Exhibit 4.1 Advisory and Consulting Agreements
NUMBER OF SHARES AND WARRANTS
4.1(a) 14,000,000
4.1(b) 17,500,000
4.1(c) 2,000,000
4.1(d) 7,500,000
4.1(e) 2,500,000
4.1(f) 750,000
4.1(g) 10,000,000
4.1(h) 7,500,000
4.1(i) 1,000,000
Other 250,000
-------------
Total 63,000,000
------------
9
Exhibit 4.1(a)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 15th day of May, 2003, between Calypte Biomedical
Corporation, a Delaware Corporation (the "Company"), of 0000 Xxxxxx Xxxxxxx,
Xxxxxxx, XX 00000, and Xxxxxxx Xxxxxxxx, 00000 Xxxxxxx Xxxxx, Xxxxxx, XX 00000
("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 assist the Company in the following
areas:
(a) Facility evaluation and site searches involving analysis of
present space and expansion needs as part of a five-year
plan.
(b) Introductions to possible grant sources.
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 Xx. Xxxxxxx. The term of this
Consulting Agreement began as of the date of this Agreement, and
shall terminate on August 15, 2003.
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. The Company shall cause the Agreement to be registered with
Securities Exchange Commission under an available form as soon as
practical. In consideration for the services to be performed by
Consultant, the Company will immediately grant Consultant a
warrant to purchase 14,000,000 shares of the registered common
stock of the Company at $0.01 per share, or an aggregate purchase
price of $140,000. The warrant is immediately exercisable upon
grant and will expire on August 15, 2003. All compensation
pursuant to this Consulting Agreement is fully earned upon
execution of this agreement.
10
5. The consultant will provide to Xxxxxxx's Executive Chairman a
report of services rendered and results thereof no less than
quarterly and that report will be issued within 30 days of quarter
end. If requested by the chairman, this will be a written report.
E.g. July 31, 2003 for the period ended June 30, 2003 and then
within 30 days of the conclusion of the agreement.
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.
11
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 are 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 California, 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
12
specifications and/or designs, pricing information, specific
customer requirements, customer and potential customer lists, and
information on Company's employees, agent, or divisions. 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:
Xxxxxxx Xxxxxxxx Xxxxxxx Biomedical Corporation
/S/ Xxxxxxx Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------- ----------------------
Xxxxxxx X. Xxxxxxxxxx
Executive Vice President & CFO
13
Exhibit 4.1(b)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 15th day of May, 2003, between Calypte Biomedical
Corporation, a Delaware Corporation (the "Company"), of 0000 Xxxxxx Xxxxxxx,
Xxxxxxx, XX 00000, and Xxxxx Xxxxxxxx, 00000 Xxxxxxxxxx Xxxx, Xxxxxx, XX
00000("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 assist the Company in
business development related to government-operated clinics.
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 Xx. Xxxxxxx. The term of this
Consulting Agreement began as of the date of this Agreement, and
shall terminate on September 30, 2003.
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. The Company shall cause the Agreement to be registered with
Securities Exchange Commission under an available form as soon as
practical. In consideration for the services to be performed by
Consultant, the Company will immediately grant Consultant a
warrant to purchase 14,000,000 shares of the registered common
stock of the Company at $0.01 per share, or an aggregate purchase
price of $140,000. The warrant is immediately exercisable upon
grant and will expire on August 15, 2003. Additionally, the
Company will immediately grant Consultant 3,500,000 shares of the
Company's Common Stock. All compensation pursuant to this
Consulting Agreement is fully earned upon execution of this
agreement.
14
5. The consultant will provide to Xxxxxxx's Executive Chairman a
report of services rendered and results thereof no less than
quarterly and that report will be issued within 30 days of quarter
end. If requested by the chairman, this will be a written report.
E.g. July 31, 2003 for the period ended June 30, 2003 and then
within 30 days of the conclusion of the agreement.
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
15
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 are 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 California, 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, and
information on Company's employees, agent, or divisions. The
Consultant shall maintain in confidence and shall not, directly or
16
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: Calypte Biomedical Corporation
/s/ Xxxxx Xxxxxxxx By:/s/ Xxxxxxx X. Xxxxxxxxxx
------------------ -------------------------
Xxxxx Xxxxxxxx Xxxxxxx Xxxxxxxxxx
Executive Vice President & CFO
17
Exhibit 4.1(c)
Amendment No. 3 to Consulting Agreement
Between Calypte Biomedical Corporation
and Xxxxxx Xxxxx
This Agreement amends and modifies the Amended Consulting Agreement between
Calypte Biomedical Corporation ("Calypte" or the "Company") and Xxxxxx Xxxxx
("Consultant") dated February 14, 2003 and is effective as of May 15, 2003.
