Exhibit 4.1
CALYPTE BIOMEDICAL CORPORATION
COMMON STOCK
PURCHASE AGREEMENT
November 2, 1998
NOTICE TO PURCHASERS IN ALL STATES:
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN EXAMINATION
OF THE ISSUER AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS
INVOLVED. THESE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE
SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING
AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF
THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR
RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS,
PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
INVESTORS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO
BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE
PERIOD OF TIME.
COMMON STOCK
PURCHASE AGREEMENT
This Agreement ("Agreement") is made as of October ___, 1998 (the
"Effective Date"), by and among Calypte Biomedical Corporation, a Delaware
corporation (the "Company"), and each of those persons and entities,
severally and not jointly, listed as a Purchaser on the Schedule of
Purchasers attached as Exhibit A hereto. Such persons and entities are
hereinafter collectively referred to herein as "Purchasers" and each
individually as a "Purchaser."
AGREEMENT
In consideration of the mutual covenants contained in this Agreement,
and for other good and valuable consideration, the receipt of which is hereby
acknowledged, the Company and each Purchaser (severally and not jointly)
hereby agree as follows:
SECTION 1. AUTHORIZATION OF SALE OF THE SECURITIES.
Subject to the terms and conditions of this Agreement, the Company has,
or before the Closing (as defined below) will have, authorized the sale and
issuance of up to 3,102,500 shares of its Common Stock (the "Common Stock").
The shares of Common Stock sold hereunder shall be referred to herein as the
"Shares" or the "Securities."
SECTION 2. AGREEMENT TO SELL AND PURCHASE THE SECURITIES.
2.1 SALE OF SHARES. At the Closing (as defined in Section 3), the
Company will sell to each Purchaser, and each Purchaser will purchase from
the Company, at a purchase price of one dollar ($1.00) per Share, the number
of Shares set forth next to such Purchaser's name on the Schedule of Purchasers
attached hereto as Exhibit A (the "Schedule of Purchasers").
2.2 SEPARATE AGREEMENT. Each Purchaser shall severally, and not
jointly, be liable for only the purchase of the Shares that appear on Exhibit
A hereto and that relate to such Purchaser. The Company's agreement with
each of the Purchasers is a separate agreement, and the sale of Shares to
each of the Purchasers is a separate sale. The obligations of each Purchaser
hereunder are expressly not conditioned on the purchase by any or all of the
other Purchasers of the Shares such other Purchasers have agreed to purchase.
SECTION 3. CLOSING AND DELIVERY.
3.1 Closing. The Closing of the purchase and sale of the Shares
pursuant to this Agreement (the "Closing") shall be held as soon as
practicable after the effectiveness of the Registration Statement, as set
forth in Section 9.1(a) hereof, to be filed with the Securities and Exchange
Commission (the "SEC" or the "Commission"), and satisfaction or waiver of all
other conditions to Closing set forth in Sections 7 and 8 hereof, at the
offices of Xxxxxx Xxxxxx White & XxXxxxxxx, 000 Xxxxxxxxxx Xxxxxx, Xxxx Xxxx,
Xxxxxxxxxx 00000, or on such other date and place as may be agreed to by the
Company and the Purchasers.
The Company shall give at least one (1) business day prior written
notice to the Purchasers, in a manner provided for in Section 11 hereof, of
the date, time and location of the Closing. At or prior to the Closing, each
Purchaser shall execute any related agreements or other documents required to
be executed hereunder, dated as of the date of the Closing (the "Closing
Date").
