EX-10.31



 




Exhibit
10.31







Executive




INCENTIVE AGREEMENT




     This Incentive Agreement (“Agreement”) is entered into this ___ day of November, 2005 (the
“Effective Date”), between [INSERT EMPLOYEE NAME] (“Employee”) and ADVANCED BIOTHERAPEUTICS, INC.
(individually, “Employer,” and, collectively with its affiliates, Athersys, Inc. (“Athersys”) and
ReGenesys, LLC, the “Company”).



     WHEREAS, the Employee is employed by Advanced Biotherapeutics, Inc., a wholly-owned subsidiary
of Athersys; and



     WHEREAS, the Company is actively pursuing potential business and financial transactions to
provide the Company with additional capital to further develop the Company’s product opportunities;
and



     WHEREAS, the Company is undertaking a restructuring and refocusing of the Company’s internal
programs; and



     WHEREAS, the Board of Directors of Athersys believes that the loss of certain employees could
materially impact the Company’s ability to close a business or financial transaction; and



     WHEREAS, the Board of Directors of Athersys believes that it is in the best interests of
Athersys and its stockholders to provide the Employee with an incentive to continue his or her
employment and to motivate the Employee to maximize the value of Athersys for the benefit of the
stockholders and other stakeholders.



     NOW THEREFORE, in consideration of the mutual covenants herein contained, and in consideration
of the continuing employment of Employee by the Company, the parties agree as follows:




	 	1.	 	Definitions. For purposes of this Agreement, the following definitions shall apply:






	 	a.	 	“Asset Sale Bonus” shall mean a lump sum cash (except as provided
below) payment equal to Employee’s Pro Rata Share of 5% of the Gross Value of the
aggregate consideration received in an Asset Sale Transaction. The Asset Sale
Bonus will be paid to Employee on the Asset Sale Transaction closing date.
Notwithstanding the foregoing, in the event that the proceeds from the Asset Sale
Transaction consist entirely of equity consideration, Employee agrees, at the
Company’s option, to take 50% of the Asset Sale Bonus in cash and 50% of the Asset
Sale Bonus in the equity received by the Company if the Company is permitted to
transfer such equity to Employee.




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	 	b.	 	“Asset Sale Transaction” shall mean any sale or other conveyance of
assets of the Company (e.g., a sale of rights to a business program) or capital
stock of any subsidiary of the Company in which the Gross Value of the aggregate
consideration received is at least equal to $1,000,000, in any case other than a
Financing Transaction — Level One, a Financing Transaction — Level Two or an M&A
Transaction.
	 
	 	c.	 	“Bonus” shall mean any one or a combination of an Asset Sale Bonus, a
Financing Bonus, or an M&A Bonus.
	 
	 	d.	 	“Cause” shall mean: (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 Employer or its affiliates
that results in a material loss, damage or injury to the Employer or its
affiliates; (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 Employer’s or its affiliates’ Board of Directors (or applicable officer in the
case of ReGenesys, LLC) 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 Employer or any of its affiliates and
Employee.
	 
	 	e.	 	“Financing Bonus — Level One” shall mean a lump sum cash payment
equal to two (2) months of Employee’s base salary, paid to Employee in two equal
installments, the first being paid on the later of June 30, 2006 or the Financing
Transaction — Level One closing date, and the second being paid on December 31,
2006. For the avoidance of doubt, a Financing Bonus — Level One can be paid only
once.
	 
	 	f.	 	“Financing Bonus — Level Two” shall mean a lump sum cash payment
equal to an additional two (2) months of Employee’s base salary paid to
Employee in two equal installments, the first being paid on the later of June 30,
2006 or the Financing Transaction — Level Two closing date, and the second being
paid on December 31, 2006. A Financing Bonus — Level One, together with a
Financing Bonus — Level Two, are referred to together herein as a “Financing
Bonus.” For the avoidance of doubt, a Financing Bonus — Level Two can only be
paid once.
	 
