EX-10.25



 



EXHIBIT
10.25


EMPLOYMENT AGREEMENT



     THIS EMPLOYMENT AGREEMENT (“Agreement”) is made as of October 3, 2003 between Robert Deans,
Ph.D. an individual (“Employee”), and Advanced Biotherapeutics, Inc. (“ABT”), a wholly-owned
subsidiary of Athersys, Inc., a Delaware corporation (“Athersys”), (together “the Company”).


RECITALS:



     A. ABT, d.b.a. Athersys, Inc., is engaged in the competitive business of developing, marketing
and selling certain core biotechnologies for the diagnosis and treatment of genetic and infectious disease.


     B. ABT desires to employ Employee on the terms and conditions set forth in this Agreement.



     C. Employee is willing to accept employment on the terms and conditions expressed in this
Agreement.



AGREEMENTS:




     NOW, THEREFORE, the parties agree as follows:




	1.	 	Employment. ABT agrees to employ Employee, and Employee agrees to serve ABT, on the
terms and conditions set forth in this Agreement.






	 	(a)	 	Term. Subject to the provisions for termination as hereinafter
provided, the term of this Agreement will begin on the date set forth above (the
“Effective Date”) and continue through the fourth anniversary of the Effective Date
(the “Employment Period”). The Employment Period will automatically be extended for
one additional year on each anniversary of the Effective Date beginning on the fourth
anniversary of the Effective Date unless (i) this Agreement is terminated as provided
in Section 4, or (ii) either Employee or ABT gives written notice of termination of
this Agreement to the other at least thirty (30) days prior to such date.
	 
	 	(b)	 	Position and Duties. Employee will serve as Vice President of
Regenerative Medicine of ABT and will have such responsibilities, duties and authority
as are customary of a Vice President of a company the size and structure of ABT (or any
position to which Employee may be promoted after the date of this Agreement) and as may
from time to time be assigned to Employee by the Board of Directors of ABT (the
“Board”) that are consistent with such responsibilities, duties, authority and
applicable law. Employee will devote substantially all of his working time and effort
to the business and affairs of ABT.
	 
	 	(c)	 	Place of Performance. In connection with Employee’s employment by ABT,
Employee will be based at either his present residence in southern




 









 






	 	 	 	California, the principal executive offices of ABT in the greater Cleveland, Ohio
area, or at a different location as mutually agreed upon by the Employee and CEO.
During the time that the Employee’s principal place of performance is not in greater
Cleveland, Employee will commute to the Cleveland corporate offices on a periodic
basis as needed, which is currently estimated at several days per month. The
Employee and CEO will review the place of performance annually and will mutually
agree to any change in the Employee’s place of performance that is in the best
interests of the Company.
	 
	 	(d)	 	Continuous Employment. For all purposes under this Agreement, the
Employee shall be considered to have been continuously employed by ABT without regard
to any change of duties or position of the Employee, including transfers between and
among ABT and its affiliates, so long as Employee is continuously employed by ABT or
any of its affiliates, including Athersys.






	2.	 	Compensation and Related Matters. As compensation and consideration for the
performance by Employee of Employee’s duties, responsibilities and covenants pursuant to this
Agreement, ABT will pay Employee the amounts and benefits set forth below:






	 	(a)	 	Salary. ABT will pay to Employee an annual base salary (“Base Salary”)
during the Employment Period at a rate of Two Hundred Thousand Dollars ($200,000.00)
commencing on the Effective Date, such salary to be paid in substantially equal
installments no less frequently than monthly. The Base Salary may be increased from
time to time by the Board in its sole discretion and, if so increased, will not
thereafter during the term of this Agreement be decreased. The Board will review the
Base Salary at least annually to determine, in its sole discretion, whether an increase
is appropriate. Compensation of Employee by salary payments will not be deemed
exclusive and will not prevent Employee from participating in any other compensation or
benefit plan of ABT.
	 
	 	(b)	 	Bonus. During the Employment Period, Employee will be eligible for an
annual bonus of 30% of Base Salary, based upon individual and company performance and
subject to Board approval, and will participate in any incentive plans that may in the
future be made generally available to officers of Athersys in comparable positions.
	 
