Change In Control Agreement With Cfo

AGREEMENT FOR ACCELERATION AND/OR SEVERANCE



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 Mark E. Saad ("Executive"), setting forth the following terms and conditions.



1. Stock Option Acceleration.




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.



2. Severance Contingency; Definitions.




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.



3. Other Termination.




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 ...