Exhibit 4.39
THIS WARRANT AND THE UNDERLYING SHARES OF COMMON STOCK REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE 11
ACT-), AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN RULE 144
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 MOLECULAR
DIAGNOSTICS, INC.
Warrant No. 200__
WARRANT TO PURCHASE SHARES OF COMMON STOCK
WARRANT TO PURCHASE 1,000,000 SHARES
(SUBJECT TO ADJUSTMENT AS SET FORTH HEREIN)
EXERCISE PRICE $0.15 PER SHARE
(SUBJECT TO ADJUSTMENT AS SET FORTH HEREIN)]
ISSUE DATE: _______________________
VOID AFTER 3:00 P.M., CENTRAL TIME, ON THE FIFTH ANNIVERSARY OF THE ISSUE DATE
THIS CERTIFIES THAT Xxxxxxx X. Xxxxxxxx, residing at 00 Xxxx Xxxxxxxx,
Xxxx 0000, Xxxxxxx, Xxxxxxxx 00000, 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 prior to 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 "Warrant Shares") of the Company's common stock, par
value $0.001 per share (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 Warrant 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.
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The "Company." Molecular Diagnostics, Inc.
"Common Stock." The Company's Common Stock, par value $0.001 per share.
"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 procedures hereinafter described.
"Exercise Price." $0.15 per Share, as modified from time to time in
accordance with the provisions of this Warrant.
"Expiration Date." The fifth anniversary of the Issue Date indicated on
the first page of this Warrant.
"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.
"Warrant." This Warrant and any other warrants issued in substitution
for or replacement thereof, including those evidenced by a certificate or
certificates originally issued or issued upon division, exchange, substitution
or transfer pursuant to this Warrant.
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"Warrant Shares." The Common Stock purchasable upon exercise of this
Warrant including the Common Stock underlying unexercised portions of this
Warrant.
Section 2.Term of Warrants; Exercise of Warrant
2.1. Exercise of Warrant
(a) Subject to the terms of this Warrant, the Holder shall have the
right, at any time 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
Warrant Shares to which the Holder may at the time be entitled to purchase
pursuant to this Warrant, 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 Warrant Shares in respect of which the
Warrant is then exercised, but in no event for less than 100 Warrant Shares
(unless fewer than an aggregate of 100 Warrant Shares are then purchasable
under all outstanding Warrants held by a Holder).
(b) In lieu of payment of the Exercise Price, the Holder may require the
Company to convert this Warrant into shares of Common Stock (the "Conversion
Right") as provided for in this Section 2.1(b). Upon exercise of the Conversion
Right, the Company shall deliver to the Holder (without payment by the Holder
of any of the Exercise Price) that number of shares of Common Stock equal to
the quotient obtained by dividing (x) the value of the Warrant at the time the
Conversion Right is exercised (determined by subtracting the aggregate Exercise
Price in effect immediately prior to the exercise of the Conversion Right from
the aggregate Current Market Price for the Common Stock immediately prior to
the exercise of the Conversion Right by (y) the Current Market Price of the
Common Stock.
2.2. Payment of Exercise Price. Payment of the aggregate Exercise Price
may be made in cash or by check, or any combination thereof
2.3. Issuance of Shares. Upon surrender of this Warrant and payment of
the applicable Exercise Price, the Company shall issue and cause to be
delivered with all reasonable dispatch to or upon the written order of the
Holder and in the name or names the Holder may designate, a certificate or
certificates for the number of full Warrant Shares so purchased upon the
exercise of this Warrant, together with cash, as provided in Section I I
hereof, in respect of any fraction of a Warrant Share that would otherwise have
been issuable upon exercise of this Warrant.
2.4. Status as Holder of Shares. Upon receipt of this Warrant by the
company following any exercise by the Holder, the Holder shall be deemed to be
the holder of record of the Warrant Shares issuable upon exercise,
notwithstanding that the transfer books of the Company may then be closed or
that certificates representing the Warrant 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 this Warrant
shall be made by presentation and surrender hereof 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 transferee or transferees of this Warrant a new Warrant or
Warrants, in the name of the transferee or transferees named in the assignment
form, and this Warrant shall at that time be canceled.
3.2. Exchange of Certificate. This Warrant may be exchanged for another
Warrant or Warrants entitling the Warrantholder to purchase a like aggregate
number of Warrant Shares as the Warrant or Warrants surrendered then entitled
the Warrantholder to purchase. Any Warrantholder desiring to exchange a Warrant
shall make a request in writing delivered to the Company, and shall surrender,
properly endorsed, with signatures guaranteed, the Warrant to be exchanged.
Thereupon, the Company shall execute and deliver to the person entitled thereto
a new Warrant as requested.
