EX 10.188


     

     

    EXHIBIT
      10.188

     

    THE
      SHARES OF COMMON
      STOCK
      SUBSCRIBED FOR BY THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
      ACT OF 1933, AS AMENDED, OR ANY OTHER APPLICABLE STATE SECURITIES LAWS AND
      TRANSFER OF SUCH SHARES IS RESTRICTED BY THE TERMS OF THIS
      AGREEMENT.

     

    SUBSCRIPTION
      AGREEMENT

     

    This
      SUBSCRIPTION AGREEMENT (the "Agreement")
      is
      made by and between the subscriber hereto (the “Subscriber”)
      and
Calypte
      Biomedical Corporation,
      a
Delaware
      corporation
      (the "Company”).
      

     

    The
      Subscriber hereby agrees to purchase, and the Company hereby agrees to issue
      and
      to sell to the Subscriber, the number of shares (the “Shares”)
      of
      common stock of the Company, par value $.03 per share (the "Common
      Stock"),
      and
      warrant to purchase additional shares of Common Stock (the “Warrant”),
      in
      the form of Exhibit
      A,
      (the
      Shares, the Warrant and the shares underlying the Warrant are hereinafter
      referred to collectively as the “Securities”),
      set
      forth on the signature page, for a purchase price in cash equal to $0.05
      per
      share (the aggregate amount to be paid by the Subscriber shall be referred
      to as
      the "Purchase
      Price").
      After
      acceptance of this Agreement by the Company and payment and delivery by the
      Subscriber to the Company of the Purchase Price in the form of wire transfer
      pursuant to the terms of Section 7(b) of this Agreement, the Company shall
      issue
      and deliver to the Subscriber the Securities. 

    


    NOW,
      THEREFORE, in order to implement the foregoing and in consideration of the
      mutual representations, warranties, covenants and agreements contained herein
      and for other good and valuable consideration, the receipt and adequacy of
      which
      are hereby acknowledged, the parties hereto agree as follows.

     

    1.    Subscriber's
      Representations and Warranties.
      The
      Subscriber hereby represents and warrants to and agrees with the Company
      that:

    


    (a)    Access
      to Information.
      The
      Subscriber acknowledges that it has been furnished with the Company's Form
      10-K
      for the year ended December 31, 2007 as filed with the Securities and Exchange
      Commission (the “Commission”)
      together with all subsequently filed Forms 10-Q, 8-K, and other publicly
      available filings made with the Commission (hereinafter referred to collectively
      as the "Reports")
      and
      has been afforded (i) the opportunity to ask such questions as it has deemed
      necessary of, and to receive answers from, representatives of the Company
      concerning the terms and conditions of the offering of the Securities and the
      merits and risks of investing in the Company; (ii) access to information about
      the Company and its subsidiary and their respective financial condition, results
      of operations, business, properties, management and prospects sufficient to
      enable it to evaluate its investment; and (iii) the opportunity to obtain such
      additional information that the Company possesses or can acquire without
      unreasonable effort or expense that is necessary to make an informed investment
      decision with respect to the investment. Neither such inquiries nor any other
      investigation conducted by or on behalf of the Subscriber or its representatives
      or counsel shall modify, amend


    
      
         

      

      
         

        
          

        

      

      
         

      

    


    or
      affect
      the Subscriber's right to rely on the truth, accuracy and completeness of the
      Reports and the Company's representations and warranties contained
      herein.

