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EXHIBIT 4
NEITHER THIS WARRANT NOR ANY SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE
OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). SUCH SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE
SECURITIES ACT, UNLESS THE HOLDER HEREOF SHALL HAVE DELIVERED TO THE ISSUER A
WRITTEN OPINION OF COUNSEL, IN FORM, SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE
TO THE ISSUER, TO THE EFFECT THAT SUCH SECURITIES ARE BEING OFFERED FOR SALE,
SOLD, TRANSFERRED OR ASSIGNED PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT; PROVIDED, HOWEVER, THAT SUCH OPINION OF COUNSEL WILL NOT BE
REQUIRED BY THE COMPANY FOR ANY DISPOSITIONS MADE BY THE HOLDER (1) TO ANY OF
ITS AFFILIATES (AS SUCH TERM IS DEFINED IN RULE 405 PROMULGATED UNDER THE
SECURITIES ACT) OR (2) PURSUANT TO RULE 144 PROMULGATED UNDER THE SECURITIES
ACT, PROVIDED THAT PRIOR TO SUCH DISPOSITION THE COMPANY RECEIVES FROM THE
HOLDER AND THE RELEVANT BROKER, IF APPLICABLE, SUCH CERTIFICATIONS AS ARE
NECESSARY FOR THE COMPANY TO CONFIRM THAT SUCH DISPOSITION IS EXEMPT FROM
REGISTRATION PURSUANT TO RULE 144 OR OTHERWISE, AS THE CASE MAY BE. FURTHERMORE,
THIS WARRANT MAY ONLY BE SOLD, TRANSFERRED OR ASSIGNED TO AN AFFILIATE OF
HEWLETT-PACKARD COMPANY.
NOVADIGM, INC.
WARRANT TO PURCHASE COMMON STOCK
Warrant Number: 1
Number of Shares: 250,000 Shares of Common Stock
(subject to adjustment as provided herein)
Original Date of Issuance: June 30, 2000
FOR VALUE RECEIVED, Hewlett-Packard Company, the registered holder hereof or its
permitted assigns ("HOLDER"), is entitled, subject to the terms set forth below,
to purchase from Novadigm, Inc., a Delaware corporation (the "COMPANY"), upon
surrender of this Warrant, at any time or times on or after the date hereof, but
not after 5:00 P.M., Pacific Time, on the date three years from the commencement
of the Milestone Period (as hereinafter defined) (the "EXPIRATION DATE") Two
Hundred Fifty Thousand (250,000) fully paid and nonassessable shares of common
stock, $0.001 par value per share (the "COMMON STOCK"), of the Company (the
"WARRANT SHARES") at the exercise price per Warrant Share equal to $20.875,
subject to adjustment as set forth herein (the "EXERCISE PRICE"). This Warrant
is issued pursuant to the
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terms of the Alliance Agreement (the "ALLIANCE AGREEMENT"), dated as of June 30,
2000, between the Company and Hewlett-Packard Company ("HP").
Section 1. Exercise Price.
(a) If, during the Milestone Period (as hereinafter defined), the
Company receives an aggregate of $15,000,000 (the "LICENSE REVENUES MILESTONE")
in license revenues (which revenues shall not include any revenues from fees
charged by the Company for installation, maintenance, support or other services
or training of, or with respect to, the licensed products) as a result of the
reference-selling by HP of licenses to use the Company's products pursuant to
Section 5.6 of the Alliance Agreement (which reference-selling is documented
pursuant to Section 6.3(c) of the Alliance Agreement), then the Exercise Price
shall be reduced to $0; provided, however, that license revenues received by the
Company from existing customers of HP referred directly to the Company by HP
(and not through reference-selling by HP pursuant to Section 5.6 of the Alliance
Agreement) during the period from the date hereof to the date on which Milestone
Period begins, shall be credited to the License Revenues Milestone. For purposes
hereof, the "MILESTONE PERIOD" means the period beginning on the date as of
which the Company has employed two (2) of the five (5) pairs of sales
representatives and technical consultants it is required to employ pursuant to
Section 3.2 of the Alliance Agreement and ending twelve (12) months thereafter.
