Exhibit 5.1
NORTH POINT • 901 LAKESIDE AVENUE • CLEVELAND, OHIO 44114.1190
TELEPHONE: +1.216.586.3939 • JONESDAY.COM
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May 26, 2023
Athersys, Inc. 3201 Carnegie Avenue Cleveland, OH 44115-2634
Re: | Registration Statement on Form S-3 Filed by Athersys, Inc. |
Ladies and Gentlemen:
We have acted as counsel for Athersys, Inc., a Delaware corporation (the “Company”), in connection with the registration for resale from time to time by certain of the Company’s stockholders of up to 5,685,000 shares of the Company’s common stock, par value $0.001 per share (“Common Stock”), consisting of (1) up to 2,000,000 shares (the “September Warrant Shares”) of Common Stock issuable upon the exercise of the Company’s warrants (the “September Warrants”) issued pursuant to the Securities Purchase Agreement, dated August 15, 2022, as amended on September 22, 2022 (the “September Purchase Agreement”), between the Company and each purchaser identified on the signature pages thereto and (2) up to 3,685,000 shares of Common Stock (together with the September Warrant Shares, the “Warrant Shares”) issuable upon the exercise of the Company’s warrants (together with the September Warrants, the “Warrants”) issued pursuant to the Securities Purchase Agreement, dated April 18, 2023 (together with the September Purchase Agreement, the “Securities Purchase Agreements”), between the Company and each purchaser identified on the signature pages thereto, in each case as contemplated by the Company’s Registration Statement on Form S-3 to which this opinion is filed as an exhibit (as the same may be amended from time to time, the “Registration Statement”). The Warrant Shares may be offered and sold from time to time pursuant to Rule 415 under the Securities Act of 1933 (the “Securities Act”).
In connection with the opinions expressed herein, we have examined such documents, records and matters of law as we have deemed relevant or necessary for purposes of such opinions. Based on the foregoing, and subject to the further assumptions, qualifications and limitations set forth herein, we are of the opinion that the Warrant Shares, when issued upon exercise of the Warrants pursuant to the terms and conditions of the Warrants, will be validly issued, fully paid and non-assessable.
The opinions set forth above are subject to the following limitations, qualifications and assumptions:
In rendering the foregoing opinions, we have assumed that the resolutions authorizing the Company to issue and deliver the Warrant Shares pursuant to the Warrants and the Securities Purchase Agreements by the Company’s Board of Directors (or an authorized committee thereof) will be in full force and effect at all times at which such Warrant Shares are issued and delivered by the Company, and the Company will take no action inconsistent with such resolutions.
As to facts material to the opinions and assumptions expressed herein, we have relied upon oral or written statements and representations of officers and other representatives of the Company and others. The opinions expressed herein are limited to the General Corporation Law of the State of Delaware, as currently in effect, and we express no opinion as to the effect of the laws of any other jurisdiction on the opinions expressed herein.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the reference to Jones Day under the caption “Legal Matters” in the prospectus constituting a part of such Registration Statement. In giving such consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ Jones Day |
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