	 	(c)	 	Expenses. Employee will be entitled to receive prompt reimbursement
for all reasonable and customary travel and entertainment expenses or other
out-of-pocket business expenses incurred by Employee during the Employment Period in
fulfilling Employee’s duties and responsibilities under this Agreement, including all
expenses of travel and living expenses while away from home on business or at the
request of and in the service of ABT, provided that such expenses are incurred and
accounted for in accordance with the policies and procedures established by ABT. In
addition, in the event Employee relocates to a location closer to the Company, the
Company will reimburse the Employee for the physical relocation of his possessions
(i.e., ordinary packing and moving




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	 	 	 	expenses), but shall not include any expenses associated with the sale of his
existing property or the cost of new property.
	 
	 	(d)	 	Other Benefits. Employee will be entitled during the Employment Period
to participate, on the same basis as other officers of ABT, in all of the employee
benefit plans and arrangements of ABT and enjoy all of the perquisites for which
substantially all of the other officers of ABT are from time to time generally
eligible, as determined from time to time by the Board (including, without limitations
each retirement, thrift and profit sharing plan, group life insurance and accident
plan, medical and/or dental insurance plan, and disability plan); provided, however,
that a change may be made to a plan in which salaried employees of ABT participate,
including termination of any such plan, arrangement or perquisite, if it does not
result in a proportionately greater reduction in the rights of or benefits to Employee
as compared with the other salaried employees of ABT or is required by law or a
technical change. Employee will be entitled to participate in and receive benefits
under any employee benefit plan, arrangement or perquisite made available by ABT in the
future to its officers, subject to and on a basis consistent with the terms, conditions
and overall administration of such plans, arrangements and perquisites. Nothing paid
to Employee under any plan, arrangement or perquisite presently in effect or made
available in the future will be deemed to be in lieu of the salary payable to Employee
pursuant to paragraph (a) of this Section 2.
	 
	 	(e)	 	Vacations. During the Employment Period, Employee will be entitled to
paid vacation in each calendar year, determined in accordance with ABT’s vacation
policy, but in all events in an amount of not less than three (3) weeks per calendar
year. Employee will also be entitled to all paid holidays and personal days given by
ABT to its employees during the Employment Period.






	3.	 	Stock Options. Within one month from the Effective Date, the Board will grant to
Employee, under the 2000 Stock Incentive Plan of Athersys, Inc. (the “Plan”), nonqualified
stock options to purchase Fifty Thousand (50,000) shares of common stock of Athersys at Three
Dollars and Twenty-Five Cents ($3.25) per share, and incentive stock options to purchase Ten
Thousand (10,000) shares of common stock of Athersys at the fair market value per share on the
date of grant. The stock options will vest in four annual increments, which will commence as
of the Effective Date, and shall be subject to the terms and conditions of the Plan and one or
more stock option agreements between Athersys and Employee. Employee shall also be granted a
non-qualified stock option to purchase Twenty Thousand (20,000) shares of common stock of
Athersys, which will be granted and fully vested upon the establishment of a Regenerative
Medicine corporate partnership consisting of at least $50 million in guaranteed payments, and
which will have an exercise price set at 50% of the fair market value of Athersys common stock
at the time of the grant.
	 
	4.	 	Termination. The Employment Period may be terminated under the following
circumstances:




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	 	(a)	 	Death. The Employment Period will terminate upon Employee’s death.
	 
	 	(b)	 	Disability. If, in the written opinion of a qualified physician
selected by ABT and agreed to by Employee (or if no agreement is reached within thirty
(30) days of the commencement of discussions between ABT and Employee, then of a
qualified physician agreed upon by the physician selected by ABT and a physician
selected by Employee), Employee becomes unable to perform his duties under this
Agreement due to physical or mental illness, ABT may terminate the Employment Period.
	 
	 	(c)	 	Cause. ABT may terminate the Employment Period for Cause. For
purposes of this Agreement, ABT will have “Cause” to terminate the Employment Period as
a result of any of the following events: (i) the commission of an act of fraud,
embezzlement, theft or other criminal act constituting a felony; (ii) the willful or
wanton disregard of the rules or policies of the Company or its Subsidiaries which
results in a material loss, damage or injury to the Company or its Subsidiaries; (iii)
the repeated failure of Employee to perform duties consistent with Employee’s position
or to follow or comply with the reasonable directives of the Company’s or its
Subsidiaries’ Board of Directors or Employee’s superiors after having been given notice
thereof (e.g., the insubordination of Employee); or (iv) the material breach of any
provision contained in a written non-competition, confidentiality or non-disclosure
agreement between the Company or any of its Subsidiaries and Employee.
	 
