Exhibit 10.1
OMNICELL, INC.
AMENDED AND RESTATED SEVERANCE BENEFIT PLAN
SECTION 1.
INTRODUCTION.
The Amended and Restated Omnicell, Inc. Severance Benefit Plan (the
“Plan”
) was originally established effective January 3, 2007, was previously amended and restated effective May 2, 2007, June 20, 2009, January 6, 2015, January 20, 2017 and is hereby amended and restated effective March 7, 2017 (the
“Effective Date”
). The purpose of the Plan is to provide for the payment of severance benefits to certain eligible employees of Omnicell, Inc. (the
“Company”
) and Company affiliates, if any, that have been designated by the Company on the attached Appendix A as eligible to participate in the Plan (each such affiliate, an
“Employer”
and all such affiliates collectively, the
“Employers”
) whose employment with the Company or an Employer is involuntarily terminated and who meets the eligibility criteria set forth in Section 2(a) below. This Plan shall supersede any severance benefit plan, policy or practice previously maintained by the Company or any Employer. This Plan document also is the Summary Plan Description for the Plan.
SECTION 2.
ELIGIBILITY FOR BENEFITS.
(a)
General Rules.
Subject to the requirements set forth in this Section, the Company will grant severance benefits under the Plan to Eligible Employees.
(1)
Definition of “Eligible Employee.”
For purposes of this Plan, an Eligible Employee is a full-time regular hire employee of the Company or any Employer, who is notified by the Company in writing that he or she is eligible for participation in the Plan and (i) whose employment is involuntarily terminated by the Company or an Employer without Cause (as defined in Section 2(c) below); or (ii) whose employment is terminated as a result of a reduction-in-force; or (iii) who is selected by the Plan Administrator in its sole discretion to receive the benefits set forth herein. The determination of whether an employee is an Eligible Employee shall be made by the Company, in its sole discretion, and such determination shall be binding and conclusive on all persons. For purposes of this Plan, full-time regular hire employees are those employees who are regularly scheduled to work at least thirty-two (32) hours per week. Regular hire employees who are regularly scheduled to work fewer than thirty-two (32) hours per week and temporary employees are not eligible for severance benefits under the Plan.
(2)
In order to be eligible to receive any benefits under the Plan, an Eligible Employee must remain on the job until his or her date of termination as scheduled by the Company.
(3)
In order to be eligible to receive any benefits under the Plan, an Eligible Employee also must execute a general waiver and release in substantially the form attached hereto as Exhibit A, Exhibit B or Exhibit C, as appropriate, within the applicable time period set forth therein, but in no event more than sixty (60) days following the date of termination, or as may be updated by the Company from time to time, and such release must become effective in accordance with its terms. The Company, in its discretion, may modify the form of the required release to comply with applicable law and shall determine the form of the required release, which may be incorporated into a termination agreement or other agreement with the Eligible Employee.
(b)
Exceptions to Benefit Entitlement.
An employee, including an employee who otherwise is an Eligible Employee, will not receive benefits under the Plan (or will receive reduced benefits under the Plan) in the following circumstances, as determined by the Company in its sole discretion:
(1)
The employee has executed an individually negotiated employment contract or agreement with the Company or an Employer relating to severance benefits that is in effect on his or her termination date,, in which case such employee’s severance benefit, if any, shall be governed by the terms of such individually
negotiated employment contract or agreement and shall be governed by this Plan only to the extent that the reduction pursuant to Section 3(c) below does not entirely eliminate benefits under this Plan.
(2)
The employee voluntarily terminates employment with the Company or an Employer. Voluntary terminations include, but are not limited to, resignation, retirement or failure to return from a leave of absence on the scheduled date.
(3)
The employee voluntarily terminates employment with the Company or an Employer in order to accept employment with another entity that is wholly or partly owned (directly or indirectly) by the Company or an affiliate of the Company.
(4)
The employee is offered an identical or substantially equivalent or comparable position with the Company or an affiliate of the Company. For purposes of the foregoing, a “substantially equivalent or comparable position” is one that offers the employee substantially the same level of base salary and does not require a relocation of the employee’s place of employment by more than fifty (50) miles from its previous location.
(5)
The employee is offered immediate reemployment by a successor to the Company or an affiliate of the Company or by a purchaser of its assets, as the case may be, following a change in ownership of the Company or an Employer or a sale of substantially all of the assets of a division or business unit of the Company or an Employer. For purposes of the foregoing, “immediate reemployment” means that the employee’s employment with the successor to the Company or an affiliate of the Company or the purchaser of its assets, as the case may be, results in uninterrupted employment such that the employee does not incur a lapse in pay as a result of the change in ownership of the Company or an Employer or the sale of its assets.
(6)
The employee is offered immediate reemployment by a third party entity to whom the Company or an affiliate of the Company has outsourced or otherwise transferred the employee’s job responsibilities. For purposes of the foregoing, “immediate reemployment” means that the employee’s employment with the third party entity to whom the employee’s job responsibilities have been outsourced or otherwise transferred, as the case may be, results in uninterrupted employment such that the employee does not incur a lapse in pay as a result of the outsourcing or other transfer.
(7)
The employee is rehired by the Company or an affiliate of the Company prior to the date benefits under the Plan are scheduled to commence.
(8)
The employee does not confirm in writing that he or she is and shall remain subject to the Company’s Proprietary Information and Inventions Agreement.
(9)
Following notification of involuntary termination by the Company, the employee does not satisfactorily perform his or her assigned job duties until the date set by the Company or an Employer for the termination of employment.
(c)
An involuntary termination without
“Cause”
means an involuntary termination of an employee’s employment by the Company or an Employer other than for one of the following reasons:
(1)
an intentional action or intentional failure to act by the employee that was performed in bad faith;
(2)
an employee’s intentional refusal or intentional failure to act in accordance with any lawful and proper direction or order of his or her superiors;
(3)
an employee’s habitual neglect of the duties of employment, which may include a failure to perform her or her job duties satisfactorily;
(4)
an employee’s indictment, charge, or conviction of a felony or any crime involving moral turpitude, or participation in any act of theft or dishonesty, regardless of whether such act has had or could reasonably be expected to have a material detrimental effect on the business of the Company or an Employer; or
(5)
an employee’s violation of any material provision of the Company’s Proprietary Information and Inventions Agreement or violation of any material provision of any other written Company or Employer policy or procedure.
SECTION 3.
AMOUNT OF BENEFIT.
(a)
Severance Benefits.
Subject to the exceptions set forth in Section 2(b), severance benefits under the Plan, if any, shall be provided to Eligible Employees described in Section 2(a) in the amount provided in Appendix B.
(b)
Additional Benefits.
Notwithstanding the foregoing, the Company may, in its sole discretion, provide benefits in addition to those benefits set forth in Section 3(a) to Eligible Employees and the provision of any such benefits to an Eligible Employee shall in no way obligate the Company to provide such benefits to any other Eligible Employee or to any other employee, even if similarly situated.
(c)
Certain Reductions.
The Company, in its sole discretion, shall have the authority to reduce an Eligible Employee’s severance benefits, in whole or in part, by any other severance benefits, pay in lieu of notice, or other similar benefits payable to the Eligible Employee by the Company or an affiliate of the Company that become payable in connection with the Eligible Employee’s termination of employment pursuant to (i) any applicable legal requirement, including, without limitation, the Worker Adjustment and Retraining Notification Act, the California Plant Closing Act, or any other similar state law, (ii) a written employment or severance agreement with the Company or an Employer of the Company, or (iii) any Company or Employer policy or practice providing for the Eligible Employee to remain on the payroll for a limited period of time after being given notice of the termination of the Eligible Employee’s employment, and the Plan Administrator shall so construe and implement the terms of the Plan; provided, however, that notwithstanding the foregoing and any other provision in the Plan to the contrary, such reduction shall in no event reduce the cash severance benefits provided under this Plan to less than one (1) week of Base Salary (as such term is defined in Appendix B). The Company’s decision to apply such reductions to the severance benefits of one Eligible Employee and the amount of such reductions shall in no way obligate the Company to apply the same reductions in the same amounts to the severance benefits of any other Eligible Employee, even if similarly situated. In the Company’s sole discretion, such reductions may be applied on a retroactive basis, with severance benefits previously paid being re-characterized as payments pursuant to the Company’s statutory obligation.
SECTION 4.
COMPANY PROPERTY.
(a)
Return of Company Property.
Except as provided in Section 4(b) below, an Eligible Employee will not be entitled to any severance benefit under the Plan unless and until the Eligible Employee returns all Company Property. For this purpose,
“Company Property”
means all Company and/or Employer documents (and all copies thereof) and other Company and/or Employer property which the Eligible Employee had in his or her possession at any time, including, but not limited to, Company and/or Employer files, notes, drawings records, plans, forecasts, reports, studies, analyses, proposals, agreements, financial information, research and development information, sales and marketing information, operational and personnel information, specifications, code, software, databases, computer-recorded information, tangible property and equipment (including, but not limited to, leased vehicles, computers, facsimile machines, mobile telephones, servers), credit cards, entry cards, identification badges and keys; and any materials of any kind which contain or embody any proprietary or confidential information of the Company and/or an Employer (and all reproductions thereof in whole or in part). As a condition to receiving benefits under the Plan, Eligible Employees must not make or retain copies, reproductions or summaries of any such Company or Employer property. In the Company’s sole discretion, the Company may determine the value of any
unreturned Company property and deduct the value of such property from any severance benefits otherwise owed to the employee under this Plan.
(b)
Retention of Certain Company Equipment.
Notwithstanding the provisions of Section 4(a), the Company and an Eligible Employee may agree to allow the Eligible Employee to retain certain Company or Employer equipment (e.g., laptops, printers, facsimile machines, copiers, etc.) (
“Company Equipment”
) for his or her personal use following the Eligible Employee’s termination of employment. As a condition to retaining any Company Equipment, the Eligible Employee must execute a general waiver and release in substantially the form attached hereto as Exhibit A, Exhibit B or Exhibit C, as appropriate, within the applicable time period set forth therein, but in no event more than sixty (60) days following the date of termination, and such release must become effective in accordance with its terms. The Eligible Employee acknowledges that the Eligible Employee will have imputed income related to the retention of any Company Equipment. The Eligible Employee will follow all Company instructions as to the return and/or deletion of any Company information contained on the Company Equipment.
SECTION 5.
TIME OF PAYMENT AND FORM OF BENEFIT.
All cash severance benefits under the Plan shall be paid in a single lump sum as soon as administratively practicable following the Eligible Employee’s satisfaction of all of the requirements set forth in Sections 2(a) and 4(a). All payments under the Plan will be subject to applicable withholding for federal, state and local taxes. If an Eligible Employee is indebted to the Company at his or her termination date, the Company reserves the right to offset any severance payments under the Plan by the amount of such indebtedness. Additionally, if an Eligible Employee is subject to withholding for taxes related to any non-Plan benefits, including but not limited to any imputed income related to the use of Company vehicles for personal travel, or imputed income related to retention of Company Equipment, the Company may offset any severance payments under the Plan by the amount of such withholding taxes.
Notwithstanding anything to the contrary set forth herein, any payments and benefits provided under the Plan that constitute “deferred compensation” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”
) and the regulations and other guidance thereunder and any state law of similar effect (collectively
“Section 409A”
) shall not commence in connection with an Eligible Employee’s termination of employment unless and until the Eligible Employee has also incurred a “separation from service” (as such term is defined in Treasury Regulations Section 1.409A-1(h) (
“Separation From Service”
)), unless the Company reasonably determines that such amounts may be provided to the Eligible Employee without causing the Eligible Employee to incur the adverse personal tax consequences under Section 409A.
It is intended that (i) each installment of any benefits payable under the Plan to an Eligible Employee be regarded as a separate “payment” for purposes of Treasury Regulations Section 1.409A-2(b)(2)(i), (ii) all payments of any such benefits under the Plan satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9)(iii), and (iii) any such benefits consisting of COBRA premiums also satisfy, to the greatest extent possible, the exemption from the application of Section 409A provided under Treasury Regulations Section 1.409A-1(b)(9)(v). However, if the Company determines that any such benefits payable under the Plan constitute “deferred compensation” under Section 409A and the Eligible Employee is a “specified employee” of the Company, as such term is defined in Section 409A(a)(2)(B)(i), then, solely to the extent necessary to avoid the imposition of the adverse personal tax consequences under Section 409A, the timing of such benefit payments shall be delayed as follows: on the earlier to occur of (A) the date that is six (6) months and one (1) day after the Eligible Employee’s Separation From Service and (B) the date of the Eligible Employee’s death (such applicable date, the
“Delayed Initial Payment Date”
), the Company shall (1) pay the Eligible Employee a lump sum amount equal to the sum of the benefit payments that the Eligible Employee would otherwise have received through the Delayed Initial Payment Date if the commencement of the payment of the benefits had not been delayed pursuant to this paragraph and (2) commence paying the balance, if any, of the benefits in accordance with the applicable payment schedule.
SECTION 6.
REEMPLOYMENT.
In the event of an Eligible Employee’s reemployment by the Company or an Employer or other affiliate of the Company or by a company to whom the employee’s job responsibilities have been outsourced or otherwise transferred during the period of time in respect of which severance benefits pursuant to Sections 3(a) and 3(b) have been paid, the Company, in its sole and absolute discretion, may require such Eligible Employee to repay to the Company all or a portion of such severance benefits as a condition of reemployment.
SECTION 7.
RIGHT TO INTERPRET PLAN; AMENDMENT AND TERMINATION.
(a)
Exclusive Discretion.
The Plan Administrator (as defined in Section 10(a) herein) shall have the exclusive discretion and authority to establish rules, forms, and procedures for the administration of the Plan and to construe and interpret the Plan and to decide any and all questions of fact, interpretation, definition, computation or administration arising in connection with the operation of the Plan, including, but not limited to, the eligibility to participate in the Plan and amount of benefits paid under the Plan. The rules, interpretations, computations and other actions of the Plan Administrator shall be binding and conclusive on all persons.
