AMENDMENT TO SECURITIES PURCHASE AGREEMENT
THIS AMENDMENT (this "Amendment") to Securities Purchase Agreement (the
"Purchase Agreement") is made as of April 4, 2005, by and among Calypte
Biomedical Corporation, a Delaware corporation (the "Company"), and the
Investors identified on the signature pages hereto (collectively, the
"Investors"). Unless otherwise defined herein, all capitalized terms used herein
shall have the meanings given to them in the Purchase Agreement referred to
below.
WHEREAS, the Company and the Investors are parties to Securities Purchase
Agreements dated as of May 28, 2004 or July 9, 2004 (collectively, the "Purchase
Agreement");
WHEREAS, pursuant to the Purchase Agreement, in the event of the issuance
of Common Stock or Common Stock Equivalents at a purchase price per share less
than the Threshold Price, the Investors are entitled to immediately (i) receive
Additional Shares as set forth in the Purchase Agreement, (ii) adjust the
Exercise Price under the Warrant, and (iii) receive additional Warrant Shares as
set forth under the Warrant, (collectively, the "Anti-Dilution Entitlements");
WHEREAS, the Company proposes to issue and sell certain Common Stock
Equivalents and enter into definitive agreements in connection therewith (the
"Financing"), which would trigger the Anti-Dilution Entitlements;
WHEREAS, the Investors holding a majority of the Shares (the "Required
Investors") are willing, subject to the terms hereof, to amend certain
provisions of the Purchase Agreement and the Warrants so that the Anti-Dilution
Entitlements that would be triggered as a result of the Financing do not become
effective unless and until approved by the stockholders of the Company, which
approval the Company will first seek at its annual meeting of stockholders to be
held on or about June 7, 2005 (the "Meeting");
WHEREAS, in consideration of the foregoing, the Company agrees to issue to
each Investor Additional Shares (as hereinafter defined), other additional
shares of Common Stock as described in Section 3 and additional Warrant Shares
(collectively, the "New Entitlements") on the terms and conditions and as more
particularly set forth herein; and
WHEREAS, the parties agree to amend and modify the Purchase Agreement to
provide for certain other modifications and amendments agreed to by the parties
in accordance with the provisions set forth in Section 6.4 of the Purchase
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and each Investor,
severally and not jointly, agree as follows:
1.1. Section 4.7 of the Purchase Agreement is hereby amended and restated to
read in its entirety as follows:
"Section 4.7. Additional Shares. If, prior to the first year
anniversary of the Closing Date, the Company issues any shares of
Common Stock or the Company or any Subsidiary issues any Common Stock
Equivalents entitling any Person to acquire shares of Common Stock at a
price per share less than less than the Threshold Price (if the holder
of the Common Stock or Common Stock Equivalent so issued shall at any
time, whether by operation of purchase price adjustments, reset
provisions, floating conversion, exercise or exchange prices or
otherwise, or due to warrants, options or rights issued in connection
with such issuance, be entitled to receive shares of Common Stock at a
price less than the Threshold Price, such issuance shall be deemed to
have occurred for less than the Threshold Price), then, in connection
with each such issuance of Common Stock or Common Stock Equivalents for
a purchase price that is less than the Threshold Price, the Company
shall issue additional shares of Common Stock (the "Additional Shares")
to each Investor for no additional consideration. The number of
Additional Shares issuable to each Investor will equal: (a) the
Threshold Price minus the lowest price per share of the Common Stock or
Common Stock Equivalents offered or sold that trigger an obligation
under this Section divided by (b) the Threshold Price, multiplied by
(c) the number of Shares issued to such Investor at the Closing
pursuant to Section 2.2(a)(i). Additional Shares may not be issued
under this paragraph unless and until this provision is approved by the
stockholders of the Company in accordance with the rules and
regulations of the American Stock Exchange, which approval the Company
will first seek at the Meeting. Any issuances of Additional Shares that
otherwise would have occurred prior to obtaining such stockholder
approval, but which cannot hereunder be issued until such approval is
obtained, will be carried forward until, and will become effective and
be made at, such time as such approval is obtained.
The Additional Shares shall be entitled to the registration
and other rights set forth in the Registration Rights Agreement
(including the piggy-back registration rights thereunder). In addition,
if the stockholders of the Company approve the issuance of Additional
Shares at the Meeting, the Company will use its best efforts to
register such Additional Shares no later than July 15, 2005.
