Exhibit 10.27


 


SEVERANCE AGREEMENT AND MUTUAL RELEASE


 


This Severance
Agreement and Mutual Release (“Agreement”) is made and entered into by and
between CYTORI THERAPEUTICS, INC., formerly known as MACROPORE BIOSURGERY, INC.
(the “Company”) and SHARON SCHULZKI.


 


WHEREAS,
SHARON SCHULZKI has been employed by the Company in one of the following
capacities since July 17, 2000: Vice President of Marketing and Sales,
Senior Vice President of Spine, and Chief Operating Officer;


 


WHEREAS,
SHARON SCHULZKI was on a paid leave of absence effective June 22, 2005 and
an unpaid leave of absence effective June 27, 2005;


 


WHEREAS, the
parties have now decided to sever the employment relationship and SHARON
SCHULZKI desires to receive enhanced severance pay in exchange for the releases
contained in this Agreement;


 


WHEREAS,
SHARON SCHULZKI and the Company desire to ensure a completely amicable parting
and to settle fully and finally any and all differences or claims that might
otherwise arise out of SHARON SCHULZKI’s employment with the Company and the
cessation of her employment;


 


NOW,
THEREFORE, in consideration of the mutual promises contained herein, it is
agreed as follows:


 


1.                                       Termination Of Employment Relationship. The parties mutually agree that
the employment relationship shall terminate and cease effective as of August 5,
2005 (“Termination Date”).


 


2.                                       Consideration. In consideration of this
Agreement, CYTORI THERAPEUTICS, INC. agrees to pay SHARON SCHULZKI a lump sum
of seven (7) times her monthly salary (total = $155,164.00) less standard
tax and withholding requirements. The Company also agrees to allow SHARON
SCHULZKI a two (2) year period of time from the Termination Date to
exercise One Hundred Percent (100%) of her vested stock options, which equals
Two Hundred Fifty Three Thousand, Seven Hundred Forty Three (253,743) options,
upon the terms provided in the 1997 MACROPORE BIOSURGERY, INC. Stock Option and
Stock Purchase Plan and the 2004 Equity Incentive Plan.


 


3.                                       Confidentiality. The parties understand
and agree that this Agreement, and the matters discussed in negotiating its
terms, are entirely confidential. It is therefore expressly understood and
agreed that SHARON SCHULZKI will not reveal, discuss, publish or in any way
communicate any of the terms, amount or fact of this Agreement to any person,
organization or other entity, except as may be required by law and except to
SHARON SCHULZKI’s immediate family members and professional representatives,
who shall be informed of and bound by this confidentiality clause. It is also
agreed and understood that the Company may make any disclosure of the terms of
the agreement as may be required by law.


 


4.                                       Release Of Claims By Sharon Schulzki. Except for the payments and benefits
set forth in this Agreement, SHARON SCHULZKI, for herself and her heirs,
successors and assigns, does hereby waive, release, acquit and forever
discharge Company, and Company’s parents, subsidiaries, affiliates, and related
entities or companies, and all past and present officers, directors, shareholders,
employees, agents, partners, attorneys, heirs, successors, and assigns,
(hereinafter “Company Released Parties”) from any and all claims, actions,
charges, complaints and causes of action (hereinafter collectively referred to
as “claims”), of whatever nature, whether known or unknown, which exist or may
exist on SHARON SCHULZKI’s behalf against Company Released Parties as of the
date of this Agreement, including but not limited to any and all tort claims,
contract claims, wage claims, commission claims, bonus claims, overtime claims,
wrongful termination claims, public policy claims, retaliation claims,
statutory claims, personal injury claims, emotional distress claims, privacy
claims, defamation claims, fraud claims, and any and all claims arising under
any federal, state or other governmental statute, law, regulation or ordinance
relating to employment, including but not limited to Title VII of the Civil
Rights Act of 1964, as amended, the Americans with Disabilities Act, the Age
Discrimination in Employment Act, the Family and Medical Leave Act, the Fair
Labor Standards Act, the Employee Retirement Income Security Act, the
California Labor Code, and the California Fair Employment and Housing Act
covering discrimination in employment, including race, color, religious creed,
national origin, ancestry, physical or mental disability, medical condition,
marital status, military status, family care leave, pregnancy, sex, sexual
orientation, age, and harassment or retaliation.


