<PAGE>
EXHIBIT 99.2
AGREEMENT
This Agreement, entered into this 22nd day of June, 2000, by and
between CELERITY SYSTEMS, INC., a Delaware corporation, with an address of 122
Perimeter Park Drive, Knoxville, Tennessee 37922 ("Celerity"), and WIT
TECHNOLOGIES INC. a Washington corporation, with an address of 9020 Greenwood
Ave. N., Seattle, WA 98103 ("WIT").
WHEREAS, Celerity designs and manufactures digital set top boxes and
digital video servers; and
WHEREAS, WIT desires to have Celerity manufacture such set top boxes
and servers for its use;
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein and for other good and valuable consideration, the parties
hereby agreed as follows:
1. WIT agrees, for a period of five (5) years following the date of
this Agreement, to purchase all of its requirements for set top boxes from
Celerity; provided that if Celerity advises WIT that it is unable or unwilling,
for any reason, to timely fill any order (or portion thereof), then WIT shall be
free to purchase from a third-party a number of units not to exceed the number
of units included in the order (or portion thereof) that Celerity advised WIT it
was unable to fill. WIT's requirements shall be deemed to include all
requirements of end-users for which WIT is acting as agent, contractor,
subcontractor or system integrator or is otherwise acting, directly or
indirectly, in an intermediary capacity in connection with the sale or lease of
set top boxes or systems including set top boxes. WIT agrees to order a minimum
of five hundred thousand (500,000) set top boxes from Celerity within a period
of five (5) years following the date of this Agreement (less any set top boxes
purchased from a third-party as provided above), beginning with an initial order
which will be placed not later than September 30, 2000. Celerity also agrees to
provide WIT with three (3) set top boxes for use as demonstrators. WIT's
purchase obligations under this Section 1 shall cease if Celerity's set top
boxes fail to meet the standards attached hereto as Exhibit A. In the event Wit
fails to meet the minimum purchase obligation, Celerity is entitled to
liquidated damages, payable by wire transfer of immediately available funds to
an account designated by Celerity, in the amount of $100,000. The parties
acknowledge that as of the date hereof, the actual loss to Celerity is incapable
of precise estimation and that the amount of such liquidated damages is fair and
reasonable and bears a fair and reasonable relation, based on the circumstances
existing as of the date hereof, to the probable loss as a result of WIT's
failure to fulfill its obligations hereunder.
- 1 -
<PAGE>
2. Celerity agrees to sell WIT up to three (3) CTL 7000 and any
number of CTL 9500 digital video servers within one year following the date of
this Agreement. Celerity may, from time to time, advise WIT that Celerity is
selling or planning to sell digital video servers and other products that may
meet WIT's requirements. WIT agrees to give due, good faith consideration to the
purchase of these servers and other products, to the extent that they meet WIT's
requirements. Celerity also agrees to provide WIT with a CTL 7000 or a CTL 9500
digital video server for up to one (1) year following delivery to WIT for use as
a demonstration unit (the "Demonstration Unit"). In turn, WIT agrees that (i) it
will pay the freight charges for delivery of the Demonstration Unit to WIT in
Seattle, Washington; (ii) it will provide a suitable location for the
Demonstration Unit pursuant to the written specifications set forth on Exhibit
E; (iii) it will maintain at least two (2) individuals who are trained in the
use of the Demonstration Unit; (iv) it will keep the Demonstration Unit in good
repair and will notify Celerity of any problems or issues that arise with
respect to the Demonstration Unit; (v) it will not change, alter or modify the
Demonstration Unit, including, without limitation, any software associated with
the Demonstration Unit, without the prior written consent of Celerity; and (vi)
Celerity, upon reasonable notice to WIT, may use the Demonstration Unit for its
own use.
3. All purchases by WIT of set top boxes and digital servers (the
"Products") pursuant to this Agreement shall be pursuant to the terms set forth
in Exhibits B and C (applicable to set top boxes) and Exhibit D (applicable to
digital servers) annexed hereto and in accordance with Celerity's standard terms
and conditions, as specified from time to time. Celerity may accept or reject
any purchase orders in its sole discretion.
4. Celerity agrees that WIT may specify its own trademark, logo or
other identifying mark or designation ("Label") to be affixed to the Products.
WIT agrees to pay any incremental cost for affixing a Label to a Product up to
$500 per Label per Product. In addition, WIT agrees to provide camera ready art
in the form required to affix any such Label. WIT agrees that it will assume all
responsibility for and indemnify and hold Celerity harmless against any
trademark infringement claim or other third party action based in any way on any
WIT-designated Label affixed or to be affixed to the Products supplied by
Celerity.
5. (a) Subject to the remaining terms of this Section 5(a) and to
Section 5(b), Celerity agrees that neither it nor any subsidiaries, affiliates,
officers, employees or agents (collectively, "Affiliates" and, singly, an
"Affiliate") of Celerity will, without the specific prior written permission of
WIT, directly or indirectly, sell (or seek to sell) any products or services to
any of the following person or entities (collectively, "Covered Persons"): any
corporation, partnership, limited liability company or other entity or
individual introduced to it by WIT; provided that Celerity shall not be
prohibited from selling (or seeking to sell) any products or services to any
Covered Person if any third party initiates contact between Celerity and a
Covered Person or arranges (or seeks to arrange) for the sale, directly or
indirectly, by Celerity of products or services to a Covered Person, other than
as a result of Celerity's referring such third party to such Covered Person. The
parties acknowledge that Celerity's customers and other third parties are not
prohibited from making contact with, dealing with or otherwise being involved
with a Covered Person. The
- 2 -
<PAGE>
obligations of Celerity under this Section 5(a) shall expire upon the date that
is six (6) months following the later of the date that (i) WIT has effected
direct contact between Celerity and a Covered Person, as described in clause (A)
of Section 5(b) below or (ii) Celerity has completed performance under any order
for products to be sold by WIT to such Covered Person.
(b) WIT may, from time to time, identify persons or entities
(collectively, "Persons") whom it intends to be Covered Persons by notice in
writing to Celerity naming such Covered Person and WIT's principal contact or
contacts at such Covered Person. Each Person named as a Covered Person in such
notice shall be deemed to be a Covered Person, unless (i) Celerity shall, within
ten (10) business days following receipt of such notice, object to such notice
on the grounds that (A) Celerity is already engaged in a business relationship
with such Person or (B) Celerity has previously been engaged in a business
relationship with such Person or (ii) WIT shall not, within thirty (30) days
following such notice have either (A) effected a direct contact between such
Covered Person and Celerity by means of a meeting, telephone conversation or
correspondence, electronic or otherwise, or (B) entered into a purchase order
with Celerity for products to be sold by WIT to such Person.
