SEC Company Response from CALYPTE BIOMEDICAL CORP (CIK 0000899426) — May 18, 2005
CALYPTE BIOMEDICAL CORP (CIK 0000899426)
Date: May 18, 2005 · CIK: 0000899426 · Accession: 0001144204-05-016323
AI Filing Summary & Sentiment
File numbers found in text: 333-116491, 333-117439, 333-119646, 333-124344
Letter
May 2, 2005 VIA FACSIMILE Tom Jones, Esq. Division of Corporate Finance Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549-0306
Re: Calypte Biomedical Corporation ("Calypte"); Amendment No. 3 to Form SB-2 on Form S-3; Registration No. 333-124344
Dear Mr. Jones:
Pursuant to our telephone conversation on Thursday, April 28, 2005, this letter and the attached two tables are furnished to you as supplemental information concerning Calypte's pending Amendment to Registration Statement (as defined below). One table ("Table 1") includes all shares of Calypte's common stock (the "Common Stock") previously registered for resale since January 2004 under Registration Statements on Form SB-2, Nos. 333-119646, 333-116491 and 333-117439 (the "SB-2 Registration Statements") and all shares of Common Stock registrable under Calypte's pending Amendment to Registration Statement. The second table ("Table 2") includes, in addition to certain shares of Common Stock registrable under Calypte's pending Amendment to Registration Statement, shares of Common Stock that are potentially registrable in the future and which Calypte may register in a separate registration statement at a later date. The potentially registrable shares are included on Table 2 to assist your understanding of the various financings Calypte has entered into during the last year. As I indicated, none of the potentially registrable shares listed on Table 2 have been issued and a number of them will only be issued if such issuance is approved by Calypte's stockholders.
On Tuesday, April 27, 2005, Calypte filed a Form S-3 with the Securities and Exchange Commission (the "Commission"), entitled Amendment No. 3 to Form SB-2 on Form S-3, Registration Statement No. 333-119646 (the "Amendment to Registration Statement"). The purpose of the Amendment to Registration Statement was to file, pursuant to Rule 429 of the Securities Act of 1933, as amended (the "Securities Act"), a single prospectus to combine and update the SB-2 Registration Statements in order to maintain their effectiveness as required under Section 10(a) of the Securities Act. The combined and updated prospectus was intended to be filed as a post-effective amendment to the latest registration statement, No. 333-119646, under Rule 429(a) and to act as a post-effective amendment to the combined SB-2 Registration Statements to update information contained therein under Rule 429(b). The Amendment to Registration Statement was mistakenly assigned a new registration number, Registration Statement No. 333-124344, apparently because the agent Calypte used to file the Amendment to Registration Statement in the EDGAR system submitted it as a new Form S-3, rather than as a post-effective amendment to Calypte's Form SB-2, Registration Statement Number 333-119646.
<PAGE> Tom Jones, Esq. May 2, 2005 Page 2
On May 28, 2004 and July 9, 2004, Calypte sold shares of Common Stock ("Shares") and warrants to purchase Shares (the "Warrants") in two separate, unrelated private placements (the "2004 PIPEs"). Calypte registered for resale the Shares and the Shares underlying the Warrants on Registration Statement No. 333-116491, which became effective on July 8, 2004, and Registration Statement No. 333-117439, which became effective on July 28, 2004. The investors in the May and July 2004 PIPEs (the "2004 PIPE Investors") have certain anti-dilution rights (the "Anti-Dilution Rights"), as set forth in the 2004 PIPEs transaction documents. The Anti-Dilution Rights, when triggered by a subsequent issuance of Common Stock under certain conditions, are:
(1) the right to receive additional Shares (the "Additional Shares");
(2) the right to purchase additional Shares under the Warrants (the "Additional Warrant Shares"); and
(3) the adjustment of the exercise price of all of the Warrant Shares.
Calypte did not register for resale on Registration Statement Nos. 333-116491 and 333-117439 any Shares or Shares underlying the Warrants potentially registrable in connection with a potential triggering of the Anti-Dilution Rights. Only the Shares and Shares underlying the Warrants initially issued were registered for resale. To date, no Warrant Shares have been issued, as none of the Warrants have been exercised.
