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Exhibit 4.9
THIS STOCK PURCHASE WARRANT AND THE SHARES OF STOCK ISSUABLE UPON THE
EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THE WARRANT MAY
NOT BE EXERCISED, AND NEITHER THE WARRANT NOR THE STOCK ISSUABLE UPON
ITS EXERCISE MAY BE SOLD OR OTHERWISE TRANSFERRED, IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND LAWS OR AN
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
STOCK PURCHASE WARRANT
FOR VALUE RECEIVED, Capstone Pharmacy Services, Inc., a Delaware
corporation (the "Company"), hereby grants to IMD Corporation, an Illinois
corporation (the "Investor"), effective January 1, 1996 (the Effective Date"),
the right, subject to the provisions hereinafter set forth, to purchase 75,000
shares of the Company's Common Stock, $.01 par value (all shares of the Common
Stock of the Company being referred to as the "Shares"). The exercise price (the
"Exercise Price") is $12.50, being the closing price of the Stock for the
trading day immediately prior to the date hereof.
This Warrant is subject to the following provisions.
1. Exercise Period. This Warrant shall be exercisable by Investor, in whole
or in increments of 10,000 Shares or more, subject to the terms of Section 2,
beginning as of the date hereof, and Investor's right to exercise this Warrant
shall expire on January 1, 1999. Upon the expiration of this Warrant, Investor
shall return the Warrant to the Company.
2. Exercise Procedures.
a. Subject to the terms herein, this Warrant will be deemed to have been
exercised when the Company has received the following items (the date that all
such items have been received is hereinafter referred to as the "Exercise
Date"), at its offices at 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000
or at such other address of which it notifies the holder hereof:
i. a completed Exercise Agreement, in the form attached hereto as
Exhibit A, executed by the Investor;
ii. this Warrant; and
iii. the Exercise Price, in immediately available funds.
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b. Certificate(s) evidencing the Shares being purchased will be
delivered to Investor promptly after the Exercise Date, and the Shares so issued
shall be deemed for all purposes to have been issued to Investor and Investor
will be deemed for all purposes to have become the record holder of the Shares
as of the Exercise Date. If the Investor exercises the Warrant for less than all
of the Shares issuable hereunder, the Company shall issue and deliver to the
Investor a new Warrant of like tenor and date for the balance of the Shares
issuable hereunder.
c. Freedom from Liens, etc. When issued in accordance with the terms
hereof, said Shares will be fully paid and nonassessable, and free and clear of
all liens, pledges, security interests, restrictions, claims, charges or other
encumbrances, other than those placed upon such securities by applicable state
and federal law and as otherwise provided herein.
3. Adjustment of Exercise Price, Conversion Price and Number of Shares. To
prevent dilution of the rights granted under this Warrant, the initial Exercise
Price shall be subject to adjustment from time to time as provided in this
Section 3 (such price or such price as last adjusted pursuant to the terms
hereof, as the case may be, is herein called the "Exercise Price"), and the
number of Shares obtainable upon exercise of this Warrant shall be subject to
adjustment from time to time as provided in this Section 3.
a. Subdivision or Combination of Shares. If the Company at any time
after the date hereof shall, by stock dividend, subdivision, stock split or
combination or other reclassification of securities (any such action herein
referred to as a "Reclassification"), change any of the securities to which
purchase rights under this Warrant exist into the same or a different number of
securities of any class or series, this Warrant shall entitle the Investor to
acquire such number and kind of securities as would have been issuable as the
result of such change with respect to the securities which were subject to the
purchase rights under this Warrant immediately prior to such Reclassification,
and the Exercise Price shall be appropriately adjusted.
b. Notices. Following any adjustment pursuant to this Section 3, the
Company will give written notice of the new Exercise Price and number of
securities to the Investor.
4. No Voting Rights. This Warrant will not entitle the Investor to any
voting rights or other rights as a shareholder of the Company.
5. Replacement. Upon receipt of evidence reasonably satisfactory to the
Company of the ownership and loss, theft, destruction or mutilation of this
Warrant, and receipt of indemnity reasonably satisfactory to the Company, the
Company will execute and deliver a replacement to this Warrant, representing the
then current identical rights granted herein. All costs of such replacement
shall be borne by the Investor.
