Exhibit 4.5
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF
ANY STATE AND, EXCEPT AND PURSUANT TO THE PROVISIONS OF ARTICLE 5 BELOW, MAY NOT
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND
UNTIL REGISTERED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAW OR, IN THE
OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF
THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS
EXEMPT FROM REGISTRATION.
WARRANT TO PURCHASE STOCK
Company: Picis, Inc., a Delaware corporation
Number of Shares: 30,000, subject to adjustment
Class of Stock: Common Stock, $0.01 par value per share
Warrant Price: $4.25, subject to adjustment
Issue Date: June 30, 2006
Expiration Date: June 30, 2013
Credit Facility: This Warrant is issued in connection with that certain Fourth
Loan Modification Agreement, of even date herewith, to that
certain Amended and Restated Loan and Security Agreement
dated as of July 28, 2004, among Silicon Valley Bank, the
Company, Picis US, Inc. (f/k/a Medical Systems Management,
Inc.), Picis (Wisconsin), Inc. and Ibex Healthdata Systems,
Inc.
THIS WARRANT CERTIFIES THAT, for good and valuable consideration, SILICON
VALLEY BANK (Silicon Valley Bank, together with any successor or permitted
assignee or transferee of this Warrant or of any shares issued upon exercise
hereof, is referred to hereinafter as "Holder") is entitled to purchase the
number of fully paid and nonassessable shares (the "Shares") of the class of
securities (the "Class") of the above-named company (the "Company") at the
above-stated Warrant Price, all as set forth above and as adjusted pursuant to
Article 2 of this Warrant, subject to the provisions and upon the terms and
conditions set forth in this Warrant.
ARTICLE 1 EXERCISE.
1.1 METHOD OF EXERCISE. Holder may exercise this Warrant by delivering the
original of this Warrant together with a duly executed Notice of Exercise in
substantially the form attached as Appendix 1 to the principal office of the
Company. Unless Holder is exercising the conversion right set forth in Article
1.2, Holder shall also deliver to the Company a check, wire
transfer (to an account designated by the Company), or other form of payment
acceptable to the Company for the aggregate Warrant Price for the Shares being
purchased.
1.2 CONVERSION RIGHT. In lieu of exercising this Warrant as specified in
Article 1.1, Holder may from time to time convert this Warrant, in whole or in
part, into a number of Shares determined by dividing (a) the aggregate fair
market value of the Shares or other securities otherwise issuable upon such
exercise of this Warrant minus the aggregate Warrant Price of such Shares by (b)
the fair market value of one Share. The fair market value of the Shares shall be
determined pursuant to Article 1.3.
1.3 FAIR MARKET VALUE. If the Company's common stock is traded in a public
market and the Shares are common stock, the fair market value of a Share shall
be the closing price of a share of common stock reported for the business day
immediately before Holder delivers this Warrant together with its Notice of
Exercise to the Company (or in the instance where the Warrant is exercised
immediately prior to the effectiveness of the Company's initial public offering
("IPO"), the "price to public" per share price specified in the final prospectus
relating to such offering). If the Company's common stock is not traded in a
public market, the Board of Directors of the Company shall determine fair market
value in its good faith judgment.
1.4 DELIVERY OF CERTIFICATE AND NEW WARRANT. Promptly after Holder
exercises or converts this Warrant and, if applicable, the Company receives
payment of the aggregate Warrant Price, the Company shall deliver to Holder
certificates for the Shares acquired and, if this Warrant has not been fully
exercised or converted and has not expired, a new Warrant representing the
Shares not so acquired.
1.5 REPLACEMENT OF WARRANTS. On receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant
and, in the case of loss, theft or destruction, on delivery of an indemnity
agreement reasonably satisfactory in form and amount to the Company or, in the
case of mutilation, or surrender and cancellation of this Warrant, the Company
shall execute and deliver, in lieu of this Warrant, a new warrant of like tenor.
