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: September __,
2008
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Calypte Biomedical Corporation
, a Delaware corporation (the
“Company” ), hereby certifies that,
for value received, Almyn Limited, an entity registered in the
British Virgin Islands, 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 September __, 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 $0.06, 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 September __, 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 de