November 13, 2003
Calypte Biomedical Corporation
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Ticker: CYPT
Exchange: OTC Bulletin Board
Agreement for Commitment to Purchase Aggregate of
$10,000,000 of 5% Promissory Notes
Securities: 5% Notes, each with 12 month term (the "Notes")
---------- of the Issuer
Issuer: Calypte Biomedical Corporation (the "Issuer")
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Purchaser: Xxxx Technologies, B.V.
---------
Commitment Amount: $10,000,000
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Use of Proceeds: General Corporate Purposes
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I. Terms of Note Issuance
a. Note Issuance: Beginning on the First Availability Date and
continuing through the Availability Period (each as defined in
Section III.c.)of this agreement, the Issuer may issue Notes, in
its sole discretion (each, a "Note"), which the Purchaser shall be
obligated to accept, with an aggregate total not to exceed the
Commitment Amount.
b. Issuance Notice: The Issuer shall indicate its intention to issue
a Note by delivering to the Purchaser an Issuance Notice (each, an
"Issuance Notice") via facsimile transmission. The Issuance Notice
shall specify:
(i) The amount of the Note (the "Note Amount");
(ii) The date on which the Note is to be effective and funded,
which shall be no sooner than 4 business days from the date
of the Issuance Notice. If the Issuer wishes the Note to be
funded on the fourth business day, the Issuance Notice must
be delivered to the Purchaser and such receipt confirmed,
before 8:30 a.m. ET.
(iii) A form of Issuance Notice is attached hereto as Exhibit B.
c. Note Amount: The Note Amount shall be a minimum of $500,000 in any
single issuance. The maximum Note Amount in the first month
following the First Availability Date shall be $1,500,000 and,
should the conditions regarding listing of the Company's common
stock described in Section III.b. herein not be met, such Note
will become due and payable on April 30, 2004. II. Settlement
a. Settlement: Within 24 hours of the Issuer's transmission of
the Issuance Notice to the Purchaser, Purchaser shall
confirm receipt thereof. Once the Purchaser confirms the
receipt of the Issuance Notice, Purchaser shall have 3
business days in which to purchase the Note by wire
transfer of immediately available funds to the Issuer's
designated account. At the election of either party, an
escrow agent may be used.
b. Note Agreement: Each Note issued pursuant to an Issuance
Notice under this Agreement shall be evidenced by a Note
substantially in the form of Exhibit A hereto and shall be
executed by authorized representatives of both Purchaser
and Issuer.
c. Term of Note. Except as noted in Section I.c. with respect
to any Note issued during the first month following the
First Availability Date, Each Note issued under the terms
of this Agreement shall have a term of 12 months and shall
be repaid upon maturity by wire transfer of immediately
available funds to the Purchaser's designated account.
d. Interest. Interest shall accrue at 5% per annum on any
Notes issued under the terms of this Agreement and shall be
paid in cash upon the maturity of the Note.
III. General Conditions
a. Effective Date: The Effective Date of this agreement shall
be the date on which the authorized representatives of the
Issuer and Purchaser shall have signed this Agreement.
b. Term of Agreement. This agreement shall terminate on May
31, 2005. Notwithstanding the preceding sentence, this
Agreement shall terminate on March 31, 2004 if, at that
date, Issuer shall not have its common stock, $0.03 par
value, listed on either the American Stock Exchange, the
New York Stock Exchange, the Nasdaq National Market or
Nasdaq Small Cap Market.
c. First Availability Date and Availability Period. The
earliest date upon which the Issuer may issue an Issuance
Notice under the terms of this agreement is February 28,
2004 (the "First Availability Date"). Subject to the
provisions of Section 1.c. herein, Issuer may issue an
Issuance Notice on any date thereafter through and
including May 31, 2004. The period from February 28, 2004
through May 28, 2004, inclusive, is defined as the
"Availability Period".
d. Subsequent Financings: During the term of this Agreement,
Issuer will notify Purchaser of all offerings for equity
financing which it may undertake. Equity financings shall,
for the purposes of this Agreement, be defined as cash
received by Issuer from the sale of Issuer's common stock,
$0.03 par value, or such other equity security as it may
offer from time to time, for cash, specifically excluding
cash received from the exercise of currently outstanding or
subsequently granted options or warrants issued to
employees, consultants, or other parties for services or in
lieu of cash for services or for intellectual property
rights.
