EXHIBIT 4.31
THIS WARRANT, AND THE SECURITIES ISSUABLE UPON THE EXERCISE THEREOF, HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES
OR BLUE SKY LAWS OF ANY STATE OR OTHER JURISDICTION, AND NEITHER THIS WARRANT
NOR SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED,
DISTRIBUTED, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS:
(A) THERE IS AN EFFECTIVE REGISTRATION AND/OR QUALIFICATION UNDER SUCH ACT AND
ALL SUCH APPLICABLE SECURITIES AND/OR BLUE SKY LAWS COVERING SUCH TRANSACTION,
OR (B) THE COMPANY RECEIVES AN OPINION LETTER FROM LEGAL COUNSEL TO THE HOLDER
OF THIS WARRANT OR SUCH SECURITIES (AS THE CASE MAY BE), REASONABLY SATISFACTORY
TO THE COMPANY, TO THE EFFECT THAT SUCH TRANSACTION IS EXEMPT FROM THE
APPLICABLE REGISTRATION AND/OR QUALIFICATION REQUIREMENTS OF SUCH ACT AND
APPLICABLE SECURITIES AND BLUE SKY LAWS.
WARRANT
TO PURCHASE COMMON STOCK
OF
MOLECULAR DIAGNOSTICS, INC.
Warrant No. M-1 200,000 Shares April 1, 2007
MOLECULAR DIAGNOSTICS, INC., a Delaware corporation (the "Company"), for
value received, hereby certifies that Monsun AS or its registered assigns
("Monsun"), is entitled to purchase from the Company 200,000 duly authorized,
validly issued, fully paid and non-assessable shares of Common Stock, par value
$0.001 per share, of the Company ("Common Stock", subject to the adjustments, if
any, provided for in Section 2), at the purchase price of US$0.70 per share
(such per share price, subject to the adjustments, if any provided for in
Section 2, being hereinafter referred to as the "Exercise Price") at any time or
from time to time after the Original Issue Date and prior to 5:00 p.m., New York
City time, on the Expiration Date, all subject to the terms, conditions and
adjustments set forth below in this Warrant.
Certain terms used and not defined above in this Warrant are defined in
Section 5.
1. EXERCISE OF WARRANT
1.1 MANNER OF EXERCISE. This Warrant may be exercised by the holder hereof,
in whole or in any part (including as to any fraction of a share), during normal
business hours on any Business Day until the Expiration Date by surrender of
this Warrant, with the form of Subscription Notice at the end hereof (or a
reasonable facsimile thereof) duly executed by such holder, to the Company,
accompanied by payment of the aggregate Exercise Price for the Common Stock
being purchased. Except as set forth in Section 1.4, payment of the Exercise
Price shall be made in cash or by certified or official bank check payable to
the order of the Company in the amount of the aggregate Exercise Price.
1.2 WHEN EXERCISE EFFECTIVE. Each exercise of this Warrant shall be deemed
to have been effected immediately prior to the close of business on the Business
Day on which this
Warrant shall have been exercised as provided in Section 1.1, and immediately
prior to the close of business on such Business Day the Person or Persons in
whose name or names any certificate or certificates for Common Stock shall be
issuable upon such exercise as provided in Section 1.3 shall be deemed to have
become the holder or holders of record thereof.
1.3 DELIVERY OF STOCK CERTIFICATES, ETC. As soon as practicable after the
exercise of this Warrant in whole or in any part as provided in Section 1.1, and
in any event within ten (10) days thereafter, the Company at its expense
(including the payment by it of any applicable issue taxes) will cause to be
issued in the name of and delivered to the holder hereof or, subject to Section
3, such other Person or Persons as such holder (upon payment by such holder of
any applicable transfer taxes) may direct: (i) a certificate or certificates for
the number of shares of Common Stock to which such holder shall be entitled upon
such exercise; (ii) in case such exercise is in part only, a new Warrant or
Warrants of like tenor, calling in the aggregate on the face or faces thereof
for the number of shares of Common Stock equal to (without giving effect to any
adjustment therein from the Original Issue Date) the number of such shares
called for on the face of this Warrant minus the number of shares of Common
Stock (without giving effect to any adjustment therein from the Issue Date) as
to which this Warrant shall have been so exercised.