	 	g.	 	“Financing Transaction — Level One” shall mean the receipt by the
Company, or the promise to pay or make payments to the Company, of at least $10
million in the aggregate of non-contingent cash payments or investments, including
without limitation license fees, up-front payments, payments in exchange for the
issuance of capital stock of the Company, committed research payments, and any
other form of cash payment that is not contingent on future events or milestones,
in connection with one or




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	 	 	 	more collaborative, licensing, or equity (including debt securities that may be
convertible into equity securities) financing transactions that close by December
31, 2006.
	 
	 	h.	 	“Financing Transaction — Level Two” shall mean the receipt by the
Company, or the promise to pay or make payments to make payments to the Company,
of at least $25 million in the aggregate of non-contingent cash payments or
investments, including without limitation license fees, up-front payments,
payments in exchange for the issuance of capital stock of the Company, committed
research payments, and any other form of cash payment that is not contingent on
future events or milestones, in connection with one or more collaborative,
licensing or equity (including debt securities that may be convertible into equity
securities) financing transactions that close by December 31, 2006. For the
avoidance of doubt, a Financing Transaction — Level Two includes any
non-contingent cash payments from a Financing Transaction — Level One. For
example, if the cash payments to the Company from a financing transaction are $15
million and another financing transaction is consummated at a later date (but
prior to December 31, 2006) in which the cash payments to the Company are $10
million, both the Financing Transaction — Level One and the Financing Transaction
 — Level Two milestones will be met. If the cash payments to the Company from a
financing transaction are $10 million and another financing transaction is
consummated at a later date (but prior to December 31, 2006) in which the cash
payments to the Company are $10 million, only the Financing Transaction — Level
One milestone will be met (and only one Financing Bonus — Level One shall be
payable).
	 
	 	i.	 	“Gross Value” shall mean, with respect to consideration received by
the Company, the value of all consideration (in all cash and non-cash forms)
received. All such consideration shall be measured in actual dollars received,
when paid in cash, and, when payable in a form other than cash, the fair market
value of the non-cash consideration. The fair market value of any non-cash
consideration shall be determined in good faith by the Board of Directors of
Athersys.
	 
	 	j.	 	“Key Employees” shall mean Dr. Gil Van Bokkelen, Dr. John Harrington,
Dr. Kurt Brunden, Dr. Robert Deans, Mr. William (BJ) Lehmann, and Mrs. Laura
Campbell.
	 
	 	k.	 	“M&A Bonus” shall mean a lump sum cash (except as provided below)
payment equal to the greater of (i) Employee’s Pro Rata Share of $1 million and
(ii) Employee’s Pro Rata Share of 5% of the Gross Value of the aggregate
consideration received in an M&A Transaction. The M&A Bonus will be paid to
Employee on the M&A Transaction closing date. Notwithstanding the foregoing, in
the event that the proceeds from the




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	 	 	 	M&A Transaction consist entirely of equity consideration payable to the Company,
Employee agrees, at the Company’s or the surviving corporation’s option, to take
50% of the M&A Bonus in cash and 50% of the M&A Bonus in the equity received by the
Company’s stockholders if the Company or surviving corporation is permitted to
transfer such equity to Employee.
	 
	 	l.	 	“M&A Transaction” shall mean (i) the sale, lease, assignment,
transfer or other conveyance of all or substantially all of the assets or capital
stock of Athersys (other than by way of merger or consolidation), or (ii) (A)
Athersys consolidating with any person, (B) Athersys merging with and into any
person, pursuant to which merger such person is the surviving entity, (C) any
person merging with and into Athersys, pursuant to which merger Athersys is the
surviving entity and the holders of capital stock of Athersys outstanding
immediately prior to such merger hold less than a majority of the voting power of
the capital stock of Athersys immediately after giving effect to the merger, or
(D) any other transaction deemed to be an M&A Transaction per the non-executive
members of the Board of Directors of Athersys.
	 
	 	m.	 	“Pro Rata Share” shall mean a share of compensation equal to the
percentage of Employee’s gross annual salary at the time of such measurement
divided by the total gross annual salary of the Key Employees.
	 
	 	n.	 	“Terminated Without Cause” shall mean the termination of Employee’s
employment with the Company for any reason other than a termination for Cause.