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i. Issuer will grant Purchaser the right of first refusal to
participate in any such subsequent equity financings on the
same key terms and conditions, which shall include the
dollar investment amount or number of shares to be
purchased, pricing, number of warrants and their terms, if
any, registration rights and fees, as applicable to the
subject offer. Purchaser shall inform Issuer of its
decision to participate in any subsequent equity financing
within two business days of notice from Issuer.
ii. Regardless of Purchaser's election to participate in any
such subsequent equity financings, the Total Note Purchase
Commitment under this Agreement shall be decreased dollar
for dollar by the net amount of such subsequent equity
financing completed by Issuer.
d. Issuance of Warrant. As fee for the loan commitment evidenced by
this Agreement, Issuer agrees to issue, on the Effective Date, a
warrant to purchase 375,000 shares of its common stock, $0.03 par
value, at a price of $0.80 per share. The warrant shall be
immediately exercisable and shall have a term of two years from
the Effective Date. The Warrant shall be issued to:
Boodle Xxxxxxxx.
00 Xxxxx Xxxxxx
Xxxxxx X0X 0XX
A form of warrant is attached as Exhibit C.
e. Non-utilization of Commitment. No utilization of this Note
facility may be made if, at the time the Issuance Notice is
tendered to Purchaser or at the time the Note is issued, an event
of default or an event which, with the giving of notice or lapse
of time or both, would constitute an event of default (the "Event
of Default") has occurred and is continuing or would result from
such utilization of this facility.
f. Events of Default. Purchaser may, without prejudice to its other
rights hereunder, terminate its obligation to purchase the Notes
and declare all outstanding amounts owing to Purchaser pursuant to
Notes issued under this Agreement, together with all accrued
interest and such other payments payable under this Agreement,
immediately due and payable at any time after any of the following
events shall have occurred:
i. The Issuer defaults in the due performance of observance of
any of its obligations under this agreement and, if such
default is, in the opinion of the Purchaser, capable of
remedy, such default shall not have been remedied within 14
days of the Purchaser notifying the Issuer of such default;
or
ii. Any judgment or order of a court of competent jurisdiction
in an amount exceeding $10,000 made against the Issuer is
not stayed or complied with within 21 days of an
encumbrancer takes possession of the whole or part of the
assets, rights, or revenues of the Issuer or a distress or
other process is levied or enforced upon any of the assets,
rights or revenues of the Issuer and is not discharged
within 21 days; or
iii. The Issuer is adjudicated and found insolvent or any step
is taken or proceedings are commenced for the winding-up,
administration, liquidation, restructuring or dissolution
of the Issuer of for the appointment of a liquidator,
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trustee in bankruptcy, receiver or similar officer in
respect of the Issuer or the whole or any part of its
assets, rights, or revenues; or
iv. The Issuer stops or suspends payment of its debts incurred
subsequent to September 30, 2003, as summarized in Exhibit
D, or is, or has been deemed to be, unable to, or admits
inability to, pay its debts as they come due or it
commences negotiations with one or more if its creditors
with a view to the general rescheduling of all or any of
its debts or proposes or enters into any composition or
other arrangement for the benefit of its creditors
generally, or of any class thereof; or
v. Except with respect to a Note issued within the month
following the First Availability Date, the common stock of
the Issuer ceases to be listed on a recognized stock
exchange in the United States of America; or
vi. Any other event occurs or circumstance arises which is
likely to have a material adverse effect on the business or
financial condition of the Issuer.
This agreement is executed and binding as of this 13th day of November 2003.
Calypte Biomedical Corporation
("Issuer") A Delaware Corporation
By: /s/ Xxx Xxxxxxx
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Title: President and CEO
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Xxxx Technologies, B.V.