1.6 TREATMENT OF WARRANT UPON ACQUISITION OF COMPANY.
1.6.1 "ACQUISITION". For the purpose of this Warrant, "Acquisition"
means any sale, exclusive license, or other disposition of all or substantially
all of the assets of the Company, or any reorganization, consolidation, merger
or sale of outstanding capital stock of the Company where the holders of the
Company's securities before the transaction beneficially own less than a
majority of the outstanding voting securities of the surviving entity after the
transaction, except for changes of ownership arising from additional equity
financing rounds for capital raising purposes.
1.6.2 TREATMENT OF WARRANT AT ACQUISITION. Upon the closing of any
Acquisition (other than an Acquisition in which the consideration received by
the Company's stockholders consists solely of cash and/or cash equivalents), and
as a condition precedent thereto, the successor or surviving entity shall assume
the obligations of this Warrant, and this Warrant shall be exercisable for the
same securities and property as would be payable for the
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Shares issuable upon exercise of the unexercised portion of this Warrant as if
such Shares were outstanding on the record date for the Acquisition and
subsequent closing. The Warrant Price shall be adjusted accordingly, and the
Warrant Price and number and class of Shares shall continue to be subject to
adjustment from time to time in accordance with the provisions hereof. Upon the
closing of any Acquisition in which the consideration received by the Company's
stockholders consists solely of cash and/or cash equivalents, then, to the
extent not exercised or converted on or before the closing of such Acquisition,
this Warrant shall terminate and be of no further force or effect.
ARTICLE 2 ADJUSTMENTS TO THE SHARES.
2.1 STOCK DIVIDENDS, SPLITS, ETC. If the Company declares or pays a
dividend on the outstanding shares of the Class payable in common stock or other
securities, then upon exercise of this Warrant, for each Share acquired, Holder
shall receive, without cost to Holder, the total number and kind of securities
to which Holder would have been entitled had Holder owned the Shares of record
as of the date the dividend occurred. If the Company subdivides the outstanding
shares of the Class by reclassification or otherwise into a greater number of
shares or takes any other action which increase the amount of common stock into
which the one share of the Class is convertible, the number of Shares
purchasable hereunder shall be proportionately increased and the Warrant Price
shall be proportionately decreased. If the outstanding shares of the Class are
combined or consolidated, by reclassification or otherwise, into a lesser number
of shares, the Warrant Price shall be proportionately increased and the number
of Shares shall be proportionately decreased.
2.2 RECLASSIFICATION, EXCHANGE, COMBINATIONS OR SUBSTITUTION. Upon any
reclassification, exchange, substitution, or other event that results in a
change of the number and/or class of the securities issuable upon exercise or
conversion of this Warrant, Holder shall be entitled to receive, upon exercise
or conversion of this Warrant, the number and kind of securities and property
that Holder would have received for the Shares if this Warrant had been
exercised immediately before such reclassification, exchange, substitution, or
other event. The Company or its successor shall promptly issue to Holder an
amendment to this Warrant setting forth the number and kind of such new
securities or other property issuable upon exercise or conversion of this
Warrant as a result of such reclassification, exchange, substitution or other
event that results in a change of the number and/or class of securities issuable
upon exercise or conversion of this Warrant. The amendment to this Warrant shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article 2 including, without
limitation, adjustments to the Warrant Price and to the number of securities or
property issuable upon exercise of the new Warrant. The provisions of this
Article 2.2 shall similarly apply to successive reclassifications, exchanges,
substitutions, or other events.
2.3 [RESERVED]
2.4 NO IMPAIRMENT. The Company shall not, by amendment of its Certificate
of Incorporation or through a reorganization, transfer of assets, consolidation,
merger, dissolution, issue, or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed under this Warrant by the
3
Company, but shall at all times in good faith assist in carrying out of all the
provisions of this Article 2 and in taking all such action as may be necessary
or appropriate to protect Holder's rights under this Article against impairment.
2.5 FRACTIONAL SHARES. No fractional Shares shall be issuable upon exercise
or conversion of the Warrant and the number of Shares to be issued shall be
rounded down to the nearest whole Share. If a fractional share interest arises
upon any exercise or conversion of the Warrant, the Company shall eliminate such
fractional share interest by paying Holder the amount computed by multiplying
the fractional interest by the fair market value of a full Share.
