AMENDMENT TO SECURED 8% CONVERTIBLE PROMISSORY NOTES
AMENDMENT
TO SECURED 8% CONVERTIBLE PROMISSORY NOTES
THIS
AMENDMENT (this "Amendment")
to
Secured 8% Convertible Promissory Notes (each, a “Note,”
and
collectively, the "Notes")
is
made as of March 21, 2007, by and between Calypte Biomedical Corporation, a
Delaware corporation (the "Company"),
and
Xxxx Technologies BV, a limited liability company established in the Netherlands
(the “Investor”).
If
there is any inconsistency between the terms of this Amendment and any other
agreement referenced herein, the terms of this Amendment will
govern.
WHEREAS,
the Company and the Investor are parties to (i) the Securities Purchase
Agreement dated May 28, 2004 (the “Securities
Purchase Agreement”)
among
the Company and the investors signatory thereto ( “Investors
I”),
pursuant to which the Company issued and sold to Investors I, and Investors
I
purchased from the Company, certain shares and warrants pursuant to the terms
set forth in the Securities Purchase Agreement, (ii) the Amendment to Securities
Purchase Agreement dated April 4, 2005 (the “Amendment
to Securities Purchase Agreement”)
among
the Company and Investors I, pursuant to which Investors I received certain
anti-dilution entitlements and new entitlements, including, without limitation,
certain warrants pursuant to the terms set forth in the Amendment to Securities
Purchase Agreement, (iii) the 2005 Credit Facility Agreement dated April 4,
2005, as amended November 30, 2005, February 22, 2006, July 6, 2006, December
22, 2006 and February 6, 2007 (collectively, the “Credit
Facility”),
between the Company and the Investor pursuant to which the Investor has loaned
money to the Company and the Company has issued to the Investor various secured
promissory notes (the “Secured
Notes”),
(iv)
the Purchase Agreement dated as of April 4, 2005 (the "Purchase
Agreement")
among
the Company and the investors signatory thereto ( “Investors
II”),
pursuant to which the Company issued and sold to Investors II, and Investors
II
purchased from the Company, certain secured 8% convertible promissory notes,
which included the Notes, Series A warrants and Series B warrants pursuant
to
the terms set forth in the Purchase Agreement, and (v) the letter agreement
dated July 7, 2006 (the “Letter
Agreement”)
between the Company and the Investor, pursuant to which the 2004 Warrants and
the 2004 Amendment Warrants were amended to lower their exercise price from
$0.45 to $0.15 for a period of time commencing through and including July 21,
2006, after which time the exercise price reverted back to $0.45 and to issue
to
the Investor an additional warrant equal to 50% of the aggregate amount of
the
2005 Amendment Warrants exercised before July 21, 2006 (the “2006 Additional
Warrant”);
WHEREAS,
the parties now desire to change the maturity date (the “Maturity
Date”)
of the
Notes issued by the Company to the Investor pursuant to the Purchase Agreement,
which consists of the initial Note in the principal amount of $2,800,000 and
the
Notes issued to the Investor on a quarterly basis as interest payments, in
accordance with the provisions set forth in Section 15(f) of the Notes and
Section 6.4 of the Purchase Agreement;
WHEREAS,
in consideration of the foregoing, the Company agrees to lower the exercise
price of the Investor’s currently outstanding warrants, which consist of
8,482,292 shares of the Company’s common stock pursuant to the 2006 Additional
Warrant (the “Warrant
Shares”),
as
follows: the Exercise Price of 40% of the Warrants Shares, equaling 3,392,917
Warrant Shares, will be lowered to $0.03 per Warrant Share and the Exercise
Price of 60% of the Warrant Shares, equaling 5,089,375 Warrant Shares, will
be
lowered to $0.10 per Warrant Share, and to change the expiration date of the
warrants to coincide with the change of the Maturity Date of the Notes;
and
WHEREAS,
the parties agree to amend and modify the 2006 Additional Warrant to delete
the
provision of piggyback registration rights from the 2006 Additional Warrant.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the Company and the Investor agree as
follows:
1. All
references in the Notes to the due date of “April 3, 2007” are hereby amended to
“April 3, 2009.”
2. The
2006
Additional Warrant is hereby amended to lower the exercise prices as more
specifically set forth in the amended warrants, which are attached hereto as
Exhibit
A-1,
and
Exhibit
A-2
and to
delete the provision of piggyback registration rights from the 2006 Additional
Warrant.
3. The
Expiration Date (as defined in the 2006 Additional Warrant) is hereby amended
to
April 3, 2009.
4. This
Amendment shall not be binding upon the Company or the Investor unless and
until
SF Capital Partners Ltd. (“SF”)
has
executed and delivered to the Company an Amendment to Secured 8% Convertible
Promissory Notes in which SF agrees to change the maturity date to April 3,
2009
of all notes issued to it by the Company in connection with that certain
Purchase Agreement dated April 4, 2005 (including, without limitation, any
notes
issued to it for the payment of interest due on the notes).
5. Except
for the amendments provided for herein, the Notes and the 2006 Additional
Warrant shall remain unchanged and in full force and effect.
6. This
Amendment may be executed in counterparts, each of which shall be deemed to
be
an original, but which together shall be deemed to be one and the same
instrument.
7. This
Amendment shall be governed by and construed in accordance with the laws of
the
State of New York without giving effect to the conflicts of law principles
thereof.
[Signature
Pages Follow]
[SIGNATURE
PAGE FOR THE COMPANY]
IN
WITNESS WHEREOF,
each of
the parties hereto has caused a counterpart of this Amendment to be duly
executed and delivered as of the date first above written.
CALYPTE
BIOMEDICAL CORPORATION
By:
Xxxxxxx
X. Xxxxxxxxxx
Executive
Vice President
[SIGNATURE
PAGE FOR THE INVESTOR]
IN
WITNESS WHEREOF,
the
parties hereto has caused a counterpart of this Amendment to be duly executed
and delivered as of the date first above written.
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Xxxx
Technologies BV
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Name
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Signature
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Title
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