Unassociated Document


    Exhibit
      10.1

    


    FORM
      OF
      CONSULTING AGREEMENT

    


    Arbios
      Systems, Inc.

    1050
      Winter Street, Suite 1000

    Waltham,
      Massachusetts 02451

    


    


    


    [__________],
      2006

    


    [NAME]

    [TITLE]

    [ADDRESS]

    


    Dear
      [NAME]:

    


    I
      am
      pleased that you are willing to continue your relationship with Arbios Systems,
      Inc. (the “Company”) in the role of consultant. As authorized by the Board of
      Directors of the Company, this letter is to confirm our understanding with
      respect to (i) your rendering services as a consultant to the Company, (ii)
      your agreement not to compete with the Company in its direct area of business,
      and (iii) your 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 (the terms and conditions agreed to in this letter
      shall hereinafter be referred to as the “Agreement”). Hereinafter, reference to
“you” includes your company, [_______________], of which you are an employee,
      and all other employees or subcontractors 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
      [_______________], and to perform related services in the Company’s business,
      each occasionally and from time to time as directed by Walter Ogier or his
      designate. 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 shall commence upon the day following
      the 2006 Annual Meeting of the Company, scheduled for July 31, 2006, and shall
      terminate on July 31, 2007, unless mutually agreed to be extended by you and
      the
      Company. However, 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. As you are aware, the Board of Directors of the Company
      has
      resolved that management and the Board shall review your services in December
      with the possible consequence that the Company, in its sole discretion, shall
      determine that insufficient services have been provided to continue the
      consulting relationship. 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 evidenced by invoice, as of final date of termination, including
      any uncancellable legal obligations to third parties relating to 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 a fee of $[_____] per month (the “Retainer”). At the sole
      discretion of the Company, the Company may determine to pay you, in lieu of
      the
      Retainer, a fee of $[_____] per day, or a pro-rata amount for any substantial
      portion of a day, for work which you perform on behalf of the Company and which
      has been agreed in advance by the Chief Executive Officer of the Company. 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, and exceptional
      telecommunications costs which may be incurred in the performance of a
      particular (e.g. overseas) project. To receive payment, you shall provide the
      Company with an invoice each month in which work is performed, which reflects
      professional services and 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 other employees of [________________] or
      subcontractors shall be agreed in advance with the Company, including
      compensation to be paid by the Company.

    


    4.
      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.

    


    5.
      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 (as defined herein). You further acknowledge and agree that, during
      the
      course of your performing services for the Company as a consultant and earlier
      as a member of the Board of Directors and as a consultant, 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.

    


    
      
         

      

      
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    (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 (i) 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 (ii) 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 percent (3%) 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 (i) 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
      prospective employers and/or business partners, 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.

    


    6.
      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 others any fact or
      information which was disclosed to or discerned or developed by you during
      the
      course of performing services for, or receiving training from, the Company,
      and
      is not generally available to the public including but not limited to
      information and facts concerning business plans, customers, future customers,
      suppliers, licensors, licensees, partners, investors, affiliates or others,
      training methods and materials, financial information, sales prospects, client
      lists, inventions (as defined in paragraph 7), or any other scientific,
      technical, trade or business secret or confidential or proprietary information
      of the Company or of any third party provided to you in the course of your
      consultancy to the Company. You also agree not to file patents, copyrights
      or
      trademark applications based on the Company’s technology, property or
      confidential information, nor seek to make improvements thereon, without the
      Company’s approval. You agree not to make any copies of such confidential or
      proprietary information of the Company (except when appropriate for the
      furtherance of the business of the Company or duly and specifically authorized
      to do so) and promptly upon request, whether during or after the period of
      the
      consulting arrangement, to return to the Company any and all documentary,
      machine-readable or other elements or evidence of such confidential or
      proprietary information, and any copies that may be in your possession or under
      your control. In the event you are questioned by anyone not employed by the
      Company or by an employee of or a consultant to the Company not authorized
      to
      receive such information, in regard to any such information or any other secret
      or confidential work of the Company, or concerning any fact or circumstance
      relating thereto, you will promptly notify the President of the
      Company.

    


    
      
         

      

      
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    7.
      Ownership
      of Ideas, Copyrights and Patents.

