<PAGE>
As filed with the Securities and Exchange Commission on November 4, 1998
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CALYPTE BIOMEDICAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 3826 06-1226727
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. employer
incorporation or organization) Classification Code Number) identification
number)
1440 FOURTH STREET, BERKELEY, CALIFORNIA 94710, (510) 749-5100
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
_________________
WILLIAM A. BOEGER
President, Chief Executive Officer and Chairman of the Board of Directors
Calypte Biomedical Corporation
1440 Fourth Street
Berkeley, California 94710
(510) 749-5100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_________________
Copies to:
SARAH O'DOWD, ESQ.
Heller Ehrman White & McAuliffe
525 University Avenue
Palo Alto, California 94301
(650) 324-7000 (phone)
(650) 324-0638 (fax)
_________________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
_________________
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. /X/.
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act of 1933, as amended, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. / / ____________
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act of 1933, as amended, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. / / ________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM
TITLE OF SHARES TO BE REGISTERED TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED PER SHARE (1) OFFERING PRICE REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 3,102,500 $1.062 $3,294,855 $916
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated in accordance with Rule 457(c) for the purpose of computing the
amount of the registration fee based on the average of the high and low
prices of the Company's Common Stock on the Nasdaq SmallCap Market on
October 29, 1998.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE
COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws of
any such State.
<PAGE>
SUBJECT TO COMPLETION, DATED NOVEMBER 4, 1998
PROSPECTUS
CALYPTE BIOMEDICAL CORPORATION
3,102,500 Shares of Common Stock
These shares may be offered and sold from time to time by certain
Stockholders of the company identified in this prospectus. See "Selling
Stockholders." The Selling Stockholders acquired the shares in connection
with a Common Stock Purchase Agreement, dated November 2, 1998, among the
company and the Selling Stockholders. The Selling Stockholders will receive
all of the proceeds from the sale of the shares and will pay all underwriting
discounts and selling commissions, if any, applicable to the sale of the
shares. We will pay the expenses of registration of the sale of the shares.
Our common stock trades on the Nasdaq SmallCap Market under the symbol
"CALY". On October 29, 1998, the last reported sale price of the common
stock on the Nasdaq SmallCap Market was $1.00 per share.
Beginning on page 3, we have listed several "RISK FACTORS" which you
should consider. You should read the entire prospectus carefully before you
make your investment decision.
_________________
The Securities and Exchange Commission and state regulatory authorities
have not approved or disapproved these securities, or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
_________________
THE DATE OF THIS PROSPECTUS IS ___________, 1998
<PAGE>
You should rely only on the information contained in this prospectus.
We have not authorized anyone to provide you with information different from
that contained in this prospectus. The Selling Stockholders are offering to
sell, and seeking offers to buy, shares of Calypte Biomedical Corporation
common stock only in jurisdictions where offers and sales are permitted. The
information contained in this prospectus is accurate only as of the date of
this prospectus, regardless of the time of delivery of this prospectus or of
any sale of the shares.
In this prospectus, the "company," the "Registrant," "Calypte
Biomedical," "we," "us," and "our" refer to Calypte Biomedical Corporation.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly, and current reports, proxy statements, and
other documents with the Securities and Exchange Commission (the "SEC"). You
may read and copy any document we file at the SEC's public reference room at
Judiciary Plaza Building, 450 Fifth Street, N.W., Room 1024, Washington, D.C.
20549. You should call 1-800-SEC-0330 for more information on the public
reference room. The SEC maintains an internet site at http://www.sec.gov
where certain information regarding issuers (including Calypte Biomedical)
may be found.
This prospectus is part of a registration statement that we filed with
the SEC (Registration No. ______). The registration statement contains more
information than this prospectus regarding Calypte Biomedical and its common
stock, including certain exhibits and schedules. You can get a copy of the
registration statement from the SEC at the address listed above or from its
internet site.
DOCUMENTS INCORPORATED BY REFERENCE
The SEC allows us to "incorporate" into this prospectus information we
file with the SEC in other documents. This means that we can disclose
important information to you by referring to other documents that contain
that information. The information may include documents filed after the date
of this prospectus which update and supersede the information you read in
this prospectus. We incorporate by reference the documents listed below,
except to the extent information in those documents is different from the
information contained in this prospectus, and all future documents filed with
the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange
Act of 1934 until we terminate the offering of these shares.
<TABLE>
<CAPTION>
SEC Filing
(FILE NO. 0-20985) PERIOD/FILING DATE
------------------ ------------------
<S> <C>
Annual Report on Form 10-K Year ended December 31, 1997
Quarterly Reports on Form 10-Q Quarter ended March 31, 1998
Quarter ended June 30, 1998
Description of Common Stock contained July 10, 1996
in Registration Statement on Form 8-A
</TABLE>
You may request a copy of these documents, at no cost, by writing to:
Calypte Biomedical Corporation
1440 Fourth Street
Berkeley, California 94710
Attention: President
Telephone: (510) 749-5100.
2
<PAGE>
FORWARD-LOOKING INFORMATION
Statements made in this prospectus or in the documents incorporated by
reference herein that are not statements of historical fact are
forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended (the "Securities Act"), and Section 21E of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"). A
number of risks and uncertainties, including the those discussed under the
caption "Risk Factors" below and the documents incorporated by reference
herein could affect such forward-looking statements and could cause actual
results to differ materially from the statements made.
RISK FACTORS
YOU SHOULD CONSIDER CAREFULLY THE FOLLOWING RISK FACTORS, ALONG WITH THE
OTHER INFORMATION CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS,
IN DECIDING WHETHER TO INVEST IN OUR SHARES. THESE FACTORS, AMONG OTHERS,
MAY CAUSE ACTUAL RESULTS, EVENTS OR PERFORMANCE TO DIFFER MATERIALLY FROM
THOSE EXPRESSED IN ANY FORWARD-LOOKING STATEMENTS WE MADE IN THIS PROSPECTUS.
UNCERTAINTY OF MARKET ACCEPTANCE; LACK OF SALES AND MARKETING
EXPERIENCE. Our products incorporate a new method of determining the presence
of HIV antibodies. There can be no assurance that we will obtain:
- any significant degree of market acceptance among physicians, patients
or health care payors; or
- recommendations and endorsements by the medical community which are
essential for market acceptance of the products.
The failure of our products to obtain market acceptance would have a material
adverse effect on the company.
In addition, we have no experience marketing and selling our products
either directly or through our distributors. The success of our products
depends upon alliances with third-party distributors. There can be no
assurance that:
- our direct selling efforts will be effective;
- our distributors will market successfully our products; or
- if our relationships with distributors terminate, we will be able to
establish relationships with other distributors on satisfactory terms,
if at all.
Any disruption in our distribution, sales or marketing network could have a
material adverse effect on the company.
HISTORY OF OPERATING LOSSES; NEED FOR ADDITIONAL FINANCING. We have
incurred losses in each year since our inception. Our net loss for the six
months ended June 30, 1998 was $3.8 million. In addition to the money that
we raise from the Selling Shareholders named in this Prospectus, we believe
that we will need to raise more money in the next six months to continue to
finance our operations.
We may not be able to obtain additional financing on acceptable terms,
or at all. Any failure to raise additional financing will likely place us in
significant financial jeopardy.
DEPENDENCE ON A SINGLE PRODUCT. Our HIV-1 urine-based screening test
product is our only product. Accordingly, we may have to cease operations if
our screening test fails to achieve market acceptance or generate significant
revenues.
RELIANCE ON PROPRIETARY TECHNOLOGY AND KNOW-HOW. Our success and
ability to compete effectively depends in large part on our ability to:
- protect our patents and proprietary rights; and
- develop and maintain proprietary aspects of our technology.
We currently have the right to use certain patents and proprietary
rights related to the manufacture and sale of our products under licensing
agreements with New York University, Cambridge, Repligen, and the Texas A&M
University System. There can be no
3
<PAGE>
assurance that the rights we have under these licensing agreements are
sufficient or that we can adequately protect those rights.
DEPENDENCE UPON SOLE SOURCE SUPPLIERS. We rely on single sources for
several of the components used in the manufacture of our products. We can
not quickly replace the suppliers of single-source components. Any delay or
interruption in the supply of these components could have a material adverse
effect on the company by significantly impairing our ability to manufacture
products in sufficient quantities, particularly as we increase our
manufacturing activities in support of commercial sales.
LIMITED MANUFACTURING EXPERIENCE; SCALE-UP RISK. We have limited
experience in manufacturing our products and no experience in manufacturing
our products in commercial quantities. We may encounter difficulties in
scaling-up production of new products, including problems involving:
- production yields;
- quality control and assurance;
- raw material supply; and
- shortages of qualified personnel.
In addition, we will need to implement manufacturing at our facility in
Alameda, California if the initial demand for our product exceeds the
capacity of our Berkeley, California facility. Before we begin to
manufacture our product at the Alameda facility, we must apply for and obtain
FDA approval for that facility. Delays in receiving the FDA's approval or
other difficulties which we encounter in scaling-up our manufacturing
capacity to meet demand could have a material adverse effect on the company.
DEPENDENCE UPON INTERNATIONAL DISTRIBUTORS AND SALES. We anticipate
that international distributor sales will generate a significant portion of
our revenues for the next several years. The following risks common to
international sales and operations may limit or disrupt our international
sales:
- the imposition of government controls;
- export license requirements;
- political instability;
- trade restrictions;
- changes in tariffs;
- difficulties in managing international operations; and
- fluctuations in foreign currency exchange rates.
Some of our distributors have limited international marketing
experience. There can be no assurance that these distributors will be able to
market successfully our products in foreign markets.
INTENSE COMPETITION IN THE COMPANY'S MARKETS AND RAPID TECHNOLOGICAL
ADVANCES BY COMPETITORS. Competition in the IN VITRO diagnostic market is
intense. We expect competition to increase. Within the United States, our
competitors include a number of well-established manufacturers of blood-based
enzyme immunoassays, plus at least one system for the detection of HIV
antibodies using oral fluid samples. Many of our competitors have
significantly greater financial, marketing and distribution resources than we
do. Several of these competitors may have already submitted applications to
the FDA for approval of their over-the-counter (OTC) products. Our
competitors may succeed in developing or marketing technologies and products
that are more effective than ours.
These developments could render our technologies or products obsolete or
noncompetitive or otherwise have a material adverse effect on the company.
POTENTIAL FLUCTUATIONS IN QUARTERLY RESULTS. The factors listed below,
some of which we can not control, may cause our revenues and results of
operations to fluctuate significantly:
- actions relating to regulatory matters;
- the extent to which our products gain market acceptance;
- the timing and size of distributor purchases;
- introductions of alternative means for testing for HIV; and
- general economic conditions.
EXTENSIVE GOVERNMENT REGULATION. Numerous governmental authorities in
the United States and other countries regulate our products. The FDA
regulates our products under federal statutes and regulations related to
preclinical and clinical testing, manufacturing, labeling, distribution, sale
and promotion of medical devices in the United States.
If the company fails to comply with FDA regulations, or the FDA believes
that the company is not in compliance with such regulations, the FDA can:
4
<PAGE>
- detain or seize our products;
- issue a recall of our products;
- prohibit marketing and sales of our products; and
- assess civil and criminal penalties against the company, its officers
or its employees.
We also plan to sell our products in certain foreign countries where
they may be subject to similar local regulatory requirements. The imposition
of any of the sanctions described above could have a material adverse effect
on the company.
The regulatory approval process in the United States and other countries
is expensive, lengthy and uncertain. We may not obtain necessary regulatory
approvals or clearances in a timely manner, if at all. We may lose
previously obtained approvals or clearances or fail to comply with regulatory
requirements. The occurrence of any of these events would have a material
adverse effect on the company.
ESTABLISHMENT AND REGULATION OF REFERENCE LABORATORY. In connection
with seeking approval for an OTC home urine collection kit for HIV-1 testing,
we may establish a clinical reference laboratory. If the necessary
regulatory approvals are obtained, the reference laboratory would test for
HIV using our urine-based HIV-1 test and receive home-collected urine for HIV
testing. In addition, we may have to offer counseling to laboratory
customers in connection with the reporting of results. A reference
laboratory, especially for HIV testing, involves a number of risks. To
establish a reference laboratory, we must:
- seek to hire and retain laboratory personnel;
- purchase necessary equipment;
- secure required permits;
- incur marketing expenses;
- obtain customers; and
- comply with government regulations.
We may not be able to establish the laboratory or receive the regulatory
approvals required for its operation.
PRODUCT LIABILITY AND RECALL RISK; LIMITED INSURANCE COVERAGE. The
company manufactures medical diagnostic products which subject it to risks of
product liability claims or product recalls, particularly in the event of
false positive or false negative reports. We maintain $10,000,000 of product
liability insurance. However, product liability insurance is expensive. In
the future we may not be able to obtain coverage on acceptable terms, if at
all. Moreover, our insurance coverage may not adequately protect us from
liabilities which we incur in connection with clinical trials or sales of our
products. A product recall or a successful product liability claim or claims
which exceed our insurance coverage could have a material adverse effect on
the company.
HAZARDOUS MATERIALS. Our research and development involves the
controlled use of hazardous materials. There can be no assurance that our
safety procedures for handling and disposing of such materials will comply
with applicable regulations. In addition, we can not eliminate the risk of
accidental contamination or injury from these materials. The company may be
held liable for damages from such an accident and that liability could have a
material adverse effect on the company.
DEPENDENCE UPON KEY PERSONNEL. Our success depends upon:
- the ability of key management and technical personnel to manage our
transition to commercial-scale operations; and
- our ability to attract and retain additional highly-qualified
management and technical personnel to oversee that transition.
We face intense competition for qualified personnel. Many of our
employees and potential employees often receive competing employment offers.
There can be no assurance that we will be able to attract and retain such
personnel. The loss of the services of one or more of our key employees
could have a material adverse effect on the company.
POSSIBLE VOLATILITY OF STOCK PRICE. The market price of our common
stock, which is quoted on the NASDAQ SmallCap Market System, is likely to be
highly volatile due to the following factors:
- price and volume fluctuations in the stock market at large which do
not relate to the company's operating performance;
- fluctuations in our operating results;
5
<PAGE>
- announcements of technological innovations or new products which we or
our competitors make;
- FDA and international regulatory actions;
- actions with respect to reimbursement matters;
- developments with respect to patents or proprietary rights;
- public concern as to the safety of products that we or others develop;
- changes in health care policy in the United States or abroad; and
- changes in stock market analysts' recommendations regarding the
company, other medical products companies or the medical product
industry generally.
POTENTIAL ADVERSE EFFECT ON MARKET PRICE OF SHARES ELIGIBLE FOR FUTURE
SALE. Nearly all outstanding shares of our common stock are freely
tradeable. Sales of common stock in the public market could materially
adversely affect the market price of our common stock. Such sales also may
inhibit our ability to obtain future equity or equity-related financing on
acceptable terms.
ANTI-TAKEOVER EFFECT OF CERTAIN CHARTER PROVISIONS. Certain provisions
of our Certificate of Incorporation and Bylaws could:
- discourage potential acquisition proposals;
- delay or prevent a change in control of the company;
- diminish stockholders' opportunities to participate in tender offers
for our common stock, including tender offers at prices above the then
current market price; or
- inhibit increases in the market price of our common stock that could
result from takeover attempts.
LIMITED PUBLIC MARKET; POSSIBLE REMOVAL FROM NASDAQ SMALLCAP. The
public trading volume of our common stock has been relatively limited. A
consistently active trading market for our common stock may not develop.
In addition, the Nasdaq Stock Market has inquired whether the company
continues to meet the maintenance criteria for trading on the Nasdaq SmallCap
Market. We currently meet the maintenance criteria but our ability to
continue to do so will depend on whether we become profitable or are able to
raise additional financing. The public trading volume of our common stock
and the ability of our stockholders to sell their shares could be
significantly impaired if we fail to meet the maintenance criteria and are
consequently removed from the Nasdaq SmallCap Market.
YEAR 2000 The Company has a formal Year 2000 Program focusing on five
key readiness areas: 1) hardware, addressing information technology; 2)
software, addressing business, research, financial, inventory planning,
production control, product distribution and customer support areas; 3)
firmware, addressing built-in microprocessors that control production and
non-production equipment; 4) third party suppliers of critical inventory; and
5) third party service providers.
The Company established a Year 2000 Task Force earlier this year. The
task force is systematically examining each of the five key readiness areas
by 1) identifying items with Year 2000 compliance concerns; 2) assessing the
risk and impact of noncompliance for each item identified; and 3) correcting
non-compliant items and testing the corrections to ensure readiness at both
component and system levels. The task force shall develop contingency plans
if it discovers areas where there is a substantial possibility that Year 2000
compliance will not be achieved. The Company plans to complete the
identification of Year 2000 compliance concerns by the end of 1998. We expect
to complete risk assessment in each area by May, 1999 and the correction,
testing and the development of contingency plans will follow. We have
presently completed correction and testing in the Hardware readiness area and
it is now Year 2000 compliant. To date the Company has spent approximately
$2300 on its Year 2000 program.
We estimate that total Year 2000 costs to upgrade systems within the
Company will range from $4,000 to $15,000 with the majority of costs to be
incurred in the next eighteen months. At this time we do not anticipate that
the company will incur significant operating expenses or be required to
invest heavily in computer system improvements because our manufacturing
process does not rely heavily on automation and our existing computer
hardware has proven to be Year 2000 compliant. However the Company is
continuing to assess and develop alternatives that will require refinement of
its cost estimate over time. There can be no assurance that there will not be
a delay in, or increased costs associated with, our Year 2000 compliance
program. Since our program is ongoing, all potential Year 2000 complications
have not yet been identified. Therefore, the potential impact of possible
complications on the Company's financial condition and results of operations
cannot be determined at this time. If computer systems used by the Company or
its suppliers or the product integrity of products provided to the Company by
suppliers fail or experience significant difficulties related to the Year
2000, the Company's operations and financial condition could be adversely
effected.
6
<PAGE>
CAPITALIZATION
The following table sets forth the actual capitalization of the Company
at June 30, 1998 and the actual capitalization pro forma and as adjusted
assuming the sale by the Company of 3,102,500 shares of Common Stock pursuant
to the Purchase Agreement at a price of $1.00 per share and the application
of the net proceeds therefrom (after deduction of estimated commissions and
estimated offering expenses).
<TABLE>
<CAPTION>
JUNE 30, 1998
---------------------------------
PRO FORMA
AND AS
ACTUAL ADJUSTED(1)
------ -----------
(IN THOUSANDS, EXCEPT SHARE
AND PER SHARE DATA)
<S> <C> <C>
Long-term portion of capital lease obligations......................................... $ 118 $ 118
Mandatorily Redeemable Series A Preferred Stock, $0.001 par value;
no shares authorized; 100,000 shares issued and outstanding;
aggregate redemption and liquidation value of $1,000 plus cumulative
dividends ........................................................................... 2,036 2,036
Stockholders' equity (deficit):
Preferred Stock, $0.001 par value, 5,000,000 shares authorized;
no shares issued and outstanding, actual and as adjusted .......................... - -
Common Stock, $0.001 par value, 20,000,000 shares authorized;
13,414,073 shares issued and outstanding, as of June 30, 1998;
16,516,573 shares issued and outstanding, as adjusted(1) ............................ 13 17
Additional paid-in capital ............................................................ 56,958 59,798
Deferred compensation ................................................................. (335) (335)
Deficit accumulated during development stage .......................................... (52,097) (52,097)
-------- --------
Total stockholders' equity (deficit) ................................................ 4,539 7,383
-------- --------
-------- --------
Total capitalization .............................................................. $ 6,693 $ 9,537
-------- --------
-------- --------
</TABLE>
_____________________
(1) Includes 3,102,500 shares to be issued pursuant to the Purchase Agreement.
Excludes (i) 887,053 reserved for issuance pursuant to the Company's stock
option plans and (ii) 285,838 shares reserved for issuance pursuant to the
Company's Employee Stock Purchase Plan.
SELLING STOCKHOLDERS
The Shares covered by this Prospectus were acquired from the Company
pursuant to the Purchase Agreement for an aggregate purchase price of
$3,102,500 ($1.00 per share). The offer and sale by the Company of the
Common Stock to the Selling Stockholders pursuant to the Purchase Agreement
was made pursuant to an exemption from the registration requirements of the
Securities Act provided in Section 4(2) thereof. The Purchase Agreement
contains representations and warranties as to each Selling Stockholder's
status as an "accredited investor" as such term is defined in Rule 501
promulgated under the Securities Act. The Company has agreed to pay Pacific
Growth Equities, Inc. ("PGE") approximately $210,000 upon the closing of the
sale for certain investment advisory services and for placement agent fees in
connection with sales to certain purchasers, as well as for other advisory
services unconnected to the offering. In addition, the Company agreed to
reimburse PGE for its reasonable out-of-pocket expenses incurred in
connection with the offering, including the reasonable fees and expenses of
PGE's counsel, up to a maximum of $50,000.
7
<PAGE>
Pursuant to the Purchase Agreement, each Selling Stockholder has
represented that it acquired the Shares for investment and with no present
intention of distributing the Shares. The Company agreed, in such Purchase
Agreement, to prepare and file a registration statement as soon as
practicable and to bear all expenses other than fees and expenses of counsel
for the Selling Stockholders and underwriting discounts and commissions and
brokerage commissions and fees. In addition, and in recognition of the fact
that the Selling Stockholders, even though purchasing the Shares without a
view to distribution, may wish to be legally permitted to sell the Shares
when each deems appropriate, the Company filed with the Commission a
Registration Statement on Form S-3, of which this Prospectus forms a part,
with respect to, among other things, the resale of the Shares from time to
time at prevailing prices in the over-the-counter market or in
privately-negotiated transactions and has agreed to prepare and file such
amendments and supplements to the Registration Statement as may be necessary
to keep the Registration Statement effective 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.
None of the Selling Stockholders has had a material relationship with
the Company within the past three years except as a result of the ownership
of the Shares or other securities of the Company and as set forth in the
notes to the following table.
The following table sets forth the name of the Selling Stockholders, the
number of shares of Common Stock owned beneficially by the Selling
Stockholders as of September 30, 1998 (as adjusted to give effect to the
purchases under the Purchase Agreement) and the number of shares that may be
offered pursuant to this Prospectus. This information is based upon
information provided by the Selling Stockholders. There are currently no
agreements, arrangements or understandings with respect to the sale of any of
the Shares. The Shares are being registered to permit public secondary
trading of the Shares, and the Selling Stockholders may offer the Shares for
resale from time to time.
8
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<TABLE>
<CAPTION>
Common
Common Stock Stock Common Stock
Beneficially Owned to be Beneficially Owned
Prior to Offering(1) Sold After Offering(1)
-------------------- ---- -----------------
Holder Number Percent Number Percent
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Clarion Capital Corp. 400,000 2.4 400,000 - -
Clarion Partners, L. P. 300,000 1.8 300,000 - -
Clarion Offshore Fund Ltd. 100,000 * 100,000 - -
Atlas II, L.P. 810,000 4.9 610,000 200,000 1.2
R.J. Capital, L.P. 190,000 1.2 90,000 100,000 *
Winston Partners L.P. 100,000 * 100,000 - -
Winston Partners II L.L.C. 100,000 * 100,000 - -
MAC & Co. (Mellon Hathaway Equity) 602,500 3.6 150,000 452,500 2.7
H&Q Health Care Investors 861,576 5.2 360,000 501,576 3.0
H&Q Life Sciences Investors 572,417 3.5 240,000 332,417 2.0
Porter Partners, L.P. 200,000 1.2 200,000 - -
Apollo Medical Partners 150,000 * 150,000 - -
Robert Ryan, M.D. & 100,000 * 100,000 - -
Patricia Ryan
Stephen J. Massoca (2) 150,000 * 150,000 - -
C. Fred Toney (2) 35,000 * 20,000 15,000 *
Todd J. Kenck (2) 7,500 * 7,500 - -
David E. Collins (3) 95,958 * 25,000 70,958 *
- -------------------------------------------------------------------------------------------------
TOTALS 4,774,951 28.8 3,242,500 1,672,451 9.8
</TABLE>
_____________________
* Less than 1%
(1) Applicable percentage of ownership is based on 13,428,194 shares of Common
Stock outstanding as of October 26, 1998, and assumes the sale and issuance
of 3,102,500 shares of Common Stock pursuant to the Purchase Agreement.
(2) Stockholder is affiliated with Pacific Growth Equities, Inc., the
underwriter for the Company's initial public offering and the placement
agent for the sale of the Shares to the Selling Stockholders.
(3) Stockholder is a member of the Board of Directors of Calypte Biomedical
Corp. and is entitled to exercise options for the purchase of additional
shares. The table includes shares subject to options exercisable by
stockholder within sixty days of September 30, 1998.
PLAN OF DISTRIBUTION
All or a portion of the shares offered hereby by the Selling
Stockholders may be delivered and/or sold in transactions from time to time
on the over-the-counter market, on the Nasdaq SmallCap Market (or any other
exchange on which the shares may be listed), in negotiated transactions, or a
combination of such methods of sale, at market prices prevailing at the time,
at prices related to such prevailing prices or at negotiated prices and/or
may also be used to cover any short positions previously established. The
Selling Stockholders may effect such transactions by selling to or through
one or more broker-dealers, and such broker-dealers may receive compensation
in the form of underwriting discounts, concessions or commissions from the
Selling Stockholders. The Selling Stockholders and any broker-dealers that
participate in the distribution may under certain circumstances be deemed to
be "underwriters" within the meaning of the Securities Act, and any
commissions received by such broker-dealers and any profits realized on the
resale of shares by them may be deemed to be underwriting discounts and
commissions under the Securities Act. The Selling Stockholders may agree to
indemnify such broker-dealers against certain liabilities, including
liabilities under the Securities Act. In addition, the company has agreed to
indemnify the Selling Stockholders with respect to the shares offered hereby
against certain liabilities, including, without limitation, certain
liabilities under the Securities Act, or, if such indemnity is unavailable,
to contribute toward amounts required to be paid in respect of such
liabilities.
Any broker-dealer participating in such transactions as agent may
receive commissions from the Selling Stockholders (and, if they act as agent
for the purchaser of such shares, from such purchaser). Broker-dealers may
agree with the Selling Stockholders to sell a specified number of shares at a
stipulated price per share, and, to the extent such a broker-dealer is unable
to do so acting as agent for the Selling Stockholders, to purchase as
principal any unsold shares at the price required to fulfill the
broker-dealer commitment to the Selling Stockholders. Broker-dealers who
acquire shares as principal may thereafter resell such shares from time to
time in transactions (which may involve crosses and block transactions and
which may involve sales to and through other broker-dealers, including
transactions of the nature described above) in the over-the-counter market,
in negotiated transactions or otherwise at market prices prevailing at the
time of sale or at negotiated prices, and in connection with such resales may
pay to or receive from the purchasers of such shares commissions computed as
described above.
Under applicable rules and regulations under the Exchange Act, any
person engaged in the distribution of the resale of shares may not
simultaneously engage in market making activities with respect to the common
stock of the company for a period of two business days prior to the
commencement of such distribution. In addition and without limiting the
foregoing, the Selling Stockholders will be subject to applicable provisions
of the Exchange Act, and the rules
9
<PAGE>
and regulations thereunder, including, without limitation, Regulation M,
which provisions may limit the timing of purchases and sales of shares of the
company's common stock by the Selling Stockholders.
The Selling Stockholders will pay all commissions, transfer taxes, and
other expenses associated with the sale of securities by them. The shares
offered hereby are being registered pursuant to contractual obligations of
the company, and the company has paid the expenses of the preparation of this
prospectus. We have not made any underwriting arrangements with respect to
the sale of shares offered hereby.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
shares by the Selling Stockholders.
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for
the Company by Heller Ehrman White & McAuliffe, Palo Alto, California,
counsel to the Company in connection with the offering.
EXPERTS
The financial statements of Calypte Biomedical Corporation and
subsidiary (a development stage enterprise) as of December 31, 1997 and 1996,
and for each of the years in the three-year period ended December 31, 1997
and for the period from February 18, 1988 (inception) through December 31,
1997, have been incorporated by reference herein and in the Registration
Statement in reliance upon the report of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and upon
the authority of said firm as experts in accounting and auditing.
10
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses in connection with
the sale and distribution of the securities being registered. All of the
amounts shown are estimates except the Securities and Exchange Commission
registration fee.
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission
Registration Fee . . . . . . . . . . . . . . . . . . . . . . . $ 957
Legal fees and expenses . . . . . . . . . . . . . . . . . . . . . . . 30,000
Accounting fees and expenses. . . . . . . . . . . . . . . . . . . . . 5,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,011
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $41,968
_____
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law permits a
corporation to include in its charter documents, and in agreements between
the corporation and its directors and officers, provisions expanding the
scope of indemnification beyond that specifically provided by the current law.
Article VIII of the Registrant's Certificate of Incorporation provides
for the indemnification of directors to the fullest extent permissible under
Delaware law.
Article VI of the Registrant's Bylaws provides for the indemnification
of officers, directors and third parties acting on behalf of the corporation
if such person acted in good faith and in a manner reasonably believed to be
in and not opposed to the best interest of the corporation, and, with respect
to any criminal action or proceeding, the indemnified party had no reason to
believe his conduct was unlawful.
The Registrant has entered into indemnification agreements with its
directors and executive officers, in addition to indemnification provided for
in the Registrant's Bylaws, and intends to enter into indemnification
agreements with any new directors and executive officers in the future.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
Exhibit Description
- ------- -----------
<S> <C>
4.1 Common Stock Purchase Agreement between Registrant and the Selling
Stockholders, dated November 2, 1998
5.1 Opinion of Heller Ehrman White & McAuliffe
23.1 Consent of Heller Ehrman White & McAuliffe
(filed as part of Exhibit 5.1)
23.2 Consent of KPMG Peat Marwick LLP, Independent Auditors
24.1 Power of Attorney (see page II-3)
</TABLE>
ITEM 17. UNDERTAKINGS
A. The undersigned registrant hereby undertakes:
II-1
<PAGE>
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs A(1)(i) and A(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed a new registration statement relating
to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial BONA FIDE offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Berkeley, State of California, on
November 2, 1998.
CALYPTE BIOMEDICAL CORPORATION
/S/ WILLIAM A. BOEGER
-----------------------------------------
William A. Boeger
President, Chief Executive Officer and
Chairman of the Board of Directors
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
William A. Boeger and John J. DiPietro his true and lawful attorneys-in-fact
and agents, each acting alone, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective
amendments) to the Registration Statement, and to sign any registration
statement for the same offering covered by this Registration Statement that
is to be effective upon filing pursuant to Rule 462(b) under the Securities
Act of 1933, as amended, and all post-effective amendments thereto, and to
file the same, with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, each acting alone, or his or her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/S/ WILLIAM A. BOEGER President, Chief Executive Officer and Chairman of November 2, 1998
- ----------------------------- Board of Directors (Principal Executive Officer)
William A. Boeger
/S/ HOWARD B. URNOVITZ, PH.D. Chief Science Officer and Director November 2, 1998
- -----------------------------
Howard B. Urnovitz, Ph.D.
/S/ JOHN J. DIPIETRO Chief Operating Officer, Vice President--Finance, November 2, 1998
- ----------------------------- Chief Financial Officer and Secretary (Principal
John J. DiPietro Financial and Accounting Officer)
/S/ DAVID COLLINS Director November 2, 1998
- -----------------------------
David Collins
/S/ JULIUS R. KREVANS, M.D. Director November 2, 1998
- -----------------------------
Julius R. Krevans, M.D.
/S/ MARK NOVITCH, M.D. Director November 2, 1998
- -----------------------------
Mark Novitch, M.D.
/S/ ZAFAR I. RANDAWA, PH.D. Director November 2, 1998
- -----------------------------
Zafar I. Randawa, Ph.D.
/S/ PAUL FREIMAN Director November 2, 1998
- -----------------------------
Paul Freiman
</TABLE>
II-3
<PAGE>
CALYPTE BIOMEDICAL CORPORATION
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 Common Stock Purchase Agreement between Registrant and the
Selling Stockholders, dated November 2, 1998
5.1 Opinion of Heller, Ehrman, White & McAuliffe
23.1 Consent of Heller, Ehrman, White & McAuliffe (filed as part
of Exhibit 5)
23.2 Consent of KPMG Peat Marwick LLP, Independent Auditors
24.1 Power of Attorney (see page II-3)
</TABLE>
<PAGE>
Exhibit 4.1
CALYPTE BIOMEDICAL CORPORATION
COMMON STOCK
PURCHASE AGREEMENT
November 2, 1998
<PAGE>
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.
<PAGE>
COMMON STOCK
PURCHASE AGREEMENT
This Agreement ("Agreement") is made as of October ___, 1998 (the
"Effective Date"), by and among Calypte Biomedical Corporation, a Delaware
corporation (the "Company"), and each of those persons and entities,
severally and not jointly, listed as a Purchaser on the Schedule of
Purchasers attached as Exhibit A hereto. Such persons and entities are
hereinafter collectively referred to herein as "Purchasers" and each
individually as a "Purchaser."
AGREEMENT
In consideration of the mutual covenants contained in this Agreement,
and for other good and valuable consideration, the receipt of which is hereby
acknowledged, the Company and each Purchaser (severally and not jointly)
hereby agree as follows:
SECTION 1. AUTHORIZATION OF SALE OF THE SECURITIES.
Subject to the terms and conditions of this Agreement, the Company has,
or before the Closing (as defined below) will have, authorized the sale and
issuance of up to 3,102,500 shares of its Common Stock (the "Common Stock").
The shares of Common Stock sold hereunder shall be referred to herein as the
"Shares" or the "Securities."
SECTION 2. AGREEMENT TO SELL AND PURCHASE THE SECURITIES.
2.1 SALE OF SHARES. At the Closing (as defined in Section 3), the
Company will sell to each Purchaser, and each Purchaser will purchase from
the Company, at a purchase price of one dollar ($1.00) per Share, the number
of Shares set forth next to such Purchaser's name on the Schedule of Purchasers
attached hereto as Exhibit A (the "Schedule of Purchasers").
2.2 SEPARATE AGREEMENT. Each Purchaser shall severally, and not
jointly, be liable for only the purchase of the Shares that appear on Exhibit
A hereto and that relate to such Purchaser. The Company's agreement with
each of the Purchasers is a separate agreement, and the sale of Shares to
each of the Purchasers is a separate sale. The obligations of each Purchaser
hereunder are expressly not conditioned on the purchase by any or all of the
other Purchasers of the Shares such other Purchasers have agreed to purchase.
<PAGE>
SECTION 3. CLOSING AND DELIVERY.
3.1 Closing. The Closing of the purchase and sale of the Shares
pursuant to this Agreement (the "Closing") shall be held as soon as
practicable after the effectiveness of the Registration Statement, as set
forth in Section 9.1(a) hereof, to be filed with the Securities and Exchange
Commission (the "SEC" or the "Commission"), and satisfaction or waiver of all
other conditions to Closing set forth in Sections 7 and 8 hereof, at the
offices of Heller Ehrman White & McAuliffe, 525 University Avenue, Palo Alto,
California 94301, 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.
2
<PAGE>
4.2 CORPORATE POWER; AUTHORIZATION. The Company has all requisite
corporate power, and has taken all requisite corporate action, to execute and
deliver this Agreement, sell and issue the Shares and carry out and perform
all of its obligations under this Agreement. This Agreement constitutes the
legal, valid and binding obligation of the Company, enforceable in accordance
with its terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting the
enforcement of creditors' rights generally, (ii) as limited by equitable
principles generally, including any specific performance, and (iii) as to
those provisions of Section 9.3 relating to indemnity or contribution. The
execution and delivery of this Agreement does not, and the performance of
this Agreement and the compliance with the provisions hereof and the
issuance, sale and delivery of the Shares by the Company will not conflict
with, or result in a breach or violation of the terms, conditions or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien pursuant to the terms of, the Certificate of
Incorporation or Bylaws of the Company or any statute, law, rule applicable
to the Company or regulation or any state or federal order, judgment or
decree applicable to the Company or any indenture, mortgage, lease or other
agreement or instrument to which the Company or any of its properties is
subject, where such conflict, breach or violation would have a material
adverse effect on the Company.
4.3 ISSUANCE AND DELIVERY OF THE SHARES. The Shares, when issued
and paid for in compliance with the provisions of this Agreement, will be
validly issued, fully paid and nonassessable. The issuance and delivery of
the Shares is not subject to preemptive, co-sale, right of first refusal or
any other similar rights of the shareholders of the Company or any liens or
encumbrances.
4.4 SEC DOCUMENTS; FINANCIAL STATEMENTS. The Company has filed in
a timely manner all documents that the Company was required to file with the
SEC under Sections 13, 14(a) and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), during the twelve (12) months
preceding the date of this Agreement. As of their respective filing dates
(or, if amended prior to the date of this Agreement, when amended), all
documents filed by the Company with the SEC (the "SEC Documents") complied in
all material respects with the requirements of the Exchange Act. None of the
SEC Documents as of their respective dates contained any untrue statement of
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Documents (the "Financial
Statements") comply as to form in all material respects with applicable
accounting requirements and with the published rules and regulations of the
SEC with respect thereto. The Financial Statements have been prepared in
accordance with generally accepted accounting principles consistently applied
and fairly present the financial position of the Company at the dates thereof
and
3
<PAGE>
the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal, recurring
adjustments).
4.5 INTELLECTUAL PROPERTY. Company owns or possesses adequate
rights to use all material patents, patent rights, inventions, trade secrets
and know-how described or referred to in the SEC Documents as owned or used
by it or that are necessary for the conduct of its business as presently
conducted and as described in the SEC Documents. Except as set forth in the
SEC Documents, the Company has not received any notice of, nor has any
knowledge of, any infringement of or conflict with asserted rights of others
with respect to any patent, patent right, invention, trade secret or know-how
that, individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on the
business, properties, financial condition or results or operations of the
Company.
4.6 CAPITALIZATION. All of the Company's outstanding shares of
capital stock have been duly authorized and validly issued and are fully paid
and nonassessable, have been issued in compliance with all federal and state
securities laws, and were not issued in violation of or subject to any
preemptive right or other rights to subscribe for or purchase securities.
The actual authorized and outstanding capital stock of the Company as of the
date hereof is as set forth in Exhibit B. Except as set forth in Exhibit B,
there are no outstanding options to purchase, or any preemptive rights or
other rights to subscribe for or to purchase, any securities or obligations
convertible into, or any contracts or commitments to issue or sell shares of
the company's capital stock or any such options, rights, convertible
securities or obligations.
4.7 LITIGATION. There is no pending or, to the Company's
knowledge, threatened, action, suit or other proceeding to which the Company
is a party or to which its property or assets are subject.
4.8 GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state, or local governmental authority on the part
of the Company is required in connection with the consummation of the
transactions contemplated by this Agreement except for (a) compliance with
the securities and blue sky laws in the states and other jurisdictions in
which shares of Common Stock are offered and/or sold, which compliance will
be effected in accordance with such laws, and (b) the filing of a
registration statement and all amendments thereto with the SEC as
contemplated by Section 9.1 of this Agreement.
4.9 NO MATERIAL ADVERSE CHANGE. Since June 30, 1998, there have
not been any changes in the assets, liabilities, financial condition or
operations of the
4
<PAGE>
Company from that reflected in the Financial Statements except changes which
have not been, either individually or in the aggregate, materially adverse.
4.10 LISTING; MAINTENANCE OF LISTING. The Company's Common Stock
is traded on the Nasdaq SmallCap Market. For so long as the Company is
obligated to keep in effect the Registration Statement provided for in
Section 9 hereof, the Company will use its reasonable best efforts to
maintain its listing on the Nasdaq SmallCap Market, the Nasdaq National
Market or a national securities exchange, as defined in the Exchange Act.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS.
5.1 Each Purchaser, severally and not jointly, represents and
warrants to and covenants with the Company that:
(a) Purchaser, taking into account the personnel and
resources it can practically bring to bear on the purchase of the Securities
contemplated hereby, either alone or together with the advice of such
Purchaser's purchaser representative, is knowledgeable, sophisticated and
experienced in making, and is qualified to make, decisions with respect to
investments in shares presenting an investment decision like that involved in
the purchase of the Securities, including investments in securities issued by
the Company, and has requested, received, reviewed and considered, either
alone or with such Purchaser's purchaser representative, all information
Purchaser deems relevant (including the SEC documents) in making an informed
decision to purchase the Securities.
(b) Purchaser is acquiring the Securities being acquired by
Purchaser pursuant to this Agreement in the ordinary course of its business
and for its own account for investment only and with no present intention of
distributing any of such Securities or any arrangement or understanding with
any other persons regarding the distribution of such Securities, except in
compliance with Section 5.1(c).
(c) Purchaser will not, directly or indirectly, offer, sell,
pledge, transfer or otherwise dispose of (or solicit any offers to buy,
purchase or otherwise acquire or take a pledge of) any of the securities
purchased hereunder except in compliance with the Securities Act of 1933, as
amended (the "Securities Act"), applicable blue sky laws, and the rules and
regulations promulgated thereunder.
(d) Purchaser has completed or caused to be completed the
Stock Certificate Questionnaire and the Registration Questionnaire, attached
hereto as Appendix I and Appendix II, respectively, for use in preparation of
the Registration Statement to be filed by the Company, and the answers
thereto are true and correct as of the date hereof and will be true and
correct as of the effective date of the applicable
5
<PAGE>
Registration Statement (provided that Purchaser shall be entitled to update
such information by providing notice thereof to the Company prior to the
effective date of such Registration Statement).
(e) Purchaser has, in connection with its decision to
purchase the Securities, relied with respect to the Company and its affairs
solely upon the SEC Documents, the representations and warranties of the
Company contained herein and oral statements of the Company's management made
at meetings with the Purchaser.
(f) Purchaser is an "accredited investor" within the meaning
of Rule 501 of Regulation D promulgated under the Securities Act or a
Qualified Institutional Buyer within the meaning of Rule 144A promulgated
under the Securities Act.
(g) Purchaser has full right, power, authority and capacity
to enter into this Agreement and to consummate the transactions contemplated
hereby and has taken all necessary action to authorize the execution,
delivery and performance of this Agreement. Upon the execution and delivery
of this Agreement by Purchaser, this Agreement shall constitute a valid and
binding obligation of Purchaser, enforceable in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting the enforcement of
creditors' rights generally, (ii) as limited by equitable principles
generally, including any specific performance, and (iii) as to those
provisions of Section 9.3 relating to indemnity or contribution.
5.2 Purchaser represents and warrants to and covenants with the
Company that Purchaser has not engaged and will not engage in any short sales
of the Company's Common Stock prior to the effectiveness of the Registration
Statement, except to the extent that any such short sale is fully covered by
shares of Common Stock of the Company other than the Shares.
5.3 Purchaser understands that nothing in this Agreement or any
other materials presented to Purchaser in connection with the purchase and
sale of the Shares constitutes legal, tax or investment advice and that no
independent legal counsel has reviewed these documents and materials on
Purchaser's behalf. Purchaser has consulted such legal, tax and investment
advisors as it, in its sole discretion, has deemed necessary or appropriate
in connection with its purchase of the Shares.
SECTION 6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement,
all covenants, agreements, representations and warranties made by the Company
and each Purchaser herein and in the certificates for the securities
delivered pursuant hereto shall
6
<PAGE>
survive the execution of this Agreement, the delivery to the Purchasers of
the securities being purchased and the payment therefor.
SECTION 7. CONDITIONS TO COMPANY'S OBLIGATIONS AT THE CLOSING.
The Company's obligation to complete the sale and issuance of the
Securities and deliver shares of Common Stock to each Purchaser,
individually, as set forth in the Schedule of Purchasers shall be subject to
the following conditions to the extent not waived by the Company:
7.1 RECEIPT OF PAYMENT. The Company shall have received payment,
by check or wire transfer of immediately available funds, in the full amount
of the purchase price for the number of Shares being purchased by such
Purchaser at the Closing as set forth in the Schedule of Purchasers.
7.2 REGISTRATION STATEMENT EFFECTIVE. The Registration Statement
filed by the Company pursuant to Section 9 shall have become effective, and
no stop order suspending the effectiveness thereof shall have been issued and
no proceedings therefor shall be pending or threatened by the Securities and
Exchange Commission, ("the Commission").
7.3 REPRESENTATIONS AND WARRANTIES CORRECT. The representations
and warranties made by such Purchaser in Section 5 hereof shall be true and
correct when made, and shall be true and correct on the Closing Date.
SECTION 8. CONDITIONS TO PURCHASERS' OBLIGATIONS AT THE CLOSING.
Each Purchaser's obligation to accept delivery of the Shares and to pay
for the Shares shall be subject to the following conditions to the extent not
waived by such Purchaser:
8.1 REGISTRATION STATEMENT EFFECTIVE. The Registration Statement
required pursuant to Section 9 shall have become effective, and no stop order
suspending the effectiveness thereof shall have been issued and no
proceedings therefor shall be pending or threatened by the Commission.
8.2 REPRESENTATIONS AND WARRANTIES CORRECT. The representations
and warranties made by the Company in Section 4 hereof shall be true and
correct when made, and shall be true and correct on the Closing Date.
8.3 LEGAL OPINION. Purchasers shall have received from Heller
Ehrman White & McAuliffe, counsel to the Company, an opinion letter addressed
to the
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<PAGE>
Purchasers, dated as of the Closing Date, covering the matters set forth in
Exhibit C hereto, subject to customary assumption and qualifications.
8.4 TERMINATION. This Agreement may be terminated by any
Purchaser with respect to such Purchaser only if the Closing has not
transpired by January 31, 1999.
SECTION 9. REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES ACT.
9.1 REGISTRATION PROCEDURES AND EXPENSES. The Company is
obligated to do the following:
(a) As soon as practicable following the Effective Date and
in any event no later than ten (10) days following the Effective Date, the
Company shall prepare and file with the Commission one or more registration
statements in order to register with the Commission the resale by the
Purchasers, from time to time, of the Shares through Nasdaq or the facilities
of any national securities exchange on which the Company's Common Stock is
then traded, or in privately-negotiated transactions (a "Registration
Statement"). The Company shall use its best efforts to cause such
Registration Statement to be declared effective as soon thereafter as
reasonably possible.
(b) The Company shall prepare and file with the Commission
(i) such amendments and supplements to the Registration Statement and the
prospectus used in connection therewith, (ii) such SEC Reports and (iii) such
other filings required by the Commission, in each case as may be necessary to
keep the Registration Statement continuously effective and not misleading
until the earliest of (A) the second anniversary date of the Closing, (B) such
date as all of the Shares have been resold or (C) such time as all of the
Shares held by the Purchasers can be sold within a given three-month period
pursuant to Rule 144 under the Securities Act. Notwithstanding the
foregoing, following the effectiveness of the Registration Statement, the
Company may, at any time, suspend the effectiveness of the Registration
Statement for up to no longer than 30 days, as appropriate (a "Suspension
Period"), by giving notice to the Purchasers, if the Company shall have
determined that the Company may be required to disclose any material
corporate development. The Company will use its best efforts to minimize the
length of any Suspension Period. Notwithstanding the foregoing, the Company
may not suspend the effectiveness of the Registration Statement more than
twice in any twelve (12) month period. Each Purchaser agrees that, upon
receipt of any notice from the Company of a Suspension Period, such Purchaser
will not sell any Shares pursuant to the Registration Statement until (i) such
Purchaser is advised in writing by the Company that the use of the applicable
prospectus may be resumed, (ii) such Purchaser has received copies of any
additional or supplemental or amended prospectus, if applicable, and (iii) such
Purchaser
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<PAGE>
has received copies of any additional or supplemental filings which are
incorporated or deemed to be incorporated by reference in such prospectus.
(c) In order to facilitate the public sale or other
disposition of all or any of the shares by each Purchaser, the Company shall
furnish to each Purchaser with respect to the Shares registered under the
Registration Statement such number of copies of prospectuses, prospectus
supplements and preliminary prospectuses as such Purchaser reasonably
requests in conformity with the requirements of the Securities Act.
(d) The Company shall file any documents required of the
Company for normal blue sky clearance in states specified in writing by each
Purchaser; provided, however, that the Company shall not be required to
qualify to do business or consent to service of process in any jurisdiction
in which it is not now so qualified or has not so consented.
(e) Other than fees and expenses, if any, of counsel or other
advisers to the Purchasers, which fees and expenses shall be borne by the
Purchasers, the Company shall bear all expenses (exclusive of any brokerage
fees, underwriting discounts and commissions) in connection with the
procedures in paragraphs (a) through (d) of this Section 9.1.
(f) With a view to making available to the Purchasers the
benefits of Rule 144 promulgated under the Securities Act ("Rule 144") and
any other rule or regulation of the SEC that may at any time permit a
Purchaser to sell Shares to the public without registration or pursuant to
registration, the Company covenants and agrees to: (i) make and keep public
information available, as those terms are understood and defined in Rule 144,
until the earlier of (A) the second anniversary of the Closing Date or (B) such
date as all of the Shares shall have been resold; (ii) file with the SEC in a
timely manner all reports and other documents required of the Company under
the Exchange Act; and (iii) furnish to any Purchaser upon request, as long as
the Purchaser owns any Shares, (A) a written statement by the Company that it
has complied with the reporting requirements of the Exchange Act, (B) a copy
of the most recent annual or quarterly report of the Company, and (C) such
other information as may be reasonably requested in order to avail any
Purchaser of any rule or regulation of the SEC that permits the selling of
any such Shares without registration under the Securities Act.
9.2 TRANSFER OF SECURITIES AFTER REGISTRATION. Each Purchaser
agrees that such Purchaser will not effect any disposition of the Shares that
would constitute a sale within the meaning of the Securities Act, except:
(i) pursuant to the Registration Statement, in which
case such Purchaser shall submit the certificates evidencing the Shares to
the Company's transfer agent, accompanied by a separate "Purchaser's
Certificate" (A) in the form of
9
<PAGE>
Appendix III attached hereto, (B) executed by such Purchaser or by an officer
of, or other authorized person designated by, such Purchaser, and (C) to the
effect that (1) the Shares have been sold in accordance with the Registration
Statement and (2) the requirement of delivering a current prospectus has been
satisfied; or
(ii) in a transaction exempt from registration under the
Securities Act, in which case such Purchaser shall, prior to effecting such
disposition, submit to the Company an opinion of counsel in form and
substance reasonably satisfactory to the Company to the effect that the
proposed transaction is in compliance with the Securities Act.
9.3 INDEMNIFICATION. As used in this Section 9.3 the following
terms shall have the following respective meanings:
(a) "Selling Shareholder" shall mean a Purchaser of
Securities under this Agreement and any transferee of such a Purchaser who is
entitled to resell Shares pursuant to the Registration Statement;
(b) "Registration Statement" shall include any final
prospectus, exhibit, supplement or amendment included in or relating to the
Registration Statement referred to in Section 9.1; and
(c) "Untrue Statement" shall include any untrue statement or
alleged untrue statement, or any omission or alleged omission to state in the
Registration Statement a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
The Company agrees to indemnify and hold harmless each Selling
Shareholder from and against any losses, claims, damages or liabilities to
which such Selling Shareholder may become subject (under the Securities Act
or otherwise) insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of, or are based upon,
any Untrue Statement on or after the effective date of the Registration
Statement, or on or after the date of any prospectus or prospectus supplement
or the date of any sale by Purchaser thereunder, or arise out of any failure
by the Company to fulfill any undertaking included in the Registration
Statement and the Company will reimburse such Selling Shareholder for any
reasonable legal or other expenses reasonably incurred in investigating,
defending or preparing to defend any such action, proceeding or claim;
provided, however, that the Company shall not be liable to such Selling
Shareholder in any such case to the extent that such loss, claim, damage or
liability arises out of, or is based upon, an Untrue Statement made in such
Registration Statement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Selling
Shareholder specifically for use in preparation of the Registration
Statement, or the failure of such Selling Shareholder to comply with
10
<PAGE>
the covenants and agreements contained in Section 9.1 or 9.2 hereof
respecting sale of the Shares or any statement or omission in any Prospectus
that is corrected in any subsequent prospectus that was delivered to the
Selling Shareholder prior to the pertinent sale or sales by the Selling
Shareholder.
Each Purchaser, severally and not jointly, agrees to indemnify and hold
harmless the Company (and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act, each officer of the
Company who signs the Registration Statement and each director of the
Company) from and against any losses, claims, damages or liabilities to which
the Company (or any such officer, director or controlling person) may become
subject (under the Securities Act or otherwise), insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of, or are based upon, any failure to comply with the covenants and
agreements contained in Section 9.1 or 9.2 hereof respecting sale of the
Shares, or any Untrue Statement contained in the Registration Statement on or
after the effective date thereof, or in any prospectus supplement as of its
issue date or date of any sale by Purchaser thereunder, if such Untrue
Statement was made in reliance upon and in conformity with written
information furnished by or on behalf of such Purchaser specifically for use
in preparation of the Registration Statement, and such Purchaser will
reimburse the Company (or such officer, director or controlling person), as
the case may be, for any legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action, proceeding
or claim; provided that in no event shall any indemnity by a Purchaser under
this Section 9.3 exceed the gross proceeds received by such Purchaser from
the sale of Shares covered by such Registration Statement.
Promptly after receipt by any indemnified person of a notice of a claim
or the beginning of any action in respect of which indemnity is to be sought
against an indemnifying person pursuant to this Section 9.3, such indemnified
person shall notify the indemnifying person in writing of such claim or of
the commencement of such action, and, subject to the provisions hereinafter
stated, in case any such action shall be brought against an indemnified
person and such indemnifying person shall have been notified thereof, such
indemnifying person shall be entitled to participate therein, and, to the
extent it shall wish, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified person. After notice from the indemnifying
person to such indemnified person of its election to assume the defense
thereof, such indemnifying person shall not be liable to such indemnified
person for any legal expenses subsequently incurred by such indemnified
person in connection with the defense thereof; provided, however, that if
there exists or shall exist a conflict of interest that would make it
inappropriate, in the opinion of counsel to the indemnified person, for the
same counsel to represent both the indemnified person and such indemnifying
person or any affiliate or associate thereof, the indemnified person shall be
entitled to retain its own counsel at the expense of such indemnifying
person; provided, however, that no indemnifying person shall be
11
<PAGE>
responsible for the fees and expenses of more than one separate counsel for
all indemnified parties.
9.4 TERMINATION OF CONDITIONS AND OBLIGATIONS. The conditions
precedent imposed by Section 4, Section 5 or this Section 9 upon the
transferability of the Shares shall cease and terminate as to any particular
number of the Shares when such Shares shall have been sold or otherwise
disposed of in accordance with the intended method of disposition set forth
in the Registration Statement covering such Shares or at such time as an
opinion of counsel satisfactory to the Company shall have been rendered to
the effect that such conditions are not necessary in order to comply with the
Securities Act.
9.5 INFORMATION AVAILABLE. So long as the Registration Statement
is effective covering the resale of Shares owned by the Purchasers, the
Company will furnish to the Purchasers:
(a) as soon as practicable after available (but in the case
of the Company's Annual Report to Shareholders, within 150 days after the end
of each fiscal year of the Company), one copy of (i) its Annual Report to
Shareholders (which Annual Report shall contain financial statements audited
in accordance with generally accepted auditing standards certified by a
national firm of certified public accountants); (ii) its Annual Report on
Form 10-K; (iii) its quarterly reports on Form 10-Q (the foregoing, in each
case, excluding exhibits); (iv) its Proxy Statement; and (v) its current
reports on Form 8-K, if any;
(b) upon the request of any Purchaser, all exhibits excluded
by the parenthetical to subparagraph (a)(iii) of this Section 9.5, in the
form generally available to the public; and
(c) upon the reasonable request of any Purchaser, an adequate
number of copies of the prospectuses and supplements to supply to any other
party requiring such prospectuses.
9.6 CHANGES IN PURCHASER INFORMATION. Each Purchaser agrees to
promptly notify the Company of any changes in the information set forth in
the Registration Statement regarding Purchaser or such Purchaser's plan of
distribution set forth in such Registration Statement.
SECTION 10. BROKER'S FEE.
The Company and each Purchaser (severally and not jointly) hereby
represent that, except for amounts to be paid to the Placement Agent by the
Company as described in Section 12.8 hereof, there are no brokers or finders
entitled to compensation in
12
<PAGE>
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
1440 Fourth Street
Berkeley, California 94710
Attention: President and Chief Executive Officer
Facsimile: (510) 526-5381
with a copy so mailed to:
Heller Ehrman White & McAuliffe
525 University Avenue
Palo Alto, California 94301
Attention: Sarah O'Dowd, Esq.
Facsimile: (650) 324-0638
or to such other person at such other place as the Company shall
designate to the Purchasers in writing; and
(b) if to the Purchasers, at the address as set forth at the
end of this Agreement, or at such other address or addresses as may have been
furnished to the Company in writing.
SECTION 12. MISCELLANEOUS.
12.1 WAIVERS AND AMENDMENTS. Neither this Agreement nor any
provision hereof may be changed, waived, discharged, terminated, modified or
amended except upon the written consent of the Company and holders of at
least a majority of the Shares.
12.2 HEADINGS. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not
be deemed to be part of this Agreement.
13
<PAGE>
12.3 SEVERABILITY. In case any provision contained in this
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
12.4 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California as applied
to contracts entered into and performed entirely in California by California
residents, without regard to conflicts of law principles.
12.5 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which,
when taken together, shall constitute but one instrument, and shall become
effective when one or more counterparts have been signed by each party hereto
and delivered to the other parties.
12.6 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
12.7 ENTIRE AGREEMENT. This Agreement and other documents
delivered pursuant hereto, including the exhibits, constitute the full and
entire understanding and agreement between the parties with regard to the
subjects hereof and thereof.
12.8 PAYMENT OF FEES AND EXPENSES. Each of the Company and the
Purchasers shall bear its own expenses and legal fees incurred on its behalf
with respect to this Agreement and the transactions contemplated hereby (the
"Offering"); provided, that the Company shall reimburse the placement agent
retained by it in connection with the Offering (the "Placement Agent") for
certain fees and expenses incurred by the Placement Agent in connection with
the Offering. Purchasers acknowledge that the Placement Agent will receive
compensation. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorney's fees, costs and necessary disbursements in addition
to any other relief to which such party may be entitled.
12.9 H&Q INVESTORS. The Company hereby acknowledges that the name
H&Q Healthcare Investors is the designation of the Trustees for the time
being under an Amended and Restated Declaration of Trust dated April 21,
1987, as amended, and all persons dealing with H&Q Healthcare Investors must
look solely to the trust property for the enforcement of any claim against
H&Q Healthcare Investors, as neither the Trustees, officers nor shareholders
assume any personal liability for the obligations entered into on behalf of
H&Q Healthcare Investors. The name H&Q Life Sciences Investors is the
designation of the Trustees for the time being under a Declaration of Trust
dated February 20, 1992, as amended, and all persons dealing with H&Q Life
Sciences Investors must look solely to the trust property for the enforcement
of any claim against H&Q Life Sciences Investors, as neither the Trustees,
officers nor shareholders assume any personal liability for the obligations
entered into on behalf of H&Q Sciences Investors.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year
first above written.
CALYPTE BIOMEDICAL CORPORATION
By: /s/ William Boeger
------------------------------
14
<PAGE>
Name: William Boeger
Title: President and Chief Executive Officer
PURCHASER
Purchaser Name: ____________________________
By: _______________________________________
Name: ____________________________________
Title: ____________________________________
Address: ____________________________________
____________________________________
____________________________________
Facsimile: ____________________________________
15
<PAGE>
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: __________________________________
<PAGE>
APPENDIX II
CALYPTE BIOMEDICAL CORPORATION
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration Statement, please
provide us with the following information:
1. Please state your or your organization's name exactly as it should
appear in the Registration Statement:
2. Please provide the following information, as of September 30, 1998:
Number of Shares that you are purchasing Number of shares of Common Stock
and seek to include in the Registration that you already beneficially
Statement own or that you are purchasing
and do NOT seek to include in
the Registration Statement
----------- -----------
----------- -----------
3. Have you or your organization had any position, office or other
material relationship within the past three years with the Company or its
affiliates other than as disclosed in the Proxy Statement in connection with
the Company's 1998 Annual Meeting of Shareholders?
Yes ___ No ___
If yes, please indicate the nature of any such relationships: _________
________________________________________________________________________________
Signature: ______________________________
Print Name: _____________________________
Title: __________________________________
<PAGE>
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: _________________________________
<PAGE>
EXHIBIT 5.1
24073-0001
November 2, 1998
Calypte Biomedical Corporation
1440 Fourth Street
Berkeley, California 94710
REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We have acted as counsel to Calypte Biomedical Corporation, a
Delaware corporation (the "Company"), in connection with the Registration
Statement on Form S-3 (the "Registration Statement") to be filed with the
Securities and Exchange Commission on or about November 3, 1998, for the
purpose of registering under the Securities Act of 1933, as amended,
3,102,500 shares of its Common Stock, $.001 par value (the "Shares"). The
Shares are issuable pursuant to the Common Stock Purchase Agreement, dated
November 2, 1998, (the "Agreement") among the Company and the purchasers
named therein.
In connection with this opinion, we have assumed the authenticity
of all records, documents and instruments submitted to us as originals, the
genuineness of all signatures, the legal capacity of natural persons and the
conformity to the originals of all records, documents and instruments
submitted to us as copies. We have based our opinion upon our review of the
following records, documents and instruments:
(a) The Certificate of Incorporation of the Company certified by the
Secretary of State of the State of Delaware as of October 28,
1998 and certified to us by the Vice President of Finance, Chief
Financial Officer and Secretary of the Company as being complete
and in full force and effect as of the date of this opinion;
(b) The By-laws of the Company certified to us by the Vice President
of Finance, Chief Financial Officer and Secretary of the Company
as being complete and in full force and effect as of the date of
this opinion;
<PAGE>
Page 2
(c) Records certified to us by an officer of the Company as
constituting all records of proceedings and actions of the Board
of Directors of the Company relating to the issuance of the
Shares;
(d) A letter from ChaseMellon Shareholder Services L.L.C., the
Company's Transfer Agent, dated October 27, 1998 as to the number
of shares of Common Stock that were outstanding as of October 26,
1998;
(e) The Registration Statement; and
(f) The Agreement.
This opinion is limited to the federal law of the United States of
America and the General Corporation Law of the State of Delaware. We
disclaim any opinion as to any other statute, rule, regulation, ordinance,
order or other promulgation of any other jurisdiction or any regional or
local governmental body.
Our opinion expressed herein assumes that the Agreement was duly
authorized, executed and delivered by the parties thereto in the form that we
have reviewed as of the date of this opinion, and that the full consideration
stated in the Agreement and the Board of Directors minutes authorizing the
issuance of the Shares will be paid.
Based upon the foregoing and our examination of such questions of
law as we have deemed necessary or appropriate for the purpose of this
opinion and assuming that (i) the Registration Statement becomes and remains
effective during the period when the Shares are offered and sold; (ii) the
Shares are issued in accordance with the terms of the Agreement and the
resolutions authorizing their issuance; (iii) appropriate stock certificates
evidencing the Shares are executed and delivered; and (iv) all applicable
securities laws are complied with, it is our opinion that the Shares are duly
authorized and validly issued, and are fully paid and nonassessable.
This opinion is rendered to you in connection with the Registration
Statement and is solely for your benefit. This opinion may not be relied
upon by you for any other purpose, or relied upon by any other person, firm,
corporation or other entity for any purpose, without our prior written
consent. We disclaim any obligation to advise
<PAGE>
Page 3
you of any change of law that occurs, or any facts which we become aware
after the date of this opinion.
<PAGE>
Page 4
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
/s/ Heller, Ehrman, White & McAuliffe
--------------------------------------
HELLER, EHRMAN, WHITE & MCAULIFFE
<PAGE>
[LETTERHEAD]
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Calypte Biomedical Corporation:
We consent to the incorporation by reference herein of our report dated February
20, 1998, relating to the consolidated balance sheets of Calypte Biomedical
Corporation and subsidiary (a development stage enterprise) as of December 31,
1997, and 1996, and the related consolidated statements of operations,
stockholders' equity (deficit), and cash flows for each of the years in the
three-year period ended December 31, 1997, and for the period from February 18,
1988 (inception) through December 31, 1997, which report appears in the December
31, 1997, annual report on Form 10-K of Calypte Biomedical Corporation, and to
the reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
San Francisco, California
October 30, 1998