 


5.                                       Release
Of Claims By Cytori Therapeutics, Inc.  Except for the obligations
of SHARON SCHULZKI set forth in this Agreement and the provisions of Sections 6
and 7, below, the Company, for itself and its parents, subsidiaries,
affiliates, and related entities or companies, and all past and present
officers, directors, shareholders, members, employees, agents, partners,
attorneys, heirs, successors and assigns, does hereby waive, release, acquit
and forever discharge SHARON SCHULZKI and her heirs, successors and assigns (“Schulzki
Released Parties”), from any and all claims, actions, charges, complaints and
causes of action (hereinafter collectively referred to as “claims”), of
whatever nature, whether known or unknown, which exist or may exist against the
Schulzki


 





















 


Released
Parties as of the date of this Agreement, including but not limited to any and
all tort claims, contract claims, defamation claims, breach of duty and/or
loyalty claims, public policy claims, and any and all claims arising under any
federal, state or other governmental statute, law, regulation or ordinance,
except as provided below.


 


6.                                       Claims
Not Released The Company. Notwithstanding the release language set
forth in Sections 5 and 7 by the Company, the releases described herein do not
apply to any claims by the Company against SHARON SCHULZKI for theft, fraud,
embezzlement, misappropriation of funds or trade secrets, or breach of
confidentiality obligations by SHARON SCHULZKI. The Company is not presently
aware of any such claims against SHARON SCHULZKI, but expressly reserves the
right to bring such claims (if any), notwithstanding the release language
contained in Sections 5 and 7 to the contrary.


 


7.                                       Waiver
Of Rights Under Section 1542. It is further understood and agreed
by the parties hereto that each of them, as a condition of this Agreement
(except as set forth in Section 6 above), hereby expressly waive and
relinquish any and all claims, rights or benefits that she or it may have
against the other under California Civil Code section 1542, which provides
as follows:


 


“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.”


 


In connection
with such waiver and relinquishment, each party hereby acknowledges that she or
it or their respective attorneys may hereafter discover claims or facts in
addition to, or different from, those which are now known or believed to exist,
but that each party expressly agrees to fully, finally and forever settle and
release any and all claims, known or unknown, suspected or unsuspected, which
exist or may exist on their behalf against the other at the time of execution
of this Agreement, including, but not limited to, any and all claims relating
to or arising from SHARON SCHULZKI’s employment with the Company or the
termination of that employment, except for those claims identified in Section 6,
above.


 


8.                                       Continuing Obligations Regarding Confidential Or
Proprietary Information. SHARON SCHULZKI agrees to abide by all
the surviving provisions of the Employment, Confidentiality, and Assignment
Agreement which she executed on July 18, 2000, including but not limited
to, promises to protect all confidential and proprietary information of
Company.


 


9.                                       Release
Of Age Discrimination Claims. SHARON SCHULZKI agrees to the release of
all known and unknown claims, including expressly the waiver of any rights or
claims arising out of the Federal Age Discrimination in Employment Act (“ADEA”)
29 U. S. C. § 621, et seq., and in connection with such waiver:


 


a.                                       SHARON
SCHULZKI is hereby advised to consult with an attorney prior to signing this
Agreement.


b.                                      SHARON
SCHULZKI shall have a period of twenty one (21) days from the date of receipt
of this Agreement in which to consider the terms of the Agreement. SHARON
SCHULZKI may at her option execute this Agreement at any time during the 21-day
period.


c.                                       SHARON
SCHULZKI may revoke this Agreement at any time during the first seven (7) days
following her execution of this Agreement, and this Agreement shall not be
effective or enforceable until the seven-day period has expired.


 


10.                                 Employer Property And Trade Secrets. SHARON
SCHULZKI will return to CYTORI THERAPEUTICS, INC. any and all of its property
and documents which she may have in her possession. Including but not limited
to the following:


 


•                  All computers
and related accessories (printers, etc.)


•                  Cameras, video
equipment, etc.


•                  Samples


•                  Literature


 


SHARON
SCHULZKI further agrees never to disclose to any person or entity any
confidential or proprietary information of or about CYTORI THERAPEUTICS, INC.,
except upon the express authorization and consent of Company.


