AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER __, 2004
REGISTRATION NO. 333-119646
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM SB-2/A (NO.2)
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CALYPTE BIOMEDICAL CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
DELAWARE 3826 06-1226727
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
5000 HOPYARD ROAD, SUITE 480
PLEASANTON, CALIFORNIA 94588
(925) 730-7200
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
J. RICHARD GEORGE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CALYPTE BIOMEDICAL CORPORATION
5000 HOPYARD ROAD, SUITE 480
PLEASANTON, CALIFORNIA 94588
(925) 730-7200
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
JOSEPH A. BARATTA, ESQ.
BARATTA & GOLDSTEIN
597 FIFTH AVENUE
NEW YORK, NEW YORK 10017
(212) 750-9700 (PHONE)
(212) 750-8297 (FAX)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act of 1933, as amended, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act of 1933, as amended, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under
the Securities Act of 1933, as amended, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If delivery of this Prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TITLE OF SHARES TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE REGISTRATION FEE
===============================================================================================================
Common Stock, $0.03 par value per share 1,172,205 $ 0.385 $ 451,299 $ 205(3)
(1) Shares of common stock which may be offered pursuant to this registration
statement, which shares have been issued pursuant to a private placement
transaction. In addition to the shares set forth in the table, the amount
to be registered includes an indeterminate number of shares, as such
number may be adjusted as a result of stock splits, stock dividends and
similar transactions in accordance with Rule 416 under the Securities Act
of 1933, as amended.
(2) Estimated in accordance with Rule 457(c) for the purpose of computing the
amount of the registration fee based on the average of the high and low
trading prices of the Company's common stock on the American Stock
Exchange on October 6, 2004.
(3) Previously paid with original filing on October 8, 2004.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law permits a corporation to
include in its charter documents, and in agreements between the corporation and
its directors and officers, provisions expanding the scope of indemnification
beyond that specifically provided by the current law.
Article VIII of the Registrant's Certificate of Incorporation provides for the
indemnification of directors to the fullest extent permissible under Delaware
law.
Article VI of the Registrant's Bylaws provides for the indemnification of
officers, directors and third parties acting on behalf of the corporation if
such person acted in good faith and in a manner reasonably believed to be in and
not opposed to the best interest of the corporation, and, with respect to any
criminal action or proceeding, the indemnified party had no reason to believe
his conduct was unlawful.
Calypte has entered into indemnification agreements with its directors and
executive officers, in addition to indemnification provided for in Calypte's
Bylaws, and intends to enter into indemnification agreements with any new
directors and executive officers in the future.
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
SEC registration fees (1) $ 205.00
Legal fees and expenses $ 35,000.00
Accountants' fees $ 10,000.00
Miscellaneous $ 1,795.00
--------------
Total $ 47,000.00
==============
- -------------
(1) Previously paid with original filing on october 8, 2004.
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES`
Private Placements of Common Stock
On January 22, 2001, the Company signed an agreement to place up to $1.1 million
in convertible short-term debentures. Under this arrangement, the Company issued
two convertible debentures to the debenture holders in the principal amount of
$550,000, pursuant to Regulation S of the Securities Act. Each debenture had an
interest rate of 6% and was issued at an original issue discount of 9.1%. The
Company issued the first debenture on January 26, 2001 and the second on March
13, 2001. Each debenture matured 90 days from the date of issuance, or on April
26, 2001 and June 11, 2001, respectively. Under the terms of the debentures, the
debenture holder could elect at any time prior to maturity to convert the
balance outstanding on the debentures into shares of the Company's common stock
at a fixed price that represented a 5% discount to the average trading price of
the shares for the 10 trading days preceding the issuance of each debenture. If
the Company chose not to redeem the debentures upon maturity, as in the case of
the second debenture, the conversion discount to the debenture holder increased
to 15% of the average low bid price for the Company's common stock for any three
of the 22 trading days prior to the date of conversion. Concurrent with the
issuance of the first debenture, the Company also issued a warrant to the
debenture holder for 6,667 shares of common stock at an exercise price of $45.
The shares underlying the debentures and warrant were registered using a Form
S-3 Registration Statement. The Company received aggregate net proceeds from the
issuance of the two debentures of $925,000 during the first quarter of 2001.
II-1
On January 24, 2001, the Company amended a common stock purchase agreement with
a private investment fund for the issuance and purchase of its common stock. The
initial closing of the transaction took place on November 2, 2000. The stock
purchase agreement established what is sometimes termed an equity line of credit
or an equity draw down facility. The facility generally operated with the
investor committed to purchase up to $25 million or up to 20% of the Company's
outstanding shares of common stock over a twelve-month period. Once during each
draw down pricing period, the Company could request a draw, subject to a formula
based on the Company's average stock price and average trading volume setting
the maximum amount of the request for any given draw. The amount of money that
the investor provided to the Company and the number of shares the Company issued
to the investor in return for that money was settled during a 22 day trading
period following the draw down request based on the formula in the stock
purchase agreement. The investor received a 5% discount to the market price for
the 22 day period and the Company received the settled amount of the draw down.
By June 30, 2001, the Company had issued 169,500 shares of its common stock, the
total number registered for the equity line with the Securities and Exchange
Commission, at an average price of $12.60 per share and had received net
proceeds of approximately $2,014,000 after deducting expenses of the
transaction. There are no further funds available to the Company under this
equity line.
In August 2001, the Company and the same private investment fund mentioned in
the preceding paragraph signed a common stock purchase agreement for the future
issuance and purchase of up to $10 million of the Company's common stock over a
twenty-four month period. The initial closing of the transaction occurred in
October 2001. Under this arrangement, the Company, at its sole discretion, could
draw down on this facility, sometimes termed an equity line, from time to time,
and the investment fund was obligated to purchase shares of the Company's common
stock. The purchase price of the common stock purchased pursuant to any draw
down was equal to 88% of the daily volume weighted average price of the
Company's common stock on the applicable date. In conjunction with the signing
of the stock purchase agreement, in October 2001, the Company issued a 7-year
fully-vested warrant to the investment fund to purchase up to 139,742 shares of
common stock at an exercise price of $8.23 per share and 3,833 shares of its
common stock as additional fees to the investment fund. The private placement of
the related warrants was exempt from registration pursuant to Regulation S. From
the time the Registration statement became effective in November 2001 through
the expiration of the facility in October 2003, the Company issued a total of
855,776 shares of its common stock at an average price of $3.93 per share and
received proceeds of approximately $3.2 million after deducting expenses of the
transactions. At the time the facility expired, 633 registered shares remained
available for sale under this facility.
In November 2001, the Company sold 52,528 shares of common stock under
Regulation D of the Securities Act of 1933 ("the Securities Act") to various
investors in a private placement at $5.70 per share, receiving net proceeds of
$295,000. The private placement did not include registration rights. Therefore,
pursuant to Rule 144 of the Securities Act, the transfer of the securities
purchased by the investors was restricted for twelve months from the date of
purchase. Three former members of the Company's Board of Directors, Nancy Katz,
Mark Novitch and David Collins, purchased an aggregate of 24,038 shares of this
offering. The proceeds of this offering were used to fund the Company's current
operations. The purchase transactions by the Company's Board members were on a
fair and reasonable basis and on terms more favorable to the Company than could
have been obtained with non-affiliated parties as a result of the tenuous
financial condition of the Company at the time.
The following table summarizes the Company's financing activities from January
2002 through December 16, 2004 by major category and the subsequent table
provides the details of these financings. All amounts are in thousands, except
per share closing prices in the second table. All share amounts and per share
prices reflect the post-split basis of the 1:30 reverse stock split approved by
our stockholders on May 20, 2003 and which became effective on May 28, 2003.)
The proceeds of all of these financings have been used to fund the Company's
current operations.
II-2
SUMMARY OF RECENT FINANCINGS - JANUARY 2002 TO DECEMBER 16, 2004
TOTAL
GROSS NET SHARES
FINANCING SOURCE PROCEEDS PROCEEDS ISSUED
- ----------------------------------- -------- -------- ---------
Bristol 12% Convertible Debentures
and Warrants $ 562 $ 505 1,476.1
8% Convertible Notes 3,232 2,594 46,084.3
Other Restart Financings 750 730 2,720.3
Mercator 12% and 10% Debentures (1) 4,550 3,650 37,529.5
Marr 2003 Private Placements 12,500 11,900 28,333.3
May 2004 PIPE 9,300 8,769 23,250.0
July 2004 PIPE 1,488 1,384 3,720.0
-------- -------- ---------
Total $32,382 $29,532 143,113.5
======== ======== =========
(1) At December 16, 2004, the holders have converted all but $60,000 of
principal of the convertible debentures issued since September
2002. Based on current market prices, we estimate that we would be
required to issue approximately 0.4 million additional shares of
our common stock if the holders elected to convert the remaining
principal and accrued interest of their debentures at this time.
The holders of these 12% convertible debentures claim a transaction
date which we dispute. These debentures have not yet been converted
pending resolution of the transaction date dispute, which may
impact the number of shares of our stock to which the holder is
entitled upon conversion. See Note 12 to Detail of Financings.
The remainder of this page is intentionally left blank.
