EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (the “Agreement”),
dated 11 June 2008, by Calypte Biomedical Corporation, a Delaware corporation
(“Calypte”) and Mr. Xxx Xxxxxx (the “Employee”), Basset Xxxx, Xxxxxx Xxxx,
Xxxxxxxxxx XX0 0XX, XX.
Calypte
desires to employ the Employee as President and Chief Executive Officer of
Calypte, and the Employee desires to be so employed, on the terms and conditions
set forth in this Agreement.
ACCORDINGLY,
on the basis of the representations, warranties, and covenants contained in
this
Agreement, the parties agree as follows:
ARTICLE
I - EMPLOYMENT
AND TERM
1.1.
Employment.
Calypte
shall employ the Employee as its President and Chief Executive Officer, and
the
Employee accepts such employment, on the terms and conditions set forth in
the
Agreement.
1.2.
Term.
Unless
the parties terminate or extend Employee’s employment in accordance with the
terms of this Agreement, the term of Employee’s employment under this Agreement
shall commence on the “Effective Date”, and shall continue for a period of 24
months thereafter. For purposes of this Agreement, the Effective Date means
the
date on which the Company receives a binding commitment for sufficient funding
to operate its business for at least a two-month period. Upon the expiration
of
such 24-month period, the term of the Employee’s employment under this Agreement
shall automatically renew for successive periods of 12 months each, unless,
at
least 60 days before the expiration of such 24 month period or any succeeding
12-month period, either party gives written notice to the other party of its
intention not to renew the Agreement. If such notice of non-renewal is timely
given, the term of the Employee’s employment under this Agreement shall expire
at the end of such 24-month period or at the end of the current 12-month period,
as the case may be. The term of Employee’s employment under this Agreement is
referred to herein as the “Term.”
ARTICLE
2 - DUTIES
OF THE EMPLOYEE
2.1.
Duties.
During
the Term, the Employee agrees to serve as President and Chief Executive Officer
of Calypte. Subject to the direction and authorization of Calypte’s board of
directors (the “Board of Directors”), the Employee shall direct and manage the
affairs of Calypte and shall perform such other functions and undertake such
other responsibilities as are customarily associated with his capacity as
President and Chief Executive Officer. The Employee shall devote such tine,
attention and skill necessary to fully perform his duties, services and
responsibilities, and will use his best efforts to promote the interests of
Calypte. The Employee shall, at all times during the Term, adhere to and obey
any and all written internal rules and regulations governing the conduct of
Calypte’s employees, as established or modified from time to time; provided,
however, that, in the event of any conflict between the provisions of this
Agreement and any such rules or regulations, the provisions of this Agreement
shall control.
2.2.
Services.
During
the Term, the Employee will not, without the prior written approval of the
Board
of Directors, engage, directly or indirectly, in any other business activity
which would interfere with the performance of his duties, services and
responsibilities hereunder or which is in violation of policies established
from
time to time by the Board of Directors.
2.3.
Directorships.
Notwithstanding the foregoing, the Employee shall be permitted to continue
holding non-employee directorships as may be agreed upon by the Board of
Directors. All costs and time associated with holding these directorships shall
be borne by the Employee.
ARTICLE
3 - COMPENSATION
3.1.
Base
Salary.
During
the Term, Calypte shall pay to the Employee a base salary at the annual rate
of
$150,000 per year, payable in equal bi-weekly installments on the Company’s
normal payroll schedule.
3.2.
Common
Stock Award.
As soon
as practicable after execution of this Agreement, Calypte shall award to the
Employee 1,000,000 million shares of its common stock, which shall be fully
vested upon the award, in accordance with the terms and conditions of Calypte’s
2004 Incentive Plan (the “Plan”).
3.3.
Stock
Option Award.