1.4 OPTIONAL MANNER OF PAYMENT. If the Company has not paid to Monsun all
of the amounts outstanding in full under the Promissory Note, then Monsun shall
be entitled to allocate a portion or all of the unpaid Principal of and any
accrued but unpaid interest on the Promissory Note towards payment of the
Exercise Price, as such payment option is further described in Section 9 of that
certain Third Note Maturity Extension Agreement, dated as of April 26, 2002, by
and between the Company and Monsun.
2. ANTI-DILUTION ADJUSTMENTS.
(1) Stock Splits, Stock Dividends, Combinations. If at any time after the
Original Issue Date the Company shall:
(A) take a record of the holders of its Common Stock for the purpose
of entitling them to receive a dividend payable in, or other distribution
of, Additional Shares of Common Stock,
(B) subdivide its outstanding shares of Common Stock into a larger
number of shares of Common Stock, or
(C) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock
then: (i) the number of shares of Common Stock issuable upon exercise of the
Warrants shall be adjusted to equal the number of shares of Common Stock which a
holder of the same number of shares of Common Stock issuable upon exercise of
the Warrants immediately prior to the occurrence of such event would own or be
entitled to receive after the occurrence of such event; and (ii) the Exercise
Price shall be adjusted to equal the product of such Exercise Price in effect
immediately prior to such adjustment and a fraction (x) the numerator of which
shall be the number of shares of Common Stock issuable upon exercise of the
Warrants immediately prior to
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the adjustment made pursuant to the foregoing clause (i) and (y) the denominator
shall be the number of shares of Common Stock issuable upon exercise of the
Warrants immediately after such adjustment.
(2) Issuance of Additional Shares of Common Stock. If at any time after the
Original Issue Date the Company shall issue or sell any Additional Shares of
Common Stock to any Person or Persons for consideration in an amount per
Additional Share of Common Stock less than the Exercise Price at the date the
Additional Shares of Common Stock are issued, then the Exercise Price shall be
adjusted to equal that consideration received by the Company on a per share
basis.
(3) Issuance of Convertible Securities. If at any time after the Original
Issue Date the Company issues or sells any Convertible Securities, whether or
not the rights to convert, exchange or exercise thereunder are immediately
exercisable, for consideration, which is less than the Exercise Price at the
date the Convertible Securities are issued or sold as measured per share of
Common Stock issuable pursuant to the terms of such Convertible Securities, then
the Exercise Price shall be adjusted as provided in Section 2(2). After
adjustment shall have been made to the Exercise Price with respect to the
distribution, issuance or sale of any Convertible Securities ("Primary
Convertible Securities") in accordance with the foregoing, no further adjustment
thereof shall be made upon the actual issuance of (x) any Convertible Securities
("Secondary Convertible Securities") issued upon conversion, exchange or
exercise of such Primary Convertible Securities or (y) any shares of Common
Stock issued upon conversion, exchange or exercise of such Primary Convertible
Securities or Secondary Convertible Securities.