II-3
DETAIL OF RECENT FINANCINGS - JANUARY 2002 TO DECEMBER 16, 2004
CALYPTE SHARES
FINANCING TYPE AND CONVERSION GROSS NET TRANSACTION CLOSING ISSUED/ $
INVESTOR (1) FEATURE PROCEEDS PROCEEDS DATE PRICE REDEEMED (3)
- ------------ ------- -------- -------- ---- ----- ------------
12% CONVERTIBLE DEBENTURES
Bristol Investment Fund, Ltd. Lesser of (i) $425 $468 2/11/02 $ 7.50 1,019.4/$525
60% of the 100 5/11/02 $ 0.90
average of 3 ----
lowest closing
bid prices for
22 days
preceding
conversion or
(ii)$1.50
Class A Warrant Lesser of (i) $4 $4 2/11/02 $ 7.50 56.7/N/A
70% of the
average of
lowest 3
trading prices
for 20 days
preceding
conversion or
(ii)$3.45
Class B Warrant Lesser of (i) $33 $33 2/11/02 $ 7.50 400/N/A
70% of the ----- ----- ----------
average of
lowest 3
trading pricing
for 20 days
preceding
conversion or
(ii)$6.45
Total Bristol $562 $505 1,476.1/$525
===== ===== ============
8% CONVERTIBLE NOTES Lesser of
Alpha Capital Aktiengesellshaft (i) $3.00 or $500 5/24/02 $ 3.60 7,260.7/ $500
Stonestreet Limited Partnership (ii) 70% of $500 5/24/02 $ 3.60 7,075.7/ $500
Filter International Ltd. The average of $150 5/24/02 $ 3.60 2,452.4/ $150
Camden International Ltd. The 3 lowest $350 5/24/02 $ 3.60 5,279.1/ $350
Domino International Ltd. Trades for 30 $150 5/24/02 $ 3.60 1,767.4/ $150
Thunderbird Global Corporation days $ 75 5/24/02 $ 3.60 1,083.1/ $75
BNC Bach International Ltd. Preceding $200 5/24/02 $ 3.60 2,463.8/ $200
Excalibur Limited Partnership conversion $200 5/24/02 $ 3.60 1,678.9/ $200
Standard Resources Ltd. $100 5/24/02 $ 3.60 1,542.5/ $100
SDS Capital International Ltd. $300 7/10/02 $ 10.20 4,189.8/ $300
Camden International Ltd. $100 7/10/02 $ 10.20 1,707.9/ $100
Excalibur Limited Partnership $250 7/24/02 $ 6.60 4,238.3/ $250
Stonestreet Limited Partnership $250 8/21/02 $ 3.90 4,042.2/ $250
Alpha Capital Aktiengesellshaft $107 5/9/03 $ 0.63 1,302.5/ $107
---- -------------
Total 8% Convertible Notes $3,232 $2,594 46,084.3/ $3,232
====== ====== ================
II-4
CALYPTE SHARES
FINANCING TYPE AND CONVERSION GROSS NET TRANSACTION CLOSING ISSUED/ $
INVESTOR (1) FEATURE PROCEEDS PROCEEDS DATE PRICE REDEEMED (3)
- ------------ ------- -------- -------- ---- ----- ------------
OTHER RESTART FINANCINGS:
- -------------------------
10% CONVERTIBLE NOTE
- --------------------
BNC Bach International Ltd. 50% of the $ 150 $ 150 5/14/02 $4.20 2,217.8/ $150
(Note: on 7/14/02 the average of 3 $10.80 on
maturity date was extended lowest 7/14/02;
until 12/31/02; on December closing bid $1.92 on
27, 2002, the maturity date prices for 12/27/02;
was extended until January 22 days $1.80 on
15, 2003; on January 15, preceding 1/15/03;
2003 the maturity date was conversion $1.50 on
extended until March 17, 3/17/03;
2003, on March 17, 2003 the $0.99 on
maturity date was extended 4/2/03
until April 4, 2003; on $0.75 on
April 2, 2003, the maturity 4/30/03
date was extended until May
5, 2003; on April 30, 2003,
the maturity date was
subsequently extended until
May 10, 2004)(5)
8% CONVERTIBLE DEBENTURES
- -------------------------
Su So 80% of the $ 100 $ 90 6/17/02 $4.20 36.7 (4)/ $100
lower of the
average
closing bid
or trade
price for
the 5 days
preceding
conversion,
but not less
than $3.00
Jason Arasheben 70% of the $ 100 $ 90 7/03/02 $8.10 15.8 (4)/ $100
lower of the
average
closing bid
or trade
price for
the 5 days
preceding
conversion,
but not less
than $3.00
PIPE AT $1.50 PER SHARE
- -----------------------
Careen Ltd. $1.50 per $ 200 $ 200 8/28/02 $ 4.80 225.0/ N/A
Caledonia Corporate Group Share $ 200 $ 200 8/28/02 $ 4.80 225.0/ N/A
Limited
Total Other Restart
Financings $ 750 $ 730 2,720.3/ $350
===== ===== =============
II-5
CALYPTE SHARES
FINANCING TYPE AND CONVERSION GROSS NET TRANSACTION CLOSING ISSUED/ $
INVESTOR (1) FEATURE PROCEEDS PROCEEDS DATE PRICE REDEEMED (3)
- ------------ ------- -------- -------- ---- ----- ------------
MERCATOR 12% AND 10% DEBENTURES
(2)(3)
12% CONVERTIBLE DEBENTURES
- --------------------------
Mercator Momentum Fund, L.P. 85% of the $ 550 $345 (6) 9/12/02 $3.00 4,866.4(4)/$550
($2,000 total commitment) average of
the 3 lowest
Mercator assigned its rights to: trading
Alpha Capital AG prices for 250 250 7/24/03 $0.115 2,673.8/ $250
Gamma Opportunity Capital the 20 250 250 7/24/03 $0.115 2,685.6/ $250
Partners, LP trading days
Goldplate Investment Partners preceding 250 250 7/24/03 $0.115 2,673.8/ $250
Marr Technologies, B.V. (11) conversion 570 570 9/1/03 $0.498 5,181.8/ $570
-------- ----------
(8) 1,870 1,665
Dr. Khalid Ahmed 50 50 10/2/03 $1.310 84.6/ $50
Roger Suyama 20 20 10/2/03 $1.310 33.8/ $20
Logisticorp, Inc. 20 20 10/2/03 $1.310 -
Southwest Resource 40 (12) $1.310
-------- ----------
Preservation Inc. 40 $1,795 10/2/03 -
-------- ---------- ----------------
$ 2,000 (12) 18,199.8/ $1,940
-------- ----------------
Mercator Momentum Fund, L.P. 80% of the $300 $260 10/22/02 $3.90 0/ $300 (7)
average of
the 3 lowest
trading
prices for
the 20
trading days
preceding
conversion,
but not less
than $1.50
Mercator Momentum Fund L.P. (10) 70% of the $300 $245 4/29/03 $0.825 3,475.7/ $300
average of
the 3 lowest
trading
prices for
the 20
trading days
preceding
conversion,
but not more
than $1.20
Mercator warrant $3.00 per $0 $0 10/22/02 $3.90 0
share
10% CONVERTIBLE DEBENTURES
- --------------------------
Mercator Focus Fund, L.P. (10) 80% of the $1,000 $510 (6) 1/14/03 $1.92 7,941.1/ $1,000
average of
the 3 lowest
trading
prices for
the 20
trading days
preceding
conversion,
but not more
than $3.00
II-6
CALYPTE SHARES
FINANCING TYPE AND CONVERSION GROSS NET TRANSACTION CLOSING ISSUED/ $
INVESTOR (1) FEATURE PROCEEDS PROCEEDS DATE PRICE REDEEMED (3)
- ------------ ------- -------- -------- ---- ----- ------------
Mercator Momentum Fund, L.P. (10) 80% of the $450 $440 1/30/03 $1.86 2,857.7/ $450
average of
the 3 lowest
trading
prices for
the 20
trading days
preceding
conversion,
but not more
than $3.00
Mercator Focus Fund, L.P. (10) $400 3/13/03 $1.47 3,428.9/ $400
Mercator Momentum Fund III, L.P. 65% of the 100 1,626.3/ $100
--- -------------
average of $500 $400 5,055.2/ $500
---- ---- -------------
the 3 lowest
trading
prices for
the 20
trading days
preceding
conversion,
but not more
than $2.10
Total Mercator Debentures $4,550 $3,650 37,529.5/ $4,490
====== ====== ================
MARR PRIVATE PLACEMENTS
- -----------------------
PIPE AT $0.30 PER SHARE
Marr Technologies B.V. (9)(11) $0.30 per $2,500 $2,300 8/1/03 $0.152 8,333.3
share
PIPE AT $0.50 PER SHARE
Marr Technologies B.V. (9)(11) $0.50 per $10,000 $9,600 9/1/03 $0.498 20,000.0
------- ------ --------
share
Total Marr Private Placements $12,500 $11,900 28,333.3
======= ======= ========
MAY 2004 PRIVATE PLACEMENT
- --------------------------
PIPE AT $0.40 PER SHARE (13) Units
SF Capital Partners LP Issued at $4,000 $3,720 5/28/04 $0.50 10,000.0
Marr Technologies BV $0.40 per 3,000 2,910 5/28/04 $0.50 7,500.0
Proximity Fund LP share; 500 465 5/28/04 $0.50 1,250.0
Proximity Partners LP and 5 year 500 465 5/28/04 $0.50 1,250.0
MTB Small Cap Growth Fund warrant 500 465 5/28/04 $0.50 1,250.0
exercisable
$0.50
MTB Multi Cap Growth Fund per share 500 465 5/28/04 $0.50 1,250.0
Bridges & PIPES LLC 300 279 5/28/04 $0.50 750.0
------ ------- --------
Total May 2004 PIPE $9,300 $ 8,769 23,250.0
====== ======= ========
JULY 2004 PRIVATE PLACEMENT
- ---------------------------
PIPE AT $0.40 PER SHARE (13) Units
Sunrise Equity Partners, L.P. issued at $ 750 $698 7/9/04 $0.615 1,875.0
Amnon Mandelbaum $0.40 per 80 74 7/9/04 $0.615 200.0
David I. Goodfriend share; 5 8 7 7/9/04 $0.615 20.0
year
TCMP3 Partners warrant
exercisable 150 140 7/9/04 $0.615 375.0
United Capital Partners, LLC at $0.50 per
share 500 465 7/9/04 $0.615 1,250.0
--- --- -------
Total July 2004 PIPE $ 1,488 $ 1,384 3,720.0
======= ======= =======
II-7
- ---------------------
(1) The Bristol Debentures and Warrants, the 8% Convertible Notes, the
Other Restart Financings, the Mercator 12% and 10% Debentures and warrants, and
ther Common Stock underlying MTBV's 2003 PIPE's, the May 2004 and the July 2004
PIPEs were issued under exemptions provided by Regulation S or Regulation D.
With the exception of Marr Technologies B.V., which is an affiliate of the
Company based on its August and September 2003 PIPE investments and
participation in the May 2004 PIPE, none of the entities listed above is or has
been an affiliate of the Company. Other than Marr Technologies B.V. , all of the
listed investors were subject to ownership limitations restricting their
ownership of our stock to a maximum of 4.9% or 9.9%, depending on the specific
agreement.
(2) At December 16, 2004, the holders have converted all but $60,000 of
principal of the convertible debentures issued since September 2002. Based on
current market prices, we estimate that we would be required to issue
approximately 0.4 million additional shares of our common stock if the holders
elected to convert the remaining principal and accrued interest of their
debentures at this time. See also Note 12.
(3) On July 18, 2003, the registration statement for 52,500,000 shares
underlying the 8% Convertible Notes, the Other Restart Financings and $1,300,000
of the Mercator 12% and 10% Convertible Debentures became effective (File No.
333-106862). As a result of a decline in the market price of our stock
subsequent to the effective date of the July 2003 registration statement, the
number of shares registered was insufficient to permit the complete conversion
of the notes and debentures into registered shares. The shares underlying
certain of the convertible securities have become eligible for resale under Rule
144, and certain investors have availed themselves of that eligibility to
convert restricted shares issued pursuant to conversions into free-trading
shares. On July 8, 2004, the registration statement for 83,056,050 shares
underlying Marr Private Placements, the May 2004 PIPE, certain of the Mercator
12% Convertible Debentures, approximately 12.2 million additional shares
attributable to financings included in the July 2003 registration statement and
approximately 3.3 million shares issued or issuable to vendors consultants and
other parties who agreed to accept shares of our Common Stock in lieu of cash
became effective (File No. 333-116491). On July 28, 2004, the registration
statement for 6,472,800 shares of our Common Stock underlying the July 2004 PIPE
and related warrants became effective (File No. 333-117439).
(4) Includes fee shares.
(5) On April 30, 2003, when the market price of the common stock was
$0.75, we and BNC Bach amended the conversion price to eliminate a conversion
price ceiling of $1.50 per share and to increase the discount applicable to the
conversion price from 40% to 50%. In return for this modification of the
conversion price, BNC Bach agreed to extend the maturity of the note until May
10, 2004. BNC Bach subsequently converted the outstanding principal and accrued
interest into shares of our common stock.
(6) Reflects a 10% cash commitment fee on the entire $2 million
commitment paid to The Mercator Group less additional fees and expenses. We
registered shares underlying $1,300,000 of the total $2,000,000 commitment in
July 2003 and the shares underlying the final $700,000 of this commitment were
included in our June 2004 registration statement.
(7) In conjunction with the issuance of the $1 million 10% convertible
debenture to Mercator Focus Fund, L.P., we used the proceeds to repay the $0.3
million outstanding principal balance of the 12% convertible debenture
previously issued to Mercator Momentum Fund, L.P. plus accrued interest. The
balance of costs incurred represents transactional and legal fees.
