EXHIBIT 4.9
CELERITY SYSTEMS, INC.
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July 15, 1997
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Dear ▇▇. ▇▇▇▇▇▇▇▇:
We have agreed to purchase, and you have agreed to sell to us, 600,000
shares (the "Shares") of the common stock, $.001 par value per share ("Common
Stock"), of Celerity Systems, Inc., a Tennessee corporation (the "Company"),
owned by you for $.20 per share. Such transaction is being consummated in part,
to enable the Company to obtain additional financing. The Company is
contemplating a financing (the "Bridge Financing"), consisting of the sale of
notes and warrants, to be followed by a public offering (the "Contemplated
Public Offering") of Common Stock.
This is to confirm the agreement between us concerning the purchase and
sale of the Shares and the other matters referred to herein.
1. Sale and Purchase of the Shares; Other Transactions.
(a) Following the execution of this Agreement and within 24 hours
after the Company receives a copy, executed by you, of the agreement not to
dispose of Common Stock in the form attached as Annex I hereto (the "Lock-Up
Agreement"), which, except for the proviso at the end of the first paragraph
thereof, the Company represents is the same Lock-Up Agreement as the Company's
officers and directors will execute, the Company will (i) pay you $11,458.33 as
payment in full of all amounts allegedly due to you as of the date hereof under
the Termination Agreement (the "Termination Agreement"), dated as of April 5,
1997, between the Company and you, and (ii) as payment in full for all
unreimbursed business expenses, including without limitation the alleged use of
your credit card by the Company, the Company shall deliver to you a check for
$7,400, provided the Company will also, as of the closing of the Bridge
Financing, pay any amounts due on your Company American Express Card related to
valid business expenditures upon submission of appropriate documentation as to
the valid business purpose of such expenditures,
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provided, further, that if such documentation is not submitted by you by such
closing you shall be deemed to have agreed that no such amounts are outstanding.
(b) The Company will give you at least 24 hours notice of the
closing of the Bridge Financing. Concurrently with the closing of the Bridge
Financing, in accordance with the terms and conditions hereof and for the
consideration set forth herein, you shall sell, transfer, convey and assign to
the Company and the Company shall purchase from you, all of your right, title
and interest in the Shares;
(c) Concurrently with the closing of the Bridge Financing, against
delivery of the consideration provided for in subparagraph 1(d) below, you shall
deliver to the Company a stock certificate, or certificates, representing the
Shares duly endorsed in blank, or with stock powers annexed thereto duly
executed in blank, in proper form for transfer of the Shares to the Company upon
delivery;
(d) Concurrently with the closing of the Bridge Financing; (i) as
payment in full for the Shares, the Company shall deliver to you a check for
$120,000; and (ii) as payment in full for all its remaining obligations under
the Termination Agreement, the Company shall deliver to you a check for
$53,291.65, except for the $15,458.33 referred to in (e) below.
(e) Upon the earlier of 150 days after the closing of the Bridge
Financing or the closing of the Contemplated Public Offering, the Company shall
deliver to you a check for $15,458.33.
(f) If the Contemplated Public Offering is consummated, the Company
will, within 30 days after such consummation, pay off the remaining balance of
all amounts due under leases guaranteed by you and described on ▇▇▇▇▇ ▇▇.
2. Representations and Warranties. In order to induce the Company to enter
into this Agreement and to purchase the Shares, you make the following
representations and warranties as of the date hereof, which representations and
warranties shall be true and correct as of the closing of the Bridge Financing
and shall survive the execution and delivery of this Agreement and the delivery
of the Shares at the closing of the Bridge Financing:
(a) The Shares are fully paid and nonassessable, and are owned by
you free and clear of any liens, claims or encumbrances of any kind; and
(b) There are no existing agreements, options, calls, commitments,
trusts, voting or otherwise, or any rights of any kind whatsoever, granting to
any person or entity, any interest in or rights as to, any of the Shares, or the
right to purchase any Common Stock from you at any time or upon the happening of
any event.
(c) You acknowledge that you have been advised that the Company is
currently
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contemplating, and has had discussions with an investment banking firm as to,
the Contemplated Public Offering of Common Stock expected to be at $7.50 per
share (after giving effect to a reverse split).
(d) By virtue of your position, you acknowledge you have access to
the same information as to the Company as would be in a Registration Statement
under the Securities Act of 1933.
3. This Agreement shall be construed by and interpreted and enforced in
accordance with the laws of the State of New York as applied to contracts made
and fully performed in such state. No modification or waiver of any of the terms
of this Agreement shall be effective unless in writing and signed by all parties
hereto.
