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EXHIBIT 4.1
WARRANT TO PURCHASE A MAXIMUM OF
_________ SHARES OF COMMON STOCK OF
CALYPTE BIOMEDICAL CORPORATION
(Void after December ___, 2001)
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES
UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT.
THIS WARRANT AND THE SHARES PURCHASABLE HEREUNDER ARE SUBJECT TO RESTRICTIONS ON
TRANSFER AS SET FORTH HEREIN.
This certifies that CAMBRIDGE BIOTECH CORPORATION (the
"Holder"), or permitted assigns, for value received, is entitled to purchase
from CALYPTE BIOMEDICAL CORPORATION, a Delaware corporation (the "Company"),
subject to the terms set forth below, a maximum of __________ fully paid and
nonassessable shares (subject to adjustment as provided herein) of the Company's
Common Stock (the "Warrant Shares") for cash at a price of $____ per share (the
"Exercise Price") (subject to adjustment as provided herein) at any time or from
time to time up to and including 5:00 p.m. (Pacific Time) on December ____,
2001, unless terminated earlier in accordance with the provisions of this
Warrant (in either case, the "Expiration Date"), upon surrender to the Company
at its principal office (or at such other location as the Company may advise the
Holder in writing) of this Warrant properly endorsed with the Form of
Subscription attached hereto duly filled in and signed and upon payment in cash
or by check of the aggregate Exercise Price for the number of shares for which
this Warrant is being exercised determined in accordance with the provisions
hereof. The Exercise Price is subject to adjustment as provided in Section 3 of
this Warrant. This Warrant is issued subject to the following terms and
conditions:
1. EXERCISE, ISSUANCE OF CERTIFICATES, REDUCTION IN NUMBER OF WARRANT
SHARES. This Warrant is exercisable at the option of the Holder of record hereof
on or prior to the Expiration Date, at any time or from time to time following
its issuance, for all or any part of the Warrant Shares (but not for a fraction
of a share) which may be
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purchased ▇▇▇▇▇▇▇▇▇, as that number may be adjusted pursuant to Section 3 of
this Warrant. The Company agrees that the Warrant Shares purchased under this
Warrant shall be and are deemed to be issued to the Holder hereof as the record
owner of such Warrant Shares as of the close of business on the date on which
this Warrant shall have been surrendered, properly endorsed, the completed and
executed Form of Subscription delivered, and payment made for such Warrant
Shares. Certificates for the Warrant Shares so purchased, together with any
other securities or property to which the Holder hereof is entitled upon such
exercise, shall be delivered to the Holder hereof by the Company at the
Company's expense as soon as practicable after the rights represented by this
Warrant have been so exercised. In case of a purchase of less than all the
Warrant Shares which may be purchased under this Warrant, the Company shall
cancel this Warrant and execute and deliver to the Holder hereof within a
reasonable time a new Warrant or Warrants of like tenor for the balance of the
Warrant Shares purchasable under the Warrant surrendered upon such purchase.
Each stock certificate so delivered shall be registered in the name of such
Holder.
2. SHARES TO BE FULLY PAID. The Company covenants and agrees that all
Warrant Shares, will, upon issuance and, if applicable, payment of the
applicable Exercise Price, be duly authorized, validly issued, fully paid and
nonassessable, and free of all liens and encumbrances, except for restrictions
on transfer provided for herein or under applicable federal and state securities
laws.
3. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The Exercise
Price and the total number of Warrant Shares shall be subject to adjustment from
time to time upon the occurrence of certain events described in this Section 3.
Upon each adjustment of the Exercise Price, the Holder of this Warrant shall
thereafter be entitled to purchase, at the Exercise Price resulting from such
adjustment, the number of shares obtained by multiplying the Exercise Price in
effect immediately prior to such adjustment by the number of shares purchasable
pursuant hereto immediately prior to such adjustment, and dividing the product
thereof by the Exercise Price resulting from such adjustment.
