EXHIBIT 4.4
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
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.
WARRANT AGREEMENT
To Purchase Shares of the Series F Preferred Stock of
OmniCell Technologies, Inc.
Dated as of January 23, 1995
WHEREAS, OmniCell Technologies, Inc., a California corporation (the
"Company") has entered into a Master Lease Agreement dated as of September 30,
1993, Equipment Schedule No. VL-2, and related Summary Equipment Schedules (the
"Leases") with COMDISCO, INC., a Delaware corporation (the "Warrantholder"); and
WHEREAS, the Company desires to grant to Warrantholder, in consideration
for such Leases, the right to purchase shares of its Series F Preferred Stock;
NOW, THEREFORE, in consideration of the Warrantholder executing and
delivering such Leases and in consideration of mutual covenants and agreements
contained herein, the Company and Warrantholder certify and agree as follows:
1. GRANT OF THE RIGHT TO PURCHASE PREFERRED STOCK.
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For value received, 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 for and purchase, from the Company 8,130
fully paid and non-assessable shares of the Company's Series F Preferred Stock
("Preferred Stock"). The exercise price ("Exercise Price") shall be equal to
$6.15 per share. The number and purchase price of such shares are subject to
adjustment as provided in Section 8 hereof.
2. TERM OF THE WARRANT AGREEMENT.
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Except as otherwise provided for herein, the term of this Warrant Agreement
and the right to purchase Preferred Stock as granted herein shall commence on
the date of execution hereof and shall be exercisable for a period of (i) seven
(7) years after the date of execution hereof, or (ii) three (3) years from the
effective date of the Company's initial public offering (the "IPO") whichever is
longer.
Notwithstanding the term of this Warrant Agreement fixed pursuant to
Section 2 hereof, the right to purchase Preferred Stock as granted herein shall
expire, if not previously exercised
1.
immediately upon the closing of 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 or
outstanding stock to any other person (the "Merger"), provided in which
Warrantholder realizes a value, for its shares equal to or greater than $6.40
per share.
The Company shall notify the Warrantholder if the Merger is proposed in
accordance with the terms of Subsection 8(g) hereof, and if the Company fails to
deliver such notice, then notwithstanding anything to the contrary in this
Warrant Agreement, the rights to purchase the Company's Preferred Stock shall
not expire until the Company complies with such notice provisions. Such notice
shall also contain such details of the proposed Merger as are reasonable in
circumstances. If such closing does not take place, the Company shall promptly
notify the Warrantholder that such proposed transaction has been terminated, and
the Warrantholder may rescind any exercise of its purchase rights promptly after
such notice of termination of the proposed transaction. In the event of such
rescission, the Warrants will continue to be exercisable on the same terms and
conditions contained herein.
3. EXERCISE OF THE PURCHASE RIGHTS.
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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. Upon
receipt of the Notice of Exercise and the payment of the purchase price in
accordance with the terms set forth below, 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.
Notwithstanding anything to the contrary contained in Section 2 above or
this Section 3, the Warrantholder shall either (i) exercise all outstanding
warrants by paying to the Company, by cash or check, an amount equal to the
aggregate Warrant Price of the shares being purchased, or (ii) receive shares
equal to the value (as determined below) of this Warrant by surrender of the
Warrant at the principal office of the Company together with notice of such
election in which event the Company shall issue to the Warrantholder a number of
shares of Preferred computed using the following formula:
X = Y(A-B)
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A
Where: X = The number of shares of Preferred to be issued to the
Warrantholder.
Y = The number of shares of Preferred under this Warrant.
A = The fair market value of one share of Common.
B = The Exercise Price.
2.