Promptly
following the effective date of this Agreement, Calypte shall grant to the
Employee a stock option to purchase 1,000,000 shares of its common stock
pursuant to Calypte’s 2004 Incentive Plan (the “Plan”) at an exercise price per
share equal to the closing market price of a share of its common stock on the
date of grant. The stock option will vest bi-annually, subject to the Employee’s
continued Employment (as defined in the Plan), on a pro rata basis as follows:
50% of the total stock option award on 1 December 2008 and the remaining 50%
on
1 June 2009.
3.4.
Bonus.
Beginning the effective date of this Agreement, the Employee shall be entitled
to receive a bonus of up to 50% of his annual base salary upon satisfaction
of
performance goals to be determined by the Board of Directors. The bonus may
be
paid in either cash or equity or a combination of cash and equity. The Board
of
Directors will set the performance goals with the assistance of Employee. The
performance goals shall be measured and the bonus calculated as of the end
of
each calendar year. Where the assessment period is less than one calendar year
the performance goals and the bonus shall be adjusted accordingly.
3.5.
Employee
Benefits.
The
Employee shall be entitled to participate in or receive benefits under any
employee benefit plans, arrangements and perquisites, including, but not limited
to, retirement plans, supplemental retirement plans, pension plans,
profit-sharing plans, health and accident plans, medical coverage plans,
disability plans, insurance programs, and incentive compensation plans or any
other employee benefit plan or arrangement now available or in the future
available to senior executives of Calypte on the same basis as is available
to
other senior executives of Calypte. Calypte will not, without the Employee’s
prior written consent, make any changes in such plans, benefits or arrangements
which would materially adversely affect the Employee’s rights or benefits
thereunder, except to the extent such changes are made applicable to all
executive-level employees on a non-discriminatory basis.
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3.6. Vacation.
The
Employee shall be entitled to 25 days paid vacation each year. A maximum of
5
days may be carried forward in any one year.
3.7.
Reimbursement
for Business Expenses.
Calypte
shall reimburse the Employee for all reasonable and documented actual business
expenses that the Employee incurs from time to time in the performance of his
duties under this Agreement in accordance with the policies and practices that
Calypte has adopted or adopts hereafter. The class of air travel shall be
business class or similar for trips longer than 3 hours and business class
or
similar for all surface travel.
3.8.
Legal
and Tax Advise Expenses.
Calypte
shall assist and reimburse the Employee for all reasonable documented and actual
expenses incurred by the Employee to obtain the necessary documents for him
to
perform his stated duties of this Agreement in Portland. Calypte shall similarly
reimburse the Employee up to $2,500 for the Employee’s reasonable documented and
actual expenses incurred to consult with a tax expert regarding the Employee’s
income tax liabilities in connection with his compensation and benefits under
this Agreement.
3.9.
Personal
Travel.
The
Company shall reimburse the Employee for reasonable and documented actual
expenses the Employee incurs from time to time related to his and his family’s
personal travel up to a maximum of $15,000.
ARTICLE
4 - TERMINATION
4.1.
Termination for Cause.
Termination for Cause shall mean termination because of Employee’s personal
dishonesty, incompetence, failure to adequately perform stated duties, willful
misconduct, breach of fiduciary duty involving personal profit, willful
violation of any law, rule or regulation (other than traffic violations or
similar offenses), conviction of a felony or other serious crime, or material
breach of any provision of this Agreement. For purposes of this Agreement,
no
act, or the failure to act, on the Employee’s part shall be “willful” unless
done, or omitted to be done, not in good faith and without reasonable belief
that the action or omission was in the best interest of Calypte. Notwithstanding
the foregoing, the Employee shall not be deemed to have been terminated for
Cause unless and until there shall have been delivered to him a notice of
termination specifying the particulars thereof in detail. The Employee shall
not
have the right to receive compensation or other benefits for any period after
termination for Cause which have not vested or been earned as of the date of
such termination. The Employee shall have the right to receive compensation
or
other benefits which have already vested or been earned as of the date of
termination for Cause, unless payment of such compensation or benefits is
expressly prohibited by the terms of any plan, program or agreement governing
such compensation or benefits.
