EXHIBIT 10.28


 


CYTORI THERAPEUTICS, INC.


 


CONSULTING SERVICES AGREEMENT


 


THIS CONSULTING SERVICES AGREEMENT (“Agreement”) is entered into
effective as of July 15, 2005 (“Effective Date”) by and between CYTORI
THERAPEUTICS, INC., a Delaware corporation with a principal place of business
at 3020 Callan Road, San Diego, California 92121 (“Company”), and John K.
Fraser, an individual (“Consultant”).


 


1.                                       Services.


 


1.1 Consultant agrees to perform such research and development
consulting (“Services”) as requested by Company, which may be modified from
time to time as directed by Marc H. Hedrick or Christopher J. Calhoun.  Consultant shall devote not less than 30
hours per week in performing the Services. Company and Consultant shall, from
time to time but not less frequently than two times per week, confer about
Services currently being performed and what Services that the Company desires
to have performed within the next 3 to 5 days. During these conferences, which
may take place in person or via teleconference, the Company and Consultant
shall reach an agreement as to the nature, scope, timing and location of such
future Services.


 


1.2 Upon Company’s request, Consultant shall submit progress reports to
Company of the Services to be provided under this Agreement. The progress
reports shall include, at a minimum, the status of the Services,
recommendations, the expected date of completion, estimated cost, explanation
for any delays, problem reports and problem resolution plans.


 


1.3 Company may remove Consultant from any project or other assignment
at any time without penalty or additional payment of any kind.


 


1.4 Consultant shall perform all Services in a careful, professional
and workmanlike manner. Consultant will coordinate Services under the general
direction of Marc H. Hedrick with respect to the results to be achieved by the
Services. However, Consultant shall determine, in his sole discretion, the
manner and means by which such Services shall be performed.


 


1.5 Consultant shall, while working on Company’s premises: (i) observe
Company’s rules and policies relating to the security of, access to or use
of such premises and confidential information; (ii) shall not be permitted
to remove any property of Company or a third party supplier of Company from
Company’s premises without the prior written consent of Company.


 


1.6 Consultant may perform services for any third party so long as this
Agreement is not breached (including but not limited to the provisions
regarding confidentiality and ownership) and Consultant’s ability to perform
the Services required by this Agreement is not impaired; provided, however,
that during the term of the Agreement (including any extensions thereof),
Consultant shall not directly or indirectly provide consulting or any other
type of service to any other company in the fields of adult stem cell or
adipose tissue research and commercialization, including but not limited to
adipose derived stem cells and other adipose tissues for regenerative medical
applications. Consultant acknowledges and agrees that, notwithstanding any
other provision of this Agreement, Company may terminate this Agreement
immediately for any breach by Consultant of this Section in addition to
all other rights and remedies Company may have and this Section shall
survive such a termination.


 


1.7 Consultant shall comply with all applicable laws, regulations,
ordinances and other governmental rules in performing under this
Agreement.


 


2.               Fees, Invoice and Payment, Expenses.


 


2.1 As full consideration for Consultant’s performance of Services and
assignment of rights under this Agreement: Company shall pay Consultant at a
rate of $15,000 (Fifteen Thousand Dollars) per month.


 


2.2 Company reserves the right to require from Consultant waivers,
releases and other documentation relating to amounts due Consultant hereunder
before payment to Consultant.


 


2.3 Company shall pay Consultant in arrears, twice per month for the
Services provided. All payments shall be made in US Dollars.


 


2.4 Company shall not be liable for payment of any expenses or other
charges unless the charges shall have been expressly approved in writing by
Company prior to Consultant’s incurring the charges. Requests for reimbursement
shall be in a form reasonably acceptable to Company and shall include adequate
documentation of expenses for which reimbursement is sought.


 


2.5 Company’s payment to Consultant shall not constitute acceptance of
the corresponding Services and the payment shall be


 





















 


subject to
adjustments and offset for failures of Consultant to meet the requirements in
this Agreement as determined by Company.


 


2.6 Company shall reimburse any pre-approved travel expenses incurred
by Consultant while rendering Services under this Agreement, provided the
expenses are reasonable and necessary. Such expenses shall include reasonable
and necessary travel (including coach class airfare for domestic travel), and
lodging in connection with Services performed under this Agreement. Requests
for reimbursement shall be in a form reasonably acceptable to Company and shall
include adequate documentation of expenses for which reimbursement is sought.
Payment of reimbursable travel expenses will be remitted by Company within
thirty (30) days of receipt of such documentation from Consultant.


 


3.               Ownership of Work Product.


 


3.1 As used in this Agreement, (a) the term “Work Product” means
any and all methods, products, product improvements, product modifications,
processes, diagram(s), data, databases, designs, documentation, specification,
formulas, inventions, innovations, know-how, plans, procedures,
recommendations, reports, techniques, writings of any nature and any other work
developed, written, made, conceived or reduced to practice in the course of or
arising out of the Services performed by or on behalf of Consultant under this
Agreement; and (b) the term “IP Rights” means any and all patents and
patent applications (including any divisions, substitutions, continuations,
continuations-in-part, reissues, reexaminations, or extensions), copyrights,
trade secrets and other intellectual property and proprietary rights.


 


3.2 Both parties acknowledge and agree that all right, title and
interest and ownership of any and all Work Product shall be made available to
and shall reside in the Company. Inventions, and any patent or patent
application, copyrights or other IP Rights shall be owned solely by Company.


 


3.3 During the term of this Agreement, and at any time thereafter,
Consultant shall assist Company, upon request from Company (and, if requested
after termination of this Agreement, with reasonable further compensation to
Consultant) in taking any action that may be reasonably necessary to secure,
perfect, register, maintain and defend Company’s right, title and interest in
the Work Product, including without limitation Company’s IP Rights.


 


4.               Term and Termination.


 


4.1 This Agreement commences on the Effective Date and shall continue
for a period of six months from the Effective Date.


 


4.2 In addition, Company may terminate this Agreement upon thirty (30)
days prior written notice to Consultant for any reason.


 


4.3 Upon any termination of this Agreement, Consultant shall cease
performing any and all Services contemplated hereunder.


 


4.4 Upon any termination of this Agreement for any reason, Consultant
shall, within five (5) days of the termination (or completion), return or
otherwise provide to Company all of the Confidential Information (as defined
below in Section 7. l), and any product, equipment or other materials
provided by Company to Consultant. In addition, Consultant shall provide to
Company or destroy (at Company’s option) any and all documents, memoranda,
notes, and other tangible embodiments, in electronic or non-electronic form,
prepared by or on behalf of Consultant based on or which include Confidential
Information to the extent necessary to remove all such Confidential Information
from Consultant’s possession or control. Upon Company’s request, Consultant
shall certify in writing that Consultant has complied with this Section 4.4.
Consultant shall continue to keep all Company Confidential Information
confidential.


 


4.5 Termination of this Agreement shall be in addition to any and all
other legal rights that Company may have against Consultant, and all remedies
shall be cumulative.


 


4.6 The following Sections shall survive any termination or expiration
of this Agreement: Sections 1.7, 3, 4.4, 4.5, 4.6, 5, 6, 7 -15.


 


5.               Warranties and Limitations of
Liability.


 


5.1 Consultant represents and warrants that (i) the Services will
be completed in a professional and workmanlike manner and shall comply in all
respects with this Agreement; (ii) the Work Product does not and will not
infringe any third party’s IP Rights and are free from any liens, encumbrances
or claims; and (iii) the Services shall be performed solely by Consultant
who is fully authorized to lawfully work in the United States.


 


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6.               Indemnification.


 


6.1 Consultant shall defend, indemnify and hold Company, its affiliates
and their respective directors, officers, employees, and agents harmless from
and against any and all claims, actions, demands, suits, losses, liabilities,
judgments, awards, expenses and costs (including, without limitation,
reasonable attorneys’ fees and expenses) (each a “Claim”) arising out of or
related in any way to: (i) an actual or alleged infringement or violation
by the Services or Work Product of any third party’s IP Right; (ii) any
act or omission by Consultant under this Agreement; (iii) any breach by
Consultant of any of his representations and warranties herein; and (iv) any
actual or alleged violation by Consultant of any law, statute, regulation or
ordinance.


 


7.               Confidentiality and Nondisclosure.


 


7.1 As used in this Agreement, “Confidential Information” means any and
all technical and non-technical information owned by or licensed to Company and
disclosed or provided to Consultant, including without limitation the Work
Product and information related to Company’s past, current, future and proposed
products and services, and information concerning Company’s adult stem cell or
adipose tissue research and commercialization, including but not limited to
adipose derived stem cells and other adipose tissues for regenerative medical
applications, research, purchasing, manufacturing, customer lists, business
forecasts, sales and merchandising, and marketing plans and information. In
addition, Confidential Information shall mean any third party’s proprietary or
confidential information disclosed to Consultant in the course of performance
of any and all Services under this Agreement.


 


7.2 Company retains sole and exclusive ownership, right, title and
interest in and to all of the Confidential Information. Consultant shall
protect any Confidential Information disclosed under this Agreement by using
the same degree of care as Consultant uses to protect his own trade secrets of
a similar nature, but in any event no less than a reasonable standard of care.


