EX-10.17



 




EXHIBIT
10.17




AMENDED AND RESTATED EMPLOYMENT AGREEMENT




     THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”) is made as of the first day of
December, 1998, and is effective as of April 1, 1998, between DR. JOHN J. HARRINGTON, an individual
(“Employee”), and ATHERSYS, INC., a Delaware corporation (“Athersys”).



     WHEREAS, Athersys and Employee have entered into an Employment Agreement dated as of January
1, 1996 (the “Agreement”); and



     WHEREAS, Athersys and Employee desire to amend and restate the Agreement.



     NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, and for other
good and valuable consideration, the parties hereto hereby agree as follows:



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



     2. Term. Subject to the provisions for termination as hereinafter provided, the term
of this Agreement will begin on April 1, 1998 (the “Effective Date”) and continue through March 31,
1999. Such term will automatically be extended for one additional year on April 1 of each
succeeding year, beginning on April 1, 1999 and thereafter, unless (i) this Agreement is terminated
as provided in Section 7, or (ii) either Employee or Athersys gives written notice of termination
of this Agreement to the other at least thirty (30) days prior to such date.



     3. Position and Duties. Employee will serve as Executive Vice President and Chief
Scientific Officer of Athersys and will have such responsibilities, duties and authority as are
customary of a Executive Vice President and Chief Scientific Officer of a company the size and
structure of Athersys (or any position to which he 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
Athersys (the “Board”) that are consistent with such responsibilities, duties, authority and
applicable law. Employee will devote substantially all his working time and efforts to the
business and affairs of Athersys.



     4. Place of Performance. In connection with Employee’s employment by Athersys,
Employee will be based at the principal executive offices of Athersys in the greater Cleveland,
Ohio area.



     5. Compensation and Related Matters. As compensation and consideration for the
performance by Employee of Employee’s duties, responsibilities and covenants pursuant to this
Agreement, Athersys will pay Employee and Employee agrees to accept in full payment for such
performance the amounts and benefits set forth below:




     (a) Salary. Athersys will pay to Employee an annual base salary (“Base
Salary”) at a rate of One Hundred Fifty Thousand Dollars ($150,000), which shall be
retroactive to the Effective Date. In all cases, the Board will review the Base Salary upon
the closing of an initial public offering or a sale of all or substantially all of the stock
or assets of Athersys for



 









 







adjustment to Base Salary at a rate which is comparable to that of an executive of a
company the size and structure of Athersys. 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 Athersys.




     (b) Bonus. Employee shall be eligible for a bonus of up to Thirty-three
percent (33%) of Base Salary upon the achievement of certain performance goals as determined
by the Board on an annual basis, as set forth on Exhibit A.




     (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 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 Athersys, provided that such
expenses are incurred and accounted for in accordance with the policies and procedures
established by Athersys.




     (d) Other Benefits. Employee will be entitled to participate in all of the
employee benefit plans and arrangements of Athersys and enjoy all of the perquisites
provided to the employees of Athersys (including, without limitation, 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 Athersys 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 any other salaried
employee of Athersys 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 Athersys in the future to its executive employees, 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 Base Salary payable to Employee pursuant to paragraph (a) of this Section 5.




     (e) Vacations. Employee will be entitled to paid vacation in each calendar
year, determined in accordance with Athersys’ 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 Athersys to its executive employees.




     (f) Life Insurance. Athersys shall purchase for Employee a life insurance
policy in the amount of $1,000,000 for the benefit of the family of Employee.



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     6. Stock Options.




     (a) Employee will be granted an option (the “Option”) to purchase One Hundred (100)
shares of Common Stock of Athersys, which will vest equally on the Effective Date over a
period of three (3) years. The average exercise price of the Option will be Four Thousand
Five Hundred Dollars ($4500) per share. The terms and conditions of the stock options are
governed by the Option Agreement between Athersys and Employee of even date herewith.




     (b) Employee will be granted an additional option (the “Second Option”) to purchase One
Hundred Fifty-two and one half (152.5) shares of Common Stock of Athersys, which will vest
immediately upon execution of this Agreement. The exercise price of the Second Option will
be Four Thousand Five Hundred Dollars ($4500) per share. The terms and conditions of the
Second Option are governed by the Option Agreement between Athersys and Employee of even
date herewith.



