Exhibit 10.133
SUBSCRIPTION AGREEMENT
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August 28, 2003
Dear Subscriber:
You (the "Subscriber") hereby agree to purchase, and Calypte Biomedical
Corporation, a Delaware corporation (the "Company"), hereby agrees to issue and
to sell to the Subscriber, Shares of the Company's $.03 par value common stock
(the "Company Shares") for the consideration as set forth on the signature page
hereof ("Purchase Price"). (The Company Shares are sometimes referred to herein
as the "Shares", "Common Shares", "Securities", or "Common Stock"). Upon
acceptance of this Agreement by the Subscriber, the Company shall issue and
deliver the Shares against payment, by federal funds wire transfer, or bank, or
certified check of the Purchase Price.
The following terms and conditions shall apply to this
Subscription.
1. SUBSCRIBER'S REPRESENTATIONS AND WARRANTIES. The Subscriber
hereby represents and warrants to and agrees with the Company that:
(a) INFORMATION ON COMPANY. The Subscriber has been
furnished with the Company's Form 10-K for the year ended December 31, 2002 as
filed with the Securities and Exchange Commission (the "Commission")
together with all subsequently filed forms 10-QSB,
8-K, Proxy Statement, and other publicly available filings made with the
Commission (hereinafter referred to collectively as the "Reports"). In addition,
the Subscriber has received from the Company such other information concerning
its operations, financial condition and other matters as the Subscriber has
requested (such information in writing is collectively, the "Other Written
Information"), and considered all factors the Subscriber deems material in
deciding on the advisability of investing in the Shares of Common Stock.
(b) INFORMATION ON SUBSCRIBER. The Subscriber is and
was not a "U.S. person", as defined in Regulation S promulgated
under the Securities Act of 1933 at the time the offer
or sale of the Shares of Common Stock is made. Additionally, Subscriber is an
"accredited investor", as such term is defined in Regulation D promulgated by
the Commission under the Securities Act of 1933, as amended (the "1933 Act"), is
part of a group of companies that is experienced in investments and business
matters, has made investments of a speculative nature and has purchased
securities of United States publicly-owned companies in private placements in
the past and, with its representatives, has such knowledge and experience in
financial, tax and other business matters as to enable the Subscriber to utilize
the information made available by the Company to evaluate the merits and risks
of and to make an informed investment decision with respect to the proposed
purchase, which represents a speculative investment. The Subscriber has the
authority and is duly and legally qualified to purchase and own the Shares of
Common Stock. The Subscriber is able to bear the risk of such investment for an
indefinite period and to afford a complete loss thereof. The information set
forth on the signature page hereto regarding the Subscriber is accurate.
(c) PURCHASE OF SHARES AND LOCK-UP PROVISION. On the
Closing Date, the Subscriber will purchase the Company Stock for its own account
at a price of $0.50 per share and not with a view to any distribution thereof
and that the purchase of the Common Stock is intended to be made as an "Offshore
Transaction" as defined in Regulation S. The Subscriber agrees to hold the
Common Stock purchased under this Agreement for a period of twelve months
following the date of closing.
(d) COMPLIANCE WITH SECURITIES ACT. The Subscriber
understands and agrees that the Shares have not been registered under the 1933
Act, by reason of their issuance in a transaction that does not require
registration under the 1933 Act (based in part on the accuracy of the
representations and warranties of Subscriber contained herein), and that such
Shares of Common Stock must be held unless a subsequent disposition is
registered under the 1933 Act or is exempt from such registration.
(e) COMPANY SHARES LEGEND. The Company Shares shall
bear the following legend, unless same 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".
(f) COMMUNICATION OF OFFER. The offer to sell the
Shares of Common Stock was directly communicated to the Subscriber. At no time
was the Subscriber presented with or solicited by any leaflet, newspaper or
magazine article, radio or television advertisement, or any other form of
general advertising or solicited or invited to attend a promotional meeting
otherwise than in connection and concurrently with such communicated offer.
(g) CORRECTNESS OF REPRESENTATIONS. The Subscriber
represents that the foregoing representations and warranties are true and
correct as of the date hereof and, unless the Subscriber otherwise notifies the
Company prior to the Closing Date (as hereinafter defined), shall be true and
correct as of the Closing Date. The foregoing representations and warranties
shall survive the Closing Date.
