Exhibit 10.47
EMPLOYMENT AGREEMENT
AGREEMENT made and entered into of October 28, 1998 (the "Effective
Date"), between Calypte Biomedical Corporation, a California corporation
with its principal office at 0000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx, 00000
(the "Company") and Xxxx X. XxXxxxxx whose residence is 0000 Xxxxxxx Xxx,
Xxx Xxxx, XX 00000 (the "Executive").
WITNESSETH
WHEREAS, Executive and the Company entered into an Employment Agreement
dated December 17, 1997, and;
WHEREAS, Executive and the Company desire to modify certain terms and
conditions of the Executive's employment with the Company;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and undertakings herein set forth, the parties hereto covenant and
agree as follows:
SECTION 1. TERM. This Agreement shall become effective as of October
28, 1998 (the "Effective Date") and remain in effect until December 31,
1999. The Agreement shall be automatically renewed for successive one year
terms unless either party gives notice of intention not to renew at lease
three (3) months prior to the end of each calendar year.
SECTION 2. COMPENSATION. The Company will pay Executive for his
services a base salary at an initial annual rate of One Hundred Seventy
Thousand Dollars ($170,000) (the "Base Compensation") payable in accordance
with normal Company practice, but in any event not less often than monthly,
subject only to such payroll and withholding deductions as are required by
law The Executive's salary shall be adjusted in accordance with normal merit
increases consistent with Company's policy with regard to senior management.
Xx. XxXxxxxx is also eligible for a 25% bonus under the Company's bonus plan.
SECTION 3. OFFICE AND DUTIES. Executive shall have the duties of Chief
Operating Officer and Chief Financial Officer and Vice President. Executive
shall report to the Chief Executive Officer and shall have the responsibility
for overseeing the day-to-day operational and financial activities and of the
Company. Executive covenants and agrees that during the term of this
agreement he will devote all of his working time, attention, and efforts to
the performance of his duties hereunder and will not engage in
any other employment, business activities, or serve on any boards of
directors without the prior approval of the CEO.
SECTION 4. EXPENSES. Executive shall be entitled to reimbursement for
business expenses incurred by him in connection with the performance of his
duties hereunder upon receipt of vouchers therefore in accordance with such
procedures as the Company has heretofore or may hereafter establish.
Executive shall also be entitled to reimbursement for the cost of a corporate
apartment. Reimbursement for such apartment shall be increased sufficiently
to reimburse Executive for the taxes owed relating to the apartment expense.
SECTION 5. ADDITIONAL BENEFITS. Executive shall be entitled to four
weeks vacation each year. To the extent he is otherwise eligible, Executive
and his qualified dependents shall be entitled to participate in all group
insurance programs, retirement plans, profit sharing plans or other fringe
benefit plans which the Company in its sole and absolute discretion make
available generally to its employees. In addition, Executive shall receive a
monthly car allowance of $350.
SECTION 6. EQUITY OWNERSHIP. Executive shall be granted an additional
300,000 stock options exercisable at $1.00 per share. Such shares shall vest
ratably during the two year period beinning as of the Effective Date, except
as provided for in Section 7. Any unvested stock options shall become fully
vested in the event of the sale of the Company in which voting control of the
Company is transferred to the purchasing entity.
SECTION 7. TERMINATION OF EMPLOYMENT. Notwithstanding any other
provision of this Agreement, Executive's employment may be terminated under
the following conditions:
(a) DEATH. Executive's employment shall terminate immediately in the
event of Executive's death during the term of his employment, in which event
this Agreement shall terminate without further obligation to Executive's
legal representative under this Agreement other than those obligations
accrued hereunder as of the date of his death. Vesting of any and all
unvested stock options shall cease as of the date the Executive's death.
(b) DISABILITY. The Company may terminate this Agreement after having
established the Executive's Disability, by giving the Executive written
notice of its intention to terminate his employment. For purposes of this
Agreement, the term "Disability" shall mean an injury or illness which
prevents the Executive from substantially performing the duties and
responsibilities for a period of 120 days. Vesting of any and all unvested
stock options shall cease as of the date the Executive is terminated for
Disability.
(c) INVOLUNTARY TERMINATION. The Company may terminate the Executive's
employment at any time during the term of this Agreement. In the event that
the employment of the Executive is terminated by the Company, or if the
Company is acquired the Company shall continue
to pay Executive his Base Compensation for a period of 12 months and all
stock options that would have vested during the initial term of this
agreement shall become fully vested. In addition, the Executive shall receive
health, dental and life insurance coverage for three months following the
termination date, any accrued salary, expense reimbursement, accrued vacation
and any other such compensation, if any, which is applicable and is generally
required to be paid to a terminating Executive.
(d) VOLUNTARY TERMINATION. The Executive may voluntarily terminate his
employment at any time beginning July 1, 1999, in which event he shall
receive severance pay equal to six months of his then current salary. Vesting
of any and all unvested stock options shall cease as of the date the
Executive voluntarily terminates his employment.
(e) FOR CAUSE. The Company may terminate the Executive for Cause. If
terminated for Cause, the Company shall pay Executive his Base Compensation
through the date of termination. In addition, the vesting of stock options
shall cease as of the date of termination and the Company shall have no
further obligations to the Executive. The term "Cause" shall mean 1) acts
of dishonesty or misconduct, 2) repeated violations of Company policies, or
3) failure to perform his duties following a written warning from the
Company's CEO or Board of Directors, or 4) breach of any term of this
Agreement.
SECTION 8. AMENDMENTS. This Agreement may not be amended nor shall any
waiver, change, modification, consent to discharge be effected except by an
instrument in writing executed by or on behalf of the party against whom
enforcement of any waiver, change, modification, consent or discharge is
sought.
SECTION 9. APPROVAL BY COMPENSATION COMMITTEE. This Agreement is
effective upon the approval of the Compensation Committee of the Company's
Board of Directors.
SECTION 10. GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with laws of the State of California.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by its duly authorized officer, as of the day and
year first above written.
EXECUTIVE CALYPTE BIOMEDICAL
By: /s/ Xxxx X. XxXxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Xxxx X. XxXxxxxx Xxxxxxx X. Xxxxxx