2.6 CERTIFICATE AS TO ADJUSTMENTS. Upon each adjustment of the Warrant
Price, the Company shall promptly notify Holder in writing, and, at the
Company's expense, promptly compute such adjustment, and furnish Holder with a
certificate of its Chief Financial Officer setting forth such adjustment and the
facts upon which such adjustment is based. The Company shall, upon written
request, furnish Holder a certificate setting forth the Warrant Price in effect
upon the date thereof and the series of adjustments leading to such Warrant
Price.
ARTICLE 3 REPRESENTATIONS AND COVENANTS OF THE COMPANY.
3.1 REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to,
and agrees with, the Holder as follows:
(a) The initial Warrant Price referenced on the first page
of this Warrant is not greater than the fair market value of a share
of the Company's common stock as most recently determined by the
Company's Board of Directors.
(b) All Shares which may be issued upon the exercise of the
purchase right represented by this Warrant, and all securities, if
any, issuable upon conversion of the Shares, shall, upon issuance, be
duly authorized, validly issued, fully paid and nonassessable, and
free of any liens and encumbrances except for restrictions on transfer
provided for herein or under applicable federal and state securities
laws.
(c) The Company's summary capitalization table attached
hereto as SCHEDULE 1, is true and complete as of the Issue Date.
3.2 NOTICE OF CERTAIN EVENTS. If the Company proposes at any time (a) to
declare any dividend or distribution upon the outstanding shares of the same
class and series as the Shares, whether in cash, property, stock, or other
securities and whether or not a regular cash dividend; (b) to offer for
subscription or sale pro rata to the holders of the outstanding shares of the
same class and series as the Shares any additional shares of any class or series
of the Company's stock; (c) to effect any reclassification, reorganization or
recapitalization of any of its stock; (d) to effect an Acquisition or to
liquidate, dissolve or wind up; or (e) offer holders of registration rights the
opportunity to participate in an underwritten public offering of the company's
securities for cash, then, in connection with each such event, the Company shall
give Holder: (1) at least 10 days prior written notice of the date on which a
record will be taken for such dividend, distribution, or subscription rights
(and specifying the date on which the holders of shares of the
4
same class and series as the Shares will be entitled thereto) or for determining
rights to vote, if any, in respect of the matters referred to in (c) and (d)
above; (2) in the case of the matters referred to in (c) and (d) above at least
10 days prior written notice of the date when the same will take place (and
specifying the date on which the holders of shares of the same class and series
as the Shares will be entitled to exchange their shares for the securities or
other property deliverable upon the occurrence of such event); and (3) in the
case of the matter referred to in (e) above, the same notice as is given to the
holders of such registration rights.
3.3 REGISTRATION UNDER SECURITIES ACT OF 1933, AS AMENDED. The Company
agrees that the Shares issued and issuable upon exercise or conversion hereof
shall have certain incidental, or "Piggyback," and S-3 registration rights
pursuant to and as set forth in Article VIII (other than Section 8.1 thereunder)
of that certain Stockholders Agreement dated as of July 14, 2005 among the
Company and the stockholders of the Company named therein, as amended (the
"Stockholders Agreement). Upon any exercise or conversion of this Warrant,
Holder agrees to execute a counterpart signature page to, and become a party to,
the Stockholders Agreement as a Stockholder (as defined therein) thereunder for
purposes of said Article VIII (excluding Section 8.1 thereunder) and Articles X
- XIV thereof. The foregoing referenced provisions of the Stockholders Agreement
in effect as of the Issue Date may not be amended, modified or waived without
the prior written consent of Holder unless such amendment, modification or
waiver affects the rights associated with the Shares in the same manner as such
amendment, modification, or waiver affects the rights associated with all other
shares of the same series and class as the Shares granted to the Holder.
3.4 NO SHAREHOLDER RIGHTS. Except as provided in this Warrant, Holder will
not have any rights as a shareholder of the Company until the exercise of this
Warrant.