 


11.                                 COBRA. SHARON SCHULZKI hereby
acknowledges that Company has advised her that pursuant to the Consolidated
Omnibus Budget Reconciliation Act of 1985 (COBRA) she has a right to elect
continued coverage under Company’s group health plan, at her own expense, for a
period of up to eighteen months from the date of her termination.


 


12.                                 Non-Disparagement. Company and SHARON
SCHULZKI agree that neither party will at any time defame, disparage or impugn
the reputation of the other in any future communications with any third-party
or entity.  “Disparage,” as used in this
Agreement, means to make any statement, written or oral, that casts another
party in a negative light of any kind, or implies or attributes any negative
quality to another party.


 


2





















 


13.                                 Liquidated Damages For Breach Of Non-Disparagement.
In the event SHARON SCHULZKI breaches any component of the
Non-Disparagement clause contained in the above Section 12 at any time, SHARON
SCHULZKI acknowledges and agrees that it would be impractical or extremely
difficult to ascertain the amount of actual damages to Company. For this
reason, SHARON SCHULZKI agrees that any violation of the Non-Disparagement
provision of this Agreement shall result in the imposition of liquidated
damages, and not as a penalty, in the amount of Seven-Thousand Dollars
($7,000.00), per each occurrence, to be paid by SHARON SCHULZKI to Company,
which represents the reasonable compensation for the loss incurred because of
the breach.


 


14.                                 Ownership
Of Claims. SHARON SCHULZKI represents and warrants that she is the sole
and lawful owner of all rights, title and interest in and to all released
matters, claims and demands as herein contained and that there has been no
assignment or other transfer of any interest of any claim or demand which she
may have against Company.


 


15.                                 Successors And Assigns. It is further
expressly understood and agreed by SHARON SCHULZKI that this Agreement and all
of its terms shall be binding upon each party’s respective representatives,
heirs, executors, administrators, successors and assigns.


 


16.                                 No
Admission Of Wrongdoing. This Agreement shall not in any way be
construed as an admission by the released parties of any acts of wrongdoing
whatsoever against SHARON SCHULZKI or any other person.


 


17.                                 Entire
Agreement. This Agreement and Release sets forth the entire agreement
between the parties hereto, and fully supersedes any and all prior agreements
or understandings between the parties hereto pertaining to the subject matter
hereof.


 


18.                                 Venue.
Any proceeding brought to enforce this agreement shall be brought in San
Diego Co., CA.


 


19.                                 Construction.
If any provision herein shall be deemed void, invalid, unenforceable, or
otherwise stricken, in whole or in part, this Agreement shall be deemed amended
to delete or modify, as necessary, the offending provision or provisions and to
alter the bounds thereof in order to render it valid and enforceable. The
parties hereby agree to substitute a valid provision that will most closely
approximate the economic/legal effect and intent or the invalid provision. The
parties agree to execute any additional documents that may reasonably be
necessary to effectuate the purposes of this agreement.


 


I HAVE READ
AND CAREFULLY CONSIDERED THIS SEVERANCE AGREEMENT AND MUTUAL RELEASE, AND HAVE
HAD A REASONABLE PERIOD OF TIME TO CONSIDER THIS AGREEMENT PRIOR TO SIGNING. CYTORI THERAPEUTICS, INC. HAS INDICATED THAT
I AM FREE TO DISCUSS THIS AGREEMENT WITH MY FAMILY AND HAVE IT REVIEWED BY MY
ATTORNEY PRIOR TO SIGNING IF I SO DESIRE. I AM SIGNING THIS AGREEMENT FREELY
AND VOLUNTARILY.


 


	
  Signed: 

  	
  /s/ Sharon Schulzki

  	
   

  	
  Date: 

  	
  8/5/05

  	
   

  
	
   

  	
  SHARON SCHULZKI

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  CYTORI THERAPEUTICS, INC.

  	
   

  
	
   

  	
   

  
	
  Signed: 

  	
  /s/ Christopher Calhoun

  	
   

  	
  Date: 

  	
  8/10/05

  	
   

  
	
   

  	
  CHRISTOPHER CALHOUN

  	
   

  	
   

  
	
   

  	
  CEO

  	
   

  	
   

  



 


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