	 	2.	 	Payment of Bonus; Effect of Termination of Employment.






	 	a.	 	Triggering Event for Financing Bonus. Upon the achievement by the
Company of a Financing Transaction — Level One and/or a Financing Transaction —
Level Two, and as long as Employee has maintained continuous employment with the
Employer or the Company from the Effective Date hereof through the respective
payment dates of any Financing Bonus (except as otherwise provided in Section 2.d.
below), Employee shall be entitled to receive the applicable Financing Bonus, not
to exceed four (4) months of salary in the aggregate.
	 
	 	b.	 	Triggering Event for M&A Bonus. Upon the achievement by the Company
of an M&A Transaction, and as long as Employee has maintained continuous
employment with the Employer or the Company from the Effective Date hereof through
the payment date of any M&A Bonus (except as otherwise provided in Section 2.d.
below), Employee shall be entitled to receive the M&A Bonus.





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	 	c.	 	Triggering Event for Asset Sale Bonus. Upon the achievement by the
Company of an Asset Sale Transaction, and as long as Employee has maintained
continuous employment with the Employer or the Company from the Effective Date
hereof through the payment date of any Asset Sale Bonus (except as otherwise
provided in Section 2.d. below), Employee shall be entitled to receive the Asset
Sale Bonus.
	 
	 	d.	 	In the event that a Bonus has been earned, but, after such Bonus has
been earned, Employee’s employment has been (i) Terminated Without Cause, (ii)
terminated due to death or (iii) terminated due to disability on or prior to the
payment dates of the Bonus, the Bonus will be paid to Employee, or his or her
legal representative or guardian, as applicable, in the event of termination due
to items (ii) or (iii) above, on the date Employee’s employment is terminated,
provided that (A) in the case of item (i) above, Employee, and (B) in the case of
items (ii) or (iii) above, Employee’s legal representative or guardian, as
applicable, has executed a standard general release agreement.
	 
	 	e.	 	Taxes. Payment of any Bonus will be subject to withholding of
applicable income and employment taxes.
	 
	 	f.	 	No Bonus. No Bonus will be payable hereunder to Employee if
Employee’s employment is terminated voluntarily or for Cause prior to any Bonus
payment date hereunder.






	 	3.	 	At-Will Employment. This Agreement does not guarantee or imply any right to
continued employment for any period whatsoever. Employer and Employee acknowledge that
the Employee’s employment is and shall continue to be at-will, as defined under applicable
law.
	 
	 	4.	 	Non-Disparagement. Employee agrees not to, directly or indirectly, engage in
negative conduct regarding Company. Such conduct, which includes but is not limited to
oral and written statements, is that which could adversely affect a current or prospective
entity’s decision to do business with Company or that which could impugn, disparage or
damage Company, or its officers’, directors’, or employees’ professional or business
reputation. Additionally, Employee agrees to not, directly or indirectly, make or cause
any third parties to engage in negative conduct towards Company. Further, Employee
represents and warrants that he/she has not previously engaged in any negative conduct
towards Company. The provisions of this Section 4 shall apply during the term of this
Agreement and for a period of two (2) years after Employee’s employment terminates for any
reason.
	 
	 	5.	 	Nondisclosure of Terms.




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	 	a.	 	Employee and Company agree that the terms, conditions, amount, and
fact of this Agreement are to be kept and shall remain confidential and are not to
be disclosed, discussed, or divulged in any manner, except as required by law.
This prohibition includes, but is not limited to, discussions with any print,
television, internet, radio, or any other media. However, Employee may discuss
the terms of this Agreement with immediate family members, legal counsel, and tax
advisors (who shall also keep this Agreement confidential). Employee agrees that
he or she will notify any such immediate family members, legal counsel, and tax
advisors of the confidential nature of this Agreement.
	 
	 	b.	 	In the event that Employee receives any order, subpoena or other
compulsory legal process demanding production or disclosure of this Agreement,
Employee agrees that he or she will promptly notify Company in writing of the
requested disclosure, including the proposed date of the disclosure, the reason
for the requested disclosure, and the identity of the individual or entity
requesting the disclosure, at least ten (10) business days prior to the date that
such disclosure is to be made or immediately upon receipt of the requested
disclosure. Employee agrees not to oppose any action that Company might take with
respect to any such requested disclosure.






