5(a) above, if the Optionee should die or become permanently disabled while in the employ of the Company or any Subsidiary, this Option shall immediately become exercisable in full and shall remain exercisable until terminated in accordance with Section 7 below. The Optionee shall be considered to have become permanently disabled if the Optionee’s employment terminates on account of the Optionee having become “permanently and totally disabled”, as defined in Section 22(e)(3) of the Code.
|
6.
|
Notice of Exercise; Payment.
To the extent then exercisable, the Option may be exercised in whole or in part by written notice to the Company stating the number of Option Shares for which
|
7.
|
Termination.
This Option shall terminate on the earliest of the following dates:
|
(a)
|
The date on which the Optionee ceases to be an employee of the Company or any Subsidiary, if the Optionee’s employment with the Company or a Subsidiary is terminated for Cause ("Cause" being defined as: (i) the commission of an act of fraud, embezzlement, theft or other criminal act constituting a felony; or (ii) 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 Optionee);
|
(b)
|
Three (3) months after the Optionee ceases to be an employee of the Company or a Subsidiary, unless the Optionee ceases to be such employee by reason of death, permanent and total disability, Retirement or termination for Cause;
|
(c)
|
One (1) year after the death of the Optionee if the Optionee dies (i) while an employee of the Company or a Subsidiary (in which case the Option becomes immediately exercisable in full pursuant to Section 5(c) herein), (ii) within the three (3) month period following a termination without Cause or (iii) within the three (3) month period following Retirement;
|
(d)
|
One (1) year after the permanent and total disability of the Optionee if the Optionee becomes permanently and totally disabled (as described in Section 5(c) above) while an employee of the Company or a Subsidiary (in which case the Option becomes immediately exercisable in full pursuant to Section 5(c) herein);
|
(e)
|
Five (5) years after the date that the Optionee shall Retire. For this purpose, “Retire” (or similar terms) shall mean that Optionee terminates Optionee’s employment by reason of
|
(f)
|
Ten (10) years from the Date of Grant.
|
8.
|
Option Nontransferable.
This Option is not transferable by the Optionee otherwise than by will or the laws of descent and distribution. In no event will any such award granted under this Agreement be transferred for value. This Option may be exercised, during the lifetime of the Optionee, only by Optionee, or in the event of Optionee’s legal incapacity, by Optionee’s guardian or legal representative acting on behalf of Optionee in a fiduciary capacity under state law or court supervision.
|
9.
|
Compliance with Law.
This Option shall not be exercisable if such exercise would involve a violation of any applicable federal, state or other securities law.
|
10.
|
Adjustments.
This Option and the Option Shares subject thereto, and the other terms and conditions of the grant evidenced by this Agreement, are subject to mandatory adjustment, including as provided in Section 12 of the Plan.
|
11.
|
Taxes and Withholding.
To the extent that the Company is required to withhold federal, state, local or foreign taxes or other amounts in connection with any payment made or benefit realized by the Grantee or another person under this Agreement, the Grantee agrees that the Company will withhold any taxes required to be withheld by the Company under federal, state, local or foreign law from the Option Shares in an amount sufficient to satisfy the minimum statutory withholding amount permissible (unless the Committee takes action subsequent to the Date of Grant requiring such withholding amount to be paid by the Grantee in cash). The Option Shares so retained shall be credited against any such withholding requirement at the market value of such Common Shares on the date of such withholding. In no event will the market value of the Common Shares to be withheld pursuant to this Section 11 to satisfy applicable withholding taxes exceed the maximum amount of taxes or other amounts that could be required to be withheld.
|
12.
|
Continuous Employment.
For purposes of this Agreement, the continuous employment of the Optionee with the Company or a Subsidiary shall not be deemed to have been interrupted, and the Optionee shall not be deemed to have ceased to be an employee of the Company or Subsidiary, by reason of the (a) transfer of the Optionee’s employment among the Company and its Subsidiaries or (b) an approved leave of absence.
|
13.
|
No Employment Contract.
This Option is a voluntary, discretionary award being made on a one-time basis and it does not constitute a commitment to make any future awards. This Option and any payments made hereunder will not be considered salary or other compensation for purposes of any severance pay or similar allowance, except as otherwise required by law. Nothing in this Agreement will give the Optionee any right to continue employment with the Company or any Subsidiary, as the case may be, or interfere in any way with the right of the Company or a Subsidiary to terminate the employment of the Optionee.
|
14.
|
Information.
Information about the Optionee and the Optionee’s participation in the Plan may be collected, recorded and held, used and disclosed for any purpose related to the administration of the Plan. The Optionee understands that such processing of this information may need to be carried out by the Company and its Subsidiaries and by third party administrators whether such
|
15.
|
Relation to Plan.
This Agreement is subject to the terms and conditions of the Plan. In the event of any inconsistency between the provisions of this Agreement and the Plan, the Plan shall govern. All terms used herein with initial capital letters and not otherwise defined herein that are defined in the Plan shall have the meanings assigned to them in the Plan. The Board (or a committee of the Board) acting pursuant to the Plan, as constituted from time to time, shall, except as expressly provided otherwise herein, have the right to determine any questions which arise in connection with the grant of the Option hereunder.
|
16.
|
Amendments.
