As filed with the Securities and Exchange Commission on November 29, 2002
Reg. No.
================================================================================
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 30,550,000 .05 $1,527,500 $140.53
($.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
28,500,000 shares issuable upon exercise of warrants for consultants at $.05 per
share and 2,050,000 shares to be issued to consultants.
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.
2
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/A (No.1) 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 reports on Form 10-Q for the quarters ended
March 31, 2002, June 30, 2002 and September 30, 2002;
(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.
3
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 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 dividends 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 November 26, 2002.
Calypte Biomedical Corporation
By /s/ Nancy Katz
----------------------------------------------
Nancy Katz, President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Anthony Cataldo and Nancy Katz, as his or her
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 all 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 November 26, 2002
- ---------------------
Nancy E. Katz Officer & Director
/s/ Anthony Cataldo Executive Chairman of the November 26, 2002
- ---------------------
Anthony Cataldo Board of Directors
/s/ Richard D. Brounstein Executive Vice President, Chief November 26, 2002
- -------------------------
Richard D. Brounstein Financial Officer and Director
/s/ Paul Freiman Director November 26, 2002
- ---------------------
Paul Freiman
/s/ Julius R. Krevans, M.D. Director November 26, 2002
- ---------------------------
Julius R. Krevans, M.D.
6
/s/ Mark Novitch, M.D. Director November 26, 2002
- ---------------------------
Mark Novitch, M.D.
/s/ Zafar Randawa, Ph.D. Director November 26, 2002
- ------------------------
Zafar Randawa, Ph.D.
/s/ John J. DiPietro Director November 26, 2002
- --------------------
John J. DiPietro
7
INDEX TO EXHIBITS
Exhibit Sequentially
NO. Description Numbered Pages
- --- ----------- --------------
4.1 Advisory and Consulting Agreement 9
4.1(a) Consulting Agreement - Anshuman Dube 10
4.1(b) Consulting Agreement - George Furla 13
4.1(c) Consulting Agreement - Howard Schraub 16
4.1(d) Consulting Agreement - Kurt Benjamin 19
4.1(e) Consulting Agreement - Owen Naccarato 22
4.1(f) Consulting Agreement - Mark Baum 25
4.1(g) Consulting Agreement - Michael Rudolph 28
4.1(h) Consulting Agreement - Blake Ransom 31
4.1(i) Consulting Agreement - Jason Arasheben 34
4.1(j) Consulting Agreement - Charles Van Musscher 37
4.1(k) Consulting Agreement - Sadegh Panahi 42
4.2 Form of Warrant 45
5.1 Opinion of Naccarato & Associates 54
23.1 Consent of KPMG LLP, Independent Auditors 55
23.2 Consent of Naccarato & Associates
(filed as part of Exhibit 5.1)
24.1 Power of Attorney 6
8
Exhibit 4.1 Advisory and Consulting Agreement
Number of Shares and Options
----------------------------
4.1(a) 8,000,000
4.1(b) 4,000,000
4.1(c) 3,000,000
4.1(d) 2,000,000
4.1(e) 1,600,000
4.1(f) 1,000,000
4.1(g) 3,000,000
4.1(h) 4,150,000
4.1(i) 300,000
4.1(j) 500,000
4.1(k) 3,000,000
-----------
Total 30,550,000
==========
9
Exhibit 4.1(a)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 1st day of November, 2002, between
Calypte Biomedical Corporation, a Delaware Corporation (the "Company"), of 1265
Harbor Parkway, Alameda, CA 94502, and Anshuman Dube, 555 South Flower Street
Suite 4500, Los Angeles, CA 90071 ("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 assist the Company in general
corporate activities including but not limited to the following areas;
a. Arranging distribution relationships in India, Indonesia, South Korea
and other Asian Countries as needed;
b. Assisting the Company in restructuring its capital structure;
c. Assisting the Company in its general business strategy;
d. Assist the Company in its efforts to complete trials with the World
Health Organization.
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 November 20, 2003.
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 eight million, (8,000,000)
shares of the common stock of the Company at an exercise price of $0.05
per share. The warrant expires on November 20, 2003.
5. The consultant will provide to Calypte's Executive Chairman a written
report of services rendered and results thereof no less than quarterly and
that report will be issued within 30 days of quarter end. E.g. January 30,
2003 for the period ended December 31, 2002.
10
6. 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.
6.1 The consulting services shall not involve and the Consultant is not engaged
in services in connection with the offer or sale of securities in a
capital-raising transaction for Calypte, and further, the Consultant does
not and will not directly or indirectly promote or maintain a market for
Calypte's securities.
7. 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.
8. This agreement may be terminated upon ten (10) days written notice by the
Company. Notwithstanding any termination, the compensation, as outlined in
Section 4, shall be earned in full by the Consultant upon execution of this
agreement.
9. 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.
10. 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.
11. 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 Alameda County, California.
11
12. 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. 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.
14. 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.
15. 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.
16. 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:
Anshuman Dube Calypte Biomedical Corporation
/s/ Anshuman Dube /s/ Tony Cataldo
______________________ By_____________________
Tony Cataldo
Executive Chairman
12
Exhibit 4.1(b)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 20th day of November, 2002, between
Calypte Biomedical Corporation, a Delaware Corporation (the "Company"), of 1265
Harbor Parkway, Alameda, CA 94502, and George Furla, 2317 Mount Olympus Drive,
Los Angeles, CA 90046 ("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 assist the Company in general
corporate activities including but not limited to the following areas:
(a) Research various venues for product advertisement.
(b) Assist in the Company's marketing strategies.
(c) Research strategic partners.
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 February 20, 2003.
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, (4,000,000)
shares of the common stock of the Company at an exercise price of $0.05
per share. The warrant expires on November 20, 2003.
