Exhibit 99.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dates as of , 1999 between Celerity Systems,
Inc., a Delaware corporation, with executive offices at 0000 Xxxxxxxxxxx Xxxx.,
Xxxxxxxxx Xxxxxxxxx 00000 (the "Company") and GMF Holdings,. (the "investor").
WITNESSETH
WHEREAS, the Company is offering the (the "Offering") up to
$5,000,000.00 of debentures (the "Debentures") to the Investor: and
WHEREAS, in connection with the sale of the Debentures the Company is
granting to the Investor the right to purchase upon the conversion of Debentures
the number of shares of common stock of the Company, par value $0.001 per share
(the "Common Stock") equal to (i) the principal amount of the Debentures (ii)
divided by 75% of the Bid Price of the Common Stock on the date of Conversion.
NOW THEREFORE, the parties hereto hereby agrees as follows:
I. DEFINITIONS
All capitalized terms not hereinafter defined shall have the meanings
ascribed to them in the Line of Credit Agreement.
"BID PRICE" shall mean , on any date, the closing bid price (as
reported by Bloomberg L.P.) of the Common Stock on the Principal Market, or if
the Common Stock is not traded on a Principal Market, the highest reported bid
price for the Common Stock, as furnished by the National Association of
Securities Dealers, Inc., for the five trading days immediately preceding such
date.
"COMMISSION." United States Securities and Exchange Commission or any
successor regulatory body.
"COMMON STOCK." As defined in the third recital hereof.
"COMPANY." As defined in the Line of Credit Agreement.
"DEBENTURES." As defined in the Line of Credit Agreement.
"EXCHANGE ACT." Securities Exchange Act of 1934, as amended.
"INVESTOR." As defined in the first recital hereof.
"OFFERING." As defined in the first recital hereof.
"PREFERRED STOCK." As defined in the first recital hereof.
"REGISTRATION." A registration effected by preparing and filing a
registration statement or statements or similar documents in compliance with the
Securities Act and the declaration or ordering of effectiveness of such
registration statement or document by the Commissioner; included in such
definition shall be correlative terms ARegister" and ARegistered".
"PREFERRED STOCK." As defined in the first recital hereof.
"REGISTRATION." A registration effected by preparing and filing a
registration statement or statements or similar documents in compliance with the
Securities Act and the declaration or ordering of effectiveness of such
registration statement or document by the Commission; included in such
definition shall be the correlative terms ARegister" and ARegistered".
"REGISTRABLE SECURITIES." The shares of Common Stock issuable upon the
conversion of the Debentures that have not previously been sold pursuant to a
Registration Statement or Rule 144 and that are not eligible for sale under Rule
144(k) (or any successor provision.).
"REGISTRATION STATEMENT." The registration statement under the
Securities Act covering the resale of the Registrable Securities.
"RULE 144". Rule 144 under the Securities Act.
"RULE 415." Rule 415 under the Securities Act, or any successor rule
providing for offering securities on a continuous basis.
"SECURITIES ACT." As defined in the third recital hereof.
"VIOLATIONS." As defined in Section 4.01 (a) hereof.
II REGISTRATION RIGHTS.
SECTION 2.01 MANDATORY REGISTRATION .
(a) Registration is mandatory :
(i) On or prior to the issuance of the Debentures pursuant to the Line
of Credit Agreement, the Company shall have caused a Registration Statement
covering the resale of the Registrable Securities issuable upon the conversion
of the Debentures to be declared effective and the Company shall cause the
Registration Statement to remain effective until all of the Registrable
Securities have been sold. The Registration Statement shall cover no less than
the number of shares of Common Stock issuable upon the conversion of all
outstanding Debentures
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based upon the Bid Price of the Common Stock upon the date of the initial filing
with the SEC.