Notwithstanding the foregoing, no issuances of Additional
Shares will be made under this Section as a result of: (i) the issuance
of Warrant Shares, (ii) the issuance of securities upon the exercise or
conversion of any Common Stock or Common Stock Equivalents issued by
the Company prior to the date hereof (but will apply to any amendments,
modifications and reissuances thereof), (iii) the grant of options or
warrants, or the issuance of additional securities, under any duly
authorized Company stock option, restricted stock plan or stock
purchase plan whether now existing or approved by the Company and its
stockholders in the future (but not as to any amendments or other
modifications to the number of Common Stock issuable thereunder, the
terms set forth therein, or the exercise price set forth therein,
unless such amendments or other modifications are approved by the
Company's stockholders), (iv) up to an aggregate of 500,000 shares of
Common Stock (including any shares of Common Stock issuable in respect
of Common Stock Equivalents) issued or issuable as part of an equipment
financing line in the ordinary course of business or a modification to
the existing MTVB facility, approved by the Company's Board of
Directors, in each case, at a price not less than the market price of
the Common Stock at the time of the issuance, (v) issuance of shares of
Common Stock to Logisticorp and Southwest Resource Preservation, Inc.,
based upon the issuance and conversion of outstanding convertible
debentures, with the issuance of said Common Stock not to exceed
700,000 shares, or (vi) the grant of options and warrants to
consultants for bona fide consulting services as approved by the
Company's Board of Directors."
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2. Section 9(c) of the Warrant is hereby amended and restated to read in its
entirety as follows:
"(c) Subsequent Equity Sales.
(i) If the Company or any subsidiary thereof, as applicable with
respect to Common Stock Equivalents, at any time prior to the first year
anniversary of the Closing Date, shall issue any securities of the Company or
any Subsidiary which entitle the holder thereof to acquire Common Stock at any
time, including without limitation, any debt, preferred stock, rights, options,
warrants or any other instrument that is at any time convertible into or
exchangeable for, or otherwise entitles the holder thereof to receive, Common
Stock or Common Stock Equivalents entitling any Person to acquire shares of
Common Stock, at a price per share less than $0.40 (appropriately adjusted for
any stock splits, stock combinations or similar events occurring prior to such
time) (if the holder of the Common Stock or Common Stock Equivalent so issued
shall at any time, whether by operation of purchase price adjustments, reset
provisions, floating conversion, exercise or exchange prices or otherwise, or
due to warrants, options or rights issued in connection with such issuance, be
entitled to receive shares of Common Stock at a price less than $0.40
(appropriately adjusted for any stock splits, stock combinations or similar
events occurring prior to such time)), such issuance shall be deemed to have
occurred for less than $0.40 (appropriately adjusted for any stock splits, stock
combinations or similar events occurring prior to such time)), then, at the
option of the Holder for such exercises as it shall indicate, the Exercise Price
shall be multiplied by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding immediately prior to the issuance of such
shares of Common Stock or such Common Stock Equivalents plus the number of
shares of Common Stock which the offering price for such shares of Common Stock
or Common Stock Equivalents would purchase at the Exercise Price, and the
denominator of which shall be the sum of the number of shares of Common Stock
outstanding immediately prior to such issuance plus the number of shares of
Common Stock so issued or issuable. Adjustments to the Exercise Price under this
paragraph shall not become effective unless and until this provision is approved
by the stockholders of the Company in accordance with the rules and regulations
of the American Stock Exchange, which approval the Company will first seek at
the Meeting. Any adjustments that would have occurred prior to obtaining such
stockholder approval, but which cannot hereunder be made until such approval is
obtained, will be carried forward until, and will become effective at, such time
as such approval is obtained. Notwithstanding the foregoing, no adjustment will
be made under this Section 9(c) in respect of:
(1) any grant of an option or warrant for Common Stock or
issuance of any shares of Common Stock upon the exercise of any options or
warrants to employees, officers and directors of or consultants to the Company
pursuant to any stock option plan, employee stock purchase plan or similar plan
or incentive or consulting arrangement approved by the Company's board of
directors;
(2) any restricted stock awards approved by the Company's
Board of Directors;
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(3) shares of Common Stock or Common Stock Equivalents issued
as consideration for the acquisition of another company or business in which the
shareholders of the Company do not have an ownership interest, which acquisition
has been approved by the Board of Directors of the Company;
(4) any rights or agreements to purchase Common Stock
Equivalents outstanding on the date hereof and as specified in Schedule 3.1(g)
to the Purchase Agreement (but not as to any amendments or other modifications
to the number of Common Stock issuable thereunder, the terms set forth therein,
or the exercise price set forth therein);
(5) issuance of shares of Common Stock to Logisticorp and
Southwest Resource Preservation, Inc., based upon the issuance and conversion of
outstanding convertible debentures, with the issuance of said Common Stock not
to exceed 700,000 shares; or
(6) up to an aggregate of 500,000 shares of Common Stock
(including any shares of Common Stock issuable in respect of Common Stock
Equivalents) issued or issuable as part of an equipment financing line in the
ordinary course of business or a modification to the existing MTVB facility,
approved by the Company's Board of Directors, in each case, at a price not less
than the market price of the Common Stock at the time of the issuance.
