AMENDMENT NO. 3 TO SECURED 8% CONVERTIBLE PROMISSORY NOTES
AMENDMENT
NO. 3 TO SECURED 8% CONVERTIBLE PROMISSORY NOTES
THIS
AMENDMENT NO. 3 (this "Amendment")
to
Secured 8% Convertible Promissory Notes, as amended by Amendment No. 2 to
Secured 8% Convertible Promissory Notes dated July 3, 2007, and Amendment to
Secured 8% Convertible Promissory Notes dated March 21, 2007 (each, a
“Note,”
and
collectively, the "Notes"),
is
made as of December 3, 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 has agreed that if the Investor immediately exercises all of the
currently outstanding warrants issued to it by the Company 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 Company 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 Company
agree, for a period of one (1) year from the date of this Amendment (the
“Term”),
to
lower the Conversion Price of the Notes currently outstanding, and of all Notes
to be issued during the Term in payment of interest on the outstanding principal
amount of the Notes, to $0.16 per share;
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. The
definition of “Conversion Price” is hereby amended and restated to read in its
entirety as follows:
“‘Conversion
Price’
means
$0.16 during the Term. At the end of the Term, the Conversion Price will
automatically revert back to the definition set forth
in the
Notes, which states, for the avoidance of any doubt, ‘Conversion
Price’
means
$0.30 subject to adjustment from time to time pursuant to Section
11.’”
2. Except
for the amendments provided for herein, the Notes shall remain unchanged and
in
full force and effect.
3. 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.
4. 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
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By: | /s/ Xxxxx X. Xxxx | |
Signature
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Its: | Chief Executive Officer | |
Title
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[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.
Xxxx
Technologies BV
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Name
of Investor
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By: | /s/ X. Xxxxx | |
X.
Xxxxx
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Its: | Director | |
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Schedule
A
Outstanding
Warrants
Warrants
to purchase an aggregate of 3,392,916 shares of Common Stock at $0.03 per
share.
Warrants
to purchase an aggregate of 5,089,375 shares of Common Stock at $0.10 per
share.
4