Whereas, the Company desires to extend the time period during which Consultant
will provide services to the Company pursuant to the above referenced Consulting
Agreement and Consultant is agreeable to extending the time for providing such
services.
Now therefore, in consideration of the premises and mutual promises set forth
herein, the parties hereto agree as follows:
1. The term of Consultant's Consulting Agreement shall be extended and, by
virtue of this Amendment, shall terminate on September 30, 2003 rather
than August 20, 2003.
2. In consideration for the extension of the services to be performed by
Consultant, the Company will immediately grant Consultant 2,000,000
shares of the common stock. All compensation pursuant to the Consulting
Agreement and this Amendment is fully earned upon execution of this
amendment.
3. All other terms and conditions of the Amended Consultant Agreement
dated February 14, 2003 remain unchanged.
Consultant: Calypte Biomedical Corporation
/S/ Xxxxxx Xxxxx By: /S/ Xxxxxxx X. Xxxxxxxxxx
---------------- -------------------------
Xxxxxx Xxxxx Xxxxxxx Xxxxxxxxxx
EVP & CFO
18
Exhibit 4.1(d)
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement"), dated May 19, 2003,
is made by and between First Securities USA, Inc., a California corporation
("Consultant"), whose address is 0000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxx 00000, and Calypte Biomedical Corporation ("Client"), having its
principal place of business at 0000 Xxxxxx Xxx Xxxxxxx, Xxxxxxx, XX 00000
(collectively, the "Parties").
WHEREAS, Client is a publicly held corporation with its common stock
trading on the Over the Counter Bulletin Board under the ticker symbol "CALY,"
and desires to further develop its business and customers;
WHEREAS, Consultant has extensive background in the area of business
consulting and management advisory services; and
WHEREAS, Client desires to engage Consultant to provide information,
evaluation and consulting services to Client in Consultant's area of knowledge
and expertise on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration for those services Consultant provides
to Client, the Parties agree as follows:
1. SERVICES OF CONSULTANT.
Consultant agrees to perform for Client all necessary services required
in providing general business consulting and management advisory services for
Client as more specifically set forth in Exhibit A attached hereto. The services
to be provided by Consultant will not be in connection with the offer or sale of
securities in a capital-raising transaction, and will not directly or indirectly
promote or maintain a market for Client's securities. Individuals employed by
Consultant under the primary supervision of Xxxxxx Xxxxxxx will provide the
services.
2. CONSIDERATION.
Client agrees to pay Consultant, as its fee and as consideration for
services provided, a warrant to purchase a total of 7,500,000 shares of free
trading common stock in Client, exercisable as follows:
? 7,500,000 shares exercisable at $ 0.01 per share
--------- ----
The shares underlying this warrant have been registered on a Form S-8
Registration Statement filed with and declared effective by the U.S. Securities
and Exchange Commission. The warrant and the underlying shares, upon issuance,
shall be issued in the names of individual principals of the Consultant as set
forth on Exhibit B attached hereto.
19
3. CONFIDENTIALITY.
Each Party agrees that during the course of this Agreement, information
that is confidential or of a proprietary nature may be disclosed to the other
party, including, but not limited to, product and business plans, software,
technical processes and formulas, source codes, product designs, sales, costs
and other unpublished financial information, advertising revenues, usage rates,
advertising relationships, projections, and marketing data ("Confidential
Information"). Confidential Information shall not include information that the
receiving party can demonstrate (a) is, as of the time of its disclosure, or
thereafter becomes part of the public domain through a source other than the
receiving party, (b) was known to the receiving party as of the time of its
disclosure, (c) is independently developed by the receiving party, or (d) is
subsequently learned from a third party not under a confidentiality obligation
to the providing party.
4. LATE PAYMENT.
Client shall pay to Consultant all fees within 15 days of the due date.
Failure of Client to finally pay any fees within 15 days after the applicable
due date shall be deemed a material breach of this Agreement, justifying
suspension of the performance of the "Services" provided by Consultant, will be
sufficient cause for immediate termination of this Agreement by Consultant. Any
such suspension will in no way relieve Client from payment of fees, and, in the
event of collection enforcement, Client shall be liable for any costs associated
with such collection, including, but not limited to, legal costs, attorneys'
fees, courts costs, and collection agency fees.
5. INDEMNIFICATION.
(a) CLIENT.
Client agrees to indemnify, defend, and hold harmless Consultant, its
directors, officers, employees, attorneys, and agents, and to defend any action
brought against said parties with respect to any and all claims, demands, causes
of action, debts or liabilities, including reasonable attorneys' fees, arising
out of work performed under this Agreement, including breach of Client of this
Agreement.
(b) CONSULTANT.