The Company shall promptly notify HP in writing of the commencement of the
Milestone Period.
(b) Within thirty (30) days of the end of the Milestone Period,
the Company shall deliver to HP written notice of whether the License Revenues
Milestone has been met. In the event that the Company determines that the
License Revenues Milestone has not been met and HP disagrees with such
determination, HP shall deliver written notice to the Company, within thirty
(30) days of the date of the Company's notice, that it intends to conduct an
audit of the records maintained by the Company pursuant to Section 5.2(d) of the
Alliance Agreement. Thereafter, HP shall select an independent certified public
accounting firm (the "HP ACCOUNTING FIRM"), and the Company shall allow the HP
Accounting Firm, at HP's sole expense, to inspect such records and make a
determination, within thirty (30) days of the date of HP's notice, of whether
the License Revenues Milestone has been met. In the event that the HP Accounting
Firm determines that the License Revenues Milestone has been met, the Company
and HP shall select a mutually agreeable independent public accounting firm
(which accounting firm shall not be the HP Accounting Firm or an accounting firm
which conducts audits of the financial statements of the Company or HP) (the
"INDEPENDENT ACCOUNTING FIRM"), and the Company shall allow the Independent
Accounting Firm, with the expenses thereof shared equally by the Company and HP,
to inspect such records and make a determination, within thirty (30) days of the
date of the determination by the HP Accounting Firm, of whether the License
Revenues Milestone has been met. The determination of the Independent Accounting
Firm shall be final and binding on the Company and HP. The HP Accounting Firm
and the Independent Accounting Firm shall be bound in confidence not to disclose
any information except to the extent necessary to inform the Company and HP of
whether the License Revenues Milestone has been met.
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Section 2. Exercise of Warrant.
(a) Subject to the terms and conditions hereof, this Warrant may
be exercised by Holder, in whole or in part, during normal business hours on any
business day on or after the date hereof and prior to 5:00 P.M., Pacific Time,
on the Expiration Date by (i) delivery to the Company of a duly executed written
notice, in the form of the subscription notice attached as Exhibit A hereto (the
"EXERCISE NOTICE"), of such Holder's election to exercise this Warrant, which
Exercise Notice shall specify the number of Warrant Shares to be purchased, (ii)
payment to the Company of an amount equal to the Exercise Price, if any,
multiplied by the number of Warrant Shares as to which the Warrant is being
exercised (the "AGGREGATE EXERCISE PRICE") in cash or by check or wire transfer
of immediately available funds and (iii) delivery to the Company of this
Warrant.
(b) In lieu of making the cash payment equal to the Aggregate
Exercise Price otherwise contemplated to be made to the Company in Section 2(a),
Holder may elect to instead receive upon its exercise of this Warrant the net
number of Warrant Shares computed using the following formula:
X = Y (A-B)
-------
A
where
X = the net number of Warrant Shares to be issued to
Holder under said formula.
Y = the number of Warrant Shares otherwise issuable
to Holder pursuant to its exercise of this Warrant.
A = the last reported sale price on the Nasdaq
National Market, or such other national securities
exchange or market on which the Common Stock is
then listed, of a share of Common Stock on the date
immediately preceding the date of the Exercise
Notice.
B = the Exercise Price in effect at the time of
exercise.
(c) In the event of any exercise of the rights represented by
this Warrant in compliance with Section 2, a certificate or certificates for the
Warrant Shares so purchased, in such denominations as may be requested by Holder
and registered in the name of Holder, shall be delivered at the Company's
expense to such Holder as soon as reasonably practicable, and in no event later
than ten (10) business days, after the Company's receipt of the Exercise Notice,
the Aggregate Exercise Price, if any, and this Warrant. Upon exercise, in whole
or in part, of this Warrant in accordance with Section 2, Holder shall be deemed
for all corporate purposes to have become holder of record of the Warrant Shares
with respect to which the Warrant has been exercised immediately prior to the
close of business on the date on which Holder is deemed to have exercised the
Warrant in accordance with Section 2, irrespective of the date of delivery of
certificates evidencing such Warrant Shares.