On April 4, 2005, Calypte raised $8,000,000 in a private placement to five institutional investors of convertible notes (the "April 2005 Financing"), which triggered the Anti-Dilution Rights. In order to comply with the rules of the American Stock Exchange (the "AMEX"), Calypte will not issue any Shares or Warrant Shares in connection with the Anti-Dilution Rights without first obtaining stockholder approval of their issuance. Due to timing considerations resulting from Calypte's needs for additional working capital, Calypte had to obtain the funding provided by the April 2005 Financing before seeking stockholder approval of any issuances in connection with the Anti-Dilution Rights. The 2004 PIPE Investors agreed to Calypte's consummation of the April 2005 Financing prior to seeking stockholder approval of issuances and exercise price adjustments in connection with the Anti-Dilution Rights issuable as a consequence of the April 2005 Financing. In order to obtain that agreement of the 2004 PIPE Investors, Calypte agreed to enter into a new agreement with the 2004 PIPE Investors to revise the Anti-Dilution Rights pursuant to the terms of an Amendment to Securities Purchase Agreement dated April 4, 2005 (the "Amendment").
<PAGE> Tom Jones, Esq. May 2, 2005 Page 3
Under the terms of the 2004 PIPEs, as a result of the April 2005 Financing, the 2004 PIPE Investors would have been entitled to receive the following pursuant to the Anti-Dilution Rights:
(1) 6,742,500 Additional Shares;
(2) 1,193,501 Additional Warrant Shares at an exercise price of $0.45 per share; and
(3) An adjustment of the exercise price of the initial 10,741,500 Shares purchasable pursuant to the Warrants from $0.50 to $0.45 per share.
Under the terms of the Amendment, the 2004 PIPE Investors are entitled to receive, if approved by the stockholders:
(1) 7,079,625 Additional Shares;
(2) 1,253,177 Additional Warrant Shares, at an exercise price of $0.325 per share; and
(3) An adjustment of the exercise price of the initial 10,741,500 Shares purchasable pursuant to the Warrants from $0.50 to $0.45 per share.
Calypte intends to register the Additional Shares and the Shares underlying the Additional Warrant Shares issuable under the Amendment on the same registration statement it may file with the Commission to register Shares in connection with the April 2005 Financing.
I trust that this letter and the attached tables demonstrate that Calypte has complied with all applicable rules and regulations of the Commission in connection with the filing of the Amendment to Registration Statement. As I emphasized in my discussion with you, Calypte must respectfully request the Commission's staff prompt review of the Amendment to Registration Statement so that Calypte can thereby fulfill its obligations to the selling security holders to maintain the effectiveness of its registration statements and limit the burden of the penalties Calypte will incur if the effectiveness of the Amendment to Registration Statement is delayed.
Calypte's executive officers and I are available to discuss with you any questions or comments you may have in regard to this letter and the tables.
Very truly yours,
/s/ Paula Winner Barnett
Paula Winner Barnett
Show Raw Text
<DOCUMENT>
<TYPE>CORRESP
<SEQUENCE>1
<FILENAME>filename1.txt
<TEXT>
Paula Winner Barnett, Esq.
17967 Boris Drive, Encino, CA 91316
tel (818) 776-9881
fax (818) 743-7491
pwbarnett@sbcglobal.net
May 2, 2005
VIA FACSIMILE
Tom Jones, Esq.
Division of Corporate Finance
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549-0306
Re: Calypte Biomedical Corporation ("Calypte"); Amendment No. 3 to Form SB-2
on Form S-3; Registration No. 333-124344
Dear Mr. Jones:
Pursuant to our telephone conversation on Thursday, April 28, 2005, this
letter and the attached two tables are furnished to you as supplemental
information concerning Calypte's pending Amendment to Registration Statement (as
defined below). One table ("Table 1") includes all shares of Calypte's common
stock (the "Common Stock") previously registered for resale since January 2004
under Registration Statements on Form SB-2, Nos. 333-119646, 333-116491 and
333-117439 (the "SB-2 Registration Statements") and all shares of Common Stock
registrable under Calypte's pending Amendment to Registration Statement. The
second table ("Table 2") includes, in addition to certain shares of Common Stock
registrable under Calypte's pending Amendment to Registration Statement, shares
of Common Stock that are potentially registrable in the future and which Calypte
may register in a separate registration statement at a later date. The
potentially registrable shares are included on Table 2 to assist your
understanding of the various financings Calypte has entered into during the last
year. As I indicated, none of the potentially registrable shares listed on Table
2 have been issued and a number of them will only be issued if such issuance is
approved by Calypte's stockholders.
