As filed with the Securities and Exchange Commission on May 9, 2000
Registration No. 333-33662
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM SB-2
Amendment No. 2
Registration Statement
Under The
Securities Act of 1933
MOLECULAR DIAGNOSTICS & THERAPEUTICS, INC.
(Name of Small Business Issuer in its Charter)
Colorado
---------------------------------
(State or Other Jurisdiction
of Incorporation or Organization)
2835
----------------------------
(Primary Standard Industrial
Classification Code Number)
84-1191749
-------------------
(I.R.S. Employer
Identification No.)
1880 Industrial Circle, Suite B-3
Longmont, Colorado 80501
(303) 485-8500
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(Address and Telephone Number of Principal Executive Offices)
1880 Industrial Circle, Suite B-3
Longmont, Colorado 80501
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(Address and Principal Place of Business or
Intended Principal Place of Business)
Malcolm H. Benedict
2595 Canyon Blvd.,
Suite 160
Boulder, CO 80302
(303) 485-8500
---------------------------------------------------------
(Name, Address and Telephone Number of Agent for Service)
Copy to:
Arnold R. Kaplan
Reinhart, Boerner, Van Deuren, Norris & Rieselbach, P.C.
1775 Sherman Street, Suite 2100
Denver, Colorado 80203
(303) 831-0909
Approximate Date of Proposed Sale to the Public:
As soon as practicable after this Registration Statement becomes effective.
<PAGE>
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, check the following box. [ ]
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=====================================================================================================================
Proposed Maximum Proposed Maximum Amount of
Title Each Class of Securities Amount To Be Offering Aggregate Registration
To Be Registered Registered Price per share(1) Offering Price Fee
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 1,000,000 $10.00 $10,000,000 $2780
- ----------------------------------------------------------------------------------------------------------------------
Representative's Warrants to purchase 66,667 $.0001 $ 6.67 --
Common Stock
- ----------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value, 66,667 $10.00 $ 666,670 $ 185
issuable upon Exercise of
Representative's Warrants(1)
- ----------------------------------------------------------------------------------------------------------------------
Total.................................................$2965
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
PART II
Information Not Required in Prospectus
Item 24. Indemnification of Directors and Officers.
The Registrant's Amended and Restated Articles of Incorporation provide
that the Board of Directors of the Registrant may indemnify any person who was
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Registrant), by
reason of the fact that he is or was a director, officer, employee or agent of
the Registrant or is or was serving at the request of the Registrant as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorney fees),
judgements, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in the best interests
of the Registrant and, with respect to any criminal action or proceeding, had no
reasonable cause to be believe his conduct was unlawful. The Board of Directors
may also indemnify any such person made a party to such actions and suits, by or
in the right of the Registrant to procure a judgement in its favor, against
expenses (including attorney fees) actually in connection with the defense or
settlement of such action or suit if he so acted, but no indemnification shall
be made in respect of any claim, issue or matter as to which such person has
been adjudged to be liable for negligence or misconduct in the performance of
his duty to the registrant unless and only to the extent that the court
determines, in view of all of the circumstances of the case, such person is
fairly and reasonably entitled to such indemnification.
The Registrant's Bylaws provide that the Registrant shall indemnify any
and all of its directors or officers, or former directors or officers, or any
person who may have served at the Registrant's request as a director or officer
of another corporation in which the Registrant owns capital stock or of which it
is a creditor, against expenses actually and necessarily incurred by them in
connection with the defense of any action, suit or proceeding in which they, or
any of them, are made parties, or a party, by reason of being or having been
directors or officers or a director or officer of the Registrant, or of such
other corporation, except in relation to matters as to which any such director
or officer or former director or person shall be adjudged in such action, suit
or proceeding to be liable for negligence or misconduct in the performance of
duty.
The Colorado Business Corporation Act provides that a corporation may
indemnify a person made a party to a proceeding because the person is or was a
director against liability incurred in the proceeding if (a) the person
conducted himself or herself in good faith, (b) the person reasonably believed
(1) in the case of conduct in an official capacity with the corporation, that
his or her conduct was in the corporation's best interests; and (2) in all other
cases, that his or her conduct was at least not opposed to the corporation's
best interests and (c) in the case of any criminal proceeding, the person had no
reasonable cause to believe his or her conduct was unlawful. Such
indemnification is permitted in connection with a proceeding by or in the right
of the corporation only to the extent of reasonable expenses incurred in
connection with the proceeding. A corporation may not indemnify a director (a)
in connection with a proceeding by or in the right of the corporation in which
the director was adjudged liable to the corporation; or (b) in connection with
any other proceeding charging that the director derived an improper personal
benefit, whether or not involving action in an official capacity, in which
proceeding the director was adjudged liable on the basis that he or she derived
an improper personal benefit.
