-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Hm+ZyZH2Q10iHIxANLIE+cfF1c4IKHI64Nw8FvQ/xmr2x8VRKk7xPPXjz0AjWIV6 a9yYYY3L5WyzWXl5Wjap/A== 0001103581-03-000011.txt : 20030813 0001103581-03-000011.hdr.sgml : 20030813 20030813162741 ACCESSION NUMBER: 0001103581-03-000011 CONFORMED SUBMISSION TYPE: 10QSB PUBLIC DOCUMENT COUNT: 8 CONFORMED PERIOD OF REPORT: 20030630 FILED AS OF DATE: 20030813 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MOLECULAR DIAGNOSTICS INC CENTRAL INDEX KEY: 0000075439 STANDARD INDUSTRIAL CLASSIFICATION: SURGICAL & MEDICAL INSTRUMENTS & APPARATUS [3841] IRS NUMBER: 364296006 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10QSB SEC ACT: 1934 Act SEC FILE NUMBER: 000-00935 FILM NUMBER: 03841616 BUSINESS ADDRESS: STREET 1: 900 NORTH FRANKLIN STREET STREET 2: SUITE 210 CITY: CHICAGO STATE: IL ZIP: 60610 BUSINESS PHONE: 4078490290 MAIL ADDRESS: STREET 1: 900 NORTH FRANKLIN STREET 1 STREET 2: SUITE 210 CITY: CHICAGO STATE: IL ZIP: 60610 FORMER COMPANY: FORMER CONFORMED NAME: AMPERSAND MEDICAL CORP DATE OF NAME CHANGE: 19990527 FORMER COMPANY: FORMER CONFORMED NAME: BELL NATIONAL CORP DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: PACIFIC COAST HOLDINGS INC DATE OF NAME CHANGE: 19830303 10QSB 1 mdi10qsb.txt FORM 10-QSB SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-QSB (Mark One) (X) QUARTERLY REPORT UNDER SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934. For the quarterly period ended June 30, 2003 ( ) TRANSITION REPORT UNDER SECTION 13 OR 15(D) OF THE EXCHANGE ACT For the transition period from ___________ to ___________. Commission File number 0-935 ___________________________ MOLECULAR DIAGNOSTICS, INC. (Exact name of Small Business Issuer as Specified in Its Charter) Delaware 36-4296006 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 414 North Orleans Street, Suite 800 Chicago, IL 60610 (Address of Principal Executive Offices) (312) 222-9550 (Issuer's Telephone Number) N/A (Former name, former address and former fiscal year, if changed since last report) Check whether the issuer (1) filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter period that the issuer was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No --- --- APPLICABLE ONLY TO CORPORATE ISSUERS State the number of shares outstanding of each of the issuer's classes of common equity, as of the latest practicable date. COMMON STOCK, $0.001 PAR VALUE 38,842,180 (Class) Outstanding shares as of July 31, 2003 Transitional Small Business Disclosure Format (Check One): Yes No X --- --- MOLECULAR DIAGNOSTICS, INC. QUARTERLY REPORT ON FORM 10-QSB JUNE 30, 2003 TABLE OF CONTENTS
PAGE PART I. -- FINANCIAL INFORMATION Item 1.Financial Statements (Unaudited) a) Consolidated Balance Sheets - June 30, 2003 and December 31, 2002 .......................................... 3 b) Consolidated Statements of Operations -- Three months and six months ended June 30, 2003 and 2002 ........................ 4 c) Consolidated Statements of Cash Flows -- Three months and six months ended June 30, 2003 and 2002 ........................ 5 d) Notes to Consolidated Financial Statements - June 30, 2003 .... 6 Item 2.Management's Discussion and Analysis or Plan of Operation ............................................... 17 Item 3.Controls and Procedures ...................................... 22 PART II. -- OTHER INFORMATION Item 1.Legal Proceedings ............................................ 23 Item 2.Changes In Securities and Use of Proceeds .................... 25 Item 3.Defaults Upon Senior Securities .............................. 26 Item 4.Submission of Matters to a Vote of Security Holders .......... 26 Item 5.Other Information ............................................ 26 Item 6.Exhibits and Reports on Form 8-K ............................. 26 SIGNATURES .......................................................... 27 EXHIBIT INDEX ....................................................... 28
2 PART I. -- FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS MOLECULAR DIAGNOSTICS, INC. AND SUBSIDIARIES (FORMERLY AMPERSAND MEDICAL CORPORATION) CONSOLIDATED BALANCE SHEETS (DOLLARS IN THOUSANDS)
JUNE 30, DECEMBER 31, 2003 2002 ---- ---- (Unaudited) ASSETS Current Assets: Cash and cash equivalents............................... $ 222 $ 42 Accounts receivables, net of allowance for doubtful accounts of $ 65 and $145 at June 30, 2003 and December 31, 2002, respectively...................... 365 307 Inventories............................................. 141 427 Refundable taxes........................................ 47 56 Prepaid financings costs................................ -- 288 Prepaid expenses and other current assets............... 130 69 ------ ------ Total current assets.............................. 905 1,189 Fixed Assets, net.......................................... 531 666 Other Assets Licenses, patents, and technology, net of amortization.. 7,191 7,521 Goodwill, net of amortization........................... 283 283 ------ ------ Total assets...................................... $8,910 $9,659 ====== ====== LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT) Current Liabilities: Accounts payable........................................ $5,383 $5,202 Customer and other deposits............................. -- 24 Accrued payroll costs................................... 2,006 1,856 Accrued expenses........................................ 1,305 1,143 Deferred revenue........................................ 503 630 Revolving line of credit................................ 226 207 Due to stockholder...................................... 141 127 Lease obligation........................................ 279 279 Notes payable--related party............................ 347 65 Notes payable........................................... 5,253 4,585 ------ ------ Total current liabilities......................... 15,443 14,118 Deferred revenue, less current portion..................... 90 120 ------ ------ Total liabilities................................. 15,533 14,238 ------ ------ Stockholders' Equity (Deficit): Preferred stock, $0.001 par value; shares authorized - 10,000,000; shares issued and outstanding - 2,544,621 and 2,781,024, at June 30, 2003 and December 31, 2002, respectively........................................... 13,004 16,958 Common stock, $0.001 par value; shares authorized - 100,000,000; shares issued and Outstanding - 37,442,180 and 36,440,700, at June 30, 2003 and December 31, 2002, respectively........................ 37 37 Additional paid-in-capital................................. 26,264 19,557 Treasury stock; 192,088 shares at June 30, 2003 and December 31, 2002...................................... (327) (327) Deferred compensation...................................... -- (11) Accumulated deficit........................................ (45,372) (40,642) Accumulated comprehensive loss-- Cumulative translation adjustment.................... (229) (151) ------ ------ Total stockholders' equity (deficit).............. (6,623) (4,579) ------ ------ Total liabilities and stockholders' equity (deficit) $8,910 $9,659 ====== ======
The accompanying notes are an integral part of these consolidated financial statements. 3 MOLECULAR DIAGNOSTICS, INC. (FORMERLY AMPERSAND MEDICAL CORPORATION) CONSOLIDATED STATEMENTS OF OPERATIONS (DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
FOR THE SIX MONTHS FOR THE THREE MONTHS ENDED JUNE 30, ENDED JUNE 30, ---------------------- ---------------------- 2003 2002 2003 2002 ---------- ---------- ---------- ---------- (Unaudited) (Unaudited) Net revenues........................... $ 1,018 $ 1,158 $ 421 $ 502 Operating expenses Cost of revenues.................... 508 482 232 287 Research and development............... 319 2,535 88 1,602 Selling, general, and administrative expenses.......................... 3,210 4,422 1,122 2,039 ---------- ---------- ---------- ---------- Total operating expenses......... 4,037 7,439 1,442 3,928 ---------- ---------- ---------- ---------- Operating loss......................... (3,019) (6,281) (1,021) (3,426) Other income (expense): Interest (expense) -related party... (35) (9) (32) (8) Interest (expense) ................. (1,257) (872) (1,019) (768) Gain on litigation settlement....... -- 151 -- 1 Other, net.......................... 6 -- 4 -- ---------- ---------- ---------- ---------- Total other income (expense)..... (1,286) (730) (1,047) (775) ---------- ---------- ---------- ---------- Loss before income taxes............... (4,305) (7,011) (2,068) (4,201) Income tax expense..................... -- -- -- -- ---------- ---------- ---------- ---------- Net loss............................... $ (4,305) $ (7,011) $ (2,068) $ (4,201) ========== ========== ========== ========== Preferred stock dividend............... (752) (414) (328) (292) ---------- ---------- ---------- ---------- Net loss applicable to common stockholders....................... $ (5,057) $ (7,425) $ (2,396) $ (4,493) ========== ========== ========== ========== Basic and fully diluted net loss per common share....................... $ (0.12) $ (0.29) $ (0.06) $ (0.17) ========== ========== ========== ========== Weighed average number of common shares outstanding....................... 40,868,423 25,654,840 41,551,961 25,747,224 ========== ========== ========== ==========
The accompanying notes are an integral part of these consolidated financial statements. 4 MOLECULAR DIAGNOSTICS, INC. (FORMERLY AMPERSAND MEDICAL CORPORATION) CONSOLIDATED STATEMENTS OF CASH FLOWS (DOLLARS IN THOUSANDS)
SIX MONTHS ENDED JUNE 30, -------- 2003 2002 ---- ---- (Unaudited) Operating Activities: Net loss............................................ $(4,305) $(7,011) Adjustments to reconcile net loss to net cash used for operating activities: Amortization of debt discount.................... 1,024 683 Depreciation and amortization.................... 470 482 Amortization of fees............................. 224 -- Loss on sale of fixed assets..................... 1 -- Stock, warrants, and options issued to non-employees for services.................... 330 765 Licensing fees recognized on preferred stock sale -- (298) Compensation expense related to stock appreciation rights, stock options, and restricted stock.............................. 11 81 Interest expense paid with stock................. -- 79 Changes in assets and liabilities: Accounts receivable, net...................... (31) 184 Inventories................................... 298 66 Refundable taxes.............................. 13 2 Due from (to) stockholder..................... 14 59 Prepaid expenses and other current assets..... (112) (174) Accounts payable.............................. 266 755 Deposits...................................... (23) (28) Deferred revenue.............................. (174) (89) Accrued expenses.............................. 259 1,342 ------- ------- Net cash used for operating activities................. (1,735) (3,102) ------- ------- Cash used in investing activities: Expenditures for license, patents, and technology... -- (4) Capital purchases................................... (12) (87) ------- ------- Net cash used for investing activities.............. (12) (91) ------- ------- Cash flows from financing activities: Proceeds from issuance of convertible notes payable. 1,126 2,600 Proceeds from issuance of convertible notes payable, related party..................................... 1,015 25 Note issued in payment of an expense................ 72 -- Payment of notes payable............................ (300) (150) Proceeds from sale of fixed assets.................. 8 (111) ------- ------- Net cash provided by financing activities.............. 1,921 2,364 ------- ------- Effect of exchange rate changes on cash and cash equivalents........................................... 6 (80) ------- ------- Net increase (decrease) in cash and cash equivalents... 180 (909) Cash and cash equivalents at the beginning of period... 42 1,025 ------- ------- Cash and cash equivalents at end of period............. $ 222 $ 116 ======= ======= Supplemental disclosure of cash flow information: Cash paid during the period for: Interest......................................... $ 17 $ 8 Non-cash transactions during the period for: Deferred financing costs......................... $ 173 $ -- Preferred stock and cumulative dividends converted into common stock.................... $ 4,378 $ 345
The accompanying notes are an integral part of these consolidated financial statements. 5 MOLECULAR DIAGNOSTICS, INC. (FORMERLY AMPERSAND MEDICAL CORPORATION) NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED - JUNE 30, 2003) NOTE 1. ORGANIZATION Molecular Diagnostics, Inc, ("MDI") was incorporated as Ampersand Medical Corporation in Delaware on December 15, 1998, as the successor to Bell National Corporation ("Bell National"). Bell National was incorporated in California in 1958. On September 25, 2001, the Company changed its corporate name to Molecular Diagnostics, Inc. in order to better represent its operations and products. The name change was effected through a merger with a wholly-owned subsidiary. Molecular Diagnostics, Inc. has retained its Certificate of Incorporation, except as amended to reflect the new name, bylaws and capitalization. On December 4, 1998, Bell National (then a shell corporation without any business activity) acquired InPath, LLC, a development-stage company engaged in the design and development of medical instruments and related tests. In the acquisition, Bell National issued 4,288,790 shares of common stock and warrants to purchase 3,175,850 shares of common stock to the members of InPath in exchange for their units of membership interest in InPath and the senior executives of InPath assumed management control of MDI. Based upon the terms of the acquisition agreement, for financial reporting and accounting purposes the acquisition was accounted for as a reverse acquisition whereby InPath is deemed to have acquired Bell National. However, Bell National was the continuing legal entity and registrant for both Securities and Exchange Commission filing purposes and income tax filing purposes, until its merger into MDI in May 1999. Because Bell National was a non-operating public shell company with nominal assets and InPath was a private operating company, the acquisition was recorded as the issuance of stock for the net monetary assets of Bell National, accompanied by a recapitalization and no goodwill or other intangible assets were recorded. On September 17, 2001, Molecular Diagnostics, Inc. completed an acquisition transaction whereby AccuMed International, Inc. was merged into a wholly-owned subsidiary of MDI. The value of the transaction was approximately $14,178,000. Accordingly, the consolidated financial statements presented hereunder include the operations of InPath from March 16, 1998 (inception), the operations of Bell National and Molecular Diagnostics, Inc. from December 4, 1998, and the operations of AccuMed International, Inc. from September 17, 2001, the date of acquisition. Molecular Diagnostics, Inc. has another wholly owned subsidiary, Samba Technologies, Sarl ("Samba"). MDI acquired all of the assets of Samba in January 1999 from Unilog Regions, SA for approximately $500,000 in cash. Samba designs, develops, and markets web-enabled software based systems for image analysis, image capture, and image transmission and management for clinical and industrial applications. Samba is also developing software used in the InPath System. A majority of reported revenues prior to 2002 and since inception of Molecular Diagnostics, Inc. have been generated by Samba. Since December 20, 2002, Samba has operated under the protection of the French Commercial Court in compliance with the bankruptcy laws of France. Samba continues to maintain normal operations under the supervision of an Administrator appointed by the French Commercial Court. Samba will continue to operate under the current format until the Commercial Court approves a plan of reorganization and continuation. The Court must act by December 2003 unless an extension of time is granted. In consort with Samba managers, MDI anticipates filing a Continuation Plan with the French Commercial Court during the third quarter of 2003. Molecular Diagnostics, Inc. is focused on the design, development and marketing of the InPath System, Samba software and related image analysis systems, including the AcCell instrument platforms. The InPath System and related products are intended to detect cancer and cancer related diseases. These products may be used in a laboratory, clinic, or doctor's office. 6 Molecular Diagnostics, Inc. has incurred significant operating losses since its inception. Management expects that significant on-going operating expenditures will be necessary to successfully implement MDI's business plan and develop, manufacture and market its products. These circumstances raise substantial doubt about MDI's ability to continue as a going concern. Implementation of its plans and its ability to continue as a going concern depend upon its securing substantial additional financing. During the first six months of 2003, MDI raised $2,141,100 through the sale of convertible debt. Management's plans include substantial efforts to obtain additional capital. If Molecular Diagnostics, Inc. is unable to obtain adequate additional financing or generate profitable sales revenues, management may be required to curtail its product development and other activities and may be forced to cease operations. NOTE 2. BASIS OF PRESENTATION The consolidated financial statements included herein were prepared by us without audit according to the rules and regulations of the Securities and Exchange Commission. Certain information and footnote disclosures normally included in financial statements prepared in accordance with accounting principles generally accepted in the United States have been omitted pursuant to such rules and regulations. The consolidated financial statements reflect, in the opinion of management, all adjustments necessary to present fairly the consolidated financial position and results of operations as of and for the periods indicated. The results of operations for the six months and three months ended June 30, 2003, are not necessarily indicative of the results to be expected for the full year or for any other period. The consolidated financial statements include Molecular Diagnostics, Inc. and its wholly owned subsidiaries. All inter-company balances and transactions have been eliminated. These financial statements should be read in conjunction with the audited financial statements and the notes thereto included in our 2002 Annual Report on Form 10-K, as filed with the Securities and Exchange Commission. NOTE 3. LICENSES, PATENTS, TECHNOLOGY, AND GOODWILL (in thousands)
