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Exhibit 99.6
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT") OR ANY STATE SECURITIES LAWS, AND MAY NOT BE SOLD, OFFERED FOR SALE,
ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF, UNLESS REGISTERED PURSUANT TO
THE PROVISIONS OF THE SECURITIES ACT OR AN OPINION OF COUNSEL IS OBTAINED
STATING THAT SUCH DISPOSITION IS IN COMPLIANCE WITH AN AVAILABLE EXEMPTION FROM
SUCH REGISTRATION.
NO. 1 WARRANT TO PURCHASE
73,334 SHARES OF
COMMON STOCK
WARRANT TO PURCHASE
COMMON STOCK
OF
NETMED, INC.
This certifies that, for value received, CPR (USA) INC. or its
registered assigns (collectively, the "Holder"), is entitled to purchase from
NETMED, INC., a corporation incorporated under the laws of the State of Ohio
(the "Company"), subject to the terms and conditions set forth below, at any
time on or after 9:00 A.M., Eastern time, on the Exercise Date (as defined
below) of this Warrant, and before 5:00 P.M., Eastern time, on the Expiration
Date (as defined below), the number of fully paid and nonassessable shares of
common stock, no par value, of the Company ("Common Stock") stated above at the
Purchase Price (as defined below). The Purchase Price and the number of shares
purchasable hereunder are subject to adjustment as provided below.
ARTICLE I
DEFINITIONS
Section 1.1. (1) The term "Agreement" as used in this Warrant
means the 6% Secured Convertible Subordinated Debenture Purchase Agreement
entered into by the parties of which this Warrant is an Exhibit.
(2) The term "Business Day" as used in this Warrant means a
day other than a Saturday, Sunday or other day on which national banking
associations whose principal offices are located in the State of Ohio are
authorized by law to remain closed.
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(3) The term "Expiration Date" as used in this Warrant means
the date of expiration of the thirty-six (36) month period immediately after the
Exercise Date (as defined in Section 2.1 hereof) or, if that day is not a
Business Day, as defined above, at or before 5:00 P.M. New York City time on the
next following Business Day.
(4) The term "Closing Date" as used in this Warrant means the
date of issuance of this Warrant.
(5) The term "Purchase Price" as used in this Warrant shall
mean one hundred twenty-five (125%) percent of the closing price as reported on
the Amex or other securities exchanges or markets on which the Common Stock is
listed as of the Closing Date per Warrant Share (as defined below), as may be
adjusted pursuant to the terms of Article III hereof.
(6) The term "Warrant" as used in this Warrant means this
Warrant and Warrants of like tenor to purchase up to the amount of Warrant
Shares (as defined below), indicated on the first page of the warrant.
(7) The term "Warrant Shares" as used in this Warrant means
the shares of Common Stock or other securities issuable upon exercise of the
Warrants.
ARTICLE II
DURATION AND EXERCISE OF WARRANT
Section 2.1. This Warrant may be exercised at any time after
9:00 A.M., Eastern time on August 13, 1997 (the "Exercise Date"), and before
5:00 P.M., Eastern time, on the Expiration Date.
Section 2.2. (a) The Holder may exercise this Warrant in whole
or in part (but not in denominations of fewer than 1,000 Warrant Shares except
upon an exercise of the Warrant with respect to the remaining balance of Warrant
Shares purchasable hereunder at the time of exercise) by surrender of this
Warrant, with the Purchase Form (attached hereto) duly executed, to the Company
at its corporate office, together with the applicable Purchase Price of each
Warrant Share being purchased in lawful money of the United States, or by
certified check or official bank check payable in United States dollars to the
order of the Company, subject to compliance with all the other conditions set
forth in this Warrant.
(b) Upon receipt of this Warrant with the Purchase Form duly
executed and accompanied by payment of the aggregate Purchase Price for the
shares of Common Stock for which this Warrant is being exercised, the Company
shall cause to be issued certificates for the total number of whole shares (as
provided in Section 3.2) of Common Stock for which this Warrant is being
exercised in such denominations as are required for delivery to the Holder, and
the Company will promptly deliver those certificates to the Holder.
