Filing Details

Athersys, Inc.

(Name of Issuer)

Common Stock, par value US$0.001 per share

(Title of Class of Securities)

0474L106

(CUSIP Number)

Kenton King, Esq. Skadden, Arps, Slate, Meagher & Flom LLP 525 University Avenue Palo Alto, CA 94301 (650) 470-4500

Kenji Taneda, Esq. Skadden, Arps, Slate, Meagher & Flom LLP Izumi Garden Tower, 37th Floor 1-6-1, Roppongi, Minato-ku Tokyo 106-6037, Japan +81-3-3568-2626

November 23, 2020

(Date of Event which Requires Filing of this Statement)

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Explanatory Note:

This Amendment No. 7 to Schedule 13D (this “Seventh Amendment”) is filed to amend the initial Statement on Schedule 13D (the “Initial Statement”) relating to the common stock, par value $0.001 per share (the “Common Stock”), of Athersys, Inc., a Delaware Corporation (“Athersys” or the “Issuer”), as filed with the U.S. Securities and Exchange Commission (the “SEC”) on March 23, 2018 and as amended pursuant to Amendment No. 1 to the Initial Statement, as filed with the SEC on June 11, 2018 (the “First Amendment”), Amendment No. 2 to the Initial Statement, as filed with the SEC on July 2, 2018 (the “Second Amendment”), Amendment No. 3 to the Initial Statement, as filed with the SEC on April 2, 2020 (the “Third Amendment”), Amendment No. 4 to the Initial Statement, as filed with the SEC on May 15, 2020 (the “Fourth Amendment”), Amendment No. 5 to the Initial Statement, as filed with the SEC on November 13, 2020 (the “Fifth Amendment”) and Amendment No. 6 to the Initial Statement, as filed with the SEC on November 18, 2020 (the “Sixth Amendment”). The Initial Statement, as amended by the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the Sixth Amendment and this Seventh Amendment, is referred to herein as the “Statement”. Unless set forth below, all previous Items are unchanged, and the Statement remains in full force and effect, except as expressly amended below. Capitalized terms used herein which are not defined herein have the meanings given to them in the Statement.

Item 4.  Purpose of Transaction.

Item 4 of the Schedule 13D is hereby amended and supplemented by the addition of the following:

On November 21, 2020, Hardy TS Kagimoto, M.D., a director of Athersys, filed a complaint (the “Complaint”) for the inspection of books and records in the Court of Chancery of Delaware against Athersys.  The Complaint seeks to enforce Dr. Kagimoto’s right to inspect certain books and records of Athersys.  Dr. Kagimoto delivered a demand for inspection of such books and records on October 19, 2020.  As of the date of the filing of the Complaint, Athersys has not allowed Dr. Kagimoto access to the books and records specified in the demand.

The description of the Complaint is qualified in its entirety by the text of the Complaint, a copy of which is filed as Exhibit 99.1 to this Seventh Amendment and is incorporated by reference herein.

Dr. Kagimoto believes it is unfortunate that he has been left with no choice but to file the Complaint in order to receive the information that he is entitled to as a director of Athersys so that he may fulfill his fiduciary duties and ensure that other members of the board of directors (the “Board”) are fulfilling and not violating their respective fiduciary duties.  Dr. Kagimoto has attempted in good faith to bring to the attention of Athersys management significant issues to be addressed in its operational execution.  In light of continued failures in Athersys management’s operational execution, Dr. Kagimoto has urged the Board to be more vigilant in the exercise of its oversight responsibilities.  Rather than responding constructively to Dr. Kagimoto’s efforts to encourage the Athersys management team led by Dr. Van Bokkelen to improve its operational execution and to encourage the Board also led by Dr. Van Bokkelen to improve its corporate governance and management oversight, the Board has sought to isolate and exclude Dr. Kagimoto.

Healios may change its intention with respect to any and all matters referred to in Item 4. Healios intends to review its investment in the Issuer on an ongoing basis and may from time to time in the future express its views to and/or meet with management, the Board, other stockholders or third parties, including, potential partners, service providers and financing sources, and/or may formulate plans or proposals regarding the Issuer, its assets or its securities. Such possible plans or proposals may include one or more plans or proposals that relate to or would result in one or more of the changes referred to herein, or any of the matters set forth in subparagraphs (a) - (j) of Item 4 of Schedule 13D.

Item 7.  Material to be Filed as Exhibits.

Item 7 of the Schedule 13D is hereby amended and supplemented to add the following:

 

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: November 23, 2020