Any amendment to the Plan shall be deemed to be an amendment to this Agreement to the extent that the amendment is applicable hereto;
provided
,
however
, that no amendment shall materially adversely affect the rights of the Optionee under this Agreement without the Optionee’s consent.
|
17.
|
Severability.
If any provision of this Agreement or the application of any provision hereof to any person or circumstances is held invalid, unenforceable or otherwise illegal, the remainder of this Agreement and the application of such provision to any other person or circumstances shall not be affected, and the provisions so held to be invalid, unenforceable or otherwise illegal shall be reformed to the extent (and only to the extent) necessary to make it enforceable, valid and legal.
|
18.
|
Successors and Assigns.
Without limiting Section 8 hereof, the provisions of this Agreement shall inure to the benefit of, and be binding upon, the successors, administrators, heirs, legal representatives and assigns of the Optionee, and the successors and assigns of the Company.
|
19.
|
Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same Agreement.
|
20.
|
Governing Law.
This Agreement shall be governed by and construed in accordance with the internal substantive laws of the State of Delaware, without giving effect to any principle of law that would result in the application of the law of any other jurisdiction.
|
21.
|
Notices.
Any notice to the Company provided for herein shall be in writing to the Company, marked Attention: President, and any notice to Optionee shall be addressed to said Optionee at Optionee’s address on file with the Company at the time of such notice. Except as otherwise provided herein, any written notice shall be deemed to be duly given if and when delivered personally or deposited in the United States mail, first class registered mail, postage and fees prepaid, and addressed as aforesaid. Any party may change the address to which notices are to be given hereunder by written notice to the other party as herein specified (provided that for this purpose any mailed notice shall be deemed given on the third business day following deposit of the same in the United States mail).
|
1.
|
Grant of Stock Option.
Subject to and upon the terms, conditions, and restrictions set forth in this Agreement, the Company hereby grants to Optionee an Option Right (the “Option”) to purchase __________Thousand (___,000) Common Shares (the “Option Shares”). The Option may be exercised from time to time in accordance with the terms of this Agreement.
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2.
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Type of Option.
The Option is intended to be a nonqualified stock option and shall not be treated as an Incentive Stock Option.
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3.
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Option Price.
The Option Shares may be purchased pursuant to this Option at a price of __________ Dollars and __________ Cents ($__________) per Common Share, subject to adjustment as hereinafter provided (the “Option Price”).
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4.
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Term of Option/Agreement.
The term of the Option shall commence on the Date of Grant and, unless earlier terminated in accordance with Section 7 hereof, shall terminate and expire automatically and without further notice ten (10) years from the Date of Grant.
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5.
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Right to Exercise.
Subject to Section 7 and Section 10, the Option will vest and become exercisable as provided in the attached Exhibit A, for so long as Optionee continues to perform services for the Company or any Subsidiary. The Option may be exercised in whole or in part. In no event shall Optionee be entitled to acquire a fraction of one Option Share pursuant to this Option. Optionee shall be entitled to the privileges of ownership, including dividends, only with respect to Option Shares purchased and delivered to Optionee upon the exercise of all or part of this Option.
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6.
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Notice of Exercise; Payment.
To the extent then exercisable, the Option may be exercised in whole or in part by written notice to the Company stating the number of Option Shares for which the Option is being exercised and the intended manner of payment. The date of such notice shall be the exercise date. The Option Price shall be payable (a) in cash or by check acceptable to the Company or by wire transfer of immediately available funds, (b) by actual or constructive transfer to the Company of nonforfeitable, unrestricted Common Shares that have been owned by the Optionee for more than six (6) months prior to the date of exercise, (c) for exercises of Options that occur more than one (1) year following the Date of Grant, by transfer to the Company of shares or vested Options (including Options under this Agreement) for the purchase of Common Shares having a fair market value (net of the exercise price) at the time of exercise equal to the portion of the Option Price for which such transfer is made, or (d) by a combination of such methods of payment. The requirement of payment in cash shall be deemed satisfied if the Optionee shall have made arrangements satisfactory to the Company with a bank or a broker who is a member of the National Association of Securities Dealers, Inc. to sell on the exercise date a sufficient number of the shares being purchased so that the net proceeds of the sale transaction will
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7.
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Termination.
This Option shall terminate on the earlier of the following dates:
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(a)
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Eighteen (18) months after the Optionee ceases to perform services for the Company or a Subsidiary; and
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(b)
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Ten (10) years from the Date of Grant.
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8.
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Option Nontransferable.
This Option is not transferable by the Optionee otherwise than by will or the laws of descent and distribution. In no event will any such award granted under this Agreement be transferred for value. This Option may be exercised, during the lifetime of the Optionee, only by Optionee, or in the event of Optionee’s legal incapacity, by Optionee’s guardian or legal representative acting on behalf of Optionee in a fiduciary capacity under state law or court supervision.
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9.
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Compliance with Law.
