Exhibit 10.130
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 12th day of August, 2003 by and between
CALYPTE BIOMEDICAL CORPORATION, having a place of business at 0000 Xxxxxx Xxx
Xxxxxxx, Xxxxxxx, XX 00000 (hereinafter referred to as "EMPLOYER") and XXX
XXXXXXX, residing at 000 Xxxxxxxx, Xxx Xxxxxxx, XX 00000 (hereinafter referred
to as "EMPLOYEE").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the EMPLOYER is engaged in the business of developing and
marketing urine-based diagnostic products and services for Human
Immunodeficiency Virus (HIV-1); and
WHEREAS, the EMPLOYER is desirous of employing EMPLOYEE, and EMPLOYEE
wishes to be employed by EMPLOYER in accordance with the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND
PROMISES AND OTHER GOOD AND VALUABLE CONSIDERATION, THE
RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, IT IS MUTUALLY AGREED
AS FOLLOWS:
1. EMPLOYMENT DUTIES AND TERM: EMPLOYER and EMPLOYEE agree to enter
into an Employment Agreement, and the within Employment Agreement is effective
as of June 1, 2003. The EMPLOYER does hereby employ, engage and hire the
EMPLOYEE as Chief Operating Officer of EMPLOYER for a period of five (5) years
commencing June 1, 2003 and terminating May 30, 2008. The duties of EMPLOYEE
shall include, but not be limited to, acting as President and Chief Operating
Officer of EMPLOYER. EMPLOYEE will perform services on behalf of EMPLOYER with
respect to the management and general supervision of the business of EMPLOYER.
2. GOOD FAITH PERFORMANCE OF DUTIES: The EMPLOYEE agrees that he will,
at all times, faithfully, industriously, and to the best of his ability,
experience and talent, perform all of the duties that may be required of and
from him, pursuant to the expressed and implicit term hereof.
3. COMPENSATION: EMPLOYER shall pay to the EMPLOYEE, and the
EMPLOYEE agrees to accept from the EMPLOYER, in full payment for the EMPLOYEE's
services hereunder, compensation at the rate of $350,000. $100,000 of the
$350,000 will be deferred until the Company, as determined by the Executive
Chairman, is in a position to pay the full salary. EMPLOYEE will be paid every 2
weeks during the term of the within Agreement.
In addition, EMPLOYER agrees to issue additional
compensation to EMPLOYEE in the form of shares or rights to shares or options to
purchase shares of common stock of the EMPLOYER as follows: the shares or rights
to shares or option grant will be mutually agreed upon between the Compensation
Committee of EMPLOYER's Board of Directors and EMPLOYEE, based on the expected
capital structure of the Company as determined no later than August 31, 2003.
1
Further, EMPLOYEE will be entitled to receive an incentive
bonus from time to time as granted to executive management by the Compensation
Committee of the Board of Directors.
In addition, EMPLOYER agrees to reimburse EMPLOYEE for all
expenses reasonably incurred by EMPLOYEE in the performance of his duties during
the term of his employment. EMPLOYEE agrees to provide adequate written
documentation as may be required with respect to said expenses.
4. MOVING ALLOWANCE: EMPLOYER agrees to pay EMPLOYEE moving
expenses not to exceed the sum of $5,000 upon submission of verified bills for
said expenses.
5. HOUSING ALLOWANCE: EMPLOYER agrees to provide a housing
allowance to EMPLOYEE from June 1, 2003 at the rate of $1,250 per month until
such time as the Company begins payment of a salary of at least $350,000.
6. VACATION: Paid vacation (taken consecutively or in
segments) in accordance with the EMPLOYER's policies generally applicable to
other executives of the Company from time to time, taken at such times as is
reasonably consistent with proper performance by Employee of Employee's duties
and responsibilities hereunder.
7. TERMINATION WITHOUT CAUSE OR CHANGE IN CONTROL: In the
event that the Employment Agreement is terminated by EMPLOYER without cause, or
EMPLOYER sells an amount of its outstanding and issued common stock to any
entity or third party which results in a change of control of EMPLOYER, then in
such event, all stock options granted to EMPLOYEE per Paragraph "3" of this
Agreement will be immediately vested in EMPLOYEE, and all payments due to
EMPLOYEE for the full term of the Agreement will be due to EMPLOYEE. Definitions
of such events follow those in the current contract of the Executive Chairman.
8. DEDICATION OF TIME: EMPLOYEE shall devote all of his
working time, attention, knowledge and skill solely and exclusively to the
business and interest of the EMPLOYER. The EMPLOYEE expressly agrees that he
will not, during the term hereof or for one (1) year from the termination of
this Agreement, be involved directly or indirectly, in any form, fashion or
manner, as a partner, officer, director, stockholder (owning in excess of 4.9%),
advisor, consultant or employee in any other business similar to or in any way
competing with the business of the EMPLOYER. Nothing herein contained shall,
however, limit the rights of the EMPLOYEE to own up to 5% of the capital stock
or other securities of any corporation, whose stock or securities are publicly
owned or traded regularly on a public exchange or in the over-the-counter
market, or to prevent the EMPLOYEE from investing financially in, or limiting
the EMPLOYEE's rights to invest financially in, other businesses not allied with
or competing with the business of the EMPLOYER, as long as EMPLOYEE continues to
devote all of his working time, attention, knowledge and skill, solely and
exclusively to the business and interest of the EMPLOYER. EMPLOYEE will be
permitted to serve on the Board of Directors of publicly owned companies.
2
9. CONFIDENTIALITY: During the terms of EMPLOYEE's employment under
this Agreement, and for one (1) year thereafter, the EMPLOYEE specifically
agrees that he will not, at any time, in any fashion, form or manner, either
directly or indirectly, use, divulge, disclose or communicate to any person,
firm or corporation, in any manner whatsoever, any confidential or proprietary
information of any kind, nature or description concerning any matters affecting
or relating to the business of the EMPLOYER including, without limiting the
generality of the foregoing, any of its customers, its manner of operations, its
plans, its ideas, processes, programs, its intellectual property or other data,
information or materials of any kind, nature or description, without regard to
whether any or all of the foregoing matters shall be deemed confidential,
material or important. The parties hereto stipulate that, as between them, the
same are important, material, confidential and gravely affect the effective and
successful conduct of the business of the EMPLOYER and its goodwill, and that
any breach of the terms of this Paragraph is a material breach thereof, except
where the EMPLOYEE shall be acting on behalf of the EMPLOYER. EMPLOYEE
understands and agrees that, in the event that EMPLOYEE violates the terms and
conditions, as stated in this Paragraph, that he will be subject to an
injunction and damages, and understands and agrees that EMPLOYER's remedy to
prevent further or continued damages will include a petition for injunctive
relief. EMPLOYEE expressly acknowledges that the restrictions contained in this
Paragraph are reasonable and are properly required for the adequate protection
of the EMPLOYER's interests.
EMPLOYEE further understands and agrees that EMPLOYER, in
entering into this Agreement, is relying upon EMPLOYEE's representation and
warranty that all trade secrets and other proprietary information of EMPLOYER
will be kept strictly confidential by EMPLOYEE and not utilized by EMPLOYEE in
any manner whatsoever other than on EMPLOYER's behalf during the course of
EMPLOYEE's employment with EMPLOYER.
10. NON-COMPETITION: EMPLOYEE agrees that, during the term
of this Agreement and for one (1) year after termination hereof, he shall not,
for himself or any third party, directly or indirectly, divert or attempt to
divert from the EMPLOYER or its subsidiaries or affiliates any business of any
kind in which it is engaged or employed, solicit for employment, or recommend
for employment any person employed by the EMPLOYER or by any of its subsidiaries
or affiliates, during the period of such person's employment and for a period of
one (1) year thereafter. EMPLOYEE expressly acknowledges that the restrictions
contained in this paragraph are reasonable and are properly required for the
adequate protection of the EMPLOYER's interests.
11. EARLY TERMINATION: It is expressly understood and agreed
that the terms of this Agreement, may be terminated by the EMPLOYER prior to
June 1, 2008, upon the occurrence of any of the following events:
(a) Automatically and without notice upon the death of the
EMPLOYEE; it is also understood that EMPLOYEE will be entitled to three (3)
months' salary which will be payable to his estate;
(b) Persistent absenteeism on the part of the EMPLOYEE,
which in the reasonable judgment of the Board of Directors of the Company is
having or will have a material adverse effect on the performance of the
EMPLOYEE's duties under this Agreement;
(c) Deliberate and willful failure to perform normal
services and duties required of EMPLOYEE pursuant to this Agreement, except if
the performance of such duties or services would result in a violation of
EMPLOYEE's fiduciary responsibility to the Company and its shareholders or is in
a violation of applicable laws;
3
(d) Any willful act or failure to act, which in the
reasonable opinion of the Board, is in bad faith and to the material detriment
of the EMPLOYER;
(e) Conviction of a felony involving moral turpitude or
dishonesty;
(f) Total or partial disability of the EMPLOYEE for a period
of three (3) consecutive months or ninety (90) days, in the aggregate, so that
he is prevented from satisfactorily performing a substantial part of his duties;
it being further understood and agreed that any proceeds received by EMPLOYEE
from a policy of disability benefits insurance or any other proceeds received
from any Federal, State or Municipal agency of government will be credited to
the amount of compensation paid to EMPLOYEE by EMPLOYER; and
(g) Fraudulent misconduct of the EMPLOYEE.
The Agreement shall not be terminated by
any:
(a) Merger or consolidation, where the
Company is not the consolidating or surviving; or
(b) Transfer of all or a substantial
majority of the assets of the Company;
(c) Acquisition or control of fifty
percent (50%) or more of the Company's issued and voting equity share capital by
any party, or by parties acting in concert or under common control.
In the event of any merger or consolidation or transfer of
all, or a substantial majority, of the assets of the Company or acquisition or
control of fifty percent (50%) (or an amount of stock ownership that has the
ability to elect the Board of Directors of EMPLOYER) or more of the Company's
issued and voting equity share capital by any party or by parties acting in
concert or under common control, the surviving or resulting entity or the
transferee or transferees of the Company's assets or its issued and voting
equity share capital, shall be bound by, and shall have the benefit of, the
provision of this Agreement, and the Company shall endeavor to take all actions
necessary to ensure that such entity or transferee or transferees shall be bound
by the provisions of the Agreement. Moreover, in the event of such merger or
consolidation, or transfer of all or a substantial majority of the assets of the
Company or acquisition of the Company of the Company's issued and voting equity
share capital as aforesaid, the EMPLOYEE may, at his option, at any time,
continue his employment under the terms of this Agreement, or upon giving not
less than thirty (30) days notice at any time, by registered mail, to the
registered office of the Company, requiring the Company to effect full
settlement of all the EMPLOYEE's entitlements under the terms of this Agreement,
which settlement shall also include the payment of EMPLOYEE's remuneration for
the full term of the Agreement.
12. BENEFITS: EMPLOYER agrees that EMPLOYEE will be
entitled, during the term, to all fringe benefits in effect for executive
officers of the EMPLOYER, such as Blue Cross/ Blue Shield and Major Medical
4
13. NO WAIVER: The parties hereto do further agree that no
waiver or modification of this Agreement or of any covenant, condition or
limitation herein contained, shall be valid, unless in writing and duly executed
by the party to be charged therewith, and that no evidence of any proceedings or
litigation between either of the parties arising out of or affecting this
Agreement or the rights and obligations of any party hereunder shall be valid
and binding unless such waiver or modification is in writing, duly executed, and
the parties further agree that the provisions of this paragraph may not be
waived except as herein set forth.
14. GOVERNING LAW: The parties hereto agree that it is their
intention and covenant that this Agreement and the performance hereunder shall
be construed in accordance with and under the laws of the State of California,
and that the terms hereof may be enforced in any court of competent jurisdiction
in an action for specific performance which may be instituted under this
Agreement, and that in the event of any dispute or claim under the within
Agreement, that same will be resolved in the Courts of the State of California.
00.XXXXXXX INDEMNIFICATION: EMPLOYER indemnifies and holds
harmless EMPLOYEE from any claims of any type against EMPLOYER that arise prior
to the date of the commencement of this Agreement.
16. OPPORTUNITY TO REVIEW: EMPLOYEE and EMPLOYER warrant and
represent that each has had sufficient and adequate opportunity to consult with
independent counsel concerning the within Agreement, and has requested that the
firm of Xxxxxxx & Xxxxxxxxx prepare the within Agreement, and is aware that said
firm is relying upon the within representation prior to the parties entering
into the Agreement herein.
17 NOTICES: All notices required or permitted to be given by
either party hereunder shall be in writing and mailed by registered mail, return
receipt requested and by regular mail to the other party addressed as follows:
If to EMPLOYER at:
CALYPTE BIOMEDICAL CORPORATION
0000 Xxxxxx Xxx Xxxxxxx
Xxxxxxx, XX 00000
If to EMPLOYEE at:
XXX XXXXXXX
000 Xxxxxxxx
Xxx Xxxxxxx, XX 00000
Any notice mailed, as provided above, shall be deemed completed on the date of
receipt, or five (5) days from the postmark on said postal receipt.
18. CAPTION HEADINGS: Caption headings in this Agreement are
provided merely for convenience and are of no force and effect.
19. ENTIRE AGREEMENT: This Agreement contains the total and
entire Agreement between the parties and shall, as of the effective date hereof,
supersede any and all other Agreements between the parties. The parties
acknowledge and agree that neither of them has made any representations that are
not specifically set forth herein, and each of the parties hereto acknowledges
that he or it has relied upon his or its own judgment in entering into same, and
that the within Agreement has been approved by the EMPLOYERS compensation
committee and its board of directors.
5
IN WITNESS WHEREOF, the parties have hereunto set their
hands and seals the day, month and year first above written.
CALYPTE BIOMEDICAL CORPORATION
By: /s/ XXXXXXX X. XXXXXXX
--------------------------------------
Xxxxxxx X. Xxxxxxx, Executive Chairman
/s/ XXX XXXXXXX
--------------------------------------
EMPLOYEE
Calypte\Employment Agt - Oyakawa
6
