EXHIBIT 4.40
THIS WARRANT AND THE SHARES OF COMMON
STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE NOT BEEN
REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(THE "ACT") OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED,
SOLD, OR
OTHERWISE TRANSFERRED,
PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED
UNDER
SAID ACT AND APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO
THE COMPANY IS OBTAINED THAT SUCH REGISTRATION IS NOT
REQUIRED.
Warrant No. ___
WARRANT TO PURCHASE SHARES OF COMMON STOCK
ISSUE DATE: July 18, 2003
This
certifies that Cadmus
Corporation, a
Delaware corporation
(or any
valid transferee thereof, the "Holder"), for value received, is entitled to
purchase from Molecular Diagnostics, Inc., a Delaware corporation with its
principal business office located at 414 North Orleans Street, Suite 510,
Chicago, Illinois 60610 (together with its successors and assigns, the
"Company"), subject to the terms and
conditions set forth below, at any time or
from time to time on and
after the Issue Date as set forth above and before 3:00
p.m. (Central Time) on the fifth
anniversary of the Issue Date (the "Expiration
Date"), 3,625,000 shares of common stock, $.001 par value per share,
of the
Company ("Common Stock"),
at a price of $0.30
per share. The shares purchasable
upon exercise of this Warrant, and the purchase price per share, each as
adjusted from time to time pursuant to the provisions of this Warrant, are
hereinafter referred to as the "Warrant Shares" and the "Purchase Price,"
respectively.
1.
Exercise.
(a) Exercise for Cash. The Holder may, at the Holder's option,
elect
to exercise this Warrant, in whole or in part at any time or
from time to time
on or after the Issue Date but prior to 3:00 p.m. (Central Time) on the
Expiration Date, by
surrendering this
Warrant, with the
purchase form appended
hereto as Exhibit I duly executed by or on behalf of the Holder, at the
principal office of the Company, or at such other office or agency as the
Company may designate, accompanied by payment in full, in lawful
money of the
United States, of the
Purchase Price payable in respect of the number of
Warrant
Shares purchased upon such
exercise. In no event
shall any such exercise be for
fewer than 10,000 Warrant Shares unless fewer than an aggregate of 10,000
Warrant Shares are then
purchasable under all
outstanding Warrants
held by the
Holder. Payment of the aggregate Purchase
Price may be made in cash, certified
or bank check, or wire
transfer of immediately available funds.
(b) Cashless Exercise.
(i) The Holder may, at the Holder's option, elect to exercise
this Warrant, in whole or in part at any time or
from time to time on or after
the Issue Date but prior to
3:00 p.m. (Central
Time) on the Expiration Date, on
a cashless basis, by
surrendering this Warrant, with the purchase form
appended
hereto as Exhibit I duly executed by or on behalf of the Holder, at the
principal office of the Company, or at such other office or agency as the
Company may designate,
by canceling this
Warrant or a portion hereof in payment
of the Purchase Price payable in respect of the number of Warrant Shares
purchased upon such exercise. In the event of an exercise pursuant to this
Subsection 1(b), the number of Warrant Shares issued to the Holder shall be
determined according to the
following formula:
<PAGE>
X =
Y(A-B)
A
Where: X =
the number of Warrant Shares that shall be issued to the
Holder;
Y = the number
of Warrant Shares for
which this Warrant
is
being exercised (which
shall include both the number of
Warrant Shares
issued to the
Holder and the number
of
Warrant Shares
subject to the
portion of the
Warrant
being cancelled in payment of the Purchase Price);
A = the Fair
Market Value (as defined below) of one share of
Common Stock; and
B = the
Purchase Price then in effect.
(ii) The Fair Market
Value per share of Common Stock shall be
determined as
follows:
(1) If the Common Stock is listed on a national
securities exchange, the Nasdaq National Market or the
Nasdaq SmallCap Market,
or another nationally
recognized
exchange or trading
system as of the Exercise
Date (as defined in (c)
below), the Fair
Market Value per share of Common Stock
shall be deemed to be the
last reported
sale price per share of Common
Stock
thereon on the trading day
immediately
preceding the Exercise
Date; provided
that if no such sale is made
on such day,
the Fair Market Value per share of
Common Stock shall be deemed to be the
average of the
highest bid and
lowest
asked prices on such
day.
(2) If the Common
Stock is not
listed on a national
securities exchange, the Nasdaq National Market or the
Nasdaq SmallCap Market,
or another nationally
recognized
exchange or trading
system as of the Exercise
Date, but is quoted on the Over-The-Counter Bulletin Board, the Fair Market
Value per share of Common
Stock shall be deemed to be the average of the highest
bid and lowest asked prices quoted thereon on the trading day immediately
preceding the Exercise
Date.
(3) If the Common
Stock is not
listed on a national
securities exchange, the Nasdaq National Market, the
Nasdaq SmallCap Market or
another nationally recognized
exchange or trading system or the Over-the-Counter
Bulletin Board as of the Exercise Date, the Fair Market Value per share of
Common Stock shall be deemed
to be the amount most
recently determined in
good
faith by the Board of
Directors of the Company (the "Board") to represent the
fair market value per share
of the Common Stock (including without limitation a
determination for purposes of granting
Common Stock options
or issuing
Common
Stock under any plan,
agreement or
arrangement with
employees of the Company);
and, upon request of the
Holder, the Board (or a representative thereof) shall,
as promptly as reasonably practicable but in any event not later than 10
business days after such
request, notify the Holder of the Fair Market Value per
share of Common Stock.