6. Celerity agrees to sell to WIT one hundred thousand (100,000)
shares of Celerity's common stock on the date of execution of this agreement at
a price of $0.68 per share. Celerity's agreement to sell such shares is subject
to WIT's execution of a subscription agreement in the form attached hereto as
Exhibit F
7. In addition to the terms of Section 6, Celerity agrees to issue
warrants to purchase up to one million (1,000,000) shares of Celerity's common
stock for a period of five (5) years from the date of issue of each warrant at a
price equal to the Market Price (at the time of issuance) less fifteen (15%)
percent; provided, however, that all of such warrant issuances are subject to
shareholder approval if required. For purposes of this Agreement, "Market Price"
is defined as the average closing sales price of Celerity's common stock for the
five (5) trading days immediately prior to the end of the fiscal quarter
immediately prior to the date the warrant was issued; provided, however, that,
WIT shall only be entitled to purchase one warrant to purchase 20,000 shares for
each 10,000 digital set top boxes purchased and fully paid for by WIT up to the
maximum of warrants to purchase one million (1,000,000) shares. Purchases of
less than 10,000 set top boxes shall be aggregated with any other purchases that
have been fully paid and in respect of which warrants have not been issued;
however, Celerity will not be required to issue warrants for less than the
20,000 shares in connection with purchases of less than 10,000 set top boxes
that have not been aggregated to reach the 10,000 set top box threshold. The
warrants shall be substantially in the form of Exhibit G annexed hereto.
8. The parties acknowledge and agree that all information disclosed
and materials distributed in connection with this Agreement or the transactions
contemplated hereby is confidential information and that it will not disclose or
distribute to any person or use for its own account any such confidential
information, that (a) such confidential information shall remain the property of
the originating party, (b) unless otherwise authorized by the party or required
by law,
- 3 -
<PAGE>
the parties shall use the confidential information solely in connection with the
transactions contemplated hereby (a "Designated Purpose"), (c) the parties shall
not disclose such confidential information to anyone except (i) those of its
officers, directors, agents and employees with a need to know in connection with
the Designated Purpose, and shall notify each individual who is permitted access
to the confidential information that such disclosure has been made in
confidence, or (ii) as may be required by law or any legal process, and (d) the
parties shall not copy or reproduce any confidential information except to the
extent necessary for its permitted use. The parties agree to distribute a
mutually acceptable press release within two business days after execution of
this Agreement.
9. Unless renewed by the parties, this Agreement shall expire five
(5) years following the date hereof; provided that such expiration shall not
affect the parties' respective obligations arising prior to such termination.
10. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all other
agreements with respect thereto, oral or written. This Agreement may only be
modified or amended in a writing executed by both parties.
11. This Agreement shall inure to the benefit of and shall be binding
on the parties hereto and their respective successors and assigns.
12. This Agreement shall be construed and interpreted in accordance
with the internal laws of the State of Washington applicable to contracts made
and entirely to be performed within such state. In the event of litigation, the
prevailing party is entitled to an award of its attorneys' fees and costs.
13. All notices hereunder shall be in writing, shall be directed to
the parties at their respective addresses set forth above (or such other address
as either party may designate by notice to the other), and shall be effective
upon delivery by registered or certified mail, return receipt requested, by hand
delivery or by recognized national courier service.
14. If any provision of this Agreement is, becomes or is deemed
invalid or unenforceable in any jurisdiction, such provision shall be deemed
amended to conform to applicable law so as to be valid, legal and enforceable in
such jurisdiction. The validity, legality and enforceability of such provision
shall not in any way be affected or impaired thereby in any other jurisdiction.
If such provision cannot be so amended without materially altering the intention
of the parties, it shall be stricken in the jurisdiction so deeming, and the
remainder of this Agreement shall remain in full force and effect.
15. This Agreement may be executed one or more counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
- 4 -
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Agreement as of the date set forth above.
WIT TECHNOLOGIES, INC.
By: /s/ Charles K. Burger
--------------------------
Name:
Title:
CELERITY SYSTEMS, INC.
By: /s/ Kenneth D. Van Meter
--------------------------
Name: Kenneth D. Van Meter
Title: President
- 5 -
<PAGE>
EXHIBIT A
T 6000 SPECIFICATIONS
<TABLE>
<S> <C>
VIDEO INTERFACES
NTSC tuner/modulator 2 Universal Serial Bus (USB)
VGA out ports
Composite video out RS 232 port
S-video out CEB us
Video line in/out
AUDIO NETWORK
Musicam MPEG stereo audio out Ethernet-TM- 10BaseT
PC audio line out (headphone) ATM 25.6
Line in DAVIC AO Utopia NIM
interface
CONTROL DIMENSIONS
Universal infrared remote Weight: 6 pounds (2.7 kg)
Wireless keyboard (optional) Size
Wired keyboard (optional) Length: 11-5/8 inches (29.5
cm)
Width: 13 inches (33 cm)
Height: 2-7/8 inches (7.2 cm)
PROCESSOR MEMORY
Winchip 166-300 MHz or 32 MB DRAM
equivalent 2 MB Video RAM
5 MB FLASH
</TABLE>
- 6 -
<PAGE>
EXHIBIT B
T6000 DIGITAL SET TOP BOXES
Available volume Based on 90 day interval after receipt of order. Freight to be
paid by WIT from Celerity plant. Celerity may have multiple plants. As of the
date hereof, set top boxes are shipped from Taipei, Taiwan.
Terms are per verifiable line of credit or other arrangements as mutually agreed
upon.
<TABLE>
<CAPTION>
Year and quarter Maximum projected available volume PER MONTH
<S> <C>
2000 2Q 0
3Q 0 July
0 August
2,000 September
4Q 5,000
2001 1Q 25,000
2Q 25,000
3Q 45,000
4Q 50,000
2002 and beyond 100,000
</TABLE>
- 7 -
<PAGE>
EXHIBIT C
T 6000 DIGITAL SET TOP BOXES
<TABLE>
<CAPTION>
2000 Pricing per unit by quarter
<S> <C>
3Q $550 each
4Q $500 each
</TABLE>
<TABLE>
<CAPTION>
2001 Units per month Price per unit
<S> <C>
0-1,000 $500
1,001-2,500 480
2,501-5,000 460
5,001-10,000 440
10,001-20,000 420
20,001-50,000 400
50,001+ 380
</TABLE>
2002 and beyond
Pricing shall reflect no more than a 5% inflation adjustment above 2001
pricing or "most favored nation" pricing (best pricing offered on similar volume
for similar product to similar client on similar terms), whichever is less.