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4.2. Termination
Upon An Other Event of Termination
(a)
Upon
the occurrence of an Other Event of Termination (as herein defined) during
the
Term, the provisions of this Section 4.2 shall apply. As used in this Agreement,
an “Other Event of Termination” shall mean and include any one or more of the
following: (i) the termination by Calypte of the Employee’s employment hereunder
for any reason other than a termination governed by Sections 4.1, 4.3 or 4.5
hereof; (ii) the Employee’s resignation upon any (A) a material change in the
Employee’s function, duties, or responsibilities, which change would cause the
Employee’s position to become one of lesser responsibility, importance, or scope
from the position and attributes thereof described in Sections 1.1 and 2.1
hereof, unless consented to by the Employee, (B) a relocation of the Employee’s
principal place of employment by more than 100 miles, unless consented to by
the
Employee, (C) a material reduction in the aggregate benefits and perquisites
to
the Employee from those being provided as of the effective date of this
Agreement, unless such reduction is (I) consented to by the Employee, (II)
applies generally to executive-level employees of Calypte, or (III) is a
reduction in the amount of the Employee’s bonus based on the application of a
formula or index to the financial performance of Calypte. Upon the occurrence
of
any event described in clauses (A), (B), or (C), above, the Employee shall
have
the right to elect to terminate his employment under this Agreement by
resignation upon not less than 30 days prior written notice given within six
months after the event giving rise to said right to elect.
(b)
Upon
the occurrence of an Other Event of Termination, Calypte shall be obligated
to
pay the Employee, or, in the event of his subsequent death, his beneficiary
or
beneficiaries, or his estate, as the case may be, an amount equal to the
Employee’s base salary on the date of termination for six (6) months. Such
amount shall be paid in six (6) equal monthly installments commencing on the
30th day after the Termination Date, or under such other arrangements as shall
be agreed with the Employee. Such amount shall be in addition to any
compensation or benefits earned by the Employee or to which the Employee was
entitled prior to the Termination Date. Such payments shall not be reduced
in
the event the Employee obtains other employment following termination of
employment.
(c)
Upon
the occurrence of an Other Event of Termination, Calypte will cause to be
continued life, medical, dental and disability coverage substantially identical
to the coverage maintained by Calypte for the Employee prior to his termination
at no premium cost to the Employee, except to the extent such coverage may
be
changed in its application to all executive-level employees of Calypte if such
coverage was generally available on the date of an Other Event of Termination
to
executive-level employees of Calypte, or except to the extent such coverage
may
be changed in its application to all executive-level employees of Calypte if
such coverage was generally available on the date of an Other Event of
Termination to executive-level employees of Calypte. The benefits provided
under
this Section 4.3(c) shall continue until the earlier of (a) six month following
Employee’s termination of employment with Calypte, (b) the end of the then
current Term, or (c) the date the Employee becomes covered under any other
group
health plan not maintained by Calypte. In the event Employee is required to
make
an election under Sections 601 through 607 of the Employee Retirement Income
Security Act of 1974 (commonly known as COBRA) to qualify for the benefits
described in this Section 4.3(c), the obligations of Calypte under this Section
4.3(c) shall be conditioned upon the Employee’s timely making such an
election.
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4.3.
Termination
By the Employee or Death.
If the
Employee terminates his employment with Calypte for any reason other than the
reasons set forth in Section 4.2 hereof or the Employee’s employment is
terminated as a result of his death, Calypte shall pay to the Employee, or
in
the event of his death, his beneficiary or beneficiaries or his estate, as
the
case may be, the base salary earned but unpaid pursuant to Section 3.1 hereof
through the Termination Date and any earned but unused vacation pay due to
the
Employee at the Termination Date. Any such payments due to the Employee, under
this Section 4.3 shall be paid on the Termination Date, unless the termination
of the Employee’s employment was due to his death, in which case, such payment
shall be made by no later than 30 days after the Termination Date. The Employee
shall not have the right to receive compensation or other benefits for any
period after the Termination Date which have not vested or been earned as of
the
Termination Date. The Employee shall have the right to receive compensation
or
other benefits which have already vested or been earned as of the Termination
Date, unless payment of such compensation or benefits is expressly prohibited
by
the terms of any plan, program or agreement governing such compensation or
benefits.