3.2 DELIVERY OF THE SHARES AT THE CLOSING. At the Closing, the
Company shall deliver to each Purchaser stock certificates registered in the
name of such Purchaser, or in such nominee name(s) as designated by such
Purchaser, representing the number of shares of Common Stock to be purchased
by such Purchaser at the Closing as set forth in the Schedule of Purchasers
against payment of the purchase price for such shares. The name(s) in which
the stock certificates are to be issued to each Purchaser are set forth in
the Stock Certificate Questionnaire in the form attached hereto as Appendix I,
as completed by each Purchaser.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
Except as set forth on the Schedule of Exceptions attached hereto
as Exhibit B, the Company hereby represents and warrants as of the date
hereof to, and covenants with, the Purchasers as follows:
4.1 ORGANIZATION AND STANDING. The Company has been duly
incorporated and is validly existing as a corporation in good standing under
the laws of Delaware, has full corporate power and authority to own or lease
its properties and conduct its business as presently conducted, and is duly
qualified as a foreign corporation and in good standing in all jurisdictions
in which the character of the property owned or leased or the nature of the
business transacted by it makes qualification necessary (except where the
failure to be so qualified would not have a material adverse effect on the
business, properties, financial condition or results or operations of the
Company). The Company has no subsidiaries or equity interest in any other
entity.
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4.2 CORPORATE POWER; AUTHORIZATION. The Company has all requisite
corporate power, and has taken all requisite corporate action, to execute and
deliver this Agreement, sell and issue the Shares and carry out and perform
all of its obligations under this Agreement. This Agreement constitutes the
legal, valid and binding obligation of the Company, enforceable in accordance
with its terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting the
enforcement of creditors' rights generally, (ii) as limited by equitable
principles generally, including any specific performance, and (iii) as to
those provisions of Section 9.3 relating to indemnity or contribution. The
execution and delivery of this Agreement does not, and the performance of
this Agreement and the compliance with the provisions hereof and the
issuance, sale and delivery of the Shares by the Company will not conflict
with, or result in a breach or violation of the terms, conditions or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien pursuant to the terms of, the Certificate of
Incorporation or Bylaws of the Company or any statute, law, rule applicable
to the Company or regulation or any state or federal order, judgment or
decree applicable to the Company or any indenture, mortgage, lease or other
agreement or instrument to which the Company or any of its properties is
subject, where such conflict, breach or violation would have a material
adverse effect on the Company.
4.3 ISSUANCE AND DELIVERY OF THE SHARES. The Shares, when issued
and paid for in compliance with the provisions of this Agreement, will be
validly issued, fully paid and nonassessable. The issuance and delivery of
the Shares is not subject to preemptive, co-sale, right of first refusal or
any other similar rights of the shareholders of the Company or any liens or
encumbrances.
4.4 SEC DOCUMENTS; FINANCIAL STATEMENTS. The Company has filed in
a timely manner all documents that the Company was required to file with the
SEC under Sections 13, 14(a) and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), during the twelve (12) months
preceding the date of this Agreement. As of their respective filing dates
(or, if amended prior to the date of this Agreement, when amended), all
documents filed by the Company with the SEC (the "SEC Documents") complied in
all material respects with the requirements of the Exchange Act. None of the
SEC Documents as of their respective dates contained any untrue statement of
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Documents (the "Financial
Statements") comply as to form in all material respects with applicable
accounting requirements and with the published rules and regulations of the
SEC with respect thereto. The Financial Statements have been prepared in
accordance with generally accepted accounting principles consistently applied
and fairly present the financial position of the Company at the dates thereof
and
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the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal, recurring
adjustments).
4.5 INTELLECTUAL PROPERTY. Company owns or possesses adequate
rights to use all material patents, patent rights, inventions, trade secrets
and know-how described or referred to in the SEC Documents as owned or used
by it or that are necessary for the conduct of its business as presently
conducted and as described in the SEC Documents. Except as set forth in the
SEC Documents, the Company has not received any notice of, nor has any
knowledge of, any infringement of or conflict with asserted rights of others
with respect to any patent, patent right, invention, trade secret or know-how
that, individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on the
business, properties, financial condition or results or operations of the
Company.
4.6 CAPITALIZATION. All of the Company's outstanding shares of
capital stock have been duly authorized and validly issued and are fully paid
and nonassessable, have been issued in compliance with all federal and state
securities laws, and were not issued in violation of or subject to any
preemptive right or other rights to subscribe for or purchase securities.
The actual authorized and outstanding capital stock of the Company as of the
date hereof is as set forth in Exhibit B. Except as set forth in Exhibit B,
there are no outstanding options to purchase, or any preemptive rights or
other rights to subscribe for or to purchase, any securities or obligations
convertible into, or any contracts or commitments to issue or sell shares of
the company's capital stock or any such options, rights, convertible
securities or obligations.
