Contract
EXHIBIT
A
NEITHER
THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THESE SECURITIES AND THE SECURITIES ISSUABLE UPON EXERCISE OF THESE
SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED
BY SUCH SECURITIES.
CALYPTE
BIOMEDICAL CORPORATION
WARRANT
| Warrant No. [ ] |
Original
Issue Date: [ ],
2007
|
Calypte
Biomedical Corporation,
a
Delaware corporation (the “Company”),
hereby
certifies that, for value received, [ ] or his registered assigns (the
“Holder”),
is
entitled to purchase from the Company up to a total of [ ]1
shares
of Common Stock (each such share, a “Warrant
Share”
and all
such shares, the “Warrant
Shares”),
at any
time and from time to time from and after the six month anniversary of the
Original Issue Date and through and including [ ], 2012 (the “Expiration
Date”),
and
subject to the following terms and conditions:
1. Definitions.
As used
in this Warrant, the following terms shall have the respective definitions
set
forth in this Section 1. Capitalized terms that are used and not defined in
this
Warrant that are defined in the Subscription Agreement (as defined below) shall
have the respective definitions set forth in the Subscription
Agreement.
“Business
Day”
means
any day except Saturday, Sunday and any day that is a federal legal holiday
in
the United States or a day on which banking institutions in the State of New
York are authorized or required by law or other government action to
close.
1 A
number
of shares equal to [ ]% of the number of shares purchased pursuant to the
Subscription Agreement.
1
“Common
Stock”
means
the common stock of the Company, par value $.03 per share, and any securities
into which such common stock may hereafter be reclassified.
“Exercise
Price” means
$0.12, subject to adjustment in accordance with Section 9.
“Fundamental
Transaction”
means
any of the following: (1) the Company effects any merger or consolidation of
the
Company with or into another Person, (2) the Company effects any sale of all
or
substantially all of its assets in one or a series of related transactions,
(3)
any tender offer or exchange offer (whether by the Company or another Person)
is
completed pursuant to which holders of Common Stock are permitted to tender
or
exchange their shares for other securities, cash or property, or (4) the Company
effects any reclassification of the Common Stock or any compulsory share
exchange pursuant to which the Common Stock is effectively converted into or
exchanged for other securities, cash or property.
“Original
Issue Date”
means
the Original Issue Date (“OID”)
first
set forth on the first page of this Warrant.
“Portland
Courts”
means
the state and federal courts sitting in Portland, Oregon.
“Purchase
Price”
means
under the Subscription Agreement the price in cash equal to $0.06
per
share
of Company Common Stock.
“Subscription
Agreement”
means
the Subscription Agreement, dated February 6, 2007, to which the Company and
the
original Holder are parties.
“Trading
Day”
means
(i) a day on which the Common Stock is traded on a Trading Market (other than
the OTC Bulletin Board), or (ii) if the Common Stock is not listed on a Trading
Market (other than the OTC Bulletin Board), a day on which the Common Stock
is
traded in the over-the-counter market, as reported by the OTC Bulletin Board,
or
(iii) if the Common Stock is not quoted on any Trading Market, a day on which
the Common Stock is quoted in the over-the-counter market as reported by the
National Quotation Bureau Incorporated (or any similar organization or agency
succeeding to its functions of reporting prices); provided, that in the event
that the Common Stock is not listed or quoted as set forth in (i), (ii) and
(iii) hereof, then Trading Day shall mean a Business Day.
2. Registration
of Warrant.
The
Company shall register this Warrant upon records to be maintained by the Company
for that purpose (the “Warrant
Register”),
in the
name of the record Holder hereof from time to time. The Company may deem and
treat the registered Holder of this Warrant as the absolute owner hereof for
the
purpose of any exercise hereof or any distribution to the Holder, and for all
other purposes, absent actual notice to the contrary.
3. Registration
of Transfers.