JUNE 30, DECEMBER 31, 2003 2002 Licenses............................................ $1,029 $1,028 Patent costs........................................ 133 133 MDI Technology Agreement............................ 7,230 7,230 Dianon Technology Agreement......................... 260 260 ------ ------ Subtotal............................................ 8,652 8,651 Less accumulated amortization....................... (1,461) (1,130) ------ ------ Total...................................... $7,191 $7,521 ====== ====== Goodwill............................................ $ 283 $ 283 ====== ======
AGGREGATE AMORTIZATION EXPENSE For the six months ended June 30, 2003$331 NOTE 4. ACCRUED EXPENSES Accrued expenses include the following at June 30, 2003 and December 31, 2002 (in thousands):
2003 2002 ---- ---- Accrued interest.................................... $338 $155 Accrued interest--related party..................... 146 111 Accrued professional fees........................... 57 146 Accrued taxes....................................... 442 412 Reserve for warranty................................ 20 21 Other accrued expenses.............................. 302 298 ------ ------ Total...................................... $1,305 $1,143 ====== ======
7 MDI is delinquent in filing certain Federal and State Income Tax returns for 2002 and 2001. MDI is also delinquent in paying a portion of Federal and State employee and employer payroll taxes for 2001. The Company owed $658,000 and $678,000 as of June 30, 2003 and December 31, 2002, respectively, in past-due payroll taxes, including $230,000 and $250,000 respectively in assessed and estimated statutory penalties and interest. The Internal Revenue Service has filed a lien against the Company's assets to secure the unpaid payroll taxes. MDI is currently in the process of communicating through counsel with the Internal Revenue Service to resolve this matter. The amount is included in accrued payroll costs in the accompanying balance sheet. MDI is also delinquent in paying various state franchise taxes. NOTE 5. NOTES PAYABLE--RELATED PARTIES Notes payable to related parties at June 30, 2003 and December 31, 2002 (in thousands) consisted of:
2003 2002 ---- ---- Northlea Partners, Ltd., $25,000 Promissory Note issued August 6, 2001; interest rate 15% per annum............................................ $ 25 $ 25 Northlea Partners, Ltd., $15,000 Promissory Note issued September 20, 2001; interest rate 9% per annum............................................ 15 15 Northlea Partners, Ltd., $15,000 Bridge II convertible promissory note Issued May 1, 2003; interest rate 12% per annum; (see description under Bridge II notes in Note 6 - Notes payable, for other terms and conditions................... 10 -- Robert Shaw, $25,000 Promissory Note issued September 20, 2001; interest rate 9% per annum... 25 25 Suzanne M. Gombrich, $1,000,000 convertible promissory note issued April 2, 2003; maturity date April 2, 2004 or earlier; interest rate 12% per annum; convertible into common stock at $0.10 per share; beneficial conversion feature valued at $970,000; 1,000,000 warrants at exercise price of $0.15 per share; first priority security interest in all MDI assets....................... 272 -- ----- ----- $ 347 $ 65 ===== =====
On April 2, 2003, MDI issued a $1,000,000 Convertible Promissory Note to an affiliate, Suzanne M. Gombrich, the wife of Peter Gombrich, MDI's Chairman and CEO, in exchange for cash. The note bears interest at the rate of 12% per annum and is convertible into the common stock of MDI at a conversion price of $0.10 per share. As additional consideration, MDI granted the holder a warrant to purchase 1,000,000 shares of the common stock of MDI at an exercise price of $0.15 per share. MDI also granted the holder a first priority security interest in all of the Company's assets. The conversion price of the note was less than the market price of the common stock when the note was issued; therefore, the holder is considered to have a beneficial conversion feature. MDI determined the value of the beneficial conversion feature to be $970,000 using the fair value interest method. The value was recorded as a reduction of the debt and will be amortized as additional interest over the life of the note. MDI recorded additional interest expense of $241,890 to reflect amortization of the discount from the time the note was issued until June 30, 2003.The initial $100,000 of cash proceeds of the note was received in March 2003 and was used to fund the cost of an option to repurchase all of its assets from Round Valley Capital, LLC. The remaining proceeds received on April 2, 2003 were used to make the $900,000 payment required to exercise the purchase option in conjunction with the final settlement of the loan with Round Valley Capital, LLC. See Footnote 6 - Notes Payable, regarding events of default. The carrying amount of notes payable - related parties approximates fair value at June 30, 2003 and December 31, 2002. 8 NOTE 6. NOTES PAYABLE Notes payable to unrelated parties at June 30, 2003 and December 31, 2002 (in thousands) consisted of:
2003 2002 ---- ---- Bridge I Convertible Promissory Notes; due December 31, 2002; interest rate 7% per annum; convertible into common stock at 75% of the market price on date of conversion; beneficial conversion feature valued at $1,041,066; Bridge Warrants at an exercise price of $0.25 per share; Private Warrants at an exercise price equal to 150% of note conversion price.............................. $2,125 $3,185 Bridge II Convertible Promissory Notes; due July 31, 2003; interest rate 12% per annum; convertible into common stock at $0.10 or $0.15 per share; beneficial conversion feature valued at $1,364,767 and $330,000 at June 30, 2003 and December 31, 2002, respectively; Bridge II warrants at an exercise price of $0.15 or $0.20 per share......... 2,215 293 Round Valley Capital, LLC $825,500 Promissory Note, including unearned interest dated August 30, 2002; interest rate 36% per annum; warrants at an exercise price of $0.20 per share; 711,364 shares of common stock.................................... -- 300 Monsun, AS, $500,000 Promissory Note issued November 1, 2000; interest rate 15% per annum, compounded into principal amount; beneficial conversion feature valued at $125,000; 1st extension of maturity date for issuance of 100,000 warrants at an exercise price of $0.60 per share; 2nd extension of maturity date for the issuance of 200,000 warrants at an exercise price of $0.30 per share; 3rd extension of maturity date for the issuance of 200,000 warrants at an exercise price of $0.70 per share; stock issuance of 200,000 shares of common stock in lieu of default penalty.................... 595 552 Trek Diagnostic Systems $80,000 Promissory Note issued July 31, 2002; due in equal installments on September 1, 2002 and December 1, 2002.............. 40 40 O.P., LLC $29,390 Promissory Note issued May 12, 2003; interest at 7% per annum; monthly principal payment of $1,316 plus interest............................. 30 -- Xillix Technologies Corporation $361,000 Promissory Note issued June 26, 1998; interest rate Canadian Prime plus 6% per annum; represents a debt of AccuMed International............................... 34 34 Western Economic Diversification, $221,000 Promissory Note issued June 1989; no interest; represents a debt of Oncometrics................................. 214 182 ------ ------ $5,253 $4,585 ====== ======
Between March 22, 2002 and June 28, 2002, MDI issued $3,185,000 in series Bridge I Convertible Promissory Notes to accredited investors. The notes bear interest at the rate of 7% per annum and are convertible at any time into the common stock of MDI at a conversion price equal to 75% of the market price of the common stock on the date of conversion. In addition, MDI issued a warrant, which entitled each holder to purchase one share of common stock, at an exercise price of $0.25 per share, for each dollar principal amount of notes. MDI calculated a fair value of $99,950 for these warrants using the fair value interest rate method and recorded this amount as additional interest expense during 2002. At the time of conversion of the note, the holder is entitled to receive a Private Warrant to purchase one share of common stock for each four shares of common stock into which the note converts at an exercise price equal to 150% of the conversion price of the note. MDI has not determined a value for the Private warrants as of June 30, 2003. Since the conversion price of the note is at a 25% discount to the market price of the common stock of MDI, the holder is considered to have a beneficial conversion feature. MDI determined the value of the beneficial conversion feature to be $1,041,666 and recorded this amount as additional interest expense during 2002. In February 2003, a note holder, NeoMed Innovations III, converted $1,060,000 in principal amount of Bridge I notes into Bridge II notes. The remaining $2,125,000 in principal Bridge I notes remains unconverted and outstanding at June 30, 2003. Management continues to negotiate an extension of the maturity date or conversion of the notes with the holders. As of August 7, 2003, these negotiations are ongoing. Beginning in October 2002, MDI began an issue of up to $4,000,000 in series Bridge II Convertible Promissory Notes to accredited investors. MDI issued $550,000 in Bridge II notes as of December 31, 2002. During the first six months of 2003, MDI issued an additional $1,141,100 in principal amount of Bridge II notes. The notes bear interest at a rate of 12% per annum payable at the maturity date in kind in the form of shares of common stock of MDI. The 9 Company granted the holders a junior security position in all of its assets. The notes are convertible at any time into the common stock of MDI. The note conversion price and the value of common shares paid in kind as interest for the first $1,000,000 in principal amount of cash subscriptions, determined on a "first come - first served basis," is $0.10 per share. The note conversion price and the value of common shares paid in kind as interest for the remaining $3,000,000 of principal amount of notes in the series is $0.15 per share. The conversion price of the notes issued during 2002 and those issued during the first six months of 2003 was less than the market price of the common stock when the notes were issued; therefore, the holders are considered to have a beneficial conversion feature. MDI determined the value of the beneficial conversion feature to be $1,379,767 and $330,000 at June 30, 2003 and December 31, 2002, respectively. The value was recorded as a reduction of the debt and will be amortized as additional interest over the life of the note. MDI recorded additional interest expense of $781,919 to reflect amortization of the discount during the six months ended June 30, 2003. At the time MDI completes significant additional funding plans, as outlined in the subscription agreement, each holder of Bridge II notes is entitled to receive a warrant to purchase one share of the common stock of the Company for each four shares of common stock into which the note is convertible at an exercise price of $0.15 per share for notes in the class pertaining to the first $1,000,000 in subscriptions and $0.20 for the remaining $3,000,000 in note principal subscriptions. Subsequent to June 30, 2003, MDI issued additional notes in the Bridge II series. (See Footnote 9: Subsequent Events) On August 30, 2002, MDI issued a Promissory note to Round Valley Capital, LLC ("RVC") in the amount of $825,500 representing $650,000 in cash received by MDI and $175,500 in unearned interest. The note bears a calculated effective interest rate of 36% per annum and is due June 1, 2003. The note is secured by all of the assets of MDI. MDI issued a certificate representing 5,750,000 shares of the common stock of the Company to RVC as collateral for the loan and paid transaction fees including: cash payments of $147,063; 711,364 shares of common stock of MDI; and warrants to purchase 681,818 shares of common stock of MDI at an exercise price of $0.20 per share. MDI recorded the note at a value, net of unearned interest, of $650,000. A fair value of $362,795 was calculated for the shares of common stock of MDI issued to RVC using the market price of the common stock on the date the shares were issued. A fair value of $156,000 was calculated for the warrants using the Black-Scholes valuation method. The total value of the transaction fees was recorded as prepaid financing costs and is being amortized over the life of the note. During 2002, MDI made principal payments against the note of $350,000. RVC declared MDI to be in default under the terms of the note during 2002 and the parties were engaged in litigation and subsequently, settlement negotiations. On February 17, 2003, MDI made additional principal payments amounting to $250,000. MDI recorded interest expense of $16,900 and financing costs, including amortization of accrued financing costs, of $1,009,000 during the six-months ended June 30, 2003. On April 2, 2003, MDI paid RVC $900,000 in cash in final settlement of the loan, default penalties and to exercise its rights under the asset purchase option agreement. RVC returned the 5,750,000 shares of common stock issued as collateral under the note, 711,364 shares of common stock issued as financing fees, and warrants to purchase 531,818 shares of common stock also issued as financing fees. MDI cancelled the shares of common stock and the warrants. In July 2002, MDI agreed to settle a claim brought by Trek Diagnostic Systems, Inc. ("Trek") against AccuMed regarding breach of representation and warranties in a certain agreement under which Trek purchased the microbiology business of AccuMed in 2000. MDI issued a promissory note to Trek in the amount of $80,000, payable in two equal installments on September 1, 2002 and December 1, 2002. MDI made the first payment due on September 1, 2002. MDI did not make the second payment causing a default on the note. Trek has instituted legal action against MDI to obtain payment of the remaining amount due under the note. The unpaid portion of the note accrues interest at the rate of 8% per annum. MDI recorded interest expense related to this note of $1,858 for the six-months ended June 30, 2003. Specific events of default have occurred on a significant majority of the outstanding notes payable, including the Bridge I, Bridge II and Suzanne M. Gombrich convertible promissory notes, issued by MDI, ranging from failure to make principal payments when due to breach of certain warranties and representations. The notes payable require the holder to notify MDI in writing of a declaration of default at which time a cure period, as specified in each individual note, would commence. There is no guarantee that MDI would be able to cure any event of default if, or when, the holder provides the required written notice. Other than the $595,000 Monsun AS convertible promissory note and the Trek Diagnostics $40,000 note payable, which are the subject of legal actions described in Footnote 10 - Legal Proceedings, MDI has not received any written declarations of default from holders of its outstanding notes payable. 10 The carrying amounts of notes payable approximates fair value at June 30, 2003 and December 31, 2002. NOTE 7. STOCKHOLDERS' EQUITY Summary of the Company's preferred stock capital table as of:
JUNE 30, DECEMBER 31, 2003 2002 ---- ---- SHARES ISSUED & SHARES ISSUED & OFFERING OUTSTANDING OUTSTANDING -------- ----------- ----------- Series A convertible......................... 82,655 118,092 Series B convertible, 10% cumulative......... 799,856 799,856 Series C convertible, 10% cumulative......... 1,225,833 1,258,833 Series D convertible, 10% cumulative......... 175,000 175,000 Series E convertible, 10% cumulative......... 261,277 429,243 ----------- ----------- Total Preferred Stock........................ 2,544,621 2,781,024 =========== ===========
During the first quarter of 2003 a holder converted 33,000 shares of Series C convertible preferred stock, including cumulative dividends due thereon, into 185,884 shares of common stock. In June 2003, two holders converted 35,437 shares of Series A convertible preferred stock into 15,478 shares of common stock. During the first six months of 2003 several holders converted 167,966.76 shares of Series E convertible preferred stock, including cumulative dividends due thereon, into 5,133,927 shares of common stock. SUMMARY OF PREFERRED STOCK TERMS SERIES A CONVERTIBLE PREFERRED STOCK Liquidation Value: $4.50 per share Conversion Price: $10.3034 per share Conversion Rate: 0.4367--Liquidation Value divided by Conversion Price ($4.50/$10.3034) Voting Rights: None Dividends: None Conversion Period: Any time--3 years SERIES B CONVERTIBLE PREFERRED STOCK Liquidation Value: $4.00 per share Conversion Price: $1.00 per share Conversion Rate: 4.00--Liquidation Value divided by Conversion Price ($4.00/$1.00) Voting Rights: None Dividends: 10%--Quarterly--Commencing March 31, 2001 Conversion Period: Any time Cumulative dividends in arrears at June 30, 2003 were $748,208 SERIES C CONVERTIBLE PREFERRED STOCK Liquidation Value: $3.00 per share Conversion Price: $0.60 per share Conversion Rate: 5.00--Liquidation Value divided by Conversion Price ($3.00/$0.60) Voting Rights: None Dividends: 10%--Quarterly--Commencing March 31, 2002 Conversion Period: Any time Cumulative dividends in arrears at June 30, 2003 were $611,573 11 SERIES D CONVERTIBLE PREFERRED STOCK Liquidation Value: $10.00 per share Conversion Price: $1.00 per share Conversion Rate: 10.00--Liquidation Value divided by Conversion Price ($10.00/$1.00) Voting Rights: None Dividends: 10%--Quarterly--Commencing April 30, 2002 Conversion Period: Any time--After April 1, 2002 Cumulative dividends in arrears at June 30, 2003 were $291,027 SERIES E CONVERTIBLE PREFERRED STOCK Liquidation Value: $22.00 per share Conversion Price: $0.80 per share Conversion Rate: 27.50--Liquidation Value divided by Conversion Price ($22.00/$0.80) Voting Rights: Equal in all respects to holders of common shares Dividends: 10%--Quarterly--Commencing May 31, 2002 Conversion Period: Any time--After December 1, 2002 Cumulative dividends in arrears at June 30, 2003 were $866,150 ISSUANCE OF RESTRICTED SHARES FOR SERVICES Beginning in 1999, the Company has, at various times, awarded restricted shares of common stock to non-employee consultants for services. Some of the share awards were made for past services and their value was fixed. Other share awards were made as partial consideration for services to be performed under three-year consulting agreements and vest over the life of the agreements. The measurement date of these shares had not been determined as of June 30, 2003, and therefore, the value of these shares will be based on the market value of the common stock at the end of each interim period until the measurement date is determined. A fair value of these shares of $17,500 and $87,000 was calculated at June 30, 2003 and June 30, 2002, respectively, using the Black-Scholes valuation model, and the Company recorded $7,237 and $4,000 as expense during the six months ended June 30, 2003 and June 30, 2002, respectively. ISSUANCE OF SHARES FOR SERVICES In January 2003, MDI issued 1,000,000 shares of common stock in exchange for services to a non-employee professional services firm. MDI calculated a fair value of $100,000 for these shares based on the value of the shares on the date of the issuance and recorded the amount as investor relations expense as of March 31, 2003. In May 2003, MDI issued 875,000 shares of common stock in exchange for services to a non-employee professional services firm. MDI calculated a fair value of $218,750 for these shares based on the market value of the shares on the date they were due and is amortizing the amount over the remainder of the service contract. In June 2003, MDI issued 83,642 shares of common stock to a non-employee service vendor in lieu of payment for unpaid service invoices. MDI valued the shares at $12,463which represented the amount of the unpaid invoices. ISSUANCE OF WARRANTS FOR SERVICES On April 2, 2003, MDI issued a warrant to Suzanne M. Gombrich, an affiliate, entitling the holder to purchase 1,000,000 shares of common stock of MDI at an exercise price of $0.15 per share. The warrant was issued as additional consideration for a $1,000,000 convertible promissory note issued on the same date. APPLICATION OF BLACK-SCHOLES VALUATION MODEL In applying the Black-Scholes valuation model, the Company has used an expected dividend yield of zero for both periods, a risk-free interest rate of 4.5% and 6% for the 2003 and 2002 periods, respectively, a volatility factor of 12 148% and 90% for the 2003 and 2002 periods, respectively, and a fair value of the underlying common shares of closing market price on the date of the grant for both periods. The expected life equaled the term of the warrants, options, or restricted shares. NOTE 8. EQUITY INCENTIVE PLAN AND EMPLOYEE STOCK PURCHASE PLAN On May 25, 1999, stockholders approved the establishment of the 1999 Equity Incentive Plan effective as of June 1, 1999. The Plan provides that the Board may grant various forms of equity incentives to directors, employees, and consultants, including but not limited to Incentive Stock Options, Non-Qualified Stock Options, Stock Appreciation Rights, and Restricted Stock Awards. Grants under the Plan are exercisable at fair market value determined as of the date of grant in accordance with the terms of the Plan. Grants vest to recipients immediately or ratably over periods ranging from two to five years, and expire five to ten years from the date of grant. On May 23, 2000, stockholders approved Amendment No. 1 to the Plan, which increased the number of shares of common stock allocated for use in the Plan from 2,000,000 shares to 3,000,000 shares. On June 21, 2002, stockholders approved an Amendment to the Plan, which increased the number of shares allocated for use in the Plan from 3,000,000 shares to 5,500,000 shares. The Board of Directors has also granted options to purchase common stock of MDI, which are not covered by the terms of the Plan. MDI applies APB Opinion No. 25 and related interpretations in accounting for options granted to employees under the Equity Incentive Plan. No compensation cost was recorded during 2003 or 2002 for options granted to employees as the exercise price approximated the fair value of the underlying common stock on the date of the grant. Had stock options been accounted for under the fair value method recommended by FAS 123, the Company's net loss applicable to common shareholders would have been changed to the pro forma amounts indicated below:
FOR THE SIX MONTHS ENDED FOR THE THREE MONTHS ENDED JUNE 30, JUNE 30, -------- -------- 2003 2002 2003 2002 ---- ---- ---- ---- (in thousands except for per share amounts) NET LOSS APPLICABLE TO COMMON SHAREHOLDERS AS REPORTED........ $(5,057) $(7,425) $(2,396) $(4,493) Deduct: Total stock-based compensation expense determined under the fair value based method for all awards, net of related taxes 33 (269) (16) (233) ------- ------- ------- ------- PRO FORMA NET LOSS APPLICABLE TO COMMON SHAREHOLDERS.............. $(5,024) $(7,694) $(2,412) $(4,726) ======= ======= ======= ======= Basic loss per share applicable to common shareholders - as reported.......... $ (0.12) $ (.29) $ (0.06) $ (.17) ======= ======= ======= ======= Basic loss per share applicable to common shareholders - pro forma..... $ (0.12) $ (.30) $ (0.06) $ (.18) ======= ======= ======= =======
The fair value for these options was estimated at the date of the grant using a Black-Scholes option pricing model with the following weighted average assumptions: risk-free interest rates of 6%; dividend yields of zero; volatility factors of the expected market price of the Company's common stock of 90% for both years and a weighted average expected life of the options of 2.5 - 5 years. 13 A summary of the Company's stock option activity, during the six-month periods ended June 30, 2003 and June 30 2002, and related information follows:
OPTION PLAN SHARES ------------------ 2003 2002 ---- ---- OUTSTANDING: December 31, 2002 and 2001, respectively 3,507,517 3,792,496 Granted through June 30,............... -- 286,833 Exercised through June 30,............. -- (361,000) Forfeited - assumed in acquisition through June 30, (17,035) (311,220) Forfeited through June 30,............. (353,500) (289,000) --------- --------- OUTSTANDING: June 30, 2003 and 2002, respectively 3,136,982 3,118,109 ========= ========= EXERCISABLE AT JUNE 30, 2003................. 2,643,314 =========
NOTE 9. SUBSEQUENT EVENTS BRIDGE II FINANCING Beginning in October 2002, MDI began an issue of up to $4,000,000 in series Bridge II Convertible Promissory Notes to accredited investors. The notes bear interest at 12 % per annum payable at maturity date in kind in the form of shares of common stock and are due July 31, 2003. The notes are convertible at any time into the common stock of MDI. The note conversion price and the value of common shares paid in kind as interest for the first $1,000,000 in cash subscriptions, determined on a "first come - first served basis," is $0.10 per share. The note conversion price and the value of common shares paid in kind as interest for the remaining $3,000,000 of principal amount of notes in the series is $0.15 per share. MDI granted each note holder the right to receive a private warrant to purchase one share of the common stock of MDI for each dollar of principal amount of notes held at an exercise price of $0.15 per share. The warrants are not issueable until such time as MDI completes significant additional financing plans. MDI granted a junior security position in all of the Company's assets to the holders of the Bridge II convertible promissory notes. Through June 30, 2003, MDI issued $1,691,100 in principal amount of Bridge II convertible promissory notes in exchange for cash. Between June 30, 2003 and August 7, 2003, MDI issued an additional $255,100 in principal amount of Bridge II convertible promissory notes in exchange for cash. MDI is currently working with holders to amend the notes to extend the due date beyond July 31, 2003 and to waive any defaults. WARRANTS On July 18, 2003, Mr. Milley, a director, Azimuth Corporation and Cadmus Corporation, agreed to cancel seven warrants held by Azimuth and one warrant held by Cadmus, which entitled the holders to purchase a total of 3,125,000 shares of common stock at various exercise prices between $0.01 and $1.25 per share. The warrants, issued between December 1999 and August 2001, contained anti-dilution clauses which required MDI to increase the number of shares of common stock the holders were entitled to purchase under the warrants by approximately 1,500,000 shares as of the date of the agreement, with commensurate adjustments in individual exercise prices so that gross proceeds to the Company from exercise of the warrants remained the same. These anti- dilution provisions could have required the Company to make additional adjustments in shares and exercise prices in the future based on the Company's issuance of debt or equity instruments at prices below the adjusted exercise prices of these warrants. In consideration for the parties agreement to cancel these warrants, including their individual anti-dilution clauses, and the forgiveness of approximately $120,000 currently owing to Azimuth and Cadmus, MDI agreed to issue a new five-year warrant entitling the holders to purchase 6,500,000 shares of common stock at an exercise price of $0.30 per share. MDI also agreed to issue a 120- day warrant entitling the holder to purchase 500,000 shares of common stock at an exercise price of $0.30. Management believes that the Company will derive significant additional benefits in the future as a result of the elimination of the anti dilution provisions in the original warrants. Although an agreement has been reached in principal between the parties, no definitive agreement has yet been signed. NOTE 10. LEGAL PROCEEDINGS On July 31, 2002, MDI entered into a settlement and mutual release agreement with Trek Diagnostic Systems, Inc. ("Trek") related to a claim of breach of representations and warranties included in an agreement under which AccuMed sold its microbiology business and related assets to Trek in 1999. Under the settlement agreement, MDI executed an $80,000 promissory note in 14 favor of Trek. The note required principal payments of $40,000 each on September 1 and December 1, 2002. MDI made the initial payment and Trek filed suit against MDI (Court of Common Pleas Cuyahoga County, Ohio (Case No. CV 03 492582)) on January 23, 2003 to collect the remaining $40,000 plus interest at 8% per annum and legal and other costs. At December 31, 2002, MDI accrued the remaining amount due on the note. On April 18th, 2003, judgment was entered against MDI in the amount of $40,000 plus interest. Management is currently negotiating with Trek representatives to resolve this matter. On March 28, 2003 The Cleveland Clinic Foundation ("Clinic") filed suit against MDI (United States District Court for the Northern District of Ohio, Easter Division, (Case No. 1:03CV0561)) seeking approximately $315,000 plus interest and attorney fees and costs. The sum in question pertains to remaining unpaid fees for certain clinical trial work conducted by the Clinic in the Peoples Republic of China ("China Study") on behalf of MDI. At December 31, 2002, MDI recorded the full amount owing to the Clinic as a liability in its accounts. On August 11, 2003, MDI and the Clinic entered into a Settlement Agreement and Mutual Release. MDI agrees to pay the sum of $240,000 to the Clinic upon return of MDI's instruments and computer equipment used in the China Study and MDI's successful ability to access available and uncorrupted clinical trial data contained therein. If the China Study data is available, the Clinic agrees to provide all hard copy documentation related to the China Study and to complete a review and analysis of the data in a timely manner. If the data is not available, MDI will not make the aforementioned payment and the lawsuit will go forward. At that point MDI will actively defend itself based on the Clinic's failure to deliver the data required under the original China Study agreement. On January 2, 2003, Bowne of Chicago, Inc. ("Bowne") filed suit against MDI (Circuit Court of Cook County, County Department-Law Division (Case No. 03 L 000009)) claiming approximately $342,000, plus interest and attorney fees and costs, related to financial printing service fees provided to MDI by Bowne during the period October 25, 2001 through November 7, 2002. While MDI is actively defending itself against the suit claiming the charges for printing services provided during the period mentioned above were excessive, management has taken a conservative position and recorded the entire amount of the Bowne invoices as outstanding accounts payable on the records of MDI. As of December 31, 2002 and June 30, 2003, management and its counsel are unable to determine what the outcome of this litigation might be. On January 9, 2003, Monsun, AS ("Monsun") filed suit against Peter Gombrich, MDI's Chairman and CEO, (United States District Court for the Northern District of Illinois Eastern Division (Case No. 03C 0184)) claiming $500,000 plus consequential damages for failure to make payment in compliance with the terms of a personal guaranty signed by Mr. Gombrich in relation to Monsun's grant of an extension in the maturity date of a convertible promissory note in the principal amount of $500,000 issued by MDI on November 1, 2000. The note had an original maturity date of November 1, 2001. The maturity date of the note was initially extended until January 31, 2002 and subsequently to April 1, 2002 and finally to July 31, 2002. Monsun granted the maturity date extensions in exchange for various warrants issued by MDI entitling the holder to purchase shares of MDI's common stock at various prices. In November 2002, the Board of Directors approved the issuance of 200,000 shares of MDI's common stock to Monsun to satisfy a default penalty clause in the guaranty. The terms of the guaranty required that Monsun receive registered shares of MDI's common stock, however, in order to comply with securities laws, MDI issued the shares of its common stock to Monsun with a restrictive legend which permits their sale only in compliance with Rule 144 of the Securities Exchange Act. MDI has recorded the principal amount of the note plus accrued and unpaid interest to December 31, 2002 as a note payable on its records. Since Mr. Gombrich's potential liability under the suit, including the failure to deliver registered shares of MDI's common stock, is the result of the failure of MDI to pay the principal amount of its convertible promissory note when due, the Board of Directors has agreed that MDI will assume responsibility for Mr. Gombrich's obligations under the guaranty, including legal costs. MDI has presented a settlement proposal, but as of August 8, 2003, Monsun has not replied to the settlement proposal and management and counsel are unable to determine the result of this pending litigation. MDI is a defendant in several lawsuits brought by current or former unsecured creditors to collect past due amounts for goods and services. MDI has recorded the amounts due in its records and is attempting to settle these suits and unfiled claims. MDI is a defendant in several legal actions brought by former employees seeking to collect amounts due for unpaid wages. MDI has recorded the amounts due in its records and is attempting to settle these actions. 