EX 10.189


     

     

    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

     

    Warrant
      No. ______

    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


    
      
        
        

      

      
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    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, but
      only
      upon

     


    
      
        
        

      

      
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    receipt
      of evidence reasonably satisfactory to the Company of such loss, theft or
      destruction and customary and reasonable indemnity (which shall not include
      a
      surety bond), if requested. Applicants for a New Warrant under such
      circumstances shall also comply with such other reasonable regulations and
      procedures and pay such other reasonable third-party costs as the Company may
      prescribe. If a New Warrant is requested as a result of a mutilation of this
      Warrant, then the Holder shall deliver such mutilated Warrant to the Company
      as
      a condition precedent to the Company’s obligation to issue the New
      Warrant.

     

    7.    Reservation
      of Warrant Shares.
      The
      Company covenants that it will at all times reserve and keep available out
      of
      the aggregate of its authorized but unissued and otherwise unreserved Common
      Stock, solely for the purpose of enabling it to issue Warrant Shares upon
      exercise of this Warrant as herein provided, the number of Warrant Shares which
      are then issuable and deliverable upon the exercise of this entire Warrant,
      free
      from preemptive rights or any other contingent purchase rights of Persons other
      than the Holder (taking into account the adjustments and restrictions of Section
      8). The Company covenants that all Warrant Shares so issuable and deliverable
      shall, upon issuance and the payment of the applicable Exercise Price in
      accordance with the terms hereof, be duly and validly authorized, issued and
      fully paid and nonassessable.

     

    8.    Certain
      Adjustments.
      The
      Exercise Price of Warrant Shares issuable upon exercise of this Warrant is
      subject to adjustment from time to time as set forth in this Section
      8.

     

    (a)    Stock
      Dividends and Splits.
      If the
      Company, at any time while this Warrant is outstanding, (i) pays a stock
      dividend on its Common Stock or otherwise makes a distribution on any class
      of
      capital stock that is payable in shares of Common Stock, (ii) subdivides
      outstanding shares of Common Stock into a larger number of shares, or (iii)
      combines outstanding shares of Common Stock into a smaller number of shares,
      then in each such case the Exercise Price shall be multiplied by a fraction
      of
      which the numerator shall be the number of shares of Common Stock outstanding
      immediately before such event and of which the denominator shall be the number
      of shares of Common Stock outstanding immediately after such event. Any
      adjustment made pursuant to clause (i) of this paragraph shall become effective
      immediately after the record date for the determination of stockholders entitled
      to receive such dividend or distribution, and any adjustment pursuant to clause
      (ii) or (iii) of this paragraph shall become effective immediately after the
      effective date of such subdivision or combination.

     

    (b)    Fundamental
      Transactions.
      If, at
      any time while this Warrant is outstanding there is a Fundamental Transaction,
      then the Holder shall have the right thereafter to receive, upon exercise of
      this Warrant, the same amount and kind of securities, cash or property as it
      would have been entitled to receive upon the occurrence of such Fundamental
      Transaction if it had been, immediately prior to such Fundamental Transaction,
      the holder of the number of Warrant Shares then issuable upon exercise in full
      of this Warrant (the “Alternate
      Consideration”).
      For
      purposes of any such exercise, the determination of the Exercise Price shall
      be
      appropriately adjusted to apply to such Alternate Consideration based on the
      amount of Alternate Consideration issuable in respect of one share of Common
      Stock in such Fundamental Transaction, and the Company shall apportion the
      Exercise Price among the Alternate Consideration in a reasonable manner
      reflecting the relative value of any different components of the Alternate
      Consideration. If holders of Common Stock are given any choice as to
      the

     


    
      
        
        

      

      
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    securities,
      cash or property to be received in a Fundamental Transaction, then the Holder
      shall be given the same choice as to the Alternate Consideration it receives
      upon any exercise of this Warrant following such Fundamental Transaction. Any
      successor to the Company or surviving entity in such Fundamental Transaction
      shall, issue to the Holder a new warrant substantially in the form of this
      Warrant and consistent with the foregoing provisions and evidencing the Holder's
      right to purchase the Alternate Consideration for the aggregate Exercise Price
      upon exercise thereof. The terms of any agreement pursuant to which a
      Fundamental Transaction is effected shall include terms requiring any such
      successor or surviving entity to comply with the provisions of this paragraph
      (b). 