4.7 LITIGATION. There is no pending or, to the Company's
knowledge, threatened, action, suit or other proceeding to which the Company
is a party or to which its property or assets are subject.
4.8 GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state, or local governmental authority on the part
of the Company is required in connection with the consummation of the
transactions contemplated by this Agreement except for (a) compliance with
the securities and blue sky laws in the states and other jurisdictions in
which shares of Common Stock are offered and/or sold, which compliance will
be effected in accordance with such laws, and (b) the filing of a
registration statement and all amendments thereto with the SEC as
contemplated by Section 9.1 of this Agreement.
4.9 NO MATERIAL ADVERSE CHANGE. Since June 30, 1998, there have
not been any changes in the assets, liabilities, financial condition or
operations of the
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Company from that reflected in the Financial Statements except changes which
have not been, either individually or in the aggregate, materially adverse.
4.10 LISTING; MAINTENANCE OF LISTING. The Company's Common Stock
is traded on the Nasdaq SmallCap Market. For so long as the Company is
obligated to keep in effect the Registration Statement provided for in
Section 9 hereof, the Company will use its reasonable best efforts to
maintain its listing on the Nasdaq SmallCap Market, the Nasdaq National
Market or a national securities exchange, as defined in the Exchange Act.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS.
5.1 Each Purchaser, severally and not jointly, represents and
warrants to and covenants with the Company that:
(a) Purchaser, taking into account the personnel and
resources it can practically bring to bear on the purchase of the Securities
contemplated hereby, either alone or together with the advice of such
Purchaser's purchaser representative, is knowledgeable, sophisticated and
experienced in making, and is qualified to make, decisions with respect to
investments in shares presenting an investment decision like that involved in
the purchase of the Securities, including investments in securities issued by
the Company, and has requested, received, reviewed and considered, either
alone or with such Purchaser's purchaser representative, all information
Purchaser deems relevant (including the SEC documents) in making an informed
decision to purchase the Securities.
(b) Purchaser is acquiring the Securities being acquired by
Purchaser pursuant to this Agreement in the ordinary course of its business
and for its own account for investment only and with no present intention of
distributing any of such Securities or any arrangement or understanding with
any other persons regarding the distribution of such Securities, except in
compliance with Section 5.1(c).
(c) Purchaser will not, directly or indirectly, offer, sell,
pledge, transfer or otherwise dispose of (or solicit any offers to buy,
purchase or otherwise acquire or take a pledge of) any of the securities
purchased hereunder except in compliance with the Securities Act of 1933, as
amended (the "Securities Act"), applicable blue sky laws, and the rules and
regulations promulgated thereunder.
(d) Purchaser has completed or caused to be completed the
Stock Certificate Questionnaire and the Registration Questionnaire, attached
hereto as Appendix I and Appendix II, respectively, for use in preparation of
the Registration Statement to be filed by the Company, and the answers
thereto are true and correct as of the date hereof and will be true and
correct as of the effective date of the applicable
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Registration Statement (provided that Purchaser shall be entitled to update
such information by providing notice thereof to the Company prior to the
effective date of such Registration Statement).
(e) Purchaser has, in connection with its decision to
purchase the Securities, relied with respect to the Company and its affairs
solely upon the SEC Documents, the representations and warranties of the
Company contained herein and oral statements of the Company's management made
at meetings with the Purchaser.
(f) Purchaser is an "accredited investor" within the meaning
of Rule 501 of Regulation D promulgated under the Securities Act or a
Qualified Institutional Buyer within the meaning of Rule 144A promulgated
under the Securities Act.
(g) Purchaser has full right, power, authority and capacity
to enter into this Agreement and to consummate the transactions contemplated
hereby and has taken all necessary action to authorize the execution,
delivery and performance of this Agreement. Upon the execution and delivery
of this Agreement by Purchaser, this Agreement shall constitute a valid and
binding obligation of Purchaser, enforceable in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting the enforcement of
creditors' rights generally, (ii) as limited by equitable principles
generally, including any specific performance, and (iii) as to those
provisions of Section 9.3 relating to indemnity or contribution.