15 In May 2003, the Company, together with its subsidiaries, AccuMed International, Inc. ("AccuMed") and Oncometrics Imaging Corporation ("Oncometrics"), filed suit against MonoGen, Inc. and Norman Pressman (Case No. 03 CH 08532 (Circuit Court of Cook County, Illinois)). The suit arises out of two license agreements between AccuMed, Oncometrics and MonoGen in which certain intellectual property was transferred from AccuMed and Oncometrics to MonoGen for $500,000 (the "Agreements"). At the time of the Agreements, the Company had not yet acquired AccuMed and Oncometrics. The technology, which was the subject of the Agreements, had been licensed to Oncometrics by the British Columbia Cancer Agency ("BCCA") pursuant to a written license agreement. Pressman was the President of AccuMed and Oncometrics when the Agreements were negotiated and executed. As soon as the Agreements were signed, Pressman took a position with MonoGen. The Complaint alleges that the technology was transferred at a below market price. The Complaint also asserts that AccuMed and Oncometrics may not have obtained the requisite approval from BCCA to transfer the technology to MonoGen pursuant to the Agreements. The Complaint contains claims against Pressman for breach of fiduciary duty and fraud. To the extent that the requisite approval from BCCA was not obtained, Pressman breached his fiduciary duty to AccuMed and Oncometrics by failing to obtain that approval, and falsely representing that he had in fact obtained the requisite approval. Pressman breached his fiduciary duty further by failing to negotiate an arms length transaction with MonoGen. The Complaint also asserts claims against MonoGen for aiding and abetting Pressman's breaches of fiduciary duty to AccuMed and Oncometrics, fraud in the inducement and tortuous interference with prospective economic advantage. The Company's claims against MonoGen have been dismissed from this action and consolidated in a separate arbitration proceeding involving the Company and MonoGen. The Company's claims against Pressman remain pending in this action. In June 2003, the Court dismissed the Company's request for a preliminary injunction. The denial of preliminary injunctive relief does not affect the Company's rights to pursue permanent injunctive relief at the conclusion of the case, if such relief is warranted. The Company is attempting to negotiate a global settlement of the claims in this action, the arbitration proceeding with MonoGen and any threatened but unasserted claims by BCCA relating to the Agreements. The failure to negotiate a favorable settlement could have a material adverse effect on MDI's business. On April 14, 2003, we received a notification from the attorney for the licensor, Dr. Bruce Patterson, M.D., Ph.D, under the License and Development Agreement covering certain HPV technology, which forms the basis for our In- Cell HPV test, indicating that the licensor intended to terminate the license in accordance with a specific clause of the license, which permits termination in the event the Company makes an assignment for the benefit of creditors or bankruptcy, or otherwise relinquishes or loses control of all its assets. On April 15, 2003, we informed the attorney that the facts used by the licensor to invoke the termination right were incorrect and that we are still in control of all of our assets and that such assets are pledged as security under debt instruments and that such pledges are not included under events which would permit the licensor to terminate the license. We, and our counsel, believe that MDI would prevail should the licensor attempt to pursue a termination action. We are also engaged in a dispute with the licensor over completion of the third milestone of the license under which completion requires process and procedure verification by an independent third party. This verification requirement has not been satisfied as yet. The Company and its subsidiaries Samba Sarl and AccuMed International, Inc. (collectively, "MDI") are parties to an Amended License and development Agreement with Ventana Medical Systems, Inc. ("Ventana") dated October 31, 2001, pursuant to which MDI has licensed certain intellectual property rights and technical information to Ventana. Under the Amended License and Development Agreement, Ventana was to produce an automated pathology imaging system using the intellectual property rights and technical information licensed from MDI, and Ventana was to pay MDI royalties based on the sales of such imaging system, as well as software support fees related to licensed software rights. Disputes have arisen between MDI and Ventana regarding their respective performance under the Amended License and Development Agreement. MDI and Ventana are currently negotiating an agreement of settlement and release, pursuant to which the Amended License and Development Agreement would be modified or terminated and if terminated would be replaced by a new agreement. 16 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION The following discussion and analysis should be read in conjunction with our consolidated financial statements presented in Part I, Item 1 of this quarterly report and our consolidated financial statements and Management' Discussion and Analysis of Financial Condition and Results of Operations contained in our Annual Report on Form 10-K for the year ended December 31, 2002. SIGNIFICANT ACCOUNTING POLICIES Use of Estimates. The preparation of the financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes. Actual results could differ from those estimates. Revenue Recognition. The Company recognizes revenue upon shipment of a product or license to customers and no remaining Company obligations or contingencies exist, or in the case of sales of software by its wholly owned subsidiary, Samba, upon shipment if persuasive evidence of an arrangement exists; sufficient vendor-specific objective evidence exists to support allocating the total fee to all elements of the arrangement; the fee is fixed or determinable; and collection is probable. Revenue from ongoing client maintenance is recognized ratably over the post-contract support term, which is generally twelve months. Revenue from training services and professional services is recognized when the service is completed. Revenue from implementation and installation services is recognized using the percentage of completion method. Revenue from prepayments under licenses is recognized over the license period. Samba calculates percentage of completion based on the estimated total number of hours of service required to complete an implementation project and the number of actual hours of service rendered. Implementation and installation services are generally completed within 120 days. Licenses, Patents, Technology and Goodwill. Licenses, patents, and purchased technology are recorded at their acquisition cost. Costs to prepare patent filings are expensed when incurred. Costs related to abandoned patents are written off at the time of abandonment. Amortization is begun as of the date of acquisition or upon the grant of the final patent. Costs are amortized over the asset's useful life, which ranges from two to seventeen years. The Company assesses licenses, patents, and technology quarterly for impairment. Goodwill. The Company has adopted FAS 142, which sets forth guidelines for discontinuing periodic goodwill amortization costs in results of operations and for establishing an annual goodwill impairment review and related net realizable value asset write-down methodology. Research and Development Costs. Research and development costs are charged to operations as incurred. Molecular Diagnostics, Inc. conducts a portion of its research activities under contractual arrangements with scientists, researchers, universities, and other independent third parties. Foreign Currency Translation. The functional currency of the Company's foreign operations is the local currency. Accordingly, all assets and liabilities are translated into United States dollars using period-end exchange rates, and all revenues and expenses are translated using average exchange rates during the period. The amount of foreign currency translation is not material to the results of operations and the financial position of the Company. Other Comprehensive Income (Loss). Translation adjustments related to the Company's foreign operations are included in other comprehensive loss and reported separately in stockholders' equity (deficit). Stock Compensation. As permitted by the Statement of Financial Accounting Standards No. 123, Accounting for Stock-Based Compensation (SFAS 123), Molecular Diagnostics, Inc. uses the intrinsic value method to account for stock options as set forth in Accounting Principles Board Opinion No. 25, Accounting for Stock Issued to Employees (APB 25). 17 Impairment. At each balance sheet date or whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable, management of the Company evaluates recoverability of such assets. An impairment loss is recognized if the amount of undiscounted cash flows is less than the carrying amount of the asset in which case the asset is written down to fair value. The fair value of the asset is measured by either quoted market prices or the present value of estimated expected future cash flows using a discount rate commensurate with the risks involved. Application of Black-Scholes Valuation Model. In applying the Black- Scholes valuation model, we have used an expected dividend yield of zero, a risk-free interest rate of 4.5% and 6% for 2003 and 2002, respectively, a volatility factor of 148% and 90% for 2003 and 2002, respectively, and the closing market price of the underlying common stock on the date of the grant. There were no option grants during the first six months of 2003. The expected life equaled the term of the warrants, options, or restricted shares. FORWARD-LOOKING STATEMENTS Certain statements contained in this discussion and analysis of financial condition and results of operations that are not related to historical results are "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995. Statements that are predictive, that depend upon or refer to future events or conditions, or that include words such as "expects," "anticipates," "intends," "plans," "believes," "estimates," "hopes," and similar expressions constitute forward-looking statements. In addition, any statements concerning future financial performance (including future revenues, earnings or growth rates), ongoing business strategies or prospects, or possible future actions by us are also forward-looking statements. These forward-looking statements are based on beliefs of our management as well as current expectations, projections and assumptions currently available to the Company and are subject to certain risks and uncertainties that could cause actual results to differ materially from historical results or those anticipated. These risks are described more fully in our most recent Annual Report on Form 10-K under the caption of Risk factors Item 1 and in subsequent reports filed with the Securities and Exchange Commission. Should one or more of those risks or uncertainties materialize or should underlying expectations, projections and assumptions prove incorrect, actual results may vary materially from those described. Those events and uncertainties are difficult to predict accurately and many are beyond our control. We assume no obligation to update these forward-looking statements to reflect events or circumstances that occur after the date of these statements. OVERVIEW OF MOLECULAR DIAGNOSTICS The science of medical diagnostics has advanced significantly during the past decade. Much of this advance has come as a result of new knowledge of the human genome and related proteins, which form the foundation of cell biology and the human body. Our goal is to utilize this research as a base to develop screening and diagnostic testing products for cancer and cancer-related diseases. We believe that the success of these products will improve patient care through more accurate test performance, wider availability and cost effective service delivery. We are developing an initial series of products to address these criteria including sample collection devices, chemical and biological tests, and analytical instruments and related software. Our strategy is to develop products through internal development processes, strategic partnerships, licenses and acquisitions of companies. This strategy has required and will continue to require additional capital. As a result, we will incur substantial operating losses until we are able to successfully market some, or all, of our products. RESULTS OF OPERATIONS REVENUE Our revenue for the six-month period ended June 30, 2003 totaled $1,018,000, representing a decrease of $140,000, or 12.1%, over revenue of $1,158,000 for the six-month period ended June 30, 2002. The 2003 comparative revenue decrease results primarily from one-time revenue recognition during the first quarter of 2002 of $298,000 from the sale of a three-year irrevocable, worldwide, royalty-free license for full access to Samba's image analysis 18 software and development tools to Ventana Medical Systems, Inc. The remaining increase represents gains in new customer AcCell instrument sales and installations. Revenue of $421,000 for the three months ended June 30, 2003 represented a decrease of $81,000, or 16.1%, over revenue for the same period in 2002. This resulted from a decrease in MDI instrument related revenues. Revenues from our European subsidiary, Samba, are derived from the sale of proprietary Telemedicine software and software consulting services. Samba conducts its operations in local currency, the Euro. We convert the local currency into U.S. Dollars for consolidated reporting purposes. Samba's revenue recognition is also subject to the timing of receipt and completion of customer contracts from period to period. We may experience quarter-to-quarter and year-to-year variability in revenues as a result of these contract-timing issues until we begin to market some or all of our other products. OPERATING Cost of Revenues Cost of revenues for the six months ended June 30, 2003 totaled $508,000, an increase of $26,000 from the same period in 2002. No cost of revenues attributable to the Ventana license sale was recorded since related research and development costs related thereto were expensed as incurred in prior years. Cost of revenues for the three months ended June 30, 2003 totaled $232,000, a decrease of $55,000, or 19.2%, from the same period in 2002. The decrease was the result of a reduction in MDI instruments sold during the period. Research and Development We devote a substantial amount of our resources to research and development ("R&D") related to new products, including markers, tests, instruments and software applications, as well as modifications and refinements of our existing products. R&D expenses decreased $2,216,000 and $1,514,000 for the six-month and three-month periods ended June 30, 2003 to $319,000 and $88,000, a decrease of 87.4% and 94.5%, respectively, over the comparable prior year periods. These reductions were the result of reduced operating capacity due to capital and liquidity constraints. R&D expenses consist of costs related to specific development programs with scientists and researchers at universities and hospitals; full scale device development contracts begun during 1999 with industrial design and manufacturing companies covering the disposable and instrument components of the InPath System; payments to medical and engineering consultants for advice related to the design and development of our products and their potential