3.3. Mutilated, Lost, Stolen, or Destroyed Certificate. In case the
certificate evidencing this Warrant 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 in lieu of and substitution for the certificate lost, stolen or
destroyed, a new Warrant of like tenor representing an equivalent right or
interest, but only upon receipt of evidence. satisfactory to the Company of the
loss, theft or destruction of the Warrant and a bond of indemnity, if
requested, also satisfactory in form and amount, at the applicant's cost.
Applicants for substitute Warrants shall also comply with any other reasonable
regulations and pay any other reasonable charges the Company may request.
Section 4. Adjustment of Number of Shares
The number and kind of securities purchasable upon the exercise of this
Warrant and the Exercise Price payable shall be subject to adjustment from time
to time upon the happening of certain events, as follows:
4.1. Adjustments. The number of Warrant Shares purchasable upon the
exercise of this Warrant and the Exercise Price 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, then in any of the foregoing
cases, the number of Warrant Shares purchasable upon exercise of the Warrant
immediately prior thereto shall be adjusted so that the Warrantholder shall be
entitled to receive the kind and number of Warrant Shares or other securities
of the Company that it would have owned or would have been entitled to receive
immediately after the happening of any of the events described above, had the
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Warrant been exercised immediately prior to the happening of the 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 the event retroactive to the record date, if any, for the event.
(b) If the Company shall issue rights, options, warrants, or convertible
securities to all or substantially all holders of its Common Stock, without any
charge to the holders, entitling them to subscribe for or purchase Common Stock
at a price per share that is lower at the record date mentioned below than the
then Current Market Price, the number of Warrant Shares thereafter purchasable
upon the exercise of this Warrant shall be determined by multiplying the number
of Warrant Shares theretofore purchasable upon exercise of this Warrant by a
fraction, the numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to the issuance of the rights, options, warrants
or convertible securities, plus the number of additional shares of Common Stock
offered for subscription or purchase; and the denominator of which shall be the
number of shares of Common Stock outstanding immediately prior to the issuance
of the rights, options, warrants, or convertible securities, plus the number of
shares of Common Stock that the aggregate offering price of the total number of
shares offered would purchase at the Current Market Price as of the record
date. The adjustment shall be made whenever rights, options, warrants, or
convertible securities are issued, and shall become effective immediately and
retroactively to the record date for the determination of stockholders entitled
to receive the rights, options, warrants, or convertible securities.
(c) If 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 fight to subscribe for or purchase
Common Stock (excluding those referred to in subsection 4.1 (b) above), then in
each case the number of Warrant Shares thereafter purchasable upon the exercise
of this Warrant shall be determined by multiplying the number of Warrant Shares
theretofore purchasable upon exercise of this Warrant by a fraction, of which
the numerator shall be the then Current Market Price on the date of
distribution, and the denominator of which shall be the Current Market Price on
the date of distribution 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 the subscription rights, options, warrants,
or convertible securities applicable to one share. The adjustment shall be made
whenever any 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 the distribution.
(d) No adjustment in the number of Warrant Shares purchasable pursuant
to this Warrant shall be required unless the adjustment would require an
increase or decrease of at least one percent in the number of Warrant Shares
then purchasable upon the exercise of this Warrant or, if this Warrant is not
then exercisable, the number of Warrant Shares purchasable upon the exercise of
this Warrant on the first date thereafter that this Warrant becomes
exercisable; provided, however, that any adjustments which by reason of
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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 Warrant Shares purchasable upon the exercise
of this Warrant is adjusted, as herein provided, the Exercise Price payable
upon exercise of this Warrant shall be adjusted by multiplying the Exercise
Price immediately prior to the adjustment by a fraction, the numerator of which
shall be the number of Warrant Shares purchasable upon the exercise of the
Warrant immediately prior to the adjustment, and the denominator of which shall
be the number of Warrant Shares so purchasable immediately thereafter.
(f) Whenever the number of Warrant Shares purchasable upon exercise of
this Warrant is adjusted as herein provided, the Company shall cause to be
promptly mailed to the Warrantholder by first class mail, postage prepaid,
notice of the adjustment and a certificate of the chief financial officer of
the Company setting forth the number of Warrant Shares purchasable upon the
exercise of this Warrant after the adjustment, a brief statement of the facts
requiring the adjustment and the computation by which the 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 as of
the Issue Date of this Warrant, or (ii) any other class of stock resulting from
successive changes or reclassifications of the 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. If, 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, then (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 the other securities and (z)
thereafter the number of other securities so purchasable upon exercise of this
Warrant 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
Warrant Shares contained in this Section 4.
(h) Upon the expiration of any rights, options, warrants, or conversion
privileges, if they shall have not been exercised, the number of Warrant 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 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 the rights,
options, warrants, or conversion privileges, and (h) the fact that the shares
of Common Stock, if any, were issued or sold for the consideration actually
received by the Company upon the 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 readjustment shall have the effect of decreasing the
number of Warrant Shares purchasable upon exercise of this
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Warrant 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, or upon the exercise, of this Warrant.
