Exhibit 5.1
BARATTA & GOLDSTEIN
ATTORNEYS AT LAW
597 FIFTH AVENUE
NEW YORK, N.Y. 10017
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JOSEPH P. BARATTA (212) 750-9700 FACSIMILE:(212) 7501-8297
HOWARD J. GOLDSTEIN INFO@BARAGOLD.COM
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LOUIS R. AIDALA OF COUNSEL
JOAN PALERMO MARGARET M. STANTON
JOSEPH A. BARATTA* LINDA MARY ANOV
SAMUEL M. GREENFIELD
* Admitted in NY and NJ
December 23, 2004
Calypte Biomedical Corporation
5000 Hopyard Road, Suite 480
Pleasanton, CA 94588
Re: Calypte Biomedical Corporation
Registration Statement on Form SB-2
File No.: 333-119646
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Ladies and Gentlemen:
We have acted as counsel to Calypte Biomedical Corporation, a Delaware
corporation (the "Company"), in connection with the Form SB-2 (the "Registration
Statement") filed with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Act"), for the registration
under the Act of 1,172,205 shares of the Company's common stock, $0.03 par value
(the "Common Stock") as follows:
o 1,172,205 shares of common stock, that have been previously issued to the
selling security holder in connection with a License Agreement and
Technology Transfer Agreement (the "License Agreement").
In connection with this opinion, we have assumed the authenticity of all
records, documents and instruments submitted to us as originals, the genuineness
of all signatures, the legal capacity of natural persons and the conformity to
the originals of all records, documents and instruments submitted to us as
copies. We have based our opinion upon our review of the following records,
documents and instruments:
(a) The Amended and Restated Certificate of Incorporation of the Company, as
amended to date, certified by the Secretary of State of the State of
Delaware as of December 17, 2004 and certified to us by an officer of the
Company as being complete and in full force and effect as of the date of
this opinion.
(b) The Bylaws of the Company, as amended to-date, certified to us by an
officer of the Company as being complete and in full force and effect as
of the date of this opinion.
(c) A Certificate of Good Standing relating to the Company issued by the
Secretary of State of the State of Delaware as of December 17, 2004.
(d) A Certificate of an officer of the Company (i) attaching records certified
to us as constituting all records of proceedings and actions of the Board
of Directors and Stockholders of the Company relating to the issuance of
the Shares, (ii) verifying that the Amended and Restated Certificate of
Incorporation of the Company is complete and in full force and effect as
of the date of this opinion, and (iii) certifying as to certain factual
matters including warranties and representations;
(e) A Certificate of American Stock Transfer and Trust Company, the transfer
agent of the Company, as to the number of shares of common stock of the
Company outstanding as of December 15, 2004;
(f) The Registration Statement; and
(g) The License Agreement (and schedules annexed thereto).
This opinion is limited to the Federal Law of the United States of America and
the General Corporation Law of the State of Delaware including statutory
provisions as well as applicable provisions of the Delaware Constitution and
reported judicial decisions interpreting these laws. We disclaim any opinion as
to any other statute, rule, regulation, ordinance, order or other promulgation
of any other jurisdiction or any regional or local governmental body.
Based upon the foregoing and our examination of such questions of law as we have
deemed necessary or appropriate for the purpose of this opinion and assuming
that all applicable federal and state securities laws are complied with, it is
our opinion that the Common Stock is duly authorized and validly issued, and
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to us under the caption "Interest of
Named Experts and Counsel" in the Registration Statement. In giving the
foregoing consent, we do not hereby admit that we are in the category of persons
whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission.
Very truly yours,
BARATTA & GOLDSTEIN
/S/ BARATTA & GOLDSTEIN