uses in the medical technology marketplace; instrumentation, disposables, clinical consumables, clinical supplies and regulatory costs to develop clinical trial reference laboratories and to recruit and test patients in support of our various Food and Drug Administration ("FDA") clinical trials, and payroll-related costs for in-house engineering, scientific, laboratory, and software development activities; and research management staff. Selling, General and Administrative Selling, general and administrative expenses ("SG&A") decreased $1,212,000 and $917,000 for the six-month and three-month periods ended June 30, 2003 to $3,210,000 and $1,122,000, a decrease of 27.4% and 45% over the same periods ended June 30, 2002, respectively. This decrease, which would have been significantly larger except that we charged $1,118,000 in financing costs related to the settlement of the Round Valley Capital, LLC loan on April 2, 2003 to expense during the period, is the result of reduced operating capacity due to capital and liquidity constraints, and a reduction in legal expenses due to the one-time recording of $675,000 in legal costs related to a litigation settlement during the first quarter of 2002. Significant components of SG&A are compensation costs for executive, sales and administrative personnel, professional fees primarily related to legal and accounting and consulting services, travel costs, printing costs, fees for public and/or investor relations services, insurance premiums, facilities and office expenses, marketing related costs, and 19 amortization/depreciation charges, many of which showed significant declines due to the reduction in overall operations, which began during the last quarter of 2002. OTHER INCOME AND EXPENSE Interest Expense Interest expense, including interest expense to related parties, increased $411,000 and $275,000 for the six-month and three-month periods ended June 30, 2003 to $1,292,000 and $1,051,00, an increase of 46.7% and 35.4% over the same periods ended June 30, 2002, respectively. Bridge I convertible promissory notes, in principal amounts totaling $3,185,000 and issued between March 22, 2002 and June 25, 2003, and Bridge II convertible promissory notes, in principal amounts totaling $1,691,100, and issued between October 29, 2002 and June 30, 2003 were outstanding for all or some of the six months ended June 30, 2003. See further discussion in the preceding Notes To Consolidated Financial Statements - Note 6. Also, accrued interest expense resulting from related party convertible notes payable is included in interest expense - related party. Other Income and Expense, Net For the six months ended June 30, 2002, we recorded a $150,000 gain from the settlement of the SpectRx litigation during the first quarter 2002. Related SpectRx settlement legal expenses are included in selling, general and administrative expenses for the period ended June 30, 2002. NET LOSS The net loss for the six-month and three-month period ended June 30, 2003 before preferred dividends totaled $4,305,000 and $2,068,000 compared with $7,011,000 and $4,201,000 for the same periods in 2002, a decrease of $2,706,000 and $2,133,000 or a 38.6% and a 50.8% decrease, respectively. The decreases were primarily the result of reduced operating capacity due to capital and liquidity constraints. In addition, cumulative dividends on the outstanding Series B convertible preferred stock through Series E convertible preferred stock totaled $752,000 and $328,000 for the six-month and three-month periods ended June 30, 2003 compared with $414,000 and $292,000 for the same periods in 2002, respectively. The combined net loss applicable to common stockholders for the six and three months ended June 30, 2003 of $5,057,000 and $2,396,000 or $0.12 and $0.06 per share, on 40,868,423 and 41,551,961 weighted average common shares outstanding, respectively, compared with the net loss and net loss available to common stockholders for the six-month and three-month periods ended June 30, 2002 of $7,425,000 and $4,493,000 or $0.29 and $0.17 per share, on 25,654,840 and 25,747,224 weighted average common shares outstanding. At June 30, 2003, cumulative dividends on the outstanding Series B convertible preferred stock, Series C convertible preferred stock, Series D convertible preferred stock and Series E convertible preferred stock totaled $2,516,958. The weighted average shares outstanding during the quarter ended June 30, 2003 reflect the conversion of Series B, Series C, and Series E convertible preferred stock during 2002 and Series C and Series E convertible preferred shares during the six months ended June 30, 2003. It also reflects, 5,750,000 shares of common stock issued to RVC as additional loan collateral in September 2002. The shares were returned to MDI and cancelled in June 2003. LIQUIDITY AND CAPITAL RESOURCES R&D, clinical trials and other studies of the components of our InPath System, conversions from designs and prototypes into product manufacturing, initial sales and marketing efforts, medical consultants and advisors, and research, administrative, and executive personnel are and will continue to be the principal basis for our cash requirements. We have provided operating funds for the business since its inception through private offerings of debt and equity to U.S. and foreign accredited investors. We will be required to make additional offerings in the future to support the operations of the business until some or all of our products are introduced into the market. We used $1,735,000 and $3,102,000 for the six months ended June 30, 2003 and 2002, respectively, in operating activities. 20 At June 30, 2003 we had cash on hand of $222,000, an increase of $180,000 compared to the $42,000 cash on hand at December 31, 2002. This increase can be attributed to new capital funding from Bridge II notes issued during the period and improved collection of Samba receivables offset by current operating expenses and payments of certain liabiliites. During the first quarter of 2003, we issued $350,000 in Bridge II convertible notes in exchange for cash. The notes were issued under the same terms as all other previous Bridge II notes. We used $250,000 of the proceeds to make principal and interest payments on the RVC loan. During the second quarter of 2003, we issued an additional $791,100 in Bridge II convertible notes in exchange for cash or services. A Bridge II note in the amount of $15,000 was issued to Northlea Partners, Ltd. on May 1, 2003. Dr. John Abeles, one of our directors, serves as the managing partner of Northlea Partners, Ltd. The note was issued under the same terms and conditions as all other Bridge II notes. We used the proceeds of the notes issued during the second quarter to meet current operating needs and to make payments to our previous independent auditors for past services and to our current independent auditors for services related to the audit of our financial statements for the year ended December 31, 2002 and the preparation of our Annual Report on Form 10-K as filed with the Securities and Exchange Commission at the end of the second quarter of 2003. During the first quarter of 2003, Mr. Gombrich, our Chairman and CEO, loaned the Company an additional $115,000 to meet some of our operating needs. During the second quarter of 2003 we repaid $101,000, net of an additional loan amount of $20,000, to Mr. Gombrich. In March 2003, an affiliate, Suzanne M. Gombrich, the wife of our Chairman, loaned the Company $100,000 in cash, reflecting the initial proceeds of a $1,000,000 convertible promissory note described in the following paragraph. We used the $100,000 to buy the purchase option related to the RVC loan settlement. On April 2, 2003, MDI issued a $1,000,000 Convertible Promissory Note to Suzanne M. Gombrich, in exchange for $900,000 in cash. The April note included the $100,000 advance loan proceeds described in the preceding paragraph. The note bears interest at the rate of 12% per annum and is convertible into our common stock at a conversion price of $0.10 per share. As additional consideration, we granted the holder a warrant to purchase 1,000,000 shares of our common stock at an exercise price of $0.15 per share. We also granted the holder a first priority security interest in all of our assets. We used the $900,000 cash proceeds to make the required payment to exercise the purchase option in conjunction with the final settlement of the loan with Round Valley Capital, LLC. On August 30, 2002, we issued a promissory note to Round Valley Capital, LLC ("RVC") in the amount of $825,500 representing $650,000 in cash received in exchange for the note and $175,500 in unearned interest. The note was due June 1, 2003 and bore interest at a calculated rate of 36% per annum. The note was secured by all of our assets. We paid transaction fees in cash of $147,063, issued RVC 711,364 shares of our common stock and warrants to purchase 681,818 shares of our common stock at an exercise price of $0.20 per share. We also issued a certificate representing 5,750,000 shares of our common stock as additional collateral for the loan. As of December 31, 2002, we had made principal and interest payments against the note of $350,000 and $59,500, respectively. As a result of issues over the value of collateral, RVC declared the note to be in default and attempted to foreclose on our assets and sell them at auction. We instituted legal action against RVC, halting the foreclosure and asset sale, and immediately entered into settlement negotiations. In early December of 2002, we reached a settlement agreement with RVC under which we were required to pay the remaining $300,000 principal balance of the note plus an additional amount of $115,000, representing the remaining unearned interest on the note, by January 4, 2003. The agreement provided that if the payment due on January 4, 2003 was not made in a timely manner, a default penalty would be assessed each week payment was not made until a final payment amounting to $950,000 would be due on February 19, 2003. Because of capital and liquidity constraints, we were not able to make the payment due on January 4, 2003 and made no further payments until February 17, 2003, when we paid RVC $250,000 leaving a remaining balance due under the settlement agreement of $700,000. At the end of February RVC proceeded with foreclosure against our assets. At that time we agreed to pay RVC $100,000 for an option to repurchase our assets at any time prior to the close of business on April 2, 2003. The option prevented RVC from selling the assets to any party other than us before that date. We used the proceeds of Bridge II convertible promissory notes issued in February, as described above, to make the $250,000 payment to RVC. On April 2, 2003, we paid RVC $900,000 as a final settlement and to exercise the purchase option to reacquire all of our assets. We used the proceeds of a convertible promissory note issued to an affiliate, as described above, to make the final payment to RVC. In conjunction with this final payment, RVC returned 5,750,000 shares of our common stock issued as collateral, 711,364 shares of our common stock and warrants to purchase 531,818 21 shares of our common stock issued to RVC as payment for transaction fees. We cancelled the returned shares of common stock and warrants. Our capital expenditures were approximately $12,000 for the six months ended June 30, 2003, a reduction of $75,000, or 86.2% from the prior year period's $87,000. Capital expenditures are defined as disbursements for laboratory equipment, leasehold improvements, software, and furniture/fixtures with a purchase price in excess of $1,000 per item and useful life in excess of one year. The decrease in 2003 capital expenditures resulted from a reduction of laboratory and computer equipment and software purchases in support of our product development and research efforts in order to conserve cash through our private placement and bridge financings. Specific events of default have occurred on a significant majority of our outstanding notes payable, including $2,125,000 of Bridge I convertible promissory notes, $3,006,200 of Bridge II convertible promissory notes and the $1,000,000 Suzanne M. Gombrich convertible promissory note, ranging from failure to make principal payments when due to breach of certain warranties and representations. The notes payable require the holder to notify us in writing of a declaration of default at which time a cure period, as specified in each individual note, would commence. There is no guarantee that we would be able to cure any event of default if, or when, the holder provides the required written notice. Other than the $595,000 Monsun AS convertible promissory note and the $40,000 Trek Diagnostics note payable, which are the subject of legal actions described in Footnote 10 - Legal Proceedings, we have not received any written declarations of default from holders of our outstanding notes payable. Our operations have been, and will continue to be, dependent upon management's ability to raise operating capital in the form of debt or equity. We have incurred significant operating losses since the inception of our business. We expect that significant ongoing operating expenditures will be necessary to successfully implement our business plan and develop, manufacture and market our products. As a result of capital and liquidity constraints, we significantly reduced our staff and all other operating expenditures beginning in the last quarter of 2002 and continuing through most of the second quarter of 2003. We began to reestablish our operations at the end of the second quarter of 2003. These circumstances raise substantial doubt about our ability to continue as a going concern. There can be no assurance that we will be able to obtain additional capital to meet our current operating needs or to complete pending or contemplated licenses or acquisitions of technologies. If we are unable to raise sufficient adequate additional capital or generate profitable sales revenues, we may be forced to continue our operations at a reduced level, substantially delaying product research and development, clinical trials, market introduction of some of our products and other activities and may even be forced to cease operations. ITEM 3. CONTROLS AND PROCEDURES EVALUATION OF DISCLOSURE CONTROLS AND PROCEDURES Our principal executive officer and principal financial officer have concluded, based upon their evaluation as of a date within 90 days prior to the date of filing this Quarterly Report on Form 10-QSB, that our disclosure controls and procedures are effective to ensure that information required to be disclosed by MDI in the reports filed or submitted by us under the Securities Exchange Act of 1934, as amended, is recorded, processed, summarized and reported within the time periods specified in the SEC's rules and forms. Our former independent auditors, Ernst & Young, LLP, issued a report at the completion of their audit of our consolidated financial statements for the year ended December 31, 2001 detailing certain deficiencies in our internal control systems and procedures. During 2002, we hired an independent consultant, Tatum CFO Partners, LLP ("Tatum"), to address the issues raised by Ernst & Young, LLP. In August of 2002, Tatum reported to the Audit Committee that it had assisted management in developing procedures, forms, checklists and reporting packages to address these deficiencies, and that progress had been made to improve our system of internal controls. Additional progress in these areas continued through the end of 2002. In designing and evaluating the controls and procedures, management recognized that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and management was necessarily required to apply judgment in evaluating the cost-benefit relationship of possible controls and procedures. There have been no other significant changes in our internal controls, with the exception of those which may have temporarily arisen as a result of the departure of accounting personnel during the first half of 2003 and which 22 reverted to their prior status when new personnel were in place, including our new Chief Financial Officer, beginning June 1, 2003, or in other factors that could significantly affect our internal controls subsequent to the date we completed our evaluation. Since our Chief Financial Officer was not affiliated with MDI for the entire period covered, he was required to rely on our books and records, and on review and discussions with independent consultants who participated in the preparation of this report and with other members of management. PART II. OTHER INFORMATION ITEM 1. LEGAL PROCEEDINGS On July 31, 2002, MDI entered into a settlement and mutual release agreement with Trek Diagnostic Systems, Inc. ("Trek") related to a claim of breach of representations and warranties included in an agreement under which AccuMed sold its microbiology business and related assets to Trek in 1999. Under the settlement agreement, MDI executed an $80,000 promissory note in favor of Trek. The note required principal payments of $40,000 each on September 1 and December 1, 2002. MDI made the initial payment and Trek filed suit against MDI (Court of Common Pleas Cuyahoga County, Ohio (Case No. CV 03 492582)) on January 23, 2003 to collect the remaining $40,000 plus interest at 8% per annum and legal and other costs. At December 31, 2002, MDI accrued the remaining amount due on the note. On April 18th, 2003, judgment was entered against MDI in the amount of $40,000 plus interest. Management is currently negotiating with Trek representatives to resolve this matter. On March 28, 2003 The Cleveland Clinic Foundation ("Clinic") filed suit against MDI (United States District Court for the Northern District of Ohio, Easter Division, (Case No. 1:03CV0561)) seeking approximately $315,000 plus interest and attorney fees and costs. The sum in question pertains to remaining unpaid fees for certain clinical trial work conducted by the Clinic in the Peoples Republic of China ("China Study") on behalf of MDI. At December 31, 2002, MDI recorded the full amount owing to the Clinic as a liability in its accounts. On August 11, 2003, MDI and the Clinic entered into a Settlement Agreement and Mutual Release. MDI agrees to pay the sum of $240,000 to the Clinic upon return of MDI's instruments and computer equipment used in the China Study and MDI's successful ability to access available and uncorrupted clinical trial data contained therein. If the China Study data is available, the Clinic agrees to provide all hard copy documentation related to the China Study and to complete a review and analysis of the data in a timely manner. If the data is not available, MDI will not make the aforementioned payment and the lawsuit will go forward. On January 2, 2003, Bowne of Chicago, Inc. ("Bowne") filed suit against MDI (Circuit Court of Cook County, County Department-Law Division (Case No. 03 L 000009)) claiming approximately $342,000, plus interest and attorney fees and costs, related to financial printing service fees provided to MDI by Bowne during the period October 25, 2001 through November 7, 2002. While MDI is actively defending itself against the suit claiming the charges for printing services provided during the period mentioned above were excessive, management has taken a conservative position and recorded the entire amount of the Bowne invoices as outstanding accounts payable on the records of MDI. As of December 31, 2002 and June 30, 2003, management and its counsel are unable to determine what the outcome of this litigation might be. On January 9, 2003, Monsun, AS ("Monsun") filed suit against Peter Gombrich, MDI's Chairman and CEO, (United States District Court for the Northern District of Illinois Eastern Division (Case No. 03C 0184)) claiming $500,000 plus consequential damages for failure to make payment in compliance with the terms of a personal guaranty signed by Mr. Gombrich in relation to Monsun's grant of an extension in the maturity date of a convertible promissory note in the principal amount of $500,000 issued by MDI on November 1, 2000. The note had an original maturity date of November 1, 2001. The maturity date of the note was initially extended until January 31, 2002 and subsequently to April 1, 2002 and finally to July 31, 2002. Monsun granted the maturity date extensions in exchange for various warrants issued by MDI entitling the holder to purchase shares of MDI's common stock at various prices. In November 2002, the Board of Directors approved the issuance of 200,000 shares of MDI's common stock to Monsun to satisfy a default penalty clause in the guaranty. The terms of the guaranty required that Monsun receive registered shares of MDI's common stock, however, in order to comply with securities laws, MDI issued the shares of its common stock to Monsun with a restrictive legend which permits their sale only in compliance with Rule 144 of the Securities Exchange Act. MDI has recorded the principal amount of the note plus accrued and unpaid interest to December 31, 2002 as a note payable on its records. Since Mr. Gombrich's 23 potential liability under the suit, including the failure to deliver registered shares of MDI's common stock, is the result of the failure of MDI to pay the principal amount of its convertible promissory note when due, the Board of Directors has agreed that MDI will assume responsibility for Mr. Gombrich's obligations under the guaranty, including legal costs. MDI has presented a settlement proposal, but as of August 8, 2003, Monsun has not replied to the settlement proposal and management and counsel are unable to determine the result of this pending litigation. MDI is a defendant in several lawsuits brought by current or former unsecured creditors to collect past due amounts for goods and services. MDI has recorded the amounts due in its records and is attempting to settle these suits and unfiled claims. MDI is a defendant in several legal actions brought by former employees seeking to collect amounts due for unpaid wages. MDI has recorded the amounts due in its records and is attempting to settle these actions In May 2003, the Company, together with its subsidiaries, AccuMed International, Inc. ("AccuMed") and Oncometrics Imaging Corporation ("Oncometrics"), filed suit against MonoGen, Inc. and Norman Pressman (Case No. 03 CH 08532 (Circuit Court of Cook County, Illinois)). The suit arises out of two license agreements between AccuMed, Oncometrics and MonoGen in which certain intellectual property was transferred from AccuMed and Oncometrics to MonoGen for $500,000 (the "Agreements"). At the time of the Agreements, the Company had not yet acquired AccuMed and Oncometrics. The technology, which was the subject of the Agreements, had been licensed to Oncometrics by the British Columbia Cancer Agency ("BCCA") pursuant to a written license agreement. Pressman was the President of AccuMed and Oncometrics when the Agreements were negotiated and executed. As soon as the Agreements were signed, Pressman took a position with MonoGen. The Complaint alleges that the technology was transferred at a below market price. The Complaint also asserts that AccuMed and Oncometrics may not have obtained the requisite approval from BCCA to transfer the technology to MonoGen pursuant to the Agreements. The Complaint contains claims against Pressman for breach of fiduciary duty and fraud. To the extent that the requisite approval from BCCA was not obtained, Pressman breached his fiduciary duty to AccuMed and Oncometrics by failing to obtain that approval, and falsely representing that he had in fact obtained the requisite approval. Pressman breached his fiduciary duty further by failing to negotiate an arms length transaction with MonoGen. The Complaint also asserts claims against MonoGen for aiding and abetting Pressman's breaches of fiduciary duty to AccuMed and Oncometrics, fraud in the inducement and tortuous interference with prospective economic advantage. The Company's claims against MonoGen have been dismissed from this action and consolidated in a separate arbitration proceeding involving the Company and MonoGen. The Company's claims against Pressman remain pending in this action. In June 2003, the Court dismissed the Company's request for a preliminary injunction. The denial of preliminary injunctive relief does not affect the Company's rights to pursue permanent injunctive relief at the conclusion of the case, if such relief is warranted. The Company is attempting to negotiate a global settlement of the claims in this action, the arbitration proceeding with MonoGen and any threatened but unasserted claims by BCCA relating to the Agreements. The failure to negotiate a favorable settlement could have a material adverse effect on MDI's business. On April 14, 2003, we received a notification from the attorney for the licensor, Dr. Bruce Patterson, M.D., Ph.D, under the License and Development Agreement covering certain HPV technology, which forms the basis for our In- Cell HPV test, indicating that the licensor intended to terminate the license in accordance with a specific clause of the license, which permits termination in the event the Company makes an assignment for the benefit of creditors or bankruptcy, or otherwise relinquishes or loses control of all its assets. On April 15, 2003, we informed the attorney that the facts used by the licensor to invoke the termination right were incorrect and that we are still in control of all of our assets and that such assets are pledged as security under debt instruments and that such pledges are not included under events which would permit the licensor to terminate the license. We, and our counsel, believe that MDI would prevail should the licensor attempt to pursue a termination action. We are also engaged in a dispute with the licensor over completion of the third milestone of the license under which completion requires process and procedure verification by an independent third party. This verification requirement has not been satisfied as yet. The Company and its subsidiaries Samba Sarl and AccuMed International, Inc. (collectively, "MDI") are parties to an Amended License and development Agreement with Ventana Medical Systems, Inc. ("Ventana") dated October 31, 24 2001, pursuant to which MDI has licensed certain intellectual property rights and technical information to Ventana. Under the Amended License and Development Agreement, Ventana was to produce an automated pathology imaging system using the intellectual property rights and technical information licensed from MDI, and Ventana was to pay MDI royalties based on the sales of such imaging system, as well as software support fees related to licensed software rights. Disputes have arisen between MDI and Ventana regarding their respective performance under the Amended License and Development Agreement. MDI and Ventana are currently negotiating an agreement of settlement and release, pursuant to which the Amended License and Development Agreement would be modified or terminated and if terminated would be replaced by a new agreement. ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS Beginning in October 2002, we began an issue of up to $4,000,000 in series Bridge II Convertible Promissory Notes to accredited investors. We issued $550,000 in Bridge II notes as of December 31, 2002. During the first six months of 2003, we issued an additional $1,141,100 in principal amount of Bridge II notes. The notes bear interest at a rate of 12% per annum payable at the maturity date in kind in the form of shares of our common stock. We granted the holders a junior security position in all of our assets. The notes are convertible at any time into our common stock. The note conversion price and the value of common shares paid in kind as interest for the first $1,000,000 in principal amount of cash subscriptions, determined on a "first come - first served basis," is $0.10 per share. The note conversion price and the value of common shares paid in kind as interest for the remaining $3,000,000 of principal amount of notes in the series is $0.15 per share. The conversion price of the notes issued during 2002 and those issued during the first six months of 2003 was less than the market price of the common stock when the notes were issued; therefore, the holder is considered to have a beneficial conversion feature. We determined the value of the beneficial conversion feature to be $1,379,767 and $330,000 at June 30, 2003 and December 31, 2002, respectively. The value was recorded as a reduction of the debt and will be amortized as additional interest over the life of the note. We recorded additional interest expense of $781,919 to reflect amortization of the discount for the six months ended June 30, 2003. At the time we complete significant additional funding plans, as outlined in the subscription agreement, each holder of Bridge II notes is entitled to receive a warrant to purchase one share of our common stock for each four shares of common stock into which the note is convertible at an exercise price of $0.15 per share for notes in the class pertaining to the first $1,000,000 in subscriptions and $0.20 for the remaining $3,000,000 in note principal subscriptions. We issued the notes pursuant to exemptions under Section 4(2) of the Securities Exchange Act of 1933, as amended. Subsequent to June 30, 2003, we issued additional notes in the Bridge II series. MDI is currently negotiating with holders to amend the notes and extend the due date beyond July 31, 2003. (See Footnote 9: Subsequent Events) In January 2003, MDI issued 1,000,000 shares of restricted common stock in exchange for services to a non-employee professional services firm. MDI calculated a fair value of $100,000 for these shares based on the value of the shares on the date of the issuance and recorded the amount as investor relations expense as of March 31, 2003. On April 2, 2003, MDI issued a $1,000,000 Convertible Promissory Note to Suzanne M. Gombrich, in exchange for $900,000 in cash. The April note included the $100,000 advance loan proceeds described in the preceding paragraph. The note bears interest at the rate of 12% per annum and is convertible into our common stock at a conversion price of $0.10 per share. As additional consideration, we granted the holder a warrant to purchase 1,000,000 shares of our common stock at an exercise price of $0.15 per share. We also granted the holder a first priority security interest in all of our assets. We used the $900,000 cash proceeds to make the required payment to exercise the purchase option in conjunction with the final settlement of the loan with Round Valley Capital, LLC. In May 2003, MDI issued 875,000 shares of restricted common stock in exchange for services to a non-employee professional services firm. MDI calculated a value of $218,750 for these shares based on the value of the shares on the date the shares were due and is amortizing the amount over the life of the service contract. In June 2003, MDI issued 83,642 shares of restricted common stock in lieu of unpaid invoices for services owing to a non-employee vendor. MDI valued the shares at $12,463, which represented the amount of the unpaid invoices. We issued the shares or share equivalents pursuant to exemptions under Section 4(2) of the Securities exchange Act of 1933, as amended. 25 ITEM 3. DEFAULTS UPON SENIOR SECURITIES MDI has failed to make the required principal and interest payments, constituting events of default, on the following notes payable: $2,125,000 in Bridge I convertible promissory notes $3,006,200 in Bridge II convertible promissory notes $595,000 Monsun AS convertible promissory note $40,000 Trek Diagnostics note payable The notes payable require the holder to notify MDI in writing of a declaration of default at which time a cure period, as specified in each individual note, would commence. There is no guarantee that MDI would be able to cure any event of default if, or when, the holder provides the required written notice. Other than the Monsun AS convertible promissory note and the Trek Diagnostics note payable, which are the subject of legal actions described under Part II Item 1 above and in Notes to Consolidated Financial Statements, Footnote 10 - Legal Proceedings, MDI has not received any written declarations of default from holders of outstanding notes payable. ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS None ITEM 5. OTHER INFORMATION None ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K (a) Exhibits -------- See Exhibit Index (b) Reports on Form 8-K ------------------- On May 1, 2003, MDI filed a Current Report on Form 8-K dated April 30, 2003, reporting under Item 4, the engagement of Altschuler, Melvoin and Glasser LLP as the Company's independent auditors. 26 SIGNATURES In accordance with the requirements of the Exchange Act, the registrant caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. Molecular Diagnostics, Inc. /s/ Peter P. Gombrich --------------------- Peter P. Gombrich Chairman and Chief Executive Officer /s/ Dennis L. Bergquist ----------------------- Dennis L. Bergquist President and Chief Financial Officer Date: August 13, 2003 27 EXHIBIT INDEX -------------
EXHIBIT NUMBER DESCRIPTION - ------ ----------- 4.39 Form of common stock purchase warrant issued to Suzanne M. Gombrich on April 2, 2003 representing the right to purchase 1,000,000 shares of common stock of the Company in connection with a $1,000,000 loan evidenced by a convertible promissory note issued on that date. 10.45 Form of Loan Security Agreement dated April 2, 2003 between the Company and Suzanne M. Gombrich in connection with a $1,000,000 loan evidenced by a convertible promissory note issued on that date. 10.46 Form of Convertible Promissory Note dated April 2, 2003 issued by the Company to Suzanne M. Gombrich in exchange for a cash loan of $1,000,000. 31.1 Section 302 certification by principal executive officer. 31.2 Section 302 certification by principal financial officer. 32.1 Section 906 certification by principal executive officer. 32.2 Section 906 certification by principal financial officer.
