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Exhibit 4.11
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 ACA Investors, (the "Holder"), on
this ___ day of _______, 1997, the right, subject to the provisions hereinafter
set forth, to purchase _________ shares of the Company's Common Stock, $___ par
value (all shares of the Common Stock of the Company being referred to as the
"Shares"), at the exercise price (the "Exercise Price") of ________ dollars and
00/100 ($_____) per Share.
This Warrant is subject to the following provisions.
1. Exercise Period. This Warrant shall be exercisable by Holder, in whole
or in increments of ______ Shares or more, subject to the terms of Section 2,
beginning as of the date hereof, and Holder's right to exercise this Warrant
shall expire on ____________. Upon the expiration of this Warrant, Holder 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 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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, (or, if the Shares have been registered under the Securities Act of
1933, in the form attached hereto as Exhibit B) executed by the Holder;
ii. this Warrant; and
iii. the Exercise Price, in immediately available funds or as set
forth in Section 6 hereof.
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b. Certificate(s) evidencing the Shares being purchased will be
delivered to Holder promptly after the Exercise Date, and the Shares so issued
shall be deemed for all purposes to have been issued to Holder and Holder will
be deemed for all purposes to have become the record holder of the Shares as of
the Exercise Date. If the Holder exercises the Warrant for less than all of the
Shares issuable hereunder, the Company shall issue and deliver to the Holder 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 consolidation, merger, 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 Holder 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 Holder.
4. No Voting Rights. This Warrant will not entitle the Holder 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 Holder.
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6. Cashless Exercise. Notwithstanding anything to the contrary contained
herein, Holder shall have the right to pay the Exercise Price in shares of
Common Stock to be received pursuant to such exercise (a "Cashless Exercise").
If Holder elects to make a Cashless Exercise the Holder shall be entitled to
receive the total number of shares for which the exercise is made less the
Holdback Shares. "Holdback Shares" shall mean the number of shares equal to the
aggregate Exercise Price for such exercise divided by the quoted closing price
of the Company's Common Stock on the date of exercise (or if no quotation is
available, then the fair market value as determined in a manner agreeable to
Company and Holder).
7. Exercise, Transfer. This Warrant is not transferrable by the Holder,
other than pursuant to the laws of descent and distribution, without the consent
of the Company. In addition, the Company, in its discretion, may limit the
transfer of this Warrant by Holder, the exercise of this Warrant by Holder or a
transferee and the sale of the underlying Common Stock to instances, when (i)
the Warrant or the Shares subject to this Warrant have been registered under the
Securities Act and any applicable state securities law or (ii) 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 Securities Act or any state securities law.
8. Registration Rights. Holder shall be entitled to registration rights for
the Shares as described in that certain Letter Agreement dated _______, 199_, by
and between ACA Investors and Capstone Pharmacy Services, Inc.
9. 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.
10. Governing Law. This Warrant shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of
Delaware.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officer as of the date first above written.
CAPSTONE PHARMACY SERVICES, INC.
By: _____________________________
Title: ____________________________
Agreed to and Accepted by:
HOLDER
ACA INVESTORS
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, $___ 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
(h) the undersigned has the financial means to bear the economic risk of
the investment which the undersigned hereby agrees to make.
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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 if such Shares have not been registered under the Securities
Act of 1933:
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.
ACA INVESTORS
Signature:__________________________________
Name (Printed):_____________________________
Title:______________________________________
Tax Identification No.:_____________________
Date:_______________________________________
Address:____________________________________
____________________________________
____________________________________
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EXHIBIT B
EXERCISE AGREEMENT
The undersigned, pursuant to the provisions set forth in the attached Stock
Purchase Warrant, hereby agrees to subscribe for and purchase ____ shares of the
Common Stock, $______ par value, of Capstone Pharmacy Services, Inc., a Delaware
corporation, and herewith makes payment in full therefor at the price per share
set forth in said Stock Purchase Warrant.
______________________________________________
Signature:____________________________________
Social Security No.: _________________________
Date: _______________________________________
Address:______________________________________
______________________________________
______________________________________
