-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EZ730vVCZ9bwFXVbC1vJJaSQYie+190VW6xh1IiOggIiO+PBZKNyuGKHjnIhOoYr 8Do5Zg9gsElfSZcDhEtTqA== 0001144204-05-027768.txt : 20050901 0001144204-05-027768.hdr.sgml : 20050901 20050901104634 ACCESSION NUMBER: 0001144204-05-027768 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20050901 DATE AS OF CHANGE: 20050901 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CELERITY SYSTEMS INC CENTRAL INDEX KEY: 0001006459 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER INTEGRATED SYSTEMS DESIGN [7373] IRS NUMBER: 522050585 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-52573 FILM NUMBER: 051063468 BUSINESS ADDRESS: STREET 1: 146 MARYVILLE PIKE STREET 2: SUITE 201 CITY: KNOXVILLE STATE: TN ZIP: 37920 BUSINESS PHONE: 8655393561 MAIL ADDRESS: STREET 1: 146 MARYVILLE PIKE STREET 2: SUITE 201 CITY: KNOXVILLE STATE: TN ZIP: 37920 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: McMillen Charles Thomas CENTRAL INDEX KEY: 0001332108 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: BUSINESS PHONE: 202-546-1712 MAIL ADDRESS: STREET 1: 1103 SOUTH CAROLINA AVENUE CITY: WASHINGTON STATE: DC ZIP: 20003 SC 13D 1 v025152_13d.txt CUSIP No. 15100R107 Page 1 of 5 Pages UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 - -------------------------------------------------------------------------------- SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1 (a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2 (a) CELERITY SYSTEMS, INC. ---------------------- (Name of Issuer) Common Stock $0.001 Par Value ---------------- (Title of Class of Securities) 15100R107 --------- (CUSIP Number) C. Thomas McMillen 1103 South Carolina Avenue S.E., Washington, D.C. 20003 202-546-1712 ------------ Copy to: Clayton E. Parker Kirkpatrick & Lockhart Nicholson Graham, LLP 201 South Biscayne Boulevard, Suite 2000 Miami, Florida 33131 305-539-3300 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) August 29, 2005 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|. CUSIP No. 15100R107 Page 2 of 5 Pages
SCHEDULE 13D - ------------------------ --------------------------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) C. Thomas McMillen - ------------------------ --------------------------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)|_| (b)|_| - ------------------------ --------------------------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------ --------------------------------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - ------------------------ --------------------------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) |_| - ------------------------ --------------------------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Washington, D.C. - ------------------------ --------------------------------------------------------------------------------------------------- NUMBER OF SHARES 7 SOLE VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,366,000,000 WITH --------------------------------------------------------------------------------------------------- 8 SHARED VOTING POWER --------------------------------------------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 1,366,000,000 --------------------------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER - ------------------------ --------------------------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,366,000,000 - ------------------------ --------------------------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_| - ------------------------ --------------------------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 28.5% - ------------------------ --------------------------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - ------------------------ ---------------------------------------------------------------------------------------------------
CUSIP No. 15100R107 Page 3 of 5 Pages ITEM 1. SECURITY AND ISSUER. This statement relates to shares of common stock, par value $0.001 per share (the "Shares"), of Celerity Systems, Inc., a Delaware corporation (the "Issuer"). The principal executive office of the Issuer is located at 146 Maryville Pike, Suite 201, Knoxville, Tennessee 37920 ITEM 2. IDENTITY AND BACKGROUND (a)-(c), (f). This statement is being filed by C. Thomas McMillen (the "Reporting Person"). The Reporting Person is a resident of Washington, D.C., whose address is 1103 South Carolina Avenue, S.E., Washington, D.C. 20003. The reporting Person is the President, Chief Executive Officer and a Director of the Issuer. (d) and (e). During the last five years, the Reporting Person has not been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is the subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violations with respect to such laws. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION Effective August 29, 2005, the Reporting Person issued a 2% secured promissory note, with a maturity date of March 1, 2007 (the "Note"), in the principal amount of Two Million Five Hundred Thousand Dollars ($2,500,000), made payable to Cornell Capital Partners, LP ("Cornell"), to purchase 1,250,000,000 shares of the common stock of the Issuer, par value $0.001 per share (the "Shares"), pursuant to that certain Stock Purchase Agreement dated effective August 29, 2005, by and between C. Thomas McMillen and Cornell (the "Purchase Agreement"). A copy of the Note and Purchase Agreement are attached to this statement. ITEM 4. PURPOSE OF TRANSACTION The Reporting Person acquired the Shares for investment and not with a view to, or for resale in connection with, any distribution thereof pursuant to the Purchase Agreement. The Reporting Person does not have a present intention of selling, granting any participation in, or otherwise distributing the acquired Shares. The Reporting Person has no present plans or intentions which would result in or relate to any transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a)-(b) Prior to acquiring the Shares pursuant to the Purchase Agreement, the Reporting Person did not beneficially own any outstanding securities of the Issuer. As a result of acquiring the Shares pursuant to the Purchase Agreement, the Reporting Person acquired 1,250,0000 shares of common stock of the Issuer, which represents approximately 26% of the issued and outstanding shares of the Issuer as of the date hereof. The Reporting Person has the sole power to vote and to dispose of all of the Shares. (c) The Reporting Person has not effected, within the last 60 days, any transactions involving the Shares other than as a result of the Purchase Agreement. (d) Not applicable. (e) Not applicable. 4 CUSIP No. 15100R107 Page 4 of 5 Pages ITEM 6. CONTRACT, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER The Reporting Person does not have any contracts, arrangements, understandings or relationships (legal or otherwise) with any person with respect to any securities of the Issuer, including, without limitation, any contracts, arrangements, understandings or relationships concerning the transfer or voting of such securities, finders fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits and losses or the giving or withholding of proxies, except that pursuant to that certain Employment Agreement by and between the Reporting Person and the Issuer, dated effective August 30. 2005 (the "Employment Agreement"), the Reporting Person was awarded options to acquire a total of Five Hundred Eighty Million (580,000,000) shares of the Issuer's common stock, par value $0.001 per share ("Common Stock"), which options vested (or will vest) as follows: (i) options to acquire One Hundred Sixteen Million (116,000,000) shares of Common Stock vested on the date the Employment Agreement was executed by the parties thereto; and (ii) options to acquire One Hundred Sixteen Million (116,000,000) additional shares of Common Stock will vest at the end of each of the first, second, third and fourth calendar quarters following the execution of the Employment Agreement by the parties thereto. A copy of the Employment Agreement is attached to this statement. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS Exhibit No. Description - ----------- ------------------------------------------------------------ Exhibit 1 Promissory Note Issued by C. Thomas McMillen to Cornell Capital Partners, LP, dated effective August 29, 2005 Exhibit 2 Stock Purchase Agreement by and between C. Thomas McMillen and Cornell Capital Partners, LP, dated effective August 29 2005 Exhibit 3 Employment Agreement by and between C. Thomas McMillen and Cornell Capital Partners, LP, dated effective August 30, 2005 CUSIP No. 15100R107 Page 5 of 5 Pages SIGNATURE --------- After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: August 30, 2005 REPORTING PERSON: /s/ C. Thomas McMillen ---------------------- C. Thomas McMillen EX-99.1 2 v025152_ex99-1.txt EXHIBIT 99.1 PROMISSORY NOTE --------------- August 29, 2005 Jersey City, New Jersey $2,500,000 FOR VALUE RECEIVED, the undersigned, C. THOMAS MCMILLEN (the "Buyer") promises to pay CORNELL CAPITAL PARTNERS, LP (the "Lender") at 101 Hudson Street, Suite 3700, Jersey City, New Jersey 07302 or other address as the Lender shall specify in writing, the principal sum of Two Million Five Hundred Thousand Dollars ($2,500,000) (the "Principal Amount") and interest at the annual rate of two percent (2%) on the unpaid balance pursuant to the following terms: Contemporaneously with the execution and delivery of this Note, the Buyer and the Lender are entering into a Stock Purchase Agreement (the "Stock Purchase Agreement") and the Pledge and Escrow Agreement (the "Pledge Agreement") (collectively, this Note, Stock Purchase Agreement and the Pledge Agreement are referred to as the "Transaction Documents"). 1. Issuance of Note. Pursuant to the Stock Purchase Agreement, the Lender is selling and the Buyer is purchasing One Billion Two Hundred Fifty Million (1,250,000,000) shares (the "Celerity Stock") of common stock of Celerity Systems, Inc., a Delaware corporation ("Celerity"). The Buyer is issuing this Note in consideration for the sale of shares of the Celerity Stock. 