(b)
Amendment or Termination.
The Company reserves the right to amend or terminate this Plan (including Appendix A and Appendix B) or the benefits provided hereunder at any time; provided, however, that no such amendment or termination shall adversely affect the right to any unpaid benefit of any Eligible Employee whose termination date has occurred prior to amendment or termination of the Plan. Any action amending or terminating the Plan shall be in writing and executed by the Chief Executive Officer or the Chief Financial Officer of the Company.
SECTION 8.
NO IMPLIED EMPLOYMENT CONTRACT.
The Plan shall not be deemed (i) to give any employee or other person any right to be retained in the employ of the Company or an Employer or (ii) to interfere with the right of the Company or an Employer to discharge any employee or other person at any time, with or without cause, which right is hereby reserved.
SECTION 9.
LEGAL CONSTRUCTION.
This Plan is intended to be governed by and shall be construed in accordance with the Employee Retirement Income Security Act of 1974 (
“ERISA”
) and, to the extent not preempted by ERISA, the laws of the State of California (without regard to principles of conflict of laws).
SECTION 10.
CLAIMS, INQUIRIES AND APPEALS.
(a)
Applications for Benefits and Inquiries.
Any application for benefits, inquiries about the Plan or inquiries about present or future rights under the Plan must be submitted to the Plan Administrator in writing by an applicant (or his or her authorized representative). The Plan Administrator is:
Omnicell, Inc.
Attn: Vice President, Human Resources
590 E. Middlefield Road
Mountain View, CA 94043
(b)
Denial of Claims.
In the event that any application for benefits is denied in whole or in part, the Plan Administrator must provide the applicant with written or electronic notice of the denial of the application, and of the applicant’s right to review the denial. Any electronic notice will comply with the regulations of the U.S. Department of Labor. The notice of denial will be set forth in a manner designed to be understood by the applicant and will include the following:
(1)
the specific reason or reasons for the denial;
(2)
references to the specific Plan provisions upon which the denial is based;
(3)
a description of any additional information or material that the Plan Administrator needs to complete the review and an explanation of why such information or material is necessary; and
(4)
an explanation of the Plan’s review procedures and the time limits applicable to such procedures, including a statement of the applicant’s right to bring a civil action under Section 502(a) of ERISA following a denial on review of the claim, as described in Section 10(d) below.
This notice of denial will be given to the applicant within ninety (90) days after the Plan Administrator receives the application, unless special circumstances require an extension of time, in which case, the Plan Administrator has up to an additional ninety (90) days for processing the application. If an extension of time for processing is required, written notice of the extension will be furnished to the applicant before the end of the initial ninety (90) day period.
This notice of extension will describe the special circumstances necessitating the additional time and the date by which the Plan Administrator is to render its decision on the application.
(c)
Request for a Review.
Any person (or that person’s authorized representative) for whom an application for benefits is denied, in whole or in part, may appeal the denial by submitting a request for a review to the Plan Administrator within sixty (60) days after the application is denied. A request for a review shall be in writing and shall be addressed to:
Omnicell, Inc.
Attn: Vice President, Human Resources
590 E. Middlefield Road
Mountain View, CA 94043
A request for review must set forth all of the grounds on which it is based, all facts in support of the request and any other matters that the applicant feels are pertinent. The applicant (or his or her representative) shall have the opportunity to submit (or the Plan Administrator may require the applicant to submit) written comments, documents, records, and other information relating to his or her claim. The applicant (or his or her representative) shall be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records and other information relevant to his or her claim. The review shall take into account all comments, documents, records and other information submitted by the applicant (or his or her representative) relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination.
(d)
Decision on Review.
The Plan Administrator will act on each request for review within sixty (60) days after receipt of the request, unless special circumstances require an extension of time (not to exceed an additional sixty (60) days), for processing the request for a review. If an extension for review is required, written notice of the extension will be furnished to the applicant within the initial sixty (60) day period. This notice of extension will describe the special circumstances necessitating the additional time and the date by which the Plan Administrator is to render its decision on the review. The Plan Administrator will give prompt, written or electronic notice of its decision to the applicant. Any electronic notice will comply with the regulations of the U. S. Department of Labor. In the event that the Plan Administrator confirms the denial of the application for benefits in whole or in part, the notice will set forth, in a manner calculated to be understood by the applicant, the following:
(1)
the specific reason or reasons for the denial;
(2)
references to the specific Plan provisions upon which the denial is based;
(3)
a statement that the applicant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records and other information relevant to his or her claim; and
(4)
a statement of the applicant’s right to bring a civil action under Section 502(a) of ERISA.
(e)
Rules and Procedures.
The Plan Administrator will establish rules and procedures, consistent with the Plan and with ERISA, as necessary and appropriate in carrying out its responsibilities in reviewing benefit claims. The Plan Administrator may require an applicant who wishes to submit additional information in connection with an appeal from the denial of benefits to do so at the applicant’s own expense.
(f)
Exhaustion of Remedies.
No legal action for benefits under the Plan may be brought until the applicant (i) has submitted a written application for benefits in accordance with the procedures described by Section 10(a) above, (ii) has been notified by the Plan Administrator that the application is denied, (iii) has filed a written request for a review of the application in accordance with the appeal procedure described in Section 10(c) above, and (iv) has been notified that the Plan Administrator has denied the appeal. Notwithstanding the foregoing, if the Plan Administrator does not respond to an applicant’s claim or appeal within the relevant time limits specified in this Section 10, the applicant may bring legal action for benefits under the Plan pursuant to Section 502(a) of ERISA.
SECTION 11.
BASIS OF PAYMENTS TO AND FROM PLAN.
The Plan shall be unfunded, and all cash payments under the Plan shall be paid only from the general assets of the Company. An Eligible Employee’s right to receive payments under the Plan is no greater than that of the Company’s unsecured general creditors. Therefore, if the Company were to become insolvent, the Eligible Employee might not receive benefits under the Plan.
SECTION 12.
OTHER PLAN INFORMATION.
(a)
Employer and Plan Identification Numbers.
The Employer Identification Number assigned to the Company (which is the
“Plan Sponsor”
as that term is used in ERISA) by the Internal Revenue Service is 94-3166458. The Plan Number assigned to the Plan by the Plan Sponsor pursuant to the instructions of the Internal Revenue Service is 510.
(b)
Ending Date for Plan’s Fiscal Year and Type of Plan.
The date of the end of the fiscal year for the purpose of maintaining the Plan’s records is December 31. The Plan is a welfare benefit plan.
(c)
Agent for the Service of Legal Process.
The agent for the service of legal process with respect to the Plan is:
Omnicell, Inc.
Attn: Corporate Secretary
590 E. Middlefield Road
Mountain View, CA 94043
(d)
Plan Sponsor and Administrator.
The Plan Sponsor and the
“Plan Administrator”
of the Plan is:
Omnicell, Inc.
Attn: Vice President, Human Resources
590 E. Middlefield Road
Mountain View, CA 94043
The Plan Sponsor’s and Plan Administrator’s telephone number is (650) 251- 6100. The Plan Administrator is the named fiduciary charged with the responsibility for administering the Plan.
SECTION 13.
STATEMENT OF ERISA RIGHTS.
Participants in this Plan are entitled to certain rights and protections under ERISA. If you are an Eligible Employee, you are considered a participant in the Plan and, under ERISA, you are entitled to:
(a)
Receive Information About Your Plan and Benefits
(1)
Examine, without charge, at the Plan Administrator’s office and at other specified locations, such as worksites, all documents governing the Plan and a copy of the latest annual report (Form 5500 Series), if applicable, filed by the Plan with the U.S. Department of Labor and available at the Public Disclosure Room of the Employee Benefits Security Administration;
(2)
Obtain, upon written request to the Plan Administrator, copies of documents governing the operation of the Plan and copies of the latest annual report (Form 5500 Series), if applicable, and an updated (as necessary) Summary Plan Description. The Administrator may make a reasonable charge for the copies; and
(3)
Receive a summary of the Plan’s annual financial report, if applicable. The Plan Administrator is required by law to furnish each participant with a copy of this summary annual report.
(b)
Prudent Actions by Plan Fiduciaries.
In addition to creating rights for Plan participants, ERISA imposes duties upon the people who are responsible for the operation of the employee benefit plan. The people who operate the Plan, called “fiduciaries” of the Plan, have a duty to do so prudently and in the interest of you and other Plan participants and beneficiaries. No one, including your employer, your union or any other person, may fire you or otherwise discriminate against you in any way to prevent you from obtaining a Plan benefit or exercising your rights under ERISA.
(c)
Enforce Your Rights.
If your claim for a Plan benefit is denied or ignored, in whole or in part, you have a right to know why this was done, to obtain copies of documents relating to the decision without charge, and to appeal any denial, all within certain time schedules as set forth in detail in Section 10 herein.
Under ERISA, there are steps you can take to enforce the above rights. For instance, if you request a copy of Plan documents or the latest annual report from the Plan, if applicable, and do not receive them within 30 days, you may file suit in a Federal court and you are not required to follow the claims procedure set forth in Section 10 herein. In such a case, the court may require the Plan Administrator to provide the materials and pay you up to $110 a day until you receive the materials, unless the materials were not sent because of reasons beyond the control of the Plan Administrator.
If you have completed the claims and appeals procedure described in Section 10 and have a claim for benefits which is denied or ignored, in whole or in part, you may file suit in a state or Federal court.
If you are discriminated against for asserting your rights, you may seek assistance from the U.S. Department of Labor, or you may file suit in a Federal court. The court will decide who should pay court costs and legal fees. If you are successful, the court may order the person you have sued to pay these costs and fees. If you lose, the court may order you to pay these costs and fees, for example, if it finds your claim is frivolous.
(d)
Assistance with Your Questions.
If you have any questions about the Plan, you should contact the Plan Administrator. If you have any questions about this statement or about your rights under ERISA, or if you need assistance in obtaining documents from the Plan Administrator, you should contact the nearest office of the Employee Benefits Security Administration, U. S. Department of Labor, listed in your telephone directory or the Division of Technical Assistance and Inquiries, Employee Benefits Security Administration, U.S. Department of
Labor, 200 Constitution Avenue N.W., Washington, D.C. 20210. You may also obtain certain publications about your rights and responsibilities under ERISA by calling the publications hotline of the Employee Benefits Security Administration or accessing its website at http://www.dol.gov/ebsa/.
SECTION 14.
GENERAL PROVISIONS.
(a)
Notices.
Any notice, demand or request required or permitted to be given by either the Company or an Eligible Employee pursuant to the terms of this Plan shall be in writing and shall be deemed given when delivered personally or deposited in the U.S. mail, First Class with postage prepaid, and addressed to the parties, in the case of the Company, at the address set forth in Section 12(d) and, in the case of an Eligible Employee, at the address as set forth in the Company’s employment file maintained for the Eligible Employee as previously furnished by the Eligible Employee or such other address as a party may request by notifying the other in writing.
(b)
Transfer and Assignment.
The rights and obligations of an Eligible Employee under this Plan may not be transferred or assigned without the prior written consent of the Company. This Plan shall be binding upon any person who is a successor by merger, acquisition, consolidation or otherwise to the business formerly carried on by the Company without regard to whether or not such person or entity actively assumes the obligations hereunder.
(c)
Waiver.
Any party’s failure to enforce any provision or provisions of this Plan shall not in any way be construed as a waiver of any such provision or provisions, nor prevent any party from thereafter enforcing each and every other provision of this Plan. The rights granted the parties herein are cumulative and shall not constitute a waiver of any party’s right to assert all other legal remedies available to it under the circumstances.
(d)
Severability.
Should any provision of this Plan be declared or determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
(e)
Section Headings.
Section headings in this Plan are included for convenience of reference only and shall not be considered part of this Plan for any other purpose.
Omnicell, Inc.
has caused its duly authorized officer to execute the amendment and restatement of this Plan effective as of March 7, 2017.
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OMNICELL, INC.
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By:
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/s/ Dan S. Johnston
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Title:
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EVP and Chief Legal & Administrative Officer
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For Employees Age 40 or Older
Individual Termination
EXHIBIT A
RELEASE AGREEMENT
I understand and agree completely to the terms set forth in the Omnicell, Inc. Severance Benefit Plan (the
“Plan”
).
I understand that this Release, together with the Plan, constitutes the complete, final and exclusive embodiment of the entire agreement between the Company, affiliates of the Company and me with regard to the subject matter hereof. I am not relying on any promise or representation by the Company or the Employer that is not expressly stated therein. Certain capitalized terms used in this Release are defined in the Plan.
I hereby confirm my obligations under my Proprietary Information and Inventions Agreement with the Company and/or the Employer.
In exchange for the Severance Benefits and other consideration provided to me by the Plan that I am not otherwise entitled to receive, and except as otherwise set forth in this Release, I hereby generally and completely release the Company, the Employers, and their current and former parents, subsidiaries, successors, predecessors and affiliates, and their current and former partners, members, directors, officers, employees, stockholders, shareholders, agents, attorneys, predecessors, insurers, affiliates and assigns, from any and all claims, liabilities and obligations, both known and unknown, that arise out of or are in any way related to events, acts, conduct, or omissions occurring at any time prior to and including the date I sign this Release. This general release includes, but is not limited to: (a) all claims arising out of or in any way related to my employment with the Company, the Employers or their affiliates, or the termination of that employment; (b) all claims related to my compensation or benefits, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership interests in the Company, the Employers, or their affiliates; (c) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; (d) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (e) all federal, state, and local statutory claims, including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of 1990 (as amended), the federal Age Discrimination in Employment Act (as amended) (
“ADEA”
), the federal Employee Retirement Income Security Act of 1974 (as amended), and the California Fair Employment and Housing Act (as amended).