(ii) In the event that the Registration Statement does not at any time
cover the requisite number of Registrable Securities, as provided in 2.01 (a)
(i), the Company shall prepare and file with the Commission, no later than
thirty (30) days after such date, a Registration Statement covering the number
of shares of Common Stock, as provided in 2.01 (a) (i). If at any time the
number of shares of Common Stock into which the Debentures may be converted
exceeds the aggregate number of shares of Common Stock then registered, the
Company shall, within thirty (30) days after receipt of a written notice from
the Investor, either (a) amend the Registration Statement filed by the Company
pursuant to the preceding sentence, if such Registration Statement has not been
declared effective but the Commission at the time, to register additional shares
of Common Stock into which the Debentures as provided above may be converted, or
(b) if such Registration Statement has been declared effective by the Commission
at that time, file with the Commission an additional Registration Statement to
register such additional shares of Common Stock.
(b) In the event that the Registration Statement referred to in Section
2.01 (a) (i) does not cover the requisite number of Registrable Securities, as
provided in Section 2.01 (a) (i), then the Company shall pay to the Investor an
amount equal to two 2% percent of the principal amount and the accrued interest
on the Debentures (the "Outstanding Amount") for each month or portion thereof
and continuing each amount month thereafter until the date the Registration
Statement is declared effective by the Commission (the "2.01 (a) Payment"). The
2.01 (a) Payment shall be paid in immediately available funds with three (3)
business days after the end of each month. If the Investor elects to have the
2.01 (a) Payment paid in shares of Common Stock, then such amount may be
converted into shares of Common Stock in accordance with the terms of the
Debentures.
SECTION 2.02 PERIOD OF EFFECTIVENESS. The Company shall cause the
Registration Statement to become effective under the Securities Act and maintain
such effectiveness for the period terminating on the date on which the Investor
with respect to the Registrable Securities can sell the Registrable Securities
pursuant to Rule 144 under the Securities Act without restriction under Rule
144(e) thereof.
SECTION 2.03 OBLIGATIONS OF THE COMPANY. The Company Shall:
(a) Cause the Registration Statement to become effective under the
Securities Act and keep the Registration Statement effective under the
Securities Act pursuant to Rule 415 at all times until the date on which the
Investor with respect to the Registrable Securities can sell the Registrable
Securities pursuant to Rule 144 under the Securities Act without restriction
under Rule 144(e) thereof.
(b) Prepare and file with the Commission such amendments (including
post effective amendments) and supplements to the Registration Statement and the
prospectus used in connection with the Registration Statement as may be
necessary to keep the Registration Statement effective under the Securities Act
at all times until the date on which the Investor can
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sell the Registrable Securities pursuant to Rule 144 of the Securities Act
without restriction under Rule 144 (e) thereof, and to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by the Registration Statement.
(c) Furnish promptly to the Investor such numbers of copies of a
prospectus, including a preliminary prospectus, and all amendments and
supplements thereto, in conformity with the requirements of the Securities Act,
and such other documents as the Investor may reasonably request in order to
facilitate the disposition of Registrable Securities.
(d) Register and qualify the securities covered by the Registration
Statement under such other securities or Blue Sky laws of such jurisdictions as
shall be reasonably requested by the Investor, and prepare and file in those
jurisdictions such amendments (including post effective amendments) and
supplements and take such other actions as may be necessary to maintain such
registration and qualification in effect at all times until the date on which
the Investor can sell the Registrable Securities pursuant to Rule 144 of the
Securities Act without restriction under Rule 144(e) thereof and to take all
other actions necessary or advisable to enable the disposition of such
securities in such jurisdiction, provided that the Company shall not be required
in connection therewith, or as a condition thereto, to quality to do business or
to file a general consent to service of process in any such state or
jurisdictions or to provide any undertaking or make any change in its charter or
by-laws which the Board of Directors determines to be contrary to the best
interest of the Company and its stockholders.
(e) Notify the Investor, at any time when a prospectus relating to
Registrable Securities covered by the Registration Statement is required to be
delivered under the Securities Act, of the happening of any event as a result of
which the prospectus included in the Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. The Company shall promptly amend or supplement the Registration
Statement to correct any such untrue statements or omission.
(f) Notify the Investor of the issuance by the Commission or any state
securities commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceeding for such purpose. The
Company will make every reasonable effort to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible time.
