This Cooperation Agreement (this Agreement) is made and entered into as of February 16, 2021, by and among Athersys, Inc. (the Company), on the one hand, and HEALIOS K.K. (Healios) and Dr. Tadahisa Kagimoto, on the other hand (each of the Company, Healios and Dr. Kagimoto, a Party to this Agreement, and collectively, the Parties). All capitalized terms used but not defined herein shall have such meaning ascribed to them in that certain Investor Rights Agreement, dated as of March 14, 2018, by and between the Company and Healios (the Investor Rights Agreement).
WHEREAS, as of the date hereof, Healios has a beneficial ownership (as determined under Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended, or the rules or regulations promulgated thereunder (the Exchange Act)) interest in the Common Stock, par value $0.001 per share, of the Company (the Common Stock) totaling, in the aggregate, 16,310,526 shares;
WHEREAS, on March 14, 2018, the Company and Healios entered into the Investor Rights Agreement;
WHEREAS, pursuant to Section 8.3(b) of the Investor Rights Agreement, Healios submitted a letter to the Company prior to February 10, 2021 (the Nomination Notice), nominating Dr. Hardy Kagimoto to be elected to the Board of Directors of the Company (the Board) at the Companys 2021 annual meeting of stockholders (the 2021 Annual Meeting);
WHEREAS, on October 19, 2020, Dr. Kagimoto, a director of the Company and Chairman and CEO of Healios, submitted to the Company a request for information (the 220 Demand) pursuant to Section 220(d) of the General Corporation Law of the State of Delaware (the DGCL);
WHEREAS, in connection with the 220 Demand, on November 21, 2020, Dr. Kagimoto commenced an action against the Company in the Court of Chancery of the State of Delaware (the Chancery Court), captioned Hardy TS Kagimoto v. Athersys, Inc. (the Section 220 Litigation);
WHEREAS, as of the date hereof, the Company and Healios have determined to come to an agreement regarding the governance and management of the Company and certain other matters, including, among others, with respect to the 220 Demand and the Section 220 Litigation, as provided in this Agreement;
WHEREAS, Dr. Van Bokkelen has ceased to serve as an officer and employee of the Company; and
WHEREAS, William Lehmann is being appointed as interim Chief Executive Officer and Dr. Ismail Kola is being appointed as Chairman of the Board.