EXHIBIT 4.6
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 AS AMENDED, OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL (WHICH MAY BE COMPANY COUNSEL) REASONABLY SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT
OF 1933 OR APPLICABLE STATE SECURITIES LAWS.
WARRANT AGREEMENT
To Purchase Shares of the Series H Preferred Stock of
OmniCell Technologies, Inc.
Dated as of September 29, 1995, (the "Effective Date")
WHEREAS, Omnicell Technologies, Inc., a California corporation (the
"Company") has entered into a Loan and Security Agreement dated as of August
2, 1995, (the "Loan Agreement") and a Promissory Note dated August 2, 1995
(the "Note") with Comdicso, Inc., a Delaware corporation (the
"Warrantholder"); and
WHEREAS, the Company desires to grant to Warrantholder, in consideration
for such Loan Agreement and Promissory Note, the right to purchase shares of
its Series H Stock;
NOW, THEREFORE, in consideration of the Warrantholder executing and
delivering such Loan Agreement and Promissory Note and in consideration of
mutual covenants and agreements contained herein, the Company and
Warrantholder agree as follows:
1. GRANT OF THE RIGHT TO PURCHASE PREFERRED STOCK.
The Company hereby grants to the Warrantholder, and the Warrantholder is
entitled, upon the terms and subject to the conditions hereinafter set forth,
to subscribe to and purchase from the Company, 67,934 fully paid and
non-assessable shares of the Company's Series H Preferred Stock ("Preferred
Stock") at a purchase price of $3.68 per share (the "Exercise Price"). The
number and purchase price of such shares are subject to adjustment as
provided in Section 8 hereof. Notwithstanding anything herein to the
contrary, upon the closing of a firm commitment underwritten public offering
pursuant to an effective registration statement under the Securities Act of
1933, as amended, covering the offer and the sale of the Company's Common
Stock (the "IPO Closing"), all rights to purchase Preferred Stock granted
herein, and all corresponding obligations the Company to reserve and issue
Preferred Stock assumed herein, shall become automatically rights to
purchase, and obligations to reserve and issue, only Common Stock. The
number of shares of Common Stock thereafter purchasable under this Warrant
Agreement shall be equal to the number of whole shares of Common Stock into
which all the shares of Preferred Stock issuable upon exercise of the Warrant
Agreement would have converted if this Warrant Agreement had been exercised
immediately prior to the IPO Closing.
2. TERM OF THE WARRANT AGREEMENT.
Except as otherwise provided for herein, the term of this Warrant
Agreement and the right to purchase Series H Preferred Stock as granted
herein shall commence on the Effective Date and shall be exercisable for a
period of (i) seven (7) years from the effective date or (ii) three (3) years
from the effective date of the Company's initial public offering, whichever
is longer.
3. EXERCISE OF THE PURCHASE RIGHTS.
The purchase rights set forth in this Warrant Agreement are exercisable by
the Warrantholder, in whole or in part, at any time, or from time to time, prior
to the expiration of the term set forth in Section 2 above, by tendering to the
Company at its principal office a notice of exercise in the form attached hereto
as Exhibit I (the "Notice of Exercise"), duly completed and executed, and the
original of this Warrant Agreement for cancellation. Promptly
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upon receipt of the Notice of Exercise and the payment of the purchase price
in accordance with the terms set forth below, and in no event later than
twenty-one (21) days thereafter, the Company shall issue to the Warrantholder
a certificate for the number of shares of Preferred Stock purchased and shall
execute the Notice of Exercise indicating the number of shares which remain
subject to future purchases, if any and an acknowledgment of exercise duly
completed and executed in the form attached hereto as Exhibit III.
The Exercise Price may be paid at the Warrantholder's election either
(i) by cash or check, (ii) by cancellation by Warrantholder or indebtedness
of the Company under the Loan Agreement and Note to Warrantholder, (iii) by
surrender of Warrants ("Net Issuance") as determined below, or (iv) by a
combination of (i), (ii), and (iii). If the Warrantholder elects the Net
Issuance method, the Company will issue Preferred Stock in accordance with
the following formula:
X = Y(A-B)
A
Where: X = the number of shares of Preferred Stock to be issued to
the Warrantholder.
Y = the number of shares of Preferred Stock requested to be
exercised under this Warrant Agreement.
A = the fair market value of one (1) share of Preferred Stock
(at the date of calculation).
B = the Exercise Price (adjusted to the date of calculation).
The date of calculation shall be the date on which this Notice of
Exercise and original Warrant Agreement shall have been actually received by
the Company along with payment for such shares. For purposes of the above
calculation, current fair market value of Preferred Stock shall mean with
respect to each share of Preferred Stock:
(i) If the Company's Registration Statement relating to its initial
public offering has been declared effective by the SEC, then the
fair market value per share shall be the product of (x) the
"Initial Price to Public" specified in the final prospectus with
respect to the offering and (y) the number of shares of Common
Stock into which each share of Preferred Stock is convertible at
the time of such exercise;
(ii) if this Warrant is exercised after the Company's initial public
offering has closed, and:
(a) if traded on a securities exchange, the fair market value
shall be deemed to be the product of (x) the average of
the closing prices over a twenty-one (21) day period
ending three days before the day the current fair market
value of the securities is being determined and (y) the
number of shares of Common Stock into which each share of
Preferred Stock is convertible at the time; or
(b) if actively traded over-the-counter, the fair market value
shall be deemed to be the produce of (x) the average of
the closing bid and asked prices quoted on the NASDAQ
system (or similar system) over the twenty-one (21) day
period ending three days before the day the current fair
market value of the securities is being determined and (y)
the number of shares of Common Stock into which each share
of Preferred Stock is convertible at the time of such
exercise;
(iii) if at any time the Common Stock is not listed on any securities
exchange or quoted in the NASDAQ System or the over-the-counter
market, the current fair market value of Preferred Stock shall be
the product of (x) the highest price per share which the Company
could obtain from a willing buyer (not a current employee or
director) for shares of Common Stock sold by the Company, from
authorized but unissued shares, as determined in good faith by
its Board of Directors, and (y) the number of shares of Common
Stock into which each share of Preferred Stock is convertible at
the time of such exercise, unless the Company is then subject to
a merger, acquisition or other consolidation pursuant to which
the Company is not the surviving party, in
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which case the fair market value of Common Stock shall be deemed
to be the value received by the holders of the Company's
Preferred Stock on a common equivalent basis pursuant to such
merger or acquisition.
Upon partial exercise by any method, the Company shall promptly issue an
amended Warrant Agreement representing the remaining number of shares
purchasable hereunder. All other terms and conditions of such amended
Warrant agreement shall be identical to those contained herein, including,
but not limited to the Effective Date hereof.
4. RESERVATION OF SHARES.
(a) Authorization and Reservation of Shares. During the term of this
Warrant Agreement, the Company will at all times have authorized and reserved
a sufficient number of shares of its Preferred Stock to provide for the
exercise of the rights to purchase Preferred Stock as provided for herein.
(b) Registration or Listing. If any shares of Preferred Stock
required to be reserved hereunder require registration with or approval of
any governmental authority under any Federal or State law (other than any
registration under the 1933 Act, as then in effect, or any similar Federal
statute then enforced, or any state securities law, required by reason of any
transfer involved in such conversion), or listing on any domestic securities
exchange, before such shares may be issued upon conversion, the Company will,
at its expense and as expeditiously as possible, use its best efforts to
cause such shares to be duly registered, listed or approved for listing on
such domestic securities exchange, as the case may be.
5. NO FRACTIONAL SHARES OR SCRIP.
No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of the Warrant, but in lieu of such fractional
shares the Company shall make a cash payment therefore upon the basis of
the Exercise Price then in effect.
6. NO RIGHTS AS SHAREHOLDER.
This Warrant Agreement does not entitle the Warrantholder to any voting
rights or other rights as a shareholder of the Company prior to the exercise
of the Warrant.
7. WARRANTHOLDER REGISTRY.
The Company shall maintain a registry showing the name and address of
the registered holder of this Warrant Agreement.
8. ADJUSTMENT RIGHTS.
The Exercise Price and the number of shares of Preferred Stock
purchasable hereunder are subject to adjustment, as follows:
(a) Merger and Sale of Assets. If at any time there shall be a
capital reorganization of the shares of the Company's stock (other than a
combination, reclassification, exchange or subdivision of shares otherwise
provided for herein), or a merger or consolidation of the Company with or
into another corporation when the Company is not the surviving corporation,
or the sale of all or substantially all of the Company's properties and
assets to any other person (hereinafter referred to as a "Merger Event'),
then, as a part of such Merger Event, lawful provision shall be made to that
the Warrantholder shall thereafter be entitled to receive, upon exercise of
the Warrant, the number of shares of preferred stock or other securities or
other assets or property or cash of the successor corporation resulting from
such Merger Event, equivalent in value to that which would have been issuable
if Warrantholder had exercised this Warrant immediately prior to the Merger
Event. In any such case, appropriate adjustment (as determined in good faith
by the Company's Board of Directors) shall be made in the application of the
provisions of this Warrant Agreement with respect to the rights and interest
of the Warrantholder after the
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Merger Event to the end that the provisions of this Warrant Agreement
(including adjustments of the Exercise Price and number of shares of
Preferred Stock purchasable) shall be applicable to the greatest extent
possible.
(b) Reclassification or Conversion of Shares. If the Company at any
time shall, by conversion, combination, reclassification, exchange or
subdivision of securities or otherwise, change any of the securities as to
which purchase rights under this Warrant Agreement exist into the same or a
different number of securities of any other class or classes, this Warrant
Agreement shall thereafter represent the right 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 Agreement immediately prior to such combination,
reclassification, exchange, subdivision or other change.
(c) Subdivision or Combination of Shares. If the Company at any time
shall combine or subdivide its Preferred Stock, the Exercise Price shall be
proportionately decreased in the case of a subdivision, or proportionately
increased in the case of a combination.
(d) Stock Dividends. If the Company at any time shall pay a dividend
payable in, or make any other distribution (except any distribution
specifically provided for in the foregoing subsections (a) or (b)) of the
Company's stock), then the Exercise Price shall be adjusted, from and after
the record date of such dividend or distribution, to that price determined by
multiplying the Exercise Price in effect immediately prior to such record
date by a fraction (i) the numerator of which shall be the total number of
all shares of the Company's stock outstanding immediately prior to such
dividend or distribution, and (ii) the denominator of which shall be the
total number of all shares of the Company's stock outstanding immediately
after such dividend or distribution. The Warrantholder shall thereafter be
entitled to purchase, at the Exercise Price resulting from such adjustment,
the number of shares of Preferred Stock (calculated to the nearest whole
share) obtained by multiplying the Exercise Price in effect immediately prior
to such adjustment by the number of shares of Preferred Stock issuable upon
the exercise hereof immediately prior to such adjustment and dividing the
product thereof by the Exercise Price resulting from such adjustment.
(f) Antidilution Rights. Additional antidilution rights applicable
to the Preferred Stock purchasable hereunder are as set forth in the
Company's Articles of Incorporation, as amended through the Effective Date, a
true and complete copy of which is attached hereto as Exhibit IV (the
"Charter"). The Company shall promptly provide the Warrantholder with any
restatement, amendment, modification or waiver of the Charter. The Company
shall provide Warrantholder with prior written notice of any issuance of its
stock or other equity security to occur after the Effective Date of this
Warrant, which notice shall include (a) the price at which such stock or
security is to be sold, (b) the number of shares to be issued, and (c) such
other information as necessary for Warrantholder to determine if a dilutive
event has occurred.
(g) Notice of Adjustments. If: (i) the Company shall declare any
dividend or distribution upon its stock without payment therefor, whether in
cash, property, stock or other securities; (ii) the Company shall offer for
subscription prorata to the holders of Preferred Stock any additional shares
of stock of any class of other rights; (iii) there shall be any Merger Event;
(iv) there shall be a public offering; or (v) there shall be any voluntary or
involuntary dissolution, liquidation or winding up of the Company; then, in
connection with each such event, the Company shall send to the Warrantholder:
(A) at least twenty (20) days' prior written notice of the date on which the
books of the Company shall close or a record shall be taken for such
dividend, distribution, subscription rights (specifying the date on which the
holders of Preferred Stock shall be entitled thereto) or for determining
rights to vote in respect of such Merger Event, dissolution, liquidation or
winding up; (B) in the case of any such Merger Event, dissolution,
liquidation or winding up, at least twenty (20) days' prior written notice of
the date when the same shall take place (and specifying the date on which the
holders of Preferred Stock shall be entitled to exchange their Preferred
Stock for securities or other property deliverable upon such Merger Event,
dissolution, liquidation or winding up); and (C) in the case of a public
offering, the Company shall give Warrantholder at least twenty (20) days
written notice prior to the effective date thereof.
Each such written notice shall set forth, as applicable, in reasonable
detail, (i) the event requiring the adjustment, (ii) the amount of the
adjustment, (iii) the method by which such adjustment was calculated, (iv)
the Exercise Price, and (v) the number of shares subject to purchase
hereunder after giving effect to such adjustment,
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and shall be given by first class mail, postage prepaid, addressed to the
Warrantholder, at the address as shown on the books of the Company.
(h) Timely Notice. Failure to timely provide such notice required by
subsection (g) above shall entitle Warrantholder to retain the benefit of the
applicable notice period notwithstanding anything to the contrary contained
in any insufficient notice received by Warrantholder. The notice period
shall begin on the date Warrantholder actually receives a written notice
containing all the information specified above.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
(a) Reservation of Preferred Stock. The Preferred Stock issuable
upon exercise of the Warrantholder's rights has been duly and validly
reserved and, when issued in accordance with the provisions of this Warrant
Agreement, will be validly issued, fully paid and non-assessable, and will be
free of any taxes, liens, charges or encumbrances of any nature whatsoever;
provided, however, that the Preferred Stock issuable pursuant to this Warrant
Agreement may be subject to restrictions on transfer under state and/or
Federal securities laws. The Company has made available to the Warrantholder
true, correct and complete copies of its Charter and Bylaws, as amended, and
minutes of the Board of Directors (including all committees of the Board of
Directors, if any) meeting of April 4, 1995. The issuance of certificates
for shares of Preferred Stock upon exercise of the Warrant Agreement shall be
made without charge to the Warrantholder for any issuance tax in respect
thereof, or other cost incurred by the Company in connection with such
exercise and the related issuance of shares of Preferred Stock. The Company
shall not be required to pay any tax which may be payable in respect of any
transfer involved and the issuance and delivery of any certificate in a name
other than that of the Warrantholder.
(b) Due Authority. The execution and delivery by the Company of this
Warrant Agreement and the performance of all obligations of the Company
hereunder, including the issuance to Warrantholder of the right to acquire
the shares of Preferred Stock, have been duly authorized by all necessary
corporate action on the part of the Company, and the Loan Agreement, Note and
this Warrant Agreement are not inconsistent with the Company's Charter or
Bylaws, do not contravene any law or governmental rule, regulation or order
applicable to it, do not and will not contravene any provision of, or
constitute a default under, any indenture, mortgage, contract or other
instrument to which it is a party or by which it is bound, and the Loan
Agreement, Note and this Warrant Agreement constitute legal, valid and
binding agreements of the Company, enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency and other laws
affecting creditor rights and to general principles of equity.
(c) Consents and Approvals. No consent or approval of, giving of
notice to, registration with, or taking of any other action in respect of any
state, Federal or other governmental authority or agency is required with
respect to the execution, delivery and performance by the Company of its
obligations under this Warrant Agreement, except for the filing of notices
pursuant to Regulation D under the 1933 Act, if any, and applicable state
securities law, which filings will be effective by the time required thereby.
(d) Issued Securities. All issued and outstanding shares of Common
Stock, Preferred Stock or any other securities of the Company have been duly
authorized and validly issued and are fully paid and nonassessable. All
outstanding shares of Common Stock, Preferred Stock and any other securities
were issued in full compliance with all Federal and state securities laws.
In addition:
(i) The authorized capital of the Company consists of (A) 25,000,000
shares of Common Stock, of which 1,608,216 shares are issued and outstanding,
and (B) 15,000,000 shares of Preferred stock, of which 11,527,848 shares are
issued and outstanding, such Preferred stock consisting of (1) 480,000 shares
of Series A of which 480,000 are issued and outstanding; (2) 320,666 shares
of Series B of which 320,666 are issued and outstanding; (3) 1,700,000 shares
of Series C of which 1,700,000 are issued and outstanding; (4) 1,328,000
shares of Series D of which 1,309,484 are issued and outstanding; (5)
1,966,000 shares of series E of which 1,965,262 are issued and outstanding;
(6) 2,000,000 shares of Series F of which 1,948,090 are outstanding; and (7)
1,000,000 shares of Series G none of which are issued and outstanding; and
(9) 4,000,000 shares of Series H of which 3,804,346 are issued and
outstanding.
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(ii) The Company has reserved 2,910,000 shares of Common Stock for
issuance under its 1992 Incentive Stock Option Plan and 1995 Management Stock
Option Plan, under which 2,442,752 options are outstanding at an average
price of $.50-.75 per share. There are no other options, warrants,
conversion privileges or other rights presently outstanding to purchase or
otherwise acquire any authorized but unissued shares of the Company's capital
stock or other securities of the Company, other than warrants issued to the
Warrantholder.
(iii) Other than those rights granted to the preferred stock holders,
no shareholder of the Company has rights of first refusal to purchase new
issuances of the Company's capital stock.
(e) Insurance. The Company has in full force and effect insurance
policies, with extended coverage, insuring the Company and its property and
business against such losses and risks, and in such amounts, as are customary
for corporations engaged in a similar business and similarly situated and as
otherwise may be required pursuant to the terms of any other contract or
agreement.
(f) Other Commitments to Register Securities. Except as set forth in
this and other Warrant Agreement, the Company is not, pursuant to the terms
of any other agreement currently in existence, under any obligation to
register under the 1933 Act any of its presently outstanding securities other
than registerable securities issuable upon conversion of the various series
of the Company's Preferred Stock.
(g) Exempt Transaction. Subject to the accuracy of the
Warrantholder's representations in Section 10 hereof both now and at the time
of each exercise of this Warrant Agreement, the issuance of the Preferred
Stock upon exercise of this Warrant will constitute a transaction exempt from
(i) the registration requirements of Section 5 of the 1933 Act, in reliance
upon Section 4(2) thereof, and (ii) the qualification requirements of the
applicable state securities laws.
(h) Compliance with Rule 144. At the written request of the
Warrantholder, who proposes to sell Preferred Stock issuable upon the
exercise of the Warrant in compliance with Rule 144 promulgated by the
Securities and Exchange Commission, the Company shall furnish to the
Warrantholder, within a reasonable period after receipt of such request, a
written statement confirming the Company's compliance with the filing
requirements of the Securities and Exchange Commission as set forth in such
Rule, as such Rule may be amended from time to time.
10. REPRESENTATIONS AND COVENANTS OF THE WARRANTHOLDER.
This Warrant Agreement has been entered into by the Company in reliance
upon the following representations and covenants of the Warrantholder:
(a) Investment Purpose. The right to acquire Preferred Stock or the
Preferred Stock issuable upon exercise of the Warrantholder's rights
contained herein will be acquired for investment and not with a view to the
sale or distribution of any part thereof, and the Warrantholder has no
present intention of selling or engaging in any public distribution of the
same.
(b) Private Issue. The Warrantholder understands (i) that this
Warrant Agreement, the Preferred Stock issuable upon exercise of this
Warrant, and the Common Stock into which such Preferred Stock is convertible,
are not registered under the 1933 Act or qualified under applicable state
securities laws and (ii) that the Company's reliance on exemptions to
otherwise applicable registration requirements is predicated on the
representations set forth in this Section 10.
(c) Disposition of Warrantholder's Rights. In no event will the
Warrantholder make a disposition of any of its rights to acquire Preferred
Stock or Preferred Stock issuable upon exercise of such rights or the Common
Stock into which such Preferred Stock is convertible unless and until (i) it
shall have notified the Company of the proposed disposition, and (ii) if
requested by the Company, it shall have furnished the Company with an opinion
of counsel satisfactory to the Company and its counsel to the effect that (A)
appropriate action necessary for compliance with the 1933 Act has been taken,
or (B) an exemption from the registration requirements of the 1933 Act is
available. Notwithstanding the foregoing, the restrictions imposed upon the
transferability of any of its rights to acquire Preferred Stock or Preferred
Stock issuable on the exercise of such rights do not apply to transfers from
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the beneficial owner of any of the aforementioned securities to its nominee
or from such nominee to its beneficial owner, and shall terminate as to any
particular share of Preferred Stock when (1) such security shall have been
effectively registered under the 1933 Act and sold by the holder thereof in
accordance with such registration or (2) such security shall have been sold
without registration in compliance with Rule 144 under the 1933 Act, or (3) a
letter shall have been issued to the Warrantholder at its request by the
staff of the Securities and Exchange Commission or a ruling shall have been
issued to the Warrantholder at its request by such Commission stating that no
action shall be recommended by such staff or taken by such Commission, as the
case may be, if such security is transferred without registration under the
1933 Act in accordance with the conditions set forth in such letter or ruling
and such letter or ruling specifies that no subsequent restrictions on
transfer are required. Whenever the restrictions imposed hereunder shall
terminate, as hereinabove provided, the Warrantholder or holder of a share of
Preferred Stock then outstanding as o which such restrictions have terminated
shall be entitled to receive from the Company, without expense to such
holder, one or more new certificates for the Warrant or for such shares of
Preferred Stock not bearing any restrictive legend.
(d) Financial Risk. The Warrantholder has such knowledge and
experience in financial and business matters as to be capable of evaluating
the merits and risks of its investment, and has the ability to bear the
economic risks of its investment.
(e) Risk of No Registration. The Warrantholder understands that if
the Company does not register with the Securities and Exchange Commission
pursuant to Section 12 of the 1933 Act, or file reports pursuant to Section
15(d), of the Securities Exchange Act of 1934 (the "1934 Act"), or if a
registration statement covering the securities under the 1933 Act is not in
effect when it desires to sell (i) the rights to purchase Preferred Stock
pursuant to this Warrant Agreement, or (ii) the Preferred Stock issuable upon
exercise of the right to purchase, or (iii) the Common Stock into which such
Preferred Stock is convertible, it may be required to hold such securities
for an indefinite period. The Warrantholder also understands that any sale
of its rights to purchase Preferred Stock or the Common Stock into which
might be made by it in reliance upon Rule 144 under the 1933 Act may be made
only in accordance with the terms and conditions of that Rule.
(f) Accredited Investor. Warrantholder is an "accredited investor"
within the meaning of the Securities and Exchange Rule 501 of Regulation D,
as presently in effect.
11. TRANSFERS. Subject to applicable federal and state securities laws, the
transfer restrictions set forth herein and the terms and conditions contained
in Section 10 hereof, this Warrant Agreement and all rights hereunder are
transferable in whole or in part by the Warrantholder and any successor
transferee, provided, however, in no event shall the number of transfers of
the rights and interests in all of the Warrants exceed three (3) transfers.
The transfer shall be recorded on the books of the Company upon receipt by
the Company of a notice of transfer in the form attached hereto as Exhibit II
(the "Transfer Notice"), at its principal offices and the payment to the
Company of all transfer taxes and other governmental charges imposed on such
transfer.
12. MISCELLANEOUS.
(a) Effective Date. The provisions of this Warrant Agreement shall
be construed and shall be given effect in all respects as if it had been
executed and delivered by the Company on the date hereof. This Warrant
Agreement shall be binding upon any successors or assigns of the Company.
(b) Attorney's Fees. In any litigation, arbitration or court
proceeding between the Company and the Warrantholder relating hereto, the
prevailing party shall be entitled to attorneys' fees and expenses and all
costs of proceedings incurred in enforcing this Warrant Agreement.
(c) Governing Law. This Warrant Agreement shall be governed by and
construed for all purposes under and in accordance with the laws of the State
of Illinois.
(d) Counterparts. This Warrant Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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(e) Notices. Any notice required or permitted hereunder shall be
given in writing and shall be deemed effectively given upon personal
delivery, facsimile transmission (provided that the original is sent by
personal delivery or mail as hereinafter set forth) or seven (7) days after
deposit in the United States mail, by registered or certified mail, addressed
(i) to the Warrantholder at Comdisco Ventures, 0000 Xxxxx Xxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000, cc: Legal Department, attention: General Counsel
(and/or, if by facsimile, (000) 000-0000 and (000) 000-0000) and (ii) to the
Company at 0000 Xxxx Xxxxxx Xxxxx, Xxxx Xxxx, XX 00000, (and/or if by
facsimile, (000) 000-0000) or at such other address as any such party may
subsequently designate by written notice to the other party.
(f) Remedies. In the event of any default hereunder, the
non-defaulting party may proceed to protect and enforce its rights either by
suit in equity and/or by action at law, including but not limited to an
action for damages as a result of any such default, and/or an action for
specific performance for any default where Warrantholder will not have an
adequate remedy at law and where damages will not be readily ascertainable.
(g) No Impairment of Rights. The Company will not, by amendment of
its Charter or through any other means, avoid or seek to avoid the observance
or performance for any default of the material terms of this Warrant, but
will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such actions as may be necessary or appropriate in
order to protect the rights of the Warrantholder against impairment.
(h) Survival. The representations, warranties, covenants and
conditions of the respective parties contained herein or made pursuant to
this Warrant Agreement shall survive the execution and delivery of this
Warrant Agreement.
(i) Severability. In the event any one or more of the provisions of
this Warrant Agreement shall for any reason be held invalid, illegal or
unenforceable, the remaining provisions of this Warrant Agreement shall be
unimpaired, and the invalid, illegal or unenforceable provision shall be
replaced by a mutually acceptable valid, legal and enforceable provision,
which comes closest to the intention of the parties underlying the invalid,
illegal or unenforceable provision.
(j) Amendments. Any provision of this Warrant Agreement may be
amended by a written instrument signed by the Company and by the
Warrantholder.
IN WITNESS WHEREOF, the parties hereto have caused this Warrant
Agreement to be executed by its officers thereunto duly authorized as of the
Effective Date.
Company: OMNICELL TECHNOLGOIES, INC.
By: /s/ Xxxx X. Xxx
---------------------------------
Title: CFO
---------------------------------
Warrantholder: COMDISCO, INC.
By: /s/ Xxxxx X. Xxxx
---------------------------------
Title: President
---------------------------------
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EXHIBIT I
NOTICE OF EXERCISE
To: ______________________________
(1) The undersigned Warrantholder hereby elects to purchase ____ shares of
the Series H Preferred Stock of ___________________, pursuant to the
terms of the Warrant Agreement dated the ___ day of _______________,
19__ (the "Warrant Agreement") between ______________________________
and the Warrantholder, and tenders herewith payment of the purchase
price for _____ shares in full, together with all applicable transfer
taxes, if any and/or ___ hereby elects to convert _____ percent (___%)
of the value of the Warrant pursuant to the provisions of Section 3 of
the Warrant Agreement.
(2) In exercising its rights to purchase the Series H Preferred Stock of
____________________________________, the undersigned hereby confirms
and acknowledges the investment representations and warranties made in
Section 10 of the Warrant Agreement.
(3) Please issue a certificate or certificates representing said shares of
Series H Preferred Stock in the name of the undersigned or in such other
name as is specified below.
________________________________
(Name)
________________________________
(Address)
Warrantholder: COMDISCO, INC.
By: ____________________________
Title: _________________________
Date: __________________________
9
EXHIBIT II
TRANSFER NOTICE
(To transfer or assign the foregoing Warrant Agreement execute this form and
supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant Agreement and all rights
evidenced thereby are hereby transferred and assigned to
___________________________________________________
(Please Print)
whose address is __________________________________
___________________________________________________
Dated ________________________________________
Holder's Signature ___________________________
Holder's Address______________________________
______________________________________________
Signature Guaranteed: _____________________________
NOTE: The signature to this Transfer Notice must correspond with the name as it
appears on the face of the Warrant Agreement, without alteration or enlargement
or any change whatever. Officers of corporations and those acting in a
fiduciary or other representative capacity should file proper evidence of
authority to assign the foregoing Warrant Agreement.
10
EXHIBIT III
ACKNOWLEDGEMENT OF EXERCISE
The undersigned _____________________________________, hereby acknowledge
receipt of the "Notice of Exercise" from Comdisco, Inc., to purchase _____
shares of the Series H Preferred Stock of ________________________, pursuant
to the terms of the Warrant Agreement, and further acknowledges that _____
shares remain subject to purchase under the terms of the Warrant Agreement.
Company:
By: _________________________________
Title: ______________________________
Date: _______________________________
11