2. Principal and Interest. For value received, the Buyer hereby promises to pay to the order of the Lender on March 1, 2007 (the "Maturity Date") in lawful money of the United States of America and in immediately available funds the principal sum of Two Million Five Hundred Thousand Dollars ($2,500,000), together with interest on the unpaid principal of this Note. 3. The Lender's Recourse. The Lender's recourse under this Note against the Buyer shall be limited to Six Hundred Twenty Five Thousand Dollars ($625,000). This provision shall not prevent or impair the Lender from exercising its rights under the Pledge Agreement against the collateral pledged thereunder and applying any proceeds therefrom against all amounts owed hereunder, including without limitation principal and interest. 4. Conditions to the Lender's Obligations to Close. The obligation of the Lender hereunder to fund the Closing is subject to the satisfaction, at or before the Closing, of each of the following conditions, provided that these conditions are for the Lender's sole benefit and may be waived by the Lender at any time in its sole discretion: (a) The Buyer shall have executed this Note, the Stock Purchase Agreement and the Pledge Agreement, and delivered the same to the Lender. (b) The representations and warranties set forth in Stock Purchase Agreement of the Buyer shall be true and correct in all material respects as of the date when made and as of the Closing as though made at that time and the Buyer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Note, the Stock Purchase Agreement or the Security Agreement to be performed, satisfied or complied with by the Buyer at or prior to the Closing. 5. Waiver and Consent. To the fullest extent permitted by law and except as otherwise provided herein, the Buyer waives demand, presentment, protest, notice of dishonor, suit against or joinder of any other person, and all other requirements necessary to charge or hold the Buyer liable with respect to this Note. 6. Costs, Indemnities and Expenses. If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys' fees, court costs and all expenses even if not taxable as court costs (including, without limitation, all such fees, costs and expenses incident to appeals), incurred in that action or proceeding, in addition to any other relief to which such party or parties may be entitled. The Buyer agrees to pay any documentary stamp taxes, intangible taxes or other taxes which may now or hereafter apply to this Note or any payment made in respect of this Note, and the Buyer agrees to indemnify and hold the Lender harmless from and against any liability, costs, attorneys' fees, penalties, interest or expenses relating to any such taxes, as and when the same may be incurred. 7. Event of Default. An "Event of Default" shall be deemed to have occurred upon the occurrence of any of the following: (i) the Buyer should fail for any reason or for no reason to make any payment of the interest or principal pursuant to this Note within ten (10) days of the date due as prescribed herein; (ii) the Buyer shall fail to observe or perform any other covenant, agreement or warranty contained in, or otherwise commit any material breach or default of any material provision of this Note or any of the Transaction Documents (as defined herein), which is not cured within ten (10) days notice of the default; (iii) the Buyer shall commence, or there shall be commenced against the Buyer under any applicable bankruptcy or insolvency laws as now or hereafter in effect or any successor thereto, or the Buyer commences any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to the Buyer or there is commenced against the Buyer any such bankruptcy, insolvency or other proceeding which remains undismissed for a period of 61 days; or the Buyer is adjudicated insolvent or bankrupt; or any order of relief or other order approving any such case or proceeding is entered; or the Buyer suffers any appointment of any custodian, private or court appointed receiver or the like for it or any substantial part of its property which continues undischarged or unstayed for a period of sixty 2 one (61) days; or the Buyer makes a general assignment for the benefit of creditors; or the Buyer shall fail to pay, or shall state that it is unable to pay, or shall be unable to pay, its debts generally as they become due; or the Buyer shall call a meeting of its creditors with a view to arranging a composition, adjustment or restructuring of its debts; or (iv) a breach by the Buyer of its obligations, or an event of default, under any of the Transaction Documents, or any other agreements entered into between the Buyer and the Lender which is not cured by any applicable cure period set forth therein. Upon an Event of Default (as defined above), the entire principal balance and accrued interest outstanding under this Note, and all other obligations of the Buyer under this