On Tuesday, April 27, 2005, Calypte filed a Form S-3 with the Securities
and Exchange Commission (the "Commission"), entitled Amendment No. 3 to Form
SB-2 on Form S-3, Registration Statement No. 333-119646 (the "Amendment to
Registration Statement"). The purpose of the Amendment to Registration Statement
was to file, pursuant to Rule 429 of the Securities Act of 1933, as amended (the
"Securities Act"), a single prospectus to combine and update the SB-2
Registration Statements in order to maintain their effectiveness as required
under Section 10(a) of the Securities Act. The combined and updated prospectus
was intended to be filed as a post-effective amendment to the latest
registration statement, No. 333-119646, under Rule 429(a) and to act as a
post-effective amendment to the combined SB-2 Registration Statements to update
information contained therein under Rule 429(b). The Amendment to Registration
Statement was mistakenly assigned a new registration number, Registration
Statement No. 333-124344, apparently because the agent Calypte used to file the
Amendment to Registration Statement in the EDGAR system submitted it as a new
Form S-3, rather than as a post-effective amendment to Calypte's Form SB-2,
Registration Statement Number 333-119646.
<PAGE>
Tom Jones, Esq.
May 2, 2005
Page 2
On May 28, 2004 and July 9, 2004, Calypte sold shares of Common Stock
("Shares") and warrants to purchase Shares (the "Warrants") in two separate,
unrelated private placements (the "2004 PIPEs"). Calypte registered for resale
the Shares and the Shares underlying the Warrants on Registration Statement No.
333-116491, which became effective on July 8, 2004, and Registration Statement
No. 333-117439, which became effective on July 28, 2004. The investors in the
May and July 2004 PIPEs (the "2004 PIPE Investors") have certain anti-dilution
rights (the "Anti-Dilution Rights"), as set forth in the 2004 PIPEs transaction
documents. The Anti-Dilution Rights, when triggered by a subsequent issuance of
Common Stock under certain conditions, are:
(1) the right to receive additional Shares (the "Additional Shares");
(2) the right to purchase additional Shares under the Warrants (the
"Additional Warrant Shares"); and
(3) the adjustment of the exercise price of all of the Warrant Shares.
Calypte did not register for resale on Registration Statement Nos.
333-116491 and 333-117439 any Shares or Shares underlying the Warrants
potentially registrable in connection with a potential triggering of the
Anti-Dilution Rights. Only the Shares and Shares underlying the Warrants
initially issued were registered for resale. To date, no Warrant Shares have
been issued, as none of the Warrants have been exercised.
On April 4, 2005, Calypte raised $8,000,000 in a private placement to five
institutional investors of convertible notes (the "April 2005 Financing"), which
triggered the Anti-Dilution Rights. In order to comply with the rules of the
American Stock Exchange (the "AMEX"), Calypte will not issue any Shares or
Warrant Shares in connection with the Anti-Dilution Rights without first
obtaining stockholder approval of their issuance. Due to timing considerations
resulting from Calypte's needs for additional working capital, Calypte had to
obtain the funding provided by the April 2005 Financing before seeking
stockholder approval of any issuances in connection with the Anti-Dilution
Rights. The 2004 PIPE Investors agreed to Calypte's consummation of the April
2005 Financing prior to seeking stockholder approval of issuances and exercise
price adjustments in connection with the Anti-Dilution Rights issuable as a
consequence of the April 2005 Financing. In order to obtain that agreement of
the 2004 PIPE Investors, Calypte agreed to enter into a new agreement with the
2004 PIPE Investors to revise the Anti-Dilution Rights pursuant to the terms of
an Amendment to Securities Purchase Agreement dated April 4, 2005 (the
"Amendment").
<PAGE>
Tom Jones, Esq.
May 2, 2005
Page 3
Under the terms of the 2004 PIPEs, as a result of the April 2005
Financing, the 2004 PIPE Investors would have been entitled to receive the
following pursuant to the Anti-Dilution Rights:
(1) 6,742,500 Additional Shares;
(2) 1,193,501 Additional Warrant Shares at an exercise price of $0.45
per share; and
(3) An adjustment of the exercise price of the initial 10,741,500 Shares
purchasable pursuant to the Warrants from $0.50 to $0.45 per share.
Under the terms of the Amendment, the 2004 PIPE Investors are entitled to
receive, if approved by the stockholders:
(1) 7,079,625 Additional Shares;
(2) 1,253,177 Additional Warrant Shares, at an exercise price of $0.325
per share; and
(3) An adjustment of the exercise price of the initial 10,741,500 Shares
purchasable pursuant to the Warrants from $0.50 to $0.45 per share.
Calypte intends to register the Additional Shares and the Shares
underlying the Additional Warrant Shares issuable under the Amendment on the
same registration statement it may file with the Commission to register Shares
in connection with the April 2005 Financing.