(8) On March 31, 2003, when the market price of our Common Stock was
$0.885, we amended the conversion price to eliminate a conversion price floor of
$1.50 per share in return for an extension of time in which to register the
shares of common stock underlying the various Mercator financings.
(9) The Securities Purchase Agreements for both transactions between the
Company and Marr Technologies B.V. require that we provide cost-free
registration rights to Marr; however, Marr is subject to a one-year lock-up
provision following the transaction date with respect to the shares purchased.
(10) On January 14, 2004, when the market price of our common stock was
$0.60, we extended the maturity date of the following debentures until July 14,
2004:
o 10% Convertible Debenture dated January 14, 2003 issued to
Mercator Focus Fund, LP
o 10% Convertible Debenture dated January 30, 2003 issued to
Mercator Momentum Fund, LP
o 10% Convertible Debentures dated March 13, 2003 issued to
Mercator Focus Fund, and
o 12% Convertible Debenture dated April 29, 2003 issued to
Mercator Momentum Fund, LP.
In return for the extension of the maturity dates, we have agreed to pay an
additional extension fee equal to 2% of the outstanding principal balance per
month until the earlier of the extended maturity date or conversion. The
extension fee is payable 1% in cash and 1% in shares of our common stock.
Additionally, we agreed to file a registration statement including the shares
potentially applicable to the conversion of the outstanding debenture balances
by no later than April 29, 2004. On April 23, 2004, when the market price of our
Common Stock was $0.625, we and the various Mercator Funds agreed to extend
II-8
until May 14, 2004 the period for filing the registration statement including
the shares issued or potentially issuable upon conversion. On May 7, 2004, when
the market price of our common stock was $0.48 per share, we and the various
Mercator Funds agreed to further extend from May 14, 2004 until 21 days
following the closing of a private placement of equity financing of at least
$5,000,000, but in any case to no later than June 30, 2004, the period in which
we are required to file a registration statement including shares of our common
stock issued or potentially issuable upon conversion. Such shares were included
in our June 15, 2004 registration statement, which was declared effective on
July 8, 2004. All of the subject convertible debentures were converted prior to
the extended maturity date.
(11) On January 23, 2004, when the market price of our common stock was
$0.695, we and Marr agreed to extend the registration rights period attributable
to 5,181,818 shares of our common stock issued in conjunction with Marr's
conversion of $570,000 principal amount of the Company's 12% Convertible
Debentures from February 27, 2004 to April 29, 2004. In return for the
extension, we agreed to include in our next registration statement an aggregate
of 28,333,333 shares of our common stock purchased by Marr in PIPE transactions
in the third quarter of 2003. On April 23 2004, when the market price of the
Common Stock was $0.625, we MTBV agreed to extend until May 14, 2004 the period
for filing the registration statement including the shares issued to MTBV upon
conversion of the 12% convertible debenture and in the 2003 PIPE transactions.
On May 7 2004, when the market price of our common stock was $0.48 per share,
MTBV agreed to further extend from May 14, 2004 until 21 days following the
closing of a private placement of equity financing of at least $5,000,000, but
in any case to no later than June 30, 2004, the period in which we are required
to file a registration statement including shares of our common stock issued to
MTBV upon conversion of the 12% convertible debenture and in the 2003 PIPE
transactions. Such shares were included in our June 15, 2004 registration
statement, which was declared effective on July 8, 2004.
(12) The holders claim an earlier transaction date with respect to a
conversion of the debentures, which we dispute. These debentures have not yet
been converted. Assuming immediate conversion at the earlier, disputed
transaction date, the number of shares of common stock issuable to Logisticorp
and Southwest Resource Preservation would be 213,903 and 427,807, respectively.
While reserving our rights with repect to the number of shares calculated as
issuable based on the disputed transaction date, we registered that number of
shares of Common Stock in our June 15, 2004 registration statement pending
resolution of the dispute. The ultimate resolution of the transaction date
dispute may determine the number of shares of our stock to which the holder is
entitled upon conversion.
(13) The shares issued pursuant to the May 2004 PIPE and the July 2004
PIPE and the related warrants for each have an anti-dilution feature that will
require us to issue additional shares to the PIPE investors and modify their
warrants if we subsequently issue additional equity at a per share price of less
than $0.40 for a period of one year from the respective closing dates, except
under the provisions of previously outstanding convertible debt, option plans,
or option or warrant agreements.
Marr Credit Facility
On November 13, 2003, when the market price of our common stock was $0.88 per
share, we and Marr, our largest stockholder, entered into an agreement in which
Marr agreed to provide us up to an aggregate of $10,000,000 (the "Marr Credit
Facility") pursuant to promissory notes that we may issue to Marr on an
as-needed basis (the "Notes"). Each Note will bear interest at the rate of 5%
per annum and will have a 12-month term. The Marr Credit Facility was available
during the period beginning on February 28, 2004 and ending on May 31, 2004. The
aggregate amount available under the Marr Credit Facility is proportionally
reduced by the amount of any equity financing obtained by the Company during the
term of the Marr Credit Facility. Marr has participation rights in any such
equity financing on the same terms as the other investors. The Marr Credit
Facility provided for earlier termination as of March 31, 2004, if we failed to
have our common stock listed on an established stock exchange by that date.
Moreover, upon the failure to obtain such stock exchange listing, any
outstanding Notes would be due and payable on April 30, 2004. As consideration
for the Marr Credit Facility, we issued to a party designated by Marr a warrant
to purchase 375,000 shares of our common stock at an exercise price of $0.80 per
share. The warrant is immediately exercisable and expires two years after
issuance on November 12, 2005.
On March 19, 2004, when the market price of our common stock was $0.575 per
share, we and Marr amended the Marr Credit Facility to increase the aggregate
amount available under the Marr Credit Facility to $15,000,000 and to eliminate
the termination provision upon failure to have the common stock listed on an
established stock exchange by March 31, 2004. As additional consideration for
the amendment of the Marr Credit Facility, we issued to a party designated by
Marr an additional warrant to purchase 400,000 shares of our common stock at an
exercise price of $0.46 per share. This warrant is immediately exercisable and
expires two years from its date of issuance on March 18, 2006.
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On May 26, 2004, when the market price of the Common Stock was $0.46 per share,
we and MTBV again amended the Marr Credit Facility whereby MTBV has committed to
subscribe for up to $5,000,000 of Promissory Notes that we may issue through
December 31, 2004, should our Board of Directors unanimously approve the
issuance of one or more such notes before the commitment period expires. Marr
currently has two designated representatives serving on our Board of Directors.
Any Notes issued pursuant to this second amendment will bear interest at 9% per
annum and will have a maturity date of May 31, 2005. The $5,000,000 amount
available under the amended Marr Credit Facility is reduced by the amount of any
equity financing obtained by the Company after the May 26, 2004 effective date
of the second amendment and through the December 31, 2004 commitment period,
exclusive of the proceeds from the May 2004 Private Placement. Accordingly, the
commitment has been reduced to approximately $3.6 million as a result of the
closing of the July 2004 PIPE. As consideration for the extension of the
commitment period reflected in the second amendment of the Marr Credit Facility,
we issued to MTBV a warrant to purchase 500,000 shares of our Common Stock at an
exercise price of $0.40 per share. This warrant is immediately exercisable and
expires two years from its date of issuance on May 26, 2006. The shares
underlying these three warrants were included in our June 15, 2004 registration
statement. At December 16, 2004, we have issued no Notes under the Marr Credit
Facility.
Warrants, Options and Stock Grants
Since January 2002, we have entered into various contracts and agreements with
consultants who have agreed to accept payment for their services in the form of
warrants, options and/or stock grants. We have obtained various services under
these arrangements, including legal, financial, business advisory, and other
services including business introductions and arrangements with respect to
potential domestic and international product placement and the development of
potentially synergistic relationships with appropriate public service or other
governmental and non-governmental organizations. We have generally issued the
warrants at a discount to the then-current market price and have registered the
shares underlying the warrants, options and stock grants on Form S-8
Registration Statements for resale by the consultants. We have, since January
2002, issued approximately 10.5 million shares of our common stock as a result
of warrant or option exercises and stock grants related to these consulting
agreements, of which approximately 7.9 million shares were issued during 2003.
In May 2002, we issued warrants and options to purchase 633,333 shares of our
common stock under agreements with consultants to perform legal, financial,
business advisory and other services associated with the restart of our
operations. The warrants were issued at $0.45 per share on May 9, 2002 when the
market price of our common stock was $0.90 per share. The option was granted at
$0.90 per share on May 10, 2002, when the market price of our common stock was
$0.90 per share. All of the warrant and option grants were non-forfeitable and
fully-vested at the date of issuance and were registered for resale by the
consultants under Form S-8. The consultants exercised all the warrants and
options and we issued 633,333 shares and received proceeds of $292,500. All but
one of the consulting agreements discussed above expired in August 2002 and we
entered into new agreements with certain of the consultants for legal,
financial, business advisory, and other services including introductions and
arrangements with respect to potential domestic and international product
development of synergistic relationships with appropriate public service
organizations. In November 2002, we issued warrants to purchase 950,000 shares
of our common stock and stock grants for 70,000 shares of our stock to
consultants under the terms of these new agreements. We issued 350,000 warrants
at an exercise price of $1.50 per share on November 1, 2002, when the market
price of our stock was $4.20 per share. We issued an additional 600,000 warrants
at an exercise price of $1.50 on November 20, 2002, when the market price of our
common stock was $2.70. All of the warrant grants were non-cancelable and
fully-vested at the date of issuance and were registered for resale by the
consultants under Form S-8. By February 2003, the consultants had exercised all
the warrants and we had received aggregate proceeds of $1.425 million. We issued
986,667 shares of our common stock pursuant to the exercises of the November
2002 warrant and stock grants.
In January and February 2003, we entered into new contracts and extended certain
other contracts with existing consultants to perform services as described
above. On February 14, 2003, when the market price of our stock was $2.01, we
issued warrants exercisable at $1.50 per share and stock grants for an aggregate
of 975,216 shares of our common stock as compensation for these services. The
warrants were non-cancelable and fully-vested at the date of issuance. By May
31, 2003, the consultants had exercised warrants to purchase all of the shares
granted to them and we had received proceeds of $0.8 million.
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During March 2003, when the market price of our stock ranged from $1.32 to $1.50
per share, we issued warrants exercisable at $0.75 per share and stock grants
for an aggregate of 1,350,400 as compensation for services under new or extended
contracts. The warrants were non-cancelable and fully-vested at the date of
issuance. By May 31, 2003, the consultants had exercised warrants to purchase
all of the shares granted to them and we had received proceeds of approximately
$0.9 million.
In April 2003, when the price of our stock ranged from $0.81 to $0.885 per
share, we entered into additional contracts, extended certain contracts, and
modified certain other contracts with existing consultants who agreed to settle
a portion of the outstanding balance due for services under their contracts in
stock. We issued warrants at $0.75 per share and stock grants for an aggregate
of 1,490,600 shares of our common stock as compensation or settlement for these
services. The warrants were non-cancelable and fully-vested at the date of
issuance. By May 31, 2003, the consultants had exercised warrants to purchase
all of the shares granted to them and we had received proceeds of approximately
$0.1 million.
