<PAGE>
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM 10-Q
-------------------------
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
------------------- ----------------
Commission file number: 000-20985
CALYPTE BIOMEDICAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 06-1226727
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1440 FOURTH STREET, BERKELEY, CALIFORNIA 94710
(Address of principal executive offices) (Zip Code)
(510) 749-5100
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
----- -----
The registrant had 20,390,069 shares of common stock outstanding as of
April 30, 1999.
================================================================================
<PAGE>
CALYPTE BIOMEDICAL CORPORATION AND SUBSIDIARY
FORM 10-Q
INDEX
<TABLE>
<CAPTION>
PAGE NO.
--------
<S> <C>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements:
Condensed Consolidated Balance Sheets at
March 31, 1999 (unaudited) and December 31,
1998........................................................ 3
Condensed Consolidated Statements of Operations
for the Three Months Ended March 31, 1999 and
1998 (unaudited)............................................ 4
Condensed Consolidated Statements of Cash
Flows for the Three Months Ended March 31, 1999
and 1998 (unaudited)........................................ 5
Notes to Condensed Consolidated Financial
Statements (unaudited)...................................... 6
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations............... 9
PART II. OTHER INFORMATION
Item 2. Changes in Securities and Use of Proceeds................... 18
Item 6. Exhibits and Reports on Form 8-K............................ 18
</TABLE>
-2-
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CALYPTE BIOMEDICAL CORPORATION AND SUBSIDIARY
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
ASSETS
<TABLE>
<CAPTION>
3/31/99 12/31/98
------- --------
(Unaudited)
<S> <C> <C>
Current assets:
Cash and cash equivalents ............................................... $ 3,718 $ 3,121
Securities available for sale ........................................... 625 650
Accounts receivable ..................................................... 432 157
Inventories ............................................................. 1,926 1,748
Notes receivable - officers and employees ............................... 482 498
Note receivable - related party ......................................... -- 768
Other current assets .................................................... 248 666
-------- --------
Total current assets ........................................... 7,431 7,608
Property and equipment, net of accumulated depreciation of $3,547
at March 31, 1999 and $3,357 at December 31, 1998 ....................... 1,616 1,783
Intangibles, net of accumulated amortization of $6 at March
31, 1999 and $3 at December 31, 1998 .................................... 50 346
Other assets ................................................................. 208 208
-------- --------
$ 9,305 $ 9,945
-------- --------
-------- --------
LIABILITIES, MANDATORILY REDEEMABLE
PREFERRED STOCK AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable ........................................................ $ 1,595 $ 1,147
Accrued expenses ........................................................ 1,350 1,227
Note payable - current .................................................. 2,000 --
Capital lease obligations - current portion ............................. 254 290
Deferred revenue ........................................................ 500 500
-------- --------
Total current liabilities ...................................... 5,699 3,164
Deferred rent obligation ..................................................... 29 31
Capital lease obligations - long-term portion ................................ 77 23
-------- --------
Total liabilities .............................................. 5,805 3,218
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 ..................................... 2,126 2,096
Commitments and contingencies
Stockholders' equity:
Preferred Stock, $0.001 par value; 5,000,000 shares
authorized; no shares issued and outstanding ........................ -- --
Common Stock, $0.001 par value; 30,000,000 shares authorized; 16,992,069
and 13,870,453 shares issued and outstanding as of March 31, 1999 and
December 31, 1998, respectively ..................................... 17 14
Common Stock subscribed ................................................. -- 3
Additional paid-in capital .............................................. 61,126 61,476
Deferred compensation ................................................... (88) (107)
Accumulated deficit ..................................................... (59,681) (56,755)
-------- --------
Total stockholders' equity ..................................... 1,374 4,631
-------- --------
-------- --------
$ 9,305 $ 9,945
-------- --------
-------- --------
</TABLE>
-3-
<PAGE>
CALYPTE BIOMEDICAL CORPORATION AND SUBSIDIARY
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
-------------------------
1999 1998
-------- --------
<S> <C> <C>
Revenues:
Product sales ......................................... $ 834 $ 241
-------- --------
Total revenue ....................................... 834 241
-------- --------
Operating expenses:
Product costs ......................................... 997 489
Research and development costs ........................ 1,660 790
Selling, general and administrative costs ............. 1,130 685
-------- --------
Total expenses ...................................... 3,787 1,964
-------- --------
Loss from operations .............................. (2,953) (1,723)
Interest income (net of interest expense) and other income 29 117
-------- --------
Loss before income taxes .......................... (2,924) (1,606)
Income taxes ............................................. (2) (--)
-------- --------
Net loss .......................................... (2,926) (1,606)
Less dividends on mandatorily redeemable
Series A preferred stock ............................... (30) (30)
-------- --------
Net loss attributable to common stockholders ............. $ (2,956) $ (1,636)
-------- --------
-------- --------
Net loss per share attributable to common
stockholders (basic and diluted) ....................... $ (0.18) $ (0.12)
-------- --------
-------- --------
Weighted average shares used to compute
net loss per share attributable to common
stockholders (basic and diluted) ....................... 16,336 13,379
-------- --------
-------- --------
</TABLE>
-4-
<PAGE>
CALYPTE BIOMEDICAL CORPORATION AND SUBSIDIARY
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
Three Months Ended March 31,
---------------------------
1999 1998
-------- --------
<S> <C> <C>
Cash flows from operating activities:
Net loss ...................................................................... $(2,926) $ (1,606)
Adjustments to reconcile net loss to net cash used in
operating activities:
Depreciation and amortization ............................................. 193 127
Amortization of deferred compensation ..................................... 19 116
Forgiveness of note receivable from officer ............................... -- 15
Write-off of note and interest receivable to research and development costs 890 --
Changes in operating assets and liabilities:
Accounts receivable ................................................... (275) (34)
Inventories ........................................................... 115 (143)
Other current assets .................................................. (90) (8)
Other assets .......................................................... -- 14
Accounts payable, accrued expenses and deferred
revenue .......................................................... 653 (509)
Deferred rent obligation .............................................. (2) (1)
------- --------
Net cash used in operating activities .......................... (1,423) (2,029)
------- --------
Cash flows from investing activities:
Purchase of equipment, net .................................................... (23) (47)
Notes receivable from officers and employees .................................. 16 (20)
Loans to related parties ...................................................... (64) (250)
Purchase of securities available for sale ..................................... (200) (1,449)
Sale of securities available for sale ......................................... 225 --
------- --------
Net cash used in investing activities .......................... (46) (1,766)
------- --------
Cash flows from financing activities:
Proceeds from sale of stock ................................................... 461 105
Expenses related to sale of stock ............................................. (263) --
Expenses related to purchase of certain assets of Cambridge Biotech ........... (68) --
Principal payments on capital lease obligations ............................... (64) (103)
Proceeds from notes payable ................................................... 2,000 --
------- --------
Net cash provided by financing activities ...................... 2,066 2
------- --------
Net increase (decrease) in cash and cash equivalents ............................. 597 (3,793)
Cash and cash equivalents at beginning of period ................................. 3,121 10,820
------- --------
Cash and cash equivalents at end of period ....................................... $ 3,718 $ 7,027
------- --------
------- --------
Supplemental disclosure of cash flow activities:
Cash paid for interest ...................................................... $ 54 $ 37
Cash paid for income taxes .................................................. 2 --
Supplemental disclosure of noncash activities:
Refinance of capital lease obligation ....................................... 82 --
Dividends on mandatorily redeemable Series A preferred stock ................ 30 30
Revaluation of acquisition of certain assets of Cambridge Biotech ........... 293 --
Conversion of common stock subscribed to common stock ....................... 3 --
Deferred compensation attributable to stock grants .......................... -- 50
</TABLE>
-5-
<PAGE>
CALYPTE BIOMEDICAL CORPORATION AND SUBSIDIARY
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
MARCH 31, 1999 AND 1998
(UNAUDITED)
(1) THE COMPANY AND BASIS OF PRESENTATION
Calypte Biomedical Corporation (the Company) was incorporated on November 11,
1989. The Company's primary activities are to sell its FDA-approved urine Human
Immunodeficiency Virus Type I (HIV-1) enzyme immunoassay (EIA) screening test,
its FDA-approved urine and serum HIV-1 Western Blot supplemental tests, perform
research and development on new products and obtain FDA approval for its
urine-based diagnostic tests. Prior to March 31, 1998, the Company was
considered a development stage enterprise. On June 1, 1998, the Company
announced that the U.S. Food and Drug Administration licensed the urine HIV-1
Western Blot test that confirms the presence of antibodies to HIV-1 in urine
samples. The new test is used on samples that are repeatedly reactive in the
Company's HIV-1 urine antibody screening test. The new test completes the only
available urine-based HIV test method. Accordingly, the Company ceased being a
development stage enterprise.
In December 1998, Calypte acquired from Cambridge Biotech Corporation certain
assets relating to the Western Blot product line for certain infectious
diseases. The acquisition included the urine-based and serum-based HIV-1 Western
Blot products, as well as a supplemental test for Lyme Disease and Human
T-Lymphotropic Virus (HTLV).
The accompanying unaudited condensed consolidated financial statements have been
prepared by the Company, pursuant to the rules and regulations of the Securities
and Exchange Commission (SEC), and reflect all adjustments (consisting of normal
recurring adjustments) which, in the opinion of management, are necessary for a
fair presentation of the Company's financial position as of March 31, 1999 and
the results of its operations for the three months ended March 31, 1999 and 1998
and its cash flows for the three months ended March 31, 1999 and 1998. Interim
results are not necessarily indicative of the results to be expected for the
full year. This information should be read in conjunction with the Company's
audited consolidated financial statements for each of the years in the three
year period ended December 31, 1998 included in Form 10-K filed with the SEC on
March 25, 1999.
Certain information in footnote disclosures normally included in the financial
statements prepared in accordance with generally accepted accounting principles
has been condensed or omitted pursuant to the rules and regulations of the SEC.
The data disclosed in these notes to condensed consolidated financial statements
for these periods is unaudited.
(2) SIGNIFICANT ACCOUNTING POLICIES
NET LOSS PER SHARE ATTRIBUTABLE TO COMMON STOCKHOLDERS
Basic net loss per share attributable to common stockholders is computed by
dividing net loss by the weighted average number of shares of common stock
outstanding during the period presented. The computation of diluted earnings per
common share is similar to the computation of basic net loss per share
attributable to common stockholders, except that the denominator is increased
for the assumed conversion of convertible securities and the exercise of
dilutive options using the treasury stock method. The weighted average shares
used in computing basic and diluted net loss per share attributable to common
stockholders were the same for the periods presented. Options and warrants were
excluded from the computation of loss per share as their effect is antidilutive.
-6-
<PAGE>
(3) INVENTORIES
Inventories are stated at the lower of cost or market and the cost is determined
using the first-in, first-out method. Inventory as of March 31, 1999 and
December 31, 1998 consisted of the following:
<TABLE>
<CAPTION>
3/31/99 12/31/98
(In thousands) (In thousands)
-------------- --------------
<S> <C> <C>
Raw Materials ..... $ 304 $ 300
Work-in-Process ... 1,348 1,134
Finished Goods .... 274 314
------ ------
Total Inventory $1,926 $1,748
------ ------
------ ------
</TABLE>
(4) ADJUSTMENT OF PURCHASE PRICE ALLOCATION
On December 17, 1998, the Company acquired the assets relating to the Western
Blot product line for certain infectious diseases from Cambridge Biotech
Corporation for a total purchase price of $2,090,000. During the first quarter
of 1999, management adjusted its estimates of the fair value of assets acquired
in connection with the allocation of the purchase price. As a result, intangible
assets were reduced and inventory was increased by $293,000.
(5) NOTE RECEIVABLE-RELATED PARTY (PEPGEN CORPORATION)
Pepgen Corporation is a development stage company in which Calypte has a
minority equity interest.
During 1998, the Company loaned Pepgen $768,000 at an interest rate of 10%.
During the first quarter of 1999, the Company loaned Pepgen an additional
$64,000 at an interest rate of 10%. The Company's note receivable from Pepgen
totaling $832,000 as of March 31, 1999 is secured by all intellectual property
of Pepgen. The note receivable from Pepgen totaling $768,000 as of December 31,
1998 is also secured by a personal guaranty from Pepgen's Founder and Chairman
and by a standby guaranty from Pepgen's President in the event that the guaranty
by the Founder and Chairman proves insufficient. William A. Boeger, the
President of Pepgen, is also the President, Chief Executive Officer and Chairman
of the Board of Calypte. The entire loan plus interest is due July 1, 1999. As
of March 31, 1999 interest accrued on the note totaled $58,000 and was included
in other current assets.