("Purchaser")
By: /s/ X.X. Xxxxxx
----------------------------------------
Title: Authorised Signatory
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EXHIBIT A
FORM OF PROMISSORY NOTE
$____________ [Date]
Alameda, California
FOR VALUE RECEIVED, Calypte Biomedical Corporation, a Delaware
corporation (the "Borrower") promises to pay to the order of Xxxx Technologies,
B.V. (the "Payee"), the principal amount of ____________________________________
and No/100 Dollars ($__________.00) ("Principal"). The unpaid Principal due
under this Note shall bear interest from the date hereof until paid, computed at
a rate equivalent of 5.00% per annum (computed on the basis of a 360-day year
and actual days elapsed).
This Note shall be payable in full twelve months from the date hereof
(the "Maturity Date"). All accrued interest on the entire unpaid principal shall
likewise be due on the Maturity Date.
Payment of the Principal and interest shall be made in lawful money of
the United States in the form of a wire transfer of immediately available funds
to an account specified by Payee or at such other place as Payee may from time
to time direct in writing. Payee shall be entitled to assign its rights
hereunder, and in the event of such assignment, any references to "Payee" herein
shall include such subsequent holder or holders.
No delay on the part of the Payee in exercising any right under this
Note, or other undertaking securing or affecting this Note shall operate as a
waiver of such right or any other right, nor shall any omission in exercising
any right on the part of the Payee under this Note. In the event this Note is
not paid when due, the Borrower shall pay all costs of collection, including,
without limitation, reasonable attorneys' fees.
All notices and other communications hereunder shall be in writing and
shall be deemed received (1) upon receipt or refusal thereof, if delivered
personally or via overnight courier service, or (2) upon receipt by the sender
of transmission confirmation, if delivered via facsimile. Notice to either party
hereto, if faxed or sent by overnight courier service, shall be to the following
addresses:
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If to the Payee, to: If to the Borrower, to:
Xxxx Technologies, BV Calypte Biomedical Corporation
Strawinskylaan 1431 0000 Xxxxxx Xxx Xxxxxxx
0000XX Xxxxxxxxx Xxxxxxx, XX 00000
Netherlands Attention: Executive Vice President
and CFO
Attention: Xxxxxxxxx Xxxxx Facsimile: 000-000-0000
Facsimile:
Any party may change their address for notice by giving all other parties notice
of such change pursuant to this paragraph.
At the option of the Borrower, all or any portion of the Principal and
accrued interest due on this Note may be otherwise prepaid without premium or
penalty, the amount of the prepayment to be applied first to accrued interest
and the remainder to any unpaid balance of Principal.
This Note and the rights and obligations of the parties hereto shall be
governed by and construed in accordance with the laws of the State of Delaware,
without regard to the conflicts of laws principles of the State of Delaware. All
rights of Payee hereunder shall inure to the benefit of its successors and
assigns, and all obligations of the Borrower shall bind its successors and
assigns; provided, however, that this Note and the Borrower's obligations
hereunder shall not be assignable by the Borrower without the prior written
consent of Payee. The Borrower hereby waives presentment, demand, protest,
notice of dishonor and/or protest, notice of nonpayment and all other notices
and demands, and assents to the extension of the time of payment, forbearance or
other indulgence, without notice.
To induce Payee to accept this Note, the Borrower irrevocably agrees
that, subject to Payee's sole and absolute election, all actions or proceedings,
in any way, manner or respect, arising out of or from or related to this Note
shall be litigated in courts having situs within the City of Wilmington, State
of Delaware. The Borrower hereby consents and submits to the jurisdiction of any
local, state or federal court located within said City and State. The Borrower
hereby waives any right it may have to transfer or change the venue of any
litigation brought against the Borrower by Payee in accordance with this
paragraph, and the Borrower hereby specifically waives any right to assert the
doctrine of forum non conveniens.
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THE BORROWER IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, COUNTERCLAIM, OR PROCEEDING (I) TO ENFORCE OR DEFEND ANY RIGHTS
UNDER OR IN CONNECTION WITH THIS NOTE OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH, OR (II) ARISING FROM ANY DISPUTE OR CONTROVERSY IN CONNECTION WITH OR
RELATED TO THIS NOTE OR ANY SUCH AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT,
AND AGREES THAT ANY SUCH ACTION, SUIT COUNTERCLAIM OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY.