In May 2003, when the price of our stock ranged from $0.552 to $0.576 per share,
we again entered into new contracts, extended certain contracts, and modified
certain other contracts with existing consultants who agreed to settle a portion
of the outstanding balance due for services under their contracts in shares of
stock. We issued warrants at $0.30 per share and stock grants for an aggregate
of 2,080,305 shares of our common stock as compensation or settlement for these
services. The warrants were non-cancelable and fully-vested at the date of
issuance. By September 30, 2003, the consultants had exercised warrants to
purchase all of the shares granted to them and we had received proceeds of
approximately $0.5 million.
In July 2003, when the price of our stock ranged from $0.11 to $0.30 per share,
we extended a contract for consulting and other services and granted the
consultant a warrant to purchase 722,500 shares of our common stock at 50% of
the closing market price on the date of any exercise as compensation under the
contract. The warrant was granted as fully-vested and expired on September 30,
2003. By September 30, 2003, the consultant had exercised the entire warrant at
prices ranging from $0.08 to $0.61 per share and we had received proceeds of
approximately $0.4 million. Also during July 2003, we issued stock grants to
consultants for an aggregate of 356,344 shares of our common stock as
compensation under their contracts.
On August 20, 2003, when the price of our stock was $0.18 per share, we issued
consulting contracts to two new consultants pursuant to which we issued warrants
for 100,000 shares each, exercisable at $0.18 per share. The warrants were
non-cancelable and fully-vested at the date of issuance. In December 2004, one
of the consultants exercised warrants to purchase 100,000 shares of our common
stock. At December 16, 2004, the other consultant has not exercised any of the
warrants granted to him.
In September 2003, when the price of our stock ranged from $0.50 to $1.80 per
share, we issued an aggregate of 800,000 shares of our common stock to
consultants and other service providers who agreed to take shares of stock in
lieu of cash as compensation under their contracts.
In October and November 2003, when the price of our stock ranged from $0.53 to
$1.65 per share, we issued an aggregate of 125,000 shares of our common stock to
consultants and other service providers who agreed to take shares of stock in
lieu of cash as compensation under their contracts.
In February 2004, when the price of our stock was $0.67 per share, we issued
500,000 shares of our common stock to a consultant who had agreed to accept
shares of stock as a portion of its compensation under a consulting agreement.
We issued approximately 67,000 additional shares of our common stock during the
first quarter of 2004 to another consultant under the terms of a long-term
consulting agreement.
In May 2004, when the price of our stock was $0.465 per share, we issued
warrants to purchase 150,000 shares of our common stock at an exercise price of
$0.50 as a portion of the compensation under a consulting contract. The warrants
were exercisable immediately and remain so for a period of five years.
In June 2004, when the price of our stock was $0.52 per share, we issued 250,000
shares of our common stock to a consultant who had agreed to accept shares of
stock as a portion of its compensation under a consulting agreement.
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To conserve cash and to obtain goods and services, the Company may continue to
issue options and warrants at discounts to market or issue direct stock grants.
In the event that the Company issues additional options and warrants, it is
anticipated that the securities will contain cost-free registration rights which
will be granted to holders of the options and warrants, and that there may be
dilution to the Company's existing stockholders.
Capital Lease
In September 2004, when the price of our stock was $0.38 per share, we entered
into a lease for $500,000 of equipment used in our Rockville, Maryland
manufacturing facility. The lease has a minimum term of 3 years with an
extension option of 3 months, and requires monthly payments of $17,250 during
the initial term and extension periods. In conjunction with the lease, we issued
to the lessor a warrant to purchase 55,000 shares of our common stock at a price
of $0.4060 per share. The warrant is exercisable for a period of three years.
Intellectual Property and Equipment
Purchase Using Stock
On September 30, 2004, when the market price of our common stock was $0.39 per
share and pursuant to Regulation S, we entered into the License Agreement
pursuant to which we are required to pay to Ani Biotech an aggregate of
1,232,840 Euros (approximately US $1,500,000) in either our common stock or cash
to acquire certain licenses and manufacturing equipment. On September 30, 2004,
we issued 1,172,205 restricted shares of our common stock to Ani, representing
the first installment under the License Agreement. These shares are being
registered in this registration statement. Subsequent installments under the
License Agreement are due over the next several months, beginning five days
following the effectiveness of this registration statement. Such payments may be
paid in registered shares of our common stock, or in cash, at our sole
discretion. Should we elect to file a subsequent registration statement
registering such shares, the License Agreement provides that we would issue such
shares of our Common Stock to Ani Biotech at a price equal to the average
closing price of our Common Stock as quoted on the American Stock Exchange for
the five days immediately preceding the transfer, but not at less than $0.40 per
share.
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ITEM 27. EXHIBITS.
The exhibits filed as part of this Agreement, Registration Statement are as
dated as of follows:
2.1 Asset Purchase Agreement, dated as of November 18, 1998, between
Calypte and Cambridge; incorporated by reference from an exhibit filed
with the Company's Report on Form 8-K dated December 16, 1998.
3.1 Bylaws of the Registrant, as amended on January 19, 2004. incorporated
by reference from an exhibit filed with the Company's Quarterly report
on Form 10-QSB/A (No. 1) dated January 29, 2004.
3.2 Restated Certificate of Incorporation of Calypte Biomedical
Corporation, a Delaware corporation, filed July 31, 1996; incorporated
by reference from an exhibit filed with the Company's Report on Form
10-K dated March 28, 1997.
3.3 Certificate of Amendment of the Amended and Restated Certificate of
Incorporation of Calypte Biomedical Corporation effective as of
February 14, 2003 incorporated by reference from an exhibit filed with
the Company's Report on Form 10-K dated March 26, 2003.
3.4 Certificate of Amendment of the Amended and Restated Certificate of
Incorporation of Calypte Biomedical Corporation, effective as of May
27, 2003.
3.5 Certificate of Correction of Calypte Biomedical Corporation, effective
as of May 28, 2003.
4.1 Rights Agreement between the Registrant and Chase Mellon Shareholders
L.L.C. as Rights Agents dated December 15, 1998; incorporated by
reference from an exhibit filed with the Company's Report on Form 8-K
dated December 16, 1998.
5.1 Opinion of Baratta & Goldstein.
10.1 Form of Indemnification Agreement between the Company and each of its
directors and officers, as amended January 19, 2004.
10.2 1991 Incentive Stock Plan; incorporated by reference from exhibits
filed with the Company's Registration Statement on Form S-1 (File No.
333-04105) filed on May 20, 1996, as amended to June 25, 1996, July 15,
1996 and July 26, 1996.
10.3 1995 Director Option Plan, as amended effective May 20, 2003;
incorporated by reference from an exhibit filed with the Company's
Registration Statement on Form S-8 (File No. 333-106389) dated June 23,
2003.
10.4 1995 Employee Stock Purchase Plan, amended as of May 20, 2003;
incorporated by reference from an exhibit filed with the Company's
Registration Statement on Form S-8 (File No. 333-106389) dated June 23,
2003.
10.9 Standard Form Lease 1255-1275 Harbor Bay Parkway Harbor Bay Business
Park between Commercial Center Bank and the Registrant, dated as of
August 22, 1992; incorporated by reference from exhibits filed with the
Company's Registration Statement on Form S-1 (File No. 333-04105) filed
on May 20, 1996, as amended to June 25, 1996, July 15, 1996 and July
26, 1996.
10.15^ License Agreement between the Registrant and New York University, dated
as of August 13, 1993; incorporated by reference from exhibits filed
with the Company's Registration Statement on Form S-1 (File No.
333-04105) filed on May 20, 1996, as amended to June 25, 1996, July 15,
1996 and July 26, 1996.
10.16 First Amendment to License Agreement between the Registrant and New
York University, dated as of January 11, 1995; incorporated by
reference from exhibits filed with the Company's Registration Statement
on Form S-1 (File No. 333-04105) filed on May 20, 1996, as amended to
June 25, 1996, July 15, 1996 and July 26, 1996.
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10.17 Second Amendment to License Agreement between the Registrant and New
York University, dated as of October 15, 1995; incorporated by
reference from exhibits filed with the Company's Registration Statement
on Form S-1 (File No. 333-04105) filed on May 20, 1996, as amended to
June 25, 1996, July 15, 1996 and July 26, 1996..
10.18^ Third Amendment to License Agreement between the Registrant and New
York University, dated as of January 31, 1996; incorporated by
reference from exhibits filed with the Company's Registration Statement
on Form S-1 (File No. 333-04105) filed on May 20, 1996, as amended to
June 25, 1996, July 15, 1996 and July 26, 1996.
10.21^ Sublicense Agreement between the Registrant and Cambridge Biotech
Corporation, dated as of March 31, 1992; incorporated by reference from
exhibits filed with the Company's Registration Statement on Form S-1
(File No. 333-04105) filed on May 20, 1996, as amended to June 25,
1996, July 15, 1996 and July 26, 1996.
10.22^ Master Agreement between the Registrant and Cambridge Biotech
Corporation, dated as of April 12, 1996; incorporated by reference from
exhibits filed with the Company's Registration Statement on Form S-1
(File No. 333-04105) filed on May 20, 1996, as amended to June 25,
1996, July 15, 1996 and July 26, 1996.
10.23^ Sub-License Agreement between the Registrant and Cambridge Biotech
Corporation, dated as of April 12, 1996; incorporated by reference from
exhibits filed with the Company's Registration Statement on Form S-1
(File No. 333-04105) filed on May 20, 1996, as amended to June 25,
1996, July 15, 1996 and July 26, 1996.
10.24^ Agreement between the Registrant and Repligen Corporation, dated as of
March 8, 1993; incorporated by reference from exhibits filed with the
Company's Registration Statement on Form S-1 (File No. 333-04105) filed
on May 20, 1996, as amended to June 25, 1996, July 15, 1996 and July
26, 1996.
10.25^ Non-Exclusive License Agreement between the Registrant and The Texas
A&M University System, dated as of September 12, 1993; incorporated by
reference from exhibits filed with the Company's Registration Statement
on Form S-1 (File No. 333-04105) filed on May 20, 1996, as amended to
June 25, 1996, July 15, 1996 and July 26, 1996.
10.33 Form of Option Agreement for Stockholders of Pepgen Corporation, dated
as of October 12, 1995; incorporated by reference from exhibits filed
with the Company's Registration Statement on Form S-1 (File No.
333-04105) filed on May 20, 1996, as amended to June 25, 1996, July 15,
1996 and July 26, 1996.
10.41 Second Addendum to Lease between the Registrant and Commercial Center
Bank dated as of July 21, 1997; incorporated by reference from exhibits
filed with the Company's Report on Form 10-K dated March 25, 1998.
10.51 Non-Exclusive Patent and License Agreement between the Registrant and
Public Health Service, dated June 30, 1999; incorporated by reference
from an exhibit filed with the Company's Report on Form 10-Q dated
November 15, 1999.
10.55 Master Lease Agreement between Aquila Biopharmaceuticals, Inc.,
Landlord, and Biomerieux Vitek, Inc., Tenant, dated as of October 22,
1996; incorporated by reference from an exhibit filed with the
Company's Report on Form 10-K dated March 30, 2000.
10.56 First Amendment to Lease between Aquila Biopharmaceuticals, Inc.
Landlord, and Biomerieux Vitek, Inc., Tenant, dated October 2, 1997;
incorporated by reference from an exhibit filed with the Company's
Report on Form 10-K dated March 30, 2000.
10.57 Sublease Agreement between Registrant and Cambridge Biotech
Corporation, assignee of Biomerieux, Inc. dated as of December 17,
1998; incorporated by reference from an exhibit filed with the
Company's Report on Form 10-K dated March 30, 2000.
