EXHIBIT 4.33
THIS WARRANT AND THE UNDERLYING SHARES OF COMMON STOCK REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"ACT"), AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN RULE144 UNDER
THE ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE ACT, THE
AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE COMPANY.
Warrant No. 2002Bridge-(WarrantNo)
WARRANT TO PURCHASE SHARES OF COMMON STOCK
WARRANT TO PURCHASE (SHARES) SHARES
(SUBJECT TO ADJUSTMENT AS SET FORTH HEREIN)
EXERCISE PRICE $0.65 PER SHARE
(SUBJECT TO ADJUSTMENT AS SET FORTH HEREIN)
VOID AFTER 3:00 P.M., MOUNTAIN TIME, ON ___, 2007
THIS CERTIFIES THAT (Name), (Address), is entitled to purchase from
Molecular Diagnostics, Inc., a Delaware corporation (hereinafter called the
"Company") with its principal office located at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxxx 00000, at any time after the Exercise Date (as defined
below), but before 3:00 P.M., Central Time, on the Expiration Date (as defined
below), at the Exercise Price (as defined below), the number of shares (the
"Shares") of the Company's Common Stock (the "Common Stock") set forth above.
The number of Shares purchasable upon exercise of this Warrant and the Exercise
Price per Share shall be subject to adjustment from time to time as set forth in
Section 4 below.
SECTION 1. DEFINITIONS.
The following terms used in this agreement shall have the following
meanings (unless otherwise expressly provided herein):
The "Act." The Securities Act of 1933, as amended.
The "Commission." The Securities and Exchange Commission.
The "Company." Molecular Diagnostics, Inc.
"Common Stock." The Company's Common Stock.
"Current Market Price." The Current Market Price shall be determined as
follows:
(a) if the security at issue is listed on a national
securities exchange or admitted to unlisted trading privileges on such
an exchange or quoted on either the National Market System or the Small
Cap Market of the automated quotation service operated by The Nasdaq
Stock Market, Inc. ("Nasdaq"), the current value shall be the last
reported sale price of that security on such exchange or system on the
day for which the Current Market Price is to be determined or, if no
such sale is made on such day, the average of the highest closing bid
and lowest asked price for such day on such exchange or system; or
(b) if the security at issue is not so listed or quoted or
admitted to unlisted trading privileges, the Current Market Value shall
be the average of the last reported highest bid and lowest asked prices
quoted on the Nasdaq Electronic Bulletin Board, or, if not so quoted,
then by the National Quotation Bureau, Inc. on the last business day
prior to the day for which the Current Market Price is to be
determined; or
(c) if the security at issue is not so listed or quoted or
admitted to unlisted trading privileges and bid and asked prices are
not reported, the current market value shall be determined in such
reasonable manner as may be prescribed from time to time by the Board
of Directors of the Company, subject to the objection and arbitration
procedure as described in Section 7 below.
"Exercise Date." ____, 2002.
"Exercise Price." $0.65 per Share, as modified in accordance with
Section 4, below.
"Expiration Date." ___, 2007.
"Holder" or "Warrantholder." The person to whom this Warrant is issued
and any valid transferee thereof pursuant to Section 3.1 below.
"NASD." The National Association of Securities Dealers, Inc.
"Nasdaq." The automated quotation system operated by the Nasdaq Stock
Market, Inc.
"Termination of Business." Any sale, lease or exchange of all, or
substantially all, of the Company's assets or business or any dissolution,
liquidation or winding up of the Company.
"Warrants." The warrants issued in accordance with the terms of this
Agreement and any Warrants issued in substitution for or replacement of such
warrants, including those evidenced by a certificate or certificates originally
issued or issued upon division, exchange, substitution or transfer pursuant to
this Agreement.
"Warrant Securities." The Common Stock purchasable upon exercise of a
Warrant including the Common Stock underlying unexercised portions of a Warrant.
SECTION 2. TERM OF WARRANTS; EXERCISE OF WARRANT.
2.1. Exercise of Warrant. Subject to the terms of this Agreement, the
Holder shall have the right, at any time beginning on the Exercise Date but
prior to 3:00 p.m., Central Time, on the Expiration Date, to purchase from the
Company up to the number of fully paid and nonassessable Shares to which the
Holder may at the time be entitled to purchase pursuant to this Agreement, upon
surrender to the Company, at its principal office, of the Warrant to be
exercised, together with the purchase form on the reverse thereof, duly filled
in and signed, and upon payment to the Company of the Exercise Price for the
number of Shares in respect of which such Warrants are then exercised, but in no
event for less than 100 Shares (unless fewer than an aggregate of 100 shares are
then purchasable under all outstanding Warrants held by a Holder).
2.2. Payment of Exercise Price. Payment of the aggregate Exercise Price
shall be made in cash or by check, or any combination thereof.
2.3. Issuance of Shares. Upon such surrender of the Warrants and
payment of such Exercise Price as aforesaid, the Company shall issue and cause
to be delivered with all reasonable dispatch to or upon the written order of the
Holder and in such name or names as the Holder may designate, a certificate or
certificates for the number of full Shares so purchased upon the exercise of the
Warrant, together with cash, as provided in Section 13 hereof, in respect of any
fractional Shares otherwise issuable upon such surrender.
2.4. Status as Holder of Shares. Upon receipt of the Warrant by the
company as described in Sections 2.1. above, the Holder shall be deemed to be
the holder of record of the Shares issuable upon such exercise, notwithstanding
that the transfer books of the Company may then be closed or that certificates
representing such Shares may not have been prepared or actually delivered to the
Holder.