5. The consultant will provide to Calypte's Executive Chairman a written
report of services rendered and results thereof no less than quarterly and
that report will be issued within 30 days of quarter end, e.g. January 30,
2002 for the period ended December 31, 2002. Additionally, Consultant will
provide a final written report within 30 days of the conclusion of this
contract.
6. 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.
6.1 The consulting services shall not involve and the Consultant is not engaged
in services in connection with the offer or sale of securities in a
capital-raising transaction for Calypte, and further, the Consultant does
not and will not directly or indirectly promote or maintain a market for
Calypte's securities.
13
7. 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.
8. This agreement may be terminated upon ten (10) days written notice by the
Company. Notwithstanding any termination, the compensation, as outlined in
Section 4, shall be earned in full by the Consultant upon execution of this
agreement.
9. 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.
10. 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.
11. 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 Alameda County, California.
12. 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.
14
13. 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.
14. 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.
15. 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.
16. 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 Chairman
15
Exhibit 4.1(c)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 20th day of November, 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 assist the Company in general
corporate activities including but not limited to the following areas:
(a) Research venues for foreign sales for the Company's products.
(b) Assist in the foreign marketing of the Company's products.
(c) Assist in locating foreign strategic partners.
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 February 20, 2003.
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 three million, (3,000,000)
shares of the common stock of the Company at an exercise price of $0.05
per share. The warrant expires on November 20, 2003.
5. The consultant will provide to Calypte's Executive Chairman a written
report of services rendered and results thereof within 30 days of the
conclusion of this contract.
6. 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.
6.1 The consulting services shall not involve and the Consultant is not engaged
in services in connection with the offer or sale of securities in a
capital-raising transaction for Calypte, and further, the Consultant does
not and will not directly or indirectly promote or maintain a market for
Calypte's securities.
16
7. 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.
8. This agreement may be terminated upon ten (10) days written notice by the
Company. Notwithstanding any termination, the compensation, as outlined in
Section 4, shall be earned in full by the Consultant upon execution of this
agreement.
9. 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.
10. 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.
11. 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 Alameda County, California.
12. 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.
17
13. 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.
14. 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.
15. 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.
16. 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 /s/ Tony Cataldo
______________________ By:______________________
Tony Cataldo
Executive Chairman
18
Exhibit 4.1(d)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 1st day of November, 2002, between
Calypte Biomedical Corporation, a Delaware Corporation (the "Company"), of 1265
Harbor Parkway, Alameda, CA 94502, and Kurt Benjamin, 555 South Flower Street
Suite 4500, Los Angeles, CA 90071 ("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 assist the Company in general
corporate activities including but not limited to the following areas:
(a) Arranging distribution relationships with various public health
companies;
(b) Arranging distribution and operating relationships with the State of
California;
(c) Arranging synergistic relationships with the public service groups
including the Children's United Nation, Magic Johnson Foundation,
Elizabeth Taylor, etc.
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 May 20, 2003.
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 one million (1,000,000) shares of the common stock
of the Company, and a warrant to purchase one million (1,000,000) shares of
common stock at an exercise price of $0.05 per share, the warrant expire
November 20, 2003.
5. The consultant will provide to Calypte's Executive Chairman a written
report of services rendered and results thereof no less than quarterly and
that report will be issued within 30 days of quarter end. E.g. January 30,
2003 for the period ended December 31, 2002.
6. 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.
19
6.1 The consulting services shall not involve and the Consultant is not
engaged in services in connection with the offer or sale of securities
in a capital-raising transaction for Calypte, and further, the
Consultant does not and will not directly or indirectly promote or
maintain a market for Calypte's securities.
7. 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.
8. This agreement may be terminated upon ten (10) days written notice by the
Company. Notwithstanding any termination, the consideration, as outlined in
Section 4, shall be earned in full by the Consultant upon the execution of
this agreement.
9. 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.
10. 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.
11. 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 Alameda County, California.
12. 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.
20
13. 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.
14. 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.
15. 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.
16. 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:
Kurt Benjamin Calypte Biomedical Corporation
/s/ Kurt Benjamin
______________________ By: /s/ Tony Cataldo
____________________
Tony Cataldo
Executive Chairman
21
Exhibit 4.1(e)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 1st day of November, 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,
WHEREAS, it is acknowledged that the previous agreement was mutually
terminated on August 24, 2002,
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 March 1, 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. The consultant will provide to Calypte's Executive Chairman a written
report of services rendered and results thereof within 30 days of the conclusion
of this contract.; and
(b) Advise the Company relative to its legal needs relating specifically to
its corporate transactional needs.
22
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 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 100,000 shares of the
Company's Common Stock plus a warrant to purchase one million five hundred
thousand (1,500,000) shares of the common stock of the Company at an exercise
price of $0.05 per share. The warrant expires on November 1, 2003. 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. REPRESENTATIONS 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.
The Consultant acknowledges that he is not engaged in services in
connection with the offer or sale of securities in a capital-raising transaction
for Calypte, and further, the Consultant does not and will not directly or
indirectly promote or maintain a market for Calypte's securities.
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.
23
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 Alameda 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 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 Chairman
24
Exhibit 4.1(f)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 20th day of November, 2002, between Calypte
Biomedical Corporation, a Delaware Corporation (the "Company"), of 1265 Harbor
Parkway, Alameda, CA 94502, and Mark Baum, Post Office Box 1688, Solana Beach,
CA 92075 ("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 February 20, 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. The consultant will provide to Calypte's Executive Chairman a written
report of services rendered and results thereof within 30 days of the conclusion
of this contract; and
(b) Advise the Company relative to its legal needs relating specifically to
certain of its corporate transactional needs.
