Exhibit 4.8
DESCRIPTION OF SECURITIES
The following description of certain terms of Insight Molecular Diagnostics Inc. (“iMDx” or the “Company”) common stock is a summary and is qualified in its entirety by reference to (i) iMDx’s Articles of Incorporation, as amended, (ii) iMDx’s Certificate of Determination of Preferences, Rights and Limitations of Series A Convertible Preferred Stock, (iii) iMDx’s Third Amended and Restated Bylaws, and (iv) the California General Corporation Law.
Common Stock
The iMDx Articles of Incorporation currently authorize the issuance of up to 230,000,000 shares of common stock, no par value. Each holder of record of common stock is entitled to one vote for each outstanding share owned, on every matter properly submitted to the shareholders for their vote; provided, that if any shareholder entitled to vote at a meeting at which directors are to be elected gives timely notice of their intention to cumulate votes in the election of directors, shareholders may cumulate votes for the election of directors. Subject to the dividend rights of holders of any preferred stock that may be issued from time to time, holders of common stock are entitled to any dividend declared by the iMDx Board of Directors out of funds legally available for that purpose. Subject to the prior payment of the applicable liquidation preference to holders of any preferred stock that may be issued from time to time, holders of common stock are entitled to receive on a pro rata basis all remaining assets available for distribution to the holders of common stock in the event of the liquidation, dissolution, or winding up of iMDx’s operations. Holders of common stock do not have any preemptive, subscription, redemption, or conversion rights. There are no redemption or sinking fund provisions applicable to the common stock. The rights, powers, preferences and privileges of holders of iMDx common stock will be subject to those of the holders of any shares of iMDx preferred stock that may be issued in the future.
Preferred Stock
The iMDx Articles of Incorporation currently authorize the issuance of up to 5,000,000 shares of preferred stock, no par value. The Preferred Stock may be issued in one or more series as the iMDx Board of Directors may by resolution designate. The iMDx Board of Directors is authorized to fix the number of shares of any series of Preferred Stock and to determine or alter the rights, preferences, privileges, and restrictions granted to or imposed upon the Preferred Stock as a class, or upon any wholly unissued series of Preferred Stock. The iMDx Board of Directors may, by resolution, increase or decrease (but not below the number of shares of such series then outstanding) the number of shares of any series of Preferred Stock subsequent to the issue of shares of that series.
Series A Convertible Preferred Stock
On May 27, 2022, iMDx filed a Certificate of Determination of Preferences, Rights and Limitations of Series A Convertible Preferred Stock with the California Secretary of State, establishing the rights, preferences and privileges relating to 11,765 shares of iMDx’s Series A Convertible Preferred Stock, no par value. The Series A Convertible Preferred Stock ranked senior to iMDx common stock, with respect to rights as to as to dividends, distributions, redemptions and payments upon the liquidation, dissolution and winding up of iMDx.
The Series A Convertible Preferred Stock generally had no voting rights, except as required by law and except that the consent of holders of a majority of the outstanding Series A Convertible Preferred Stock were required to amend any provision of the iMDx Articles of Incorporation that would have a materially adverse effect on the rights of the holders of the Series A Convertible Preferred Stock. Additionally, as long as any shares of Series A Convertible Preferred Stock remained outstanding, unless the holders of at least 51% of the then outstanding shares of Series A Convertible Preferred Stock shall have otherwise given prior written consent, iMDx, on a consolidated basis with its subsidiaries, was not permitted to (1) have less than $8 million of unrestricted, unencumbered cash on hand (“Cash Minimum Requirement”); (2) other than certain permitted indebtedness, incur indebtedness to the extent that iMDx’s aggregate indebtedness exceeds $15 million; (3) enter into any agreement (including any indenture, credit agreement or other debt instrument) that by its terms prohibits, prevents, or otherwise limits our ability to pay dividends on, or redeem, the Series A Convertible Preferred Stock in accordance with the terms of the Certificate of Determination of Preferences, Rights and Limitations of Series A Convertible Preferred Stock; or (4) authorize or issue any class or series of preferred stock or other capital stock that ranks senior or pari passu with the Series A Convertible Preferred Stock.
iMDx was required to redeem, for cash, the shares of Series A Convertible Preferred Stock on the earlier to occur of (1) April 8, 2024, (2) the commencement of certain a voluntary or involuntary bankruptcy, receivership, or similar proceedings against the Company or its assets, (3) a Change of Control Transaction (as defined) and (4) at the election and upon notice of 51% in interest of the holders, if the Company failed to meet the Cash Minimum Requirement. Additionally, the Company had the right to redeem the Series A Convertible Preferred Stock for cash upon 30 days prior notice to the holders; provided if the Company undertakes a capital raise in connection with such redemption, the Investors will have the right to participate in such financing.