2. COMPANY REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to and agrees with the Subscriber that:
(a) DUE INCORPORATION. The Company and each of its
subsidiaries, if any, is a corporation duly organized, validly existing and in
good standing under the laws of the respective jurisdictions of their
incorporation and have the requisite corporate power to own their properties and
to carry on their business as now being conducted. The Company and each of its
subsidiaries is duly qualified as a foreign corporation to do business and is in
good standing in each jurisdiction where the nature of the business conducted or
property owned by it makes such qualification necessary, other than those
jurisdictions in which the failure to so qualify would not have a material
adverse effect on the business, operations or financial condition of the
Company.
(b) OUTSTANDING STOCK. All issued and outstanding
shares of capital stock of the Company and each of its subsidiaries has been
duly authorized and validly issued and are fully paid and non-assessable.
(c) AUTHORITY; ENFORCEABILITY. This Agreement and
other agreements delivered together with this Agreement or in connection
herewith have been duly authorized, executed and delivered by the Company and
are valid and binding agreements enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights generally and to general principles of equity; and the Company
has full corporate power and authority necessary to enter into this Agreement,
and such other agreements and to perform its obligations hereunder and under all
other agreements entered into by the Company relating hereto.
(d) ADDITIONAL ISSUANCES. Except as set forth in the
Reports and Other Written Information as described in Section 1(a), there are no
outstanding agreements or preemptive or similar rights affecting the Company's
common stock or equity and no outstanding rights, warrants or options to
acquire, or instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of any shares of common
stock or equity of the Company or other equity interest in any of the
subsidiaries of the Company.
(e) CONSENTS. No consent, approval, authorization or
order of any court, governmental agency or body or arbitrator having
jurisdiction over the Company, or any of its affiliates, the National
Association of Securities Dealers, Inc. ("NASD"), NASDAQ or the Company's
Shareholders is required for execution of this Agreement, and all other
agreements entered into by the Company relating thereto, including, without
limitation, the issuance and sale of the Securities, and the performance of the
Company's obligations hereunder and under all such other agreements.
(f) NO VIOLATION OR CONFLICT. Assuming the
representations and warranties of the Subscriber in Paragraph 1 are true and
correct and the Subscriber complies with its obligations under this Agreement,
neither the issuance and sale of the Shares of Common Stock nor the performance
of the Company's obligations under this Agreement and all other agreements
entered into by the Company relating thereto by the Company will:
(i) violate, conflict with, result in a
breach of, or constitute a default (or an event which with the giving of notice
or the lapse of time or both would be reasonably likely to constitute a default)
under (A) the certificate of incorporation, charter or bylaws of the Company,
(B) to the Company's knowledge, any decree, judgment, order, law, treaty, rule,
regulation or determination applicable to the Company of any court, governmental
agency or body, or arbitrator having jurisdiction over the Company or any of its
affiliates or over the properties or assets of the Company or any of its
affiliates, (C) the terms of any bond, debenture, note or any other evidence of
indebtedness, or any agreement, stock option or other similar plan, indenture,
lease, mortgage, deed of trust or other instrument to which the Company or any
of its affiliates is a party, by which the Company or any of its affiliates is
bound, or to which any of the properties of the Company or any of its affiliates
is subject, or (D) the terms of any "lock-up" or similar provision of any
underwriting or similar agreement to which the Company, or any of its affiliates
is a party except the violation, conflict, breach, or default of which would not
have a material adverse effect on the Company; or
(ii) result in the creation or imposition of
any lien, charge or encumbrance upon the Shares of Common Stock or any of the
assets of the Company, its subsidiaries or any of its affiliates.
(g) THE SHARES OF COMMON STOCK. The Shares upon
issuance:
(i) are, or will be, free and clear of any security
interests, liens, claims or other encumbrances, subject to
restrictions upon transfer under the 1933 Act and State
laws;
(ii) have been, or will be, duly and validly authorized
and on the date of issuance and on the Closing Date, as
hereinafter defined, and will be duly and validly issued,
fully paid and nonassessable (and if registered pursuant to
the 1933 Act, and resold pursuant to an effective
Registration Statement will be free trading and
unrestricted, provided that the Subscriber complies with the
Prospectus delivery requirements);
(iii) will not have been issued or sold in violation of
any preemptive or other similar rights of the holders of any
Shares of Common Stock of the Company; and
(iv) will not subject the holders thereof to personal
liability by reason of being such holders.
(h) LITIGATION. Except as disclosed in the Securities
and Exchange Commission filings, Reports or Other Written Information, there is
no pending or, to the best knowledge of the Company, threatened action, suit,
proceeding or investigation before any court, governmental agency or body, or
arbitrator having jurisdiction over the Company, or any of its affiliates which
litigation if adversely determined could have a material adverse effect on the
Company.