    


    (a)
      Property
      of the Company.
      You
      agree that all ideas, discoveries, creations, manuscripts and properties,
      innovations, improvements, know-how, inventions, designs, developments,
      apparatus, techniques, methods, biological processes, cell lines, laboratory
      notebooks, and formulae (all of the foregoing being hereinafter referred to
      as
“the inventions”) which may be used in the business of the Company, whether or
      not reduced to practice and whether patentable, copyrightable or not, which
      you
      may conceive, reduce to practice or develop during the term of this Agreement,
      alone or in conjunction with another, or others, and whether at the request
      or
      upon the suggestion of the Company, or otherwise, shall be the sole and
      exclusive property of the Company if made or improved during any time during
      which you are providing services to the Company or with the assistance of
      financial or other support from the Company, and that you shall not publish
      any
      of the inventions without the prior written consent of the Company. You hereby
      assign to the Company all of your right, title and interest in and to all of
      the
      foregoing. You agree to maintain and furnish to the Company complete and current
      records of all such inventions and disclose to the Company in writing any such
      inventions.

    


    (b)
      Right
      of First Refusal of the Company.
      In the
      event that you, alone or with others, develop or improve any inventions in
      the
      Field of Interest at times during which you are not providing services to the
      Company and without the financial or other support of the Company, you agree
      to
      provide the Company with a right of first refusal to purchase or license any
      and
      all such inventions.

    


    (c)
      Cooperation.
      At any
      time during or after the term of this Agreement, you agree that you will fully
      cooperate with the Company, its attorneys and agents, in the preparation and
      filing of all papers and other documents as may be required to perfect the
      Company’s rights in and to any of such inventions, including, but not limited
      to, joining in any proceeding to obtain letters patent, copyrights, trademarks
      or other legal rights of the United States and of any and all other countries
      on
      such inventions, provided that the Company will bear the expense of such
      proceedings, and that any patent or other legal right so issued to you,
      personally, shall be assigned by you to the Company without charge by you.
      You
      hereby designate the Company as your agent, and grant to the Company a power
      of
      attorney with full power of substitution (which power of attorney shall be
      deemed coupled with an interest), for the purpose of effecting the foregoing
      assignments from you to the Company.

    


    
      
         

      

      
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    8.
      Records.
      Upon
      termination of your relationship with the Company, you shall deliver to the
      Company any property of the Company which may be in your possession including
      products, materials, memoranda, notes, laboratory notebooks, records, reports,
      or other documents or photocopies of the same.

    


    9.
      No
      Conflicting Agreements.
      You
      hereby represent and warrant that you have no commitments or obligations
      inconsistent with this Agreement. You hereby agree to indemnify and hold the
      Company harmless against any loss, damage, liability or expense arising from
      any
      claim based upon circumstances alleged to be inconsistent with such
      representation and warranty. During the term of this Agreement, you will not
      enter into any agreement, either written or oral, which may be in conflict
      with
      this Agreement, and you will arrange to provide your services under this
      Agreement in such a manner and at such times that your services will not
      conflict with your responsibilities under any other agreement, arrangement
      or
      understanding or pursuant to any employment relationship that you may have
      at
      any time with any third party. 

     

    10.
      No
      Employment Relationship Created.
      This
      Agreement does not constitute, and shall not be construed as constituting,
      an
      undertaking by the Company to hire you as an employee of the Company. You
      acknowledge that you will be working as a consultant only, and not as an
      employee. You will not be entitled to receive any of the benefits provided
      by
      the Company to its employees and you will be solely responsible for the payment
      of all federal, state and local taxes and contributions imposed or required
      on
      income, unemployment insurance, social security and any other law or
      regulation.

    


    11.
      Release.
      You
      hereby waive your right to assert any form of legal claim or any other form
      of
      action against the Company (including its affiliates and related entities,
      and
      its and their respective officers, directors, employees, agents,
      representatives, successors and assigns) of any kind whatsoever relating in
      any
      way to your relationship with the Company from the beginning of time through
      the
      date you sign this Agreement.

    


    12.
      General.

    


    (a)
      Notices.
      All
      notices, requests, consents and other communications hereunder shall be in
      writing, shall be addressed to the receiving party’s address set forth below or
      to such other address as a party may designate by notice hereunder, and shall
      be
      either (i) delivered by hand, (ii) made by telex, telecopy or
      facsimile transmission, (iii) sent by overnight courier, or (iv) sent
      by registered mail, return receipt requested, postage prepaid

    


    
      
         

      

      
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    If
      to
      Arbios Systems, Inc.: 

    


    Walter
      C.
      Ogier

    President
      and Chief Executive Officer

    Arbios
      Systems, Inc.