    


    (b)    Information
      on Subscriber.
      The
      Subscriber is and was not a “U.S. person,” as defined in Regulation S of the
      Securities Act of 1933, as amended (the “1933
      Act”),
      at
      the time the offer or sale of the Securities is made. Additionally, the
      Subscriber is an "accredited investor," as such term is defined in Regulation
      D
      of the 1933 Act or is part of a group that is experienced in investments and
      business matters, has made investments of a speculative nature and has purchased
      securities of United States publicly-owned companies in private placements
      in
      the past and, with its representatives, has such knowledge and experience in
      financial, tax and other business matters as to enable the Subscriber to utilize
      the information made available by the Company, to evaluate the merits and risks
      of an investment in the Company and to make an informed investment decision
      with
      respect to the proposed purchase, which represents a speculative investment.
      The
      Subscriber is a natural person or an entity duly organized, validly existing
      and
      in good standing under the laws of the jurisdiction of its organization with
      the
      requisite corporate or partnership power and authority to enter into and to
      consummate the transactions contemplated by this Agreement and otherwise to
      carry out its obligations hereunder. The execution, delivery and performance
      by
      the Subscriber of the transactions contemplated by this Agreement has been
      duly
      authorized by all necessary corporate or, if the Subscriber is not a
      corporation, such partnership, limited liability company or other applicable
      like action, on the part of the Subscriber. This Agreement has been duly
      executed by the Subscriber and when delivered by the Subscriber in accordance
      with terms hereof, will constitute the valid and legally binding obligation
      of
      the Subscriber, enforceable against it in accordance with its terms, except
      as
      such enforceability may be limited by applicable bankruptcy, insolvency,
      reorganization, moratorium, liquidation or similar laws relating to, or
      affecting generally the enforcement of, creditors’ rights and remedies or by
      other equitable principles of general application. The Subscriber is able to
      bear the risk of such investment for an indefinite period and to afford a
      complete loss thereof. The information set forth on the signature page hereto
      regarding the Subscriber is accurate.

     

    (c)    Purchase
      of Securities and Investment Intent.
      The
      Subscriber is purchasing the Securities for its own account for the Purchase
      Price. The Subscriber is acquiring the Securities as principal for its own
      account for investment purposes only and not with a view to or for distributing
      or reselling such Shares or Warrant or any part thereof, without prejudice,
      however, to the Subscriber’s right at all times to sell or otherwise dispose of
      all or any part of such Securities in compliance with applicable federal and
      state securities laws. The Subscriber does not have any agreement or
      understanding, directly or indirectly, with any person to distribute any of
      the
      Securities. The Subscriber also represents that its purchase of the Securities
      is intended to be made as an “Offshore
      Transaction”
as
      defined in Regulation S. 

    


    (d)    Compliance
      with Securities Act.
      The
      Subscriber understands and agrees that the Securities have not been registered
      under the 1933 Act, by reason of their issuance in a transaction that does
      not
      require registration under the 1933 Act (based in part on the accuracy of the
      representations and warranties of the Subscriber contained herein), and that
      such Securities must be held unless a subsequent disposition is registered
      under
      the 1933 Act or is exempt from such registration.


    
      
         

      

      
         

        
          

        

      

      
         

      

    


    (e)    Legend
      on Securities.
      The
      Securities shall bear the following legend (or something comparable for the
      Warrant), unless the Securities shall have been included in an effective
      registration statement under the 1933 Act:

    


    "THE
      SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
      SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THESE SECURITIES MAY
      NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
      EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR AN OPINION OF
      COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT
      REQUIRED.”

    


    (f)    Communication
      of Offer.
      The
      offer to sell the Securities was directly communicated to the Subscriber. At
      no
      time was the Subscriber presented with or solicited by any leaflet, newspaper
      or
      magazine article, radio or television advertisement, or any other form of
      general advertising or solicited or invited to attend a promotional meeting
      otherwise than in connection and concurrently with such communicated
      offer.