As used herein, current fair market value of Common Stock shall mean with
respect to each share of Common Stock the average of the closing prices of the
Company's Common Stock sold on all securities exchanges on which the Common
Stock may at the time be listed, or, if there have been no sales on any such
exchange on any day, the average of the highest bid and lowest asked prices on
all such exchanges at the end of such day, or, if on any day the Common Stock is
not so listed, the average of the representative bid and asked prices quoted in
the NASDAQ System as of 4:00 p.m., New York City time, or, if on any day the
Common Stock is not quoted in the NASDAQ System, the average of the highest bid
and lowest asked price on such day in the domestic over-the-counter market as
reported by the National Quotation Bureau, Incorporated, or any similar
successor organization, in each such case averaged over a period of 21 days
consisting of the day as of which the current fair market value of Common Stock
is being determined and the 20 consecutive business days prior to such day. 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 highest price per share which the Company
could obtain from a willing buyer (not a current employee or director) for
shares of Preferred Stock sold by the Company, from authorized but unissued
shares, as determined in good faith by the Board of Directors of the Company,
unless (i) the Company shall become subject to a merger, acquisition or other
consolidation pursuant to which the Company is not the surviving party, in which
case the current fair market value of the Stock shall be deemed to be the value
received by the holders of the Company's Stock for each share of Stock pursuant
to the Company's acquisition; or (ii) the Warrantholder shall purchase such
shares in conjunction with the initial underwritten public offering of the
Company's Common Stock pursuant to a registration statement filed under the
Securities Act of 1933, in which case, the fair market value of the shares of
stock subject to this Warrant shall be the price at which all registered shares
are sold to the public in such offering.
4. RESERVATION OF SHARES.
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(a) Authorization and Reservation of Shares. During the term of this
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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
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be reserved for purposes of exercise of the Warrant Agreement hereunder require
registration with or approval of any governmental authority under any Federal or
State law (other than any registration under the Securities Act of 1933, 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.
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No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of the Warrantholder's rights to purchase Preferred
Stock, but in lieu of such fractional
3.
shares the Company shall make a cash payment therefor upon the basis of the
Exercise Price then in effect.
6. NO RIGHTS AS SHAREHOLDERS.
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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 Warrantholder's rights to purchase Preferred Stock as provided for herein.
7. WARRANTHOLDER REGISTRY.
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The Company shall maintain a registry showing the name and address of the
registered holder of this Warrant Agreement.
8. ADJUSTMENT RIGHTS.
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The purchase price per share, the number of shares of Preferred Stock
purchasable hereunder are subject to adjustment from time to time, as follows:
(a) Merger and Sale of Assets. If at any time there shall be a capital
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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, (other than a Merger) then, as a part of such reorganization, merger,
consolidation or sale, lawful provision shall be made so that the Warrantholder
shall thereafter be entitled to receive upon exercise of its rights to purchase
Preferred Stock, the number of shares of Preferred Stock or other securities of
the successor corporation resulting from such merger or consolidation, to which
a holder of the Preferred Stock deliverable upon exercise of the right to
purchase Preferred Stock hereunder would have been entitled in such capital
reorganization, merger, consolidation or sale if the right to purchase such
Preferred Stock hereunder had been exercised immediately prior to such capital
reorganization, merger, consolidation or sale. 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
reorganization, merger, consolidation or sale to the end that the provisions of
this Warrant Agreement (including adjustments of the Exercise Price and number
of shares of Preferred Stock purchasable pursuant to the terms and conditions of
this Warrant Agreement) shall be applicable after that event, as near as
reasonably may be, in relation to any shares deliverable after that event upon
the exercise of the Warrantholder's rights to purchase Preferred Stock pursuant
to this Warrant Agreement.
(b) Reclassification of Shares. If the Company at any time shall, by
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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
4.
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
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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) Right to Purchase Additional Stock. If, for any reason, the total
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Warrantholder's cost of equipment leased pursuant to the Leases should exceed
$500,000.00, Warrantholder shall have the right to purchase from the Company, at
the Exercise Price per share specified in Section 1 (which price may be subject
to adjustment from time to time as provided for in this Section 8), an
additional number of shares of Series F Preferred Stock, which number shall be
determined by (i) multiplying the amount by which the Warrantholder's total
equipment cost exceeds $500,000.00 by 10%, and (ii) dividing the product thereof
by the Exercise Price per share referenced above.
(e) Notice of Adiustments. In the event that: (i) the Company shall declare
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any dividend or distribution upon its stock, whether in cash, property, stock or
other securities; (ii) the Company shall offer for subscription prorata to the
holders of any class of its Preferred or other convertible stock any additional
shares of stock of any class or other rights; (iii) there shall be any capital
reorganization, reclassification, consolidation, merger or sale of all or
substantially all of the Company's assets; or (iv) 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:
(i) At least 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 capital reorganization, reclassification, consolidation, merger
or sale of all or substantially all of the Company's assets, dissolution,
liquidation or winding up; and
(ii) In the case, upon any such capital reorganization,
reclassification, consolidation, merger or sale of all or substantially all
of the Company's assets, dissolution, liquidation or winding up, at least
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 capital reorganization, reclassification,
consolidation, merger or sale of all or substantially all of the Company's
assets, dissolution, liquidation or winding up).