    1050
      Winter Street, Suite 1000

    Waltham,
      Massachusetts 02451

    FAX
      1-781-839-7294

    


    If
      to
      you, [NAME]: 

    


    [NAME]

    [TITLE]

    [ADDRESS]

    FAX
      [FAX
      NUMBER]

    


    All
      notices, requests, consents and other communications hereunder shall be deemed
      to have been given either (i) if by hand, at the time of the delivery
      thereof to the receiving party at the address of such party set forth above,
      (ii) if made by telex, telecopy or facsimile transmission, at the time that
      receipt thereof has been acknowledged by electronic confirmation or otherwise,
      (iii) if sent by overnight courier, on the next business day following the
      day such notice is delivered to the courier service, or (iv) if sent by
      registered mail, on the fifth business day following the day such mailing is
      made.

    


    (b)
      Entire
      Agreement.
      This
      Agreement embodies the entire agreement and understanding between the parties
      hereto with respect to the subject matter hereof and supersedes all prior oral
      or written agreements and understandings relating to the subject matter hereof.
      No statement, representation, warranty, covenant or agreement of any kind not
      expressly set forth in this Agreement shall affect, or be used to interpret,
      change or restrict, the express terms and provisions of this
      Agreement.

    


    (c)
      Modifications
      and Amendments.
      The
      terms and provisions of this Agreement may be modified or amended only by
      written agreement executed by the parties hereto.

    


    (d)
      Waivers
      and Consents.
      The
      terms and provisions of this Agreement may be waived, or consent for the
      departure therefrom granted, only by written document executed by the party
      entitled to the benefits of such terms or provisions. No such waiver or consent
      shall be deemed to be or shall constitute a waiver or consent with respect
      to
      any other terms or provisions of this Agreement, whether or not similar. Each
      such waiver or consent shall be effective only in the specific instance and
      for
      the purpose for which it was given, and shall not constitute a continuing waiver
      or consent.

    


    (e)
      Assignment.
      The
      Company may assign its rights and obligations hereunder to any person or entity.
      Your rights and obligations under this Agreement may not be assigned by you
      without the prior written consent of the Company.

    


    
      
         

      

      
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    (f)
      Benefit.
      All
      statements, representations, warranties, covenants and agreements in this
      Agreement shall be binding on the parties hereto and, in your case, upon your
      heirs, executors and administrators; and shall inure to the benefit of the
      respective successors and permitted assigns of each party hereto. Nothing in
      this Agreement shall be construed to create any rights or obligations except
      among the parties hereto, and no person or entity shall be regarded as a
      third-party beneficiary of this Agreement.

    


    (g)
      Governing
      Law.
      This
      Agreement and the rights and obligations of the parties hereunder shall be
      construed in accordance with and governed by the law of The Commonwealth of Massachusetts,
      without giving effect to the conflict of law principles thereof.

    


    (h)
      Arbitration.
      Except
      with respect to the provisions of Sections 5, 6 and 7 hereof, any controversy,
      dispute or claim arising out of or in connection with this Agreement, or the
      breach, termination or validity hereof, shall be settled by final and binding
      arbitration to be conducted by an arbitration tribunal in Boston, Massachusetts,
      pursuant to the rules of the American Arbitration Association. The arbitration
      tribunal shall consist of three arbitrators. The party initiating arbitration
      shall nominate one arbitrator in the request for arbitration and the other
      party
      shall nominate a second in the answer thereto within thirty (30) days of receipt
      of the request. The two arbitrators so named will then jointly appoint the
      third
      arbitrator. If the answering party fails to nominate its arbitrator within
      the
      thirty (30) day period, or if the arbitrators named by the parties fail to
      agree
      on the third arbitrator within sixty (60) days, the office of the American
      Arbitration Association in Boston, Massachusetts shall make the necessary
      appointments of such arbitrator(s). The decision or award of the arbitration
      tribunal (by a majority determination, or if there is no majority, then by
      the
      determination of the third arbitrator, if any) shall be final, and judgment
      upon
      such decision or award may be entered in any competent court or application
      may
      be made to any competent court for judicial acceptance of such decision or
      award
      and an order of enforcement. In the event of any procedural matter not covered
      by the aforesaid rules, the procedural law of the Commonwealth of Massachusetts
      shall govern.

    


    (i)
      Jurisdiction
      and Service of Process.
      Except
      as governed by the above paragraph (h), any legal action or proceeding with
      respect to this Agreement shall be brought in the courts of The Commonwealth
      of
      Massachusetts or of the United States of America for the First District of
      Massachusetts. By execution and delivery of this Agreement, each of the parties
      hereto accepts for itself and in respect of its property, generally and
      unconditionally, the jurisdiction of the aforesaid courts. Each of the parties
      hereto irrevocably consents to the service of process of any of the
      aforementioned courts in any such action or proceeding by the mailing of copies
      thereof by certified mail, postage prepaid, to the party at its address set
      forth in Section 12(a) hereof.

    


    (j)
      Severability.
      The
      parties intend this Agreement to be enforced as written. However, (i) if any
      portion or provision of this Agreement shall to any extent be declared illegal
      or unenforceable by a duly authorized court having jurisdiction, then the
      application of such portion or provision in circumstances other than those
      as to
      which it is so declared illegal or unenforceable, shall not be affected thereby
      (provided that should any portion of Section 5, 6 or 7 be declared illegal
      or
      unenforceable, the Company shall have the right in its sole discretion to
      terminate this Agreement); and (ii) if any provision, or part thereof, is held
      to be unenforceable because of the duration of such provision or the geographic
      area covered thereby, the Company and you agree that the court making such
      determination shall have the power to reduce the duration and/or geographic
      area
      of such provision, and/or to delete specific words and phrases
      (“blue-pencilling”), and in its reduced or blue-pencilled form such provision
      shall then be enforceable and shall be enforced.

    


    
      
         

      

      
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    (k)
      Headings
      and Captions.
      The
      headings and captions of the various subdivisions of this Agreement are for
      convenience of reference only and shall in no way modify, or affect the meaning
      or construction of any of the terms or provisions hereof.

    


    (l)
      Injunctive
      Relief.
      You
      hereby expressly acknowledge that any breach or threatened breach of any of
      the
      terms and/or conditions set forth in Section 5, 6 or 7 of this Agreement will
      result in substantial, continuing and irreparable injury to the Company.
      Therefore, you hereby agree that, in addition to any other remedy that may
      be
      available to the Company, the Company shall be entitled to injunctive or other
      equitable relief by a court of appropriate jurisdiction in the event of any
      breach or threatened breach of the terms of Section 5, 6 or 7 of this Agreement
      and Section 12(h) of this Agreement shall not apply. 

    


    (m)
      No
      Waiver of Rights, Powers and Remedies.
      No
      failure or delay by a party hereto in exercising any right, power or remedy
      under this Agreement, and no course of dealing between the parties hereto,
      shall
      operate as a waiver of any such right, power or remedy of the party. No single
      or partial exercise of any right, power or remedy under this Agreement by a
      party hereto, nor any abandonment or discontinuance of steps to enforce any
      such
      right, power or remedy, shall preclude such party from any other or further
      exercise thereof or the exercise of any other right, power or remedy hereunder.
      The election of any remedy by a party hereto shall not constitute a waiver
      of
      the right of such party to pursue other available remedies. No notice to or
      demand on a party not expressly required under this Agreement shall entitle
      the
      party receiving such notice or demand to any other or further notice or demand
      in similar or other circumstances or constitute a waiver of the rights of the
      party giving such notice or demand to any other or further action in any
      circumstances without such notice or demand.

    


    (n)
      Expenses.
      Should
      any party breach this Agreement, in addition to all other remedies available
      at
      law or in equity, such party shall pay all of any other party’s costs and
      expenses resulting therefrom and/or incurred in enforcing this Agreement,
      including legal fees and expenses.

    


    (o)
      Counterparts.
      This
      Agreement may be executed in one or more counterparts, and by different parties
      hereto on separate counterparts, each of which shall be deemed an original,
      but
      all of which together shall constitute one and the same instrument.

    


    


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    If
      the
      foregoing accurately sets forth our agreement, please so indicate by signing
      and
      returning to us the enclosed copy of this letter.

    


    
      	 	 	Very truly yours, 
	 	 	 
	 	 	Arbios Systems, Inc.
	 	 	 
	 	 	 
	 	 	By: ________________________________
	 	 	
              Walter
                C. Ogier

            
	 	 	
              President
                and Chief Executive Officer

            
	 	 	 
	 	 	 
	Accepted and Approved:	 	 
	 	 	 
	 	 	 
	________________________________	 	 
	[NAME]	 	 
	 	 	 
	Dated: _______________________	 	 
	 	 	 
	 	 	 


    

     

     

    
      
         

      

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