<PAGE>
The Colorado Business Corporation Act further provides that a
corporation, unless limited by its articles of incorporation, shall indemnify a
person who was wholly successful, on the merits or otherwise, in the defense of
any proceeding to which the person was a party because the person is or was a
director, against reasonable expenses incurred by him or her in connection with
the proceeding.
The Registrant has applied for directors' and officers' liability
insurance with an aggregate policy limit of $1,000,000.
Item 25. Other Expenses of Issuance and Distribution.
The estimated expenses of this Offering, all of which will be paid by
Registrant, are as follows:
SEC Registration Fee $ 2,965
National Association of Securities Dealers, Inc. Fee 1,500
Nasdaq Listing Fee 6,000
Accounting Fees and Expenses 15,000
Registrant's Legal Fees and Expenses 145,000
Blue Sky Expenses and Counsel Fees 17,000
Printing and Engraving Fees 3,500
Transfer Agent and Registrar's Fees and Expenses 1,000
Miscellaneous Expenses 25,000
---------
Total $ 217,065
=========
<PAGE>
Item 26. Recent Sales of Unregistered Securities.
From January 1996 through June 1996, the Registrant sold an aggregate
of 40,500 shares of its Class D Preferred Stock in a private placement to 27
investors for an aggregate consideration of $202,500 ($5.00 per share). The
offering was conducted in accordance with Rule 504 of Regulation D by means of a
confidential offering memorandum. Each share of Preferred stock was converted,
pursuant to its terms, into twelve shares of the Registrant's common stock in
June, 1996 at the option of the Registrant for no additional consideration.(2)
From July 1996 through January 1997, the Registrant sold an aggregate
of 12,835 shares of its Class E Preferred Stock in a private placement to 15
investors for an aggregate consideration of $77,010 ($6.00 per share). The
offering was conducted in accordance with Rule 504 of Regulation D by means of a
confidential offering memorandum. Each share of Preferred stock was converted,
pursuant to its terms, into twelve shares of the Registrant's common stock in
January, 1997 at the option of the Registrant for no additional
consideration.(2)
From February 1997, through August, 1997 the Registrant sold an
aggregate of 20,500 shares of its Class F Preferred Stock in a private placement
to 11 investors for an aggregate consideration of $123,000 ($6.00 per share).
The offering was conducted in accordance with Rule 504 of Regulation D by means
of a confidential offering memorandum. Each share of Preferred stock was
converted, pursuant to its terms, into twelve shares of the Registrant's common
stock in August, 1997 at the option of the Registrant for no additional
consideration.(2)
From August, 1997 through March, 1998 the Registrant sold an aggregate
of 68,351 shares of its Class G Preferred Stock in a private placement to 40
investors for an aggregate consideration of $410,106 ($6.00 per share). The
offering was conducted in accordance with Rule 504 of Regulation D by means of a
confidential offering memorandum. Each share of Preferred stock was converted,
pursuant to its terms, into twelve shares of the Registrant's common stock in
March, 1998 at the option of the Registrant for no additional consideration.(2)
In January, 1998 the Registrant issued 13,133 shares of its common
stock to an individual as a consulting fee for the review of the offering
documents. The shares were valued at the time of issuance at $.50 per share.
Such individual was provided with access to all material information regarding
an investment in the Registrant and was given the opportunity to ask questions
of and receive answers from the executive officers of the Registrant.
