EXHIBIT 10.129
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Consulting Agreement") is effective as of
April 23,2003 ("Effective Date"), and is by and between CALYPTE BIOMEDICAL
CORP., a Delaware corporation, having its principal place of business at 0000
Xxxxxx Xxx Xxxx, Xxxxxxx, Xx. 00000 (hereinafter referred to as the "Company")
and JUNEBUG ENTERPRISES, having its principal place of business at 0000 Xxxxxxxx
Xxxx. Xxx. 000X, Xxxxxxx Xxxxx, Xx. 00000 (hereinafter referred to as the
"Consultant").
R E C I T A L S:
WHEREAS, the Company desires to obtain the services of Consultant as
an independent contractor to render consulting services to the Company under the
terms and conditions contained herein; and
WHEREAS, the Consultant desires to provide service as an independent
contractor to the Company under the terms and conditions contained herein;
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND
PROMISES AND OTHER GOOD AND VALUABLE CONSIDERATION, THE
RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, IT IS MUTUALLY AGREED
AS FOLLOWS:
A G R E E M E N T:
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1. GENERAL CONSULTING TERMS.
1.1 CONSULTING PERIOD. The Company hereby retains the Consultant, and
the Consultant hereby agrees to serve the Company for the period (the
"Consulting Period") beginning April 23, 2003 and ending on April 22, 2006.
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During the term of the within Consulting Agreement, Consultant
agrees to provide the services of Earvin "Magic" Xxxxxxx to fulfill all terms
and obligations held within this agreement beginning with but not limited to as
follows, to be available for eight (8) personal appearances annually on behalf
of the Company, subject to the Company's providing twenty (20) days written
notice as to the date, time, and location of the appearance. Attendance at two
of the board meetings will fulfill two (2) of the eight (8) personal appearances
and the production of one (1) public service announcement (PSA), as described in
Section 1.2 hereinbelow, will fulfill one (1) appearance. Appearances shall be
limited to a two (2) hour maximum time limit, per each appearance, not including
travel time to and from the scheduled appearance. The Company agrees to provide
first class travel arrangements, hotel accommodations, and per diem for meals as
required, for each of the personal appearances provided for herein for
Consultant, and personal assistant.
1.2 CONSULTING OBLIGATION. During the Consulting Period, Consultant
will render such consulting and advising services as an independent contractor
to the Company, primarily in connection with the marketing (use of likeness in
product and company brochures, use as spokesperson in PSA program, trade shows,
marketing programs), distribution, and sale of the Company's products, as well
as meet with potential investors and government affairs support. It is
understood and agreed that the consulting services to be rendered and
appearances will be mutually agreed upon by the Consultant and the Company. All
uses of Consultant's name, likeness or image shall be subject to prior written
consent by consultant, which shall not be unreasonably withheld.
1.3 COMPENSATION. The Company agrees to pay to Consultant the sum of
$1,000,000 per annum payable as follows: $250,000 within seven (7) days of the
execution of the within Agreement; an additional $250,000 payable thirty (30)
days from the date of the initial payment; and the balance of $500,000 payable
in equal payments of $125,000
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quarterly thereafter on the last day of each quarter, which shall be determined
as of the Effective Date. For each year thereafter, Company agrees to pay
Consultant $250,000 quarterly, payable on the first day of each quarter.
Additionally, the Company further agrees to donate to the
Xxxxx Xxxxxxx Foundation, Inc. ("MJF") 2,000,000 shares of fully paid
non-assessable common stock for the initial year of the term of the Agreement
within 30 days of the signing of this agreement and, thereafter, an additional
2,000,000 shares of common stock for the second year, and a further 2,000,000
shares for the third year of the Agreement, which also shall be issued within
30days from the start of each additional year of the contract, for an aggregate
of 6,000,000 shares, which shares are unregistered shares that will contain
cost-free best efforts registration rights by the Company upon the request of
MJF, with the further understanding that MJF will fully cooperate with the
Company in preparing and filing a Registration Statement for the shares of stock
referred to herein, if necessary, and will indemnify the Company from any
liabilities with respect to information provided by MJF to the Company with
respect to the registration of the shares herein.
Consultant (Earvin Xxxxx Xxxxxxx) will serve as a Director of
the Company for as long as the within Agreement is in effect and that he will
accept his election and/or appointment to the Board of the Company and attend,
in person, a minimum of two (2) Board Meetings per year, one of which will be
the Annual Meeting of Stockholders of the Company. Additionally consultant
agrees to make his best efforts to attend at least one of the remaining board
meetings by telephone. Additionally, Consultant understands that the Company
will be required to file the appropriate disclosure information with the
Securities and Exchange Commission and issue a Press Release with respect to the
material terms of the within Agreement. Consultant further agrees that he will
not at any time during the entire length of this agreement seek any form of
compensation for the above position.
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2. NOTICES.
All notices, requests, consents and other communications required or
permitted to be given hereunder, shall be in writing and shall be deemed to have
been duly given if delivered personally or sent by prepaid telegram, or mailed
first-class, postage prepaid, by registered or certified mail (notices sent by
telegram or mailed shall be deemed to have been given on the date sent), to the
address stated in the within Consulting Agreement or to such other address as
either party shall designate by notice in writing to the other in accordance
herewith.
3. TERMINATION.
The Consulting Period shall commence on April23, 2003 and shall
terminate on April 22, 2006. The parties agree that the within Agreement may be
terminated at the option of both parties, thirty (30) days prior to the
expiration date of April 22, 2006 by either party providing written notice to
terminate the Agreement. In the event that Company terminates this agreement in
absence of an event of breach by Consultant, the Company's obligation to pay the
Compensation, as described in Sec. 1.3, shall survive such termination. In the
event that Consultant can no longer perform his duties or obligations to the
Company for reasons specified below, then Consultant agrees to return a Pro Rata
portion of both his salary and stock compensation personally, or thru his
estate, to reimburse Company for that portion of his contract that Consultant
was paid for but not able to continue the performance of his duties, to be
calculated on a per day annual basis.
It is expressly understood and agreed that the terms of this
Agreement, may be terminated by the Company prior to April 22, 2006 upon the
occurrence of any of the following events:
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(a) Automatically and without notice upon the death of the Consultant;
it is also understood that Consultant will be entitled to pro rata Consulting
Fee which will be payable to his estate;
(b) Persistent absenteeism on the part of the Consultant, which in the
reasonable judgment of the Board of Directors of the Company is having or will
have a material adverse effect on the performance of the Consultant's duties
under this Agreement;
(c) Deliberate and willful failure to perform normal Consulting
services and duties required of Consultant pursuant to this Agreement, except if
the performance of such duties or services would result in a violation of
Consultant's fiduciary responsibility to the Company and its shareholders as a
Director or is in a violation of applicable laws;
(d) Any material and willful act or failure to act, which in the
reasonable opinion of the Board, is in bad faith and to the material detriment
of the Company; (e) Conviction of a felony involving moral turpitude or
dishonesty; and (f) Fraudulent misconduct of the Consultant.
4. PROPRIETARY INFORMATION.
Consultant shall keep confidential, except as the Company may otherwise
consent in writing, and not disclose or make any use of except for the benefit
of the Company, at any time either during or subsequent to the Consulting
Period, any Proprietary Information (defined hereinafter) which it or he may
produce, obtain or otherwise acquire during the course of providing consulting
services. As used herein, "Proprietary Information" shall include any trade
secrets, confidential information, knowledge, data or other information of the
Company relating to products, processes, know-how, designs, formulas, test
products, procedures, and results, customer lists, business plans, marketing
plans and strategies, and pricing strategies, or other subject matter pertaining
to any business of the Company for any of its clients, customers, consultants,
licensees or affiliates. In the event of the termination of
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Consultant's services for any reason whatsoever, Consultant shall promptly
return all records, materials, equipment, drawings and the like pertaining to
any Proprietary Information within its possession of the possession of any of
its employees.
5. INDEPENDENT CONTRACTOR.
In all work covered by this Consulting Agreement, Consultant shall act
as and be an independent contractor (and not an employee of the Company) and,
except as otherwise provided for herein, shall be solely liable for all expenses
and labor in connection with providing consulting services. Consultant shall
control any and all of his/her employees, and Consultant shall be responsible
for insuring that any and all of his/her employees comply with the provisions of
Section 4 above in the same manner as if they were bound by this Consulting
Agreement.
6. GENERAL PROVISIONS.
6.1 GOVERNING LAW. This Consulting Agreement shall be governed by and
construed and enforced in accordance with the
laws of the State of California .
6.2 ENTIRE AGREEMENT. This Consulting Agreement sets forth the entire
agreement and understanding of the parties relating to the subject matter
hereof. No representation, promise or inducements has been made by either party
that is not embodied in this Consulting Agreement, and neither party shall be
bound by or liable for any alleged representation, promise or inducement not so
set forth.
6.3 MODIFICATION. This Consulting Agreement may be amended, modified,
superseded, cancelled, renewed or extended, and the terms or covenants hereof
may be waived, only by a written instrument executed by both of the parties
hereto or, in the case of a waiver, by the party waiving compliance.
6.4 SEVERANCE. If any provision of this Consulting Agreement is or
becomes invalid, illegal or unenforceable, the remaining provisions shall remain
in full force and
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effect, and for the invalid, illegal or unenforceable provision shall be
substituted a valid, legal or enforceable provision which shall be as similar as
possible in economic and business objectives as intended by the parties.
6.5 RELATIONSHIP BETWEEN THE COMPANY AND CONSULTANT. Nothing in this
Consulting Agreement shall be construed to place the parties in a relationship
whereby either shall be considered to be the agent of the other for any purpose
whatsoever. Neither party is authorized to enter into any contract or assume any
obligation for the other, provided, however, the statements made hereinabove
shall not interfere or limit Consultant's duties, rights, or obligations as a
director of the Company. Nothing in this Consulting Agreement shall be construed
to establish a relationship between the Company and Consultant as partners or
joint ventures.
6.6 COMPETING PRODUCTS. During the term of this Agreement, neither
directly nor through any third party, Consultant shall not promote, market, or
advertise, without prior written consent permission from Company, which shall
not be unreasonably withheld, any in vitro diagnostic test for the detection of
HIV antibodies.
6.7 Company will exert its best efforts to assist MJF in its
promotion, marketing, and fundraising campaigns, including but not limited to;
print MJF contact information on HIV testing brochures, complimentary HIV
testing kits at Health fairs, complimentary HIV testing kits to health clinics
affiliated with consultant, PSA programs shall mention MJF, including contact
information, and opportunities for Company and/or its investors to co-sponsor
and/or donate funds to MJF and its programs, within reason, as long as the
Company is not in any violation of Foreign and/or Domestic regulatory
requirements, limitations, and/or restrictions, nor hinders the Company from
entering into any future agreements, or partnerships, with potential
Pharmaceutical partners.
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6.8 Consultant warrants and represents that Consultant has been
represented by counsel, and that Consultant is aware that the shares of stock in
the Company for services rendered or to be rendered are required to be
registered, and that Consultant is subject to all applicable rules and
regulations that govern the purchase or sale of stock in the Company by an
insider and that, as the within Agreement is a material event, the Company will
be required to issue a Press Release and file a Form 8-K disclosure report with
the SEC.
6.9 In the event that notice is required under the within Agreement:
If to Company, at:
CALYPTE BIOMEDICAL CORP.
0000 Xxxxxx Xxx Xxxxxxx
Xxxxxxx, XX 00000
Attn: President
If to Consultant, at
JUNEBUG ENTERPRISES
0000 Xxxxxxxx Xxxx. Xxx. 000X
Xxxxxxx Xxxxx, Xx. 00000
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IN WITNESS WHEREOF, the parties hereto have executed this Consulting
Agreement on the day and year first above written.
CALYPTE BIOMEDICAL CORP.
By: /s/ XXXXXXX X. XXXXXXX
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XXXXXXX X. XXXXXXX
/s/ XXXXXX XXXXXXX JR.
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JUNEBUG ENTERPRISES
Consultant
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