     7. Termination. Employee’s employment under this Agreement may be terminated under
the following circumstances:




     (a) Death. Employee’s employment under this Agreement will terminate upon his
death.




     (b) Disability. If, in the written opinion of a qualified physician selected
by Athersys and agreed to by Employee (or if no agreement is reached within thirty (30) days
of the commencement of discussions between Athersys and Employee, then of a qualified
physician agreed upon by the physician selected by Athersys and a physician selected by
Employee), Employee becomes unable to perform his duties under this Agreement due to
physical or mental illness, Athersys may terminate Employee’s employment under this
Agreement.




     (c) Cause. Athersys may terminate Employee’s employment under this Agreement
for Cause. For purposes of this Agreement, Athersys will have “Cause” to terminate
Employee’s employment under this Agreement upon:




     (i) the willful and continuous neglect or willful and continuous refusal to
perform Employee’s duties or responsibilities under this Agreement which continues
for a period of at least thirty (30) days after being brought to the attention of
Employee in writing (other than any such failure resulting from Employee’s
incapacity due to physical or mental illness or any such actual or anticipated
failure after the issuance of a Notice of Termination (as defined in paragraph (e)
of this Section 7) by Employee for Good Reason (as defined in paragraph (d) of this
Section 7)); or



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     (ii) the willful act, willful failure to act or willful misconduct by Employee
which is materially and manifestly injurious to Athersys and which is brought to the
attention of Employee in writing not more than thirty (30) days from the date of its
discovery by Athersys or the Board.




     For purposes of this paragraph (c), no act, or failure to act, on Employee’s part will
be considered “willful” unless done, or omitted to be done, by him not in good faith or
without reasonable belief that his action or omission was in the best interest of Athersys.
Notwithstanding the foregoing, Employee will not be deemed to have been terminated for Cause
without (1) reasonable written notice to Employee specifying in detail the specific reasons
for Athersys’ intention to terminate for Cause, (2) an opportunity for Employee, together
with his counsel, to be heard before the Board, and (3) delivery to Employee of a Notice of
Termination, as defined in paragraph (e) of this Section 7, approved by the affirmative vote
of not less than a majority of the entire membership of the Board finding that in the good
faith opinion of the Board, Employee was guilty of conduct set forth in clause (i) or (ii)
above.




     (d) Good Reason.




     (i) Employee may terminate his employment under this Agreement (X) for Good
Reason or (Y) otherwise upon written notice to Athersys.




     (ii) For purposes of this Agreement, “Good Reason” includes the occurrence of
any of the following circumstances, without Employee’s express consent, unless, in
the case of clauses (A), (B), (C), (D), (F), (G) and (I) below, such circumstances
are fully corrected prior to the Date of Termination (as defined in paragraph (f) of
this Section 7) specified in the Notice of Termination (as defined in paragraph (e)
of this Section 7) given in respect thereof and such circumstances do not reoccur:
(A) a diminution in Employee’s position, duties, responsibilities or authority
(except 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 Base Salary or level of participation in any bonus or incentive plan for
which he is eligible under Section 5(b); (C) an elimination or reduction of
Employee’s participation in any benefit plan generally available to executive
employees of Athersys, unless Athersys 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 Athersys 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 Athersys 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, merger, consolidation or otherwise) to
Athersys to



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assume Athersys’ obligations under this Agreement or failure by Athersys to remain
liable to Employee under this Agreement after an assignment by Athersys of this
Agreement, in each case as contemplated by Section 9; (F) any purported termination
by Athersys of Employee’s employment which is not effected pursuant to a Notice of
Termination satisfying the requirements of paragraph (e) of this Section 7 (and for
purposes of this Agreement no such purported termination will be effective); (G) a
change in the location of Athersys’ principal executive offices to outside the
greater Cleveland, Ohio area; (H) a termination of employment by Employee within
ninety (90) days following a Change in Control (as defined in paragraph (g) of this
Section 7); 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 Athersys; or (J) any similar
circumstances which Employee reasonably believes are contrary to this Agreement.
Employee’s right to terminate employment 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 he has not provided to Athersys a Notice of Termination
within ninety (90) days following his knowledge of the circumstances constituting
Good Reason.




