As filed with the Securities and Exchange Commission on July 24, 2002 Reg.
No. 33
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------------
CALYPTE BIOMEDICAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 06-1226727
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification No.)
1265 Harbor Parkway,
Alameda, California 94502
(510) 749-5100
(Address of principal executive offices)
------------------------------------------------
ADVISORY AND CONSULTING AGREEMENTS
(Full title of plan)
--------------------------------
Nancy E. Katz
President, Chief Executive Officer,
and Director
1265 Harbor Parkway,
Alameda, California 94502
(Name and address of agent for service)
(510) 749-5100
(Telephone number, including area code of agent for service)
Copy to:
Naccarato & Associates
19600 Fairchild, Suite 260
Irvine, CA 92612
(949) 851-9261
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Amount to be offering price Aggregate offering Amount of
Title of securities Registered per share (1) Price Registration fee
to be registered
- --------------------------- ------------------------ ------------------------ ------------------------- ------------------------
Common Stock 19,000,000 $0.03 $570,000 $52.44
($.001 par value)
- --------------------------- ------------------------ ------------------------ ------------------------- ------------------------
(1) Estimated solely for the purpose of determining the amount of registration
fee and pursuant to Rules 457(c) and 457 (h) of the General Rules and
Regulations under the Securities Act of 1993, based upon the issuance of
18,500,000 shares issuable upon exercise of warrants for consultants at $.015
per share and 500,000 shares issuable upon exercise of a warrant for a
consultant at $.03 per share.
1
PART I
INFORMATION REQUIRED IN THIS SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
*Information required by Part 1 to be contained in the Section 10(a) prospectus
is omitted from the registration statement in accordance with Rule 428 under the
Securities Act of 1933 and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Calypte Biomedical Corporation (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference herein:
(a) the Company's annual report on Form 10-K for the fiscal year
ended December 31, 2001 filed pursuant to Section 13 of the Exchange Act, file
number 000-20985;
(b) the Company's quarterly report on Form 10-Q for the quarter ended
March 31, 2002; and
(c) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A dated July 10, 1996, filed pursuant
to Section 12 of the Exchange Act, including any amendment or report filed for
the purpose of updating the description.
(d) any document filed by the Company with the Commission pursuant to
Sections 13(a), 13( c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof, but prior to the filing of a post-effective amendment to this
Registration Statement which Indicates that all shares of Common Stock
registered hereunder have been sold or that deregisters all such shares of
common Stock then remaining unsold, such documents being deemed to be
incorporated by reference herein and to be part hereof from the date of filing
of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Counsel acts as a legal consultant for the Company from time to time.
Item 6. Indemnification of Directors and Officers
Section 102 of the Delaware General Corporation Law allows a
corporation to eliminate the personal liability of directors of a corporation to
the corporation or to any of its stockholders for monetary damage for a breach
of his fiduciary duty as a director, except in the case where the director
breached his or her duty of loyalty, failed to act in good faith, engaged in
intentional misconduct or knowingly violated a law, authorized the payment of a
dividend or approved a stock repurchase in violation of Delaware corporate law
or obtained an improper personal benefit. Calypte's Certificate of Incorporation
contains a provision that eliminates directors' personal liability as set forth
above.
Section 145 of the Delaware General Corporation Law, as amended,
provides that a corporation may indemnify any person who was or is a party or is
threatened to be made a party
3
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that he
or she is or was a director, officer, employee or agent of the corporation or is
or was serving at its request in such capacity in another corporation or
business associated against expenses(including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him or
her in connection with such action, suit or proceeding if he or she acted in
good faith and in a manner he or she reasonably believed to be in or not opposed
to the best interests of the corporation and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his or her conduct was
unlawful.
Article VII of the Company's Amended and Restated Certificate of
Incorporation provides for the indemnification of its directors to the fullest
extent permitted by the Delaware General Corporation Law. This provision in the
Amended and Restated Certificate of Incorporation does not eliminate the
fiduciary duty of the directors, and, in appropriate circumstances, equitable
remedies such as injunctive or other forms of non-monetary relief will remain
available under Delaware Law. In addition, each director will continue to be
subject to liability for breach of the director's duty of loyalty to the Company
for acts or omissions not in good faith or involving intentional misconduct, for
knowing violations of law, for actions leading to improper personal benefit to
the director and for payment of dividens or approval of stock repurchases or
redemptions that are unlawful under Delaware law. The provision does not affect
a director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws. Article VI of the
Company's Bylaws provides for the indemnification of officers, directors and
third parties acting on behalf of the corporation to the full extent permitted
by Delaware law.
The Company has entered into Indemnification Agreements with its
executive officers and directors. The Indemnification Agreements provide the
Company's officers and directors with further indemnification to the maximum
extent permitted by the Delaware General Corporation Law.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The Exhibits to this registration statement are listed in the index
to Exhibits on page 9.
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
securities Act 1933:
4
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this Registration Statement:
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement; provided,
however, that paragraph (1)(i) and (1)(ii) do not apply if the information
required to be included in a post-effective amendment by those paragraph is
contained in periodic reports filed by the Company pursuant to Section 13 or
Section 15 (d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendments shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by mean of a post-effective amendment
any of the securities being registered hereunder that remain unsold at the
termination of the offering.
(b) The undersigned Company hereby undertakes that for purposes of determining
any liability under the Securities Act of 1933, each filing of the company's
annual report pursuant to Section 13 (a) or Section 15 (d) of the Securities and
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the above-described provisions or otherwise, the Company has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing a form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Alameda, State of California on July 23, 2002.
Calypte Biomedical Corporation
By /s/ Tony Cataldo
---------------------------------------------
Tony Cataldo, Executive Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Tony Cataldo, acting individually as his
attorney-in-fact, with full power of substitution and resubstitution, for him in
any and all capacities, to sign any and all amendments to this Registration
Statement, and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact full power and authority to do and perform each and every
act and thing requisite and necessary to be done in connection therewith as
fully to al intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signature Title Date
- ----------- ------------------------------- -------------
/s/ Nancy E. Katz President, Chief Executive Officer July 23, 2002
- ---------------------
Nancy E. Katz & Director
/s/ Tony Cataldo Executive Chairman of the July 23, 2002
- ---------------------
Tony Cataldo Board of Directors
/s/ Richard D. Brounstein Executive Vice President, July 23, 2002
- ------------------------- Chief Financial Officer and
Richard D. Brounstein Director
/s/ Paul Freiman Director July 23, 2002
- ---------------------
Paul Freiman
/s/ Julius R. Krevans, M.D. Director July 23, 2002
- ---------------------------
Julius R. Krevans, M.D.
/s/ Mark Novitch, M.D. Director July 23, 2002
- -------------------------------
Mark Novitch, M.D.
6
/s/ Zafar Randawa, Ph.D. Director July 23, 2002
- ------------------------
Zafar Randawa, Ph.D.