5.2 Purchaser represents and warrants to and covenants with the
Company that Purchaser has not engaged and will not engage in any short sales
of the Company's Common Stock prior to the effectiveness of the Registration
Statement, except to the extent that any such short sale is fully covered by
shares of Common Stock of the Company other than the Shares.
5.3 Purchaser understands that nothing in this Agreement or any
other materials presented to Purchaser in connection with the purchase and
sale of the Shares constitutes legal, tax or investment advice and that no
independent legal counsel has reviewed these documents and materials on
Purchaser's behalf. Purchaser has consulted such legal, tax and investment
advisors as it, in its sole discretion, has deemed necessary or appropriate
in connection with its purchase of the Shares.
SECTION 6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement,
all covenants, agreements, representations and warranties made by the Company
and each Purchaser herein and in the certificates for the securities
delivered pursuant hereto shall
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survive the execution of this Agreement, the delivery to the Purchasers of
the securities being purchased and the payment therefor.
SECTION 7. CONDITIONS TO COMPANY'S OBLIGATIONS AT THE CLOSING.
The Company's obligation to complete the sale and issuance of the
Securities and deliver shares of Common Stock to each Purchaser,
individually, as set forth in the Schedule of Purchasers shall be subject to
the following conditions to the extent not waived by the Company:
7.1 RECEIPT OF PAYMENT. The Company shall have received payment,
by check or wire transfer of immediately available funds, in the full amount
of the purchase price for the number of Shares being purchased by such
Purchaser at the Closing as set forth in the Schedule of Purchasers.
7.2 REGISTRATION STATEMENT EFFECTIVE. The Registration Statement
filed by the Company pursuant to Section 9 shall have become effective, and
no stop order suspending the effectiveness thereof shall have been issued and
no proceedings therefor shall be pending or threatened by the Securities and
Exchange Commission, ("the Commission").
7.3 REPRESENTATIONS AND WARRANTIES CORRECT. The representations
and warranties made by such Purchaser in Section 5 hereof shall be true and
correct when made, and shall be true and correct on the Closing Date.
SECTION 8. CONDITIONS TO PURCHASERS' OBLIGATIONS AT THE CLOSING.
Each Purchaser's obligation to accept delivery of the Shares and to pay
for the Shares shall be subject to the following conditions to the extent not
waived by such Purchaser:
8.1 REGISTRATION STATEMENT EFFECTIVE. The Registration Statement
required pursuant to Section 9 shall have become effective, and no stop order
suspending the effectiveness thereof shall have been issued and no
proceedings therefor shall be pending or threatened by the Commission.
8.2 REPRESENTATIONS AND WARRANTIES CORRECT. The representations
and warranties made by the Company in Section 4 hereof shall be true and
correct when made, and shall be true and correct on the Closing Date.
8.3 LEGAL OPINION. Purchasers shall have received from Xxxxxx
Xxxxxx White & XxXxxxxxx, counsel to the Company, an opinion letter addressed
to the
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Purchasers, dated as of the Closing Date, covering the matters set forth in
Exhibit C hereto, subject to customary assumption and qualifications.
8.4 TERMINATION. This Agreement may be terminated by any
Purchaser with respect to such Purchaser only if the Closing has not
transpired by January 31, 1999.
SECTION 9. REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES ACT.
9.1 REGISTRATION PROCEDURES AND EXPENSES. The Company is
obligated to do the following:
(a) As soon as practicable following the Effective Date and
in any event no later than ten (10) days following the Effective Date, the
Company shall prepare and file with the Commission one or more registration
statements in order to register with the Commission the resale by the
Purchasers, from time to time, of the Shares through Nasdaq or the facilities
of any national securities exchange on which the Company's Common Stock is
then traded, or in privately-negotiated transactions (a "Registration
Statement"). The Company shall use its best efforts to cause such
Registration Statement to be declared effective as soon thereafter as
reasonably possible.