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(c) If the Holder exercises this Warrant with respect to fewer
than all the shares of Common Stock that may be purchased by exercise of this
Warrant, the Company will execute a new Warrant for the balance of the shares of
Common Stock that may be purchased by exercise of this Warrant and deliver that
new Warrant to the Holder.
ARTICLE III
ADJUSTMENT OF PURCHASE PRICE, NUMBER
OF SHARES OR NUMBER OF WARRANTS
Section 3.1. The Purchase Price, the number and type of
securities issuable on exercise of this Warrant and the number of Warrants
outstanding are subject to adjustment from time to time as follows:
(a) If the Company issues any shares of its Common Stock as a
dividend on its Common Stock, the Purchase Price then in effect will be
proportionately reduced at the opening of business on the day following the date
fixed for the determination of shareholders entitled to receive the dividend or
other distribution. For example, if the Company distributes one share of Common
Stock as a dividend on each outstanding share of Common Stock the Purchase Price
would be reduced by 50%. If the Company issues as a dividend on its Common Stock
any securities which are convertible into, or exchangeable for, shares of its
Common Stock, such dividend will be treated as a dividend of the Common Stock
into which the securities may be converted, or for which they may be exchanged,
and the Purchase Price shall be proportionately reduced.
(b) If the outstanding shares of Common Stock are subdivided
into a greater number of shares of Common Stock, then the Purchase Price will be
proportionately reduced at the opening of business on the day following the day
when the subdivision becomes effective, and if the outstanding shares of the
Common Stock are combined into a smaller number of shares of Common Stock, the
Purchase Price will be proportionately increased at the opening of business on
the day following the day when the combination becomes effective.
(c) If by reason of a merger, consolidation, reclassification
or similar corporate event, the holders of the Common Stock receive securities
or assets other than Common Stock, upon exercise of this Warrant after that
corporate event, the Holder of this Warrant will be entitled to receive the
securities or assets the Holder would have received if the Holder had exercised
this Warrant immediately before the first such corporate event and not disposed
of the securities or assets received as a result of that or any subsequent
corporate event.
Section 3.2. Upon each adjustment of the applicable Purchase
Price pursuant to Section 3.1 hereof, this Warrant will, after the adjustment,
evidence the right to purchase, at the adjusted Purchase Price, the number of
shares (calculated to the nearest hundredth) obtained by (i) multiplying the
number of shares issuable on exercise of this Warrant immediately prior to the
adjustment by the Purchase Price in effect immediately prior to the adjustment
and (ii) dividing
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the resulting product by the Purchase Price in effect immediately after the
adjustment. However, the Company will not be required to issue a fractional
share or to make any payment in lieu of issuing a fractional share.
Section 3.3. Whenever the Purchase Price or the number of
shares or type of securities issuable on exercise of this Warrant is adjusted as
provided in this Article III, the Company will compute the adjusted Purchase
Price and the adjusted number of Warrant Shares and will prepare a certificate
signed by its President or any Vice President, and by its Treasurer or Secretary
setting forth the adjusted Purchase Price and the adjusted number of Warrant
Shares and showing in reasonable detail the facts upon which the adjustments
were based and mail a copy of that certificate to the Holder.
Section 3.4. If at any time when this Warrant is outstanding
the Company:
(a) declares a dividend (or authorizes any other distribution)
on its Common Stock payable otherwise than in cash out of its undistributed net
income;
(b) authorizes the granting to the holders of its Common Stock
of rights to subscribe for or purchase any shares of its capital stock or
assets;
(c) authorizes a reclassification, split or combination of the
Common Stock, or a consolidation or merger to which the Company is a party or a
sale or transfer of all or substantially all the assets of the Company; or
(d) authorizes a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
the Company will mail written notice of such action to the Holder at least 20
days prior to the record date, or other date, for determining the shareholders
entitled to receive the dividend, distribution or rights, or the securities or
other property deliverable as a result of such action.
Section 3.5. The form of this Warrant need not be changed
because of any change in the Purchase Price or in the number of Warrant Shares,
and Warrants issued after that change may continue to describe the Purchase
Price and the number of Warrant Shares which were described in this Warrant as
initially issued.
