SUBSCRIPTION AGREEMENT
Exhibit
10.192
THE
SHARES OF COMMON STOCK SUBSCRIBED FOR BY THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY OTHER APPLICABLE STATE
SECURITIES LAWS AND TRANSFER OF SUCH SHARES IS RESTRICTED BY THE TERMS OF THIS
AGREEMENT.
This
SUBSCRIPTION AGREEMENT (the "Agreement") is made by and
between the subscriber hereto (the “Subscriber”) and Calypte
Biomedical Corporation, a Delaware corporation (the "Company”).
The
Subscriber hereby agrees to purchase, and the Company hereby agrees to issue and
to sell to the Subscriber, the number of shares (the “Shares”) of common stock of
the Company, par value $.03 per share (the "Common Stock"), set forth on
the signature page, for a purchase price in cash equal to $0.03 per share (the
aggregate amount to be paid by the Subscriber shall be referred to as the "Purchase
Price"). After acceptance of this Agreement by the
Company and payment and delivery by the Subscriber to the Company of the
Purchase Price in the form of wire transfer pursuant to the terms of Section
7(b) of this Agreement, the Company shall issue and deliver to the Subscriber
the Shares.
NOW,
THEREFORE, in order to implement the foregoing and in consideration of the
mutual representations, warranties, covenants and agreements contained herein
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as follows.
1. Subscriber's Representations
and Warranties. The Subscriber hereby represents and warrants
to and agrees with the Company that:
(a) Access to
Information. The Subscriber acknowledges that it has been
furnished with the Company's Form 10-K for the year ended December 31, 2008 as
filed with the Securities and Exchange Commission (the “Commission”) together with all
subsequently filed Forms 10-Q, 8-K, and other publicly available filings made
with the Commission (hereinafter referred to collectively as the "Reports") and has been
afforded (i) the opportunity to ask such questions as it has deemed necessary
of, and to receive answers from, representatives of the Company concerning the
terms and conditions of the offering of the Securities and the merits and risks
of investing in the Company; (ii) access to information about the Company and
its subsidiary and their respective financial condition, results of operations,
business, properties, management and prospects sufficient to enable it to
evaluate its investment; and (iii) the opportunity to obtain such additional
information that the Company possesses or can acquire without unreasonable
effort or expense that is necessary to make an informed investment decision with
respect to the investment. Neither such inquiries nor any other
investigation conducted by or on behalf of the Subscriber or its representatives
or counsel shall modify, amend or affect the Subscriber's right to rely on the
truth, accuracy and completeness of the Reports and the Company's
representations and warranties contained herein.
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(b) Information on
Subscriber. The Subscriber is and was not a “U.S. person,” as
defined in Regulation S of the Securities Act of 1933, as amended (the “1933 Act”), at the time the
offer or sale of the Securities is made. Additionally, the Subscriber
is an "accredited investor," as such term is defined in Regulation D of the 1933
Act or is part of a group that is experienced in investments and business
matters, has made investments of a speculative nature and has purchased
securities of United States publicly-owned companies in private placements in
the past and, with its representatives, has such knowledge and experience in
financial, tax and other business matters as to enable the Subscriber to utilize
the information made available by the Company, to evaluate the merits and risks
of an investment in the Company and to make an informed investment decision with
respect to the proposed purchase, which represents a speculative
investment. The Subscriber is a natural person or an entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite corporate or partnership
power and authority to enter into and to consummate the transactions
contemplated by this Agreement and otherwise to carry out its obligations
hereunder. The execution, delivery and performance by the Subscriber
of the transactions contemplated by this Agreement has been duly authorized by
all necessary corporate or, if the Subscriber is not a corporation, such
partnership, limited liability company or other applicable like action, on the
part of the Subscriber. This Agreement has been duly executed by the
Subscriber and when delivered by the Subscriber in accordance with terms hereof,
will constitute the valid and legally binding obligation of the Subscriber,
enforceable against it in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors’ rights and remedies or by
other equitable principles of general application. The Subscriber is able to
bear the risk of such investment for an indefinite period and to afford a
complete loss thereof. The information set forth on the signature
page hereto regarding the Subscriber is accurate.
(c) Purchase of Shares and
Investment Intent. The Subscriber is purchasing the Shares for its own
account for the Purchase Price. The Subscriber is acquiring the
Shares as principal for its own account for investment purposes only and not
with a view to or for distributing or reselling such Shares or Warrant or any
part thereof, without prejudice, however, to the Subscriber’s right at all times
to sell or otherwise dispose of all or any part of such Shares in compliance
with applicable federal and state securities laws. The Subscriber
does not have any agreement or understanding, directly or indirectly, with any
person to distribute any of the Shares. The Subscriber also represents that its
purchase of the Shares is intended to be made as an “Offshore Transaction” as
defined in Regulation S.