(4) Superseding Adjustments. If the Exercise Price of the Warrants shall
have been made pursuant to subsection 2(3) as the result of any issuance of
Convertible Securities,
(A) the right of conversion, exchange or exercise with respect to all
such Convertible Securities shall have expired, shall not have been
exercised or shall be treated as having been cancelled or acquired by the
Company, or
(B) the consideration per share of Common Stock issuable pursuant to
the terms of such Convertible Securities shall be increased, solely by
virtue of provisions therein contained for an automatic increase in such
consideration per share, upon the occurrence of a specified date or event,
then the Company shall provide Monsun with notice of such event, in accordance
with Section 2(8) and provide Monsun with ten business days (as measured from
the date such written notice is sent to Monsun) to exercise this Warrant under
the Exercise Price established under Section 2(3) of this Warrant. If Monsun
does not exercise or exercises only in part this Warrant during such period of
time, then to the extent the Warrant has not previously been exercised (i) such
previous adjustment shall be rescinded and annulled and the Additional Shares of
Common Stock which were deemed to have been issued by virtue of the computation
made in connection with the adjustment so rescinded and annulled shall no longer
be deemed to have been issued by virtue of such computation, and (ii) a
recomputation shall be made of the effect of such Convertible Securities on the
basis of
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(C) treating the number of Additional Shares of Common Stock or other
property (if any) theretofore actually issued or issuable pursuant to any
previous conversion, exchange or exercise (as the case may be) of any such
Convertible Securities as having been issued on the date or dates of any
such conversion, exchange or exercise and for the consideration actually
received and receivable therefor, and
whereupon a new adjustment of the Exercise Price shall be made with respect to
the portion of the Warrant that has not been exercised on the basis pursuant to
the appropriate provisions of this Section 2, which new adjustment shall
supersede the previous adjustment so rescinded and annulled.
(5) Other Provisions Applicable to Adjustments Under this Section. The
following provisions shall be applicable to the making of adjustments provided
for in this Section 2:
(A) Computation of Consideration. To the extent that any Additional
Shares of Common Stock or any Convertible Securities shall be issued for cash
consideration, the consideration received by the Company therefor shall be the
amount of the cash received by the Company therefor, or, if such Additional
Shares of Common Stock or Convertible Securities are offered by the Company for
subscription, the subscription price, or, if such Additional Shares of Common
Stock or Convertible Securities are sold to underwriters or dealers for public
offering without a subscription offering, the initial public offering price (in
any such case subtracting any amounts paid or receivable for accrued interest or
accrued dividends and without taking into account any compensation, discounts or
expenses paid or incurred by the Company for and in the underwriting of, or
otherwise in connection with, the issuance thereof). To the extent that such
issuance shall be for a consideration other than cash, then, except as herein
otherwise expressly provided herein, the amount of such consideration shall be
deemed to be the fair value of such consideration at the time of such issuance
as determined by resolution of the Board of Directors. In case any Additional
Shares of Common Stock or any Convertible Securities shall be issued in
connection with any transaction described in Section 2(6) in which the Company
issues any securities or other property, the amount of consideration therefor
shall be deemed to be the fair value, as determined by resolution of the Board
of Directors, of such portion of the assets and business of the non-surviving
Person as such Board by resolution shall determine to be attributable to such
Additional Shares of Common Stock or Convertible Securities, as the case may be.
The consideration for any Additional Shares of Common Stock issuable pursuant to
conversion, exchange or exercise of any Convertible Securities shall be the
consideration received by the Company for issuing such Convertible Securities
plus the additional consideration (if any) payable to the Company upon the
conversion, exchange or exercise of such Convertible Securities. In case of the
issuance at any time of any Additional Shares of Common Stock or Convertible
Securities in payment or satisfaction of any dividends upon any class of stock
other than Common Stock, the Company shall be deemed to have received for such
Additional Shares of Common Stock or Convertible Securities a consideration
equal to the amount of such dividend so paid or satisfied.
(B) When Adjustments to be Made. The adjustments required by this
Section 2 shall be made whenever and as often as any specified event requiring
an adjustment shall occur, except that any adjustment of the number of shares of
Common Stock into which the Notes are convertible that would otherwise be
required may be postponed (except in the case of a
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subdivision or combination of shares of the Common Stock, as provided for in
subsection 2(1)) up to, but not beyond the date of, conversion if such
adjustment either by itself or with other adjustments not previously made adds
or subtracts less than 1% of the shares of Common Stock issuable upon exercise
of the Warrants immediately prior to the making of such adjustment. Any
adjustment representing a change of less than such minimum amount (except as
aforesaid) which is postponed shall be carried forward and made as soon as such
adjustment, together with other adjustments required by this Section 2 and not
previously made, would result in a minimum adjustment or on the date of
conversion. For the purpose of any adjustment, any specified event shall be
deemed to have occurred at the close of business on the date of its occurrence.
