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EXHIBIT 5.1
[LETTERHEAD HELLER, EHRMAN, WHITE & MCAULIFFE L.L.P.]
, 2000
24073-0001
Calypte Biomedical Corporation
1265 Harbor Bay Parkway
Alameda, California 94502
REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We have acted as counsel to Calypte Biomedical Corporation, a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-3 (the "Registration Statement") to be filed with the Securities and
Exchange Commission on or about , 2000, for the purpose of
registering under the Securities Act of 1933, as amended, up to 6,000,000 shares
of its Common Stock, $0.001 par value (the "Shares"). The Shares are issuable
pursuant to the Common Stock Purchase Agreement, dated November 2, 2000, among
the Company and Townsbury Investments Limited (the "Agreement") and pursuant to
the warrants to purchase shares of Common Stock (the "Warrants") issued by the
Company to Townsbury Investments Limited.
In connection with this opinion, we have assumed the authenticity of all
records, documents and instruments submitted to us as originals, the genuineness
of all signatures, the legal capacity of natural persons and the conformity to
the originals of all records, documents and instruments submitted to us as
copies. We have based our opinion upon our review of the following records,
documents and instruments:
(a) The Amended and Restated Certificate of Incorporation of the Company
certified by the Secretary of State of the State of Delaware as of
, 2000, and certified to us by the Chief Executive Officer,
President and Chief Financial Officer of the Company as being the Amended
and Restated Certificate of Incorporation most recently filed by the
Company with the Delaware Secretary of State as of the date of this
opinion;
(b) The By-laws of the Company certified to us by the Chief Executive
Officer, President and Chief Financial Officer of the Company as the form
of By-Laws most recently approved by the Company as of the date of this
opinion;
(c) Records certified to us by an officer of the Company as constituting all
records of proceedings and actions of the Board of Directors of the
Company relating to the issuance of the Shares;
(d) A letter from ChaseMellon Shareholder Services L.L.C., the Company's
Transfer Agent, dated , 2000 as to the number of shares of
Common Stock that were outstanding as of , 2000;
(e) The Registration Statement;
(f) The Agreement; and
(g) The Warrants.
This opinion is limited to the federal law of the United States of America
and the General Corporation Law of the State of Delaware. We disclaim any
opinion as to any other statute, rule, regulation, ordinance, order or other
promulgation of any other jurisdiction or any regional or local governmental
body.
Our opinion expressed herein assumes that the Agreement and the Warrants
were duly authorized, executed and delivered by the parties thereto in the form
that we have reviewed as of the date of this
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Calypte Biomedical Corporation
, 2000
Page 2
opinion, and that the full consideration stated in the Agreement and the
Warrants and set by the Board of Directors when authorizing the issuance of the
Shares will be paid for the Shares.
Based upon the foregoing and our examination of such questions of law as we
have deemed necessary or appropriate for the purpose of this opinion and
assuming that (i) the Registration Statement becomes and remains effective
during the period when the Shares are offered and sold; (ii) the Shares are
issued in accordance with the terms of the Agreement and the Warrants and the
resolutions authorizing their issuance; (iii) appropriate stock certificates
evidencing the Shares are executed and delivered; and (iv) all applicable
securities laws are complied with, it is our opinion that when issued, the
Shares will be duly authorized and validly issued, and fully paid and
nonassessable.
This opinion is rendered to you in connection with the Registration
Statement and is solely for your benefit and the benefit of persons who purchase
shares from TIL pursuant to the Registration Statement. This opinion may not be
relied upon by you for any other purpose, or relied upon by any other person,
firm, corporation or other entity for any purpose, without our prior written
consent. We disclaim any obligation to advise you of any change of law that
occurs, or any facts which we become aware after the date of this opinion.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
HELLER, EHRMAN, WHITE & MCAULIFFE
