EXHIBIT 10.189
NEITHER THESE
SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE
SECURITIES HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE
UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY
A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE
SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY.
CALYPTE BIOMEDICAL
CORPORATION
WARRANT
Original Issue Date: August __,
2008
Calypte Biomedical Corporation
, a Delaware corporation (the
“Company” ), hereby certifies that,
for value received, Tinja Limited, a company registered in
Mauritius, or its registered assigns (the
“Holder” ), is entitled to purchase
from the Company up to a total of 1,000,000 shares of Common Stock
(each such share, a “Warrant Share”
and all such shares, the “Warrant
Shares” ), at any time and from time to time from
through and including August __, 2010 (the
“Expiration Date” ), and subject to
the following terms and conditions:
1.
Definitions . As used in this Warrant, the following terms
shall have the respective definitions set forth in this Section 1.
Capitalized terms that are used and not defined in this Warrant
that are defined in the Subscription Agreement (as defined below)
shall have the respective definitions set forth in the Subscription
Agreement.
“Business Day”
means any day except Saturday,
Sunday and any day that is a federal legal holiday in the United
States or a day on which banking institutions in the State of New
York are authorized or required by law or other government action
to close.
“Common Stock”
means the common stock of the
Company, par value $.03 per share, and any securities into which
such common stock may hereafter be reclassified.
“Exercise Price”
means $0.08, subject to adjustment
in accordance with Section 8.
“Fundamental
Transaction” means any of the following: (1) the Company
effects any merger or consolidation of the Company with or into
another Person, (2) the Company effects
any sale of all
or substantially all of its assets in one or a series of related
transactions, (3) any tender offer or exchange offer (whether by
the Company or another Person) is completed pursuant to which
holders of Common Stock are permitted to tender or exchange their
shares for other securities, cash or property, or (4) the Company
effects any reclassification of the Common Stock or any compulsory
share exchange pursuant to which the Common Stock is effectively
converted into or exchanged for other securities, cash or
property.
“Original Issue
Date” means
the Original Issue Date (“OID”) first set forth on the
first page of this Warrant.
“Portland Courts”
means the state and federal courts
sitting in Portland, Oregon.
“Subscription
Agreement” means the Subscription Agreement, dated August
__, 2008, to which the Company and the original Holder are
parties.
“Trading Day”
means (i) a day on which the Common
Stock is traded on a Trading Market (other than the OTC Bulletin
Board), or (ii) if the Common Stock is not listed on a Trading
Market (other than the OTC Bulletin Board), a day on which the
Common Stock is traded in the over-the-counter market, as reported
by the OTC Bulletin Board, or (iii) if the Common Stock is not
quoted on any Trading Market, a day on which the Common Stock is
quoted in the over-the-counter market as reported by the National
Quotation Bureau Incorporated (or any similar organization or
agency succeeding to its functions of reporting prices); provided,
that in the event that the Common Stock is not listed or quoted as
set forth in (i), (ii) and (iii) hereof, then Trading Day shall
mean a Business Day.
2.
Registration of Transfers . The Company shall register the
transfer of any portion of this Warrant in the Company’s
warrant register, upon surrender of this Warrant, with the Form of
Assignment attached hereto duly completed and signed, to the
Company at its address specified herein. Upon any such registration
or transfer, a new Warrant to purchase Common Stock, in
substantially the form of this Warrant (any such new Warrant, a
“New Warrant” ), evidencing the
portion of this Warrant so transferred shall be issued to the
transferee and a New Warrant evidencing the remaining portion of
this Warrant not so transferred, if any, shall be issued to the
transferring Holder. The acceptance of the New Warrant by the
transferee thereof shall be deemed the acceptance by such
transferee of all of the rights and obligations of a holder of a
Warrant.
3. Exercise
and Duration of Warrants . This Warrant shall be exercisable by
the registered Holder at any time and from time to time from and
after the Original Issue Date and through and including the
Expiration Date. At 5:00 p.m. Pacific time on the Expiration Date,
the portion of this Warrant not exercised prior thereto shall be
and become void and of no value.
4. Delivery
of Warrant Shares .
To effect exercises hereunder, the Holder shall
not be required to physically surrender this Warrant unless the
aggregate Warrant Shares represented by this Warrant is being
exercised. Upon delivery of the Exercise Notice (in the form
attached hereto) to the Company (with the attached Warrant Shares
Exercise Log) at its address for notice set forth herein and upon
payment of the Exercise Price multiplied by the number of Warrant
Shares that the Holder
intends to
purchase hereunder, the Company shall promptly (but in no event
later than five Trading Days after the Date of Exercise (as defined
herein) issue and deliver to the Holder, the Warrant Shares
issuable upon such exercise, which, as required by the Subscription
Agreement, shall bear the following legend, unless the Shares shall
have been included in an effective registration statement under the
1933 Act:
"THE SHARES
REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THESE SHARES MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO CALYPTE BIOMEDICAL
CORPORATION THAT SUCH REGISTRATION IS NOT
REQUIRED.”
(a) A
“Date of Exercise” means the date on
which the Holder shall have delivered to the Company: (i) the
Exercise Notice (and Warrant if the aggregate Warrant Shares are
being exercised), with the Warrant Exercise Log attached to it,
appropriately completed and duly signed and (ii) payment of the
Exercise Price for the number of Warrant Shares so indicated by the
Holder to be purchased.
(b) If by the
fifth Trading Day after a Date of Exercise the Company fails to
deliver the required number of Warrant Shares in the manner
required pursuant to Section 4, then the Holder will have the right
to rescind such exercise.
(c) The
Company's obligations to issue and deliver Warrant Shares in
accordance with the terms hereof are absolute and unconditional,
irrespective of any action or inaction by the Holder to enforce the
same, any waiver or consent with respect to any provision hereof.
Nothing herein shall limit a Holder's right to pursue any other
remedies available to it hereunder, at law or in equity including,
without limitation, a decree of specific performance and/or
injunctive relief with respect to the Company's failure to timely
deliver certificates representing Warrant Shares upon exercise of
the Warrant as required pursuant to the terms hereof.
5. Charges,
Taxes and Expenses . Issuance and delivery of Warrant Shares
upon exercise of this Warrant shall be made without charge to the
Holder for any transfer agent fee or other incidental expense in
respect of the issuance of such certificates, all of which expenses
shall be paid by the Company; provided, however, that the Company
shall not be required to pay any tax which may be payable in
respect of any issuance, delivery or transfer of Warrant Shares.
The Holder shall be responsible for all tax liability that may
arise as a result of holding or transferring this Warrant or
receiving Warrant Shares upon exercise hereof.
6.
Replacement of Warrant . If this Warrant is mutilated, lost,
stolen or destroyed, the Company shall issue or cause to be issued
in exchange and substitution for and upon cancellation hereof, or
in lieu of and substitution for this Warrant, a New
Warrant,