(C) Fractional Interests. In computing adjustments under this Section
2, fractional interests in Common Stock shall be taken into account to the
nearest one-ten thousandth (1/10,000th) of a share.
(D) When Adjustment Not Required. If the Company shall take a record
of the holders of its Common Stock for the purpose of entitling them to receive
a dividend or distribution or subscription or purchase rights and shall,
thereafter and before the distribution to stockholders, legally abandon its plan
to pay or deliver such dividend, distribution, subscription or purchase rights,
then thereafter no adjustment shall be required by reason of the taking of such
record and any such adjustment previously made in respect thereof shall be
rescinded and annulled.
(6) Reorganization, Reclassification, Merger, Consolidation or Disposition
of Assets. In the event that the Company, at any time after the Original Issue
Date, shall (i) merge or consolidate with any other Person and the Company shall
not be the resulting or surviving Person, (ii) merge or consolidate with any
other Person and the Company shall be the resulting or surviving Person but in
connection therewith the Common Stock shall be changed into or exchanged for
stock or other securities of any other Person or cash or any other property or
assets, (iii) sell, lease or otherwise transfer all or substantially all of its
property or assets to any other Person and in connection therewith stock or
other securities, cash or any other property or assets shall be issuable or
deliverable in exchange for the Common Stock, or (iv) effect a capital
reorganization or reclassification of the Common Stock (other than in the
circumstances where any of Sections 2(1), (2) or (3) apply), then, and as a
condition to the effectiveness of any such merger consolidation, sale, lease or
other transfer or capital reorganization or reclassification (as the case may
be), lawful and adequate provision shall be made so that the holders of the
Warrants shall thereafter be entitled to receive, upon exercise thereof (in lieu
of the Common Stock which such holders would have been entitled to receive upon
such exercise immediately prior to such merger, consolidation, sale, lease or
other transfer or capital reorganization or reclassification (as the case may
be)), the stock or other securities, cash or other property or assets which such
holders would have been entitled to receive had the outstanding Warrants been
exercised immediately prior to such merger, consolidation, sale, lease or other
transfer or capital reorganization or reclassification (as the case may be), at
the aggregate Exercise Price in effect immediately prior to the such merger,
consolidation, sale, lease or other transfer or capital reorganization or
reclassification (as the case may be). As a further condition to the
effectiveness of any such merger, consolidation, sale, lease or other transfer
or capital reorganization or reclassification (as the case may be), the Company
shall ensure that any Person (other than the Company) who shall become obligated
to deliver any stock or other securities,
5
cash or other property or assets in accordance with the foregoing shall deliver
to the holders of the Warrants a written instrument by which such Person shall
expressly agree to issue and deliver any such stock or other securities, cash or
other property or assets upon exercise of the Warrants.
(7) Certain Limitations. Notwithstanding anything herein to the contrary,
the Company shall not enter into any transaction which, by reason of any
adjustment hereunder, would cause the Exercise Price to be less than the par
value per share of Common Stock.
(8) Notice of Exercise Price Adjustments. Whenever the number of shares of
Common Stock issuable upon exercise of the Warrants, or the Exercise Price,
shall be adjusted pursuant to this Section 2, the Company shall forthwith
prepare a certificate to be executed by an authorized officer of the Company
setting forth, in reasonable detail, the event requiring the adjustment and the
method by which such adjustment was calculated, specifying the number of shares
of Common Stock into which the outstanding Warrants are exercisable and (if such
adjustment was made pursuant to Section 2(6), describing the number and kind of)
any stock or other securities, cash or other property or assets for which the
outstanding Warrants are exercisable, and any change in the Exercise Price
thereof, after giving effect to such adjustment or change. The Company shall
promptly cause a signed copy of such certificate to be delivered to each holder
of Warrants at such holder's address as appears on the books of the Company. The
Company shall keep at its office copies of all such certificates and cause the
same to be available for inspection at said office during normal business hours
by any holder of Warrants or any prospective purchaser of Warrants from such
holder.
