EXHIBIT 4.1
CALYPTE BIOMEDICAL CORPORATION
COMMON STOCK
PURCHASE AGREEMENT
OCTOBER 17, 1997
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 17, 1997 (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
3,000,000 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 four dollars and twenty-five cents ($4.25) 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 filing of the Registration Statement, as set forth in Section 9.1(a)
hereof, 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 stockholders 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 the results of its operations and
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cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal, recurring adjustments).
4.5 INTELLECTUAL PROPERTY. The 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 Section 4.6 of 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, 1997, there have not been
any changes in the assets, liabilities, financial condition or operations of
the Company from that reflected in the Financial Statements except changes
which have not been, either individually or in the aggregate, materially
adverse.
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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 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).
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(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 Document, the representations and warranties of the Company contained
herein and oral statements made by management of the Company at meetings with
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 survive the execution of this Agreement, the delivery to
the Purchasers of the securities being purchased and the payment therefor.
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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 FILED. The Registration Statement shall have
been filed by the Company pursuant to Section 9 with the Securities and
Exchange 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 FILED. The Registration Statement required
pursuant to Section 9 shall have been filed with 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
Purchasers, dated as of the Closing Date, covering the matters set forth in
Exhibit C hereto, subject to customary assumptions 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 December 31,
1997.
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:
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(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 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.
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(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
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:
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(a) "Selling Stockholder" 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 Stockholder
from and against any losses, claims, damages or liabilities to which such
Selling Stockholder 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 Stockholder 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 Stockholder 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 Stockholder specifically for use in preparation of the Registration
Statement, or the failure of such Selling Stockholder to comply with 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 Stockholder prior
to the pertinent sale or sales by the Selling Stockholder.
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
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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 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.
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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 Stockholders, within 150 days after the end of each
fiscal year of the Company), one copy of (i) its Annual Report to Stockholders
(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.
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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 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
Xxxxxxxxx: (000) 000-0000
with a copy so mailed to:
Xxxxxx Xxxxxx White & XxXxxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx, 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.
13
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.
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 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 a
commission. 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
14
fees, costs and necessary disbursements in addition to any other relief to which
such party may be entitled.
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/ Xxxx X. Xxxxx
___________________________________________
Name: Xxxx X. Xxxxx
Title: President and Chief Executive Officer
PURCHASER
Purchaser Name:
_______________________________
By:
___________________________________________
Name:
_________________________________________
Title:
________________________________________
Address:
___________________________________________
___________________________________________
___________________________________________
Facsimile:
___________________________________________
15
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, 1997:
Number of Shares that you are Number of shares of Common Stock that you
purchasing and seek to include in already beneficially own or that you are
the Registration Statement 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 1997 Annual Meeting of Stockholders?
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:
________________________________