	 	(d)	 	Good Reason. Employee may terminate the Employment Period for Good
Reason. For purposes of this Agreement, “Good Reason” includes the occurrence of any
of the following circumstances, without Employee’s express consent, unless such
circumstances are fully corrected prior to the Date of Termination (as defined in
paragraph (g) of this Section 4) specified in the Notice of Termination (as defined in
paragraph (f) of this Section 4) given in respect thereof and such circumstances do not
reoccur: (A) a diminution in Employee’s position, duties, responsibilities or authority
(unless such diminution occurs during periods when Employee is unable to perform all or
substantially all of Employee’s duties and/or responsibilities as a result of
Employee’s illness (either physical or mental) or other incapacity); (B) a reduction in
either Employee’s annual rate of Base Salary or level of participation in any bonus or
incentive plan for which he is eligible under Section 2(b); (C) an elimination or
reduction of Employee’s participation in any benefit plan generally available to
officers of ABT, unless ABT continues to offer Employee benefits substantially similar
to those made available by such plan; provided, however, that a change to a plan in
which salaried employees of ABT generally participate, including termination of any
such plan, if it does not result in a proportionately greater reduction in the rights
of or benefits to Employee as compared with the other salaried employees of ABT or is
required by law or a technical change, will not be deemed to be Good Reason; (D)
failure to provide facilities or services which are suitable to Employee’s position and
adequate for the performance of Employee’s duties and responsibilities; (E) failure of
any successor (whether direct or indirect, by purchase of stock or assets,




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	 	 	 	merger, consolidation or otherwise) to ABT to assume ABT’s obligations under this
Agreement, as contemplated by Section 6; (F) any purported termination by ABT of the
Employment Period which is not effected pursuant to a Notice of Termination
satisfying the requirements of paragraph (f) of this Section 4 (and for purposes of
this Agreement no such purported termination will be effective); (G) a change in the
location of ABT’s principal executive offices to outside the greater Cleveland, Ohio
area; (H) a termination of the Employment Period by Employee within ninety (90) days
following a Change in Control (as defined in paragraph (h) of this Section 4);
provided, however, that Good Reason will not exist if Employee has accepted
employment with the successor entity and such successor entity has assumed this
Agreement; (I) a breach of this Agreement by ABT; or (J) any similar circumstances
which Employee reasonably believes are contrary to this Agreement. Employee’s right
to terminate the Employment Period pursuant to this paragraph (d) will not be
affected by Employee’s incapacity due to physical or mental illness. Employee’s
continued employment will not constitute consent to, or a waiver of rights with
respect to, any circumstance constituting Good Reason; provided, however, that
Employee will be deemed to have waived his rights pursuant to circumstances
constituting Good Reason if Employee has not provided to ABT a Notice of Termination
within ninety (90) days following his knowledge of the circumstances constituting
Good Reason.
	 
	 	(e)	 	Non-Extension. ABT or Employee may terminate the Employment Period by
providing the notice described in Section 1(a)(ii) hereof.
	 
	 	(f)	 	Notice of Termination. Any termination of the Employment Period by ABT
or by Employee (other than a termination pursuant to paragraph (a) of this Section 4)
must be communicated by written Notice of Termination to the other party in accordance
with Section 9. For purposes of this Agreement, a “Notice of Termination” means a
notice which indicates the specific termination provision in this Agreement relied upon
and sets forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Employment Period under the provision so indicated.
	 
	 	(g)	 	Date of Termination. “Date of Termination” means (i) if the Employment
Period is terminated pursuant to paragraph (a) above, the date of Employee’s death,
(ii) if the Employment Period is terminated pursuant to paragraph (b) above, thirty
(30) days after Notice of Termination is given (provided that Employee has not returned
to the full-time performance of Employee’s duties during such thirty (30) day period),
(iii) if the Employment Period is terminated pursuant to paragraph (c) or (d) above,
the date specified in the Notice of Termination which, in the case of a termination by
ABT for Cause will not be less than fifteen (15) days from the date such Notice of
Termination is given, and, in the case of a termination by Employee pursuant to Section
4(d), such date will not be less than fifteen (15) days nor more than thirty (30) days
from the date such Notice of Termination is given, (iv) if the Employment Period is
terminated by ABT other than for Cause, thirty (30) days from the date Employee is
notified of such termination, or (v) if Employee terminates the Employment Period and
fails




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	 	 	 	to provide written notice to ABT of such termination, the date of such termination.
	 