Note, shall be immediately due and payable without any action on the part of the Lender, interest shall accrue on the unpaid principal balance at twenty four percent (24%) or the highest rate permitted by applicable law, if lower, and the Lender shall be entitled to seek and institute any and all remedies available to it. 8. Maximum Interest Rate. In no event shall any agreed to or actual interest charged, reserved or taken by the Lender as consideration for this Note exceed the limits imposed by New Jersey law. In the event that the interest provisions of this Note shall result at any time or for any reason in an effective rate of interest that exceeds the maximum interest rate permitted by applicable law, then without further agreement or notice the obligation to be fulfilled shall be automatically reduced to such limit and all sums received by the Lender in excess of those lawfully collectible as interest shall be applied against the principal of this Note immediately upon the Lender's receipt thereof, with the same force and effect as though the Buyer had specifically designated such extra sums to be so applied to principal and the Lender had agreed to accept such extra payment(s) as a premium-free prepayment or prepayments. 9. Secured Nature of the Note. This Note is secured by the Pledge Agreement. 10. Cancellation of Note. Upon the repayment by the Buyer of all of its obligations hereunder to the Lender, including, without limitation, the principal amount of this Note, plus accrued but unpaid interest, the indebtedness evidenced hereby shall be deemed canceled and paid in full. Except as otherwise required by law or by the provisions of this Note, payments received by the Lender hereunder shall be applied first against expenses and indemnities, next against interest accrued on this Note, and next in reduction of the outstanding principal balance of this Note. 11. Severability. If any provision of this Note is, for any reason, invalid or unenforceable, the remaining provisions of this Note will nevertheless be valid and enforceable and will remain in full force and effect. Any provision of this Note that is held invalid or unenforceable by a court of competent jurisdiction will be deemed modified to the extent necessary to make it valid and enforceable and as so modified will remain in full force and effect. 12. Amendment and Waiver. This Note may be amended, or any provision of this Note may be waived, provided that any such amendment or waiver will be binding on a party hereto only if such amendment or waiver is set forth in a writing executed by the parties hereto. The waiver by any such party hereto of a breach of any provision of this Note shall not operate or be construed as a waiver of any other breach. 3 13. Successors. Except as otherwise provided herein, this Note shall bind and inure to the benefit of and be enforceable by the parties hereto and their permitted successors and assigns. 14. Assignment. This Note shall not be directly or indirectly assignable or delegable by the Buyer. The Lender may assign this Note as long as such assignment complies with the Securities Act of 1933, as amended. 15. No Strict Construction. The language used in this Note will be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction will be applied against any party. 16. Further Assurances. Each party hereto will execute all documents and take such other actions as the other party may reasonably request in order to consummate the transactions provided for herein and to accomplish the purposes of this Note. 17. Notices, Consents, etc. Any notices, consents, waivers or other communications required or permitted to be given under the terms hereof must be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); or (iii) one (1) trading day after deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The addresses and facsimile numbers for such communications shall be: If to Buyer: C. Thomas McMillen 1103 South Carolina Avenue, SE Washington, DC 20003 Attention: C. Thomas McMillen Telephone: (202) 251-4471 Facsimile: (202) 546-1712 If to the Lender: Cornell Capital Partners, LP 101 Hudson Street, Suite 3700 Jersey City, NJ 07302 Attention: Mark A. Angelo Telephone: (201) 985-8300 Facsimile: (201) 985-8266 With a copy to: Cornell Capital Partners, LP 101 Hudson Street, Suite 3700 Jersey City, NJ 07302 Attention: Troy Rillo, Esq. Telephone: (201) 985-8300 Facsimile: (201) 985-8266 4 or at such other address and/or facsimile number and/or to the attention of such other person as the recipient party has specified by written notice given to each other party three (3) trading days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or electronically generated by the sender's facsimile machine containing the time, date, recipient facsimile number and an image of the first page of such transmission or (C) provided by a nationally recognized overnight delivery service, shall be rebuttable evidence of personal service, receipt by facsimile or receipt from a nationally recognized overnight delivery service in accordance with clause (i), (ii) or (iii) above, respectively. 