CALYPTE BIOMEDICAL CORPORATION COMMON STOCK PURCHASE AGREEMENT November 13, 2001
EXHIBIT 10.109
CALYPTE BIOMEDICAL CORPORATION
COMMON STOCK
PURCHASE AGREEMENT
November 13, 2001
COMMON STOCK
PURCHASE AGREEMENT
This Agreement (“Agreement”) is made as of November 13,
2001 (the “Execution Date”), by and among Calypte Biomedical Corporation, a Delaware corporation (the “Company”), and each of those persons and entities, severally and not jointly, listed as a Purchaser on the Schedule of
Purchasers attached as Exhibit A hereto. Such persons and entities are hereinafter collectively referred to herein as “Purchasers” and each individually as a “Purchaser.”
In consideration of the mutual covenants contained in
this Agreement, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company and each Purchaser (severally and not jointly) hereby agree as follows:
Subject to the terms and
conditions of this Agreement, the Company has, or before the Closing (as defined below) will have, authorized the sale and issuance of up to $500,000 worth of shares of its Common Stock (the “Common Stock”), priced as set forth in Section
2.1 herein. The shares of Common Stock sold hereunder shall be referred to herein as the “Shares” or the “Securities.”
2.1 Sale of Shares. At
the Closing (as defined in Section 3), the Company will sell to each Purchaser, and each Purchaser will purchase from the Company, at a per share purchase price calculated as 80% of the average closing sale price per Share for the five trading days
immediately preceding the Closing (in other words, the five trading days beginning on November 13, 2001), which price is $ . The number of Shares purchased is set forth next to
such Purchaser’s name on the Schedule of Purchasers attached hereto as Exhibit A (the “Schedule of Purchasers”).
2.2 Separate Agreement Each Purchaser shall severally, and not jointly, be liable for only the purchase of the Shares that appear on Exhibit A hereto and that relate to such Purchaser.
The Company’s agreement with each of the Purchasers is a separate agreement, and the sale of Shares to each of the Purchasers is a separate sale. The obligations of each Purchaser hereunder are expressly not conditioned on the purchase by any
or all of the other Purchasers of the Shares such other Purchasers have agreed to purchase.
3.1 Closing The Closing of the purchase and sale of the Shares pursuant to this
Agreement (the “Closing”) shall be held on November 20, 2001, at the offices of Xxxxxx Xxxxxx White & XxXxxxxxx, 000 Xxxxxxxxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, or on such other date and place as may be agreed to by the
Company and the Purchasers.
At or prior to the Closing, each Purchaser shall execute any related agreements or other
documents required to be executed hereunder, dated as of the date of the Closing (the “Closing Date”).
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as set forth in the Schedule of Purchasers against payment of the purchase price for such shares. The name(s) in which the stock certificates are to be issued to each Purchaser are set
forth in the Stock Certificate Questionnaire in the form attached hereto as Appendix I, as completed by each Purchaser.
Except as set forth on the Schedule of Exceptions attached hereto
as Exhibit B, the Company hereby represents and warrants as of the date hereof to, and covenants with, the Purchasers as follows:
4.1 Organization and Standing The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of Delaware, has full corporate power and
authority to own or lease its properties and conduct its business as presently conducted, and is duly qualified as a foreign corporation and in good standing in all jurisdictions in which the character of the property owned or leased or the nature
of the business transacted by it makes qualification necessary (except where the failure to be so qualified would not have a material adverse effect on the business, properties, financial condition or results or operations of the Company). The
Company has no subsidiaries or equity interest in any other entity.
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applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto. The Financial Statements have been prepared in accordance with
generally accepted accounting principles consistently applied and fairly present the financial position of the Company at the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal, recurring adjustments).
(a) Purchaser, taking into account the personnel and resources it can practically bring to bear on the purchase of the
Securities contemplated hereby, either alone or together with the advice of such Purchaser’s purchaser representative, is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with respect to investments in
shares presenting an investment decision like that involved in the purchase of the Securities, including investments in securities issued by the Company, and has requested, received, reviewed and considered, either alone or with such
Purchaser’s purchaser representative, all information Purchaser deems relevant (including the SEC documents) in making an informed decision to purchase the Securities.
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(b) Purchaser is acquiring the Securities being acquired by Purchaser pursuant to this Agreement in the
ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Securities or any arrangement or understanding with any other persons regarding the distribution of such
Securities, except in compliance with Section 5.1(c).
(c) Purchaser will not, directly or
indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the securities purchased hereunder except in compliance with the Securities Act, applicable
blue sky laws, and the rules and regulations promulgated thereunder.
(d) Purchaser has
completed or caused to be completed the Stock Certificate Questionnaire, attached hereto as Appendix I, for use in preparation of the Form D to be filed by the Company, and the answers thereto are true and correct as of the date hereof and will be
true and correct as of the filing date of the applicable Form D (provided that Purchaser shall be entitled to update such information by providing notice thereof to the Company prior to the filing date of such Form D).
(e) Purchaser has, in connection with its decision to purchase the Securities, relied with respect to the
Company and its affairs solely upon the SEC Documents, the representations and warranties of the Company contained herein and oral statements of the Company’s management made at meetings with the Purchaser.
(f) Purchaser is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the
Securities Act or a Qualified Institutional Buyer within the meaning of Rule 144A promulgated under the Securities Act.
(g) Purchaser has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution,
delivery and performance of this Agreement. Upon the execution and delivery of this Agreement by Purchaser, this Agreement shall constitute a valid and binding obligation of Purchaser, enforceable in accordance with its terms, except (i) as limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting the enforcement of creditors’ rights generally, (ii) as limited by equitable principles generally, including any specific performance, and
(iii) as to those provisions of Section 9.3 relating to indemnity or contribution.
(k) Rule 144. Purchaser understands that SEC Rule 144 promulgated under the 1933 Act, which permits certain limited sales of unregistered securities requires that the Shares be
held for a minimum period, after they have been purchased and paid for (within the meaning of Rule 144), before they may be resold under Rule 144. Purchaser understands that Rule 144 may indefinitely restrict transfer of the Shares if Purchaser is,
and for so long as Purchaser remains, an “affiliate” of the Company.
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Notwithstanding any investigation made by any party to this Agreement, all covenants, agreements, representations and
warranties made by the Company and each Purchaser herein and in the certificates for the securities delivered pursuant hereto shall survive the execution of this Agreement, the delivery to the Purchasers of the securities being purchased and the
payment therefor.
The Company’s obligation to complete the sale and issuance of the Securities and deliver shares of Common Stock to each Purchaser, individually, as set forth in the Schedule of
Purchasers shall be subject to the following conditions to the extent not waived by the Company:
Each Purchaser’s obligation to accept delivery of the Shares and to pay for the Shares shall be subject to the following condition to the extent
not waived by such Purchaser:
Representations and Warranties Correct. The
representations and warranties made by the Company in Section 4 hereof shall be true and correct when made, and shall be true and correct on the Closing Date.
The Company and each Purchaser (severally and not jointly)
hereby represent that there are no brokers or finders entitled to compensation in connection with the sale of the Shares, and shall indemnify each other for any such fees for which they are responsible.
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All
notices, requests, consents and other communications hereunder shall be in writing, shall be sent by confirmed facsimile or mailed by first-class registered or certified airmail, or nationally recognized overnight express courier, postage prepaid,
and shall be deemed given when so sent in the case of facsimile transmission, or when so received in the case of mail or courier, and addressed as follows:
if to the Company, to:
Calypte Biomedical Corporation
0000 Xxxxxx Xxx Xxxx
Xxxxxxx, XX 00000
Attention: President and Chief Executive Officer
Facsimile: (000)
000-0000
with a copy so mailed to:
Xxxxxx Xxxxxx White & XxXxxxxxx
000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X.
Xxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other person at such other place as the Company shall designate to the Purchasers in writing; and
if to the Purchasers, at the address as set forth at the end of this Agreement, or at such other address or addresses as may have been furnished to the Company in writing.
11.4 Governing Law. Except to the extent that the Delaware General Corporation Law shall be
applicable with respect to matters relating to the internal corporate affairs of the Company, this Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to contracts entered into and wholly
performed within the State of California by California residents
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11.7 Entire Agreement. This Agreement and
other documents delivered pursuant hereto, including the exhibits, constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the day and year first above written.
CALYPTE BIOMEDICAL CORPORATION | ||
By: |
| |
Name: Xxxxx X. Xxxx Title:
Chief Executive Officer, President and Chief Financial Officer |
PURCHASER | ||
Purchaser
Name: | ||
By: |
| |
Name:
Title:
Address:
Facsimile:
|
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NOTICE TO PURCHASERS IN ALL STATES:
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF THE ISSUER AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED. THESE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY
FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE
PERIOD OF TIME.
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