(9) Notice of Certain Corporate Actions. Holders of Warrants shall be
entitled to the same rights to receive notices of corporate actions and other
matters pertaining to the Company as the holders of outstanding shares of Common
Stock, and the Company shall forward (or cause to be forwarded) to each holder
of Warrants, at such holder's address as appears on the books of the Company,
all notices forwarded to holders of the Common Stock generally (whether or not
legally required).
3. RESTRICTIONS ON TRANSFER
3.1 WARRANTS LEGEND. Except as otherwise provided in this Section 3, each
Warrant shall be stamped or otherwise imprinted with a legend in substantially
the following form:
"THIS WARRANT, AND THE SECURITIES ISSUABLE UPON THE EXERCISE THEREOF, HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES OR BLUE SKY LAWS OF ANY STATE OR OTHER JURISDICTION, AND NEITHER
THIS WARRANT NOR SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED,
SOLD, TRANSFERRED, DISTRIBUTED, ASSIGNED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF UNLESS: (A) THERE IS AN EFFECTIVE REGISTRATION AND/OR
QUALIFICATION UNDER SUCH ACT AND ALL SUCH APPLICABLE SECURITIES AND/OR BLUE
SKY LAWS COVERING SUCH TRANSACTION, OR (B) THE COMPANY RECEIVES AN OPINION
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LETTER FROM LEGAL COUNSEL TO THE HOLDER OF THIS WARRANT OR SUCH SECURITIES
(AS THE CASE MAY BE), REASONABLY SATISFACTORY TO THE COMPANY, TO THE EFFECT
THAT SUCH TRANSACTION IS EXEMPT FROM THE APPLICABLE REGISTRATION AND/OR
QUALIFICATION REQUIREMENTS OF SUCH ACT AND APPLICABLE SECURITIES AND BLUE
SKY LAWS."
3.2 COMMON STOCK LEGEND. Except as otherwise provided in this Section 3,
each certificate representing Common Stock shall be stamped or otherwise
imprinted with a legend in substantially the following form:
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES OR BLUE SKY LAWS OF
ANY STATE OR OTHER JURISDICTION, AND NEITHER SUCH SECURITIES NOR ANY
INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, DISTRIBUTED, ASSIGNED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS: (A) THERE IS AN
EFFECTIVE REGISTRATION AND/OR QUALIFICATION UNDER SUCH ACT AND ALL SUCH
APPLICABLE SECURITIES AND/OR BLUE SKY LAWS COVERING SUCH TRANSACTION, OR
(B) THE CORPORATION RECEIVES AN OPINION LETTER FROM LEGAL COUNSEL TO THE
HOLDER OF SUCH SECURITIES, REASONABLY SATISFACTORY TO THE CORPORATION, TO
THE EFFECT THAT SUCH TRANSACTION IS EXEMPT FROM THE APPLICABLE REGISTRATION
AND/OR QUALIFICATION REQUIREMENTS OF SUCH ACT AND APPLICABLE SECURITIES AND
BLUE SKY LAWS."
3.3 RESTRICTIONS ON TRANSFER. Each offer, sale, transfer, distribution,
assignment, pledge, hypothecation or other disposal of this Warrant, or Common
Stock and any interest therein shall be subject to compliance with the terms of
the foregoing legend(s) (as applicable), and the Company may refuse to register
or otherwise recognize any transfer of this Warrant or Common Stock not in
compliance therewith.
