<DOCUMENT>
<TYPE>EX-10.1
<SEQUENCE>2
<FILENAME>b64578viexv10w1.txt
<DESCRIPTION>EX-10.1 AMENDED & RESTATED EMPLOYMENT AGREEMENT - MARC D. BEER
<TEXT>
<PAGE>
 
                                                                    Exhibit 10.1
 
                    AMENDED AND RESTATED EMPLOYMENT AGREEMENT
 
     THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT dated as of March 12, 2007
(the "Agreement") is between ViaCell, Inc. (together with, its affiliates and
subsidiaries, the "Company"), a Delaware corporation, with its principal place
of business at 245 First Street, Cambridge, Massachusetts and Marc Beer (the
"Executive").
 
     WHEREAS, the Company and the Executive are parties to a certain Employment
Agreement dated May 2, 2002 (the "Previous Agreement") pursuant to which the
Executive has been serving the Company as its Chief Executive Officer; and
 
     WHEREAS, the Company and the Executive desire to make certain changes to
the terms and conditions of the Executive's employment;
 
     NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company offers and the
Executive accepts employment upon the following amended and restated terms and
conditions:
 
     1. Employment of Executive; Title and Duties; Extent of Services.
 
          1.1. Employment; Title and Duties; Extent of Services. Upon the terms
and subject to the conditions set forth in this Agreement, the Company hereby
employs the Executive, and the Executive hereby accepts employment with the
Company to serve as Chief Executive Officer of the Company. The Executive shall
have such responsibilities and shall perform such specific duties as are
commensurate with such positions, and as may be reasonably assigned to the
Executive from time to time by the Board of Directors of the Company (the
"Board"). The Executive agrees to serve in such capacity, and to devote his best
efforts and full working time, attention and energy to the performance of such
duties until the termination of his employment under this Agreement.
 
     2. Term of Employment. The Company agrees to employ the Executive, and the
Executive agrees to serve the Company, for a period commencing on January 1,
2007 and continuing through the period ending one (1) year from such date (the
"Initial Employment Period") unless Executive's employment is earlier terminated
pursuant to the terms of Section 4. At the end of the Initial Employment Period
(and any renewal period provided for herein), this Agreement shall automatically
be extended for additional one year periods (the "Renewal Period") unless either
party hereto gives a written notice of non-renewal delivered not less than three
(3) months prior to the end of the Initial Employment Period or any Renewal
period.
 
     3. Compensation and Benefits.
 
          3.1. Base Salary. For the period from the date, hereof until December
31, 2007, the Company shall pay to the Executive a base salary of $385,000 per
year (the "Base Salary"), payable in substantially equal bi-weekly installments
or in accordance with the Company's regular payroll practices as in effect from
time to time. For the 2008 fiscal year and
 
 
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thereafter, the Executive's Base Salary shall be subject to adjustment as
determined by mutual agreement between the Board and the Executive.
 
          3.2. Bonus. In addition to the Base Salary, the Executive shall
participate in the Company's incentive compensation programs for senior
executive officers existing from time to time, including, without limitation, a
performance bonus program pursuant to which the Executive shall be entitled to
receive an annual incentive award (the "Performance Bonus") based on the
achievement of certain performance objectives to be mutually agreed upon by the
Board (or the Compensation Committee of the Board) and the Executive for the
relevant fiscal year.
 
          3.3. Stock Options. The Company previously granted to the Executive on
the date the Executive commenced employment with the Company pursuant to the
Previous Agreement options to purchase 900,000 shares (the "Options") of the
Company's Common Stock, $.01 par value per share under the Company's 1998 Equity
Incentive Plan (the "1998 Plan") at an exercise price per share equal to the
fair market value of such Common Stock on the date the Executive commenced
employment with the Company. The Options shall continue to become exercisable on
the schedule set forth in the Previous Agreement, restated here as follows:
600,000 shares shall become exercisable in forty-eight (48) equal monthly
installments (12,500 shares per month) beginning on the date the Executive
commenced employment pursuant to the Previous Agreement, and the remaining
300,000 shares shall become exercisable as to one-third (1/3) of such shares at
the end of each of June 1, 2008, June 1, 2009 and May 22, 2010. The Options have
a term of ten years, subject to early termination in the event of termination of
the Executive's employment in accordance with the Company's 1998 Plan, and shall
continue to be subject to all other terms and conditions on which they were
granted, except as provided herein.
 