Accordingly, this issuance was exempt from registration under the Securities Act
pursuant to Section 4(2) thereunder.(1)
<PAGE>
From June 1998, through December 1998, the Registrant sold an aggregate
of 60,499 shares of its Class H Preferred Stock in a private placement to 39
investors for an aggregate consideration of $362,994 ($6.00 per share). The
offering was conducted in accordance with Rule 504 of Regulation D by means of a
confidential offering memorandum. Each share of Preferred stock was converted,
pursuant to its terms, into eight shares of the Registrant's common stock in
December, 1998 at the option of the Registrant for no additional
consideration.(2)
In August, 1998 the Registrant issued 600 shares of its common stock to
a shareholder as a consulting fee for the review of marketing documents. The
shares were valued at the time of issuance at $.75 per share. Such individual
was provided with access to all material information regarding an investment in
the Registrant and was given the opportunity to ask questions of and receive
answers from the executive officers of the Registrant. Accordingly, this
issuance was exempt from registration under the Securities Act pursuant to
Section 4(2) thereunder.(1)
In January, 1999 the Registrant issued 10,000 shares of its common
stock to an individual as compensation for the review and preparation of
offering documents. The shares were valued at the time of issuance at $.75 per
share. Such individual was provided with access to all material information
regarding an investment in the Registrant and was given the opportunity to ask
questions of and receive answers from the executive officers of the Registrant.
Accordingly, this issuance was exempt from registration under the Securities Act
pursuant to Section 4(2) thereunder.(1)
From February 1999 through July, 1999 the Registrant sold an aggregate
of 57,333 shares of its Class I Preferred Stock in a private placement to 29
investors for an aggregate consideration of $343,998 ($6.00 per share). The
offering was conducted in accordance with Rule 504 of Regulation D by means of a
confidential offering memorandum. Each share of Preferred stock was converted,
pursuant to its terms, into eight shares of the Registrant's common stock in
July, 1999 at the option of the Registrant for no additional consideration.(2)
In February, 1999 the Registrant issued 91,600 shares of its common
stock to an entity for services provided to the Registrant. The shares were
valued at the time of issuance at $.75 per share. A representative of such
entity was provided with access to all material information regarding an
investment in the Registrant and was given the opportunity to ask questions of
and receive answers from the executive officers of the Registrant. Accordingly,
this issuance was exempt from registration under the Securities Act pursuant to
Section 4(2) thereunder.(1)
<PAGE>
In March, 1999 the Registrant issued 1,000 shares of its common stock
to an individual as a consulting fee for the review of financial documents. The
shares were valued at the time of issuance at $.75 per share. Such individual
was provided with access to all material information regarding an investment in
the Registrant and was given the opportunity to ask questions of and receive
answers from the executive officers of the Registrant. Accordingly, this
issuance was exempt from registration under the Securities Act pursuant to
Section 4(2) thereunder.(1)
In March, 1999 the Registrant issued 3,500 shares of its common stock
to an employee of the Registrant as a bonus. The shares were valued at the time
of issuance at $.75 per share. Such employee was provided with access to all
material information regarding an investment in the Registrant and was given the
opportunity to ask questions of and receive answers from the executive officers
of the Registrant. Accordingly, this issuance was exempt from registration under
the Securities Act pursuant to Section 4(2) thereunder.(1)
In March, 1999 the Registrant issued 100,000 shares of its common stock
to a director of the Registrant for his services to the Registrant as director.
The shares were valued at the time of issuance at $.75 per share. The director
had access to all material information regarding an investment in the
Registrant. Accordingly, this issuance was exempt from registration under the
Securities Act pursuant to Section 4(2) thereunder.(1)
In March, 1999 the Registrant issued 86,300 shares of its common stock
to an officer of the Registrant for accrued services to the Registrant as an
officer. The shares were valued at the time of issuance at $.75 per share. The
officer had access to all material information regarding an investment in the
Registrant. Accordingly, this issuance was exempt from registration under the
Securities Act pursuant to Section 4(2) thereunder.(1)
In March, 1999 the Registrant issued 1,600 shares of its common stock
to an individual as a consulting fee for reviewing documents in connection with
the G preferred offering. The shares were valued at the time of issuance at $.75
per share. Such individual was provided with access to all material information
regarding an investment in the Registrant and was given the opportunity to ask
questions of and receive answers from the executive officers of the Registrant.