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(d) Unless the rights represented by this Warrant shall have
expired or shall have been fully exercised, the Company shall, as soon as
reasonably practicable and in no event later than ten (10) business days after
any exercise and at its own expense, issue a new Warrant substantially identical
to the Warrant exercised, except it shall represent rights to purchase the
number of Warrant Shares purchasable immediately prior to such exercise under
the Warrant exercised, less the number of Warrant Shares with respect to which
such Warrant is exercised.
(e) No fractional shares of Common Stock are to be issued upon
the exercise of this Warrant, but rather the number of shares of Common Stock
issued upon exercise of this Warrant shall be rounded up to the nearest whole
number.
Section 3. Covenants as to Common Stock. The Company hereby covenants
and agrees as follows:
(a) During the period within which the rights represented by this
Warrant may be exercised, the Company will at all times have authorized and
reserved, solely for issuance and delivery upon exercise of this Warrant, such
number of shares of Common Stock then issuable upon the exercise of this
Warrant.
(b) Prior to exercise of this Warrant, the Company shall secure
the listing of the Warrant Shares upon each national securities exchange or
market, if any, upon which shares of Common Stock are then listed (subject to
official notice of issuance upon exercise of this Warrant) and shall maintain,
so long as any other shares of Common Stock shall be so listed, such listing of
the Warrant Shares; and the Company shall list on each national securities
exchange or market, and shall maintain such listing of, any other shares of
capital stock of the Company issuable upon the exercise of this Warrant if and
so long as any shares of the same class shall be listed on such national
securities exchange or market.
(c) The Company will take such actions as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable shares of Common Stock upon the exercise of this Warrant.
(d) All Warrant Shares that may be issued upon the exercise of
rights represented by this Warrant and payment of the Exercise Price, if any,
all as set forth herein, will be free from all taxes, liens, security interests,
charges and other encumbrances or restrictions on sale created by the Company,
and free and clear of all preemptive rights granted by the Company or arising
under Delaware corporate law. The Company agrees that its issuance of this
Warrant shall constitute full authority to its officers who are charged with the
duty of executing stock certificates to execute and issue the necessary
certificates for shares of Common Stock upon the exercise of this Warrant.
Section 4. Taxes. The Company shall pay any and all transfer or stamp
taxes or other similar governmental charges which may be payable with respect to
the issuance and delivery of Warrant Shares upon exercise of this Warrant.
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Section 5. Holder Not Deemed a Stockholder. This Warrant shall not
entitle Holder to vote or receive dividends or to any other rights of a
stockholder of the Company, including, without limitation, the right to vote,
give or withhold consent to any corporate action (whether a reorganization,
issue of stock, reclassification of stock, consolidation, merger, conveyance or
otherwise). In addition, nothing contained in this Warrant shall be construed as
imposing any liabilities on Holder to purchase any securities (upon exercise of
this Warrant or otherwise) or as a stockholder of the Company, whether such
liabilities are asserted by the Company or by creditors of the Company.
Section 6. Representations of Holder. Holder, by the acceptance hereof,
represents that Holder (a) has received such documents, materials and
information as Holder deems necessary or appropriate for evaluation of the
Warrant and the Warrant Shares, (b) has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of its investment in the Warrant and the Warrant Shares, (c) is an
"accredited investor" as such term is defined in Rule 501 promulgated under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), and (d) is acquiring
the Warrant and the Warrant Shares solely for its own account, for investment
and not with a view to the distribution or resale thereof.
Section 7. Ownership and Transfer.
