AGREEMENT FOR ACCELERATION AND/OR SEVERANCE
Exhibit
10.53
This
agreement (this “Agreement”) is entered into as of the date signed by the last
party to sign, as indicated below, between Cytori Therapeutics, Inc., a Delaware
corporation (the “Company”) and Xxxx X. Xxxxxxx (“Executive”), setting forth the
following terms and conditions.
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1.
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Stock
Option Acceleration.
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Notwithstanding anything to the
contrary in any stock option agreement, all then-unvested Company stock options
held by Executive shall immediately and fully vest if (a) an Early Separation
Trigger occurs (provided, that Executive may not exercise any such
erstwhile-unvested options until the Acquisition is consummated and thereby
proves that the separation really was an Early Separation Trigger), or (b) an
Acquisition of the Company occurs and Executive is at that time still in the
service of the Company.
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2.
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Severance
Contingency; Definitions.
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In the
event of a Double Trigger, Executive (provided he timely executes and delivers a
counterpart of an Agreement and General Release as set forth in Section 4 below)
shall be entitled to the following severance, and no more: a lump sum equal to
(a) 12 times his monthly base salary as of the Acquisition Agreement Date, plus
(b) 12 times the indicated monthly COBRA premiums for medical and dental
benefits for Executive and his eligible dependents (together the “Severance
Payment”). It is understood that the Severance Payment shall be
subject to tax withholding as required by law.
An
“Acquisition” shall include any merger, stock sale, or asset sale by which the
Company (or all or substantially all of the Company’s assets or stock) is
acquired, or any other transaction by which any person acquires beneficial
ownership of more than 50% in interest of the Company’s voting securities, but
in no event shall an issuance of securities by the Company for financing
purposes be deemed an Acquisition by the issuee for purposes of this
Agreement. If his employment is continued by a successor or affiliate
company after an Acquisition, Executive’s employment shall not be considered to
have been terminated solely because his employer is no longer the Company; and
where the context so suggests, the defined term “the Company” shall be deemed to
include such successor or affiliate company.
The
“Acquisition Agreement Date” means the first day on which the Company and the
acquirer formally or informally agree on the terms of the
acquisition. Informal agreement need not be legally binding, and can
be evidenced by such things as a letter of intent (even if legally non-binding)
or taking steps, in reliance on the existence of an informal agreement, in
contemplation of the consummation of the acquisition.
“Late Separation Trigger” means that a
Forced Separation occurs during the first 12 months after an Acquisition of the
Company. “Early Separation Trigger” means that a Forced Separation
occurs during the period between the Acquisition Agreement Date and the date of
such Acquisition. “Forced Separation” means the Company’s termination
of Executive’s employment other than for Cause (as defined below) or Executive’s
resignation due to (i.e., within 20 days after) Good Reason (as defined
below). “Acquisition Trigger” means that an Acquisition of the
Company has been consummated. “Double Trigger” means that both (a) a
“Separation Trigger” (i.e., either an Early Separation Trigger or a Late
Separation Trigger), and (b) the Acquisition Trigger, have
occurred.
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“Cause”
shall be defined to mean:
(a) Extended
disability (defined as the inability to perform, with or without reasonable
accommodation, the essential functions of Executive’s position for any 120 days
within any continuous period of 150 days by reason of physical or mental illness
or incapacity);
(b) Executive’s
repudiation of his employment or of this Agreement;
(c) Executive’s
conviction of (or plea of no contest with respect to) a felony, or of a
misdemeanor involving moral turpitude, fraud, misappropriation or
embezzlement;
(d) Executive’s
demonstrable and documented fraud, misappropriation or embezzlement against the
Company;
(e) Use of
alcohol, drugs or any illegal substance in such a manner as to materially
interfere with the performance of employment duties;
(f) Intentional,
reckless or grossly negligent action which causes material harm to the Company,
including any misappropriation or unauthorized use of the Company’s property or
improper use or disclosure of confidential information (but excluding any good
faith exercise of business judgment);
(g) Intentional
failure to substantially perform material employment duties or directives (other
than following resignation for Good Reason as defined below) if such failure has
continued for 15 days after Executive has been notified in writing by the
Company of the nature of the failure to perform (it being understood that the
performance of material duties or directives is satisfied if Executive has
reasonable attendance and makes good faith business efforts to perform his
duties on behalf of the Company. The Company may not terminate him
for Cause based solely upon the operating performance of the Company);
or
(h) Chronic
absence from work for reasons other than illness, permitted vacation or
resignation for Good Reason as defined below.