Freight to be paid by WIT from Celerity plant. Celerity will pay duties
and taxes. Pricing does not include wireless keyboard or energy management
software, or any other items identified as options in our brochure and price
list. Pricing is for the unit exactly as configured today. Opportunities may
exist for cost reduction by removing unnecessary features or components.
However, changes requested by customer that add features or components may
increase pricing. All such modifications will be negotiated at the time of
request.
- 8 -
<PAGE>
EXHIBIT D
DIGITAL VIDEO SERVERS
Celerity will sell to WIT up to three (3) CTL 7000 digital video servers for the
specific purpose of demonstration or demo sites, the price being $50,000 each,
FOB Knoxville, TN, installed.
Celerity will sell WIT any quantity of CTL 9500 digital video servers commencing
on the first availability date, which is anticipated to be September 30, 2000.
The price for such units is anticipated, depending upon size and features, to be
less than $50,000 each, FOB plant. Celerity agrees to provide most favored
nation pricing, as defined earlier, for such sales.
- 9 -
<PAGE>
EXHIBIT E
SPECIFICATIONS FOR DEMONSTRATION UNIT
To install a CTL 7000 you need the following:
1. A/C power - standard dedicated 110 VAC (like in your home) 20 Amp
service (15 amps will do, but there are times when other equipment
could be on this circuit).
2. Heating/Ventilation/Air Conditioning (HVAC) - The room must maintain a
temperature between 41 degrees F and 80 F with a relative humidity
between 40% and 80%.
3. Floor strength - The CTL 7000 weights 775 pounds and a pressure of 246
pounds per square inch on the floor.
4. Unit dimensions - H:76.5", W:28", D:30"
5. Access to cabinet - 6" on both sides of the 28" dimension, 26" front
and 26" back clearance for the front and back door (added to the 30"
depth).
6. Data cables - ATM: Category 5 (CAT 5) wiring for connection from the
FORE switch to the T 6000 Digital Set Top Box(es) with a maximum
distance of 100 meters, Ethernet: CAT 5 wiring from the rear of the T
6000 to the Internet Service Provider (ISP) usually through an Ethernet
Hub. The use of RJ-45 wall jacks for the ATM and Ethernet connections
makes the installation look much better.
7. ISP information required:
a. The DNS IP address
b. A static IP address for the T 6000
c. The IP address of the gateway
d. The subnet mask for the above
e. Do we have to deal with a proxy server?
8. Analog television feed cable - analog cable should available in the
demo room to connect to the rear of the T 6000 (F-connector).
- 10 -
<PAGE>
9. Connection to a display device - If S-Video or VGA connections (best
quality picture) are used from the T 6000, an audio cable and/or
speakers will be required.
- 11 -
<PAGE>
EXHIBIT F
FORM OF SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT
This Subscription Agreement (this "Agreement") dated as of June ___,
2000 is made between Celerity Systems, Inc., a Delaware corporation, with an
office at 122 Perimeter Park Drive, Knoxville, Tennessee 37932 (the "Company"),
and WIT Technologies, Inc, a Washington corporation, with an office at 9020
Greenwood Ave. N., Seattle, Washington 98103 (the "Subscriber"). The Subscriber
is subscribing for an aggregate of 1,000,000 shares (the "Shares") of the
Company's common stock, $.001 par value per share (the "Common Stock"), at an
aggregate purchase price (the "Purchase Price") of $________ or approximately
$____ per share.
WHEREAS, the Subscriber desires to subscribe for the Shares and the
Company desires to accept such subscription;
NOW, THEREFORE, in consideration of the premises and the agreements,
representations and warranties of the parties contained herein, the parties
hereby agree as follows:
13. AGREEMENT TO SUBSCRIBE. The Subscriber hereby irrevocably
subscribes for and agrees to purchase the Shares at the Purchase Price. The
Subscriber is enclosing with this Agreement a check (or checks) payable to the
order of the Company in the full amount of the Purchase Price.
14. ACCEPTANCE OF SUBSCRIPTION. Deposit and collection of any check
tendered herewith shall not be deemed an acceptance of the Subscriber's
subscription. The sole evidence of such acceptance shall be the delivery to the
Subscriber of a copy of this Agreement duly executed by an executive officer of
the Company. The Subscriber acknowledges that until such execution and delivery,
this subscription shall not have been accepted, and no sale of the Shares to the
Subscriber shall have occurred. Promptly following the date of the acceptance of
this Subscription (the "Closing Date"), the Company will mail to the Subscriber
an appropriately signed stock certificate representing the Shares, registered in
Subscriber's name and bearing the restrictive legend provided for in Section
6(c).
15. REPRESENTATIONS AND WARRANTIES OF THE SUBSCRIBER. The Subscriber
represents, warrants and agrees with the Company as follows:
<PAGE>
a. In evaluating the suitability of an investment in the Company, the
Subscriber has only relied upon information provided to the Subscriber by the
Company specifically in connection with this Agreement. With respect to
individual or other tax and other economic considerations involved in this
investment, the Subscriber is not relying on the Company (or any agent of the
Company) or any other person. The Subscriber has carefully considered and has,
to the extent the Subscriber believes such discussion necessary, discussed with
the Subscriber's professional legal, tax, accounting and financial advisers the
suitability of an investment in the Shares for the Subscriber's particular tax
and financial situation and has determined that the Shares being subscribed for
by the Subscriber are a suitable investment for the Subscriber.
b. The Subscriber acknowledges that all documents pertaining to this
investment have been made available for inspection by the Subscriber, the
Subscriber's attorney, accountant or adviser(s). The Subscriber and/or the
Subscriber's adviser(s) has/have had a reasonable opportunity to ask questions
of and receive answers from a person or persons acting on behalf of the Company
concerning the investment in the Shares, including, without limitation, the
risks inherent in such an investment, and all such questions have been answered
to the full satisfaction of the Subscriber.
c. The Subscriber is not subscribing for the Shares as a result of or
subsequent to any advertisement, article, notice or other communication
published in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar or meeting.
d. By reason of the business or financial experience, including
experience in investing in non-listed and non-registered securities, of the
Subscriber or the Subscriber's professional advisors, who are unaffiliated with
and who are not compensated by the Company or any affiliate of any of them,
directly or indirectly, the Subscriber and/or such professional advisors are
sophisticated investors and have the capacity to protect the Subscriber's
interests in connection with the investment in the Shares.
e. If the Subscriber is a natural person, the Subscriber has reached
the age of majority in the state in which the Subscriber resides, has adequate
means of providing for the Subscriber's current financial needs and
contingencies, is able to bear the substantial economic risks of an investment
in the Shares for an indefinite period of time, has no need for liquidity in
such investment and, at the present time, could afford a complete loss of such
investment. The Subscriber acknowledges that there is no public market for the
Shares, and there can be no assurance that any such market will ever develop.
f. The Subscriber or the Subscriber's purchaser representative, as the
case may be, has such knowledge and experience in financial, tax and business
matters so as to enable the Subscriber to utilize the information made available
to the Subscriber in connection with the investment in the Shares to evaluate
the merits and risks of an investment in the Shares, and to make an informed
investment decision with respect thereto.
