Exhibit 4.8
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND
NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, MORTGAGED,
PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
No. RIGHT TO PURCHASE SHARES OF COMMON
STOCK OF CELERITY SYSTEMS, INC.
CELERITY SYSTEMS, INC.
Common Stock Purchase Warrant
CELERITY SYSTEMS, INC., a Tennessee corporation (the"Company"), hereby
certifies that, for value received ____________, is entitled, subject to the
terms set forth below, to purchase from the Company at any time or from time to
time before 5:00 P.M., New York City time on May 31, 1998, such number of fully
paid and nonassessable shares of the Common Stock, $.001 par value (the "Common
Stock"), of the Company as shall be determined by dividing the original
principal amount of the Short-Term Promissory Note issued by the Company to
____________ under date of November 30, 1995 ("Note") by $1.96 at a purchase
price of $1.96 per share, subject to adjustment as provided below (the "Exercise
Price"). No fractional shares of Common Stock will be issued. The Company will
promptly notify each holder of the Warrant of all adjustments to the Exercise
Price.
This Warrant is one of the Common Stock Purchase Warrants (the "Warrants")
evidencing the right to purchase shares of Common Stock of the Company, issued
by the Company to those persons to whom the Company has issued its Short-Term
Promissory Notes under date of November 30, 1995 ("Notes").
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Company" shall include Celerity Systems, Inc. and any
corporation which shall succeed or assume the obligations of the Company
hereunder.
(b) The term "Common Stock" includes (i) the Company's Common Stock, $.001
par value per share, as authorized on the date hereof, (ii) any other capital
stock of any class or classes (however designated) of the Company, authorized on
or after such date, the holders of which shall have the right, without
limitation as to amount, either to all or to a share of the balance of current
dividends and liquidating dividends after the payment of dividends and
distributions on any shares entitled to preference, and the holders of which
shall ordinarily, in the absence of contingencies, be entitled to vote for the
election of a majority of directors of the Company (even though the right so
to vote has been suspended by the happening of such a contingency), and (iii)
any other securities into which or for which any of the securities described in
(i) or (ii) may be converted or exchanged pursuant to a plan of
recapitalization, reorganization, merger, sale of assets or otherwise.
1. Exercise of Warrant.
1.1. Full Exercise. This Warrant may be exercised in full by the holder
hereof by surrender of this Warrant, with the form of subscription at the end
hereof duly executed by such holder, to the Company at its principal office,
accompanied by payment, in cash or by certified or official bank check payable
to the order of the Company, in the amount obtained by multiplying the number of
shares of common stock for which this Warrant is therein exercisable or
accompanied by tender to the Company of the Note marked paid in full, as the
case may be.
1.2. Partial Exercise. This Warrant may be exercised in part by surrender
of this Warrant in the manner and at the place provided in Section 1.1 except
that the amount payable by the holder on such partial exercise shall be the
amount obtained by dividing (a) the amount of principal and interest paid on the
Note which the holder designates to be applied to purchase Shares of Common
Stock under this Warrant by (b) the Exercise Price then in effect.
1.3. Trustee for Warrant Holders. In the event that a bank or trust
company shall have been appointed as trustee for the holder of the Warrant
pursuant to Section 3.2, such bank or trust company shall have all the powers
and duties of a warrant agent appointed pursuant to Section 11 and shall accept,
in its own name for the account of the Company or such successor person as may
be entitled thereto, all amounts otherwise payable to the Company or such
successor, as the case may be, on exercise of this Warrant pursuant to this
Section 1.
2. Delivery of Share Certificates on Exercise. As soon as practicable
after the exercise of this Warrant in full or in part, and in any event within
30 days thereafter, the Company at its expense (including the payment by it of
any applicable issue taxes) will cause to be issued in the name of and delivered
to the holder hereof, or as such holder (upon payment by such holder of any
applicable transfer taxes) may direct, a certificate or certificates for the
number of fully paid and nonassessable shares of Common Stock to which such
holder shall be entitled on such exercise.
3. Adjustment for Reorganization, Consolidation or Merger.
3.1. Reorganization, Consolidation or Merger. In case at any time or from
time to time the Company shall (a) effect a reorganization, (b) consolidate with
or merge into any other person, or (c) transfer all or substantially all of its
properties or assets to any other person under any plan or arrangement
contemplating the dissolution of the Company, then, in each such case, the
holder of this Warrant, on the exercise hereof as provided in Section 1 at any
time after the consummation of such reorganization, consolidation or merger or
the effective date of such dissolution, as the case may be, shall receive, in
lieu of the Common Stock issuable on such exercise prior to such consummation or
such effective date, the shares and other securities and property (including
cash) to which such holder would have been entitled upon such consummation
or in connection with such dissolution, as the case may be, if such holder had
so exercised this Warrant, immediately prior thereto, all subject to further
adjustment thereafter as provided in Section 4.
3.2. Dissolution. In the event of any dissolution of the Company following
the transfer of all or substantially all of its properties or assets, the
Company, prior to such dissolution, shall at its expense deliver or cause to be
delivered the shares and other securities and property (including cash, where
applicable) receivable by the holder of the Warrant after the effective date of
such dissolution pursuant to this Section 3 to a bank or trust company having
its principal office in New York City, New York, as trustee for the holder of
the Warrant and shall promptly notify each holder of the Warrants of the
occurrence of any of the events specified in this Section 3.
3.3. Continuation of Terms. Upon any reorganization, consolidation, merger
or transfer (and any dissolution following any transfer) referred to in this
Section 3, this Warrant shall continue in full force and effect and the terms
hereof shall be applicable to the shares of Common Stock and other securities
and property receivable on the exercise of this Warrant after the consummation
of such reorganization, consolidation or merger or the effective date of
dissolution following any such transfer, as the case may be, and shall be
binding upon the issuer of any such shares or other securities, including, in
the case of any such transfer, the person acquiring all or substantially all of
the properties or assets of the Company, whether or not such person shall have
expressly assumed the terms of this Warrant.
4. Adjustments for Share Dividends and Share Splits. In the event that the
Company shall (i) issue additional shares of the Common Stock as a dividend or
other distribution, (ii) subdivide its outstanding shares of Common Stock, or
(iii) combine its outstanding shares of the Common Stock into a smaller number
of shares of the Common Stock, then, in each such event, the Exercise Price
shall, simultaneously with the happening of such event, be adjusted by
multiplying the then prevailing Exercise Price by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding immediately
prior to such event and the denominator of which shall be the number of shares
of Common Stock outstanding immediately after such event, and the product so
obtained shall thereafter be the Exercise Price then in effect. The Exercise
Price, as so adjusted, shall be readjusted in the same manner upon the happening
of any successive event or events described herein in this Section 4. The holder
of this Warrant shall thereafter, on the exercise hereof as provided in Section
1, be entitled to receive that number of shares of Common Stock determined by
multiplying the number of shares of Common Stock which would otherwise (but for
the provisions of this Section 4) be issuable on such exercise, by a fraction of
which (i) the numerator is the Exercise Price which would otherwise (but for the
provisions of this Section 4) be in effect, and (ii) the denominator is the
Exercise Price in effect on the date of such exercise. No adjustment shall be
made upon the conversion of any Series of Preferred Stock into Common Stock.
5. No Impairment. The Company will not, by amendment of its Restated
Charter or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of
any of the terms of this Warrant, but will at all times in good faith assist in
the carrying out of all such terms and in the taking of all such action as may
be necessary or appropriate in order to protect the rights of the holder of this
Warrant. Without limiting the generality of the foregoing, the Company (a) will
not increase the par value of any shares of stock receivable on the exercise of
the Warrant above the amount payable therefor on such exercise, and (b) will
take all such action as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable shares of
stock on the exercise of this Warrant from time to time outstanding.
6. Certificate as to Adjustments. In each case of any adjustment or
readjustment in the shares of Common Stock issuable on the exercise of this
Warrant, the Company at its expense will compute such adjustment or readjustment
in accordance with the terms of this Warrant and prepare a certificate setting
forth such adjustment or readjustment and showing the facts upon which such
adjustment or readjustment is based. The Company will forthwith mail a copy of
each such certificate to any holder of this Warrant, and will, on the written
request at any time of any holder of this Warrant, furnish to such holder a like
certificate setting forth the Exercise Price at the time in effect and showing
how it was calculated.
7. Notices of Record Date. In the event of
(a) any taking by the Company of a record of the holders of any
class or securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, or
(b) any capital reorganization of the Company, any reclassification
or recapitalization of the capital stock of the Company or any transfer of all
or substantially all the assets of the Company to or consolidation or merger of
the Company with or into any other person, or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company, or
(d) any proposed issue or grant by the Company of any shares of
stock of any class or any other securities, or any right or option to subscribe
for, purchase or otherwise acquire any shares of stock of any class or any other
securities (other than the issue of Common Stock on the exercise of the
Warrants, issuance of Common Stock on the conversion of the Class A Preferred
Stock or Class B Preferred Stock or the issue of Common Stock or grant of
options to purchase Common Stock to employees of, or consultants to the Company
with the approval of a majority of the representatives of the holders of the
Series A Preferred Stock).
then and in each such event, the Company will promptly mail or cause to be
mailed to the holder of this Warrant a notice specifying (i) the date on which
any such 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, (ii) the date on which any such reorganization,
reclassification, recapitalization, transfer, consolidation, merger,
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 shall be entitled
to exchange their shares of Common Stock for securities or other property
deliverable on such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation or winding-up, and
(iii) the amount and character of any shares or other securities, or rights or
options with respect thereto, proposed to be issued or granted, the date of such
proposed issue or grant and the persons or class of persons to whom such
proposed issue or grant is to be offered or made. Such notice shall be mailed at
least 20 days prior to the date specified in such notice on which any such
action is to be taken.
8. Reservation of Shares Issuable on Exercise of Warrant. The Company will
at all times reserve and keep available, solely for issuance and delivery on the
exercise of the Warrant, all shares of Common Stock from time to time issuable
on the exercise of the Warrant.
9. 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 any such loss, theft or destruction of this Warrant, on
delivery of an indemnity agreement or security reasonably satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of such Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
10. Warrant Agent. The Company may, by written notice to each holder of a
Warrant, appoint an agent for the purpose of issuing Common Stock on the
exercise of the Warrant pursuant to Section 1 and replacing this Warrant
pursuant to Section 9, or any of the foregoing, and thereafter any such
issuance, exchange or replacement, as the case may be, shall be made at such
office by such agent.
11. Remedies. The Company stipulates that the remedies at law of the
holder of this Warrant in the event of any default or threatened default by the
Company in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate, and that such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
12. Negotiability; Restrictions on Transfer; Warrant Holder Not Deemed
Shareholder. This Warrant is issued upon the following terms, to all of which
each holder or owner hereof by the taking hereof consents and agrees:
(a) No holder of this Warrant shall, as such, be entitled to vote or
to receive dividends or to be deemed the holder of Common Stock that may at any
time be issuable upon exercise of the Warrant for any purpose whatsoever, nor
shall anything contained herein be construed to confer upon such holder, as
such, any of the rights of a shareholder of the Company or any right to vote for
the election of directors or upon any matter submitted to shareholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any
recapitalization, issue or reclassification of shares, change of par value or
change of shares to no par value, consolidation, merger or conveyance or
otherwise), or to receive notice of meetings, or to receive dividends or
subscription rights, until such holder shall have exercised the Warrant and been
issued shares of Common Stock in accordance with the provisions hereof; or
(b) Neither this Warrant nor any shares of Common Stock purchased
pursuant to this Warrant shall be registered under the Securities Act of 1933.
The certificates evidencing the shares of Common Stock issued on the exercise of
the Warrant shall bear a legend to the effect that the shares evidenced by such
certificates have not been registered under the Securities Act of 1933.
13. Registration Rights. The holder of this Warrant is entitled to have
the Company's Common Stock, $.001 par value, registered as that term is defined
in, and pursuant to the provisions set forth in Section 6.1 of, the Preferred
Stock and Warrant Purchase Agreement between the Company and those Purchasers
named therein dated as of May 17, 1995.
14. Notices. All notices and other communications from the Company to the
holder of this Warrant shall be mailed by first class registered or certified
mail, postage prepaid, at such address as may have been furnished to the Company
in writing by such holder or, until any such holder furnishes to the Company an
address, then to, and at the address of, the last holder of this Warrant who has
so furnished an address to the Company.
15. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the laws of the State of Tennessee applicable to agreements made and
to be performed therein. The headings in this Warrant are for purposes of
reference only, and shall not limit or otherwise affect any of the terms hereof.
This Warrant is being executed as an instrument under seal. The invalidity or
unenforceability of any provision hereof shall in no way affect the validity or
enforcability of any other provisions.
16. Expiration. The right to exercise this Warrant shall expire on the
first to occur of (a) 5:00 P.M., New York City time, May 31, 1998 or (b) the
issuance by the Company of shares of its Common Stock in a public offering at an
aggregate purchase price of $5,000,000 or more and at a Company valuation of at
least $10,000,000.
Dated: November 30, 1995 CELERITY SYSTEMS, INC.
By:___________________________
Title: President
FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
TO CELERITY SYSTEMS, INC.
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant for, and to purchase thereunder, $5,000 shares
of Common Stock of CELERITY SYSTEMS, INC. and herewith makes payment of
$______________ therefor, and requests that the certificates for such shares be
issued in the name of, and delivered to, ____________, whose address is .
Dated:
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(Signature must conform to name of holder as
specified on the face of the Warrant)
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(Address)
FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For valued received, the undersigned hereby sells, assigns and transfers
unto _________________ the right represented by the within Warrant to purchase
$5,000 shares of Common Stock of CELERITY SYSTEMS, INC. to which the within
Warrant relates, and appoints Attorney to transfer such rights on the books of
CELERITY SYSTEMS, INC. with full power of substitution in the premises.
Dated:
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(Signature must conform to name of holder as
specified on the face of the Warrant)
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(Address)
Signed in the presence of:
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