The
Company shall register the transfer of any portion of this Warrant in the
Warrant Register, upon surrender of this Warrant, with the Form of Assignment
attached hereto duly completed and signed, to the Company at its address
specified herein. Upon any such registration or transfer, a new Warrant to
purchase Common Stock, in substantially the form of this Warrant (any such
new
Warrant, a “New
Warrant”),
evidencing the portion of this Warrant so transferred shall be issued to the
transferee and a New Warrant evidencing the remaining portion of this Warrant
not so transferred, if any, shall be issued to the transferring Holder. The
acceptance of the New Warrant by the transferee thereof shall be deemed the
acceptance by such transferee of all of the rights and obligations of a holder
of a Warrant.
2
4. Exercise
and Duration of Warrants.
This
Warrant shall be exercisable by the registered Holder at any time and from
time
to time from and after the Original Issue Date and through and including the
Expiration Date. At 5:00 p.m. Pacific time on the Expiration Date, the portion
of this Warrant not exercised prior thereto shall be and become void and of
no
value. The Company may not call or redeem any portion of this Warrant without
the prior written consent of the affected Holder.
5. Delivery
of Warrant Shares.
To
effect
exercises hereunder, the Holder shall not be required to physically surrender
this Warrant unless the aggregate Warrant Shares represented by this Warrant
is
being exercised. Upon delivery of the Exercise Notice (in the form attached
hereto) to the Company (with the attached Warrant Shares Exercise Log) at its
address for notice set forth herein and upon payment of the Exercise Price
multiplied by the number of Warrant Shares that the Holder intends to purchase
hereunder, the Company shall promptly (but in no event later than five Trading
Days after the Date of Exercise (as defined herein)) issue and deliver to the
Holder, the Warrant Shares issuable upon such exercise, which, as required
by
the Subscription Agreement, 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.”
(a) A
“Date
of Exercise”
means
the date on which the Holder shall have delivered to the Company: (i) the
Exercise Notice (with the Warrant Exercise Log attached to it), appropriately
completed and duly signed and (ii) if such Holder is not utilizing the cashless
exercise provisions set forth in this Warrant, payment of the Exercise Price
for
the number of Warrant Shares so indicated by the Holder to be
purchased.
(b) If
by the
fifth Trading Day after a Date of Exercise the Company fails to deliver the
required number of Warrant Shares in the manner required pursuant to Section
5,
then the Holder will have the right to rescind such exercise.
(c) The
Company's obligations to issue and deliver Warrant Shares in accordance with
the
terms hereof are absolute and unconditional, irrespective of any action or
inaction by the Holder to enforce the same, any waiver or consent with respect
to any provision hereof, the recovery of any judgment against any Person or
any
action to enforce the same, or any setoff, counterclaim, recoupment, limitation
or termination, or any breach or alleged breach by the Holder or any other
Person of any obligation to the Company or any violation or alleged violation
of
law by the Holder or any other Person, and irrespective of any other
circumstance which might otherwise limit such obligation of the Company to
the
Holder in connection with the issuance of Warrant Shares. Nothing herein shall
limit a Xxxxxx's right to pursue any other remedies available to it hereunder,
at law or in equity including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the Company's failure
to
timely deliver certificates representing Warrant Shares upon exercise of the
Warrant as required pursuant to the terms hereof.
3
6. Charges,
Taxes and Expenses.
Issuance and delivery of Warrant Shares upon exercise of this Warrant shall
be
made without charge to the Holder for any issue or transfer tax, withholding
tax, transfer agent fee or other incidental tax or expense in respect of the
issuance of such certificates, all of which taxes and expenses shall be paid
by
the Company; provided, however, that the Company shall not be required to pay
any tax which may be payable in respect of any transfer involved in the
registration of any certificates for Warrant Shares or Warrants in a name other
than that of the Holder. The Holder shall be responsible for all other tax
liability that may arise as a result of holding or transferring this Warrant
or
receiving Warrant Shares upon exercise hereof.
7. Replacement
of Warrant.
If this
Warrant is mutilated, lost, stolen or destroyed, the Company shall issue or
cause to be issued in exchange and substitution for and upon cancellation
hereof, or in lieu of and substitution for this Warrant, a New Warrant, but
only
upon receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction and customary and reasonable indemnity (which shall not
include a surety bond), if requested. Applicants for a New Warrant under such
circumstances shall also comply with such other reasonable regulations and
procedures and pay such other reasonable third-party costs as the Company may
prescribe. If a New Warrant is requested as a result of a mutilation of this
Warrant, then the Holder shall deliver such mutilated Warrant to the Company
as
a condition precedent to the Company’s obligation to issue the New
Warrant.