/s/ John J. DiPietro Director July 23, 2002
- --------------------
John J. DiPietro
Director
- ----------------
Martin Landau
INDEX TO EXHIBITS
Exhibit Sequentially
NO. Description Numbered Pages
- ---- ----------- --------------
4.1 Consulting Agreements
5.1 Opinion of Naccarato & Associates
23.1 Consent of KPMG LLP Independent Auditors
23.2 Consent of Naccarato & Associates (filed as part of Exhibit 5.1)
24.1 Power of Attorney (Page II-4)
7
Exhibit 4.1 Advisory and Consulting Agreement
Number of Shares and Options
----------------------------
4.1(a) 4,500,000
4.1(b) 2,500,000
4.1(c) 1,000,000
4.1(d) 2,500,000
4.1(e) 4,500,000
4.1(f) 2,000,000
4.1(g) 1,500,000
4.1(h) 500,000
8
Exhibit 4.1(a)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 9th day of May, 2002, between Calypte
Biomedical Corporation, a Delaware Corporation (the "Company"), of 1265 Harbor
Parkway, Alameda, CA 94502, and Peter Benz, 25 Longview, Hillsborough, CA 944010
("Consultant").
WHEREAS, THE Company desires the Consultant to provide consulting
services to the Company pursuant hereto and Consultant is agreeable to providing
such services.
NOW THEREFORE, in consideration of the premises and the mutual
promises set forth herein, the parties hereto agree as follows:
1. Consultant shall serve as a consultant to the Company on general
corporate matters, particularly related to shareholder
relations, and other projects as may be assigned by Tony
Cataldo, Executive Director of the Company on an as needed
basis.
2. Term: The Company shall be entitled to Consultant's services
for reasonable times when and to the extent requested by,
and subject to the direction of Mr. Cataldo. The term of this
Consulting Agreement began as of the date of this Agreement, and
shall terminate on September 9, 2002.
3. Reasonable travel and other expenses necessarily incurred by
Consultant to render such services, and approved in advance by
the Company, shall be reimbursed by the Company promptly upon
receipt of proper statements, including appropriate
documentation, with regard to the nature and amount of those
expenses. Those statements shall be furnished to the Company
monthly at the end of each calendar month in the Consulting
Period during which any such expenses are incurred. Company
shall pay expenses within fifteen (15) business days of the
receipt of a request with appropriate documentation.
4. In consideration for the services to be performed by Consultant,
the Consultant will receive a warrant to purchase four million,
five hundred thousand (4,500,000) shares of the common stock of
the Company at an exercise price of $0.015 cents per share the
warrant expire May 8, 2003.
5. It is the express intention of the parties that the Consultant
is an independent contractor and not an employee or agent of the
Company. Nothing in this agreement shall be interpreted or
construed as creating or establishing the relationship of
employer and employee between the Consultant and the Company.
Both parties acknowledge that the Consultant is not an employee
for state or federal tax purposes. The Consultant shall retain
the right to perform services for others during the term of this
agreement.
9
6. Neither this agreement nor any duties or obligations under this
agreement may be assigned by the Consultant without the prior
written consent of the Company.
7. This agreement may be terminated upon ten (10) days written
notice by either the Company or the Consultant.
8. Any notices to be given hereunder by either party to the other
may be given either by personal delivery in writing or by mail,
registered or certified, postage prepaid with return receipt
requested. Mailed notices shall be addressed to the parties at
the addressed appearing in the introductory paragraph of this
agreement, but each party may change the address by written
notice in accordance with the paragraph. Notices delivered
personally will be deemed communicated as of actual receipt;
mailed notices will be deemed communicated as of two days after
mailing.
9. This agreement supersedes any and all agreements, either oral or
written, between the parties hereto with respect to the
rendering of services by the Consultant for the Company and
contains all the covenants and agreements between the parties
with respect to the rendering of such services in any manner
whatsoever. Each party to this agreement acknowledges that no
representations, inducements, promises, or agreements, orally or
otherwise, have been made by any party, or anyone acting on
behalf of any party, which are not embodied herein, and that no
other agreement, statement, or promise not contained in this
agreement shall be valid or binding. Any modification of this
agreement will be effective only if it is in writing signed by
the party to be charged.
10. This agreement will be governed by and construed in accordance
with the laws of the State of California, without regard to its
conflicts of laws provisions; and the parties agree that the
proper venue for the resolution of any disputes hereunder shall
be Los Angeles County, California.
11. For purposes of this Agreement, Intellectual Property will mean
(i) works, ideas, discoveries, or inventions eligible for
copyright, trademark, patent or trade secret protection;
and (ii) any applications for trademarks or patents, issued
trademarks or patents, or copyright registrations regarding such
items. Any items of Intellectual Property discovered or
developed by the Consultant (or the Consultant's employees)
during the term of this Agreement will be the property of the
Consultant, subject to the irrevocable right and license
of the Company to make, use or sell products and services
derived from or incorporating any such Intellectual Property
without payment of royalties. Such rights and license will be
exclusive during the term of this Agreement, and any extensions
or renewals of it. After termination of this Agreement, such
rights and license will be nonexclusive, but will remain
royalty-free. Notwithstanding the preceding, the textual and/or
graphic content of materials created by the Consultant under
this Agreement (as opposed to the form or format of such
materials) will be, and hereby are, deemed to be "works made for
hire" and will be the exclusive property of the Company. Each
party agrees to execute such documents as may be necessary
to perfect and preserve the rights of either party with respect
to such Intellectual Property.
10
12. The written, printed, graphic, or electronically recorded
materials furnished by the Company for use by the Consultant are
Proprietary Information and are the property of the Company.
Proprietary Information includes, but is not limited to, product
specifications and/or designs, pricing information, specific
customer requirements, customer and potential customer lists,
and information on Company's employees, agent, or divisions.
The Consultant shall maintain in confidence and shall not,
directly or indirectly, disclose or use, either during or after
the term of this agreement, any Proprietary Information,
confidential information, or know-how belonging to the Company,
whether or not is in written form, except to the extent
necessary to perform services under this agreement. On
termination of the Consultant's services to the Company, or at
the request of the Company before termination, the Consultant
shall deliver to the Company all material in the Consultant's
possession relating to the Company's business.
13. The obligations regarding Proprietary Information extend to
information belonging to customers and suppliers of the Company
about which the Consultant may have gained knowledge as a result
of performing services hereunder.
14. The Consultant shall not, during the term of this agreement and
for a period of one year immediately after the termination of
this agreement, or any extension of it, either directly or
indirectly (a) for purposes competitive with the products or
services currently offered by the Company, call on, solicit, or
take away any of the Company's customers or potential customers
about whom the Consultant became aware as a result of the
Consultant's services to the Company hereunder, either for the
Consultant or for any other person or entity, or (b) solicit or
take away or attempt to solicit or take away any of the
Company's employees or consultants either for the Consultant or
for any other person or entity.
15. The Company will indemnify and hold harmless Consultant from any
claims or damages related to statements prepared by or made by
Consultant that are either approved in advance by the Company or
entirely based on information provided by the Company.
Consultant: Company:
Peter Benz Calypte Biomedical Corporation
/s/ Peter Benz
______________________ By:_/s/ Tony Cataldo
-----------------
Tony Cataldo
Executive Director
11
Exhibit 4.1(b)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 9th day of May, 2002, between Calypte
Biomedical Corporation, a Delaware Corporation (the "Company"), of 1265 Harbor
Parkway, Alameda, CA 94502, and George Furla, 2317 Mount Olympus Dr., Los
Angeles, CA 94402 ("Consultant").
WHEREAS, THE Company desires the Consultant to provide consulting
services to the Company pursuant hereto and Consultant is agreeable to providing
such services.
NOW THEREFORE, in consideration of the premises and the mutual
promises set forth herein, the parties hereto agree as follows:
1. Consultant shall serve as a consultant to the Company on general
corporate matters, particularly related to shareholder
relations, and other projects as may be assigned by Tony
Cataldo, Executive Director of the Company on an as needed
basis.
2. Term: The Company shall be entitled to Consultant's services
for reasonable times when and to the extent requested by,
and subject to the direction of Mr. Cataldo. The term of this
Consulting Agreement began as of the date of this Agreement, and
shall terminate on September 9, 2002.
3. Reasonable travel and other expenses necessarily incurred by
Consultant to render such services, and approved in advance by
the Company, shall be reimbursed by the Company promptly upon
receipt of proper statements, including appropriate
documentation, with regard to the nature and amount of those
expenses. Those statements shall be furnished to the Company
monthly at the end of each calendar month in the Consulting
Period during which any such expenses are incurred. Company
shall pay expenses within fifteen (15) business days of the
receipt of a request with appropriate documentation.
4. In consideration for the services to be performed by Consultant,
the Consultant will receive a warrant to purchase two million,
five hundred thousand, (2,500,000) shares of the common stock of
the Company at an exercise price of $0.015 cents per share. The
warrant expires on May 8, 2003.
5. It is the express intention of the parties that the Consultant
is an independent contractor and not an employee or agent of the
Company. Nothing in this agreement shall be interpreted or
construed as creating or establishing the relationship of
employer and employee between the Consultant and the Company.
Both parties acknowledge that the Consultant is not an employee
for state or federal tax purposes. The Consultant shall retain
the right to perform services for others during the term of this
agreement.
12
6. Neither this agreement nor any duties or obligations under this
agreement may be assigned by the Consultant without the
prior written consent of the Company.
7. This agreement may be terminated upon ten (10) days written
notice by either the Company or the Consultant.
8. Any notices to be given hereunder by either party to the other
may be given either by personal delivery in writing or by mail,
registered or certified, postage prepaid with return receipt
requested. Mailed notices shall be addressed to the parties at
the addressed appearing in the introductory paragraph of this
agreement, but each party may change the address by written
notice in accordance with the paragraph. Notices delivered
personally will be deemed communicated as of actual receipt;
mailed notices will be deemed communicated as of two days after
mailing.
9. This agreement supersedes any and all agreements, either oral or
written, between the parties hereto with respect to the
rendering of services by the Consultant for the Company and
contains all the covenants and agreements between the parties
with respect to the rendering of such services in any manner
whatsoever. Each party to this agreement acknowledges that no
representations, inducements, promises, or agreements, orally or
otherwise, have been made by any party, or anyone acting on
behalf of any party, which are not embodied herein, and that no
other agreement, statement, or promise not contained in this
agreement shall be valid or binding. Any modification of this
agreement will be effective only if it is in writing signed by
the party to be charged.
10. This agreement will be governed by and construed in accordance
with the laws of the State of California, without regard to its
conflicts of laws provisions; and the parties agree that the
proper venue for the resolution of any disputes hereunder shall
be Los Angeles County, California.
11. For purposes of this Agreement, Intellectual Property will mean
(i) works, ideas, discoveries, or inventions eligible for
copyright, trademark, patent or trade secret protection; and
(ii) any applications for trademarks or patents, issued
trademarks or patents, or copyright registrations regarding
such items. Any items of Intellectual Property discovered or
developed by the Consultant (or the Consultant's employees)
during the term of this Agreement will be the property of the
Consultant, subject to the irrevocable right and license
of the Company to make, use or sell products and services
derived from or incorporating any such Intellectual Property
without payment of royalties. Such rights and license will be
exclusive during the term of this Agreement, and any extensions
or renewals of it. After termination of this Agreement, such
rights and license will be nonexclusive, but will remain
royalty-free. Notwithstanding the preceding, the textual and/or
graphic content of materials created by the Consultant under
this Agreement (as opposed to the form or format of such
materials) will be, and hereby are, deemed to be "works made for
hire" and will be the exclusive property of the Company. Each
party agrees to execute such documents as may be necessary
to perfect and preserve the rights of either party with respect
to such Intellectual Property.
13
12. The written, printed, graphic, or electronically recorded
materials furnished by the Company for use by the Consultant are
Proprietary Information and are the property of the Company.
Proprietary Information includes, but is not limited to, product
specifications and/or designs, pricing information, specific
customer requirements, customer and potential customer lists,
and information on Company's employees, agent, or divisions.
The Consultant shall maintain in confidence and shall not,
directly or indirectly, disclose or use, either during or after
the term of this agreement, any Proprietary Information,
confidential information, or know-how belonging to the Company,
whether or not is in written form, except to the extent
necessary to perform services under this agreement. On
termination of the Consultant's services to the Company, or at
the request of the Company before termination, the Consultant
shall deliver to the Company all material in the Consultant's
possession relating to the Company's business.
13. The obligations regarding Proprietary Information extend to
information belonging to customers and suppliers of the Company
about which the Consultant may have gained knowledge as a result
of performing services hereunder.
14. The Consultant shall not, during the term of this agreement and
for a period of one year immediately after the termination of
this agreement, or any extension of it, either directly or
indirectly (a) for purposes competitive with the products or
services currently offered by the Company, call on, solicit, or
take away any of the Company's customers or potential customers
about whom the Consultant became aware as a result of the
Consultant's services to the Company hereunder, either for the
Consultant or for any other person or entity, or (b) solicit or
take away or attempt to solicit or take away any of the
Company's employees or consultants either for the Consultant or
for any other person or entity.
15. The Company will indemnify and hold harmless Consultant from any
claims or damages related to statements prepared by or made by
Consultant that are either approved in advance by the Company or
entirely based on information provided by the Company.
Consultant: Company:
George Furla Calypte Biomedical Corporation
/s/ George Furla /s/ Tony Cataldo
______________________ By:______________________
Tony Cataldo
Executive Director
14
Exhibit 4.1(c)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 9th day of May, 2002, between Calypte Biomedical
Corporation, a Delaware Corporation (the "Company"), of 1265 Harbor Parkway,
Alameda, CA 94502, and Owen Naccarato, 19600 Fairchild, Suite 260, Irvine, CA
92612 ("Consultant").
WITNESSETH
WHEREAS, the Company requires and will continue to require consulting
services relating management, strategic planning and marketing in connection
with its business; and
WHEREAS, Consultant can provide the Company with strategic planning
and marketing consulting services and is desirous of performing such services
for the Company; and
WHEREAS, the Company wishes to induce Consultant to provide these
consulting services to the Company,
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
stated, it is agreed as follows:
1. APPOINTMENT.
-----------
The Company hereby engages Consultant and Consultant agrees to render
services to the Company as a consultant upon the terms and conditions
hereinafter set forth.