Each such written notice shall set forth, 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, 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.
5.
(f) Registration and Listing. The Company will take all such actions as may
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be necessary to assure that all shares of Preferred Stock issuable pursuant to
this Warrant Agreement may be so issued without violation of any applicable law
or regulation or any requirements of any domestic stock exchange (except for
official notice of issuance, which will be immediately transmitted by the
Company upon issuance) upon which shares of Preferred Stock or other shares of
the same class may be listed. The Company will not take any action which will
result in any adjustment of the number of shares of Preferred Stock issuable
upon exercise of this Warrant Agreement if the total number of shares of
Preferred Stock issuable after such action upon exercise of the Warrant
Agreement then outstanding, together with the total number of shares of
Preferred Stock then outstanding, would exceed the total number of shares of
Preferred Stock then authorized and not reserved for any purpose other than the
purpose of issue upon exercise of the Warrant Agreement.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
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(a) Reservation of Preferred Stock. The Preferred Stock issuable upon
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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 Articles of Incorporation. 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; provided that 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. The Company will not close its books against the transfer of
the Warrant Agreement or of any share of Preferred Stock issued or issuable upon
exercise of the Warrant and any agreement in any manner which interferes with
the timely exercise of the Warrant.
(b) Due Authority. The execution and delivery by the Company of the Leases,
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and this Warrant Agreement and the performance of all obligations of the Company
thereunder and hereunder, including the issuance to Warrantholder of the right
to acquire the shares of Preferred Stock set forth in Section 1 above (which
number of shares may be from time to time adjusted pursuant to the terms of
Section 8 above) have been duly authorized by all necessary corporate action on
the part of the Company, and the Leases and this Warrant Agreement are not
inconsistent with the Company's Certificate of Incorporation or By-Laws, 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 Leases 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.
6.
(c) Consents and Approvals. No consent or approval of, giving of notice to,
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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 Securities Exchange Act of 1933, as amended, (the "1933 Act") and
Section 25102(f) of the California Corporate Securities Law, which filings will
be effective by the time required thereby.
(d) Litigation. There are no actions, suits, audits, investigations or
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proceedings pending or, to the knowledge of the Company, threatened against or
affecting the Company in any court or before any governmental commission, board
or authority which, if adversely determined, will have a material adverse effect
on the ability of the Company to perform its obligations under the Leases and
this Warrant Agreement.
(e) Subsidiaries or Affiliates. The Company has no subsidiaries or
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affiliated companies and does not otherwise own or control, directly or
indirectly, any other corporation, association or business entity.
(f) Issued Securities. All issued and outstanding shares of Common Stock,
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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) 20,000,000
shares of Common Stock, of which 1,592,924 shares are issued and
outstanding, and (b) 7,000,000 shares of Preferred Stock of which 240,000
are designated Series A Preferred Stock, 160,333 are designated Series B
Preferred Stock, 850,000 are designated Series C Preferred Stock, 664,000
are designated Series D Preferred Stock, 983,000 are designated Series E
Preferred Stock and 2,000,000 are designated Series F Preferred Stock.
240,000 shares of Series A Preferred Stock are issued and outstanding and
convertible into 480,000 shares of Common Stock, 160,333 shares of Series B
Preferred Stock are issued and outstanding and convertible into 320,666
shares of Common Stock. 850,000 shares of Series C Preferred Stock are
issued and outstanding and convertible into 1,700,000 shares of Common
Stock. 654,742 shares of Series D Preferred are issued and outstanding and
convertible into 1,309,484 shares of Common Stock. 982,631 shares of Series
E Preferred Stock are issued and outstanding and convertible into 1,965,262
shares of Common Stock. 1,948,090 shares of Series F Preferred Stock are
issued and outstanding and convertible into 1,948,090 shares of Common
Stock.
(ii) There are 2,610,000 shares of Common Stock authorized for
issuance pursuant to the Company's Incentive Stock Plan of which 1,929,410
shares have been issued.
(iii) The Company has issued Comdiso, Inc. warrants exercisable for up
to 9,217 shares of Series D Preferred Stock.
7.
(iv) The Company is planning to increase the authorized number of
shares of Series F Preferred Stock by 1,000,0000 shares to a new total of
3,000,000 shares.