(b) The Company shall prepare and file with the Commission
(i) such amendments and supplements to the Registration Statement and the
prospectus used in connection therewith, (ii) such SEC Reports and (iii) such
other filings required by the Commission, in each case as may be necessary to
keep the Registration Statement continuously effective and not misleading
until the earliest of (A) the second anniversary date of the Closing, (B) such
date as all of the Shares have been resold or (C) such time as all of the
Shares held by the Purchasers can be sold within a given three-month period
pursuant to Rule 144 under the Securities Act. Notwithstanding the
foregoing, following the effectiveness of the Registration Statement, the
Company may, at any time, suspend the effectiveness of the Registration
Statement for up to no longer than 30 days, as appropriate (a "Suspension
Period"), by giving notice to the Purchasers, if the Company shall have
determined that the Company may be required to disclose any material
corporate development. The Company will use its best efforts to minimize the
length of any Suspension Period. Notwithstanding the foregoing, the Company
may not suspend the effectiveness of the Registration Statement more than
twice in any twelve (12) month period. Each Purchaser agrees that, upon
receipt of any notice from the Company of a Suspension Period, such Purchaser
will not sell any Shares pursuant to the Registration Statement until (i) such
Purchaser is advised in writing by the Company that the use of the applicable
prospectus may be resumed, (ii) such Purchaser has received copies of any
additional or supplemental or amended prospectus, if applicable, and (iii) such
Purchaser
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has received copies of any additional or supplemental filings which are
incorporated or deemed to be incorporated by reference in such prospectus.
(c) In order to facilitate the public sale or other
disposition of all or any of the shares by each Purchaser, the Company shall
furnish to each Purchaser with respect to the Shares registered under the
Registration Statement such number of copies of prospectuses, prospectus
supplements and preliminary prospectuses as such Purchaser reasonably
requests in conformity with the requirements of the Securities Act.
(d) The Company shall file any documents required of the
Company for normal blue sky clearance in states specified in writing by each
Purchaser; provided, however, that the Company shall not be required to
qualify to do business or consent to service of process in any jurisdiction
in which it is not now so qualified or has not so consented.
(e) Other than fees and expenses, if any, of counsel or other
advisers to the Purchasers, which fees and expenses shall be borne by the
Purchasers, the Company shall bear all expenses (exclusive of any brokerage
fees, underwriting discounts and commissions) in connection with the
procedures in paragraphs (a) through (d) of this Section 9.1.
(f) With a view to making available to the Purchasers the
benefits of Rule 144 promulgated under the Securities Act ("Rule 144") and
any other rule or regulation of the SEC that may at any time permit a
Purchaser to sell Shares to the public without registration or pursuant to
registration, the Company covenants and agrees to: (i) make and keep public
information available, as those terms are understood and defined in Rule 144,
until the earlier of (A) the second anniversary of the Closing Date or (B) such
date as all of the Shares shall have been resold; (ii) file with the SEC in a
timely manner all reports and other documents required of the Company under
the Exchange Act; and (iii) furnish to any Purchaser upon request, as long as
the Purchaser owns any Shares, (A) a written statement by the Company that it
has complied with the reporting requirements of the Exchange Act, (B) a copy
of the most recent annual or quarterly report of the Company, and (C) such
other information as may be reasonably requested in order to avail any
Purchaser of any rule or regulation of the SEC that permits the selling of
any such Shares without registration under the Securities Act.
9.2 TRANSFER OF SECURITIES AFTER REGISTRATION. Each Purchaser
agrees that such Purchaser will not effect any disposition of the Shares that
would constitute a sale within the meaning of the Securities Act, except:
(i) pursuant to the Registration Statement, in which
case such Purchaser shall submit the certificates evidencing the Shares to
the Company's transfer agent, accompanied by a separate "Purchaser's
Certificate" (A) in the form of
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Appendix III attached hereto, (B) executed by such Purchaser or by an officer
of, or other authorized person designated by, such Purchaser, and (C) to the
effect that (1) the Shares have been sold in accordance with the Registration
Statement and (2) the requirement of delivering a current prospectus has been
satisfied; or
(ii) in a transaction exempt from registration under the
Securities Act, in which case such Purchaser shall, prior to effecting such
disposition, submit to the Company an opinion of counsel in form and
substance reasonably satisfactory to the Company to the effect that the
proposed transaction is in compliance with the Securities Act.