    


    (g)    Certain
      Trading Activities.
      The
      Subscriber has not directly or indirectly, nor has any person acting on behalf
      of or pursuant to any understanding with the Subscriber, engaged in any trading
      in any securities of the Company (including, without limitation, any Short
      Sales
      (defined below) involving the Company’s securities) during the 20 trading days
      immediately preceding the Closing. For purposes of this Section, "Short
      Sales"
      include,
      without limitation, all “short sales” as defined in Rule 3b-3 of the Securities
      Exchange Act of 1934, as amended (the “1934
      Act”)
      and
      include all types of direct and indirect stock pledges, forward sale contracts,
      options, puts, calls, short sales, swaps and similar arrangements (including
      on
      a total return basis), and sales and other transactions through non-U.S. broker
      dealers or foreign regulated brokers having the effect of hedging the securities
      or investment made under this Agreement. As of the date of this Agreement,
      the
      Subscriber has no open short position in the Common Stock, and covenants that
      neither it nor any person acting on its behalf or pursuant to any understanding
      with it will engage in any Short Sales prior to the public disclosure of the
      material terms of this transaction by the Company.

     

    (h)    Correctness
      of Representations.
      The
      Subscriber represents that the foregoing representations and warranties are
      true
      and correct. The foregoing representations and warranties shall survive the
      date
      hereof.

    


    2.    Company
      Representations and Warranties.
      The
      Company represents and warrants to and agrees with the Subscriber
      that:

    


    (a)    Due
      Incorporation.
      The
      Company is a corporation duly organized, validly existing and in good standing
      under the laws of the State of Delaware and has the requisite corporate power
      to
      own its properties and to carry on its business as now being conducted. The
      Company is duly qualified as a foreign corporation to do business and is in
      good
      standing in each jurisdiction where the nature of the business conducted or
      property owned by it makes such qualification necessary, other than those
      jurisdictions in which the failure to so


    
      
         

      

      
         

        
          

        

      

      
         

      

    


    qualify
      would not have a material adverse effect on the business, operations or
      financial condition of the Company.

    


    (b)    Outstanding
      Stock.
      All
      issued and outstanding shares of capital stock of the Company have been duly
      authorized and validly issued and are fully paid and
      non-assessable.

    


    (c)    Authority;
      Enforceability.
      This
      Agreement has been duly authorized, executed and delivered by the Company and
      is
      a valid and binding agreement enforceable in accordance with its terms, subject
      to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
      and
      similar laws of general applicability relating to or affecting creditors' rights
      generally and to general principles of equity; and the Company has full
      corporate power and authority necessary to enter into this Agreement and to
      perform its obligations hereunder.

    


    (d)    Shares
      Duly Authorized.
      The
      Securities when issued and delivered in accordance with the terms of this
      Agreement, will be duly authorized, validly issued, fully paid and
      non-assessable.

    


    (e)    Stop
      Transfer.
      The
      Shares are restricted securities as of the date of this Agreement. The Company
      will not issue any stop transfer order or other order impeding the sale, resale
      or delivery of the Stock, except as may be required by federal securities
      laws.

    


    (f)    No
      General Solicitation.
      Neither
      the Company, nor any of its affiliates, nor to its knowledge, any person acting
      on its or their behalf, has engaged in any form of general solicitation or
      general advertising (within the meaning of Regulation S or D under the 1933
      Act)
      in connection with the offer or sale of the Shares.

    


    3.    Regulation
      S Offering.
      This
      offering is being made pursuant to the exemption from the registration
      provisions of the 1933 Act afforded by Regulation S thereunder. 

    


    4.    Reissuance
      of Securities.
      The
      Company will cause the removal of the legend set forth in Section 1(e) above
      at
      such time as (a) the Subscriber is permitted to, and disposes of, the Securities
      pursuant to an exemption to the registration requirements of the 1933 Act or
      Rule 144 of the 1933 Act, in the opinion of counsel reasonably satisfactory
      to
      the Company, or (b) upon sale of the Securities pursuant to an effective
      registration statement under the 1933 Act. The Company agrees to cooperate
      with
      the Subscriber in connection with all sales pursuant to Rule 144 of the 1933
      Act
      and provide legal opinions necessary to allow such sales provided the Company
      and its counsel receive requested written representations from the Subscriber
      and selling broker, if any. The Company will pay for its costs in connection
      with the removal of the legend hereunder.

