BARATTA & GOLDSTEIN
ATTORNEYS AT LAW
597 FIFTH AVENUE
NEW YORK, N.Y. 10017
-------
JOSEPH P. BARATTA (212) 750-9700 FACSIMILE: (212) 750-8297
HOWARD J. GOLDSTEIN INFO@BARAGOLD.COM
LOUIS R. AIDALA OF COUNSEL
JOAN PALERMO MARGARET M. STANTON
JOSEPH A. BARATTA* LINDA MARYANOV
SAMUEL M. GREENFIELD
* Admitted in NY and NJ
December 20, 2004
Via EDGAR and Facsimile
David Ritenour, Special Counsel
Mary Beth Breslin, Division of Corporate Finance
Securities and Exchange Commission
450 Fifth Street, NW
Washington, D.C. 20549-0306
Re: Calypte Biomedical Corporation
Registration Statement on Form SB-2
Filed October 8, 2004
File No. 333-119646
Dear Mr. Ritenour and Ms. Breslin:
On behalf of Calypte Biomedical Corporation ("Calypte" or the "Company"), we
enclose supplemental responses that correspond directly to the numbered comments
in the Commission's letter of December 17, 2004. Additional commentary is
provided where appropriate to direct the Commission's attention to supplemental
responses and/or revisions with respect to the Registration Statement. Please
note that the Company has filed an amended registration statement on Form SB-2/A
(No.1) which includes amendments in accord with the supplemental responses,
updated financial statements and other disclosures to reflect financial results
through the quarter ended September 30, 2004 as well as recent material
subsequent events.
Additionally, we have manually marked a "hard copy" of the sections of the
Registration Statement relevant to the supplemental responses which have been
faxed to your attention.
Fee Table
1. Please supplementally demonstrate that Ani Biotech Oy was at market
risk at the time of filing of the resale registration statement with
respect to all shares that may be issued pursuant to the license
agreement filed as Exhibit 10.1 to your Form 8-K dated September 30,
2004. In this regard, we note Section 1.3 of the agreement, which
indicates that any transfer of shares to Ani Biotech Oy is to be
calculated using the 5-day average closing stock price immediately
before the date of the transfer. For guidance, please refer to Part
(b) of Item 3S of the March 1999 supplement to our Manual of
Publicly Available Telephone Interpretations, which is available on
our website at www.sec.gov.
Response
The Company has amended the Registration Statement to include only the
shares of common stock that have been issued to Ani Biotech Oy ("Ani") as
of September 30, 2004 that are at market risk. The fee table has been
revised to reflect 1,172,205 shares included in resale registration
representing (i) the initial license fee payment of 300,000 Euros pursuant
to Section 3.1.1 of the License Agreement and Technology Transfer
Agreement (the "Agreement") and (ii) the initial payment of 77,613 Euros
for the manufacturing equipment pursuant to Section 5.3.1 of the
Agreement. We further advise that the relevant note to the fee table has
been amended to reflect the 1,172,205 shares as previously issued to Ani
and the deletion of reference to "an indeterminate number of shares being
included in the Registration Statement", except as relates to potential
future issuances under Rule 416(b) of the Securities Exchange Act of 1933,
as amended.
2. Please supplementally explain how you determined the number of
shares which are being registered for resale.
Response
As stated in the supplemental response above, the Company has amended the
Registration Statement so as to include only the shares of common stock as
issued to Ani that are at market risk.
The 1,172,205 shares included in pre-effective amendment number 1 to the
Registration Statement were determined as follows:
Payments due for License Fee 300,000 Euros
Payments due for manufacturing equipment 77,613 Euros
------------
377,613 Euros
Conversion rate at 30 September 2003 per
Federal Reserve Bank of New York 1.2417
------------
U.S. dollar equivalent $ 468,882.06
Divided by
Threshold price per share $ 0.40
------------
Shares of common stock being registered 1,172,205
============
Should you have any further questions or comments regarding the foregoing
responses or amendments to the Registration Statement, please direct same in
care of the undersigned. Your courtesies and attention with respect to the
foregoing are appreciated as the Company desires to submit a request for
acceleration upon satisfying the foregoing
Very truly yours,
BARATTA & GOLDSTEIN
JOSEPH A. BARATTA