Accordingly, this issuance was exempt from registration under the Securities Act
pursuant to Section 4(2) thereunder.(1)
In April, 1999 the Registrant issued an aggregate of 35,000 shares of
its common stock to seven individuals (5,000 shares each) for their agreement to
serve on the Registrant's Scientific Advisory Board. The shares were valued at
the time of issuance at $.75 per share. Each of the individuals was provided
with access to all material information regarding an investment in the
Registrant and was given the opportunity to ask questions of and receive answers
from the executive officers of the Registrant. Accordingly, these issuances were
exempt from registration under the Securities Act pursuant to Section 4(2)
thereunder.(1)
<PAGE>
In May, 1999 the Registrant issued 6,667 shares of its common stock to
an individual for services provided to the Registrant. The shares were valued at
the time of issuance at $.75 per share. Such individual was provided with access
to all material information regarding an investment in the Registrant and was
given the opportunity to ask questions of and receive answers from the executive
officers of the Registrant. Accordingly, this issuance was exempt from
registration under the Securities Act pursuant to Section 4(2) thereunder.(1)
In July, 1999 the Registrant issued 800 shares of its common stock to
an individual as a consulting fee for reviewing documents in connection with H
preferred offering. The shares were valued at the time of issuance at $.75 per
share. Such individual was provided with access to all material information
regarding an investment in the Registrant and was given the opportunity to ask
questions of and receive answers from the executive officers of the Registrant.
Accordingly, this issuance was exempt from registration under the Securities Act
pursuant to Section 4(2) thereunder.(1)
In July, 1999 the Registrant issued 10,000 shares of its common stock
to the Registrant's corporate secretary for her services as secretary. The
shares were valued at the time of issuance at $.75 per share. She had access to
all material information regarding an investment in the Registrant. Accordingly,
this issuance was exempt from registration under the Securities Act pursuant to
Section 4(2) thereunder.(1)
In July, 1999 the Registrant issued 33,933 shares of its common stock
to an officer of the Registrant as employment compensation. The shares were
valued at the time of issuance at $.75 per share. The individual had access to
all material information regarding an investment in the Registrant. Accordingly,
the issuance was exempt from registration under the Securities Act pursuant to
Section 4(2) thereunder.(1)
In July, 1999 the Registrant issued 5,000 shares of its common stock to
an individual as a consulting fee for investor relations services. The shares
were valued at the time of issuance at $.75 per share. The individual was
provided with access to all material information regarding an investment in the
Registrant and was given the opportunity to ask questions of and receive answers
from the executive officers of the Registrant. Accordingly, the issuance was
exempt from registration under the Securities Act pursuant to Section 4(2)
thereunder.(1)
<PAGE>
In August, 1999 the Registrant sold an aggregate of 379,100 shares of
its common stock in a private placement to 14 investors for an aggregate
consideration of $284,325 ($.75 per share). Each of the purchasers was an
existing shareholder of the Registrant and an accredited investor, as defined in
Regulation D ("Regulation D") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), who was provided with access to all material
information regarding an investment in the Registrant and who was given the
opportunity to ask questions of and receive answers from the executive officers
of the Registrant. Accordingly, these issuances were exempt from registration
under the Securities Act pursuant to Section 4(2) thereunder.(1)
In September, 1999 the Registrant issued 20,000 shares of its common
stock to an officer of the Registrant as employment compensation. The shares
were valued at the time of issuance at $.75 per share. Such officer had access
to all material information regarding an investment in the Registrant.
Accordingly, this issuance was exempt from registration under the Securities Act
pursuant to Section 4(2) thereunder.(1)
On November 1, 1999 the Registrant's shareholders approved a three for
two reverse stock split. Prior to the split, the Registrant had 12,981,773
common shares outstanding and, following the split, there were 8,654,515 common
shares outstanding.
During January and February, 2000 the Registrant sold an aggregate of
172,796 shares of its common stock in a private placement to seven investors for
an aggregate consideration of $194,399 ($1.125 per share). Each of the
purchasers was an existing shareholder of the Registrant and an accredited
investor, as defined in Regulation D ("Regulation D") promulgated under the
Securities Act of 1933, as amended (the "Securities Act"), who was provided with
access to all material information regarding an investment in the Registrant and
who was given the opportunity to ask questions of and receive answers from the
executive officers of the Registrant. Accordingly, these issuances were exempt
from registration under the Securities Act pursuant to Section 4(2)
thereunder.(1)
On March 8, 2000, the Registrant entered into a contract to purchase
land and, as part thereof, agreed to issue 102,000 shares of its common stock as
earnest money towards the total purchase price of $1,189,515 (unaudited). The
stock is being held by the seller's real estate agent pending the closing of the
sale. The purchaser is an accredited investor, as defined in Regulation D
("Regulation D") promulgated under the Securities Act of 1933, as amended (the
"Securities Act") and was provided with access to all material information
regarding an investment in the Registrant and was given the opportunity to ask
questions of and receive answers from the executive officers of the Registrant.
