EXHIBIT 10.60
CALYPTE BIOMEDICAL CORPORATION
0000 Xxxxxx Xxx Xxxxxxx
Xxxxxxx, XX 00000
October 18, 0000
Xxxxxxx Xxxxxx
Xxx 0000
Xxx Xxxxxx, XX 00000
Re: CONSULTING AGREEMENT WITH CALYPTE
Dear Xxxx:
Upon your signature at the end of this letter where indicated, this
letter will be the binding agreement (the "AGREEMENT"), effective as of October
18, 1999 (the "EFFECTIVE DATE"), between Calypte Biomedical Corporation
("CALYPTE") and you with respect to your provision of service as a consultant to
Calypte as provided in this letter; the Basic Retained Services described in
Section 1(a) hereof and any Additional Services defined in Section 1(b) hereof
are referred to herein collectively as the "SERVICES".
1. SERVICES.
(a) BASIC RETAINED SERVICES. Subject to the terms and
conditions of this Agreement, you hereby are retained by Calypte as a consultant
to Calypte from the Effective Date until terminated as provided herein, to
provide the following Services (the "BASIC RETAINED SERVICES") as follows (with
a "day of Services" being considered for such purposes as eight (8) hours, and
with travel time while on business for Calypte, and while travelling from your
home outside of California to Calypte's principal offices for purposes of
rendering such Basic Retained Services, in each case being counted as one-half
time):
(i) FULL-TIME CONSULTING SERVICES THROUGH
NOVEMBER 30, 1999. During the period commencing with the Effective Date through
and including November 30, 1999 (the "FULL-TIME PERIOD"), you will provide, on a
full-time basis, Basic Retained Services, as may be requested from time to time
during the term hereof orally or in writing by the President or Chief Executive
Officer of Calypte, or by any member of the Board: (A) to assist in any matters
pertaining to the transition to Calypte's newly-hired Chief Executive Officer of
the responsibilities you held immediately prior to the Effective Date in such
role, and (B) with respect to the following (the "STRATEGIC MATTERS"): (1) the
execution of a distribution agreement by Calypte with the government of China,
(2) the formation of a joint venture for the production of certain Calypte
products in China, (3) the renegotiation of the technology licensing agreement
between Calypte and New York University, (4) so long a Calypte holds an equity
interest in Pepgen Corporation ("PEPGEN"), and so long as you are so elected,
serving as a member of the Board of Directors of Pepgen and helping Pepgen to
develop a strategy intended to maximize the value of such equity interest asset
to Calypte, and (5) assisting Calypte with respect to potential merger and
acquisition opportunities, raising of additional capital, and other corporate
finance activities.
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October 18, 1999
Page 2
(ii) PART-TIME CONSULTING SERVICES FROM DECEMBER 1,
1999 THROUGH OCTOBER 18, 2000. During the period commencing with December 1,
1999 through and including October 18, 2000 (the "PART-TIME PERIOD"), you will
provide, on a part-time basis for an aggregate of five (5) days of Services per
calendar month during such, Basic Retained Services relating to Strategic
Matters, as may be requested from time to time during the term hereof orally or
in writing by the President or Chief Executive Officer of Calypte, or by any
member of the Board.
(b) ADDITIONAL SERVICES. During the period December 1, 1999
through and including October 18, 1999, you will render such days of Services
beyond such five-day minimum set forth in Section 2(b)(ii) hereof (the
"ADDITIONAL SERVICES"), as you may agree with Calypte upon Calypte's reasonable
and good faith request to you, in each case with respect to Calypte's business,
as may be requested from time to time during the term hereof orally or in
writing by the Board or by the President or Chief Executive Officer of Calypte.
(c) CERTAIN CONDITIONS CONCERNING SERVICE AS A DIRECTOR OF
CALYPTE. You hereby agree that you will serve as a member of the Board if so
asked and for so long as you are duly elected thereto. The number of days you
spend rendering Services to Calypte hereunder 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. Any compensation you may receive for your services as a Director of
Calypte, such as indemnification, stock, and/or stock options and other benefits
from the Company as are made available from time to time by the Company to other
Directors, will be separate from this Agreement.
(d) SCHEDULING; LOCATION. The days upon which Calypte will
require your Services will be based upon dates and times mutually agreeable
between you and Calypte. Calypte will provide as much advance notice as possible
to you of the dates and times required, and you will make every reasonable
effort to make yourself available during such dates. Calypte will not require
you to render such services at dates, times or places that would reasonably
interfere with other work commitments you may have. You may render the Services
by telephone and/or e-mail, and/or on-site at Calypte's headquarters in the San
Francisco Bay Area, and/or at other locations, as determined in good faith by
Calypte after consultation with you as to mutual convenience and the particular
Services required.
(e) REPORTING. You will report to, and Calypte may give you
direction through any of, the President and Chief Executive Officer, and the
Board.
(f) OTHER ACTIVITIES. Calypte acknowledges and agrees that,
while you will devote such time and effort as is necessary to discharge your
duties hereunder, you will not be providing your full-time services to Calypte
beginning as of December 1, 1999, and that you may consult with or become an
employee of other entities as you wish (including but not limited to accepting
full time employment), subject to your obligations as to confidential and
proprietary information of Calypte as set forth in this Agreement.
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October 18, 1999
Page 3
(g) NONASSIGNABILITY OF YOUR SERVICES. You may not assign or
subcontract your duties or rights under this Agreement without the prior written
consent of Calypte signed by its President or Chief Executive Officer.
2. COMPENSATION; EXPENSE REIMBURSEMENT; CONTINUED VESTING OF
STOCK OPTION.
(a) RETAINER FOR BASIC RETAINED SERVICES. Calypte will pay you
a retainer, in cash, at the beginning of each calendar month commencing with the
month of October, 1999 (provided that such consulting fee will be paid no later
than October 19, 1999 for the balance of such month)
(i) DURING FULL-TIME PERIOD. In the amount of
$7,258.00 for the period October 18, 1999 through and including October 31,
1999, and $18,750.00 for the month of November, 1999; and
(ii) During Part-Time Period. In the amount of
five thousand dollars ($5,000.00), which is one thousand dollars ($1,000.00) per
day of such Basic Retained Services.
(b) PAYMENT FOR ADDITIONAL SERVICES. In addition, Calypte will
pay you a consulting fee in cash for any Additional Services you may render,
within thirty (30) days after the close of each calendar month during which you
render such Additional Services, at the rate of one thousand dollars ($1,000.00)
per day of such Additional Services.
(c) EXPENSE REIMBURSEMENT; LODGING AND AUTOMOBILE; HEALTH
INSURANCE. Calypte will reimburse you for all reasonable, ordinary and necessary
travel and entertainment expenses incurred by you in conjunction with your
services to Calypte hereunder. While you are rendering Services in the San
Francisco Bay Area during the Full-Time Period, Calypte will provide lodging for
you, or will reimburse you for lodging, in a business hotel or business traveler
long-term stay facility reasonably convenient to Calypte's offices. Any such
expense will be consistent with Calypte's then-standard reimbursement policy,
and, as applicable, travel policy, and will be made as to a given expense only
if you have submitted commercially customary support documentation to Calypte
therefor. Calypte will reimburse you for the amount of any premiums you pay
during the term hereof for healthcare insurance for you and your family to the
extent you are not covered for such healthcare insurance at Calypte's cost under
a Calypte healthcare insurance plan.
(d) CONTINUED VESTING OF OPTION. Pursuant to Section 8 of the
Employment Agreement dated as of October 28, 1998 between you and Calypte (the
"EMPLOYMENT AGREEMENT"), Section 7(d) of your Employment Agreement hereby is
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 equal to six months of his then current salary. 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
Xxxxxxx Xxxxxx
October 18, 1999
Page 4
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 600,000 shares of Common
Stock of the Company, originally vesting over a 24-month period
beginning October 27, 1998, at the rate of 25,000 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 five thousand (5,000) 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. 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
Consulting Agreement with Calypte dated as of October 18, 1999."
3. OUR RELATIONSHIP.
(a) INDEPENDENT CONTRACTOR. In performance of your services
under this Agreement, you will be an independent contractor of, and are not an
agent or employee of, and have no authority to bind, Calypte by contract or
otherwise.
(b) EMPLOYMENT TAXES AND BENEFITS. You will report as
self-employment income all compensation you received pursuant to this Agreement,
including the fair market value of the Shares. You will indemnify Calypte and
hold it harmless from and against all claims, damages, losses and expenses,
relating to any obligation imposed by law on Calypte to pay any withholding
taxes, social security (except for employer's share of social security, if any),
unemployment or disability insurance, or similar items in connection with
compensation received by you pursuant to this Agreement. You will not be
entitled to receive any vacation or illness payments, or to participate in any
plans, arrangements, or distributions by Calypte pertaining to any bonus, stock
option, profit sharing, insurance or similar benefits for Calypte's employees,
except as provided herein or as otherwise specifically approved by the Board.
(c) NO REMUNERATION AS TO PRODUCTS. You will receive no
royalty or other remuneration on the production or distribution of any products
developed by the Company or by you in connection with or based upon the
Services.
4. INDEMNIFICATION.
(a) BY YOU. To the extent determined by a tribunal of
competent jurisdiction (arbitral or judicial), not subject to further appeal,
you will indemnify Calypte and hold it harmless from and against all claims,
damages, losses and expenses, including court costs and reasonable fees and
expenses of attorneys, expert witnesses, and other professionals, arising out of
or resulting from:
(i) Any action by a third party against Calypte
to the extent based on any claim that any Services performed under this
Agreement, or their results, to your actual
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October 18, 1999
Page 5
knowledge (A) infringe a patent, trademark, copyright or other proprietary
right, and/or (B) violate a trade secret of such third party; and
(ii) Any action by a third party to the extent
based on any conduct by you in performing Services under this Agreement which
results in any of the following and for which such tribunal determines you to be
liable to Calypte under applicable law: (A) any bodily injury, sickness, disease
or death; (B) any injury or destruction to tangible or intangible property
(including computer programs and data) or any loss of use resulting therefrom;
or (C) any violation of any statute, ordinance, or regulation.
(b) BY CALYPTE. To the extent legally permitted, and not in
derogation of your obligations under Section 4(a) hereof: (i) you will be
considered as subject to the indemnity provisions of Calypte's Certificate of
Incorporation and Bylaws, a copy of which will be furnished to you upon request,
and (ii) Calypte will indemnify you and hold you harmless from and against all
claims, damages, losses and expenses, including court costs and reasonable fees
and expenses of attorneys, expert witnesses, and other professionals, arising
out of or resulting from any action by a third party against Calypte or you, or
both, in connection with or based upon the performance by you of the Services,
or their result.
5. PROPERTY OF CALYPTE.
(a) DEFINITIONS. For the purposes of this Agreement:
(i) "INVENTIONS" means any and all inventions,
ideas, designs, circuits, schematics, formulas, algorithms, trade secrets, works
of authorship, mask works, developments, methods, processes, techniques,
improvements, and related know-how in the field of research, development and
commercialization in which Calypte is engaged, and which are made by you, alone
or in combination with others, which result from or relate to the services you
perform for Calypte hereunder, and whether made on behalf of Calypte under this
Agreement, or with the use of or as a result of access to Confidential
Information, including but not limited to any derivative work which constitutes
an improvement or modification to any tangible form of Confidential Information,
as hereinafter defined, such as any design, drawing, or product that embodies
Confidential Information.
(ii) "DESIGNS AND MATERIALS" means all designs,
discoveries, inventions, products, computer programs, procedures, improvements,
developments, drawings, notes, documents, information and materials made,
conceived or developed by you alone or with others which result from or relate
to the services you perform for Calypte hereunder.
(iii) "MORAL RIGHTS" means any right to claim
authorship of a work, any right to object to any distortion or other
modification of a work, and any similar right, existing under the law of any
country in the world, or under any treaty.
(b) ASSIGNMENT OF OWNERSHIP. You agree that all the
Inventions, Designs and Materials that (1) are developed using equipment,
supplies, facilities or trade secrets of Calypte, (2) result from work performed
by you for Calypte or (3) relate to Calypte's business or current or anticipated
research and development, will be the sole and exclusive property of Calypte.
You hereby irrevocably transfer and assign any and all of your right, title, and
interest in and to
Xxxxxxx Xxxxxx
October 18, 1999
Page 6
Inventions, Designs and Materials, including but not limited to all patent
rights, copyrights, trademarks and trade secrets, to Calypte. All Inventions,
Designs and Materials will be the sole property of Calypte and Calypte will have
the sole right to determine the treatment of any Inventions, Designs and
Materials, including the right to keep them as trade secrets, to file and
execute patent applications on them, to use and disclose them without prior
patent application, to file registrations for copyright or trademark on them in
its own name, or to follow any other procedure that Calypte deems appropriate.
You acknowledge that copyrightable works prepared by you within the scope of
your service hereunder are "works for hire" under the federal Copyright Act and
that Calypte will be considered the author thereof. If Calypte files an original
United States patent application covering any invention of which you are a named
inventor, you will receive in each case from Calypte an inventor's fee of One
Hundred Dollars $100.00 in cash as full compensation therefor. You will:
(i) Disclose promptly in writing to Calypte all
Inventions, Designs and Materials; and
(ii) Cooperate with and assist Calypte to apply
for, and to execute any applications and/or assignments reasonably necessary to
obtain, any patent, copyright, trademark or other statutory protection for
Inventions, Designs and Materials in Calypte's name as Calypte deems
appropriate, provided that Calypte will reimburse you for any reasonable costs
incurred by you, and your normal billing rate for reasonable time incurred, in
connection therewith; and
(iii) Otherwise treat all Inventions, Designs and
Materials as "Confidential Information," as defined below. Your obligations to
so disclose, assist, and execute will survive until the earlier of your death or
disability or five years following any expiration or termination of this
Agreement.
(c) MORAL RIGHTS WAIVER. You hereby irrevocably transfer and
assign to Calypte any and all Moral Rights that you may have in any services you
render hereunder, or in any Inventions, Designs and Materials or products of
Calypte. You also hereby forever waive and agree never to assert against
Calypte, its successors or licensees any and all Moral Rights you may have in
any such services, Inventions, Designs and Materials or such products, even
after expiration or termination of this Agreement.
(d) COMPANY PROPERTY. All papers, records, data, notes,
drawings, files, documents, samples, devices, products, equipment, and other
materials, including copies and in whatever form, relating to the business of
Calypte that you possess or create as a result of your service to Calypte,
whether or not confidential, are the sole and exclusive property of Calypte.
6. CONFIDENTIAL INFORMATION. You acknowledge that you will
acquire information and materials from Calypte and knowledge about the business,
products, programming techniques, experimental work, customers, clients and
suppliers of Calypte and that all such knowledge, information and materials
acquired, the existence, terms and conditions of this Agreement, and the Designs
and Materials, are and will be the trade secrets and confidential and
proprietary information of Calypte (collectively "CONFIDENTIAL INFORMATION").
Confidential Information will not include, however, any information which is or
becomes part of the public domain through no fault of your own or that Calypte
regularly gives to third parties without restriction on use or disclosure. You
will hold all such Confidential Information in strict confidence, and will not
Xxxxxxx Xxxxxx
October 18, 1999
Page 7
disclose it to others or use it in any way, commercially or otherwise, except in
performing your services hereunder, and will not allow any unauthorized person
access to it, either before or after expiration or termination of this
Agreement. You will take all action reasonably necessary and satisfactory to
protect the confidentiality of the Confidential Information in your possession,
including, without limitation, implementing and enforcing operating procedures
to minimize the possibility of unauthorized use or copying of the Confidential
Information.
7. TERM OF SERVICE; TERMINATION; EFFECT OF TERMINATION.
(a) TERM OF SERVICE. This Agreement 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) TERMINATION; EFFECT OF TERMINATION.
(i) TERMINATION. This Agreement will terminate
automatically upon the earliest of (A) your death, (B) such date as you
voluntary terminate service, by written notice to Calypte, or (C) the date upon
which Calypte terminates your service hereunder for cause by giving written
notice thereof to you, stating therein that such termination is for cause and
specifying in reasonable detail such cause. For purposes of this Agreement,
"cause" is defined as your willful failure to follow lawful and commercially
reasonable directives of the Board, and/or intentional damage to the tangible or
intangible property of Calypte, and/or conviction of a crime involving moral
turpitude, and/or the performance of any dishonest or fraudulent act which is or
would be, in each case as determined in good faith by the Board, materially
detrimental to the interest of Calypte and its other stockholders.
(ii) EFFECT OF TERMINATION. Upon termination of your
service with Calypte hereunder for any reason, Calypte will pay you all of your
accrued and unpaid expenses, if any, provided, as to a given expense, you have
submitted commercially customary support documentation to Calypte therefor. If
during the Full-Time Period this Agreement is terminated for any reason other
than your voluntary termination hereof or termination Calypte for cause, you
will not be obligated to return any portion of the retainer amount paid to you
under Section 2(a)(i) hereof for the relevant month in which such termination
occurs. If during the Part-Time Period you have rendered less than five (5) days
of service in a month during which this Agreement terminates, and the Agreement
is terminated for any reason other than your voluntary termination hereof or
termination Calypte for cause, you will not be obligated to return any portion
of the retainer amount paid to you under Section 2(a)(ii) hereof for such month.
If during the Full-Time Period this Agreement is terminated by you voluntarily,
or by Calypte for cause, you will, within thirty (30) days after the date of
such termination, repay to Calypte in cash an amount equal to $616.44 times the
number of days remaining in October, or November, as the case may be, after the
date of such termination. If during the Part-Time Period this Agreement is
terminated by you voluntarily, or by Calypte for cause, during a month for which
you already have been paid the monthly retainer by Calypte under Section
2(a)(ii) hereof, and if at the time of such termination you have rendered less
than five (5) days of Services in such month, you will, within thirty (30) days
after the date of such termination, repay to Calypte in cash an amount equal to
at $1,000.00 times the number of days of Services less than five that you did
render in
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October 18, 1999
Page 8
such month. Your obligations of confidentiality hereunder will survive any such
termination, and termination hereof will not have any effect on any other
binding agreement between Calypte and you except to the extent specifically so
stated in such other agreement or agreements. Your termination hereunder will
not be deemed to be a termination of all your services with Calypte, for
purposes of your Option, if you then are still serving Calypte as a consultant,
including service as a Director.
8. PRIOR CONTRACTS. You represent that except as disclosed in
writing to Calypte, (a) there are no other contracts to assign Inventions,
Designs or Materials that are, as of the Effective Date, in existence between
you and any other person or entity, and (b) as of the Effective Date, you have
no employment, consultancies or undertakings which would restrict or impair your
performance of this Agreement.
9. GENERAL. This Agreement may be executed in counterparts, each
of which will be deemed an original, but both of which together will constitute
one and the same instrument. This Agreement will be governed by the laws of the
State of California without regard to its body of law controlling conflict of
laws. This Agreement is the complete and exclusive agreement between you and
Calypte regarding the specific subject matter of this Agreement, which subject
matter relates solely to your rendering of services to Calypte as a consultant,
and not to any other binding agreement you may have with Calypte nor with
respect to your service as a Director of Calypte, and supersedes in their
entirety all prior agreements, understandings and communications, oral or
written, between us regarding such specific described subject matter. This
Agreement will be binding upon and inure to our respective successors and
assigns, and upon your heirs, executors and administrators, and may only be
amended by a writing signed by each of us or our respective successors, assigns
or authorized representatives.
We look forward to continuing to work with you, Xxxx, as part of our
team for the success of Calypte.
Sincerely,
/s/ XXXXX XXXXXXX
------------------------------------
Xxxxx Xxxxxxx
Chief Executive Officer
ACCEPTED AND AGREED:
/s/ XXXXXXX XXXXXX
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Xxxxxxx Xxxxxx
Date signed: October 18, 1999
