Exhibit 10.82
CALYPTE BIOMEDICAL CORPORATION
0000 Xxxxxx Xxx Xxxxxxx
Xxxxxxx, XX 00000
January 9, 2001
Xxxxx Xxxxxxx
PMB # 224
000 Xxxx Xxxx., # 00
Xxxxxxx Xxxxxxx, XX 00000
Re: Consulting Agreement With Calypte
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Dear Xxxx:
Upon your signature at the end of this letter where indicated, this
letter will be the binding agreement (the "AGREEMENT"), effective as of October
19, 2000 (the "EFFECTIVE DATE"), between Calypte Biomedical Corporation
("CALYPTE") and you with respect to your provision of service as a consultant to
Calypte as provided in this letter. The Basic Retained Services described in
Section 1(a) hereof and any Additional Services defined in Section 1(b) hereof
are referred to herein collectively as the "SERVICES".
1. SERVICES.
(a) BASIC RETAINED SERVICES. Subject to the terms and
conditions of this Agreement, you hereby are retained by Calypte as a consultant
to Calypte from the Effective Date until terminated as provided herein, to
provide (i) an aggregate of five (5) days of Services (the "BASIC RETAINED
SERVICES") per calendar month during the term hereof, commencing with the month
of October, 2000 (with a "day of Services" being considered for such purposes as
eight (8) hours, with travel time while on business for Calypte, and while
travelling from your home outside of California to Calypte's principal offices
for purposes of rendering such Basic Retained Services, in each case being
counted as one-half time), and (ii) such additional days of Additional Services,
as provided in and defined in Section 1(b) hereof, as you may agree with Calypte
upon Calypte's reasonable and good faith request to you, in each case with
respect to Calypte's business, and such other matters commensurate with the
position of Chairman of the Board, all as may be requested from time to time
during the term hereof orally or in writing by the Board of Directors (the
"BOARD") of Calypte or by the Chief Executive Officer of Calypte.
(b) ADDITIONAL SERVICES. In addition to the Basic Retained
Services rendered as described in Section 1(a) hereof, you will render such
number of days of Services (the "ADDITIONAL SERVICES") as are so requested in
good faith by Calypte, by its Board or Chief Executive Officer (with a "day of
Services" being considered for such purposes as eight (8) hours, with travel
time while on business for Calypte, and while travelling from your home outside
of California to Calypte's principal offices for purposes of rendering such
Basic Retained Services, in each case being counted as one-half time).
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January 9, 2001
Page 2
(c) CERTAIN CONDITIONS CONCERNING SERVICE AS A DIRECTOR OF
CALYPTE. You hereby agree that you will serve as the Chairman of the Board for
so long as you are duly elected thereto. The number of days you spend rendering
Services to Calypte hereunder will be in addition to time you spend to discharge
your customary duties as a Director of Calypte, including time to prepare for
and attend meetings of the Board and of Board Committees upon which you serve,
during such time as you are serving as a Director of Calypte. Any compensation
you may receive for your services as a Director of Calypte, such as
indemnification, stock, and/or stock options and other benefits from the Company
as are made available from time to time by the Company to other Directors, will
be separate from this Agreement.
(d) SCHEDULING; LOCATION. The days upon which Calypte will
require your Services will be based upon dates and times mutually agreeable
between you and Calypte. Calypte will provide as much advance notice as possible
to you of the dates and times required, and you will make every reasonable
effort to make yourself available during such dates. Calypte will not require
you to render such services at dates, times or places that would reasonably
interfere with other work commitments you may have. You may render the Services
by telephone and/or e-mail, and/or on-site at Calypte's headquarters in the San
Francisco Bay Area, and/or at other locations, as determined in good faith by
Calypte after consultation with you as to mutual convenience and the particular
Services required.
(e) REPORTING. You will report to the Board, but you will
render Services upon the request of the Board and/or of the Chief Executive
Officer of Calypte.
(f) OTHER ACTIVITIES. Calypte acknowledges and agrees that,
while you will devote such time and effort as is necessary to discharge your
duties hereunder, you will not be providing your full-time services to Calypte,
and that you may consult with or become an employee of other entities as you
wish (including but not limited to accepting full time employment), subject to
your obligations as to confidential and proprietary information of Calypte as
set forth in this Agreement.
(g) NONASSIGNABILITY OF YOUR SERVICES. You may not assign or
subcontract your duties or rights under this Agreement without the prior written
consent of Calypte signed by its Chief Executive Officer.