     

    9.    Payment
      of Exercise Price.
      The
      Holder shall pay the Exercise Price in cash by delivering to the Company
      immediately available funds.

     

    10.    No
      Fractional Shares.
      No
      fractional shares of Warrant Shares will be issued in connection with any
      exercise of this Warrant. In lieu of any fractional shares which would,
      otherwise be issuable, the Company shall pay cash equal to the product of such
      fraction multiplied by the closing price of one Warrant Share as reported by
      the
      applicable Trading Market on the date of exercise.

     

    11.    Notices.
      Any and
      all notices or other communications or deliveries hereunder (including, without
      limitation, any Exercise Notice) shall be in writing and shall be deemed given
      and effective on the earliest of (i) the date of transmission, if such notice
      or
      communication is delivered via facsimile at the facsimile number specified
      in
      this Section prior to 6:30 p.m. (New York City time) on a Trading Day, (ii)
      the
      next Trading Day after the date of transmission, if such notice or communication
      is delivered via facsimile at the facsimile number specified in this Section
      on
      a day that is not a Trading Day or later than 6:30 p.m. (New York City time)
      on
      any Trading Day, (iii) the Trading Day following the date of mailing, if sent
      by
      nationally recognized overnight courier service, or (iv) upon actual receipt
      by
      the party to whom such notice is required to be given. The addresses for such
      communications shall be: (i) if to the Company, to Calypte Biomedical
      Corporation, Attn: President, or to Facsimile No.: 503-601-6299 (or such other
      address as the Company shall indicate in writing in accordance with this
      Section), or (ii) if to the Holder, to the address or facsimile number appearing
      on the warrant register or such other address or facsimile number as the Holder
      may provide to the Company in accordance with this Section.

     

    12.    Warrant
      Agent.
      The
      Company shall serve as warrant agent under this Warrant. Upon 10 days' notice
      to
      the Holder, the Company may appoint a new warrant agent. Any corporation into
      which the Company or any new warrant agent may be merged or any corporation
      resulting from any consolidation to which the Company or any new warrant agent
      shall be a party or any corporation to which the Company or any new warrant
      agent transfers substantially all of its corporate trust or shareholders
      services business shall be a successor warrant agent under this Warrant without
      any further act. 

     

    13.    Miscellaneous.

     

    (a)    This
      Warrant shall be binding on and inure to the benefit of the parties hereto
      and
      their respective successors and assigns. Subject to the preceding sentence,
      nothing in

     


    
      
        
        

      

      
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    this
      Warrant shall be construed to give to any Person other than the Company and
      the
      Holder any legal or equitable right, remedy or cause of action under this
      Warrant. This Warrant may be amended only in writing signed by the Company
      and
      the Holder and their successors and assigns.

     

    (b)    All
      questions concerning the construction, validity, enforcement and interpretation
      of this Warrant shall be governed by and construed and enforced in accordance
      with the internal laws of the State of Delaware, without regard to the
      principles of conflicts of law thereof. Each party agrees that all legal
      proceedings concerning the interpretations, enforcement and defense of this
      Warrant and the transactions herein contemplated (“Proceedings”)
      (whether brought against a party hereto or its respective Affiliates, employees
      or agents) shall be commenced exclusively in the Portland Courts. Each party
      hereto hereby irrevocably submits to the exclusive jurisdiction of the Portland
      Courts for the adjudication of any dispute hereunder or in connection herewith
      or with any transaction contemplated hereby or discussed herein, and hereby
      irrevocably waives, and agrees not to assert in any Proceeding, any claim that
      it is not personally subject to the jurisdiction of any Portland Court, or
      that
      such Proceeding has been commenced in an improper or inconvenient forum. Each
      party hereto hereby irrevocably waives personal service of process and consents
      to process being served in any such Proceeding by mailing a copy thereof via
      registered or certified mail or overnight delivery (with evidence of delivery)
      to such party at the address in effect for notices to it under this Warrant
      and
      agrees that such service shall constitute good and sufficient service of process
      and notice thereof. Nothing contained herein shall be deemed to limit in any
      way
      any right to serve process in any manner permitted by law. Each party hereto
      hereby irrevocably waives, to the fullest extent permitted by applicable law,
      any and all right to trial by jury in any legal proceeding arising out of or
      relating to this Warrant or the transactions contemplated hereby. If either
      party shall commence a Proceeding to enforce any provisions of this Warrant,
      then the prevailing party in such Proceeding shall be reimbursed by the other
      party for its attorney’s fees and other costs and expenses incurred with the
      investigation, preparation and prosecution of such Proceeding.