Accordingly, these issuances were exempt from registration under the Securities
Act pursuant to Section 4(2) thereunder.(1)
<PAGE>
During March, 2000 the Registrant sold an aggregate of 76,330 shares of
its common stock in a private placement to nine investors for an aggregate
consideration of $85,874 ($1.125 per share). Each of the purchasers was an
existing shareholder of the Registrant and an accredited investor, as defined in
Regulation D ("Regulation D") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), who was provided with access to all material
information regarding an investment in the Registrant and who was given the
opportunity to ask questions of and receive answers from the executive officers
of the Registrant. Accordingly, these issuances were exempt from registration
under the Securities Act pursuant to Section 4(2) thereunder.(1)
All stock certificates issued in connection with the foregoing
transactions were legended to reflect their restricted status.
- -------------------
(1) The sales and issuances of securities in these transactions were deemed
by the Company to be exempt from registration under the Act by virtue
of section 4(2) thereof as transactions not involving any public
offering. The recipients represented their intention to acquire the
securities for investment only and not with a view to the distribution
thereof. All shares issued to these persons contained legends
restricting transfer of the shares without compliance with applicable
securities laws. All recipients either received adequate information
regarding the Company or had access through employment or other
relationships to such information.
(2) The sales and issuances of securities in these transactions were deemed
by the Company to be exempt from registration under the Act by virtue
of Regulation D under the Act. The recipients represented and
acknowledged that:
(a) The investor was acquiring the shares for investment, for
his/her own account and not with a view to resale or
distribution;
(b) The investor's overall commitment to investments which are not
readily marketable was not disproportionate to the investor's
net worth, and the investment in the shares would not cause
such overall commitment to become excessive;
(c) The investor had sufficient knowledge and experience in
financial matters that he was capable of evaluating the merits
and risks of the investment, could bear the economic risk of
an investment for an indefinite period of time and could, at
the time of the investment, afford a substantial loss of his
investment;
(d) The investor had evaluated the merits and risks of investing
in the shares; and
(e) The investor agreed that the certificates representing the
shares and the common shares into which the shares were
convertible would contain and be endorsed with a legend
restricting the transfer of such shares unless such transfer
would not violate applicable state and federal securities
laws.
<PAGE>
Item 27. Exhibits
(a) Exhibits:
1. Underwriting and Selling Agreement, dated August 4, 1999 between the
Registrant and Three Arrows Capital Corp., including Letter Agreement,
dated August 3, 1999, between the Registrant and Three Arrows Capital
Corp.*
1.1 Escrow Agreement, dated May 15, 2000, by and among the Registrant, the
Underwriter, Norwest Bank Colorado, N.A.**
3.1 Copy of Registrant's Amended and Restated Articles of Incorporation.*
3.1.1 Copy of Registrant's Articles of Amendment to the Articles of
Incorporation, as filed with the Colorado Secretary of State on October
30, 1992.*
3.1.2 Copy of Registrant's Articles of Amendment to the Articles of
Incorporation, as filed with the Colorado Secretary of State on
November 9, 1999.*
3.2 Copy of Registrant's Bylaws.*
4.1 Specimen Common Stock Certificate.*
4.2 Form of Subscription Agreement
5.1 Opinion by Reinhart, Boerner, Van Deuren, Norris & Rieselbach, P.C., as
to legality of the shares of Common Stock offered by the Company.**
10.1 Copy of Second Amendment to Employment Agreement, effective as of
January 1, 1999 between Registrant and Malcolm H. Benedict.*
10.2 Copy of Employment Agreement, effective as of April 1, 1998 between
Registrant and Donald A. Ludwig, Ph.D.*
10.3 Letter of Proposal, dated September 30, 1999, from DVI Financial
Services, Inc. to the Registrant.*
10.4 Pre-Contract Agreement, dated March 11, 1998 between the Registrant and
Ebco Technologies.*
10.5 Contract to Buy and Sell Real Estate, dated March 8, 2000, between the
Registrant and Horizon Investments, LLC.*
10.6 Agreement to Amend/Extend Contract, dated March 15,2000, between the
Registrant and Horizon Investments, LLC.*
23.1 Consent of Cordovano and Harvey, P.C.**
23.2 Consent of Reinhart, Boerner, Van Deuren, Norris & Rieselbach, P.C.,
(included in Exhibit 5.1).
27.1 Financial Data Schedule as of March 31, 2000.*
* Filed with the Commission on March 31, 2000 as part of Registrant's
Registration Statement on Form SB-2
** Filed with the Commission on May 9, 2000.
<PAGE>
Item 28. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file during any period in which offers or sales are
being made pursuant to Rule 415 under the Securities Act a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events which, individually or in the
aggregate, represent a fundamental change in
the information in the registration
statement. Notwithstanding the foregoing,
any increase or decrease in the total dollar
value of securities offered, if the total
dollar value of securities offered would not
exceed that which was registered) and any
deviation from the low or high end of the
estimated maximum offering range may be
reflected in the form of prospectus filed
with the Securities and Exchange Commission
(the "Commission") pursuant to Rule 424(b)
if, in the aggregate, the changes in volume
and price represent no more than a 20%
change in the maximum aggregate offering
price set forth in the "Calculation of
Registration Fee" table in the effective
registration statement;
(iii) To include any additional or changed
material information on the plan of
distribution.
(2) For determining liability under the Securities Act, to
treat each post-effective amendment as a new registration statement of
the securities offered, and the offering of the securities at that time
to be the initial bona fide offering.
(3) To file a post-effective amendment to remove from
registration any of the securities that remain unsold at the end of the
offering.
<PAGE>
Registrant hereby undertakes to provide to the Underwriters at the
closing specified in the Underwriting Agreement certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "Act") may be permitted to directors,
officers and controlling persons of Registrant pursuant to the provisions of its
Amended and Restated Articles of Incorporation, as amended, its Bylaws, the
Colorado Business Corporation Act or otherwise, Registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by Registrant for expenses incurred or paid by a director,
officer or controlling person of Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes:
(1) For purposes of determining any liability under the
Securities Act, to treat the information omitted from the form of
prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by
Registrant under Rule 424(b)(1), or (4), or 497(h) under the Securities
Act as part of this registration statement as of the time the
Commission declared it effective.
(2) For determining any liability under the Securities Act, to
treat each post-effective amendment that contains a form of prospectus
as a new registration statement for the securities offered in the
registration statement, and that offering of the securities at that
time as the initial bona fide offering of those securities.
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Act of 1933,
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form SB-2 and authorized this Registration
Statement or amendment thereto to be signed on its behalf by the undersigned, in
the City of Longmont, State of Colorado, on the 15th day of May, 2000.
MOLECULAR DIAGNOSTICS & THERAPEUTICS, INC.
By: /s/ Malcolm H. Benedict
-----------------------------------------
Malcolm H. Benedict, Chairman of the
Board, Chief Executive Officer, President
and Treasurer
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement or amendment thereto has been signed by the following
persons in the capacities and on the dates stated.
Signature Title Date
--------- ------- ----
/s/Malcolm H. Benedict Chairman of the Board, May 15, 2000
- ----------------------- Chief Executive Officer,
Malcolm H. Benedict President, Treasurer and Director
/s/Donald A. Ludwig Executive Vice President May 15, 2000
- ----------------------- and Director
Donald A. Ludwig
/s/Janet L. Davis Secretary and Director May 15, 2000
- -----------------------
Janet L. Davis
SUBSCRIPTION AGREEMENT
1. Subscription. Subject to the terms and conditions hereof the
undersigned, intending to be legally bound, irrevocably subscribes for and
agrees to purchase that number of shares of common stock ("Shares") of Molecular
Diagnostics and Therapeutics, Inc., a Colorado corporation (the "Company"), set
forth on the signature page hereof, for the price stated thereon. This
subscription is made in connection with an offering by the Company of up to
1,000,000 shares of its common stock sold pursuant to a registration statement
on Form SB-2 under the Securities Act of 1933, as amended (the "Ac"). This
Offering will continue until the Company has sold a maximum of 1,000,000 shares
totaling $10,000,000 or the termination date of May 15, 2001 whichever occurs
first. If the minimum is not achieved by the termination date, subscriber's
funds will be promptly returned without interest or deduction.
2. Irrevocability. The undersigned hereby acknowledges and agrees that,
except as otherwise provided by the laws of the State of Colorado, this
subscription is irrevocable and the undersigned is not entitled to cancel or
withdraw it.