2. COMPENSATION; EXPENSE REIMBURSEMENT; LODGING AND AUTOMOBILE;
STOCK OPTIONS.
(a) RETAINER FOR BASIC RETAINED SERVICES; PAYMENT FOR
ADDITIONAL SERVICES. Calypte will grant you a stock bonus award of 43,636
restricted shares of its common stock (the "STOCK BONUS"). The shares will be
subject to certain restrictions with respect to forfeiture and transferability,
as set forth in the Stock Bonus documentation that Calypte will provide to you
separate from this Agreement. The Company has valued the Stock Bonus award at
sixty thousand dollars ($60,000.00) based upon the closing trading price per
share ($1.375) on December 12, 2000, the date the Compensation Committee of the
Board approved the Stock
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January 9, 2001
Page 3
Bonus. The restricted shares granted to you pursuant to the Stock Bonus will be
issuable as of the date that you execute this Agreement. The restrictions
contained in the Stock Bonus shall lapse with respect to 1/12 of the total
number of shares awarded at the end of each calendar month commencing with
November, 2000 and continuing through, and including, the month in which this
Agreement terminates as provided in Section 7 below. In addition, Calypte will
pay you a consulting fee in cash for any Additional Services you may render,
within thirty (30) days after the close of each calendar month during which you
render such Additional Services, at the rate of one thousand dollars ($1,000.00)
per day of such Additional Services.
(b) EXPENSE REIMBURSEMENT; LODGING AND AUTOMOBILE. Calypte
will reimburse you for all reasonable, ordinary and necessary travel and
entertainment expenses incurred by you in conjunction with your services to
Calypte hereunder. While you are rendering Services in the San Francisco Bay
Area, Calypte will provide lodging for you, or will reimburse you for lodging,
in a business hotel or business traveler long-term stay facility reasonably
convenient to Calypte's offices, and will reimburse you for that portion of your
automobile lease apportioned for your use of your automobile on business of
Calypte. Any such expense, including without limitation lodging or automobile
lease reimbursement will, to the extent not specifically provided in this
Section 2(b), be consistent with Calypte's then-standard reimbursement policy,
and, as applicable, travel policy, and will be made as to a given expense only
if you have submitted commercially customary support documentation to Calypte
therefor.
3. OUR RELATIONSHIP.
(a) INDEPENDENT CONTRACTOR. In performance of your services
under this Agreement, you will be an independent contractor of, and are not an
agent or employee of, and have no authority to bind, Calypte by contract or
otherwise.
(b) EMPLOYMENT TAXES AND BENEFITS. You will report as
self-employment income all compensation you received pursuant to this Agreement,
including the fair market value of the Shares. You will indemnify Calypte and
hold it harmless from and against all claims, damages, losses and expenses,
relating to any obligation imposed by law on Calypte to pay any withholding
taxes, social security (except for employer's share of social security, if any),
unemployment or disability insurance, or similar items in connection with
compensation received by you pursuant to this Agreement. You will not be
entitled to receive any vacation or illness payments, or to participate in any
plans, arrangements, or distributions by Calypte pertaining to any bonus, stock
option, profit sharing, insurance or similar benefits for Calypte's employees,
except as provided herein or as otherwise specifically approved by the Board.
(c) NO REMUNERATION AS TO PRODUCTS. You will receive no
royalty or other remuneration on the production or distribution of any products
developed by the Company or by you in connection with or based upon the
Services.
4. INDEMNIFICATION.
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January 9, 2001
Page 4
(a) BY YOU. To the extent determined by a tribunal of
competent jurisdiction (arbitral or judicial), not subject to further appeal,
you will indemnify Calypte and hold it harmless from and against all claims,
damages, losses and expenses, including court costs and reasonable fees and
expenses of attorneys, expert witnesses, and other professionals, arising out of
or resulting from:
(i) Any action by a third party against Calypte to
the extent based on any claim that any Services performed under this Agreement,
or their results, to your actual knowledge (A) infringe a patent, trademark,
copyright or other proprietary right, and/or (B) violate a trade secret of such
third party; and
(ii) Any action by a third party to the extent based
on any conduct by you in performing Services under this Agreement which results
in any of the following and for which such tribunal determines you to be liable
to Calypte under applicable law: (A) any bodily injury, sickness, disease or
death; (B) any injury or destruction to tangible or intangible property
(including computer programs and data) or any loss of use resulting therefrom;
or (C) any violation of any statute, ordinance, or regulation.
