Exhibit 10.28
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
AMENDMENT #5 TO CONSULTING AND TECHNOLOGY AGREEMENT
XXXXXXX XXXXXXXX XXXXX
And
CAMBRIDGE HEART, INC.
The Consulting and Technology Agreement ("Agreement") originally dated February
8, 1993 and amended May 26, 1998, June 1, 2000, January 1, 2002 and January 1,
2003 is amended effective May 7, 2003.
1) The term of the CONSULTING PERIOD is extended to May 31, 2015.
Effective January 1, 2004 XXXXX'x obligation in terms of consulting
time is reduced to 18 days per year.
2) The royalties on NET SALES due XXXXX under Paragraph 6.1 of the
Agreement are hereby adjusted as follows:
i) In calendar year 2003, the royalty for each fiscal quarter
shall be one percent (1%) on all NET SALES up to the amount of
NET SALES achieved in the corresponding quarter in the
previous year, and one and one-half percent (1.5%) on all NET
SALES in excess of the amount of NET SALES achieved in the
corresponding quarter in the previous year. If NET SALES for
calendar year 2003 shall be greater than or equal to $[**] but
less than $[**] then the company shall pay XXXXX by February
28, 2004 an additional amount to bring the total royalty paid
on NET SALES for calendar year 2003 up to one and four tenths
percent (1.4%) of NET SALES for calendar year 2003. If the NET
SALES for calendar year 2003 shall be greater than or equal to
$[**] then the company shall pay XXXXX by February 28, 2004 an
additional amount to bring the total royalty paid on NET SALES
for calendar year 2003 up to one and five tenths percent
(1.5%) of NET SALES for calendar year 2003.
ii) In calendar year 2004, the royalty for each fiscal quarter
shall be one percent (1%) on all NET SALES up to the amount of
NET SALES achieved in the corresponding quarter in the
previous year, and one and one-half percent (1.5%) on all NET
SALES in excess of the amount of NET SALES achieved in the
corresponding quarter in the previous year. If the NET SALES
for calendar year 2004 shall be greater than or equal to $[**]
but less than $[**] then the company shall pay XXXXX by
February 28, 2005 an additional amount to bring the total
royalty paid on NET SALES for calendar year 2004 up to one and
four tenths percent (1.4%) of NET SALES for
calendar year 2004. If the NET SALES for calendar year 2004
shall be greater than or equal to $[**] then the company shall
pay XXXXX by February 28, 2005 an additional amount to bring
the total royalty paid on NET SALES for calendar year 2004 up
to one and five tenths percent (1.5%) of NET SALES for
calendar year 2004.
iii) Effective January 1, 2005 and continuing through May 31, 2015
the royalty on NET SALES shall be increased to one and five
tenths percent (1.5%) of NET SALES.
3) XXXXX is hereby granted options to purchase 300,000 shares of common
stock of Cambridge Heart, Inc at a price of $0.34 per share. These
options shall remain in force for ten years from the effective date of
this agreement, shall vest immediately, and not be contingent on XXXXX
having an ongoing consulting or employment relationship with the
company. This grant however shall be contingent on the company's
stockholders approving by June 30, 2003 all motions or resolutions
necessary to allow this grant.
4) The monthly retainer for consulting services is reduced to zero
effective July 1, 2003. However, if the company's shareholders shall
fail to approve by June 30, 2003 all motions or resolutions necessary
to allow both the restricted stock grant issued under Amendment #4 to
this Agreement and the stock options issued under this Amendment #5,
the monthly retainer for consulting services shall revert to $15,000
per month effective July 1, 2003.
5) Further extension of the term of the CONSULTING PERIOD shall be
contingent upon written agreement of the parties.
6) Section 2.4 (including subsections (a), (b), and (c)) of the Agreement
- which relates to the option of the Company to hire XXXXX, should he
leave his current MIT employment, on a full time basis at a multiple of
his annual consulting fee - is hereby annulled.
Terms not otherwise defined herein shall have the meanings assigned to them in
the Agreement.
All of the other terms of the Agreement are hereby ratified and confirmed.
XXXXXXX X. XXXXX CAMBRIDGE HEART, INC
By: /s/ XXXXXXX X. XXXXX By: /s/ XXXXX XXXXXXXXXXX
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