Exhibit 4.3
SUBSCRIPTION AGREEMENT
MOLECULAR DIAGNOSTICS, INC.
Molecular Diagnostics, Inc. (the "Company") has authorized for sale 60
Units, each comprising one $25,000 principal amount, 10% secured convertible
debentures ("Notes") and warrants ("Warrants") to purchase 6,250 shares of the
Company's $.001 par value common stock ("Common Stock"). The minimum investment
is $25,000.
The undersigned hereby subscribes for ____________ Units ($________)(the
"Subscription Price").
The Common Stock included in the Unit or issuable upon conversion of the
Note shall be registered for public sale with the Securities and Exchange
Commission (the "Commission"), in accordance with the terms set forth in the
registration rights agreement (the "Registration Agreement"), entered into
between the holder of the Note (the "Holder") and the Company of even date.
The undersigned agrees to pay the aggregate Subscription Price for the Unit
being purchased hereunder. The entire purchase price is due and payable upon the
submission of this Subscription Agreement
The Company has the right to reject this subscription in whole or in part.
The undersigned acknowledges that the Unit being purchased hereunder and
its component securities will not be registered under the Securities Act of 1933
(the "Act"), or the securities laws of any state (the "State Acts"), in reliance
upon an exemption from the registration requirements of the Act and the State
Acts; that absent an exemption from registration contained in the Act and the
State Acts, the Unit, Note and Common Stock would require registration; and that
the Company's reliance upon such exemptions is based, in material part, upon the
undersigned's representations, warranties, and agreements contained in this
Subscription Agreement and the Registration Rights Agreement (collectively, the
"Subscription Documents").
1. The undersigned represents, warrants, and agrees as follows:
a. The undersigned agrees that this Subscription Agreement is and
shall be irrevocable.
b. The undersigned has carefully read the Form of Secured Convertible
Promissory Note, the Form of Warrant, and the Form of General Security
Agreement, a list of litigation in which the Company is involved, and the
unaudited financial statements of the Company dated November 21, 2003, each
of which has been provided to the undersigned; and the following filings
made by the Company with the Securities and Exchange Commission ("SEC"),
all of which are available on the Internet at xxx.xxx.xxx, including the
Form 10-K Annual Report filed with the SEC on July 21, 2003, the Form
10-QSB Quarterly Report filed with the SEC on August 1, 2003, the Form
10-QSB Quarterly Report filed with the SEC on August 13, 2003, the Form
10-QSB Quarterly Report filed with the SEC on November 19, 2003, the Form
8-K Current Report filed with the SEC on November 21, 2003 and the Form
10-QSB/A Quarterly Report filed with the SEC on November 21, 2003
(collectively, the "Disclosure Materials") and of which the undersigned
acknowledges will obtain from the SEC's web site at xxx.xxx.xxx. The
undersigned has been given the opportunity to ask questions of, and receive
answers from, the Company concerning the terms and conditions of this
Offering and the Disclosure Materials and to obtain such additional
information, to the extent the Company possesses such information or can
acquire it without unreasonable effort or expense, necessary to verify the
accuracy of same as the undersigned reasonably desires in order to evaluate
the investment. The undersigned understands the Disclosure Materials, and
the undersigned has had the opportunity to discuss any questions regarding
any of the Disclosure Materials with his counsel or other advisor.
Notwithstanding the foregoing, the only information upon which the
undersigned has relied is that set forth in the Disclosure Materials. The
undersigned has received no representations or warranties from the Company,
its employees, agents or attorneys, in making this investment decision
other than as set forth in the Disclosure Materials. The undersigned does
not desire to receive any further information.
c. The undersigned is aware that the purchase of the Unit is a
speculative investment involving a high degree of risk, that there is no
guarantee that the undersigned will realize any gain from this investment,
and that the undersigned could lose the total amount of this investment.
d. The undersigned understands that no federal or state agency has
made any finding or determination regarding the fairness of the Unit for
investment, or any recommendation or endorsement of the Unit.
e. The undersigned is purchasing the Units for the undersigned's own
account, with the intention of holding the Units with no present intention
of dividing or allowing others to participate in this investment or of
reselling or otherwise participating, directly or indirectly, in a
distribution of the Units or the securities underlying the Units, and shall
not make any sale, transfer, or pledge thereof without registration under
the Act and any applicable securities laws of any state or unless an
exemption from registration is available under those laws.
f. The undersigned represents that if an individual, he has adequate
means of providing for his or her current needs and personal and family
contingencies and has no need for liquidity in this investment in the
Units. The undersigned has no reason to anticipate any material change in
his or her personal financial condition for the foreseeable future.
g. The undersigned is financially able to bear the economic risk of
this investment, including the ability to hold the Units indefinitely, or
to afford a complete loss of his investment in the Units.