3.5 CERTAIN INFORMATION. Upon the reasonable request of Holder from time to
time prior the Expiration Date, the Company agrees to provide Holder with such
information as is necessary for Holder to comply with regulatory, accounting and
reporting requirements applicable to Holder.
ARTICLE 4 REPRESENTATIONS, WARRANTIES OF THE HOLDER.
The Holder represents and warrants to the Company as follows:
4.1 PURCHASE FOR OWN ACCOUNT This Warrant and the securities to be acquired
upon exercise of this Warrant by Holder will be acquired for investment for
Holder's account, not as a nominee or agent, and not with a view to the public
resale or distribution within the meaning of the Act. Holder also represents
that it has not been formed for the specific purpose of acquiring this Warrant
or the Shares.
4.2 DISCLOSURE OF INFORMATION. Holder has received or has had full access
to all the information it considers necessary or appropriate to make an informed
investment decision with respect to the acquisition of this Warrant and its
underlying securities. Holder further has had an opportunity to ask questions
and receive answers from the Company regarding the terms and conditions of the
offering of this Warrant and its underlying securities and to obtain additional
information (to the extent the Company possessed such information or could
acquire it without
5
unreasonable effort or expense) necessary to verify any information furnished to
Holder or to which Holder has access.
4.3 INVESTMENT EXPERIENCE. Holder understands that the purchase of this
Warrant and its underlying securities involves substantial risk. Holder has
experience as an investor in securities of companies in the development stage
and acknowledges that Holder can bear the economic risk of such Holder's
investment in this Warrant and its underlying securities and has such knowledge
and experience in financial or business matters that Holder is capable of
evaluating the merits and risks of its investment in this Warrant and its
underlying securities and/or has a preexisting personal or business relationship
with the Company and certain of its officers, directors or controlling persons
of a nature and duration that enables Holder to be aware of the character,
business acumen and financial circumstances of such persons.
4.4 ACCREDITED INVESTOR STATUS. Holder is an "accredited investor" within
the meaning of Regulation D promulgated under the Act.
4.5 THE ACT. Holder understands that this Warrant and the Shares issuable
upon exercise or conversion hereof have not been registered under the Act in
reliance upon a specific exemption therefrom, which exemption depends upon,
among other things, the bona fide nature of the Holder's investment intent as
expressed herein. Holder understands that this Warrant and the Shares issued
upon any exercise or conversion hereof must be held indefinitely unless
subsequently registered under the Act and qualified under applicable state
securities laws, or unless exemption from such registration and qualification
are otherwise available.
ARTICLE 5 MISCELLANEOUS.
5.1 TERM. This Warrant is exercisable in whole or in part at any time and
from time to time on or before the Expiration Date.
5.2 LEGENDS. This Warrant and the Shares shall be imprinted with a legend
in substantially the following form:
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN
REGISTERED UNDER THE ACT, OR THE SECURITIES LAWS OF ANY STATE AND,
EXCEPT AND PURSUANT TO THE PROVISIONS OF ARTICLE 5 OF THAT CERTAIN
WARRANT TO PURCHASE STOCK ISSUED BY THE COMPANY TO SILICON VALLEY BANK
DATED AS OF JUNE ___, 2006, MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER
SAID ACT AND APPLICABLE STATE SECURITIES LAW OR, IN THE OPINION OF
LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF
THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR
HYPOTHECATION IS EXEMPT FROM REGISTRATION.
5.3 COMPLIANCE WITH SECURITIES LAWS ON TRANSFER. This Warrant and the
Shares issuable upon exercise of this Warrant may not be transferred or assigned
in whole or in part
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without compliance with applicable federal and state securities laws by the
transferor and the transferee (including, without limitation, the delivery of
investment representation letters and legal opinions reasonably satisfactory to
the Company, as reasonably requested by the Company). The Company shall not
require Holder to provide an opinion of counsel if the transfer is to SVB
Financial Group (Holder's parent company) or any other affiliate of Holder,
provided that any such transferee is an "accredited investor" as defined in
Regulation D promulgated under the Act.