- 2 -
<PAGE>
g. None of the Shares has been registered under the Securities Act of
1933, as amended (the "Securities Act"), or under the securities laws of any
state. The Subscriber represents that the Subscriber is purchasing the Shares
for the Subscriber's own account, for investment and not with a view to resale
or distribution. The Subscriber has not offered or sold the Shares or any
portion thereof nor does the Subscriber have any present intention of dividing
such Shares with others or of selling, distributing or otherwise disposing of
any portion of such Shares either currently or after the passage of a fixed or
determinable period of time or upon the occurrence or non-occurrence of any
predetermined event or circumstance in violation of the Securities Act. The
Subscriber understands that it is the position of the Securities and Exchange
Commission (the "Commission") that the statutory basis for an exemption under
the Securities Act would not be present in connection with the issuance of the
Shares if the Subscriber's present intention were to purchase the Shares with an
intent to resell or to hold such securities for a short period, for a deferred
sale, for a market rise, or for any other fixed period. The Subscriber is aware
that an exemption from the registration requirements of the Securities Act
pursuant to Rule 144 promulgated thereunder is not presently available; and, the
Company has no obligation to register the Shares subscribed for hereunder or to
make available an exemption from the registration requirements pursuant to such
Rule 144 or any successor rule for resale of the Shares.
h. The Subscriber recognizes that investment in the Shares involves
substantial risks, including loss of the entire amount of such investment.
i. The Subscriber is an "accredited investor" as such term is defined
in Rule 501 of Regulation D promulgated under the Securities Act ("Regulation
D"), unless the following box is checked to indicate non-accredited investor
status. / /
j. If this Agreement is executed and delivered on behalf of a
partnership, corporation, trust or estate: (i) such partnership, corporation,
trust or estate has the full legal right and power and all authority and
approval required (A) to execute and deliver, or authorize execution and
delivery of, this Agreement and all other instruments executed and delivered by
or on behalf of such partnership, corporation, trust or estate in connection
with the purchase of the Shares; and (B) to purchase and hold such Shares; (ii)
the signature of the party signing on behalf of such partnership, corporation,
trust or estate is binding upon such partnership, corporation, trust or estate;
and (iii) such partnership, corporation, trust or estate has not been formed for
the specific purpose of acquiring the Shares, unless each beneficial owner of
such entity is qualified as an accredited investor within the meaning of Rule
501 of Regulation D and has submitted information substantiating such individual
qualification. This Agreement constitutes a valid and binding obligation of the
Subscriber, enforceable in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency, moratorium, and similar laws affecting
creditors rights generally and to general principles of equity.
- 3 -
<PAGE>
k. If the Subscriber is a retirement plan or is investing on behalf of
a retirement plan, the Subscriber acknowledges that investment in the Shares
poses additional risks, including the inability to use losses generated by an
investment in the Shares to offset taxable income.
l. If the Subscriber is not a United States person (as defined by
Section 7701(a)(3) of the Internal Revenue Code of 1986, as amended, or any
successor provision), the Subscriber hereby represents that it has satisfied
itself as to the full observance of the laws of its jurisdiction in connection
with any invitation to subscribe for the Shares or any use of this Agreement,
including (i) the legal requirements within its jurisdiction for the purchase of
the Shares, (ii) any foreign exchange restrictions applicable to such purchase,
(iii) any governmental or other consents that may need to be obtained, and (iv)
the income tax and other tax consequences, if any, that may be relevant to the
purchase, holding, redemption, sale, or transfer of the Shares. The Subscriber's
subscription and payment for and continued beneficial ownership of the Shares,
will not violate any applicable securities or other laws of any applicable
non-United States jurisdiction.
m. The Subscriber has not engaged any "finder," broker or other
financial intermediary in connection with the purchase and sale of the Shares.
n. The execution and delivery by the Subscriber of this Agreement, its
consummation of the transaction contemplated hereby, and its compliance with the
provisions hereof, will not (i) if the Subscriber is a corporation or other
entity, violate or conflict with its Certificate of Incorporation or By-laws or
other constituent or organizational documents, (ii) violate, conflict with, or
give rise to any right of termination, cancellation, or acceleration under any
agreement or instrument to which the Subscriber is a party, (iii) result in the
imposition of any Encumbrance on any asset of the Subscriber, (iv) violate or
conflict with any laws or regulations applicable to the Subscriber, or (v)
require any consent or approval of, notice to, or filing with any entity or
person, except for any notice or filing which will be made on a timely basis.
For purposes of this Agreement, "Encumbrance" means any security interest,
mortgage, lien, pledge or charge.
o. The Subscriber shall indemnify and hold harmless the Company, and
each officer, director or control person of the Company, who is or may be a
party or is or may be threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of or arising from any actual or alleged
misrepresentation or misstatement of facts or omission to represent or state
facts made or alleged to have been made by the Subscriber to the Company (or any
agent of the Company) or omitted or alleged to have been omitted by the
Subscriber, concerning the Subscriber or the Subscriber's authority to invest or
financial position in connection with the Subscriber's investment in the Shares,
including, without limitation, any such misrepresentation, misstatement or
omission contained in this Agreement or any other document submitted by the
Subscriber to the Company, against losses, claims, damages, liabilities and
expenses (including attorneys' fees and expenses, judgments, fines and amounts
paid in settlement) actually and reasonably incurred by the Company or any such
officer, director or control person in connection with any such action, suit or
proceeding. To the extent that any indemnification provided for in the preceding
provisions of this
- 4 -
<PAGE>
Section 3(o) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages, liabilities, expenses or judgments referred to
in these provisions, then, in lieu of indemnifying such indemnified party, the
Subscriber shall contribute to the amount paid or payable by such indemnified
party as a result of any of the foregoing in such proportion as is appropriate
to reflect the relative fault of the indemnifying party on the one hand and the
indemnified party on the other hand in connection with the representations,
statements or omissions which resulted in such losses, claims, damages,
liabilities, judgments or expenses, as well as any other relevant equitable
considerations.