This Option shall not be exercisable if such exercise would involve a violation of any applicable federal, state or other securities law.
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10.
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Adjustments.
This Option and the Option Shares subject thereto, and the other terms and conditions of the grant evidenced by this Agreement, are subject to mandatory adjustment, including as provided in Section 12 of the Plan.
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11.
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Taxes and Withholding.
To the extent that the Company is required to withhold federal, state, local or foreign taxes or other amounts in connection with any payment made or benefit realized by the Optionee or another person under this Agreement, the Optionee agrees that the Company will withhold any taxes required to be withheld by the Company under federal, state, local or foreign law from the Option Shares in an amount sufficient to satisfy the minimum statutory withholding amount permissible (unless the Committee takes action subsequent to the Date of Grant requiring such withholding amount to be paid by the Optionee in cash). The Option Shares so retained shall be credited against any such withholding requirement at the market value of such Common Shares on the date of such withholding. In no event will the market value of the Common Shares to be withheld pursuant to this Section 11 to satisfy applicable withholding taxes exceed the maximum amount of taxes or other amounts that could be required to be withheld.
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12.
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Information.
Information about the Optionee and the Optionee’s participation in the Plan may be collected, recorded and held, used and disclosed for any purpose related to the administration of the Plan. The Optionee understands that such processing of this information may need to be carried out by the Company and its Subsidiaries and by third party administrators whether such persons are located within the Optionee’s country or elsewhere, including the United States of
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13.
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Relation to Plan.
This Agreement is subject to the terms and conditions of the Plan. In the event of any inconsistency between the provisions of this Agreement and the Plan, the Plan shall govern. All terms used herein with initial capital letters and not otherwise defined herein that are defined in the Plan shall have the meanings assigned to them in the Plan. The Board (or a committee of the Board) acting pursuant to the Plan, as constituted from time to time, shall, except as expressly provided otherwise herein, have the right to determine any questions which arise in connection with the grant of the Option hereunder.
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14.
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Amendments.
Any amendment to the Plan shall be deemed to be an amendment to this Agreement to the extent that the amendment is applicable hereto;
provided
,
however
, that no amendment shall materially adversely affect the rights of the Optionee under this Agreement without the Optionee’s consent.
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15.
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Severability.
If any provision of this Agreement or the application of any provision hereof to any person or circumstances is held invalid, unenforceable or otherwise illegal, the remainder of this Agreement and the application of such provision to any other person or circumstances shall not be affected, and the provisions so held to be invalid, unenforceable or otherwise illegal shall be reformed to the extent (and only to the extent) necessary to make it enforceable, valid and legal.
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16.
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Successors and Assigns.
Without limiting Section 8 hereof, the provisions of this Agreement shall inure to the benefit of, and be binding upon, the successors, administrators, heirs, legal representatives and assigns of the Optionee, and the successors and assigns of the Company.
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17.
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Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same Agreement.
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18.
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Governing Law.
This Agreement shall be governed by and construed in accordance with the internal substantive laws of the State of Delaware, without giving effect to any principle of law that would result in the application of the law of any other jurisdiction.
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19.
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Notices.
Any notice to the Company provided for herein shall be in writing to the Company, marked Attention: President, and any notice to Optionee shall be addressed to said Optionee at Optionee’s address on file with the Company at the time of such notice. Except as otherwise provided herein, any written notice shall be deemed to be duly given if and when delivered personally or deposited in the United States mail, first class registered mail, postage and fees prepaid, and addressed as aforesaid. Any party may change the address to which notices are to be given hereunder by written notice to the other party as herein specified (provided that for this purpose any mailed notice shall be deemed given on the third business day following deposit of the same in the United States mail).
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Vesting Date
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Option Shares Vesting
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Total Option Shares Vested
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Price/Share
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[last vesting date]
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[underline]
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[total shares]
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[total shares]
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1.
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I have reviewed this quarterly report on Form 10-Q of Athersys, Inc.;
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2.
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Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
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3.
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Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
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4.
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The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have
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(a)
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Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
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(b)
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Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
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(c)
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Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
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(d)
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Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
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5.
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The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
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(a)
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All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
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(b)
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Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
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August 7, 2019
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/s/ Gil Van Bokkelen
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Gil Van Bokkelen
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Chief Executive Officer and
Chairman of the Board of Directors
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1.
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I have reviewed this quarterly report on Form 10-Q of Athersys, Inc.;
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2.
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Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
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3.
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Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
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4.
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The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have
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(a)
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Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
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(b)
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Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
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(c)
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Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
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(d)
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Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
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5.
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The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
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(a)
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All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
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(b)
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Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
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August 7, 2019
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/s/ Laura K. Campbell
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Laura K. Campbell
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Senior Vice President of Finance
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(1)
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The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
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(2)
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The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company as of the dates and for the periods expressed in the Report.
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Date: August 7, 2019
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/s/ Gil Van Bokkelen
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Name: Gil Van Bokkelen
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Title: Chairman and Chief Executive Officer
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/s/ Laura K. Campbell
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Name: Laura K. Campbell
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Title: Senior Vice President of Finance
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