EXHIBIT 4.35
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 MOLECULAR
DIAGNOSTICS, INC.
Warrant No. RVC1
WARRANT TO PURCHASE SHARES OF COMMON STOCK
WARRANT TO PURCHASE 681,818 SHARES
EXERCISE PRICE $0.20 PER SHARE
VOID AFTER 3:00 P.M., CENTRAL TIME, ON SEPTEMBER 5, 2003
THIS CERTIFIES THAT Round Valley Capital LLC, 0000 X. Xxxxxxxx Xxxxxx,
Xxxxx X00, Xxxx, Xxxxxxx 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 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, par value $0.001 per share (the "Common Stock") set
forth above.
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, 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.
"Exercise Date." September 4, 2002.
"Exercise Price." $0.20 per Share.
"Expiration Date." September 3, 2003.
"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 10 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.
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.
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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. 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 9 hereof.
SECTION 5. RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS.
5.1. 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.
5.2. Registration. Not later than 30 days from the Exercise Date, the
Company shall file a registration statement on Form S-2, or other appropriate
form, to register the Warrant Securities. In connection with the Registration
Statement, the Company will use its diligent efforts to effect such
registration, qualification or compliance as soon as practicable (including,
without limitation, the execution of an undertaking to file post-effective
amendments, appropriate qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable regulations issued
under the Securities Act and any other governmental requirements or
regulations), as may be so requested and as would permit or facilitate the sale
and distribution of all of such Warrant Securities. As long as the Warrant
Securities are registered as required by this Section 5.2, the Holder has the
right to sell 1/3 of the Warrant Securities within 30 days of exercising the
Warrant, up to 2/3 of the Warrant Securities within 60 days of exercising the
Warrants and all the Warrant Securities after 90 days of exercising the Warrant.
The Company shall comply with the requirements of this Section 5.2 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
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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.
5.3. Inclusion of Information. In the event that the Company registers
or qualifies the Warrant Securities pursuant to Section 5.2 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 5.2, 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.
5.4. Condition of Company's Obligations. As to each registration
statement or offering statement, the Company's obligations contained in this
Section 5 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.
5.5. Reciprocal Indemnification. In each instance in which pursuant to
this Section 5 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 8 . 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 5 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.
5.6. Survival. The Company's obligations described in this Section 5
shall continue in full force and effect regardless of the exercise, surrender,
cancellation or expiration of this Warrant.
SECTION 6. 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 7. INDEMNIFICATION AND CONTRIBUTION
7.1. 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 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
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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.
7.2. 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.
7.3. Right to Provide Defense. Promptly after receipt by an indemnified
party under Section 7.1 or 7.2 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.
7.4. Contribution. If the indemnification provided for in Sections 7.1
and 7.2 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 7.1 or 7.2 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 the parties' relative
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intent, knowledge, access to information, and opportunity to correct or prevent
such untrue statement or omission. For purposes of this Section, 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 7.4. 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 8. 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 (THE "ACT") OR ANY
STATE SECURITIES LAWS AND MAY NOT BE SOLD, EXCHANGED,
HYPOTHECATED OR TRANSFERRED IN ANY MANNER EXCEPT PURSUANT TO
REGISTRATION OR AN EXEMPTION THEREFROM AND OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT ANY PROPOSED RESALE OR
TRANSFER IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS."
(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 9. 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 10. 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.
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SECTION 11. 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 12. 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 13. 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 14. 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 15. 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 15 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 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 16. 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 17. 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.
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(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 September 4, 2002
MOLECULAR DIAGNOSTICS, INC.
By: /s/ XXXXX X. XXXXXXXX
---------------------------
Xxxxx X. Xxxxxxxx
Chief Executive Officer
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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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