CONSULTING AGREEMENT
AGREEMENT, effective as of the 9th day of February, 2005, between Calypte
Biomedical Corporation, a Delaware Corporation (the "Company"), 0000 Xxxxxxx
Xxxx., Xxxxx 000, Xxxxxxxxxx, XX 00000, and Xxxxx Xxxx, x/x Xxxxxxxxx, 00
Xxxxxxxxx, Xxxxxx XX0X 0XX, XX ("Consultant").
WHEREAS, THE Company desires the Consultant to provide consulting
services to the Company pursuant hereto and Consultant is agreeable to providing
such services.
NOW THEREFORE, in consideration of the premises and the mutual promises
set forth herein, the parties hereto agree as follows:
1. Consultant shall serve as a consultant to provide the Company
strategic consulting and other services including but not limited
to the following areas:
a) Evaluating its cost structure.
b) Reviewing its business operations, finances and
organizational structure.
2. Term: The Company shall be entitled to Consultant's services
for reasonable times when and to the extent requested by, and
subject to the direction of the President and CEO. The initial
term of this Consulting Agreement shall be through July 31, 2005.
3. Reasonable travel and other expenses necessarily incurred by
Consultant to render such services, and approved in advance by the
Company, shall be reimbursed by the Company promptly upon receipt
of proper statements, including appropriate documentation, with
regard to the nature and amount of those expenses. Those
statements shall be furnished to the Company monthly at the end of
each calendar month in the Consulting Period during which any such
expenses are incurred. Company shall pay expenses within fifteen
(15) business days of the receipt of a request with appropriate
documentation.
4. In consideration for the services to be performed by
Consultant, and on approval of this agreement by the Compensation
Committee of the Board of Directors, the Company will immediately
grant Consultant a fully vested option to purchase 850,000 shares
of the common stock of the Company at an exercise price per share
of the closing market price of the common stock on the date of
grant (the Compensation Committee approval date which is the
effective date of the agreement). The option will have a term of
ten (10) years. All compensation pursuant to this Consulting
Agreement is fully earned upon execution of this agreement. The
Company will issue the options from its 2004 Incentive Plan.
5. The consultant will provide to Calypte's President a report of
services rendered and results thereof no less than quarterly and
that report will be issued within 30 days of quarter end. E.g.
April 30, 2005 for the period ended March 31, 2005.
6. It is the express intention of the parties that the Consultant
is an independent contractor and not an employee or agent of the
Company. Nothing in this agreement shall be interpreted or
construed as creating or establishing the relationship of employer
and employee between the Consultant and the Company. Both parties
acknowledge that the Consultant is not an employee for state or
federal tax purposes. The Consultant shall retain the right to
perform services for others during the term of this agreement.
6.1 The consulting services shall not involve and the
Consultant is not engaged in services in connection with the
offer or sale of securities in a capital-raising transaction
for Calypte, and further, the Consultant does not and will not
directly or indirectly promote or maintain a market for
Calypte's securities.
7. Neither this agreement nor any duties or obligations under this
agreement may be assigned by the Consultant without the prior
written consent of the Company.
8. This agreement may be terminated upon ten (10) days written
notice by the Company. Notwithstanding any termination, the
Consultant upon the execution of this agreement, as outlined in
Section 4, shall earn the consideration, in full.
9. Any notices to be given hereunder by either party to the other
may be given either by personal delivery in writing or by mail,
registered or certified, postage prepaid with return receipt
requested. Mailed notices shall be addressed to the parties at the
addressed appearing in the introductory paragraph of this
agreement, but each party may change the address by written notice
in accordance with the paragraph. Notices delivered personally
will be deemed communicated as of actual receipt; mailed notices
will be deemed communicated as of two days after mailing.
10. This agreement supersedes any and all agreements, either oral
or written, between the parties hereto with respect to the
rendering of services by the Consultant for the Company and
contains all the covenants and agreements between the parties with
respect to the rendering of such services in any manner
whatsoever. Each party to this agreement acknowledges that no
representations, inducements, promises, or agreements, orally or
otherwise, have been made by any party, or anyone acting on behalf
of any party, which is not embodied herein, and that no other
agreement, statement, or promise not contained in this agreement
shall be valid or binding. Any modification of this agreement will
be effective only if it is in writing signed by the party to be
charged.
11. This agreement will be governed by and construed in accordance
with the laws of the State of Delaware, without regard to its
conflicts of laws provisions; and the parties agree that the
proper venue for the resolution of any disputes hereunder shall be
Alameda County, California.
12. For purposes of this Agreement, Intellectual Property will
mean (i) works, ideas, discoveries, or inventions eligible for
copyright, trademark, patent or trade secret protection; and (ii)
any applications for trademarks or patents, issued trademarks or
patents, or copyright registrations regarding such items. Any
items of Intellectual Property discovered or developed by the
Consultant (or the Consultant's employees) during the term of this
Agreement will be the property of the Consultant, subject to the
irrevocable right and license of the Company to make, use or sell
products and services derived from or incorporating any such
Intellectual Property without payment of royalties. Such rights
and license will be exclusive during the term of this Agreement,
and any extensions or renewals of it. After termination of this
Agreement, such rights and license will be nonexclusive, but will
remain royalty-free. Notwithstanding the preceding, the textual
and/or graphic content of materials created by the Consultant
under this Agreement (as opposed to the form or format of such
materials) will be, and hereby are, deemed to be "works made for
hire" and will be the exclusive property of the Company. Each
party agrees to execute such documents as may be necessary to
perfect and preserve the rights of either party with respect to
such Intellectual Property.
13. The written, printed, graphic, or electronically recorded
materials furnished by the Company for use by the Consultant are
Proprietary Information and are the property of the Company.
Proprietary Information includes, but is not limited to, product
specifications and/or designs, pricing information, specific
customer requirements, customer and potential customer lists,
information on Company's employees, agent, or divisions and other
information about the business and finances of the Company. The
Consultant shall maintain in confidence and shall not, directly or
indirectly, disclose or use, either during or after the term of
this agreement, any Proprietary Information, confidential
information, or know-how belonging to the Company, whether or not
is in written form, except to the extent necessary to perform
services under this agreement. On termination of the Consultant's
services to the Company, or at the request of the Company before
termination, the Consultant shall deliver to the Company all
material in the Consultant's possession relating to the Company's
business.
14. The obligations regarding Proprietary Information extend to
information belonging to customers and suppliers of the Company
about which the Consultant may have gained knowledge as a result
of performing services hereunder.
15. The Consultant shall not, during the term of this agreement
and for a period of one year immediately after the termination of
this agreement, or any extension of it, either directly or
indirectly (a) for purposes competitive with the products or
services currently offered by the Company, call on, solicit, or
take away any of the Company's customers or potential customers
about whom the Consultant became aware as a result of the
Consultant's services to the Company hereunder, either for the
Consultant or for any other person or entity, or (b) solicit or
take away or attempt to solicit or take away any of the Company's
employees or consultants either for the Consultant or for any
other person or entity.
16. The Company will indemnify and hold harmless Consultant from
any claims or damages related to statements prepared by or made by
Consultant that are either approved in advance by the Company or
entirely based on information provided by the Company.
Consultant: Company:
Xxxxx Xxxx Calypte Biomedical Corporation
/s/ Xxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxxxxxx 2/9/05
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9/02/05 Xxxxxxx Xxxxxxxxxx
Executive Vice President & CFO