Consultant agrees to indemnify, defend, and shall hold harmless Client, its
directors, officers, employees, attorneys, and agents, and defend any action
brought against same with respect to any claim, demand, cause of action, debt or
liability, including reasonable attorneys' fees, to the extent that such an
action arises out of the gross negligence or willful misconduct of Consultant.
20
(c) NOTICE.
In claiming any indemnification hereunder, the indemnified party shall
promptly provide the indemnifying party with written notice of any claim, which
the indemnified party believes falls within the scope of the foregoing
paragraphs. The indemnified party may, at its expense, assist in the defense if
it so chooses, provided that the indemnifying party shall control such defense,
and all negotiations relative to the settlement of any such claim. Any
settlement intended to bind the indemnified party shall not be final without the
indemnified party's written consent, which shall not be unreasonably withheld.
6. LIMITATION OF LIABILITY.
Consultant shall have no liability with respect to Consultant's
obligations under this Agreement or otherwise for consequential, exemplary,
special, incidental, or punitive damages even if Consultant has been advised of
the possibility of such damages. In any event, the liability of Consultant to
Client for any reason and upon any cause of action, regardless of the form in
which the legal or equitable action may be brought, including, without
limitation, any action in tort or contract, shall not exceed 10% of the fee paid
by Client to Consultant for the specific service provided that is in question.
7. TERMINATION AND RENEWAL.
(a) TERM.
This Agreement shall become effective on the date appearing next to the
signatures below and terminate one year thereafter. Unless otherwise agreed upon
in writing by Consultant and Client, this Agreement shall not automatically be
renewed beyond its Term.
(b) TERMINATION.
Either Party may terminate this Agreement on 30 calendar days' written
notice, or if prior to such action, the other party materially breaches any of
its representations, warranties or obligations under this Agreement. Except as
may be otherwise provided in this Agreement, such breach by either party will
result in the other party being responsible to reimburse the non-defaulting
party for all costs incurred directly as a result of the breach of this
Agreement, and shall be subject to such damages as may be allowed by law
including all attorneys' fees and costs of enforcing this Agreement.
(c) TERMINATION AND PAYMENT.
Upon any termination or expiration of this Agreement, Client shall pay
all unpaid and outstanding fees through the effective date of termination or
expiration of this Agreement. And upon such termination, Consultant shall
provide and deliver to Client any and all outstanding services due through the
effective date of this Agreement.
21
8. MISCELLANEOUS.
(a) INDEPENDENT CONTRACTOR.
This Agreement establishes an "independent contractor" relationship
between Consultant and Client.
(b). RIGHTS CUMULATIVE; WAIVERS.
The rights of each of the Parties under this Agreement are cumulative.
The rights of each of the Parties hereunder shall not be capable of being waived
or varied other than by an express waiver or variation in writing. Any failure
to exercise or any delay in exercising any of such rights shall not operate as a
waiver or variation of that or any other such right. Any defective or partial
exercise of any of such rights shall not preclude any other or further exercise
of that or any other such right. No act or course of conduct or negotiation on
the part of any party shall in any way preclude such party from exercising any
such right or constitute a suspension or any variation of any such right.
(c) BENEFIT; SUCCESSORS BOUND.
This Agreement and the terms, covenants, conditions, provisions,
obligations, undertakings, rights, and benefits hereof, shall be binding upon,
and shall inure to the benefit of, the undersigned parties and their heirs,
executors, administrators, representatives, successors, and permitted assigns.
(d) ENTIRE AGREEMENT.
This Agreement contains the entire agreement between the Parties with
respect to the subject matter hereof. There are no promises, agreements,
conditions, undertakings, understandings, warranties, covenants or
representations, oral or written, express or implied, between them with respect
to this Agreement or the matters described in this Agreement, except as set
forth in this Agreement. Any such negotiations, promises, or understandings
shall not be used to interpret or constitute this Agreement.
(e) ASSIGNMENT.
Neither this Agreement nor any other benefit to accrue hereunder shall
be assigned or transferred by either Party, either in whole or in part, without
the written consent of the other party, and any purported assignment in
violation hereof shall be void.
(f) AMENDMENT.
Only an instrument in writing executed by all the Parties hereto may
amend this Agreement.
22
(g) SEVERABILITY.
Each part of this Agreement is intended to be severable. In the event
that any provision of this Agreement is found by any court or other authority of
competent jurisdiction to be illegal or unenforceable, such provision shall be
severed or modified to the extent necessary to render it enforceable and as so
severed or modified, this Agreement shall continue in full force and effect.
(h) SECTION HEADINGS.
The Section headings in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement.
(i) CONSTRUCTION.
Unless the context otherwise requires, when used herein, the singular
shall be deemed to include the plural, the plural shall be deemed to include
each of the singular, and pronouns of one or no gender shall be deemed to
include the equivalent pronoun of the other or no gender.