All of Payee's rights and remedies under this Note are cumulative and
non-exclusive. The acceptance by Payee of any partial payment made hereunder
after the time when any of the Borrower's liabilities become due and payable
will not establish a custom or waive any rights of Payee to enforce prompt
payment hereof. Payee's failure to require strict performance by the Borrower of
any provision of this Note shall not waive, affect or diminish any right of
Payee thereafter to remain in strict compliance and performance herewith.
IN WITNESS WHEREOF, Calypte Biomedical Corporation has executed and
delivered this Promissory Note the day and year first written above.
CALYPTE BIOMEDICAL CORPORATION
By:
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Xxxxxxx X. Xxxxxxxxxx
Executive Vice President
and Chief Financial Officer
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Exhibit B
Form Of
ISSUANCE NOTICE
Calypte Biomedical Corporation
The undersigned hereby certifies, with respect to a 5% Note of Calypte
Biomedical Corporation (the "Company") issuable in connection with this Issuance
Notice dated __________________ (the "Issuance Notice"), delivered pursuant to
the Agreement for Commitment to Purchase Aggregate of $10,000,000 5% Promissory
Notes dated as of November 13, 2003 (the "Agreement"), as follows:
1. The undersigned is the duly appointed _________________ of the
Company.
2. The Note Amount is $____________.
3. The Settlement Date shall be _________, 2004.
The undersigned has executed this Notice this ___th day of ____ 2004.
CALYPTE BIOMEDICAL CORPORATION
By: _______________________________
Name:
Title:
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THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED ("1933 ACT"), OR ANY STATE SECURITIES LAWS AND SHALL NOT
BE SOLD, PLEDGED, HYPOTHECATED, DONATED, OR OTHERWISE TRANSFERRED, WHETHER OR
NOT FOR CONSIDERATION, BY THE HOLDER EXCEPT UPON THE ISSUANCE TO THE COMPANY OF
A FAVORABLE OPINION OF ITS COUNSEL OR THE SUBMISSION TO THE COMPANY OF SUCH
OTHER EVIDENCE AS MAY BE SATISFACTORY TO COUNSEL FOR THE COMPANY, IN EITHER
CASE, TO THE EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE 1933
ACT AND APPLICABLE STATE SECURITIES LAWS.
CALYPTE BIOMEDICAL CORPORATION
Common Stock Purchase Warrant
to
Purchase 375,000 Shares
of
Common Stock
This Common Stock Purchase Warrant is issued to:
Boodle Xxxxxxxx
00 Xxxxx Xxxxxx
Xxxxxx, X0X 0XX
by CALYPTE BIOMEDICAL CORPORATION, a Delaware corporation (hereinafter called
the "Company", which term shall include its successors and assigns).
FOR VALUE RECEIVED and subject to the terms and conditions hereinafter
set out, the registered holder of this Warrant as set forth on the books and
records of the Company (the "Holder") is entitled upon surrender of this Warrant
to purchase from the Company 4,000,000 fully paid and non-assessable shares of
Common Stock, $0.03 par value per share (the "Common Stock"), at the Exercise
Price (as defined below) per share.
This Warrant shall expire at the close of business on November 13, 2005.
1. (a) The right to purchase shares of Common Stock represented by this
Warrant may be exercised by the Holder, in whole or in part, by the surrender of
this Warrant (properly endorsed if required) at the principal office of the
Company at 0000 Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (or such other office
or agency of the Company as it may designate by notice in writing to the Holder
at the address of the Holder appearing on the books of the Company), and upon
payment to the Company, by cash or by certified check or bank draft, of the
Exercise Price for such shares. The Company agrees that the shares of Common
Stock so purchased shall be deemed to be issued to the Holder as the record
owner of such shares of Common Stock as of the close of business on the date on
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which this Warrant shall have been surrendered and payment made for such shares
of Common Stock as aforesaid. Certificates for the shares of Common Stock so
purchased (together with a cash adjustment in lieu of any fraction of a share)
shall be delivered to the Holder within a reasonable time, not exceeding five
(5) business days, after the rights represented by this Warrant shall have been
so exercised, and, unless this Warrant has expired, a new Warrant representing
the number of shares of Common Stock, if any, with respect to which this Warrant
shall not then have been exercised, in all other respects identical with this
Warrant, shall also be issued and delivered to the Holder within such time, or,
at the request of the Holder, appropriate notation may be made on this Warrant
and the same returned to the Holder.
