the possibility of delays in, adverse results of, and excessive costs of the development process

EX-10.29 37 l26577aexv10w29.htm EX-10.29 EX-10.29
 

EXHIBIT 10.29
Executive
AMENDMENT NO. 1 TO
EMPLOYMENT AGREEMENT
     This Amendment No. 1 (this “Amendment”), dated as of May 31, 2007, to the Employment Agreement (“Agreement”), dated as of January 1, 2004, between William Lehmann (“Employee”) and ADVANCED BIOTHERAPEUTICS, INC. (“Employer”).
     WHEREAS, Employee is employed by Advanced Biotherapeutics, Inc., a wholly-owned subsidiary of Athersys, Inc. (“Athersys”); and
     WHEREAS, Employer and Employee wish to amend the Agreement in connection with the planned merger (the “Merger”) of Athersys with a wholly-owned subsidiary of a shell company (as such term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) that has a class of equity securities registered under Section 12 of the Exchange Act (“PubCo”); and
     WHEREAS, concurrent with and as a condition to the closing of the Merger, PubCo intends to conduct a private placement transaction pursuant to Regulation D promulgated under the Securities Act of 1933, as amended, whereby PubCo will receive gross proceeds of at least $40 million as consideration for the issuance of its equity securities (the “Offering”).
     NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
     1. Notwithstanding anything to the contrary in the Agreement, neither the consummation of the Merger nor the consummation of the Offering shall be deemed a “Change in Control” for purposes of the Agreement.
     2. Upon consummation of the Offering, Athersys shall be deemed to have successfully completed Milestone A described on Exhibit A to the Agreement and Employee shall be entitled to a $50,000 bonus, and all other milestone payments on Exhibit A to the Agreement will waived by Employee and be deleted from the Agreement.
     3. This Amendment and the Agreement shall bind and inure to the benefit of and be enforceable by Employee, Employer 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 Employer of all of its rights and obligations hereunder to any successor to Employer by merger or consolidation or purchase of all or substantially all of Employer’s assets, including, without limitation, any deemed assignment that occurs as a result of the consummation of the Merger.

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     4. This Amendment may be executed in two or more counterparts, each of which constitutes an original, and all of which taken together shall constitute one and the same Amendment. It is understood that all parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by email delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
     5. The validity, interpretation, construction and performance of this Amendment will be governed by the laws of the State of Ohio without regard to its conflicts of law principles.
     6. Capitalized terms used but not otherwise defined herein have the meanings set forth in the Agreement.

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     IN WITNESS WHEREOF, each of the parties has executed this Amendment as of the day and year first written above.
                             
William Lehmann       Advanced Biotherapeutics, Inc.    
 
                           
 
/s/ William Lehmann       By:   /s/ Gil Van Bokkelen    
                 
 
                  Name:
Title:
  Gil Van Bokkelen
Chief Executive Officer
   
 
                           
 
                           
             
Date
              Date            
 
                           
Acknowledged By:                    
 
Athersys, Inc.       ReGenesys, LLC    
 
                           
By:   /s/ John Harrington       By:   /s/ Gil Van Bokkelen    
                     
 
  Name:
Title:
  John Harrington
Executive Vice President & CSO
          Name:
Title:
  Gil Van Bokkelen
President
   
 
                           
 
                           
             
Date
              Date            

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