Section 3.6. Before taking any action which would cause an
adjustment reducing the Purchase Price below the then par value, if any, of the
Common Stock, the Company will take all 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 shares of Common Stock at the
adjusted Purchase Price.
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ARTICLE IV
OTHER PROVISIONS RELATING TO
RIGHTS OF WARRANT HOLDER
Section 4.1. If this Warrant is duly exercised, the Holder
will for all purposes be deemed to become the holder of record of the Warrant
Shares as to which this Warrant is exercised on, and the certificate for such
shares will be dated the date this Warrant is surrendered for exercise and the
Purchase Price paid in accordance with Section 2.2 hereof, except that if that
date is not a Business Day, the Holder will be deemed to become the record
holder of the Warrant Shares on, and the certificate will be dated the next
succeeding Business Day. The Holder will not be entitled to any rights as a
holder of the Warrant Shares, including the right to vote and to receive
dividends, until the Holder becomes or is deemed to become the holder of such
shares pursuant to the terms hereof.
Section 4.2. (a) The Company covenants and agrees that it will
at all times reserve and keep available for the exercise of this Warrant a
sufficient number of authorized but unissued shares of Common Stock to permit
the exercise in full of this Warrant.
(b) Prior to the issuance of any shares of Common Stock upon
exercise of this Warrant, the Company shall use its reasonable best efforts to
cause those shares to be authorized for listing, to the extent not previously
authorized for listing, on any securities exchange or trading system upon which
the Common Stock is then listed.
(c) The Company covenants that all shares of Common Stock
issued upon exercise of this Warrant and against payment of the Purchase Price
will be validly issued, fully paid and nonassessable.
Section 4.3. Notices to the Holder relating to this Warrant
will be effective on the earliest of actual receipt or the third business day
after mailing by first class mail (which shall be certified or registered,
return receipt requested), postage prepaid, addressed to the Warrant Holder at
the address shown on the books of the Company.
ARTICLE V
TREATMENT OF WARRANT HOLDER
Section 5.1. Prior to presentation of this Warrant for
registration of transfer, the Company may treat the Holder for all purposes as
the owner of this Warrant and the Company will not be affected by any notice to
the contrary.
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ARTICLE VI
COMBINATION, EXCHANGE AND TRANSFER OF WARRANTS
Section 6.1. Any transfer permitted under this Warrant will be
made by surrender of this Warrant to the Company at its principal office with
the Form of Assignment (attached hereto) duly executed and funds sufficient to
pay any transfer tax. In such event the Company will, without charge, execute
and deliver a new Warrant to and in the name of the assignee named in the
instrument of assignment and this Warrant will promptly be canceled, and if the
assignor does not transfer all of its Warrants hereunder, the Company will
execute and deliver a new Warrant to and in the name of the assignor
representing the remaining Warrants held by the assignor.
Section 6.2. This Warrant may be divided or combined with
other Warrants which carry the same rights upon presentation of them at the
principal office of the Company together with a written notice signed by the
Holder, specifying the names and denominations in which new Warrants are to be
issued.
Section 6.3. Upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant, and, in the case of loss, theft or destruction, of reasonably
satisfactory indemnification, or, in the case of mutilation, upon surrender of
the mutilated Warrant, the Company will execute and deliver a new Warrant
bearing the same terms and date as the lost, stolen or destroyed Warrant, which
will thereupon become void.
ARTICLE VII
OTHER MATTERS
Section 7.1. (a) This Warrant and any Warrant Shares may not
be sold, transferred, pledged, hypothecated or otherwise disposed of except as
follows: (i) to a person who, in the opinion of counsel to the Company, is a
person to whom this Warrant or the Warrant Shares may legally be transferred
without registration and without the delivery of a current prospectus under the
Securities Act with respect thereto, and then only against receipt of an
agreement of such person to comply with the provisions of this Section 7.1(a)
with respect to any resale or other disposition of such securities; or (ii) to
any person upon delivery of a prospectus then meeting the requirements of the
Securities Act relating to such securities and the offering thereof for such
sale or disposition, and thereafter to all successive assignees.