3.1 SUBDIVISION OR COMBINATION OF STOCK. In case the Company
shall at any time subdivide its outstanding shares of Common Stock into a
greater number of shares or declare a Common Stock dividend or make a
distribution with respect to the shares of Common Stock payable in shares of
Common Stock, the Exercise Price in effect immediately prior to such subdivision
or stock dividend or stock distribution shall be proportionately reduced and the
number of Warrant Shares issuable hereunder proportionately increased, and
conversely, in case the outstanding shares of the Common Stock of the Company
shall be combined into a smaller number of shares, the Exercise Price in effect
immediately prior to such combination shall be proportionately increased and the
number of Warrant Shares issuable hereunder proportionately decreased.
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3.2 RECLASSIFICATION. If any reclassification of, or any
distribution with respect to, the capital stock of the Company (the
"Reclassification Event") shall be effected in such a way that holders of Common
Stock shall be entitled to receive stock, securities, or other assets or
property (other than cash, Common Stock or securities of another corporation),
then, as a condition of such Reclassification Event, lawful and adequate
provisions shall be made whereby the Holder hereof shall thereafter have the
right to purchase and receive (in lieu of or in addition to, as appropriate, the
shares of Common Stock of the Company immediately theretofore purchasable and
receivable upon the exercise of the rights represented hereby) such shares of
stock, securities, or other assets or property as may be issued or payable with
respect to or in exchange for a number of outstanding shares of such Common
Stock equal to the number of shares of such stock immediately theretofore
purchasable and receivable upon the exercise of the rights represented hereby.
In any Reclassification Event, appropriate provision shall be made with respect
to the rights and interests of the Holder of this Warrant to the end that the
provisions hereof (including, without limitation, provisions for adjustments of
the Exercise Price and of the number of Warrant Shares), shall thereafter be
applicable, as nearly as may be, in relation to any shares of stock, securities,
or assets thereafter deliverable upon the exercise hereof.
3.3 NOTICE OF ADJUSTMENT. Upon any adjustment of the Exercise
Price or any increase or decrease in the number of Warrant Shares, the Company
shall give written notice thereof, by first class mail postage prepaid,
addressed to the registered Holder of this Warrant at the address of such Holder
as shown on the books of the Company. The notice shall be prepared and signed by
the Company's Chief Financial Officer and shall state the Exercise Price
resulting from such adjustment and the increase or decrease, if any, in the
number of shares purchasable at such price upon the exercise of this Warrant,
setting forth in reasonable detail the method of calculation and the facts upon
which such calculation is based.
4. NO VOTING OR DIVIDEND RIGHTS. Nothing contained in this Warrant
shall be construed as conferring upon the holder hereof the right to vote or to
consent to receive notice as a stockholder of the Company on any other matters
or any rights whatsoever as a stockholder of the Company. No dividends or
interest shall be payable or accrued in respect of this Warrant or the interest
represented hereby or the shares purchasable hereunder until, and only to the
extent that, this Warrant shall have been exercised.
5. COMPLIANCE WITH SECURITIES ACT, TRANSFERABILITY OF WARRANT,
DISPOSITION OF SHARES OF COMMON STOCK.
5.1 COMPLIANCE WITH SECURITIES ACT. The Holder of this
Warrant, by acceptance hereof, agrees that this Warrant and the Warrant Shares
to be issued upon exercise hereof are being acquired for investment and that it
will not offer, sell, or
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otherwise dispose of this Warrant or any Warrant Shares except under
circumstances which will not result in a violation of the Act or any applicable
state securities laws. This Warrant and all Warrant Shares (unless registered
under the Act) shall be stamped or imprinted with a legend in substantially the
following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO CALYPTE BIOMEDICAL
CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
5.2 ACCESS TO INFORMATION; PRE-EXISTING RELATIONSHIP. ▇▇▇▇▇▇
has had the opportunity to ask questions of, and to receive answers from,
appropriate executive officers of the Company with respect to the terms and
conditions of the transactions contemplated hereby and with respect to the
business, affairs, financial condition and results of operations of the Company.
▇▇▇▇▇▇ has had access to such financial and other information as is necessary in
order for Holder to make a fully informed decision as to investment in the
Company, and has had the opportunity to obtain any additional information
necessary to verify any of such information to which ▇▇▇▇▇▇ has had access.