25
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 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 one
million (1,000,000) shares of the common stock of the Company at an exercise
price of $0.05 per share. The warrant expires on November 1, 2003. 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. REPRESENTATIONS 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.
The Consultant acknowledges that he is not engaged in services in
connection with the offer or sale of securities in a capital-raising transaction
for Calypte, and further, the Consultant does not and will not directly or
indirectly promote or maintain a market for Calypte's securities.
7. MISCELLANEOUS.
Termination: This agreement may be terminated upon ten (10) days written
notice by the Company. Notwithstanding any termination, the consideration, as
outlined in Section 5, shall be earned in full by the Consultant upon the
execution 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.
26
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 Alameda 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 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/ Mark Baum
___________________ _________________
Tony Cataldo Mark Baum
Executive Chairman
27
Exhibit 4.1(g)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 20th day of November, 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 assist the Company in general
corporate activities including but not limited to the following areas:
(a) Assist in the budget review process.
(b) Assist in the settlement issues with creditors.
(c) Financial strategic planning.
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 February 20, 2003.
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 three million, (3,000,000) shares
of the common stock of the Company at an exercise price of $0.05 per share. The
warrant expires on November 1, 2003.
5. The consultant will provide to Calypte's Executive Chairman a written report
of services rendered and results thereof within 30 days of the conclusion of
this contract.
6. 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.
7. The Consultant acknowledges that he is not engaged in services in connection
with the offer or sale of securities in a capital-raising transaction for
Calypte, and further, the Consultant does not and will not directly or
indirectly promote or maintain a market for Calypte's securities.
8. 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.
28
9. This agreement may be terminated upon ten (10) days written notice by the
Company. Notwithstanding any termination, the consideration, as outlined in
Section 5, shall be earned in full by the Consultant upon the execution of this
agreement.
10. 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.
11. 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.
12. 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 Alameda County, California.
13. 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.
14. 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.
29
15. 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.
16. 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.
17. 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 /s/ Tony Cataldo
______________________ By: ______________________
Tony Cataldo
Executive Chairman
30
Exhibit 4.1(h)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 20th day of November, 2002, between Calypte
Biomedical Corporation, a Delaware Corporation (the "Company"), of 1265 Harbor
Parkway, Alameda, CA 94502, and Blake Ransom, 7820 NW 163rd St., Miami Lakes, FL
33016("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 assist the Company in
general corporate activities including but not limited to the
following areas:
(d) Arranging synergistic marketing relationship introductions
such as for public service announcements.
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 April
20, 2003.
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. The Company will immediately grant Consultant 150,000 shares of the
Company's Common Stock plus a warrant to purchase four million
(4,000,000) shares of the common stock of the Company at an exercise
price of $0.05 per share. The warrant expires on February 20, 2003.
5. The consultant will provide to Calypte's Executive Chairman a
written report of services rendered and results thereof no less than
quarterly and that report will be issued within 30 days of quarter
end. E.g. January 30, 2003 for the period ended December 31, 2002 and
then within 30 days of the conclusion of the agreement.
6. 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.
31
6.1 The consulting services shall not involve and the Consultant
is not engaged in services in connection with the offer or sale
of securities in a capital-raising transaction for Calypte, and
further, the Consultant does not and will not directly or
indirectly promote or maintain a market for Calypte's securities.
7. 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.
8. This agreement may be terminated upon ten (10) days written notice
by the Company. Notwithstanding any termination, the consideration, as
outlined in Section 4, shall be earned in full by the Consultant upon
the execution of this agreement.
9. 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.
10. 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.
11. 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 Alameda
County, California.
12. 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.
32
13. 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.
14. 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.
15. 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.
16. 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:
Blake Ransom Calypte Biomedical Corporation
/s/ Blake Ransom Signed by: /s/ Tony Cataldo
________________ _____________________
Tony Cataldo
Executive Chairman
33
Exhibit 4.1(i)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 20th day of November, 2002, between
Calypte Biomedical Corporation, a Delaware Corporation (the "Company"), of 1265
Harbor Parkway, Alameda, CA 94502, and Jason Arasheben, 9454 Wilshire Blvd.,
Suite 320, Beverly Hills, CA 90212 ("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 assist the Company
in general corporate activities including but not limited to the
following areas:
(e) Evaluating distribution relationship synergies - looking
to apply the blueprint used in Jason's high volume, small
business relationships to Calypte's US businesses beyond the
life insurance companies.
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 February 20, 2003.
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. The Company will immediately grant Consultant 300,000 shares
of the Company's Common Stock.
5. The consultant will provide to Calypte's Executive Chairman a
written report of services rendered and results thereof within 30
days of the conclusion of this contract.
6. 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.
34
6.1 The consulting services shall not involve and the
Consultant is not engaged in services in connection with the
offer or sale of securities in a capital-raising transaction
for Calypte, and further, the Consultant does not and will
not directly or indirectly promote or maintain a market for
Calypte's securities.
7. 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.
8. This agreement may be terminated upon ten (10) days written
notice by the Company. Notwithstanding any termination, the
consideration, as outlined in Section 4, shall be earned in full
by the Consultant upon the execution of this agreement.
9. 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.
10. 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.
11. 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 Alameda County, California.
12. 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.
35
13. 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.
14. 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.
15. 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.
16. 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:
Jason Arasheben Calypte Biomedical Corporation
/s/ Jason Arasheben Signed by: /s/ Tony Cataldo
___________________ ______________________
Tony Cataldo
Executive Chairman
36
Exhibit 4.1 (j)
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made and entered into this 15th
day of October, 2002
BETWEEN:
CHARLES VAN MUSSCHER, a businessman residing in Gruenwald, Germany
(hereinafter referred to as the "Consultant")
OF THE FIRST PART
AND
CALYPTE BIOMEDICAL CORPORATION, a company incorporated pursuant to the laws of
the State of California.