3. Joint and Several Undertaking; Entities. If more than one person is
signing this Agreement, each representation, warranty and undertaking herein
shall be the joint and several representation, warranty and undertaking of each
such person. If the undersigned is a partnership, corporation, trust or other
entity, the undersigned further represents and warrants that (a) the individual
executing this Agreement has full power and authority to execute and deliver
this Agreement on behalf of the undersigned; (b) the undersigned has full right
and power to perform its obligations pursuant to the provisions hereof; and (c)
the undersigned was not formed for the specific purpose of acquiring Shares.
<PAGE>
4. Survival. Each representation and warranty contained herein and all
information furnished by the undersigned to the Company is true, correct and
complete in all respects as of the date hereof, and the same will be true,
correct and complete as of the date on which this subscription is accepted by
the Company, as if made on such date. The undersigned undertakes to notify the
Company immediately of any change in any representation, warranty, or other
information set forth herein. The undersigned agrees to indemnify and hold
harmless the Underwriter and the Company, its officers, directors, and employees
from and against any and all loss, damage or liability due to or arising out of
a breach of any such representation or warranty of the undersigned.
5. Non-assignment. This Agreement shall not be assignable by the
undersigned without the prior written consent of the Company.
6. Acceptance by the Company. The Company reserves the right to accept
or reject any subscription in whole or in part in its sole and absolute
discretion. No subscription will be effective until accepted by the Company. If
the Company decides to reject a subscription, it will do so in writing within a
reasonable time after having received it.
7. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado.
Within five days of its receipt of a subscription agreement from the
Underwriter, confirming that an accompanying check for the purchase price of
Shares has been received, following escrow, the Company will send by first-class
mail a written confirmation to notify the subscriber of the extent, if any, to
which subscription has been accepted by the Company. The Company reserves the
right to reject orders for the purchases of Shares in whole or in part. Not more
than thirty days following the mailing of its written confirmation, and upon
achieving the minimum number of total shares to be sold, a subscriber's Common
Stock certificate will be mailed by first-class mail. The Company shall not use
the proceeds paid by an investor until such time as the minimum number of shares
has been sold nor until the Common Stock certificate evidencing such investment
has been mailed.
Funds will be deposited to an escrow account established in the
Company's name at Norwest Investment Management and Trust, Corporate Trust and
Escrow Services, 1740 Broadway, Denver, CO 80274-8693.
<PAGE>
Molecular Diagnostics and Therapeutics, Inc., Subscription Agreement
Signature Page
The undersigned, by executing this Signature Page, agrees to all of the
terms, conditions, warranties and representations in the accompanying
Subscription Agreement, and subscribes for the number of shares of the Company's
Common Stock set forth below at a price of $10.00 per share.
Number of Shares Subscribed for: ___________________
Total Purchase Price: $___________________
A check in the full amount of the purchase price, payable to "Molecular
Diagnostics and Therapeutics, Inc. Escrow Account" accompanies this executed
Subscription Agreement.
Form of Ownership:
__Individual __Partnership
__Joint Tenants With Rights of __Trust
survivorship (both sign) __Limited Liability Company, LLC
__Tenants in Common (all sign) __Corporation
INDIVIDUALS
_________________________ _____________________________ ___________
Signature of Subscriber Print Name Date
______________________________________________________________________________
Mailing Address
_________________________________ _______________________________________
Telephone Number Social Security Number
_________________________ _____________________________ ___________
Signature of Subscriber Print Name Date
______________________________________________________________________________
Mailing Address
_________________________________ _______________________________________
Telephone Number Social Security Number
<PAGE>
CORPORATIONS, TRUSTS, PARTNERSHIP, LLCs
______________________________________________________________________________
Name of Corporation, Trust, Partnership or LLC
By: ________________________________________ _____________________________
Signature of Authorized Representative Print Name
________________________________________ _____________________________
Capacity of Authorized Representative Date
______________________________________________________________________________
Mailing Address
**********************
Accepted as to Shares on .
------------ ------------------------
Molecular Diagnostics and Therapeutics, Inc.
By:_________________________________________
Its:__________________________________
Please make your check payable to: Molecular Diagnostics and Therapeutics, Inc.
Escrow Account.
Mail to: Norwest Investment Management and Trust
Corporate Trust and Escrow Services
1740 Broadway
Denver, CO 80274-8693
Are you an officer or director of a publicly held company? _______
Are you over 21 years of age? ______
Name of address of employer ________________________________________________
____________________________________________________________________________
Occupation_______________________________
Individual income $______________ with spouse $_________
Net Worth $___________________
Investment objective: conservative ____ speculative ____ income____