	 	6.	 	Effect On Prior Agreements. Employee acknowledges and agrees that, with the
exception of the Employment Agreement Relating to Intellectual Property and Confidential
Information, the Option Agreements, the Employee Shareholder Agreement, the Employment
Agreement, the Directors and Officers Indemnification Agreement, and the Non-Competition
Agreement by and between the Company and Employee, this Agreement constitutes the entire
agreement between the parties with respect to the subject matter herein and supersedes and
extinguishes all prior negotiations and agreements, whether written or oral, between the
parties concerning their employment relationship. Employee agrees to continue to honor
the Employment Agreement Relating to Intellectual Property and Confidential Information,
which remains in full force and effect.
	 
	 	7.	 	Duration. The terms of this Agreement shall terminate upon the date that all
obligations of the parties hereunder have been satisfied; provided, however, that this
Agreement may be extended for an additional period or periods by resolution adopted by the
Board of Directors at any time during the period that the Agreement is in effect; and
provided, further, that the provisions of Sections 4 and 5 will survive termination of
this Agreement.
	 
	 	8.	 	Miscellaneous Provisions.






	 	a.	 	Whole Agreement. No agreements, representations or understandings
(whether oral or written and whether express or implied) which are not




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	 	 	 	expressly set forth in this Agreement have been made or entered into by either
party with respect to the subject matter hereof.
	 
	 	b.	 	Modification. This Agreement may not be modified or terminated
orally, but rather can be terminated or modified only by way of a writing, signed
by both parties.
	 
	 	c.	 	Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together will constitute
one and the same instrument.
	 
	 	d.	 	Remedies. In the event of a breach of this Agreement by any party,
the other party shall have the right to exercise any and all remedies at law.
Furthermore, Employee acknowledges and agrees that in the event Employee breaches
the Agreement, Employee immediately forfeits any right to future payments under
this Agreement. Employee further acknowledges and agrees that any breach by the
Employee of this Agreement cannot be compensated by money damages alone, and
therefore agrees that the Company, in addition to and without limiting Company’s
right to any other remedy, shall have a right to obtain an injunction against
Employee from any court of competent jurisdiction.
	 
	 	e.	 	Choice of Law. The terms of this Agreement are to be construed and
interpreted in accordance with the laws of the State of Ohio.
	 
	 	f.	 	Successors and Assigns. This Agreement shall bind and inure to the
benefit of and be enforceable by Employee, the Company and their respective heirs,
executors, personal representatives, successors and assigns, except that neither
party may assign any rights or delegate any obligations hereunder without the
prior written consent of the other party. Notwithstanding anything to the
contrary in the foregoing, Employee hereby consents to the assignment by the
Company of all of its rights and obligations hereunder to any successor to the
Company by merger or consolidation or purchase of all or substantially all of the
Company’s assets.
	 
	 	g.	 	Severability. The provisions of this Agreement are severable, and
thus if any one or more provisions are determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions will be binding and
enforceable.




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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by
its duly authorized officer, as of the day and year first written above.




	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	[Employee Name]	 	 	 	Advanced Biotherapeutics, Inc.	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	Name:
	 	Gil Van Bokkelen	 	 
	 

	 	 	 	 	 	 	 	 	 	Title:
	 	President & CEO	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	Date	 	 	 	Date	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Acknowledged By:	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Athersys, Inc.	 	 	 	ReGenesys, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	John Harrington
	 	 	 	 	 	Name:
	 	William (BJ) Lehmann	 	 
	 

	 	Title:
	 	Executive Vice President & CSO
	 	 	 	 	 	Title:
	 	Vice President, Secretary & Treasurer	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	Date	 	 	 	 	 	Date	 	 
















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