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10.58 Sublease Agreement between Registrant and Cambridge Biotech
Corporation, sub-lessee of DynCorp, dated as of December 17, 1998;
incorporated by reference from an exhibit filed with the Company's
Report on Form 10-K dated March 30, 2000.
10.62 Employment Agreement between the Registrant and Nancy E. Katz, dated as
of October 18, 1999; incorporated by reference from an exhibit filed
with the Company's Report on Form 10-K dated March 30, 2000.
10.66 Restated Technology Rights Agreement between Registrant and Howard B.
Urnovitz, Ph.D. dated as of March 1, 2000; incorporated by reference
from an exhibit filed with the Company's Report on Form 10-Q dated May
12, 2000.
10.67 Technology Rights Agreement between Registrant and Chronix Biomedical
dated as of March 1, 2000; incorporated by reference from an exhibit
filed with the Company's Report on Form 10-Q dated May 12, 2000.
10.70^ Distribution Agreement between the Registrant and Biobras S.A., dated
as of May 11, 2000; incorporated by reference from an exhibit filed
with the Company's Report on Form 10-Q dated August 10, 2000.
10.73^ Fourth Amendment to the License Agreement between the Registrant and
New York University, dated as of June 1, 2000; incorporated by
reference from an exhibit filed with the Company's Report on Form 10-Q
dated August 10, 2000.
10.74 2000 Equity Incentive Plan, amended as of May 20, 2003; incorporated by
reference from an exhibit filed with the Company's Registration
Statement on Form S-8 (File No. 333-106389) dated June 23, 2003.
10.79 Convertible Debentures and Warrants Purchase Agreement between the
Registrant and AMRO International, S.A. dated January 22, 2001;
incorporated by reference from an exhibit filed with the Company's
Registration Statement on Form S-3 (File No. 333-58960) filed on April
13, 2001.
10.84 Stock Purchase Warrant to purchase common stock dated January 24, 2001
issued to Townsbury Investments Limited; incorporated by reference from
an exhibit filed with the Company's Registration Statement on Form S-2
(File No. 333-54316) filed on January 25, 2001, as amended on February
9, 2001.
10.85 Common Stock Purchase Agreement between Calypte and Townsbury
Investments Limited dated November 2, 2000; incorporated by reference
from an exhibit filed with the Company's Registration Statement on Form
S-2 (File No. 333-54316) filed on January 25, 2001, as amended on
February 9, 2001.
10.86 Registration Rights Agreement between Calypte and Townsbury Investments
Limited dated November 2, 2000; incorporated by reference from an
exhibit filed with the Company's Registration Statement on Form S-2
(File No. 333-54316) filed on January 25, 2001, as amended on February
9, 2001.
10.87 Escrow Agreement among Calypte, Townsbury Investments Limited and
Epstein, Becker & Green, P.C. dated November 2, 2000; incorporated by
reference from an exhibit filed with the Company's Registration
Statement on Form S-2 (File No. 333-54316) filed on January 25, 2001,
as amended on February 9, 2001.
10.88 Amendment to Common Stock Purchase Agreement between Calypte and
Townsbury Investments Limited dated January 24, 2001; incorporated by
reference from an exhibit filed with the Company's Registration
Statement on Form S-2 (File No. 333-54316) filed on January 25, 2001,
as amended on February 9, 2001.
10.91 Third Addendum to Lease between the Registrant and Gee-Aspora LLC dated
as of October 31, 2001; incorporated by reference from an exhibit filed
with the Company's Report on Form 10-K dated March 11, 2002.
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10.92 Registration Rights Agreement between the Registrant and AMRO
International, S.A. dated January 22, 2001; incorporated by reference
from an exhibit filed with the Company's Registration Statement on Form
S-3 (File No. 333-58960) filed on April 13, 2001.
10.93 Escrow Agreement between the Registrant and AMRO International, S.A.
dated January 22, 2001; incorporated by reference from an exhibit filed
with the Company's Registration Statement on Form S-3 (File No.
333-58960) filed on April 13, 2001.
10.94 Stock Purchase Warrant to purchase common stock issued to AMRO
International, S.A. on January 24, 2001; incorporated by reference from
an exhibit filed with the Company's Registration Statement on Form S-3
(File No. 333-58960) filed on April 13, 2001.
10.95 6% Convertible Debenture in the principal amount of $550,000, due April
26, 2001, issued to AMRO International, S.A. ; incorporated by
reference from an exhibit filed with the Company's Registration
Statement on Form S-3 (File No. 333-58960) filed on April 13, 2001
10.96 6% Convertible Debenture in the principal amount of $550,000, due June
11, 2001, issued to AMRO International, S.A. ; incorporated by
reference from an exhibit filed with the Company's Registration
Statement on Form S-3 (File No. 333-58960) filed on April 13, 2001
10.97 Common Stock Purchase Agreement between Calypte and Townsbury
Investments Limited dated August 23, 2001; incorporated by reference
from an exhibit filed with the Company's Registration Statement on Form
S-2 (File No. 333-72268) filed on October 26, 2001.
10.98 Registration Rights Agreement between Calypte and Townsbury Investments
Limited dated August 23, 2001; incorporated by reference from an
exhibit filed with the Company's Registration Statement on Form S-2
(File No. 333-72268) filed on October 26, 2001.
10.99 Escrow Agreement among Calypte, Townsbury Investments Limited and New
York Escrow Services, LLC dated August 23, 2001; incorporated by
reference from an exhibit filed with the Company's Registration
Statement on Form S-2 (File No. 333-72268) filed on October 26, 2001.
10.100 Stock Purchase Warrant to purchase Common Stock dated October 19, 2001
issued to Townsbury Investments Limited; incorporated by reference from
an exhibit filed with the Company's Registration Statement on Form S-2
(File No. 333-72268) filed on October 26, 2001.
10.101 Securities Purchase Agreement between the Registrant and Bristol
Investment Fund, Ltd. Dated as of February 11, 2002; incorporated by
reference from an exhibit filed with the Company's Report on Form 8-K
dated February 15, 2002.
10.102 Registration Rights Agreement between the Registrant and Bristol
Investment Fund, Ltd. Dated as of February 11, 2002; incorporated by
reference from an exhibit filed with the Company's Report on Form 8-K
dated February 15, 2002.
10.103 Security Agreement between the Registrant and Bristol Investment Fund,
Ltd. Dated as of February 11, 2002; incorporated by reference from an
exhibit filed with the Company's Report on Form 8-K dated February 15,
2002.
10.104 Form of Secured Convertible Debenture Securities Purchase Agreement
between the Registrant and Bristol Investment Fund, Ltd. Dated as of
February 11, 2002; incorporated by reference from an exhibit filed with
the Company's Report on Form 8-K dated February 15, 2002.
10.105 Class A Stock Purchase Warrant for 56,667 shares of Common Stock issued
to Bristol Investment Fund, Ltd.; incorporated by reference from an
exhibit filed with the Company's Report on Form 8-K dated February 15,
2002.
10.106 Class B Stock Purchase Warrant for 400,000 shares of Common Stock
issued to Bristol Investment Fund, Ltd.; incorporated by reference from
an exhibit filed with the Company's Report on Form 8-K dated February
15, 2002.
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10.107 Stock Purchase Warrant for 283 shares of Common Stock issued to
Alexander Dunham Capital Group, Inc.; incorporated by reference from an
exhibit filed with the Company's Report on Form 8-K dated February 15,
2002.
10.108 Stock Purchase Warrant for 2,550 shares of Common Stock issued to
Bristol Capital, LLC. ; incorporated by reference from an exhibit filed
with the Company's Report on Form 8-K dated February 15, 2002.
10.109 Form of Common Stock Purchase Agreement between the Registrant and
certain Purchasers dated November 13, 2001; incorporated by reference
from an exhibit filed with the Company's Report on Form 10-K dated
March 11, 2002.
10.110 Form of Common Stock Purchase Agreement with certain trade creditors
issued pursuant to a private placement completed on February 12, 2002;
incorporated by reference from an exhibit filed with the Company's
Report on Form 10-K dated March 11, 2002.
10.111 Form of Subscription Agreement and 8% Convertible Note; incorporated by
reference from an exhibit filed with the Company's Report on Form 8-K
dated June 3, 2002.
10.112 Form of Subscription Agreement and 8% Convertible Note Issued July 17,
2002 by Registrant; incorporated by reference from an exhibit filed
with the Company's Report on Form 10-Q dated August 14, 2002.
10.113 Employment Agreement between the Registrant and Anthony J. Cataldo
dated May 10, 2002; incorporated by reference from an exhibit filed
with the Company's Report on Form 10-Q dated August 14, 2002.
10.114 Amendment to Non-Exclusive Patent and License Agreement between
Registrant and Public Health Service, dated April 5, 2002; incorporated
by reference from an exhibit filed with the Company's Report on Form
10-Q dated August 14, 2002.
10.115 Investment Commitment Arrangement with Cataldo Investment Group;
incorporated by reference from an exhibit filed with the Company's
Report on Form 8-K dated November 12, 2002.
10.116 Term Sheet for Mercator Momentum Fund LP and Form of Registration
Rights Agreement; incorporated by reference from an exhibit filed with
the Company's Report on Form 8-K dated November 12, 2002.
10.117 Form of Subscription Agreement under Regulation S for Caledonia
Corporate Group Ltd. And Careen Ltd.; incorporated by reference from an
exhibit filed with the Company's Report on Form 8-K dated November 12,
2002
10.118 Bi-Coastal Consulting, Inc. Agreements; incorporated by reference from
an exhibit filed with the Company's Report on Form 8-K dated November
12, 2002.
10.119 Employment Agreement between the Registrant and Nancy E. Katz, dated
October 31, 2002; incorporated by reference from an exhibit filed with
the Company's Report on Form 10-Q dated November 14, 2002.
10.120 12% Convertible Debenture Agreement and related Warrant and
Registration Rights Agreement dated as of October 22, 2002 between
Registrant and Mercator Momentum Fund, L.P.; incorporated by reference
from an exhibit filed with the Company's Report on Form 8-K dated
December 10, 2002.
10.121 Distribution Agreement between the Registrant and Zhong Yang Pute Co.
dated as of October 10, 2002; incorporated by reference from an exhibit
filed with the Company's Report on Form 10-Q/A (No.3) dated February 4,
2003.
10.122 Amendment to Agreement with Mercator Momentum Fund dated as of December
23, 2002; incorporated by reference from an exhibit filed with the
Company's Report on Form 8-K/A dated January 21, 2003.
10.123 10% convertible Debenture and related Registration Rights Agreement
dated as of January 14, 2003 between Registrant and Mercator Focus
Fund, L.P.; incorporated by reference from an exhibit filed with the
Company's Report on Form 8-K dated January 21, 2003.
II-17
10.124 Distribution and Usage Memorandum of Understanding between Registrant
and Safe Blood for Africa Foundation, dated as of December 10, 2002;
incorporated by reference from an exhibit filed with the Company's
Registration Statement on Form S-2/A (No. 5) (File No. 333-84660) dated
February 4, 2003.
10.125 Employment Agreement between Registrant and Richard D. Brounstein dated
as of January 1, 2003; incorporated by reference from an exhibit filed
with the Company's Annual Report on Form 10-K dated March 26, 2003.
10.126 Letter Agreement between Registrant and Nancy E. Katz dated February
14, 2003; incorporated by reference from an exhibit filed with the
Company's Annual Report on Form 10-K dated March 26, 2003.