(a) The Company shall maintain at its principal executive offices
(or such other office or agency of the Company as it may designate by notice to
Holder), a register for this Warrant, in which the Company shall record the name
and address of the Person in whose name this Warrant has been issued, as well as
the name and address of each permitted transferee. The Company may treat the
Person in whose name any Warrant is registered on the register as the owner and
holder thereof for all purposes, but in all events recognizing any transfers
made in accordance with the terms of this Warrant. "PERSON" means an individual,
partnership, corporation, limited liability company, association, joint stock
company, trust, joint venture, unincorporated organization or other entity, or a
governmental entity or any department, agency or political subdivision thereof.
(b) This Warrant and the rights granted to Holder are
transferable, in whole or in part, upon surrender of this Warrant, together with
a properly executed warrant power in the form of Exhibit B attached hereto, only
to an Affiliate of HP; provided, however, that any transfer or assignment shall
be subject to the conditions set forth in Sections 6(c) and (d) below. For
purposes of this Warrant, "AFFILIATE" shall have such meaning as is ascribed to
it in Rule 405 promulgated under the Securities Act.
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(c) Holder represents and warrants that it understands that,
except as set forth in the Stockholder Rights Agreement dated as of June 30,
2000 by and between the Company and HP (the "STOCKHOLDER RIGHTS AGREEMENT"), the
Company is under no obligation to register this Warrant or the Warrant Shares
under the Securities Act and that the Warrant and Warrant Shares will be
characterized as "restricted securities" under the Securities Act because they
are being acquired from the Company in a transaction not involving a public
offering. Holder also represents and warrants that it understands that neither
the Warrant nor the Warrant Shares may be offered for sale, sold, assigned or
transferred unless (a) subsequently registered pursuant to an effective
registration statement under the Securities Act, or (b) such Holder shall have
delivered to the Company a written opinion of counsel, in form, substance and
scope reasonably acceptable to the Company, to the effect that the securities to
be offered for sale, sold, assigned or transferred are being offered for sale,
sold, assigned or transferred pursuant to an exemption from such registration;
provided, however, that such opinion of counsel will not be required by the
Company for any dispositions made by the Holder (i) to any of its Affiliates or
(ii) pursuant to Rule 144 promulgated under the Securities Act, provided that
prior to such disposition the Company receives from the Holder and the relevant
broker, if applicable, such certifications as are necessary for the Company to
confirm that such disposition is exempt from registration pursuant to Rule 144
or otherwise, as the case may be.
(d) In addition to the transfer restrictions set forth in Section
7(c), Holder shall not sell, assign or transfer any Warrant Shares to any Person
other than an Affiliate of HP prior to the first anniversary of the original
issuance of such Warrant Shares. This transfer restriction shall expire upon a
Change in Control (as defined in Section 1.1(a) of the Stockholder Rights
Agreement) of the Company. Holder acknowledges that the Warrant Shares are also
subject to the transfer restrictions set forth in Section 3 of in the
Stockholder Rights Agreement.