    


    5.    “Piggy-Back”
      Registration Rights.
      

    


    (a)    The
      Company agrees that when it registers any Common Stock under the 1933 Act by
      registration on Form S-1 or other similar form for sale for the account of
      one
      or more holders of Common Stock, the Company will use its best efforts to
      register all or some portion of the Securities in such registration statement
      as
      the Company may reasonably


    
      
         

      

      
         

        
          

        

      

      
         

      

    


    determine
      feasible. The Company will pay all expenses incident to the registration of
      the
      Securities hereunder and the Company’s performance of or compliance with this
      Agreement.

    


    (b)    The
      Seller will furnish to the Company in writing such information and
      representation letters with respect to itself and the proposed distribution
      by
      it as reasonably shall be necessary in order to assure compliance with federal
      and state securities laws. 

     

    6.    Fees
      and Expenses.
      Each
      party shall pay the fees and expenses of its advisers, counsel, accountants
      and
      other experts, if any, and all other expenses incurred by such party incident
      to
      the negotiation, preparation, execution, delivery and performance of this
      Agreement. The Company shall pay all stamp and other taxes and duties levied
      in
      connection with the issuance of the Securities.

    


    7.    Miscellaneous.

    


    (a)    Notices.
      All
      notices, demands, requests, consents, approvals, and other communications
      required or permitted hereunder shall be in writing and, unless otherwise
      specified herein, shall be (i) personally served, (ii) deposited in the mail,
      registered or certified, return receipt requested, postage prepaid, (iii)
      delivered by reputable air courier service with charges prepaid, or (iv)
      transmitted by hand delivery or facsimile, addressed as set forth below or
      to
      such other address as such party shall have specified most recently by written
      notice. Any notice or other communication required or permitted to be given
      hereunder shall be deemed effective (a) upon hand delivery or delivery by
      facsimile, with accurate confirmation generated by the transmitting facsimile
      machine, at the address or number designated below (if delivered on a business
      day during normal business hours where such notice is to be received), or the
      first business day following such delivery (if delivered other than on a
      business day during normal business hours where such notice is to be received)
      or (b) on the second business day following the date of mailing by express
      courier service, fully prepaid, addressed to such address, or upon actual
      receipt of such mailing, whichever shall first occur. The addresses for such
      communications shall be: (i) if to the Company to Calypte Biomedical
      Corporation, 16290 SW Upper Boones Ferry Road, Portland, Oregon 97224, facsimile
      number: (503) 601-6299, and
      (ii)
      if to the Subscriber, to the name, address and facsimile number set forth on
      the
      signature page hereto. 

    


    (b)    Closing.
      The
      closing of the transactions contemplated by this Agreement shall take place
      on
      August 18, 2008 at 5:00 p.m. (Pacific Standard Time) at the Company’s corporate
      office or such other location and time as may be determined by the Company.
      At
      the closing, the Subscriber shall deliver to the Company the Purchase Price
      in
      United States dollars and in immediately available funds, by wire transfer
      to
      the following account:

    


    Pay
      to:

    FC
      -
      Silicon Valley Bank

    3003
      Tasman Drive

    Santa
      Clara, CA 95054, USA

    Routing
      & Transit
      #:                           
\\FW:121140399

    Swift
      Code:                                           
SVBKUS6S

    For
      Credit
      of:                                        
Calypte
      Biomedical Corporation

    Final
      Credit Account
      #:                      
FNC
      -
      3300349200


    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    Upon
      receipt of the Purchase Price, the Company shall deliver to the Subscriber,
      the
      Securities.

    


    (c)    Entire
      Agreement; Assignment.
      This
      Agreement represents the entire agreement between the parties hereto with
      respect to the subject matter hereof and may be amended only by a writing
      executed by both parties. No right or obligation of either party shall be
      assigned by that party without the written consent of the other party.