(j) FURTHER ASSURANCES.
In addition to the instruments and documents to be made, executed and
delivered pursuant to this Agreement, the parties hereto agree to make, execute
and deliver or cause to be made, executed and delivered, to the requesting party
such other instruments and to take such other actions as the requesting party
may reasonably require to carry out the terms of this Agreement and the
transactions contemplated hereby.
(k) NOTICES.
Any notice which is required or desired under this Agreement shall be
given in writing and may be sent by personal delivery or by mail (either a.
United States mail, postage prepaid, or b. Federal Express or similar generally
recognized overnight carrier), addressed as follows (subject to the right to
designate a different address by notice similarly given):
TO CLIENT:
TO CONSULTANT:
First Securities USA, Inc.
ATTN: Xxxxxx Xxxxxxx
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
23
(l) GOVERNING LAW.
This Agreement shall be governed by the interpreted in accordance with
the laws of the State of California without reference to its conflicts of laws
rules or principles. Each of the parties consents to the exclusive jurisdiction
of the federal courts of the County of Orange, State of California in connection
with any dispute arising under this Agreement and hereby waives, to the maximum
extent permitted by law, any objection, including any objection based on forum
non coveniens, to the bringing of any such proceeding in such jurisdictions.
(m) CONSENTS.
The person signing this Agreement on behalf of each party hereby
represents and warrants that he has the necessary power, consent and authority
to execute and deliver this Agreement on behalf of such party.
(n) SURVIVAL OF PROVISIONS.
The provision(s) contained in paragraph(s) 3 of this Agreement shall
survive the termination of this Agreement.
(o) EXECUTION IN COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same agreement.
24
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed and have agreed to and accepted the terms herein on the date written
above.
CALYPTE BIOMEDICAL CORPORATION
/s/XXXXXXX X. XXXXXXXXXX
--------------------------
BY: Xxxxxxx X. Xxxxxxxxxx
ITS: EVP and CFO
FIRST SECURITIES USA, INC.
/s/XXXXXXX XXXXXX
-----------------
BY: Xxxxxxx X. Xxxxxx
ITS: President
25
EXHIBIT A
SERVICES
Consultant shall perform the following services pursuant to the terms of
this Agreement:
(1) General management consulting services, including but not
limited to:
(a) advising on corporate structure;
(b) advising on marketing; and
(c) developing strategic alliances.
(2) Consulting on matters of the board of directors of the Company,
including but not limited to:
(a) assisting the board of directors in developing policies and
procedures; and
(b) assisting the board of directors of the Company in mergers,
acquisitions, and other business combinations.
The above services will be further defined and delineated by the
Company's board of directors from time to time as necessary. However, even
though Consultant is a registered broker/dealer registered with the Securities
and Exchange Commission, Consultant shall not perform any services in connection
with the offer or sale of Company securities, financings, or any services in
connection with securities or which directly or indirectly promote or maintain a
market for Client's securities. Any such services must be provided for under a
separate agreement with separate compensation.
26
EXHIBIT B
DESIGNATION OF SECURITIES
NAME Number of Warrants
---- ------------------
Xxxxxx Xxxxxxx 7,500,000
---------
TOTAL 7,500,000
---------
27
NOTICE OF EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise the right, represented by
the Warrant Agreement dated as of ______________, 2003, to purchase (________)
shares of the common stock of _______________, at a price of $_____ per share
and tenders herewith payment in accordance with Section 2 of said Warrant
Agreement.
CASH: $ = (Exercise Price x Exercise Shares)
---------
Payment is being made by:
_ enclosed check
_ wire transfer
_ other
---------------------------------------
CASHLESS EXERCISE
Net number of Warrant Shares to be issued to Holder: ____________ Please deliver
the stock certificate to:
Dated:
------------------------------------------
------------------------------------------------
[Name of Holder]
By:
----------------------------------------------
28
Exhibit 4.1(e)
CONSULTING AGREEMENT
May 10, 2003
RE: CONTRACT FOR XXXXX SERVICES
CALYPTE BIOMEDICAL CORP
Attention: Xx. Xxxxxx
Dear Xx. Xxxxxx,
As per your conversation with Xxxx Xxxxx, I would like to take this
opportunity to introduce you to Vintage Filings, LLC as a method of saving your
public company the typical costs associated with XXXXX filings and SEC reporting
requirements.
We have reviewed your Company's prior filings and we are prepared to
offer the following proposal, which will cover your Company's XXXXX filing fees
for a period of ONE (1) year from the date hereof.
We will provide XXXXX services to your company to allow your
Company to file an unlimited number of filings which shall include, but not be
limited to Forms 3, 4, 5 13Gs, 13Ds, S-8, 8K, 10Q, 10K, S-3, SB-2, S-2, etc....
- all text and tabular pages
- all amended proofs and changed pages
- all test filing and real time live filing fees
- all email distributions of PDF Xxxxx proofs
- all facsimile transmissions of Xxxxx proofs
- all 12b25 and NT-10K extension forms
- SEC filing of a Form ID
As compensation for the above stated unlimited services, the Company shall
issue an aggregate $45,000 of the Company's common stock to each of the
individual partners of Vintage Filings, LLC (Xxxx Xxxxxxx and Xxxx Xxxxx) to be
based on the closing price of the Company's common stock on May 9, 2003, $.02
per share.
Such shares, totaling 2,500,000 must be registered on a Form S-8 registration
statement prior to May 25, 2003.
29
We are anxious for CALYPTE BIOMEDICAL CORP to join our other
satisfied public company clients who are saving significant fees as compared to
their previous EDGARizing bills from their law firms and financial printers. As
this is our ONLY line of business, we at Vintage Filings, focus on you, and your
total satisfaction.
We would appreciate the opportunity to develop a long-term
relationship and be of service to you and your Company. Please feel free to
contact us at (000) 000-0000 or via email at xxxxxxxx@xxxxxxxx.xxx. Please
confirm agreement by signing and faxing to 000-000-0000.
Best wishes,
/s/Xxxx X. Xxxxxxx, ESQ.
-----------------------
Xxxx X. Xxxxxxx, Esq.
Co-Chairman and President
Agreed and Accepted:
/s/Xxxxx Xxxxxx
---------------
Xxxxx Xxxxxx
Xxxxxxx Biomedical Corporation
Director of Finance
30
EXHIBIT A
DESIGNATION OF SECURITIES
Such shares shall be issued as follows:
- 1,125,000 to be registered in the name of
Xxxx X. Xxxxx
- 1,125,000 to be registered in the name of
Xxxx Xxxxxxx
31
Exhibit 4.1(f)
Amendment 1 to Consulting Agreement
Between Calypte Biomedical Corporation and Lone Star Consulting
This Agreement amends and modifies the Consulting Agreement between Calypte
Biomedical Corporation ("Calypte" or the "Company") and Lone Star Consulting
("Consultant") and is effective as of May 15, 2003.
Whereas, the Company desires to change the payment terms on the contract for
certain consulting services performed in 2003, as well as future services, and
Consultant is agreeable to such modification.
Now therefore, in consideration of the premises and mutual promises set forth
herein, the parties hereto agree as follows:
1. Pursuant to Section 4 of the January 8, 2003 agreement, EXPENSES AND
PAYMENT, there is a monthly payment of $3,000 in cash and $4,500 in
stock. The Consultant may, at his option, accept the full $7,500 in
stock each month.
2. In consideration for this modification, the Company agrees to register
an additional 750,000 shares with the upcoming S-8 filing during May
2003, and reserves the right to register additional shares as
necessary.
3. All other terms and conditions of the existing Consultant Agreements
remain unchanged.
Consultant: Calypte Biomedical Corporation
/S/ Xxxxxxx Xxxxxxx By: /S/ Xxxxxxx Xxxxxxxxxx
------------------- ----------------------
Xxxxxxx Xxxxxxx Xxxxxxx X. Xxxxxxxxxx
Executive Vice President, CFO
32
Exhibit 4.1(g)
AMENDMENT NO. 1 TO CONSULTING AGREEMENT
Between Calypte Biomedical Corporation
and Xxx xxx xxx Xxxxx
This Agreement amends and modifies the Amended Consulting Agreement between
Calypte Biomedical Corporation ("Calypte" or the "Company") and Xxx xxx xxx
Xxxxx ("Consultant") dated April 4, 2003 and is effective as of May 15, 2003.
Whereas, the Company desires to extend the time period during which Consultant
will provide services to the Company pursuant to the above referenced Consulting
Agreement and Consultant is agreeable to extending the time for providing such
services.
Now therefore, in consideration of the premises and mutual promises set forth
herein, the parties hereto agree as follows:
1. The term of Consultant's Consulting Agreement shall be extended and, by
virtue of this Amendment, shall terminate on October 31, 2003 rather
than August 31, 2003.
2. In consideration for the extension of the services to be performed by
Consultant, the Company will immediately grant to Consultant a warrant
to purchase 10,000,000 shares of the registered common stock of the
Company at $0.01 per share, or an aggregate purchase price of $100,000.
All compensation pursuant to the Consulting Agreement and this
Amendment is fully earned upon execution of this amendment. The warrant
is immediately exercisable upon grant and will expire on August 15,
2003.
3. All other terms and conditions of the Amended Consultant Agreement
dated April 4, 2003 remain unchanged.