     (e) Notice of Termination. Any termination of Employee’s employment by
Athersys or by Employee (other than a termination pursuant to paragraph (a) of this Section
7) must be communicated by written Notice of Termination to the other party in accordance
with Section 10. 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 Employee’s employment under the provision so indicated.



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     (f) Date of Termination. “Date of Termination” means (i) if Employee’s
employment is terminated pursuant to paragraph (a) above, the date of his death, (ii) if
Employee’s employment 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 Employee’s
employment 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 Athersys 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 7(d)(i), 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 Employee’s employment is terminated by Athersys other than for
Cause, thirty (30) days from the date Employee is notified of such termination, or (v) if
Employee terminates his employment and fails to provide written notice to Athersys of such
termination, the date of such termination.




     (g) 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) 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 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.



     8. 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 Athersys) and all other compensation and benefits under this Agreement (including pro
rata payment for vacation days not taken) until his employment is terminated pursuant to
Section 7(b) and for a period of twelve (12) months from the date of such termination.




     (b) Cause or Death. If Employee’s employment is terminated by Athersys for
Cause or by Employee other than for Good Reason or as a result of Employee’s death, Athersys
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 expenses owed
pursuant to Section 5(c) and amounts under any compensation plan or program of Athersys,



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at the time such payments are due and Athersys will, thereafter, have no further
obligations to Employee under this Agreement.




     (c) Good Reason. If (i) in breach of this Agreement, Athersys terminates
Employee’s employment (it being understood that a purported termination for disability
pursuant to Section 7(b) or for Cause which is disputed and finally determined not to have
been proper will be a termination by Athersys in breach of this Agreement), or (ii) Employee
terminates his employment for Good Reason; then




     (i) Athersys will continue to pay to Employee his full Base Salary and all
other compensation and benefits provided for in this Agreement for a period of
eighteen (18) 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 expenses owed
pursuant to Section 5(c); provided, however, if during such eighteen (18) month
period, Employee violates any provision of the Non-Competition and Confidentiality
Agreement between Employee and Athersys, then Athersys will not be required to make
any further payments to Employee. The Option and the Second Option shall
immediately vest in full on the Date of Termination; and




     (ii) Athersys will 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.




     (d) Mitigation. Employee will be required to mitigate the amount of any
payment provided for in this Section 8 by seeking other employment or otherwise, and the
amount of any payment or benefit provided for in this Section 8 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
Athersys, or otherwise.




     (e) Survival of Obligations. The obligations of Athersys to make payments and
provide benefits under this Section 8 will survive the termination of this Agreement.



     9. Binding Agreement. 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, distributees, 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 Athersys under this Agreement
will inure to the benefit of and be enforceable by Athersys’ successors or assigns;



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provided, however, any assignment of this Agreement by Athersys will not relieve Athersys from any liability
it may have under this Agreement.



     10. 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:


John J. Harrington

6487 Meadowbrook Dr.

Mentor, Ohio 44060




     If to Athersys:


Athersys, Inc.

11000 Cedar Road, Suite 210

Cleveland, Ohio 44106

Attention: Dr. Gil Van Bokkelen, President



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.




     11. General Provisions. 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 or dissimilar provisions or conditions at the same
or at any prior or subsequent time. 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. Validity. The invalidity or unenforceability of any provision or provisions, in
whole or in part, of this Agreement will not affect the validity or enforceability of any other
provision or enforceable part of such partially unenforceable provision of this Agreement, which
will remain in full force and effect.



     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.



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     15. Consent to Jurisdiction and Forum. Employee expressly and irrevocably agrees that
Athersys 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.



	 	 	 	 	 
	 	ATHERSYS, INC.

 	 
	 	By:  	/s/
Dr. Gil Van Bokkelen	 
	 	 	Dr. Gil Van Bokkelen, President and Chief Executive Officer 	 
	 	 	 	 
	 
	 	“EMPLOYEE”

 	 
	 	/s/
Dr. John J. Harrington	 
	 	Dr. John J. Harrington 	 
	 	 	 



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