8. Reservation
of Warrant Shares.
The
Company covenants that it will at all times reserve and keep available out
of
the aggregate of its authorized but unissued and otherwise unreserved Common
Stock, solely for the purpose of enabling it to issue Warrant Shares upon
exercise of this Warrant as herein provided, the number of Warrant Shares which
are then issuable and deliverable upon the exercise of this entire Warrant,
free
from preemptive rights or any other contingent purchase rights of Persons other
than the Holder (taking into account the adjustments and restrictions of
Section
9).
The
Company covenants that all Warrant Shares so issuable and deliverable shall,
upon issuance and the payment of the applicable Exercise Price in accordance
with the terms hereof, be duly and validly authorized, issued and fully paid
and
nonassessable.
9. Certain
Adjustments.
The
Exercise Price of Warrant Shares issuable upon exercise of this Warrant is
subject to adjustment from time to time as set forth in this Section
9.
4
(a) Stock
Dividends and Splits.
If the
Company, at any time while this Warrant is outstanding, (i) pays a stock
dividend on its Common Stock or otherwise makes a distribution on any class
of
capital stock that is payable in shares of Common Stock, (ii) subdivides
outstanding shares of Common Stock into a larger number of shares, or (iii)
combines outstanding shares of Common Stock into a smaller number of shares,
then in each such case the Exercise Price shall be multiplied by a fraction
of
which the numerator shall be the number of shares of Common Stock outstanding
immediately before such event and of which the denominator shall be the number
of shares of Common Stock outstanding immediately after such event. Any
adjustment made pursuant to clause (i) of this paragraph shall become effective
immediately after the record date for the determination of stockholders entitled
to receive such dividend or distribution, and any adjustment pursuant to clause
(ii) or (iii) of this paragraph shall become effective immediately after the
effective date of such subdivision or combination.
(b) Fundamental
Transactions.
If, at
any time while this Warrant is outstanding there is a Fundamental Transaction,
then the Holder shall have the right thereafter to receive, upon exercise of
this Warrant, the same amount and kind of securities, cash or property as it
would have been entitled to receive upon the occurrence of such Fundamental
Transaction if it had been, immediately prior to such Fundamental Transaction,
the holder of the number of Warrant Shares then issuable upon exercise in full
of this Warrant (the “Alternate
Consideration”).
For
purposes of any such exercise, the determination of the Exercise Price shall
be
appropriately adjusted to apply to such Alternate Consideration based on the
amount of Alternate Consideration issuable in respect of one share of Common
Stock in such Fundamental Transaction, and the Company shall apportion the
Exercise Price among the Alternate Consideration in a reasonable manner
reflecting the relative value of any different components of the Alternate
Consideration. If holders of Common Stock are given any choice as to the
securities, cash or property to be received in a Fundamental Transaction, then
the Holder shall be given the same choice as to the Alternate Consideration
it
receives upon any exercise of this Warrant following such Fundamental
Transaction. At the Holder's option and request, any successor to the Company
or
surviving entity in such Fundamental Transaction shall, either (1) issue to
the
Holder a new warrant substantially in the form of this Warrant and consistent
with the foregoing provisions and evidencing the Holder's right to purchase
the
Alternate Consideration for the aggregate Exercise Price upon exercise thereof,
or (2) purchase the Warrant from the Holder for a purchase price, payable in
cash within five Trading Days after such request (or, if later, on the effective
date of the Fundamental Transaction), equal to the Black Scholes value of the
remaining unexercised portion of this Warrant on the date of such request.
The
terms of any agreement pursuant to which a Fundamental Transaction is effected
shall include terms requiring any such successor or surviving entity to comply
with the provisions of this paragraph (c) and insuring that the Warrant (or
any
such replacement security) will be similarly adjusted upon any subsequent
transaction analogous to a Fundamental Transaction.
(c) Subsequent
Equity Sales.