2. TERM.
----
The term of this Consulting Agreement began as of the date of this
Agreement, and shall terminate on May 8, 2003, unless earlier terminated in
accordance with paragraph 7 herein or extended as agreed to between the parties.
3. SERVICES.
--------
During the term of this Agreement, Consultant shall provide advice to
undertake for and consult with the Company concerning management, marketing,
consulting, strategic planning, corporate organization and structure, financial
matters in connection with the operation of the businesses of the Company,
expansion of services, acquisitions and business opportunities, and shall review
and advise the Company regarding its overall progress, needs and condition.
Consultant agrees to provide on a timely basis the following enumerated services
plus any additional services contemplated thereby:
(a) The implementation of short-range and long-term
strategic planning to fully develop and enhance the Company's assets, resources,
products and services; and
(b) Advise the Company relative to its legal needs
relating specifically to its corporate transactional needs.
4. DUTIES OF THE COMPANY.
---------------------
The Company shall provide Consultant, on a regular and timely basis,
with all approved data and information about it, its subsidiaries, its
management, its products and services and its operations as shall be
15
reasonably requested by Consultant, and shall advise Consultant of any
facts which would affect the accuracy of any data and information previously
supplied pursuant to this paragraph. The Company shall promptly supply
Consultant with full and complete copies of all financial reports, all fillings
with all federal and state securities agencies; with full and complete copies of
all stockholder reports; with all data and information supplied by any financial
analyst, and with all brochures or other sales materials relating to its
products or services.
5. COMPENSATION.
------------
The Company will immediately grant Consultant a warrant to purchase
1,000,000 shares of the Company's Common Stock with an exercise price at $.015
per share, which warrant shall expire on May 8, 2003 at 5:00 P.M. P.S.T.
Consultant in providing the foregoing services, shall not be responsible for any
out-of-pocket costs, including, without limitation, travel, lodging, telephone,
postage and Federal Express charges.
6. REPRESENTATION AND INDEMNIFICATION.
----------------------------------
The Company shall be deemed to have been made a continuing
representation of the accuracy of any and all facts, material information and
data which it supplies to Consultant and acknowledges its awareness that
Consultant will rely on such continuing representation in disseminating such
information and otherwise performing its advisory functions. Consultant in the
absence of notice in writing from the Company, will rely on the continuing
accuracy of material, information and data supplied by the Company. Consultant
represents that he has knowledge of and is experienced in providing the
aforementioned services.
7. MISCELLANEOUS.
-------------
Termination: This Agreement may be terminated by either Party upon
written notice to the other Party for any reason which shall be effective five
(5) business days from the date of such notice. This Agreement shall be
terminated immediately upon written notice for material breach of this
Agreement.
Modification: This Consulting Agreement sets forth the entire
understanding of the Parties with respect to the subject matter hereof. This
Consulting Agreement may be amended only in writing signed by both Parties.
Notices: Any notice required or permitted to be given hereunder shall
be in writing and shall be mailed or otherwise delivered in person or by
facsimile transmission at the address of such Party set forth above or to such
other address or facsimile telephone number as the Party shall have furnished in
writing to the other Party.
Waiver: Any waiver by either Party of a breach of any provision of
this Consulting Agreement shall not operate as or be construed to be a waiver of
any other breach of that provision or of any breach of any other provision of
this Consulting Agreement. The failure of a Party to insist upon strict
adherence to any term of this Consulting Agreement on one or more occasions will
not be considered a waiver or deprive that Party of the right thereafter to
insist upon adherence to that term of any other term of this Consulting
Agreement.
Assignment: The Options under this Agreement are assignable at the
discretion of the Consultant.
Severability: If any provision of this Consulting Agreement is
invalid, illegal, or unenforceable, the balance of this Consulting Agreement
shall remain in effect, and if any provision is inapplicable to any person or
circumstance, it shall nevertheless remain applicable to all other persons and
circumstances.
Disagreements: Any dispute or other disagreement arising from or out
of this Consulting Agreement shall be submitted to arbitration under the rules
of the American Arbitration Association and the decision of the arbiter(s) shall
be enforceable in any court having jurisdiction thereof. Arbitration shall occur
only in Los Angeles County, CA. The interpretation and the enforcement of this
Agreement shall be governed by California Law as applied to residents of the
State of California relating to contracts executed in and to be performed solely
within the State of
16
California. In the event any dispute is arbitrated, the prevailing Party
(as determined by the arbiter(s)) shall be entitled to recover that Party's
reasonable attorney's fees incurred (as determined by the arbiter(s)).
IN WITNESS WHEREOF, this Consulting Agreement has been executed by
the Parties as of the date first above written.
Calypte Biomedical Corporation Consultant
/s/ Tony Cataldo /s/ Owen Naccarato
- ---------------- ------------------
Tony Cataldo Owen Naccarato
Executive Director
17
Exhibit 4.1(d)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 9th day of May, 2002, between Calypte
Biomedical Corporation, a Delaware Corporation (the "Company"), of 1265 Harbor
Parkway, Alameda, CA 94502, and Michael Rudolph, 1325 Howard Ave., Suite 422,
Burlingame, CA 94010 ("Consultant").
WHEREAS, THE Company desires the Consultant to provide consulting
services to the Company pursuant hereto and Consultant is agreeable to providing
such services.
NOW THEREFORE, in consideration of the premises and the mutual
promises set forth herein, the parties hereto agree as follows:
1. Consultant shall serve as a consultant to the Company on general
corporate matters, particularly related to shareholder
relations, and other projects as may be assigned by Tony
Cataldo, Executive Director of the Company on an as needed
basis.
2. Term: The Company shall be entitled to Consultant's services for
reasonable times when and to the extent requested by, and
subject to the direction of Mr. Cataldo. The term of this
Consulting Agreement began as of the date of this Agreement, and
shall terminate on September 9, 2002.
3. Reasonable travel and other expenses necessarily incurred by
Consultant to render such services, and approved in advance by
the Company, shall be reimbursed by the Company promptly upon
receipt of proper statements, including appropriate
documentation, with regard to the nature and amount of those
expenses. Those statements shall be furnished to the Company
monthly at the end of each calendar month in the Consulting
Period during which any such expenses are incurred. Company
shall pay expenses within fifteen (15) business days of the
receipt of a request with appropriate documentation.
4. In consideration for the services to be performed by Consultant,
the Consultant will receive a warrant to purchase two million,
five hundred thousand (2,500,000) shares of the common stock of
the Company at an exercise price of $0.015 cents per share. The
warrant shall expire May 8, 2003
5. It is the express intention of the parties that the Consultant
is an independent contractor and not an employee or agent of the
Company. Nothing in this agreement shall be interpreted or
construed as creating or establishing the relationship of
employer and employee between the Consultant and the Company.
Both parties acknowledge that the Consultant is not an employee
for state or federal tax purposes. The Consultant shall retain
the right to perform services for others during the term of this
agreement.