In May 1999, Pepgen received a financing offer from a third party that is
contingent upon Calypte converting its note receivable due from Pepgen into an
additional equity interest in Pepgen. At a meeting of the Calypte Board of
Directors, the Board agreed for such a conversion to take place concurrent with
the closing of the proposed third party financing of Pepgen. Accordingly,
effective March 31, 1999, the Company has written off its total investment in
the note receivable from Pepgen including all accrued interest as research and
development costs.
Funds loaned to Pepgen subsequent to March 31, 1999 (totaling $35,000 as of May
10, 1999) are also subject to conversion to equity and will be expensed as
research and development costs as they are advanced.
-7-
<PAGE>
(6) LINE OF CREDIT
In January 1999, the Company entered into a line of credit agreement to borrow
up to $2.0 million at an interest rate of prime plus 1 1/4%. The agreement
requires the Company to maintain certain financial covenants and comply with
certain reporting and other requirements. In addition, borrowings under the line
of credit agreement are secured by Calypte's assets. In January 1999, Calypte
drew down $2.0 million on the line of credit. The line of credit is to be repaid
in twelve equal monthly installments of principal, plus accrued interest,
beginning July 20, 1999.
(7) SUBSEQUENT EVENT
In April 1999, the Company sold 3,398,000 shares of its Common Stock to
institutional investors. The net proceeds are estimated to be approximately $7.0
million after deducting placement agent commissions and additional expenses
associated with the private placement.
-8-
<PAGE>
ITEM 2.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
THE STATEMENTS IN "MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS" THAT RELATE TO FUTURE PLANS, EVENTS OR PERFORMANCE
ARE FORWARD-LOOKING STATEMENTS WHICH INVOLVE RISKS AND UNCERTAINTIES. ACTUAL
RESULTS, EVENTS OR PERFORMANCE MAY DIFFER MATERIALLY FROM THOSE ANTICIPATED IN
THESE FORWARD-LOOKING STATEMENTS AS A RESULT OF A VARIETY OF FACTORS, INCLUDING
THOSE SET FORTH UNDER "FACTORS THAT MAY AFFECT FUTURE RESULTS, EVENTS OR
PERFORMANCE" BELOW. THE COMPANY UNDERTAKES NO OBLIGATION TO PUBLICLY UPDATE
THESE FORWARD-LOOKING STATEMENTS TO REFLECT EVENTS OR CIRCUMSTANCES AFTER THE
DATE HEREOF OR TO REFLECT THE OCCURRENCE OF UNANTICIPATED EVENTS.
OVERVIEW
Calypte's efforts are primarily focused on selling, developing and obtaining
approval for Calypte's urine-based and serum-based diagnostic tests for sexually
transmitted diseases. In August 1996, we received a product license and an
establishment license from the U.S. Food and Drug Administration (FDA) to
manufacture and sell Calypte's urine-based HIV-1 screening test for use in
professional laboratory settings. In June 1998, we announced that the FDA had
licensed the urine HIV-1 Western Blot supplemental test that confirms the
presence of antibodies to HIV-1 in urine samples. The new test is used on
samples that are repeatedly reactive in our HIV-1 urine antibody screening test.
The new test completes the only available FDA-approved urine-based HIV test
method. There can be no assurance the Company will have significant revenues
from sales of the HIV-1 urine screening assay or the supplemental test.
In December 1998, Calypte acquired from Cambridge Biotech certain assets
relating to the Western Blot product line for certain infectious diseases. The
acquisition included the urine-based and serum-based HIV-1 Western Blot
products, as well as a supplemental test for Lyme Disease and Human
T-Lymphotropic Virus (HTLV).
The Company expects operating losses to continue as the Company continues its
marketing and sales activities for its FDA-approved products and conducts
additional research and development for subsequent products. Our marketing
strategy is to use distributors, focused direct selling and marketing partners
to penetrate certain targeted domestic markets. The Company plans to maintain a
small direct sales force to sell the Company's urine-based HIV-1 test to
laboratories serving the life insurance market. International and other U.S.
markets will be addressed utilizing diagnostic product distributors. There can
be no assurance that the Company's products will be successfully commercialized
or that the Company will achieve significant product revenues. In addition,
there can be no assurance that the Company will achieve or sustain profitability
in the future.
-9-
<PAGE>
RESULTS OF OPERATIONS
The following represents selected financial data:
<TABLE>
<CAPTION>
(In thousands)
------------------
Three Months Ended
March 31,
------------------
1999 1998
------- -------
<S> <C> <C>
Total revenue ............................................ $ 834 $ 241
------- -------
Operating expenses:
Product costs ......................................... 997 489
Research and development .............................. 1,660 790
Selling, general and administrative ................... 1,130 685
------- -------
Total expenses ...................................... 3,787 1,964
------- -------
Loss from operations .................................. (2,953) (1,723)
Interest income (net of interest expense) and other income 29 117
------- -------
Loss before income taxes .............................. $(2,924) $(1,606)
------- -------
------- -------
</TABLE>
THREE MONTHS ENDED MARCH 31, 1999 AND 1998
In the first quarter of 1999, revenue increased $593,000 or 246% to $834,000
from $241,000 in the prior year's comparable period due primarily to the
acquisition of certain assets of Cambridge Biotech Corporation and the sale of
products related to that acquisition.
Product costs increased $508,000 or 104% to $997,000 for the three months
ended March 31, 1999 from $489,000 for the three months ended March 31, 1998.
Product costs during the three months ended March 31, 1999 were higher due to
the sale of products related to the acquisition of Cambridge Biotech
Corporation. In addition, more product was being retained as saleable
inventory in 1998 in anticipation of FDA approval of the supplemental test
for Calypte's HIV-1 urine screening test.
Research and development expenses increased $870,000 to $1.7 million for the
three months ended March 31, 1999 from $790,000 in the corresponding period
of the prior year. The increase was due to a reduction in the use of
consultants offset by the write-off of note and interest receivable from a
related party as research and development.
Selling, general and administrative expenses increased $445,000 or 65% to $1.1
million for the three months ended March 31, 1999 from $685,000 for the three
months ended March 31, 1998. The increase was primarily related to more sales
personnel and related travel expenses as well as increased expenses related to
the marketing of the HIV-1 urine test method.
Interest income (net of interest expense) and other income decreased $88,000 to
$29,000 for the three months ended March 31, 1999 from $117,000 for the three
months ended March 31, 1998. The decrease was primarily due to a decrease in the
interest earned from proceeds of a private placement of Common Stock in October
1997 and the increase in interest expense related to borrowings on the bank line
of credit.
-10-
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
FINANCING ACTIVITIES
The Company has financed operations from inception primarily through the private
placement of preferred stock and common stock, the Company's Initial Public
Offering (IPO) of common stock and, to a lesser extent, from payments related to
research and development agreements, a bank line of credit, equipment lease
financings and borrowings from notes payable.
During 1996, the Company completed its IPO of 2,536,259 shares of its Common
Stock at $6.00 per share. After deducting underwriters' discounts and
commissions and additional expenses associated with the IPO, the Company
received net proceeds of $13.2 million.
In October 1997, the Company completed a private placement of 2,600,999 shares
of its Common Stock at $4.25 per share. The Company received net proceeds of
approximately $10.2 million after deducting placement agent commissions and
additional expenses associated with the private placement.
In January 1999, the Company completed a private placement of 3,102,500 shares
of its Common Stock at $1.00 per share. The Company received net proceeds of
approximately $2.8 million after deducting placement agent commissions and
additional expenses associated with the private placement.
In April 1999, the Company completed a private placement of 3,398,000 shares of
its Common Stock at $2.25 per share. The Company received net proceeds of
approximately $7.0 million after deducting placement agent commissions and
additional expenses associated with the private placement.
Although the Company believes current cash will be sufficient to meet the
Company's operating expenses and capital requirements for the next 12 months,
the Company's future liquidity and capital requirements will depend on numerous
factors, including market acceptance of its products, regulatory actions by the
FDA and other international regulatory bodies, intellectual property protection
and the ability to raise additional capital in a timely manner.
There can be no assurance that the Company's products will be successfully
commercialized or that the Company will achieve significant product revenue. In
addition, there can be no assurance that the Company will achieve or sustain
profitability in the future. There can be no assurance that the Company will not
be required to raise additional capital or that such capital will be available
on acceptable terms, if at all. Any failure to raise additional financing will
likely place us in significant financial jeopardy. Therefore, the Company cannot
predict the adequacy of its capital resources on a long-term basis.
OPERATING ACTIVITIES
For the three months ended March 31, 1999 and March 31, 1998, the Company's cash
used in operations was $1.4 million and $2.0 million, respectively. The cash
used in operations was primarily for inventory, marketing the complete
urine-based HIV-1 testing method, funding research and development,
manufacturing, selling, and general and administrative expenses of the Company.
-11-
<PAGE>
FACTORS THAT MAY AFFECT FUTURE RESULTS, EVENTS OR PERFORMANCE
You should consider carefully the following risk factors, along with the other
information contained or incorporated by reference in this Form 10-Q, in
evaluating the Company. These factors, among others, may cause actual results,
events or performance to differ materially from those expressed in any
forward-looking statements we make in this Form 10-Q or in press releases or
other public disclosures.
UNCERTAIN MARKET ACCEPTANCE OF OUR NEW METHOD OF DETERMINING THE
PRESENCE OF HIV ANTIBODIES. 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.
We have FDA approval to market our urine HIV-1 screening and confirmatory
test in the United States and in July, 1998 we began marketing this product.
However, to date this product has only generated limited revenues and not
achieved significant market penetration. The failure of our products to
obtain market acceptance would have a material adverse effect on us.
WE HAVE LITTLE EXPERIENCE SELLING AND MARKETING OUR HIV-1 URINE-BASED
SCREENING TEST. We have little experience marketing and selling our products
either directly or through our distributors, since we only began such sales
in the second half of 1998. 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 us.
WE HAVE SUSTAINED LOSSES IN THE PAST AND WE EXPECT TO SUSTAIN LOSSES IN THE
FUTURE. We have incurred losses in each year since our inception. Our net loss
for the quarter ended March 31, 1999 was $2.9 million and our accumulated
deficit as of March 31, 1999 was $59.7 million. We expect operating losses to
continue as we continue our marketing and sales activities for our FDA-approved
products and conduct additional research and development for subsequent
products.
OUR QUARTERLY RESULTS MAY FLUCTUATE DUE TO CERTAIN REGULATORY, MARKETING
AND COMPETITIVE FACTORS OVER WHICH WE HAVE LITTLE OR NO CONTROL. The factors
listed below, some of which we cannot control, may cause our revenues and
results of operations to fluctuate significantly:
- actions taken by the FDA or foreign regulatory bodies relating to
our products;
- the extent to which our products gain market acceptance;
- the timing and size of distributor purchases; and
- introductions by competitors of alternative means for testing for HIV.
WE DEPEND UPON THE VIABILITY OF THREE PRODUCTS - OUR HIV-1 URINE-BASED
SCREENING TEST AND OUR URINE AND BLOOD BASED SUPPLEMENTAL TESTS. Our HIV-1
urine-based screening test and urine and blood-based supplemental tests are our
only products. Accordingly, we may have to cease operations if our screening
tests fail to achieve market acceptance or generate significant revenues.
-12-
<PAGE>
OUR PRODUCT DEPENDS UPON RIGHTS TO TECHNOLOGY THAT WE HAVE LICENSED FROM THIRD
PARTY PATENT
HOLDERS AND THERE CAN BE NO ASSURANCE THAT THE RIGHTS WE HAVE UNDER THESE
LICENSING AGREEMENTS ARE SUFFICIENT OR THAT WE CAN ADEQUATELY PROTECT THOSE
RIGHTS. We currently have the right to use patent and proprietary rights which
are material to the manufacture and sale of our HIV-1 urine-based screening test
under licensing agreements with New York University, Cambridge Biotech
Corporation, Repligen Corporation, and the Texas A&M University System.