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SECTION 3. TRANSFERABILITY AND FORM OF WARRANT
3.1. Limitation on Transfer. Any assignment or transfer of a Warrant
shall be made by the presentation and surrender of the Warrant to the Company at
its principal office or the office of its transfer agent, if any, accompanied by
a duly executed Assignment Form. Upon the presentation and surrender of these
items to the Company, the Company, at its sole expense, shall execute and
deliver to the new Holder or Holders a new Warrant or Warrants, in the name of
the new Holder or Holders as named in the Assignment Form, and the Warrant
presented or surrendered shall at that time be canceled.
3.2. Exchange of Certificate. Any Warrant may be exchanged for another
certificate or certificates entitling the Warrantholder to purchase a like
aggregate number of Shares as the certificate or certificates surrendered then
entitled such Warrantholder to purchase. Any Warrantholder desiring to exchange
a Warrant shall make such request in writing delivered to the Company, and shall
surrender, properly endorsed, with signatures guaranteed, the certificate
evidencing the Warrant to be so exchanged. Thereupon, the Company shall execute
and deliver to the person entitled thereto a new Warrant as so requested.
3.3. Mutilated, Lost, Stolen, or Destroyed Certificate. In case the
certificate or certificates evidencing the Warrants shall be mutilated, lost,
stolen or destroyed, the Company shall, at the request of the Warrantholder,
issue and deliver in exchange and substitution for and upon cancellation of the
mutilated certificate or certificates, or in lieu of and substitution for the
certificate or certificates lost, stolen or destroyed, a new Warrant or
certificates of like tenor and representing an equivalent right or interest, but
only upon receipt of evidence satisfactory to the Company of such loss, theft or
destruction of such Warrant and a bond of indemnity, if requested, also
satisfactory in form and amount, at the applicant's cost. Applicants for such
substitute Warrant shall also comply with such other reasonable regulations and
pay such other reasonable charges as the Company may prescribe.
SECTION 4. ADJUSTMENT OF NUMBER OF SHARES.
The number and kind of securities purchasable upon the exercise of the
Warrants and the Warrant Price shall be subject to adjustment from time to time
upon the happening of certain events, as follows:
4.1. Adjustments. The number of Shares purchasable upon the exercise of
the Warrants shall be subject to adjustments as follows:
(a) In case the Company shall (i) pay a dividend in Common
Stock or make a distribution to its stockholders in Common Stock, (ii)
subdivide its outstanding Common Stock, (iii) combine its outstanding
Common Stock into a smaller number of shares of Common Stock, or (iv)
issue by classification of its Common Stock other securities of the
Company, the number of Shares purchasable upon exercise of the Warrants
immediately prior thereto shall be adjusted so that the Warrantholder
shall be entitled to receive the kind and number of Shares or other
securities of the Company which it would have owned or would have been
entitled to receive immediately after the happening of any of the
events described above, had the Warrants been exercised immediately
prior to the happening of such event or any record date with respect
thereto. Any adjustment made pursuant to this subsection 4.1(a) shall
become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
(b) In case the Company shall issue rights, options, warrants,
or convertible securities to all or substantially all holders of its
Common Stock, without any charge to such holders, entitling them to
subscribe for or purchase Common Stock at a price per share which is
lower at the record date mentioned below than the then Current Market
Price, the number of Shares thereafter purchasable upon the exercise of
each Warrant shall be determined by multiplying the number of Shares
theretofore purchasable upon exercise of the Warrants by a fraction, of
which the numerator shall be the number of shares of Common Stock
outstanding immediately prior to the issuance of such rights, options,
warrants or convertible securities plus the number of additional shares
of Common Stock offered for subscription or purchase, and of which the
denominator shall be the number of shares of Common Stock outstanding
immediately prior to the issuance of such rights, options, warrants, or
convertible securities plus the number of shares which the aggregate
offering price of the total number of shares offered would purchase at
such Current Market Price. Such adjustment shall be made whenever such
rights, options, warrants, or convertible securities are issued,
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and shall become effective immediately and retroactively to the record
date for the determination of stockholders entitled to receive such
rights, options, warrants, or convertible securities.
(c) In case the Company shall distribute to all or
substantially all holders of its Common Stock evidences of its
indebtedness or assets (excluding cash dividends or distributions out
of earnings) or rights, options, warrants, or convertible securities
containing the right to subscribe for or purchase Common Stock
(excluding those referred to in subsection 4.1(b) above), then in each
case the number of Shares thereafter purchasable upon the exercise of
the Warrants shall be determined by multiplying the number of Shares
theretofore purchasable upon exercise of the Warrants by a fraction, of
which the numerator shall be the then Current Market Price on the date
of such distribution, and of which the denominator shall be such
Current Market Price on such date minus the then fair value (determined
as provided in subparagraph (e) below of the portion of the assets or
evidences of indebtedness so distributed or of such subscription
rights, options, warrants, or convertible securities applicable to one
share. Such adjustment shall be made whenever any such distribution is
made and shall become effective on the date of distribution retroactive
to the record date for the determination of stockholders entitled to
receive such distribution.
(d) No adjustment in the number of Shares purchasable pursuant
to the Warrants shall be required unless such adjustment would require
an increase or decrease of at least one percent in the number of Shares
then purchasable upon the exercise of the Warrants or, if the Warrants
are not then exercisable, the number of Shares purchasable upon the
exercise of the Warrants on the first date thereafter that the Warrants
become exercisable; provided, however, that any adjustments which by
reason of this subsection (4.1(d)) are not required to be made
immediately shall be carried forward and taken into account in any
subsequent adjustment.