(g) Permit single firm of counsel designated by the holders of a
majority in interest of the Registrable Securities to review the Registration
Statement and all amendments and supplements thereto a reasonable period of time
prior to their filing, and not file any document in a form to which such counsel
reasonably objects.
(h) Make generally available to its security holders as soon as
practicable, but not later than 90 days after the close period covered thereby,
an earnings statement (in form complying with the provisions of Rule 158 under
the Securities Act ) covering a twelve-month period beginning not later that the
first day of the Company's fiscal quarter next following the
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effective date of the Registration Statement.
(i) Make available for inspection by the Investor, any underwriters
participating in offering pursuant to the registration, and the counsel,
accountants, or other agents retained by the Investor or any such underwriter,
all pertinent financial and other records, corporate documents, and properties
of the Company, and cause the Company's officers, directors, and employees to
supply all information reasonably requested by the Investor or any such
underwriters in connection with the registration.
(j) If the Common Stock in then listed on a national securities
exchange, cause the Registrable Securities to be listed on such exchange. If the
Common Stock is not then listed on a national securities exchange, facilitate
the reporting of the Registrable Securities on the Nasdaq Bulletin Board, the
Nasdaq SmallCap Market, or the Nasdag National Market, as applicable.
(k) Provide a transfer agent and register, which may be a single
entity, for the Registrable Securities not later than the effective date of the
Registration Statement under the Securities Act.
(l) Take all actions reasonable necessary to facilitate the timely
preparation and delivery of certificates representing the Registrable Securities
to be sold pursuant to the Registration Statement and to enable such
certificates to be in such denominations and Registered in such names as the
Investor or any Underwriters may reasonably request.
(m) Take all other reasonable actions necessary to expedite and
facilitate disposition by the Investor of the Registrable Securities pursuant to
the Registration Statement.
III. FURNISH INFORMATION
It shall be a condition precedent to the obligations of the Company to
take any action pursuant to this Agreement with respect to each Investor that
such Investor shall furnish to the Company such information regarding itself,
the Registrable Securities held by it, and the intended method of disposition of
such securities as shall be reasonably required to effect the registration of
the Registrable Securities and shall execute such documents in connection with
such registration as the Company may reasonably require to effect the
Registration of the Registrable Securities and shall execute such documents in
connection with the registration as the Company may reasonably request.
IV. INDEMNIFICATION AND CONTRIBUTION
SECTION 4.01 INDEMNIFICATION. In the event any Registrable Securities
are included in a Registration Statement under this Agreement:
(a) To extent permitted by law, the Company will indemnify and hold
harmless each Investor, the directors, if any, of such Investor, the officers,
if any, of such Investor who signed
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the Registration Statement, each person, if any, who controls such Investor, any
underwriter (as defined in the Securities Act) of any of the Registrable
Securities and each person, if any, who controls any such underwriter within the
meaning of the Securities Act or the Exchange Act against any losses, claims,
damages, expenses, or liabilities or actions or proceedings, whether commenced
or threatened, in respect thereof that arise out of, or are based upon, any of
the following statements, omissions or violations (collectively, a "Violation"):
(i) any untrue statement or alleged untrue statement of a material of fact
contained in the Registration Statement, including any preliminary prospectus or
final prospectus contained therein or any amendments or supplements thereto;
(ii) the omission or alleged omissions to state therein a material of fact
required to be stated therein, or necessary to make the statements therein, in
light of the circumstances under which they were made not misleading; or (iii)
any violation or alleged violation by the Company of the Securities Act, the
Exchange Act, any state securities law, or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law; and the
Company will reimburse the Investor and each such underwriter or controlling
person, promptly as such expenses are incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, action or proceeding provided however, that
the indemnity agreement contained is this Section 4.01 (a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability, or action
or proceeding if such settlement is effected without the consent of the Company,
which consent shall not be unreasonably withheld, nor shall the Company be
liable in any such case for any such loss, claim, damage, liability, or action
or proceeding to the extent that it arises out of, or is based upon, a Violation
which occurs in reliance upon, and in conformity with, written information
furnished expressly for use in connection with such registration by the Investor
or any such underwriter or controlling person, as the case be. Such indemnity
shall remain in full force and effect regardless of any investigation made by,
or on behalf of, the Investor or any such underwriter or controlling person
shall survive the transfer of the Registrable Securities by the Investor.