(i) If
the
Company at any time prior to the one year anniversary of the Original Issue
Date, shall issue shares of Common Stock or Common Stock Equivalents entitling
any Person to acquire shares of Common Stock, at a price per share less than
the
Purchase Price (if the holder of the Common Stock or Common Stock Equivalent
so
issued shall at any time, whether by operation of purchase price adjustments,
reset provisions, floating conversion, exercise or exchange prices or otherwise,
or due to warrants, options or rights issued in connection with such issuance,
be entitled to receive shares of Common Stock at a price less than the Purchase
Price, such issuance shall be deemed to have occurred for less than the Exercise
Price), then, the Exercise Price shall be reduced to equal a lower price that
is
defined as follows:
5
(ii) The
qualifying price per share that is below the Purchase Price times two (which
is
the ratio between the Purchase and Exercise Price.) For example, if a sale
of
stock occurs 9 months after the OID at $0.04 per share, the Exercise Price
would
be adjusted to $0.08 per share for all unexercised warrants. Such adjustment
shall be made whenever such Common Stock or Common Stock Equivalents are issued.
The Company shall notify the Holder in writing, no later than the Trading Day
following the issuance of any Common Stock or Common Stock Equivalent subject
to
this section, indicating therein the applicable issuance price, or of applicable
reset price, exchange price, conversion price and other pricing
terms.
(iii) For
purposes of this subsection 9(c), the following subsections (c)(ii)(l) to
(c)(ii)(6) shall also be applicable:
(1) Issuance
of Rights or Options.
In case
at any time the Company shall in any manner grant (directly and not by
assumption in a merger or otherwise) any warrants or other rights to subscribe
for or to purchase, or any options for the purchase of, Common Stock or any
stock or security convertible into or exchangeable for Common Stock (such
warrants, rights or options being called “Options”
and such
convertible or exchangeable stock or securities being called “Convertible
Securities”)
whether
or not such Options or the right to convert or exchange any such Convertible
Securities are immediately exercisable, and the price per share for which Common
Stock is issuable upon the exercise of such Options or upon the conversion
or
exchange of such Convertible Securities (determined by dividing (i) the sum
(which sum shall constitute the applicable consideration) of (x) the total
amount, if any, received or receivable by the Company as consideration for
the
granting of such Options, plus (y) the aggregate amount of additional
consideration payable to the Company upon the exercise of all such Options,
plus
(z), in the case of such Options which relate to Convertible Securities, the
aggregate amount of additional consideration, if any, payable upon the issue
or
sale of such Convertible Securities and upon the conversion or exchange thereof,
by (ii) the total maximum number of shares of Common Stock issuable upon the
exercise of such Options or upon the conversion or exchange of all such
Convertible Securities issuable upon the exercise of such Options) shall be
less
than the Purchase Price in effect immediately prior to the time of the granting
of such Options, then the total number of shares of Common Stock issuable upon
the exercise of such Options or upon conversion or exchange of the total amount
of such Convertible Securities issuable upon the exercise of such Options shall
be deemed to have been issued for such price per share as of the date of
granting of such Options or the issuance of such Convertible Securities and
thereafter shall be deemed to be outstanding for purposes of adjusting the
Exercise Price. Except as otherwise provided in subsection 9(c)(ii)(3), no
adjustment of the Exercise Price shall be made upon the actual issue of such
Common Stock or of such Convertible Securities upon exercise of such Options
or
upon the actual issue of such Common Stock upon conversion or exchange of such
Convertible Securities.
6
(2) Issuance
of Convertible Securities.
In case
the Company shall in any manner issue (directly and not by assumption in a
merger or otherwise) or sell any Convertible Securities, whether or not the
rights to exchange or convert any such Convertible Securities are immediately
exercisable, and the price per share for which Common Stock is issuable upon
such conversion or exchange (determined by dividing (i) the sum (which sum
shall
constitute the applicable consideration) of (x) the total amount received or
receivable by the Company as consideration for the issue or sale of such
Convertible Securities, plus (y) the aggregate amount of additional
consideration, if any, payable to the Company upon the conversion or exchange
thereof, by (ii) the total number of shares of Common Stock issuable upon the
conversion or exchange of all such Convertible Securities) shall be less than
the Purchase Price in effect immediately prior to the time of such issue or
sale, then the total maximum number of shares of Common Stock issuable upon
conversion or exchange of all such Convertible Securities shall be deemed to
have been issued for such price per share as of the date of the issue or sale
of
such Convertible Securities and thereafter shall be deemed to be outstanding
for
purposes of adjusting the Exercise Price, provided that (a) except as otherwise
provided in subsection 9(c)(ii)(3), no adjustment of the Exercise Price shall
be
made upon the actual issuance of such Common Stock upon conversion or exchange
of such Convertible Securities and (b) no further adjustment of the Exercise
Price shall be made by reason of the issue or sale of Convertible Securities
upon exercise of any Options to purchase any such Convertible Securities for
which adjustments of the Exercise Price have been made pursuant to the other
provisions of subsection 9(c).