Consultant: Company:
Xxx xxx xxx Xxxxx Calypte Biomedical Corporation
/s/ Xxx xxx xxx Xxxxx /s/ Xxxxxxx Xxxxxxxxxx
______________________ By:______________________
Xxxxxxx Xxxxxxxxxx
Executive Vice President & CFO
33
Exhibit 4.1(h)
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement"), dated May 19, 2003,
is made by and between Newport Capital ("Consultant"), whose address is 0000
XxxXxxxxx Xxxxx, 00xx Xxxxx, Xxxxxxx Xxxxx, XX 00000, and Calypte Biomedical
Corporation ("Client"), having its principal place of business at 0000 Xxxxxx
Xxx Xxxxxxx, Xxxxxxx, XX 00000 (collectively, the "Parties").
WHEREAS, Client is a publicly held corporation with its common stock
trading on the Over the Counter Bulletin Board under the ticker symbol "CALY,"
and desires to further develop its business and customers;
WHEREAS, Consultant has extensive background in the area of business
consulting and management advisory services; and
WHEREAS, Client desires to engage Consultant to provide information,
evaluation and consulting services to Client in Consultant's area of knowledge
and expertise on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration for those services Consultant provides
to Client, the Parties agree as follows:
1. SERVICES OF CONSULTANT.
Consultant agrees to perform for Client all necessary services required
in providing general business consulting and management advisory services for
Client as more specifically set forth in Exhibit A attached hereto. The services
to be provided by Consultant will not be in connection with the offer or sale of
securities in a capital-raising transaction, and will not directly or indirectly
promote or maintain a market for Client's securities. Individuals employed by
Consultant under the primary supervision of Xxxxxx Xxxxxxx will provide the
services.
2. CONSIDERATION.
Client agrees to pay Consultant, as its fee and as consideration for
services provided, a warrant to purchase a total of 7,500,000 shares of free
trading common stock in Client, exercisable as follows:
? 7,500,000 shares exercisable at $0.010 per share
--------- -----
The shares underlying this warrant have been registered on a Form S-8
Registration Statement filed with and declared effective by the U.S. Securities
and Exchange Commission. The warrant and the underlying shares, upon issuance,
shall be issued in the names of individual principals of the Consultant as set
forth on Exhibit B attached hereto.
34
3. CONFIDENTIALITY.
Each Party agrees that during the course of this Agreement, information
that is confidential or of a proprietary nature may be disclosed to the other
party, including, but not limited to, product and business plans, software,
technical processes and formulas, source codes, product designs, sales, costs
and other unpublished financial information, advertising revenues, usage rates,
advertising relationships, projections, and marketing data ("Confidential
Information"). Confidential Information shall not include information that the
receiving party can demonstrate (a) is, as of the time of its disclosure, or
thereafter becomes part of the public domain through a source other than the
receiving party, (b) was known to the receiving party as of the time of its
disclosure, (c) is independently developed by the receiving party, or (d) is
subsequently learned from a third party not under a confidentiality obligation
to the providing party.
4. LATE PAYMENT.
Client shall pay to Consultant all fees within 15 days of the due date.
Failure of Client to finally pay any fees within 15 days after the applicable
due date shall be deemed a material breach of this Agreement, justifying
suspension of the performance of the "Services" provided by Consultant, will be
sufficient cause for immediate termination of this Agreement by Consultant. Any
such suspension will in no way relieve Client from payment of fees, and, in the
event of collection enforcement, Client shall be liable for any costs associated
with such collection, including, but not limited to, legal costs, attorneys'
fees, courts costs, and collection agency fees.
5. INDEMNIFICATION.
(A) CLIENT.
Client agrees to indemnify, defend, and hold harmless Consultant, its
directors, officers, employees, attorneys, and agents, and to defend any action
brought against said parties with respect to any and all claims, demands, causes
of action, debts or liabilities, including reasonable attorneys' fees, arising
out of work performed under this Agreement, including breach of Client of this
Agreement.
(B) CONSULTANT.
Consultant agrees to indemnify, defend, and shall hold harmless Client, its
directors, officers, employees, attorneys, and agents, and defend any action
brought against same with respect to any claim, demand, cause of action, debt or
liability, including reasonable attorneys' fees, to the extent that such an
action arises out of the gross negligence or willful misconduct of Consultant.
35
(C) NOTICE.
In claiming any indemnification hereunder, the indemnified party shall
promptly provide the indemnifying party with written notice of any claim, which
the indemnified party believes falls within the scope of the foregoing
paragraphs. The indemnified party may, at its expense, assist in the defense if
it so chooses, provided that the indemnifying party shall control such defense,
and all negotiations relative to the settlement of any such claim. Any
settlement intended to bind the indemnified party shall not be final without the
indemnified party's written consent, which shall not be unreasonably withheld.
6. LIMITATION OF LIABILITY.
Consultant shall have no liability with respect to Consultant's
obligations under this Agreement or otherwise for consequential, exemplary,
special, incidental, or punitive damages even if Consultant has been advised of
the possibility of such damages. In any event, the liability of Consultant to
Client for any reason and upon any cause of action, regardless of the form in
which the legal or equitable action may be brought, including, without
limitation, any action in tort or contract, shall not exceed 10% of the fee paid
by Client to Consultant for the specific service provided that is in question.
7. TERMINATION AND RENEWAL.
(A) TERM.
This Agreement shall become effective on the date appearing next to the
signatures below and terminate one year thereafter. Unless otherwise agreed upon
in writing by Consultant and Client, this Agreement shall not automatically be
renewed beyond its Term.
(B) TERMINATION.
Either Party may terminate this Agreement on 30 calendar days' written
notice, or if prior to such action, the other party materially breaches any of
its representations, warranties or obligations under this Agreement. Except as
may be otherwise provided in this Agreement, such breach by either party will
result in the other party being responsible to reimburse the non-defaulting
party for all costs incurred directly as a result of the breach of this
Agreement, and shall be subject to such damages as may be allowed by law
including all attorneys' fees and costs of enforcing this Agreement.
(C) TERMINATION AND PAYMENT.
Upon any termination or expiration of this Agreement, Client shall pay
all unpaid and outstanding fees through the effective date of termination or
expiration of this Agreement. And upon such termination, Consultant shall
provide and deliver to Client any and all outstanding services due through the
effective date of this Agreement.
36
8. MISCELLANEOUS.
(A) INDEPENDENT CONTRACTOR.
This Agreement establishes an "independent contractor" relationship
between Consultant and Client.
(B). RIGHTS CUMULATIVE; WAIVERS.
The rights of each of the Parties under this Agreement are cumulative.
The rights of each of the Parties hereunder shall not be capable of being waived
or varied other than by an express waiver or variation in writing. Any failure
to exercise or any delay in exercising any of such rights shall not operate as a
waiver or variation of that or any other such right. Any defective or partial
exercise of any of such rights shall not preclude any other or further exercise
of that or any other such right. No act or course of conduct or negotiation on
the part of any party shall in any way preclude such party from exercising any
such right or constitute a suspension or any variation of any such right.
(C) BENEFIT; SUCCESSORS BOUND.
This Agreement and the terms, covenants, conditions, provisions,
obligations, undertakings, rights, and benefits hereof, shall be binding upon,
and shall inure to the benefit of, the undersigned parties and their heirs,
executors, administrators, representatives, successors, and permitted assigns.
(D) ENTIRE AGREEMENT.
This Agreement contains the entire agreement between the Parties with
respect to the subject matter hereof. There are no promises, agreements,
conditions, undertakings, understandings, warranties, covenants or
representations, oral or written, express or implied, between them with respect
to this Agreement or the matters described in this Agreement, except as set
forth in this Agreement. Any such negotiations, promises, or understandings
shall not be used to interpret or constitute this Agreement.
(E) ASSIGNMENT.
Neither this Agreement nor any other benefit to accrue hereunder shall
be assigned or transferred by either Party, either in whole or in part, without
the written consent of the other party, and any purported assignment in
violation hereof shall be void.
(F) AMENDMENT.
Only an instrument in writing executed by all the Parties hereto may
amend this Agreement.
37
(G) SEVERABILITY.
Each part of this Agreement is intended to be severable. In the event
that any provision of this Agreement is found by any court or other authority of
competent jurisdiction to be illegal or unenforceable, such provision shall be
severed or modified to the extent necessary to render it enforceable and as so
severed or modified, this Agreement shall continue in full force and effect.
(H) SECTION HEADINGS.
The Section headings in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement.
(I) CONSTRUCTION.
Unless the context otherwise requires, when used herein, the singular
shall be deemed to include the plural, the plural shall be deemed to include
each of the singular, and pronouns of one or no gender shall be deemed to
include the equivalent pronoun of the other or no gender.
(J) FURTHER ASSURANCES.
In addition to the instruments and documents to be made, executed and
delivered pursuant to this Agreement, the parties hereto agree to make, execute
and deliver or cause to be made, executed and delivered, to the requesting party
such other instruments and to take such other actions as the requesting party
may reasonably require to carry out the terms of this Agreement and the
transactions contemplated hereby.
(K) NOTICES.
Any notice which is required or desired under this Agreement shall be
given in writing and may be sent by personal delivery or by mail (either a.
United States mail, postage prepaid, or b. Federal Express or similar generally
recognized overnight carrier), addressed as follows (subject to the right to
designate a different address by notice similarly given):
TO CLIENT:
TO CONSULTANT:
Newport Capital
ATTN: Xxxx Xxxxxxx
0000 XxxXxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
38
(L) GOVERNING LAW.