(b) This Warrant may be exercised to acquire, from and after the
date hereof, the number of shares of Common Stock set forth on the first page
hereof (subject to adjustments described in this Warrant); provided, however,
the right hereunder to purchase such shares of Common Stock shall expire at 5:00
p.m. Alameda, California time on November 13, 2005.
2. This Warrant is being issued by the Company pursuant to the terms of
the Agreement for Commitment to Purchase Aggregate of $10,000,000 of 5%
Promissory Notes dated as of November 13, 2003.
3. The Company covenants and agrees that all Common Stock upon issuance
against payment in full of the Exercise Price by the Holder pursuant to this
Warrant will be validly issued, fully paid and non-assessable and free from all
taxes, liens and charges with respect to the issue thereof (except to the extent
resulting from the Holder's own circumstances, actions or omissions). The
Company covenants and agrees that during the period within which the rights
represented by this Warrant may be exercised, the Company will have at all times
authorized, and reserved for the purpose of issue or transfer upon exercise of
the rights evidenced by this Warrant, a sufficient number of shares of Common
Stock to provide for the exercise of the rights represented by this Warrant, and
will procure at its sole expense upon each such reservation of shares the
listing thereof (subject to issuance or notice of issuance) on all stock
exchanges on which the Common Stock is then listed or inter-dealer trading
systems on which the Common Stock is then traded. The Company will take all such
action as may be necessary to assure that such shares of Common Stock may be so
issued without violation of any applicable law or regulation, or of any
requirements of any national securities exchange upon which the Common Stock may
be listed or inter-dealer trading system on which the Common Stock is then
traded. The Company will not take any action which would result in any
adjustment in the number of shares of Common Stock purchasable hereunder if the
total number of shares of Common Stock issuable pursuant to the terms of this
Warrant after such action upon full exercise of this Warrant and, together with
all shares of Common Stock then outstanding and all shares of Common Stock then
issuable upon exercise of all options and other rights to purchase shares of
Common Stock then outstanding, would exceed the total number of shares of Common
Stock then authorized by the Company's Restated and Amended Articles of
Incorporation, as then amended.
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4. The Initial Exercise Price is $0.80 per share of Common Stock
("Initial Exercise Price"). The Initial Exercise Price shall be adjusted as
provided for below in this Section 4 (the Initial Exercise Price, and the
Initial Exercise Price, as thereafter then adjusted, shall be referred to as the
"Exercise Price") and the Exercise Price from time to time shall be further
adjusted as provided for below in this Section 4. Upon each adjustment of the
Exercise Price, the Holder shall thereafter be entitled to receive upon exercise
of this Warrant, at the Exercise Price resulting from such adjustment, the
number of shares of Common Stock obtained by (i) multiplying the Exercise Price
in effect immediately prior to such adjustment by the number of shares of Common
Stock purchasable hereunder immediately prior to such adjustment, and (ii)
dividing the product thereof by the Exercise Price resulting from such
adjustment. The Exercise Price shall be adjusted as follows:
(i) In the case of any amendment to the Company's Articles of
Incorporation to change the designation of the Common Stock or the
rights, privileges, restrictions or conditions in respect to the Common
Stock or division of the Common Stock, this Warrant shall be adjusted
so as to provide that upon exercise thereof, the Holder shall receive,
in lieu of each share of Common Stock theretofore issuable upon such
exercise, the kind and amount of shares, other securities, money and
property receivable upon such designation, change or division by the
Holder issuable upon such exercise had the exercise occurred
immediately prior to such designation, change or division. This Warrant
shall be deemed thereafter to provide for adjustments, which shall be
as nearly equivalent as may be practicable to the adjustments provided
for in this Section 4. The provisions of this Subsection 4(i) shall
apply in the same manner to successive reclassifications, changes,
consolidations and mergers.