10.127 Letter Agreement between Registrant and Bristol Investment Fund, Ltd.
Dated February 28, 2003; incorporated by reference from an exhibit
filed with the Company's Annual Report on Form 10-K dated March 26,
2003.
10.128 2003 Non-Qualified Stock Option Plan; incorporated by reference from an
exhibit filed with the Company's Registration Statement on Form S-8
(File No. 333-106387) dated June 23, 2003.
10.129 Consulting Agreement between Registrant and Junebug Enterprises
effective as of April 23, 2003; incorporated by reference from an
exhibit filed with the Company's Report on Form 10-QSB dated August 14,
2003.
10.130 Employment Agreement between Registrant and Jay Oyakawa, dated as of
August 12, 2003; incorporated by reference from an exhibit filed with
the Company's Report on Form 10-QSB dated August 14, 2003.
10.131 Separation Agreement, Mutual Release and Waiver of Claims between
Registrant and Nancy E. Katz, effective as of June 27, 2003;
incorporated by reference from an exhibit filed with the Company's
Report on Form 10-QSB dated August 14, 2003.
10.132 Subscription Agreement between Registrant and Marr Technologies B.V.
dated as of August 1, 2003 incorporated by reference from an exhibit
filed with the Company's Report on Form 10-QSB dated August 14, 2003.
10.133 Subscription Agreement between the Company and Marr Technologies B.V.
for 20,000,000 shares of Registrant's Common Stock dated August 28,
2003; incorporated by reference from an exhibit filed with the
Company's Report on Form 8-K dated September 12, 2003.
10.134 Agreement for Commitment to Purchase Aggregate of $10,000,000 of 5%
Promissory Notes between the Company and Marr Technologies B.V. dated
November 13, 2003; incorporated by reference from an exhibit filed with
the Company's Report on Form 10-QSB dated November 14, 2003.
10.135 Separation Agreement and Release between the Company and Jay Oyakawa
dated January 19, 2004; incorporated by reference from an exhibit filed
with the Company's Report on Form 10-QSB/A (No. 1) dated January 29,
2004.
10.136 Employment Agreement between the Company and J. Richard George
effective as of January 20, 2004; incorporated by reference from an
exhibit filed with the Company's Annual Report on Form 10-KSB dated
March 29, 2004.
10.137 Lease Agreement between the Company and ARE-1500 East Gude LLC dated as
of March 1, 2004; incorporated by reference from an exhibit filed with
the Company's Annual Report on Form 10-KSB dated March 29, 2004.
10.138 Amendment No. 1 to Agreement for Commitment to Purchase Aggregate of
$10,000,000 of 5% Promissory Notes between the Company and Marr
Technologies B.V. dated March 19, 2004 incorporated by reference from
an exhibit filed with the Company's Report on Form 8-K dated March 19,
2004.
II-18
10.139 Common Stock Purchase Warrant to Purchase 400,000 Shares of Common
Stock between the Company and Boodle Hatfield dated March 19, 2004
incorported by reference from filed as an exhibit with the Company's
Report on Form 8-K dated March 19, 2004
10.140 Amendment No. 1 to Separation Agreement and Release between the Company
and Jay Oyakawa dated February 25, 2004 incorporated by reference from
filed as an exhibit with the Company's Quarterly Report on Form 10-QSB
dated May 13, 2004.
10.141 Form of Securities Purchase Agreement between the Company and the
investors in the May 2004 PIPE financing incorporated by reference from
an exhibit filed with the Company's Report on Form 8-K on June 1, 2004.
10.142 Form of Registration Rights Agreement between the Company and the
investors in the May 2004 PIPE financing incorporated by reference from
an exhibit filed with the Company's Report on Form 8-K on June 1, 2004.
10.143 Form of Warrant between the Company and the investors in the May 2004
PIPE financing incorporated by reference from an exhibit filed with the
Company's Report on Form 8-K on June 1, 2004
10.144 Amendment No. 2 to Agreement for Commitment to Purchase Aggregate of
$10,000,000 of 5% Promissory Notes between the Company and Marr
Technologies B.V. effective May 26, 2004, incorporated by reference
from an exhibit filed with the Company's report on Form 8-K on June 3,
2004.
10.145 Common Stock Purchase Warrant to Purchase 500,000 Shares of Common
Stock issued by the Company to Marr Technologies B.V. dated May 26,
2004, incorporated by reference from an exhibit filed with the
Company's report on Form 8-K on June 3, 2004.
10.146 2004 Incentive Plan, incorporated by reference from an exhibit filed
with the Company's Registration Statement on Form S-8 on June 25, 2004.
10.147 Form of Securities Purchase Agreement between the Company and the
investors in the July 2004 PIPE financing incorporated by reference
from an exhibit filed with the Company's Report on Form 8-K on July 13,
2004.
10.148 Form of Registration Rights Agreement between the Company and the
investors in the July 2004 PIPE financing incorporated by reference
from an exhibit filed with the Company's Report on Form 8-K on July 13,
2004.
10.149 Form of Warrant between the Company and the investors in the July 2004
PIPE financing incorporated by reference from an exhibit filed with the
Company's Report on Form 8-K on July 13, 2004.
10.150 Sublicense Agreement between the Company and Abbott Laboratories dated
June 28, 2004 incorporated by reference from an exhibit filed with the
Company's Quarterly Report on Form 10-QSB/A (No. 1) dated December 17,
2004.
10.151 License Agreement and Technology Transfer Agreement between the Company
and Ani Biotech Oy dated as of September 30, 2004 incorporated by
reference from an exhibit filed with the Company's Report on Form 8-K/A
(No. 1) on December 17, 2004.
10.152 License Agreement between the Company and Bio-Rad Laboratories, Inc.
and Bio-Rad Pasteur dated September 28, 2004, incorporated by reference
from an exhibit filed with the Company's Report on Form 8-K/A (No. 1)
on December 17, 2004.
15.1 Letter from Odenberg Ullakko Muranishi & Co. LLP dated December 16,
2004 regarding Interim Financial Statements
16.1 Letter from KPMG to SEC regarding Registrant's change in accountants;
incorporated by reference from an exhibit filed on the Company's Report
on Form 8-K dated January 2, 2004 and amended January 9, 2004.
II-19
21.1 Subsidiaries of the Registrant; incorporated by reference from exhibits
filed with the Company's Registration Statement on Form S-1 (File No.
333-04105) filed on May 20, 1996, as amended to June 25, 1996, July 15,
1996 and July 26, 1996.
23.1 Consent of Odenberg Ullakko Muranishi & Co. LLP, Independent Registered
Public Accounting Firm.
23.2 Consent of Baratta & Goldstein (included in opinion filed as Exhibit
5.1).
24.1 Power of Attorney (see page II-19 to II-20).
- ----------
^ Confidential treatment has been granted as to certain portions of this
exhibit.
ITEM 28. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof), which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
4. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as
amended, each filing of the Registrant's Annual Report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934, as amended, that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
II-20
5. Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "Act"), may be permitted to
directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy
as expressed in the Act and will be governed by the final
adjudication of such issue.
6. The undersigned registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the
prospectus is sent or given, the latest annual report to security
holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14-a or
Rule 14c-3 under the Securities Exchange Act of 1934, as amended;
and, where interim financial information required to be presented
by Article 3 of Regulations S-X are not set forth in the
prospectus, to deliver, or cause to be delivered to each person to
whom the prospectus is sent or given, the latest quarterly report
that is specifically incorporated by reference in the prospectus to
provide such interim financial information.
II-21
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant, Calypte Biomedical Corporation, certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on Form SB-2
and has duly caused this Registration Statement on Form SB-2/A (No. 1) to be
signed on its behalf by the undersigned, thereunto duly authorized, in the city
of Pleasanton, State of California, on the 23rd day of December, 2004.
CALYPTE BIOMEDICAL CORPORATION
By: /s/ J. Richard George
-----------------------------------
J. RICHARD GEORGE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints J. Richard
George and Richard Brounstein his true and lawful attorneys in fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any or all amendments
(including post effective amendments) to the Registration Statement, and to sign
any registration statement for the same offering covered by this Registration
Statement that is to be effective upon filing pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and all post effective amendments thereto,
and to file the same, with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement on Form SB-2 has been signed below by the following
persons in the capacities and on the dates indicated:
SIGNATURE TITLE DATE
- ------------------------- ---------------------------------- -----------------
/s/ Roger I. Gale Chairman of the Board of Directors December 23, 2004
- -------------------------
ROGER I. GALE
/s/ J. Richard George President and Chief Ececutive December 23, 2004
- ------------------------- Officer
J. RICHARD GEORGE P
/s/ Richard D. Brounstein Executive Vice President, Chief December 23, 2004
- ------------------------- Financial Officer Principal
RICHARD D. BROUNSTEIN (Financial and Accounting Officer)
/s/ John J. DiPietro Director December 23, 2004
- -------------------------
JOHN J. DIPIETRO
/s/ Paul Freiman Director December 23, 2004
- -------------------------
PAUL FREIMAN
/s/ Julius R. Krevans, M.D. Director December 23, 2004
- -------------------------
JULIUS R. KREVANS, M.D.
/s/ Maxim A. Soulimov Director December 23, 2004
- -------------------------
MAXIM A. SOULIMOV
II-22
EXHIBIT INDEX
2.1 Asset Purchase Agreement, dated as of November 18, 1998, between
Calypte and Cambridge; incorporated by reference from an exhibit filed
with the Company's Report on Form 8-K dated December 16, 1998.
3.1 Bylaws of the Registrant, as amended on January 19, 2004. incorporated
by reference from an exhibit filed with the Company's Quarterly report
on Form 10-QSB/A (No. 1) dated January 29, 2004.
3.2 Restated Certificate of Incorporation of Calypte Biomedical
Corporation, a Delaware corporation, filed July 31, 1996; incorporated
by reference from an exhibit filed with the Company's Report on Form
10-K dated March 28, 1997.
3.3 Certificate of Amendment of the Amended and Restated Certificate of
Incorporation of Calypte Biomedical Corporation effective as of
February 14, 2003 incorporated by reference from an exhibit filed with
the Company's Report on Form 10-K dated March 26, 2003.
3.4 Certificate of Amendment of the Amended and Restated Certificate of
Incorporation of Calypte Biomedical Corporation, effective as of May
27, 2003.
3.5 Certificate of Correction of Calypte Biomedical Corporation, effective
as of May 28, 2003.
4.1 Rights Agreement between the Registrant and Chase Mellon Shareholders
L.L.C. as Rights Agents dated December 15, 1998; incorporated by
reference from an exhibit filed with the Company's Report on Form 8-K
dated December 16, 1998.
5.1 Opinion of Baratta & Goldstein.
10.1 Form of Indemnification Agreement between the Company and each of its
directors and officers, as amended January 19, 2004.
10.2 1991 Incentive Stock Plan; incorporated by reference from exhibits
filed with the Company's Registration Statement on Form S-1 (File No.
333-04105) filed on May 20, 1996, as amended to June 25, 1996, July 15,
1996 and July 26, 1996.
10.3 1995 Director Option Plan, as amended effective May 20, 2003;
incorporated by reference from an exhibit filed with the Company's
Registration Statement on Form S-8 (File No. 333-106389) dated June 23,
2003.
10.4 1995 Employee Stock Purchase Plan, amended as of May 20, 2003;
incorporated by reference from an exhibit filed with the Company's
Registration Statement on Form S-8 (File No. 333-106389) dated June 23,
2003.