16. ACKNOWLEDGMENTS OF THE SUBSCRIBER. The Subscriber understands,
acknowledges and agrees with the Company as follows:
a. Except as set forth in Sections 1 and 2 above, the Subscriber hereby
acknowledges and agrees that the subscription hereunder is irrevocable by the
Subscriber, that, except as required by law, the Subscriber is not entitled to
cancel, terminate or revoke this Agreement or any agreements of the Subscriber
hereunder. If the Subscriber is more than one person, the obligations of the
Subscriber hereunder shall be joint and several and the agreements,
representations, warranties and acknowledgments herein contained shall be deemed
to be made by and be binding upon each such person and such person's heirs,
executors, administrators, successors, legal representatives and permitted
assigns.
b. No federal or state agency has made any finding or determination as
to the accuracy or adequacy of the information contained herein or otherwise or
as to the fairness of the terms of the purchase and sale of the Shares for
investment nor any recommendation or endorsement of the investment in the
Shares.
c. The purchase and sale of the Shares is intended to be exempt from
registration under the Securities Act by virtue of Section 4(2) or 3(b) of the
Securities Act, and, if applicable, in the sole judgment of the Company, the
provisions of Regulation D thereunder, which is in part dependent upon the
truth, completeness and accuracy of the statements made by the Subscriber herein
and in any other documents furnished by the Subscriber to the Company.
d. It is understood that in order not to jeopardize the exempt status
under Section 4(2) or 3(b) of the Securities Act of the purchase and sale of the
Shares and, if applicable, in the sole judgment of the Company, Regulation D
thereunder, any transferee of the Shares (if such transfer is otherwise
permitted hereunder) may, at a minimum, be required to fulfill the investor
suitability requirements thereunder.
e. The representations, warranties and agreements of the Subscriber
contained herein and in any other writing delivered in connection with the
transactions contemplated hereby shall be true and correct in all respects on
and as of the date of the sale of the Shares as if made on and as of
- 5 -
<PAGE>
such date and shall survive the execution and delivery of this Agreement and the
purchase of the Shares.
f. Insofar as indemnification for liabilities under the Securities Act
may be permitted to directors, officers or controlling persons of the Company,
the Company has been informed that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable to such extent.
17. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents, warrants and agrees with the Subscriber as follows:
a. The Company is a corporation duly organized and validly existing
under the laws of the State of Delaware and has full corporate power and
authority to execute this Agreement and to consummate the transactions herein
described.
b. The Shares, when issued in accordance with all of the provisions
hereof, will be fully-paid and non-assessable.
c. The Company has taken all corporate action necessary to authorize
its execution and delivery of this Agreement, the performance of its obligations
hereunder, and its consummation of the transaction contemplated hereby. This
Agreement has been executed and delivered by an officer of the Company in
accordance with such authorization. This Agreement constitutes a valid and
binding obligation of the Company, enforceable in accordance with its terms,
subject to applicable bankruptcy, reorganization, insolvency, moratorium, and
similar laws affecting creditors rights generally and to general principles of
equity.
d. The execution and delivery by the Company of this Agreement, its
consummation of the transaction contemplated hereby, and its compliance with the
provisions hereof, will not, except to the extent that any of the matters
described in clause (ii), (iii), (iv) or (v) would not have a material adverse
effect upon the Company, (i) violate or conflict with its Certificate of
Incorporation or By-laws, (ii) violate, conflict with, or give rise to any right
of termination, cancellation, or acceleration under any agreement or instrument
to which the Company is a party, (iii) result in the imposition of any
Encumbrance on any asset of the Company, (iv) violate or conflict with any laws
or regulations applicable to the Company, or (v) require any consent or approval
of, notice to, or filing with any entity or person, except for any notice or
filing which will be made on a timely basis.
e. Assuming the accuracy of representations and warranties of
Subscriber contained in this Agreement, the sale of the Shares contemplated
hereby is exempt from registration under the Securities Act.
- 6 -
<PAGE>
f. The Company has not engaged any "finder," broker or other financial
intermediary in connection with the purchase and sale of the Shares.
18. TRANSFERS OF SHARES.
a. Except as expressly permitted herein, the Subscriber shall not,
directly or indirectly, sell, transfer, assign, pledge, bequeath, hypothecate,
mortgage, grant any proxy with respect to, or in any other way encumber or
otherwise dispose of (collectively, "transfer") the whole or any part of his or
its Shares or any interest therein which the Subscriber now owns or hereafter
acquires until the second anniversary of the Closing Date and shall not transfer
any such shares or interest from and after such second anniversary, except in
full compliance with the provisions of this Section 6. The Company shall not
transfer on its books any Shares or issue any certificate on account of the
Shares or in lieu of any prior certificate thereof unless there has been full
compliance with the terms of this Agreement. Any purported transfer in violation
of this Agreement shall be invalid.
b. Neither the Subscriber nor any other person or entity shall transfer
the whole or any part of his or its Shares or any interest therein, except as
permitted under the Securities Act and applicable state securities laws,
pursuant to registration thereunder or exemption therefrom. Unless the Shares
are so registered, the Company shall have received a written opinion of counsel,
which counsel and opinion are satisfactory to counsel for the Company, to the
effect that such disposition is exempt from the registration requirements of the
Securities Act and any other applicable securities laws, together with such
other documentation, executed by the Subscriber and/or the transferee, as the
Company may require. The undersigned hereby consents to the placement by the
Company of stop transfer orders with respect to the Shares with any transfer
agent, transfer clerk or other agent at any time acting for the Company.
c. The Subscriber further agrees that each certificate representing any
of the Shares shall be stamped or otherwise imprinted with a legend
substantially in the following form:
"The securities represented hereby have not been registered under
the Securities Act of 1933, as amended, or any state securities laws
and neither the securities nor any interest therein may be offered,
sold, transferred, pledged or otherwise disposed of except pursuant
to an effective registration statement under such act or such laws
or an exemption from registration under such act and such laws,
which is available, in the opinion of counsel for the holder, which
counsel and opinion are satisfactory to counsel for this
corporation."
19. REGISTRATION. The Company agrees to use commercially reasonable
efforts to register the resale of the Shares under the Securities Act as soon as
practicable after the Closing Date.
- 7 -
<PAGE>
20. CONFIDENTIALITY. The Subscriber acknowledges and agrees that all
information disclosed and materials distributed in connection with the
transactions contemplated by this Agreement or during any meeting of the
Company's Board of Directors is confidential information and that it will not
disclose or distribute to any person or use for its own account any such
confidential information. The Subscriber agrees further with respect to all such
confidential information, that (a) such confidential information shall remain
the property of the Company, (b) unless otherwise authorized by the Company or
required by law, the Subscriber shall use the confidential information solely in
connection with the transactions contemplated hereby (a "Designated Purpose"),
(c) the Subscriber shall not disclose such confidential information to anyone
except (i) those of its officers, directors, agents and employees with a need to
know in connection with the Designated Purpose, and shall notify each individual
who is permitted access to the confidential information that such disclosure has
been made in confidence, or (ii) as may be required by law or any legal process,
and (d) the Subscriber shall not copy or reproduce any confidential information
except to the extent necessary for its permitted use.