(ii) If, at any time while this Warrant is outstanding, the Company
or any Subsidiary issues Common Stock Equivalents at a price per share that
floats or resets or otherwise varies or is subject to adjustment based on market
prices of the Common Stock (a "Floating Price Security"), then for purposes of
applying the preceding paragraph in connection with any subsequent exercise, the
Exercise Price will be determined separately on each Exercise Date and will be
deemed to equal the lowest price per share at which any holder of such Floating
Price Security is entitled to acquire shares of Common Stock on such Exercise
Date (regardless of whether any such holder actually acquires any shares on such
date)."
3. A new provision is hereby added to the Purchase Agreement to read in its
entirety as follows:
"The parties agree that, subject to the approval of the
stockholders in accordance with the rules and regulations of the
American Stock Exchange, which approval the Company will first seek at
the Meeting, in addition to (i) issuing Additional Shares pursuant to
Section 4.7 of the Purchase Agreement, (ii) adjusting the Exercise
Price pursuant to Section 9(c) of the Warrant, and (iii) issuing
additional Warrant Shares pursuant to Section 9(d) of the Warrant, the
Company will issue the following New Entitlements to each Investor: (x)
additional shares of Common Stock equal to 5% of the Additional Shares
issuable pursuant to Section 4.7 of the Purchase Agreement, (y)
additional Warrant Shares issuable pursuant to Section 9(d) of the
Warrant at a purchase price of $0.325, and (z) additional Warrant
Shares equal to 5% of the additional Warrant Shares issuable pursuant
to Section 9(d) of the Warrant for a purchase price of $0.325, all as
more specifically set forth after each Investor's name on the table
attached hereto as Exhibit A."
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4. The parties agree that the New Entitlements if approved by the stockholders
of the Company at the Meeting, shall constitute Registrable Securities under the
terms of Registration Rights Agreement.
5. The Company shall use its reasonable best efforts to timely and properly call
the Meeting, and prepare and file a proxy statement with the Commission in
connection therewith requesting stockholder approval of the Anti-dilution
Entitlements and the New Entitlements.
6. This Amendment shall not be binding upon the Company or the Investors unless
and until each of the Required Investors has delivered an executed copy of this
Amendment to the Company.
7. Except for the amendments provided for herein, the Transaction Documents
shall remain unchanged and in full force and effect.
8. The obligations of each Investor under this Amendment are several and not
joint with the obligations of any other Investor, and no Investor shall be
responsible in any way for the performance of the obligations of any other
Investor hereunder. The decision of each Investor to enter into this Amendment
has been made by such Investor independently of any other Investor. Nothing
contained herein and no action taken by any Investor hereunder shall be deemed
to constitute the Investors as a partnership, an association, a joint venture or
any other kind of entity, or create a presumption that the Investors are in any
way acting in concert or as a group with respect to this Amendment or the
transactions contemplated by the Transaction Documents.
9. This Amendment may be executed in any number of separate counterparts, each
of which shall be deemed to be an original, but all of which together shall be
deemed to be one and the same instrument.
10. 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]
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[SIGNATURE PAGE FOR THE COMPANY]
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment Agreement to be duly executed and delivered as of the date first
above written.
CALYPTE BIOMEDICAL CORPORATION
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: EVP and CFO
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[SIGNATURE PAGE FOR INVESTORS]
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment Agreement to be duly executed and delivered as of the date first
above written.
SF Capital Partners Ltd.
---------------------------------
Name of Investor
By:
-----------------------------
Signature
Its:
-----------------------------
Title
Xxxx Technologies BV
---------------------------------
Name of Investor
By:
-----------------------------
Signature
Its:
-----------------------------
Title
United Capital Partners LLC
---------------------------------
Name of Investor
By:
-----------------------------
Signature
Its:
-----------------------------
Title
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EXHIBIT A
TABLE OF INVESTOR ENTITLEMENTS
Additional
shares
(3)
Closing price - $8M Financing $0.300
------
Common Stock Calculation
Additional shares/Million shares purchased (1) 262,500
Shares
Purchased
May PIPE
SF Capital Partners LP 10,000,000 2,625,000
Xxxx Technologies BV 7,500,000 1,968,750
Proximity Fund 1,250,000 328,125
Proximity Partners 1,250,000 328,125
MTB Small Cap Growth
Fund 1,250,000 328,125
MTB Multi Cap Growth
Fund 1,250,000 328,125
Bridges & PIPES 750,000 196,875
---------
6,103,125
July PIPE
United Capital Partners,
LLC 1,250,000 328,125
Sunrise Equity Partners 1,875,000 492,188
Xxxxx Xxxxxxxxxx 200,000 52,500
Xxxxx Xxxxxxxxxx 20,000 5,250
TCMP3 Partners 375,000 98,438
--------
976,501
--------
7,079,626
=========
(1) Based on the granting of an additional 25,000 shares for each (cent) that
the Financing closes below $0.40, plus 5%
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Exhibit A, Continued
------------------------------------ --------------- ---------------
Warrant Shares A Warrant $: 0.325
------------------------------------ --------------- ---------------
Warrant Shares B Warrant $: 0.325
------------------------------------ --------------- ---------------
All initial warrants and additional warrants will be re-priced/priced at the
closing price of the Financing - based on the size of the transaction and the
outstanding shares at closing - see note (5) Price and number of new warrants
will be fixed at closing.
--------------------------------------------------------------------
Warrant share calculation using assumed closing data:
--------------------------------------------------------------------
Dilution New price
factor
New shares At deal price At $0.50 price
------------- --------------
$8M @ $0.30 = 26,666,667 16,000,000
$60k fee @ $0.30 = 200,000 120,000
--------------- ---------------
26,866,667 16,120,000
--------------- ---------------
Series A exercised/100% = 26,866,667 17,463,334
Series B exercised/45% = 12,090,000 7,858,500
Outstanding shares 3/31/05 171,207,589 171,207,589
--------------- ---------------
Total dilution 237,030,923 212,649,423 0.897138 0.45
=============== ===============
Total warrants
Value @ per Additional (inc. 5%)
Warrant Shares $0.50 section 9 c) d) Warrants Additional
Granted per share per share (2)(3) Warrants (4)
------- --------- --------- ------ ------------
May PIPE
SF Capital Partners LP 3,500,000 $ 1,750,000 3,888,889 388,889 408,333
Xxxx Technologies BV 2,625,000 $ 1,312,500 2,916,667 291,667 306,250
Proximity Fund 437,500 $ 218,750 486,111 48,611 51,042
Proximity Partners 437,500 $ 218,750 486,111 48,611 51,042
MTB Small Cap Growth Fund 437,500 $ 218,750 486,111 48,611 51,042
MTB Multi Cap Growth Fund 437,500 $ 218,750 486,111 48,611 51,042
Bridges & PIPES 262,500 $ 131,250 291,667 29,167 30,625
------------- --------------
904,167 949,376
July PIPE
United Capital Partners, LLC 875,000 $ 437,500 972,222 97,222 102,083
Sunrise Equity Partners 1,312,500 $ 656,250 1,458,333 145,833 153,125
Xxxxx Xxxxxxxxxx 140,000 $ 70,000 155,556 15,556 16,334
Xxxxx Xxxxxxxxxx 14,000 $ 7,000 15,556 1,556 1,634
TCMP3 Partners 262,500 $ 131,250 291,667 29,167 30,625
------------- --------------
289,334 303,801
------------- --------------
---------------
10,741,500 1,193,501 1,253,177
=============== ============= ==============
------------------------------------ --------------- --------------- -- --------------------------- -- ------------- --------------
New Warrant Price $ 0.45 $ 0.325
------------------------------------ --------------- --------------- -- --------------------------- -- ------------- --------------
(2) Warrants will result in Additional Shares if exercise occurs before
stockholder approval - assuming approval.
(3) This amendment, once approved, will be offered to all investors in the May
and July 2004 PIPEs in accordance with the terms of the respective
agreements.
(4) The Additional Warrants have been increased 5% under this Amendment with
pricing at $0.325
(5) This Warrant re-pricing would be adjusted if the closing price of the
Warrants is other than $0.325:
Re-pricing to $0.46 @ $0.365. The Warrants are not anti-dilutive at or
above $0.40.
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