WE RELY ON SOLE SOURCE SUPPLIERS THAT WE CANNOT QUICKLY REPLACE FOR CERTAIN
COMPONENTS CRITICAL TO THE MANUFACTURE OF OUR PRODUCTS. Any delay or
interruption in the supply of these components could have a material adverse
effect on us by significantly impairing our ability to manufacture products in
sufficient quantities, particularly as we increase our manufacturing activities
in support of commercial sales.
WE HAVE LIMITED EXPERIENCE IN MANUFACTURING OUR PRODUCTS AND LITTLE
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.
THE SUCCESS OF OUR PLANS TO ENTER INTERNATIONAL MARKETS MAY BE LIMITED OR
DISRUPTED DUE TO RISKS RELATED TO INTERNATIONAL TRADE AND MARKETING AND THE
CAPABILITIES OF OUR DISTRIBUTORS. We anticipate that international distributor
sales will generate a significant portion of our revenues for the next several
years. We believe that our urine-based test can provide significant benefits in
countries that do not have the facilities or personnel to safely and effectively
collect and test blood samples. The following risks 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 exchanges 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.
WE FACE INTENSE COMPETITION IN THE MEDICAL DIAGNOSTIC PRODUCTS MARKET AND
RAPID TECHNOLOGICAL ADVANCES BY COMPETITORS. Competition in our diagnostic
market is intense and we expect it to increase. Within the United States, our
competitors include a number of well-established manufacturers of HIV tests
using blood samples, 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. 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 us.
OUR ABILITY TO MARKET OUR PRODUCT DEPENDS UPON OBTAINING AND MAINTAINING
FDA AND FOREIGN REGULATORY APPROVALS. Numerous governmental authorities in the
United States and other countries regulate
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our products. The FDA regulates our products under federal statutes and
regulations related to pre-clinical and clinical testing, manufacturing,
labeling, distribution, sale and promotion of medical devices in the United
States.
If we fail to comply with FDA regulations, or if the FDA believes that we
are not in compliance with such regulations, the FDA can:
- 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 us, our officers
or our 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 us.
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
Calypte.
Before we begin to manufacture our product at the Alameda facility, we must
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 us.
WE HAVE RECEIVED A WARNING LETTER FROM THE FDA REGARDING THE SUFFICIENCY OF
OUR MANUFACTURING RECORDS AND PRODUCTION PROCEDURES AND WE MUST SATISFY THE
FDA'S CONCERNS IN ORDER TO AVOID REGULATORY ACTION AGAINST US. In November 1998,
the Company received a Warning Letter from the FDA following an inspection by
the FDA of the Company's manufacturing facility in Berkeley, California. On
December 11, 1998, the Company responded in writing to each of the alleged
deficiencies cited in the Warning Letter. Subsequently, the Company received a
letter from the FDA in which the FDA requested further responses from the
Company with regard to certain of such alleged deficiencies. The Company is in
the process of responding to such letter. If the FDA is not satisfied with the
Company's responses and the Company's corrective actions, it could take
regulatory actions against the Company including license suspension, revocation,
or denial, seizure of products or injunction, or civil penalties or criminal
sanctions. Any such FDA action would have a material adverse effect upon the
Company's ability to conduct operations. In addition, failure of the Company to
satisfy the FDA as to such Warning Letter could adversely affect the Company's
pending FDA license application for the Alameda facility.
SUBSEQUENT EVENT
In May 1999, the Company received a Warning Letter from the FDA
following an inspection by the FDA of the Company's manufacturing facility in
Rockville, Maryland. The Warning Letter was based upon an inspection of the
Rockville manufacturing facility that was conducted between November 30 and
December 11, 1998, which cited a number of significant observations. At the
time of the inspection, the facility was owned and operated by Cambridge
Biotech Corporation, as a subsidiary of BioMerieux Vitek. The Company
acquired the facility from Cambridge Biotech Corporation on December 17,
1998. As part of the purchase agreement, Cambridge Biotech Corporation
accepted responsibility for correcting any and all FDA compliance issues
related to the December 1998 FDA inspection. The Company is in the process of
responding to such letter.
AS A SMALL MANUFACTURER OF A MEDICAL DIAGNOSTIC PRODUCT, WE ARE EXPOSED
TO PRODUCT LIABILITY AND RECALL RISKS FOR WHICH INSURANCE COVERAGE IS
EXPENSIVE, LIMITED AND POTENTIALLY INADEQUATE. We manufacture medical
diagnostic products which subject us to risks of product liability claims or
product
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recalls, particularly in the event of false positive or false negative
reports. A product recall or a successful product liability claim or claims
which exceed our insurance coverage could have material adverse effect on us.
We maintain a $10,000,000 claims made policy 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 liability which we
incur in connection with clinical trials or sales of our products.
OUR CHARTER DOCUMENTS MAY INHIBIT A TAKEOVER. Certain provisions of
our Certificate of Incorporation and Bylaws could:
- discourage potential acquisition proposals;
- delay or prevent a change in control of Calypte;
- 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.
INVESTOR'S ABILITY TO TRADE OUR COMMON STOCK MAY BE LIMITED BY TRADING
VOLUME. The trading volume in our common shares has been relatively limited. A
consistently active trading market for our common stock may not develop.
WE HAVE ADOPTED A SHAREHOLDER RIGHTS PLAN THAT HAVE CERTAIN ANTI-TAKEOVER
EFFECTS. On December 15, 1998, the Board of Directors of Calypte declared a
dividend distribution of one preferred share purchase right ("Right") for each
outstanding share of Common Stock of the Company. The dividend is payable to the
stockholders of record on January 5, 1999 with repsect to share of Common Stock
issued thereafter until a subsequent "distribution date" defined in a Rights
Agreement and, in certain circumstances, with respect to share of Common Stock
issued after the Distribution Date. The description and terms of the Rights are
set forth in a Rights Agreement between the Company and ChaseMellon Shareholder
Service, L.L.C. as Rights Agent, dated as of December 15, 1998.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
without conditioning the offer on the Rights being redeemed or a substantial
number of Rights being acquired. However, the Rights should not interfere with
any tender offer, or merger, which is approved by the Company because the Rights
do not become exercisable in the event of a permitted offer or other acquisition
exempted by the Board.
WE MAY BE REMOVED FROM THE NASDAQ SMALLCAP MARKET IF WE FAIL TO MEET
CERTAIN MAINTENANCE CRITERIA. The Nasdaq Stock Market inquired on one occasion
whether we continue to meet the net capital surplus maintenance criterion for
trading on the Nasdaq SmallCap Market. We currently meet the capital surplus
requirement but our ability to continue to do so will depend on whether we are
able to maintain a net capital surplus of at least $1,000,000. 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 removed from the Nasdaq SmallCap Market. In that case, our
common stock would trade on either the OTC bulletin board, a regional exchange
or in the pink sheets, which would likely result in an even more limited trading
volume.
THE PRICE OF CALYPTE'S COMMON STOCK HAS BEEN HIGHLY VOLATILE DUE TO SEVERAL
FACTORS WHICH WILL CONTINUE TO EFFECT THE PRICE OF OUR STOCK. Our common stock
has traded as low as $1.50 and as high as $4.50 during the first quarter of
1999. Some of the factors leading to the volatility include:
- price and volume fluctuations in the stock market at large which do not
relate to our operating performance;
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- fluctuations in our operating results;
- announcements of technological innovations or new products which we or our
competitors make;
- FDA and international regulatory actions;
- availability of reimbursement for use of our products from private health
insurers, governmental health administration authorities and other
third-party payors;
- 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;
- changes in stock market analysts' recommendations regarding Calypte, other
medical products companies or the medical product industry generally; and
- issuance by us of additional shares of Common Stock in public or private
financings.
CALYPTE AND THE PRICE OF CALYPTE SHARES MAY BE ADVERSELY EFFECTED BY THE
PUBLIC SALE OF A SIGNIFICANT NUMBER OF THE SHARES ELIGIBLE FOR FUTURE SALE.
Nearly all outstanding shares of our common stock are freely tradable. 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.
OUR RESEARCH AND DEVELOPMENT OF THE HIV URINE TEST INVOLVES THE CONTROLLED
USE OF HAZARDOUS MATERIALS. There can be no assurance that our safety procedures
for handling and disposing of hazardous materials such as azide will comply with
applicable regulations. In addition, we cannot eliminate the risk of accidental
contamination or injury from these materials. We may be held liable for damages
from such an accident and that liability could have a material adverse effect on
us.
WE MAY NOT BE ABLE TO RETAIN OUR KEY EXECUTIVES AND RESEARCH AND
DEVELOPMENT PERSONNEL. As a small company with only 50 employees, our success
depends on the services of key employees in executive and research and
development positions. The loss of the services of one or more of such employees
could have a material adverse effect on us.
WE HAVE NOT COMPLETED OUR YEAR 2000 COMPLIANCE PROGRAM SO THE POTENTIAL
COSTS AND COMPLICATIONS ASSOCIATED WITH YEAR 2000 COMPLIANCE CANNOT BE
DETERMINED AT THIS TIME. Calypte 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; 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.
Calypte 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. Calypte is in the process of contacting key
suppliers to identify any concerns which may arise due to such suppliers'
potential non-compliance. The task force will develop contingency plans if it
discovers areas where there is a substantial possibility that Year 2000
compliance will not be achieved. Calypte has identified items with Year 2000
compliance concerns in three readiness areas: software, third party suppliers of
critical inventory and third party service providers. We expect to complete risk
assessment in each area for our California and Maryland facilities by May 1999,
and the correction, testing and the development of contingency plans will
follow. Until we have completed our risk assessment and developed any necessary
contingency plans, we will not be in a position to identify our most reasonably
likely worst case Year 2000 scenario. We have presently completed
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correction and testing in the Hardware readiness area for our California
facility and it is now Year 2000 compliant in California. As of March 31,
1999, we have spent a total of approximately $5,300 on our Year 2000 program.
We have incurred approximately $6,000 of additional expenses related to our
Year 2000 program since then.
We estimate that total Year 2000 costs to upgrade systems for our
California and Maryland facilities will range from $24,000 to $35,000 with
the majority of costs to be incurred in the next three months. At this time
we do not anticipate that Calypte 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, Calypte 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. Therefore, the potential impact of possible complications on
Calypte's financial condition and results of operations cannot be determined
at this time. If computer systems used by Calypte or its suppliers or the
product integrity of products provided to Calypte by suppliers fail or
experience significant difficulties related to the Year 2000, Calypte's
operations and financial condition could be adversely effected.
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PART II. OTHER INFORMATION
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
Within the three years ended March 31, 1999, the Company completed two
private placements of shares of its Common Stock. See "Financing Activities" in
the "Management's Discussion and Analysis of Financial Condition and Results of
Operations" section. The shares sold in each private placement were exempt from
registration with the Securities and Exchange Commission pursuant to Rule 506 of
Regulation D of the Securities Act of 1933 as amended ("Securities Act"). Shares
were sold only to accredited investors as defined in Rule 501 of the Securities
Act and were registered for resale by such investors on Forms S-3 filed on
October 21, 1997 and January 19, 1999. The proceeds from each private placement
have been used to finance operations.
SUBSEQUENT EVENT. On April 12, 1999, the Company completed a private
placement of 3,398,000 shares of its Common Stock at $2.25 per share. The shares
were exempt from registration pursuant to Rule 506 of the Securities Act. Shares
were sold only to accredited investors as defined in Rule 501 of the Securities
Act and were registered for resale by such investors on a Form S-3 filed on
March 30, 1999.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a. Exhibit 10.49 Loan and security agreement
Exhibit 10.50 Lease extension agreement
Exhibit 27 Financial Data Schedule
b. Reports on Form 8-K
The Registrant filed a report on Form 8-K dated December 17, 1998 on
January 4, 1999. The Registrant filed the report to announce the acquisition of
certain assets of Cambridge Biotech Corporation.
The Registrant filed a report on Form 8-K/A dated December 17, 1998 on
March 5, 1999. The Registrant filed the report to amend the report filed on
January 4, 1999 to include the financial statement information.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CALYPTE BIOMEDICAL CORPORATION
------------------------------
(Registrant)
Date: May 14, 1999 By: /s/ John J. DiPietro
------------------------
John J. DiPietro
CHIEF OPERATING OFFICER, VICE
PRESIDENT - FINANCE, CHIEF
FINANCIAL OFFICER AND
SECRETARY
(Principal Accounting Officer)
<PAGE>
Exhibit 10.49
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CALYPTE BIOMEDICAL CORPORATION
LOAN AND SECURITY AGREEMENT
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1
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This LOAN AND SECURITY AGREEMENT is entered into as of December 21, 1998,
by and between SILICON VALLEY BANK ("Bank") and CALYPTE BIOMEDICAL CORPORATION
("Borrower").