(ii) If the Company shall at any time subdivide its
outstanding shares of Common Stock into a greater number of shares of
Common Stock, or declare a dividend or make any other distribution upon
the Common Stock payable in shares of Common Stock, the Exercise Price
in effect immediately prior to such subdivision or dividend or other
distribution shall be proportionately reduced, and conversely, in case
the outstanding shares of Common Stock shall be combined into a smaller
number of shares of Common Stock, the Exercise Price in effect
immediately prior to such combination shall be proportionately
increased.
(iii) If any capital reorganization or reclassification of the
capital stock of the Company, or any consolidation or merger of the
Company with or into another corporation or other entity, or the sale
of all or substantially all of the Company's assets to another
corporation or other entity shall be effected in such a way that
holders of shares of Common Stock shall be entitled to receive stock,
securities, other evidence of equity ownership or assets with respect
to or in exchange for shares of Common Stock, then, as a condition of
such reorganization, reclassification, consolidation, merger or sale
(except as otherwise provided below in this Section 4), lawful and
adequate provisions shall be made whereby the Holder shall thereafter
have the right to receive upon the exercise hereof upon the basis and
upon the terms and conditions specified herein, such shares of stock,
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securities, other evidence of equity ownership or assets as may be
issued or payable with respect to or in exchange for a number of
outstanding shares of such Common Stock equal to the number of shares
of Common Stock immediately theretofore purchasable and receivable upon
the exercise of this Warrant under this Section 4 had such
reorganization, reclassification, consolidation, merger or sale not
taken place, and in any such case appropriate provisions shall be made
with respect to the rights and interests of the Holder to the end that
the provisions hereof (including, without limitation, provisions for
adjustments of the Exercise Price and of the number of shares of Common
Stock receivable upon the exercise of this Warrant) shall thereafter be
applicable, as nearly as may be, in relation to any shares of stock,
securities, other evidence of equity ownership or assets thereafter
deliverable upon the exercise hereof (including an immediate
adjustment, by reason of such consolidation or merger, of the Exercise
Price to the value for the Common Stock reflected by the terms of such
consolidation or merger if the value so reflected is less than the
Exercise Price in effect immediately prior to such consolidation or
merger). Subject to the terms of this Warrant, in the event of a merger
or consolidation of the Company with or into another corporation or
other entity as a result of which the number of shares of common stock
of the surviving corporation or other entity issuable to holders of
Common Stock, is greater or lesser than the number of shares of Common
Stock outstanding immediately prior to such merger or consolidation,
then the Exercise Price in effect immediately prior to such merger or
consolidation shall be adjusted in the same manner as though there were
a subdivision or combination of the outstanding shares of Common Stock.
The Company shall not effect any such consolidation, merger or sale,
unless, prior to the consummation thereof, the successor corporation
(if other than the Company) resulting from such consolidation or merger
or the corporation purchasing such assets shall assume by written
instrument executed and mailed or delivered to the Holder, the
obligation to deliver to the Holder such shares of stock, securities,
other evidence of equity ownership or assets as, in accordance with the
foregoing provisions, the Holder may be entitled to receive or
otherwise acquire. If a purchase, tender or exchange offer is made to
and accepted by the holders of more than fifty (50%) percent of the
outstanding shares of Common Stock, the Company shall not effect any
consolidation, merger or sale with the person having made such offer or
with any affiliate of such person, unless prior to the consummation of
such consolidation, merger or sale the Holder of this Warrant shall
have been given a reasonable opportunity to then elect to receive upon
the exercise of this Warrant the amount of stock, securities, other
evidence of equity ownership or assets then issuable with respect to
the number of shares of Common Stock in accordance with such offer.