(b) To the extent permitted by law, each Investor, severally and not
jointly, will indemnify and hold harmless the Company, each of its directors,
each of its officers who have signed the Registration Statement, each person, if
any, who controls the Company within the meaning of the Securities Act or
Exchange Act, any underwriter and any other stockholder selling securities
pursuant to the Registration Statement, or any of its directors or officers or
any person who controls such holder or underwriter, against any losses, claims,
damages, or liabilities (joint or several) to which any of them may become
subject, under the Securities Act, the Exchange Act, or other federal or state
law, insofar as such losses, claims, damages, or liabilities or actions in
respect thereof arise out of, or are based upon, any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon,
and in conformity with, written information furnished by such Investor expressly
for use in connection with such registration; and such investor will reimburse
any legal or other expenses reasonably incurred by any of them in connection
with investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in this
Section 4.01(b) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability, or action if such settlement is effected without the
consent of such Investor, which consent shall not be unreasonably withheld; and
provided, further that the Investor shall be liable under this paragraph
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for only that amount of losses, claims, damages, and liabilities as does not
exceed the proceeds to such Investor as a result of the sale of Registrable
Securities pursuant to such registration.
(c) Promptly after receipt by an indemnified party under this Article
IV of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Article IV, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume control of, the defense thereof with counsel
reasonably satisfactory to the indemnified party; provided, however, that an
indemnified party shall have the right to retain its own counsel, with the fees
and expenses to be paid by the indemnifying party, if, in the reasonable opinion
of counsel for the indemnified party, representation of such indemnified party
by the counsel retained by the indemnifying party would be inappropriate due to
actual or potential differing interests between such indemnified party and any
other party represented by such counsel in such proceeding; notwithstanding the
foregoing, the indemnifying party or parties shall be responsible for only one
counsel representing the indemnified party or parties. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall relieve such indemnifying party of any
liability to the indemnified party under this Article IV only to the extent
prejudicial to its ability to defend such action, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to nay indemnified party otherwise than under this Article IV.
The indemnification required by this Article IV shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, promptly as such expense, loss, damage, or liability is incurred.
SECTION 4.02 CONTRIBUTION. To the extent any indemnification by an
indemnifying party is prohibited or limited by law, the indemnifying party
agrees to make the maximum contribution with respect to any amounts for which it
would otherwise be liable under Section 4.01 hereof to the extent permitted by
law, provided that (i) no contribution shall be made under circumstances where
the contributor would not have been liable for indemnification under the fault
standards set forth in Section 4.01 hereof, (ii) no seller of Registrable
Securities guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any seller
of Registrable Securities who was not guilty or such fraudulent
misrepresentation, and (iii) contribution by any seller of Registrable
Securities shall be limited in amount to the net amount of proceeds received by
such seller from the sale of such Registrable Securities.
V. REPORT UNDER EXCHANGE ACT.
With a view to making available to the Investor the benefits of Rule
144 and any other rule or regulation of the Commission that may at any time
permit the Investor to sell securities of the Company to the public without
registration, the Company agrees to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144;
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(b) File with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(c) Furnish to each Investor, so long as such Investor owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144, the
Securities Act, and the Exchange Act (at any time after it has become subject to
such reporting requirements), (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably requested in
availing the Investor of any rule or regulation of the Commission which permits
the selling of any such securities without registration.
VI. ASSIGNMENT OF REGISTRATION RIGHTS.
The right to have the Company register Registrable Securities under the
Securities Act pursuant to this Agreement may be assigned by the Investor to
permitted transferees or assignees of such securities; provided, that such
transferee or assignee, within a reasonable time after such transfer, furnishes
the Company written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights are
being assigned; provided, further, that such assignment shall be effective only
if immediately following such transfer the further disposition of such
securities by the transferee or assignee is restricted under the Securities Act.
