Exemption from Registration; Stockholders’ Agreement Clause Samples

Exemption from Registration; Stockholders’ Agreement. (a) The Note and any shares of Company capital stock issuable upon conversion of the Note (the “Conversion Shares”) (a) have not been registered under the Securities Act of Table of Contents 1933, as amended (the “Securities Act”), or any applicable state or other securities laws, (b) will be issued under an exemption or exemptions from registration under the Securities Act and any applicable state and other securities laws, and (c) will be restricted securities (as that term is defined in Rule 144(a)(3) promulgated under the Securities Act) and may not be resold unless such Note or such Conversion Shares, as applicable, are registered under the Securities Act and any applicable state and other securities laws or an exemption from registration is available. Accordingly, the certificate(s) evidencing the shares of Conversion Shares shall, upon issuance, contain legends in substantially the following form (in addition to any other legends required to be placed thereon under applicable securities laws): THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT UNDER ANY CIRCUMSTANCES BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY OTHER APPLICABLE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR APPLICABLE SECURITIES LAWS. THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS ALSO SUBJECT TO THE RESTRICTIONS CONTAINED IN THE AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT, DATED AS OF APRIL 28, 2000, AS AMENDED, BY AND AMONG ATHERSYS, INC. AND THE STOCKHOLDERS OF ATHERSYS, INC. IN ACCORDANCE WITH THAT CERTAIN JOINDER AGREEMENT, DATED , 200 , BY AND BETWEEN ATHERSYS, INC. AND ANGIOTECH PHARMACEUTICALS, INC. (b) Buyer acknowledges that, as a condition precedent to the issuance of any Conversion Shares in connection with the conversion of the Note, Buyer shall enter into a joinder agreement to the Stockholders’ Agreement pursuant to which it will agree to be a party to, and bound by the terms and conditions of, the Stockholders’ Agreement.