	 	(h)	 	Change in Control. For purposes of this Agreement, a “Change in
Control” will occur (i) upon the sale or other disposition to a person, entity or group
(as such term is used in Rule 13d-5 promulgated under the Securities Exchange Act of
1934, as amended) (such a person, entity or group being referred to as an “Outside
Party”) of 50% or more of the consolidated assets of Athersys taken as a whole, or (ii)
if shares representing a majority of the voting power of Athersys are acquired by a
person or group (as such term is used in Rule 13d-5 promulgated under the Securities
Exchange Act of 1934, as amended) of persons other than the holders of the capital
stock of Athersys as of the date of this Agreement, or (iii) if following an
underwritten public offering of equity securities of Athersys pursuant to an effective
registration statement under the Securities Act of 1933, as amended, the individuals
who are directors of Athersys immediately following the effective date of such public
offering (or individuals nominated by such directors) no longer constitute a majority
of the whole Board.






	5.	 	Compensation Upon Termination.






	 	(a)	 	Disability. During any period that Employee fails to perform his
duties under this Agreement as a result of incapacity due to physical or mental
illness, Employee will continue to receive his full Base Salary at the rate then in
effect for such period (offset by any payments to Employee received pursuant to
disability benefit plans maintained by ABT) and all other compensation and benefits
under this Agreement (including pro rata payment for vacation days not taken) until the
Employment Period is terminated pursuant to Section 4(b) and for a period of twelve
(12) months from the date of such termination.
	 
	 	(b)	 	Cause or Death. If the Employment Period is terminated by ABT for
Cause or by Employee other than for Good Reason or as a result of Employee’s death, ABT
will pay to Employee his full Base Salary through the Date of Termination at the rate
in effect at the time Notice of Termination is given and all other unpaid amounts, if
any, to which Employee is entitled as of the Date of Termination, including any bonus
owed pursuant to Section 2(b), expenses owed pursuant to Section 2(c) and amounts under
any compensation plan or program of ABT, at the time such payments are due and ABT
will, thereafter, have no further obligations to Employee under this Agreement.
	 
	 	(c)	 	Good Reason. If (i) in breach of this Agreement, ABT terminates the
Employment Period (it being understood that a purported termination for disability
pursuant to Section 4(b) or for Cause which is disputed and finally determined not to
have been proper will be a termination by ABT in breach of this Agreement), or (ii)
Employee terminates the Employment Period for Good Reason; then




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	 	(i)	 	ABT will continue to pay to Employee his full Base Salary for a
period of six months from the Date of Termination at the rate in effect at the
time Notice of Termination is given and all other unpaid amounts, if any, to
which Employee is entitled as of the Date of Termination, including any bonus
owed pursuant to Section 2(b) and any expenses owed pursuant to Section 2(c);
provided, however, if during such six month period, Employee violates any
provision of the Agreement for Disclosure of Confidential Information between
Employee and Athersys, then ABT will not be required to make any further
payments to Employee; and
	 
	 	(ii)	 	ABT will permit Employee, at Employee’s option and expense, to
continue the participation of Employee for a period of eighteen (18) months in
all medical, life and other employee “welfare” benefit plans and programs in
which Employee was entitled to participate immediately prior to the Date of
Termination provided that Employee’s continued participation is possible under
the general terms and provisions of such plans and programs. Employee agrees
that the period of coverage under such plans shall count against such plans’
obligation to provide continuation coverage pursuant to the requirements of
Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act
of 1974, as amended (“COBRA”).






	 	(d)	 	Mitigation. Employee will be required to mitigate the amount of any
payment provided for in this Section 5 by seeking other employment or otherwise, and
the amount of any payment or benefit provided for in this Section 5 will be reduced by
any compensation earned by Employee as the result of employment by another employer, by
retirement benefits, by offset against any amount claimed to be owed by Employee to
ABT, or otherwise.
	 
	 	(e)	 	Survival of Obligations. The obligations of ABT to make payments and
provide benefits under this Section 5 will survive the termination of this Agreement.






