EMPLOYMENT AGREEMENT
EXHIBIT
10.38
THIS
AGREEMENT is entered into as of July 25, 2006 (the “Effective Date”), by and
between Cytori Therapeutics, Inc., a Delaware corporation located at 0000 Xxxxxx
Xxxx, Xxx Xxxxx, XX 00000 (“Company”), and Xxxxxxxxx X. Xxxxxxxxxx, an
individual (“Employee”).
Whereas,
the Company has eliminated the position of Vice President, Marketing &
Development on July 25, 2006; and
Whereas,
the Company and Employee wish to continue the Employment relationship in a
new
capacity through February 7, 2007;
Now
therefore, in consideration of the mutual promises made by the parties to this
Agreement, the parties agree as follows:
1.
Duties
and Compensation
(a)
Employee is engaged by the Company as its Strategic Marketing & Development
Advisor with duties as directed by the CEO and/or the President and otherwise
customarily associated with that position.
(b)
The
Company shall pay to Employee in exchange for the services to be rendered
hereunder a salary of Fifteen Thousand Four Hundred and Seventeen Dollars
[$15,417.00] per month, payable twice a month on the fifteenth and last days
of
each month during which this Agreement is in force.
(c)
In
exchange for Company agreeing to enter into this Agreement, Employee shall
be
required to sign a full release of claims with respect to her past employment
with the Company. The release shall be in the form attached hereto as Exhibit
A.
Company shall have the option to suspend its performance under this Agreement
and the Stock Option Extension Agreement until such time as Employee has
executed the full release of claims and the seven day period for revocation
of
the release has elapsed. In the event the release is not signed by Employee
within the 45 day period, or in the event Employee revokes the release prior
to
the expiration of the 7 day revocation period, the parties agree that this
Agreement and the Stock Option Extension Agreement shall immediately terminate
and Company shall have no obligations to Employee under this Agreement, and
all
outstanding Company stock options described in the Stock Option Extension
Agreement shall immediately terminate in their entirety.
2.
Guaranteed Duration
The
term
of this Agreement shall commence on July 25, 2006 and shall end on February
7,
2007 (the”Term”) unless extended by mutual agreement. The employment
relationship created by this Agreement is “at will” and may be terminated by
either the Company or Employee at any time, with or without cause. Should the
Company terminate Employee without cause prior to February 7, 2007, Employee
shall receive, as severance, the balance of her monthly salary payments that
would have otherwise been payable from such date of early termination through
February 7, 2007.
3.
Other
Compensation / Benefits / Acknowledgements
Employee
understands and agrees that by her employment hereunder that she shall not
earn
or accrue the right to any additional paid time off (or “PTO”), nor shall she be
eligible from the Effective Date of this Agreement to the vesting of any stock
options through the Company’s incentive stock option programs during the term of
this Agreement. Employee expressly acknowledges and agrees that this Agreement
shall serve as full and final compensation for any and all PTO that she may
have
accrued prior to the Effective Date. Employee also understands and agrees that
she is eligible to participate in the Company’s flexible benefits plan for
2006/2007, but she agrees to not to submit for reimbursement of amounts in
excess of that which she has paid into the plan.
Employee
understands and agrees that she shall be entitled to participate in all other
standard benefits offered by the Company through the term of this Agreement.
4.
Agreement Relating to Confidential Information
Employee
agrees that she shall continue to be covered by the Company’s Employment,
Confidentiality and Assignment Agreement which she executed on March 28, 2003.
5.
Noninterference
While
employed by the Company and for two (2) years immediately following the
termination of employment, Employee agrees not to interfere with the business
of
the Company by soliciting, attempting to solicit, inducing, or otherwise causing
any employee of the Company to terminate his or her employment in order to
become an employee, consultant or independent contractor to
or for
any competitor of the Company.
Employee
agrees that the duties under Sections 4 and 5 of this Agreement shall survive
termination of employment with the Company.
6.
Governing Law
This
Agreement and the rights and obligations of the parties shall be governed and
construed by the substantive laws of the State of California as applied to
contracts that are executed and performed entirely in California. Exclusive
jurisdiction and venue for any dispute arising out of or related to this
Agreement shall lie with the federal and state courts located in and serving
San
Diego County, California.
7.
Complete Agreement; Amendments
This
Agreement, together with the Stock Option Extension Agreement and the
Employment, Confidentiality and Assignment Agreement between Employee and the
Company (including all exhibits and attachments thereto), are the entire
agreement of the parties with respect to the subject matter hereof and thereof
and may not be amended, supplemented, canceled or discharged except by written
instrument executed by both parties hereto. If either party should waive any
breach of any provision
of this Agreement, he, she or it shall not thereby be deemed to have waived
any
preceding or succeeding breach of the same or any other provision of this
Agreement.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date.
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EMPLOYEE:
Xxxxxxxxx
X. Xxxxxxxxxx
/s/
Xxxxxxxxx X. Xxxxxxxxxx
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COMPANY:
By:
Xxxx
X. Xxxx
Name:
Xxxx X. Xxxx
Title: Chief
Financial Officer
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