(i) REPORTING COMPANY. The Company is a publicly-held
company subject to reporting obligations pursuant to Sections 15(d) and 13 of
the Securities Exchange Act of 1934, as amended (the "1934 Act") and has a class
of common shares registered pursuant to Section 12(g) of the 1934 Act. The
Company's common stock is listed for trading on the OTC Bulletin Board
("Bulletin Board"). Pursuant to the provisions of the 1934 Act, the Company has
filed all reports and other materials required to be filed thereunder with the
Securities and Exchange Commission during the preceding twelve months.
(j) NO MARKET MANIPULATION. The Company has not
taken, and will not take, directly or indirectly, any action designed to, or
that might reasonably be expected to, cause or result in stabilization or
manipulation of the price of the common stock of the Company to facilitate the
sale or resale of the Shares of Common Stock or affect the price at which the
Shares may be issued or resold.
(k) INFORMATION CONCERNING COMPANY. The Reports
contain all material information relating to the Company and its operations and
financial condition as of their respective dates which information is required
to be disclosed therein. Since the date of the financial statements included in
the Reports, and except as modified in the Other Written Information or in the
Schedule hereto, there has been no material adverse change in the Company's
business, financial condition or affairs not disclosed in the Reports. The
Reports do not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances when made.
(l) DILUTION. The Company's executive officers and
directors have studied and fully understand the nature of the Stock being sold
hereby and recognize that they have a potential dilutive effect. The board of
directors of the Company has concluded, in its good faith business judgment,
that such issuance is in the best interests of the Company. The Company
specifically acknowledges that its obligation to issue the Shares upon payment
is binding upon the Company and enforceable, except as otherwise described in
this Subscription Agreement, regardless of the dilution such issuance may have
on the ownership interests of other shareholders of the Company.
(m)STOP TRANSFER. The Shares of Common Stock are
restricted securities as of the date of this Agreement. The Company will not
issue any stop transfer order or other order impeding the sale, resale or
delivery of the Stock, except as may be required by federal securities laws.
(n) DEFAULTS. To the best of the Company's knowledge,
neither the Company nor any of its subsidiaries is in violation of its
Certificate of Incorporation or ByLaws. Neither the Company nor any of its
subsidiaries is (i) in default under or in violation of any other material
agreement or instrument to which it is a party or by which it or any of its
properties are bound or affected, which default or violation would have a
material adverse effect on the Company, (ii) in default with respect to any
order of any court, arbitrator or governmental body or subject to or party to
any order of any court or governmental authority arising out of any action, suit
or proceeding under any statute or other law respecting antitrust, monopoly,
restraint of trade, unfair competition or similar matters, or (iii) to its
knowledge in violation of any statute, rule or regulation of any governmental
authority which violation would have a material adverse effect on the Company.
(o) NO INTEGRATED OFFERING. The Company believes that
neither the Company, nor any of its affiliates, nor any person acting on its or
their behalf, has directly or indirectly made any offers or sales of any
security or solicited any offers to buy any security under circumstances that
would cause the offer of the Shares of Common Stock pursuant to this Agreement
to be integrated with prior offerings by the Company for purposes of the 1933
Act or any applicable stockholder approval provisions, including, without
limitation, under the rules and regulations of the Bulletin Board nor will the
Company or any of its affiliates or subsidiaries take any action or steps that
would cause the offering of the Common Stock to be integrated with other
offerings. The Company has not conducted and will not conduct any offer other
than the transactions contemplated hereby that will be integrated with the offer
or issuance of the Common Stock. Subscribers warrant and represent to the
Company that each Subscriber has not taken any action that would cause a
violation of the integration regulation as promulgated by Federal Law as made
and provided.
(p) NO GENERAL SOLICITATION. Neither the Company, nor
any of its affiliates, nor to its knowledge, any person acting on its or their
behalf, has engaged in any form of general solicitation or general advertising
(within the meaning of Regulation S or D under the Act) in connection with the
offer or sale of the Common Stock.
(q) LISTING. The Company's Common Stock is quoted on,
and listed for trading on the Bulletin Board. The Company has not received any
oral or written notice that its Common Stock will be delisted from the Bulletin
Board or that the Company's Common Stock does not meet all requirements for the
continuation of such listing.