(3) Change
in Option Price or Conversion Rate.
Upon
the happening of any of the following events, namely, if the purchase price
provided for in any Option referred to in subsection 9(c)(ii)(l) hereof, the
additional consideration, if any, payable upon the conversion or exchange of
any
Convertible Securities referred to in subsections 9(c)(ii)(l) or 9(c)(ii)(2),
or
the rate at which Convertible Securities referred to in subsections 9(c)(ii)(l)
or 9(c)(ii)(2) are convertible into or exchangeable for Common Stock shall
change at any time (including, but not limited to, changes under or by reason
of
provisions designed to protect against dilution), the Exercise Price in effect
at the time of such event shall forthwith be readjusted to the Exercise Price
which would have been in effect at such time had such Options or Convertible
Securities still outstanding provided for such changed purchase price,
additional consideration or conversion rate, as the case may be, at the time
initially granted, issued or sold. On the termination of any Option for which
any adjustment was made pursuant to this subsection 9(c) or any right to convert
or exchange Convertible Securities for which any adjustment was made pursuant
to
this subsection 9(c) (including without limitation upon the redemption or
purchase for consideration of such Convertible Securities by the Company),
the
Exercise Price then in effect hereunder shall forthwith be changed to the
Exercise Price which would have been in effect at the time of such termination
had such Option or Convertible Securities, to the extent outstanding immediately
prior to such termination, never been issued.
(4) Stock
Dividends.
Subject
to the provisions of this Section 9(c), in case the Company shall declare a
dividend or make any other distribution upon any stock of the Company (other
than the Common Stock) payable in Common Stock, Options or Convertible
Securities, then any Common Stock, Options or Convertible Securities, as the
case may be, issuable in payment of such dividend or distribution shall be
deemed to have been issued or sold without consideration.
7
(5) Consideration
for Stock.
In case
any shares of Common Stock, Options or Convertible Securities shall be issued
or
sold for cash, the consideration received therefor shall be deemed to be the
net
amount received by the Company therefor, after deduction therefrom of any
expenses incurred or any underwriting commissions or concessions paid or allowed
by the Company in connection therewith. In case any shares of Common Stock,
Options or Convertible Securities shall be issued or sold for a consideration
other than cash, the amount of the consideration other than cash received by
the
Company shall be deemed to be the fair value of such consideration as determined
in good faith by the Board of Directors of the Company, after deduction of
any
expenses incurred or any underwriting commissions or concessions paid or allowed
by the Company in connection therewith. In case any Options shall be issued
in
connection with the issue and sale of other securities of the Company, together
comprising one integral transaction in which no specific consideration is
allocated to such Options by the parties thereto, such Options shall be deemed
to have been issued for such consideration as determined in good faith by the
Board of Directors of the Company. If Common Stock, Options or Convertible
Securities shall be issued or sold by the Company and, in connection therewith,
other Options or Convertible Securities (the “Additional
Rights”)
are
issued, then the consideration received or deemed to be received by the Company
shall be reduced by the fair market value of the Additional Rights (as
determined using the Black-Scholes option pricing model or another method as
may
be determined by the Company).
(6) Record
Date.
In case
the Company shall take a record of the holders of its Common Stock for the
purpose of entitling them (i) to receive a dividend or other distribution
payable in Common Stock, Options or Convertible Securities or (ii) to subscribe
for or purchase Common Stock, Options or Convertible Securities, then such
record date shall be deemed to be the date of the issue or sale of the shares
of
Common Stock deemed to have been issued or sold upon the declaration of such
dividend or the making of such other distribution or the date of the granting
of
such right of subscription or purchase, as the case may be.