(d) Compliance with Securities
Act. The Subscriber understands and agrees that the Shares
have not been registered under the 1933 Act, by reason of their issuance in a
transaction that does not require registration under the 1933 Act (based in part
on the accuracy of the representations and warranties of the Subscriber
contained herein), and that such Shares must be held unless a subsequent
disposition is registered under the 1933 Act or is exempt from such
registration.
(e) Legend on
Shares. The Shares shall bear the following legend (or
something comparable for the Warrant), unless the Shares shall have been
included in an effective registration statement under the 1933 Act:
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"THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THESE
SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT
REQUIRED.”
(f) Communication of
Offer. The offer to sell the Shares was directly communicated
to the Subscriber. At no time was the Subscriber presented with or
solicited by any leaflet, newspaper or magazine article, radio or television
advertisement, or any other form of general advertising or solicited or invited
to attend a promotional meeting otherwise than in connection and concurrently
with such communicated offer.
(g) Certain Trading
Activities. The Subscriber has not directly or indirectly, nor
has any person acting on behalf of or pursuant to any understanding with the
Subscriber, engaged in any trading in any securities of the Company (including,
without limitation, any Short Sales (defined below) involving the Company’s
securities) during the 20 trading days immediately preceding the
Closing. For purposes of this Section, "Short Sales" include, without
limitation, all “short sales” as defined in Rule 3b-3 of the Securities Exchange
Act of 1934, as amended (the “1934 Act”) and include all
types of direct and indirect stock pledges, forward sale contracts, options,
puts, calls, short sales, swaps and similar arrangements (including on a total
return basis), and sales and other transactions through non-U.S. broker dealers
or foreign regulated brokers having the effect of hedging the securities or
investment made under this Agreement. As of the date of this
Agreement, the Subscriber has no open short position in the Common Stock, and
covenants that neither it nor any person acting on its behalf or pursuant to any
understanding with it will engage in any Short Sales prior to the public
disclosure of the material terms of this transaction by the
Company.
(h) Correctness of
Representations. The Subscriber represents that the foregoing
representations and warranties are true and correct. The foregoing
representations and warranties shall survive the date hereof.
2. Company Representations and
Warranties. The Company represents and warrants to and agrees
with the Subscriber that:
(a) Due
Incorporation. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has the requisite corporate power to own its properties and to carry on its
business as now being conducted. The Company is duly qualified as a
foreign corporation to do business and is in good standing in each jurisdiction
where the nature of the business conducted or property owned by it makes such
qualification necessary, other than those jurisdictions in which the failure to
so qualify would not have a material adverse effect on the business, operations
or financial condition of the Company.
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(b) Outstanding
Stock. All issued and outstanding shares of capital stock of
the Company have been duly authorized and validly issued and are fully paid and
non-assessable.
(c) Authority;
Enforceability. This Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement
enforceable in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights generally and to
general principles of equity; and the Company has full corporate power and
authority necessary to enter into this Agreement and to perform its obligations
hereunder.
(d) Shares Duly
Authorized. The Shares when issued and delivered in accordance
with the terms of this Agreement, will be duly authorized, validly issued, fully
paid and non-assessable.
(e) Stop
Transfer. The Shares are restricted securities as of the date
of this Agreement. The Company will not issue any stop transfer order
or other order impeding the sale, resale or delivery of the Stock, except as may
be required by federal securities laws.
(f) No General
Solicitation. Neither the Company, nor any of its affiliates,
nor to its knowledge, any person acting on its or their behalf, has engaged in
any form of general solicitation or general advertising (within the meaning of
Regulation S or D under the 0000 Xxx) in connection with the offer or sale of
the Shares.
3. Regulation S
Offering. This offering is being made pursuant to the
exemption from the registration provisions of the 1933 Act afforded by
Regulation S thereunder.
4. Reissuance of
Shares. The Company will cause the removal of the legend set
forth in Section 1(e) above at such time as (a) the Subscriber is permitted to,
and disposes of, the Shares pursuant to an exemption to the registration
requirements of the 1933 Act or Rule 144 of the 1933 Act, in the opinion of
counsel reasonably satisfactory to the Company, or (b) upon sale of the Shares
pursuant to an effective registration statement under the 1933
Act. The Company agrees to cooperate with the Subscriber in
connection with all sales pursuant to Rule 144 of the 1933 Act and provide legal
opinions necessary to allow such sales provided the Company and its counsel
receive requested written representations from the Subscriber and selling
broker, if any. The Company will pay for its costs in connection with
the removal of the legend hereunder.
5. “Piggy-Back” Registration
Rights.
(a) The
Company agrees that when it registers any Common Stock under the 1933 Act by
registration on Form S-1 or other similar form for sale for the account of one
or more holders of Common Stock, the Company will use its best efforts to
register all or some portion of the Shares in such registration statement as the
Company may reasonably determine feasible. The Company will pay all
expenses incident to the registration of the Shares hereunder and the Company’s
performance of or compliance with this Agreement.
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(b) The
Seller will furnish to the Company in writing such information and
representation letters with respect to itself and the proposed distribution by
it as reasonably shall be necessary in order to assure compliance with federal
and state securities laws.
6. Fees and
Expenses. Each party shall pay the fees and expenses of its
advisers, counsel, accountants and other experts, if any, and all other expenses
incurred by such party incident to the negotiation, preparation, execution,
delivery and performance of this Agreement. The Company shall pay all
stamp and other taxes and duties levied in connection with the issuance of the
Shares.
7. Miscellaneous.
(a) Notices. All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery or facsimile, addressed as set forth below or to
such other address as such party shall have specified most recently by written
notice. Any notice or other communication required or permitted to be
given hereunder shall be deemed effective (a) upon hand delivery or delivery by
facsimile, with accurate confirmation generated by the transmitting facsimile
machine, at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the second business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses
for such communications shall be: (i) if to the Company to Calypte Biomedical
Corporation, 00000 XX Xxxxx Xxxxxx Xxxxx Xxxx, Xxxxxxxx,
Xxxxxx 00000, facsimile number: (000) 000-0000, and (ii) if to the
Subscriber, to the name, address and facsimile number set forth on the signature
page hereto.
(b) Closing. The
closing of the transactions contemplated by this Agreement shall take place on
May 1, 2009 at 5:00 p.m. (Pacific Standard Time) at the Company’s corporate
office or such other location and time as may be determined by the
Company. At the closing, the Subscriber shall deliver to the Company
the Purchase Price in United States dollars and in immediately available funds,
by wire transfer to the following account:
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Pay
to:
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FC
– Silicon Valley Bank
|
|
0000
Xxxxxx Xxxxx
|
|
|
Xxxxx
Xxxxx, XX 00000, XXX
|
|
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Routing
& Transit #:
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\\FW:000000000
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Swift
Code:
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XXXXXX0X
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For
Credit of:
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Calypte
Biomedical Corporation
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Final
Credit Account #:
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FNC
–
3300349200
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Upon
receipt of the Purchase Price, the Company shall deliver to the Subscriber, the
Shares.
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(c) Entire Agreement;
Assignment. This Agreement represents the entire agreement
between the parties hereto with respect to the subject matter hereof and may be
amended only by a writing executed by both parties. No right or
obligation of either party shall be assigned by that party without the written
consent of the other party.
(d) Execution. This
Agreement may be executed in separate counterparts, each of which shall be
deemed an original and both of which shall constitute one and the same
document. This Agreement may be executed by facsimile
transmission.
(e) Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Oregon without regard to principles of
conflicts of laws. Any action brought by either party against the
other concerning the transactions contemplated by this Agreement shall be
brought only in the state courts of Oregon or in the federal courts located in
the state of Oregon. Both parties and the individuals executing this
Agreement agree to submit to the jurisdiction of such courts and waive trial by
jury. The prevailing party shall be entitled to recover from the
other party its reasonable attorney's fees and costs. In the event
that any provision of this Agreement or any other agreement delivered in
connection herewith is invalid or unenforceable under any applicable statute or
rule of law, then such provision shall be deemed inoperative to the extent that
it may conflict therewith and shall be deemed modified to conform with such
statute or rule of law. Any such provision which may prove invalid or
unenforceable under any law shall not affect the validity or enforceability of
any other provision of any agreement.
(f) Specific Enforcement,
Consent to Jurisdiction. The Company and the Subscriber
acknowledge and agree that irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed
that the parties shall be entitled to an injunction or injunctions to prevent or
cure breaches of the provisions of this Agreement and to enforce specifically
the terms and provisions hereof or thereof, this being in addition to any other
remedy to which any of them may be entitled by law or equity. Subject
to Section 7(e) hereof, each of the Company and the Subscriber hereby waives,
and agrees not to assert in any such suit, action or proceeding, any claim that
it is not personally subject to the jurisdiction of such court, that the suit,
action or proceeding is brought in an inconvenient forum or that the venue of
the suit, action or proceeding is improper. Nothing in this Section
shall affect or limit any right to serve process in any other manner permitted
by law.
[REMAINDER
OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the
parties have hereby executed this Agreement as of the day set forth in the
acceptance set forth below.
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5,000,000
|
SUBSCRIBER
NAME:
|
|
Number
of Shares
|
|
| _________________________________________ | |
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$150,000
|
|
|
Dollar
Amount of Subscription
Tendered
by Subscriber
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By:
______________________________________
Title:
_____________________________________
|
|
_________________________________________
(Street
Address)
|
|
|
_________________________________________
(City
and Country)
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|
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_________________________________________
Telephone
Number
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ACCEPTANCE
The
foregoing subscription is hereby accepted, subject to the terms and conditions
hereof, as of May 1, 2009.
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$150,000
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CALYPTE
BIOMEDICAL CORPORATION
|
|
|
Amount
of Subscription Accepted
|
||
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5,000,000
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By:
|
|
|
Number
of Shares
|
Name: Xxxx
Xxxxx
|
|
|
Title: Chief
Executive
Officer
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