EXHIBIT 10.44
EMPLOYMENT AGREEMENT
AGREEMENT made and entered into of December 17, 1997 (the "Effective
Date"), between Calypte Biomedical Corporation, a California corporation with
its principal office at 0000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx, 00000 (the
"Company") and Xxxx X. XxXxxxxx whose residence is 0000 Xxxxxxx Xxx, Xxx Xxxx,
XX 00000 (the "Executive").
WITNESSETH
WHEREAS, the Company desires to induce the Executive to assume the
additional responsibility of Chief Operating Officer, and to also remain as its
Chief Financial Officer and Vice President; and
WHEREAS, Executive desires to accept such employment with the Company upon
and subject to the terms herein provided.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
and undertakings herein set forth, the parties hereto covenant and agree as
follows:
Section 1. Term. Executive's employment under this Agreement shall begin
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December 17, 1997. Unless terminated as provided in Section 8, this Agreement
shall remain in effect until December 17, 2000.
Section 2. Compensation. The Company will pay Executive for his services
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a base salary at an initial annual rate of One Hundred Forty Thousand Dollars
($140,000) (the "Base Compensation") payable in accordance with normal Company
practice, but in any event not less often than monthly, subject only to such
payroll withholding deductions as are required by law. Executive's Base
Compensation shall be increased to One Hundred Fifty Thousand ($150,000) upon
approval of the urine Western blot by the FDA. The Executive's salary shall be
adjusted in accordance with normal merit increases consistent with Company's
policy with regard to senior management. Xx. XxXxxxxx is also eligible for a 40%
bonus under the Company's bonus plan and shall be entitled to vacation and other
benefits provided to the Company's employees generally.
Section 3. Office and Duties. Executive shall have the duties of Chief
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Operating Officer and Chief Financial Officer and Vice President. Executive
shall have the co-responsibility with the CEO, subject to the Chief Executive
Officer, for overseeing the operational and financial activities and of the
Company. Executive covenants and agrees that during the term of this agreement
he will devote all of his working time, attention, and efforts to the
performance of his duties hereunder and will not engage in any other employment,
business activities, or serve on any boards of directors without the prior
approval of the CEO.
Section 4. Expenses. Executive shall be entitled to reimburse for
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business expenses incurred by him in connection with the performance of his
duties hereunder upon receipt of vouchers therefore in accordance with such
procedures as the Company has heretofore or may hereafter establish. Executive
shall also be entitled to reimbursement for the cost of a corporate apartment.
Reimbursement for such apartment shall be increased sufficiently to reimburse
Executive for the taxes owed relating to the apartment expense.
Section 5. Vacation During Employment. Executive shall be entitled to
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four weeks vacation each year.
Section 6. Additional Benefits. To the extent he is otherwise eligible,
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Executive and his qualified dependents shall be entitled to participate in all
group insurance programs, retirements plans, profit sharing plans or other
fringe benefit plans which the Company in its sole and absolute discretion
makes available generally to its employees, provided, however, nothing herein
shall require the Company to establish or maintain any such program or plan.
Section 7. Equity Ownership. In addition to the 45,000 options previously
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granted, the Executive shall be granted: a) additional incentive stock options
to purchase 30,000 shares of Common Stock at $3.625 to continue to serve as the
Company's Chief Financial Officer, and b) an additional 50,000 incentive stock
options at $3.625 to serve as the Company's Chief Operating Officer. The grants
of stock options for the Executive to serve as Chief Operating Officer and those
granted to serve as CFO shall be independent of each another. In the event the
Executive ceases to serve in one capacity, it will not effect the vesting of
stock options granted for the other capacity. All new grants shall be subject to
the terms and conditions of the Company's 1991 Stock Option Plan. Such options
shall have a term of ten (10) years and shall vest on a monthly basis over a 48
month period beginning as of the Effective Date. In the event that a Change in
Control (as defined below) shall occur, all unvested options (current and any
future options that may be granted) held be Executive shall become vested and
fully exercisable by Executive For the purposes of this Agreement, Change in
Control shall mean the sale or merger of the Company in which more than 50% of
the voting control of the Company is transferred to the acquiring or purchasing
entity.
Section 8. Termination of Employment. Notwithstanding any other provision
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of this Agreement Executive's employment may be terminated under the following
conditions:
(a) Death. Executive's employment shall terminate immediately in the
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event of Executive's death during the term of his employment, in which event
this Agreement shall terminate without further obligation to Executive's legal
representative under this Agreement other than those obligations accrued
hereunder as of the date of his death. Vesting of any and all unvested stock
options shall cease as of the date the Executive's death.
(b) Disability. The Company may terminate this Agreement after having
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established the Executive's Disability, by giving the Executive written notice
of its intention to terminate his employment. For purposes of this Agreement,
the term "Disability" shall mean an injury or illness which prevents the
Executive from substantially performing the duties and responsibilities for a
period of 120 days. Vesting of any and all unvested stock options shall cease
as of the date the Executive is terminated for Disability.
(c) Involuntary Termination. The Company may terminate the Executive's
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employment at any time during the term of this Agreement. In the event that the
employment of the Executive is terminated by the Company, the Company shall
continue to pay Executive his Base Compensation for a period of 6 months and all
stock options that would have vested during the term of this agreement (as
defined in Section 1 above) shall become fully vested. In addition, the
Executive shall receive health, dental and life insurance coverage for three
months following the termination date, any accrued salary, expense
reimbursement, accrued vacation and any other such compensation, if any, which
is applicable and is generally required to be paid to a terminating Executive.
(d) Voluntary Termination. The Executive may voluntarily terminate his
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employment at any time, in which event he shall receive no severance pay other
than accrued salary, vacation and any other such compensation, if any, which is
applicable and is generally required to be paid to a terminating Executive.
Vesting of any and all unvested stock options shall cease as of the date the
Executive voluntarily terminates his employment.
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(e) For Cause. The Company may terminate the Executive for Cause. If
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terminated for Cause, the Company shall pay Executive his Base Compensation
through the date of termination. In addition, the vesting of stock options shall
cease as of the date of termination and the Company shall have no further
obligations to the Executive. The term "Cause" shall mean 1) acts of dishonesty
or misconduct, 2) repeated violations of Company policies, or 3) failure to
perform his duties following a written warning from the Company's CEO or Board
of Directors, or 4) breach of any term of this Agreement.
Section 9. No Conflict. Executive represents and warrants to the Company
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that he is not now under any obligations to any person, firm or corporation, and
has no other interest which is inconsistent or in conflict with this Agreement,
or which would prevent, limit or impair, in any way, the performance by him of
any of the convenants or his duties in his said employment.
Section 10. Notices. Notices and all other communications contemplated by
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this Agreement shall be in writing and shall be deemed to have been duly given
when personally delivered or when mailed by U.S. registered or certified mail,
return receipt requested and postage prepaid.
Section 11. Miscellaneous Provisions.
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(a) No Duty to Mitigate. The Executive shall not be required to mitigate
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the amount of any payment contemplated by this Agreement (whether by seeking new
employment or in any other manner), nor shall any such payment be reduced by any
earnings that the Executive may receive from any other source.
(b) Waiver. No provision of this Agreement shall be modified, waived or
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discharged unless the modification, waiver or discharge is agreed to in writing
and signed by the Executive and by either the CEO or Board of Directors. No
waiver by either party of any breach of, or of compliance with, any condition or
provision of this Agreement by the other party shall be considered a waiver of
any other condition or provision or of the same condition or provision at
another time.
(c) Entire Agreement. This Agreement will replace any existing employment
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agreement between the Executive and the Company. However, no agreements,
representations or understandings (whether oral or written and whether express
or implied) which are not expressly set forth in this Agreement have been made
or entered into by either party with respect to the subject matter hereof.
(d) Governing Law. The validity, interpretation, construction and
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performance of this Agreement shall be governed by laws of the State of
California.
(e) Severability. The invalidity or unenforceability of any provision or
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provisions of this Agreement shall not affect the validity or enforceability of
any other provision hereof, which shall remain in full force and effect.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by its duly authorized officer, as of the day and year first
above written.
EXECUTIVE CALYPTE BIOMEDICAL
CORPORATION
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Xxxx X. XxXxxxxx Xxxxxxx X. Xxxxxx
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