(e) Whenever the number of Shares purchasable upon the
exercise of the Warrant is adjusted, as herein provided, the Exercise
Price payable upon exercise of the Warrant shall be adjusted by
multiplying such Exercise Price immediately prior to such adjustment by
a fraction, of which the numerator shall be the number of Warrant
Shares purchasable upon the exercise of the Warrant immediately prior
to such adjustment, and of which the denominator shall be the number of
Warrant Shares so purchasable immediately thereafter.
(f) Whenever the number of Shares purchasable upon exercise of
the Warrants is adjusted as herein provided, the Company shall cause to
be promptly mailed to the Warrantholder by first class mail, postage
prepaid, notice of such adjustment and a certificate of the chief
financial officer of the Company setting forth the number of Shares
purchasable upon the exercise of the Warrants after such adjustment, a
brief statement of the facts requiring such adjustment and the
computation by which such adjustment was made.
(g) For the purpose of this Section 4.1, the term "Common
Stock" shall mean (i) the class of stock designated as the Common Stock
of the Company at the date of this Agreement, or (ii) any other class
of stock resulting from successive changes or reclassifications of such
Common Stock consisting solely of changes in par value, or from par
value to no par value, or from no par value to par value. In the event
that at any time, as a result of an adjustment made pursuant to this
Section 4, the Warrantholder shall become entitled to purchase any
securities of the Company other than Common Stock, (y) if the
Warrantholder's right to purchase is on any other basis than that
available to all holders of the Company's Common Stock, the Company
shall obtain an opinion of an independent investment banking firm
valuing such other securities and (z) thereafter the number of such
other securities so purchasable upon exercise of the Warrants shall be
subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the
Shares contained in this Section 4.
(h) Upon the expiration of any rights, options, warrants, or
conversion privileges, if such shall have not been exercised, the
number of Shares purchasable upon exercise of the Warrants, to the
extent the Warrants have not then been exercised, shall, upon such
expiration, be readjusted and shall thereafter be such as they would
have been had they been originally adjusted (or had the original
adjustment not been required, as the case may be) on the basis of (i)
the fact that the only shares of Common Stock so issued were the shares
of Common Stock, if any, actually issued or sold upon the exercise of
such rights, options, warrants, or conversion privileges, and (ii) the
fact that such shares of Common Stock, if any, were issued
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or sold for the consideration actually received by the Company upon
such exercise plus the consideration, if any, actually received by the
Company for the issuance, sale or grant of all such rights, options,
warrants, or conversion privileges whether or not exercised; provided,
however, that no such readjustment shall have the effect of decreasing
the number of Shares purchasable upon exercise of the Warrants by an
amount in excess of the amount of the adjustment initially made in
respect of the issuance, sale, or grant of such rights, options,
warrants, or conversion rights.
4.2. No Adjustment for Dividends. Except as provided in Section 4.1, no
adjustment in respect of any dividends or distributions out of earnings shall be
made during the term of the Warrants or upon the exercise of the Warrants.
4.3. No Adjustment in Certain Cases. No adjustments shall be made
pursuant to Section 4 hereof in connection with the issuance of the Common Stock
upon exercise of the Warrants. No adjustments shall be made pursuant to Section
4 hereof in connection with grant or exercise of presently authorized or
outstanding options to purchase, or the issuance of shares of Common Stock under
the Company's director or employee benefit plan.
4.4. Preservation of Purchase Rights upon Reclassification,
Consolidation, etc. In case of any consolidation of the Company with or merger
of the Company into another corporation, or in case of any sale or conveyance to
another corporation of the property, assets, or business of the Company as an
entirety or substantially as an entirety, the Company or such successor or
purchasing corporation, as the case may be, shall execute with the Warrantholder
an agreement that the Warrantholder shall have the right thereafter upon payment
of the Exercise Price in effect immediately prior to such action to purchase,
upon exercise of the Warrants, the kind and amount of shares and other
securities and property which it would have owned or have been entitled to
receive after the happening of such consolidation, merger, sale, or conveyance
had the Warrants been exercised immediately prior to such action. In the event
of a merger described in Section 368(a)(2)(E) of the Internal Revenue Code of
1986, in which the Company is the surviving corporation, the right to purchase
Shares under the Warrants shall terminate on the date of such merger and
thereupon the Warrants shall become null and void, but only if the controlling
corporation shall agree to substitute for the Warrants, its warrants which
entitle the holder thereof to purchase upon their exercise the kind and amount
of shares and other securities and property which it would have owned or been
entitled to receive had the Warrants been exercised immediately prior to such
merger. Any such agreements referred to in this Section 4.4 shall provide for
adjustments, which shall be as nearly equivalent as may be practicable to the
adjustments provided for in Section 4 hereof. The provisions of this Section
(4.4) shall similarly apply to successive consolidations, mergers, sales, or
conveyances.
4.5. Par Value of Shares of Common Stock. Before taking any action
which would cause an adjustment effectively reducing the portion of the Exercise
Price allocable to each Share below the par value per share of the Common Stock
issuable upon exercise of the Warrants, the Company will take any corporate
action which may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and nonassessable Common Stock
upon exercise of the Warrants.
4.6. Independent Public Accountants. The Company may retain a firm of
independent public accountants of recognized national standing (which may be any
such firm regularly employed by the Company) to make any computation required
under this Section 4, and a certificate signed by such firm shall be conclusive
evidence of the correctness of any computation made under this Section 4.
4.7. Statement on Warrants. Irrespective of any adjustments in the
number of securities issuable upon exercise of the Warrants, Warrants
theretofore or thereafter issued may continue to express the same number of
securities as are stated in the similar Warrants initially issuable pursuant to
this Agreement. However, the Company may, at any time in its sole discretion
(which shall be conclusive), make any change in the form of Warrant that it may
deem appropriate and that does not affect the substance thereof; and any Warrant
thereafter issued, whether upon registration of transfer of, or in exchange or
substitution for, an outstanding Warrant, may be in the form so changed.