(iv) Notwithstanding
the foregoing, no issuances of Additional Shares will be made under this Section
as a result of: (i) the issuance of Warrant Shares, (ii) the issuance of
securities upon the exercise or conversion of any Common Stock or Common Stock
Equivalents issued by the Company prior to the date hereof or any amendments,
modifications or reissuances thereof, (iii) the grant of options or warrants,
or
the issuance of additional securities, under any duly authorized Company stock
option, restricted stock plan or stock purchase plan whether now existing or
approved by the Company and its stockholders in the future, (iv) shares of
Common Stock (including any shares of Common Stock issuable in respect of Common
Stock Equivalents) issued or issuable as part of an equity line with Dutchess
Capital Management up to $10 million, (v) shares of Common Stock or Common
Stock
Equivalents issued in connection with strategic transactions, (vi) the grant
of
options and warrants to consultants for bona fide consulting services as
approved by the Company’s Board of Directors, or (vii) shares of Common Stock
issued pursuant to Rule 144 at a price equal to or greater than 80% of the
Purchase Price. For purposes of this Agreement “Common Stock Equivalents” shall
mean any securities of the Company which entitle the holder thereof to acquire
Common Stock at any time, including without limitation, any debt, preferred
stock, rights, options, warrants or other instrument that is at any time
convertible into or exchangeable for, or otherwise entitles the holder thereof
to receive, Common Stock or other securities that entitle the holder to receive,
directly or indirectly, Common Stock.
8
(v)
This
Section 9 (c) is no longer applicable once the warrant has been
exercised.
10. Payment
of Exercise Price.
The
Holder may pay the Exercise Price in cash by delivering to the Company
immediately available funds.
11. No
Fractional Shares.
No
fractional shares of Warrant Shares will be issued in connection with any
exercise of this Warrant. In lieu of any fractional shares which would,
otherwise be issuable, the Company shall pay cash equal to the product of such
fraction multiplied by the closing price of one Warrant Share as reported by
the
applicable Trading Market on the date of exercise.
12. Notices.
Any and
all notices or other communications or deliveries hereunder (including, without
limitation, any Exercise Notice) shall be in writing and shall be deemed given
and effective on the earliest of (i) the date of transmission, if such notice
or
communication is delivered via facsimile at the facsimile number specified in
this Section prior to 6:30 p.m. (New York City time) on a Trading Day, (ii)
the
next Trading Day after the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile number specified in this Section
on
a day that is not a Trading Day or later than 6:30 p.m. (New York City time)
on
any Trading Day, (iii) the Trading Day following the date of mailing, if sent
by
nationally recognized overnight courier service, or (iv) upon actual receipt
by
the party to whom such notice is required to be given. The addresses for such
communications shall be: (i) if to the Company, to Calypte Biomedical
Corporation, Attn: President, or to Facsimile No.: (000) 000-0000 (or such
other
address as the Company shall indicate in writing in accordance with this
Section), or (ii) if to the Holder, to the address or facsimile number appearing
on the Warrant Register or such other address or facsimile number as the Holder
may provide to the Company in accordance with this Section.
13. Warrant
Agent.
The
Company shall serve as warrant agent under this Warrant. Upon 10 days' notice
to
the Holder, the Company may appoint a new warrant agent. Any corporation into
which the Company or any new warrant agent may be merged or any corporation
resulting from any consolidation to which the Company or any new warrant agent
shall be a party or any corporation to which the Company or any new warrant
agent transfers substantially all of its corporate trust or shareholders
services business shall be a successor warrant agent under this Warrant without
any further act. Any such successor warrant agent shall promptly cause notice
of
its succession as warrant agent to be mailed (by first class mail, postage
prepaid) to the Holder at the Holder's last address as shown on the Warrant
Register.
14. Miscellaneous.
(a) This
Warrant shall be binding on and inure to the benefit of the parties hereto
and
their respective successors and assigns. Subject to the preceding sentence,
nothing in this Warrant shall be construed to give to any Person other than
the
Company and the Holder any legal or equitable right, remedy or cause of action
under this Warrant. This Warrant may be amended only in writing signed by the
Company and the Holder and their successors and assigns.