I am not releasing any claim that cannot be waived under applicable state or federal law or any rights I have to pursue a claim for workers’ compensation or unemployment benefits, and I am not releasing any rights that I have to be indemnified (including any right to reimbursement of expenses) arising under applicable law, the certificate of incorporation or by-laws (or similar constituent documents of the Company), any indemnification agreement between me and the Company, the Employers, or their affiliates, or any directors’ and officers’ liability insurance policy of the Company, the Employers, or their affiliates. The foregoing notwithstanding, nothing in this Release shall prevent me from filing, cooperating with, communicating with, or participating in any proceeding (including providing documents or other information without notice to the Company) before the Equal Employment Opportunity Commission, the Department of Labor, the California Department of Fair Employment and Housing, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission (“SEC”), or any other federal, state or local government agency or commission (“
Government Agencies
”). While this Agreement does not limit my right to receive an award for information provided to the SEC, I understand and agree that, to the maximum extent permitted by law, I am otherwise waiving any and all right I have waived to individual relief based on any claims that I released and any I have waived by signing this Agreement. Nothing in this Release shall prevent me from challenging the validity of this Release in a legal or administrative proceeding.
I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under the ADEA (“
ADEA Waiver
”), and that the consideration given under the Plan for the ADEA Waiver is in addition to anything of value to which I was already entitled. I further acknowledge that I have been advised by this writing, as required by the ADEA, that: (a) my ADEA Waiver and release does not apply to any rights or claims that may arise after the date I sign this Release; (b) I should consult with an attorney prior to signing this Release (although I may choose voluntarily not to do so); (c) I have twenty-one (21) days to consider this Release (although I may choose voluntarily to sign this Release earlier); (d) I have seven (7) days following the date I sign this Release to revoke the Release by providing written notice to an officer of the Company within the seven (7) day period; and (e) the ADEA Waiver shall not be effective until the date upon which the revocation period has expired unexercised, which shall be the eighth day after I sign this Release. Nevertheless, my general release of claims, except for the ADEA Waiver, is effective immediately, and not revocable.
I UNDERSTAND THAT THIS RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. In giving the release herein, which includes claims which may be unknown to me at present,
I acknowledge that I have read and understand Section 1542 of the California Civil Code which reads as follows:
“A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his settlement with the debtor.”
I hereby expressly waive and relinquish all rights and benefits under that section and any law of any other jurisdiction of similar effect with respect to my release of any unknown or unsuspected claims hereunder.
I acknowledge that to become effective, I must sign and return this Release to the Company so that it is received not later than twenty-one (21) days following the date it is provided to me.
I agree not to disparage Company (or its officers, directors or employees), in any manner likely to be harmful to it, them or their business, business reputation or personal reputation; provided that I may respond accurately and fully to any question, inquiry or request for information when required by legal process. In addition, nothing in this provision or this Agreement is intended to prohibit or restrain me in any manner from making disclosures that are protected under the whistleblower provisions of federal law or regulation or under other applicable law or regulation. I understand and agree that in the event that I do not comply with this non-disparagement obligation, my Severance Benefits will be forfeited and subject to return upon demand by Company.
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EMPLOYEE
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Signature:
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Print Name:
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Date:
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For Employees Age 40 or Older
Group Termination
EXHIBIT B
RELEASE AGREEMENT
I understand and agree completely to the terms set forth in the Omnicell, Inc. Severance Benefit Plan (the
“Plan”
).
I understand that this Release, together with the Plan, constitutes the complete, final and exclusive embodiment of the entire agreement between the Company, affiliates of the Company and me with regard to the subject matter hereof. I am not relying on any promise or representation by the Company or the Employer that is not expressly stated therein. Certain capitalized terms used in this Release are defined in the Plan.
I hereby confirm my obligations under my Proprietary Information and Inventions Agreement with the Company and/or the Employer.
In exchange for the Severance Benefits and other consideration provided to me by the Plan that I am not otherwise entitled to receive, and except as otherwise set forth in this Release, I hereby generally and completely release the Company, the Employers and their current and former parents, subsidiaries, successors, predecessors and affiliates, and their current and former partners, members, directors, officers, employees, stockholders, shareholders, agents, attorneys, predecessors, insurers, affiliates and assigns, from any and all claims, liabilities and obligations, both known and unknown, that arise out of or are in any way related to events, acts, conduct, or omissions occurring at any time prior to and including the date I sign this Release. This general release includes, but is not limited to: (a) all claims arising out of or in any way related to my employment with the Company, the Employers or their affiliates, or the termination of that employment; (b) all claims related to my compensation or benefits, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership interests in the Company, the Employers, or their affiliates; (c) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; (d) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (e) all federal, state, and local statutory claims, including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of 1990 (as amended), the federal Age Discrimination in Employment Act (as amended) (
“ADEA”
), the federal Employee Retirement Income Security Act of 1974 (as amended), and the California Fair Employment and Housing Act (as amended).
I am not releasing any claim that cannot be waived under applicable state or federal law or any rights I have to pursue a claim for workers’ compensation or unemployment benefits, and I am not releasing any rights that I have to be indemnified (including any right to reimbursement of expenses) arising under applicable law, the certificate of incorporation or by-laws (or similar constituent documents of the Company), any indemnification agreement between me and the Company, the Employers, or their affiliates, or any directors’ and officers’ liability insurance policy of the Company, the Employers, or their affiliates. The foregoing notwithstanding, nothing in this Release shall prevent me from filing, cooperating with, communicating with, or participating in any proceeding (including providing documents or other information without notice to the Company) before the Equal Employment Opportunity Commission, the Department of Labor, the California Department of Fair Employment and Housing, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission (“
SEC
”), or any other federal, state or local government agency or commission (“
Government Agencies
”). While this Agreement does not limit my right to receive an award for information provided to the SEC, I understand and agree that, to the maximum extent permitted by law, I am otherwise waiving any and all rights I have waived to individual relief based on any claims that I released and any I have waived by signing this Agreement. Nothing in this Release shall prevent me from challenging the validity of this Release in a legal or administrative proceeding.
I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under the ADEA (“ADEA Waiver”), and that the consideration given under the Plan for the ADEA Waiver is in addition to anything of value to which I was already entitled. I further acknowledge that I have been advised by this writing, as required by the ADEA, that: (a) my ADEA Waiver does not apply to any rights or claims that may arise after the date I sign this Release; (b) I should consult with an attorney prior to signing this Release (although I may choose voluntarily not to do so); (c) I have forty-five (45) days to consider this Release (although I may choose voluntarily to sign this Release earlier); (d) I have seven (7) days following the date I sign this Release to revoke the Release by providing written notice to an officer of the Company within the seven (7) day period; (e) the ADEA Waiver shall not be effective until the date upon which the revocation period has expired unexercised, which shall be the eighth day after I sign this Release; and (f) in accordance with 29 U.S.C. § 626(f)(1)(H), I have received with this Release a detailed list of the job titles and ages of all employees who were terminated in this group termination and the ages of all employees of the Company in the same job classification or organizational unit who were not terminated. Nevertheless, my general release of claims, except for the ADEA Waiver, is effective immediately, and not revocable.
I UNDERSTAND THAT THIS RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. In giving the release herein, which includes claims which may be unknown to me at present,
I acknowledge that I have read and understand Section 1542 of the California Civil Code which reads as follows:
“A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his settlement with the debtor.”
I hereby expressly waive and relinquish all rights and benefits under that section and any law of any other jurisdiction of similar effect with respect to my release of any unknown or unsuspected claims hereunder.
I hereby represent that I have been paid all compensation owed and for all hours worked, have received all the leave and leave benefits and protections for which I am eligible, pursuant to the Family and Medical Leave Act or otherwise, and have not suffered any on-the-job injury for which I have not already filed a claim.
I agree not to disparage Company (or its officers, directors or employees), in any manner likely to be harmful to it, them or their business, business reputation or personal reputation; provided that I may respond accurately and fully to any question, inquiry or request for information when required by legal process. In addition, nothing in this provision or this Agreement is intended to prohibit or restrain me in any manner from making disclosures that are protected under the whistleblower provisions of federal law or regulation or under other applicable law or regulation. I understand and agree that in the event that I do not comply with this non-disparagement obligation, my Severance Benefits will be forfeited and subject to return upon demand by Company.
I acknowledge that to become effective, I must sign and return this Release to the Company so that it is received not later than forty-five (45) days following the date it is provided to me.
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EMPLOYEE
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Signature:
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Print Name:
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Date:
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For Employees Under Age 40
Individual and Group Termination
EXHIBIT C
RELEASE AGREEMENT
I understand and agree completely to the terms set forth in the Omnicell, Inc. Severance Benefit Plan (the
“Plan”
).
I understand that this Release, together with the Plan, constitutes the complete, final and exclusive embodiment of the entire agreement between the Company, affiliates of the Company and me with regard to the subject matter hereof. I am not relying on any promise or representation by the Company or the Employer that is not expressly stated therein. Certain capitalized terms used in this Release are defined in the Plan.
I hereby confirm my obligations under my Proprietary Information and Inventions Agreement with the Company and/or the Employer.
In exchange for the Severance Benefits and other consideration provided to me by the Plan that I am not otherwise entitled to receive, and except as otherwise set forth in this Release, I hereby generally and completely release the Company, the Employers and their current and former parents, subsidiaries, successors, predecessors and affiliates, and their current and former partners, members, directors, officers, employees, stockholders, shareholders, agents, attorneys, predecessors, insurers, affiliates and assigns, from any and all claims, liabilities and obligations, both known and unknown, that arise out of or are in any way related to events, acts, conduct, or omissions occurring at any time prior to and including the date I sign this Release. This general release includes, but is not limited to: (a) all claims arising out of or in any way related to my employment with the Company, the Employers or their affiliates, or the termination of that employment; (b) all claims related to my compensation or benefits, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership interests in the Company, the Employers, or their affiliates; (c) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; (d) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (e) all federal, state, and local statutory claims, including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of 1990 (as amended), the federal Employee Retirement Income Security Act of 1974 (as amended), and the California Fair Employment and Housing Act (as amended).
I am not releasing any claim that cannot be waived under applicable state or federal law or any rights I have to pursue a claim for workers’ compensation or unemployment benefits, and I am not releasing any rights that I have to be indemnified (including any right to reimbursement of expenses) arising under applicable law, the certificate of incorporation or by-laws (or similar constituent documents of the Company), any indemnification agreement between me and the Company, the Employers, or their affiliates, or any directors’ and officers’ liability insurance policy of the Company, the Employers, or their affiliates. The foregoing notwithstanding, nothing in this Release shall prevent me from filing, cooperating with, communicating with, or participating in any proceeding (including providing documents or other information without notice to the Company) before the Equal Employment Opportunity Commission, the Department of Labor, the California Department of Fair Employment and Housing, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission (“
SEC
”), or any other federal, state or local government agency or commission (“
Government Agencies
”). While this Agreement does not limit my right to receive an award for information provided to the SEC, I understand and agree that, to the maximum extent permitted by law, I am otherwise waiving any and all rights I have waived to individual relief based on any claims that I released and any I have waived by signing this Agreement. Nothing in this Release shall prevent me from challenging the validity of this Release in a legal or administrative proceeding.
I UNDERSTAND THAT THIS RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. In giving the release herein, which includes claims which may be unknown to me at present,
I acknowledge that I have read and understand Section 1542 of the California Civil Code which reads as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his settlement with the debtor.” I hereby expressly waive and relinquish all rights and benefits under that section and any law of any other jurisdiction of similar effect with respect to my release of any unknown or unsuspected claims hereunder.
I hereby represent that I have been paid all compensation owed and for all hours worked, have received all the leave and leave benefits and protections for which I am eligible, pursuant to the Family and Medical Leave Act or otherwise, and have not suffered any on-the-job injury for which I have not already filed a claim.
I agree not to disparage Company (or its officers, directors or employees), in any manner likely to be harmful to it, them or their business, business reputation or personal reputation; provided that I may respond accurately and fully to any question, inquiry or request for information when required by legal process. In addition, nothing in this provision or this Agreement is intended to prohibit or restrain me in any manner from making disclosures that are protected under the whistleblower provisions of federal law or regulation or under other applicable law or regulation. I understand and agree that in the event that I do not comply with this non-disparagement obligation, my Severance Benefits will be forfeited and subject to return upon demand by Company.
I acknowledge that to become effective, I must sign and return this Release to the Company so that it is received not later than fourteen (14) days following the date it is provided to me.
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EMPLOYEE
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Signature:
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Print Name:
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Date:
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APPENDIX A
OMNICELL, INC.
SEVERANCE BENEFIT PLAN
Affiliates of the Company whose employees are eligible to participate in the Omnicell, Inc. Severance Benefit Plan (each an
“Employer”
) are as follows:
MTS Medication Technologies, Inc.
MTS Packaging Systems, Inc.
Aesynt Incorporated
ateb,Inc.
The foregoing list of Employers is subject to such change as the Company, pursuant to Section 1 of the Plan, may determine in its sole and absolute discretion. Any such change to the participating Employers shall be set forth in a revised version of this Appendix A.
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Appendix A Adopted: March 7, 2017
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OMNICELL, INC.
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By:
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/s/ Dan S. Johnston
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Title:
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EVP and Chief Legal & Administrative Officer
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APPENDIX B
OMNICELL, INC.
SEVERANCE BENEFIT PLAN
Severance benefits provided to Eligible Employees under the Omnicell, Inc. Severance Benefit Plan (the
“Plan”
) are as follows, and apply to Eligible Employees up to and including the level of Senior Manager (including Systems Sales Directors, Senior Systems Sales Directors and Directors of Corporate Sales):
1.
Severance Benefits.