18. Remedies, Other Obligations, Breaches and Injunctive Relief. The Lender's remedies provided in this Note shall be cumulative and in addition to all other remedies available to the Lender under this Note, at law or in equity (including a decree of specific performance and/or other injunctive relief), no remedy of the Lender contained herein shall be deemed a waiver of compliance with the provisions giving rise to such remedy and nothing herein shall limit the Lender's right to pursue actual damages for any failure by the Buyer to comply with the terms of this Note. No remedy conferred under this Note upon the Lender is intended to be exclusive of any other remedy available to the Lender, pursuant to the terms of this Note or otherwise. No single or partial exercise by the Lender of any right, power or remedy hereunder shall preclude any other or further exercise thereof. The failure of the Lender to exercise any right or remedy under this Note or otherwise, or delay in exercising such right or remedy, shall not operate as a waiver thereof. Every right and remedy of the Lender under any document executed in connection with this transaction may be exercised from time to time and as often as may be deemed expedient by the Lender. The Buyer acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Lender and that the remedy at law for any such breach may be inadequate. The Buyer therefore agrees that, in the event of any such breach or threatened breach, the Lender shall be entitled, in addition to all other available remedies, to an injunction restraining any breach, and specific performance without the necessity of showing economic loss and without any bond or other security being required. 19. Governing Law; Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal laws of the State of New Jersey, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New Jersey or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New Jersey. Each party hereby irrevocably submits to the exclusive jurisdiction of the Superior Court of the State of New Jersey sitting in Hudson County, New Jersey and the United States Federal District Court for the District of New Jersey sitting in Newark, New Jersey, for the adjudication of any dispute hereunder or in connection herewith 5 or therewith, or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. 20. No Inconsistent Agreements. None of the parties hereto will hereafter enter into any agreement, which is inconsistent with the rights granted to the parties in this Note. 21. Third Parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or entity, other than the parties to this Note and their respective permitted successor and assigns, any rights or remedies under or by reason of this Note. 22. Waiver of Jury Trial. AS A MATERIAL INDUCEMENT FOR THE LENDER TO LOAN TO THE BUYER THE MONIES HEREUNDER, THE BUYER HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING RELATED IN ANY WAY TO THIS AGREEMENT AND/OR ANY AND ALL OF THE OTHER DOCUMENTS ASSOCIATED WITH THIS TRANSACTION. 23. Entire Agreement. This Note (including any recitals hereto) set forth the entire understanding of the parties with respect to the subject matter hereof, and shall not be modified or affected by any offer, proposal, statement or representation, oral or written, made by or for any party in connection with the negotiation of the terms hereof, and may be modified only by instruments signed by all of the parties hereto. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] 6 IN WITNESS WHEREOF, this Promissory Note is executed by the undersigned as of the date hereof. CORNELL CAPITAL PARTNERS, LP. By: Yorkville Advisors, LLC Its: General Partner By: --------------------------- Name: Mark Angelo Its: Portfolio Manager ----------------------------- Name: C. THOMAS MCMILLEN EX-99.2 3 v025152_ex99-2.txt EXHIBIT 99.2 STOCK PURCHASE AGREEMENT ------------------------ THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered into as of August 29, 2005 by and among C. THOMAS MCMILLEN (the "Purchaser") and CORNELL CAPITAL PARTNERS, LP (the "Seller"). Recitals: --------- WHEREAS, the Seller desires to sell to Purchaser, and Purchaser desire to purchase from the Seller, One Billion Two Hundred Fifty Million (1,250,000,000) shares (the "Celerity Stock") of common stock of Celerity Systems, Inc., a Delaware corporation ("Celerity"); WHEREAS, in consideration for the sale of shares of the Celerity Stock, the Purchaser shall issue to the Seller a promissory note (the "Promissory Note") of even date herewith in the principal amount of Two Million Five Hundred Thousand Dollars ($2,500,000), which shall accrue interest at an annual rate of two percent (2%); WHEREAS, the Promissory Note shall be secured pursuant to that certain Pledge and Escrow Agreement of even date herewith by and among the Seller, the Purchaser and David Gonzalez, Esq. as escrow agent (the "Pledge Agreement"). NOW, THEREFORE, in consideration of the premises, agreements and covenants hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows: 1. Recitals. The above recitals are true and correct and are hereby incorporated by reference herein. 