RECITALS
Borrower wishes to obtain credit from time to time from Bank, and Bank
desires to extend credit to Borrower. This Agreement sets forth the terms on
which Bank will advance credit to Borrower, and Borrower will repay the amounts
owing to Bank.
AGREEMENT
The parties agree as follows:
1. DEFINITIONS AND CONSTRUCTION
1.1 DEFINITIONS. As used in this Agreement, the following terms
shall have the following definitions:
"Accounts" means all presently existing and hereafter arising
accounts, contract rights, and all other forms of obligations owing to Borrower
arising out of the sale or lease of goods (including, without limitation, the
licensing of software and other technology) or the rendering of services by
Borrower, whether or not earned by performance, and any and all credit
insurance, guaranties, and other security therefor, as well as all merchandise
returned to or reclaimed by Borrower and Borrower's Books relating to any of the
foregoing.
"Account Audit" means an audit of the Collateral, Borrower's
Accounts and/or Borrower's Books prepared by Bank in accordance with generally
accepted business and accounting practices in form and substance acceptable to
Bank.
"Advance" or "Advances" means a Term Advance.
"Affiliate" means, with respect to any Person, any Person that
owns or controls directly or indirectly such Person, any Person that controls or
is controlled by or is under common control with such Person, and each of such
Person's senior executive officers, directors, and partners.
"Bank Expenses" means all reasonable costs or expenses (including
reasonable attorneys' fees and expenses) incurred in connection with the
preparation, negotiation, administration, and enforcement of the Loan Documents;
and Bank's reasonable attorneys' fees and expenses incurred in amending,
enforcing or defending the Loan Documents (including fees and expenses of
appeal), whether or not suit is brought.
"Borrower's Books" means all of Borrower's books and records
including: ledgers; records concerning Borrower's assets or liabilities, the
Collateral, business operations or financial condition; and all computer
programs, or tape files, and the equipment, containing such information.
"Business Day" means any day that is not a Saturday, Sunday, or
other day on which banks in the State of California are authorized or required
to close.
"Closing Date" means the date of this Agreement.
"Code" means the California Uniform Commercial Code.
"Collateral" means the property described on EXHIBIT A attached
hereto.
"Committed Line" means Two Million Dollars ($2,000,000).
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"Contingent Obligation" means, as applied to any Person, any
direct or indirect liability, contingent or otherwise, of that Person with
respect to (i) any indebtedness, lease, dividend, letter of credit or other
obligation of another, including, without limitation, any such obligation
directly or indirectly guaranteed, endorsed, co-made or discounted or sold with
recourse by that Person, or in respect of which that Person is otherwise
directly or indirectly liable; (ii) any obligations with respect to undrawn
letters of credit issued for the account of that Person; and (iii) all
obligations arising under any interest rate, currency or commodity swap
agreement, interest rate cap agreement, interest rate collar agreement, or other
agreement or arrangement designated to protect a Person against fluctuation in
interest rates, currency exchange rates or commodity prices; provided, however,
that the term "Contingent Obligation" shall not include endorsements for
collection or deposit in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determined amount of the primary obligation in respect of which such Contingent
Obligation is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by such Person in good
faith; provided, however, that such amount shall not in any event exceed the
maximum amount of the obligations under the guarantee or other support
arrangement.
"Daily Balance" means the amount of the Obligations owed at the
end of a given day.
"Equipment" means all present and future machinery, equipment,
tenant improvements, furniture, fixtures, vehicles, tools, parts and attachments
in which Borrower has any interest.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the regulations thereunder.
"GAAP" means generally accepted accounting principles as in
effect from time to time.
"Indebtedness" means (a) all indebtedness for borrowed money or
the deferred purchase price of property or services, including without
limitation reimbursement and other obligations with respect to surety bonds and
letters of credit, (b) all obligations evidenced by notes, bonds, debentures or
similar instruments, (c) all capital lease obligations and (d) all Contingent
Obligations.
"Insolvency Proceeding" means any proceeding commenced by or
against any person or entity under any provision of the United States Bankruptcy
Code, as amended, or under any other bankruptcy or insolvency law, including
assignments for the benefit of creditors, formal or informal moratoria,
compositions, extension generally with its creditors, or proceedings seeking
reorganization, arrangement, or other relief.
"Inventory" means all present and future inventory in which
Borrower has any interest, including merchandise, raw materials, parts,
supplies, packing and shipping materials, work in process and finished products
intended for sale or lease or to be furnished under a contract of service, of
every kind and description now or at any time hereafter owned by or in the
custody or possession, actual or constructive, of Borrower, including such
inventory as is temporarily out of its custody or possession or in transit and
including any returns upon any accounts or other proceeds, including insurance
proceeds, resulting from the sale or disposition of any of the foregoing and any
documents of title representing any of the above, and Borrower's Books relating
to any of the foregoing.
"Investment" means any beneficial ownership of (including stock,
partnership interest or other securities) any Person, or any loan, advance or
capital contribution to any Person.
"IRC" means the Internal Revenue Code of 1986, as amended, and
the regulations thereunder.
"Lien" means any mortgage, lien, deed of trust, charge, pledge,
security interest or other encumbrance.
"Liquidity" means, at any date of determination, the sum of
Borrower's cash, cash equivalents and short term investments, less any cash and
cash equivalent balances that are held in a sinking fund
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for the retirement of debt or capital stock or that are held in pledge for
another creditor plus one half of Borrower's net, billed, accounts receivable.
"Loan Documents" means, collectively, this Agreement, any note or
notes executed by Borrower, and any other agreement entered into between
Borrower and Bank in connection with this Agreement, all as amended or extended
from time to time.
"Material Adverse Effect" means a material adverse effect on (i)
the business operations or condition (financial or otherwise) of Borrower and
its Subsidiaries taken as a whole or (ii) the ability of Borrower to repay the
Obligations or otherwise perform its obligations under the Loan Documents.
"Negotiable Collateral" means all of Borrower's present and
future letters of credit of which it is a beneficiary, notes, drafts,
instruments, securities, documents of title, and chattel paper, and Borrower's
Books relating to any of the foregoing.
"Net Cash Losses" means, with respect to any period of
determination, determined on a consolidated basis in accordance with GAAP for
Borrower and its consolidated Subsidiaries, the reduction in cash from
operations (excluding non-recurring charges).
"Obligations" means all debt, principal, interest, Bank
Expenses and other amounts owed to Bank by Borrower pursuant to this
Agreement or any other agreement, whether absolute or contingent, due or to
become due, now existing or hereafter arising, including any interest that
accrues after the commencement of an Insolvency Proceeding and including any
debt, liability, or obligation owing from Borrower to others that Bank may
have obtained by assignment or otherwise.
"Periodic Payments" means all installments or similar recurring
payments that Borrower may now or hereafter become obligated to pay to Bank
pursuant to the terms and provisions of any instrument, or agreement now or
hereafter in existence between Borrower and Bank.
"Permitted Indebtedness" means:
(a) Indebtedness of Borrower in favor of Bank arising under this
Agreement or any other Loan Document;
(b) Indebtedness secured by a Lien described in Subsection (c)
of the definition of "Permitted Liens" below provided the principal amount of
such Indebtedness does not exceed the lesser of the cost or fair market value of
the Equipment financed;
(c) Subordinated Debt;
(d) Indebtedness to trade creditors incurred in the ordinary
course of business;
(e) other Indebtedness of Borrower, not exceeding $100,000 in
the aggregate outstanding at any time; and
(f) extensions, renewals, refundings, refinancings,
modifications, amendments and restatements of any of the items of Permitted
Indebtedness (a) through (i) above, provided that the principal amount thereof
is not increased or the terms thereof are not modified to impose more burdensome
terms upon Borrower.
"Permitted Investment" means:
(g) marketable direct obligations issued or unconditionally
guaranteed by the United States of America or any agency or any State thereof
maturing within two (2) years from the date of acquisition thereof;
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(h) Corporate commercial paper, corporate notes and bonds,
master notes, medium term notes, bankers acceptances, certificates of deposit
and repurchase agreements which, if short-term, have a minimum credit rating of
A-1 or P-1 or, if long-term, have a minimum credit rating of A by Standard
Poor's or Moody's Investor Services; and non-diversified short duration mutual
funds with an average credit rating of at least A- and a duration not to exceed
1.5 years. Investments shall mature no more than two years from the date of
purchase by Borrower, individual investments shall not be greater than $3.0
million unless said investment is issued by the U.S. Government or its agencies
or is a repurchase agreement collateralized by same or unless said investment is
an approved money market fund;
(i) certificates of deposit maturing no more than one (1) year
from the date of investment therein issued by Bank;
(j) Extensions of credit in the nature of accounts receivable or
note receivable arising from the sale or lease of goods or services in the
ordinary course of business;
(k) Investments consisting of the endorsement of negotiable
instruments for deposit or collection or similar transactions in the ordinary
course of business;
(l) Investments (including debt obligations) received in
connection with the bankruptcy or reorganization of customers or suppliers and
in settlement of delinquent obligations of, and other disputes with, customers
or suppliers arising in the ordinary course of business;
(m) Investments consisting of (i) compensation of employees,
officers and directors of Borrower so long as the Board of Directors of Borrower
determines that such compensation is in the best interests of Borrower,
(ii) travel advances, employee relocation loans and other employee loans and
advances in the ordinary course of business, (iii) loans to employees, officers
or directors relating to the purchase of equity securities of Borrower, and
(iv) other loans to officers and employees approved by the Board of Directors;
and
(n) other Investments not described above aggregating not in
excess of $500,000 at any time.
"Permitted Liens" means:
(a) any Liens existing on the Closing Date and disclosed in
Schedule 2 or arising under the terms of this Agreement;
(b) Liens for taxes, fees, assessments or other governmental
charges or levies, either not delinquent or being contested in good faith by
appropriate proceedings, PROVIDED the same have no priority over any of Bank's
security interests;
(c) Liens (i) upon or in any equipment acquired or held by
Borrower or any of its Subsidiaries to secure the purchase price of such
equipment or indebtedness incurred solely for the purpose of financing the
acquisition of such equipment, or (ii) existing on such equipment at the time of
its acquisition, PROVIDED that the Lien is confined solely to the property so
acquired and improvements thereon, and the proceeds of such equipment;
(d) Liens on Equipment leased by Borrower or any Subsidiary
pursuant to an operating or capital lease in the ordinary course of business
(including proceeds thereof and accessions thereto) incurred solely for the
purpose of financing the lease of such Equipment (including Liens pursuant to
leases permitted pursuant to Section 7.1 and Liens arising from UCC financing
statements regarding leases permitted by this Agreement);
(e) Leases or subleases and licenses and sublicenses granted to
others in the ordinary course of Borrower's business not interfering in any
material respect with the business of Borrower and its Subsidiaries taken as a
whole, and any interest or title of a lessor, licensor or under any lease or
license;
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(f) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 8.8;
(g) easements, reservations, rights-of-way, restrictions, minor
defects or irregularities in title and other similar charges or encumbrances
affecting real property not constituting a Material Adverse Effect;
(h) Liens in favor of customs and revenue authorities arising as
a matter of law to secure payments of customs duties in connection with the
importation of goods;
(i) Liens that are not prior to the Lien of Bank which
constitute rights of set-off of a customary nature or banker's Liens with
respect to amounts on deposit, whether arising by operation of law or by
contract, in connection with arrangement entered in to with banks in the
ordinary course of business; and
(j) Liens, not otherwise permitted, which Liens do not in the
aggregate exceed $150,000 at any time.
"Person" means any individual, sole proprietorship, partnership,
limited liability company, joint venture, trust, unincorporated organization,
association, corporation, institution, public benefit corporation, firm, joint
stock company, estate, entity or governmental agency.
"Prime Rate" means the variable rate of interest, per annum, most
recently announced by Bank, as its "prime rate," whether or not such announced
rate is the lowest rate available from Bank.
"Quick Assets" means, at any date as of which the amount thereof
shall be determined, the sum of : (i) unrestricted cash, (ii) cash-equivalents,
(iii) net, billed accounts receivable, and (iv) investments with maturities not
to exceed twelve (12) months, of Borrower determined in accordance with GAAP.
"Remaining Months Liquidity" means, at any date of determination,
the ratio of (i) Liquidity at such time to (ii) the average of Net Cash Losses
for the immediately preceding three month period.
"Responsible Officer" means each of the Chief Executive Officer,
the Chief Financial Officer and the Controller of Borrower.
"Schedule" means the schedule of exceptions attached hereto, if
any.
"Subordinated Debt" means any debt incurred by Borrower that is
subordinated to the debt owing by Borrower to Bank on terms acceptable to Bank
(and identified as being such by Borrower and Bank).
"Subsidiary" means any corporation or partnership in which
(i) any general partnership interest or (ii) more than 50% of the stock of which
by the terms thereof ordinary voting power to elect the Board of Directors,
managers or trustees of the entity shall, at the time as of which any
determination is being made, be owned by Borrower, either directly or through an
Affiliate.
"Tangible Net Worth" means at any date as of which the amount
thereof shall be determined, the consolidated total assets of Borrower and its
Subsidiaries MINUS, without duplication, (i) the sum of any amounts attributable
to (a) goodwill, (b) intangible items such as unamortized debt discount and
expense, patents, trade and service marks and names, copyrights and research and
development expenses except prepaid expenses, and (c) all reserves not already
deducted from assets, AND (ii) Total Liabilities.
"Term Advances" means cash advances made pursuant to Section 2.1.
"Term Loan Facility" means the facility under which Borrower may
request Bank to issue cash advances, as specified in Section 2.1 hereof.
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"Term Maturity Date" means June 20, 2000.
"Total Liabilities" means, at any date as of which the amount
thereof shall be determined, all obligations that should, in accordance with
GAAP be classified as liabilities on the consolidated balance sheet of Borrower,
including in any event all Indebtedness.
"Unrestricted Cash Reserves" means, at any time of determination,
the sum of Borrower's (i) cash balance of deposit accounts and investment
accounts, PLUS (ii) market value of all readily marketable securities
beneficially owned by Borrower, MINUS (iii) cash value of any certificates of
deposit or securities encumbered and/or restricted by any Bank or any other
Persons.
1.2 ACCOUNTING TERMS. All accounting terms not specifically defined
herein shall be construed in accordance with GAAP and all calculations made
hereunder shall be made in accordance with GAAP. When used herein, the terms
"financial statements" shall include the notes and schedules thereto.
2. LOAN AND TERMS OF PAYMENT
2.1 TERM LOAN.
(a) Subject to and upon the terms and conditions of this
Agreement, from and after the date of this Agreement through June 29, 1999, Bank
will make Term Advances from time to time to Borrower in an aggregate amount not
to exceed the Committed Line, provided that no Term Advance shall be for less
than One Hundred Thousand Dollars ($100,000). The Term Advances may be used to
purchase Equipment and general corporate purposes.
Interest shall accrue on each Term Advance from the date of such Advance at
the rate specified in Section 2.2(a), and shall be payable monthly on the
twenty-seventh (27th) calendar day of each month through June 20, 1999. The
aggregate Term Advances outstanding on June 20, 1999 shall be repaid in twelve
(12) equal monthly installments of principal, plus accrued interest, beginning
July 20, 1999, and continuing on the twentieth (20th) calendar day of each month
thereafter through the Term Maturity Date. All outstanding obligations under
this Agreement, including, but not limited to, any accrued and unpaid interest
and other unpaid charges or principal balances, shall be payable on the Term
Maturity Date. Term Advances, once repaid, may not be reborrowed.
(b) When Borrower desires a Term Advance, Borrower will notify
Bank by facsimile transmission or telephone no later than 3:00 p.m. California
time, on the Business Day that the Term Advance is to be made. Such
notification shall be promptly confirmed by a Payment/Advance Form in
substantially the form of EXHIBIT B hereto. Bank shall be entitled to rely on
any telephonic notice given by a person who Bank reasonably believes to be a
Responsible Officer, and Borrower shall indemnify and hold Bank harmless for any
damages or loss suffered by Bank as a result of such reliance. Bank will credit
the amount of each Term Advance to Borrower's deposit account.
2.2 INTEREST RATES, PAYMENTS, AND CALCULATIONS.
(a) INTEREST RATE Except as set forth in Section 2.2(b), prior
to June 20, 1999 the Term Advances shall bear interest, on the average daily
balance thereof, at a rate equal to one and one quarter of one percent (1.25%)
above the Prime Rate. Term Advances outstanding after such date shall bear
interest, at Borrower's option, either (i) at a floating rate equal to the Prime
Rate plus one and one quarter of one percent (1.25%) or (ii) at a fixed rate
equal to five (5) percentage points above the yield of the 48 month Treasury
Bill as reported in the Western edition of THE WALL STREET JOURNAL, which rate
shall be fixed at the time of Borrower's election. Borrower shall give written
notice to Bank of its interest rate election two (2) Business Days prior to June
20, 1999. If Borrower fails to give such notice, then the applicable rate shall
be at the floating rate equal to the Prime Rate plus one and one quarter of one
percent (1.25%) described herein.
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(b) DEFAULT RATE. All Obligations shall bear interest, from and
after the occurrence and during the continuance of an Event of Default, at a
rate equal to five (5) percentage points above the interest rate applicable
immediately prior to the occurrence of the Event of Default. If the Event of
Default is cured, the interest rate shall revert to the previously applicable
interest rate.
(c) PAYMENTS. Bank shall, at its option, charge such interest
and all Periodic Payments against any of Borrower's deposit accounts, including
account number _________, or against the Committed Line, in which case those
amounts shall thereafter accrue interest at the rate then applicable hereunder.
Any interest not paid when due shall be compounded by becoming a part of the
Obligations, and such interest shall thereafter accrue interest at the rate then
applicable hereunder. Bank Expenses will be billed to Borrower on an invoice
due within thirty (30) days.
(d) COMPUTATION. In the event the Prime Rate is changed from
time to time hereafter, the applicable rate of interest hereunder shall be
increased or decreased effective as of 12:01 a.m. on the day the Prime Rate is
changed, by an amount equal to such change in the Prime Rate. All interest
chargeable under the Loan Documents shall be computed on the basis of a three
hundred sixty (360) day year for the actual number of days elapsed.
2.3 CREDITING PAYMENTS. Prior to the occurrence of an Event of
Default, Bank shall credit a wire transfer of funds, check or other item of
payment to such deposit account or Obligation as Borrower specifies. After the
occurrence of an Event of Default, the receipt by Bank of any wire transfer of
funds, check, or other item of payment shall be immediately applied to
conditionally reduce Obligations, but shall not be considered a payment on
account unless such payment is of immediately available federal funds or unless
and until such check or other item of payment is honored when presented for
payment. Notwithstanding anything to the contrary contained herein, any wire
transfer or payment received by Bank after 12:00 noon California time shall be
deemed to have been received by Bank as of the opening of business on the
immediately following Business Day. Whenever any payment to Bank under the Loan
Documents would otherwise be due (except by reason of acceleration) on a date
that is not a Business Day, such payment shall instead be due on the next
Business Day, and additional fees or interest, as the case may be, shall accrue
and be payable for the period of such extension.
2.4 FEES. Borrower shall pay to Bank the following:
(a) COMMITMENT FEE. A Commitment Fee equal to Twenty Thousand
Dollars ($20,000), which fee shall be due upon acceptance of commitment and
shall be fully earned and nonrefundable;
(b) BANK EXPENSES. Upon the date hereof, all Bank Expenses
incurred through the Closing Date, including reasonable attorneys' fees and
expenses, and, after the date hereof, all Bank Expenses, including reasonable
attorneys' fees and expenses, as and when they become due.
2.5 ADDITIONAL COSTS. In case any change in any law, regulation,
treaty or official directive or the interpretation or application thereof by any
court or any governmental authority charged with the administration thereof or
the compliance with any guideline or request of any central bank or other
governmental authority (whether or not having the force of law), in each case
after the date of this Agreement:
(a) subjects Bank to any tax with respect to payments of
principal or interest or any other amounts payable hereunder by Borrower or
otherwise with respect to the transactions contemplated hereby (except for taxes
on the overall net income of Bank imposed by the United States of America or any
political subdivision thereof);
(b) imposes, modifies or deems applicable any deposit insurance,
reserve, special deposit or similar requirement against assets held by, or
deposits in or for the account of, or loans by, Bank; or
(c) imposes upon Bank any other condition with respect to its
performance under this Agreement, and the result of any of the foregoing is
to increase the cost to Bank, reduce the income receivable by Bank or impose
any expense upon Bank with respect to any loans, Bank shall notify Borrower
thereof.
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Borrower agrees to pay to Bank the amount of such increase in cost, reduction in
income or additional expense as and when such cost, reduction or expense is
incurred or determined, upon presentation by Bank of a statement of the amount
and setting forth Bank's calculation thereof, all in reasonable detail, which
statement shall be deemed true and correct absent manifest error; provided,
however, that Borrower shall not be liable for any such amount attributable to
any period prior to the date of hundred eight (180) days prior to the date of
such certificate.
2.6 TERM. This Agreement shall become effective on the Closing Date
and, subject to Section 12.7, shall continue in full force and effect for a term
ending on the Term Maturity Date. Notwithstanding the foregoing, Bank shall
have the right to terminate its obligation to make Advances under this Agreement
immediately and without notice upon the occurrence and during the continuance of
an Event of Default. Notwithstanding termination, Bank's Lien on the Collateral
shall remain in effect for so long as any Obligations are outstanding.
3. CONDITIONS OF LOANS
3.1 CONDITIONS PRECEDENT TO INITIAL ADVANCE. The obligation of Bank
to make the initial Advance is subject to the condition precedent that Bank
shall have received, in form and substance satisfactory to Bank, the following:
(a) this Agreement;
(b) a certificate of the Secretary of Borrower with respect to
incumbency and resolutions authorizing the execution and delivery of this
Agreement;
(c) confirmation that Borrower has received net proceeds from
the sale or issuance of equity securities in an aggregate amount not less than
Two Million Five Hundred Thousand Dollars ($2,500,000);
(d) payment of the fees and Bank Expenses then due specified in
Section 2.4 hereof; and
(e) such other documents, and completion of such other matters,
as Bank may reasonably deem necessary or appropriate.
3.2 CONDITIONS PRECEDENT TO ALL ADVANCES. The obligation of Bank to
make each Advance, including the initial Advance, is further subject to the
following conditions:
(a) timely receipt by Bank of the Payment/Advance Form as
provided in Section 2.1; and
(b) the representations and warranties contained in Section 5
shall be true and correct in all material respects on and as of the date of such
Payment/Advance Form and on the effective date of each Advance as though made at
and as of each such date, and no Event of Default shall have occurred and be
continuing, or would result from such Advance. Except as otherwise disclosed to
Bank in writing, and approved by Bank, the making of each Advance shall be
deemed to be a representation and warranty by Borrower on the date of such
Advance as to the accuracy of the facts referred to in this Section 3.2(b).
4. CREATION OF SECURITY INTEREST
4.1 GRANT OF SECURITY INTEREST. Borrower grants and pledges to Bank
a continuing security interest in all presently existing and hereafter acquired
or arising Collateral in order to secure prompt repayment of any and all
Obligations and in order to secure prompt performance by Borrower of each of its
covenants and duties under the Loan Documents. Except as set forth in the
Schedule of Exceptions and for Permitted Liens, such security interest
constitutes a valid, first priority security interest in the presently existing
Collateral, and will constitute a valid, first priority security interest in
Collateral acquired after the date hereof, subject to Permitted Liens.
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4.2 DELIVERY OF ADDITIONAL DOCUMENTATION REQUIRED. Borrower shall
from time to time execute and deliver to Bank, at the request of Bank, all
Negotiable Collateral, all financing statements and other documents that Bank
may reasonably request, in form satisfactory to Bank, to perfect and continue
perfected Bank's security interests in the Collateral and in order to fully
consummate all of the transactions contemplated under the Loan Documents.
4.3 RIGHT TO INSPECT. Bank (through any of its officers, employees,
or agents) shall have the right, at its own expense (except during the
continuance of an Event of Default), upon reasonable prior notice, from time to
time during Borrower's usual business hours, to inspect Borrower's Books and to
make copies thereof and to check, test, and appraise the Collateral in order to
verify Borrower's financial condition or the amount, condition of, or any other
matter relating to, the Collateral. at which time such costs and expenses shall
be Borrower's responsibility.
4.4 TRIPARTY AGREEMENT. Borrower shall deliver to Bank, in form and
substance satisfactory to Bank, a triparty intercreditor agreement relating to
cash collateral within thirty (30) days of the Closing Date.
4.5 CASH COLLATERAL. Upon Borrower's failure to comply with one or
more of the financial covenants in Sections 6.8, 6.9 or 6.10, Borrower shall
pledge cash to Bank on terms acceptable to Bank in an amount equal to one
hundred five percent (105%) of the then outstanding loan balance, upon which
pledge Borrower shall be deemed to have cured any default arising from such
noncompliance.
5. REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants as follows:
5.1 DUE ORGANIZATION AND QUALIFICATION. Borrower and each Subsidiary
is a corporation duly existing and in good standing under the laws of its state
of incorporation and qualified and licensed to do business in, and is in good
standing in, any state in which the conduct of its business or its ownership of
property requires that it be so qualified.
5.2 DUE AUTHORIZATION; NO CONFLICT. The execution, delivery, and
performance of the Loan Documents are within Borrower's powers, have been duly
authorized, and are not in conflict with nor constitute a breach of any
provision contained in Borrower's Articles of Incorporation or Bylaws, nor will
they constitute an event of default under any material agreement to which
Borrower is a party or by which Borrower is bound. Borrower is not in default
under any agreement to which it is a party or by which it is bound, which
default could have a Material Adverse Effect.
5.3 NO PRIOR ENCUMBRANCES. Borrower has good and indefeasible title
to the Collateral, free and clear of Liens, except for Permitted Liens, as
defined on Schedule 2.
5.4 MERCHANTABLE INVENTORY. All Inventory is in all material
respects of good and marketable quality, free from all material defects.
5.5 NAME; LOCATION OF CHIEF EXECUTIVE OFFICE. Except as disclosed in
the Schedule, Borrower has not done business under any name other than that
specified on the signature page hereof. The chief executive office of Borrower
is located at the address indicated in Section 10 hereof.
5.6 LITIGATION. Except as set forth in Schedule 1, there are no
actions or proceedings pending by or against Borrower or any Subsidiary before
any court or administrative agency in which an adverse decision is reasonably
likely to have a Material Adverse Effect or a material adverse effect on
Borrower's interest or Bank's security interest in the Collateral. Borrower
does not have knowledge of any such pending or threatened actions or
proceedings.
5.7 NO MATERIAL ADVERSE CHANGE IN FINANCIAL STATEMENTS. All
consolidated financial statements related to Borrower and any Subsidiary that
have been delivered by Borrower to Bank fairly present in
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all material respects Borrower's consolidated financial condition as of the
date thereof and Borrower's consolidated results of operations for the period
then ended. There has not been a material adverse change in the consolidated
financial condition of Borrower since the date of the most recent of such
financial statements submitted to Bank.
5.8 SOLVENCY. The fair saleable value of Borrower's assets
(including goodwill minus disposition costs) exceeds the fair value of its
liabilities; Borrower is not left with unreasonably small capital after the
transactions contemplated by this Agreement; and Borrower is solvent and able to
pay its debts (including trade debts) as they mature.
5.9 REGULATORY COMPLIANCE. Borrower and each Subsidiary has met the
minimum funding requirements of ERISA with respect to any employee benefit plans
subject to ERISA. No event has occurred resulting from Borrower's failure to
comply with ERISA that is reasonably likely to result in Borrower's incurring
any liability that could have a Material Adverse Effect. Borrower is not an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940. Borrower is not engaged
principally, or as one of the important activities, in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulations G, T and U of the Board of Governors of the Federal
Reserve System). Borrower has complied with all the provisions of the Federal
Fair Labor Standards Act. Borrower has not violated any statutes, laws,
ordinances or rules applicable to it, violation of which could have a Material
Adverse Effect.
5.10 ENVIRONMENTAL CONDITION. None of Borrower's or any Subsidiary's
properties or assets has ever been used by Borrower or any Subsidiary or, to the
best of Borrower's knowledge, by previous owners or operators, in the disposal
of, or to produce, store, handle, treat, release, or transport, any hazardous
waste or hazardous substance other than in accordance with applicable law; to
the best of Borrower's knowledge, none of Borrower's properties or assets has
ever been designated or identified in any manner pursuant to any environmental
protection statute as a hazardous waste or hazardous substance disposal site, or
a candidate for closure pursuant to any environmental protection statute; no
lien arising under any environmental protection statute has attached to any
revenues or to any real or personal property owned by Borrower or any
Subsidiary; and neither Borrower nor any Subsidiary has received a summons,
citation, notice, or directive from the Environmental Protection Agency or any
other federal, state or other governmental agency concerning any action or
omission by Borrower or any Subsidiary resulting in the releasing, or otherwise
disposing of hazardous waste or hazardous substances into the environment.
5.11 TAXES. Borrower and each Subsidiary has filed or caused to be
filed all tax returns required to be filed, and has paid, or has made adequate
provision for the payment of, all taxes reflected therein.
5.12 SUBSIDIARIES. Borrower does not own any stock, partnership
interest or other equity securities of any Person, except for Permitted
Investments, and except for those equity interests disclosed in any schedule
attached to this Agreement.
5.13 GOVERNMENT CONSENTS. Borrower and each Subsidiary has obtained
all consents, approvals and authorizations of, made all declarations or filings
with, and given all notices to, all governmental authorities that are necessary
for the continued operation of Borrower's business as currently conducted.
5.14 FULL DISCLOSURE. No representation, warranty or other statement
made by Borrower in any certificate or written statement furnished to Bank
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained in such certificates
or statements not misleading.
6. AFFIRMATIVE COVENANTS
Borrower covenants and agrees that, until payment in full of all
outstanding Obligations, and for so long as Bank may have any commitment to make
an Advance hereunder, Borrower shall do all of the following:
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6.1 GOOD STANDING. Borrower shall maintain its and each of its
Subsidiaries' corporate existence and good standing in its jurisdiction of
incorporation and maintain qualification in each jurisdiction in which the
failure to so qualify could have a Material Adverse Effect. Borrower shall
maintain, and shall cause each of its Subsidiaries to maintain, to the extent
consistent with prudent management of Borrower's business, in force all
licenses, approvals and agreements, the loss of which is reasonably likely to
have a Material Adverse Effect.
6.2 GOVERNMENT COMPLIANCE. Borrower shall meet, and shall cause each
Subsidiary to meet, the minimum funding requirements of ERISA with respect to
any employee benefit plans subject to ERISA. Borrower shall comply, and shall
cause each Subsidiary to comply, with all statutes, laws, ordinances and
government rules and regulations to which it is subject, noncompliance with
which is reasonably likely to have a Material Adverse Effect or a material
adverse effect on the Collateral or the priority of Bank's Lien on the
Collateral.
6.3 FINANCIAL STATEMENTS, REPORTS, CERTIFICATES. Borrower shall
deliver to Bank: (a) as soon as available, but in any event within thirty (30)
days after the end of each month, a company prepared consolidated balance sheet
and income statement covering Borrower's consolidated operations during such
period, certified by a Responsible Officer; (b) as soon as available, but in any
event within ninety (90) days after the end of Borrower's fiscal year, audited
consolidated financial statements of Borrower prepared in accordance with GAAP,
consistently applied, together with an unqualified opinion on such financial
statements of an independent certified public accounting firm reasonably
acceptable to Bank, provided that any "Big Six" accounting firm shall be deemed
acceptable to Bank; (c) within five (5) days upon becoming available, copies of
all statements, reports and notices sent or made available generally by Borrower
to its security holders or to any holders of Subordinated Debt and all reports
on Form 10-K and 10-Q filed with the Securities and Exchange Commission;
(d) promptly upon receipt of notice thereof, a report of any legal actions
pending or threatened against Borrower or any Subsidiary that could result in
damages or costs to Borrower or any Subsidiary of One Hundred Thousand Dollars
($100,000) or more; and (e) such budgets, sales projections, operating plans or
other financial information as Bank may reasonably request from time to time.
Borrower shall deliver to Bank with the monthly financial statements a
Compliance Certificate signed by a Responsible Officer in substantially the form
of EXHIBIT C hereto.
Bank shall have a right from time to time hereafter to audit Borrower's
Accounts at Borrower's expense, provided that such audits will be conducted no
more often than every six (6) months unless an Event of Default has occurred and
is continuing.
6.4 INVENTORY; RETURNS. Borrower shall keep all Inventory in good
and marketable condition, free from all material defects. Returns and
allowances, if any, as between Borrower and its account debtors shall be on the
same basis and in accordance with the usual customary practices of Borrower, as
they exist at the time of the execution and delivery of this Agreement.
Borrower shall promptly notify Bank of all returns and recoveries and of all
disputes and claims, where the return, recovery, dispute or claim involves more
than Fifty Thousand Dollars ($50,000).
6.5 TAXES. Borrower shall make, and shall cause each Subsidiary to
make, due and timely payment or deposit of all material federal, state, and
local taxes, assessments, or contributions required of it by law, and will
execute and deliver to Bank, on demand, appropriate certificates attesting to
the payment or deposit thereof; and Borrower will make, and will cause each
Subsidiary to make, timely payment or deposit of all material tax payments and
withholding taxes required of it by applicable laws, including, but not limited
to, those laws concerning F.I.C.A., F.U.T.A., state disability, and local,
state, and federal income taxes, and will, upon request, furnish Bank with proof
satisfactory to Bank indicating that Borrower or a Subsidiary has made such
payments or deposits; provided that Borrower or a Subsidiary need not make any
payment if the amount or validity of such payment is contested in good faith by
appropriate proceedings and is reserved against (to the extent required by GAAP)
by Borrower.
6.6 INSURANCE.
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(a) Borrower, at its expense, shall keep the Collateral insured
against loss or damage by fire, theft, explosion, sprinklers, and all other
hazards and risks, and in such amounts, as ordinarily insured against by other
owners in similar businesses conducted in the locations where Borrower's
business is conducted on the date hereof. Borrower shall also maintain
insurance relating to Borrower's ownership and use of the Collateral in amounts
and of a type that are customary to businesses similar to Borrower's.
(b) All such policies of insurance shall be in such form, with
such companies, and in such amounts as reasonably satisfactory to Bank. All
such policies of property insurance shall contain a lender's loss payable
endorsement, in a form satisfactory to Bank, showing Bank as an additional loss
payee thereof and all liability insurance policies shall show the Bank as an
additional insured, and shall specify that the insurer must give at least twenty
(20) days notice to Bank before canceling its policy for any reason. Upon
Bank's request, Borrower shall deliver to Bank certified copies of such policies
of insurance and evidence of the payments of all premiums therefor. All
proceeds payable under any such policy shall, at the option of Bank, be payable
to Bank to be applied on account of the Obligations.
6.7 PRINCIPAL DEPOSITORY. Borrower shall maintain its principal
depository and operating accounts with Bank.
6.8 DEBT-NET WORTH RATIO. Borrower shall maintain, as of the last
day of each calendar month, a ratio of Total Liabilities to Tangible Net Worth
of not more than 1.50 to 1.00.
6.9 TANGIBLE NET WORTH. Borrower shall maintain, as of the last day
of each calendar month, a Tangible Net Worth of not less than Three Million
Dollars ($3,000,000).
6.10 LIQUIDITY, DEBT SERVICE COVERAGE. Borrower shall maintain, as of
the last day of each calendar month, a minimum Liquidity of (a) two (2) times
the amount of the outstanding Term Advance, and (b) six (6) months Remaining
Months Liquidity.
6.11 FURTHER ASSURANCES. At any time and from time to time Borrower
shall execute and deliver such further instruments and take such further action
as may reasonably be requested by Bank to effect the purposes of this Agreement.
7. NEGATIVE COVENANTS
Borrower covenants and agrees that, so long as any credit hereunder
shall be available and until payment in full of the outstanding Obligations or
for so long as Bank may have any commitment to make any Advances, Borrower will
not do any of the following:
7.1 DISPOSITIONS. Convey, sell, lease, transfer or otherwise dispose
of (collectively, a "Transfer"), or permit any of its Subsidiaries to Transfer,
all or any part of its business or property, other than: (i) Transfers of
Inventory in the ordinary course of business; (ii) Transfers of non-exclusive
licenses and exclusive licenses with geographic or other limitations granted in
the ordinary course of business and similar arrangements for the use of the
property of Borrower or its Subsidiaries; (iii) Transfers of worn-out or
obsolete Equipment, or (iv) transfers in connection with Permitted Indebtedness,
provided that in each such case an Event of Default does not exist before or
after giving effect to such Transfer.
7.2 CHANGE IN BUSINESS. Engage in any business, or permit any of its
Subsidiaries to engage in any business, other than the businesses currently
engaged in by Borrower and any business substantially similar or related thereto
(or incidental thereto). Borrower will not, without thirty (30) days prior
written notification to Bank, relocate its chief executive office.
7.3 MERGERS OR ACQUISITIONS. Merge or consolidate, or permit any of
its Subsidiaries to merge or consolidate, with or into any other business
organization, or acquire, or permit any of its Subsidiaries to acquire, all or
substantially all of the capital stock or property of another Person.
Notwithstanding the foregoing, Borrower may acquire Cambridge Biotech
Corporation.
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7.4 INDEBTEDNESS. Create, incur, assume or be or remain liable with
respect to any Indebtedness, or permit any Subsidiary so to do, other than
Permitted Indebtedness.
7.5 ENCUMBRANCES. Create, incur, assume or suffer to exist any Lien
with respect to any of its property, or assign or otherwise convey any right to
receive income, including the sale of any Accounts, or permit any of its
Subsidiaries so to do, except for Permitted Liens.
7.6 DISTRIBUTIONS. Pay any dividends or make any other distribution
or payment on account of or in redemption, retirement or purchase of any capital
stock, other than payments made in an aggregate amount not to exceed $250,000
for the repurchase of stock effected in connection with the termination of an
employee, officer or director, provided an Event of Default does not exist
before or after giving effect to such payment.
7.7 INVESTMENTS. Directly or indirectly acquire, or make any
Investment in or to any Person, or permit any of its Subsidiaries so to do,
other than Permitted Investments.
7.8 TRANSACTIONS WITH AFFILIATES. Directly or indirectly enter into
or permit to exist any material transaction with any Affiliate of Borrower
except for transactions that are in the ordinary course of Borrower's business,
upon fair and reasonable terms that are no less favorable to Borrower than would
be obtained in an arm's length transaction with a nonaffiliated Person.
Notwithstanding the foregoing, any loans to Pepgen Corporation which are
outstanding at the Closing Date and which have been disclosed to and approved by
Bank are permitted under this Agreement.
7.9 SUBORDINATED DEBT. Make any payment in respect of any
Subordinated Debt, or permit any of its Subsidiaries to make any such payment,
except in compliance with the terms of such Subordinated Debt, or amend any
provision contained in any documentation relating to the Subordinated Debt
without Bank's prior written consent.
7.10 INVENTORY. Store the Inventory with a bailee, warehouseman, or
similar party unless Bank has received a pledge of the warehouse receipt
covering such Inventory. Except for Inventory sold in the ordinary course of
business and except for such other locations as Bank may approve in writing and
described on Schedule 3, as amended from time to time, Borrower shall keep the
Inventory only at the location set forth in Section 10 hereof and such other
locations of which Borrower gives Bank prior written notice and as to which
Borrower signs and files a financing statement where needed to perfect Bank's
security interest.
7.11 COMPLIANCE. Become an "investment company" or become
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, or become principally engaged in, or undertake as one of
its important activities, the business of extending credit for the purpose of
purchasing or carrying margin stock, or use the proceeds of any Advance for such
purpose. Fail to meet the minimum funding requirements of ERISA, permit a
Reportable Event or Prohibited Transaction, as defined in ERISA, to occur, fail
to comply with the Federal Fair Labor Standards Act or violate any law or
regulation, which violation could have a Material Adverse Effect or a material
adverse effect on the Collateral or the priority of Bank's Lien on the
Collateral, or permit any of its Subsidiaries to do any of the foregoing.
8. EVENTS OF DEFAULT
Any one or more of the following events shall constitute an Event of
Default by Borrower under this Agreement:
8.1 PAYMENT DEFAULT. If Borrower fails to pay the principal of, or
any interest on, any Advances when due and payable; or fails to pay any portion
of any other Obligations not constituting such principal or interest, including
without limitation Bank Expenses, within forty-five (45) days of receipt by
Borrower of an invoice for such other Obligations;
8.2 COVENANT DEFAULT. If Borrower fails to perform any obligation
under Sections 6.8, 6.9, or 6.10 or violates any of the covenants contained in
Article 7 of this Agreement, or fails or neglects to perform,
14
<PAGE>
keep, or observe any other material term, provision, condition, covenant, or
agreement contained in this Agreement, in any of the Loan Documents, or in
any other present or future agreement between Borrower and Bank and as to any
default under such other term, provision, condition, covenant or agreement
that can be cured, has failed to cure such default within ten (10) days after
Borrower receives notice thereof or any officer of Borrower becomes aware
thereof; provided, however, that if the default cannot by its nature be cured
within the ten (10) day period or cannot after diligent attempts by Borrower
be cured within such ten (10) day period, and such default is likely to be
cured within a reasonable time, then Borrower shall have an additional
reasonable period (which shall not in any case exceed thirty (30) days) to
attempt to cure such default, and within such reasonable time period the
failure to have cured such default shall not be deemed an Event of Default
(provided that no Advances will be required to be made during such cure
period);
8.3 MATERIAL ADVERSE CHANGE. If there occurs a material adverse
change in Borrower's business or financial condition, or if there is a material
impairment of the prospect of repayment of any portion of the Obligations or a
material impairment of the value or priority of Bank's security interests in the
Collateral;
8.4 ATTACHMENT. If any material portion of Borrower's assets is
attached, seized, subjected to a writ or distress warrant, or is levied upon, or
comes into the possession of any trustee, receiver or person acting in a similar
capacity and such attachment, seizure, writ or distress warrant or levy has not
been removed, discharged or rescinded within twenty (20) days, or if Borrower is
enjoined, restrained, or in any way prevented by court order from continuing to
conduct all or any material part of its business affairs, or if a judgment or
other claim becomes a lien or encumbrance upon any material portion of
Borrower's assets, or if a notice of lien, levy, or assessment is filed of
record with respect to any of Borrower's assets by the United States Government,
or any department, agency, or instrumentality thereof, or by any state, county,
municipal, or governmental agency, and the same is not paid within twenty (20)
days after Borrower receives notice thereof, provided that none of the foregoing
shall constitute an Event of Default where such action or event is stayed or an
adequate bond has been posted pending a good faith contest by Borrower (provided
that no Advances will be required to be made during such cure period);
8.5 INSOLVENCY. If Borrower becomes insolvent, or if an Insolvency
Proceeding is commenced by Borrower, or if an Insolvency Proceeding is commenced
against Borrower and is not dismissed or stayed within forty-five (45) days
(provided that no Advances will be made prior to the dismissal of such
Insolvency Proceeding);
8.6 OTHER AGREEMENTS. If there is a default in any agreement to
which Borrower is a party with a third party or parties resulting in the
exercise by such third party or parties, of a right to accelerate the maturity
of any Indebtedness in an amount in excess of Two Hundred Fifty Thousand Dollars
($250,000) or that is reasonably likely to have a Material Adverse Effect;
8.7 SUBORDINATED DEBT. If Borrower makes any payment on account of
Subordinated Debt, except to the extent such payment is allowed under the terms
thereof approved from time to time by Bank or any subordination agreement
entered into with Bank;
8.8 JUDGMENTS. If a judgment or judgments for the payment of money
in an amount, individually or in the aggregate, of at least Two Hundred Fifty
Thousand Dollars ($250,000) shall be rendered against Borrower and shall remain
unsatisfied and unstayed for a period of thirty (30) days (provided that no
Advances will be made prior to the satisfaction or stay of such judgment); or
8.9 MISREPRESENTATIONS. If, as of the date such representation or
warranty was made or such certificate delivered, any material misrepresentation
or material misstatement exists now or hereafter in any warranty or
representation set forth herein or in any certificate delivered to Bank by any
Responsible Officer pursuant to this Agreement or to induce Bank to enter into
this Agreement or any other Loan Document.
9. BANK'S RIGHTS AND REMEDIES
15
<PAGE>
9.1 RIGHTS AND REMEDIES. Upon the occurrence and during the
continuance of an Event of Default, Bank may, at its election, without notice of
its election and without demand, do any one or more of the following, all of
which are authorized by Borrower:
(a) Declare all Obligations, whether evidenced by this
Agreement, by any of the other Loan Documents, or otherwise, immediately due and
payable (provided that upon the occurrence of an Event of Default described in
Section 8.5 all Obligations shall become immediately due and payable without any
action by Bank);
(b) Cease advancing money or extending credit to or for the
benefit of Borrower under this Agreement or under any other agreement between
Borrower and Bank;
(c) Settle or adjust disputes and claims directly with account
debtors for amounts, upon terms and in whatever order that Bank reasonably
considers advisable;
(d) Without notice to or demand upon Borrower, make such
payments and do such acts as Bank considers necessary or reasonable to protect
its security interest in the Collateral. Borrower agrees to assemble the
Collateral if Bank so requires, and to make the Collateral available to Bank as
Bank may designate. Borrower authorizes Bank to enter the premises where the
Collateral is located, to take and maintain possession of the Collateral, or any
part of it, and to pay, purchase, contest, or compromise any encumbrance,
charge, or lien which in Bank's determination appears to be prior or superior to
its security interest and to pay all expenses incurred in connection therewith.
With respect to any of Borrower's owned premises, Borrower hereby grants Bank a
license to enter into possession of such premises and to occupy the same,
without charge, in order to exercise any of Bank's rights or remedies provided
herein, at law, in equity, or otherwise;
(e) Without notice to Borrower set off and apply to the
Obligations any and all (i) balances and deposits of Borrower held by Bank, or
(ii) indebtedness at any time owing to or for the credit or the account of
Borrower held by Bank;
(f) Ship, reclaim, recover, store, finish, maintain, repair,
prepare for sale, advertise for sale, and sell (in the manner provided for
herein) the Collateral. Bank is hereby granted a license or other right, solely
pursuant to the provisions of this Section 9.1, to use, without charge,
Borrower's labels, patents, copyrights, rights of use of any name, trade
secrets, trade names, trademarks, service marks, and advertising matter, or any
property of a similar nature, as it pertains to the Collateral, in completing
production of, advertising for sale, and selling any Collateral and, in
connection with Bank's exercise of its rights under this Section 9.1, Borrower's
rights under all licenses and all franchise agreements shall inure to Bank's
benefit, except to the extent that such license would result in a breach of such
agreement;
(g) Sell the Collateral at either a public or private sale, or
both, by way of one or more contracts or transactions, for cash or on terms, in
such manner and at such places (including Borrower's premises) as Bank
determines is commercially reasonable, and apply any proceeds to the Obligations
in whatever manner or order Bank deems appropriate;
(h) Bank may credit bid and purchase at any public sale; and
(i) Any deficiency that exists after disposition of the
Collateral as provided above will be paid immediately by Borrower.
Notwithstanding the foregoing, Bank shall refrain from taking any of the actions
listed in 9.1(c) through 9.1(i), unless such action is taken in conjunction with
an acceleration of the Obligations.
9.2 POWER OF ATTORNEY. Effective only upon the occurrence and during
the continuance of an Event of Default, Borrower hereby irrevocably appoints
Bank (and any of Bank's designated officers, or employees) as Borrower's true
and lawful attorney to: (a) send requests for verification of Accounts or
notify account debtors of Bank's security interest in the Accounts; (b) endorse
Borrower's name on any checks or other
16
<PAGE>
forms of payment or security that may come into Bank's possession; (c) sign
Borrower's name on any invoice or bill of lading relating to any Account,
drafts against account debtors, schedules and assignments of Accounts,
verifications of Accounts, and notices to account debtors; (d) make, settle,
and adjust all claims under and decisions with respect to Borrower's policies
of insurance; and (e) settle and adjust disputes and claims respecting the
accounts directly with account debtors, for amounts and upon terms which Bank
determines to be reasonable; provided Bank may exercise such power of
attorney to sign the name of Borrower on any of the documents described in
Section 4.2 regardless of whether an Event of Default has occurred. The
appointment of Bank as Borrower's attorney in fact, and each and every one of
Bank's rights and powers, being coupled with an interest, is irrevocable
until all of the Obligations have been fully repaid and performed and Bank's
obligation to provide advances hereunder is terminated.
9.3 ACCOUNTS COLLECTION. At any time when an Event of Default has
occurred and is continuing, Bank may notify any Person owing funds to
Borrower of Bank's security interest in such funds and verify the amount of
such Account. Borrower shall collect all amounts owing to Borrower for Bank,
receive in trust all payments as Bank's trustee, and immediately deliver such
payments to Bank in their original form as received from the account debtor,
with proper endorsements for deposit.
9.4 BANK EXPENSES. If Borrower fails to pay any amounts or
furnish any required proof of payment due to third persons or entities, as
required under the terms of this Agreement, then Bank may do any or all of
the following: (a) make payment of the same or any part thereof; (b) set up
such reserves under the Revolving Facility as Bank deems necessary to protect
Bank from the exposure created by such failure; or (c) obtain and maintain
insurance policies of the type discussed in Section 6.6 of this Agreement,
and take any action with respect to such policies as Bank deems prudent. Any
amounts so paid or deposited by Bank shall constitute Bank Expenses, shall be
immediately due and payable, and shall bear interest at the then applicable
rate hereinabove provided, and shall be secured by the Collateral. Any
payments made by Bank shall not constitute an agreement by Bank to make
similar payments in the future or a waiver by Bank of any Event of Default
under this Agreement.
9.5 BANK'S LIABILITY FOR COLLATERAL. So long as Bank complies with
reasonable banking practices, Bank shall not in any way or manner be liable or
responsible for: (a) the safekeeping of the Collateral; (b) any loss or damage
thereto occurring or arising in any manner or fashion from any cause; (c) any
diminution in the value thereof; or (d) any act or default of any carrier,
warehouseman, bailee, forwarding agency, or other person whomsoever. All risk
of loss, damage or destruction of the Collateral shall be borne by Borrower.
9.6 REMEDIES CUMULATIVE. Bank's rights and remedies under this
Agreement, the Loan Documents, and all other agreements shall be cumulative.
Bank shall have all other rights and remedies not inconsistent herewith as
provided under the Code, by law, or in equity. No exercise by Bank of one right
or remedy shall be deemed an election, and no waiver by Bank of any Event of
Default on Borrower's part shall be deemed a continuing waiver. No delay by
Bank shall constitute a waiver, election, or acquiescence by it. No waiver by
Bank shall be effective unless made in a written document signed on behalf of
Bank and then shall be effective only in the specific instance and for the
specific purpose for which it was given.
9.7 DEMAND; PROTEST. Borrower waives demand, protest, notice of
protest, notice of default or dishonor, notice of payment and nonpayment, notice
of any default, nonpayment at maturity, release, compromise, settlement,
extension, or renewal of accounts, documents, instruments, chattel paper, and
guarantees at any time held by Bank on which Borrower may in any way be liable.
10. NOTICES
Unless otherwise provided in this Agreement, all notices or demands by
any party relating to this Agreement or any other agreement entered into in
connection herewith shall be in writing and (except for financial statements and
other informational documents which may be sent by first-class mail, postage
prepaid) shall be personally delivered or sent by a recognized overnight
delivery service, certified mail, postage prepaid, return receipt requested, or
by telefacsimile to Borrower or to Bank, as the case may be, at its addresses
set forth below:
17
<PAGE>
If to Borrower: Calypte Biomedical Corporation
1265 Harbor Bay Parkway
Alameda, CA 94502
Attn: Chief Financial Officer
FAX: (510) 814-8408
If to Bank: Silicon Valley Bank
3003 Tasman Drive
Santa Clara, CA 95404
Attn: Mr. Cliff White
FAX: (408) 654-1045
The parties hereto may change the address at which they are to receive
notices hereunder, by notice in writing in the foregoing manner given to the
other.
11. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER
This Agreement shall be governed by, and construed in accordance with,
the internal laws of the State of California, without regard to principles of
conflicts of law. Each of Borrower and Bank hereby submits to the exclusive
jurisdiction of the state and Federal courts located in the County of Santa
Clara, State of California. BORROWER AND BANK EACH HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED
THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW OR STATUTORY CLAIMS. EACH PARTY RECOGNIZES AND AGREES THAT THE
FOREGOING WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS
AGREEMENT. EACH PARTY REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER
WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
12. GENERAL PROVISIONS
12.1 SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to
the benefit of the respective successors and permitted assigns of each of the
parties; PROVIDED, HOWEVER, that except as provided in Section 7.3, neither this
Agreement nor any rights hereunder may be assigned by Borrower without Bank's
prior written consent, which consent may be granted or withheld in Bank's sole
discretion. Bank shall have the right without the consent of or notice to
Borrower to sell, transfer, negotiate, or grant participation in all or any part
of, or any interest in, Bank's obligations, rights and benefits hereunder.
12.2 INDEMNIFICATION. Borrower shall defend, indemnify and hold
harmless Bank and its officers, employees, and agents against: (a) all
obligations, demands, claims, and liabilities claimed or asserted by any other
party in connection with the transactions contemplated by this Agreement; and
(b) all losses or Bank Expenses in any way suffered, incurred, or paid by Bank
as a result of or in any way arising out of, following, or consequential to
transactions between Bank and Borrower whether under this Agreement, or
otherwise (including without limitation reasonable attorneys fees and expenses),
except for losses caused by Bank's gross negligence or willful misconduct.
12.3 TIME OF ESSENCE. Time is of the essence for the performance of
all obligations set forth in this Agreement.
12.4 SEVERABILITY OF PROVISIONS. Each provision of this Agreement
shall be severable from every other provision of this Agreement for the purpose
of determining the legal enforceability of any specific provision.
18
<PAGE>
12.5 AMENDMENTS IN WRITING, INTEGRATION. This Agreement cannot be
amended or terminated orally. All prior agreements, understandings,
representations, warranties, and negotiations between the parties hereto with
respect to the subject matter of this Agreement, if any, are merged into this
Agreement and the Loan Documents.
12.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties on separate counterparts, each of which,
when executed and delivered, shall be deemed to be an original, and all of
which, when taken together, shall constitute but one and the same Agreement.
12.7 SURVIVAL. All covenants, representations and warranties made in
this Agreement shall continue in full force and effect so long as any
Obligations remain outstanding. The obligations of Borrower to indemnify Bank
with respect to the expenses, damages, losses, costs and liabilities described
in Section 12.2 shall survive until all applicable statute of limitations
periods with respect to actions that may be brought against Bank have run.
12.8 CONFIDENTIALITY. In handling any confidential information Bank,
shall exercise the same degree of care that it exercises with respect to its own
proprietary information of the same types to maintain the confidentiality of any
non-public information thereby received or received pursuant to this Agreement,
except that disclosure of such information may be made (i) to the subsidiaries
or affiliates of Bank in connection with their present or prospective business
relations with Borrower, (ii) to prospective transferees or purchasers of any
interest in the Loans, provided that they have entered into a comparable
confidentiality agreement in favor of Borrower and have delivered a copy to
Borrower, (ii) as required by law, regulations, rule or order, subpoena,
judicial order or similar order, (iv) as may be required in connection with the
examination, audit or similar investigation of Bank and (v) as Bank may deem
appropriate in connection with the exercise of any remedies hereunder.
Confidential information hereunder shall not include information that either:
(a) is in the public domain, or becomes part of the public domain, after
disclosure to Bank through no fault of Bank; or (b) is disclosed to Bank by a
third party, provided Bank does not have actual knowledge that such third party
is prohibited from disclosing such information.
19
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
CALYPTE BIOMEDICAL CORPORATION
By:
--------------------------------------
Title:
------------------------------------
SILICON VALLEY BANK
By:
---------------------------------------
Title:
-------------------------------------
20
<PAGE>
EXHIBIT A
The Collateral shall consist of all right, title and interest of Borrower
in and to the following:
(a) All goods and equipment now owned or hereafter acquired, including,
without limitation, all machinery, fixtures, vehicles (including motor vehicles
and trailers), and any interest in any of the foregoing, and all attachments,
accessories, accessions, replacements, substitutions, additions, and
improvements to any of the foregoing, wherever located;
(b) All inventory, now owned or hereafter acquired, including, without
limitation, all merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products including such
inventory as is temporarily out of Borrower's custody or possession or in
transit and including any returns upon any accounts or other proceeds, including
insurance proceeds, resulting from the sale or disposition of any of the
foregoing and any documents of title representing any of the above, and
Borrower's Books relating to any of the foregoing;
(c) All contract rights and general intangibles now owned or hereafter
acquired, including, without limitation, goodwill, leases, license agreements,
franchise agreements, blueprints, drawings, purchase orders, customer lists,
route lists, claims, literature, reports, catalogs, income tax refunds, payments
of insurance and rights to payment of any kind;
(d) All now existing and hereafter arising accounts, contract rights,
royalties, license rights and all other forms of obligations owing to Borrower
arising out of the sale or lease of goods, the licensing of technology or the
rendering of services by Borrower, whether or not earned by performance, and any
and all credit insurance, guaranties, and other security therefor, as well as
all merchandise returned to or reclaimed by Borrower and Borrower's Books
relating to any of the foregoing;
(e) All documents, cash, deposit accounts, securities, securities
entitlements, securities accounts, letters of credit, certificates of deposit,
instruments and chattel paper now owned or hereafter acquired and Borrower's
Books relating to the foregoing; and
(f) Any and all claims, rights and interests in any of the above and all
substitutions for, additions and accessions to and proceeds thereof.
Notwithstanding the foregoing, the Collateral shall not be deemed to
include any copyright rights, copyright applications, copyright registrations
and like protections in each work of authorship and derivative work thereof,
whether published or unpublished, now owned or hereafter acquired; any patents,
trademarks, servicemarks and applications therefor; any trade secret rights,
including any rights to unpatented inventions, know-how, operating manuals,
license rights and agreements and confidential information, now owned or
hereafter acquired, including licenses to patent; or any claims for damages by
way of any past, present and future infringement of any of the foregoing;
provided Collateral shall include the proceeds of any disposition of any of the
foregoing.
<PAGE>
Exhibit 10.50
LEASE EXTENSION AGREEMENT
This agreement is dated February 26, 1999 for reference purposes and is an
additional modification to the current Lease dated November 30, 1990 between
Charles A. Grant and Mark Greenberg (LESSOR) and Urnotech Calypte Biomedical
Corporation (LESSEE) for the property known as 1440 Fourth Street, Berkeley,
California.
1.) LEASE EXTENDED THROUGH December 1999. The Lease is hereby extended six
months through December 31, 1999. The lease rate for this extension period
will be at $27,000 per month.
2.) HOLDING OVER. If LESSEE remains in possession of the premises per
Paragraph 26 (Holding Over), then the agreed monthly rent is $29,000.
SIGNED BY: /s/ Charles A. Grant General Partner February 26, 1999
-----------------------------------------------------------------
FOR LESSOR TITLE DATE
SIGNED BY: /s/ William A. Boeger CEO March 3, 1999
----------------------------------------------
FOR LESSEE TITLE DATE
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> MAR-31-1999
<CASH> 3,718
<SECURITIES> 625
<RECEIVABLES> 432
<ALLOWANCES> 0
<INVENTORY> 1,926
<CURRENT-ASSETS> 7,431
<PP&E> 5,163
<DEPRECIATION> (3,547)
<TOTAL-ASSETS> 9,305
<CURRENT-LIABILITIES> 5,699
<BONDS> 77
2,126
0
<COMMON> 17
<OTHER-SE> 1,357
<TOTAL-LIABILITY-AND-EQUITY> 9,305
<SALES> 834
<TOTAL-REVENUES> 834
<CGS> 997
<TOTAL-COSTS> 997
<OTHER-EXPENSES> 2,790
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (54)
<INCOME-PRETAX> (2,924)
<INCOME-TAX> (2)
<INCOME-CONTINUING> (2,926)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (2,926)
<EPS-PRIMARY> (0.18)
<EPS-DILUTED> (0.18)
</TABLE>