(hereinafter referred to as the "Client")
OF THE SECOND PART
WHEREAS the Consultant and Client are desirous that the Consultant provide
certain services to the Client as set out herein.
NOW THEREFORE, in consideration of the mutual promises and agreements set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
I. CONSULTING SERVICES
The Client hereby retains the Consultant as an independent consultant
to the Client and the Consultant hereby accepts and agrees to such retention.
The Consultant shall:
(a) Develop a marketing plan for the expansion of the Clients business to
Europe;
(b) Introduce the business of the Client to Consultants contacts throughout
Europe;
(c) Introduce Client to Consultant's German contacts for the purpose concluding
a joint-venture relationship, licensee or distributor for carrying on
business in Germany and assist in such negotiations;
(d) Identify companies and/or product lines that Client might acquire that
would be complimentary to the Client's business and assist in such
acquisitions.
II. TIME, MANNER AND PLACE PERFORMANCE
The Consultant provides services similar to those provided for herein
to other clients that may include publicly traded companies. The Client agrees
that the Consultant does not and shall not be required to devote its full time
and efforts to the Client. The Consultant shall devote such time to the Client
as is reasonable and necessary to provide the Consulting Services to the Client.
Consultant shall be available for advice and counsel to the officers and
directors of the Client at such reasonable and convenient times and places as
may mutually be agreed upon.
37
III. TERM OF THE AGREEMENT
The Term of this Agreement shall be twelve (12) months, commencing on
the date of this Agreement set forth above ending twelve months of such date
(the "Term"), subject however, to prior termination as provided in Section XI of
this Agreement.
IV. COMPENSATION
In consideration of the Consulting Services to be provided to the
Client by the Consultant, Client hereby agrees to compensate Consultant as
follows:
a. Client shall issue 500,000 shares the common stock of the Client on or
before October 21st, 2002 to the Consultant. The Shares have an
aggregate value of US $65,000 dollars based upon a price of $.13 per
share (the "Shares"). The Shares shall be issued shall require a
registration.
b. The shares issued pursuant to this subparagraph shall be issued free
and clear of any liens and encumbrances. The Shares shall be deemed
fully earned upon receipt by Consultant provided that the Consultant
performs the services represented pursuant to this Agreement. The
shares issued pursuant to this subparagraph shall be issued free and
clear of any liens and encumbrances.
V. DISCLOSURE OF INFORMATION
The Consultant recognizes and acknowledges that it has and will have
access to certain confidential information of the Client's and its affiliates
that are valuable, special and unique assets and property of the Client and such
affiliates ("Confidential Information"). The Consultant will not, during and
after the term of this Agreement, disclose, without the prior written consent or
authorization of the Client, any Confidential Information to any person, except
authorized representatives of the Consultant or its affiliates, for any reason
or purpose whatsoever. In this regard, the Client agrees that such authorization
or consent to disclose may be conditioned upon the disclosure being made
pursuant to a secrecy agreement, protective order, provision of statute, rule,
regulation or procedure under which the confidentiality of the information is
maintained in the hands of the person to whom the information is to be disclosed
or in compliance with the terms of a judicial order or administrative process.
Any information which has been disclosed to the public by the Client or upon the
authorization of the client shall not be considered Confidential Information.
VI. NATURE OF RELATIONSHIP
Nothing in this Agreement shall render any party a general partner of
the other. Except as set forth in this Agreement neither party is nor shall be a
general agent for the other and neither party is given authority to act on
behalf of the other. The Consultant is retained by the Client in an independent
capacity and except, as set forth in this Agreement, Consultant shall not enter
into any agreement or incur any obligation on behalf of the Client.
38
VII. CONFLICT OF INTEREST
This Agreement is non-exclusive. The Consultant shall be free to
perform services for other companies and persons. Consultant will use its best
efforts to avoid conflicts of interest. Client agrees that it shall not be a
conflict of interest that Consultant devotes time and resources to companies and
persons other than Client. In the event that Consultant believes a conflict of
interest arises which may affect the performance of the Consulting Services for
Client, Consultant shall promptly notify the Client of such conflict. Failure to
terminate this Agreement within 30 days of notification of any conflict of
interest shall constitute the Client's ongoing consent to the Consultant's
continued activities, which would be in conflict with client.
IX. INDEMNIFICATION FOR SECURITIES LAWS VIOLATIONS AND
LIMITATION OF LIABILITY
a. The Client agrees to indemnify and hold harmless the Consultant against
any losses, claims, damages, liabilities and/or expenses (including any
legal or other expenses reasonably incurred in investigating or defending
any action or claim in respect thereof) to which the Consultant may become
subject under the Securities Act of 1933 as amended or the Securities
Exchange Act of 1934 as amended or German legislation and regulations,
because of actions of the Client or its agent(s), Client's material
publicly available to the Consultant, or materials provided to Consultant
by Client for use by Consultant in its performance under this Agreement.
b. The Consultant agrees to indemnify and hold the Client and each officer,
director and controlling person of the Client against any loses, claims,
damages, liabilities and/or expenses (including any legal or other
expenses reasonability incurred in investigating or defending any action
or claim in respect thereof) to which the Client of such officer, director
or controlling person may become subject under the Securities Act of 1933
as amended or the Securities Exchange Act of 1934 as amended or German
legislation and regulations, solely because of actions of the Consultant
or his agent (s).
X. TERMINATION
Notwithstanding Section III of this Agreement, this Agreement may be
terminated:
a. By the Client for any reason upon 30 days prior written notice to
Consultant.
b. By Consultant upon 30 days prior written notice to the Client in the
event;
(i) Client requests Consultant to perform acts or services in
violation of any law, rule, regulation, policy or order of
any federal or state regulatory agency,
(ii) Client distributes to the public information containing
material misrepresentations or omissions, or
(iii) Client is engaging in conduct in violation of any law,
including rules, regulations, orders and policies of any
federal or state regulatory agency.
39
XI. NOTICES
Any notices required or permitted to be given under this Agreement
shall be sufficient if in writing and delivered via FAX, to the FAX number set
forth below, or if sent by registered or certified mail, return receipt
requested, to the address set forth below.
a. If to Consultant:
Robert-Koch-Strasse 16
82031 Gruenwald, Germany
Fax: ++49 89 64 91 58 05
b. If to Client:
1265 Harbor Bay Parkway
Alameda, CA 94502
Fax: 510 526-5381
XII. APPLICABLE LAW
This Agreement shall be interpreted and construed in accordance with
and pursuant to the laws of the State of Florida.
XIII. ARBITRATION
Any dispute, difference or question which may arise at any time
hereinafter between the Shareholders touching on the true construction of this
Agreement and the respective rights and obligations of each party hereto to the
other shall be referred to and settled by binding arbitration under the American
Arbitration Association. No arbitration shall be commenced until the aggrieved
party shall send to the other party a written notice describing the problem and
stating a proposed solution ("Settlement Notice"). For Thirty (30) days after
the sending of the Settlement Notice, the parties shall try to settle the
dispute in good faith. During this Thirty (30) day settlement period, each party
shall send to the other an additional written notice with further proposal for
resolving the dispute and responding in detail to the last proposal of the other
party. The contents of the Settlement Notice and of all discussions and writings
during the Thirty (30) day settlement period shall be without prejudice and
shall be privileged as settlement discussion and may not be used in any legal
proceedings or arbitration. The place of arbitration shall be in the State of
Florida. Judgement on the Arbitral award may be entered in any court in the
State of Florida or in any court having jurisdiction. The parties hereby waive
all defences as to personal jurisdiction, venue and sovereign immunity from
attachment, exception and jurisdiction in any proceeding to confirm or enforce
the award. The laws of the State of Florida shall govern all issues during the
arbitration. The decision of the Arbitrator shall be final and finding on the
parties.
XIV. SEVERABILITY
The provisions contained herein are severable and in the event any of
them shall be held invalid, the Agreement shall be interpreted as if such
invalid provisions were not contained herein.
40
XV. ENTIRE AGREEMENT
This entire Agreement constitutes and embodies the entire
understanding and agreement of the parties and supersedes and replaces all prior
understandings, agreements and negotiations of the parties. This Agreement may
not be modified, except in writing and signed by all parties hereto.
XVI. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall
constitute and be deemed an original, but both of which taken together shall
constitute to one and the same document.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement the day and year first above written.
/s/ Charles Van Musscher
_______________________________________
CHARLES VAN MUSSCHER, Consultant
CALYPTE BIOMEDICAL CORPORATION
By: /s/ Anthony Cataldo
_______________________________
ANTHONY CATALDO
Its: Chairman
41
Exhibit 4.1(k)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 20th day of November, 2002, between
Calypte Biomedical Corporation, a Delaware Corporation (the "Company"), of 1265
Harbor Parkway, Alameda, CA 94502, and Sadegh Panahi, P.O. Box 22, Larkspur, CA
94977 ("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 assist the Company in
general corporate activities including but not limited to the
following areas:
(a) Arranging synergistic marketing relationship introductions such
as for public service announcements.
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
February 20, 2003.
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 three million
(3,000,000) shares of the common stock of the Company at an exercise
price of $0.05 per share. The warrant expires on November 20, 2003.
5. The consultant will provide to Calypte's Executive Chairman a written
report of services rendered and results thereof within 30 days of the
conclusion of this agreement.
6. 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.
42
6.1 The consulting services shall not involve and the Consultant is
not engaged in services in connection with the offer or sale of
securities in a capital-raising transaction for Calypte, and
further, the Consultant does not and will not directly or
indirectly promote or maintain a market for Calypte's securities.
7. 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.
8. This agreement may be terminated upon ten (10) days written notice by
the Company. Notwithstanding any termination, the consideration, as
outlined in Section 4, shall be earned in full by the Consultant upon
the execution of this agreement.
9. 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.
10. 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.
11. 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 Alameda County,
California.
12. 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.
43
13. 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.
14. 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.
15. 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.
16. 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:
Sadegh Panahi Calypte Biomedical Corporation
/s/ Sadegh Panahi Signed by /s/ Anthony Cataldo
_________________ ______________________
Anthony Cataldo
Executive Chairman
44
Exhibit 4.2
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED ("1933 ACT"), OR ANY STATE SECURITIES LAWS AND SHALL NOT
BE SOLD, PLEDGED, HYPOTHECATED, DONATED, OR OTHERWISE TRANSFERRED, WHETHER OR
NOT FOR CONSIDERATION, BY THE HOLDER EXCEPT UPON THE ISSUANCE TO THE COMPANY OF
A FAVORABLE OPINION OF ITS COUNSEL OR THE SUBMISSION TO THE COMPANY OF SUCH
OTHER EVIDENCE AS MAY BE SATISFACTORY TO COUNSEL FOR THE COMPANY, IN EITHER
CASE, TO THE EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE 1933
ACT AND APPLICABLE STATE SECURITIES LAWS.
CALYPTE BIOMEDICAL CORPORATION
Common Stock Purchase Warrant
to
Purchase ______________ Shares
of
Common Stock
This Common Stock Purchase Warrant is issued to:
[Name]
[Address]
[City, State Zip]
by CALYPTE BIOMEDICAL CORPORATION, a Delaware corporation (hereinafter called
the "Company", which term shall include its successors and assigns).
FOR VALUE RECEIVED and subject to the terms and conditions
hereinafter set out, the registered holder of this Warrant as set forth on the
books and records of the Company (the "Holder") is entitled upon surrender of
this Warrant to purchase from the Company _____________ fully paid and
non-assessable shares of Common Stock, $.001 par value per share (the "Common
Stock"), at the Exercise Price (as defined below) per share.
This Warrant shall expire at the close of business on _____________,
2003.
45
1. (a) The right to purchase shares of Common Stock represented by this
Warrant may be exercised by the Holder, in whole or in part, by the surrender of
this Warrant (properly endorsed if required) at the principal office of the
Company at 1265 Harbor Parkway, Alameda, California 94502 (or such other office
or agency of the Company as it may designate by notice in writing to the Holder
at the address of the Holder appearing on the books of the Company), and upon
payment to the Company, by cash or by certified check or bank draft, of the
Exercise Price for such shares. The Company agrees that the shares of Common
Stock so purchased shall be deemed to be issued to the Holder as the record
owner of such shares of Common Stock as of the close of business on the date on
which this Warrant shall have been surrendered and payment made for such shares
of Common Stock as aforesaid. Certificates for the shares of Common Stock so
purchased (together with a cash adjustment in lieu of any fraction of a share)
shall be delivered to the Holder within a reasonable time, not exceeding five
(5) business days, after the rights represented by this Warrant shall have been
so exercised, and, unless this Warrant has expired, a new Warrant representing
the number of shares of Common Stock, if any, with respect to which this Warrant
shall not then have been exercised, in all other respects identical with this
Warrant, shall also be issued and delivered to the Holder within such time, or,
at the request of the Holder, appropriate notation may be made on this Warrant
and the same returned to the Holder.
(b) This Warrant may be exercised to acquire, from and after the date
hereof, the number of shares of Common Stock set forth on the first page hereof
(subject to adjustments described in this Warrant); provided, however, the right
hereunder to purchase such shares of Common Stock shall expire at 5:00 p.m.
Alameda, California time on _____________, 2003.
2. This Warrant is being issued by the Company pursuant to the terms of the
Consulting Agreement dated ______________, 2002.
3. The Company covenants and agrees that all Common Stock upon issuance
against payment in full of the Exercise Price by the Holder pursuant to this
Warrant will be validly issued, fully paid and non-assessable and free from all
taxes, liens and charges with respect to the issue thereof (except to the extent
resulting from the Holder's own circumstances, actions or omissions). The
Company covenants and agrees that during the period within which the rights
represented by this Warrant may be exercised, the Company will have at all times
authorized, and reserved for the purpose of issue or transfer upon exercise of
the rights evidenced by this Warrant, a sufficient number of shares of Common
Stock to provide for the exercise of the rights represented by this Warrant, and
will procure at its sole expense upon each such reservation of shares the
listing thereof (subject to issuance or notice of issuance) on all stock
exchanges on which the Common Stock is then listed or inter-dealer trading
systems on which the Common Stock is then traded. The Company will take all such
action as may be necessary to assure that such shares of Common Stock may be so
issued without violation of any applicable law or regulation, or of any
requirements of any national securities exchange upon which the Common Stock may
be listed or inter-dealer trading system on which the Common Stock is then
traded. The Company will not take any action which would result in any
adjustment in the number of shares of Common Stock purchasable hereunder if the
total number of shares of Common Stock issuable pursuant to the terms of this
Warrant after such action upon full exercise of this Warrant and, together with
all shares of Common Stock then outstanding and all shares of Common Stock then
issuable upon exercise of all options and other rights to purchase shares of
Common Stock then outstanding, would exceed the total number of shares of Common
Stock then authorized by the Company's Restated and Amended Articles of
Incorporation, as then amended.
46
4. The Initial Exercise Price is $.05 per share of Common Stock ("Initial
Exercise Price"). The Initial Exercise Price shall be adjusted as provided for
below in this Section 4 (the Initial Exercise Price, and the Initial Exercise
Price, as thereafter then adjusted, shall be referred to as the "Exercise
Price") and the Exercise Price from time to time shall be further adjusted as
provided for below in this Section 4. Upon each adjustment of the Exercise
Price, the Holder shall thereafter be entitled to receive upon exercise of this
Warrant, at the Exercise Price resulting from such adjustment, the number of
shares of Common Stock obtained by (i) multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of shares of Common Stock
purchasable hereunder immediately prior to such adjustment, and (ii) dividing
the product thereof by the Exercise Price resulting from such adjustment. The
Exercise Price shall be adjusted as follows:
(i) In the case of any amendment to the Company's Articles of Incorporation
to change the designation of the Common Stock or the rights, privileges,
restrictions or conditions in respect to the Common Stock or division of
the Common Stock, this Warrant shall be adjusted so as to provide that upon
exercise thereof, the Holder shall receive, in lieu of each share of Common
Stock theretofore issuable upon such exercise, the kind and amount of
shares, other securities, money and property receivable upon such
designation, change or division by the Holder issuable upon such exercise
had the exercise occurred immediately prior to such designation, change or
division. This Warrant shall be deemed thereafter to provide for
adjustments which shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Section 4. The provisions of this
Subsection 4(i) shall apply in the same manner to successive
reclassifications, changes, consolidations and mergers.
(ii) If the Company shall at any time subdivide its outstanding shares of
Common Stock into a greater number of shares of Common Stock, or declare a
dividend or make any other distribution upon the Common Stock payable in
shares of Common Stock, the Exercise Price in effect immediately prior to
such subdivision or dividend or other distribution shall be proportionately
reduced, and conversely, in case the outstanding shares of Common Stock
shall be combined into a smaller number of shares of Common Stock, the
Exercise Price in effect immediately prior to such combination shall be
proportionately increased.