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6. Exercise, Transfer. This Warrant is not transferrable by the Investor,
other than pursuant to the laws of descent and distribution, without the consent
of the Company. In addition, the Company, if it agrees to the transfer of the
Warrant, may permit the transfer of this Warrant by Investor, or the exercise of
this Warrant by Investor or a transferee, only when the Warrant or securities or
Shares subject to this Warrant have been registered under the Securities Act of
1933, as amended (the "Act") and any applicable state securities law or when the
request for exercise or transfer is accompanied by an opinion of counsel, which
opinion and counsel shall be acceptable to the Company and its counsel, to the
effect that the exercise, sale or proposed transfer does not require
registration under the Act or any state securities law.
7. Saturdays, Sundays, Holidays, etc. If the last or appointed day for the
taking of any action or the expiration of any right required or granted herein
shall be a Saturday, Sunday or legal holiday, then such action may be taken or
such right may be exercised on the next succeeding day not a Saturday, Sunday or
legal holiday.
8. Governing Law. This Warrant shall be governed in all respects, including
validity, interpretation and effect, by the laws of the State of Delaware.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officer on this ___ day of February , 1996.
CAPSTONE PHARMACY SERVICES, INC.
By: _____________________________
Title: ____________________________
Agreed to and Accepted by:
INVESTOR
IMD CORPORATION
By:___________________________
Title:__________________________
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EXHIBIT A
EXERCISE AGREEMENT
The undersigned, pursuant to the provisions set forth in the attached Stock
Purchase Warrant, hereby agrees to subscribe for and purchase ___________ shares
(the "Shares") of the Common Stock, $.01 par value, of Capstone Pharmacy
Services, Inc., a Delaware corporation (the "Corporation"), and herewith makes
payment in full therefor at the price per share set forth in said Stock Purchase
Warrant.
To induce the corporation to issue and deliver the Shares, the undersigned
represents and warrants to the Corporation that:
(a) The undersigned has not offered or sold the Shares within the meaning
of the Act;
(b) The undersigned is acquiring the Shares for its own account for
investment, with no present intention of dividing its interest with others or of
reselling or otherwise disposing of all or any portion of the same;
(c) The undersigned does not have in mind any sale of any of the Shares
either currently or after the passage of a fixed or determinable period of time
or upon the occurrence or non-occurrence of any predetermined event or
circumstance;
(d) The undersigned has no present or contemplated agreement, undertaking,
arrangement, obligation, indebtedness or commitment providing for or which is
likely to compel a disposition of the Shares;
(e) The undersigned is not aware of any circumstances presently in
existence which are likely in the future to prompt a disposition of the Shares;
(f) The Warrant was offered to the undersigned in direct communication
between the undersigned and the Corporation and not through any advertisement of
any kind;
(g) The Corporation has given the undersigned access to all information
relating to its capital structure, its business operations, and all additional
information which the undersigned has felt necessary to make the purchase of the
Corporation's Shares. In this regard, the undersigned possesses the financial
and business experience in the area in which the Corporation will be involved to
make an informed decision to acquire the Shares which the undersigned hereby
agrees to purchase; and
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(h) the undersigned has the financial means to bear the economic risk of
the investment which the undersigned hereby agrees to make.
This letter will also confirm the undersigned's understanding as follows:
(a) The certificate for the Shares issued to the undersigned will bear the
following legend:
The shares represented by this certificate have not been registered under
the Securities Act of 1933 and therefore such shares may not be resold,
transferred or hypothecated without (A) the registration of such shares
under the Securities Act of 1933, or (B) an opinion of counsel satisfactory
to the Corporation to the effect that such registration is not necessary
and appropriate stock transfers will be noted in the Corporation's stock
records.
(b) The Corporation has informed the undersigned, and the undersigned
understands, that the Shares have not been registered under either the Act or
under the any state's "Blue Sky" law, and the Corporation has informed the
undersigned that any resale of such Shares is restricted and will require either
registration of such Shares or an opinion of the Corporation's counsel that such
registration is not necessary.
(c) Only the Corporation can take action to register the Shares under the
Act or to comply with the requirements for an exemption under Regulation A under
the Act, and the Corporation is under no obligation and does not propose to
attempt to do so.
IMD CORPORATION
Signature:______________________________
Name (Printed):_________________________
Title:__________________________________
Tax Identification No.:_________________
Date:___________________________________
Address:________________________________
________________________________
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