h. The undersigned represents that the undersigned's overall
commitment to investments which are not readily marketable is not
disproportionate to the undersigned's net worth, and the undersigned's
investment in the Units will not cause such overall commitment to become
excessive. The undersigned understands that the statutory basis on which
the Units are being sold to the undersigned and others would not be
available if the undersigned's present intention were to hold the Units for
a fixed period or until the occurrence of a certain event. The undersigned
realizes that in the view of the Commission, a purchase now with a present
intent to resell by reason of a foreseeable specific contingency or any
anticipated change in the market value, or in the condition of the Company,
or that of the industry in which the business of the Company is engaged or
in connection with a contemplated liquidation, or settlement of any loan
obtained by the undersigned for the acquisition of the Units, and for which
such Units may be pledged as security or as donations to religious or
charitable institutions for the purpose of securing a deduction on an
income tax return, would, in fact, represent a purchase with an intent
inconsistent with the undersigned's representations to the Company, and the
Commission would then regard such sale as a sale for which the exemption
from registration is not available. The undersigned will not pledge,
transfer or assign this Subscription Agreement.
i. The undersigned represents that the funds provided for this
investment are either separate property of the undersigned, community
property over which the undersigned has the right of control, or are
otherwise funds as to which the undersigned has the sole right of
management. The undersigned is purchasing the Units with the funds of the
undersigned and not with the funds of any other person, firm, or entity and
is acquiring the Units for the undersigned's account. No person other than
the undersigned has any beneficial interest in the Units being purchased
hereunder.
j. The address shown under the undersigned's signature at the end of
this Subscription Agreement is the undersigned's principal residence if he
or she is an individual, or its principal business address if it is a
corporation or other entity.
l. The undersigned has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of an
investment in the Units.
m. The undersigned acknowledges that the certificates for the
securities comprising the Unit which the undersigned will receive will
contain a legend substantially as follows:
THE SECURITIES WHICH ARE REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). THE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO DISTRIBUTION
OR RESALE, AND MAY NOT BE SOLD, TRANSFERRED, MADE SUBJECT TO A
SECURITY INTEREST, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED
OF UNLESS AND UNTIL REGISTERED UNDER THE SECURITIES ACT OF
1933 (THE "ACT"), AS AMENDED, OR EVIDENCE SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER SUCH ACT.
The undersigned further acknowledges that a stop transfer order will be
placed upon the certificates for the securities in accordance with the Act. The
undersigned further acknowledges that the Company is under no obligation to aid
the undersigned in obtaining any exemption from registration requirements.
n. The undersigned represents that he is an "accredited investor" as
that term is defined under the Act.
2. The undersigned expressly acknowledges and agrees that the Company is
relying upon the undersigned's representations contained in the Subscription
Documents.
3. The Company has been duly and validly incorporated and is validly
existing and in good standing as a corporation under the laws of the State of
Delaware. The Company represents that it has all requisite power and authority,
and all necessary authorizations, approvals and orders required as of the date
hereof to own its properties and conduct its business as described in the
Disclosure Materials and to enter into this Subscription Agreement and to be
bound by the provisions and conditions hereof; provided, however, the Company
must file a Certificate of Amendment to the Certificate of Incorporation
("Certificate of Amendment") with the State of Delaware increasing its
authorized capital to enable the Company to reserve and issue all of the shares
of common stock issuable in connection with the sale of the Units.
4. Intentionally Left Blank.
5. Except as otherwise specifically provided for hereunder, no party shall
be deemed to have waived any of his or its rights hereunder or under any other
agreement, instrument or papers signed by any of them with respect to the
subject matter hereof unless such waiver is in writing and signed by the party
waiving said right. Except as otherwise specifically provided for hereunder, no
delay or omission by any party in exercising any right with respect to the
subject matter hereof shall operate as a waiver of such right or of any such
other right. A waiver on any one occasion with respect to the subject matter
hereof shall not be construed as a bar to, or waiver of, any right or remedy on
any future occasion. All rights and remedies with respect to the subject matter
hereof, whether evidenced hereby or by any other agreement, instrument, or
paper, will be cumulative, and may be exercised separately or concurrently.
6. The parties have not made any representations or warranties with respect
to the subject matter hereof not set forth herein, and this Subscription
Agreement, together with any instruments or documents executed simultaneously
herewith in connection with this offering, constitutes the entire agreement
between them with respect to the subject matter hereof. All understandings and
agreements heretofore had between the parties with respect to the subject matter
hereof are merged in this Subscription Agreement and any such instruments and
documents, which alone fully and completely expresses their agreement.
7. This Subscription Agreement may not be changed, modified, extended,
terminated or discharged orally, but only by an agreement in writing, which is
signed by all of the parties to this Subscription Agreement.
8. The parties agree to execute any and all such other further instruments
and documents, and to take any and all such further actions reasonably required
to effectuate this Subscription Agreement and the intent and purposes hereof.
9. This Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois and the undersigned hereby
consents to the jurisdiction of the courts of the State of Illinois and the
United States District Courts situated therein.
[Intentionally Left Blank]
EXECUTION BY SUBSCRIBER
$
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Exact Name in Which Title is to be Held
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(Signature)
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Name (Please Print)
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Residence: Number and Street
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City State Zip Code
Social Security Number or Tax Identification Number
Accepted this _____ day of __________, 2004, on behalf of Molecular
Diagnostics, Inc.
By:
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Xxxxx X. X'Xxxxxxx, CEO