     

    (d)    Execution.
      This
      Agreement may be executed in separate counterparts, each of which shall be
      deemed an original and both of which shall constitute one and the same document.
      This Agreement may be executed by facsimile transmission.

    


    (e)    Governing
      Law.
      This
      Agreement shall be governed by and construed in accordance with the laws of
      the
      State of Oregon without regard to principles of conflicts of laws. Any action
      brought by either party against the other concerning the transactions
      contemplated by this Agreement shall be brought only in the state courts of
      Oregon or in the federal courts located in the state of Oregon. Both parties
      and
      the individuals executing this Agreement agree to submit to the jurisdiction
      of
      such courts and waive trial by jury. The prevailing party shall be entitled
      to
      recover from the other party its reasonable attorney's fees and costs. In the
      event that any provision of this Agreement or any other agreement delivered
      in
      connection herewith is invalid or unenforceable under any applicable statute
      or
      rule of law, then such provision shall be deemed inoperative to the extent
      that
      it may conflict therewith and shall be deemed modified to conform with such
      statute or rule of law. Any such provision which may prove invalid or
      unenforceable under any law shall not affect the validity or enforceability
      of
      any other provision of any agreement.

    


    (f)    Specific
      Enforcement, Consent to Jurisdiction.
      The
      Company and the Subscriber acknowledge and agree that irreparable damage would
      occur in the event that any of the provisions of this Agreement were not
      performed in accordance with their specific terms or were otherwise breached.
      It
      is accordingly agreed that the parties shall be entitled to an injunction or
      injunctions to prevent or cure breaches of the provisions of this Agreement
      and
      to enforce specifically the terms and provisions hereof or thereof, this being
      in addition to any other remedy to which any of them may be entitled by law
      or
      equity. Subject to Section 7(e) hereof, each of the Company and the Subscriber
      hereby waives, and agrees not to assert in any such suit, action or proceeding,
      any claim that it is not personally subject to the jurisdiction of such court,
      that the suit, action or proceeding is brought in an inconvenient forum or
      that
      the venue of the suit, action or proceeding is improper. Nothing in this Section
      shall affect or limit any right to serve process in any other manner permitted
      by law.

     

     

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    IN
      WITNESS WHEREOF,
      the
      parties have hereby executed this Agreement as of the day set forth in the
      acceptance set forth below.

     

    
      	14,000,000	 	SUBSCRIBER
              NAME:
	Number
              of Shares	 	 
	 	 	Tinja
              Limited, a company registered in Mauritius
	1,000,000	 	 
	Number
              of Shares Underlying Warrant 	 	 
	
               

            	
            	
               

            
	$700,000	 	/s/
              A.D. Brown
	
              Dollar
                Amount of Subscription 

              Tendered
                by Subscriber

            	 	
              By:    
                A.D.
                Brown

              Title: 
                Duly
                Authorised Attorney

            
	 	 	 
	 	 	
              Suite
                240, Barkly Wharf

            
	 	 	(Street
              Address)
	 	 	 
	 	 	Le
              Caudan Waterfront, Port Louis, Mauritius 
	 	 	
              (City
                and State)(Zip
                Code)

            
	 	 	 
	 	 	    

	 	 	
              Telephone
                Number

            


    

     

     

    ACCEPTANCE

     

    The
      foregoing subscription is hereby accepted, subject to the terms and conditions
      hereof, as of August 15, 2008.
      

     

    
      
        	
                $700,000

              	 	CALYPTE
                BIOMEDICAL CORPORATION
	
                Amount
                  of Subscription Accepted

              	 	 	 
	 	 	
              	 
	
                14,000,000

              	 	By:	/s/
                Donald N. Taylor
	
                Number
                  of Shares

              	 	 	Name:  
                Donald N. Taylor
	
                 

              	
              	 	
                
                  Title:    
                    Chief Executive Officer

                

              
	
                1,000,000

              	
              	
              	
              
	
                Number
                  of Shares Underlying Warrant