3.4 TERMINATION OF COMMON STOCK RESTRICTIONS. The restrictions imposed
under this Section 3 shall terminate as to this Warrant and any shares of Common
Stock when, if and so long as such shares shall have been effectively registered
under the Securities Act and disposed of pursuant thereto. Whenever the
restrictions imposed by this Section 3 shall terminate as to this Warrant or any
shares of Common Stock as hereinabove provided, the holder thereof shall be
entitled to receive from the Company, at its expense, a new Warrant or a new
certificate or certificates for such shares (as applicable) without the legend
called for hereunder.
4. CORPORATE OFFICE; OWNERSHIP; REGISTRATION OF TRANSFER, ETC.
4.1 CORPORATE OFFICE. The Company shall maintain a copy of the Warrants at
its corporate office.
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4.2 OWNERSHIP OF WARRANTS. The Company may deem and treat the Person in
whose name this Warrant is registered as the owner and holder thereof for all
purposes hereunder and shall not be bound by any notice to the contrary, until
presentation of this Warrant for registration of transfer as provided in this
Section 4.
4.3 REGISTRATION OF TRANSFER. The Company agrees to maintain at its
corporate offices books for the registration and registration of transfer of
Warrants, and (subject to the provisions of Section 3) this Warrant and all
rights hereunder are transferable, in whole or in any part, on said books at
said office upon surrender of this Warrant at said offices, together with a
written instrument of transfer of this Warrant duly executed by the holder
thereof or its duly authorized agent or attorney and funds sufficient to pay any
transfer taxes payable in respect thereof. Upon such surrender and payment, the
Company shall execute and deliver a new Warrant or Warrants in the name of the
assignee or assignees and in the denominations specified in such instrument and
this Warrant shall promptly be cancelled.
4.4 DIVISION OR COMBINATION OF WARRANTS. This Warrant may be divided or
combined with other Warrants upon presentation of this Warrant and of any other
Warrants with which this Warrant is to be combined at the corporate offices of
the Company, together with a written notice specifying the names and
denominations in which the new Warrant or Warrants are to be issued duly
executed by the holders hereof and thereof or their respective duly authorized
agents or attorneys. Subject to compliance with Section 4.3 as to any transfer
which may be involved in such division or combination, the Company shall execute
and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to
be divided or combined in accordance with such notice.
4.5 LOSS, DESTRUCTION, ETC. OF WARRANTS. Upon receipt of evidence
satisfactory to the Company of the loss, theft, mutilation or destruction of the
Warrant, and in the case of any such loss, theft or destruction upon delivery of
a written indemnity in such form and amount as shall be reasonably satisfactory
to the Company, or in the event of such mutilation upon surrender and
cancellation of the mutilated Warrant, the Company shall execute and deliver a
new Warrant of like tenor in lieu of such lost, stolen, mutilated or destroyed
Warrant. Any Warrant issued under the provisions of this Section 4.5 in lieu of
any Warrant alleged to be lost, stolen, mutilated or destroyed Warrant shall
constitute an original contractual obligation on the part of the Company.
4.6 EXPENSES OF DELIVERY. The Company shall bear and pay all expenses,
taxes (other than transfer taxes) and other charges incurred or charged in
connection with the preparation, issuance and delivery of the Warrant hereunder.
5. DEFINITIONS
For purposes of the Warrants, the following definitions, not defined
elsewhere in this Warrant, have the following meanings:
"Additional Shares of Common Stock" means all shares of Common Stock issued
or issuable by the Company after the Original Issue Date other than Excluded
Shares.
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"Board of Directors" means the Board of Directors of the Company, or any
authorized committee thereof.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions at the place where any
specified act pursuant to this Note is to occur are authorized or obligated by
or pursuant to law, regulation or executive order to close.
