Exhibit 10.78
[Calypte Biomedical Corporation Letterhead]
October 17, 2000
Xxxx X. XxXxxxxx
0000 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Re: EXTENSION OF YOUR CONSULTING AGREEMENT WITH CALYPTE
Dear Xxxx:
Upon your signature at the end of this letter where indicated, this
letter will be a binding amendment to extend (the "EXTENSION") the Consulting
Agreement between Calypte Biomedical Corporation ("CALYPTE") and you dated as of
September 17, 1999 (the "CONSULTING AGREEMENT"), with respect to your provision
of service as a consultant to Calypte as provided in this letter (the services
described in Section 1 hereof are referred to herein as the "SERVICES"). This
Extension shall be effective as of September 17, 2000 (the "EFFECTIVE DATE").
With the exception of the sections amended in their entirety below, all other
sections of the Agreement will remain in effect until the termination of this
Extension.
1. SERVICES.
(a) UPDATE TO LIST OF BASIC SERVICES; - AMENDMENT OF SECTION
1(A) OF THE CONSULTING AGREEMENT Subject to the terms and conditions of the
Consulting Agreement, you shall continue to be retained by Calypte as a
consultant to Calypte until terminated as provided herein, to provide up to an
aggregate of sixteen (16) hours of Services per calendar month during the term
hereof (or such additional hours as you may agree with Calypte as provided in
Section 1(b) hereof), with travel time counted as one-half time (I.E., one hour
of travel time will be counted as one-half hour of time spent consulting
hereunder), with respect to (i) financial and operational matters and projects
relating to Calypte's current and/or future products, (ii) assisting in the
selection, recruitment and integration with Calypte of a Chief Financial
Officer, (iii) assisting in the selection of a distributor for Calypte products
in India; and (iv) assisting in the raising of additional capital funds for
Xxxxxxx, all as may be requested from time to time during the term hereof orally
or in writing by an officer (President, Chief Executive Officer, Chief Financial
Officer, Vice President) or member of the Board. The number of hours spent by
you hereunder as rendering Services to Calypte 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. You will not receive any compensation hereunder for your services as a
Director of Calypte, but will be entitled to such indemnification, stock, and/or
stock
Xxxx X. XxXxxxxx
September 22 1999 [SIC]
Page 2
options and other benefits from the Company as are made available from time to
time by the Company to other Directors.
(b) - (e) No Change. These Sections shall remain in effect as
set forth in the Consulting Agreement until the termination of this Extension.
2. COMPENSATION AND EXPENSES.
(a) NO CASH COMPENSATION; CESSATION OF VESTING OF OPTION;
FURTHER AMENDMENT OF SECTION 8 OF EMPLOYMENT AGREEMENT WITH RESPECT TO SEVERANCE
PAY AND CONTINUED VESTING OF OPTION. Calypte will pay no cash amount to you for
your services rendered under this Agreement. Instead, Calypte and you hereby
agree, pursuant to Section 8 of the Employment Agreement dated as of October 28,
1998 between you and Calypte (the "EMPLOYMENT AGREEMENT"), that Section 7(d) of
your Employment Agreement, which was amended pursuant to Section 2(a) of the
Consulting Agreement, hereby is further amended to read as follows, effective as
of the day before the Effective Date; except as herein amended, neither your
Employment Agreement nor such options referred to in said section are amended:
"The Executive may voluntarily terminate his employment at any
time beginning July 1, 1999, in which event he shall receive severance
pay of Fifty-Five Thousand Dollars ($55,000.00). If in connection with
the Executive's voluntary termination of employment hereunder, the
Executive and the Company enter into a written agreement under which
the Executive is to render consulting services to the Company, then
from and after the date of such voluntary termination, vesting
(exerciseability) of Executive's currently outstanding incentive stock
option from the Company which was originally granted to Executive on
October 27, 1998, for a total of 300,000 shares of Common Stock of the
Company, originally vesting over a 24-month period beginning October
27, 1998, at the rate of 12,500 shares per month, will not cease and
such option is hereby amended to provide that it shall continue after
such termination date to vest (become exerciseable) at the rate of four
thousand (4,000) shares at the end of each monthly anniversary of the
date of such termination, through the earlier of the date of
termination of such consulting agreement or the twelfth (12th) monthly
anniversary of the date of such termination. Following the twelfth
(12th) monthly anniversary of the date of such termination, the vesting
of such option shall cease, even if Executive continues to render
consulting services. In addition, if in connection with any other
Calypte stock option plan or grant, other than a plan or grant provided
to directors of Calypte, Executive has any obligation that requires
Executive to exercise an option to purchase Calypte stock within a
specific period of time, such period of time will not begin until the
date of termination of the Extension to the Consulting Agreement with
Calypte dated as of September 17, 2000."
Xxxx X. XxXxxxxx
September 22 1999 [SIC]
Page 3
(b) No Change. This Section shall remain in effect as set
forth in the Consulting Agreement until the termination of this Extension.
Sections 3 - 6. NO CHANGE These Sections shall remain in effect as set
forth in the Consulting Agreement until the termination of this Extension.
7. TERM OF SERVICE; TERMINATION; EFFECT OF TERMINATION.
(a) TERM OF SERVICE; TERMINATION. This Extension 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) & (c) No Change. This Section shall remain in effect as
set forth in the Consulting Agreement until the termination of this Extension.
Sections 8 & 9. NO CHANGE These Sections shall remain in effect as set
forth in the Consulting Agreement until the termination of this Extension.
We look forward to continuing to work with you, as a consultant, as
part of our team for the success of Calypte.
Sincerely,
/s/ Xxxxx X. Xxxx
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Xxxxx Xxxx
President, Chief Executive Officer and Chief
Financial Officer
ACCEPTED AND AGREED:
/s/ Xxxx XxXxxxxx
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Xxxx X. XxXxxxxx
Date signed: October 25, 2000