5.4 TRANSFER PROCEDURE. After receipt by Silicon Valley Bank ("Bank") of
the executed Warrant, Bank will transfer all of this Warrant to SVB Financial
Group, Holder's parent company, by execution of an Assignment substantially in
the form of Appendix 2. Subject to the provisions of Article 5.3 and upon
providing the Company with written notice, SVB Financial Group and any
subsequent Holder may transfer all or part of this Warrant or the Shares
issuable upon exercise of this Warrant to any transferee, provided, however, in
connection with any such transfer, SVB Financial Group or any subsequent Holder
will give the Company notice of the portion of the Warrant being transferred
with the name, address and taxpayer identification number of the transferee and
Holder will surrender this Warrant to the Company for reissuance to the
transferee(s) (and Holder if applicable). The Company may refuse to transfer
this Warrant or the Shares to any supplier or customer or competitor of the
Company, unless, in any such case, the stock of the Company is publicly traded;
provided, that the foregoing restriction shall not restrict or prohibit Holder
from transferring this Warrant or any Shares to any bank or other financial
institution or private equity fund.
5.5 NOTICES. All notices and other communications from the Company to the
Holder, or vice versa, shall be deemed delivered and effective when given
personally or mailed by first-class registered or certified mail, postage
prepaid, at such address as may have been furnished to the Company or Holder, as
the case may (or on the first business day after transmission by facsimile) be,
in writing by the Company or such holder from time to time. All notices to
Holder shall be addressed as follows until the Company receives notice of a
change of address in connection with a transfer or otherwise:
SVB Financial Group
Attn: Treasury Department
0000 Xxxxxx Xxxxx, XX 000
Xxxxx Xxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Notice to the Company shall be addressed as follows until Holder
receives notice of a change in address:
Picis, Inc.
Attn: Xxxxx Xxxxx, Chief Financial Officer
000 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Telephone: ________________
Facsimile: _________________
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5.6 WAIVER. 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.
5.7 ATTORNEY'S FEES. In the event of any dispute between the parties
concerning the terms and provisions of this Warrant, the party prevailing in
such dispute shall be entitled to collect from the other party all costs
incurred in such dispute, including reasonable attorneys' fees.
5.8 AUTOMATIC CONVERSION UPON EXPIRATION. In the event that, upon the
Expiration Date, the fair market value of one Share (or other security issuable
upon the exercise hereof) as determined in accordance with Section 1.3 above is
greater than the Warrant Price in effect on such date, then this Warrant shall
automatically be deemed on and as of such date to be converted pursuant to
Section 1.2 above as to all Shares (or such other securities) for which it shall
not previously have been exercised or converted, and the Company shall promptly
deliver a certificate representing the Shares (or such other securities) issued
upon such conversion to Holder.
5.9 COUNTERPARTS. This Warrant may be executed in counterparts, all of
which together shall constitute one and the same agreement.
5.10 GOVERNING LAW. This Warrant shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts, without giving
effect to its principles regarding conflicts of law.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
[SIGNATURE PAGE FOLLOWS]
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"COMPANY"
PICIS, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
----------------------------------
(Print)
Title:
---------------------------------
"HOLDER"
SILICON VALLEY BANK
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
----------------------------------
(Print)
Title: Senior Vice President
---------------------------------
APPENDIX 1
NOTICE OF EXERCISE
1. Holder elects to purchase _________ shares of the Common/Series _______
Preferred [strike one] Stock of ______________ pursuant to the terms of the
attached Warrant, and tenders payment of the purchase price of the shares in
full.
[or]
1. Holder elects to convert the attached Warrant into Shares/cash [strike
one] in the manner specified in the Warrant. This conversion is exercised for
__________________ of the Shares covered by the Warrant.
[Strike paragraph that does not apply.]
2. Please issue a certificate or certificates representing the shares in
the name specified below:
___________________________
Holders Name
___________________________
___________________________
(Address)
3. By its execution below and for the benefit of the Company, Holder hereby
restates each of the representations and warranties in Article 4 of the Warrant
as the date hereof.
HOLDER:
----------------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
(Date):
--------------------------------