4.8. Treasury Stock. For purposes of this Section 4, shares of Common
Stock owned or held at any relevant time by, or for the account of, the Company,
in its treasury or otherwise, shall not be deemed to be outstanding for purposes
of the calculations and adjustments described.
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SECTION 5. NOTICE TO HOLDERS.
If, prior to the expiration of this Warrant either by its terms or by
its exercise in full, any of the following shall occur:
(a) the Company shall declare a dividend or authorize any
other distribution on its Common Stock; or
(b) the Company shall authorize the granting to the
shareholders of its Common Stock of rights to subscribe for or purchase any
securities or any other similar rights; or
(c) any reclassification, reorganization or similar change of
the Common Stock, or any consolidation or merger to which the Company is a
party, or the sale, lease, or exchange of any significant portion of the assets
of the Company; or
(d) the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(e) any purchase, retirement or redemption by the Company of
its Common Stock;
then, and in any such case, the Company shall deliver to the Holder or Holders
written notice thereof at least 30 days prior to the earliest applicable date
specified below with respect to which notice is to be given, which notice shall
state the following:
(x) the date on which a record is to be taken for the purpose
of such dividend, distribution or rights, or, if a record is not to be taken,
the date as of which the shareholders of Common Stock of record to be entitled
to such dividend, distribution or rights are to be determined;
(y) the date on which such reclassification, reorganization,
consolidation, merger, sale, transfer, dissolution, liquidation, winding up or
purchase, retirement or redemption is expected to become effective, and the
date, if any, as of which the Company's shareholders of Common Stock of record
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reclassification, reorganization, consolidation,
merger, sale, transfer, dissolution, liquidation, winding up, purchase,
retirement or redemption; and
(z) if any matters referred to in the foregoing clauses (x)
and (y) are to be voted upon by shareholders of Common Stock, the date as of
which those shareholders to be entitled to vote are to be determined.
SECTION 6. OFFICERS' CERTIFICATE.
Whenever the Exercise Price or the aggregate number of Warrant
Securities purchasable pursuant to this Warrant shall be adjusted as required by
the provisions of Section 4 above, the Company shall promptly file with its
Secretary or an Assistant Secretary at its principal office, and with its
transfer agent, if any, an officers' certificate executed by the Company's
President and Secretary or Assistant Secretary, describing the adjustment and
setting forth, in reasonable detail, the facts requiring such adjustment and the
basis for and calculation of such adjustment in accordance with the provisions
of this Warrant. Each such officers' certificate shall be made available to the
Holder or Holders of this Warrant for inspection at all reasonable times, and
the Company, after each such adjustment, shall promptly deliver a copy of the
officers' certificate relating to that adjustment to the Holder or Holders of
this Warrant. The officers' certificate described in this Section 7 shall be
deemed to be conclusive as to the correctness of the adjustment reflected
therein if, and only if, no Holder of this Warrant delivers written notice to
the Company of an objection to the adjustment within 30 days after the officers'
certificate is delivered to the Holder or Holders of this Warrant. The Company
will make its books and records available for inspection and copying during
normal business hours by the Holder so as to permit a determination as to the
correctness of the adjustment. If written notice of an objection is delivered by
a Holder to the Company and the parties cannot reconcile the dispute, the Holder
and the Company shall submit the dispute to arbitration pursuant to the
provisions of Section 20 below. Failure to prepare or provide the officers'
certificate shall not modify the parties' rights hereunder.
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SECTION 7. RESERVATION OF WARRANT SECURITIES.
There has been reserved, and the Company shall at all times keep
reserved so long as the Warrants remain outstanding, out of its authorized and
unissued Common Stock, such number of shares of Common Stock as shall be subject
to purchase under the Warrants. Every transfer agent for the Common Stock and
other securities of the Company issuable upon the exercise of the Warrants will
be irrevocably authorized and directed at all times to reserve such number of
authorized shares and other securities as shall be requisite for such purpose.
The Company will keep a copy of this Agreement on file with every transfer agent
for the Common Stock and other securities of the Company issuable upon the
exercise of the Warrants. The Company will supply every such transfer agent with
duly executed stock and other certificates, as appropriate, for such purpose and
will provide or otherwise make available any cash which may be payable as
provided in Section 12 hereof.
SECTION 8. RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS.
8.1. Restrictions on Transfer. The Warrantholder agrees that prior to
making any disposition of the Warrants or the Shares, the Warrantholder shall
give written notice to the Company describing briefly the manner in which any
such proposed disposition is to be made; and no such disposition shall be made
if the Company has notified the Warrantholder that in the opinion of counsel
reasonably satisfactory to the Warrantholder a registration statement or other
notification or post-effective amendment thereto (hereinafter collectively a
"Registration Statement") under the Act is required with respect to such
disposition and no such Registration Statement has been filed by the Company
with, and declared effective, if necessary, by, the Commission.
8.2. Piggy-Back Registration Right. If at any time prior to the
Expiration Date the Company files a registration statement with the Commission
pursuant to the Act, or pursuant to any other act passed after the date of this
Agreement, which filing provides for the sale of securities by the Company to
the public, or files a Regulation A offering statement under the Act, the
Company shall offer to the Holder or Holders of this Warrant and the holders of
any Warrant Securities the opportunity to register or qualify the Warrant
Securities at the Company's sole expense, regardless of whether the Holder or
Holders of this Warrant or the holders of Warrant Securities or both may have
previously availed themselves of any of the registration rights described in
this Section 8; provided, however, that in the case of a Regulation A offering,
the opportunity to qualify shall be limited to the amount of the available
exemption after taking into account the securities that the Company wishes to
qualify. Notwithstanding anything to the contrary, this Section 8.2 shall not be
applicable to a registration statement registering securities issued pursuant to
an employee benefit plan or as to a transaction subject to Rule 145 promulgated
under the Act or which a form S-4 registration statement could be used; nor
shall it be applicable to the first underwritten registered public offering of
the Company.