	6.	 	Successors and Assigns. This Agreement and all rights of Employee under this
Agreement will inure to the benefit of and be enforceable by Employee’s personal or legal
representatives, executors, administrators, successors, heirs, distributes, devises and
legatees. If Employee dies while any amounts would still be payable to him under this
Agreement if he had continued to live, all such amounts, unless otherwise provided in this
Agreement, will be paid in accordance with the terms of this Agreement to Employee’s devisee,
legatee, or other designee or, if there be no such designee, to Employee’s estate. This
Agreement and all rights of ABT under this Agreement will inure to the benefit of and be
enforceable by ABT’s successors or assigns. Employee hereby consents to the assignment by ABT
of all of its rights and obligations hereunder to any successor to ABT by merger or
consolidation or purchase of all or substantially all of ABT’s assets, provided such
transferee or successor assumes the liabilities of ABT hereunder.




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	7.	 	Employee Representations: Employee represents and warrants to ABT that (i) the
execution, delivery and performance of this Agreement by Employee does not and will not
conflict with, breach, violate or cause a default under any contract, agreement, instrument,
order, judgment or decree to which Employee is a party or by which Employee is bound, (ii)
Employee is not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity and (iii) upon the execution and
delivery of this Agreement by ABT, this Agreement shall be the valid and binding obligation of
Employee, enforceable in accordance with its terms.
	 
	8.	 	Withholding of Taxes. ABT may withhold from any amounts payable under this Agreement
all federal, state, city or other taxes as ABT is required to withhold pursuant to any
applicable law, regulation or ruling.
	 
	9.	 	Notice. Notices, demands and all other communications provided for in this Agreement
will be in writing and will be deemed to have been duly given when delivered, if delivered
personally, or (unless otherwise specified) mailed by United States certified or registered
mail, return receipt requested, postage prepaid, and when received if delivered otherwise,
addressed as follows:




If to Employee:



Robert Deans, Ph.D.

415 Furman Drive

Claremont, CA 91711



If to ABT:



Advanced Biotherapeutics, Inc., d.b.a. Athersys, Inc.

3201 Carnegie Avenue

Cleveland, Ohio 44115-2634

Attention: President & Chief Executive Officer



Copy to:



Christopher M. Kelly, Esq.

Jones Day

North Point, 901 Lakeside Avenue

Cleveland, Ohio 44114



or to such other address as any party may have furnished to the other in writing, except that
notices of change of address will be effective only upon receipt.





	10.	 	Amendment and Waiver. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing signed by the
parties hereto. No waiver by either party to this Agreement at any time of any breach by the
other party of, or compliance with, any condition or provision of this Agreement to be
performed by such other party will be deemed a waiver of similar




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	 	 	or dissimilar provisions or conditions at the same or at any prior or subsequent time. No
course of conduct or failure or delay in enforcing the provisions of this Agreement shall
affect the validity, binding effect or enforceability of this Agreement.
	 
	11.	 	Choice of Law. The validity, interpretation, construction and performance of this
Agreement will be governed by the laws of the State of Ohio without regard to its conflicts of
law principles.
	 
	12.	 	Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision or any other jurisdiction, but this
Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
	 
	13.	 	Counterparts. This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original but all of which together will constitute one and the
same instrument.
	 
	14.	 	Captions. The headings of paragraphs are included solely for convenience of
reference only and are not part of this Agreement and will not be used in construing it.
	 
	15.	 	Consent to Jurisdiction and Forum. Employee expressly and irrevocably agrees that
ABT may bring any action, whether at law or in equity, arising out of or based upon this
Agreement in the State of Ohio or in any federal court therein. Employee irrevocably consents
to personal jurisdiction in such court and to accept service of process in accordance with the
provisions of the laws of the State of Ohio.
	 
	16.	 	Entire Agreement. This Agreement sets forth the entire agreement of the parties in
respect of the subject matter contained in this Agreement and supersedes all prior agreements,
promises, covenants, arrangements, communications, representations or warranties, whether oral
or written, by any officer, employee or representative of any party; and any prior agreement
of the parties in respect of the subject mater contained in this Agreement is terminated and
canceled.





     IN WITNESS WHEREOF, the parties have executed this Employment Agreement as of the date first
above written.



	 	 	 	 	 	 	 	 	 	 	 
	Advanced Biotherapeutics, Inc.	 	 	 	EMPLOYEE:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/
Gil Van Bokkelen

	 	 	 	By:
	 	/s/
Robert Deans

	 	 
	 

	 	Gil Van Bokkelen
	 	 	 	 	 	Robert Deans, Ph.D.	 	 
	 

	 	President & Chief Executive Officer	 	 	 	 	 	 	 	 







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