     

    (c)    The
      headings herein are for convenience only, do not constitute a part of this
      Warrant and shall not be deemed to limit or affect any of the provisions
      hereof.

     

    (d)    In
      case
      any one or more of the provisions of this Warrant shall be invalid or
      unenforceable in any respect, the validity and enforceability of the remaining
      terms and provisions of this Warrant shall not in any way be affected or
      impaired thereby and the parties will attempt in good faith to agree upon a
      valid and enforceable provision which shall be a commercially reasonable
      substitute therefor, and upon so agreeing, shall incorporate such substitute
      provision in this Warrant.

     

    (e)    Prior
      to
      exercise of this Warrant, the Holder hereof shall not, by reason of being a
      Holder, be entitled to any rights of a stockholder with respect to the Warrant
      Shares.

     

    [REMAINDER
      OF PAGE INTENTIONALLY LEFT BLANK,

    SIGNATURE
      PAGE FOLLOWS]

     


    
      
        
        

      

      
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    IN
      WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by
      its
      authorized officer as of the date first indicated above.

     

    CALYPTE
      BIOMEDICAL CORPORATION

     

     

    By: 
      
      
        

      

    

    Name: 
      Jerrold Dotson

    Title:   
      Vice President Finance

     

     

    
      
        
        

      

      
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    EXERCISE
      NOTICE

    CALYPTE
      BIOMEDICAL CORPORATION

    WARRANT
      NO. _______ DATED AUGUST __, 2008

     

    The
      undersigned Holder hereby irrevocably elects to purchase _____________ shares
      of
      Common Stock pursuant to the above referenced Warrant. Capitalized terms used
      herein and not otherwise defined have the respective meanings set forth in
      the
      Warrant.

     

    (1) The
      undersigned Holder hereby exercises its right to purchase _________________
      Warrant Shares pursuant to the Warrant.

     

    (2) The
      holder shall pay the sum of $____________ to the Company in accordance with
      the
      terms of the Warrant.

     

    (3) Pursuant
      to this Exercise Notice, the Company shall deliver to the holder _______________
      Warrant Shares in accordance with the terms of the Warrant.

     

    


    
      	 	 	 
	 	 	 
	
              Dated: 
                __________,
                __

            	 	
              Name
                of Holder/name on certificate:

            
	 	 	 
	 	 	
              (Print)  
                 ________________________________________

            
	 	 	 
	
              Mailing
                address for certificate:

            	 	
              By: 
                ___________________________________________

            
	 	 	
              Name: 
                _________________________________________

            
	 	 	
              Title: 
                __________________________________________

            
	 	 	 
	 	 	
              (Signature
                must conform in all respects to name of holder

              as
                specified on the face of the
                Warrant)

            


    

    


     


    
      
        
        

      

      
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    Warrant
      Shares Exercise Log

     

    
      	
              Date

            	
              Number
                of Warrant Shares

              Available
                to be Exercised

            	
              Number
                of Warrant

              Shares
                Exercised

            	
              Number
                of Warrant Shares Remaining to be Exercised

            
	
               

               

               

                   

               

               

               

               

               

               

               

            	   
	   
	   



    

    


     


    
      
        
        

      

      
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    CALYPTE
      BIOMEDICAL CORPORATION 

    WARRANT
      ORIGINALLY ISSUED AUGUST __, 2008

    WARRANT
      NO. _____

     

    FORM
      OF
      ASSIGNMENT

     

    [To
      be
      completed and signed only upon transfer of Warrant]

     

    FOR
      VALUE
      RECEIVED, the undersigned hereby sells, assigns and transfers unto
      ________________________________ the right represented by the above-captioned
      Warrant to purchase ____________ shares of Common Stock to which such Warrant
      relates and appoints ________________ attorney to transfer said right on the
      books of the Company with full power of substitution in the
      premises.

     

    Dated: _______________,
      ____

     

    _______________________________________

    (Signature
      must conform in all respects to name

    of
      holder
      as specified on the face of the Warrant)

     

     

    _______________________________________

    Address
      of Transferee

     

     

    _______________________________________

     

    _______________________________________

     

    In
      the
      presence of:

     

    __________________________

     

     

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