(r) NO UNDISCLOSED LIABILITIES. The Company has no
liabilities or obligations which are material, individually or in the aggregate,
which are not disclosed in the Reports, Securities and Exchange Commission
filings, and Other Written Information, other than those incurred in the
ordinary course of the Company's businesses since December 31, 2002 and which,
individually or in the aggregate, would not reasonably be expected to have a
material adverse effect on the Company's financial condition.
(s) NO UNDISCLOSED EVENTS OR CIRCUMSTANCES. Since
December 31, 2002, no event or circumstance has occurred or exists with respect
to the Company or its businesses, properties, operations or financial condition,
that, under applicable law, rule or regulation, requires public disclosure or
announcement prior to the date hereof by the Company but which has not been so
publicly announced or disclosed in the Reports.
(t) CAPITALIZATION. The authorized and outstanding
capital stock of the Company as of the date of this Agreement and the Closing
Date are set forth on the Schedule hereto. Except as set forth in the Reports
and Other Written Information and Securities and Exchange Commission filings,
there are no options, warrants, or rights to subscribe to, securities, rights or
obligations convertible into or exchangeable for or giving any right to
subscribe for any shares of capital stock of the Company. All of the outstanding
shares of Common Stock of the Company have been duly and validly authorized and
issued and are fully paid and nonassessable.
(u) CORRECTNESS OF REPRESENTATIONS. The Company
represents that the foregoing representations and warranties are true and
correct as of the date hereof in all material respects, and, unless the Company
otherwise notifies the Subscriber prior to the Closing Date, shall be true and
correct in all material respects as of the Closing Date. The foregoing
representations and warranties shall survive the Closing Date.
3. REGULATION S OFFERING. This Offering is being made pursuant
to the exemption from the registration provisions of the Securities Act of 1933,
as amended, afforded by Regulation S promulgated there under. On the Closing
Date, the Company will provide an opinion from the Company's legal counsel based
upon the representation of Subscribers opining on the availability of the
Regulation S exemption as it relates to the offer and issuance of the Shares of
Common Stock.
4. REISSUANCE OF SHARES OF COMMON STOCK. The Company agrees to
reissue certificates representing the Shares of Common Stock without the legend
set forth in Sections 1(e) above at such time as (a) the holder thereof is
permitted to and disposes of such Shares of Common Stock pursuant to Rule 144(d)
and/or Rule 144(k) under the 1933 Act or Regulation "S" in the opinion of
counsel reasonably satisfactory to the Company, or (b) upon resale subject to an
effective registration statement after the Shares are registered under the 1933
Act. The Company agrees to cooperate with the Subscriber in connection with all
resales pursuant to Rule 144(d) and Rule 144(k) and provide legal opinions
necessary to allow such resales provided the Company and its counsel receive
requested written representations from the Subscriber and selling broker, if
any. Provided the Subscriber provides required certifications and representation
letters, if any, if the Company fails to remove any legend as required by this
Section 4 (a "Legend Removal Failure"), then beginning on the tenth (10th) day
following the date that the Subscriber has requested the removal of the legend
and delivered all items reasonably required by the Company to be delivered by
the Subscriber, the Company continues to fail to remove such legend, the Company
shall pay to each Subscriber or assignee holding Shares, subject to a Legend
Removal Failure, as liquidated damages and not a penalty an amount equal to one
percent (1%) of the Purchase Price of the Shares subject to a Legend Removal
Failure per day that such failure continues. If during any twelve (12) month
period, the Company fails to remove any legend as required by this Section 4 for
an aggregate of thirty (30) days, each Subscriber or assignee holding Shares
subject to a Legend Removal Failure may, at its option, require the Company to
purchase all or any portion of the Shares subject to a Legend Removal Failure
held by such Subscriber or assignee at a price per share equal to 120% of the
applicable Purchase Price.
5. REGULATION D. In the event that a Subscriber does not
qualify under Regulation S and qualifies under Regulation D, the Company
covenants and agrees that if the Company fails to file a Registration Statement
for Company Shares within ninety (90) days from the Closing Date pursuant to
Section 10.1(iv) below, then for so long as such registration statement is not
effective and as any of the Company Shares remain outstanding and continue to be
"restricted Shares" within the meaning of Rule 144, the Company shall, in order
to permit resales of any of the Company Shares pursuant to Rule 144 under the
1933 Act, (a) continue to file all material required to be filed pursuant to
Section 13(a) or 15(d) of the 1934 Act.
6. INDEMNIFICATION. The Company on the one hand, and the
Subscriber on the other hand, agree to indemnify the other against and hold the
other harmless from any and all liabilities to any other persons claiming
brokerage commissions or finder's fees other than Careen Limited on account of
services purported to have been rendered on behalf of the indemnifying party in
connection with this Agreement or the transactions contemplated hereby and
arising out of such party's actions. The Company and the Subscriber represent to
each other that there are no other parties entitled to receive fees,
commissions, or similar payments in connection with the offering described in
the Subscription Agreement.
7. COVENANTS OF THE COMPANY. The Company covenants and agrees
with the Subscriber as follows:
(a) The Company will advise the Subscriber, promptly after it
receives notice of issuance by the Securities and Exchange Commission,
any state securities commission or any other regulatory authority of
any stop order or of any order preventing or suspending any offering
of any securities of the Company, or of the suspension of the
qualification of the Common Stock of the Company for offering or sale
in any jurisdiction, or the initiation of any proceeding for any such
purpose.
(b) The Company will maintain the listing of its Common Stock on
the NASDAQ SmallCap Market, NASDAQ National Market System, NASD OTC
Bulletin Board, or New York Exchange, or Pink Sheet Trading Market
(whichever of the foregoing is at the time the principal trading
exchange or market for the Common Stock (the "Principal Market"), and
will use its best efforts to comply, in all respects, with the
Company's reporting, filing and other obligations under the bylaws or
rules of the National Association of Securities Dealers ("NASD") and
such exchanges, as applicable. The Company will provide the Subscriber
copies of all notices it receives notifying the Company of the
threatened and actual delisting of the Common Stock from any Principal
Market.
(c) The Company shall notify the Commission, NASD, the Principal
Market and applicable state authorities, in accordance with their
requirements, if any, of the transactions contemplated by this
Agreement, and shall take all other necessary action and proceedings
as may be required and permitted by applicable law, rule and
regulation, for the legal and valid issuance of the Shares of Common
Stock to the Subscriber and promptly provide copies thereof to
Subscriber.
(d) From the Closing Date and until at least one (1) year after
the effectiveness of the Registration Statement on Form S-2 or such
other Registration Statement described in Section 10.1(iv) hereof, the
Company will (i) cause its Common Stock to continue to be registered
under Sections 12(b) or 12(g) of the Exchange Act, (ii) comply in all
respects with its reporting and filing obligations under the Exchange
Act, (iii) comply with all reporting requirements that are applicable
to an issuer with a class of Shares registered pursuant to Section
12(g) of the Exchange Act, and (iv) comply with all requirements
related to any registration statement filed pursuant to this
Agreement. The Company will use its best efforts not to take any
action or file any document (whether or not permitted by the Act or
the Exchange Act or the rules thereunder) to terminate or suspend such
registration or to terminate or suspend its reporting and filing
obligations under said Acts until one (1) year after the actual
effective date of the Registration Statement on Form S-2 or other
Registration Statement described in Section 10.1(iv) hereof. Until the
resale of the Company Shares by the Subscriber, the Company will use
its best efforts to continue the listing of the Common Stock on the
Bulletin Board and will comply in all respects with the Company's
reporting, filing and other obligations under the bylaws or rules of
Bulletin Board.
8. COVENANTS OF THE COMPANY AND SUBSCRIBER REGARDING
INDEMNIFICATION.
(a) The Company agrees to indemnify, hold harmless, reimburse and
defend Subscriber, Subscriber's officers, directors, agents,
affiliates, control persons, and principal shareholders, against any
claim, cost, expense, liability, obligation, loss or damage (including
reasonable legal fees) of any nature, incurred by or imposed upon
Subscriber or any such person which results, arises out of or is based
upon (i) any material misrepresentation by Company or breach of any
warranty by Company in this Agreement or in any Exhibits or Schedules
attached hereto, or other agreement delivered pursuant hereto; or (ii)
after any applicable notice and/or cure periods, any breach or default
in performance by the Company of any covenant or undertaking to be
performed by the Company hereunder, or any other agreement entered
into by the Company and Subscribers relating hereto.
(b) Subscriber agrees to indemnify, hold harmless, reimburse and
defend the Company and each of the Company's officers, directors,
agents, affiliates, control persons against any claim, cost, expense,
liability, obligation, loss or damage (including reasonable legal
fees) of any nature, incurred by or imposed upon the Company or any
such person which results, arises out of or is based upon (i) any
material misrepresentation by Subscriber in this Agreement or in any
Exhibits or Schedules attached hereto, or other agreement delivered
pursuant hereto; or (ii) after any applicable notice and/or cure
periods, any breach or default in performance by Subscriber of any
covenant or undertaking to be performed by Subscriber hereunder, or
any other agreement entered into by the Company and Subscribers
relating hereto.
(c) The procedures set forth herein shall apply to the
indemnifications set forth in Sections 8(a) and 8(b) above.
9. INTENTIONALLY LEFT BLANK
10.1. REGISTRATION RIGHTS. The Company hereby grants the
following registration rights to holders of the Shares of Common Stock.
(a) The Company hereby agrees use its best commercial efforts to
register the Shares of Common Stock herein on a Form S-2 or any other
applicable Form with the Securities and Exchange Commission.
Subscribers agree that the registration will be on an optional
piggy-back or single registration basis at the option of the Company,
and that the Company will bear all costs and expenses of the
registration.
(b) The Company agrees to give ten (10) days written notice to
all Subscribers of the filing of the Registration Statement, and
Subscribers agree that each will cooperate with the Company in
providing the necessary information required by each Subscriber to
file a Registration Statement on that Subscriber's behalf.
1
(c) Each Subscriber agrees to execute the within Agreement and to
subscribe for the number of Shares of Common Stock as agreed to by
Subscriber.
10.2. REGISTRATION PROCEDURES. If and whenever the Company is
required by the provisions hereof to effect the registration of any Shares of
Common Stock under the Act, the Company will, as expeditiously as possible:
(a) prepare and file with the Commission a Registration Statement
with respect to such Shares of Common Stock and use its best efforts
to cause such Registration Statement to become and remain effective
for the period of the distribution contemplated thereby (determined as
herein provided), and promptly provide to the holders of Shares of
Common Stock ("Sellers") copies of all filings with the Commission;
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such Registration
Statement effective until the latest of: (i) 180 days following the
effective date of the Registration Statement;
(c) furnish to the Seller, such number of copies of the
Registration Statement and the prospectus included therein (including
each preliminary prospectus) as such Seller reasonably may request in
order to facilitate the public sale or their disposition of the
securities covered by such Registration Statement;
(d) use its best efforts to register or qualify the Seller's
Shares of Common Stock covered by such Registration Statement under
the securities or "blue sky" laws of such jurisdictions as the Seller
shall reasonably designate, provided, however, that the Company shall
not for any such purpose be required to qualify generally to transact
business as a foreign corporation in any jurisdiction where it is not
so qualified or to consent to general service of process in any such
jurisdiction;
(e) list the Shares of Common Stock covered by such Registration
Statement with any securities exchange on which the Common Stock of
the Company is then listed;
(f) immediately notify the Seller when a prospectus relating
thereto is required to be delivered under the Act, of the happening of
any event of which the Company has knowledge as a result of which the
prospectus contained in such Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances then existing;
(g) make available for inspection by the Seller, and any attorney
retained by the Seller, all publicly available, non-confidential
financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers, directors
and employees to supply all publicly available, non-confidential
information reasonably requested by the attorney for Seller in
connection with such Registration Statement;
(h) will notify the Subscriber of the effectiveness of the
Registration Statement within one business day of such event.
10.3. PROVISION OF DOCUMENTS. In connection with each
registration hereunder, the Seller will furnish to the Company in writing such
information and representation letters with respect to itself and the proposed
distribution by it as reasonably shall be necessary in order to assure
compliance with federal and applicable state securities laws. In connection with
each registration pursuant to Section 10.1(i) or 10.1(ii) covering an
underwritten public offering, the Company and the Seller agree to enter into a
written agreement with the managing underwriter in such form and containing such
provisions as are customary in the securities business for such an arrangement
between such underwriter and companies of the Company's size and investment
stature.
10.4. FEES AND EXPENSES. Each party shall pay the fees and
expenses of its advisers, counsel, accountants and other experts, if any, and
all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement. The Company
shall pay all stamp and other taxes and duties levied in connection with the
issuance of the Securities.
10.5. INDEMNIFICATION AND CONTRIBUTION.
(a) In the event of a registration of any Shares of
Common Stock under the Act pursuant to Section 10, the Company will indemnify
and hold harmless the Seller, each officer of the Seller, each director of the
Seller, each underwriter of such Shares of Common Stock thereunder and each
other person, if any, who controls such Seller or underwriter within the meaning
of the 1933 Act, against any losses, claims, damages or liabilities, joint or
several, to which the Seller, or such underwriter or controlling person may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement under which such Shares of Common Stock
were registered under the Act pursuant to Section 10, any preliminary prospectus
or final prospectus contained therein, or any amendment or supplement thereof,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances when made, and
will reimburse the Seller, each such underwriter and each such controlling
person for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company shall not be liable to the Seller to
the extent that any such damages arise out of or are based upon an untrue
statement or omission made in any preliminary prospectus if (i) the Seller
failed to send or deliver a copy of the final prospectus delivered by the
Company to the Seller with or prior to the delivery of written confirmation of
the sale by the Seller to the person asserting the claim from which such damages
arise, (ii) the final prospectus would have corrected such untrue statement or
alleged untrue statement or such omission or alleged omission, or (iii) to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission so made in conformity with information furnished by any such Seller, or
any such controlling person in writing specifically for use in such Registration
Statement or prospectus.
(b) In the event of a registration of any of the
Shares of Common Stock under the Act pursuant to Section 10, the Seller will
indemnify and hold harmless the Company, and each person, if any, who controls
the Company within the meaning of the Act, each officer of the Company who signs
the Registration Statement, each director of the Company, each underwriter and
each person who controls any underwriter within the meaning of the Act, against
all losses, claims, damages or liabilities, joint or several, to which the
Company or such officer, director, underwriter or controlling person may become
subject under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement under which such Shares of Common Stock were
registered under the Act pursuant to Section 10, any preliminary prospectus or
final prospectus contained therein, or any amendment or supplement thereof, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Company and each such
officer, director, underwriter and controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, provided, however,
that the Seller will be liable hereunder in any such case if and only to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information pertaining to
such Seller, as such, furnished in writing to the Company by such Seller
specifically for use in such registration statement or prospectus, and provided,
further, however, that the liability of the Seller hereunder shall be limited to
the gross proceeds received by the Seller from the sale of Common Stock covered
by such Registration Statement.
(c) Promptly after receipt by an indemnified party
hereunder of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party hereunder, notify the indemnifying party in writing thereof, but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to such indemnified party other than under this
Section 10.5(c) and shall only relieve it from any liability which it may have
to such indemnified party under this Section 10.5(c), except and only if and to
the extent the indemnifying party is prejudiced by such omission. In case any
such action shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel satisfactory to such indemnified
party, and, after notice from the indemnifying party to such indemnified party
of its election so to assume and undertake the defense thereof, the indemnifying
party shall not be liable to such indemnified party under this Section 10.5(c)
for any legal expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of investigation
and of liaison with counsel so selected, provided, however, that, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be reasonable defenses available to it which are different from
or additional to those available to the indemnifying party or if the interests
of the indemnified party reasonably may be deemed to conflict with the interests
of the indemnifying party, the indemnified parties shall have the right to
select one separate counsel and to assume such legal defenses and otherwise to
participate in the defense of such action, with the reasonable expenses and fees
of such separate counsel and other expenses related to such participation to be
reimbursed by the indemnifying party as incurred.
(d) In order to provide for just and equitable
contribution in the event of joint liability under the Act in any case in which
either (i) the Seller, or any controlling person of the Seller, makes a claim
for indemnification pursuant to this Section 10.5, but it is judicially
determined (by the entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the last
right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 10.5 provides for indemnification in
such case, or (ii) contribution under the Act may be required on the part of the
Seller or controlling person of the Seller in circumstances for which
indemnification is provided under this Section 10.5; then, and in each such
case, the Company and the Seller will contribute to the aggregate losses,
claims, damages or liabilities to which they may be subject (after contribution
from others) in such proportion so that the Seller is responsible only for the
portion represented by the percentage that the public offering price of its
Shares of Common Stock offered by the Registration Statement bears to the public
offering price of all Shares of Common Stock offered by such Registration
Statement.
11. MISCELLANEOUS.
(a) NOTICES. All notices, demands, requests,
consents, approvals, and other communications required or permitted hereunder
shall be in writing and, unless otherwise specified herein, shall be (i)
personally served, (ii) deposited in the mail, registered or certified, return
receipt requested, postage prepaid, (iii) delivered by reputable air courier
service with charges prepaid, or (iv) transmitted by hand delivery, telegram, or
facsimile, addressed as set forth below or to such other address as such party
shall have specified most recently by written notice. Any notice or other
communication required or permitted to be given hereunder shall be deemed
effective (a) upon hand delivery or delivery by facsimile, with accurate
confirmation generated by the transmitting facsimile machine, at the address or
number designated below (if delivered on a business day during normal business
hours where such notice is to be received), or the first business day following
such delivery (if delivered other than on a business day during normal business
hours where such notice is to be received) or (b) on the second business day
following the date of mailing by express courier service, fully prepaid,
addressed to such address, or upon actual receipt of such mailing, whichever
shall first occur. The addresses for such communications shall be: (i) if to the
Company to Calypte Biomedical Corporation, 0000 Xxxxxx Xxx Xxxxxxx, Xxxxxxx,
Xxxxxxxxxx 00000, telecopier number: (000) 000-0000, and (ii) if to the
Subscriber, to the name, address and telecopier number set forth on the
signature page hereto.
(b) CLOSING. The consummation of the transactions
contemplated herein shall take place at the offices of Xxxxxxx & Xxxxxxxxx, 000
Xxxxx Xxxxxx Xxx Xxxx, XX, upon the satisfaction of all conditions to Closing
set forth in this Agreement. The closing date shall be the date that Subscriber
funds representing the net amount due the Company from the Purchase Price of the
Offering is transmitted by wire transfer or otherwise to the Company (the
"Closing Date").
(c) ENTIRE AGREEMENT; ASSIGNMENT. This Agreement
represents the entire agreement between the parties hereto with respect to the
subject matter hereof and may be amended only by a writing executed by both
parties. No right or obligation of either party shall be assigned by that party
without prior notice to and the written consent of the other party.
(d) EXECUTION. This Agreement may be executed by
facsimile transmission, and in counterparts, each of which will be deemed an
individual agreement. Every faxed version of the agreement will also be deemed
to be an original.
(e) LAW GOVERNING THIS AGREEMENT. This Agreement
shall be governed by and construed in accordance with the laws of the State of
California without regard to principles of conflicts of laws. Any action brought
by either party against the other concerning the transactions contemplated by
this Agreement shall be brought only in the state courts of Caliifornia or in
the federal courts located in the state of California. Both parties and the
individuals executing this Agreement and other agreements on behalf of the
Company agree to submit to the jurisdiction of such courts and waive trial by
jury. The prevailing party shall be entitled to recover from the other party its
reasonable attorney's fees and costs. In the event that any provision of this
Agreement or any other agreement delivered in connection herewith is invalid or
unenforceable under any applicable statute or rule of law, then such provision
shall be deemed inoperative to the extent that it may conflict therewith and
shall be deemed modified to conform with such statute or rule of law. Any such
provision which may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provision of any agreement.
(f) SPECIFIC ENFORCEMENT, CONSENT TO JURISDICTION.
The Company and Subscriber acknowledge and agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent or cure breaches of the provisions of this Agreement and
to enforce specifically the terms and provisions hereof or thereof, this being
in addition to any other remedy to which any of them may be entitled by law or
equity. Subject to Section 11(e) hereof, each of the Company and Subscriber
hereby waives, and agrees not to assert in any such suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of such court,
that the suit, action or proceeding is brought in an inconvenient forum or that
the venue of the suit, action or proceeding is improper. Nothing in this Section
shall affect or limit any right to serve process in any other manner permitted
by law.
(g) CONFIDENTIALITY. The Company agrees that it will
not disclose publicly or privately the identity of the Subscriber unless
expressly agreed to in writing by the Subscriber or only to the extent required
by law.
(h) AUTOMATIC TERMINATION. This Agreement shall
automatically terminate without any further action of either party hereto if the
Closing shall not have occurred by the tenth (10th) business day following the
date this Agreement is accepted by the Subscriber.
Please acknowledge your acceptance of the foregoing Subscription
Agreement by signing and returning a copy to the undersigned whereupon it shall
become a binding agreement between us.
Dated: August 28, 2003
CALYPTE BIOMEDICAL CORPORATION
a Delaware Corporation
By: /S /Xxxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Chairman
AGREED TO:
/S/ Xxxxx Xxxxx Mr. Xxxxx Xxxxx
--------------------- Duly Athorized Attorney
XXXX TECHNOLOGIES BV
SUBSCRIBER
The undersigned, a Subscriber to the within Subscription Agreement,
agrees to purchase 20,000,000 Shares of Common Stock of Calypte Biomedical
Corporation in accordance with the terms of the within Subscription Agreement at
$0.50 per share for the sum of $10,000,000.
/S/ Xxxxx Xxxxx
-----------------------
XXXX TECHNOLOGIES BV
SUBSCRIBER
Mr. Xxxxx Xxxxx
Duly Authorised Attorney
AGREED TO:
CALYPTE BIOMEDICAL CORPORATION
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------
Executive Chairman