10.9 Standard Form Lease 1255-1275 Harbor Bay Parkway Harbor Bay Business
Park between Commercial Center Bank and the Registrant, dated as of
August 22, 1992; incorporated by reference from exhibits filed with the
Company's Registration Statement on Form S-1 (File No. 333-04105) filed
on May 20, 1996, as amended to June 25, 1996, July 15, 1996 and July
26, 1996.
10.15^ License Agreement between the Registrant and New York University, dated
as of August 13, 1993; incorporated by reference from exhibits filed
with the Company's Registration Statement on Form S-1 (File No.
333-04105) filed on May 20, 1996, as amended to June 25, 1996, July 15,
1996 and July 26, 1996.
10.16 First Amendment to License Agreement between the Registrant and New
York University, dated as of January 11, 1995; incorporated by
reference from exhibits filed with the Company's Registration Statement
on Form S-1 (File No. 333-04105) filed on May 20, 1996, as amended to
June 25, 1996, July 15, 1996 and July 26, 1996.
II-23
10.17 Second Amendment to License Agreement between the Registrant and New
York University, dated as of October 15, 1995; incorporated by
reference from exhibits filed with the Company's Registration Statement
on Form S-1 (File No. 333-04105) filed on May 20, 1996, as amended to
June 25, 1996, July 15, 1996 and July 26, 1996..
10.18^ Third Amendment to License Agreement between the Registrant and New
York University, dated as of January 31, 1996; incorporated by
reference from exhibits filed with the Company's Registration Statement
on Form S-1 (File No. 333-04105) filed on May 20, 1996, as amended to
June 25, 1996, July 15, 1996 and July 26, 1996.
10.21^ Sublicense Agreement between the Registrant and Cambridge Biotech
Corporation, dated as of March 31, 1992; incorporated by reference from
exhibits filed with the Company's Registration Statement on Form S-1
(File No. 333-04105) filed on May 20, 1996, as amended to June 25,
1996, July 15, 1996 and July 26, 1996.
10.22^ Master Agreement between the Registrant and Cambridge Biotech
Corporation, dated as of April 12, 1996; incorporated by reference from
exhibits filed with the Company's Registration Statement on Form S-1
(File No. 333-04105) filed on May 20, 1996, as amended to June 25,
1996, July 15, 1996 and July 26, 1996.
10.23^ Sub-License Agreement between the Registrant and Cambridge Biotech
Corporation, dated as of April 12, 1996; incorporated by reference from
exhibits filed with the Company's Registration Statement on Form S-1
(File No. 333-04105) filed on May 20, 1996, as amended to June 25,
1996, July 15, 1996 and July 26, 1996.
10.24^ Agreement between the Registrant and Repligen Corporation, dated as of
March 8, 1993; incorporated by reference from exhibits filed with the
Company's Registration Statement on Form S-1 (File No. 333-04105) filed
on May 20, 1996, as amended to June 25, 1996, July 15, 1996 and July
26, 1996.
10.25^ Non-Exclusive License Agreement between the Registrant and The Texas
A&M University System, dated as of September 12, 1993; incorporated by
reference from exhibits filed with the Company's Registration Statement
on Form S-1 (File No. 333-04105) filed on May 20, 1996, as amended to
June 25, 1996, July 15, 1996 and July 26, 1996.
10.33 Form of Option Agreement for Stockholders of Pepgen Corporation, dated
as of October 12, 1995; incorporated by reference from exhibits filed
with the Company's Registration Statement on Form S-1 (File No.
333-04105) filed on May 20, 1996, as amended to June 25, 1996, July 15,
1996 and July 26, 1996.
10.41 Second Addendum to Lease between the Registrant and Commercial Center
Bank dated as of July 21, 1997; incorporated by reference from exhibits
filed with the Company's Report on Form 10-K dated March 25, 1998.
10.51 Non-Exclusive Patent and License Agreement between the Registrant and
Public Health Service, dated June 30, 1999; incorporated by reference
from an exhibit filed with the Company's Report on Form 10-Q dated
November 15, 1999.
10.55 Master Lease Agreement between Aquila Biopharmaceuticals, Inc.,
Landlord, and Biomerieux Vitek, Inc., Tenant, dated as of October 22,
1996; incorporated by reference from an exhibit filed with the
Company's Report on Form 10-K dated March 30, 2000.
10.56 First Amendment to Lease between Aquila Biopharmaceuticals, Inc.
Landlord, and Biomerieux Vitek, Inc., Tenant, dated October 2, 1997;
incorporated by reference from an exhibit filed with the Company's
Report on Form 10-K dated March 30, 2000.
10.57 Sublease Agreement between Registrant and Cambridge Biotech
Corporation, assignee of Biomerieux, Inc. dated as of December 17,
1998; incorporated by reference from an exhibit filed with the
Company's Report on Form 10-K dated March 30, 2000.
10.58 Sublease Agreement between Registrant and Cambridge Biotech
Corporation, sub-lessee of DynCorp, dated as of December 17, 1998;
incorporated by reference from an exhibit filed with the Company's
Report on Form 10-K dated March 30, 2000.
II-24
10.62 Employment Agreement between the Registrant and Nancy E. Katz, dated as
of October 18, 1999; incorporated by reference from an exhibit filed
with the Company's Report on Form 10-K dated March 30, 2000.
10.66 Restated Technology Rights Agreement between Registrant and Howard B.
Urnovitz, Ph.D. dated as of March 1, 2000; incorporated by reference
from an exhibit filed with the Company's Report on Form 10-Q dated May
12, 2000.
10.67 Technology Rights Agreement between Registrant and Chronix Biomedical
dated as of March 1, 2000; incorporated by reference from an exhibit
filed with the Company's Report on Form 10-Q dated May 12, 2000.
10.70^ Distribution Agreement between the Registrant and Biobras S.A., dated
as of May 11, 2000; incorporated by reference from an exhibit filed
with the Company's Report on Form 10-Q dated August 10, 2000.
10.73^ Fourth Amendment to the License Agreement between the Registrant and
New York University, dated as of June 1, 2000; incorporated by
reference from an exhibit filed with the Company's Report on Form 10-Q
dated August 10, 2000.
10.74 2000 Equity Incentive Plan, amended as of May 20, 2003; incorporated by
reference from an exhibit filed with the Company's Registration
Statement on Form S-8 (File No. 333-106389) dated June 23, 2003.
10.79 Convertible Debentures and Warrants Purchase Agreement between the
Registrant and AMRO International, S.A. dated January 22, 2001;
incorporated by reference from an exhibit filed with the Company's
Registration Statement on Form S-3 (File No. 333-58960) filed on April
13, 2001.
10.84 Stock Purchase Warrant to purchase common stock dated January 24, 2001
issued to Townsbury Investments Limited; incorporated by reference from
an exhibit filed with the Company's Registration Statement on Form S-2
(File No. 333-54316) filed on January 25, 2001, as amended on February
9, 2001.
10.85 Common Stock Purchase Agreement between Calypte and Townsbury
Investments Limited dated November 2, 2000; incorporated by reference
from an exhibit filed with the Company's Registration Statement on Form
S-2 (File No. 333-54316) filed on January 25, 2001, as amended on
February 9, 2001.
10.86 Registration Rights Agreement between Calypte and Townsbury Investments
Limited dated November 2, 2000; incorporated by reference from an
exhibit filed with the Company's Registration Statement on Form S-2
(File No. 333-54316) filed on January 25, 2001, as amended on February
9, 2001.
10.87 Escrow Agreement among Calypte, Townsbury Investments Limited and
Epstein, Becker & Green, P.C. dated November 2, 2000; incorporated by
reference from an exhibit filed with the Company's Registration
Statement on Form S-2 (File No. 333-54316) filed on January 25, 2001,
as amended on February 9, 2001.
10.88 Amendment to Common Stock Purchase Agreement between Calypte and
Townsbury Investments Limited dated January 24, 2001; incorporated by
reference from an exhibit filed with the Company's Registration
Statement on Form S-2 (File No. 333-54316) filed on January 25, 2001,
as amended on February 9, 2001.
10.91 Third Addendum to Lease between the Registrant and Gee-Aspora LLC dated
as of October 31, 2001; incorporated by reference from an exhibit filed
with the Company's Report on Form 10-K dated March 11, 2002.
10.92 Registration Rights Agreement between the Registrant and AMRO
International, S.A. dated January 22, 2001; incorporated by reference
from an exhibit filed with the Company's Registration Statement on Form
S-3 (File No. 333-58960) filed on April 13, 2001.
II-25
10.93 Escrow Agreement between the Registrant and AMRO International, S.A.
dated January 22, 2001; incorporated by reference from an exhibit filed
with the Company's Registration Statement on Form S-3 (File No.
333-58960) filed on April 13, 2001.
10.94 Stock Purchase Warrant to purchase common stock issued to AMRO
International, S.A. on January 24, 2001; incorporated by reference from
an exhibit filed with the Company's Registration Statement on Form S-3
(File No. 333-58960) filed on April 13, 2001.
10.95 6% Convertible Debenture in the principal amount of $550,000, due April
26, 2001, issued to AMRO International, S.A. ; incorporated by
reference from an exhibit filed with the Company's Registration
Statement on Form S-3 (File No. 333-58960) filed on April 13, 2001
10.96 6% Convertible Debenture in the principal amount of $550,000, due June
11, 2001, issued to AMRO International, S.A. ; incorporated by
reference from an exhibit filed with the Company's Registration
Statement on Form S-3 (File No. 333-58960) filed on April 13, 2001
10.97 Common Stock Purchase Agreement between Calypte and Townsbury
Investments Limited dated August 23, 2001; incorporated by reference
from an exhibit filed with the Company's Registration Statement on Form
S-2 (File No. 333-72268) filed on October 26, 2001.
10.98 Registration Rights Agreement between Calypte and Townsbury Investments
Limited dated August 23, 2001; incorporated by reference from an
exhibit filed with the Company's Registration Statement on Form S-2
(File No. 333-72268) filed on October 26, 2001.
10.99 Escrow Agreement among Calypte, Townsbury Investments Limited and New
York Escrow Services, LLC dated August 23, 2001; incorporated by
reference from an exhibit filed with the Company's Registration
Statement on Form S-2 (File No. 333-72268) filed on October 26, 2001.
10.100 Stock Purchase Warrant to purchase Common Stock dated October 19, 2001
issued to Townsbury Investments Limited; incorporated by reference from
an exhibit filed with the Company's Registration Statement on Form S-2
(File No. 333-72268) filed on October 26, 2001.
10.101 Securities Purchase Agreement between the Registrant and Bristol
Investment Fund, Ltd. Dated as of February 11, 2002; incorporated by
reference from an exhibit filed with the Company's Report on Form 8-K
dated February 15, 2002.
10.102 Registration Rights Agreement between the Registrant and Bristol
Investment Fund, Ltd. Dated as of February 11, 2002; incorporated by
reference from an exhibit filed with the Company's Report on Form 8-K
dated February 15, 2002.
10.103 Security Agreement between the Registrant and Bristol Investment Fund,
Ltd. Dated as of February 11, 2002; incorporated by reference from an
exhibit filed with the Company's Report on Form 8-K dated February 15,
2002.
10.104 Form of Secured Convertible Debenture Securities Purchase Agreement
between the Registrant and Bristol Investment Fund, Ltd. Dated as of
February 11, 2002; incorporated by reference from an exhibit filed with
the Company's Report on Form 8-K dated February 15, 2002.