21. NOTICES. Notices required or permitted to be given hereunder shall
be in writing and shall be deemed to be sufficiently given when personally
delivered, delivered by recognized national courier service or sent by
registered or certified mail, return receipt requested, addressed: (i) if to the
Company, at the address set forth in the preamble hereto and to the attention of
its President, with a copy to Squadron, Ellenoff, Plesent & Sheinfeld, LLP, 551
Fifth Avenue, New York, NY 10176, attention: Shalom Leaf or (ii) if to the
Subscriber, at the address set forth on the signature page hereto, or at such
other address as may have been specified by written notice given in accordance
with this Section 9; provided that the Subscriber agrees that in no event shall
the Company be required to furnish any notice hereunder to more than one person
(together with a copy to one counsel) on behalf of Subscriber.
22. GOVERNING LAW; JURISDICTION. This Agreement shall be enforced,
governed and construed in all respects in accordance with the laws of the State
of New York, as such laws are applied by New York courts to agreements entered
into and wholly to be performed in New York by and between residents of New
York. The parties agree that any and all claims arising under this Agreement or
relating thereto shall be heard and determined either in the United States
District Court for the Southern District of New York or in the courts of the
State of New York located in the City and County of New York. The parties agree
to submit themselves to the personal jurisdiction of those courts and not to
raise any objection to venue being had in those courts.
23. MISCELLANEOUS. If any provision of this Agreement is invalid or
unenforceable under any applicable statute or rule of law, then such provision
shall be deemed inoperative to the extent that it may conflict therewith and
shall be deemed modified to conform with such statute or rule of law. Any
provision hereof that may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provision hereof. This
Agreement may not be assigned by the Subscriber, in whole or in part, without
the prior written consent of the Company. This Agreement shall be binding upon
the Subscriber, the Subscriber's heirs, estate, legal
- 8 -
<PAGE>
representatives, successors and assigns and shall inure to the benefit of the
Company, its successors and assigns. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements, oral or written. This Agreement may be
amended or modified only by a writing executed by both parties hereto, and no
provision hereof may be waived, except in a writing executed by the waiving
party. This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together will constitute one
and the same instrument.
* * * *
- 9 -
<PAGE>
The Subscriber has read this Agreement carefully and fully understands
its provisions.
IN WITNESS WHEREOF, the Subscriber has executed this Agreement as of
the ___________ day of June, 2000.
Signature of individual Subscriber(s):
-----------------------------------------
Signature of Corporation,
partnership, trust, or estate Subscriber:
--------------------------------------
(Name of Entity)
By:
-----------------------------------
Name:
Title:
Tax Identification No. of Subscriber
-------------------------------------------
The terms of the foregoing, including the subscription described
therein, are agreed to and accepted on this ____ day of June, 2000.
CELERITY SYSTEMS, INC.
By:
-----------------------------------
Kenneth D. Van Meter, President
- 10 -
<PAGE>
EXHIBIT G
FORM OF WARRANT
No. W - Warrant to Purchase ________________
Shares of Common Stock of Celerity Systems, Inc.
(subject to adjustment)
Date of Issuance - __________, 2000
WARRANT
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES
UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
WARRANT TO PURCHASE COMMON STOCK
of
CELERITY SYSTEMS, INC.
This certifies that, for value received, ___________________, or its
registered assigns ("Holder") is entitled, subject to the terms set forth below,
to purchase from CELERITY SYSTEMS, INC., a Delaware corporation (the "Company"),
________________ shares of the Common Stock of the Company, as constituted on
the date hereof (the "Warrant Issue Date"), upon surrender hereof, at the
principal office of the Company referred to below, with the subscription form
attached hereto duly executed, and simultaneous payment of the exercise price
(the "Exercise Price") therefor, as set forth in Sections 2 and 3 below. The
number, character and Exercise Price of such shares of Common Stock are subject
to adjustment as provided below.
<PAGE>
The term "Warrant" as used herein shall include this Warrant and any warrants
delivered in substitution or exchange therefor as provided herein.
1. TERM OF WARRANT. Subject to the terms and conditions set forth
herein, this Warrant shall be exercisable, in whole or in part, during the term
commencing on __________, 2000 and ending at 5:00 p.m., Eastern Time on
___________, 2005 and shall be void thereafter (the "Term").
2. EXERCISE PRICE. The Exercise Price at which this Warrant may be
exercised shall be _______________ per share of Common Stock, as adjusted from
time to time pursuant to Section 11 hereof (the "Exercise Price").
3. EXERCISE OF WARRANT.
a. The purchase rights represented by this Warrant are
exercisable by the Holder in whole or in part, but not for less than 100 shares
at a time (or such lesser number of shares which may then constitute the maximum
number purchasable; such number being subject to adjustment as provided in
Section 11 below), at any time, or from time to time, during the Term hereof as
described in Section 1 above, by the surrender of this Warrant and the Notice of
Exercise annexed hereto as EXHIBIT A duly completed and executed on behalf of
the Holder, at the office of the Company (or such other office or agency of the
Company as it may designate by notice in writing to the Holder at the address of
the Holder appearing on the books of the Company), upon payment in cash or by
check acceptable to the Company in an amount equal to the product of the
Exercise Price set forth in Section 2 above multiplied by the number of shares
of Common Stock being purchased upon such exercise.
b. This Warrant shall be deemed to have been exercised
immediately prior to the close of business on the date of its surrender for
exercise as provided above, and the person entitled to receive the shares of
Common Stock issuable upon such exercise shall be treated for all purposes as
the holder of record of such shares as of the close of business on such date. As
promptly as practicable on or after such date and in any event within ten (10)
days thereafter, the Company at its expense shall issue and deliver to the
person or persons entitled to receive the same a certificate or certificates for
the number of shares issuable upon such exercise. In the event that this Warrant
is exercised in part, the Company at its expense will execute and
- 2 -
<PAGE>
deliver a new Warrant of like tenor exercisable for the number of shares for
which this Warrant may then be exercised.
4. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. In lieu of any fractional share to which the Holder would otherwise be
entitled, the Company shall make a cash payment equal to the Current Market
Value multiplied by such fraction.
Current Market Value of one share of Common Stock shall mean:
(1) If the Common Stock is listed on a national securities
exchange or admitted to unlisted trading privileges on such exchange or listed
for trading on the NASDAQ National Market system or Small Cap system, the
Current Market Value shall be the last reported sale price of the Common Stock
on such exchange or system on the last business day prior to the date of
exercise of this Warrant or if no such sale is made on such day, the average
closing bid and asked prices for such day on such exchange or system; or
(2) If the Common Stock is not so listed or admitted to unlisted
trading privileges, the current market value shall be the mean of the last
reported bid and asked prices reported by the NASDAQ Electronic Bulletin Board
or its then existing successor on the last business day prior to the date of the
exercise of this Warrant; or
(3) If the Common Stock is not so listed or admitted to unlisted
trading privileges and bid and asked prices are not so reported, the Current
Market Value shall be an amount determined in such reasonable manner as may be
prescribed by the Board of Directors of the Company.
5. REPLACEMENT OF WARRANT. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or mutilation of
this warrant and, in the case of loss, theft, or destruction, on delivery of an
indemnity agreement reasonably satisfactory in form and substance to the Company
or, in the case of mutilation, on surrender and cancellation of this Warrant,
the Company at its expense shall
- 3 -
<PAGE>
execute and deliver, in lieu of this Warrant, a new warrant of like tenor and
amount.
6. RIGHTS OF STOCKHOLDERS. This Warrant shall not entitle the Holder
to any of the rights of a stockholder of the Company.
7. TRANSFER OF WARRANT.
a. WARRANT REGISTER. The Company will maintain a register (the
"Warrant Register") containing the names and addresses of the Holder or Holders.
Any Holder of this Warrant or any portion thereof may change his address as
shown on the Warrant Register by written notice to the Company requesting such
change. Any notice or written communication required or permitted to be given to
the Holder may be delivered or given by mail to such Holder as shown on the
Warrant Register and at the address shown on the Warrant Register. Until this
Warrant is transferred on the Warrant Register of the Company, the Company may
treat the Holder as shown on the Warrant Register as the absolute owner of this
Warrant for all purposes, notwithstanding any notice to the contrary.
b. TRANSFERABILITY AND NONNEGOTIABILITY OF WARRANT AND UNDERLYING
COMMON STOCK. This Warrant may not be transferred or assigned in whole or in
part without compliance with all applicable federal and state securities laws by
the transferor and the transferee (including the delivery of investment
representation letters and legal opinions reasonably satisfactory to the
Company, if such are requested by the Company). Subject to the provisions of
this Warrant with respect to compliance with the Securities Act of 1933, as
amended (the "Act") , title to this Warrant may be transferred by endorsement
(by the Holder executing the Assignment Form annexed hereto as EXHIBIT B) and
delivery in the same manner as a negotiable instrument transferable by
endorsement and delivery. The Common Stock to be issued upon exercise hereof,
may not be transferred or assigned in whole or in part without compliance with
all applicable federal and state securities laws by the transferor and the
transferee (including the delivery of investment representation letters and
legal opinions reasonably satisfactory to the Company, if such are requested by
the Company).
c. EXCHANGE OF WARRANT UPON A TRANSFER. On surrender of this
Warrant for exchange, properly endorsed on the
- 4 -
<PAGE>
Assignment Form and subject to the provisions of this Warrant with respect to
compliance with the Act and with the limitations on assignments and transfers
and contained in this Section 7, the Company at its expense shall issue to or on
the order of the Holder a new warrant or warrants of like tenor, in the name of
the Holder or as the Holder (on payment by the Holder of any applicable transfer
taxes) may direct, for the number of shares issuable upon exercise thereof.
d. COMPLIANCE WITH SECURITIES LAWS.
i. The Holder of this Warrant, by acceptance hereof,
acknowledges that this Warrant and the shares of Common Stock to be issued upon
exercise hereof or conversion thereof are being acquired solely for the Holder's
own account and not as a nominee for any other party, and for investment, and
that the Holder will not offer, sell, or otherwise dispose of this Warrant or
any shares of Common Stock to be issued upon exercise hereof except under
circumstances that will not result in a violation of the Act or any state
securities laws. Upon exercise of this Warrant, the Holder shall, if requested
by the Company, confirm in writing, in a form satisfactory to the Company, that
the shares of Common Stock so purchased are being acquired solely for the
Holder's own account and not as a nominee for any other party, for investment,
and not with a view toward distribution or resale.
ii. This Warrant and all shares of Common Stock issued upon
exercise hereof shall, unless registered under the Act, be stamped or imprinted
with a legend in substantially the following form (in addition to any legend
required by state securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED. SUCH SECURITIES AND ANY SECURITIES OR SHARES
ISSUED HEREUNDER OR THEREUNDER MAY NOT BE SOLD OR TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER
SAID ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE
SECURITIES AND RESTRICTING THEIR TRANSFER OR SALE MAY BE OBTAINED
AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF
- 5 -
<PAGE>
RECORD HEREOF TO THE SECRETARY OF THE COMPANY AT THE PRINCIPAL
EXECUTIVE OFFICES OF THE COMPANY.
8. RESERVATION OF STOCK. The Company covenants that during the Term
this Warrant is exercisable, the Company will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of Common Stock upon the exercise of this warrant and, from time to time, will
take all steps necessary to amend its Certificate of Incorporation (the
"Certificate") to provide sufficient reserves of shares of Common Stock issuable
upon exercise of the Warrant. The Company further covenants that all shares that
may be issued upon the exercise of rights represented by this Warrant, upon
exercise of the rights represented by this Warrant and payment of the Exercise
Price, all as set forth herein, will be free from all taxes, liens, and charges
in respect of the issue thereof (other than taxes in respect of any transfer
occurring contemporaneously or otherwise specified herein) . The Company agrees
that its issuance of this Warrant shall constitute full authority to its
officers who are charged with the duty of executing stock certificates to
execute and issue the necessary certificates for shares of Common Stock upon the
exercise of this Warrant.
9. NOTICES.
a. Whenever the Exercise Price or number of shares purchasable
hereunder shall be adjusted pursuant to Section 11 hereof, the Company shall
issue a certificate signed by its Treasurer setting forth, in reasonable detail,
the event requiring the adjustment, the amount of the adjustment, the method by
which such adjustment was calculated and the Exercise Price and number of shares
purchasable hereunder after giving effect to such adjustment, and shall cause a
copy of such certificate to be mailed (by first class mail, postage prepaid) to
the Holder of this Warrant.
b. In case
i. the Company shall take a record of the holders of its Common
Stock (or other stock or securities at the time receivable upon the exercise of
this Warrant) for the purpose of entitling them to receive any dividend or other
distribution, or any right to subscribe for or purchase any
- 6 -
<PAGE>
shares of stock of any class or any other securities, or to receive any other
right, or
ii. of any reclassification of the capital stock of the
Company, any consolidation or merger of the Company with or into another
corporation, or any conveyance of all or substantially all of the assets of the
Company to another incorporation, or
iii. of any voluntary dissolution, liquidation of winding-up of
the Company, then, and in each such case, the Company will mail or cause to be
mailed to the Holder or Holders a notice specifying, as the case may be, (A) the
date on which a record is to be taken for the purpose of such dividend,
distribution or right, and stating the amount and character of such dividend,
distribution or right, or (B) the date on which such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock (or such stock or securities at the time
receivable upon the exercise of this Warrant) shall be entitled to exchange
their shares of Common Stock (or such other stock or securities) for securities
or other property deliverable upon such reorganization, reclassification,
consolidation, merger, conveyance, dissolution, liquidation or winding-up. Such
notice shall be mailed at least ten (10) days prior to the date therein
specified.
c. All such notices, advices and communications shall be deemed to
have been received (i) in the case of personal delivery, on the date of such
delivery and (ii) in the case of mailing, on the third (3) business day
following the date of such mailing.
10. AMENDMENTS.
a. Any term of this Warrant may be amended with the written
consent of the Company and the Holder.
b. No waivers of or exceptions to any term, condition or provision
of this Warrant, in any one or more
-7-
<PAGE>
instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such term, condition or
provision.
11. ADJUSTMENTS. The Exercise Price and the number of shares
purchasable hereunder are subject to adjustment from time to time as follows:
11.1 MERGER, RECLASSIFICATION, ETC. If the Company at any time
while this Warrant, or any portion thereof, remains outstanding and unexpired
shall, by merger, consolidation, reclassification of securities or otherwise,
change any of the securities as to which purchase rights under this Warrant
exist into the same or a different number of securities of any other class or
classes, this Warrant shall thereafter represent the right to acquire such
number and kind of securities as would have been issuable as the result of such
change with respect to the securities which were subject to the purchase rights
under this Warrant immediately prior to such merger, consolidation,
reclassification or other change and the Exercise Price therefor shall be
appropriately adjusted, all subject to further adjustment as provided herein.
11.2 SPLIT, SUBDIVISION OR COMBINATION OF SHARES. If the Company
at any time while this warrant, or any portion thereof, remains outstanding and
unexpired shall split, subdivide or combine the securities as to which purchase
rights under this Warrant exist, into a different number of securities of the
same class, the Exercise Price for such securities shall be proportionately
decreased in the case of a split or subdivision or proportionately increased in
the case of a combination.
11.3 CERTIFICATE AS TO ADJUSTMENTS. Upon the occurrence of each
adjustment or readjustment pursuant to this Section 11, the Company at its
expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to each holder of this Warrant a certificate
setting forth such adjustment or readjustment and showing in detail the facts
upon which such adjustment or readjustment is based. The Company shall, upon the
written request, at any time, of any such holder, furnish or cause to be
furnished to such holder a like certificate setting forth: (i) such adjustments
and readjustments; (ii) the Exercise Price at the time in effect; and (iii) the
number of shares and the amount, if any,
- 8 -
<PAGE>
of other property which at the time would be received upon the exercise of the
Warrant.
11.4 NO IMPAIRMENT. The Company will not, by any voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of this Section 11 and in
the taking of all such action as may be necessary or appropriate in order to
protect the rights of the holders of this Warrant against impairment.
12. MISCELLANEOUS.
12.1 AMENDMENT AND WAIVER. Except as otherwise provided herein,
the provisions of the Warrants may be amended and the Company may take any
action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the written consent of the
Holder.
12.2 NOTICES. Any notices required to be sent to a Holder will be
delivered to the address of such Holder shown on the books of the Company. All
notices referred to herein will be delivered in person or sent by first class
mail, postage prepaid, and will be deemed to have been given when so delivered
or sent.
12.3 DESCRIPTIVE HEADINGS; GOVERNING LAW. The descriptive headings
of the paragraphs of this Warrant are inserted for convenience only and do not
constitute a part of this Warrant. The construction, validity and interpretation
of this Warrant will be governed by the laws of the State of Delaware, without
regard to principles of conflicts or choice of law.
- 9 -
<PAGE>
IN WITNESS WHEREOF, CELERITY SYSTEMS, INC. caused this Warrant to be
executed by its officers thereunto duly authorized.
Dated:_______ __, 2000
CELERITY SYSTEMS, INC.
By:
------------------------------
Kenneth D. Van Meter
President and Chief Executive Officer
AGREED AND ACCEPTED:
HOLDER:
----------------------------
By:
Title:
- 10 -
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE
To: CELERITY SYSTEMS, INC.
(1) The undersigned hereby elects to purchase shares of Common Stock of
CELERITY SYSTEMS, INC. pursuant to the terms of the attached Warrant, and
tenders herewith payment of the purchase price for such shares in full.
(2) In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the shares of Common Stock are being acquired solely for the
account of the undersigned and not as a nominee for any other party, and for
investment, and that the undersigned will not offer, sell, or otherwise dispose
of any such shares of Common Stock except under circumstances that will not
result in a violation of the Securities Act of 1933, as amended, or any state
securities laws.
(3) Please issue a certificate or certificates representing said shares
of Common Stock in the name of the undersigned or in such other name as is
specified below:
------------------------------
[Name]
------------------------------
[Name]
(4) Please issue a new Warrant for the unexercised portion of the
attached Warrant in the name of the undersigned or in such other name as is
specified below:
------------------------------
[Name]
- 11 -
<PAGE>
-------------------------- -----------------------------
[Date] [Signature]
- 12 -
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant
hereby sells, assigns and transfers unto the Assignee named below all of the
rights of the undersigned under the within Warrant, with respect to the number
of shares of Common Stock set forth below but not below _______________.
<TABLE>
<CAPTION>
Name of Assignee Address No. of Shares
--------------------------------------------------------------------------------
<S> <C> <C>
</TABLE>
and does hereby irrevocably constitute and appoint Attorney to make such
transfer on the books of CELERITY SYSTEMS, INC. maintained for the purpose, with
full power of substitution in the premises.
The undersigned also represents that, by assignment hereof, the Assignee
acknowledges that this Warrant and the shares of stock to be issued upon
exercise hereof or conversion thereof are being acquired for investment and that
the Assignee will not offer, sell or otherwise dispose of this Warrant or any
shares of stock to be issued upon exercise hereof or conversion thereof except
under circumstances which will not result in a violation of the Securities Act
of 1933, as amended, or any state securities laws. Further, the Assignee has
acknowledged that upon exercise of this Warrant, the Assignee shall, if
requested by the Company, confirm in writing, in a form satisfactory to the
Company, that the shares of stock so purchased are being acquired for investment
and not with a view toward distribution or resale.
DATED:
-------------------------- ------------------------------
Signature of Holder
------------------------------
(witness)
- 13 -