Subject to the exceptions set forth in Section 2(b) of the Plan, each Eligible Employee who meets all the requirements set forth in Sections 2(a) and 4(a) of the Plan, including, without limitation, executing a general waiver and release in substantially the form attached to the Plan as Exhibit A, Exhibit B or Exhibit C, as appropriate, within the applicable time period set forth therein, but in no event more than sixty (60) days following the date of termination, and provided that such release becomes effective in accordance with its terms, shall receive severance benefits as set forth in this Appendix B. The Company, in its sole discretion, may modify the form of the required general waiver and release to comply with applicable law, and may incorporate such waiver and release into a termination agreement or other agreement with the Eligible Employee.
(a)
Cash Severance Benefit.
Eligible Employees shall be entitled to receive a cash severance benefit equal to the number of months of Base Salary set forth below next to his or her Years of Service at the time of termination. Partial Years of Service are not counted.
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Years of Service
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Months of Base Salary
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1
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1 month
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2
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2 months
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3
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3 months
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For each 5 Years of Service
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1 extra month
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(b)
Continued Group Health Plan Benefits.
If the Eligible Employee was enrolled in a group health plan (e.g., medical, dental, or vision plan) sponsored by the Company or an affiliate of the Company immediately prior to termination, the Eligible Employee may be eligible to continue coverage under such group health plan (or to convert to an individual policy), at the time of the Eligible Employee’s termination of employment, under the Consolidated Omnibus Budget Reconciliation Act of 1985 (
“COBRA”
). The Company will notify the Eligible Employee of any such right to continue such coverage at the time of termination pursuant to COBRA. No provision of this Plan will affect the continuation coverage rules under COBRA, except that the Company’s payment, if any, of applicable insurance premiums, or waiver of any cost of coverage under any self-funded group health plan, will be credited as payment by the Eligible Employee for purposes of the Eligible Employee’s payment required under COBRA.
Therefore, the period during which an Eligible Employee may elect to continue the Company’s or its affiliate’s group health plan coverage at his or her own expense under COBRA, the length of time during which COBRA coverage will be made available to the Eligible Employee, and all other rights and obligations of the Eligible Employee under COBRA (except the obligation to pay insurance premiums that the Company pays, if any, or, with respect to a self-funded plan, any obligation to pay the cost of coverage to the Company that the Company waives, if any) will be applied in the same manner that such rules would apply in the absence of this Plan.
If an Eligible Employee timely elects continued coverage under COBRA, the Company shall pay the same portion of (or, in the case of any self-funded plan, shall credit the Eligible Employee with the same portion of) the Eligible Employee’s monthly premiums for COBRA continuation
coverage (including coverage for the Eligible Employee’s eligible dependents) that the Company paid (or bore in the case of any self-funded plan) for the Eligible Employee’s active employee coverage under the Company’s group health plans (such paid or credited amount is the “
COBRA Premium Benefit
”) for the number of months following the Eligible Employee’s termination of employment that is equal to the number of months of the cash severance benefit described above (the “
COBRA Payment Period
”). Notwithstanding the foregoing, no COBRA Premium Benefit shall be made or credited following the Eligible Employee’s death or the effective date of the Eligible Employee’s coverage under a group health plan of another employer.
Notwithstanding the foregoing, if at any time the Company determines, in its sole discretion, that it cannot provide the COBRA Premium Benefit without potentially incurring financial costs or penalties under applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then in lieu of providing the COBRA Premium Benefit, the Company will instead pay the Eligible Employee on the last day of each remaining month of the COBRA Payment Period a fully taxable cash payment equal to the monthly portion of the COBRA Premium Benefit that would otherwise be provided for that month, subject to applicable tax withholding (such amount, the “
Special Severance Payment
”), such Special Severance Payment to be made without regard to the Eligible Employee’s election of COBRA coverage or payment of COBRA premiums and without regard to the Eligible Employee’s continued eligibility for COBRA coverage during the COBRA Payment Period. Such Special Severance Payment shall end upon expiration of the COBRA Payment Period.
For purposes of this Section 1(b), (i) references to COBRA shall be deemed to refer also to analogous provisions of state law, as applicable, and (ii) any applicable insurance premiums that are paid by the Company shall not include any amounts payable by the Eligible Employee under an Internal Revenue Code Section 125 health care reimbursement plan, which amounts, if any, are the sole responsibility of the Eligible Employee.
(c)
Outplacement Assistance.
Eligible Employees shall be entitled to outplacement assistance, the scope of which shall be determined by the Company in the Company’s sole discretion. Eligible Employees shall not be entitled to any payment in lieu of outplacement assistance.
2.
Definitions:
The following definitions shall apply for purposes of this Appendix B:
(a)
“Base Salary”
shall mean the Eligible Employee’s base pay (excluding incentive pay, premium pay, commissions, overtime, bonuses and other forms of variable compensation), at the rate in effect during the last regularly scheduled payroll period immediately preceding the Eligible Employee’s termination date. For any Eligible Employees that are regular part-time employees,
“Base Salary”
shall mean the pro-rata equivalent of the Eligible Employee’s base pay which reflects the part-time status of the Eligible Employee.
(b)
“Years of Service”
means a continuous complete twelve-month period commencing on an Eligible Employee’s date of hire with the Company or an Employer and anniversaries thereof, during which the Eligible Employee is employed by the Company or an Employer, and ending on the date on which the Eligible Employee is notified, in writing, pursuant to Section 2(a)(1) of the Plan that he or she is eligible for participation in the Plan. For purposes of the foregoing, an Eligible Employee will receive credit for any time on a paid leave of absence, but not for time on an unpaid leave of absence.
3.
Other Employee Benefits.
All other benefits (such as life insurance, disability coverage, and 401(k) plan coverage) terminate as of the Eligible Employee’s termination date (except to the extent that a conversion privilege may be available thereunder).
4.
Reductions Pursuant to Section 3(c) of the Plan.
The severance benefits set forth in this Appendix B are subject to certain reductions under Section 3(c) of the Plan.
The foregoing severance benefits are subject to such change as the Company, pursuant to Section 3(a) of the Plan, may determine in its sole and absolute discretion. Any such change in severance benefits shall be set forth in a revised version of this Appendix B.
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Appendix B Adopted: March 7, 2017
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OMNICELL, INC.
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By:
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/s/ Dan S. Johnston
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Title:
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EVP and Chief Legal & Administrative Officer
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APPENDIX B
OMNICELL, INC.
SEVERANCE BENEFIT PLAN
Severance benefits provided to Eligible Employees under the Omnicell, Inc. Severance Benefit Plan (the
“Plan”
) are as follows, and apply to Eligible Employees at the levels of Director and Senior Director (excluding Systems Sales Directors, Senior Systems Sales Directors and Directors of Corporate Sales):
1.
Severance Benefits.
Subject to the exceptions set forth in Section 2(b) of the Plan, each Eligible Employee who meets all the requirements set forth in Sections 2(a) and 4(a) of the Plan, including, without limitation, executing a general waiver and release in substantially the form attached to the Plan as Exhibit A, Exhibit B or Exhibit C, as appropriate, within the applicable time period set forth therein, but in no event more than sixty (60) days following the date of termination, and provided that such release becomes effective in accordance with its terms, shall receive severance benefits as set forth in this Appendix B. The Company, in its sole discretion, may modify the form of the required general waiver and release to comply with applicable law, and may incorporate such waiver and release into a termination agreement or other agreement with the Eligible Employee.
(a)
Cash Severance Benefit.
Eligible Employees shall be entitled to receive a cash severance benefit equal to the number of months of Base Salary set forth below next to his or her Years of Service at the time of termination. Partial Years of Service are not counted.
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Years of Service
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Months of Base Salary
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Not relevant
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4 months
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For each 5 Years of Service
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1 extra month
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(b)
Continued Group Health Plan Benefits.
If the Eligible Employee was enrolled in a group health plan (e.g., medical, dental, or vision plan) sponsored by the Company or an affiliate of the Company immediately prior to termination, the Eligible Employee may be eligible to continue coverage under such group health plan (or to convert to an individual policy), at the time of the Eligible Employee’s termination of employment, under the Consolidated Omnibus Budget Reconciliation Act of 1985 (
“COBRA”
). The Company will notify the Eligible Employee of any such right to continue such coverage at the time of termination pursuant to COBRA. No provision of this Plan will affect the continuation coverage rules under COBRA, except that the Company’s payment, if any, of applicable insurance premiums, or waiver of any cost of coverage under any self-funded group health plan, will be credited as payment by the Eligible Employee for purposes of the Eligible Employee’s payment required under COBRA.
Therefore, the period during which an Eligible Employee may elect to continue the Company’s or its affiliate’s group health plan coverage at his or her own expense under COBRA, the length of time during which COBRA coverage will be made available to the Eligible Employee, and all other rights and obligations of the Eligible Employee under COBRA (except the obligation to pay insurance premiums that the Company pays, if any, or, with respect to a self-funded plan, any obligation to pay the cost of coverage to the Company that the Company waives, if any) will be applied in the same manner that such rules would apply in the absence of this Plan.
If an Eligible Employee timely elects continued coverage under COBRA, the Company shall pay the same portion of (or, in the case of any self-funded plan, shall credit the Eligible Employee with the same portion of) the Eligible Employee’s monthly premiums for COBRA continuation coverage (including coverage for the Eligible Employee’s eligible dependents) that the Company paid (or bore in the case of any self-funded plan) for the Eligible Employee’s active employee
coverage under the Company’s group health plans (such paid or credited amount is the “
COBRA Premium Benefit
”) for the number of months following the Eligible Employee’s termination of employment that is equal to the number of months of the cash severance benefit described above (the “
COBRA Payment Period
”). Notwithstanding the foregoing, no COBRA Premium Benefit shall be made or credited following the Eligible Employee’s death or the effective date of the Eligible Employee’s coverage under a group health plan of another employer.
Notwithstanding the foregoing, if at any time the Company determines, in its sole discretion, that it cannot provide the COBRA Premium Benefit without potentially incurring financial costs or penalties under applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then in lieu of providing the COBRA Premium Benefit, the Company will instead pay the Eligible Employee on the last day of each remaining month of the COBRA Payment Period a fully taxable cash payment equal to the monthly portion of the COBRA Premium Benefit that would otherwise be provided for that month, subject to applicable tax withholding (such amount, the “
Special Severance Payment
”), such Special Severance Payment to be made without regard to the Eligible Employee’s election of COBRA coverage or payment of COBRA premiums and without regard to the Eligible Employee’s continued eligibility for COBRA coverage during the COBRA Payment Period. Such Special Severance Payment shall end upon expiration of the COBRA Payment Period.
For purposes of this Section 1(b), (i) references to COBRA shall be deemed to refer also to analogous provisions of state law, as applicable, and (ii) any applicable insurance premiums that are paid by the Company shall not include any amounts payable by the Eligible Employee under an Internal Revenue Code Section 125 health care reimbursement plan, which amounts, if any, are the sole responsibility of the Eligible Employee.
(c)
Outplacement Assistance.
Eligible Employees shall be entitled to outplacement assistance, the scope of which shall be determined by the Company in the Company’s sole discretion. Eligible Employees shall not be entitled to any payment in lieu of outplacement assistance.
2.
Definitions:
The following definitions shall apply for purposes of this Appendix B:
(a)
“Base Salary”
shall mean the Eligible Employee’s base pay (excluding incentive pay, premium pay, commissions, overtime, bonuses and other forms of variable compensation), at the rate in effect during the last regularly scheduled payroll period immediately preceding the Eligible Employee’s termination date. For any Eligible Employees that are regular part-time employees,
“Base Salary”
shall mean the pro-rata equivalent of the Eligible Employee’s base pay which reflects the part-time status of the Eligible Employee.
(b)
“Years of Service”
means a continuous complete twelve-month period commencing on an Eligible Employee’s date of hire with the Company or an Employer and anniversaries thereof, during which the Eligible Employee is employed by the Company or an Employer, and ending on the date on which the Eligible Employee is notified, in writing, pursuant to Section 2(a)(1) of the Plan that he or she is eligible for participation in the Plan. For purposes of the foregoing, an Eligible Employee will receive credit for any time on a paid leave of absence, but not for time on an unpaid leave of absence.
3.
Other Employee Benefits.
All other benefits (such as life insurance, disability coverage, and 401(k) plan coverage) terminate as of the Eligible Employee’s termination date (except to the extent that a conversion privilege may be available thereunder).
4.
Reductions Pursuant to Section 3(c) of the Plan.
The severance benefits set forth in this Appendix B are subject to certain reductions under Section 3(c) of the Plan.
The foregoing severance benefits are subject to such change as the Company, pursuant to Section 3(a) of the Plan, may determine in its sole and absolute discretion. Any such change in severance benefits shall be set forth in a revised version of this Appendix B.
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Appendix B Adopted: March 7, 2017
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OMNICELL, INC.
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By:
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/s/ Dan S. Johnston
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Title:
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EVP and Chief Legal & Administrative Officer
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APPENDIX B
OMNICELL, INC.
SEVERANCE BENEFIT PLAN
Severance benefits provided to Eligible Employees under the Omnicell, Inc. Severance Benefit Plan (the
“Plan”
) are as follows, and apply to Eligible Employees at the level of Vice President, where such Vice President is not reported by the Company as an officer under Section 16(b) of the Securities and Exchange Act of 1934:
1.
Severance Benefits.
Subject to the exceptions set forth in Section 2(b) of the Plan, each Eligible Employee who meets all the requirements set forth in Sections 2(a) and 4(a) of the Plan, including, without limitation, executing a general waiver and release in substantially the form attached to the Plan as Exhibit A, Exhibit B or Exhibit C, as appropriate, within the applicable time period set forth therein, but in no event more than sixty (60) days following the date of termination, and provided that such release becomes effective in accordance with its terms, shall receive severance benefits as set forth in this Appendix B. The Company, in its sole discretion, may modify the form of the required general waiver and release to comply with applicable law, and may incorporate such waiver and release into a termination agreement or other agreement with the Eligible Employee.
(a)
Cash Severance Benefit.