9
(b) All
questions concerning the construction, validity, enforcement and interpretation
of this Warrant shall be governed by and construed and enforced in accordance
with the internal laws of the State of Delaware, without regard to the
principles of conflicts of law thereof. Each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense of this
Warrant and the transactions herein contemplated (“Proceedings”)
(whether brought against a party hereto or its respective Affiliates, employees
or agents) shall be commenced exclusively in the Portland Courts. Each party
hereto hereby irrevocably submits to the exclusive jurisdiction of the Portland
Courts for the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any Proceeding, any claim that
it is not personally subject to the jurisdiction of any Portland Court, or
that
such Proceeding has been commenced in an improper or inconvenient forum. Each
party hereto hereby irrevocably waives personal service of process and consents
to process being served in any such Proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Warrant
and
agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing contained herein shall be deemed to limit in any
way
any right to serve process in any manner permitted by law. Each party hereto
hereby irrevocably waives, to the fullest extent permitted by applicable law,
any and all right to trial by jury in any legal proceeding arising out of or
relating to this Warrant or the transactions contemplated hereby. If either
party shall commence a Proceeding to enforce any provisions of this Warrant,
then the prevailing party in such Proceeding shall be reimbursed by the other
party for its attorney’s fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such Proceeding.
(c) The
headings herein are for convenience only, do not constitute a part of this
Warrant and shall not be deemed to limit or affect any of the provisions
hereof.
(d) In
case
any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Warrant shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
(e) Prior
to
exercise of this Warrant, the Holder hereof shall not, by reason of being a
Holder, be entitled to any rights of a stockholder with respect to the Warrant
Shares.
[REMAINDER
OF XXXX INTENTIONALLY LEFT BLANK,
SIGNATURE
PAGE FOLLOWS]
10
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by
its
authorized officer as of the date first indicated above.
| CALYPTE BIOMEDICAL CORPORATION | ||
| |
|
|
| By: | ||
|
Name: Xxxxxxx X. Xxxxxxxxxx |
||
| Title: EVP | ||
11
EXERCISE
NOTICE
CALYPTE
BIOMEDICAL CORPORATION
WARRANT
DATED FEBRUARY [ ], 2007
The
undersigned Holder hereby irrevocably elects to purchase _____________ shares
of
Common Stock pursuant to the above referenced Warrant. Capitalized terms used
herein and not otherwise defined have the respective meanings set forth in
the
Warrant.
(1) The
undersigned Holder hereby exercises its right to purchase _________________
Warrant Shares pursuant to the Warrant.
(2) The
holder shall pay the sum of $____________ to the Company in accordance with
the
terms of the Warrant.
(3) Pursuant
to this Exercise Notice, the Company shall deliver to the holder _______________
Warrant Shares in accordance with the terms of the Warrant.
(5) By
its
delivery of this Exercise Notice, the undersigned represents and warrants to
the
Company that in giving effect to the exercise evidenced hereby the Holder will
not beneficially own in excess of the number of shares of Common Stock
(determined in accordance with Section 13(d) of the Securities Exchange Act
of
1934).
|
Dated:
___________,
_______
|
Name
of Holder/name on certificate:
|
|
|
(Print)
|
||
|
Mailing
address for certificate:
|
By:
|
|
|
Name:
|
||
|
Title:
|
||
|
(Signature
must conform in all respects to name of holder as specified on the
face of
the Warrant)
|
12
Warrant
Shares Exercise Log
|
Date
|
Number
of Warrant Shares Available to be Exercised
|
Number
of Warrant Shares Exercised
|
Number
of Warrant Shares Remaining to be Exercised
|
|
|
CALYPTE
BIOMEDICAL CORPORATION
WARRANT
ORIGINALLY ISSUED february [ ], 2007
WARRANT
NO. [ ]
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 above-captioned
Warrant to purchase ____________ shares of Common Stock to which such Warrant
relates and appoints ________________ attorney to transfer said right on the
books of the Company 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: | |
14