10.105 Class A Stock Purchase Warrant for 56,667 shares of Common Stock issued
to Bristol Investment Fund, Ltd.; incorporated by reference from an
exhibit filed with the Company's Report on Form 8-K dated February 15,
2002.
10.106 Class B Stock Purchase Warrant for 400,000 shares of Common Stock
issued to Bristol Investment Fund, Ltd.; incorporated by reference from
an exhibit filed with the Company's Report on Form 8-K dated February
15, 2002.
10.107 Stock Purchase Warrant for 283 shares of Common Stock issued to
Alexander Dunham Capital Group, Inc.; incorporated by reference from an
exhibit filed with the Company's Report on Form 8-K dated February 15,
2002.
10.108 Stock Purchase Warrant for 2,550 shares of Common Stock issued to
Bristol Capital, LLC. ; incorporated by reference from an exhibit filed
with the Company's Report on Form 8-K dated February 15, 2002.
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10.109 Form of Common Stock Purchase Agreement between the Registrant and
certain Purchasers dated November 13, 2001; incorporated by reference
from an exhibit filed with the Company's Report on Form 10-K dated
March 11, 2002.
10.110 Form of Common Stock Purchase Agreement with certain trade creditors
issued pursuant to a private placement completed on February 12, 2002;
incorporated by reference from an exhibit filed with the Company's
Report on Form 10-K dated March 11, 2002.
10.111 Form of Subscription Agreement and 8% Convertible Note; incorporated by
reference from an exhibit filed with the Company's Report on Form 8-K
dated June 3, 2002.
10.112 Form of Subscription Agreement and 8% Convertible Note Issued July 17,
2002 by Registrant; incorporated by reference from an exhibit filed
with the Company's Report on Form 10-Q dated August 14, 2002.
10.113 Employment Agreement between the Registrant and Anthony J. Cataldo
dated May 10, 2002; incorporated by reference from an exhibit filed
with the Company's Report on Form 10-Q dated August 14, 2002.
10.114 Amendment to Non-Exclusive Patent and License Agreement between
Registrant and Public Health Service, dated April 5, 2002; incorporated
by reference from an exhibit filed with the Company's Report on Form
10-Q dated August 14, 2002.
10.115 Investment Commitment Arrangement with Cataldo Investment Group;
incorporated by reference from an exhibit filed with the Company's
Report on Form 8-K dated November 12, 2002.
10.116 Term Sheet for Mercator Momentum Fund LP and Form of Registration
Rights Agreement; incorporated by reference from an exhibit filed with
the Company's Report on Form 8-K dated November 12, 2002.
10.117 Form of Subscription Agreement under Regulation S for Caledonia
Corporate Group Ltd. And Careen Ltd.; incorporated by reference from an
exhibit filed with the Company's Report on Form 8-K dated November 12,
2002
10.118 Bi-Coastal Consulting, Inc. Agreements; incorporated by reference from
an exhibit filed with the Company's Report on Form 8-K dated November
12, 2002.
10.119 Employment Agreement between the Registrant and Nancy E. Katz, dated
October 31, 2002; incorporated by reference from an exhibit filed with
the Company's Report on Form 10-Q dated November 14, 2002.
10.120 12% Convertible Debenture Agreement and related Warrant and
Registration Rights Agreement dated as of October 22, 2002 between
Registrant and Mercator Momentum Fund, L.P.; incorporated by reference
from an exhibit filed with the Company's Report on Form 8-K dated
December 10, 2002.
10.121 Distribution Agreement between the Registrant and Zhong Yang Pute Co.
dated as of October 10, 2002; incorporated by reference from an exhibit
filed with the Company's Report on Form 10-Q/A (No.3) dated February 4,
2003.
10.122 Amendment to Agreement with Mercator Momentum Fund dated as of December
23, 2002; incorporated by reference from an exhibit filed with the
Company's Report on Form 8-K/A dated January 21, 2003.
10.123 10% convertible Debenture and related Registration Rights Agreement
dated as of January 14, 2003 between Registrant and Mercator Focus
Fund, L.P.; incorporated by reference from an exhibit filed with the
Company's Report on Form 8-K dated January 21, 2003.
10.124 Distribution and Usage Memorandum of Understanding between Registrant
and Safe Blood for Africa Foundation, dated as of December 10, 2002;
incorporated by reference from an exhibit filed with the Company's
Registration Statement on Form S-2/A (No. 5) (File No. 333-84660) dated
February 4, 2003.
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10.125 Employment Agreement between Registrant and Richard D. Brounstein dated
as of January 1, 2003; incorporated by reference from an exhibit filed
with the Company's Annual Report on Form 10-K dated March 26, 2003.
10.126 Letter Agreement between Registrant and Nancy E. Katz dated February
14, 2003; incorporated by reference from an exhibit filed with the
Company's Annual Report on Form 10-K dated March 26, 2003.
10.127 Letter Agreement between Registrant and Bristol Investment Fund, Ltd.
Dated February 28, 2003; incorporated by reference from an exhibit
filed with the Company's Annual Report on Form 10-K dated March 26,
2003.
10.128 2003 Non-Qualified Stock Option Plan; incorporated by reference from an
exhibit filed with the Company's Registration Statement on Form S-8
(File No. 333-106387) dated June 23, 2003.
10.129 Consulting Agreement between Registrant and Junebug Enterprises
effective as of April 23, 2003; incorporated by reference from an
exhibit filed with the Company's Report on Form 10-QSB dated August 14,
2003.
10.130 Employment Agreement between Registrant and Jay Oyakawa, dated as of
August 12, 2003; incorporated by reference from an exhibit filed with
the Company's Report on Form 10-QSB dated August 14, 2003.
10.131 Separation Agreement, Mutual Release and Waiver of Claims between
Registrant and Nancy E. Katz, effective as of June 27, 2003;
incorporated by reference from an exhibit filed with the Company's
Report on Form 10-QSB dated August 14, 2003.
10.132 Subscription Agreement between Registrant and Marr Technologies B.V.
dated as of August 1, 2003 incorporated by reference from an exhibit
filed with the Company's Report on Form 10-QSB dated August 14, 2003.
10.133 Subscription Agreement between the Company and Marr Technologies B.V.
for 20,000,000 shares of Registrant's Common Stock dated August 28,
2003; incorporated by reference from an exhibit filed with the
Company's Report on Form 8-K dated September 12, 2003.
10.134 Agreement for Commitment to Purchase Aggregate of $10,000,000 of 5%
Promissory Notes between the Company and Marr Technologies B.V. dated
November 13, 2003; incorporated by reference from an exhibit filed with
the Company's Report on Form 10-QSB dated November 14, 2003.
10.135 Separation Agreement and Release between the Company and Jay Oyakawa
dated January 19, 2004; incorporated by reference from an exhibit filed
with the Company's Report on Form 10-QSB/A (No. 1) dated January 29,
2004.
10.136 Employment Agreement between the Company and J. Richard George
effective as of January 20, 2004; incorporated by reference from an
exhibit filed with the Company's Annual Report on Form 10-KSB dated
March 29, 2004.
10.137 Lease Agreement between the Company and ARE-1500 East Gude LLC dated as
of March 1, 2004; incorporated by reference from an exhibit filed with
the Company's Annual Report on Form 10-KSB dated March 29, 2004.
10.138 Amendment No. 1 to Agreement for Commitment to Purchase Aggregate of
$10,000,000 of 5% Promissory Notes between the Company and Marr
Technologies B.V. dated March 19, 2004 incorporated by reference from
an exhibit filed with the Company's Report on Form 8-K dated March 19,
2004.
10.139 Common Stock Purchase Warrant to Purchase 400,000 Shares of Common
Stock between the Company and Boodle Hatfield dated March 19, 2004
incorporated by reference from an exhibit filed with the Company's
Report on Form 8-K dated March 19, 2004
II-28
10.140 Amendment No. 1 to Separation Agreement and Release between the Company
and Jay Oyakawa dated February 25, 2004 incorporated by reference from
an exhibit filed with the Company's Quarterly Report on Form 10-QSB
dated May 13, 2004.
10.141 Form of Securities Purchase Agreement between the Company and the
investors in the May 2004 PIPE financing incorporated by reference from
an exhibit filed with the Company's Report on Form 8-K on June 1, 2004.
10.142 Form of Registration Rights Agreement between the Company and the
investors in the May 2004 PIPE financing incorporated by reference from
an exhibit filed with the Company's Report on Form 8-K on June 1, 2004.
10.143 Form of Warrant between the Company and the investors in the May 2004
PIPE financing incorporated by reference from an exhibit filed with the
Company's Report on Form 8-K on June 1, 2004.
10.144 Amendment No. 2 to Agreement for Commitment to Purchase Aggregate of
$10,000,000 of 5% Promissory Notes between the Company and Marr
Technologies B.V. effective May 26, 2004, incorporated by reference
from an exhibit filed with the Company's report on Form 8-K on June 3,
2004.
10.145 Common Stock Purchase Warrant to Purchase 500,000 Shares of Common
Stock issued by the Company to Marr Technologies B.V. dated May 26,
2004, incorporated by reference from an exhibit filed with the
Company's report on Form 8-K on June 3, 2004.
10.146 2004 Incentive Plan, incorporated by reference from an exhibit filed
with the Company's Registration Statement on Form S-8 on June 25, 2004.
10.147 Form of Securities Purchase Agreement between the Company and the
investors in the July 2004 PIPE financing incorporated by reference
from an exhibit filed with the Company's Report on Form 8-K on July 13,
2004.
10.148 Form of Registration Rights Agreement between the Company and the
investors in the July 2004 PIPE financing incorporated by reference
from an exhibit filed with the Company's Report on Form 8-K on July 13,
2004.
10.149 Form of Warrant between the Company and the investors in the July 2004
PIPE financing incorporated by reference from an exhibit filed with the
Company's Report on Form 8-K on July 13, 2004.
10.150 Sublicense Agreement between the Company and Abbott Laboratories dated
June 28, 2004 incorporated by reference from an exhibit filed with the
Company's Quarterly Report on Form 10-QSB/A (No. 1) dated December 17,
2004.
10.151 License Agreement and Technology Transfer Agreement between the Company
and Ani Biotech Oy dated as of September 30, 2004 incorporated by
referenced from an exhibit filed with the Company's Report on Form
8-K/A (No. 1) on December 17, 2004.
10.152 License Agreement between the Company and Bio-Rad Laboratories, Inc.
and Bio-Rad Pasteur dated September 28, 2004, incorporated by reference
from an exhibit filed with the Company's Report on Form 8-K/A (No. 1)
on December 17, 2004.
15.1 Letter from Odenberg Ullakko Muranishi & Co. LLP dated December 16,
2004 regarding Interim Financial Statements
16.1 Letter from KPMG LLP to SEC regarding Registrant's change in
accountants; incorporated by reference from an exhibit filed on the
Company's Report on Form 8-K dated January 2, 2004 and amended January
9, 2004.
21.1 Subsidiaries of the Registrant; incorporated by reference from exhibits
filed with the Company's Registration Statement on Form S-1 (File No.
333-04105) filed on May 20, 1996, as amended to June 25, 1996, July 15,
1996 and July 26, 1996.
II-29
23.1 Consent of Odenberg Ullakko Muranishi & Co. LLP, Independent Registered
Public Accounting Firm.
23.2 Consent of Baratta & Goldstein (included in opinion filed as Exhibit
5.1).
24.1 Power of Attorney (see page II-19 through II-20).
- ----------
^ Confidential treatment has been granted as to certain portions of this
exhibit.
II-30