The Company shall deliver written notice to the Holder or Holders of
this Warrant and to any holders of the Warrant Securities of its intention to
file a registration statement or Regulation A offering statement under the Act
at least 60 days prior to the filing of such registration statement or offering
statement, and the Holder or Holders and holders of Warrant Securities shall
have 30 days thereafter to request in writing that the Company register or
qualify the Warrant Securities or the Warrant Securities underlying the
unexercised portion of this Warrant in accordance with this Section 8.2. Upon
the delivery of such a written request within the specified time, the Company
shall be obligated to include in its contemplated registration statement or
offering statement all information necessary or advisable to register or qualify
the Warrant Securities or Warrant Securities underlying the unexercised portion
of this Warrant for a public offering, if the Company does file the contemplated
registration statement or offering statement; provided, however, that neither
the delivery of the notice by the Company nor the delivery of a request by a
Holder or by a holder of Warrant Securities shall in any way obligate the
Company to file a registration statement or offering statement. Furthermore,
notwithstanding the filing of a registration statement or offering statement,
the Company may, at any time prior to the effective date thereof, determine not
to offer the securities to which the registration statement or offering
statement relates, other than the Warrant, Warrant Securities and Warrant
Securities underlying the unexercised portion of this Warrant. Notwithstanding
the foregoing, if, as a qualification of any offering in any state or
jurisdiction in which the Company (by vote of its Board of Directors) or any
underwriter determines in good faith that it wishes to offer securities
registered in the offering, it is required that offering expenses be allocated
in a manner different from that provided above, then the offering expenses shall
be allocated in whatever manner is most nearly in compliance with the provisions
set out above.
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If the registration for which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so
advise as part of the written notice given pursuant to this Section. In such
event, the right of any Warrantholder or holder of Shares to registration
pursuant to this Section 8.2 shall be conditioned upon such holder's
participation in such underwriting, and the inclusion of Shares in the
underwriting shall be limited to the extent provided herein. All holders
proposing to distribute their Shares through such underwriting shall (together
with the Company and the other holders distributing their Shares through such
underwriting) enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by the Company.
Notwithstanding any other provision of this Section, if the managing underwriter
determines that marketing factors require a limitation of the number of shares
to be underwritten, such underwriter may limit the amount of securities to be
included in the registration and underwriting by the holders of Company
securities exercising "piggyback" registration rights (including the
Warrantholder and each holder of Warrants and Shares). The Company shall so
advise all such holders, and the number of shares of such securities that may be
included in the registration and underwriting shall be allocated among all of
such holders, in proportion, as nearly as practicable, to the respective amounts
of securities requested to be included in such registration held by such holders
at the time of filing the registration statement, provided, however, that no
security holder other than one exercising a demand registration right shall have
superior rights with respect to inclusion in a registration than those of the
Warrantholder and each holder of Warrants and Shares and if any party is granted
such superior rights hereafter the Warrantholder and each holder of Warrants and
Shares shall be deemed to be automatically granted similar rights. The Company
shall advise all such holders of any such limitations and of the number or
securities that may be included in the registration. Any securities excluded or
withdrawn from such underwriting shall not be transferred prior to one hundred
twenty (120) days after the effective date of the registration statement
relating thereto, or such shorter period of time as the underwriters may
require.
The Company shall comply with the requirements of this Section 8.2 and
the related requirements of Section 8.5 at its own expense. That expense shall
include, but not be limited to, legal, accounting, consulting, printing, federal
and state filing fees, NASD fees, out-of-pocket expenses incurred by counsel,
accountants and consultants retained by the Company, and miscellaneous expenses
directly related to the registration statement or offering statement and the
offering. However, this expense shall not include the portion of any
underwriting commissions, transfer taxes and the underwriter's accountable and
nonaccountable expense allowances attributable to the offer and sale of the
Warrant, Warrant Securities and the Warrant Securities underlying the
unexercised portion of this Warrant, all of which expenses shall be borne by the
Holder or Holders of this Warrant and the holders of the Warrant Securities
registered or qualified.
8.3. Inclusion of Information. In the event that the Company registers
or qualifies the Warrant Securities pursuant to Section 8.2 above, the Company
shall include in the registration statement or qualification, and the prospectus
included therein, all information and materials necessary or advisable to comply
with the applicable statutes and regulations so as to permit the public sale of
the Warrant Securities or the Warrant Securities underlying the unexercised
portion of this Warrant. As used in Section 8.2, reference to the Company's
securities shall include, but not be limited to, any class or type of the
Company's securities or the securities of any of the Company's subsidiaries or
affiliates.
8.4. Condition of Company's Obligations. As to each registration
statement or offering statement, the Company's obligations contained in this
Section 8 shall be conditioned upon a timely receipt by the Company in writing
of the following:
(a) Information as to the terms of the contemplated public
offering furnished by and on behalf of each Holder or holder intending
to make a public distribution of the Warrant Securities or Warrant
Securities underlying the unexercised portion of the Warrant; and
(b) Such other information as the Company may reasonably
require from such Holders or holders, or any underwriter for any of
them, for inclusion in the registration statement or offering
statement.