The term "Investor" as used in this Agreement shall included permitted
assignees.
VII. EXPENSES OF REGISTRATION.
All expenses other than the underwriting discounts and commissions
incurred in connection with registration, filings, or qualifications pursuant to
Article II hereof, including, without limitation, all registration, listing,
filing, and qualification fees, printers, accounting fees, fees and
disbursements of counsel for the Company shall be borne by the Company.
VIII. MISCELLANEOUS.
SECTION 8.01 FURTHER ACTIONS. At any time and from time to time, each
party agrees, at its expense, to take such actions and to execute and deliver
such documents as may be reasonably necessary to effectuate the purposes of this
Agreement.
SECTION 8.02 ENTIRE AGREEMENT; MODIFICATION. This Agreement sets forth
the entire understanding of the parties with respect to the subject matter
hereof, supersedes all existing agreements among them concerning such subject
matter, and may be modified only by a written instrument duly executed by each
party hereto.
SECTION 8.03 NOTICES. All communications hereunder, except as may be
otherwise specifically provided herein, shall be in writing, and, if sent to any
Investor, shall be mailed,
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delivered, or telexed or telegraphed and confirmed by letter, to such Investor
at the address set forth on the signature page hereof, or if sent to the
Company, shall be mailed, delivered, or telexed or telegraphed and confirmed by
letter, to 0000 Xxxxxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000. All notices
hereunder shall be effective upon receipt by the party to which it is addressed.
SECTION 8.04 WAIVER. Any waiver by any party of a breach of any term of
this Agreement shall not operate as, or be construed to be, a waiver of any
other breach of that term or of any breach of any other term of this Agreement.
The failure of a party to insist upon strict adherence to any term of this
Agreement on one or more occasions will not be considered a waiver or deprive
that party of the right thereafter to insist upon strict adherence to that term
or any other term of this Agreement. Any waiver hereunder must be in writing.
SECTION 8.05 BINDING EFFECT. The provisions of this Agreement shall be
binding upon, and inure to the benefits of, the parties hereto and their
respective successors and assigns; PROVIDED, HOWEVER, that, except as otherwise
provided herein, no party hereto shall have the right to assign its rights and
obligations hereunder without the prior written consent of the other parties
hereto.
SECTION 8.06 NO THIRD-PARTY BENEFICIARIES. This Agreement does not
create, and shall not be construed as creating, any rights enforceable by any
person not a party to this Agreement, except as otherwise provided herein.
SECTION 8.07 SEPARABILITY. If any provision of this Agreement is
invalid, illegal, or unenforceable, the balance of this Agreement shall remain
in effect, and if any provision is inapplicable to any person or circumstance,
it shall nevertheless remain applicable to all other persons and circumstances.
SECTION 8.08 HEADINGS. The headings in this Agreement are solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
SECTION 8.09 COUNTERPARTS; GOVERNING LAW. This Agreement may be
executed in any number of counterparts, each of which shall be deemed as
original, but all of which together shall constitute one and the same
instrument. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without giving effect to conflicts of
laws. Each of the parties consents to the jurisdiction of the U.S. District
Court sitting in the Southern District of the State of New York or the state
courts of the State of New York sitting in Manhattan in connection with any
dispute arising under this Debenture and hereby waives, to the maximum extent
permitted by law, any objection, including any objection based on FORUM NON
CONVENIENS to the bringing of any such proceeding in such jurisdictions.
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IN WITNESS WHEREOF, the parties have executed this instrument as of the
day and year first above written.
COMPANY
CELERITY SYSTEMS, INC.
By: /s/ Xxxxxxx X. Van Meter
--------------------------
Name: Xxxxxxx X. Van Meter
Title: President/CEO
INVESTOR
GMF HOLDINGS
By: /s/ Xxxxx Xxxxx
-----------------------
Name: Xxxxx Xxxxx
Title:
Address:
