SEVENTH AMENDMENT TO 2005 CREDIT FACILITY
SEVENTH
AMENDMENT TO 2005 CREDIT FACILITY
THIS
SEVENTH AMENDMENT TO 2005 CREDIT FACILITY AGREEMENT (this "Amendment")
is
made as of December 3, 2007, by and among Calypte Biomedical Corporation, a
Delaware corporation ("Issuer"),
and
Xxxx Technologies, BV, a limited liability company established in the
Netherlands ("Purchaser").
Unless otherwise defined herein, all capitalized terms used herein shall have
the meanings given to them in the Credit Facility referred to
below.
WHEREAS,
Issuer and Purchaser are parties to the 2005 Credit Facility Agreement dated
as
of April 4, 2005, Amendment to 2005 Credit Facility dated as of November 30,
2005, Second Amendment to 2005 Credit Facility dated as of February 22, 2006,
Third Amendment to 2005 Credit Facility dated as of July 6, 0000, Xxxxxx
Xxxxxxxxx to 2005 Credit Facility dated as of December 22, 2006, Fifth Amendment
to 2005 Credit Facility dated as of February 6, 2007, and Sixth Amendment to
2005 Credit Facility dated as of March 21, 2007 (collectively, the "Credit
Facility");
and
WHEREAS,
the Issuer has agreed that if the Purchaser immediately exercises all of the
currently outstanding warrants issued to it by the Issuer to purchase an
aggregate of 8,482,292 shares of Common Stock, as more particularly described
on
Schedule
A,
attached hereto, and delivers to the Issuer the aggregate exercise price for
such warrants of $610,725.01 by wire transfer of immediately available funds
no
later than Wednesday, December 5, 2007, then, and only then, will the Issuer
agree, for a period of one (1) year from the date of this Amendment (the
“Term”),
to
give the Purchaser the right to convert the principal amount of the Notes then
outstanding together with any accrued and unpaid interest thereunder into shares
of common stock of the Issuer (the “Common
Stock”)
at the
conversion price of $0.16 per share (the “Conversion
Price”).
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, Issuer and Purchaser agree as
follows:
1. A
new
Section IV is hereby added to the Credit Facility to read in its entirety as
follows:
"IV. Conversion.
a.
At
the
Option of the Purchaser:
During
the Term, all or any portion of the principal amount of the Notes then
outstanding issued hereunder together with any accrued and unpaid interest
thereunder shall be convertible into shares of Common Stock at the Conversion
Price, at the option of the Purchaser, at any time and from time to time. The
Purchaser may effect conversions under this Section IV.a., by delivering to
the
Issuer a conversion notice, in the form attached hereto as Exhibit
A
(the
“Conversion
Notice”),
together with a schedule, in the form of Schedule
1
attached
hereto (the “Conversion
Schedule”).
b.
At
the
Option of the Issuer.
The
Issuer may deliver a written notice (an “Issuer
Conversion Notice”)
to the
Purchaser within five days after any day (such day, the “Test
Date”)
on
which the conditions in (i), (ii) and (iii) below shall be satisfied, stating
its irrevocable election to convert at the Conversion Price of all (but not
less
than all) of the outstanding principal amount of this Note, provided
that:
(i) the VWAP (as defined below) for each of the 20 consecutive trading days
prior to the Test Date is greater than the price per share derived by
multiplying the Conversion Price by the number two (2), (ii) the average daily
trading volume of the Common Stock during the entire period referred to in
clause (i) of this Section IV.b. shall be at least 450,000 shares, and (iii)
no
Event of Default shall exist. Notwithstanding anything to the contrary set
forth
in this Note, the Purchaser shall have the right to nullify such Issuer
Conversion Notice if any of the conditions set forth in this Section IV.b.
shall
not have been met on each date during the entire period referred to in clause
(i) above. The Issuer covenants and agrees that it will honor all Conversion
Notices tendered from the time of delivery of the Issuer Conversion Notice
through 5:00 p.m. (Pacific Standard Time) on the trading day prior to the Issuer
Conversion Date. For purposes of this Amendment, “VWAP”
means,
with respect to any date of determination, the daily volume weighted average
price (as reported by Bloomberg using the VAP function) of the Common Stock
on
such date of determination, or if there is no such price on such date of
determination, then the daily volume weighted average price on the date nearest
preceding such date.
c.
Mechanics
of Conversion.
The
number of shares of Common Stock issuable upon any conversion hereunder shall
equal the outstanding principal amount of this Note to be converted, divided
by
the Conversion Price on the Conversion Date (or the Issuer Conversion Date),
plus (if indicated in the applicable Conversion Notice or the Issuer Conversion
Notice) the amount of any accrued but unpaid interest on this Note through
the
Conversion Date (or the Issuer Conversion Date), divided by the Conversion
Price
on the Conversion Date (or the Issuer Conversion Date).
The
Issuer shall promptly issue or cause to be issued and cause to be delivered
to
or upon the written order of the Purchaser and in such name or names as the
Purchaser may designate a certificate for the shares issuable upon such
conversion. The Purchaser, or any person so designated by the Purchaser to
receive shares, shall be deemed to have become holder of record of such shares
as of such Conversion Date (or the Issuer Conversion Date). The Purchaser shall
not be required to deliver the original Note in order to effect a conversion
hereunder. Execution and delivery of the Conversion Notice shall have the same
effect as cancellation of the Note and issuance of a new Note representing
the
remaining outstanding principal amount.
d.
Expiration
of Conversion.
At the
end of the Term, this Article IV will automatically expire without the need
for
any additional action on the part of either the Issuer or the Purchaser or
amendment of the Credit Facility.”
2
2. Governing
Law.
This
Amendment shall be governed by and construed under the laws of the State of
Delaware, without regard to the conflicts of laws principles of the State of
Delaware.
3. Miscellaneous.
Neither
this Amendment nor any provision hereof may be changed, waived discharged or
terminated orally, but only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought. This Amendment shall be binding upon Issuer and its successors and
assigns, and all persons claiming under or through Issuer or any such successor
or assign, and shall inure to the benefit of and be enforceable by Purchaser
and
its successors and assigns.
4. Execution.
This
Amendment may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement. In the event that
any
signature is delivered by facsimile transmission, such signature shall create
a
valid and binding obligation of the party executing with the same force and
effect as if such facsimile signature page were an original
thereof.
5. Effect
of Amendment.
Except
for the amendment provided for herein, the Credit Facility shall remain
unchanged and in full force and effect.
IN
WITNESS WHEREOF,
each of
the parties hereto has caused a counterpart of this Seventh Amendment to Credit
Facility to be duly executed and delivered as of the date first above
written.
| CALYPTE BIOMEDICAL CORPORATION | ||
| |
|
|
| By: | /s/ Xxxxx X. Xxxx | |
| Its: | Chief Executive Officer | |
| Date: | December 5, 2007 | |
| XXXX TECHNOLOGIES, BV | ||
| |
|
|
| By: | /s/ X. Xxxxx | |
| X. Xxxxx | ||
| Its: | Director | |
| Date: | December 4, 2007 | |
3
EXHIBIT
A
CONVERSION
NOTICE
(To
be
Executed by the Purchaser in order to convert Notes)
The
undersigned hereby elects to convert the principal amount of Note indicated
below, into shares of Common Stock of Calypte Biomedical Corporation, as of
the
date written below. If shares are to be issued in the name of a person other
than undersigned, the undersigned will pay all transfer taxes payable with
respect thereto and is delivering herewith such certificates and opinions as
reasonably requested by the Issuer in accordance therewith. No fee will be
charged to the Purchaser for any conversion, except for such transfer taxes,
if
any. All terms used in this notice shall have the meanings set forth in the
Note.
| Conversion calculations: | ||
| Date to Effect Conversion | ||
| Principal amount of Note owned prior to conversion | ||
| Principal amount of Note to be Converted | ||
| Principal amount of Note remaining after Conversion | ||
| Number of shares of Common Stock to be Issued | ||
| Name of Investor | ||
| By: | ||
| Name: | ||
| Title: | ||
Schedule
1
CONVERSION
SCHEDULE
This
Conversion Schedule reflects conversions made under the above referenced
Notes.
Dated:
|
Date
of Conversion
|
Amount
of Conversion
|
Aggregate
Principal Amount Remaining Subsequent to Conversion
|
|
|
||
5
