THE SHARES
OF COMMON STOCK SUBSCRIBED FOR BY THIS AGREEMENT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
OTHER APPLICABLE STATE SECURITIES LAWS AND TRANSFER OF SUCH SHARES
IS RESTRICTED BY THE TERMS OF THIS AGREEMENT.
SUBSCRIPTION
AGREEMENT
This SUBSCRIPTION AGREEMENT (the
"Agreement") is made by and between the subscriber hereto
(the "Subscriber") and Calypte Biomedical Corporation, a
Delaware corporation (the "Company").
The Subscriber hereby agrees to
purchase, and the Company hereby agrees to issue and to sell to the
Subscriber, the number of shares (the "Shares") of common
stock of the Company, par value $.03 per share (the "Common
Stock"), set forth on the signature page, for a purchase price
in cash equal to $0.03 per share (the aggregate amount to be paid
by the Subscriber shall be referred to as the "Purchase
Price"). After acceptance of this Agreement by the Company and
payment and delivery by the Subscriber to the Company of the
Purchase Price in the form of wire transfer pursuant to the terms
of Section 7(b) of this Agreement, the Company shall issue and
deliver to the Subscriber the Shares.
NOW, THEREFORE, in order to
implement the foregoing and in consideration of the mutual
representations, warranties, covenants and agreements contained
herein and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto
agree as follows.
1. Subscriber's Representations
and Warranties. The Subscriber hereby represents and warrants
to and agrees with the Company that:
(a)
Access to Information. The Subscriber acknowledges that it
has been furnished with the Company's Form 10-K for the year ended
December 31, 2008 as filed with the Securities and Exchange
Commission (the "Commission") together with all subsequently
filed Forms 10-Q, 8-K, and other publicly available filings made
with the Commission (hereinafter referred to collectively as the
"Reports") and has been afforded (i) the opportunity to ask
such questions as it has deemed necessary of, and to receive
answers from, representatives of the Company concerning the terms
and conditions of the offering of the Securities and the merits and
risks of investing in the Company; (ii) access to information about
the Company and its subsidiary and their respective financial
condition, results of operations, business, properties, management
and prospects sufficient to enable it to evaluate its investment;
and (iii) the opportunity to obtain such additional information
that the Company possesses or can acquire without unreasonable
effort or expense that is necessary to make an informed investment
decision with respect to the investment. Neither such inquiries nor
any other investigation conducted by or on behalf of the Subscriber
or its representatives or counsel shall modify, amend or affect the
Subscriber's right to rely on the truth, accuracy and completeness
of the Reports and the Company's representations and warranties
contained herein.
Initials: ______
______
(b)
Information on Subscriber. The Subscriber is and was not a
"U.S. person," as defined in Regulation S of the Securities Act of
1933, as amended (the "1933 Act"), at the time the offer or
sale of the Securities is made. Additionally, the Subscriber is an
"accredited investor," as such term is defined in Regulation D of
the 1933 Act or is part of a group that is experienced in
investments and business matters, has made investments of a
speculative nature and has purchased securities of United States
publicly-owned companies in private placements in the past and,
with its representatives, has such knowledge and experience in
financial, tax and other business matters as to enable the
Subscriber to utilize the information made available by the
Company, to evaluate the merits and risks of an investment in the
Company and to make an informed investment decision with respect to
the proposed purchase, which represents a speculative investment.
The Subscriber is a natural person or an entity duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite corporate or
partnership power and authority to enter into and to consummate the
transactions contemplated by this Agreement and otherwise to carry
out its obligations hereunder. The execution, delivery and
performance by the Subscriber of the transactions contemplated by
this Agreement has been duly authorized by all necessary corporate
or, if the Subscriber is not a corporation, such partnership,
limited liability company or other applicable like action, on the
part of the Subscriber. This Agreement has been duly executed by
the Subscriber and when delivered by the Subscriber in accordance
with terms hereof, will constitute the valid and legally binding
obligation of the Subscriber, enforceable against it in accordance
with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally the
enforcement of, creditors' rights and remedies or by other
equitable principles of general application. The Subscriber is able
to bear the risk of such investment for an indefinite period and to
afford a complete loss thereof. The information set forth on the
signature page hereto regarding the Subscriber is
accurate.
(c)
Purchase of Shares and Investment Intent. The Subscriber is
purchasing the Shares for its own account for the Purchase Price.
The Subscriber is acquiring the Shares as principal for its own
account for investment purposes only and not with a view to or for
distributing or reselling such Shares or Warrant or any part
thereof, without prejudice, however, to the Subscriber's right at
all times to sell or otherwise dispose of all or any part of such
Shares in compliance with applicable federal and state securities
laws. The Subscriber does not have any agreement or understanding,
directly or indirectly, with any person to distribute any of the
Shares. The Subscriber also represents that its purchase of the
Shares is intended to be made as an "Offshore Transaction"
as defined in Regulation S.
(d)
Compliance with Securities Act. The Subscriber understands
and agrees that the Shares have not been registered under the 1933
Act, by reason of their issuance in a transaction that does not
require registration under the 1933 Act (based in part on the
accuracy of the representations and warranties of the Subscriber
contained herein), and that such Shares must be held unless a
subsequent disposition is registered under the 1933 Act or is
exempt from such registration.
(e)
Legend on Shares. The Shares shall bear the following legend
(or something comparable for the Warrant), unless the Shares shall
have been included in an effective registration statement under the
1933 Act:
Initials: ______
______
"THE SHARES
REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THESE
SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED."
(f)
Communication of Offer. The offer to sell the Shares was
directly communicated to the Subscriber. At no time was the
Subscriber presented with or solicited by any leaflet, newspaper or
magazine article, radio or television advertisement, or any other
form of general advertising or solicited or invited to attend a
promotional meeting otherwise than in connection and concurrently
with such communicated offer.
(g)
Certain Trading Activities. The Subscriber has not directly
or indirectly, nor has any person acting on behalf of or pursuant
to any understand
