AMENDMENT TO SECURED 8% CONVERTIBLE PROMISSORY NOTES
AMENDMENT
TO SECURED 8% CONVERTIBLE PROMISSORY NOTES
THIS
AMENDMENT (this "Amendment")
to
Secured 8% Convertible Promissory Notes (the "Notes")
is
made as of March 21, 2007, by and between Calypte Biomedical Corporation, a
Delaware corporation (the "Company"),
and
SF Capital Partners Ltd. (the “Investor”).
If
there is any inconsistency between the terms of this Amendment and any other
agreement referenced herein, the terms of this Amendment will
govern.
WHEREAS,
the Company and the Investor are parties to (i) the Securities Purchase
Agreement dated May 28, 2004 (the “Securities
Purchase Agreement”)
among
the Company and the investors signatory thereto ( “Investors
I”),
pursuant to which the Company issued and sold to Investors I, and Investors
I
purchased from the Company, certain shares and warrants pursuant to the terms
set forth in the Securities Purchase Agreement, (ii) the Amendment to Securities
Purchase Agreement dated April 4, 2005 (the “Amendment
to Securities Purchase Agreement”)
among
the Company and Investors I, pursuant to which Investors I received certain
anti-dilution entitlements and new entitlements, including, without limitation,
certain warrants (the “2004 Amendment
Warrants”)
pursuant to the terms set forth in the Amendment to Securities Purchase
Agreement, (iii) the Purchase Agreement dated as of April 4, 2005 (the
"Purchase
Agreement")
among
the Company and the investors signatory thereto ( “Investors
II”),
pursuant to which the Company issued and sold to Investors II, and Investors
II
purchased from the Company, certain secured 8% convertible promissory notes,
which included the Notes, Series A warrants (the “2005
Series A Warrants”)
and
Series B warrants (the “2005
Series B Warrants”)
pursuant to the terms set forth in the Purchase Agreement, and (iv) the letter
agreement dated July 7, 2006 (the “Letter
Agreement”)
between the Company and the Investor, pursuant to which the 2004 Warrants and
the 2004 Amendment Warrants were amended to lower their exercise price from
$0.45 to $0.15 for a period of time commencing through and including July 21,
2006, after which time the exercise price reverted back to $0.45 (the
“2005 Amendment
Warrants”)
and to
issue to the Investor an additional warrant equal to 50% of the aggregate amount
of the 2005 Amendment Warrants exercised before July 21, 2006 (the “2006 Additional
Warrant”);
WHEREAS,
the parties now desire to change the maturity date (the “Maturity
Date”)
of the
Notes issued by the Company to the Investor pursuant to the Purchase Agreement
in the initial principal amount of $4,000,000 in accordance with the provisions
set forth in Section 15(f) of the Notes and Section 6.4 of the Purchase
Agreement;
WHEREAS,
in consideration of the foregoing, the Company agrees to lower the exercise
price of the Investor’s currently outstanding warrants, which consist of 2005
Series A Warrants, 2005 Series B Warrants, and 2006 Additional Warrant
(collectively, the “Warrants”),
which
equal an aggregate of 21,491,666 shares of the Company’s common stock (the
“Warrant
Shares”),
as
follows: the Exercise Price of 40% of the Warrants Shares, equaling 8,596,666
Warrant Shares from the 2005 Series A Warrant will be lowered to $0.03 per
Warrant Share and the Exercise Price of 60% of the Warrant Shares, equaling
12,775,000 Warrant Shares, from the Series A Warrant, Series B Warrant, 2005
Amendment Warrant and 2006 Additional Warrant, will be lowered to $0.10 per
Warrant Share, all as more particularly set forth on Schedule
1
attached
hereto, and to change the expiration date of the 2006 Additional Warrant to
coincide with the change of the Maturity Date of the Notes; and
WHEREAS,
the parties agree to amend and modify the 2006 Additional Warrant to delete
the
provision of piggyback registration rights from the 2006 Additional Warrant.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the Company and the Investor agree as
follows:
1. All
references in the Notes to the due date of “April 3, 2007” are hereby amended to
“April 3, 2009.”
2. The
Expiration Date (as defined in the 2006 Additional Warrant) is hereby amended
to
April 3, 2009.
3. The
Warrants are hereby amended to lower the exercise prices as more specifically
set forth in Schedule
1
and in
the amended warrants, which are attached hereto as Exhibit
A,
Exhibit
▇-▇,
▇▇▇▇▇▇▇
▇-▇,
Exhibit
C,
and
Exhibit
D
and to
delete the provision of piggyback registration rights from the 2006 Additional
Warrant.
4. Except
for the amendments provided for herein, the Notes and the Warrants shall remain
unchanged and in full force and effect.
5. This
Amendment may be executed in counterparts, each of which shall be deemed to
be
an original, but which together shall be deemed to be one and the same
instrument.
6. This
Amendment shall be governed by and construed in accordance with the laws of
the
State of New York without giving effect to the conflicts of law principles
thereof.
[Signature
Pages Follow]
[SIGNATURE
PAGE FOR THE COMPANY]
IN
WITNESS WHEREOF,
each of
the parties hereto has caused a counterpart of this Amendment to be duly
executed and delivered as of the date first above written.
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CALYPTE
BIOMEDICAL CORPORATION
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| By: | ||
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
Executive
Vice President
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| Title | ||
[SIGNATURE
PAGE FOR THE INVESTOR]
IN
WITNESS WHEREOF,
the
parties hereto has caused a counterpart of this Amendment to be duly executed
and delivered as of the date first above written.
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SF
Capital Partners Ltd.
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Name
of Investor
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| By: | ||
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Signature
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| Its: | ||
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Title
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Calypte
Biomedical Corporation
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SF
CAPITAL WARRANTS
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SCHEDULE
1
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2007
Warrant Repricing
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SF
Capital Partners
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Warrant
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Issue
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Expiration
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Current
Warrants
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March
2007 Repricing
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Holder
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No.
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Date
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Date
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Source
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Shares
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Price
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Shares
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Price
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Exhibit
A
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05-016
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30-Jun-05
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28-May-09
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2004
PIPE Anti-Dilution new warrants
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408,333
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$
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0.325
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408,333
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$
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0.10
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Exhibit
B-1
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05-001
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04-Apr-05
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03-Apr-10
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April
'05 Notes - Series A Warrants
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13,333,333
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$
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0.325
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8,596,666
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$
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0.03
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Exhibit
B-2
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$
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0.325
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4,736,667
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$
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0.10
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Exhibit
C
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05-006
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04-Apr-05
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03-Apr-10
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April
'05 Notes - Series B Warrants
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6,000,000
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$
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0.325
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6,000,000
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$
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0.10
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Exhibit
D
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06-002
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03-Aug-06
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03-Apr-09
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2006
Additional Warrants
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1,750,000
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$
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0.25
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1,750,000
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$
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0.10
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21,491,666
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21,491,666
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