Eligible Employees shall be entitled to receive a cash severance benefit equal to the number of months of Base Salary set forth below next to his or her Years of Service at the time of termination. Partial Years of Service are not counted.
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Years of Service
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Months of Base Salary
|
|
Not relevant
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6 months
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For each 5 Years of Service
|
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2 extra months
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(b)
Continued Group Health Plan Benefits.
If the Eligible Employee was enrolled in a group health plan (e.g., medical, dental, or vision plan) sponsored by the Company or an affiliate of the Company immediately prior to termination, the Eligible Employee may be eligible to continue coverage under such group health plan (or to convert to an individual policy), at the time of the Eligible Employee’s termination of employment, under the Consolidated Omnibus Budget Reconciliation Act of 1985 (
“COBRA”
). The Company will notify the Eligible Employee of any such right to continue such coverage at the time of termination pursuant to COBRA. No provision of this Plan will affect the continuation coverage rules under COBRA, except that the Company’s payment, if any, of applicable insurance premiums, or waiver of any cost of coverage under any self-funded group health plan, will be credited as payment by the Eligible Employee for purposes of the Eligible Employee’s payment required under COBRA.
Therefore, the period during which an Eligible Employee may elect to continue the Company’s or its affiliate’s group health plan coverage at his or her own expense under COBRA, the length of time during which COBRA coverage will be made available to the Eligible Employee, and all other rights and obligations of the Eligible Employee under COBRA (except the obligation to pay insurance premiums that the Company pays, if any, or, with respect to a self-funded plan, any obligation to pay the cost of coverage to the Company that the Company waives, if any) will be applied in the same manner that such rules would apply in the absence of this Plan.
If an Eligible Employee timely elects continued coverage under COBRA, the Company shall pay the same portion of (or, in the case of any self-funded plan, shall credit the Eligible Employee with the same portion of) the Eligible Employee’s monthly premiums for COBRA continuation coverage (including coverage for the Eligible Employee’s eligible dependents) that the Company paid (or bore in the case of any self-funded plan) for the Eligible Employee’s active employee
coverage under the Company’s group health plans (such paid or credited amount is the “
COBRA Premium Benefit
”) for the number of months following the Eligible Employee’s termination of employment that is equal to the number of months of the cash severance benefit described above (the “
COBRA Payment Period
”). Notwithstanding the foregoing, no COBRA Premium Benefit shall be made or credited following the Eligible Employee’s death or the effective date of the Eligible Employee’s coverage under a group health plan of another employer.
Notwithstanding the foregoing, if at any time the Company determines, in its sole discretion, that it cannot provide the COBRA Premium Benefit without potentially incurring financial costs or penalties under applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then in lieu of providing the COBRA Premium Benefit, the Company will instead pay the Eligible Employee on the last day of each remaining month of the COBRA Payment Period a fully taxable cash payment equal to the monthly portion of the COBRA Premium Benefit that would otherwise be provided for that month, subject to applicable tax withholding (such amount, the “
Special Severance Payment
”), such Special Severance Payment to be made without regard to the Eligible Employee’s election of COBRA coverage or payment of COBRA premiums and without regard to the Eligible Employee’s continued eligibility for COBRA coverage during the COBRA Payment Period. Such Special Severance Payment shall end upon expiration of the COBRA Payment Period.
For purposes of this Section 1(b), (i) references to COBRA shall be deemed to refer also to analogous provisions of state law, as applicable, and (ii) any applicable insurance premiums that are paid by the Company shall not include any amounts payable by the Eligible Employee under an Internal Revenue Code Section 125 health care reimbursement plan, which amounts, if any, are the sole responsibility of the Eligible Employee.
(c)
Outplacement Assistance.
Eligible Employees shall be entitled to outplacement assistance, the scope of which shall be determined by the Company in the Company’s sole discretion. Eligible Employees shall not be entitled to any payment in lieu of outplacement assistance.
2.
Definitions:
The following definitions shall apply for purposes of this Appendix B:
(a)
“Base Salary”
shall mean the Eligible Employee’s base pay (excluding incentive pay, premium pay, commissions, overtime, bonuses and other forms of variable compensation), at the rate in effect during the last regularly scheduled payroll period immediately preceding the Eligible Employee’s termination date. For any Eligible Employees that are regular part-time employees,
“Base Salary”
shall mean the pro-rata equivalent of the Eligible Employee’s base pay which reflects the part-time status of the Eligible Employee.
(b)
“Years of Service”
means a continuous complete twelve-month period commencing on an Eligible Employee’s date of hire with the Company or an Employer and anniversaries thereof, during which the Eligible Employee is employed by the Company or an Employer, and ending on the date on which the Eligible Employee is notified, in writing, pursuant to Section 2(a)(1) of the Plan that he or she is eligible for participation in the Plan. For purposes of the foregoing, an Eligible Employee will receive credit for any time on a paid leave of absence, but not for time on an unpaid leave of absence.
3.
Other Employee Benefits.
All other benefits (such as life insurance, disability coverage, and 401(k) plan coverage) terminate as of the Eligible Employee’s termination date (except to the extent that a conversion privilege may be available thereunder).
4.
Reductions Pursuant to Section 3(c) of the Plan.
The severance benefits set forth in this Appendix B are subject to certain reductions under Section 3(c) of the Plan.
The foregoing severance benefits are subject to such change as the Company, pursuant to Section 3(a) of the Plan, may determine in its sole and absolute discretion. Any such change in severance benefits shall be set forth in a revised version of this Appendix B.
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Appendix B Adopted: March 7, 2017
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OMNICELL, INC.
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By:
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/s/ Dan S. Johnston
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Title:
|
EVP and Chief Legal & Administrative Officer
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APPENDIX B
OMNICELL, INC.
SEVERANCE BENEFIT PLAN
Severance benefits provided to Eligible Employees under the Omnicell, Inc. Severance Benefit Plan (the
“Plan”
) are as follows, and apply to Eligible Employees at the level of Vice President, where such Vice President is reported by the Company as an officer under Section 16(b) of the Securities and Exchange Act of 1934, and the President:
1.
Severance Benefits.
Subject to the exceptions set forth in Section 2(b) of the Plan, each Eligible Employee who meets all the requirements set forth in Sections 2(a) and 4(a) of the Plan, including, without limitation, executing a general waiver and release in substantially the form attached to the Plan as Exhibit A, Exhibit B or Exhibit C, as appropriate, within the applicable time period set forth therein, but in no event more than sixty (60) days following the date of termination, and provided that such release becomes effective in accordance with its terms, shall receive severance benefits as set forth in this Appendix B. The Company, in its sole discretion, may modify the form of the required general waiver and release to comply with applicable law, and may incorporate such waiver and release into a termination agreement or other agreement with the Eligible Employee.
(a)
Cash Severance Benefit.
Eligible Employees shall be entitled to receive a cash severance benefit equal to the number of months of Base Salary set forth below next to his or her Years of Service at the time of termination. Partial Years of Service are not counted.
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|
Years of Service
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Months of Base Salary
|
|
Not relevant
|
|
12 months
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For each 5 Years of Service
|
|
2 extra months
|
(b)
Continued Group Health Plan Benefits.
If the Eligible Employee was enrolled in a group health plan (e.g., medical, dental, or vision plan) sponsored by the Company or an affiliate of the Company immediately prior to termination, the Eligible Employee may be eligible to continue coverage under such group health plan (or to convert to an individual policy), at the time of the Eligible Employee’s termination of employment, under the Consolidated Omnibus Budget Reconciliation Act of 1985 (
“COBRA”
). The Company will notify the Eligible Employee of any such right to continue such coverage at the time of termination pursuant to COBRA. No provision of this Plan will affect the continuation coverage rules under COBRA, except that the Company’s payment, if any, of applicable insurance premiums, or waiver of any cost of coverage under any self-funded group health plan, will be credited as payment by the Eligible Employee for purposes of the Eligible Employee’s payment required under COBRA.
Therefore, the period during which an Eligible Employee may elect to continue the Company’s or its affiliate’s group health plan coverage at his or her own expense under COBRA, the length of time during which COBRA coverage will be made available to the Eligible Employee, and all other rights and obligations of the Eligible Employee under COBRA (except the obligation to pay insurance premiums that the Company pays, if any, or, with respect to a self-funded plan, any obligation to pay the cost of coverage to the Company that the Company waives, if any) will be applied in the same manner that such rules would apply in the absence of this Plan.
If an Eligible Employee timely elects continued coverage under COBRA, the Company shall pay the same portion of (or, in the case of any self-funded plan, shall credit the Eligible Employee with the same portion of) the Eligible Employee’s monthly premiums for COBRA continuation coverage (including coverage for the Eligible Employee’s eligible dependents) that the Company paid (or bore in the case of any self-funded plan) for the Eligible Employee’s active employee
coverage under the Company’s group health plans (such paid or credited amount is the “
COBRA Premium Benefit
”) for the number of months following the Eligible Employee’s termination of employment that is equal to the number of months of the cash severance benefit described above (the “
COBRA Payment Period
”). Notwithstanding the foregoing, no COBRA Premium Benefit shall be made or credited following the Eligible Employee’s death or the effective date of the Eligible Employee’s coverage under a group health plan of another employer.
Notwithstanding the foregoing, if at any time the Company determines, in its sole discretion, that it cannot provide the COBRA Premium Benefit without potentially incurring financial costs or penalties under applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then in lieu of providing the COBRA Premium Benefit, the Company will instead pay the Eligible Employee on the last day of each remaining month of the COBRA Payment Period a fully taxable cash payment equal to the monthly portion of the COBRA Premium Benefit that would otherwise be provided for that month, subject to applicable tax withholding (such amount, the “
Special Severance Payment
”), such Special Severance Payment to be made without regard to the Eligible Employee’s election of COBRA coverage or payment of COBRA premiums and without regard to the Eligible Employee’s continued eligibility for COBRA coverage during the COBRA Payment Period. Such Special Severance Payment shall end upon expiration of the COBRA Payment Period.
For purposes of this Section 1(b), (i) references to COBRA shall be deemed to refer also to analogous provisions of state law, as applicable, and (ii) any applicable insurance premiums that are paid by the Company shall not include any amounts payable by the Eligible Employee under an Internal Revenue Code Section 125 health care reimbursement plan, which amounts, if any, are the sole responsibility of the Eligible Employee.
(c)
Outplacement Assistance.
Eligible Employees shall be entitled to outplacement assistance, the scope of which shall be determined by the Company in the Company’s sole discretion. Eligible Employees shall not be entitled to any payment in lieu of outplacement assistance.
2.
Definitions:
The following definitions shall apply for purposes of this Appendix B:
(a)
“Base Salary”
shall mean the Eligible Employee’s base pay (excluding incentive pay, premium pay, commissions, overtime, bonuses and other forms of variable compensation), at the rate in effect during the last regularly scheduled payroll period immediately preceding the Eligible Employee’s termination date. For any Eligible Employees that are regular part-time employees,
“Base Salary”
shall mean the pro-rata equivalent of the Eligible Employee’s base pay which reflects the part-time status of the Eligible Employee.
(b)
“Years of Service”
means a continuous complete twelve-month period commencing on an Eligible Employee’s date of hire with the Company or an Employer and anniversaries thereof, during which the Eligible Employee is employed by the Company or an Employer, and ending on the date on which the Eligible Employee is notified, in writing, pursuant to Section 2(a)(1) of the Plan that he or she is eligible for participation in the Plan. For purposes of the foregoing, an Eligible Employee will receive credit for any time on a paid leave of absence, but not for time on an unpaid leave of absence.
3.
Other Employee Benefits.
All other benefits (such as life insurance, disability coverage, and 401(k) plan coverage) terminate as of the Eligible Employee’s termination date (except to the extent that a conversion privilege may be available thereunder).
4.
Reductions Pursuant to Section 3(c) of the Plan.
The severance benefits set forth in this Appendix B are subject to certain reductions under Section 3(c) of the Plan.
The foregoing severance benefits are subject to such change as the Company, pursuant to Section 3(a) of the Plan, may determine in its sole and absolute discretion. Any such change in severance benefits shall be set forth in a revised version of this Appendix B.
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Appendix B Adopted: March 7, 2017
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|
OMNICELL, INC.
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By:
|
/s/ Dan S. Johnston
|
|
|
|
|
|
Title:
|
EVP and Chief Legal & Administrative Officer
|
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|
Exhibit 10.2
FIRST AMENDMENT TO CREDIT AGREEMENT AND
COLLATERAL AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND COLLATERAL AGREEMENT (this “
First Amendment
”), dated as of April 11, 2017, is entered into by and among OMNICELL, INC., a Delaware corporation (the “
Borrower
”), each Subsidiary Guarantor (as defined in the Credit Agreement (as defined below)) party hereto; each Lender (as defined in the Credit Agreement) party hereto; and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as administrative agent for the Lenders under the Credit Agreement (the “
Administrative Agent
”). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Credit Agreement.
RECITALS
WHEREAS
, the Borrower has entered into that certain Credit Agreement, dated as of January 5, 2016 (as amended through the date hereof, the “
Credit Agreement
”), with the Lenders from time to time party thereto and the Administrative Agent;
WHEREAS
, the Borrower and the Subsidiary Guarantors have entered into the Collateral Agreement with the Administrative Agent;
WHEREAS
, the Borrower has requested certain amendments to the Credit Agreement and the Collateral Agreement as more fully described herein;
WHEREAS
, the Required Lenders have consented and agreed to the Borrower’s requested amendments subject to the terms and conditions set forth in this First Amendment, as evidenced by the signatures of the Lenders party hereto; and
WHEREAS
, by executing this First Amendment, the Borrower and each Subsidiary Guarantor reaffirms, after giving effect to each of the requested amendments, its obligations under each of the Guaranty Agreement, the Collateral Agreement and each other Loan Document (in each case as amended by this First Amendment).
NOW
,
THEREFORE
,
in consideration of the premises and the agreements, provisions and covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
SECTION 1.
AMENDMENTS / WAIVERS
.
(a)
Section 1.1 of the Credit Agreement is hereby amended by adding the following new defined terms in appropriate alphabetical order:
““
Aesynt Lease
” means that certain Lease, dated as of December 21, 2001 (as amended, restated or otherwise modified from time to time), between McKnight Cranberry III, L.P. and Aesynt Incorporated.”
““
First Amendment
” means the First Amendment to Credit Agreement, dated as of April 10, 2017, among the Borrower, the Subsidiary Guarantors party thereto, the Administrative Agent, and the Lenders party thereto.”
““
First Amendment Effective Date
” has the meaning assigned thereto in the First Amendment.”
(b) Section 9.3(k) of the Credit Agreement is hereby amended and restated in its entirety as follows:
“(k) (i) Guaranty Obligations not prohibited by
Section 9.1
in respect of (A) Indebtedness of Credit Parties and (B) other obligations of Credit Parties not prohibited by this Agreement, (ii) Guaranty Obligations not prohibited by
Section 9.1
in respect of (A) Indebtedness of Non-Guarantor Subsidiaries and (B) other obligations of Non-Guarantor Subsidiaries not prohibited by this Agreement (other than obligations of the type described in clause (iii) below and obligations with respect to the Aesynt Lease);
provided
that Guaranty Obligations incurred after the Closing Date by Credit Parties in respect of obligations
of Non-Guarantor Subsidiaries pursuant to this
Section 9.3(k)(ii)
shall not exceed in the aggregate at the time any such Guaranty Obligation is incurred, an amount equal to, at any time outstanding, $15,000,000, (iii) Guaranty Obligations of Credit Parties not prohibited by
Section 9.1
in respect of obligations of Non-Guarantor Subsidiaries under Secured Cash Management Agreements and Secured Hedge Agreements in an aggregate amount not to exceed $15,000,000 at any time, and (iv) Guaranty Obligations not prohibited by
Section 9.1
in respect of the Aesynt Lease;”
(c) Section 9.3(t) of the Credit Agreement is hereby amended by deleting the reference therein to “$10,000,000” and replacing it with “$20,000,000”.
(d) Section 9.13 of the Credit Agreement is hereby amended by deleting the reference therein to “$35,000,000” and replacing it with “$45,000,000”.
(e) Section 7(a) of the Collateral Agreement is hereby amended and restated in its entirety as follows:
“(a) not permit any of the Inventory or Equipment (other than Permitted Off-Site Inventory and Equipment) to be kept at a location other than those listed on
Schedule 2B
to the Perfection Certificate, which may be updated from time to time by delivery of a written notice to the Administrative Agent;”
SECTION 2.
REPRESENTATIONS AND WARRANTIES; NO EVENTS OF DEFAULT
.
The Borrower and each Subsidiary Guarantor party hereto represents and warrants that, as of the First Amendment Effective Date:
(a) the representations and warranties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty is true and correct in all respects, on and as of the First Amendment Effective Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty remains true and correct in all material respects as of such earlier date, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects as of such earlier date); and
(b) no Default or Event of Default has occurred and is continuing as of the First Amendment Effective Date, or will occur as a result of giving effect to the amendments contemplated by this First Amendment.
SECTION 3.
REAFFIRMATION OF GUARANTEES AND SECURITY INTERESTS
.
(a)
The Borrower and each Subsidiary Guarantor party hereto hereby consents to the terms and conditions of this First Amendment.
(b)
The Borrower and each Subsidiary Guarantor party hereto hereby: (i) reaffirms and confirms, immediately before and after giving effect to the amendments to the Loan Documents contemplated herein, its guarantees, pledges, grants (including, but not limited to, its grant of a security interest in the Collateral in favor of the Administrative Agent for the ratable benefit of the Secured Parties) and other undertakings under the Loan Documents to which it is a party; and (ii) agrees that: (A) each Loan Document to which it is a party shall, immediately after giving effect to the amendments to the Loan Documents contemplated herein, continue to be in full force and effect; and (B) all guarantees, pledges, grants (including, but not limited to, its grant of a security interest in the Collateral in favor of the Administrative Agent for the ratable benefit of the Secured Parties) and other undertakings thereunder shall, immediately after giving effect to the amendments to the Loan Documents contemplated herein, continue to be in full force and effect and shall accrue to the benefit of the Secured Parties.
SECTION 4.
CONDITIONS TO EFFECTIVENESS
.
Notwithstanding any provision herein to the contrary, this First Amendment, and the consents and approvals contained herein, shall be effective (such date, the “
First Amendment Effective Date
”) only if and when each of the following conditions is satisfied:
4.1 this First Amendment is signed by, and counterparts hereof are delivered to the Administrative Agent (by hand delivery, mail or telecopy) by, each Credit Party and the Required Lenders;
4.2 each of the representations and warranties contained in
Section 2
of this First Amendment are true and correct on and as of the First Amendment Effective Date; and
4.3 the Borrower shall have paid all fees and expenses of the Administrative Agent in connection with this First Amendment to the extent required by Section 12.3 of the Credit Agreement.
SECTION 5.
AUTHORIZATION TO MODIFY AND EXECUTE LOAN DOCUMENTS.
This First Amendment, when executed, shall be construed as an amendment and a supplement to the Credit Agreement and the Collateral Agreement and shall form a part of the Credit Agreement and the Collateral Agreement, as applicable. The undersigned Lenders, constituting the Required Lenders, hereby: (a) authorize and direct the Administrative Agent to execute this First Amendment; (b) consent to the transactions contemplated by this First Amendment; and (c) authorize and direct the Administrative Agent to take any and all actions and execute such documents as shall be required to give effect to or otherwise implement this First Amendment.
SECTION 6.
MISCELLANEOUS
6.1.
No Waiver; Continuing Effect of Loan Documents
. Except as specifically modified pursuant to the terms of this First Amendment: (a) the terms and conditions of the Credit Agreement and the other Loan Documents remain in full force and effect; and (b) nothing herein: (i) shall constitute a waiver, amendment or modification of any other provision of the Credit Agreement or any other Loan Document; or (ii) shall be construed as a waiver or consent to any further or future action on the part of the Borrower or any Subsidiary Guarantor. Nothing herein shall limit in any way the rights and remedies of the Administrative Agent or the Lenders under the Credit Agreement or under any other Loan Document. This First Amendment is a Loan Document under and as defined in the Credit Agreement.
6.2.
Counterparts
. This First Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this First Amendment by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this First Amendment.
6.3.
Severability
. Any provision of this First Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remainder of such provision or the remaining provisions hereof or thereof or affecting the validity or enforceability of such provision in any other jurisdiction.
6.4.
Governing Law
. This First Amendment, and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this First Amendment and the transactions contemplated hereby and thereby, shall be governed by, and construed in accordance with, the law of the State of New York.
[Signature pages follow]
[Signature Page to First Amendment to Credit Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be duly executed by their respective authorized officers as of the day and year first above written.
OMNICELL, INC.
,
a Delaware corporation,
as the
Borrower
By: ______/s/ Peter Kuipers_________
Name: ______Peter Kuipers_________
Title: _______CFO________________
MEDPAK HOLDINGS, INC.
,
a Delaware corporation,
as a
Subsidiary Guarantor
By: ______/s/ Rob Seim____________
Name: ______Rob Seim____________
Title: _______President_____________
MTS MEDICATION TECHNOLOGIES, INC.
,
a Delaware corporation,
as a
Subsidiary Guarantor
By: ______/s/ Peter Kuipers_________
Name: ______Peter Kuipers_________
Title: _______CFO________________
MTS PACKAGING SYSTEMS, INC.
,
a Florida corporation,
as a
Subsidiary Guarantor
By: ______/s/ Peter Kuipers_________
Name: ______Peter Kuipers_________
Title: _______CFO________________
[Signature Page to First Amendment to Credit Agreement, continued]
WELLS FARGO BANK, NATIONAL ASSOCIATION
,
as the
Administrative Agent
and a
Lender
By: _____________/s/ Teddy Koch_________
Name: _____________Teddy Koch_________
Title: ______________Director____________
JPMorgan Chase Bank, N.A.,
as a
Lender
By: __________/s/ Marshall Trenckmann_____
Name: __________Marshall Trenckmann_____
Title: ___________Executive Director________
HSBC BANK USA, N.A.,
as a
Lender
By: ___________/s/ Tyler J. Mei__________
Name: ___________Tyler J. Mei__________
Title: ____________VP, Global Relationship Manager___
Comerica Bank,
as a
Lender
By: _____________/s/ Mark C. Skrzynski, Jr._____
Name: _____________Mark C. Skrzynski, Jr._____
Title: ______________Vice President____________
Fifth Third Bank,
as a
Lender
By: _____________/s/ Thomas Avery____________
Name: _____________Thomas Avery____________
Title: ______________Vice President____________
[Signature Page to First Amendment to Credit Agreement, continued]
Bank of the West,
as a
Lender
By: _____________/s/ Terry Switz_______________ _
Name: _____________Terry Switz_______________ _
Title: ______________Director___________________
COMPASS BANK,
as a
Lender
By: _____________/s/ Joseph W. Nimmons_________
Name: _____________Joseph W. Nimmons_________
Title: ______________Relationship Manager________
MUFG Union Bank, N.A,
as a
Lender
By: _____________/s/ Teuta Ghilaga______________
Name: _____________Teuta Ghilaga______________
Title: ______________Director___________________
SUNTRUST BANK,
as a
Lender
By: _____________/s/ Min Park__________________
Name: _____________Min Park__________________
Title: ______________Vice President______________
Citizens Bank, N.A.,
as a
Lender
By: _____________/s/ Prasanna Manyem___________
Name: _____________Prasanna Manyem___________
Title: ______________Vice President______________
Exhibit 10.3
FIFTH AMENDMENT TO LEASE
THIS FIFTH AMENDMENT TO LEASE (this “
Fifth Amendment
”) is made as of the 28th day of April, 2017, between
McKnight Cranberry III, L.P.
, a Delaware limited Partnership
(“
Landlord
”), and
Aesynt Incorporated
, formerly known as McKesson Automation Inc.
WHEREAS, Landlord and Tenant are parties to that certain Lease dated December 21, 2001 (the “
Original Lease
”), a certain First Amendment to Lease dated February 8, 2005 (the “
First Amendment
”), a certain Second Amendment to Lease dated April 21, 2008 (the “
Second Amendment
”), a certain Third Amendment to Lease dated January 11, 2011 (the “
Third Amendment
”) and a certain Fourth Amendment to Lease dated October 29, 2013 (the “
Fourth Amendment
”) pursuant to which Tenant leases, prior to this Fifth Amendment, approximately one hundred two thousand seven hundred forty-one (102,741) rentable square feet (“
Existing
Premises
”) of a certain building located at 500 Cranberry Woods Drive, Cranberry Township, Pennsylvania (“
Building
”);
WHEREAS, the Original Lease, the First Amendment, the Second Amendment, the Third Amendment and the Fourth Amendment are collectively referred to herein as the “
Lease
”;
WHEREAS, the Term of the Lease is scheduled to expire on December 31, 2019;
WHEREAS, Landlord and Tenant desire to amend the Lease to (i) expand the Existing Premises by adding thereto Suite 100 containing 7,374 rentable square feet and Suite 150 containing 6,143 rentable square feet on the 1
st
floor of the Building, (ii) extend the Term of the Lease by one hundred eight (108) calendar months, and (iii) revise certain other provisions of the Lease in accordance with the terms of this Fifth Amendment.
NOW THEREFORE, in consideration for the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, Landlord and Tenant, intending to be legally bound hereby, agree that the following modifications shall be made to the Lease:
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1.
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Recitals.
The foregoing recitals are incorporated herein by reference and made a part of this Fifth Amendment as though fully set forth herein. All capitalized terms used but not otherwise defined or re-defined in this Fifth Amendment shall have the meaning ascribed to them in the Lease. For purposes of this Fifth Amendment, (i) the term “
Fifth Amendment Effective Date
” shall mean the date on which this Fifth Amendment is fully executed and delivered by and between Landlord and Tenant, (ii) the term “
Fifth Amendment Commencement Date
” shall mean the date that is one hundred fifty (150) days following the Fifth Amendment Effective Date, (iii) the term “
Fifth Amendment Rent Commencement Date
” shall mean the date that is one
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hundred eighty (180) days following the Fifth Amendment Effective Date, and (iv) the term “
Fifth Amendment Expansion Premises
” shall mean Suite 100 containing 7,374 rentable square feet and Suite 150 containing 6,143 rentable square feet on the 1
st
floor of the Building as depicted on
Fifth Amendment Exhibit A
attached hereto and made a part of this Fifth Amendment and the Lease. Landlord and Tenant shall, within ten (10) days after the written request of either, execute a letter acknowledging the dates on which the Fifth Amendment Effective Date, the Fifth Amendment Commencement Date and the Fifth Amendment Rent Commencement Date occurred, provided, however, the failure to do so will not affect the determination of such dates.
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2.
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Premises
. Effective on and after the Fifth Amendment Effective Date, the term “
Premises
” when referred to in this Fifth Amendment and in the Lease shall mean
116,258
rentable square feet consisting of (i) the Existing Premises containing 102,741 rentable square feet on a portion of the 1
st
floor and the entire 2
nd
, 3
rd
, and 4
th
floors of the Building, and (ii) the Fifth Amendment Expansion Premises containing 13,517 rentable square feet on the 1
st
floor of the Building.
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3.
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Lease Term.
Notwithstanding anything to the contrary contained in the Lease, the Lease Term is hereby extended for a period of 108 full calendar months beginning on January 1, 2020 (“
Third Extended Term
”) so that the Lease Term shall expire on December 31, 2028 (“
Expiration Date
”), subject to Tenant’s Renewal Option as set forth in Paragraph 9 of this Fifth Amendment.
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4.
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Base Rent.
Prior to the Fifth Amendment Rent Commencement Date, Tenant shall continue to pay Base Rent in the amount of $216,184.19 as set forth in the Lease (see paragraph 4 of the Fourth Amendment). Notwithstanding anything to the contrary contained in the Lease, on and after the Fifth Amendment Rent Commencement Date, Tenant shall pay to Landlord Base Rent for the Premises in monthly installments on the first day of each calendar month, in advance, without offset or deduction of any kind, as follows:
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(i) $244,626.21 per month (based on an annual rate of $25.25 per rentable square foot of the Premises) during the period of the Lease Term beginning on the Fifth Amendment Rent Commencement Date (as prorated for less than a full calendar month if the Fifth Amendment Rent Commencement Date is not the first day of a calendar month) and ending on December 31, 2017;
(ii) $249,470.29 per month (based on an annual rate of $25.75 per rentable square foot of the Premises) during the period of the Lease Term beginning on January 1, 2018 and ending on December 31, 2019;
(iii) $251,892.33 per month (based on an annual rate of $26.00 per rentable square foot of the Premises) during the period of the Lease Term beginning on January 1, 2020 and ending on December 31, 2020;
(iv) $254,314.38 per month (based on an annual rate of $26.25 per rentable square foot of the Premises) during the period of the Lease Term beginning on January 1, 2021 and ending on December 31, 2021;
(v) $256,736.42 per month (based on an annual rate of $26.50 per rentable square foot of the Premises) during the period of the Lease Term beginning on January 1, 2022 and ending on December 31, 2022;
(vi) $261,580.50 per month (based on an annual rate of $27.00 per rentable square foot of the Premises) during the period of the Lease Term beginning on January 1, 2023 and ending on December 31, 2023;
(vii) $264,002.54 per month (based on an annual rate of $27.25 per rentable square foot of the Premises) during the period of the Lease Term beginning on January 1, 2024 and ending on December 31, 2024;
(viii) $266,424.58 per month (based on an annual rate of $27.50 per rentable square foot of the Premises) during the period of the Lease Term beginning on January 1, 2025 and ending on December 31, 2025;
(ix) $271,268.67 per month (based on an annual rate of $28.00 per rentable square foot of the Premises) during the period of the Lease Term beginning on January 1, 2026 and ending on December 31, 2026;
(x) $273,690.71 per month (based on an annual rate of $28.25 per rentable square foot of the Premises) during the period of the Lease Term beginning on January 1, 2027 and ending on December 31, 2027; and
(xi) $276,112.75 per month (based on an annual rate of $28.50 per rentable square foot of the Premises) during the period of the Lease Term beginning on January 1, 2028 and ending on December 31, 2028
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5.
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Tenant’s Share.
Prior to the Fifth Amendment Commencement Date, Tenant’s Share shall remain at 86.02% (see paragraph 5 of the Fourth Amendment). Notwithstanding anything to the contrary contained in the Lease, Landlord and Tenant acknowledge and agree that, beginning on the Fifth Amendment Commencement Date and ending on the Expiration Date, Tenant’s Share shall be 97.33% (116,258 / 119,444), as may be adjusted from time to time in accordance with Section 1.2 of the Original Lease.
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6.
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Operating Cost Base Year, Janitorial, HVAC Charge.
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(a)
Operating Cost Base Year
. Prior to January 1, 2020, Tenant’s Operating Costs Base Year shall remain Calendar Year 2017. Notwithstanding anything to the contrary contained in the Lease, Landlord and Tenant acknowledge and agree that beginning
on January 1, 2020 and ending on the Expiration Date, the Operating Costs Base Year shall be Calendar Year 2020.
(b)
Janitorial
. Tenant, Landlord and Landlord’s cleaning and janitorial services provider shall meet periodically, at intervals reasonably requested by Tenant, to review the performance of such janitorial services provider and to address the reasonable requirements and requests of Tenant regarding the cleaning and janitorial services provided by Landlord. Landlord shall use reasonable efforts to accommodate Tenant’s requirements and requests.
(c)
Additional HVAC Sevices
. Notwithstanding anything to the contrary contained in the Lease, If Tenant requests that Landlord furnish HVAC service to the Premises at times other than Normal Business Hours, Tenant shall pay to Landlord the sum of $37.50 per hour for each hour of HVAC service during other than Normal Business Hours.
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7.
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Real Estate Tax Base Year.
Prior to January 1, 2020, Tenant’s Real Estate Tax Base Year shall remain Calendar Year 2017. Notwithstanding anything to the contrary contained in the Lease, Landlord and Tenant acknowledge and agree that beginning on January 1, 2020 and ending on the Expiration Date, the Real Estate Tax Base Year shall be Calendar Year 2020.
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8.
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Condition of Premises, Tenant Improvement Allowance.
Tenant has inspected the Fifth Amendment Expansion Premises, is familiar with the condition of the Fifth Amendment Expansion Premises and accepts the Fifth Amendment Expansion Premises and the Existing Premises in current “as-is” condition, with all faults and without any work or improvement required of Landlord. Landlord shall deliver possession of the Fifth Amendment Expansion Premises to Tenant on the Fifth Amendment Effective Date. Notwithstanding anything to the contrary set forth in the Lease, Landlord shall not be responsible for performing any demolition, or any work or improvements to or at the Fifth Amendment Expansion Premises or the Existing Premises.
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On and after the Fifth Amendment Effective Date, Tenant shall, at Tenant's sole cost and expense, perform all necessary demolition work and install all improvements, fixtures and equipment in the Premises as reasonably required by Tenant for the conduct of Tenant's business ("
Tenant's Work
"). Tenants Work may include, but not be limited to, relocating Tenant’s existing Demo Lab from the 4
th
floor of the Existing Premises to the 1
st
floor of the Building, constructing a Performance Center, Solution Center and a Robot Lab on the 1
st
floor of the Building and upgrading the lighting, painting, ceiling tiles and carpeting in the Existing Premises. In addition, Tenant’s Work may include, subject to approval by the Cranberry Woods Owner’s Association, Inc. and its review committees, exterior doors with direct access to Tenant’s Premises for the delivery of products and shipments to the Premises. Upon installation of such exterior doors, Tenant shall be entitled to conduct shipping and receiving functions during
Tenant’s normal business hours of operation, notwithstanding anything in the Lease to the contrary.
All Tenant’s Work shall be (i) completed in accordance with the plans and specifications approved by Landlord; (ii) completed in accordance with all applicable laws, statutes, ordinances, codes, rules and regulations, including all permitting and approval requirements; (iii) carried out promptly in a good and workmanlike manner; (iv) comprised of all new materials and finishes at least equivalent in quality and quantity to materials and finishes existing at the Building and in accordance with the provisions of Article 15 of the Lease regarding Tenant’s Alterations; and (v) free of defect in materials and workmanship. Tenant shall prepare and obtain Landlord’s approval of the plans and specifications for Tenant's Work prior to commencing Tenant’s Work. Landlord's approval of the plans and specifications shall not be unreasonably withheld, delayed or conditioned and shall not be deemed to be a representation or warranty with regard to the sufficiency or compliance of the plans and specifications or the Tenant's Work. Tenant shall provide Landlord with proof of adequate insurance for the performance by Tenant or its contractors of all of Tenant’s Work. Tenant shall pay for all damage to the Premises, Building and Land caused by Tenant or Tenant’s contractors in the performance of Tenant’s Work. Tenant shall indemnify, defend and hold harmless Landlord and Landlord’s agents from any claims, damages, injury, costs and expenses including, but not limited to mechanic’s liens, arising as a result of Tenant’s Work or any defect in design, material or workmanship of any Tenant’s Work. The architect and contractor for the planning and construction of Tenant's Work shall be subject to Landlord’s reasonable approval.
As a contribution to the performance of Tenant's Work, Landlord shall contribute, as Tenant's improvement allowance, an amount equal to the lesser of (a) the actual cost of Tenant’s Work or (b) $2,390,018.00 ("
Tenant Improvement Allowance
"). Tenant shall have the right to use the Tenant Improvement Allowance to pay the costs associated with Tenant's Work at the Premises, which shall include (i) all hard costs to complete Tenant's Work (such as labor and materials, general conditions, rubbish removal, utilities, building permits, inspections fees, insurance and the like), (ii) all soft costs to complete Tenant's Work (such as architectural and engineering fees, and the cost of plans and specifications), (iii) construction management fees, and (iv) any sales tax levied on the Tenant's Work. To the extent that the actual cost of Tenant’s Work is less than $2,390,018.00, such difference shall be retained by Landlord, and Tenant shall not be entitled to any payment of or any rent credit for the amount of such difference.
Landlord’s payment of the Tenant Improvement Allowance shall be disbursed to Tenant in periodic progress draws (requested no more than once in any ninety (90) day period) within forty-five (45) days after the requisite request and documentation therefor are submitted by Tenant and received by Landlord (“
Periodic Request
”). The final payment of the Tenant Improvement Allowance shall be disbursed to Tenant within forty-five (45) days after Substantial Completion of Tenant’s Work and the requisite
request and documentation therefor are submitted by Tenant and received by Landlord (“
Final Request
”).
With each Periodic Request, Tenant shall submit to Landlord (i) a statement by Tenant that the Tenant Improvements documented in such Periodic Request have been completed, to the extent applicable to the date of such Periodic Request, in accordance with the requirements of this Lease, (ii) an Architect’s certificate detailing the percentage of the Tenant’s Work completed through the date applicable to such Periodic Request, (iii) invoices for the cost of Tenant’s Work applicable to such Periodic Request, and (iv) a waiver of lien from each contractor, subcontractor, materialman and supplier providing materials, services or labor for the performance of such Tenant’s Work evidenced by such invoices, which waivers shall be final as to all work for which contractor, subcontractor or supplier has been paid previously and may be conditioned on Tenant’s payment to such contractor, subcontractor, materialman and supplier of a specific sum identified in such waiver as then currently owing. Each periodic funding shall be in an amount equal to 80% of Tenant’s Periodic Request based on percentage completion certified by the architect. Upon Tenant’s Final Request, 100% of the cost of Tenant’s Work shall be funded. With the Final Request Tenant shall submit to Landlord (1) an architect’s certificate stating that Tenant has fully completed the Tenant’s Work at the Premises in material accordance with Tenant’s plans and specifications, as approved by Landlord, and all applicable statutes, laws, ordinances, codes and regulations pertaining to such Tenant’s Work, (2) an Affidavit signed by the appropriate officer or individual partner of Tenant identifying all contractors, subcontractors, materialmen and suppliers used by Tenant for the Tenant’s Work, (3) a final and unconditional waiver of lien from all contractors, subcontractors, materialmen and suppliers providing materials, services or labor for the performance of the Tenant’s Work, (4) a copy of Tenant’s “as built” plans, and Tenant’s occupancy certificate for the Premises, and (5) invoices for all Tenant’s Work applicable to such Final Request.
Prior to the commencement of construction of the Tenant’s Work, Tenant shall obtain an estimate of the cost of Tenant’s Work from the contractor and all other vendors and suppliers selected by Tenant for review by Landlord. In the event the estimated cost of Tenant’s Work exceed the Tenant Improvement Allowance, or remaining balance thereof, Landlord and Tenant shall fund the cost of Tenant’s Work,
pari passu
, so that each agrees to pay its proportionate share of the estimated cost of Tenant’s Work in progress payments as provided above based on the percentage of the Tenant’s Work completed, provided, however, that the entire amount paid by Landlord based on Landlord’s proportionate share shall in no event exceed the Tenant Improvement Allowance.
Tenant shall not be entitled to payment of the Tenant Improvement Allowance until such time as Tenant shall satisfy the applicable foregoing conditions. Tenant hereby waives any Tenant Improvement Allowance not requested by Tenant in accordance with the procedures contained in this Fifth Amendment prior to December 31, 2019.
Landlord shall not disburse to Tenant the Tenant Improvement Allowance if Tenant is in default of this Lease beyond any applicable cure period.
9.
Renewal Option.
Article 50 of the Lease, as amended by Paragraph 11 of the
First Amendment, Paragraph 10 of the Second Amendment, Paragraph 12 of the Third Amendment and Paragraph 9 of the Fourth Amendment, shall be deleted in its entirety and in lieu thereof shall be inserted the following:
A.)
Renewal Option
. Tenant is hereby granted one (1) option (“
Renewal Option
”) to extend the Lease Term for a period of five (5) years (“
Renewal Term
”). Tenant may exercise the Renewal Option upon written notice (“
Renewal Notice
”) given to Landlord no earlier than 365 days and no later than 270 days before the Expiration Date of the Lease Term (“
Notice Period
”). If Tenant fails to give Landlord the Renewal Notice within the Notice Period, then Tenant shall be deemed to have elected not to exercise the Renewal Option and this Renewal Option shall be deemed to null and void; time being of the essence in with regard to delivery of the Renewal Notice.
B.)