(iv) In case the Company shall, at any time prior to exercise
of this Warrant, consolidate or merge with any other corporation or
other entity (where the Company is not the surviving entity) or
transfer all or substantially all of its assets to any other
corporation or other entity, then the Company shall, as a condition
precedent to such transaction, cause effective provision to be made so
that the Holder of this Warrant upon the exercise of this Warrant after
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the effective date of such transaction shall be entitled to receive the
kind and amount of shares, evidences of indebtedness and/or other
securities or property receivable on such transaction by a holder of
the number of shares of Common Stock as to which this Warrant was
exercisable immediately prior to such transaction (without giving
effect to any restriction upon such exercise); and, in any such case,
appropriate provision shall be made with respect to the rights and
interest of the Holder of this Warrant to the end that the provisions
of this Warrant shall thereafter be applicable (as nearly as may be
practicable) with respect to any shares, evidences of indebtedness or
other securities or assets thereafter deliverable upon exercise of this
Warrant. Upon the occurrence of any event described in this Section
4(iv), the holder of this Warrant shall have the right to (i) exercise
this Warrant immediately prior to such event at an Exercise Price equal
to lesser of (1) the then Exercise Price or (2) the price per share of
Common Stock paid in such event, or (ii) retain ownership of this
Warrant, in which event, appropriate provisions shall be made so that
the Warrant shall be exercisable at the Holder's option into shares of
stock, securities or other equity ownership of the surviving or
acquiring entity.
Whenever the Exercise Price shall be adjusted pursuant to this
Section 4, the Company shall issue a certificate signed by its President or Vice
President and by its Treasurer, Assistant Treasurer, Secretary or Assistant
Secretary, setting forth, in reasonable detail, the event requiring the
adjustment, the amount of the adjustment, the method by which such adjustment
was calculated (including a description of the basis on which the Board of
Directors of the Company made any determination hereunder), and the Exercise
Price after giving effect to such adjustment, and shall cause copies of such
certificates to be mailed (by first-class mail, postage prepaid) to the Holder
of this Warrant. The Company shall make such certificate and mail it to the
Holder promptly after each adjustment.
No fractional shares of Common Stock shall be issued in connection
with any exercise of this Warrant, but in lieu of such fractional shares, the
Company shall make a cash payment therefore equal in amount to the product of
the applicable fraction multiplied by the Exercise Price then in effect.
5. In the event the Company grants rights (other than rights granted
pursuant to a shareholder rights or poison pill plan) to all shareholders to
purchase Common Stock, the Holder shall have the same rights as if this Warrant
had been exercised immediately prior to such grant.
6. The shares of Common Stock issuable upon the exercise of this
Warrant shall have piggyback rights for inclusion in a registration statement
filed by the Company pursuant to a Form S-2 to be filed with the Securities and
Exchange Commission on or prior to May 1, 2004.
7. This Warrant need not be changed because of any change in the
Exercise Price or in the number of shares of Common Stock purchased hereunder.
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8. The terms defined in this paragraph, whenever used in this Warrant,
shall, unless the context otherwise requires, have the respective meanings
hereinafter specified. The term "Common Stock" shall mean and include the
Company's Common Stock, $0.03 par value per share, authorized on the date of the
original issue of this Warrant and shall also include in case of any
reorganization, reclassification, consolidation, merger or sale of assets of the
character referred to in Section 4 hereof, the stock, securities or assets
provided for in such paragraph. The term "Company" shall also include any
successor corporation to Calypte Biomedical Corporation by merger, consolidation
or otherwise. The term "outstanding" when used with reference to Common Stock
shall mean at any date as of which the number of shares thereof is to be
determined, all issued shares of Common Stock, except shares then owned or held
by or for the account of the Company. The term "1933 Act" shall mean the
Securities Act of 1933, as amended, or any successor Federal statute, and the
rules and regulations of the Securities and Exchange Commission, or any other
Federal agency then administering the 1933 Act, there-under, all as the same
shall be in effect at the time.
9. This Warrant is exchangeable, upon the surrender hereby by the
Holder at the office or agency of the Company, for new Warrants of like tenor
representing in the aggregate the right to subscribe for and purchase the number
of shares of Common Stock which may be subscribed for and purchased hereunder,
each of such new Warrants to represent the right to subscribe for and purchase
such number of shares of Common Stock as shall be designated by the Holder at
the time of such surrender. Upon receipt of evidence satisfactory to the Company
of the loss, theft, destruction or mutilation of this Warrant or any such new
Warrants and, in the case of any such loss, theft, or destruction, upon delivery
of a bond of indemnity, reasonably satisfactory to the Company, or, in the case
of any such mutilation, upon surrender or cancellation of this Warrant or such
new Warrants, the Company will issue to the Holder a new Warrant of like tenor,
in lieu of this Warrant or such new Warrants, representing the right to
subscribe for and purchase the number of shares of Common Stock which may be
subscribed for and purchased hereunder.
10. The Company will at no time close its transfer books against the
transfer of this Warrant or of any shares of Common Stock issued or issuable
upon the exercise of this warrant in any manner which interferes with the timely
exercise of this Warrant. This Warrant shall not entitle the Holder to any
voting rights or any rights as a shareholder of the Company. The rights and
obligations of the Company, of the Holder, and of any holder of shares of Common
Stock issuable hereunder, shall survive the exercise of this Warrant.
11. This Warrant sets forth the entire agreement of the Company and the
Holder of the Common Stock issuable upon the exercise of this Warrant with
respect to the rights of the Holder and the Common Stock issuable upon the
exercise of this Warrant, notwithstanding the knowledge of such Holder of any
other agreement or the provisions of any agreement, whether or not known to the
Holder, and the Company represents that there are no agreements inconsistent
with the terms hereof or which purport in any way to bind the Holder of this
Warrant or the Common Stock.
14
12. The laws of the State of California shall govern the validity,
interpretation and performance of this Warrant and each of its terms and
provisions.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer under its corporate seal and dated as of November
13, 2003.
CALYPTE BIOMEDICAL CORPORATION
By _____________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Executive Vice President & CFO
15
FORM OF ELECTION TO PURCHASE
(To be executed by the Holder to exercise the right to purchase shares of Common
Stock under the Warrant to which this form applies, issued by Calypte Biomedical
Corporation ("Calypte"))
To Calypte Biomedical Corporation:
The undersigned hereby irrevocably elects to purchase _____________
shares of common stock, $0.03 par value per share, of Calypte (the "Common
Stock") and, encloses herewith $________ in cash, certified or official bank
check or checks, which sum represents the aggregate Exercise Price (as defined
in the Warrant) for the number of shares of Common Stock to which this Form of
Election to Purchase relates, together with any applicable taxes payable by the
undersigned pursuant to the Warrant.
The undersigned requests that certificates for the shares of Common
Stock issuable upon this exercise be issued in the name of
PLEASE INSERT SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER
(Please print name and address)
----------------------------------------
Dated: , Name of Holder:
------------ -----
(Print)
-----------------------------------------
(By:)
-----------------------------------------
(Name:)
-----------------------------------------
(Title:)
-----------------------------------------
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant)
FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ________________________________ the right represented by the within
Warrant to purchase ____________ shares of Common Stock of Calypte Biomedical
Corporation to which the within Warrant relates and appoints ________________
attorney to transfer said right on the books of Calypte Biomedical Corporation
with full power of substitution in the premises.
Dated:
---------------, ----
--------------------------------------------
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant)
--------------------------------------------
Address of Transferee
--------------------------------------------
--------------------------------------------
In the presence of:
--------------------------
16
Exhibit D
Calypte Biomedical Corporation
Summary of Accounts Payable and Accrued Expenses
As of September 30, 2003
Accounts payable and accrued expenses as of September 30, 2003 consisted of the
following (in thousands):
2003
----
Trade accounts payable $ 2,424
Accrued royalty payments 575
Accrued salary and vacation pay 237
Accrued interest (including non-cash penalties for
delayed registration of $272) 294
Current portion of consulting contract liability 1,054
Other 373
--------
Total accounts payable and accrued expenses $ 4,957
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