47
(iii) If any capital reorganization or reclassification of the capital
stock of the Company, or any consolidation or merger of the Company with or
into another corporation or other entity, or the sale of all or
substantially all of the Company's assets to another corporation or other
entity shall be effected in such a way that holders of shares of Common
Stock shall be entitled to receive stock, securities, other evidence of
equity ownership or assets with respect to or in exchange for shares of
Common Stock, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale (except as otherwise
provided below in this Section 4), lawful and adequate provisions shall be
made whereby the Holder shall thereafter have the right to receive upon the
exercise hereof upon the basis and upon the terms and conditions specified
herein, such shares of stock, securities, other evidence of equity
ownership or assets as may be issued or payable with respect to or in
exchange for a number of outstanding shares of such Common Stock equal to
the number of shares of Common Stock immediately theretofore purchasable
and receivable upon the exercise of this Warrant under this Section 4 had
such reorganization, reclassification, consolidation, merger or sale not
taken place, and in any such case appropriate provisions shall be made with
respect to the rights and interests of the Holder to the end that the
provisions hereof (including, without limitation, provisions for
adjustments of the Exercise Price and of the number of shares of Common
Stock receivable upon the exercise of this Warrant) shall thereafter be
applicable, as nearly as may be, in relation to any shares of stock,
securities, other evidence of equity ownership or assets thereafter
deliverable upon the exercise hereof (including an immediate adjustment, by
reason of such consolidation or merger, of the Exercise Price to the value
for the Common Stock reflected by the terms of such consolidation or merger
if the value so reflected is less than the Exercise Price in effect
immediately prior to such consolidation or merger). Subject to the terms of
this Warrant, in the event of a merger or consolidation of the Company with
or into another corporation or other entity as a result of which the number
of shares of common stock of the surviving corporation or other entity
issuable to holders of Common Stock, is greater or lesser than the number
of shares of Common Stock outstanding immediately prior to such merger or
consolidation, then the Exercise Price in effect immediately prior to such
merger or consolidation shall be adjusted in the same manner as though
there were a subdivision or combination of the outstanding shares of Common
Stock. The Company shall not effect any such consolidation, merger or sale,
unless, prior to the consummation thereof, the successor corporation (if
other than the Company) resulting from such consolidation or merger or the
corporation purchasing such assets shall assume by written instrument
executed and mailed or delivered to the Holder, the obligation to deliver
to the Holder such shares of stock, securities, other evidence of equity
ownership or assets as, in accordance with the foregoing provisions, the
Holder may be entitled to receive or otherwise acquire. If a purchase,
tender or exchange offer is made to and accepted by the holders of more
than fifty (50%) percent of the outstanding shares of Common Stock, the
Company shall not effect any consolidation, merger or sale with the person
having made such offer or with any affiliate of such person, unless prior
to the consummation of such consolidation, merger or sale the Holder of
this Warrant shall have been given a reasonable opportunity to then elect
to receive upon the exercise of this Warrant the amount of stock,
securities, other evidence of equity ownership or assets then issuable with
respect to the number of shares of Common Stock in accordance with such
offer.
48
(iv) In case the Company shall, at any time prior to exercise of this
Warrant, consolidate or merge with any other corporation or other entity
(where the Company is not the surviving entity) or transfer all or
substantially all of its assets to any other corporation or other entity,
then the Company shall, as a condition precedent to such transaction, cause
effective provision to be made so that the Holder of this Warrant upon the
exercise of this Warrant after the effective date of such transaction shall
be entitled to receive the kind and amount of shares, evidences of
indebtedness and/or other securities or property receivable on such
transaction by a holder of the number of shares of Common Stock as to which
this Warrant was exercisable immediately prior to such transaction (without
giving effect to any restriction upon such exercise); and, in any such
case, appropriate provision shall be made with respect to the rights and
interest of the Holder of this Warrant to the end that the provisions of
this Warrant shall thereafter be applicable (as nearly as may be
practicable) with respect to any shares, evidences of indebtedness or other
securities or assets thereafter deliverable upon exercise of this Warrant.
Upon the occurrence of any event described in this Section 4(iv), the
holder of this Warrant shall have the right to (i) exercise this Warrant
immediately prior to such event at an Exercise Price equal to lesser of (1)
the then Exercise Price or (2) the price per share of Common Stock paid in
such event, or (ii) retain ownership of this Warrant, in which event,
appropriate provisions shall be made so that the Warrant shall be
exercisable at the Holder's option into shares of stock, securities or
other equity ownership of the surviving or acquiring entity.
Whenever the Exercise Price shall be adjusted pursuant to this Section 4,
the Company shall issue a certificate signed by its President or Vice President
and by its Treasurer, Assistant Treasurer, Secretary or Assistant Secretary,
setting forth, in reasonable detail, the event requiring the adjustment, the
amount of the adjustment, the method by which such adjustment was calculated
(including a description of the basis on which the Board of Directors of the
Company made any determination hereunder), and the Exercise Price after giving
effect to such adjustment, and shall cause copies of such certificates to be
mailed (by first-class mail, postage prepaid) to the Holder of this Warrant. The
Company shall make such certificate and mail it to the Holder promptly after
each adjustment.
No fractional shares of Common Stock shall be issued in connection with any
exercise of this Warrant, but in lieu of such fractional shares, the Company
shall make a cash payment therefore equal in amount to the product of the
applicable fraction multiplied by the Exercise Price then in effect.
5. In the event the Company grants rights (other than rights granted
pursuant to a shareholder rights or poison pill plan) to all shareholders to
purchase Common Stock, the Holder shall have the same rights as if this Warrant
had been exercised immediately prior to such grant.
49
6. The shares of Common Stock issuable upon the exercise of this Warrant
shall be registered by the Company pursuant to a Form S-8 to be filed with the
Securities and Exchange Commission on or prior to December 2, 2002.
7. This Warrant need not be changed because of any change in the Exercise
Price or in the number of shares of Common Stock purchased hereunder.
8. The terms defined in this paragraph, whenever used in this Warrant,
shall, unless the context otherwise requires, have the respective meanings
hereinafter specified. The term "Common Stock" shall mean and include the
Company's Common Stock, $.001 par value per share, authorized on the date of the
original issue of this Warrant and shall also include in case of any
reorganization, reclassification, consolidation, merger or sale of assets of the
character referred to in Section 4 hereof, the stock, securities or assets
provided for in such paragraph. The term "Company" shall also include any
successor corporation to Calypte Biomedical Corporation by merger, consolidation
or otherwise. The term "outstanding" when used with reference to Common Stock
shall mean at any date as of which the number of shares thereof is to be
determined, all issued shares of Common Stock, except shares then owned or held
by or for the account of the Company. The term "1933 Act" shall mean the
Securities Act of 1933, as amended, or any successor Federal statute, and the
rules and regulations of the Securities and Exchange Commission, or any other
Federal agency then administering the 1933 Act, thereunder, all as the same
shall be in effect at the time.
9. This Warrant is exchangeable, upon the surrender hereby by the Holder at
the office or agency of the Company, for new Warrants of like tenor representing
in the aggregate the right to subscribe for and purchase the number of shares of
Common Stock which may be subscribed for and purchased hereunder, each of such
new Warrants to represent the right to subscribe for and purchase such number of
shares of Common Stock as shall be designated by the Holder at the time of such
surrender. Upon receipt of evidence satisfactory to the Company of the loss,
theft, destruction or mutilation of this Warrant or any such new Warrants and,
in the case of any such loss, theft, or destruction, upon delivery of a bond of
indemnity, reasonably satisfactory to the Company, or, in the case of any such
mutilation, upon surrender or cancellation of this Warrant or such new Warrants,
the Company will issue to the Holder a new Warrant of like tenor, in lieu of
this Warrant or such new Warrants, representing the right to subscribe for and
purchase the number of shares of Common Stock which may be subscribed for and
purchased hereunder.
10. The Company will at no time close its transfer books against the
transfer of this Warrant or of any shares of Common Stock issued or issuable
upon the exercise of this Warrant in any manner which interferes with the timely
exercise of this Warrant. This Warrant shall not entitle the Holder to any
voting rights or any rights as a shareholder of the Company. The rights and
obligations of the Company, of the Holder, and of any holder of shares of Common
Stock issuable hereunder, shall survive the exercise of this Warrant.
50
11. This Warrant sets forth the entire agreement of the Company and the
Holder of the Common Stock issuable upon the exercise of this Warrant with
respect to the rights of the Holder and the Common Stock issuable upon the
exercise of this Warrant, notwithstanding the knowledge of such Holder of any
other agreement or the provisions of any agreement, whether or not known to the
Holder, and the Company represents that there are no agreements inconsistent
with the terms hereof or which purport in any way to bind the Holder of this
Warrant or the Common Stock.
12. The validity, interpretation and performance of this Warrant and each
of its terms and provisions shall be governed by the laws of the State of
California.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officer under its corporate seal and dated as of November __,
2002.
CALYPTE BIOMEDICAL CORPORATION
By:
______________________
Name: Anthony Cataldo
Title: Executive Chairman
51
FORM OF ELECTION TO PURCHASE
(To be executed by the Holder to exercise the right to purchase shares of Common
Stock under the Warrant to which this form applies, issued by Calypte Biomedical
Corporation ("Calypte"))
To Calypte Biomedical Corporation:
The undersigned hereby irrevocably elects to purchase _____________
shares of common stock, $0.001 par value per share, of Calypte (the "Common
Stock") and, if such Holder is not utilizing the cashless exercise provisions
set forth in this Warrant, encloses herewith $________ in cash, certified or
official bank check or checks, which sum represents the aggregate Exercise Price
(as defined in the Warrant) for the number of shares of Common Stock to which
this Form of Election to Purchase relates, together with any applicable taxes
payable by the undersigned pursuant to the Warrant.
The undersigned requests that certificates for the shares of Common
Stock issuable upon this exercise be issued in the name of
PLEASE INSERT SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER
______________________________________
________________________________________________________________________________
(Please print name and address)
Dated: , Name of Holder:
______________ _____
(Print)
_______________________________
(By:)
(Name:)
(Title:)
(Signature must conform in all
respects to name of holder as
specified on the face of the Warrant)
52
FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ________________________________ the right represented by the
within Warrant to purchase ____________ shares of Common Stock of Calypte
Biomedical Corporation to which the within Warrant relates and appoints
________________ attorney to transfer said right on the books of Calypte
Biomedical Corporation with full power of substitution in the premises.
Dated:
- ---------------, ----
--------------------------------------
(Signature must conform in all
respects to name of holder as
specified on the face of the Warrant)
--------------------------------------
Address of Transferee
--------------------------------------
--------------------------------------
In the presence of:
- --------------------------
53
Exhibit 5.1
NACCARATO & ASSOCIATES
Owen M. Naccarato, Esq.
19600 Fairchild, Suite 260
Irvine, CA 91612
Office: (949) 851-9261 Fax: (949) 851-9262
November 26 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 30,550,000 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
non-assessable.
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.
54
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 by reference herein.
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
November 26, 2002
55