28 EX-4.39 3 mdi439.txt EXHIBIT 4.39 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 Suzanne M. Gombrich, residing at 57 East Delaware, Unit 4005, Chicago, Illinois 60611, is entitled to purchase from Molecular Diagnostics, Inc., a Delaware corporation (hereinafter called the "Company") with its principal office located at 414 North Orleans Street, Suite 510, Chicago, Illinois 60610, 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. 1 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. 2 "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. 3 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 4 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 5 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 6 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 7 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 8 (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 9 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 10 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 414 North Orleans Street, Suite 510, Chicago, Illinois 60610, 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. 11 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 12 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: _______________________________ Peter P. Gombrich Chief Executive Officer 13 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. 14 EX-10.45 4 mdi1045.txt EXHIBIT 10.45 Exhibit 10.45 LOAN & SECURITY AGREEMENT THIS LOAN & SECURITY AGREEMENT ("Agreement") is this day of April, 2003, by and between Molecular Diagnostics, Inc. ("Borrower" and sometimes referred to herein as the "Debtor") a Delaware corporation, and Ms. Suzanne Musikantow- Gombrich ("Lender" and sometimes referred to herein as the "Secured Party") individually. RECITALS WHEREAS, Borrower has borrowed, on or about February 26, 2003, the principal amount of One Hundred Thousand and 00/100 Dollars ($100,000) from the Lender (the "Previous Loan"); and WHEREAS, Borrower now desires for Lender to lend to it an additional principal amount of Nine Hundred Thousand and 00/100 Dollars ($900,000) and the Lender desires to lend to Borrower that additional amount subject to the terms conditions set forth herein. NOW, THEREFORE, in consideration of the promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Borrower and Lender hereby agree as follows: 1.0 DEFINITIONS; INTERPRETATION Where applicable in the context of this Agreement and except as otherwise defined herein, terms used in this Agreement shall have the meanings assigned to them in the Uniform Commercial Code as in effect in the State of Illinois. As used in this Agreement, the following terms shall have the following meanings: "Collateral" has the meaning set forth in Section 3 hereto. "Days" means calendar days unless stated otherwise. "Loan Documents" means this Agreement, the Note, such UCC-1 Financing Statements as Lender shall require, together with all other documents, instruments and agreements executed in connection with, or contemplated by such documents and any amendments thereof. "Note" means that certain 12% Convertible Secured Promissory Note, attached hereto as Exhibit A, issued by the Borrower to the Secured Party of even date herewith, as may be renewed, replaced, modified, waived or extended from time to time. "PTO" means the United States Patent and Trademark Office. "UCC" means the Uniform Commercial Code as in effect in the State of Illinois. In this Agreement, the following rules of construction and interpretation shall be applicable: (i) no reference to "proceeds" in this Agreement authorizes any sale, transfer, or other disposition of any Collateral by Debtor; (ii) "includes" and "including" are not limiting; (iii) "or" is not exclusive, and (iv) "all" includes "any" and "any" includes "all." 2.0 LOAN 2.1 LOAN AMOUNT & NOTE. Subject to the terms and conditions of this Agreement, on the Closing Date, Lender agrees to loan to Borrower a principal amount equal to- Nine Hundred Thousand and 00/ 100 Dollars ($900,000) which, together with the Previous Loan amount (which, by execution of this Agreement, the Borrower acknowledges the receipt thereof) equals One Million and 00/100 Dollars ($1,000,000) (the "Loan"). The Loan will be evidenced by the Note and secured by the Loan Documents. Debtor shall repay the outstanding principal amount of the Loan with interest thereon in the manner and in accordance with the terms and conditions of the Note. Nine Hundred Thousand and 00/ 100 Dollars ($900,000) shall be advanced to Debtor in cash or otherwise immediately available funds at the Closing. 2.2 USE OF LOAN PROCEEDS. The loan proceeds shall be used by the Borrower solely to exercise its option to under that certain Option Agreement ("Option Agreement") dated March 3, 2003, by and between Borrower and Round Valley Capital, L.L.C. ("RVC") an Arizona limited liability company, to acquire certain "Assets" (as such term is defined in the Option Agreement). 2.3 CLOSING. The closing ("Closing") of the transactions contemplated by this Agreement shall take place no later than April 2, 2003, at 9:30 a.m., at the offices of Mandel, Lipton and Stevenson Limited, 203 North LaSalle, Suite 2210, Chicago, Illinois, or at such other time and location as the parties may mutually agreed upon. 2.4 EVENTS OF DEFAULT. Each of the following shall be deemed an event of default by Debtor (each, an "Event of Default"): (i) If any representation or warranty of the Debtor set forth herein is false in any material respect; -2- (ii) If any principal, interest or other monetary sum due under the Note is not paid within 5 days after the date when due; provided, however, notwithstanding the occurrence of such an Event of Default, Secured Party shall not be entitled to exercise her rights and remedies set forth below unless and until Secured Party shall have given Debtor notice thereof and a period of 5 days from the delivery of such notice shall have elapsed without such Event of Default being cured; (iii) If Debtor fails to observe or perform any of the other covenants, conditions, or obligations of this Agreement; provided, however, if any such failure does not involve the payment of any monetary sum, is not willful or intentional, does not place any rights or interest in collateral of Secured Party in immediate jeopardy, and is within the reasonable power of Debtor to promptly cure after receipt of notice thereof, all as determined by Secured Party in her sole, reasonable discretion, then such failure shall not constitute an Event of Default hereunder, unless otherwise expressly provided herein, unless and until Secured Party shall have given Debtor notice thereof and a period of 30 days shall have elapsed, during which period Debtor may correct or cure such failure, upon failure of which an Event of Default shall be deemed to have occurred hereunder without further notice or demand of any kind being required. If such failure cannot reasonably be cured within such 30- day period, as determined by Secured Party in her sole, reasonable discretion, and Debtor is diligently pursuing a cure of such failure, then Debtor shall have a reasonable period to cure such failure beyond such 30-day period, which shall not exceed 90 days after receiving notice of the failure from Secured Party. If Debtor shall fail to correct or cure such failure within such 90-day period, an Event of Default shall be deemed to have occurred hereunder without further notice or demand of any kind being required; (iv) If the Debtor becomes insolvent within the meaning of Title 11 of the United States Code, 11 U.S.C. Sec. 10 1 et seq., as amended (the "Code"), files or notifies Secured Party that it intends to file a petition under the Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts (collectively, an "Action"), becomes the subject of either a petition under the Code or an Action, or is not generally paying its debts as the same become due; or (v) If a final, nonappealable judgment is rendered by a court against the Debtor which has a material adverse effect on the operation of the business of the Debtor and is not discharged and no provision is made for such discharge within 60 days from the date of entry of such judgment. 2.5 REMEDIES. Upon the occurrence and during the continuance of an Event of Default, subject to the limitations set forth in Section 2.4, Secured Party shall have all rights and remedies of a secured party in, to and against -3- the Collateral granted by the UCC and otherwise available at law or in equity, including, without limitation: (i) The right to declare any or all payments due under the Note and all other Loan Documents immediately due and payable without any presentment, demand, protest or notice of any kind, except as otherwise expressly provided herein, and Debtor hereby waives notice of intent to accelerate the payment of the Note and notice of acceleration; (ii) The right to recover all fees and expenses (including reasonable attorney fees) in connection with the collection or enforcement of the Note, which fees and expenses shall constitute additional obligations of Debtor hereunder; (iii) The right to act as, and Debtor hereby constitutes and appoints Secured Party, Debtor's true, lawful and irrevocable attorney-in-fact (which appointment shall be deemed coupled with an interest) to demand, receive and enforce payments and to give receipts, releases, satisfaction for and to sue for moneys payable to Debtor under or with respect to any of the Collateral, and actions taken pursuant to this appointment may be taken either in the name of Debtor or in the name of Secured Party; (iv) The right to take immediate and exclusive possession of the Collateral, or any part thereof, and for that purpose, with or without judicial process and notice to the Debtor, enter (if this can be done without breach of the peace) upon any premises on which the Collateral or any part thereof may be situated and remove the same there from (provided that if the Collateral is affixed to real estate, such removal shall be subject to the conditions stated in the UCC); (v) The right to hold, maintain, preserve and prepare the Collateral for sale, until disposed of; (vi) The right to render the Collateral unusable and dispose of the Collateral; (vii) The right to require Debtor to assemble and package the Collateral and make it available to Secured Party for its possession at a place to be designated by Secured Party which is reasonably convenient to Secured Party; (viii) The right to sell, lease, hold or otherwise dispose of all or any part of the Collateral; and (ix) The right to sue for specific performance of any obligation hereunder or to recover damages for breach thereof. -4- Secured Party shall be entitled to receive on demand, as additional obligations of Debtor hereunder, interest accruing at the Default Rate (as defined in the Note) on all amounts not paid when due under the Note until the date of actual payment. Secured Party shall have no duty to mitigate any loss to Debtor occasioned by enforcement of any remedy hereunder and shall have no duty of any kind to any subordinated creditor of Debtor. No remedy herein conferred upon or reserved to Secured Party is intended to be exclusive of any other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Every power or remedy given by any of the Loan Documents to Secured Party, or to which Secured Party may be otherwise entitled, may be exercised, concurrently or independently, from time to time and as often as may be deemed expedient by Secured Party 2.6 APPLICATION OF PROCEEDS. Should Secured Party exercise any of the rights and remedies specified in the Section 2.5, any proceeds received thereby shall be first applied to pay the costs and expenses, including reasonable attorneys' fees, incurred by Secured Party a result of the Event of Default. The remainder of any proceeds, after payment of Secured Party's costs and expenses, shall be applied to the satisfaction of the obligations under the Loan Documents and any excess shall be paid over to Debtor. 2.7 POSSESSION OF COLLATERAL. Until an Event of Default shall occur, Debtor may retain possession of the Collateral (as defined below) and may use it in any lawful manner not inconsistent with this Agreement. 3.0 SECURITY INTEREST 3.1 GRANT OF SECURITY INTEREST. As security for the payment and performance of the Loan and Note, Debtor hereby assigns, transfers and conveys to Secured Party, and grants to Secured Party a security interest in and mortgage to, all of Debtor's right, title and interest in, to and under the following properties, assets and rights of the Debtor, in each case whether now or hereafter existing or arising or in which Debtor now has or hereafter owns, acquires or develops an interest and wherever located (collectively, the "Collateral"): (i) all patents and patent applications, domestic or foreign, all licenses relating to any of the foregoing and all income and royalties with respect to any licenses (including such patents and patent applications as described in Schedule 3.1 hereto), all rights to sue for past, present or future infringement thereof, all rights arising therefrom and pertaining thereto and all reissues, divisions, continuations, renewals, extensions and continuations-inpart thereof, (ii) all general intangibles and all intangible intellectual or other similar property of Debtor of any kind or nature, associated with or arising out -5- of any of the aforementioned properties and assets and not otherwise described above; (iii) all personal and fixture property of every kind and nature including without limitation all goods (including inventory, equipment and any accessions thereto), instruments (including promissory notes), documents, accounts, chattel paper (whether tangible or electronic), deposit accounts, letter-of-credit rights (whether or not the letter of credit is evidenced by a writing) securities and all other investment property, supporting obligations, any other contract rights or rights to the payment of money, insurance claims and proceeds, and all general intangibles (including all payment intangibles); and (iv) all proceeds of any and all of the foregoing Collateral (including license royalties, rights to payment, accounts and proceeds of infringement suits) and, to the extent not otherwise included, all payments under insurance (whether or not Secured Party is the loss payee thereof) or any indemnity, warranty or guaranty payable by reason of loss or damage to or otherwise with respect to the foregoing Collateral. 3.2 CONTINUING SECURITY INTEREST. Debtor agrees that this Agreement shall create a continuing security interest in the Collateral which shall remain in effect until terminated in accordance with Section 8.5. 4.0 REPRESENTATIONS & WARRANTIES. Debtor hereby represents and warrants to Secured Party, her heirs and assigns, that: (i) A true and correct list of all of the existing Collateral consisting of U.S. patents and patent applications or registrations owned by Debtor, in whole or in part, is set forth in Schedule 3.1 hereto; (ii) Debtor is duly organized or formed, validly existing and in good standing under the laws of its state of incorporation or formation, and Debtor is qualified as a foreign corporation to do business in the state(s) where the Collateral is located; (iii) Upon the execution by the Debtor, this Agreement and the other Loan Documents shall constitute the legal, valid and binding obligations of the Debtor, enforceable against the Debtor in accordance with their respective terms; (iv) There are no suits, actions, proceedings or investigations pending, or to the best of its knowledge, threatened against or involving the Debtor or the Collateral before any arbitrator or any governmental authority, agency, department, commission, bureau, board, instrumentality, court or quasigovernmental authority having jurisdiction or supervisory or regulatory -6- authority over the Collateral or the Debtor ("Governmental Authority") except for such suits, actions, proceedings or investigations as set forth in Schedule 4.0 (iv) hereto; (v) The Debtor is not, and the authorization, execution, delivery and performance of this Agreement and the other Loan Documents will not result, in any breach or default under any other document, instrument or agreement to which the Debtor is a party or by which the Collateral of the Debtor is subject or bound; (vi) The Debtor's authorization, execution, delivery and performance of this Agreement and the other Loan Documents will not violate any applicable law, statute, regulation, rule, ordinance, code, rule or order; (vii) Except as otherwise disclosed in Schedule 4.0 (viii) hereto, the Collateral is not subject to existing liens, security interests or encumbrances, or any right of first refusal, right of first offer or option. to purchase or lease granted to any third party; and (viii) All of the information contained in the Schedules attached hereto are true and complete as of the date hereof, and no representation or warranty of Debtor made in this Agreement or any of the Schedules attached hereto omits to state a material fact necessary to make the statements herein, in light of the circumstances -in which they were made, not misleading. 5.0 AFFIRMATIVE COVENANTS. Debtor hereby covenants to Secured Party, her heirs and assigns, that: (i) Debtor shall make, execute, acknowledge and deliver, and file and record in the proper filing and recording places, all such instruments and documents, and take all such action as may be reasonably necessary or advisable or may be reasonably requested by Secured Party to carry out the intent and purposes of this Agreement, or for assuring, confirming or protecting the grant or perfection of the security interest granted or purported to be granted hereby, to ensure Debtor's compliance with this Agreement or to enable Secured Party to exercise and enforce her rights and remedies hereunder with respect to the Collateral, including any documents for filing with the PTO or any applicable state office. (ii) Without providing at least 30 days prior written notice to the Secured Party, the Debtor (x) shall not pledge, mortgage or create, or suffer to exist any right of any person in or claim by any person to the Collateral, or any security interest, lien or encumbrance in the Collateral in favor of any person; (y) will not change its name, its place of business, chief executive office, or its mailing address; or (z) will not change its type of organization, jurisdiction of organization or other legal structure; -7- (iii) The Debtor will keep the Collateral in good order and repair and will not use the same in violation of law or any policy of insurance thereon; and (iv) Without providing at least 45 days prior written notice to the Secured Party, the Debtor will not sell or otherwise dispose, or offer to sell or otherwise dispose, of the Collateral or any interest therein except for in the ordinary course of business; 6.0 RIGHT TO RECORD AGREEMENT. Secured Party, at its sole expense, may record this Agreement, an abstract thereof, or any other document describing Secured Party's interest in the Collateral with the PTO. In addition, Debtor authorizes Secured Party to file financing statements describing the Collateral in any UCC filing office deemed appropriate by Secured Party. 