4.4.
Termination on Disability.
If (i)
the Employee is absent from work for 90 calendar days in any 12-month period
by
reason of illness or incapacity (whether physical or otherwise) or (ii) the
Board of Directors reasonably determines that the Employee is unable to perform
his duties, services and responsibilities hereunder by reason of illness or
incapacity (whether physical or otherwise) for a total of 90 calendar days
in
any 12-month period during the Term (“Disability”), Calypte may terminate the
Employee’s employment hereunder as of the Termination Date specified in a
written notice termination from Calypte to the Employee. If the Employee’s
employment is terminated by Calypte pursuant to this Section 4.4, Calypte shall
pay on the Termination Date to the Employee the base salary earned but unpaid
pursuant to Section 3.1 hereof through the Termination Date and any earned
but
unused vacation pay clue to the Employee at the Termination Date. In addition,
the Employee shall be entitled to receive benefits based on Calypte’s applicable
disability plans then in effect. The Employee shall not have the right to
receive compensation or other benefits for any period after the Termination
Date
which have not vested or been earned as of the Termination Date. The Employee
shall have the right to receive compensation or other benefits which have
already vested or been earned as of the Termination Date, unless payment of
such
compensation or benefits is expressly prohibited by the terms of any plan,
program or agreement governing such compensation or benefits.
4.5.
Termination
of Calypte’s Obligation.
If, at
any time within one year following termination of employment, the Employee
materially breaches any of the Employee’s obligations under Articles 5 or 6 of
this Agreement, then, in addition to any other remedy of Calypte, Calypte’s
obligation, if any, to make payments under Section 4.1 shall cease as of the
date such material breach occurs. Moreover, the Employee acknowledges that
a
material breach of Articles 5 or 6 of this Agreement will cause irreparable
harm
to Calypte and, if the Employee fails to abide by these obligations, Calypte
will be entitled to seek specific performance, including immediate issuance
of a
temporary restraining order or preliminary injunction enforcing this Agreement,
and to seek judgment for damages caused by the Employee’s breach, and to seek
other remedies provided by applicable law.
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4.6.
Termination
Date.
Any
termination of the Employee’s employment hereunder pursuant to this Article 4
shall be effected by written notice other than a termination as a result of
the
Employee’s death. Any written notice of termination shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Employee’s employment under the provisions so indicated. The
effective date of any such termination (the “Termination Date”) shall be as
follows:
(a) In
the
event of a termination due to the Employee’s death, the date of such death;
and
(b)
In
the event of termination for any reason other than the Employee’s death, the
date specified in the written notice of termination which in no event shall
be
prior to the date of receipt of such notice.
ARTICLE
5 - CONFIDENTIALITY
AND NON-SOLICITATION
5.1.
Nondisclosure.
The
Employee acknowledges that in the course of employment with Calypte, the
Employee will have access to learn confidential information concerning Calypte.
Confidential information includes, but is not limited to, information about
either Calypte’s affiliates, vendors, suppliers, distributors and clients, the
terms and conditions under which Calypte or its affiliates deals with vendors,
suppliers, distributors and clients, sales and product information,
manufacturing processes, product formulations, information regarding
applications and submissions (relating to existing and proposed products) made
to various regulatory bodies, new product plans, product development efforts,
marketing strategies, financial information and projections and other commercial
and product data, pricing information for products, financing arrangements,
research materials, manuals, computer programs, data, marketing plans and
tactics, technical information, processes and practices of Calypte, all
information contained in electronic or computer files, salary and wage
information, and any other information that is designated in writing by Calypte
or its affiliates as confidential or that the Employee knows or should know
is
confidential; information provided by third parties that Calypte is obligated
to
keep confidential; and all other proprietary information of Calypte. The
Employee acknowledges that all confidential information is and shall continue
to
be the exclusive property of Calypte, whether or not prepared in whole or in
part by the Employee and whether or not disclosed to or entrusted to the
Employee in connection with employment by Calypte. The Employee agrees not
to
disclose confidential information, directly or indirectly, under any
circumstances or by any means, to any third persons without the prior written
consent of Calypte. The Employee agrees that he will not copy, transmit,
reproduce, summarize, quote, or make any commercial or other use whatsoever
of
confidential information, except as may be necessary to perform work done by
Employee for Calypte. The Employee agrees to exercise the highest degree of
care
in safeguarding confidential information against loss, theft or other
inadvertent disclosure and agrees generally to take all steps necessary or
requested by Calypte to ensure maintenance of the confidentiality of the
confidential information. The Employee agrees in addition to the specific
covenants contained herein to comply with all of Calypte’s policies and
procedures for the protection of confidential information.