8.5. Additional Requirements. In each instance in which the Company
shall take any action to register or qualify the Warrant Securities or the
Warrant Securities underlying the unexercised portion of this Warrant, if any,
pursuant to this Section 8, the Company shall do the following:
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(a) supply to the Holders of the Warrant and the holders of
Warrant Securities whose Warrant Securities are being registered or
qualified, two (2) manually signed copies of each registration
statement or offering statement, and all amendments thereto, and a
reasonable number of copies of the preliminary, final or other
prospectus or offering circular, all prepared in conformity with the
requirements of the Act and the rules and regulations promulgated
thereunder, and such other documents as the Holders shall reasonably
request;
(b) cooperate with respect to (i) all necessary or advisable
actions relating to the preparation and the filing of any registration
statements or offering statements, and all amendments thereto, arising
from the provisions of this Section 8, (ii) all reasonable efforts to
establish an exemption from the provisions of the Act or any other
federal or state securities statutes, (iii) all necessary or advisable
actions to register or qualify the public offering at issue pursuant to
federal securities statutes and the state "blue sky" securities
statutes of each jurisdiction that the Holders of the Warrant or
holders of Warrant Securities shall reasonably request, and (iv) all
other necessary or advisable actions to enable the Holders of the
Warrant Securities to complete the contemplated disposition of their
securities in each reasonably requested jurisdiction; and
(c) keep all registration statements or offering statements to
which this Section 8 applies, and all amendments thereto, effective
under the Act for a period of at least 8 months after their initial
effective date and cooperate with respect to all necessary or advisable
actions to permit the completion of the public sale or other
disposition of the securities subject to a registration statement or
offering statement.
8.6. Reciprocal Indemnification. In each instance in which pursuant to
this Section 8 the Company shall take any action to register or qualify the
Securities or the Warrant Securities underlying the unexercised portion of this
Warrant, prior to the effective date of any registration statement or offering
statement, the Company and each Holder or holder of Warrants or Warrant
Securities being registered or qualified shall enter into reciprocal
indemnification agreements, in the form customarily used by reputable investment
bankers with respect to public offerings of securities, containing substantially
the same terms as described in Section 11. These indemnification agreements
also shall contain an agreement by the Holder or shareholder at issue to
indemnify and hold harmless the Company, its officers and directors from and
against any and all losses, claims, damages and liabilities, including, but not
limited to, all expenses reasonably incurred in investigating, preparing,
defending or settling any claim, directly resulting from any untrue statements
of material facts, or omissions to state a material fact necessary to make a
statement not misleading, contained in a registration statement or offering
statement to which this Section 8 applies, if, and only if, the untrue statement
or omission directly resulted from information provided in writing to the
Company by the indemnifying Holder or shareholder expressly for use in the
registration statement or offering statement at issue.
8.7. Survival. The Company's obligations described in this Section 8
shall continue in full force and effect regardless of the exercise, surrender,
cancellation or expiration of this Warrant.
SECTION 9. PAYMENT OF TAXES.
The Company will pay all documentary stamp taxes, if any, attributable
to the initial issuance of the Warrants or the securities comprising the Shares;
provided, however, the Company shall not be required to pay any tax which may be
payable in respect of any transfer of the Warrants or the securities comprising
the Shares.
SECTION 10. INDEMNIFICATION AND CONTRIBUTION
10.1. Indemnification by Company. In the event of the filing of any
Registration Statement with respect to the Warrant Shares pursuant to Section 8
hereof, the Company agrees to indemnify and hold harmless the Warrantholder or
any holder of Warrant Shares and each person, if any, who controls the
Warrantholder or any holder of Warrant Shares within the meaning of the Act,
against any and all loss, claim, damage or liability, joint or several (which
shall, for all purposes of this Agreement include, but not be limited to, all
costs of defense and investigation and all attorneys' fees), to which such
Warrantholder or any holder of Warrant Shares may become subject, under the Act
or otherwise, insofar as such loss, claim, damage, or liability (or action with
respect thereto) arises out of or is based upon (a) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus, the Effective Prospectus, or the Final
Prospectus or any
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amendment or supplement thereto; or (b) the omission or alleged omission to
state in the Registration Statement, any Preliminary Prospectus, the Effective
Prospectus or the Final Prospectus or any amendment or supplement thereto a
material fact required to be stated therein or necessary to make the statements
therein not misleading; except that the Company shall not be liable in any such
case to the extent, but only to the extent, that any such loss, claim, damage,
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by such
Warrantholder or the holder of such Warrant Shares specifically for use in the
preparation of the Registration Statement, any Preliminary Prospectus, the
Effective Prospectus and the Final Prospectus or any amendment or supplement
thereto. This indemnity will be in addition to any liability which the Company
may otherwise have.
10.2. Indemnification by Warrantholders. The Warrantholders and the
holders of Warrant Shares agree that they, severally, but not jointly, shall
indemnify and hold harmless the Company, each other person referred to in
subparts (1), (2) and (3) of Section 11(a) of the Act in respect of the
Registration Statement and each person, if any, who controls the Company within
the meaning of the Act, against any and all loss, claim, damage or liability,
joint or several (which shall, for all purposes of this Agreement include, but
not be limited to, all costs of defense and investigation and all attorneys'
fees), to which the Company may become subject under the Act or otherwise,
insofar as such loss, claim, damage, liability (or action in respect thereto)
arises out of or are based upon (a) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus, the Effective Prospectus or the Final Prospectus or any
amendment or supplement thereto; or (b) the omission or alleged omission to
state in the Registration Statement, any Preliminary Prospectus, the Effective
Prospectus or the Final Prospectus or any amendment or supplement thereto a
material fact required to be stated therein or necessary to make the statements
therein not misleading; except that such indemnification shall be available in
each such case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance
upon information and in conformity with written information furnished to the
Company by the Warrantholder or the holder of Warrant Shares specifically for
use in the preparation thereof. This indemnity will be in addition to any
liability which such Warrantholder or holder of Warrant Shares may otherwise
have.