2. Sale and Purchase of Shares. On the date hereof (the "Closing Date") and subject to the terms and conditions of this Agreement, Seller shall sell, assign and transfer to the Purchaser, and the Purchaser shall purchase from Seller, the Celerity Stock. 3. Purchase Price. The total purchase price (the "Purchase Price") for the Celerity Stock shall be Two Million Five Hundred Thousand Dollars ($2,500,000), which shall be paid in the form of the Promissory Note. 4. Effective Date, Closing and the Closing Date. This Agreement shall become effective on the date hereof. 5. Representations, Warranties and Covenants. 5.1. Of the Seller. The Seller hereby represents, warrants and covenants to the Purchaser that: (a) it owns the Celerity Stock ; (b) it has good title to, and has all right and authority to transfer and deliver the Celerity Stock to the Purchaser, and (c) the Celerity Stock is free and clear of all options, warrants, rights, liens, claims, charges and any other encumbrances. 5.2. Of the Purchaser. The Purchaser hereby represents, warrants and covenants to the Seller that: (a) he has obtained, or has been given an opportunity to obtain, independent professional advice regarding the tax, accounting, legal and financial merits and consequences of the transactions contemplated herein and has been given an opportunity to consult his own individual counsel regarding the transactions contemplated herein; (b) has been given access to all documents and information, including, without limitation, financial statements, regarding Celerity as he and his advisors deem necessary in their evaluation of the transactions contemplated herein; (c) he is acquiring the Celerity Stock for investment, and not with a view to any distribution thereof that would violate the Securities Act of 1933, as amended (the "Securities Act"), or the applicable state securities laws of any state or country, and he shall not distribute the Celerity Stock in violation of the Securities Act or any applicable securities laws of any state or country; and (d) the Celerity Stock is "restricted" stock as defined under Rule 144 promulgated under the Securities Act of 1933, as amended. 6. Conditions to Closing. 6.1. Of the Seller. The obligation of the Seller to proceed with the Closing is subject to the satisfaction on or prior to the Closing Date of all of the following conditions, any one or more of which may be waived in whole or in part by the Seller: (a) the representations, warranties and covenants of the Purchaser contained in this Agreement shall be true and correct on and as of the Closing Date as if made on and as of the Closing Date, (b) the Purchaser shall have executed and delivered the Promissory Note to the Seller, and (c) the Purchaser shall have executed and delivered to the Seller the Pledge Agreement along with the Pledged Shares as set forth thereto. 6.2. Of the Purchaser. The obligation of the Purchaser to proceed with the Closing is subject to the satisfaction on or prior to the Closing Date of all of the following conditions, any one or more of which may be waived in whole or in part by the Purchaser: (a) the representations, warranties and covenants of the Seller contained in this Agreement shall be true and correct on and as of the Closing Date as if made on and as of the Closing Date, (b) the Purchaser shall have executed and delivered the Promissory Note to the Seller; and (c) the Purchaser shall have executed and delivered to the Seller the Pledge Agreement along with the Pledged Shares as set forth thereto. 7. Notices. Unless otherwise provided herein, all demands, notices, consents, requests and other communications hereunder shall be in writing and shall be delivered in person or by international courier service (and shall be deemed delivered on the third [3rd] day after deliver to the international courier service), addressed: To the Seller: Cornell Capital Partners, LP 101 Hudson Street - Suite 3700 Jersey City, New Jersey 07303 Attention; Mark Angelo 2 With a Copy to: Troy Rillo, Esq. 101 Hudson Street - Suite 3700 Jersey City, New Jersey 07303 To the Purchaser: Mr. C. Thomas McMillen 1103 South Carolina Avenue, SE Washington, DC 20003 Any such notice shall be effective when delivered. 8. Entire Agreement; Amendment. This Agreement contains the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations, discussions, agreements, arrangements and understandings, written or oral, relating to the subject matter hereof. No amendment or modification of, or any waiver of any provision of, this Agreement shall be effective unless set forth in a writing signed by all parties hereto. 9. Governing Law. The validity, interpretation and performance of this Agreement shall be determined in accordance with the laws of the State of New Jersey applicable to contracts made and to be performed wholly within that state except to the extent that federal law applies. The parties hereto agree that any disputes, claims, disagreements, lawsuits, actions or controversies of any type or nature whatsoever that, directly or indirectly, arise from or relate to this Agreement, including, without limitation, claims relating to the inducement, construction, performance or termination of this Agreement, shall be brought in the state and federal courts located in Hudson County, New Jersey, and expressly consent to the jurisdiction and venue of the Superior Court of New Jersey, sitting in Hudson County, New Jersey and the United States District Court of New Jersey, sitting in Newark, New Jersey, for the adjudication of any civil action asserted pursuant to this paragraph, and the parties hereto agree not to challenge the selection of that venue in any such proceeding for any reason, including, without limitation, on the grounds that such venue is an inconvenient forum. 10. Attorneys' Fees. In any action or proceeding brought to enforce any provision of this Agreement, or where any provision hereof is validly asserted as a defense, the prevailing party shall be entitled to recover reasonable attorneys' fees, including attorneys' fees for any appeal and costs incurred in bringing such action or proceeding, in addition to any other available remedy (such party to be deemed to have been successful if such action or claim is concluded pursuant to a court order or final judgment which is not subject to appeal, a settlement agreement or dismissal of the principal claims). 11. Further Assurances. The parties hereby agree from time to time to execute and deliver such further and other transfers, assignments and documents and to do all matters and things which may be convenient or necessary to more effectively and completely effect the intentions of this Agreement. 3 12. Severability. The provisions of this Agreement are severable. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and all such other provisions shall remain in full force and effect. 13. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute a single agreement. 14. Captions. The captions of this Agreement are for convenience and reference only and in no way define, describe, extend or limit the scope or intent of this Agreement, or the intent of any provision hereof. 15. No Registration or Registration Rights. The Purchaser (a) hereby acknowledges and agrees that the Celerity Stock has not been registered under the Securities Act or the securities laws of any state or other jurisdiction in reliance upon applicable exemptions form such registration, and that the execution and deliver of this Agreement or the consummation of the transactions contemplated hereby do not grant, provide or confer any registration rights on the Purchaser with regard thereto, and (b) shall not sell, transfer or assign such Celerity Stock unless such sale, transfer or assignment complies with the requirements of the Securities Act and the securities laws of any such state or other jurisdiction. 16. Successors and Assigns; No Third-Party Beneficiaries; Assignment. This Agreement will be binding upon the parties hereto and their respective heirs, administrators, personal representatives, executors, successors and assigns. Except as otherwise provided herein, this Agreement is not intended to, and shall not be construed to, create any rights as a third-party beneficiary or otherwise in favor of any person or entity who is not a party to this Agreement or a successor or assign of a party to this Agreement. No party hereto shall assign this Agreement or its rights and obligations hereunder without the other parties' prior written consent. [SIGNATURE PAGE TO IMMEDIATELY FOLLOW] IN WITNESS WHEREOF, the parties hereto have duly executed this Stock Purchase Agreement as of the date first written above. ------------------------------------------ C. THOMAS MCMILLEN CORNELL CAPITAL PARTNERS, LP By: Yorkville Advisors, LLC Its: General Partner By: --------------------------------------- Name: Mark Angelo Title: Portfolio Manager EX-99.3 4 v025152_ex99-3.txt EXHIBIT 99.3 EXECUTIVE EMPLOYMENT AGREEMENT THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is entered into and made effective as of August 30, 2005 (the "Effective Date"), by and between Celerity Systems, Inc., a Delaware corporation, having its principal offices at 146 Maryville Pike, Suite #201, Knoxville, TN 37920 (the "Company"), and C. Thomas McMillen, whose address is 1103 South Carolina Avenue, S.E., Washington, D.C. 20003 (the "Executive"). RECITALS: WHEREAS, the Company desires to employ and retain the Executive for the term specified herein in order to advance the business and interests of the Company on the terms and conditions set forth herein; and WHEREAS, the Executive desires to provide his services to the Company in such capacities, on and subject to the terms and conditions hereof; and WHEREAS, the Company desires to provide the Executive with certain options to acquire