(b) BY CALYPTE. To the extent legally permitted, and not in
derogation of your obligations under Section 4(a) hereof: (i) you will be
considered as subject to the indemnity provisions of Calypte's Certificate of
Incorporation and Bylaws, a copy of which will be furnished to you upon request,
and (ii) Calypte will indemnify you and hold you harmless from and against all
claims, damages, losses and expenses, including court costs and reasonable fees
and expenses of attorneys, expert witnesses, and other professionals, arising
out of or resulting from any action by a third party against Calypte or you, or
both, in connection with or based upon the performance by you of the Services,
or their result.
5. PROPERTY OF CALYPTE.
(a) DEFINITIONS. For the purposes of this Agreement:
(i) "INVENTIONS" means any and all inventions,
ideas, designs, circuits, schematics, formulas, algorithms, trade secrets, works
of authorship, mask works, developments, methods, processes, techniques,
improvements, and related know-how in the field of research, development and
commercialization in which Calypte is engaged, and which are made by you, alone
or in combination with others, which result from or relate to the services you
perform for Calypte hereunder, and whether made on behalf of Calypte under this
Agreement, or with the use of or as a result of access to Confidential
Information, including but not limited to any derivative work which constitutes
an improvement or modification to any tangible form of Confidential Information,
as hereinafter defined, such as any design, drawing, or product that embodies
Confidential Information.
(ii) "DESIGNS AND MATERIALS" means all designs,
discoveries, inventions, products, computer programs, procedures, improvements,
developments, drawings, notes,
Xxxxx Xxxxxxx
January 9, 2001
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documents, information and materials made, conceived or developed by you
alone or with others which result from or relate to the services you perform
for Calypte hereunder.
(iii) "MORAL RIGHTS" means any right to claim
authorship of a work, any right to object to any distortion or other
modification of a work, and any similar right, existing under the law of any
country in the world, or under any treaty.
(b) ASSIGNMENT OF OWNERSHIP. You agree that all the
Inventions, Designs and Materials that (1) are developed using equipment,
supplies, facilities or trade secrets of Calypte, (2) result from work performed
by you for Calypte or (3) relate to Calypte's business or current or anticipated
research and development, will be the sole and exclusive property of Calypte.
You hereby irrevocably transfer and assign any and all of your right, title, and
interest in and to Inventions, Designs and Materials, including but not limited
to all patent rights, copyrights, trademarks and trade secrets, to Calypte. All
Inventions, Designs and Materials will be the sole property of Calypte and
Calypte will have the sole right to determine the treatment of any Inventions,
Designs and Materials, including the right to keep them as trade secrets, to
file and execute patent applications on them, to use and disclose them without
prior patent application, to file registrations for copyright or trademark on
them in its own name, or to follow any other procedure that Calypte deems
appropriate. You acknowledge that copyrightable works prepared by you within the
scope of your service hereunder are "works for hire" under the federal Copyright
Act and that Calypte will be considered the author thereof. If Calypte files an
original United States patent application covering any invention of which you
are a named inventor, you will receive in each case from Calypte an inventor's
fee of One Hundred Dollars $100.00 in cash as full compensation therefor. You
will:
(i) Disclose promptly in writing to Calypte all
Inventions, Designs and Materials; and
(ii) Cooperate with and assist Calypte to apply for,
and to execute any applications and/or assignments reasonably necessary to
obtain, any patent, copyright, trademark or other statutory protection for
Inventions, Designs and Materials in Calypte's name as Calypte deems
appropriate, provided that Calypte will reimburse you for any reasonable costs
incurred by you, and your normal billing rate for reasonable time incurred, in
connection therewith; and
(iii) Otherwise treat all Inventions, Designs and
Materials as "Confidential Information," as defined below. Your obligations to
so disclose, assist, and execute will survive until the earlier of your death or
disability or five years following any expiration or termination of this
Agreement.
(c) MORAL RIGHTS WAIVER. You hereby irrevocably transfer and
assign to Calypte any and all Moral Rights that you may have in any services you
render hereunder, or in any Inventions, Designs and Materials or products of
Calypte. You also hereby forever waive and agree never to assert against
Calypte, its successors or licensees any and all Moral Rights you may have in
any such services, Inventions, Designs and Materials or such products, even
after expiration or termination of this Agreement.
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January 9, 2001
Page 6
(d) COMPANY PROPERTY. All papers, records, data, notes,
drawings, files, documents, samples, devices, products, equipment, and other
materials, including copies and in whatever form, relating to the business of
Calypte that you possess or create as a result of your service to Calypte,
whether or not confidential, are the sole and exclusive property of Calypte.