(b) Unless the Warrant Shares have been registered under the
Securities Act, upon exercise of any of the Warrant and the issuance of any of
the Warrant Shares, all certificates representing Warrant Shares shall bear on
the face thereof substantially the following legend:
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, OFFERED FOR SALE, ASSIGNED,
TRANSFERRED OR OTHERWISE DISPOSED OF, UNLESS REGISTERED
PURSUANT TO THE PROVISIONS OF THAT ACT OR UNLESS AN OPINION OF
COUNSEL TO THE ISSUER IS OBTAINED STATING THAT SUCH
DISPOSITION IS IN COMPLIANCE WITH AN AVAILABLE EXEMPTION FROM
SUCH REGISTRATION.
Section 7.2. All the covenants and provisions of this Warrant
by or for the benefit of the Company will bind and inure to the benefit of its
successors and assigns.
Section 7.3. All notices and other communications under this
Warrant must be in writing. Any notice or communication to the Company will be
effective upon the earlier of actual receipt or the third business day after
mailing by first class mail (which shall be certified or registered, return
receipt requested), postage prepaid, addressed (until another address is
designated by the Company) as follows:
NetMed, Inc.
425 Metro Place North, Suite 140
Dublin, OH 43017
Attn: Kenneth Leachman and Bill Kelly, Esq.
(tele) (614) 793-9356
(fax) (614) 793-9376
Any notice or demand authorized by this Warrant to be given or
made by the Company to the Holder must be given in accordance with Section 4.3.
Section 7.4. The validity, interpretation and performance of
this Warrant will be governed by the laws of the State of Ohio. This Warrant
shall be subject to the exclusive jurisdiction of the courts of the State of
Ohio. The parties agree that any breach of any term or condition of this Warrant
shall be deemed to be a breach occurring in the State of Ohio by virtue of a
failure to perform an act required to be performed in the State of Ohio and
irrevocably and expressly agree to submit to the jurisdiction of the courts of
the State of Ohio for the purpose of resolving any disputes among the parties
relating to this Warrant or the transactions contemplated hereby. The parties
irrevocably waive, to the fullest extent permitted by law, any objection which
they may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Warrant, or any judgment entered
by any court in respect hereof brought in the State of Ohio, and further
irrevocably waive any claim that any suit, action or proceeding brought in the
State of Ohio has been brought in an inconvenient forum. Proceeding arising out
of or relating to this Warrant, or any judgment entered by any court in respect
hereof brought in the State of Ohio, and further irrevocably waive any claim
that any suit, action or proceeding brought in the State of Ohio has been
brought in an inconvenient forum.
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Section 7.5. Nothing in this Warrant will give any person,
corporation or other entity other than the Company and the Holder(s) any right
or claim under this Warrant, and all agreements in this Warrant will be for the
sole benefit of the Company, the Holder(s) and their respective successors.
Section 7.6. The Article headings in this Warrant are for
convenience only, are not part of this Warrant and will not affect the
interpretation of its terms.
IN WITNESS WHEREOF, this Warrant has been duly executed by the
Company as of the 13th day of August, 1997.
NETMED, INC.
By: /s/David J. Richards
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Name: David J. Richards
Title: President
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PURCHASE FORM
To Be Executed By The Warrant Holder
To Exercise The Warrant In Whole Or In Part:
To: NETMED, INC.
The undersigned ( )
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Please insert Tax ID Number or other
identifying number of Holder
hereby irrevocably elects to exercise the right of purchase represented by the
within Warrant for, and to purchase thereunder, ___________________ shares of
Common Stock of NetMed, Inc. in the amount of $__________ The undersigned
requests that certificates for those shares of Common Stock be issued as
follows:
Name:
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Address:
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Deliver to:
--------------------------------
Address:
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and that, if the number of shares of Common Stock is not all the shares of
Common Stock purchasable by exercise of the Warrant, that a new Warrant for the
balance of the shares of Common Stock purchasable under the within Warrant be
registered in the name of, and delivered to, the undersigned at the address
stated below:
Address:
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Date:
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Signature:
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FORM OF ASSIGNMENT
(To Be Executed Only Upon An Assignment)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers unto
____________________ the right to purchase ________ shares of Common Stock of
NetMed, Inc. evidenced by the within Warrant.
Signature
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Signature Guaranteed:
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