|
Exhibit 10.3
CONSULTING
AGREEMENT
Arbios
Systems, Inc.
1050
Winter Street, Suite 1000
Waltham,
Massachusetts 02451
David
Zeffren
211
S. Alta Vista Blvd.
Los
Angeles, CA 90036
Dear
David
:
This
letter is to confirm our understanding with respect to
(i) your rendering services as a consultant to the
Company, (ii) your continuing agreement not to compete with
the company in its direct area of business, (iii) your
continuing agreement to protect and preserve information and
property which is confidential and proprietary to the Company
or other parties with whom the Company does business, and (iv)
your agreement to release the Company from potential claims
associated with your past employment (the terms and conditions
agreed to in this letter shall hereinafter be referred to as
the “Agreement”). Hereinafter, reference to
“you” or to “we” includes in each case
you and all other associates or subcontractors, if any, which
you may employ on behalf of the Company, whom you shall ensure
are bound by the terms of this Agreement. In consideration of
the mutual promises and covenants contained in this Agreement,
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, we have
agreed as follows:
1.
Services of Consultant .
You agree to render services to the Company as an independent
contractor to, and not as an employee of, the Company. Your
principal service will be to advise and support the Company
regarding its FDA and similar regulatory and clinical affairs
interactions, and to perform related services in the
Company’s business, each as directed by the Company’s
Chief Executive Office (CEO) and each occasionally and from time to
time. You shall devote your best efforts in the performance of the
foregoing services. You acknowledge and agree that you will be an
independent contractor for all purposes including, but not limited
to, payroll and tax purposes, and that you shall not represent
yourself to be an employee or officer of the Company unless so
designated by a written agreement signed by the
Company.
2.
Term of Consulting Arrangement .
Your services as a consultant to the Company will begin immediately
upon your termination of your regular employment with the Company
on September 1, 2007. You agree that the Company has the right
terminate your consulting arrangement hereunder at any time, with
or without cause, which right shall be exercisable by written
notice sent to you by the Company and shall be effective
immediately as of the date of such notice or a later date as the
Company may specify. Similarly, you have the right to terminate
your services to the Company at any time, which right shall be
exercisable by written notice sent to the Company by you and shall
be effective immediately as of the date of such notice or a later
date as you may specify. In the event such notice is given, you
shall use best efforts to reduce cost to the Company as a result of
such termination. The Company’s obligation will be to
reimburse you for cost incurred as of final date of termination,
including any uncancellable legal obligations to third parties
relating to and permitted under this Agreement, such as purchase
orders, which were entered into prior to effective termination
notice.
3.
Compensation for Services .
The Company shall pay you as your exclusive compensation for your
services and agreements hereunder at a rate of $10,400 per month
commencing October 1, 2007, for work which you perform on behalf of
the Company and which has been agreed in advance by the CEO of the
Company. For the month of September 2007 you will receive a
prorated amount in the amount of $8,216. You shall also be
reimbursed for reasonable and customary expenses (costs) incurred
by you on behalf of the Company. Such expenses include, but are not
limited to, costs incurred for transportation, travel, lodging,
meals, delivery, communications, literature search and retrieval.
To receive payment of such expenses, you shall provide the Company
with an invoice each month in which work is performed, which
reflects professional services, the nature of such services, and
qualifying expenses rendered through the end of the prior month.
The Company agrees that all invoiced fees and expenses payable
under this contract will be paid to you within thirty (30) days of
receipt of said invoice. Any services to be provided by your
associates or subcontractors shall be agreed in advance with the
Company, including compensation to be paid by the
Company.
In
addition, you may also be eligible for certain cash bonuses
upon completion of key milestones by certain dates (e.g.
successful platform testing of the Gen II cartridge, Filing of
the Pivotal IDE, First patient treated in the pivotal trial).
Such payments would not be made until either the closing of
the next round of funding or consummation of a strategic
partnership that would result in corporate
funding.
4.
General Release and Waiver of Claims .
In consideration of the payments and other agreements set forth in
this Agreement, you for yourself, and for your heirs, executors,
estates, agents, representatives, attorneys, insurers, successors
and assigns (collectively, the “Releasors”), hereby
voluntarily release and forever discharge the Company and its
subsidiaries (direct and indirect), affiliates, related companies,
divisions, and predecessor and successor companies, and each of its
and their present, former and future shareholders, officers,
directors, employees, agents, representatives, attorneys, insurers
and assigns (collectively, the “Releasees”) from all
actions, causes of action, suits, debts, sums of money, accounts,
covenants, contracts, agreements, promises, damages, judgments,
demands and claims which the Releasors ever had, or now have, or
hereafter can, shall or may have, for, upon or by reason of any
matter or cause whatsoever arising from the beginning of the world
to the date of the execution of this Release, whether known or
unknown, in law or equity, whether statutory or common law, whether
federal, state, local or otherwise, including but not limited to
claims arising out of or in any way related to your engagement by
the Company (including your hiring), or the termination of that
engagement, or any related matters (including but not limited
claims, if any, arising under the Age Discrimination in Employment
Act of 1967, as amended by the Older Workers Benefit Protection
Act, the Civil Rights Act of 1866, Title VII of the Civil Rights
Act of 1964, as amended, the Civil Rights Act of 1991, as amended,
the Americans with Disabilities Act of 1990, as amended, the Family
and Medical Leave Act of 1993, the Immigration Reform and Control
Act of 1986, the Employee Retirement Income Security Act of 1974,
and federal or state statutes governing payment of wages, federal
or state common law, or any other applicable federal, state or
local law, statute, regulation or ordinance. Notwithstanding the
foregoing, nothing contained in this paragraph shall be construed
to bar any claim by you to enforce the terms of this Agreement or
any claim of final biweekly compensation under your employment
agreement with the Company.
5.
Continuing Obligations .
Your obligations under this Agreement other than the provisions of
Section 1 shall not be affected by any termination of your
consulting arrangement, including termination upon the
Company’s initiative. Further, your obligations of the
Employee Invention Assignment and Confidentiality Agreement which
you have previously executed with the Company at the outset of your
previous employment shall continue in effect as if you have
remained an employee of the Company during the term of this
Agreement.
6.
Prohibited Competition .
(a)
We have discussed, and you recognize and acknowledge the
competitive and proprietary nature of the Company’s
business operations. You further acknowledge and agree that a
business will be deemed competitive with the Company if it
conducts planning or operations or otherwise engages in the
Company’s Field of Interest. You further acknowledge and
agree that, during the course of your consultancy as well as
having previously performed services for the Company as an
employee, the Company has already and will furnish, disclose
or make available to you confidential and proprietary
information related to the Company’s business. You also
acknowledge that such confidential information has been
developed and will be developed by the Company through the
expenditure by the Company of substantial time, effort and
money and that all such confidential information could be used
by you to compete with the Company.
(b)
You acknowledge and agree that, although the Company has
retained your consulting services on a non-exclusive basis,
you currently are not a party to, and during the term of this
Agreement, and for one year following termination of this
Agreement, you will not without first advising the Company in
writing a) enter into any agreement, arrangement,
understanding or other relationship pursuant to which you are
obligated to render advice and/or services to a commercial
entity in the Company’s “Field of Interest,”
either as principal, agent, stockholder, employee, consultant,
representative, or in any other capacity or b) own, manage,
operate or control, or be concerned, connected or employed by,
or otherwise associate in any manner with, engage in or have a
financial interest in any such entity, except that nothing
contained herein shall preclude you from purchasing or owning
securities of any such business if such securities are
publicly traded, and provided that your holdings do not exceed
three (3%) percent of the issued and outstanding securities of
any class of securities of such business. The term
“Field of Interest” with respect to the Company
currently means the development or commercialization of
medical devices or cell therapies for the treatment of liver
disease, viral hepatitis or septic shock. The Company may
modify the definition of its Field of Interest by written
notice to you based on the activities in which the Company is
then engaged or in which the Company then proposes to be
engaged.
(c)
Further, neither individually nor on behalf of or through any
third party, shall you directly or indirectly, solicit, entice
or persuade or attempt to solicit, entice or persuade any
other employees of or consultants to the Company or any
present or future parent, subsidiary or affiliate of the
Company to leave the services of the Company or any such
parent, subsidiary or affiliate for any reason.
(d)
You further recognize and acknowledge that the types of
employment which are prohibited by this Section 5 are narrow
and reasonable in relation to the skills which represent your
principal salable asset both to the Company and to your other
prospective employers, and (ii) the specific scope of the
provisions of this Section 5 is reasonable, legitimate and
fair to you in light of the Company’s need to protect
its proprietary information and to make the Company’s
business profitable and in light of the limited restrictions
on the type of employment prohibited herein compared to the
types of employment for which you are qualified to earn your
livelihood.
(e)
Your acknowledgements and agreements set forth in this Section
5 shall survive the expiration or termination of this
Agreement and the termination of your employment with the
Company for any reason.
7.
Protected Information .
You shall at all times, both during and after any termination of
the consulting arrangement by either the Company or you, maintain
in confidence and shall not, without the prior written consent of
the Company, use, except in the course of performance of your
duties for the Company and specifically not for the benefit of
others outside the Company, disclose or give to oth
|