"Convertible Securities" means evidences of indebtedness, shares of stock,
options, warrants and other purchase or subscription rights which are
convertible into, exchangeable for or exercisable for, with or without payment
of additional consideration in cash or other property, and either immediately or
upon the occurrence of a specified date or a specified event, Additional Shares
of Common Stock (which excludes, for the avoidance of doubt, Excluded Shares) or
other Convertible Securities.
"Excluded Shares" means shares of Common Stock issued or issuable: (A) to:
(i) employees, officers and/or directors of, and/or consultants to, the Company
or any of its subsidiaries in consideration of services rendered or to be
rendered to the Company or any of its subsidiaries, to otherwise compensate any
such Person and/or to retain the services of any such Person (provided that
Excluded Shares under this clause (i) may not exceed at, any time, 20% of the
amount of Common Stock outstanding and issuable pursuant to Convertible
Securities outstanding at such time); (ii) vendors, lenders or other providers
of finance to, and/or strategic partners of, the Company or any of its
subsidiaries in consideration of favorable cash pricing, continued business
and/or other consideration or value added; and (B) upon conversion of
Convertible Securities originally issued prior to the Original Issue Date.
"Expiration Date" means March 31, 2007.
"Majority Holders" means, at any time, the holders of a majority of the
Warrants.
"Original Issue Date" means April 1, 2002.
"Outstanding" means, when used with reference to Common Stock at any date
as of which the number of shares thereof is to be determined, (i) all issued and
outstanding shares of Common Stock, except shares then owned or held by or for
the account of the Company or any subsidiary thereof, and shall include all
shares issuable in respect of outstanding scrip or any certificates representing
fractional interests in shares of Common Stock, and (ii) all shares of Common
Stock issuable in respect of any outstanding Convertible Securities of the
Company having a nominal conversion, exchange or exercise price.
"Person" means any individual, firm, corporation or other entity, and shall
include any successor (by merger or otherwise) of such entity.
"Promissory Note" means that certain Promissory Note, dated November 1,
2000, in the principal amount of $500,000, issued by the Company in favor of
Monsun, amended by that certain Note Maturity Extension Agreement, dated as of
October 31, 2001, by and between the Company and Monsun, as further amended by
that certain Second Note Maturity Extension Agreement, dated as of January 31,
2002, by and between the Company and Monsun, and further
9
amended by that certain Third Note Maturity Extension Agreement, dated April 26,
2002, by and between the Company and Monsun.
"Securities Act" means the Securities Act of 1933, as amended.
6. NO IMPAIRMENT OF RIGHTS; CERTAIN COVENANTS
The Company will not, by amendment of its certificate of incorporation or
through any consolidation, merger, sale, lease or other transfer of property or
assets, capital reorganization or reclassification, issuance of securities,
dissolution, liquidation, winding-up or otherwise, take any action or omit to
take any action directly or indirectly avoiding or seeking to avoid the
observance or performance of the provisions of the Warrant, but shall at all
times in good faith assist in the carrying out the terms of such provisions
thereof. Without limiting the generality of the foregoing, the Company covenants
and agrees that it: (i) shall not take any action (contemplated under Section 2
or otherwise) that results in the par value of a share of Common Stock to exceed
the Exercise Price therefor; (ii) shall not take any action (contemplated under
Section 2 or otherwise) that results in the total number of shares of Common
Stock or other securities issuable upon exercise of the Warrant exceeding the
number of authorized but unissued shares of the Company under its certificate of
incorporation; and (iii) shall otherwise take all actions as may be necessary or
appropriate in order that the Company may issue and deliver to the holders of
the Warrant upon exercise thereof at the Exercise Price, free from preemptive
rights, duly authorized, validly issued, fully paid and non-assessable shares of
Common Stock which may be issuable upon exercise thereof.
7. MISCELLANEOUS
7.1 NOT STOCKHOLDERS; LIMITATION OF LIABILITY. Except as expressly provided
herein, no provision of this Warrant shall be construed as conferring upon the
holder thereof the rights of a stockholder of the Company. No provision hereof,
in the absence of affirmative action by the holder hereof to purchase Common
Stock, and no mere enumeration herein of the rights, powers or privileges of the
holder hereof, shall give rise to any liability of such holder for the purchase
price of any Common Stock or otherwise as a stockholder of the Company, whether
such liability is asserted by the Company or its creditors.