Notwithstanding the
foregoing, if the Board has not made
such a determination
within the three-month
period prior to the
Exercise Date,
then (A) the Board shall
make, in good faith,
and shall provide or
cause to be
provided to the Holder notice
of, a determination
of the Fair Market
Value per
share of the Common
Stock within 15 business days of a request by the
Holder
that it do so, and (B) the
exercise of this Warrant pursuant to this
Subsection
1(b) shall be delayed
until such
determination
is made and notice
thereof is
provided to the
Holder.
-2-
<PAGE>
(c) Exercise Date and
Status as Holder of Shares. Each exercise of
this Warrant shall be deemed to have been
effected immediately prior to the
close of business on the day
on which this Warrant
shall have been
surrendered
to the Company as provided in Subsection 1(a) or 1(b) above (the
"Exercise
Date"). At such time, the person or persons in whose name or names any
certificates for Warrant
Shares shall be issuable upon such exercise as provided
in Subsection 1(d) below
shall be deemed to have become the holder or holders of
record of the Warrant Shares
represented by such certificates.
(d) Issuance
of Certificates. As soon as practicable after the
exercise of this Warrant in whole or in part, and in any event within 10
business days thereafter,
the Company, at its
expense, will cause to
be issued
in the name of, and delivered
to, the Holder, or as
the Holder (upon payment by
the Holder of any applicable
transfer taxes) may direct:
(i) a certificate
or certificates for the number of full
Warrant Shares to which the
Holder shall be entitled upon such exercise plus, in
lieu of any fractional share to which the Holder would
otherwise be
entitled,
cash in an amount determined
pursuant to Section 3 hereof; and
(ii) in case such
exercise is in part only, a new warrant or
warrants (dated the date
hereof) of like tenor,
calling in the aggregate on the
face or faces thereof for the number of Warrant
Shares equal
(without giving
effect to any adjustment
therein) to the number of such shares called for on the
face of this Warrant
minus the number of
Warrant Shares for
which this Warrant
was so exercised (which, in
the case of an exercise pursuant to Subsection 1(b),
shall include both the number
of Warrant Shares issued to the Holder pursuant to
such partial exercise and the
number of Warrant Shares subject to the portion of
the Warrant being cancelled
in payment of the Purchase Price).
(e) Warrant Shares. The Warrant Shares issued upon any such
exercise
of this Warrant shall be
validly issued, fully
paid and non-assessable and free
from preemptive rights, rights of first refusal or first offer, liens and
charges of whatever
nature.
-3-
<PAGE>
2.
Adjustments.
(a) Adjustment
for Stock Splits and
Combinations.
If the
Company
shall at any time or from
time to time after the Issue Date (or, if this Warrant
was issued upon partial
exercise of, or in
replacement of,
another warrant
of
like tenor, then the date on which such
original warrant was first issued)
(either such date being referred to as the "Original Issue Date") effect a
subdivision of the
outstanding Common
Stock, the Purchase
Price then in effect
immediately before that
subdivision shall be
proportionately
decreased and the
number of Warrant
Shares issuable upon exercise of this Warrant
immediately
prior to such subdivision
shall be proportionately increased. If the Company
shall at any time or from
time to time after the Original Issue Date combine the
outstanding shares of Common Stock, by reclassification or otherwise, the
Purchase Price then in effect immediately before the combination shall be
proportionately increased and the number of Warrant Shares issuable upon
exercise of this Warrant immediately prior to such combination shall be
proportionately decreased. Any adjustment under this Subsection 2(a) shall
become effective at the close of business on the date the subdivision or
combination becomes
effective.
(b) Adjustment for
Certain Dividends and
Distributions.
If while
this Warrant, or any portion hereof,
remains outstanding and unexpired, the
holders of any Common Stock
shall have received, or, on or after the record date
fixed for the determination
of eligible stockholders, shall have become entitled
to receive, without payment therefor,
additional shares of
Common Stock by way
of dividend or other
distribution,
then this Warrant
shall represent the right
to acquire, in addition to
the number of Warrant Shares receivable upon exercise
of this Warrant, or any portion hereof, and without payment of any
additional
consideration therefor, the number of such additional shares of Common Stock
that such holder would have
owned or been entitled to receive immediately after
the happening of such event, had this Warrant or any portion hereof been
exercised immediately prior to the happening of the event or any record
date
with respect thereto, and giving effect to all
adjustments
called for
during
such period by the provisions
of this Section 2.
(c) Adjustments for Other Dividends and Distributions. In the event
the Company at any time or
from time to time after the Original Issue Date shall
make or issue, or fix a
record date for the
determination of
holders of Common
Stock entitled to receive, a dividend or other distribution payable in
securities of the Company (other than shares of Common Stock) or in cash or
other property (other than
regular cash dividends paid out of earnings or earned
surplus, determined in accordance with generally accepted accounting
principles), then and in each such event provision shall be made so that
the
Holder shall receive upon
exercise hereof,
in addition to the
number of shares
of Common Stock issuable hereunder, the kind and amount of
securities of
the
Company, cash or other property which the Holder would have been
entitled to
receive had this Warrant been
exercised on the day
immediately
preceding the
date of such event and had
the Holder
thereafter,
during the period
from the
date of such event to and including the Exercise Date, retained any such
securities receivable during such period,
giving application to all adjustments
called for during such period
under this Section 2 with respect to the rights of
the Holder.
(d) Adjustments for Purchase Rights. In the event the Company at
any
time or from time to time
after the Original
Issue Date shall
issue, or fix
a
record date for the determination of holders entitled to receive, 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 shares of Common Stock at a price per share that
is
lower at such date of
issuance or record date than the then-current Fair Market
Value per share, the number of Warrant Shares thereafter purchasable upon
exercise of this Warrant
shall be adjusted, as
determined by
multiplying
the
number of Warrant Shares
purchasable upon
exercise of this Warrant immediately
prior to such adjustment by a fraction, the numerator of which shall be the
number of shares of Common
Sto
