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Exhibit 4.7
SHARE TRANSFER AND RESTRICTION AGREEMENT
Share Transfer and Restriction Agreement (this "AGREEMENT"),
dated as of October 6, 2000, by and among Athersys, Inc., a Delaware corporation
(the "COMPANY"), Biotech 3 Investment L.L.C., a Delaware limited liability
company ("BIOTECH"), Xxxx X. Xxxxxxx ("XXXXXXX") and Xxxxxxx Xxxxx ("XXXXX").
RECITALS:
WHEREAS, the Company and Biotech are parties to that certain
Amended and Restated Stockholders' Agreement, dated as of April 28, 2000, as it
may be amended from time to time (the "STOCKHOLDERS' AGREEMENT"), by and among
the Company, Biotech and certain other holders (collectively, the "HOLDERS") of
capital stock of the Company;
WHEREAS, Biotech desires to sell, and Xxx Xxxxxxx Funds and
its affiliates ("XXX XXXXXXX") desires to purchase shares of the Company's
capital stock pursuant to the terms and conditions set forth in that certain
Stock Purchase Agreement, dated as of October 6, 2000 (the "BIOTECH AGREEMENT"),
by and between Biotech and Xxx Xxxxxxx;
WHEREAS, Company currently intends to file a registration
statement on Form S-1 with the Securities and Exchange Commission;
WHEREAS, in furtherance of the transactions contemplated by
the Biotech Agreement, the Company has agreed to amend the Stockholders'
Agreement, subject to necessary approval of the parties thereto; and
WHEREAS, Biotech, Xxxxxxx and Xxxxx have agreed to enter into
this Agreement in consideration for the Company agreeing to amend the
Stockholders' Agreement in order to permit the transactions contemplated by the
Biotech Agreement to be consummated without first giving the notice required by
Section 3 of the Stockholders' Agreement and use its reasonable best efforts to
obtain the requisite consent of the Holders to such amendment.
AGREEMENTS:
NOW, THEREFORE, the parties, intending to be legally bound,
agree as follows:
SECTION 1. LOCKUP AGREEMENT RELATING TO INITIAL PUBLIC
OFFERING. The Company represents and warrants that the IPO Lockup Agreement (as
defined below) is identical to the lockup agreements that have been or will be
executed by all directors, officers and those persons and entities that, as of
the date of this Agreement, hold more than one percent of the outstanding shares
of Common Stock (as defined below) on a fully diluted basis (collectively,
"RESTRICTED PARTIES"). Each of Biotech, Xxxxxxx and Sacks, severally and not
jointly, hereby represents and warrants to the Company that he or it (i) has
duly executed a lockup agreement in the form attached hereto as ANNEX A (the
"IPO LOCKUP AGREEMENT") in connection with the
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initial Public Offering (as defined in Section 6) (the "IPO") of the Company's
Common Stock, par value $.01 per share (the "COMMON Stock"), (ii) has delivered
his or its executed IPO Lockup Agreement to Pillsbury Madison & Sutro LLP, as
escrow agent ("PMS"), and (iii) has irrevocably instructed PMS to hold the
executed IPO Lockup Agreement in escrow until such time as the conditions set
forth in Section 11.1 of the Biotech Agreement have been satisfied (the "RELEASE
EVENT"), and to immediately deliver by telecopy his or its executed IPO Lockup
Agreement to Credit Suisse First Boston Corporation, as representative of the
several underwriters for the IPO ("CSFB"), 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Xxxxxxx Xxxxxxxxxxxxxx, Telecopy No. (000) 000-0000, upon
receipt by PMS of a written notice from the Company that the Release Event has
occurred.
SECTION 2. ADDITIONAL RESTRICTIONS RELATING TO INITIAL PUBLIC
OFFERING. (a) Except as expressly provided by or contemplated under the Biotech
Agreement, from the date of this Agreement until the close of business on the
180th day after the date set forth on the final prospectus used to sell shares
of Common Stock in the IPO, so long as such date is on or before March 31, 2001
(the "PUBLIC OFFERING DATE"), none of Biotech, Xxxxxxx or Sacks may offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly, any
Securities (as defined in the IPO Lockup Agreement), or enter into any
transaction that would have the same effect, or enter into any swap, hedge or
other arrangement that transfers, in whole or in part, any of the economic
consequences of ownership of the Securities, to any person or entity, including
without limitation any member of Biotech or any other affiliate of any of
Biotech, Xxxxxxx or Xxxxx, whether any such aforementioned transaction is to be
settled by delivery of the Securities, in cash or otherwise, or publicly
disclose the intention to make any such offer, sale, pledge or disposition, or
to enter into any such transaction, swap, hedge, or other arrangement, without,
in each case, the prior written consent of CSFB. The transactions described in
this Section 2(a) are collectively referred to herein as "TRANSFERS."
(b) Since the respective dates of acquisition of their shares
of capital stock of the Company, none of Biotech, Xxxxxxx or Sacks have
Transferred any shares of capital stock, other than Biotech's Transfer of
options to purchase shares of the Company's convertible preferred stock to Ohio
Innovation Fund I, L.P. in June 1998.
SECTION 3. RESTRICTIONS ON PUBLIC SALES AND DISTRIBUTIONS
FOLLOWING THE INITIAL PUBLIC OFFERING. From the close of business on the 180th
day following the Public Offering Date until the close of business on the 360th
day following the Public Offering Date, none of Biotech, Xxxxxxx, Xxxxx or any
of their Permitted Transferees (as defined in Section 4) shall, individually or
collectively, effect any Transfer of shares of Common Stock in an amount that
exceeds, in the aggregate, the lesser of (i) 1.2 million shares of Common Stock
(as adjusted for any stock split, subdivision, split-up, combination or
reclassification of the Common Stock, or any stock dividend payable in shares of
Common Stock), and (ii) a number of shares of Common Stock yielding gross
proceeds of $30.0 million in the aggregate, in either case other than a Transfer
expressly contemplated by Section 4, the Biotech Agreement or a sale pursuant to
Sections 2 or 3 of the Amended and Restated Registration Rights Agreement, dated
as of April 28, 2000, as it may be further amended from time to time (the
"REGISTRATION RIGHTS AGREEMENT"), between the Company, Biotech, and certain
other holders of the capital stock of the Company. If any shares of Common Stock
are Transferred to a member of Biotech (or by a member of Biotech to an
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investor in such a member) pursuant to this Section 3, as a condition of such
Transfer, the transferee shall be required to execute a joinder agreement and to
become a party to and subject to the provisions of this Agreement.
SECTION 4. RESTRICTIONS ON OTHER TRANSFERS FOLLOWING THE
INITIAL PUBLIC OFFERING. From the 181st day following the Public Offering Date
until the 360th day following the Public Offering Date, any of Biotech, Xxxxxxx,
Xxxxx or their respective Permitted Transferees (as defined below) may Transfer
shares of Common Stock to any person or entity that is a member of Biotech (or,
in the case of a Transfer by a Permitted Transferee, a member of Biotech or an
investor in such a member), so long as upon any such Transfer of shares of
Common Stock, as a condition to such Transfer, the transferee shall be required
to execute a joinder agreement to become a party to and subject to the
provisions of this Agreement (such transferees, "PERMITTED TRANSFEREES").
SECTION 5. EFFECT; COOPERATION. Any Transfer of shares of
Common Stock that is not made strictly in accordance with Section 3 or Section 4
shall be null and void, and neither the Company nor its transfer agent, if any,
will recognize any such Transfer or the purported transferee as a holder of
shares of Common Stock. The Company shall reasonably cooperate with Biotech,
Xxxxxxx, Sacks and their respective Permitted Transferees to facilitate any
Transfer of shares of Common Stock held by any of Biotech, Xxxxxxx, Xxxxx or
their respective Permitted Transferees that is in accordance with the provisions
of the Stockholders' Agreement and this Agreement, including, without
limitation, facilitating sales and other dispositions under Rule 144 promulgated
under the Securities Act or otherwise.
SECTION 6. EXECUTION OF LOCKUP AGREEMENTS. Until the close of
business, New York City time, on December 31, 2001, in connection with any
underwritten public offering (a "PUBLIC OFFERING") of the Common Stock, each of
Biotech, Xxxxxxx, Sacks and their respective Permitted Transferees shall execute
the form of "lockup" agreement ("LOCKUP AGREEMENT") for a period not to exceed
180 days after the effective date of the Public Offering that the managing
underwriter(s) for the Public Offering requires the Restricted Parties to
execute, and shall deliver the executed Lockup Agreement to the Company and/or
the managing underwriter(s) on or before the date that all other Restricted
Parties are requested to deliver Lockup Agreements to the Company and/or the
managing underwriter(s), PROVIDED, that all other Restricted Parties enter into
the same form of Lockup Agreement with respect to such Public Offering, and
PROVIDED, FURTHER, that the Company and the managing underwriter(s) for the
Public Offering shall agree not to release any other Restricted Party from the
Lockup Agreement prior to the release of Biotech, Lampert, Sacks, and their
Permitted Transferees and PROVIDED, FURTHER, that this Section 6 shall not
require any of Biotech, Xxxxxxx, Xxxxx or any of their Permitted Transferees to
execute and deliver Lockup Agreements in connection with more than two Public
Offerings. A Lockup Agreement will not constitute one of the two Lockup
Agreements required to be executed pursuant to this Section 6 until the Public
Offering to which it relates has closed.
SECTION 7. RESCISSION OF EXERCISE OF PIGGYBACK REGISTRATION
RIGHTS. Effective upon the Release Event, Biotech rescinds in all respects its
letter to the Company dated September 29, 2000 (the "EXERCISE NOTICE"), pursuant
to which Biotech gave notice of its intention to exercise its piggyback
registration rights pursuant to the applicable provisions of the
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Registration Rights Agreement, and agrees that upon the Release Event the
Exercise Notice shall be null and void and of no further force or effect.
SECTION 8. REFERENCE ON CERTIFICATES. Upon consummation of the
transactions contemplated by the Biotech Agreement, in addition to any other
legends required by the Stockholders' Agreement or the Registration Rights
Agreement, each certificate representing shares of capital stock of the Company
now or hereafter held by any of Biotech, Xxxxxxx, Sacks or any of their
respective Permitted Transferees shall contain a legend in substantially the
following form:
THE TRANSFER OF THE SHARES OF STOCK REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED UNDER THE TERMS OF A SHARE TRANSFER AND
RESTRICTION AGREEMENT, DATED AS OF OCTOBER 6, 2000, AS IT MAY BE
AMENDED FROM TIME TO TIME, BY AND AMONG ATHERSYS, INC. AND CERTAIN
HOLDERS OF ITS SECURITIES, A COPY OF WHICH AGREEMENT WILL BE MAILED TO
THE HOLDER HEREOF WITHOUT CHARGE WITHIN FIVE DAYS AFTER RECEIPT BY
ATHERSYS, INC. OF WRITTEN REQUEST THEREFOR.
SECTION 9. TERMINATION. This Agreement shall terminate and be
null and void and of no further force and effect if the Biotech Agreement is
terminated without the Closing (as defined in the Biotech Agreement) having
occurred, or if the parties to this Agreement mutually agree that the Release
Event cannot reasonably be expected to occur, which agreement shall not be
unreasonably withheld.
SECTION 10. MULTIPLE COUNTERPARTS. This Agreement 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 Agreement.
SECTION 11. GOVERNING LAW. This Agreement shall be governed by
the laws of the State of Delaware, without reference to its conflict of law
principles.
SECTION 12. SEVERABILITY. If any section, paragraph,
subparagraph or provision of this Agreement is found for any reason whatsoever
to be invalid or inoperative, that section, paragraph, subparagraph or provision
will be deemed severable and will not affect the force and validity of any other
provision of this Agreement. If any section, paragraph, subparagraph or
provision of this Agreement is determined by a court to be invalid or
inoperative, the parties agree and it is their desire that such court substitute
a reasonable judicially enforceable provision in place of the invalid or
inoperative provision and that as so modified the provision will be as fully
enforceable as if set forth in this Agreement by the parties themselves in the
modified form.
SECTION 13. HEADINGS; REFERENCES. The headings and subheadings
in this Agreement are for convenience of reference only and are not part of this
Agreement and will not be used in construing it. References to Sections and
Annexes in this Agreement are references to Sections of and Annexes to this
Agreement unless the context clearly requires otherwise.
SECTION 14. REMEDIES. Any person or entity having rights under
any provision of this Agreement will be entitled to enforce such rights
specifically to recover damages caused
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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 for specific performance and for other
injunctive relief in order to enforce or prevent violation of the provisions of
this Agreement.
SECTION 15. ATTORNEYS' FEES. If any action at law or in equity
(including arbitration) is necessary to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees,
costs and necessary disbursements in addition to any other relief to which such
party is entitled as determined by such court, equity or arbitration proceeding.
SECTION 16. ENTIRE AGREEMENT; CONFLICTS. This Agreement, the
Stockholders' Agreement and the Registration Rights Agreement together
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 Agreement. In the event of a conflict between the provisions of this
Agreement and the Stockholders' Agreement, the terms of this Agreement shall
prevail. Nothing herein is intended to modify or amend the Registration Rights
Agreement.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties have executed this Share Transfer and
Restriction Agreement as of the date first above written.
ATHERSYS, INC.
By: /s/ Gil Van Bokkelen
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Gil Van Bokkelen
President and Chief Executive Officer
BIOTECH 3 INVESTMENT L.L.C.
By: BVF Partners L.P., its Manager
By: BVF Inc., its general partner
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
President
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