9.3 INDEMNIFICATION. As used in this Section 9.3 the following
terms shall have the following respective meanings:
(a) "Selling Shareholder" shall mean a Purchaser of
Securities under this Agreement and any transferee of such a Purchaser who is
entitled to resell Shares pursuant to the Registration Statement;
(b) "Registration Statement" shall include any final
prospectus, exhibit, supplement or amendment included in or relating to the
Registration Statement referred to in Section 9.1; and
(c) "Untrue Statement" shall include any untrue statement or
alleged untrue statement, or any omission or alleged omission to state in the
Registration Statement a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
The Company agrees to indemnify and hold harmless each Selling
Shareholder from and against any losses, claims, damages or liabilities to
which such Selling Shareholder may become subject (under the Securities Act
or otherwise) insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of, or are based upon,
any Untrue Statement on or after the effective date of the Registration
Statement, or on or after the date of any prospectus or prospectus supplement
or the date of any sale by Purchaser thereunder, or arise out of any failure
by the Company to fulfill any undertaking included in the Registration
Statement and the Company will reimburse such Selling Shareholder for any
reasonable legal or other expenses reasonably incurred in investigating,
defending or preparing to defend any such action, proceeding or claim;
provided, however, that the Company shall not be liable to such Selling
Shareholder in any such case to the extent that such loss, claim, damage or
liability arises out of, or is based upon, an Untrue Statement made in such
Registration Statement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Selling
Shareholder specifically for use in preparation of the Registration
Statement, or the failure of such Selling Shareholder to comply with
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the covenants and agreements contained in Section 9.1 or 9.2 hereof
respecting sale of the Shares or any statement or omission in any Prospectus
that is corrected in any subsequent prospectus that was delivered to the
Selling Shareholder prior to the pertinent sale or sales by the Selling
Shareholder.
Each Purchaser, severally and not jointly, agrees to indemnify and hold
harmless the Company (and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act, each officer of the
Company who signs the Registration Statement and each director of the
Company) from and against any losses, claims, damages or liabilities to which
the Company (or any such officer, director or controlling person) may become
subject (under the Securities Act or otherwise), insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of, or are based upon, any failure to comply with the covenants and
agreements contained in Section 9.1 or 9.2 hereof respecting sale of the
Shares, or any Untrue Statement contained in the Registration Statement on or
after the effective date thereof, or in any prospectus supplement as of its
issue date or date of any sale by Purchaser thereunder, if such Untrue
Statement was made in reliance upon and in conformity with written
information furnished by or on behalf of such Purchaser specifically for use
in preparation of the Registration Statement, and such Purchaser will
reimburse the Company (or such officer, director or controlling person), as
the case may be, for any legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action, proceeding
or claim; provided that in no event shall any indemnity by a Purchaser under
this Section 9.3 exceed the gross proceeds received by such Purchaser from
the sale of Shares covered by such Registration Statement.
Promptly after receipt by any indemnified person of a notice of a claim
or the beginning of any action in respect of which indemnity is to be sought
against an indemnifying person pursuant to this Section 9.3, such indemnified
person shall notify the indemnifying person in writing of such claim or of
the commencement of such action, and, subject to the provisions hereinafter
stated, in case any such action shall be brought against an indemnified
person and such indemnifying person shall have been notified thereof, such
indemnifying person shall be entitled to participate therein, and, to the
extent it shall wish, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified person. After notice from the indemnifying
person to such indemnified person of its election to assume the defense
thereof, such indemnifying person shall not be liable to such indemnified
person for any legal expenses subsequently incurred by such indemnified
person in connection with the defense thereof; provided, however, that if
there exists or shall exist a conflict of interest that would make it
inappropriate, in the opinion of counsel to the indemnified person, for the
same counsel to represent both the indemnified person and such indemnifying
person or any affiliate or associate thereof, the indemnified person shall be
entitled to retain its own counsel at the expense of such indemnifying
person; provided, however, that no indemnifying person shall be
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responsible for the fees and expenses of more than one separate counsel for
all indemnified parties.
9.4 TERMINATION OF CONDITIONS AND OBLIGATIONS. The conditions
precedent imposed by Section 4, Section 5 or this Section 9 upon the
transferability of the Shares shall cease and terminate as to any particular
number of the Shares when such Shares shall have been sold or otherwise
disposed of in accordance with the intended method of disposition set forth
in the Registration Statement covering such Shares or at such time as an
opinion of counsel satisfactory to the Company shall have been rendered to
the effect that such conditions are not necessary in order to comply with the
Securities Act.
9.5 INFORMATION AVAILABLE. So long as the Registration Statement
is effective covering the resale of Shares owned by the Purchasers, the
Company will furnish to the Purchasers:
(a) as soon as practicable after available (but in the case
of the Company's Annual Report to Shareholders, within 150 days after the end
of each fiscal year of the Company), one copy of (i) its Annual Report to
Shareholders (which Annual Report shall contain financial statements audited
in accordance with generally accepted auditing standards certified by a
national firm of certified public accountants); (ii) its Annual Report on
Form 10-K; (iii) its quarterly reports on Form 10-Q (the foregoing, in each
case, excluding exhibits); (iv) its Proxy Statement; and (v) its current
reports on Form 8-K, if any;
(b) upon the request of any Purchaser, all exhibits excluded
by the parenthetical to subparagraph (a)(iii) of this Section 9.5, in the
form generally available to the public; and
(c) upon the reasonable request of any Purchaser, an adequate
number of copies of the prospectuses and supplements to supply to any other
party requiring such prospectuses.
9.6 CHANGES IN PURCHASER INFORMATION. Each Purchaser agrees to
promptly notify the Company of any changes in the information set forth in
the Registration Statement regarding Purchaser or such Purchaser's plan of
distribution set forth in such Registration Statement.
SECTION 10. BROKER'S FEE.
The Company and each Purchaser (severally and not jointly) hereby
represent that, except for amounts to be paid to the Placement Agent by the
Company as described in Section 12.8 hereof, there are no brokers or finders
entitled to compensation in
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connection with the sale of the Shares, and shall indemnify each other for
any such fees for which they are responsible.
SECTION 11. NOTICES.
All notices, requests, consents and other communications hereunder shall
be in writing, shall be sent by confirmed facsimile or mailed by first-class
registered or certified airmail, or nationally recognized overnight express
courier, postage prepaid, and shall be deemed given when so sent in the case
of facsimile transmission, or when so received in the case of mail or
courier, and addressed as follows:
(a) if to the Company, to:
Calypte Biomedical Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: President and Chief Executive Officer
Facsimile: (000) 000-0000
with a copy so mailed to:
Xxxxxx Xxxxxx White & XxXxxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X'Xxxx, Esq.
Facsimile: (000) 000-0000
or to such other person at such other place as the Company shall
designate to the Purchasers in writing; and
(b) if to the Purchasers, at the address as set forth at the
end of this Agreement, or at such other address or addresses as may have been
furnished to the Company in writing.
SECTION 12. MISCELLANEOUS.
12.1 WAIVERS AND AMENDMENTS. Neither this Agreement nor any
provision hereof may be changed, waived, discharged, terminated, modified or
amended except upon the written consent of the Company and holders of at
least a majority of the Shares.
12.2 HEADINGS. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not
be deemed to be part of this Agreement.
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12.3 SEVERABILITY. In case any provision contained in this
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
12.4 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California as applied
to contracts entered into and performed entirely in California by California
residents, without regard to conflicts of law principles.
12.5 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which,
when taken together, shall constitute but one instrument, and shall become
effective when one or more counterparts have been signed by each party hereto
and delivered to the other parties.
12.6 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
12.7 ENTIRE AGREEMENT. This Agreement and other documents
delivered pursuant hereto, including the exhibits, constitute the full and
entire understanding and agreement between the parties with regard to the
subjects hereof and thereof.
12.8 PAYMENT OF FEES AND EXPENSES. Each of the Company and the
Purchasers shall bear its own expenses and legal fees incurred on its behalf
with respect to this Agreement and the transactions contemplated hereby (the
"Offering"); provided, that the Company shall reimburse the placement agent
retained by it in connection with the Offering (the "Placement Agent") for
certain fees and expenses incurred by the Placement Agent in connection with
the Offering. Purchasers acknowledge that the Placement Agent will receive
compensation. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorney's fees, costs and necessary disbursements in addition
to any other relief to which such party may be entitled.
12.9 H&Q INVESTORS. The Company hereby acknowledges that the name
H&Q Healthcare Investors is the designation of the Trustees for the time
being under an Amended and Restated Declaration of Trust dated April 21,
1987, as amended, and all persons dealing with H&Q Healthcare Investors must
look solely to the trust property for the enforcement of any claim against
H&Q Healthcare Investors, as neither the Trustees, officers nor shareholders
assume any personal liability for the obligations entered into on behalf of
H&Q Healthcare Investors. The name H&Q Life Sciences Investors is the
designation of the Trustees for the time being under a Declaration of Trust
dated February 20, 1992, as amended, and all persons dealing with H&Q Life
Sciences Investors must look solely to the trust property for the enforcement
of any claim against H&Q Life Sciences Investors, as neither the Trustees,
officers nor shareholders assume any personal liability for the obligations
entered into on behalf of H&Q Sciences Investors.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year
first above written.
CALYPTE BIOMEDICAL CORPORATION
By: /s/ Xxxxxxx Xxxxxx
------------------------------
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Name: Xxxxxxx Xxxxxx
Title: President and Chief Executive Officer
PURCHASER
Purchaser Name: ____________________________
By: _______________________________________
Name: ____________________________________
Title: ____________________________________
Address: ____________________________________
____________________________________
____________________________________
Facsimile: ____________________________________
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APPENDIX I
CALYPTE BIOMEDICAL CORPORATION
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 3 of the Agreement, please provide us with the
following information:
1. The exact name that your Shares are to ___________________________
be registered in (this is the name that will
appear on your stock certificate(s)). You
may use a nominee name if appropriate:
2. The relationship between the Purchaser ___________________________
of the Securities and the Registered
Holder listed in response to item 1
above:
3. The mailing address and facsimile ___________________________
number of the Registered Holder listed
in response to item 1 above: ___________________________
___________________________
Facsimile: ________________
4. The Social Security Number or Tax ___________________________
Identification Number of the Registered
Holder listed in the response to item 1
above:
Signature: ______________________________
Print Name: _____________________________
Title: __________________________________
APPENDIX II
CALYPTE BIOMEDICAL CORPORATION
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration Statement, please
provide us with the following information:
1. Please state your or your organization's name exactly as it should
appear in the Registration Statement:
2. Please provide the following information, as of September 30, 1998:
Number of Shares that you are purchasing Number of shares of Common Stock
and seek to include in the Registration that you already beneficially
Statement own or that you are purchasing
and do NOT seek to include in
the Registration Statement
----------- -----------
----------- -----------
3. Have you or your organization had any position, office or other
material relationship within the past three years with the Company or its
affiliates other than as disclosed in the Proxy Statement in connection with
the Company's 1998 Annual Meeting of Shareholders?
Yes ___ No ___
If yes, please indicate the nature of any such relationships: _________
________________________________________________________________________________
Signature: ______________________________
Print Name: _____________________________
Title: __________________________________
APPENDIX III
PURCHASER'S CERTIFICATE OF RESALE OF THE SHARES
The undersigned, an officer of, or other person duly authorized by
______________________________________ [fill in official name of individual or
institution] hereby certifies that he/she [said institution] is the Purchaser
of the Shares evidenced by the attached stock certificate(s) and as such,
sold such Shares on ________________ [date] in accordance with registration
statement number _________________________________ [fill in the number of or
otherwise identify registration statement] and the requirement of delivering
a current prospectus and current annual, quarterly and reports (Forms 10-K,
10-Q, and 8-K) by the Company has been complied with in connection with such
sale.
Print or Type:
Name of Purchaser (Individual or Institution): _________________________________
Name of Individual representing Purchaser
(if an Institution): _________________________________
Title of Individual representing Purchaser
(if an Institution): _________________________________
Signature by:
Individual Purchaser or Individual
representing Purchaser: _________________________________