          3.4. Change in Control. Notwithstanding the foregoing, upon a Change
in Control of the Company, all options held by the Executive at the time of such
Change of Control scheduled pursuant to the terms of any such options to become
exercisable in the subsequent twelve-month period only as a result of the
passage of time shall become exercisable immediately with respect to that
portion of such options so scheduled to become exercisable. If, following a
Change of Control, the Company or its successor shall terminate the Executive's
employment without Cause under Section 4.1(d), or if the Executive shall
terminate his employment for Reason pursuant to Section 4.2, within the eighteen
(18) month period following a Change in Control, all outstanding options held by
the Executive at the time of such Change of Control that, by their terms, become
exercisable only as a result of the passage of time shall become fully
exercisable. The term "Change in Control" shall mean herein:
 
               (i) a merger, consolidation or similar combination after which
50% or more of the voting stock of the surviving corporation is held by persons
who were not stockholders of the Company immediately prior to such merger or
combination;
 
               (ii) the sale, transfer or other disposition of all or
substantially all of the Company's assets to one or more persons (other than any
wholly owned subsidiary of the Company) in a single transaction or series of
related transactions; or
 
 
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               (iii) any person or related group of persons (other than the
Company or a person who directly or indirectly controls, is controlled by, or is
under common control with the Company) directly or indirectly acquires
beneficial ownership (determined pursuant to Rule 13d-3 promulgated under the
Securities Exchange Act of'1934, as amended) of securities comprising more than
50% of the total combined voting power of the Company's outstanding securities
pursuant to a tender or exchange offer made directly to the Company's
stockholders.
 
          3.5. Fringe Benefits. During the term of the Executive's employment
hereunder, the Executive shall be entitled to participate in all special benefit
or perquisite programs and employee benefit plans and programs of the Company
established or made available to its senior executive officers (including,
without limitation, any health, dental, short and long-term disability, group
term and supplemental life insurance, accidental death and dismemberment,
savings and retirement plans). The Executive shall be entitled to receive
benefits no less favorable than those provided to other senior executives of the
Company.
 
          3.6. Vacation. The Executive shall be entitled to the number of days
of paid vacation per calendar year customarily provided by the Company to its
senior executive officers and consistent with the Company's vacation policy, as
in effect from time to time.
 
          3.7. Reimbursement of Expenses. The Company shall reimburse the
Executive for reasonable expenses incurred in connection with his employment by
the Company, including, without limitation, reasonable travel, lodging and meal
expenses incurred by him in connection with his performance of services
hereunder, upon submission of supporting documentation reasonably satisfactory
to the Company.
 
     4. Termination.
 
          4.1. The Executive's employment hereunder may be terminated by the
Company under the following circumstances.
 
               (a) Death. Immediately upon the death of the Executive.
 
               (b) Disability. At any time, as a result of the Executive's
incapacity due to physical or mental illness resulting in a Disability of the
Executive. For purposes of this Agreement, "Disability" shall mean the inability
of the Executive (either with or without reasonable accommodation) to
substantially perform the services contemplated under this Agreement for a
period of 90 consecutive calendar days or more within any six month period
during the Initial Employment Term or any Renewal Period, as determined by a
physician satisfactory to both the Executive and the Company; provided, that if
the Executive and the Company do not agree on a physician, the Executive and the
Company shall each select a physician, who shall together select a third
physician whose determination as to disability shall be binding on both parties.
 
               (c) For Cause. For purposes of this Agreement, the Company shall
have "Cause" to terminate the Executive's employment hereunder in the event
that:
 
                    (1) the Executive shall have willfully failed and continued
to fail substantially to perform the duties (other than any failure resulting
from the Executive's
 
 
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<PAGE>
 
Disability), for thirty (30) days after a written demand for performance is
delivered to the Executive on behalf of the Company which specifically
identifies the manner in which it is alleged that the Executive has not
substantially performed his duties; or
 
                    (2) the Executive shall have engaged in (i) any material
misappropriation of funds, properties or assets of the Company, it being
understood that "material" for these purposes shall take into account both the
amount of funds, properties or assets misappropriated and the circumstances
thereof (including the intent of the Executive in connection therewith) or (ii)
any malicious damage or destruction of property or assets of the Company,
whether resulting from the Executive's willful actions or omissions or the
Executive's gross negligence;
 
                    (3) the Executive shall have been convicted of a crime
involving moral turpitude or constituting a felony; or
 
                    (4) the Executive shall have materially breached his
obligations under this Agreement or the Non-Competition/Assignment of Inventions
Agreement between the Company and the Executive dated as of the date hereof (the
"Non-Competition Agreement"), and such breach shall remain uncured by the
Executive for thirty (30) days following receipt of notice from the Company
specifying such breach.
 
               (d) Without Cause. The Company may terminate (by a majority vote
of the Board) the Executive's employment hereunder without Cause, upon sixty
(60) days prior written notice.
 
          4.2. The Executive may terminate his employment hereunder for "Reason"
in the event the Company breaches any material provision of this Agreement and
such breach remains uncured by the Company for 30 days following receipt of
notice from the Executive specifying such breach. For purposes of this
Agreement, the Company shall be in breach of a material provision of this
Agreement in the event that without the express written consent of the
Executive, it: (a) fails to pay the Executive his compensation and/or benefits
as provided in Section 3; (b) makes any material change to the 1998 Plan that
would adversely affect the Options; (c) assigns the Executive duties
inconsistent with the Executive's position and duties as provided in Section 1,
which results in a material diminution in such position and duties (excluding
for this purpose an isolated, insubstantial and inadvertent action not taken in
bad faith which is remedied by the Company promptly after notice by the
Executive hereof); (d) requires the Executive to relocate a distance of more
than 60 miles from Sudbury, Massachusetts; or (e) fails to secure the assumption
of this Employment Agreement by any acquirer or any corporation with which or
into which the Company may be merged or which may succeed to its assets or
business.
 
          4.3. Termination by the Executive without Reason. The Executive may
terminate his employment hereunder without Reason, upon sixty (60) days prior
written notice.
 
          4.4. Notice of Termination. Any termination of the Executive's
employment by the Company or by the Executive (other than termination pursuant
to Section 4.1) shall be communicated by Notice of Termination to the other
party hereto. For purposes of this
 
 
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Agreement, a "Notice of Termination" shall mean a written notice which shall
indicate the specific termination provision in this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstance which provide a
basis for termination of the Executive's employment under the provision so
indicated.
 
          4.5. Date of Termination. "Date of Termination" shall mean (i) if the
Executive's employment is terminated pursuant to Section 4.1(a), the date of the
Executive's death, (ii) if the Executive's employment is terminated pursuant to
Section 4.1(b), 30 days after the Notice of Termination is given (provided that
the Executive shall not have returned to the performance of his duties on a
full-time basis during such 30 day period), and (iii) if the Executive's
employment is terminated pursuant to Section 4.1(c), 4.1(d), 4.2 or 4.3, the
date specified in the Notice of Termination; provided, that in the case of
termination under any of such provisions, the Notice of Termination and
termination are in compliance with the provisions of such Sections.
 
     5. Compensation Upon Termination--Severance Pay.
 
          5.1. If the Executive's employment is terminated under the provisions
of Section 4.1(a), 4.1(b), 4.1(c) or 4.3, the Company shall pay to the Executive
(or his estate) his earned Base Salary, and any earned but unpaid Performance
Bonus and benefits through the Date of Termination, including, but not limited
to, accrued vacation, and the Executive shall not be entitled to any other
compensation or severance pay.
 
          5.2. If the Company shall terminate the Executive's employment without
Cause under Section 4.1(d), or if the Executive shall terminate his employment
for Reason pursuant to Section 4.2, then the Company shall pay the Executive
following amounts and benefits:
 
               (i) An amount equal to his Base Salary (the "Severance Amount")
for a period of eighteen (18) months following the Date of Termination (the
"Severance Period"). The amount payable under this Section 5.2(i) shall be in
addition to any other cash amounts due and payable, including, but not limited
to, accrued vacation.
 
               (ii) The Executive's coverage under the Company's life, health
and dental insurance plans will remain in effect and the Executive will be
entitled to continue to participate in the Company's retirement plans at the
Company's expense (provided, that the Executive pays his contributory share)
during the Severance Period, unless the Executive notifies the Company in
writing that such coverage is no longer necessary. If, because of limitations
required by third parties or imposed by law, the Executive cannot be provided
such benefits through the Company's plans, then the Company will provide the
Executive with substantially equivalent benefits on an aggregate basis, at its
expense.
 
          5.3. If, at any time during the eighteen (18) month period following a
Change in Control, the Company or its successor shall terminate the Executive's
employment without Cause under Section 4.1(d) or the Executive shall terminate
his employment for Reason pursuant to Section 4.2, then the Company shall, in
addition to the payments described in Section 5.2, pay the Executive an amount
equal to the Performance Bonus the Executive would have received for
 
 
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<PAGE>
 
the bonus year in which termination occurs (the "Severance Bonus Payment"),
determined by assuming achievement of all then-existing Company and individual
goals for such year, payable over the Severance Period.
 
          5.4. Any obligation of the Company to the Executive under Sections 5.2
and 5.3 shall be conditioned upon the Executive signing and returning to the
Company a timely and effective release of claims in the form provided by the
Company (the "Release of Claims"). The Release of Claims required for separation
benefits in accordance with Section 5.2 or Section 5.3 creates legally binding
obligations on the part of the Executive, and the Company and its Affiliates
therefore advise the Executive to seek the advice of an attorney before signing
it. Any Severance Amount or Severance Bonus Payment to which the Executive is
entitled hereunder shall be payable in accordance with the normal payroll
practices of the Company and will begin at the Company's next regular payroll
period which is at least five business days following the later of the effective
date of the Release of Claims or the date the Release of Claims, signed by the
Executive, is received by the Company, but the first payment shall be
retroactive to the next business day following the date of termination.
 
     6. Miscellaneous.
 
          6.1. Notices. All notices required by or permitted under this
Agreement shall be given in writing and be deemed duly given upon personal
delivery, telecopy, nationally recognized courier or mailed, by registered or
certified mail, return receipt requested, postage prepaid, addressed to the
other party at the address shown above, or at such other address or addresses as
either party shall designate to the other in accordance with this Section.
 
          6.2. Pronouns. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular forms of nouns and pronouns shall include the plural,
and vice versa.
 
          6.3. Entire Agreement. This Agreement and the Non-Competition
Agreement constitute the entire agreement between the parties and supersedes all
prior agreements and understandings, whether written or oral, relating to the
subject matter of this Agreement.
 
          6.4. Amendment. This Agreement may be amended or modified only by a
written instrument executed by both the Company and the Executive.
 
          6.5. Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the Commonwealth of Massachusetts.
 
          6.6. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of both parties and their respective successors and
assigns, including any corporation with which or into which the Company may be
merged or which may succeed to its assets or business; provided, however, that
the obligations of the Executive are personal and shall not be assigned by him;
and provided further, that the Company shall be and remain liable for the
payment to the Executive of all compensation payable to the Executive hereunder,
except as and to the extent otherwise agreed to by the Executive in his absolute
discretion. During the Executive's lifetime, this Agreement and all rights of
the Executive hereunder shall be
 
 
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<PAGE>
 
enforceable by the Executive's spouse, heirs, distributees, or other legal
representatives in the event the Executive is unable to act on his own behalf
for any reason whatsoever.
 
          6.7. Waivers. No delay or omission by the Company in exercising any
right under this Agreement shall operate as a waiver of that or any other right.
A waiver or consent given by the Company on any one occasion shall be effective
only in that instance, and shall not be construed as a bar or waiver of any
right on any other occasion.
 
          6.8. Captions. The captions of the sections of this Agreement are for
the convenience of reference only and in no way define, limit or affect the
scope or substance of any section of this Agreement.
 
          6.9. Severability. In case any provision of this Agreement shall be
invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
 
          6.10. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
 
 
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<PAGE>
 
     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
 
                                        EXECUTIVE
 
 
                                        /s/ Marc D. Beer
                                        ----------------------------------------
                                        Marc D. Beer
 
 
                                        VIACELL, INC.
 
 
                                        By: /s/ Vaughn Kailian
                                            ------------------------------------
                                        Name: Vaughn Kailian
                                        Title: Chairman of the Board
 
 
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