Exhibit 4.10
No. W-8 Warrant to Purchase Fifty Thousand (50,000) Shares of
Common Stock of Celerity Systems, Inc.
(Subject to adjustment)
Date of Issuance - As of September 30, 1999
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 HYOTHOCATED IN THE
ABSENCE OF A REGISTERATION 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 REQUIRIED.
WARRANT TO PURCHASE COMMON STOCK
of
CELERITY SYSTEMS, INC.
This certifies that, for value received, May Davis Group, 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"),
Fifty Thousand (50,000) shares of 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") therefore, 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
the Warrant and any warrants delivered in substitution or exchange therefore as
provided herein.
1. TERM OF WARRANT. Subject to the terms and conditions set forth
herein, the Warrant shall be exercisable, in whole or in part,
during the term commencing as of September 30, 1999 and ending
5:00 p.m., Eastern Time September 29, 2002 and shall be void
thereafter (the "Term").
2. EXERCISE PRICE. The Exercise Price at which the Warrant may be
exercised shall be $0.586 per share of Common Stock, as
adjusted from time to time to pursuant to Section 11 hereof
(the "Exercise Price").
3. EXERCISE OF WARRANT.
(a) The purchase rights represented by the 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 Notice of Exercise
annexed hereto as EXHIBIT "A" duly completed and
executed on behalf of the Holder, at the office of
the Company (or such other office or agency of the
Company as it may designate by notice in writing to
the Holder at the address of the Holder appearing
on the books of the Company) upon payment in cash
or by check acceptable to the Company in an amount
equal to the product of the Exercise Price set
forth in Section 2 above multiplied by the number
of shares of common Stock being purchased upon such
exercise.
(b) This Warrant shall be deemed to have been exercised
immediately prior to the close of business on the
date of its surrender for exercise as provided above,
and the person entitled to receive the shares of
Common Stock issuable upon such exercise shall be
treated for all purposes as the holder of record of
such shares as of the close of business on such date.
As promptly as practicable on or after such date and
in event within ten (10) days thereafter, the Company
as its expense shall issue and deliver to the person
or persons entitled to receive the same 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 FACTIONAL 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 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 Common Stock shall mean:
(1) If the common Stock is listed on 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 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, on 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 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 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 in the Warrant Register
of the Company, the Company may treat the holder as shown on the Warrant
Register as the absolute owner of this Warrant for all purposes, notwithstanding
any notice to the contrary.
(b) TRANSFERABILITY AND NONNEGOTIABILITY OF WARRANT AND UNDERLYING
COMMON STOCK. This Warrant may 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 1933, as amended
(the "Act"), title to this Warrant may be transferred by the 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 the endorsement
and delivery.
The Common Stock to be issued upon exercise hereof, may not be transferred or
assigned in whole or in part without compliance with all applicable federal and
state securities laws by the transferor and the transferee (including the
delivery of investment representation letters and legal opinions reasonably
satisfactory to the Company, if such are requested by the Company)
(c) EXCHANGE OF WARRANT UPON A TRANSFER. On surrender of this Warrant
for exchange, properly endorsed on the 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 exercise shall issue to or 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 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 the State securities laws):
THE SECURITIES PRESENTED HEREBY HAVE BEEN ACUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. SUCH SECURITIES AND ANY SECURITIES OR SHARES ISSED
HEREUNDER OR THEREUNDER MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR EXEPTION THEREFORM 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.
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 Sock
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 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 in 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 in 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 Treasurers 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 purposes 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 subsequently all the assets of the
Company to another incorporation, or
(iii) of any voluntary dissolution, liquidation of winding-up
of this Company,
then, and in each such case, the Company will mail or cause to mail 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 10
days prior to the date therein specified.
(c) All such notices, advices and communications shall be deemed to
have been received (i) in the case of personal delivery, on the date of such
delivery and (ii) in the case of mailing, on the third (3) business day
following the date of such mailing.
10. AMENDMENTS.
(a) Any term of this Warrant may be amended with the written consent of
the Company and the Holder.
(b) No waivers of or exceptions to any term, condition or provision of
this Warrant, in any one or more instances, shall be deemed to be, or construed,
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 exists 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 which were subject to the purchase rights under this Warrant
immediately prior to such merger, consolidation, reclassification or other
change and the Exercise Price therefore shall be approximately adjusted, all
subject to further adjustment as provided in Section II.
11.2 SPLIT, SUBDIVISION OF COMBINATION OF SHARES. If the Company at any
time while this warrant, or any portion thereof, remains outstanding and
unexpired shall split, subdivided 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
1
securities shall be proportionately decreased in the case of a split or
subdivision or proportionately increased in the case of 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 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 and readjustment is based. The Company shall, upon 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 of 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 AMENDMENTS OF 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 heading 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 States of Delaware, without
regard to principals of conflicts or choice of law.
IN WITNESS WHEREOF, CELERITY SYSTEMS, INC. caused this Warrant to be executed by
its officers thereunto duly authorized.
Dated: September 30, 1999
CELERITY SYSTEMS, INC.
By: /s/ Kenneth D. Van Meter
Title: President & CEO
AGREED AND ACCEPTED:
HOLDER:
By:
Title:
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 payments 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 presenting 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
specified below.
Name
Name
2
EXHIBIT B
FORM OF ASSIGNEMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant hereby
sells, assigns and transfers unto the Assignee names 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
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
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No. W-9 Warrant to Purchase Fifty Thousand (50,000) Shares of
Common Stock of Celerity Systems, Inc.
(Subject to adjustment)
Date of Issuance - As of September 30, 1999
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 HYOTHOCATED IN THE
ABSENCE OF A REGISTERATION 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 REQUIRIED.
WARRANT TO PURCHASE COMMON STOCK
of
CELERITY SYSTEMS, INC.
This certifies that, for value received, Mark Angelo, 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"),
Fifty Thousand (50,000) shares of 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") therefore, 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
the Warrant and any warrants delivered in substitution or exchange therefore as
provided herein.
1. TERM OF WARRANT. Subject to the terms and conditions set forth
herein, the Warrant shall be exercisable, in whole or in part,
during the term commencing as of September 30, 1999 and ending
5:00 p.m., Eastern Time September 29, 2002 and shall be void
thereafter (the "Term").
2. EXERCISE PRICE. The Exercise Price at which the Warrant may be
exercised shall be $0.586 per share of Common Stock, as
adjusted from time to time to pursuant to Section 11 hereof
(the "Exercise Price").
4
3. EXERCISE OF WARRANT.
(a) The purchase rights represented by the 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 Notice of Exercise
annexed hereto as EXHIBIT "A" duly completed and
executed on behalf of the Holder, at the office of
the Company (or such other office or agency of the
Company as it may designate by notice in writing to
the Holder at the address of the Holder appearing on
the books of the Company) upon payment in cash or by
check acceptable to the Company in an amount equal to
the product of the Exercise Price set forth in
Section 2 above multiplied by the number of shares of
common Stock being purchased upon such exercise.
(b) This Warrant shall be deemed to have been exercised
immediately prior to the close of business on the
date of its surrender for exercise as provided above,
and the person entitled to receive the shares of
Common Stock issuable upon such exercise shall be
treated for all purposes as the holder of record of
such shares as of the close of business on such date.
As promptly as practicable on or after such date and
in event within ten (10) days thereafter, the Company
as its expense shall issue and deliver to the person
or persons entitled to receive the same 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 FACTIONAL 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 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 Common Stock shall mean:
(1) If the common Stock is listed on national securities exchange or
admitted to unlisted trading privileges on such exchange or listed for trading
on the NASDAQ
5
National Market system or Small cap system, the Current Market Value shall be
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, on 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 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 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 in the Warrant Register
of the Company, the Company may treat the holder as shown on the Warrant
Register as the absolute owner of this Warrant for all purposes, notwithstanding
any notice to the contrary.
(b) TRANSFERABILITY AND NONNEGOTIABILITY OF WARRANT AND UNDERLYING
COMMON STOCK. This Warrant may 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 1933,
6
as amended (the "Act"), title to this Warrant may be transferred by the
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 the endorsement and delivery. The Common Stock to be issued upon
exercise hereof, may not be transferred or assigned in whole or in part without
compliance with all applicable federal and state securities laws by the
transferor and the transferee (including the delivery of investment
representation letters and legal opinions reasonably satisfactory to the
Company, if such are requested by the Company)
(c) EXCHANGE OF WARRANT UPON A TRANSFER. On surrender of this Warrant
for exchange, properly endorsed on the 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 exercise shall issue to or 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 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 the State securities laws):
THE SECURITIES PRESENTED HEREBY HAVE BEEN ACUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTED UNDER THE SECURITIES
ACT OF
7
1933, AS AMENDED. SUCH SECURITIES AND ANY SECURITIES OR
SHARES ISSED HEREUNDER OR THEREUNDER MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR EXEPTION
THEREFORM UNDER SAID ACT. COPIES OF THE AGREEMENT COVERING
THE PURCHASE OF THESE SECURITIES AND RESTRICTING THEIR
TRANSFER OR SALE MAY NE 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.
8. RESERVATION OF STOCK. The company covenants that during the
Term of 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 Sock
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 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 in 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 in 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 Treasurers 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 purposes 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
8
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 subsequently all the assets of the
Company to another incorporation, or
(iii) of any voluntary dissolution, liquidation of winding-up
of this Company,
then, and in each such case, the Company will mail or cause to mail 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 10
days prior to the date therein specified.
(c) All such notices, advices and communications shall be deemed to
have been received (i) in the case of personal delivery, on the date of such
delivery and (ii) in the case of mailing, on the third (3) business day
following the date of such mailing.
10. AMENDMENTS.
(a) Any term of this Warrant may be amended with the written consent of
the Company and the Holder.
(b) No waivers of or exceptions to any term, condition or provision of
this Warrant, in any one or more instances, shall be deemed to be, or construed,
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 exists 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 which were subject to the purchase rights under this Warrant
immediately prior to such merger, consolidation, reclassification or other
change and the Exercise Price therefore shall be approximately adjusted, all
subject
9
to further adjustment as provided in Section II.
11.2 SPLIT, SUBDIVISION OF COMBINATION OF SHARES. If the Company at any
time while this warrant, or any portion thereof, remains outstanding and
unexpired shall split, subdivided 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 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 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 and readjustment is based. The Company shall, upon 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.
11.5 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 of 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 AMENDMENTS OF 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 heading of
the paragraphs of this Warrant are inserted for convenience only and do not
constitute a pat of this Warrant. The construction, validity and interpretation
of this Warrant will be governed by the laws of the States of Delaware, without
regard to principals of conflicts or choice of law.
IN WITNESS WHEREOF, CELERITY SYSTEMS, INC. caused this Warrant to be executed by
its officers thereunto duly authorized.
Dated: September 30, 1999
CELERITY SYSTEMS, INC.
By: /s/ Kenneth D. Van Meter
Title: President & CEO
AGREED AND ACCEPTED:
HOLDER:
By:
Title:
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 payments 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 presenting 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
specified below.
Name
Name
EXHIBIT B
FORM OF ASSIGNEMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant hereby
sells, assigns and transfers unto the Assignee names 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
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
No. W-10 Warrant to Purchase Fifty Thousand (50,000) Shares of
Common Stock of Celerity Systems, Inc.
(Subject to adjustment)
Date of Issuance - As of September 30, 1999
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 HYOTHOCATED IN THE
ABSENCE OF A REGISTERATION 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 REQUIRIED.
WARRANT TO PURCHASE COMMON STOCK
of
CELERITY SYSTEMS, INC.
This certifies that, for value received, Hunter Singer, 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"),
Fifty Thousand (50,000) shares of 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") therefore, 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
the Warrant and any warrants delivered in substitution or exchange therefore as
provided herein.
1.. TERM OF WARRANT. Subject to the terms and conditions set forth
herein, the Warrant shall be exercisable, in whole or in part,
during the term commencing as of September 30, 1999 and ending
5:00 p.m., Eastern Time September 29, 2002 and shall be void
thereafter (the "Term").
2. EXERCISE PRICE. The Exercise Price at which the Warrant may be
exercised shall be $0.586 per share of Common Stock, as
adjusted from time to time to pursuant to Section 11 hereof
(the "Exercise Price").
9. EXERCISE OF WARRANT.
(a) The purchase rights represented by the 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 Notice of Exercise
annexed hereto as EXHIBIT "A" duly completed and
executed on behalf of the Holder, at the office of
the Company (or such other office or agency of the
Company as it may designate by notice in writing to
the Holder at the address of the Holder appearing
on the books of the Company) upon payment in cash
or by check acceptable to the Company in an amount
equal to the product of the Exercise Price set
forth in Section 2 above multiplied by the number
of shares of common Stock being purchased upon such
exercise.
(b) This Warrant shall be deemed to have been exercised
immediately prior to the close of business on the
date of its surrender for exercise as provided above,
and the person entitled to receive the shares of
Common Stock issuable upon such exercise shall be
treated for all purposes as the holder of record of
such shares as of the close of business on such date.
As promptly as practicable on or after such date and
in event within ten (10) days thereafter, the Company
as its expense shall issue and deliver to the person
or persons entitled to receive the same 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 FACTIONAL 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 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 Common Stock shall mean:
(1) If the common Stock is listed on 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
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, on 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 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 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 in the Warrant Register
of the Company, the Company may treat the holder as shown on the Warrant
Register as the absolute owner of this Warrant for all purposes, notwithstanding
any notice to the contrary.
(b) TRANSFERABILITY AND NONNEGOTIABILITY OF WARRANT AND UNDERLYING
COMMON STOCK. This Warrant may 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 1933,
as amended (the "Act"), title to this Warrant may be transferred by the
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 the endorsement and delivery. The Common Stock to be issued upon
exercise hereof, may not be transferred or assigned in whole or in part without
compliance with all applicable federal and state securities laws by the
transferor and the transferee (including the delivery of investment
representation letters and legal opinions reasonably satisfactory to the
Company, if such are requested by the Company)
(c) EXCHANGE OF WARRANT UPON A TRANSFER. On surrender of this Warrant
for exchange, properly endorsed on the 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 exercise shall issue to or 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 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 the State securities laws):
THE SECURITIES PRESENTED HEREBY HAVE BEEN ACUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTED UNDER THE SECURITIES
ACT OF
1933, AS AMENDED. SUCH SECURITIES AND ANY SECURITIES OR
SHARES ISSED HEREUNDER OR THEREUNDER MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR EXEPTION
THEREFORM UNDER SAID ACT. COPIES OF THE AGREEMENT COVERING
THE PURCHASE OF THESE SECURITIES AND RESTRICTING THEIR
TRANSFER OR SALE MAY NE 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.
8. RESERVATION OF STOCK. The company covenants that during the
Term of 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 Sock
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 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 in 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 in 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 Treasurers 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 purposes 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 subsequently all the assets of the
Company to another incorporation, or
(iii) of any voluntary dissolution, liquidation of winding-up
of this Company,
then, and in each such case, the Company will mail or cause to mail 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 10
days prior to the date therein specified.
(c) All such notices, advices and communications shall be deemed to
have been received (i) in the case of personal delivery, on the date of such
delivery and (ii) in the case of mailing, on the third (3) business day
following the date of such mailing.
10. AMENDMENTS.
(a) Any term of this Warrant may be amended with the written consent of
the Company and the Holder.
(b) No waivers of or exceptions to any term, condition or provision of
this Warrant, in any one or more instances, shall be deemed to be, or construed,
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 exists 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 which were subject
to the purchase rights under this Warrant immediately prior to such merger,
consolidation, reclassification or other change and the Exercise Price therefore
shall be approximately adjusted, all subject to further adjustment as provided
in Section II.
11.2 SPLIT, SUBDIVISION OF COMBINATION OF SHARES. If the Company at any
time while this warrant, or any portion thereof, remains outstanding and
unexpired shall split, subdivided 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 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 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 and readjustment is based. The Company shall, upon 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.
11.6 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 of 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 AMENDMENTS OF 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 heading of
the paragraphs of this Warrant are inserted for convenience only and do not
constitute a pat of this Warrant. The construction, validity and interpretation
of this Warrant will be governed by the laws of the States of Delaware, without
regard to principals of conflicts or choice of law.
IN WITNESS WHEREOF, CELERITY SYSTEMS, INC. caused this Warrant to be executed by
its officers thereunto duly authorized.
Dated: September 30, 1999
CELERITY SYSTEMS, INC.
By: /s/ Kenneth D. Van Meter
Title: President & CEO
AGREED AND ACCEPTED:
HOLDER:
By:
Title:
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 payments 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 presenting 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
specified below.
Name
Name
EXHIBIT B
FORM OF ASSIGNEMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant hereby
sells, assigns and transfers unto the Assignee names 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
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
No. W-11 Warrant to Purchase Fifty Thousand (50,000) Shares of
Common Stock of Celerity Systems, Inc.
(Subject to adjustment)
Date of Issuance - As of September 30, 1999
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 HYOTHOCATED IN THE
ABSENCE OF A REGISTERATION 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 REQUIRIED.
WARRANT TO PURCHASE COMMON STOCK
of
CELERITY SYSTEMS, INC.
This certifies that, for value received, Joe Donahue, 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"),
Fifty Thousand (50,000) shares of 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") therefore, 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
the Warrant and any warrants delivered in substitution or exchange therefore as
provided herein.
1. TERM OF WARRANT. Subject to the terms and conditions set forth
herein, the Warrant shall be exercisable, in whole or in part,
during the term commencing as of September 30, 1999 and ending
5:00 p.m., Eastern Time September 29, 2002 and shall be void
thereafter (the "Term").
2. EXERCISE PRICE. The Exercise Price at which the Warrant may be
exercised shall be $0.586 per share of Common Stock, as
adjusted from time to time to pursuant to Section 11 hereof
(the "Exercise Price").
3. EXERCISE OF WARRANT.
(a) The purchase rights represented by the 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 Notice of Exercise
annexed hereto as EXHIBIT "A" duly completed and executed on ------- behalf of
the Holder, at the office of the Company (or such other office or agency of the
Company as it may designate by notice in writing to the Holder at the address of
the Holder appearing on the books of the Company) upon payment in cash or by
check acceptable to the Company in an amount equal to the product of the
Exercise Price set forth in Section 2 above multiplied by the number of shares
of common Stock being purchased upon such exercise.
(b) This Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender for exercise as
provided above, and the person entitled to receive the shares of Common Stock
issuable upon such exercise shall be treated for all purposes as the holder of
record of such shares as of the close of business on such date. As promptly as
practicable on or after such date and in event within ten (10) days thereafter,
the Company as its expense shall issue and deliver to the person or persons
entitled to receive the same 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 FACTIONAL 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 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 Common Stock shall mean:
(1) If the common Stock is listed on 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
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, on 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 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 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 in the Warrant Register
of the Company, the Company may treat the holder as shown on the Warrant
Register as the absolute owner of this Warrant for all purposes, notwithstanding
any notice to the contrary.
(b) TRANSFERABILITY AND NONNEGOTIABILITY OF WARRANT AND UNDERLYING
COMMON STOCK. This Warrant may 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 1933,
as amended (the "Act"), title to this Warrant may be transferred by the
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 the endorsement and delivery. The Common Stock to be issued upon
exercise hereof, may not be transferred or assigned in whole or in part without
compliance with all applicable federal and state securities laws by the
transferor and the transferee (including the delivery of investment
representation letters and legal opinions reasonably satisfactory to the
Company, if such are requested by the Company)
(c) EXCHANGE OF WARRANT UPON A TRANSFER. On surrender of this Warrant
for exchange, properly endorsed on the 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 exercise shall issue to or 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 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 the State securities laws):
THE SECURITIES PRESENTED HEREBY HAVE BEEN ACUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTED UNDER THE SECURITIES
ACT OF
1933, AS AMENDED. SUCH SECURITIES AND ANY SECURITIES OR
SHARES ISSED HEREUNDER OR THEREUNDER MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR EXEPTION
THEREFORM UNDER SAID ACT. COPIES OF THE AGREEMENT COVERING
THE PURCHASE OF THESE SECURITIES AND RESTRICTING THEIR
TRANSFER OR SALE MAY NE 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.
8. RESERVATION OF STOCK. The company covenants that during the
Term of 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 Sock
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 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 in 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 in 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 Treasurers 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 purposes 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 subsequently all the assets of the
Company to another incorporation, or
(iii) of any voluntary dissolution, liquidation of winding-up
of this Company,
then, and in each such case, the Company will mail or cause to mail 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 10
days prior to the date therein specified.
(c) All such notices, advices and communications shall be deemed to
have been received (i) in the case of personal delivery, on the date of such
delivery and (ii) in the case of mailing, on the third (3) business day
following the date of such mailing.
10. AMENDMENTS.
(a) Any term of this Warrant may be amended with the written consent of
the Company and the Holder.
(b) No waivers of or exceptions to any term, condition or provision of
this Warrant, in any one or more instances, shall be deemed to be, or construed,
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 exists 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 which were subject
to the purchase rights under this Warrant immediately prior to such merger,
consolidation, reclassification or other change and the Exercise Price therefore
shall be approximately adjusted, all subject to further adjustment as provided
in Section II.
11.2 SPLIT, SUBDIVISION OF COMBINATION OF SHARES. If the Company at any
time while this warrant, or any portion thereof, remains outstanding and
unexpired shall split, subdivided 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 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 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 and readjustment is based. The Company shall, upon 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 of 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 AMENDMENTS OF 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 heading of
the paragraphs of this Warrant are inserted for convenience only and do not
constitute a pat of this Warrant. The construction, validity and interpretation
of this Warrant will be governed by the laws of the States of Delaware, without
regard to principals of conflicts or choice of law.
IN WITNESS WHEREOF, CELERITY SYSTEMS, INC. caused this Warrant to be executed by
its officers thereunto duly authorized.
Dated: September 30, 1999
CELERITY SYSTEMS, INC.
By: /s/ Kenneth D. Van Meter
Title: President & CEO
AGREED AND ACCEPTED:
HOLDER:
By:
Title:
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 payments 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 presenting 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
specified below.
Name
Name
EXHIBIT B
FORM OF ASSIGNEMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant hereby
sells, assigns and transfers unto the Assignee names 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
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
No. W-12 Warrant to Purchase Fifty Thousand (50,000) Shares of
Common Stock of Celerity Systems, Inc.
(Subject to adjustment)
Date of Issuance - As of September 30, 1999
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 HYOTHOCATED IN THE
ABSENCE OF A REGISTERATION 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 REQUIRIED.
WARRANT TO PURCHASE COMMON STOCK
of
CELERITY SYSTEMS, INC.
This certifies that, for value received, Max Rockwell, 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"),
Fifty Thousand (50,000) shares of 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") therefore, 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
the Warrant and any warrants delivered in substitution or exchange therefore as
provided herein.
1. TERM OF WARRANT. Subject to the terms and conditions set forth
herein, the Warrant shall be exercisable, in whole or in part,
during the term commencing as of September 30, 1999 and ending
5:00 p.m., Eastern Time September 29, 2002 and shall be void
thereafter (the "Term").
2. EXERCISE PRICE. The Exercise Price at which the Warrant may be
exercised shall be $0.586 per share of Common Stock, as
adjusted from time to time to pursuant to Section 11 hereof
(the "Exercise Price").
3. EXERCISE OF WARRANT.
(a) The purchase rights represented by the 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 Notice of Exercise
annexed hereto as EXHIBIT "A" duly completed and
executed on behalf of the Holder, at the office of
the Company (or such other office or agency of the
Company as it may designate by notice in writing to
the Holder at the address of the Holder appearing
on the books of the Company) upon payment in cash
or by check acceptable to the Company in an amount
equal to the product of the Exercise Price set
forth in Section 2 above multiplied by the number
of shares of common Stock being purchased upon such
exercise.
(b) This Warrant shall be deemed to have been exercised
immediately prior to the close of business on the
date of its surrender for exercise as provided above,
and the person entitled to receive the shares of
Common Stock issuable upon such exercise shall be
treated for all purposes as the holder of record of
such shares as of the close of business on such date.
As promptly as practicable on or after such date and
in event within ten (10) days thereafter, the Company
as its expense shall issue and deliver to the person
or persons entitled to receive the same 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 FACTIONAL 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 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 Common Stock shall mean:
(1) If the common Stock is listed on 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
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,
on 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 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 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 in the Warrant Register
of the Company, the Company may treat the holder as shown on the Warrant
Register as the absolute owner of this Warrant for all purposes, notwithstanding
any notice to the contrary.
(b) TRANSFERABILITY AND NONNEGOTIABILITY OF WARRANT AND UNDERLYING
COMMON STOCK. This Warrant may 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 1933,
as amended (the "Act"), title to this Warrant may be transferred by the
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 the endorsement and delivery. The Common Stock to be issued upon
exercise hereof, may not be transferred or assigned in whole or in part without
compliance with all applicable federal and state securities laws by the
transferor and the transferee (including the delivery of investment
representation letters and legal opinions reasonably satisfactory to the
Company, if such are requested by the Company)
(c) EXCHANGE OF WARRANT UPON A TRANSFER. On surrender of this Warrant
for exchange, properly endorsed on the 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 exercise shall issue to or 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 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 the State securities laws):
THE SECURITIES PRESENTED HEREBY HAVE BEEN ACUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTED UNDER THE SECURITIES
ACT OF
1933, AS AMENDED. SUCH SECURITIES AND ANY SECURITIES OR
SHARES ISSED HEREUNDER OR THEREUNDER MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR EXEPTION
THEREFORM UNDER SAID ACT. COPIES OF THE AGREEMENT COVERING
THE PURCHASE OF THESE SECURITIES AND RESTRICTING THEIR
TRANSFER OR SALE MAY NE 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.
8. RESERVATION OF STOCK. The company covenants that during the
Term of 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 Sock
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 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 in 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 in 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 Treasurers 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 purposes 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 subsequently all the assets of the
Company to another incorporation, or
(iii) of any voluntary dissolution, liquidation of winding-up
of this Company,
then, and in each such case, the Company will mail or cause to mail 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 10
days prior to the date therein specified.
(c) All such notices, advices and communications shall be deemed to
have been received (i) in the case of personal delivery, on the date of such
delivery and (ii) in the case of mailing, on the third (3) business day
following the date of such mailing.
10. AMENDMENTS.
(a) Any term of this Warrant may be amended with the written consent of
the Company and the Holder.
(b) No waivers of or exceptions to any term, condition or provision of
this Warrant, in any one or more instances, shall be deemed to be, or construed,
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 exists 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 which were subject
to the purchase rights under this Warrant immediately prior to such merger,
consolidation, reclassification or other change and the Exercise Price therefore
shall be approximately adjusted, all subject to further adjustment as provided
in Section II.
11.2 SPLIT, SUBDIVISION OF COMBINATION OF SHARES. If the Company at any
time while this warrant, or any portion thereof, remains outstanding and
unexpired shall split, subdivided 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 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 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 and readjustment is based. The Company shall, upon 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 of 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 AMENDMENTS OF 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 heading of
the paragraphs of this Warrant are inserted for convenience only and do not
constitute a pat of this Warrant. The construction, validity and interpretation
of this Warrant will be governed by the laws of the States of Delaware, without
regard to principals of conflicts or choice of law.
IN WITNESS WHEREOF, CELERITY SYSTEMS, INC. caused this Warrant to be executed by
its officers thereunto duly authorized.
Dated: September 30, 1999
CELERITY SYSTEMS, INC.
By: /s/ Kenneth D. Van Meter
Title: President & CEO
AGREED AND ACCEPTED:
HOLDER:
By:
Title:
EXHIBIT A
FORM OF NOTICE OF EXERCISE
To: CELERITY SYSTEMS, INC.
() 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 payments 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 presenting 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 specified below.
Name
Name
EXHIBIT B
FORM OF ASSIGNEMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant hereby
sells, assigns and transfers unto the Assignee names 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
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