(e) Any certificates representing Warrant Shares issued in
accordance with this Warrant shall bear a legend substantially in the following
form:
THE SHARES OF COMMON STOCK OF NOVADIGM, INC. (THE "COMPANY") REPRESENTED
BY THIS CERTIFICATE (THE "SHARES") HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT
BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE SECURITIES
ACT, UNLESS HOLDER HEREOF SHALL HAVE DELIVERED TO THE COMPANY A WRITTEN
OPINION OF COUNSEL, IN FORM, SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE
TO THE COMPANY TO THE EFFECT THAT THE SHARES TO BE OFFERED FOR SALE,
SOLD, TRANSFERRED OR ASSIGNED ARE BEING OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION;
PROVIDED, HOWEVER, THAT SUCH OPINION OF COUNSEL WILL NOT BE REQUIRED BY
THE COMPANY FOR ANY DISPOSITIONS MADE BY THE HOLDER (I) TO ANY OF ITS
AFFILIATES (AS SUCH TERM IS
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DEFINED IN RULE 405 PROMULGATED UNDER THE SECURITIES ACT OR (II)
PURSUANT TO RULE 144 PROMULGATED UNDER THE SECURITIES ACT, PROVIDED THAT
PRIOR TO SUCH DISPOSITION THE COMPANY RECEIVES FROM THE HOLDER AND THE
RELEVANT BROKER, IF APPLICABLE, SUCH CERTIFICATIONS AS ARE NECESSARY FOR
THE COMPANY TO CONFIRM THAT SUCH DISPOSITION IS EXEMPT FROM REGISTRATION
PURSUANT TO RULE 144 OR OTHERWISE, AS THE CASE MAY BE. FURTHERMORE, THE
SHARES (A) MAY NOT BE SOLD, ASSIGNED OR TRANSFERRED PRIOR TO THE FIRST
ANNIVERSARY OF THE COMPANY'S ORIGINAL ISSUANCE OF SUCH SHARES AND (B)
ARE SUBJECT TO THE TRANSFER RESTRICTIONS SET FORTH IN THE STOCKHOLDER
RIGHTS AGREEMENT DATED AS OF JUNE 30, 2000 BY AND BETWEEN THE COMPANY
AND HEWLETT-PACKARD COMPANY (THE "STOCKHOLDER RIGHTS AGREEMENT"). THE
TRANSFER RESTRICTION DESCRIBED IN CLAUSE (A) OF THE FOREGOING SENTENCE
SHALL EXPIRE UPON A CHANGE OF CONTROL OF THE COMPANY (AS DEFINED IN THE
STOCKHOLDER RIGHTS AGREEMENT).
Section 8. Adjustment of Exercise Price and Number of Warrant Shares.
The Exercise Price and the number of Warrant Shares issuable upon exercise of
this Warrant shall be adjusted from time to time as follows:
(a) Subdivision or Combination of Shares. If the Company at any
time effects a subdivision or combination of the outstanding Common Stock
(through a stock split, reverse stock split or otherwise), the Exercise Price in
effect immediately prior to such event shall be decreased and the number of
Warrant Shares shall be increased, in the case of a subdivision, or the Exercise
Price in effect immediately prior to such event shall be increased and the
number of Warrant Shares shall be decreased, in the case of a combination, in
the same proportions as the Common Stock is subdivided or combined, in each case
effective automatically upon, and simultaneously with, the effectiveness of the
subdivision or combination which gives rise to the adjustment.
(b) Stock Dividends. If the Company at any time pays a dividend,
or makes any other distribution, to holders of Common Stock payable in shares of
Common Stock, or fixes a record date for the determination of holders of Common
Stock entitled to receive a dividend or other distribution payable in shares of
Common Stock, the Exercise Price shall be decreased by multiplying it by a
fraction:
(i) the numerator of which shall be the total number of
shares of Common Stock outstanding immediately prior to such dividend or
distribution (the "PRIOR OUTSTANDING SHARES"), and
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(ii) the denominator of which shall be the total number of
shares of Common Stock outstanding immediately after such dividend or
distribution (plus, if the Company paid cash instead of fractional shares
otherwise issuable in such dividend or distribution, the number of
additional shares which would have been outstanding had the Company
issued fractional shares instead of cash) (the "SUBSEQUENT OUTSTANDING
SHARES"),
and the number of Warrant Shares shall be increased by multiplying it by a
fraction, the numerator of which shall be the Subsequent Outstanding Shares and
the denominator of which shall be the Prior Outstanding Shares, in each case
effective automatically as of the date of the effectiveness of such dividend or
distribution.