18
6. Neither this agreement nor any duties or obligations under this
agreement may be assigned by the Consultant without the
prior written consent of the Company.
7. This agreement may be terminated upon ten (10) days written
notice by either the Company or the Consultant.
8. Any notices to be given hereunder by either party to the other
may be given either by personal delivery in writing or by mail,
registered or certified, postage prepaid with return receipt
requested. Mailed notices shall be addressed to the parties at
the addressed appearing in the introductory paragraph of this
agreement, but each party may change the address by written
notice in accordance with the paragraph. Notices delivered
personally will be deemed communicated as of actual receipt;
mailed notices will be deemed communicated as of two days after
mailing.
9. This agreement supersedes any and all agreements, either oral or
written, between the parties hereto with respect to the
rendering of services by the Consultant for the Company and
contains all the covenants and agreements between the parties
with respect to the rendering of such services in any manner
whatsoever. Each party to this agreement acknowledges that no
representations, inducements, promises, or agreements, orally or
otherwise, have been made by any party, or anyone acting on
behalf of any party, which are not embodied herein, and that no
other agreement, statement, or promise not contained in this
agreement shall be valid or binding. Any modification of this
agreement will be effective only if it is in writing signed by
the party to be charged.
10. This agreement will be governed by and construed in accordance
with the laws of the State of California, without regard to its
conflicts of laws provisions; and the parties agree that the
proper venue for the resolution of any disputes hereunder shall
be Los Angeles County, California.
11. For purposes of this Agreement, Intellectual Property will mean
(i) works, ideas, discoveries, or inventions eligible for
copyright, trademark, patent or trade secret protection; and
(ii) any applications for trademarks or patents, issued
trademarks or patents, or copyright registrations regarding such
items. Any items of Intellectual Property discovered or
developed by the Consultant (or the Consultant's employees)
during the term of this Agreement will be the property of the
Consultant, subject to the irrevocable right and license of the
Company to make, use or sell products and services derived from
or incorporating any such Intellectual Property without payment
of royalties. Such rights and license will be exclusive during
the term of this Agreement, and any extensions or renewals of
it. After termination of this Agreement, such rights and license
will be nonexclusive, but will remain royalty-free.
Notwithstanding the preceding, the textual and/or graphic
content of materials created by the Consultant under this
Agreement (as opposed to the form or format of such materials)
will be, and hereby are, deemed to be "works made for hire" and
will be the exclusive property of the Company. Each party
agrees to execute such documents as may be necessary to perfect
and preserve the rights of either party with respect to such
Intellectual Property.
19
12. The written, printed, graphic, or electronically recorded
materials furnished by the Company for use by the Consultant are
Proprietary Information and are the property of the Company.
Proprietary Information includes, but is not limited to, product
specifications and/or designs, pricing information, specific
customer requirements, customer and potential customer lists,
and information on Company's employees, agent, or divisions.
The Consultant shall maintain in confidence and shall not,
directly or indirectly, disclose or use, either during or after
the term of this agreement, any Proprietary Information,
confidential information, or know-how belonging to the Company,
whether or not is in written form, except to the extent
necessary to perform services under this agreement. On
termination of the Consultant's services to the Company, or at
the request of the Company before termination, the Consultant
shall deliver to the Company all material in the Consultant's
possession relating to the Company's business.
13. The obligations regarding Proprietary Information extend to
information belonging to customers and suppliers of the Company
about which the Consultant may have gained knowledge as a result
of performing services hereunder.
14. The Consultant shall not, during the term of this agreement and
for a period of one year immediately after the termination of
this agreement, or any extension of it, either directly or
indirectly (a) for purposes competitive with the products or
services currently offered by the Company, call on, solicit, or
take away any of the Company's customers or potential customers
about whom the Consultant became aware as a result of the
Consultant's services to the Company hereunder, either for the
Consultant or for any other person or entity, or (b) solicit or
take away or attempt to solicit or take away any of the
Company's employees or consultants either for the Consultant or
for any other person or entity.
15. The Company will indemnify and hold harmless Consultant from any
claims or damages related to statements prepared by or made by
Consultant that are either approved in advance by the Company or
entirely based on information provided by the Company.
Consultant: Company:
Michael Rudolph Calypte Biomedical Corporation
/s/ Michael Rudolph
______________________ By:_/s/Tony Cataldo
------------------
Tony Cataldo
Executive Director
20
Exhibit 4.1(e)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 9th day of May, 2002, between Calypte
Biomedical Corporation, a Delaware Corporation (the "Company"), of 1265 Harbor
Parkway, Alameda, CA 94502, and David Mun Gavin, Herengracht 537, 1017 BV
Amsterdam, The Netherlands ("Consultant").
WHEREAS, THE Company desires the Consultant to provide consulting
services to the Company pursuant hereto and Consultant is agreeable to providing
such services.
NOW THEREFORE, in consideration of the premises and the mutual
promises set forth herein, the parties hereto agree as follows:
1. Consultant shall serve as a consultant to the Company on general
corporate matters, particularly related to shareholder
relations, and other projects as may be assigned by Tony
Cataldo, Executive Director of the Company on an as needed
basis.
2. Term: The Company shall be entitled to Consultant's services for
reasonable times when and to the extent requested by, and
subject to the direction of Mr. Cataldo. The term of this
Consulting Agreement began as of the date of this Agreement, and
shall terminate on September 9, 2002.
3. Reasonable travel and other expenses necessarily incurred by
Consultant to render such services, and approved in advance by
the Company, shall be reimbursed by the Company promptly upon
receipt of proper statements, including appropriate
documentation, with regard to the nature and amount of those
expenses. Those statements shall be furnished to the Company
monthly at the end of each calendar month in the Consulting
Period during which any such expenses are incurred. Company
shall pay expenses within fifteen (15) business days of the
receipt of a request with appropriate documentation.
4. In consideration for the services to be performed by Consultant,
the Consultant will receive a warrant to purchase four million,
five hundred thousand (4,500,000) shares of the common stock of
the Company at an exercise price of $0.015cents per share. The
warrant shall expire May 8, 2003.
5. It is the express intention of the parties that the Consultant
is an independent contractor and not an employee or agent of the
Company. Nothing in this agreement shall be interpreted or
construed as creating or establishing the relationship of
employer and employee between the Consultant and the Company.
Both parties acknowledge that the Consultant is not an employee
for state or federal tax purposes. The Consultant shall retain
the right to perform services for others during the term of this
agreement.
21
6. Neither this agreement nor any duties or obligations under this
agreement may be assigned by the Consultant without the prior
written consent of the Company.
7. This agreement may be terminated up on ten (10) days written
notice by either the Company or the Consultant.
8. Any notices to be given hereunder by either party to the other
may be given either by personal delivery in writing or by mail,
registered or certified, postage prepaid with return receipt
requested. Mailed notices shall be addressed to the parties at
the addressed appearing in the introductory paragraph of this
agreement, but each party may change the address by written
notice in accordance with the paragraph. Notices delivered
personally will be deemed communicated as of actual receipt;
mailed notices will be deemed communicated as of two days after
mailing.
9. This agreement supersedes any and all agreements, either oral or
written, between the parties hereto with respect to the
rendering of services by the Consultant for the Company and
contains all the covenants and agreements between the parties
with respect to the rendering of such services in any manner
whatsoever. Each party to this agreement acknowledges that no
representations, inducements, promises, or agreements, orally or
otherwise, have been made by any party, or anyone acting on
behalf of any party, which are not embodied herein, and that no
other agreement, statement, or promise not contained in this
agreement shall be valid or binding. Any modification of this
agreement will be effective only if it is in writing signed by
the party to be charged.
10. This agreement will be governed by and construed in accordance
with the laws of the State of California, without regard to its
conflicts of laws provisions; and the parties agree that the
proper venue for the resolution of any disputes hereunder shall
be Los Angeles County, California.
11. For purposes of this Agreement, Intellectual Property will mean
(i) works, ideas, discoveries, or inventions eligible for
copyright, trademark, patent or trade secret protection; and
(ii) any applications for trademarks or patents, issued
trademarks or patents, or copyright registrations regarding
such items. Any items of Intellectual Property discovered or
developed by the Consultant (or the Consultant's employees)
during the term of this Agreement will be the property of the
Consultant, subject to the irrevocable right and license
of the Company to make, use or sell products and services
derived from or incorporating any such Intellectual Property
without payment of royalties. Such rights and license will be
exclusive during the term of this Agreement, and any extensions
or renewals of it. After termination of this Agreement, such
rights and license will be nonexclusive, but will remain
royalty-free. Notwithstanding the preceding, the textual and/or
graphic content of materials created by the Consultant under
this Agreement (as opposed to the form or format of such
materials) will be, and hereby are, deemed to be "works made
for hire" and will be the exclusive property of the Company.
Each party agrees to execute such documents as may be necessary
to perfect and preserve the rights of either party with respect
to such Intellectual Property.
22
12. The written, printed, graphic, or electronically recorded
materials furnished by the Company for use by the Consultant are
Proprietary Information and are the property of the Company.
Proprietary Information includes, but is not limited to, product
specifications and/or designs, pricing information, specific
customer requirements, customer and potential customer lists,
and information on Company's employees, agent, or divisions.
The Consultant shall maintain in confidence and shall not,
directly or indirectly, disclose or use, either during or after
the term of this agreement, any Proprietary Information,
confidential information, or know-how belonging to the Company,
whether or not is in written form, except to the extent
necessary to perform services under this agreement. On
termination of the Consultant's services to the Company, or at
the request of the Company before termination, the Consultant
shall deliver to the Company all material in the Consultant's
possession relating to the Company's business.
13. The obligations regarding Proprietary Information extend to
information belonging to customers and suppliers of the Company
about which the Consultant may have gained knowledge as a result
of performing services hereunder.
14. The Consultant shall not, during the term of this agreement and
for a period of one year immediately after the termination of
this agreement, or any extension of it, either directly or
indirectly (a) for purposes competitive with the products or
services currently offered by the Company, call on, solicit, or
take away any of the Company's customers or potential customers
about whom the Consultant became aware as a result of the
Consultant's services to the Company hereunder, either for the
Consultant or for any other person or entity, or (b) solicit or
take away or attempt to solicit or take away any of the
Company's employees or consultants either for the Consultant or
for any other person or entity.
15. The Company will indemnify and hold harmless Consultant from any
claims or damages related to statements prepared by or made by
Consultant that are either approved in advance by the Company or
entirely based on information provided by the Company.
Consultant: Company:
David Mun Gavin Calypte Biomedical Corporation
/s/ David Mun Gavin
______________________ By:_/s/Tony Cataldo
----------------
Tony Cataldo
Executive Director
23
Exhibit 4.1(f)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 9th day of May, 2002, between Calypte
Biomedical Corporation, a Delaware Corporation (the "Company"), of 1265 Harbor
Parkway, Alameda, CA 94502, and Howard Schraub, 8638 Rueffe Monte Carlo, La
Jolla CA 92037 ("Consultant").
WHEREAS, THE Company desires the Consultant to provide consulting
services to the Company pursuant hereto and Consultant is agreeable to providing
such services.
NOW THEREFORE, in consideration of the premises and the mutual
promises set forth herein, the parties hereto agree as follows:
1. Consultant shall serve as a consultant to the Company on general
corporate matters, particularly related to shareholder
relations, and other projects as may be assigned by Tony
Cataldo, Executive Director of the Company on an as needed
basis.
2. Term: The Company shall be entitled to Consultant's services
for reasonable times when and to the extent requested by,
and subject to the direction of Mr. Cataldo. The term of this
Consulting Agreement began as of the date of this Agreement, and
shall terminate on September 9, 2002.
3. Reasonable travel and other expenses necessarily incurred by
Consultant to render such services, and approved in advance by
the Company, shall be reimbursed by the Company promptly upon
receipt of proper statements, including appropriate
documentation, with regard to the nature and amount of those
expenses. Those statements shall be furnished to the Company
monthly at the end of each calendar month in the Consulting
Period during which any such expenses are incurred. Company
shall pay expenses within fifteen (15) business days of the
receipt of a request with appropriate documentation.
4. In consideration for the services to be performed by Consultant,
the Consultant will receive a warrant to purchase two million
(2,000,000) shares of the common stock of the Company at an
exercise price of $0.015 cents per share. The warrant shall
expire May 8, 2003.
5. It is the express intention of the parties that the Consultant
is an independent contractor and not an employee or agent of the
Company. Nothing in this agreement shall be interpreted or
construed as creating or establishing the relationship of
employer and employee between the Consultant and the Company.
Both parties acknowledge that the Consultant is not an employee
for state or federal tax purposes. The Consultant shall retain
the right to perform services for others during the term of this
agreement.
24
6. Neither this agreement nor any duties or obligations under this
agreement may be assigned by the Consultant without the
prior written consent of the Company.
7. This agreement may be terminated upon ten (10) days written
notice by either the Company or the Consultant.
8. Any notices to be given hereunder by either party to the other
may be given either by personal delivery in writing or by mail,
registered or certified, postage prepaid with return receipt
requested. Mailed notices shall be addressed to the parties at
the addressed appearing in the introductory paragraph of this
agreement, but each party may change the address by written
notice in accordance with the paragraph. Notices delivered
personally will be deemed communicated as of actual receipt;
mailed notices will be deemed communicated as of two days after
mailing.
9. This agreement supersedes any and all agreements, either oral or
written, between the parties hereto with respect to the
rendering of services by the Consultant for the Company and
contains all the covenants and agreements between the parties
with respect to the rendering of such services in any manner
whatsoever. Each party to this agreement acknowledges that no
representations, inducements, promises, or agreements, orally
or otherwise, have been made by any party, or anyone acting on
behalf of any party, which are not embodied herein, and that no
other agreement, statement, or promise not contained in this
agreement shall be valid or binding. Any modification of this
agreement will be effective only if it is in writing signed by
the party to be charged.
10. This agreement will be governed by and construed in accordance
with the laws of the State of California, without regard to its
conflicts of laws provisions; and the parties agree that the
proper venue for the resolution of any disputes hereunder shall
be Los Angeles County, California.
11. For purposes of this Agreement, Intellectual Property will mean
(i) works, ideas, discoveries, or inventions eligible for
copyright, trademark, patent or trade secret protection;
and (ii) any applications for trademarks or patents, issued
trademarks or patents, or copyright registrations regarding
such items. Any items of Intellectual Property discovered or
developed by the Consultant (or the Consultant's employees)
during the term of this Agreement will be the property of the
Consultant, subject to the irrevocable right and license
of the Company to make, use or sell products and services
derived from or incorporating any such Intellectual Property
without payment of royalties. Such rights and license will be
exclusive during the term of this Agreement, and any extensions
or renewals of it. After termination of this Agreement, such
rights and license will be nonexclusive, but will remain
royalty-free. Notwithstanding the preceding, the textual and/or
graphic content of materials created by the Consultant under
this Agreement (as opposed to the form or format of such
materials) will be, and hereby are, deemed to be "works made for
hire" and will be the exclusive property of the Company. Each
party agrees to execute such documents as may be necessary
to perfect and preserve the rights of either party with respect
to such Intellectual Property.
25
12. The written, printed, graphic, or electronically recorded
materials furnished by the Company for use by the Consultant are
Proprietary Information and are the property of the Company.
Proprietary Information includes, but is not limited to, product
specifications and/or designs, pricing information,
specific customer requirements, customer and potential customer
lists, and information on Company's employees, agent, or
divisions. The Consultant shall maintain in confidence and
shall not, directly or indirectly, disclose or use, either
during or after the term of this agreement, any Proprietary
Information, confidential information, or know-how belonging to
the Company, whether or not is in written form, except to the
extent necessary to perform services under this agreement. On
termination of the Consultant's services to the Company, or at
the request of the Company before termination, the Consultant
shall deliver to the Company all material in the Consultant's
possession relating to the Company's business.
13. The obligations regarding Proprietary Information extend to
information belonging to customers and suppliers of the Company
about which the Consultant may have gained knowledge as a result
of performing services hereunder.
14. The Consultant shall not, during the term of this agreement and
for a period of one year immediately after the termination of
this agreement, or any extension of it, either directly or
indirectly (a) for purposes competitive with the products or
services currently offered by the Company, call on, solicit, or
take away any of the Company's customers or potential customers
about whom the Consultant became aware as a result of the
Consultant's services to the Company hereunder, either for the
Consultant or for any other person or entity, or (b) solicit or
take away or attempt to solicit or take away any of the
Company's employees or consultants either for the Consultant or
for any other person or entity.
15. The Company will indemnify and hold harmless Consultant from any
claims or damages related to statements prepared by or made by
Consultant that are either approved in advance by the Company or
entirely based on information provided by the Company.
Consultant: Company:
Howard Schraub Calypte Biomedical Corporation
/s/ Howard Schraub
______________________ By:_/s/Tony Cataldo
----------------
Tony Cataldo
Executive Director
26
Exhibit 4.1(g)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 9th day of May, 2002, between Calypte
Biomedical Corporation, a Delaware Corporation (the "Company"), of 1265 Harbor
Parkway, Alameda, CA 94502, and Merrick Okamoto, Laguna Niguel, CA,
("Consultant").
WHEREAS, THE Company desires the Consultant to provide consulting
services to the Company pursuant hereto and Consultant is agreeable to providing
such services.
NOW THEREFORE, in consideration of the premises and the mutual
promises set forth herein, the parties hereto agree as follows:
1. Consultant shall serve as a consultant to the Company on general
corporate matters, particularly related to shareholder
relations, and other projects as may be assigned by Tony
Cataldo, Executive Director of the Company on an as needed
basis.
2. Term: The Company shall be entitled to Consultant's services
for reasonable times when and to the extent requested by,
and subject to the direction of Mr. Cataldo. The term of this
Consulting Agreement began as of the date of this Agreement, and
shall terminate on September 9, 2002.
3. Reasonable travel and other expenses necessarily incurred by
Consultant to render such services, and approved in advance by
the Company, shall be reimbursed by the Company promptly upon
receipt of proper statements, including appropriate
documentation, with regard to the nature and amount of those
expenses. Those statements shall be furnished to the Company
monthly at the end of each calendar month in the Consulting
Period during which any such expenses are incurred. Company
shall pay expenses within fifteen (15) business days of the
receipt of a request with appropriate documentation.
4. In consideration for the services to be performed by Consultant,
the Consultant will receive a warrants to purchase one million
five hundred thousand (1,500,000) shares of the common stock of
the Company at an exercise price of $0.015 cents per share. The
warrant shall expire May 8, 2003.
5. It is the express intention of the parties that the Consultant
is an independent contractor and not an employee or agent of the
Company. Nothing in this agreement shall be interpreted or
construed as creating or establishing the relationship of
employer and employee between the Consultant and the Company.
Both parties acknowledge that the Consultant is not an employee
for state or federal tax purposes. The Consultant shall retain
the right to perform services for others during the term of this
agreement.
27
6. Neither this agreement nor any duties or obligations under this
agreement may be assigned by the Consultant without the
prior written consent of the Company.
7. This agreement may be terminated upon ten (10) days written
notice by either the Company or the Consultant.
8. Any notices to be given hereunder by either party to the other
may be given either by personal delivery in writing or by mail,
registered or certified, postage prepaid with return receipt
requested. Mailed notices shall be addressed to the parties at
the addressed appearing in the introductory paragraph of this
agreement, but each party may change the address by written
notice in accordance with the paragraph. Notices delivered
personally will be deemed communicated as of actual receipt;
mailed notices will be deemed communicated as of two days after
mailing.
9. This agreement supersedes any and all agreements, either oral or
written, between the parties hereto with respect to the
rendering of services by the Consultant for the Company and
contains all the covenants and agreements between the parties
with respect to the rendering of such services in any manner
whatsoever. Each party to this agreement acknowledges that no
representations, inducements, promises, or agreements, orally or
otherwise, have been made by any party, or anyone acting on
behalf of any party, which are not embodied herein, and that no
other agreement, statement, or promise not contained in this
agreement shall be valid or binding. Any modification of this
agreement will be effective only if it is in writing signed by
the party to be charged.
10. This agreement will be governed by and construed in accordance
with the laws of the State of California, without regard to its
conflicts of laws provisions; and the parties agree that the
proper venue for the resolution of any disputes hereunder shall
be Los Angeles County, California.
11. For purposes of this Agreement, Intellectual Property will mean
(i) works, ideas, discoveries, or inventions eligible for
copyright, trademark, patent or trade secret protection;
and (ii) any applications for trademarks or patents, issued
trademarks or patents, or copyright registrations regarding
such items. Any items of Intellectual Property discovered or
developed by the Consultant (or the Consultant's employees)
during the term of this Agreement will be the property of the
Consultant, subject to the irrevocable right and license
of the Company to make, use or sell products and services
derived from or incorporating any such Intellectual
Property without payment of royalties. Such rights and license
will be exclusive during the term of this Agreement, and any
extensions or renewals of it. After termination of this
Agreement, such rights and license will be nonexclusive, but
will remain royalty-free. Notwithstanding the preceding, the
textual and/or graphic content of materials created by the
Consultant under this Agreement (as opposed to the form or
format of such materials) will be, and hereby are, deemed to
be "works made for hire" and will be the exclusive property of
the Company. Each party agrees to execute such documents as may
be necessary to perfect and preserve the rights of either party
with respect to such Intellectual Property.