10.3. Right to Provide Defense. Promptly after receipt by an
indemnified party under Section 10.1 or 10.2 above of written notice of the
commencement of any action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such section, notify
the indemnifying party in writing of the claim or the commencement of that
action; the failure to notify the indemnifying party shall not relieve it of any
liability which it may have to an indemnified party, except to the extent that
the indemnifying party did not otherwise have knowledge of the commencement of
the action and the indemnifying party's ability to defend against the action was
prejudiced by such failure. Such failure shall not relieve the indemnifying
party from any other liability which it may have to the indemnified party. If
any such claim or action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under such section for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
10.4. Contribution. If the indemnification provided for in Sections
10.1 and 10.2 of this Agreement is unavailable or insufficient to hold harmless
an indemnified party, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of the losses,
claims, damages, or liabilities referred to in Sections 10.1 or 10.2 above (a)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Warrantholders on the other; or (b) if
the allocation provided by clause (a) above is not permitted by applicable law,
in such proportion as is appropriate to reflect the relative benefits referred
to in clause (a) above but also the relative fault of the Company on the one
hand and the Warrantholders on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Warrantholders shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
un-itemized expenses received by the Underwriters, in each case as set forth in
the table on the cover page of the Final Prospectus. Relative fault shall be
determined by reference to, among other things, whether the untrue statement of
a material fact or the omission to state a material fact relates to information
supplied by the Company or the Underwriter and
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the parties' relative intent, knowledge, access to information, and opportunity
to correct or prevent such untrue statement or omission. For purposes of this
Section 10.5, the term "damages" shall include any counsel fees or other
expenses reasonably incurred by the Company or the Underwriters in connection
with investigating or defending any action or claim which is the subject of the
contribution provisions of this Section 10.4. No person adjudged guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
Each party entitled to contribution agrees that upon the service of a
summons or other initial legal process upon it in any action instituted against
it in respect of which contribution may be sought, it shall promptly give
written notice of such service to the party or parties from whom contribution
may be sought, but the omission so to notify such party or parties of any such
service shall not relieve the party from whom contribution may be sought from
any obligation it may have hereunder or otherwise (except as specifically
provided in Section 10.4 hereof).
SECTION 11. TRANSFER TO COMPLY WITH THE SECURITIES ACT OF 1933
This Warrant, the Warrant Securities, and all other securities issued
or issuable upon exercise of this Warrant, may not be offered, sold or
transferred, in whole or in part, except in compliance with the Act, and except
in compliance with all applicable state securities laws. The Company may cause
substantially the following legends, or their equivalents, to be set forth on
each certificate representing the Warrant Securities, or any other security
issued or issuable upon exercise of this Warrant, not theretofore distributed to
the public or sold to underwriters, as defined by the Act, for distribution to
the public pursuant to Section 8 above:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE
SECURITIES LAWS AND MAY NOT BE SOLD, EXCHANGED, HYPOTHECATED
OR TRANSFERRED IN ANY MANNER EXCEPT IN COMPLIANCE WITH THE
AGREEMENT PURSUANT TO WHICH THEY WERE ISSUED."
(b) Any legend required by applicable state securities laws.
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legends (except a new certificate issued upon
completion of a public distribution pursuant to a registration statement under
the Securities Act of 1933, as amended (the "Act"), or the securities
represented thereby) shall also bear the above legends unless, in the opinion of
the Company's counsel, the securities represented thereby need no longer be
subject to such restrictions.
SECTION 12. FRACTIONAL SHARES
No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of all or any part of this Warrant. With respect to any
fraction of a share of any security called for upon any exercise of this
Warrant, the Company shall pay to the Holder an amount in money equal to that
fraction multiplied by the Current Market Price of that share.
SECTION 13. NO RIGHTS AS STOCKHOLDER; NOTICES TO WARRANTHOLDER.
Nothing contained in this Agreement or in the Warrants shall be
construed as conferring upon the Warrantholder or its transferees any rights as
a stockholder of the Company, including the right to vote, receive dividends,
consent or receive notices as a stockholder in respect to any meeting of
stockholders for the election of directors of the Company or any other matter.
The Company covenants, however, that for so long as this Warrant is at least
partially unexercised, it will furnish any Holder of this Warrant with copies of
all reports and communications furnished to the shareholders of the Company. In
addition, if at any time prior to the expiration of the Warrants and prior to
their exercise, any one or more of the following events shall occur:
(a) any action which would require an adjustment pursuant to
Section 4.1 (except subsections 4.1(e) and 4.1(h) or 4.4; or
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(b) a dissolution, liquidation, or winding up of the Company
(other than in connection with a consolidation, merger, or sale of its
property, assets, and business as an entirety or substantially as an
entirety) shall be proposed:
then the Company shall give notice in writing of such event to the
Warrantholder, as provided in Section 16 hereof, at least 20 days prior to the
date fixed as a record date or the date of closing the transfer books for the
determination of the stockholders entitled to any relevant dividend,
distribution, subscription rights or other rights or for the determination of
stockholders entitled to vote on such proposed dissolution, liquidation, or
winding up. Such notice shall specify such record date or the date of closing
the transfer books, as the case may be. Failure to mail or receive notice or any
defect therein shall not affect the validity of any action taken with respect
thereto.
SECTION 14. CHARGES DUE UPON EXERCISE.
The Company shall pay any and all issue or transfer taxes, including,
but not limited to, all federal or state taxes, that may be payable with respect
to the transfer of this Warrant or the issue or delivery of Warrant Securities
upon the exercise of this Warrant.