(c) Reclassification, Consolidation or Merger. If at any time,
as a result of:
(i) a capital reorganization or reclassification (other than
a subdivision, combination or dividend provided for elsewhere in
this Section 8), or
(ii) a merger or consolidation of the Company with another
corporation (whether or not the Company is the surviving
corporation),
the Common Stock issuable upon exercise of this Warrant shall be changed into or
exchanged for the same or a different number of shares of any class or classes
of stock of the Company or any other corporation, or other securities
convertible into such shares, then, as a part of such reorganization,
reclassification, merger or consolidation, appropriate adjustments shall be made
in the terms of this Warrant (or of any securities into which this Warrant is
exercised or for which this Warrant is exchanged), so that Holder of this
Warrant or of such substitute securities shall thereafter be entitled to
receive, upon exercise of this Warrant or of such substitute securities, the
kind and amount of shares of stock, other securities, money and property which
such Holder would have received at the time of such capital reorganization,
reclassification, merger, or consolidation, if such Holder had exercised this
Warrant immediately prior to such capital reorganization, reclassification,
merger, or consolidation. This Warrant, including, without limitation, the
provisions of this Section 8(c), will be binding upon any entity succeeding to
the Company by merger, consolidation or acquisition of all or substantially all
of the Company's assets. The provisions of this Section 8(c) shall similarly
apply to (x) successive capital reorganizations, reclassifications, mergers and
consolidations and (y) the securities of any other corporation that are at the
time receivable upon the exercise of this Warrant.
(d) Certain Events And No Impairment. If any event occurs of the
type contemplated by the provisions of this Section 8, but not expressly
provided for by such provisions, then the Company's Board of Directors will make
an appropriate adjustment in the Exercise Price and the number of Warrant Shares
obtainable upon exercise of this Warrant so as to protect the rights of Holder.
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(e) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment pursuant to this Section 8, the Company at its
expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to each Holder of this Warrant a certificate
setting forth such adjustment or readjustment and showing in detail the facts
upon which such adjustment or readjustment is based. The Company shall, upon the
written request, at any time, of any such Holder, furnish or cause to be
furnished to such Holder a like certificate setting forth: (i) such adjustments
and readjustments; (ii) the Exercise Price at the time in effect; and (iii) the
number of Warrant Shares and the amount, if any, of other property that at the
time would be received upon the exercise of the Warrant.
Section 9. Lost, Stolen, Mutilated or Destroyed Warrant. If this Warrant
is lost, stolen, mutilated or destroyed, the Company shall, on receipt of
evidence reasonably satisfactory to the Company of the ownership of, and the
loss, theft, mutilation or destruction of, this Warrant and of an indemnity
reasonably satisfactory to the Company (and in the case of mutilation, upon
surrender and cancellation of this Warrant), issue in lieu thereof a new Warrant
of like denomination and tenor as the Warrant so lost, stolen, mutilated or
destroyed.
Section 10. Notice. Any notices required, permitted or desired to be
given under the terms of this Warrant shall be delivered personally, sent by
overnight courier or mailed, registered or certified mail, return receipt
requested to the following addresses, and shall be deemed to have been received
on the day of personal delivery, one business day after deposit with a
nationally recognized overnight courier or five business days after deposit in
the mail:
If to the Company:
Novadigm, Inc.
Xxx Xxxxxxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxx, Xxx Xxxxxx 00000
Attention: Albion X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxxx
With a copy to:
Xxxxxx Xxxxxx Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxx, Esq.
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If to Holder:
Hewlett-Packard Company
0000 Xxxxxxx Xxxxxx, XX 20 BQ
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
With copies to:
Hewlett-Packard Company
0000 Xxxxxxx Xxxxxx, XX 20 BT
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: C.D. Portfolio
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
or at such other address as any party may specify in a written notice given to
the other party hereto, including upon the transfer of this Warrant.
Section 11. Notices of Record Date. In the event:
(a) the Company shall take a record of holders of its Common
Stock (or other stock or securities at the time receivable upon the exercise of
this Warrant), for the purpose of entitling them to receive any dividend or
other distribution; or
(b) of any consolidation or merger of the Company with or into
another corporation, any capital reorganization of the Company, any
reclassification of the capital stock of the Company, or any conveyance of all
or substantially all of the assets of the Company to another corporation in
which holders of the Company's stock are to receive stock, securities or
property of another corporation; or
(c) of any voluntary dissolution, liquidation or winding-up of
the Company; or
(d) of the occurrence of any event of the type contemplated by
the provisions of Section 8, but not expressly provided for by such provisions,
then, and in each such case, the Company will mail or cause to be mailed to
Holder a notice specifying, as the case may be, (i) the date on which a record
is to be taken for the purpose of such dividend or distribution, (ii) the date
on which such reorganization, reclassification, consolidation, merger,
conveyance, dissolution, liquidation or winding-up is to take place, or (iii)
the date on which such occurrence of any event of the type contemplated by the
provisions
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of Section 8, but not expressly provided for by such provisions, is to take
place, and the time, if any is to be fixed, as of which holders of record of
Common Stock (or such stock or securities as at the time are receivable upon the
exercise of this Warrant) shall be entitled to exchange their shares of Common
Stock (or such other stock or securities) for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger,
conveyance, dissolution, liquidation, winding-up or other event. Such notice
shall be delivered at least fifteen (15) days prior to the date therein
specified.
Section 12. Miscellaneous. This Warrant and any term hereof may be
changed, waived, discharged, or terminated only by an instrument in writing
signed by the party against which enforcement of such change, waiver, discharge
or termination is sought. The headings in this Warrant are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. This
Warrant shall be governed by and interpreted under the laws of the State of
Delaware. This Warrant, in all events, shall be wholly void and of no effect
after 5:00 p.m., Pacific time, on the Expiration Date, except that,
notwithstanding any other provisions hereof, the provisions of Section 7 shall
continue in full force and effect after such date as to any Warrant Shares or
other securities issued upon the exercise of this Warrant.
Section 13. Successors and Assigns. The terms and provisions of this
Warrant shall inure to the benefit of, and be binding upon, the Company and the
Holder and their respective successors and permitted assigns.
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EXHIBIT A TO WARRANT
SUBSCRIPTION FORM
TO BE EXECUTED BY HOLDER TO EXERCISE THIS WARRANT
NOVADIGM, INC.
The undersigned holder hereby irrevocably exercises the right to
purchase ___________ of the shares of Common Stock ("WARRANT SHARES") of
Novadigm, Inc., a Delaware corporation (the "COMPANY"), evidenced by the
attached Warrant (the "WARRANT") and (check the applicable box):
[ ] Tenders herewith payment of the Aggregate Exercise Price, if any, in
full in the form of cash or a check or wire transfer in immediately
available funds in the amount of $__________ for __________ Warrant
Shares.
[ ] Elects the net issue exercise option pursuant to Section 2(b) of the
Warrant with respect to __________ Warrant Shares, and accordingly
requests delivery of a net of __________ Warrant Shares according to the
following calculation:
X = Y (A-B) ( ____) = ( ____) [( ______) -- ( ____)]
------- ------------------------------
A ( ------ )
X = the net number of Warrant Shares to be issued to Holder
under said formula.
Y = the number of Warrant Shares otherwise issuable to Holder
pursuant to its exercise of this Warrant.
A = the last reported sale price on the Nasdaq National
Market, or such other national securities exchange or
market on which the Common Stock is then listed, of a
share of Common Stock on the date immediately preceding
the date of this Exercise Notice.
B = the Exercise Price in effect at the time of exercise.
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Date: _______________ ___, ______
Name of Holder
Signature:
--------------------------
Name:
-------------------------------
Title:
------------------------------
--------------------------------
Capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Warrant.
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EXHIBIT B TO WARRANT
FORM OF WARRANT POWER
FOR VALUE RECEIVED, the undersigned does hereby assign and transfer to
_____________________, Federal Identification No. _________________________, a
warrant to purchase ___________________ shares of the Common Stock of Novadigm,
Inc., a Delaware corporation, represented by warrant certificate no. ___,
standing in the name of the undersigned on the books of said corporation. The
undersigned does hereby irrevocably constitute and appoint ______________,
attorney to transfer the warrants of said corporation, with full power of
substitution in the premises.
Dated: _______________________, 200__
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By:
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Name:
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Title:
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