In addition, the Company is planning to split the outstanding shares of
Series A Series B, Series C, Series D, and Series E Preferred Stock on a
two-for-one basis in order to match the prior two-for-one split the Common
Stock with a corresponding adjustment in the liquidation preference,
dividend rate, and conversion rate of such shares. Because such shares are
each presently convertible into two shares of Common Stock such action will
not affect the capitalization of the Company or the rights of such
shareholders.
(v) There are no other options, warrants, conversion privileges or
other options 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.
(vi) In accordance with the Company's Restated Articles of
Incorporation, no shareholder of the Company has preemptive rights to
purchase new issuances of the Company's capital stock.
(g) Financial Statements. The Company has delivered to the Warrantholder
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its unaudited Consolidated Balance Sheet and Consolidated Statement of Income
for the period ending November 30, 1994 (the "Financial Statements"). The
Financial Statements are complete and correct in all material respects and have
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods indicated. The condition
and operating results of the Company as of the dates and during the periods
indicated therein are true and correct in all material aspects, subject as to
the Consolidated Balance Sheet and Consolidated Statement of Income for the
period then ending November 30, 1994 to normal year-end audit adjustments. Since
November 30, 1994 there has been no change in the assets, liabilities, financial
condition or operations of the Company from that reflected in the Financial
Statements other than changes in the ordinary course of business which have not
been, individually or in the aggregate, materially adverse.
The Company shall deliver to the Warrantholder (i) within one hundred
twenty (120) days after the end of the Company's fiscal year, statements of
income for such fiscal year, a consolidated balance sheet of the Company as of
the end of such year and consolidated statement of the sources and application
of funds for such year, which year-end financial reports shall be in reasonable
detail and certified by independent public accountants of nationally recognized
standing selected by the Company, and (ii) within forty-five (45) days after the
end of each fiscal quarter other than the last fiscal quarter, unaudited
consolidated statements of income and sources and application of funds for such
quarter and a consolidated balance sheet as of the end of such quarter.
(h) Contingent and Absolute Liabilities. The Company has no material
-----------------------------------
liabilities or obligations, absolute or contingent except the liabilities and
obligations of the Company as set forth-in the Financial Statements and
liabilities and obligations which have occurred in the ordinary course of
business, and which have not been materially adverse.
8.
(i) Licenses, Patents and Copyrights. To the best of the Company's
--------------------------------
knowledge, the Company owns, possesses, has access to, or can become licensed on
reasonable terms under, all patents, patent applications, trademarks, trade
names, inventions, franchises, licenses, permits, computer software and
copyrights necessary for the operation of its business as now conducted, with no
known infringement of, or conflict with, the rights of others.
(j) Employee Contracts. To the best of the Company's knowledge, no employee
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of the Company is in violation of any material term of any employment contract,
patent disclosure agreement or any other contract or agreement relating to the
relationship of any such employee with the Company or any prior employer because
of the nature of the business conducted by the Company.
(k) Insurance. The Company has in full force and effect insurance policies,
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with extended coverage, insuring the Company and its property and business
against such losses and risks, and in such amounts, as are customary
corporations engaged in a similar business and similarly [_____] and as
otherwise may be required pursuant to the terms of any other contract or
agreement.
(l) Other Commitments to Register Securities. Except as set forth in this
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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 or any of its securities
which may hereafter be issued other than the shares of the outstanding Preferred
Stock of the Company.
(m) Exempt Transaction. Subject to the accuracy of the Warrantholder's
------------------
representations in Section 10 hereof, the issuance of the Preferred Stock upon
exercise of the Warrantholder's right to purchase such Preferred Stock will
constitute transactions 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 California Corporate Securities Law, in
reliance upon Section 25102(f) thereof.
(n) 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 under the 1933 Act, the Company shall furnish to the Warrantholder,
within ten days 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, than applicable to the Company,
as such Rule may be amended from time to time.
(o) Brokers' Fees. The Company has not incurred, and will not incur,
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directly or indirectly, any liability for brokerage or finders' fees or agents'
commissions or any similar charges in connection with the Warrant Agreement or
any other transaction contemplated thereby.
(p) Untrue, Misleading Statements. No representation or warranty of the
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Company contained in the Leases, and this Warrant Agreement or any certificate
or exhibit furnished or to be furnished to Warrantholder pursuant thereto or in
connection with the transactions
9.
contemplated thereby (when read together) contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained therein not misleading.