Renewal Term
. If the Renewal Notice is timely given, the Renewal Term will be on the same terms and conditions as those contained in the Lease except as follows:
i. There shall be no further rights to renew after the exercise of the Renewal Option granted herein;
ii. Any Tenant Improvement Allowances, TI Allowance, rental concessions, Landlord’s Work or other such allowance or improvements provided by Landlord to Tenant in the Lease shall not be applicable in the Renewal Term;
iii. The Base Rent for the Renewal Term shall be 100% of the Fair Market Rental Value as determined by agreement between Landlord and Tenant or, if Landlord and Tenant are unable to agree, as set forth in sub-paragraph C immediately below. For purposes of this Article 50 the Fair Market Rental Value of the Premises shall be the amount that a willing, comparable, new (i.e., non-renewal), non-equity tenant would pay, and that a willing landlord of a comparable space, both in terms of size and age of the Premises and within a five (5) mile radius of Cranberry Woods Office Park, would accept at arms’ length. The Fair Market Rental Value for the Renewal Term may be less than or greater than the Base Rent paid by Tenant during the Lease Term. Appropriate consideration shall be given to (a) the annual rental rate per rentable square foot; (b) the definition of rentable square feet for purposes of comparing the rate; (c) location, quality and age of the Building; (d) the financial condition (e.g., creditworthiness) of Tenant; (e) escalation (including
type, base year and stop) and abatement provisions reflecting free rent and /or no rent during the period of construction; (f) brokerage commissions, if any, (g) length of the lease term; (h) size and location (including floor level) of the Premises; (i) building standard work letter and/or tenant improvement allowance, if any; provided, however, the Fair Market Rental Value shall not include any tenant improvements or any alterations made by Tenant; (j) condition of space; (k) lease takeover/assumptions; (l) moving expenses and other concessions; (m) extent of services to be provided; (n) distinctions between “gross” and “net” leases; (o) base year figures or expense stops for escalation purposes for both operating costs and ad valorem/real estate taxes; (p) the time the particular rental rate under consideration becomes or is to become effective; (q) applicable caps, if any, on the amount of real estate taxes and assessments passed through to tenants; and (r) other generally applicable conditions of tenancy for the space in question. Tenant shall obtain the same rent and other benefits that Landlord would otherwise give to any comparable prospective tenant.
iv.
Base Year
. Notwithstanding anything to the contrary contained in the Lease, the Operating Costs Base Year and Real Estate Tax Base Year during the entire Renewal Term shall be Calendar Year 2029.
C.)
Acceptance/Rejection
. If Landlord and Tenant are not able to agree on the Base Rent for the Renewal Term by a date which is two-hundred forty (240) days prior to the commencement date of the Renewal Term, then within thirty (30) days thereafter (“
Appointment Period
”) each party shall appoint a real estate appraiser with at least ten (10) years full time commercial appraisal experience in valuing leasehold commercial office space in the vicinity of the Premises to determine the Base Rent based on the then Fair Market Rental Value for the Renewal Term. If either party fails to appoint a real estate appraiser within the Appointment Period the Base Rent of the duly appointed appraiser shall control. The two (2) appraisers appointed by the parties shall meet to set the then Base Rent for the Renewal Term. If they are unable to agree within twenty (20) days after expiration of the Appointment Period, they shall select a third appraiser, who shall be a person who meets the qualifications set forth in this paragraph and who has not previously acted in any capacity for either party. If the two appraisers are unable to agree upon a third appraiser, either of the parties may apply to the then presiding judge of the Common Pleas Court of Butler County, Pennsylvania for the selection of the third (3
rd
) appraiser, who shall be a person who meets the qualifications set forth above. Landlord and Tenant shall each bear one-half (1/2) of the cost of appointing the third appraiser and of paying the third appraiser’s fee. As soon as possible following selection or appointment of the third appraiser, the appraisers shall set the Base Rent for the Premises for the Renewal Term. If a majority of the appraisers is unable to set the Base Rent within twenty (20) days after appointment of the third appraiser, the three (3) appraisals shall be added
together and their total divided by three (3); the resulting quotient shall be the Base Rent rate for the Premises for the Renewal Term. If the low appraisal is more than ten percent (10%) lower than the middle appraisal, the low appraisal shall be disregarded; if the high appraisal is more than ten percent (10%) higher than the middle appraisal, the high appraisal shall be disregarded. If only one appraisal is disregarded, the remaining two (2) appraisals shall be added together and their total divided by two (2), and the resulting quotient shall be the Base Rent rate for the Premises for the Renewal Term. If two of the appraisals shall be disregarded, the middle appraisal shall determine the Base Rent rate in the Renewal Term. Base Rent for the Renewal Term as so determined shall be effective as of the commencement date of the Renewal Term and shall be adjusted retroactively if determined after the commencement date of the Renewal Term.
D.)
Restrictions/Conditions
. Tenant’s Renewal Option shall be personal to Aesynt Incorporated, and shall terminate if (i) a Default shall exist at the time of exercise of the Renewal Option or the commencement date of the Renewal Term, or an event has occurred which with notice and the lapse of time shall be a Default if not cured at the time of exercise of the Renewal Option or the commencement date of the Renewal Term, (ii) the Lease or Tenant’s right to possession of the Premises has been terminated, (iii) Tenant transfers any of its interest in this Lease or any portion of the Premises except to an entity not requiring Landlord’s consent as provided in the Lease.”
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10.
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Expansion.
Article 52 of the Lease, as amended by Paragraph 12 of the First Amendment, Paragraph 13 of the Third Amendment and Paragraph 10 of the Fourth Amendment, shall be deleted in its entirety and in lieu thereof shall be inserted the following:
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“52. EXPANSION
52.1 Non-Exclusive Expansion Option
(a) During the Lease Term Tenant shall have the non-exclusive right (“
Expansion Option
”), but not the obligation, to add to the Premises any available office space in the Building that is then vacant and is not subject to a lease, letter of intent, term sheet or other such agreement for use or occupancy by a third party (“
Available Expansion Space
”). Tenant acknowledges and agrees that this Expansion Option is not exclusive to Tenant and, unless and until Tenant exercise this Expansion Option, Landlord shall have the unencumbered right (subject only to Tenant’s Right of First Refusal set forth in Section 52.2 below) to lease the Available Expansion Space to any person or entity on such terms as Landlord determines in its sole discretion.
(b) Tenant may exercise the Expansion Option at any time during the Lease Term by written notice identifying the portion of the Available Expansion Space that Tenant desires to add to the Premises (“
Office Expansion Space
”). The configuration of the Office Expansion Space shall be subject to Landlord’s reasonable approval based on the proportion of windows to rentable area, ingress, egress, access to common and core areas of the Building and the like with regard to both the Office Expansion Space and the remaining Available Expansion Space. Any Office Expansion Space with respect to which Tenant exercises its rights will be delivered by Landlord to Tenant in its “as-is” condition along with payment by Landlord to Tenant of an Office Expansion Allowance equal to the amount of $40.00 per square foot of rentable area of the Office Expansion Space desired by Tenant times a fraction, the numerator of which is the number of days remaining in the Lease Term after the applicable Office Expansion Space is added to the Premises and the denominator of which is the number of days during the period of the Lease Term beginning on the Fifth Amendment Commencement Date and ending on the Expiration Date. Any Office Expansion Space will become part of the Premises on the date on which Landlord delivers such Office Expansion Space to Tenant in the condition required herein and the Premises will then be deemed to include any such Office Expansion Space. All of the provisions of this Lease will apply to any Office Expansion Space added to the Premises, provided, however, Landlord will not be obligated to grant any concessions or allowances with respect to any Office Expansion Space except as set forth in this Section 52.1.
(c) The Base Rent rate for any Office Expansion Space will be the Base Rent rate in effect on the date on which the applicable Office Expansion Space becomes part of the Premises, subject to subsequent increases in Base Rent during the Lease Term. The Base Rent will be increased 150 days after the day on which the Office Expansion Space becomes part of the Premises by an amount equal to the product of (i) the number of rentable square feet of the applicable Office Expansion Space multiplied by (ii) the Base Rent per rentable square foot of the Premises in effect on the day on which the Office Expansion Space becomes part of the Premises. Tenant’s Share will be increased as of the day on which any Office Expansion Space becomes part of the Premises to a fraction whose numerator is the sum of the rentable square feet of the Premises and the new Office Expansion Space, and whose denominator is the rentable square feet of the Building.
(d) Tenant’s rights granted in this Paragraph are personal to Aesynt Incorporated and shall terminate if (i) a Default shall exist at the time of exercise of the Expansion Option, or an event has occurred which with notice and the lapse of time shall be a Default if not cured at the time of exercise of the Expansion Option, (ii) the Lease or Tenant’s right to possession of the Premises has been terminated, (iii) Tenant transfers any of its interest in this Lease or any portion of the Premises except to an entity not requiring Landlord’s consent
as provided in the Lease or (iv) less than two full years remain in the Lease Term.
52.2 Right of First Refusal
(a)
Refusal Space/Offer
. Reference is made to any available office space in the Building that is then vacant and is not subject to a lease, letter of intent, term sheet or other such agreement for use or occupancy by a third party (“
Available Refusal Space
”). If during the Lease Term, Landlord receives a bona fide offer from a third party (“
Third Party Offer
”) to lease all or any portion of the Available Refusal Space (“Refusal Space”) and Landlord is willing to accept the terms of such Third Party Offer, Landlord shall first offer (“
Offer Notice
”) to lease to Tenant the Refusal Space on the same terms and conditions as the Third Party Offer; such Offer Notice shall be in writing, specify the rent to be paid for the Refusal Space, contain the other basic terms and conditions of the Third Party Offer and the date on which the Refusal Space shall be included in the Premises. Tenant shall notify Landlord in writing whether Tenant elects to lease all of the Refusal Space on the same terms and conditions as the Third Party Offer set forth in the Offer Notice within fifteen (15) business days after Landlord delivers to Tenant the Offer Notice, time being of the essence.
(b)
Acceptance
. If Tenant timely elects to lease the Refusal Space within such fifteen (15) business day period, then Landlord and Tenant shall execute an amendment to the Lease, effective as of the date the Refusal Space is to be included in the Premises, on the same terms as the Lease except (i) the Base Rent rate for the Refusal Space shall be the amount specified in the Offer Notice, (ii) the lease term for the Refusal Space shall be that specified in the Offer Notice and, if the lease term in the Offer Notice extends beyond the expiration of the Lease Term of this Lease, Tenant shall be permitted to extend the Lease Term of this Lease to be coterminous with the lease term for the Refusal Space, (iii) the Refusal Space shall be delivered to Tenant and Tenant shall take same in “as-is” condition, and Landlord shall not be required to construct any tenant improvements in the Refusal Space or provide to Tenant any allowances other than those contained in the Offer Notice, if any, and (iv) any other terms set forth in the Lease which are inconsistent with the terms of the Offer Notice shall be modified accordingly with respect to the Refusal Space. Notwithstanding the foregoing, if the Offer Notice includes space in excess of that desired by Tenant, Tenant must exercise its right hereunder, if at all, as to all of the space contained in the Offer Notice. If the Offer Notice is for less than all the Available Refusal Space, then the Right of First Refusal shall continue for the remainder of any Available Refusal Space.
(c)
Rejection
. If Tenant fails or is unable to timely exercise its right hereunder, then such right shall lapse, time being of the essence with respect to the exercise
thereof, and Landlord may lease the portion of the Refusal Space described in the Offer Notice to the third party on the terms contained in the Offer Notice or such terms as Landlord may elect.
(d)
On-Going Right
. Not used
(e)
Exclusion
. Not used.
(f)
Restrictions
. This Right of First Refusal is personal to Aesynt Incorporated and shall terminate if (i) a Default shall exist at the time of Tenants’ election to lease the Refusal Space, or an event has occurred which with notice and the lapse of time shall be a Default if not cured at the time of Tenant’s election to lease the Refusal Space, (ii) the Lease or Tenant’s right to possession of the Premises has been terminated, (iii) Tenant transfers any of its interest in this Lease or any portion of the Premises except to an entity not requiring Landlord’s consent as provided in the Lease, or (iv) less than two full years remain in the Lease Term.”
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11.
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Tenant’s Early Termination Right.
Paragraph 12 of the Fourth Amendment is hereby deleted in its entirety and rendered null and void reflecting the intent of Landlord and Tenant that Tenant’s right to exercise the Termination Option set forth therein is without further force or effect.
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12.
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Tenant’s Address.
Notwithstanding anything to the contrary contained in the Lease, the Notice address for Tenant shall be as follows, until written notice of a change in address is issued to Tenant:
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Notices: Aesynt Incorporated
500 Cranberry Woods Drive
Cranberry, PA 16066
Copy to:
Omnicell, Inc.
590 E. Middlefield Road
Mountain View, CA 94043
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13.
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Brokers.
Tenant was represented in the transaction evidenced by this Fifth Amendment by Colliers International/Pittsburgh (Patrick Sentner), a licensed real estate broker (“
Tenant’s Broker”).
Landlord also was represented in the transaction evidenced by this Fifth Amendment by CBRE (Ralston Merchant) (“
Landlord’s Broker
”). Landlord shall be solely responsible for paying the commission or fee owed to the Tenant’s Broker and the Landlord’s Broker in accordance with a mutually acceptable separate commission agreement. Each party to this Fifth Amendment shall indemnify, defend and hold harmless the other party from and against any and all claims asserted against such other indemnified party by any other real estate broker, finder or intermediary claiming representation of the indemnifying party (excluding, with
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regard to Tenant, Tenant’s Broker and the Landlord’s Broker) in connection with this Fifth Amendment.
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14.
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Effect.
All other terms, conditions, covenants, agreements and provisions contained in the Lease that are not revised by or in conflict with the terms of this Fifth Amendment shall remain in full force and effect and are hereby ratified and confirmed by Landlord and Tenant to the extent consistent with this Fifth Amendment.
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15.
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No Offer.
The submission of this Fifth Amendment to Tenant or its broker or other agent does not constitute an offer. This Fifth Amendment shall have no force or effect until: (a) it is executed and delivered by Tenant to Landlord; and (b) it is executed and delivered by Landlord to Tenant.
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Fifth Amendment to be executed as of the date first written above.
LANDLORD:
MCKNIGHT CRANBERRY III, L.P.
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By:
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McKnight Cranberry III GP, LLC, General Partner
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By: _____
/s/ William C. Rudolph
________
William C. Rudolph, Managing Member
TENANT:
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ATTEST
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AESYNT INCORPORATED, a Pennsylvania corporation
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By: ____
/s/ Michelle Smith
__________ _
Michelle Smith, Executive Assistan
t___
By: __/s/ Peter Kuipers_________________ ________
Peter Kuipers,
_
CFO
____________
FIFTH AMENDMENT EXHIBIT A