7.2 WAIVERS AND AMENDMENTS. Any term or provision of the Warrant may be
waived, supplemented or amended in a writing executed by the Company and
executed (or consented to in writing) by the Majority Holders.
7.3 ILLEGALITY. In the event that any one or more of the provisions
contained in this Warrant shall be determined to be invalid, unenforceable or
illegal in any respect for any reason, the validity, enforceability or legality
of such provision in any other respect and the remaining provisions of this
Warrant shall not, at the election of the party for whom the benefit of the
provision exists, be in any way impaired.
7.4 NOTICES. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered personally,
sent by overnight delivery service or sent by registered or certified mail,
postage prepaid, addressed as follows: (i) if to the holder of this Xxxxxxx,
Xxxxxxxxx 00, 0000 Xxxxx, Xxxxxx; attn. Xxxxx Xxxxxxxxx; and (ii) if to
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the Company, 000 X. Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, Attention:
President; provided that exercise of this Warrant shall be effective if effected
in the manner provided in Section 1. The Company or holder of this Warrant may
by notice to the other change the address to which notices or other
communications to it are to be delivered or sent.
7.5 ENTIRE AGREEMENT. With the exception of certain terms contained in the
Promissory Note, this Warrant contains the entire agreement between the Company
and the holder of this Warrant with respect to the subject matter hereof and
supersedes all prior arrangements or understandings with respect thereto.
7.6 SPECIFIC PERFORMANCE. The holder of the Warrant shall be entitled to
the equitable remedy of specific performance by the Company in the event of any
breach by it of the terms and provisions thereof. The Company hereby irrevocably
waives, to the extent that it may do so under applicable law, any defense based
on the adequacy of a remedy at law which may be asserted as a bar to the remedy
of specific performance in any action brought against the Company for specific
performance of the Warrant.
7.7 DESCRIPTIVE HEADINGS; SECTION REFERENCES. The descriptive headings of
this Warrant are for convenience only and shall not control or affect the
meaning or construction of any provision of this Warrant. All Section references
set forth in this Warrant are (unless the context otherwise require) references
to sections of this Warrant.
7.8 GOVERNING LAW. This Warrant shall be governed by and construed in
accordance with the laws of the State of Illinois (without regard to the choice
of law principles thereof).
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed and
delivered on its behalf as of the date first above written.
Molecular Diagnostics, Inc.
By:
-----------------------------------------
Xxxxx X. Xxxxxxxx, President
11
MOLECULAR DIAGNOSTICS, INC.
Warrant No. [ ]
Subscription Notice
THE UNDERSIGNED, the holder of the foregoing Warrant, HEREBY ELECTS TO
EXERCISE purchase rights represented by said Warrant for, and to purchase
thereunder, ____________ shares of the Common Stock covered by said Warrant and
herewith makes payment of the full Exercise Price therefor by the delivery
herewith of cash or a certified or official bank check payable to the order of
the Company in the amount of $____________.
THE UNDERSIGNED HEREBY SURRENDERS to the Company the foregoing Warrant with
respect to ____ shares of Common Stock.
AND THE UNDERSIGNED HEREBY REQUESTS that:
(1) the certificates for such shares (and any other securities or other
property issuable upon such exercise): (1) be issued in the name of the
undersigned or (if indicated in the following space), the following person
or entity: ________________________ and (2) be delivered to the following
address: _________________________;
(2) and if such shares shall not include all of the shares (or other securities
or other property) issuable as provided in said Warrant, then a new
Warrant, of like tenor and date, for the balance of the shares issuable
thereunder be executed and delivered to the undersigned at the following
address: _______________________.
Dated:
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Name Printed:
