<PAGE>
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities and Exchange Act of 1934
Date of Report (Date of Earliest Event Reported):
April 3, 2000
CELERITY SYSTEMS, INC.
- --------------------------------------------------------------------------------
(Exact Name of Registrant as Specified in Charter)
DELAWARE 0-23279 52-2050585
- ---------------- --------------- -------------------
(State or Other (Commission File (IRS Employer
Jurisdiction of Number) Identification No.)
Incorporation)
122 Perimeter Park Drive
KNOXVILLE, TENNESSEE 37922
----------------------------------------
(Address of Principal Executive Offices)
Registrant's Telephone Number, including
area code: (865) 539-5300
----------------------------------------------
(Former Address, if changed since last report)
- --------------------------------------------------------------------------------
<PAGE>
Item 5: OTHER EVENTS
Attached hereto as Exhibit 99 is a copy of a press release dated March
29, 2000 announcing that Celerity Systems, Inc. has initially closed a private
placement of common stock and warrants.
Item 7: FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS.
(c) Exhibits
99.1 Press Release issued by Celerity Systems, Inc. on
April 3, 2000.
99.2 Form of Subscription Agreement.
99.3 Form of Warrant.
- 2 -
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: April 3, 2000
CELERITY SYSTEMS, INC.
By: /s/ KENNETH D. VAN METER
------------------------
Kenneth D. Van Meter
President and Chief Executive Officer
- 3 -
<PAGE>
EXHIBIT 99.1
CELERITY CLOSES ON PRIVATE FINANCING
Knoxville, Tennessee - April 3, 2000. Celerity Systems, Inc. (OTC:BB:CLRT)
has canceled $1,665,882 of outstanding debt upon the initial closing of a
private offering. Of such debt, $596,996 was held by Celerity's officers and
directors and $348,317 was held by other current and former employees.
Investors in the private offering receive shares of Celerity common stock
with an aggregate value equal to the amount of debt canceled, calculated at
the average closing bid price of Celerity's common stock on the Nasdaq
Bulletin Board for the five trading days prior to closing, less twenty
percent. In addition, investors receive warrants to purchase common stock at
the rate of one warrant for each five dollars of debt canceled. Celerity will
not receive any proceeds from the offering.
The Company has agreed to file a registration statement with respect to the
resale of the common stock and the shares underlying the warrants as soon as is
reasonably practicable.
The securities offered in the private offering have not been registered under
the Securities Act of 1933, as amended, and may not be offered or sold in the
United States absent registration or an exemption from applicable registration
requirements.
Contact information: Celerity Systems, Inc., Knoxville Investor Relations
8651539-3510 www.celerity.com.
<PAGE>
EXHIBIT 99.2
SUBSCRIPTION AGREEMENT
-----------------------------------
CELERITY SYSTEMS, INC.
-----------------------------------
Shares of common stock with an aggregate value equal to the amount of debt
canceled, calculated at Market Price less twenty (20) percent, and warrants to
purchase common stock at the rate of one (1) warrant at Market Price for each
five dollars ($5) of debt canceled
-----------------------------------
To: CELERITY SYSTEMS, INC.
======================
This Subscription Agreement is made between CELERITY SYSTEMS, INC., a
Delaware corporation (the "Company"), and the undersigned prospective purchaser
who is subscribing hereby for shares of common stock (the "Shares") with an
aggregate value equal to $__________, the amount due the undersigned from the
Company (the "Debt"), calculated at Market Price less twenty (20) percent, and
warrants to purchase common stock (the "Warrants" and together with the Shares,
the "Securities") at the rate of one (1) warrant at Market Price for each five
dollars ($5) of Debt canceled. As used herein, Market Price means the average
closing bid price of the Company's common stock on the Nasdaq Bulletin Board for
the five (5) trading days prior to the Company's acceptance of the Subscription
Agreement. The purchase price for the Securities shall be equal to the aggregate
amount of Debt cancelled. This subscription is submitted to you in accordance
with and subject to the terms and conditions described in this Subscription
Agreement and the Confidential Private Placement Memorandum dated March 8, 2000,
together with any supplements or amendments thereto (the "Memorandum"), relating
to an offering (the "Offering") of the Securities.
In consideration of the Company's agreement to sell the Securities to
the undersigned upon the terms and conditions contained herein, the undersigned
agrees and represents as follows:
A. SUBSCRIPTION.
=============
(1) The undersigned hereby irrevocably subscribes for and agrees to
purchase the number of Securities based on the amount of Debt indicated on the
signature page hereto in consideration for the cancellation by the undersigned
of the Debt. In connection thereto, the undersigned hereby releases the Company
and its officers, stockholders, directors, employees, agents and affiliates
(collectively, the "Releasees") from all actions, causes of action, including
without limitation, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, agreements guarantees,
liabilities, controversies, agreements, promises, variances, trespasses,
damages, judgments, extents, executions, claims and demands whatsoever,
- 1 -
<PAGE>
in law, equity or otherwise, whether known or unknown, contemplated or not
contemplated, foreseen or unforeseen, fixed or contingent, which against the
Releasees, the undersigned ever had, now has or hereafter can, shall or may
have, for, upon, or by reason of any matter, cause or thing whatsoever, directly
or indirectly, from the beginning of the world to the day of the date the
Subscription Agreement is accepted by the Company (excluding any claims arising
under this Subscription Agreement); provided, that in connection with any
subscription of a current employee, officer or director of the Company, such
employee, officer or director is only releasing the Company with respect to its
obligations to pay the Debt.
(2) If the Debt is represented by an instrument, as a condition of the
Company's acceptance of the undersigned's Subscription Agreement, the
undersigned must return to the Company the instrument evidencing the Debt or an
affidavit of loss regarding the instrument..
(3) If the undersigned's subscription is rejected, or if the Offering is
withdrawn or terminated, the Debt shall be reinstated (or, in the case of
rejection of a portion of the undersigned's subscription, the part of the Debt
relating to such rejected portion). The Company expects to hold an initial
closing of the Offering (the "Initial Closing") at any time after subscriptions
have been accepted, to occur no later than the final closing date (the "Final
Closing Date"), which is expected to occur on or before April 1, 2000, unless
extended by the Company in its sole discretion for up to thirty (30) additional
days. The Company may hold additional interim closings after the Initial
Closing. Any such interim closing, together with the Initial Closing are each
hereinafter referred to as an "Interim Closing" and shall occur on one or more
dates each hereinafter referred to as an "Interim Closing Date." Upon the
acceptance of the subscription of a subscriber (a "Purchaser") at any Interim
Closing and on the Final Closing Date, the Securities so purchased will be
issued to each such Purchaser, and the name of such Purchaser will be registered
on the books of the Company as the record owner of the Securities.
(4) The undersigned hereby acknowledges receipt of a copy of the
Memorandum, and hereby agrees to be bound thereby upon the execution and
delivery to the Company of the signature page to the undersigned's completed
questionnaire (if applicable) submitted by the undersigned (the "Questionnaire")
and this Subscription Agreement.
(5) The undersigned agrees that the Company may, in its sole and
absolute discretion, reduce the undersigned's subscription of Securities hereby
applied for without any prior notice to or further consent by the undersigned.
The undersigned hereby irrevocably constitutes and appoints the Company and each
officer of the Company, each of the foregoing acting singly, in each case with
full power of substitution, the true and lawful agent and attorney-in-fact of
the undersigned, with full power and authority in the undersigned's name, place
and stead, to amend this Subscription Agreement and the Questionnaire, including
in each case the undersigned's signature page thereto, to effect any of the
foregoing provisions of this paragraph 4.
B. REPRESENTATIONS AND WARRANTIES
==============================
The undersigned hereby represents and warrants to, and agrees with, the
Company as follows:
- 2 -
<PAGE>
(1) The undersigned has been furnished with and has carefully read the
Memorandum (including, without limitations all Appendices thereto), and is
familiar with and understands the terms of the Offering, including the terms of
the Warrants. In evaluating the suitability of an investment in the Offering,
the undersigned has not relied upon any representation or other information
(whether oral or written) from the Company (or any agent or representative
thereof) other than as set forth in the Memorandum. With respect to individual
or partnership tax and other tax or economic considerations involved in this
investment, the undersigned has carefully considered and has, to the extent the
undersigned believes such discussion necessary, discussed with the undersigned's
professional legal, tax, accounting and financial advisers the suitability of an
investment in the Offering for the undersigned's particular tax and financial
situation and has determined that the Securities being subscribed for by the
undersigned are a suitable investment for the undersigned.
(2) The undersigned acknowledges that (i) the undersigned is aware of
the right to request copies of any documents, records and books pertaining to
this investment and (ii) such documents, records, and books pertaining to this
investment which the undersigned requested (including, without limitation, the
Memorandum) have been made available for inspection by the undersigned, and the
undersigned's attorney, accountant or adviser(s).
(3) The undersigned and/or the undersigned'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 Offering, and all such
questions have been answered to the full satisfaction of the undersigned.
(4) The undersigned is not subscribing for the Securities 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.
(5) The undersigned either: (i) has a pre-existing business relationship
with the Company or one of its officers, directors or controlling persons or
(ii) by reason of the undersigned's business or financial experience or the
business or financial experience of the undersigned's representatives who are
unaffiliated with and who are not compensated by the Company or any affiliate
thereof, directly or indirectly, the undersigned or such representatives can be
reasonably assumed to have the capacity to protect the undersigned's interests
in connection with an investment in the Securities.
(6) If the undersigned is a natural person, the undersigned has reached
the age of majority in the state or other jurisdiction in which the undersigned
resides, has adequate means of providing for the undersigned's current financial
needs and contingencies, is able to bear the substantial economic risks of an
investment in the Securities 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.
(7) The undersigned or the undersigned's purchaser representative, as
the case may be, has such knowledge and experience in financial, tax and
business matters so as to enable the undersigned to utilize the information made
available to the undersigned in connection with the
- 3 -
<PAGE>
Offering to evaluate the merits and risks of an investment in the Securities and
to make an informed investment decision with respect thereto.
(8) The undersigned will not sell or otherwise transfer any Securities
without registration of such securities under the Securities Act of 1933, as
amended (the "Securities Act") and any applicable state or provincial securities
laws or an exemption therefrom. Such securities have not been registered under
the Securities Act or under the securities laws of any state. The undersigned
represents that the undersigned is purchasing the Securities for the
undersigned's own account, for investment and not with a view to resale or
distribution except in compliance with the Securities Act and such laws. The
undersigned has not offered or sold any portion of the Securities being acquired
nor does the undersigned have any present intention of dividing such Securities
with others or of selling, distributing or otherwise disposing of any portion of
such Securities 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 UNDERSIGNED 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 SECURITIES 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 NOTE, EXCEPT AS PROVIDED
HEREIN.
(9) The undersigned recognizes that investment in the Securities
involves substantial risks, including loss of the entire amount of such
investment. Further, the undersigned has carefully read and considered the
matters set forth under the caption "Risk Factors" in the Memorandum, and has
taken full cognizance of and understands all of the risks related to the
purchase of the Securities.
(10) The undersigned acknowledges that each Share, Warrant and the
shares of common stock underlying each Warrant shall be stamped or otherwise
imprinted with a legend substantially in the following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER UNITED STATES FEDERAL OR STATE
SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE,
SOLD OR OTHERWISE TRANSFERRED OR ASSIGNED FOR
VALUE, DIRECTLY OR INDIRECTLY, NOR MAY THE
SECURITIES BE TRANSFERRED ON THE BOOKS OF THE
COMPANY, WITHOUT REGISTRATION OF SUCH SECURITIES
UNDER ALL APPLICABLE UNITED STATES FEDERAL
SECURITIES LAWS OR COMPLIANCE WITH AN APPLICABLE
EXEMPTION THEREFROM, SUCH COMPLIANCE AT THE
OPTION OF THE COMPANY, TO BE EVIDENCED BY AN
OPINION OF STOCKHOLDER'S COUNSEL, IN FORM
ACCEPTABLE TO THE COMPANY, THAT NO VIOLATION OF
SUCH REGISTRATION
- 4 -
<PAGE>
PROVISIONS WOULD RESULT FROM ANY PROPOSED
TRANSFER OR ASSIGNMENT.
(11) The undersigned is an "accredited investor" as that term is defined
in Rule 501(a) of Regulation D promulgated under the Securities Act ("Regulation
D"), unless the following box is checked to indicate non-accredited investor
status. / /
(12) If this Subscription 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 Subscription Agreement and all other agreements
and instruments executed and delivered by or on behalf of such partnership,
corporation, trust or estate in connection with the purchase of its Securities;
(b) to delegate authority pursuant to a power of attorney; and (c) to purchase
and hold such Securities; (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 or trust
has not been formed for the specific purpose of acquiring such Securities,
unless each beneficial owner of such entity is qualified as an accredited
investor within the meaning of Rule 501(a) of Regulation D promulgated under the
Securities Act.
(13) If the undersigned is a retirement plan or is investing on behalf
of a retirement plan, the undersigned acknowledges that investment in the
Securities poses additional risks including the inability to use losses
generated by such an investment to offset taxable income; and
(14) The undersigned shall indemnify and hold harmless the Company, and
each officer, director or control person thereof, 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 undersigned to the Company (or
any agent or representative thereof) or omitted or alleged to have been omitted
by the undersigned, concerning the undersigned or the undersigned's authority to
invest or financial position in connection with the Offering, including, without
limitation, any such misrepresentation, misstatement or omission contained in
the Subscription Agreement, the Questionnaire or any other document submitted by
the undersigned, against losses, liabilities and expenses for which the Company
or any officer, director or control person thereof has not otherwise been
reimbursed (including attorneys' fees, judgments, fines and amounts paid in
settlement) actually and reasonably incurred by the Company or such officer,
director or control person in connection with such action, suit or proceeding.
C. UNDERSTANDINGS.
===============
The undersigned understands, acknowledges and agrees with the Company as
follows:
(1) Except as set forth herein, the undersigned hereby acknowledges and
agrees that the subscription hereunder is irrevocable by the undersigned, that,
except as required by law, the
- 5 -
<PAGE>
undersigned is not entitled to cancel, terminate or revoke this Subscription
Agreement or any agreements of the undersigned hereunder and that this
Subscription Agreement and such other agreements shall survive the death or
disability of the undersigned and shall be binding upon and inure to the benefit
of the parties and their heirs, executors, administrators, successors, legal
representatives and permitted assigns. If the undersigned is more than one
person, the obligations of the undersigned 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
his/her heirs, executors, administrators, successors, legal representatives and
permitted assigns.
(2) No federal or state agency has made any finding or determination as
to the accuracy or adequacy of the Memorandum or as to the fairness of the terms
of this Offering for investment nor any recommendation or endorsement of the
Securities.
(3) The Offering is intended to be exempt from registration under the
Securities Act by virtue of Section 4(2) of the Securities Act and the
provisions of Regulation D thereunder, which is in part dependent upon the
truth, completeness and accuracy of the statements made by the undersigned
herein and in the Questionnaire.
(4) There is no public market for the Securities and no such public or
other market may ever develop. There can be no assurance that the undersigned
will be able to sell or dispose of the Securities. It is understood that in
order not to jeopardize the Offering's exempt status under Section 4(2) of the
Securities Act and Regulation D thereunder, any transferee may, at a minimum, be
required to fulfill the investor suitability requirements thereunder.
(5) The undersigned acknowledges that the information contained in the
Memorandum or otherwise made available to the undersigned is confidential and
non-public and agrees that all such information shall be kept in confidence by
the undersigned and neither used by the undersigned for the undersigned's
personal benefit (other than in connection with this Subscription) nor disclosed
to any third party for any reason; provided, however, that this obligation shall
not apply to any such information that (i) is part of the public knowledge or
literature and readily accessible at the date hereof, (ii) becomes part of the
public knowledge or literature and readily accessible by publication (except as
a result of a breach of this provision) or (iii) is received from third parties
(except third parties who disclose such information in violation of any
confidentiality agreements or obligations, including, without limitation, any
Subscription Agreement entered into with the Company).
(6) The representations, warranties and agreements of the undersigned
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 a the Securities to the undersigned as if made
on and as of such date and shall survive the execution and delivery of this
Subscription Agreement and, the purchase of the Securities Agreement.
(7) 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
- 6 -
<PAGE>
in the opinion of the Securities and Exchange Commission, such indemnification
is against public policy as expressed in such Act and is therefore unenforceable
to such extent.
(8) IN MAKING AN INVESTMENT DECISION PURCHASERS MUST RELY ON THEIR OWN
EXAMINATION OF THE COMPANY AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS
AND RISKS INVOLVED. THE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR
STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING
AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THE
MEMORANDUM OR THIS SUBSCRIPTION AGREEMENT. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
(9) THE SECURITIES MAY NOT BE TRANSFERRED, RESOLD OR OTHERWISE DISPOSED
OF EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS, PURSUANT TO REGISTRATION, ORDER OR EXEMPTION THEREFROM. PURCHASERS SHOULD
BE AWARE THAT THEY WILL BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS
INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
E. MISCELLANEOUS.
==============
(1) Capitalized terms used in this Subscription Agreement, if not
otherwise defined herein, shall have the respective meanings attributed to such
terms in the Memorandum. All pronouns and any variations thereof used herein
shall be deemed to refer to the masculine, feminine, impersonal, singular or
plural, as the identity of the person or persons may require.
(2) Except as set forth herein, neither this Subscription Agreement nor
any provision hereof shall be waived, modified, changed, discharged, terminated,
revoked or canceled except by an instrument in writing signed by the party
effecting the same against whom any change, discharge or termination is sought.
(3) Notices required or permitted to be given hereunder shall be in
writing and shall be deemed to be sufficiently given when personally delivered
or sent by registered mail, return receipt requested, addressed: (i) if to the
Company, at Celerity Systems, Inc., 122 Perimeter Park Drive, Knoxville,
Tennessee 37922, Attention: President, at the address contained on page (iii)
hereof or (ii) if to the undersigned, at the address for correspondence set
forth in the Questionnaire, or at such other address as may have been specified
by written notice given in accordance with this paragraph.
(4) Failure of any party to exercise any right or remedy under this
Subscription Agreement or any other agreement between them, or otherwise, or
delay by any party in exercising such right or remedy, will not operate as a
waiver thereof. No waiver by any party will be effective unless and until it is
in writing and signed by such party.
(5) This Subscription Agreement shall be governed by and shall be
construed in accordance with the laws of the State of Delaware, without regard
to the conflicts of laws principles of such State. The Company and the Purchaser
each irrevocably consent to the jurisdiction of, and
- 7 -
<PAGE>
venue in, the courts of the State of Delaware, and of the federal courts located
in the State of Delaware, in connection with any action or proceeding arising
out of or relating to this Subscription Agreement, any document or instrument
delivered pursuant to, in connection with or simultaneously with this
Subscription Agreement, or a breach of this Subscription Agreement or any such
document or instrument. This Subscription Agreement shall be binding upon the
undersigned, the undersigned's heirs, estate, legal representatives, successors
and assigns and shall inure to the benefit of the Company, its successors and
assigns. If any provision of this Subscription 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.
(6) This Subscription Agreement and the Securities purchased by the
undersigned constitute the entire agreement between the parties hereto with
respect to the subject matter hereof and may be amended only by a writing
executed by both parties hereto.
F. EXECUTION OF AGREEMENT BY POWER OF ATTORNEY.
============================================
THE UNDERSIGNED ACKNOWLEDGES THAT THE UNDERSIGNED HAS SIGNED THIS
SUBSCRIPTION AGREEMENT ON THE UNDERSIGNED'S OWN BEHALF, AND NOT BY POWER OF
ATTORNEY, UNLESS SUCH POWER OF ATTORNEY EXPRESSLY PROVIDES FOR THE FURTHER
DELEGATION OF SUCH POWER OF ATTORNEY BY THE HOLDER THEREOF AND, IN SUCH EVENT,
THE UNDERSIGNED REPRESENTS THAT ATTACHED HERETO IS A TRUE AND COMPLETE COPY OF
SUCH POWER OF ATTORNEY.
G. SIGNATURE
=========
The signature of this Subscription Agreement is contained as part of the
applicable Subscription Package, entitled "Signature Page." Signature of such
"Signature Page" constitutes the signature of this Subscription Agreement.
- 8 -
<PAGE>
A. CELERITY SYSTEMS, INC.
INDIVIDUAL INVESTOR QUESTIONNAIRE
IMPORTANT: Investor Name: _______________________________
Please Complete
Memorandum No. ______________________________
(from the cover of this Subscription Booklet)
To: CELERITY SYSTEMS, INC. (THE "COMPANY")
======================================
The information contained in this Questionnaire is being furnished in
order to determine whether the undersigned's subscription to purchase the
Securities described in the Confidential Private Placement Memorandum may be
accepted.
ALL INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED
CONFIDENTIALLY. The undersigned understands, however, that the Company may
present this Questionnaire to such parties as it deems appropriate if called
upon to establish that the proposed offer and sale of the Securities are exempt
from registration under the Securities Act of 1933, as amended, and meet the
requirements of applicable state securities or "blue sky" laws. Further, the
undersigned understands that the offering is required to be reported to the
Securities and Exchange Commission and to various state securities or "blue sky"
regulators.
IN ADDITION TO SIGNING THE SIGNATURE PAGE (PAGE A-5), YOU MUST
COMPLETE FORM W-9 FOUND AT SECTION F AT THE END OF THIS SUBSCRIPTION PACKAGE.
IF YOU ARE PURCHASING THE SECURITIES WITH YOUR SPOUSE, YOU MUST BOTH
SIGN THE SIGNATURE PAGE (PAGE A-4).
A-1
<PAGE>
I. PLEASE INDICATE DESIRED TYPE OF OWNERSHIP OF THE SECURITIES.
/ / Individual
/ / Joint Tenants (rights of survivorship)
/ / Tenants in Common (no rights of survivorship)
II. PLEASE CHECK ANY OF THE STATEMENTS 1-4 BELOW THAT APPLIES TO
YOU.
/ / 1. I have an individual net worth* or joint net worth with my
spouse in excess of $1,000,000.
/ / 2. I have had an individual income* in excess of $200,000 in
each of 1998 and 1999, and I reasonably expect an
individual income in excess of $200,000 for 2000. NOTE: IF
YOU ARE BUYING JOINTLY WITH YOUR SPOUSE, YOU MUST EACH HAVE
AN INDIVIDUAL INCOME IN EXCESS OF $200,000 IN EACH OF THESE
YEARS IN ORDER TO CHECK THIS BOX.
/ / 3. My spouse and I have had a joint income in excess of
$300,000 in each of 1998 and 1999, and I reasonably expect
a joint income in excess of $300,000 for 2000.
/ / 4. I am a director or executive officer of the Company.
III. OTHER CERTIFICATIONS.
By signing the Signature Page, I certify the following (or, if I am
purchasing the Securities with my spouse as co-owner, each of us certifies the
following):
(a) that I am at least 21 years of age;
(b) that my purchase of the Securities will be solely for my own
account and not for the account of any other person (other than
my spouse, if co-owner); and
(c) that the name, residence address, and social security or taxpayer
identification number as set forth in this Questionnaire are
true, correct, and complete.
- ------------------------
* For purposes of this Questionnaire, the term "net worth" means the excess
of total assets over total liabilities. In determining income, an investor
should add to his or her adjusted gross income any amounts attributable to
tax-exempt income received, losses claimed as a limited partner in any
limited partnership, deductions claimed for depletion, contributions to IRA
or Keogh retirement plan, alimony payments and any amount by which income
from long-term capital gains has been reduced in arriving at adjusted gross
income.
A-2
<PAGE>
IV. GENERAL INFORMATION.
(a) PURCHASER.
Name: _________________________________________________________________________
Social Security or Taxpayer Identification Number:______________________________
Residence Address:______________________________________________________________
(Number and Street)
________________________________________________________________________________
(City) (State) (Zip Code)
Residence Telephone Number:_____________________________________________________
(Area Code) (Number)
Business Name and Address:______________________________________________________
(Name of Business)
________________________________________________________________________________
(Number and Street)
________________________________________________________________________________
(City) (State) (Zip Code)
Business Telephone Number:______________________________________________________
(Area Code) (Number)
I prefer to have correspondence sent to: / / Residence / / Business
A-3
<PAGE>
(b) SPOUSE, IF CO-OWNER.
Name:___________________________________________________________________________
Social Security or Taxpayer Identification Number:
________________________________________________________________________________
Residence Address
(if different from Purchaser's):________________________________________________
(Number and Street)
________________________________________________________________________________
(City) (State) (Zip Code)
Residence Telephone Number
(if different from
Purchaser's):___________________________________________________________________
(Area Code) (Number)
Business Name and Address
(if different from
Purchaser's):___________________________________________________________________
(Business Name)
________________________________________________________________________________
(Number and Street)
________________________________________________________________________________
(City) (State) (Zip Code)
Business Telephone Number
(if different from
Purchaser's):___________________________________________________________________
(Area Code) (Number)
I prefer to have correspondence sent to: / / Residence / / Business
A-4
<PAGE>
CELERITY SYSTEMS, INC.
INDIVIDUAL SIGNATURE PAGE
Your signature on this Individual Signature Page evidences
your agreement to be bound by the QUESTIONNAIRE and the SUBSCRIPTION AGREEMENT.
The undersigned represents that (a) he/she has read and
understands this Subscription Agreement, (b) the information contained in this
Questionnaire is complete and accurate and (c) he/she will telephone the Company
(contact by collect call at the telephone number contained on page iii hereof)
immediately if any material change in any of this information occurs before the
acceptance of his/her subscription and will promptly send the Company written
confirmation of such change.
- -------------------------------------------- -------------------------------
Amount of debt due the undersigned from the Date
Company as consideration for the Securities
-------------------------------
Signature
-------------------------------
Name (Please Type or Print)
-------------------------------
Signature of Spouse if Co-Owner
-------------------------------
Name of Spouse if Co-Owner
(Please Type or Print)
- --------------------------------------------------------------------------------
IF YOU ARE PURCHASING THE SECURITIES WITH YOUR SPOUSE, YOU MUST BOTH SIGN THE
SIGNATURE PAGE (PAGE A-5).
- --------------------------------------------------------------------------------
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED
UNLESS THE SECURITIES ARE INCLUDED IN AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF
COUNSEL, CONCURRED IN BY COUNSEL TO THE COMPANY, HAS BEEN DELIVERED TO THE
EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.
A-5
<PAGE>
B. CELERITY SYSTEMS, INC.
CORPORATION QUESTIONNAIRE
----------------------------------------
IMPORTANT: Investor Name: _________________________
Please Complete
Memorandum No. _________________________
(from the cover of this Subscription
Booklet)
----------------------------------------
To: Celerity Systems, Inc. (the "Company")
======================================
The information contained in this Questionnaire is being furnished in
order to determine whether the undersigned CORPORATION'S subscription to
purchase the Securities described in the Confidential Private Placement
Memorandum may be accepted.
ALL INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED
CONFIDENTIALLY. The undersigned CORPORATION understands, however, that the
Company may present this Questionnaire to such parties as it deems appropriate
if called upon to establish that the proposed offer and sale of the Securities
are exempt from registration under the Securities Act of 1933, as amended, and
meet the requirements of applicable state securities or "blue sky" laws.
Further, the undersigned CORPORATION understands that the offering is required
to be reported to the Securities and Exchange Commission and to various state
securities and "blue sky" regulators.
IN ADDITION TO SIGNING THE SIGNATURE PAGE (PAGE B-4), THE UNDERSIGNED
CORPORATION MUST COMPLETE FORM W-9 FOUND AT SECTION F AT THE END OF THIS
SUBSCRIPTION PACKAGE.
I. PLEASE CHECK ANY OF STATEMENTS 1-4 BELOW THAT APPLIES TO THE
CORPORATION.
/ / 1. The undersigned CORPORATION: (a) has total assets in excess
of $5,000,000; and (b) was not formed for the specific
purpose of acquiring the Securities.
/ / 2. Each of the shareholders of the undersigned CORPORATION is
able to certify that such shareholder meets at least one of
the following two conditions:
B-1
<PAGE>
a. the shareholder is a natural person whose individual
net worth* or joint net worth with his or her spouse
exceeds $1,000,000; or
b. the shareholder is a natural person who had an
individual income* in excess of $200,000 in each of
1998 and 1999 and who reasonably expects an individual
income in excess of $200,000 in 2000.
/ / 3. Each of the shareholders of the undersigned CORPORATION is
able to certify that such shareholder is a natural person
who, together with his or her spouse, has had a joint income
in excess of $300,000 in each of 1998 and 1999 and who
reasonably expects a joint income in excess of $300,000
during 2000.
/ / 4. The undersigned CORPORATION is:
a. a bank as defined in Section 3(a)(2) of the Securities
Act; or
b. a savings and loan association or other institution as
defined in Section 3(a)(5)(A) of the Securities Act
whether acting in its individual or fiduciary capacity;
or
c. a broker or dealer registered pursuant to Section 15 of
the Securities Exchange Act of 1934; or
d. an insurance company as defined in Section 2(13) of the
Securities Act; or
e. an investment company registered under the Investment
Company Act of 1940 or a business development company
as defined in Section 2(a)(48) of the Investment
Company Act of 1940; or
f. a small business investment company licensed by the
U.S. Small Business Administration under Section 301
(c) or (d) of the Small Business Investment Act of
1958; or
g. a private business development company as defined in
Section 202(a) (22) of the Investment Advisers Act of
1940.
- --------------------------------------------------------------------------------
IF YOU CHECKED STATEMENT 2 OR STATEMENT 3 IN SECTION I AND DID NOT CHECK
STATEMENT 1, YOU MUST PROVIDE A LETTER SIGNED BY AN OFFICER OF THE UNDERSIGNED
CORPORATION LISTING THE NAME OF EACH SHAREHOLDER AND THE REASON (UNDER STATEMENT
2 OR STATEMENT 3) WHY SUCH SHAREHOLDER QUALIFIES AS AN ACCREDITED INVESTOR (ON
THE BASIS OF NET WORTH, INDIVIDUAL INCOME, OR JOINT INCOME) OR EACH SHAREHOLDER
MUST PHOTOCOPY AND COMPLETE SECTION II BELOW.
- --------------------------------------------------------------------------------
II. IF YOU CHECKED STATEMENT 2 OR STATEMENT 3 IN I ABOVE, EACH SHAREHOLDER
MUST CHECK ANY OF THE STATEMENTS 1-4 BELOW THAT APPLIES TO SUCH
SHAREHOLDER AND SIGN BELOW WHERE INDICATED.
- --------------
* For purposes of this Questionnaire, the term "net worth" means the excess
of total assets over total liabilities. In determining income, an investor
should add to his or her adjusted gross income any amounts attributable to
tax-exempt income received, losses claimed as a limited partner in any
limited partnership, deductions claimed for depletion, contributions to IRA
or Keogh retirement plan, alimony payments and any amount by which income
from long-term capital gains has been reduced in arriving at adjusted gross
income.
B-2
<PAGE>
/ / 1. I have an individual net worth or joint net worth with my
spouse in excess of $1,000,000.
/ / 2. I have had an individual income in excess of $200,000 in
each of 1998 and 1999, and I reasonably expect an individual
income in excess of $200,000 for 2000. NOTE: IF YOU ARE
BUYING JOINTLY WITH YOUR SPOUSE, YOU MUST EACH HAVE AN
INDIVIDUAL INCOME IN EXCESS OF $200,000 IN EACH OF THESE
YEARS IN ORDER TO CHECK THIS BOX.
/ / 3. My spouse and I have had a joint income in excess of
$300,000 in each of 1998 and 1999, and I reasonably expect a
joint income in excess of $300,000 for 2000.
/ / 4. I am a director or executive officer of the Company.
- ------------------------------------- -------------------------------------
Print Name of Shareholder(s) Signature of Shareholder(s)
III. OTHER CERTIFICATIONS.
By signing the Signature Page, the undersigned certifies the following:
(a) that the CORPORATION's purchase of the Securities will be solely for
the CORPORATION's own account and not for the account of any other
person or entity; and
(b) that the CORPORATION's name, address of principal place of business,
place of incorporation, and taxpayer identification number as set
forth in this Questionnaire are true, correct, and complete.
IV. GENERAL INFORMATION.
(a) PROSPECTIVE PURCHASER (THE CORPORATION)
Name:__________________________________________________________________________
Principal Place of Business:___________________________________________________
(Number and Street)
_______________________________________________________________________________
(City) (State) (Zip Code)
Address for Correspondence (if different):_____________________________________
(Number and Street)
_______________________________________________________________________________
(City) (State) (Zip Code)
Telephone Number:______________________________________________________________
(Area Code) (Number)
State of Incorporation:________________________________________________________
Date of Formation:_____________________________________________________________
Taxpayer Identification Number:________________________________________________
Number of Shareholders:________________________________________________________
B-3
<PAGE>
(b) INDIVIDUAL WHO IS EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THE
CORPORATION
Name:__________________________________________________________________________
Position or Title:_____________________________________________________________
(c) IF SECTION II HAS BEEN COMPLETED, NAMES OF INDIVIDUAL
SHAREHOLDERS WHOSE SIGNATURES MUST APPEAR ON B-4
Name(s) of Shareholders:_______________________________________________________
B-4
<PAGE>
CELERITY SYSTEMS, INC.
CORPORATION SIGNATURE PAGE
Your signature on this Corporation Signature Page evidences the agreement
by the CORPORATION to be bound by the Questionnaire and the Subscription
Agreement.
1. The undersigned CORPORATION hereby represents that (a) the information
contained in this Questionnaire is complete and accurate and (b) the CORPORATION
will notify the Company (contact by collect call at the telephone number
contained on page (iii) hereof) immediately if any material change in any of the
information occurs prior to the acceptance of the undersigned CORPORATION's
subscription and will promptly send the Company written confirmation of such
change.
2. The undersigned CORPORATION hereby certifies that it has read and
understands this Subscription Agreement.
3. The undersigned CORPORATION hereby represents and warrants that the
person signing this Subscription Agreement on behalf of the CORPORATION has been
duly authorized by all requisite action on the part of the CORPORATION to
acquire the Securities and sign this Subscription Agreement on behalf of the
CORPORATION and, further, that the undersigned CORPORATION has all requisite
authority to purchase the Securities and enter into this Subscription Agreement.
- -------------------------------------- --------------------------------------
Amount of debt due the undersigned Date
from the Company as consideration for
the Securities
--------------------------------------
Name of Corporation
(Please Type or Print)
By:
--------------------------------------
(Signature)
Name:
--------------------------------------
(Please Type or Print)
Title:
--------------------------------------
(Please Type or Print)
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED
UNLESS THE SECURITIES ARE INCLUDED IN AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL,
CONCURRED IN BY COUNSEL TO THE COMPANY, HAS BEEN DELIVERED TO THE EFFECT THAT
SUCH REGISTRATION IS NOT REQUIRED.
B-5
<PAGE>
C. CELERITY SYSTEMS, INC.
TRUST QUESTIONNAIRE
----------------------------------------------
IMPORTANT: Investor Name: _______________________________
Please Complete
Memorandum No. ______________________________
(from the cover of this Subscription Booklet)
----------------------------------------------
To: CELERITY SYSTEMS, INC. (THE "COMPANY")
======================================
The information contained in this Questionnaire is being furnished in order
to determine whether the undersigned TRUST's subscription to purchase the
Securities described in the Confidential Private Placement Memorandum may be
accepted.
ALL INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED
CONFIDENTIALLY. The undersigned TRUST understands, however, that the Company may
present this Questionnaire to such parties as it deems appropriate if called
upon to establish that the proposed offer and sale of the Securities are exempt
from registration under the Securities Act of 1933, as amended, and meet the
requirements of applicable state securities or "blue sky" laws. Further, the
undersigned TRUST understands that the offering is required to be reported to
the Securities and Exchange Commission and to various state securities and "blue
sky" regulators.
IN ADDITION TO SIGNING THE SIGNATURE PAGE (PAGE C-4), THE
UNDERSIGNED TRUST MUST COMPLETE FORM W-9 FOUND AT SECTION F AT
THE END OF THIS SUBSCRIPTION PACKAGE.
- --------------------------------------------------------------------------------
NOTE: RETIREMENT PLANS SHOULD COMPLETE THE QUESTIONNAIRE ON PAGES D-1 TO D-5.
- --------------------------------------------------------------------------------
I. PLEASE CHECK STATEMENTS 1 OR 2 BELOW, AS APPLICABLE.
/ / 1. a. the TRUST has total assets in excess of $5,000,000; AND
b. the TRUST was not formed for the specific purpose of
acquiring the Securities;
AND
c. the purchase by the TRUST is directed by a person who
has such knowledge and experience in financial and
business matters that he/she is capable of evaluating
the merits and risks of an investment in the Offering.
/ / 2. The TRUST is a revocable grantor TRUST which the grantor may
revoke at any time without the consent or approval of any
other person; the grantor retains sole investment control
over the assets of the trust; and
C-1
<PAGE>
a. the grantor is a natural person whose individual net
worth* or joint net worth with the grantor's spouse
exceeds $1,000,000; or
b. the grantor is a natural person who had an individual
income* in excess of $200,000 in each of 1998 and 1999
and who reasonably expects an individual income in
excess of $200,000 in 2000; or
c. the grantor is a natural person who, together with his
or her spouse, has had a joint income in excess of
$300,000 in each of 1998 and 1999 and who reasonably
expects a joint income in excess of $300,000 in 2000;
or
d. the grantor is a director or executive officer of the
Company.
- --------------------------------------------------------------------------------
IF THE TRUST IS A REVOCABLE GRANTOR TRUST, EACH GRANTOR MUST PHOTOCOPY
AND COMPLETE SECTION II BELOW AND RETURN IT TO THE COMPANY IN THE SAME ENVELOPE
WITH THE QUESTIONNAIRE.
- --------------------------------------------------------------------------------
II. FOR REVOCABLE GRANTOR TRUSTS ONLY: PLEASE CHECK ANY OF
STATEMENTS 1-4 BELOW THAT APPLY TO THE GRANTOR.
/ / 1. I have an individual net worth or joint net worth with my
spouse in excess of $1,000,000.
/ / 2. I have had an individual income in excess of $200,000 in
each of 1998 and 1999, and I reasonably expect an individual
income in excess of $200,000 for 2000. [NOTE: IF YOU ARE
BUYING JOINTLY WITH YOUR SPOUSE, YOU MUST EACH HAVE AN
INDIVIDUAL INCOME IN EXCESS OF $200,000 IN EACH
OF THESE YEARS IN ORDER TO CHECK THIS BOX.]
/ / 3. My spouse and I have had a joint income in excess of
$300,000 in each of 1998 and 1999, and I reasonably expect a
joint income in excess of $300,000 for 2000.
/ / 4. I am a director or executive officer of the Company.
- -------------------------------------- --------------------------------------
Print Name of Grantor(s) Signature of Grantor(s)
III. OTHER CERTIFICATIONS.
By signing the Signature Page, the undersigned certifies the following:
(a) that the TRUST's purchase of the Securities will be solely for the
TRUST's own account and not for the account of any other person;
(b) that the TRUST's purchase of the Securities are within the
investment powers and authority of the TRUST (as set forth in the
declaration of trust or other governing instrument) and that all
necessary consents, approvals, and authorizations for such
- ----------------
* For purposes of this Questionnaire, the term "net worth" means the excess
of total assets over total liabilities. In determining income, an investor
should add to his or her adjusted gross income any amounts attributable to
tax-exempt income received, losses claimed as a limited partner in any
limited partnership, deductions claimed for depletion, contributions to IRA
or Keogh retirement plan, alimony payments and any amount by which income
from long-term capital gains has been reduced in arriving at adjusted gross
income.
C-2
<PAGE>
purchase have been obtained and that each person who signs the
Signature Page has all requisite power and authority as trustee to
execute this Questionnaire and the Subscription Agreement on
behalf of the TRUST;
(c) that the TRUST has not been established in connection with either
(i) an employee benefit plan (as defined in Section 3(3) of
Employee Retirement Income Security Act of 1974, as amended
("ERISA")), whether or not subject to the provisions of Title I of
ERISA, or (ii) a plan described in Section 4975(e) (i) of the
Internal Revenue Code; and
(d) that the TRUST's name, address, place of formation, and taxpayer
identification number as set forth in this Questionnaire are true,
correct, and complete.
IV. GENERAL INFORMATION.
(a) PROSPECTIVE PURCHASER (THE TRUST).
Name:___________________________________________________________________________
Address:________________________________________________________________________
________________________________________________________________________________
(Number and Street)
________________________________________________________________________________
(City) (State) (Zip Code)
Address for Correspondence (if different):______________________________________
(Number and Street)
________________________________________________________________________________
(City) (State) (Zip Code)
Telephone Number:_______________________________________________________________
(Area Code) (Number)
State in which Formed:__________________________________________________________
Date of Formation:______________________________________________________________
Taxpayer Identification Number:_________________________________________________
(b) TRUSTEE(S) WHO ARE EXECUTING THIS QUESTIONNAIRE ON BEHALF
OF THE TRUST.
Name(s) of
Trustee(s):___________________________________________________
If Grantor Trust, Name(s) of Grantor(s):______________________
V. ADDITIONAL INFORMATION.
- --------------------------------------------------------------------------------
A TRUST MUST ATTACH A COPY OF THE TRUST AGREEMENT, DECLARATION OF
TRUST, OR OTHER GOVERNING INSTRUMENT, AS AMENDED, AS WELL AS ALL OTHER DOCUMENTS
THAT AUTHORIZE THE TRUST TO INVEST IN THE OFFERING. ALL DOCUMENTATION MUST BE
COMPLETE AND CORRECT.
- --------------------------------------------------------------------------------
C-3
<PAGE>
CELERITY SYSTEMS, INC.
TRUST SIGNATURE PAGE
--------------------------
Your signature on this TRUST Signature Page evidences the agreement by
the Trustee(s), on behalf of the TRUST, to be bound by the Questionnaire and the
Subscription Agreement.
1. The undersigned trustees represent that (a) the information
contained in this Questionnaire is complete and accurate and (b) the TRUST will
notify the Company (contact by collect call at the telephone number contained on
page (iii) hereof) immediately if any material change in any of this information
occurs before the acceptance of the TRUST's subscription and will promptly send
the Company written confirmation of such change.
2. The undersigned trustees hereby certify that they have read and
understand this Subscription Agreement.
3. The undersigned trustees hereby represent and warrant that the
persons signing this Subscription Agreement on behalf of the TRUST are duly
authorized to acquire the Securities and sign this Subscription Agreement on
behalf of the TRUST and, further, that the undersigned TRUST has all requisite
authority to purchase the Securities and enter into this Subscription Agreement.
- -------------------------------------- --------------------------------------
Amount of debt due the undersigned Date
from the Company as consideration for
the Securities
Please Type or Print the Exact Legal
Title of Trust as follows; Trustee's --------------------------------------
name, as trustee for [Name of Grantor] Title of Trust
under Agreement [or Declaration] of
Trust dated [Date of Trust Formation]
Name of Name of
Trustee: Trustee:
--------------------------- --------------------------------
(Please Type or Print) (Please Type or Print)
By: By:
-------------------------------- -------------------------------------
(Signature of Trustee) (Signature of Trustee)
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED
UNLESS THE SECURITIES ARE INCLUDED IN AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT,
C-4
<PAGE>
APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL, CONCURRED IN BY
COUNSEL TO THE COMPANY, HAS BEEN DELIVERED TO THE EFFECT THAT SUCH REGISTRATION
IS NOT REQUIRED.
C-5
<PAGE>
D. CELERITY SYSTEMS, INC.
RETIREMENT PLAN QUESTIONNAIRE
----------------------------------------------
IMPORTANT: Investor Name:
Please Complete -------------------------------
Memorandum No.
------------------------------
(from the cover of this Subscription Booklet)
----------------------------------------------
To: Celerity Systems, Inc. (the "Company")
The information contained in this Questionnaire is being furnished in
order to determine whether the undersigned RETIREMENT PLAN's subscription to
purchase the Securities described in the Confidential Private Placement
Memorandum may be accepted.
ALL INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED
CONFIDENTIALLY. The undersigned RETIREMENT PLAN understands, however, that the
Company may present this Questionnaire to such parties as it deems appropriate
if called upon to establish that the proposed offer and sale of the Securities
are exempt from registration under the Securities Act of 1933, as amended, and
meet the requirements of applicable state securities or "blue sky" laws.
Further, the undersigned RETIREMENT PLAN understands that the offering is
required to be reported to the Securities and Exchange Commission and to various
state securities or "blue sky" regulators.
IN ADDITION TO SIGNING THE SIGNATURE PAGE (PAGE D-5), YOU MUST COMPLETE
FORM W-9 FOUND AT SECTION F AT THE END OF THIS SUBSCRIPTION PACKAGE.
I. PLEASE CHECK ANY OF THE FOLLOWING STATEMENTS, AS APPLICABLE.
/ / 1. The undersigned RETIREMENT PLAN certifies that it is a Keogh
plan or Individual Retirement Account in which each
participant satisfies at least one of the following
conditions:
a. such person's individual net worth* or joint net worth
with his or her spouse exceeds $1,000,000; or
- ----------------
* For purposes of this Questionnaire, the term "net worth" means the excess
of total assets over total liabilities. In determining income, an Investor
should add to his or her adjusted gross income any amounts attributable to
tax-exempt income received, losses claimed as a limited partner in any
limited partnership, deductions claimed for depletion, contributions to IRA
or Keogh retirement plan, alimony payments and any amount by which income
from long-term capital gains has been reduced in arriving at adjusted gross
income.
D-1
<PAGE>
b. such person had an individual income* in excess of
$200,000 in each of 1998 and 1999 and reasonably
expects an individual income in excess of $200,000 in
2000; or
c. such person, together with his or her spouse, had a
joint income in excess of $300,000 in each of 1998 and
1999 and reasonably expects a joint income in excess of
$300,000 in 2000.
2. The undersigned RETIREMENT PLAN certifies that it is an
employee benefit plan within the meaning of the
Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and:
/ / a. The undersigned RETIREMENT PLAN is self-directed, and
each such person directing his account and for whom the
investment is being made satisfies at least one of the
following conditions:
(1) such person's individual net worth or joint net worth
with his or her spouse exceeds $1,000,000; or
(2) such person had an individual income in excess of
$200,000 in each of 1998 and 1999 and reasonably expects
an individual income in excess of $200,000 in 2000; or
(3) such person together with his or her spouse, had a joint
income in excess of $300,000 in each of 1998 and 1999 and
reasonably expects a joint income in excess of $300,000
in 2000.
(4) such person is a director or executive officer of the
Company.
/ / b. The undersigned RETIREMENT PLAN has total assets in
excess of $5,000,000; or
/ / c. The investment decisions are made by a plan fiduciary
as defined in Section 3(21) of ERISA that is either a
bank, insurance company, or registered investment
adviser.
- --------------------------------------------------------------------------------
IF YOU CHECKED STATEMENT 1 OR STATEMENT 2(a) IN SECTION I ABOVE, EACH RETIREMENT
PLAN PARTICIPANT FOR WHOSE ACCOUNT THE INVESTMENT IS BEING MADE MUST PHOTOCOPY
AND COMPLETE SECTION II BELOW.
- --------------------------------------------------------------------------------
II. IF YOU CHECKED STATEMENT 1 OR STATEMENT 2(A) IN SECTION I ABOVE, EACH
RETIREMENT PLAN PARTICIPANT FOR WHOSE ACCOUNT THE INVESTMENT IS BEING MADE
MUST CHECK ANY OF THE STATEMENTS 1-4 BELOW THAT APPLIES TO SUCH
PARTICIPANT.
/ / 1. I have an individual net worth or joint net worth with my
spouse in excess of $1,000,000.
D-2
<PAGE>
/ / 2. I have had an individual income in excess of $200,000 in
each of 1998 and 1999, and I reasonably expect an
individual income in excess of $200,000 for 2000. [NOTE:
IF YOU ARE BUYING JOINTLY WITH YOUR SPOUSE, YOU MUST EACH
HAVE AN INDIVIDUAL INCOME IN EXCESS OF $200,000 IN EACH
OF THESE YEARS IN ORDER TO CHECK THIS BOX.]
/ / 3. My spouse and I have had a joint income in excess of
$300,000 in each of 1998 and 1999, and I reasonably
expect a joint income excess of $300,000 for 2000.
/ / 4. I am a director or executive officer of the Company.
- -------------------------------------- --------------------------------------
Print Name of Participant Signature of Participant
III. OTHER CERTIFICATIONS.
By signing the Signature Page, the undersigned certifies the following:
(a). that the RETIREMENT PLAN's purchase of the Securities will be
solely for the RETIREMENT PLAN's own account and not for the
account of any other person or entity;
(b). that the RETIREMENT PLAN's governing documents duly authorize
the type of investment contemplated herein, and the
undersigned is authorized and empowered to make such
investment on behalf of the RETIREMENT PLAN; and
(c). that the RETIREMENT PLAN's name, address, place of formation,
and taxpayer identification number as set forth in this
Questionnaire are true, correct, and complete.
IV. GENERAL INFORMATION.
(a). PROSPECTIVE PURCHASER (THE RETIREMENT PLAN).
Name:___________________________________________________________________________
Address:________________________________________________________________________
________________________________________________________________________________
(Number and Street)
________________________________________________________________________________
(City) (State) (Zip Code)
________________________________________________________________________________
Address for Correspondence (if different):
________________________________________________________________________________
(Number and Street)
D-3
<PAGE>
________________________________________________________________________________
(City) (State) (Zip Code)
Telephone Number:_______________________________________________________________
(Area Code) (Number)
State in which Formed:__________________________________________________________
Date of Formation:______________________________________________________________
Taxpayer Identification Number:_________________________________________________
(b). INDIVIDUAL WHO IS EXECUTING THIS QUESTIONNAIRE ON BEHALF OF
THE RETIREMENT PLAN (TRUSTEE FOR AN EMPLOYEE BENEFIT PLAN;
CUSTODIAN FOR AN IRA OR KEOGH).
Name:___________________________________________________________________________
Position or Title:______________________________________________________________
V. ADDITIONAL INFORMATION.
- --------------------------------------------------------------------------------
THE RETIREMENT PLAN MAY BE REQUIRED TO ATTACH COPIES OF ALL DOCUMENTS GOVERNING
THE PLAN AS WELL AS ALL OTHER DOCUMENTS AUTHORIZING THE RETIREMENT PLAN TO
INVEST IN THIS OFFERING. INCLUDE, AS NECESSARY, THE TRUST AGREEMENT AND
DOCUMENTS DEFINING PERMITTED INVESTMENTS BY THE RETIREMENT PLAN AND
DEMONSTRATING AUTHORITY OF THE SIGNING INDIVIDUAL TO ACT ON BEHALF OF THE PLAN.
ALL DOCUMENTATION MUST BE COMPLETE AND CORRECT.
- --------------------------------------------------------------------------------
D-4
<PAGE>
CELERITY SYSTEMS, INC.
RETIREMENT PLAN SIGNATURE PAGE
Your signature on this RETIREMENT PLAN Signature Page evidences the
agreement by the RETIREMENT PLAN to be bound by the Questionnaire and the
Subscription Agreement.
I. The undersigned RETIREMENT PLAN hereby represents that (a) the
information contained in this Questionnaire is complete and accurate and (b) the
RETIREMENT PLAN will notify the Company (contact by collect call at the
telephone number contained on page (iii) hereof) immediately if any material
change in any of the information occurs prior to the acceptance of the
undersigned RETIREMENT PLAN's subscription and will promptly send the Company
written confirmation of such change.
2. The undersigned RETIREMENT PLAN hereby certifies that it has read and
understands this Subscription Agreement.
3. The undersigned RETIREMENT PLAN hereby represents and warrants that the
person signing this Subscription Agreement on behalf of the RETIREMENT PLAN has
been duly authorized to acquire the Securities and sign this Subscription
Agreement on behalf of the RETIREMENT PLAN and, further, that the undersigned
RETIREMENT PLAN has all requisite authority to purchase the Securities and enter
into this Subscription Agreement.
- -------------------------------------- --------------------------------------
Amount of debt due the undersigned Date
from the Company as consideration for
the Securities
--------------------------------------
Name of Retirement Plan
(Please Type or Print)
By:
---------------------------------
(Signature)
Name:
---------------------------------
(Please Type or Print)
Title:
--------------------------------
(Please Type of Print)
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED
UNLESS THE SECURITIES ARE INCLUDED IN AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL,
CONCURRED IN BY COUNSEL TO THE COMPANY, HAS BEEN DELIVERED TO THE EFFECT THAT
SUCH REGISTRATION IS NOT REQUIRED.
D-5
<PAGE>
E. CELERITY SYSTEMS, INC.
PARTNERSHIP QUESTIONNAIRE
----------------------------------------------
IMPORTANT: Investor Name:
Please Complete -------------------------------
Memorandum No.
------------------------------
(from the cover of this Subscription Booklet)
---------------------------------------------
To: Celerity Systems, Inc. (The "Company")
======================================
The information contained in this Questionnaire is being furnished in order
to determine whether the undersigned PARTNERSHIP's subscription to purchase the
Securities described in the Confidential Private Placement Memorandum may be
accepted.
ALL INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED
CONFIDENTIALLY. The undersigned PARTNERSHIP understands, however, that the
Company or the Placement Agent may present this Questionnaire to such parties as
it deems appropriate if called upon to establish that the proposed offer and
sale of the Securities are exempt from registration under the Securities Act of
1933, as amended, and meet the requirements of applicable state securities or
"blue sky" laws. Further, the undersigned PARTNERSHIP understands that the
offering is required to be reported to the Securities and Exchange Commission
and to various state securities and "blue sky" regulators.
IN ADDITION TO SIGNING THE SIGNATURE PAGE (PAGE E-4), THE
UNDERSIGNED PARTNERSHIP MUST COMPLETE FORM W-9 FOUND AT SECTION
AT THE END OF THIS SUBSCRIPTION PACKAGE.
I. PLEASE CHECK ANY OF STATEMENTS 1-3 BELOW THAT APPLIES TO THE
PARTNERSHIP.
/ / 1. The undersigned PARTNERSHIP: (a) has total assets in excess of
$5,000,000; and (b) was not formed for the specific purpose of
acquiring the Shares.
/ / 2. Each of the partners of the undersigned PARTNERSHIP is able to
certify that such partner meets at least one of the following
three conditions:
a. the partner is a natural person whose individual net worth*
or joint net worth with his or her spouse exceeds
$1,000,000; or
b. the partner is a natural person whose individual income*
was in excess of $200,000 in each of 1998 and 1999 and who
reasonably expects an individual income in excess of
$200,000 in 2000; or
c. the partner is a director or executive officer of the
Company.
/ / 3. Each of the partners of the undersigned PARTNERSHIP is able to
certify that such partner is a natural person who, together
with his or her spouse, has had a joint
- ----------------
* For purposes of this Questionnaire, the term "net worth" means the excess
of total assets over total liabilities. In determining income, an investor
should add to his or her adjusted gross income any amounts attributable to
tax-exempt income received, losses claimed as a limited partner in any
limited partnership, deductions claimed for depletion, contributions to IRA
or Keogh retirement plan, alimony payments and any amount by which income
from long-term capital gains has been reduced in arriving at adjusted gross
income.
E-1
<PAGE>
income in excess of $300,000 in each of 1998 and 1999 and who
reasonably expects a joint income in excess of $300,000 in
2000.
- --------------------------------------------------------------------------------
IF YOU CHECKED STATEMENT 2 OR STATEMENT 3 IN SECTION I AND DID NOT CHECK
STATEMENT I, YOU MUST PROVIDE A LETTER SIGNED BY A GENERAL PARTNER OF THE
UNDERSIGNED PARTNERSHIP LISTING THE NAME OF EACH PARTNER (WHETHER A GENERAL OR
LIMITED PARTNER) AND THE REASON (UNDER STATEMENT 2 OR STATEMENT 3) SUCH PARTNER
QUALIFIES AS AN ACCREDITED INVESTOR (ON THE BASIS OF NET WORTH, INDIVIDUAL
INCOME, OR JOINT INCOME), OR EACH PARTNER MUST PHOTOCOPY AND COMPLETE SECTION II
BELOW.
- --------------------------------------------------------------------------------
II. IF YOU CHECKED STATEMENT 2 OR STATEMENT 3 IN SECTION I ABOVE, EACH PARTNER
MUST CHECK ANY OF THE STATEMENTS 1-4 BELOW THAT APPLIES TO SUCH PARTNER AND
SIGN WHERE INDICATED.
/ / 1. I have an individual net worth or joint net worth with my
spouse in excess of $1,000,000.
/ / 2. I have had an individual income in excess of $200,000 in each
of 1998 and 1999, and I reasonably expect an individual income
in excess of $200,000 for 2000. NOTE: IF YOU ARE BUYING JOINTLY
WITH YOUR SPOUSE, YOU MUST EACH HAVE AN INDIVIDUAL INCOME IN
EXCESS OF $200,000 IN EACH OF THESE YEARS IN ORDER TO CHECK
THIS BOX.
/ / 3. My spouse and I have had a joint income in excess of $300,000
in each of 1998 and 1999, and I reasonably expect a joint
income in excess of $300,000 for 2000.
/ / 4. I am a director or executive officer of the Company.
- -------------------------------------- --------------------------------------
Print Name of Partner(s) Signature of Partner(s)
III. OTHER CERTIFICATIONS.
By signing the Signature Page, the undersigned certifies the following:
(a) that the PARTNERSHIP's purchase of the Securities will be solely
for the PARTNERSHIP's own account and not for the account of any
other person; and
(b) that the PARTNERSHIP's name, address of principal place of
business, place of formation, and taxpayer identification number as
set forth in this Questionnaire are true, correct, and complete.
IV. GENERAL INFORMATION.
(a) PROSPECTIVE PURCHASER (THE PARTNERSHIP)
Name:___________________________________________________________________________
Principal Place of Business:____________________________________________________
(Number and Street)
________________________________________________________________________________
E-2
<PAGE>
________________________________________________________________________________
(City) (State) (Zip Code)
Address for Correspondence (if different):______________________________________
(Number and Street)
________________________________________________________________________________
(City) (State) (Zip Code)
Telephone Number:_______________________________________________________________
(Area Code) (Number)
State in which Formed:_________________________________________________________
Date of Formation:______________________________________________________________
Taxpayer Identification Number:_________________________________________________
Number of Partners:_____________________________________________________________
(b) THE PERSON WHO IS EXECUTING THIS QUESTIONNAIRE ON BEHALF OF
THE PARTNERSHIP
Name:___________________________________________________________________________
Position or Title:______________________________________________________________
(c) IF SECTION II HAS BEEN COMPLETED, NAMES OF INDIVIDUAL PARTNERS
WHOSE SIGNATURES MUST APPEAR ON PAGE E-4
Name(s) of Individual Partners:_________________________________________________
E-3
<PAGE>
CELERITY SYSTEMS, INC.
PARTNERSHIP SIGNATURE PAGE
Your signature on this Partnership Signature Page evidences the
agreement by the PARTNERSHIP to be bound by the Questionnaire and the
Subscription Agreement.
1. The undersigned PARTNERSHIP hereby represents that (a) the
information contained in this Questionnaire is complete and accurate and (b) the
PARTNERSHIP will notify the Company (contact by collect call at the telephone
number contained on page (iii) hereof) immediately if any material change in any
of this information occurs before the acceptance of the undersigned
PARTNERSHIP's subscription and will promptly send the Company written
confirmation of such change.
2. The undersigned PARTNERSHIP hereby certifies that it has read and
understands this Subscription Agreement.
3. The undersigned PARTNERSHIP hereby represents and warrants that the
person signing this Subscription Agreement on behalf of the PARTNERSHIP is a
general partner of the PARTNERSHIP, has been duly authorized by the PARTNERSHIP
to acquire the Securities and sign this Subscription Agreement on behalf of the
PARTNERSHIP and, further, that the undersigned PARTNERSHIP has all requisite
authority to purchase the Securities and enter into this Subscription Agreement.
- -------------------------------------- --------------------------------------
Amount of debt due the undersigned Date
from the Company as consideration for
the Securities
--------------------------------------
Name of Partnership
(Please Type or Print)
By:
---------------------------------
(Signature)
Name:
--------------------------------
(Please Type or Print)
Title:
--------------------------------
- --------------------------------------------------------------------------------
THE RETIREMENT PLAN MAY BE REQUIRED TO ATTACH COPIES OF ALL DOCUMENTS GOVERNING
THE PLAN AS WELL AS ALL OTHER DOCUMENTS AUTHORIZING THE RETIREMENT PLAN TO
INVEST IN THIS OFFERING. INCLUDE, AS NECESSARY, THE TRUST AGREEMENT AND
DOCUMENTS DEFINING PERMITTED INVESTMENTS BY THE RETIREMENT PLAN AND
DEMONSTRATING AUTHORITY OF THE SIGNING INDIVIDUAL TO ACT ON BEHALF OF THE PLAN.
ALL DOCUMENTATION MUST BE COMPLETE AND CORRECT.
- --------------------------------------------------------------------------------
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED
UNLESS THE SECURITIES ARE INCLUDED IN AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL,
CONCURRED IN BY COUNSEL TO THE COMPANY, HAS BEEN DELIVERED TO THE EFFECT THAT
SUCH REGISTRATION IS NOT REQUIRED.
E-4
<PAGE>
CELERITY SYSTEMS, INC.
COMPANY SIGNATURE PAGE
The Company's signature on this page evidences its agreement to be bound
by the SUBSCRIPTION AGREEMENT.
Date: ___________, 2000
CELERITY SYSTEMS, INC.
By:_______________________________
Kenneth D. Van Meter
President and Chief Executive Officer
<PAGE>
EXHIBIT 99.3
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. 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
___________, 2003 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
1
<PAGE>
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 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 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
2
<PAGE>
shown on the Warrant Register as the absolute owner of this Warrant for all
purposes, notwithstanding any notice to the contrary.
b. REGISTRATION RIGHTS; 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). The shares of Common Stock
issuable upon exercise of this Warrant shall be subject to the registration
rights described in the Confidential Private Placement Memorandum, dated March
8, 2000.
c. EXCHANGE OF WARRANT UPON A TRANSFER. On surrender of this Warrant
for exchange, properly endorsed on the 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 RECORD HEREOF TO THE SECRETARY
OF THE COMPANY AT THE PRINCIPAL EXECUTIVE OFFICES OF THE
COMPANY.
3
<PAGE>
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 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.
4
<PAGE>
b. No waivers of or exceptions to any term, condition or provision of
this Warrant, in any one or more 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 in Section
II.
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, 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.
5
<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:
-------------------------
6
<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]
-----------------------------
- --------------------------
[Date] _______________________
------
[Signature]
7
<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 _______________.
NAME OF ASSIGNEE ADDRESS NO. OF SHARES
- --------------------------------------------------------------------------------
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)
8