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5.2.
Exclusions.
Section
5.1 shall not apply to the following information: (a) information previously,
now or hereafter voluntarily disseminated by Calypte to the public or which
otherwise becomes part of the public domain through lawful means; (b)
information known to the Employee prior to the Employee’s employment with
Calypte; (c) information received by the Employee from third parties not known
by the Employee to be subject to a confidentiality agreement with Calypte;
or
(d) information, including but not limited to, information concerning banking,
financial and/or economic principles, concepts or ideas which is not solely
and
exclusively derived from the business plans and activities of
Calypte.
5.3.
Confidential
Proprietary and Trade Secret Information of Others.
The
Employee represents that he has disclosed to Calypte any agreement to which
the
Employee is or has been a party regarding the confidential information of others
and the Employee understands that the Employee’s employment by Calypte will not
require the Employee to breach any such agreement. The Employee will not
disclose such confidential information to Calypte nor induce Calypte to use
any
trade secret proprietary information received from another under an agreement
or
understanding prohibiting such use or disclosure.
5.4.
Non-Solicitation
of Employees.
During
the period of one year after the Termination Date, the Employee shall not
directly or indirectly solicit for employment or for independent contractor
work
any employee of Calypte, and shall not encourage any such employee to leave
the
employment of Calypte.
5.5.
Non-Solicitation of
Customers.
During
the period of one year following the Termination Date, the Employee shall not
directly or indirectly (a) solicit for business any customers of Calypte, (b)
encourage any such customers to stop using the facilities or services of
Calypte, or (c) encourage any such customers to use the facilities or services
of any competitor of Calypte.
5.6.
No
Unfair Competition.
The
Employee hereby acknowledges that the sale or unauthorized use or disclosure
of
any of Calypte’s Confidential Material obtained by the Employee by any means
whatsoever, at any time before, during, or after the Term shall constitute
unfair competition. The Employee shall not engage in any unfair competition
with
Calypte either during the Term or at any time thereafter.
ARTICLE
6 - CALYPTE’S
OWNERSHIP IN EMPLOYEE’S WORK
6.1.
Calypte’s
Ownership.
The
Employee agrees that all inventions, discoveries, improvements, trade secrets,
formulae, techniques, processes, and know-how, whether or not patentable, and
whether or not reduced to practice, that are conceived or developed during
the
Employee’s employment with Calypte, either alone or jointly with others, if on
Calypte’s time, using Calypte’s facilities, relating to Calypte or to its
current or prospective business, shall be owned exclusively by Calypte, and
the
Employee hereby assigns to Calypte all the Employee’s right, title, and interest
in all such intellectual property. The Employee agrees that Calypte shall be
the
sole owner of all domestic and foreign patents or other rights pertaining
thereto, and further agrees to execute all documents that Calypte reasonably
determines to be necessary or convenient for use in applying for, prosecuting,
perfecting, or enforcing patents or other intellectual property rights,
including the execution of any assignments, patent applications, or other
documents that Calypte may reasonably request. This provision is intended to
apply only to the extent permitted by applicable law.
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6.2.
Section 6.1 shall not apply to inventions that the Employee has developed
entirely on his own time without using Calypte’s equipment, supplies,
facilities, trade secret information or Confidential Information, except
that
Section 6.1 will apply to inventions that either (i) relate at the time of
conception or reduction to practice of the invention to Calypte’s business, or
actual or demonstrably anticipated research or development of Calypte or (ii)
result from any work that the Employee performed for Calypte. The Employee
will
advise Calypte promptly in writing of any inventions that the Employee believes
meet the foregoing criteria.
6.3.
Return
of Calypte’s Property and Materials.
Upon
termination of employment with Calypte, the Employee shall deliver to Calypte
all Calypte property and materials that are in the Employee’s possession or
control, including all of the information described as confidential information
in Section 6 of this Agreement and including all other information relating
to
any inventions, discoveries, improvements, trade secrets, formulae, processes,
or know-how of Calypte.
6.4.
Ventures.
If
Employee, during employment with Calypte, is engaged in or associated with
the
planning or implementation of any project, program, or venture involving Calypte
and any third parties, all rights in the project, program, or venture shall
belong to Calypte, and the Employee shall not be entitled to any interest
therein or to any commission, finder’s fee, or other compensation in connection
therewith other than the salary to be paid to the Employee as provided in this
Agreement.
ARTICLE
7 - ARBITRATION
Any
claim
or controversy between the parties which the parties are unable to resolve
themselves, including any claim arising out of the Employee’s employment or the
termination of that employment, and including any claim arising out of,
connected with, or related to the formation, interpretation, performance or
breach of this Agreement, and any claim or dispute as to whether a claim is
subject to arbitration, shall be submitted to and resolved exclusively by
expedited arbitration by a single arbitrator in accordance with the following
procedures:
7.1.
In
the event of a claim or controversy subject to this arbitration provision,
the
complaining party shall promptly send written notice to the other party
identifying the matter in dispute and the proposed remedy. Following the giving
of such notice, the parties shall meet and attempt in good faith to resolve
the
matter. In the event the parties are unable to resolve the matter within 21
days, the parties shall meet and attempt in good faith to select a single
arbitrator acceptable to both parties. If a single arbitrator is not selected
by
mutual consent within 10 business days following the giving of the written
notice of dispute, an arbitrator shall be selected from a list of nine persons
each of whom shall be an attorney who is either engaged in the active practice
of law or a recognized arbitrator and who, in either event, is experienced
in
serving as an arbitrator in disputes between employers and employees, which
list
shall be provided by the main Portland, Oregon office of the American
Arbitration Association (“AAA”) or of the Federal Mediation and Conciliation
Service. If, within three business days of the parties’ receipt of such list,
the parties are unable to agree upon an arbitrator from the list, then the
parties shall each strike names alternatively from the list, with the first
to
strike being determined by the flip of a coin. After each party has had four
strikes, the remaining name on the list shall be the arbitrator. If such person
is unable to serve for any reason, the parties shall repeat this process until
an arbitrator is selected.
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7.2.
Unless the parties agree otherwise, within 120 days of the selection of the
arbitrator, a hearing shall be conducted before such arbitrator at a time and
a
place in Portland, Oregon agreed upon by the parties. In the event the parties
are unable to agree upon the time or place of the arbitration, the time and
place within Portland, Oregon shall be designated by the arbitrator after
consultation with the parties. Within 30 days of the conclusion of the
arbitration hearing, the arbitrator shall issue an award, accompanied by a
written decision explaining the basis for the arbitrator’s award.
7.3.
In
any arbitration hereunder, Calypte shall pay all administrative fees of the
arbitration and all fees of the arbitrator. Each party shall pay its own
attorneys’ fees, costs, and expenses, unless the arbitrator orders otherwise.
The prevailing party in such arbitration, as determined by the arbitrator,
and
in any enforcement or other court proceedings, shall be entitled, to the extent
permitted by law, to reimbursement from the other party for all of the
prevailing party’s costs (including but not limited to the arbitrator’s
compensation), expenses, and attorneys’ fees. The arbitrator shall have no
authority to add to or to modify this Agreement, shall apply all applicable
law,
and shall have no lesser and no greater remedial authority than would a court
of
law resolving the same claim or controversy. The arbitrator shall, upon an
appropriate motion, dismiss any claim without an evidentiary hearing if the
party bringing the motion establishes that it would be entitled to summary
judgement if the matter had been pursued in court litigation. The parties shall
be entitled to reasonable discovery subject to the discretion of the
arbitrator.
7.4.
The
decision of the arbitrator shall be final, binding, and non-appealable, except
as otherwise permitted by law, and may be enforced as a final judgment in any
court of competent jurisdiction.
7.5.
This
Agreement to resolve any disputes by arbitration shall extend to claims against
any parent, subsidiary, or affiliate of each party, and, when acting within
such
capacity, any officer, director, shareholder, employee or agent of each party,
or of any of the above, and shall apply as well to claims arising out of state
and federal statutes and local ordinances as well as to claims arising under
the
common law or under this Agreement. This Agreement, however, shall not apply
to
claims for workers’ compensation or unemployment compensation
benefits.
7.6.
Notwithstanding the foregoing, and unless otherwise agreed between the parties,
either party may, in an appropriate matter, apply to a court for provisional
relief, including a temporary restraining order or preliminary injunction,
on
the ground that the arbitration award to which the applicant may be entitled
may
be rendered ineffectual without provisional relief.
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7.7.
Any
arbitration hereunder shall be conducted in accordance with the employment
rules
and procedures of the AAA then in effect; provided, however, that, in the event
of any inconsistency between the rules and procedures of the AAA and the terms
of this Agreement, the terms of this Agreement shall prevail.
7.8.
If
any of the provisions of this Section 7 are determined to be unlawful or
otherwise unenforceable, in whole or in part, such determination shall not
affect the validity of the remainder of this Section 7, and this Section 7
shall
be reformed to the extent necessary to carry out its provisions to the greatest
extent possible and to insure that the resolution of all conflicts between
the
parties, including those arising out of statutory claims, shall be resolved
by
neutral, binding arbitration. If a court should find that the provisions of
this
Section 7 are not absolutely binding, then the parties intend any arbitration
decision and award to be fully admissible in evidence in any subsequent action,
given great weight by any finder of fact, and treated as determinative to the
maximum extent permitted by law.
ARTICLE
8 - MISCELLANEOUS
8.1.
Withholding.
All sums
payable to the Employee hereunder will be reduced by all federal, state, local
and other withholdings and similar taxes and payments required by applicable
law. Notwithstanding the foregoing, the Employee represents and warrants that
he
is a resident of the United Kingdom and may not be subject to U.S. withholding
taxes. The Employee shall provide Calypte with the appropriate tax form so
that
Calypte may discontinue withholding all or a portion of taxes otherwise required
to be withheld.
8.2.
Indemnification.
In the
event the Employee is made, or threatened to be made, a party to any legal
action or proceeding, whether civil or criminal, by reason of the fact that
the
Employee is or was an officer of Calypte, the Employee shall be indemnified
by
Calypte, and Calypte shall pay the Employee’s related expenses when and as
incurred, all to the fullest extent permitted by law but subject to all
conditions and requirements of applicable law.
8.3.
Cooperation
in Defense of Calypte.
If the
Employee, during the Term or thereafter, is served with any subpoena or other
compulsory judicial or administrative process calling for production of
confidential information or if the Employee is otherwise required by law or
regulations to disclose confidential information, the Employee will promptly,
before making any such production or disclosure, notify Calypte and provide
it
with such information as Calypte may reasonably request to take such action
as
Calypte deems necessary to protect its interests. The Employee agrees to
cooperate reasonably with Calypte, whether during the Term or thereafter, in
the
prosecution or defense of all threatened claims or actual litigation in which
Calypte is or may become a party, whether now pending or hereafter brought,
in
which the Employee has knowledge of relevant facts or issues. The Employee
shall
be promptly reimbursed out-of-pocket expenses due to cooperating with the
prosecution or defense of any litigation for Calypte.
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8.4.
Severable
Provisions.
The
provisions of this Agreement are separate and distinct, and if any provisions
are determined to be unenforceable, in whole or in part, the remaining
provisions, and the enforceable parts of any partially unenforceable provisions,
shall nevertheless be enforceable.
8.5.
Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon Calypte, its
successors and assigns, and upon the Employee and his heirs, executors,
administrators and legal representatives. The Company shall have the right
to
assign its rights and obligations under this Agreement to an entity which
acquires substantially all of the assets of the Company. The Employee may not
delegate his duties hereunder.
8.6.
Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original and all of which taken together constitutes one and the
same
instrument and in making proof hereof it shall not be necessary to produce
or
account for more than one such counterpart.
8.7.
Waiver.
Neither
party shall, by mere lapse of time, without giving notice or taking other action
hereunder, be deemed to have waived any breach by the other party of any of
the
provisions of this Agreement. Further, the waiver by either party of a
particular breach of this Agreement by the other shall neither be construed
as,
nor constitute a, continuing waiver of such breach or of other breaches by
the
same or any other provision of this Agreement.
8.8.
Governing
Law.
The
validity, interpretation, performance and enforcement of this Agreement shall
be
governed by the laws of the State of Oregon (without regard to the choice of
law
provisions of Oregon), but only to the extent no superseded by federal
law.
8.9.
Headings.
Section
and subsection headings do not constitute part of this Agreement. They are
included solely for convenience and reference, and they in no way define, limit,
or describe the scope of this Agreement or the intent of any of its
provisions.
8.10.
Integration.
This
Agreement, including any documents expressly incorporated into it by the terms
of this Agreement, constitutes the entire agreement between the parties and
supersedes all prior oral and written agreements, understandings, negotiations,
and discussions relating to the subject matter of this Agreement. With this
Agreement the parties rescind any previous employment agreements or arrangements
between themselves. Any supplement, modification, waiver, or termination of
this
Agreement is valid only if it is set forth in writing signed by both parties.
The waiver of any provision of this Agreement shall not constitute a waiver
of
any other provisions and, unless otherwise stated, shall not constitute a
continuing waiver.
8.11.
Notice.
Any
notice or other communication required or permitted under this Agreement shall
be in writing and shall be deemed to have been given (i) if personally
delivered, when so delivered, (ii) if mailed, two days after having been placed
in the United States mail, registered or certified, postage prepaid, addressed
to the party to whom it is directed at the address listed below or (iii) if
given by facsimile, when the notice is transmitted to the facsimile number
specified below, and the appropriate answerback or telephonic confirmation
is
received:
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If
to
Calypte:
Calypte
Biomedical Corporation
00000
XX
Xxxxx Xxxxxx Xxxxx Xxxx
Xxxxxxxx,
XX 00000
Attention:
Corporate Secretary
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
If
to
the Employee:
Mr.
Xxx
Xxxxxx
Xxxxxx
Xxxx
Xxxxxx
Xxxx
Xxxxxxxxxx,
XX0 0XX
XX.
Telephone:
x00 0000 000000
In
order
for a party to change its address or other information for the purpose of this
section, the party must first provide notice of that change in the manner
required by this section.
EACH
PARTY ACKNOWLEDGES that it has had an opportunity to negotiate, carefully
consider, and receive advice on the terms of this Agreement before signing
it.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGES FOLLOW]
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as
of the date and year set forth below.
|
Calypte
Biomedical Corporation
|
||||
| Date: |
12
June 2008
|
By:
|
/s/ Xxxxx X. Xxxx | |
|
Name:
Xx. Xxxxx X. Xxxx
|
||||
|
Title:
Chairman
|
||||
| Date: |
12/06/08
|
By:
|
/s/ Xxx Xxxxxx | |
|
Name:
Mr. Xxx Xxxxxx
|
||||
|
Title:
Employee
|
||||
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