10. REPRESENTATIONS AND COVENANTS OF THE WARRANTHOLDER.
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This Warrant Agreement has been entered into by the Company in reliance
upon the following representations and covenants of the Warrantholder, which by
its execution hereof the Warrantholder hereby confirms:
(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 except pursuant to
a registration or exemption.
(b) Private Issue. The Warrantholder understands (i) that the Preferred
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Stock issuable upon exercise of the Warrantholder's rights contained herein is
not registered under the 1933 Act or qualified under applicable state securities
laws on the ground that the issuance contemplated by this Warrant Agreement will
be exempt from the registration and qualifications requirements thereof, and
(ii) that the Company's reliance on such exemption is predicated on the
representations set forth in this Section 10.
(c) Disposition of Warrantholder's Rights. In no event will the
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Warrantholder make disposition of any of its rights to acquire Preferred Stock
or Preferred Stock issuable upon exercise of such rights 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 (which counsel may either be inside or outside counsel to the
Warrantholder) 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 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 to
which such restrictions have terminated shall be entitled to receive from the
Company, without expense
10.
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
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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
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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, it may be required to hold such securities for an indefinite period.
The Warrantholder also understands that any sale of its rights of the
Warrantholder to purchase Preferred Stock or Preferred Stock 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.
11. TRANSFERS.
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Subject to 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, that 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) Attorneys' 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
California.
(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.
11.
(e) Titles and Subtitles. The titles of the paragraphs and subparagraphs of
--------------------
this Warrant Agreement are for convenience and are not to be considered in
construing this Agreement.
(f) Notices. Any notice required or permitted hereunder shall be given in
-------
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States mail, by registered or certified mail, addressed
(i) to the Warrantholder at 0000 Xxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000,
attention: Xxxxx Xxxx, President, Venture Leasing Division, cc: Legal
Department, and (ii) to the Company at 0000 Xxxxxxxx Xxxxx, Xxxxx Xxxx,
Xxxxxxxxxx 00000 or at such other address as any such party may subsequently
designate by written notice to the other party.
(g) Specific Performance. The Company recognizes and agrees that the
--------------------
Warrantholder will not have an adequate remedy if the Company fails to comply
with this Agreement and that damages will not be readily ascertainable, and the
Company expressly agrees that, in the event of such failure, it shall not oppose
an application by the Warrantholder or any other person entitled to the benefit
of this Agreement requiring specific performance of any or all provisions hereof
or enjoining the Company from continuing to commit any such breach of this
Agreement.
(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.
(k) Additional Documents. The Company, upon execution of this Warrant
--------------------
Agreement, shall provide the Warrantholder with certified resolutions with
respect to the representations, warranties and covenants set forth in
subparagraphs (a) through (f) and subparagraphs (l), (m) and (o) of Section 9
above and shall also supply such other documents as the Warrantholder may from
time to time reasonably request.
12.
IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement
to be executed by its officers thereunto duly authorized.
Company:
OMNICELL TECHNOLOGIES, INC.
Dated February 16, 1995 By: /s/ Xxxxxxx X. Xxxxx
--------------------------- -------------------------------------
Title: Chairman
----------------------------------
Warrantholder:
COMDISCO, INC.
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Title: President
----------------------------------
13.
EXHIBIT I
NOTICE OF EXERCISE
To:______________________
(1) The undersigned Warrantholder hereby elects to purchase _____ shares
of the Preferred Stock of OMNICELL TECHNOLOGIES, INC., pursuant to the
terms of the Warrant Agreement dated the 1st day of September 1993
(the "Warrant Agreement") between OMNICELL TECHNOLOGIES, INC., and the
Warrantholder, and tenders herewith payment of the purchase price for
such shares in full, together with all applicable transfer taxes, if
any.
(2) In exercising its rights to purchase the Preferred Stock of OMNICELL
TECHNOLOGIES, INC., 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
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:______________________________
14.
ACKNOWLEDGEMENT OF EXERCISE
The undersigned ____________________________, hereby acknowledge receipt of
the "Notice of Exercise" from COMDISCO, INC., to purchase _____ shares of the
Preferred Stock of OMNICELL TECHNOLOGIES, INC., 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:______________________________
15.
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 here by 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.
16.