4. This Agreement is the entire agreement between us and supersedes any
other agreement oral or written between us relating to the same subject matter,
except that, other than as set forth in Section 1(d), the Termination Agreement
shall remain in full force and effect.
5. This Agreement shall be null and void and of no further force or effect
if the closing of the Bridge Financing has not occurred by September 1, 1997.
If the foregoing correctly sets forth our agreement, please so
indicate in the space provided below for that purpose and sign the attached
Lock-Up Agreement, whereupon this letter shall constitute a binding agreement
between us.
Very truly yours,
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇,
Chief Executive Officer
Accepted and Agreed to
this 16th day of July 1997
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Annex I
August 6, 1997
Celerity Systems, Inc.
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Hampshire Securities Corporation
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Ladies and Gentlemen:
In order to induce Hampshire Securities Corporation (the "Underwriter") to
enter into an underwriting agreement with respect to the proposed public
offering (the "Offering") of shares (the "Shares") of common stock, par value
$.001 per share (the "Common Stock"), of Celerity Systems, Inc. (the "Company"),
pursuant to a registration statement on Form SB-2, as the same may be amended
from time to time (the "Registration Statement"), the undersigned agrees for the
benefit of the Company and the Underwriter that, for a period of twelve months
from the date (the "Effective Date") on which the Registration Statement shall
have become effective under the Securities Act of 1933, as amended, the
undersigned will not and will not cause any of its affiliates to, without the
prior written consent of the Underwriter, directly or indirectly, offer, sell,
contract to sell, pledge, grant any option for the sale of (including, without
limitation, any short sale), or otherwise dispose of or transfer any shares of
(a) Common Stock, (b) any security or other instrument which by its terms is
convertible into, exercisable for, or exchangeable for the shares of Common
Stock, and/or (c) any securities referred to in clause (a) and/or (b) above
which may be deemed to be beneficially owned by the undersigned in accordance
with applicable rules and regulations of the Securities and Exchange Commission;
provided, however, that the undersigned shall be released from the foregoing
restrictions (i) on the date that is six months from the Effective Date, solely
with respect to one-third of the shares of Common Stock owned by the undersigned
and issued upon (A) the conversion of the shares of the Company's Series A
Preferred Stock and Series B Preferred Stock, each par value $.01 per share,
owned by the undersigned on the date hereof and (B) the exercise of Warrants
owned by the undersigned on the date hereof to purchase shares of Common Stock
(the shares of Common
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Stock referred to in clauses (A) and (B) being collectively defined as the
"Underlying Shares"); and (ii) on the date that is nine months from the
Effective Date, solely with respect to one-third of the Underlying Shares.
In order to enable you to enforce the aforesaid covenants, the undersigned
hereby consents to the placing of legends upon, and stop-transfer orders with
the transfer agent of the Company's securities with respect to, any shares of
Common Stock registered in the undersigned's name or beneficially owned by the
undersigned.
The Company agrees to, and to cause the transfer agent for the Common
Stock to, place such legends and stop-transfer orders and the Company shall not
authorize the transfer agent to transfer any shares without the consent of the
Underwriter as set forth herein.
The undersigned understands that the Company and the Underwriter will rely
upon this letter if they proceed with the Offering. This letter shall be void if
the Offering does not take place.
The provisions of this agreement shall be binding upon the undersigned and
its successors and assigns.
Very truly yours,
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Accepted and agreed as of the date first above written:
CELERITY SYSTEMS, INC.
By:______________________________
Name:
Title:
HAMPSHIRE SECURITIES CORPORATION
By:______________________________
Name:
Title:
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Celerity Systems, Inc. Leases with ▇▇ ▇▇▇▇▇▇▇▇ as Personal Guarantor
Lessor Description 11/1/97 Payoff
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AT&T Capital Corp. Computer/Peripheral/Generic $ 2,953.22
AT&T Capital Corp. Injection Mold Machine* $ 12,759.29
AT&T Capital Corp. Macintosh Printer $ 2,264.96
American Business Credit Canon 7000 Fax Machine $ 2,667.60
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Total $ 20,645.07
* This is the description on the lease invoice. This is a misnomer. In the lease
detail the correct description is 1 SSA Testers Platform, 1 SSA Emulator Card
Set, 2 SSA Allicat Hard Drives.
If the IPO proceeds are not released to Celerity Systems, Inc. prior to
11/30/97, then the payoff amounts will decrease.
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