 


7.3 Consultant will not, at any time during the term of this Agreement
or thereafter, disclose any


 


Confidential
Information to any third party or, except as provided under this Agreement, use
any Confidential Information for its or their own benefit or for the benefit of
any third party. Consultant shall promptly notify Company of any unauthorized
use or disclosure of the Confidential Information.


 


7.4 Consultant acknowledges that (i) the restrictions and
obligations contained in this Section 7 are reasonable and necessary to
protect Company’s legitimate interests; (ii) in the event of a violation
of these restrictions or a breach of these obligations, remedies at law shall
be inadequate and violation or breach may cause irreparable damages to Company
within a short period of time; and (iii) Company shall be entitled to
injunctive relief, without posting bond or other security, against Consultant
for each and every violation or breach, provided the enjoined party is given
lawful notice of the proceeding and an opportunity to appear.


 


8.               Independent Contractors.


 


8.1 Consultant is an independent contractor. Nothing contained in this
Agreement shall be deemed or construed to create a joint venture, partnership,
principal-agent or employment relationship between the parties.


 


8.2 Unless otherwise expressly provided in this Agreement, each party shall
be responsible for its own costs and expenses in performing under this
Agreement.


 


8.3 Consultant shall bear and be solely responsible for (i) paying
all travel, housing, and other expenses which Consultant may be entitled to
receive in connection with performing under this Agreement except as otherwise
expressly provided herein; and (ii) withholding, reporting and paying, as
applicable, all federal, state and local income tax withholding, social
security taxes, workers compensation, state unemployment, health or disability
insurance, retirement benefits, or other similar benefits or taxes or levies,
if any.


 


9.                                       Assignment.
Consultant agrees and acknowledges that all of his services are personal in
nature.  Consultant shall not, in whole
or in part, assign his rights or delegate any duties under this Agreement
without Company’s prior written consent, which may be withheld in Company’s
sole discretion. Without limiting the generality of the foregoing, Consultant
specifically agrees that he will not enter into any subcontract to furnish all
or any portion of the Services without prior written approval fiom Company. Any
attempted assignment or delegated duty without the required consent shall be
void. Company may assign this Agreement. This Agreement shall be binding upon
and inure to the benefit of the parties, their successors and permitted
assigns.


 


10.                                 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.


 


11.                                 Use
of Name. Consultant agrees not to use Company’s name or logo in any
advertising or as a reference for any promotional purposes without Company’s
prior written consent.


 


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12.                                 Complete
Agreement. This Agreement, including its Exhibits, supersede all prior and contemporaneous
agreements and understandings between the parties, both oral and written, with
respect to its subject matter and constitutes the complete agreement and
understanding between the parties, unless modified in writing and signed by
both parties.


 


13.                                 Severability.
If a court of competent jurisdiction holds any provision of this Agreement, or
its application, invalid or unenforceable, that provision shall be amended to
achieve as nearly as possible the same economic effect as the original
provision, and the remainder of this Agreement shall remain in full force and
effect.


 


14.                                 Notices.
Any notice required or permitted to be given by either party under this
Agreement shall be in writing and shall be deemed effective when hand-delivered
or sent by registered mail, return receipt requested or by confirmed facsimile
transmission to the signatory of each party to this Agreement as specified in
the first paragraph of this Agreement or other address as either party may
specify to the other party in the future in conformity with this Section.


 


15.         Miscellaneous.


 


15.1 Any and all rights and remedies of a party upon the other party’s
breach of or default under this Agreement (whether expressly conferred by this
Agreement or otherwise) shall be deemed cumulative with and not exclusive of
any other right or remedy conferred by this Agreement or by law or equity on
the party, and the exercise of any one remedy shall not preclude the exercise
of any other. No delay or failure by either party to act in the event of a
breach or default hereunder shall be construed as a waiver of that or any
succeeding breach or a waiver of the provision itself. The captions and
headings appearing in this Agreement are for reference only and shall not be
considered in construing this Agreement.


 


15.2 This Agreement may be executed in any number of counterparts, each
of which shall be an original as against any party whose signature appears and
all of which together shall constitute one and the same instrument.


 


15.3 In the event of litigation between the parties concerning this
Agreement, the prevailing party shall be entitled to its reasonable attorneys’
fees and costs.


 


IN WITNESS
WHEREOF, the parties have executed this Agreement as of the Effective Date.


 


 


	
  CONSULTANT:

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  Cytori
  Therapeutics, Inc.

  
	
   

  	
   

  
	
  /s/ John K.
  Fraser

  	
   

  	
  By: 

  	
  /s/
  Christopher J. Calhoun

  	
   

  
	
  John K.
  Fraser, Ph.D

  	
   

  
	
   

  	
  Name:
  Christopher J. Calhoun

  
	
   

  	
   

  
	
   

  	
  Title: CEO

  
					



 


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