Holder further represents and warrants that he has either (i) a pre-existing
relationship with the Company or one or more of its officers or directors
consisting of personal or business contacts of a nature and duration which
enable him to be aware of the character, business acumen and general business
and financial circumstances of the Company or the officer or director with whom
such relationship exists or (ii) such business or financial expertise as to be
able to protect his own interests in connection with the purchase of the Shares.
5.3 WARRANT TRANSFERABLE. Subject to compliance with
applicable federal and state securities laws under which this Warrant was
purchased, this Warrant and all rights hereunder are transferable, in whole but
not in part, without charge to the Holder (except for transfer taxes), upon
surrender of this Warrant properly endorsed; provided, however, that the Holder
shall notify the Company in writing in advance of any proposed transfer and
shall not transfer this Warrant or any rights hereunder to any person or entity
which is then engaged in a business that in the reasonable judgment of the
Company is in direct competition with the Company. Notwithstanding the
foregoing, the Holder may transfer this Warrant, in whole but not in part, at
any time to an affiliate.
5.4 DISPOSITION OF WARRANT SHARES AND COMMON STOCK. With
respect to any offer, sale, or other disposition of the Warrant or any Warrant
Shares, the Holder hereof and each subsequent Holder of this Warrant agrees to
give written notice to the
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Company prior thereto, describing briefly the manner thereof, together with a
written opinion of such holder's counsel, if reasonably requested by the
Company, to the effect that such offer, sale or other disposition may be
effected without registration or qualification (under the Act as then in effect
or any federal or state law then in effect) of such Warrant or Warrant Shares,
as the case may be, and indicating whether or not under the Act certificates for
such Warrant or Warrant Shares to be sold or otherwise disposed of require any
restrictive legend as to applicable restrictions on transferability in order to
insure compliance with the Act. Promptly upon receiving such written notice and
opinion, the Company, as promptly as practicable, shall notify such Holder that
such Holder may sell or otherwise dispose of such Warrant or Warrant Shares, all
in accordance with the terms of the notice delivered to the Company. If a
determination has been made pursuant to this subparagraph 5.4 that the opinion
of the counsel for the Holder is not reasonably satisfactory to the Company, the
Company shall so notify the Holder promptly after such determination has been
made. Notwithstanding the foregoing, such Warrant or Warrant Shares may be
offered, sold or otherwise disposed of in accordance with Rule 144 under the
Act, provided that the Company shall have been furnished with such information
as the Company may request to provide reasonable assurance that the provisions
of Rule 144 have been satisfied. Each certificate representing the Warrant or
Warrant Shares thus transferred (except a transfer pursuant to Rule 144) shall
bear a legend as to the applicable restrictions on transferability in order to
insure compliance with the Act, unless in the aforesaid opinion of counsel for
the Holder, such legend is not required in order to insure compliance with the
Act. The Company may issue stop transfer instructions to its transfer agent in
connection with such restrictions.
6. MODIFICATION AND WAIVER. This Warrant and any provision hereof may
be changed, waived, discharged, or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
7. NOTICES. Any notice, request, or other document required or
permitted to be given or delivered to the Holder hereof or the Company shall be
delivered or shall be sent by certified mail, postage prepaid, to each such
Holder at its address as shown on the books of the Company or to the Company at
the address indicated therefor in the first paragraph of this Warrant or such
other address as either may from time to time provide to the other.
8. CERTAIN EVENTS. If at any time:
(1) the Company shall declare any cash dividend upon its
Common Stock;
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(2) the Company shall declare any dividend upon its Common
Stock or make any other distribution to the holders of its Common Stock (other
than a dividend or distribution payable solely in Common Stock);
(3) the Company shall offer for subscription pro rata to the
holders of its Common Stock any additional shares of stock of any class or other
rights;
(4) there shall be any subdivision, capital reorganization or
reclassification of the capital stock of the Company;
(5) there shall be a merger, consolidation, sale of stock,
sale of a substantial amount of assets or other transaction involving the
Company pursuant to which the stockholders of the Company immediately prior to
such merger, consolidation, stock sale, asset sale or other transaction own less
than 50% of the voting power of the surviving or acquiring entity; or
(6) there shall be a voluntary or involuntary dissolution,
liquidation, or winding-up of the Company.