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 the conversion, if any, of the Company's 12% Secured Convertible
Promissory Notes or exercise of any warrants issued to the holders thereof in
connection therewith. No adjustments shall be made pursuant to Section 4 hereof
in connection with the 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 successor or purchasing entity, 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 the action to purchase, upon exercise of this Warrant, the
kind and amount of shares and other securities and property that it would have
owned or have been entitled to receive after the happening of the
consolidation, merger, sale, or conveyance had this Warrant been exercised
immediately prior to the 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
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certificate signed by the firm shall be conclusive evidence of the correctness
of any computation made under this Section 4.
4.7. 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.
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 the
dividend, distribution or rights, or, if a record is not to be taken, the date
as of which the holders of Common Stock of record entitled to the dividend,
distribution or rights will be determined;
(y) the date on which any 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 holders of Common Stock of record shall
be entitled to exchange their Common Stock for securities or other property
deliverable upon the reclassification, reorganization, consolidation, merger,
sale, transfer, dissolution, liquidation, winding up, purchase, retirement or
redemption; and
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(z) if any matters referred to in the foregoing clauses (x) and (y) are
to be voted upon by holders of Common Stock, the date as of which the
shareholders entitled to vote, will be determined.
Section 6. Officers Certificate
Whenever the Exercise Price or the aggregate number of Warrant Shares
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 the adjustment and the
basis for and calculation of the 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 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 6 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. Failure to prepare or
provide the officers' certificate shall not modify the parties' rights
hereunder.
Section 7. Reservation of Warrant Shares
Warrantholder understands that the Company does not have sufficient,
authorized and unissued shares of Common Stock to support the full exercise of
this Warrant. The Company will use all reasonable efforts to create and
properly reserve such shares. Every transfer agent for the Common Stock and
other securities of the Company issuable upon the exercise of this Warrant will
be irrevocably authorized and directed at all times to reserve a number of
authorized shares and other securities as shall be requisite for such purpose.
The Company will keep a copy of this Warrant on file with every transfer agent
for the Common Stock and other securities of the Company issuable upon the
exercise of this Warrant. The Company will supply every 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 11 hereof
Section 8. Restrictions on Transfer.
The Warrantholder agrees that prior to making any disposition of this
Warrant or the Warrant Shares, the Warrantholder shall give written notice to
the Company describing briefly the manner in which any proposed disposition is
to be made; and no 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
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to the disposition and no Registration Statement has been filed by the Company
with, and declared effective, if necessary, by, the Commission.
Section 9. Payment of Taxes
The Company will pay all documentary stamp taxes, if any, attributable
to the initial issuance of this Warrant or the shares of Common Stock
comprising the Warrant Shares; provided, however, the Company shall not be
required to pay any tax that may be payable in respect of any transfer of the
Warrants or Warrant Shares.
Section 10. Transfer to Comply With the Securities Act of 1933
This Warrant, the Warrant Shares, and any 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 Shares and 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:
(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 SUCH LAWS AND THE WARRANT 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 11. 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 12. No Rights as Stockholder; Notices to Warrantholder
Nothing contained in this Warrant shall be construed as conferring upon
the Warrantholder or its transferees any rights as a stockholder of the
Company, including the right to
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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
(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 the event to the
Warrantholder, as provided in Section 15 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. The notice shall specify the record date or the date of closing the
transfer books, as the case may be.
Section 13. 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
Shares upon the exercise of this Warrant.
Section 14. Warrant Shares to be Fully Paid
The Company covenants that all Warrant Shares 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 15. Notices
Any notice pursuant to this Warrant 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.
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Section 16. 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 in connection therewith, the Company complies with the
provisions of Section 4.4 hereof
Section 17. Applicable Law
This Warrant shall be governed by and construed in accordance with the
internal laws (as opposed to conflicts of law provisions) of the State of
Illinois, and courts located in Illinois shall have exclusive jurisdiction over
all disputes arising hereunder.
Section 18. Acceptance of Terms; Successors.
By its acceptance of this Warrant, the Holder accepts and agrees to
comply with all of the terms and provisions hereof All the covenants and
provisions of this Warrant 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 19. 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 Shares and the exercise of this Warrant in full shall not terminate the
provisions of this Warrant as it relates to holders of Warrant Shares.
(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
Holder.
(d) If any provision of this Warrant shall be held to be invalid,
illegal or unenforceable, the 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 any 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
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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,
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed and issued as of the Issue Date first set forth above.
MOLECULAR DIAGNOSTICS, INC.
By: _______________________________
Xxxxx X. Xxxxxxxx
Chief Executive Officer
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PURCHASE FORM
Dated ___________, _____
The undersigned hereby irrevocably elects to exercise this Warrant to
the extent of purchasing shares of the Common Stock 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 Common Stock of Molecular Diagnostics, Inc. (the
"Company") represented by this Warrant and does hereby irrevocably constitute
and appoint the Company as its attorney-in-fact, 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 in every particular, without alteration
or enlargement or any change whatever.
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