As filed with the Securities and Exchange Commission on August __, 2005
Reg. No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CALYPTE BIOMEDICAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 06-1226727
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification No.)
5 Centerpointe Drive, Suite 400
Lake Oswego, OR 97035
(971) 204-0282
(Address of principal executive offices)
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2004 Incentive Plan (as Amended March 7, 2005)
(Full title of plans)
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J. Richard George
President and Chief Executive Officer
5 Centerpointe Drive, Suite 400
Lake Oswego, OR 97035
(Name and address of agent for service)
(971) 204-0282
(Telephone number, including area code of agent for service)
Copy to:
Paula Winner Barnett, Esq.
17967 Boris Drive
Encino, CA 91316
(818) 776-9881 (phone)
(818) 743-7491 (fax)
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of securities Amount to be offering price Aggregate offering Amount of
to be registered Registered per share (1) Price Registration fee
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Common Stock 47,000,000 $0.19 $ 8,930,000 $1,051
($.03 par value)
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(1) Estimated solely for the purpose of determining the amount of registration
fee and pursuant to Rule 457(c) of the General Rules and Regulations under the
Securities Act of 1933, as amended, based on the average of the high and low
benefits hereunder. Accordingly, in consideration of the grantee's receipt
Exchange on July 25, 2005.
PART I
INFORMATION REQUIRED IN THIS SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
*Information required by Part 1 to be contained in the Section 10(a) prospectus
is omitted from the registration statement in accordance with Rule 428 under the
Securities Act of 1933 and the Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Calypte Biomedical Corporation (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference herein:
(a) the Company's annual report on Form 10-KSB/A (No. 2) for the fiscal
year ended December 31, 2004 filed pursuant to Section 13 of the Exchange Act,
file number 000-20985;
(b) the Company's quarterly report on Form 10-QSB/A (No. 1) for the
quarter ended March 31, 2005;
(c) the Company's current reports on Form 8-K filed on April 5, 2005,
April 21, 2005, and June 24, 2005;
(d) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A dated July 10, 1996, filed pursuant
to Section 12 of the Exchange Act, including any amendment or report filed for
the purpose of updating the description.
(e) any document filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof, but prior to the filing of a post-effective amendment to this
Registration Statement which Indicates that all shares of Common Stock
registered hereunder have been sold or that deregisters all such shares of
Common Stock then remaining unsold, such documents being deemed to be
incorporated by reference herein and to be part hereof from the date of filing
of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 102 of the Delaware General Corporation Law allows a
corporation to eliminate the personal liability of directors of a corporation to
the corporation or to any of its stockholders for monetary damage for a breach
of his fiduciary duty as a director, except in the case where the director
breached his or her duty of loyalty, failed to act in good faith, engaged in
intentional misconduct or knowingly violated a law, authorized the payment of a
dividend or approved a stock repurchase in violation of Delaware corporate law
or obtained an improper personal benefit. Calypte's Certificate of Incorporation
contains a provision that eliminates directors' personal liability as set forth
above.
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Section 145 of the Delaware General Corporation Law, as amended,
provides that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he or she is or was a director, officer, employee or
agent of the corporation or is or was serving at its request in such capacity in
another corporation or business associated against expenses(including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such action, suit or proceeding if he
or she acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the corporation and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
Article VII of the Company's Amended and Restated Certificate of
Incorporation provides for the indemnification of its directors to the fullest
extent permitted by the Delaware General Corporation Law. This provision in the
Amended and Restated Certificate of Incorporation does not eliminate the
fiduciary duty of the directors, and, in appropriate circumstances, equitable
remedies such as injunctive or other forms of non-monetary relief will remain
available under Delaware Law. In addition, each director will continue to be
subject to liability for breach of the director's duty of loyalty to the Company
for acts or omissions not in good faith or involving intentional misconduct, for
knowing violations of law, for actions leading to improper personal benefit to
the director and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law. The provision does not affect
a director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws. Article VI of the
Company's Bylaws provides for the indemnification of officers, directors and
third parties acting on behalf of the corporation to the full extent permitted
by Delaware law.
The Company has entered into Indemnification Agreements with its
executive officers and directors. The Indemnification Agreements provide the
Company's officers and directors with further indemnification to the maximum
extent permitted by the Delaware General Corporation Law.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The Exhibits to this registration statement are listed in the index to Exhibits
on page 8.
Item 9. 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 1933:
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(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this Registration
Statement:
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraph (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraph is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15 (d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendments 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 mean of a post-effective amendment
any of the securities being registered hereunder that remain unsold at the
termination of the offering.
(b) The undersigned Company hereby undertakes that for
purposes of determining any liability under the Securities Act of 1933, each
filing of the company's annual report pursuant to Section 13 (a) or Section 15
(d) of the Securities and Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the above-described provisions or otherwise, the Company has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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 Securities Act of 1933 and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing a form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Lake Oswego, State of Oregon on August 1, 2005.
Calypte Biomedical Corporation
By /s/ J. Richard George
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J. Richard George, President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints J. Richard George and Richard Brounstein,
as his attorney-in-fact, with full power of substitution and resubstitution, for
him in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection
therewith as fully to al intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact, or their
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 has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
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/s/ Roger I Gale Chairman of the Board August 1, 2005
- --------------------------- of Directors
Roger I Gale
/s/ J. Richard George President and Chief Executive August 1, 2005
- --------------------------- Officer
J. Richard George
/s/ Richard D. Brounstein Executive Vice President and August 1, 2005
- --------------------------- Chief Financial Officer
Richard Brounstein
/s/ John J. DiPietro Director August 1, 2005
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John J. DiPietro
/s/ Paul E. Freiman
- --------------------------- Director August 1, 2005
Paul E. Freiman
/s/ Julius R. Krevans, M.D. Director August 1, 2005
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Julius R. Krevans, M.D.
/s/ Maxim A. Soulimov Director August 1, 2005
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Maxim A. Soulimov
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INDEX TO EXHIBITS
Exhibit Sequentially
NO. Description Numbered Pages
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4.1 2004 Incentive Plan as amended March 7, 2005 7
5.1 Opinion of Paula Winner Barnett, Esq. 22
23.1 Consent of Odenberg Ullakko Muranishi & Co., LLP,
Independent Auditors 24
23.2 Consent of Paula Winner Barnett, Esq.
(filed as part of Exhibit 5.1) 22
24.1 Power of Attorney 7
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