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.
SUBSCRIPTION 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 $0.18 per
share (the aggregate amount to be paid by the Subscriber shall be referred to as
the "Purchase Price"). After acceptance of this agreement (the "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) Information on Company. The Subscriber has been furnished with
the Company's Form 10-KSB for the year ended December 31, 2005 as filed with the
Securities and Exchange Commission (the "Commission") together with all
subsequently filed Forms 10-QSB, 8-K, Proxy Statement, and other publicly
available filings made with the Commission (hereinafter referred to collectively
as the "Reports"). In addition, the Subscriber has received from the Company
such other information concerning its operations, financial condition and other
matters as the Subscriber has requested (such information in writing is
collectively, the "Other Written Information"), and considered all factors the
Subscriber deems material in deciding on the advisability of purchasing the
Shares.
(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 Shares 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 of companies 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 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.
Page 1
(c) Purchase of Shares and Investment Intent. On the Closing Date,
the Subscriber will purchase 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 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.
Subject to the immediately preceding sentence, nothing contained herein shall be
deemed a representation or warranty by such Investor to hold the Shares for any
period of time. Such Investor is acquiring the Shares hereunder in the ordinary
course of its business. Such Investor 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,
unless the Shares shall have been included in an effective registration
statement under the 1933 Act:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED. THESE SHARES MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO CALYPTE BIOMEDICAL CORPORATION THAT SUCH
REGISTRATION IS NOT REQUIRED."
Page 2
(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 limitations, 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 as of the date
hereof and, unless the Subscriber otherwise notifies the Company prior to the
Closing Date (as hereinafter defined), shall be true and correct as of the
Closing Date. The foregoing representations and warranties shall survive the
Closing Date.
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.
(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 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.
Page 3
(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 Act) 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, or any of its affiliates, the legend
set forth in Section 1(e) above at such time as (a) the holder thereof is
permitted to and disposes of such Shares pursuant to Rule 144(d) and/or Rule
144(k) of the 1933 Act in the opinion of counsel reasonably satisfactory to the
Company, or (b) upon resale 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 resales pursuant to Rule 144(d) and Rule
144(k) of the 1933 Act and provide legal opinions necessary to allow such
resales provided the Company and its counsel receive requested written
representations from the Subscriber and selling broker, if any.
5. "Piggy-Back" Registration Rights.
(a) The Company agrees that when it registers any Common Stock under
the Securities Act by registration on Form SB-2 or other similar form for sale
for the account of one or more holders of Common Stock, the Company will
register the Shares in such registration statement. 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.
(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 Securities.
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, telegram, 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, 0 Xxxxxxxxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxxx, 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.
Page 4
(b) Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place on June 16, 2006 at 5:00 p.m.
(Pacific Standard Time) or such other location and time as may be determined by
the Company at the offices of Xxxxx Winner Xxxxxxx, Esq., 00000 Xxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxx, 00000. 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:
Pay to: FC - Silicon Valley Bank
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000, XXX
Routing & Transit #: \\FW:000000000
--------------
Swift Code: XXXXXX0X
For Credit of: Calypte Biomedical Corporation
Final Credit Account #: FNC - 3300349200
(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.
Page 5
(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.
SUBSCRIBER NAME:
-----------------------------------
Number of Shares which Subscriber
Desires to Purchase
By:
----------------------------------- -------------------------------------
Dollar Amount of Subscription
Tendered by Subscriber
----------------------------------------
(Street Address)
----------------------------------------
(City and State) (Zip Code)
----------------------------------------
Telephone Number
ACCEPTANCE
The foregoing subscription is hereby accepted, subject to the terms and
conditions hereof, as of June __, 2006.
------------------------------------ CALYPTE BIOMEDICAL CORPORATION
Amount of Subscription Accepted
By:
------------------------------------ -------------------------------------
Number of Shares Name: Xxxxx X. Xxxx
Title: Chief Executive Officer
Page 7