6. CONFIDENTIAL INFORMATION. You acknowledge that you will
acquire information and materials from Calypte and knowledge about the business,
products, programming techniques, experimental work, customers, clients and
suppliers of Calypte and that all such knowledge, information and materials
acquired, the existence, terms and conditions of this Agreement, and the Designs
and Materials, are and will be the trade secrets and confidential and
proprietary information of Calypte (collectively "CONFIDENTIAL INFORMATION").
Confidential Information will not include, however, any information which is or
becomes part of the public domain through no fault of your own or that Calypte
regularly gives to third parties without restriction on use or disclosure. You
will hold all such Confidential Information in strict confidence, and will not
disclose it to others or use it in any way, commercially or otherwise, except in
performing your services hereunder, and will not allow any unauthorized person
access to it, either before or after expiration or termination of this
Agreement. You will take all action reasonably necessary and satisfactory to
protect the confidentiality of the Confidential Information in your possession,
including, without limitation, implementing and enforcing operating procedures
to minimize the possibility of unauthorized use or copying of the Confidential
Information.
7. TERM OF SERVICE; TERMINATION; EFFECT OF TERMINATION.
(a) TERM OF SERVICE. This Agreement is for a period of
twelve (12) months from and after the Effective Date, subject to earlier
termination as provided in Section 7(b) hereof.
(b) TERMINATION; EFFECT OF TERMINATION.
(i) TERMINATION. This Agreement will terminate
automatically upon the earliest of (A) your death, (B) such date as you
voluntary terminate service, by written notice to Calypte, or (C) the date upon
which Calypte terminates your service hereunder for cause by giving written
notice thereof to you, stating therein that such termination is for cause and
specifying in reasonable detail such cause, or (D) the date upon which your
successor as Chairman of the Board of Calypte has been appointed. For purposes
of this Agreement, "cause" is defined as your willful failure to follow lawful
and commercially reasonable directives of the Board, and/or intentional damage
to the tangible or intangible property of Calypte, and/or conviction of a crime
involving moral turpitude, and/or the performance of any dishonest or fraudulent
act which is or would be, in each case as determined in good faith by the Board,
materially detrimental to the interest of Calypte and its other stockholders.
(ii) EFFECT OF TERMINATION. Upon termination of your
service with Calypte hereunder for any reason, Calypte will pay you all of your
accrued and unpaid expenses, if any, provided, as to a given expense, you have
submitted commercially customary support documentation to Calypte therefor. Your
obligations of confidentiality hereunder will survive
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January 9, 2001
Page 7
any such termination, and termination hereof will not have any effect on any
other binding agreement between Calypte and you except to the extent
specifically so stated in such other agreement or agreements. Your termination
hereunder will not be deemed to be a termination of all your services with
Calypte, for purposes of your Option, if you then are still serving Calypte as a
consultant, including service as a Director.
8. PRIOR CONTRACTS. You represent that except as disclosed in
writing to Calypte, (a) there are no other contracts to assign Inventions,
Designs or Materials that are, as of the Effective Date, in existence between
you and any other person or entity, and (b) as of the Effective Date, you have
no employment, consultancies or undertakings which would restrict or impair your
performance of this Agreement.
9. GENERAL. This Agreement may be executed in counterparts, each
of which will be deemed an original, but both of which together will constitute
one and the same instrument. This Agreement will be governed by the laws of the
State of California without regard to its body of law controlling conflict of
laws. This Agreement is the complete and exclusive agreement between you and
Calypte regarding the specific subject matter of this Agreement, which subject
matter relates solely to your rendering of services to Calypte as a consultant
in the position of Chairman of the Board of Calypte, and not to any other
binding agreement you may have with Calypte nor with respect to your service as
a Director of Calypte, and supersedes in their entirety all prior agreements,
understandings and communications, oral or written, between us regarding such
specific described subject matter. This Agreement will be binding upon and inure
to our respective successors and assigns, and upon your heirs, executors and
administrators, and may only be amended by a writing signed by each of us or our
respective successors, assigns or authorized representatives.
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January 9, 2001
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We look forward to continuing to work with you, Xxxx, as part of our
team for the success of Calypte.
Sincerely,
/s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
President, Chief Executive Officer, and
Chief Financial Officer
ACCEPTED AND AGREED:
/s/ XXXXX XXXXXXX
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XXXXX XXXXXXX
Date: January 11, 2001