then, in any one or more of said cases, the Company shall give, by first class
mail, postage prepaid, addressed to the Holder of this Warrant at the address of
such Holder as shown on the books of the Company, (a) at least 10 days' prior
written notice of the date on which the books of the Company shall close or a
record shall be taken for such dividend, distribution, or subscription rights,
and (b) in the case of any such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation or winding-up, at least 10 days' prior
written notice of the date when the same shall take place; provided, however,
that no such notice shall be required with respect to the implementation of a
stockholder rights plan. Any notice given in accordance with the foregoing
clause (a) shall also specify, in the case of any such dividend, distribution,
or subscription rights, the date on which the holders of Common Stock shall be
entitled thereto. Any notice given in accordance with the foregoing clause (b)
shall also specify the date on which the holders of Common Stock shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation, winding-up or conversion, as the case may be. If
this Warrant is not exercised prior to the occurrence of an event described in
clause (6) above, this Warrant shall expire upon the occurrence of such event.
If this Warrant is not exercised prior to the occurrence of an event described
in clause (5) above, then (i) if the consideration to the stockholders of the
Company in such transaction consists of at least 80% cash consideration, this
Warrant shall be treated in the same manner and given the same benefits afforded
to the options to purchase Common Stock under the Company's stock option plans
which receive the most
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favorable treatment or benefits, including termination, liquidation or election
among alternatives, if such options are subject to such treatment or benefits
and (ii) in any event other than as described in (i) the Company shall take
appropriate provisions so that the acquiring or surviving entity shall assume
this Warrant and upon exercise thereof, the Holder shall receive the highest
amount of assets, securities or other consideration that it would have received
in connection with such transaction if it had exercised this Warrant immediately
prior to such transaction subject to adjustments (subsequent to such
transaction) as nearly equivalent as possible to the adjustments provided for in
Section 3 hereof (provided, however, that the registration rights with respect
to the shares issuable upon exericise of this Warrant shall not be binding upon
the surviving or acquiring corporation).
9. GOVERNING LAW. This Warrant shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of Delaware.
10. LOST WARRANTS. Upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction, or mutilation of this Warrant and,
in the case of any such loss, theft or destruction, upon receipt of an indemnity
reasonably satisfactory to the Company, or in the case of any such mutilation
upon surrender and cancellation of such Warrant, the Company, at its expense,
will make and deliver a new Warrant, of like tenor, in lieu of the lost, stolen,
destroyed or mutilated Warrant.
11. FRACTIONAL SHARES. No fractional shares shall be issued upon
exercise of this Warrant. The Company shall, in lieu of issuing any fractional
share, pay the Holder entitled to such fraction a sum in cash equal to such
fraction (calculated to the nearest 1/100th of a share) multiplied by the then
effective Exercise Price on the date the Form of Subscription is received by the
Company.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
duly executed by its officer, thereunto duly authorized as of this ____ day of
December, 1998.
CALYPTE BIOMEDICAL CORPORATION
a Delaware corporation
By:
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Name:
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Title:
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FORM OF SUBSCRIPTION
(To be signed only upon exercise of Warrant)
To:
The undersigned, the holder of the attached Common Stock Warrant,
hereby irrevocably elects to exercise the purchase right represented by such
Warrant for, and to purchase thereunder, (1)_____________ ((1)___________ )
shares of Common Stock of Calypte Biomedical Corporation (the "Company") and
herewith makes payment of $_________ therefor, and requests certificates for
such shares be issued in the name of, and delivered to, _____________________
whose address is
-------------------------------------------------------------.
The undersigned represents that it is acquiring such Common Stock for
its own account for investment and not with a view to or for sale in connection
with any distribution thereof.
DATED: ___________, _____
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(Signature must conform in all respects
to name of ▇▇▇▇▇▇ as specified on the
face of the Warrant)
Name:
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Title:
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(1) Insert here the number of shares called for on the face of the Warrant (or,
in the case of a partial exercise, the portion thereof as to which the Warrant
is being exercised), in either case without making any adjustment for any stock
or other securities or property or cash which, pursuant to the adjustment
provisions of the Warrant, may be deliverable upon exercise.
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