I trust that this letter and the attached tables demonstrate that Calypte
has complied with all applicable rules and regulations of the Commission in
connection with the filing of the Amendment to Registration Statement. As I
emphasized in my discussion with you, Calypte must respectfully request the
Commission's staff prompt review of the Amendment to Registration Statement so
that Calypte can thereby fulfill its obligations to the selling security holders
to maintain the effectiveness of its registration statements and limit the
burden of the penalties Calypte will incur if the effectiveness of the Amendment
to Registration Statement is delayed.
Calypte's executive officers and I are available to discuss with you any
questions or comments you may have in regard to this letter and the tables.
Very truly yours,
/s/ Paula Winner Barnett
Paula Winner Barnett
cc: Mr. J. Richard George
Mr. Richard Brounstein
<PAGE>
TABLE 1
Calypte Biomedical Corporation
Summary of Shares Registered in 2004 SB-2's and
Carried forward in April 2005 S-3
<TABLE>
<CAPTION>
Shares
Sold or carried
Shares registered for resale in SB-2s Eligible forward
----------------------------------------------------- for resale in S-3
8-Jul-04 28-Jul-04 29-Dec-04 under ------------
Selling Security Holder 333-116491 333-117439 333-119646 Total Section 144 333-124344
----------------------------------------------- ----------------------------------------------------- ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Shares for transactions preceding May 2004 PIPE
Stonestreet Limited Partnership 321,954 321,954 321,954 -
SDS Capital International Ltd. 1,266,600 1,266,600 1,266,600 -
Compass Strategic Corporation 1,500,000 1,500,000 1,500,000 -
Mercator Momentum Fund, L.P. 704,474 704,474 604,474 100,000
Mercator Focus Fund, L.P. 3,100,801 3,100,801 - 3,100,801
Gamma Opportunity Capital Partners, LP 349,358 349,358 349,358 -
Goldplate Investment Partners 418,796 418,796 418,796 -
Khalid B. Ahmed, M.D. Pension Plan 84,602 84,602 84,602 -
Roger Suyama 33,841 33,841 33,841 -
Logisticorp, Inc. 213,903 213,903 - 213,903
Southwest Resource Preservation Inc. 427,807 427,807 - 427,807
Ace Global Ltd. 153,846 153,846 153,846 -
Piter Korompis 461,538 461,538 461,538 -
Net Capital Partners, Inc. 1,637,998 1,637,998 1,637,998 -
Langdale Profits Limited 769,231 769,231 769,231 -
Synergyworks, Ltd. 1,538,462 1,538,462 1,538,462 -
Marr Technologies BV (1) 34,015,151 34,015,151 33,515,151 500,000
Top Calibre Enterprise Limited 775,000 775,000 - 775,000
David Miller 6,250 6,250 6,250 -
Antonella Popoff 6,250 6,250 6,250 -
Jack W. Reich 6,250 6,250 6,250 -
Rona Taylor 6,250 6,250 6,250 -
Ernesto Cardenas 100,000 100,000 100,000 -
CEOCast, Inc. 400,000 400,000 400,000 -
European Equity Group 100,000 100,000 100,000 -
New York University 525,000 525,000 525,000 -
Platinum Partners Value Arbitrage Fund 675,625 675,625 675,625 -
Alfonso Saavedra 100,000 100,000 100,000 -
Vintage Filings 46,875 46,875 46,875 -
John M. Ennis 26,131 26,131 26,131 -
Paul R. Smith 3,056 3,056 3,056 -
Kyle Ryan 458 458 458 -
Michael Schmidt 458 458 458 -
Joseph M. Staebler 458 458 458 -
Magic Johnson Foundation 200,000 200,000 133,333 66,667
Pointe Investments, Ltd. 500,000 500,000 500,000 -
Craig Enenstein 100,000 100,000 - 100,000
Michael Rovens 100,000 100,000 100,000 -
Adaltis, Inc. 212,127 212,127 - 212,127
Merchant Intercapital 150,000 150,000 - 150,000
May 2004 PIPE
Investors
SF Capital Partners LP 13,500,000 13,500,000 - 13,500,000
Marr Technologies BV (1) 10,125,000 10,125,000 - 10,125,000
Proximity Fund LP 1,687,500 1,687,500 1,250,000 437,500
Proximity Partners LP 1,687,500 1,687,500 1,250,000 437,500
MTB Small Cap Growth Fund 1,687,500 1,687,500 - 1,687,500
MTB Multi Cap Growth Fund 1,687,500 1,687,500 - 1,687,500
Bridges & PIPES LLC 1,012,500 1,012,500 750,000 262,500
------------ ---------