This Agreement shall be governed by the interpreted in accordance with
the laws of the State of California without reference to its conflicts of laws
rules or principles. Each of the parties consents to the exclusive jurisdiction
of the federal courts of the County of Orange, State of California in connection
with any dispute arising under this Agreement and hereby waives, to the maximum
extent permitted by law, any objection, including any objection based on forum
non coveniens, to the bringing of any such proceeding in such jurisdictions.
(M) CONSENTS.
The person signing this Agreement on behalf of each party hereby
represents and warrants that he has the necessary power, consent and authority
to execute and deliver this Agreement on behalf of such party.
(N) SURVIVAL OF PROVISIONS.
The provision(s) contained in paragraph(s) 3 of this Agreement shall
survive the termination of this Agreement.
(O) EXECUTION IN COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same agreement.
39
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed and have agreed to and accepted the terms herein on the date written
above.
Calypte Biomedical Corporation
/S/ Xxxxxxx X. Xxxxxxxxxx
--------------------------
BY: Xxxxxxx X. Xxxxxxxxxx
ITS: EVP and CFO
NEWPORT CAPITAL
/S/ Xxxx Xxxxxxx
-------------------
BY: Xxxx Xxxxxxx
ITS:
40
EXHIBIT A
SERVICES
Consultant shall perform the following services pursuant to the terms of
this Agreement:
(1) General management consulting services, including but not
limited to:
(a) advising on corporate structure;
(b) advising on marketing; and
(c) developing strategic alliances.
(2) Consulting on matters of the board of directors of the Company,
including but not limited to:
(a) assisting the board of directors in developing policies and
procedures; and
(b) assisting the board of directors of the Company in mergers,
acquisitions, and other business combinations
The above services will be further defined and delineated by the
Company's board of directors from time to time as necessary. However, even
though Consultant is a registered broker/dealer registered with the Securities
and Exchange Commission, Consultant shall not perform any services in connection
with the offer or sale of Company securities, financings, or any services in
connection with securities or which directly or indirectly promote or maintain a
market for Client's securities. Any such services must be provided for under a
separate agreement with separate compensation.
41
EXHIBIT B
DESIGNATION OF SECURITIES
NAME NUMBER OF WARRANTS
---- ------------------
Xxxx Xxxxxxx 7,500,000
---------
TOTAL 7,500,000
---------
42
NOTICE OF EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise the right, represented by
the Warrant Agreement dated as of ______________, 2003, to purchase (________)
shares of the common stock of _______________, at a price of $_____ per share
and tenders herewith payment in accordance with Section 2 of said Warrant
Agreement.
CASH: $ = (Exercise Price x Exercise Shares)
------------------
Payment is being made by:
_ enclosed check
_ wire transfer
_ other
---------------------------------------
CASHLESS EXERCISE
Net number of Warrant Shares to be issued to Holder: ____________ Please deliver
the stock certificate to:
Dated:
--------------------------------
--------------------------------------
[Name of Xxxxxx]
By:
------------------------------------
43
Exhibit 4.1(i)
Amendment No. 1 to Consulting Agreement
Between Calypte Biomedical Corporation
and Fox Communications Group
This Agreement amends and modifies the Consulting Agreement between Calypte
Biomedical Corporation ("Calypte" or the "Company") and Fox Communications Group
("Consultant") dated June 5, 2002 and is effective as of May 19, 2003.
Whereas, the Company desires to extend the time period during which Consultant
will provide services to the Company pursuant to the above referenced Consulting
Agreement and Consultant is agreeable to extending the time for providing such
services.
Now therefore, in consideration of the premises and mutual promises set forth
herein, the parties hereto agree as follows:
1. The term of Consultant's Consulting Agreement shall be extended and, by
virtue of this Amendment, shall be from the date of this amendment and
terminate on June 30, 2003.
2. In consideration for the extension of the services to be performed by
Consultant, the Company will immediately grant Consultant 1,000,000
shares of the common stock. All compensation pursuant to the Consulting
Agreement and this Amendment is fully earned upon execution of this
amendment.
3. The Company agrees to include these shares in an S-8 Registration
Statement filed during May 2003. All prior services are agreed to be
earned as previously paid.
4. All other terms and conditions of the Consultant Agreement dated June
5, 2002 remain unchanged.
Consultant: Calypte Biomedical Corporation
/S/ Xxxxxx Xxx By: /S/ Xxxxxxx X. Xxxxxxxxxx
---------------------- -------------------------
Xxxxxx Xxx Xxxxxxx X. Xxxxxxxxxx
Executive Vice President, CFO
44