28
12. The written, printed, graphic, or electronically recorded
materials furnished by the Company for use by the Consultant are
Proprietary Information and are the property of the Company.
Proprietary Information includes, but is not limited to, product
specifications and/or designs, pricing information, specific
customer requirements, customer and potential customer lists,
and information on Company's employees, agent, or divisions.
The Consultant shall maintain in confidence and shall not,
directly or indirectly, disclose or use, either during or after
the term of this agreement, any Proprietary Information,
confidential information, or know-how belonging to the Company,
whether or not is in written form, except to the extent
necessary to perform services under this agreement. On
termination of the Consultant's services to the Company, or at
the request of the Company before termination, the Consultant
shall deliver to the Company all material in the Consultant's
possession relating to the Company's business.
13. The obligations regarding Proprietary Information extend to
information belonging to customers and suppliers of the Company
about which the Consultant may have gained knowledge as a result
of performing services hereunder.
14. The Consultant shall not, during the term of this agreement and
for a period of one year immediately after the termination of
this agreement, or any extension of it, either directly or
indirectly (a) for purposes competitive with the products or
services currently offered by the Company, call on, solicit, or
take away any of the Company's customers or potential customers
about whom the Consultant became aware as a result of the
Consultant's services to the Company hereunder, either for the
Consultant or for any other person or entity, or (b) solicit or
take away or attempt to solicit or take away any of the
Company's employees or consultants either for the Consultant or
for any other person or entity.
15. The Company will indemnify and hold harmless Consultant from any
claims or damages related to statements prepared by or made by
Consultant that are either approved in advance by the Company or
entirely based on information provided by the Company.
Consultant: Company:
Merrick Okamoto Calypte Biomedical Corporation
/s/ Merrick Okamoto
______________________ By:_/s/Tony Cataldo
----------------
Tony Cataldo
Executive Director
29
Exhibit 4.1 (h)
CALYPTE BIOMEDICAL CORPORATION
1265 Harbor Bay Parkway
Alameda, CA 94502
June 3, 2002
Mr. Clifford Brune
190 North Savannah Court
Lake Forest, IL 60045
Dear Mr. Brune:
The within is to confirm our understanding and agreement as of May 10, 2002
wherein you have agreed to act as financial consultant for our Company and to
perform business and related financial services directly for the Chairman of the
Company. It is understood and agreed that our Company will pay to you the sum of
$20,000 per month, in addition to all travel and/or other verified business
expenses incurred on behalf of our Company during the term of your Consulting
assignment. All payments will be made by wire transfer in accordance with your
written instruction on the first day of each month.
Additionally, and as further consulting fees, we will issue to you upon
execution of this agreement 500,000 fully vested stock options at $.03 per share
to purchase 500,000 non-assessable fully paid shares of the common stock of our
Company $.001 par value. You understand that the shares underlying the options
are restricted and will require either a registration and/or a qualified
exemption from registration in order to be freely traded marketable shares. You
further understand and acknowledge that the Company makes no warranty or
representation with respect to the value of the shares of common stock, and as
to whether or not any of said shares may be sold on the open market or in any
other public or private transaction.
As a part of your consulting services, you may be required, from time to time,
to consult with the Company with respect to operational decisions concerning the
Company's business and that, in doing so, the Company agrees to hold you
harmless and indemnify you from any claims and/or liabilities with respect to
those matters, except for gross negligence. We understand that services
performed will be in the normal course of business and that you will be on call
as reasonably required by the Company's Chairman.
It is further understood and agreed that you will be an independent contractor,
and that you will be responsible for payment of any and all taxes that may be
due as a result of payments made to you by our Company.
30
The term of the within Consulting Agreement will be for twelve (12) months and
thereafter on a month-to-month basis, and extended each month by mutual
agreement. It is further understood that either of us has the right to terminate
the within agreement on sixty (60) days written notice and that the within
agreement has been ratified by the Board of Directors of the Company, and that
at any time during the term of the within Consulting Agreement, the within
Agreement will be terminated upon signing of a mutually satisfactory Employment
Agreement with the Company or in instances of verifiable gross negligence on
your part.
You acknowledge that you have had the opportunity to consult with independent
counsel of your own choosing, and that the within Consulting Agreement may not
be changed, modified, or altered, except in writing, as provided for in the
within Agreement.
If the within meets with your understanding and agreement, please execute a
copy of same.
Very truly yours,
CALYPTE BIOMEDICAL CORPORATION
/s/ Tony Cataldo
---------------------------------------
By:
AGREED TO:
/s/ Cliff Brune
- -----------------------------------------------------------------
Clifford Brune
31
Exhibit 5.1
NACCARATO & ASSOCIATES
Owen M. Naccarato, Esq.
19600 Fairchild, Suite 260
Irvine, CA 91612
Office: (949) 851-9261 Fax: (949) 851-9262
- --------------------------------------------------------------------------------
July 23, 2002
Calypte Biomedical Corporation
Re: Opinion of Counsel - Registration Statement on Form S-8
Gentleman:
I have acted as counsel for Calypte Biomedical Corporation (the
"Company"), in connection with the preparation and filing of the Company's
Registration statement on Form S-8 under the Securities Act of 1933, as amended,
(the "Registration Statement"), relating to 19,000,000 shares of the Company's
common stock, $.001 par value, (the "common stock"), issuable pursuant to the
Company's Advisory and Consultants Agreements, (the "Plan").
I have examined the Certificate of Incorporation, as amended, and the
By-Laws of the company and all amendments thereto, the Registration Statement
and originals, or copies certified to my satisfaction, of such records and
meetings, written actions in lieu of meetings, or resolutions adopted at
meetings, of the directors of the Company, and such other documents and
instruments as in my judgement are necessary or appropriate to enable me to
render the opinions expressed below.
Based on the foregoing examination, I am of the opinion that the
shares of Common Stock issuable with the Plan are duly authorized and, when
issued in accordance with the Plan, will be validly issued, fully paid and
nonassessable.
Further, I consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Owen Naccarato
-----------------
Owen Naccarato, Esq.
32
EXHIBIT 23.1
CONSENT OF KPMG LLP, INDEPENDENT AUDITORS
The Board of Directors
Calypte Biomedical Corporation:
We consent to the use of our report incorporated herein by reference.
Our report dated February 8, 2002, contains an explanatory paragraph that
states that the Company has suffered recurring losses from operations and has an
accumulated deficit that raise substantial doubt about its ability to continue
as a going concern. The consolidated financial statements do not include any
adjustments that might result from the outcome of this uncertainty.
/s/ KPMG LLP
San Francisco, California
July 23, 2002
33