SECTION 15. WARRANT SECURITIES TO BE FULLY PAID
The Company covenants that all Warrant Securities that may be issued
and delivered to a Holder of this Warrant upon the exercise of this Warrant and
payment of the Exercise Price will be, upon such delivery, validly and duly
issued, fully paid and nonassessable.
SECTION 16. NOTICES
Any notice pursuant to this Agreement by the Company or by a
Warrantholder or a holder of Shares shall be in writing and shall be deemed to
have been duly given if delivered or mailed by certified mail, return receipt
requested:
(i) If to a Warrantholder or a holder of Shares, addressed to the
address set forth above.
(ii) If to the Company addressed to it at 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, Attention: President.
Each party may from time to time change the address to which notices to
it are to be delivered or mailed hereunder by notice in accordance herewith to
the other party.
SECTION 17. MERGER OR CONSOLIDATION OF THE COMPANY.
The Company will not merge or consolidate with or into any other
corporation or sell all or substantially all of its property to another
corporation, unless the provisions of Section 4.4 are complied with.
SECTION 18. APPLICABLE LAW
This Warrant shall be governed by and construed in accordance with the
laws of the State of Illinois, and courts located in Illinois shall have
exclusive jurisdiction over all disputes arising hereunder.
SECTION 19. ARBITRATION.
The Company and the Holder, and by receipt of this Warrant or any
Warrant Securities, all subsequent Holders or holders of Warrant Securities,
agree to submit all controversies, claims, disputes and matters of difference
with respect to this Warrant, including, without limitation, the application of
this Section 19 to arbitration in Chicago, Illinois, according to the rules and
practices of the American Arbitration Association from time to time in force;
provided, however, that if such rules and practices conflict with the applicable
procedures of Illinois courts of general jurisdiction or any other provisions of
Illinois law then in force, those Illinois rules and provisions shall govern.
This agreement to arbitrate shall be specifically enforceable. Arbitration may
proceed in the absence of any party if notice of the proceeding has been given
to that party. The parties agree to abide by all awards rendered in
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any such proceeding. These awards shall be final and binding on all parties to
the extent and in the manner provided by the rules of civil procedure enacted in
Illinois. All awards may be filed, as a basis of judgment and of the issuance of
execution for its collection, with the clerk of one or more courts, state or
federal, having jurisdiction over either the party against whom that award is
rendered or its property. No party shall be considered in default hereunder
during the pendency of arbitration proceedings relating to that default.
SECTION 20. ACCEPTANCE OF TERMS; SUCCESSORS.
By its acceptance of this Warrant Certificate, the Holder accepts and
agrees to comply with all of the terms and provisions hereof. All the covenants
and provisions of this Warrant Certificate by or for the benefit of the Company
or the Holder shall bind and inure to the benefit of their respective successors
and assigns hereunder.
SECTION 21 MISCELLANEOUS PROVISIONS
(a) Subject to the terms and conditions contained herein, this Warrant
shall be binding on the Company and its successors and shall inure to the
benefit of the original Holder, its successors and assigns and all holders of
Warrant Securities and the exercise of this Warrant in full shall not terminate
the provisions of this Warrant as it relates to holders of Warrant Securities.
(b) If the Company fails to perform any of its obligations hereunder,
it shall be liable to the Holder for all damages, costs and expenses resulting
from the failure, including, but not limited to, all reasonable attorney's fees
and disbursements.
(c) This Warrant cannot be changed or terminated or any performance or
condition waived in whole or in part except by an agreement in writing signed by
the party against whom enforcement of the change, termination or waiver is
sought; provided, however, that any provisions hereof may be amended, waived,
discharged or terminated upon the written consent of the Company and the
Company.
(d) If any provision of this Warrant shall be held to be invalid,
illegal or unenforceable, such provision shall be severed, enforced to the
extent possible, or modified in such a way as to make it enforceable, and the
invalidity, illegality or unenforceability shall not affect the remainder of
this Warrant.
(e) The Company agrees to execute such further agreements, conveyances,
certificates and other documents as may be reasonably requested by the Holder to
effectuate the intent and provisions of this Warrant.
(f) Paragraph headings used in this Warrant are for convenience only
and shall not be taken or construed to define or limit any of the terms or
provisions of this Warrant. Unless otherwise provided, or unless the context
shall otherwise require, the use of the singular shall include the plural and
the use of any gender shall include all genders.
Dated ___, 2002
MOLECULAR DIAGNOSTICS, INC.
By:
-----------------------------------
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PURCHASE FORM
Dated ,
-------------------------
The undersigned hereby irrevocably elects to exercise the Warrant
represented by this Warrant Certificate to the extent of purchasing ___________
Shares of Molecular Diagnostics, Inc. and tenders payment of the exercise price
thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name
-------------------------------------------------------------------
(Please type or print in block letters)
Address
----------------------------------------------------------------
.................................................................................
ASSIGNMENT FORM
FOR VALUE RECEIVED, _________________________, hereby sells, assigns
and transfers unto
Name
-------------------------------------------------------------------
(Please type or print in block letters)
Address
--------------------------------------------------------------
the right to purchase Shares of Molecular Diagnostics, Inc. represented by this
Warrant Certificate to the extent of __________ Shares as to which such right is
exercisable and does hereby irrevocably constitute and appoint _________________
attorney, to transfer the same on the books of the Company with full power of
substitution in the premises.
Signature Dated
------------------------------- -----------------
NOTICE: THE SIGNATURE ON THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS IT
APPEARS UPON THE FACE OF THIS WARRANT CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
.................................................................................
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