“Good
Reason” shall be defined to mean:
(a) The
Company’s material breach of its obligation to pay Executive the compensation
earned for any past service (at the rate which had been stated to be in effect
for such period of service); or
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(b) (A) a
change in his position with the Company (or successor, affiliate, parent or
subsidiary of the Company employing him) which materially reduces his duties and
responsibilities as to the business conducted by the Company as of the
Acquisition Agreement Date, (B) a reduction in his level of compensation
(including base salary, fringe benefits (except as such reduction applies to all
employees generally) and target bonus, but excluding stock-based compensation)
by more than 15% or (C) a relocation of his place of employment by more than 30
miles, provided and only if such change, reduction or relocation is effected by
the Company without his consent.
(c) Executive’s
right to terminate employment for Good Reason shall not be affected by
Executive’s incapacity due to physical or mental illness. Executive’s
continued employment shall not constitute consent to, or a waiver of rights with
respect to, any circumstance constituting Good Reason herein; provided, that the
20-day requirement imposed in the definition of “Forced Separation” shall apply
notwithstanding this sentence.
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3.
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Other
Termination.
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For the
avoidance of doubt, in the event Executive’s employment is terminated for Cause
or due to his death or disability or he resigns without Good Reason, or in the
event that in any period other than the 12 months following an Acquisition of
the Company (or between the Acquisition Agreement Date and the date of such
Acquisition), his employment terminates for any reason, he shall not be entitled
to receive the Severance Payment.
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4.
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General
Release.
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Executive’s
entitlement to the Severance Payment is further expressly conditioned upon his
execution and delivery to the Company, within 30 days after the occurrence of
the second to occur of the Acquisition Trigger and the Separation Trigger, of a
counterpart of an Agreement and General Release in the form of the Attachment
hereto. The Company shall be required to pay the Severance Payment
within 10 business days after such execution and delivery.
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5.
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At-Will
Employment.
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Executive
expressly acknowledges that nothing in this Agreement gives him any right to
continue his employment with the Company for any period of time, nor does this
Agreement interfere in any way with his right or the Company's right to
terminate that employment at any time, for any reason, with or without
cause.
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6.
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Dispute
Resolution.
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Any and
all controversies between the parties regarding the interpretation or
application of this Agreement, together with the Attachment hereto, shall be,
upon the written request of either party, served on the other, be submitted to
final and binding arbitration pursuant to the non-union employment arbitration
rules of the American Arbitration Association (AAA) then in
effect. Any such arbitration shall be conducted before a single
neutral arbitrator selected either by agreement of the parties or through
selection from a panel appointed by AAA. Neither side shall withhold
their agreement to participate in said arbitration and to the extent either side
is required to file a petition to compel, the prevailing party should be awarded
their attorneys fees. The arbitration shall be held in San Diego County, unless
otherwise mutually agreed by the parties. The arbitrator shall issue
an award in writing and state the essential findings and conclusions on which
the award is based. The Company shall bear the costs with respect to
the payment of any filing fees or arbitration costs.
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7.
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Miscellaneous.
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This
Agreement, together with the Attachment hereto, shall be governed by and
construed under the laws of the State of California (as it applies to agreements
between California residents, entered into and to be performed entirely within
California), and constitutes the entire agreement of the parties with respect to
the subject matter hereof, superseding all prior or contemporaneous written or
oral agreements with respect to such subject matter, and no amendment or
addition hereto shall be deemed effective unless agreed to in writing by the
parties hereto. The parties acknowledge that each of them retains the
right to terminate their employment relationship, at any time and for any or no
reason, without liability except as provided by law and except as expressly
provided herein.
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XXXX
X. XXXXXXX
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/s/ Xxxx X.
Xxxxxxx
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Dated: January 31,
2008
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By: /s/
Xxxxxxxxxxx X. Xxxxxxx
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Dated: January 31,
2008
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ATTACHMENT
I
Agreement and General
Release
For good
and valuable consideration, rendered to resolve and settle finally, fully, and
completely all matters that now or may exist between them, the parties below
enter this Agreement and General Release (“Agreement”).
1. Parties. The
parties to this Agreement are Xxxx X. Xxxxxxx, for himself and his heirs,
legatees, executors, representatives, administrators, spouse, family and assigns
(hereinafter referred to collectively as “Executive”) and Cytori Therapeutics,
Inc., for itself and its successors and assigns and its and their subsidiaries,
affiliates, parents, and related companies (hereinafter referred to collectively
as the “Company”).
2. Separation from
Employment. Executive acknowledges and agrees that his
employment with the Company has ended and that a Double Trigger has occurred
pursuant to the Agreement for Acceleration and/or Severance dated ________, 2007
(the “Severance Agreement”).
3. Severance
Payment. As consideration for the promises and covenants of
Executive set forth in this Agreement, the Company agrees to provide him with
the Severance Payment in the gross amount required by the Severance Agreement,
less applicable withholding taxes, in a lump sum. This Severance
Payment shall be delivered to Executive within 10 business days following the
Company's receipt of a counterpart of this original Agreement signed and dated
by Executive.
4. No Other Payments
Due. Executive acknowledges and agrees that he has received
all amounts due to him, and that the only further payment to which he will be
entitled from the Company, assuming he signs this Agreement, will be (a) the
Severance Payment to be provided under Paragraph 3 above, (b) any expense
reimbursements for pre-Separation-Trigger for which he has previously submitted
requests in accordance with the Company’s written policies and which are validly
reimbursable under the Company’s written policies, and (c) base salary and
vacation pay accrued before the Separation Trigger as reflected on the Company’s
books in accordance with the Company’s written policies.
5. Release of Claims By Executive. As
consideration for the promises and covenants of the Company set forth in this
Agreement, Executive hereby fully and forever releases and discharges the
Company and its future current and former owners, shareholders, agents, employee
benefit plans, representatives, employees, attorneys, officers, directors,
business partners, successors, predecessors, related companies, and assigns
(hereinafter collectively called the “Released Parties”), from all claims and
causes of action, whether known or unknown, including but not limited to those
arising out of or relating in any way to Executive’s employment with the
Company, including the termination of his employment, based on any acts or
events occurring up until the date of Executive’s signature
below. Executive understands and agrees that this Release is a full
and complete waiver of all claims, including, but not limited to, any claims
with respect to Executive’s entitlement to any wages, bonuses, or other
forms of compensation; any claims of wrongful discharge, breach of contract,
breach of the covenant of good faith and fair dealing, violation of public
policy, defamation, personal injury, emotional distress; any claims under Title
VII of the Civil Rights Act of 1964, as amended, the Fair Labor Standards Act,
the Age Discrimination in Employment Act of 1967, the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), as related to severance benefits,
the California Fair Employment and Housing Act, California Government Code
§ 12900 et
seq., the California Labor Code, the California Business &
Professions Code, the Equal Pay Act of 1963, the Americans With Disabilities
Act, the Civil Rights Act of 1991; and any claims under any other federal,
state, and local laws and regulations. This Agreement does not
release claims that cannot be released as a matter of law, including, but not
limited to, claims under Division 3, Article 2 of the California Labor Code
(which includes indemnification rights); any claims expressly preserved under
Paragraph 3 above; and any claims pursuant to any agreements expressly preserved
under Paragraph 8 below.
6. Outstanding
Claims. As further consideration and inducement for this
Agreement, Executive represents that he has not filed or otherwise pursued any
charges, complaints or claims of any nature which are in any way pending against
the Company or any of the Released Parties with any court or arbitration forum
with respect to any matter covered by this Agreement and that, to the extent
permitted by law, he agrees he will not do so in the
future. Executive further represents that, with respect to any
charge, complaint or claim he has filed or otherwise pursued or will file or
otherwise pursue in the future with any state or federal agency against the
Company or any of the Released Parties, he will forgo any monetary damages,
including but not limited to compensatory damages, punitive damages, and
attorneys’ fees, to which he may otherwise be entitled in connection with said
charge, complaint or claim. Nothing in this Agreement shall limit
Executive’s right to file a charge, complaint or claim with any state or federal
agency or to participate or cooperate in such matters.
7. Civil Code 1542
Waiver. As a further consideration and inducement for this
Agreement, Executive hereby waives any and all rights under Section 1542 of the
California Civil Code or any other similar state, local, or federal law,
statute, rule, order or regulation or common-law principle he may have with
respect to the Company and any of the Released Parties.
Section 1542 provides:
A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
Executive
expressly agrees that this Agreement shall extend and apply to all unknown,
unsuspected and unanticipated injuries and damages as well as those that are now
disclosed.
8. Survival. Any
written stock option agreement, indemnification agreement and any confidential
information/proprietary information/and-or invention assignment agreement
between the Company and Executive shall survive this Agreement in accordance
with their express written terms. Any such stock option agreement
shall be applied in accordance with its express written terms as to the effects
of the fact that Executive’s service has ceased.
9. Company
Property. To the extent he has not already done so, Executive
agrees to forthwith return to the Company all of his keys and security cards to
Company premises, and his Company credit card, and all other property in his
possession which belongs to the Company. Executive specifically
promises and agrees that he shall not retain copies of any Company (or Company
customer or patient) documents or files (either paper or
electronic).
10. No Rush Toward Agreement;
Revocation
Period. Executive understands that he has the right to consult
with an attorney before signing this Agreement. Executive also
understands that he is allowed 21 calendar days after receipt of this Agreement
within which to review and consider it and decide to execute or not execute
it. Executive also understands that for a period of 7 calendar days
after signing this Agreement, he may revoke this Agreement by delivering to the
Company, within said 7 calendar days, a letter stating that he is revoking
it.
11. No Admission of
Liability. By entering into this Agreement, the Company and
all Released Parties do not admit any liability whatsoever to Executive or to
any other person arising out of claims heretofore or hereafter asserted by him,
and the Company, for itself and all Released Parties, expressly denies any and
all such liability.
12. Joint Participation In Preparation Of
Agreement. The parties hereto participated jointly in the
negotiation and preparation of this Agreement, and each party has had the
opportunity to obtain the advice of legal counsel and to review, comment upon,
and redraft this Agreement. Accordingly, it is agreed that no rule of
construction shall apply against any party or in favor of any
party. This Agreement shall be construed as if the parties jointly
prepared this Agreement, and any uncertainty or ambiguity shall not be
interpreted against any one party and in favor of the other.
13. Choice of Law. The
parties agree that California law shall govern the validity, effect, and
interpretation of this Agreement.
14. Entire
Agreement. This Agreement constitutes the complete
understanding between Executive and the Company and supersedes any and all prior
agreements, promises, representations, or inducements, no matter its or their
form, concerning its subject matter, but with the exception of any agreements
expressly preserved under Paragraph 8 above, which remain in full force and
effect to the extent not inconsistent with this Agreement. No
promises or agreements made after the execution of this Agreement by these
parties shall be binding unless reduced to writing and signed by authorized
representatives of these parties. Should any of the provisions of
this Agreement be found unenforceable or invalid by a court or government agency
of competent jurisdiction, the remainder of this Agreement shall, to the fullest
extent permitted by applicable law, remain in full force and
effect.
16. Nondisparagement. The parties agree that
each will use its reasonable best efforts to not make any voluntary statements,
written or verbal, or cause or encourage others to make any such statements that
defame, disparage or in any way criticize the reputation, business practices or
conduct of Executive (in the case of the Company) or the Company or any of the
other Released Parties (in the case of Executive).
17. Voluntary
Decision. Executive hereby acknowledges that he has read and
understands the foregoing Agreement and that he signs it voluntarily and without
coercion.
Dated:
___________________ XXXX X.
XXXXXXX
______________________________________
Dated:
___________________ CYTORI THERAPEUTICS,
INC.
By
___________________________________