7.0 AUTHORIZATION TO SUPPLEMENT. If Debtor shall obtain rights to any new patentable inventions or become entitled to the. benefit of any patent application or patent for any reissue, division, or continuation, of any patent, the provisions of this Agreement shall automatically apply thereto. Debtor shall give prompt notice in writing to Secured Party with respect to any such new patent rights. Without limiting Debtor's obligations under this Section 7.0, Debtor authorizes Secured Party unilaterally to modify this Agreement by amending Schedule 3.1 to include any such new patent rights. Notwithstanding the foregoing, no failure to so modify this Agreement or amend Schedule 3.1 shall in any way affect, invalidate or detract from Secured Party's continuing security interest in all Collateral, whether or not listed on Schedule 3.1 8.0 MISCELLANEOUS. 8.1 BINDING EFFECT. This Agreement shall be binding upon, inure to the benefit of and be enforceable by Debtor, Secured Party and their respective successors and assigns. Debtor may not assign, transfer, hypothecate or otherwise convey its rights, benefits, obligations or duties hereunder without the prior written consent of the Secured Party. 8.2 GOVERNING LAW. This Agreement shall be governed by, and construed in accordance with, the law of the State of Illinois, except as required by mandatory provisions of law or to the extent the perfection or priority of the security interests hereunder, or the remedies hereunder, in respect of any Collateral are governed by the law of a jurisdiction other than Illinois. 8.3 ENTIRE AGREEMENT; AMENDMENT. This Agreement, together with the Exhibits and Schedules hereto and thereto, contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior drafts and communications relating to such subject matter. Neither this -8- Agreement nor any provision hereof may be modified, amended or waived except by the written agreement of the parties. Notwithstanding the foregoing, Secured Party unilaterally may re-execute this Agreement or modify, amend or supplement the Schedule 3.1 hereto as provided in Section 7.0 hereof. 8.4 COUNTERPARTS. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of this Agreement by facsimile shall be equally as effective as delivery of a manually executed counterpart. Any party hereto delivering a counterpart of this Agreement by facsimile shall also deliver a manually executed counterpart, but the failure to so deliver a manually executed counterpart shall not affect the validity, enforceability, or binding effect hereof. 8.5 TERMINATION. Upon payment and performance in full of the Loan, the security interests created by this Agreement shall terminate and Secured Party (at Debtor's expense) shall promptly execute and deliver to Debtor such documents and instruments reasonably requested by Debtor as shall be necessary to evidence termination of all such security interests given by Debtor to Secured Party hereunder, including cancellation of this Agreement by written notice from Secured Party to the PTO. 8.6 NOTICES. All notices and other communications hereunder shall be in writing and shall be mailed, faxed, sent or delivered to the parties at the addresses set forth below: If to the Debtor: Molecular Diagnostics, Inc. 414 N. Orleans St., Suite 510 Chicago, Illinois 60610 Fax (312) 222-9580 Attention: Mr. Peter Gombrich, CEO With a courtesy copy to: Ungaretti & Harris 3500 Three First National Plaza Chicago, Illinois 60602 Attention: Gary I. Levenstein, Esq. If to Secured Party: Ms. Suzanne Musikantow-Gombrich 57 East Delaware, Unit 4005 Chicago, Illinois 60611 With a courtesy copy to: Mandel, Lipton and Stevenson, Limited 203 North LaSalle, Suite 2210 Chicago, IL 60601 -9- Fax (312) 236-0781 Attention: Andres J. Gallegos, Esq. 8.7 SEVERABILITY. If one or more provisions contained in this Agreement shall be invalid, illegal or unenforceable in any respect in any jurisdiction or with respect to any party, such invalidity, illegality or unenforceability in such jurisdiction or with respect to such party shall, to the fullest extent permitted by applicable law, not invalidate or render illegal or unenforceable any such provision in any other jurisdiction or with respect to any other party, or any other provisions of this Agreement. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement, as of the date first above written. MOLECULAR DIAGNOSTICS, INC., A DELAWARE CORPORATION By: __________________________ __________________________ Peter Gombrich, CEO Suzanne Musikantow-Gombrich -10- EX-10.46 5 mdi1046.txt EXHIBIT 10.46 Exhibit 10.46 THIS NOTE AND THE INTEREST SHARES AND CONVERSION SHARES, AS DEFINED HEREIN, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE SECURITIES LAWS, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR OTHERWISE DISPOSED, EXCEPT IN ACCORDANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS. 12% CONVERTIBLE SECURED PROMISSORY NOTE Chicago, Illinois $1,000,000.00 April __, 2003 FOR VALUE RECEIVED, Molecular Diagnostics, Inc, a Delaware corporation having its principal office at, 414 North Orleans Street, Suite 510, Chicago, Illinois 60610, acting for itself and for all its successors and assigns, (the "Company") promises to pay to the order of Suzanne M. Gombrich ("Holder"), residing at 57 East Delaware, Unit 4005, Chicago, Illinois 60611, or at such other place as Holder may from time to time designate in writing, the principal sum of One Million and 00/100 Dollars (US $1,000,000.00) in the lawful money of the United States of America, together with interest on so much thereof as is from time to time outstanding at the rate hereinafter provided, and payable as hereinafter provided. 1. Interest Rate. The unpaid principal balance of this Note shall bear simple interest at the rate of twelve percent (12%) per annum. Interest shall be payable in cash, quarterly through the Maturity Date (as defined below) on July 1, 2003, October 1, 2003, January 2, 2004 and April 1, 2004. 2. Maturity Date. The total outstanding principal balance hereof, together with accrued and unpaid interest, shall be due and payable on the first to occur of the following events ("Triggering Even&'): (i) the consummation of the Company receiving $4,000,000.00 in equity or other financing and the sale by the Company of all or a portion of all of the stock or assets of SAMBA Technologies, SARL; ii) the consummation of the Company receiving $4,000,000.00 in equity or other financing and the sale of an exclusive worldwide license to the Company's InPath In-Cell HPV, (iii) the sale of all or substantially all of the stock or assets of the Company; or (iv) April 2, 2004 (the "Maturity Date"), 3. Conversion. This Note may be converted as to both principal and accrued interest, in whole or in part, at the sole and exclusive option of the Holder, at any time on or prior to the Maturity Date, into shares of Common Stock, valued at $0. 10 per share (subject to adjustment to reflect any stock splits, reverse stock splits and similar recapitalization events occurring after the date hereof). 4. Prepayment. This Note may be prepaid, in whole or in part, at any time, without penalty, prior to the Maturity Date at the option of the Company.. 5. Default Interest and Attorney Fees. Upon declaration of a default hereunder, the balance of the principal remaining unpaid, interest accrued thereon, and all other costs and fees shall bear interest at the rate of fifteen percent (15%) per annum (the "Default Rate") from the date of default. In the event of default, the Company and all other parties liable hereon agree to pay all costs of collection, including reasonable attorneys' fees. 6. Interest Calculation. Daily interest shall be calculated on a 365-day year and the actual number of days in each month. 7. Costs of Collection, The Company agrees that if, and as often as, this Note is placed in the hands of an attorney for collection or to defend or enforce any of Holder's rights hereunder or under any instrument securing payment of this Note, the Company shall pay to Holder its reasonable attorneys' fees and all court costs and other expenses incurred in connection therewith, regardless of whether a lawsuit is ever commenced or whether, if commenced, the same proceeds to judgment or not. The cost sand expenses shall include, without limitation, all costs, reasonable attorneys' fees, and expenses incurred by Holder in connection with any insolvency, bankruptcy, reorganization, foreclosure, deed in lieu of foreclosure or similar proceedings involving Company or any endorser, surety, guarantor or other person liable for this Note which in any way affect the exercise by Holder of its rights and remedies under this Note, or any other document or instrument securing, evidencing or relating to the indebtedness evidenced by this Note. 8. Default. The events constituting an "Event of Default" hereunder are defined in that certain Loan & Security Agreement ("Loan & Security Agreement") of even date herewith. Upon the occurrence of an Event of Default, the Holder shall have such rights and remedies as are set forth in the Loan & Security Agreement. 9. Application of Payments. Any payment made against the indebtedness evidenced by this Note shall be applied against the following items in the following order: (a) costs of collection, including reasonable attorneys' fees incurred or paid and all costs, expenses, default interest, late charges and other expenses incurred by Holder and reimbursable to Holder pursuant to this Note (as described herein); (b) default interest accrued to the date of said payment; (c) ordinary interest accrued to the date of said payment; and finally, (d) outstanding principal. 10. Transfer. This Note may be transferred by the Holder upon prior written notice to the Company. 11. Maximum Interest. In no event whatsoever shall the amount paid, or agreed to be paid, to Holder for the use, forbearance, or retention of the money to be loaned hereunder ("Interest") exceed the maximum amount permissible under applicable law. If the performance or fulfillment of any provision hereof, or any agreement between the Company and Holder, shall result in Interest exceeding the limit for Interest prescribed by law, then the amount of such Interest shall be reduced to such limit. If, from any circumstance whatsoever, Holder should receive as Interest an amount that would exceed the highest lawful rate, the amount that would be excessive Interest shall be applied to the reduction of the principal balance owing hereunder (or, at the option of Holder, be paid over to the Company) and not to the payment of Interest. 12. Purpose of Loan. The Company certifies that the loan evidenced by this Note is obtained for business or commercial purposes and that the proceeds will not be used primarily for personal, family, household, or agricultural purposes. 13. Governing Law. Holder, Company and any other person who may become liable for all or any part of this obligation understand and agree that the loan evidenced by this Note is made in the State of Illinois and the provisions hereof will be construed in accordance with the laws of the State of Illinois, and such parties further agree that upon the occurrence of an Event of Default, this Note may be enforced in any court of competent jurisdiction in the State of Illinois, and they do hereby submit to the jurisdiction of such court regardless of their residence or where this Note was executed or any endorsement hereof may be executed. 14. Binding Effect. The term "Company" as used herein shall include the original Company as identified on this Note and any party who may subsequently become liable for the payment hereof as an assumer with the consent of the Holder, provided that Holder may, at its option, consider the original Company as identified on this Note alone as the Company unless Holder has consented in writing to the substitution of another party as the Company. The term "Holder" as used herein shall mean Holder or, if this Note is transferred, the subsequent Holder of this Note. 15. Relationship of Parties. Nothing herein contained shall create or be deemed or construed to create a joint venture or partnership between the Company and any Holder. Holder is acting hereunder as a lender only. 16. Severability. Invalidation of any of the provisions of this Note or of any paragraph, sentence, clause, phrase, or word herein, or the application thereof in any given circumstance, shall not affect the validity of the remainder of this Note. 17. Amendment. This Note may not be amended, modified, or changed, except by an instrument in writing signed by the Company and the Noteholder. 18. Time of the Essence. Time is of the essence for the performance of each and every obligation of Company hereunder. 19. Agreement to be Bound by Loan & Security Agreement. HOLDER, BY HER ACCEPTANCE OF THIS NOTE, AND ANY TRANSFEREE OF THIS NOTE, WITHOUT FURTHER ACTION, AUTOMATICALLY SHALL BE DEEMED TO HAVE BECOME A PARTY TO, AND TO HAVE AGREED TO BE BOUND BY THE LOAN & SECURITY AGREEMENT IN THE SAME CAPACITY AS IF HOLDER HAD BEEN A SIGNATORY THERETO. IN WITNESS WHEREOF, the undersigned has executed this Note as of April 2003. MOLECULAR DIAGNOSTICS, INC. By: _______________________________ Peter P. Gombrich Chief Executive Officer EX-31.1 6 mdi311.txt EXHIBIT 31.1 Exhibit 31.1 Section 302 Certification I, Peter P. Gombrich, Chief Executive Officer, certify that: 1. I have reviewed this quarterly report on Form 10-QSB of Molecular Diagnostics, Inc.; 2. Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this quarterly report; 3. Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this quarterly report; 4. The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have: a) designed such disclosure controls and procedures to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared; b) evaluated the effectiveness of the registrant's disclosure controls and procedures as of a date within 90 days prior to the filing date of this quarterly report (the "Evaluation Date"); and c) presented in this quarterly report our conclusions about the effectiveness of the disclosure controls and procedures based on our evaluation as of the Evaluation Date; 5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent function): a) all significant deficiencies in the design or operation of internal controls which could adversely affect the registrant's ability to record, process, summarize and report financial data and have identified for the registrant's auditors any material weaknesses in internal controls; and b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal controls; and 6. The registrant's other certifying officers and I have indicated in this quarterly report whether or not there were significant changes in internal controls or in other factors that could significantly affect internal controls subsequent to the date of our most recent evaluation, including any corrective actions with regard to significant deficiencies and material weaknesses. Date: August 13, 2003 /s/ Peter P. Gombrich --------------------------------- Peter P. Gombrich Chairman of the Board and Chief Executive Officer of Molecular Diagnostics, Inc. EX-31.2 7 mdi312.txt EXHIBIT 31.2 Exhibit 31.2 Section 302 Certification I, Dennis L. Bergquist, Chief Financial Officer, certify that: 1. I have reviewed this quarterly report on Form 10-QSB of Molecular Diagnostics, Inc.; 2. Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this quarterly report; 3. Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this quarterly report; 4. The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have: a) designed such disclosure controls and procedures to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared; b) evaluated the effectiveness of the registrant's disclosure controls and procedures as of a date within 90 days prior to the filing date of this quarterly report (the "Evaluation Date"); and c) presented in this quarterly report our conclusions about the effectiveness of the disclosure controls and procedures based on our evaluation as of the Evaluation Date; 5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent function): a) all significant deficiencies in the design or operation of internal controls which could adversely affect the registrant's ability to record, process, summarize and report financial data and have identified for the registrant's auditors any material weaknesses in internal controls; and b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal controls; and 6. The registrant's other certifying officers and I have indicated in this quarterly report whether or not there were significant changes in internal controls or in other factors that could significantly affect internal controls subsequent to the date of our most recent evaluation, including any corrective actions with regard to significant deficiencies and material weaknesses. Date: August 13, 2003 /s/ Dennis L. Bergquist --------------------------------- Dennis L. Bergquist Chief Financial Officer of Molecular Diagnostics, Inc. EX-32.1 8 mdi321.txt EXHIBIT 32.1 Exhibit 32.1 Certification of Principal Executive Officer Pursuant to 18 U.S.C. 1350 (Section 906 of the Sarbanes-Oxley Act of 2002) I, Peter P. Gombrich, Chief Executive Officer (principal executive officer) of Molecular Diagnostics, Inc. (the "Registrant"), certify, to the best of my knowledge, based upon a review of the Quarterly Report on Form 10-QSB for the period ended June 30, 2003 of the Registrant (the "Report"), that: (1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and (2) The information contained in the Report fairly represents, in all material aspects, the financial condition and results of operations of the Registrant. Date: August 13, 2003 /s/ Peter P. Gombrich ----------------------------- Peter P. Gombrich NOTE: A signed original of this written statement required by Section 906 has been provided to Molecular Diagnostics, Inc. and will be retained by Molecular Diagnostics, Inc. and furnished to the Securities and Exchange Commission or its staff upon request. This certification accompanies the Report pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and shall not, except to the extent required by law, be deemed filed by the Company for purposes of Section 18 of the Securities Exchange Act of 1934, as amended. EX-32.2 9 mdi322.txt EXHIBIT 32.2 Exhibit 32.2 Certification of Principal Financial Officer Pursuant to 18 U.S.C. 1350 (Section 906 of the Sarbanes-Oxley Act of 2002) I, Dennis L. Bergquist, Chief Financial Officer (principal financial officer) of Molecular Diagnostics, Inc. (the "Registrant"), certify, to the best of my knowledge, based upon a review of the Quarterly Report on Form 10-QSB for the period ended June 30, 2003 of the Registrant (the "Report"), that: (1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and (2) The information contained in the Report fairly represents, in all material aspects, the financial condition and results of operations of the Registrant. Date: August 13, 2003 /s/ Dennis L. Bergquist ----------------------------- Dennis L. Bergquist NOTE: A signed original of this written statement required by Section 906 has been provided to Molecular Diagnostics, Inc. and will be retained by Molecular Diagnostics, Inc. and furnished to the Securities and Exchange Commission or its staff upon request. This certification accompanies the Report pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and shall not, except to the extent required by law, be deemed filed by the Company for purposes of Section 18 of the Securities Exchange Act of 1934, as amended. -----END PRIVACY-ENHANCED MESSAGE-----