stock in the Company in order that the Executive may have the opportunity to participate in the growth and performance of the Company, as set forth herein. NOW, THEREFORE, for and in consideration of the foregoing premises, the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows: 1. Employment and Term. Subject to the terms and conditions hereof, the Company does hereby employ and agree to employ the Executive as its President and Chief Executive Officer for and during the Employment Term (as defined below), and the Executive does hereby accept such employment. The initial term of employment shall commence on ____________ __, 2005 and shall continue for two (2) years thereafter unless earlier terminated as herein provided (the "Employment Term"), and thereafter shall be renewed for additional terms of one (1) year, unless either party provides the other with notice, as provided for herein, at least ninety (90) days prior to the date the Employment Term would otherwise renew, of that party's intention not to so renew such term. 2. Duties of Executive. The Executive shall, during the Employment Term hereunder, perform the executive and administrative duties, functions and privileges incumbent with the position of President and Chief Executive Officer and such other duties as reasonably determined by the Board of Directors of the Company (the "Board") from time-to-time. The Executive shall report to the Board and if appointed by the Board, shall serve as the Chairman of the Board without additional compensation therefor. The Executive agrees to serve the Company faithfully, conscientiously and to the best of his ability, and to devote at least twenty-five (25) hours per week to the business and affairs of the Company (and, if requested by the Board, any subsidiary or affiliate of the Company) so as to promote the profit, benefit and advantage of the Company and, if applicable, any subsidiaries or affiliates of the Company. The Executive agrees to accept the compensation to be made to him under this Agreement as full and complete compensation for the services required to be performed by, and the covenants of, the Executive under this Agreement. 3. Location and Travel. The Executive shall not be required to relocate outside the greater Washington, D.C. metropolitan area without his consent. The Executive acknowledges, however, that significant domestic and international travel may be required as part of his duties hereunder; and the Executive agrees to undertake such travel as may be reasonably required by the business of the Company from time-to-time. 4. Compensation. 4.1 Base Salary. The Executive shall initially be paid a base salary (the "Base Salary") of One Hundred Twenty Thousand Dollars ($120,000) per year, which shall be periodically reviewed and increased by the Board, in its sole discretion, during the Employment Term. All compensation shall be made in accordance with the standard payroll practices of the Company. 4.2 Regular Benefits. The Executive shall be entitled to participate in any health insurance, accident insurance, hospitalization insurance, life insurance, pension, or any other similar plan or benefit provided by the Company to its executives or employees generally, including, but not limited to any stock option plan, if and to the extent that the Executive is eligible to participate in accordance with the provisions of any such insurance, plan or benefit generally (such benefits, collectively, the "Regular Benefits"). 4.3 Vacation. The Executive shall be entitled to four (4) weeks paid vacation with such vacation to be taken at times mutually agreeable to the Executive and the Company. The Executive shall further be entitled to the number of paid holidays, and leaves for illness or temporary disability in accordance with the policies of the Company for its senior executives. 4.4 Term Life Insurance. The Company shall have the right from time-to-time to purchase, modify or terminate insurance policies on the life of the Executive for the benefit of the Company in such amount as the Company shall determine in its sole discretion. In connection therewith the Executive shall, at such time(s) and at such place(s) as the Company may reasonably direct, submit himself to such physical examinations and execute and deliver such documents as the Company may deem necessary or desirable; provided, however, that the eligibility of the Executive for, or the availability of, such insurance shall not be deemed to be a condition of continued employment hereunder. 4.5 Expense Reimbursement. The Company shall reimburse the Executive for all expenses reasonably incurred by him in connection with the performance of his duties hereunder and the business of the Company upon the submission to the Company of appropriate receipts therefor, in accordance with the expense reimbursement policy of the Company. 4.6 Annual Bonus. The Executive shall be eligible to receive an annual bonus equal to one hundred percent (100%) of the Base Salary then in effect based on the achievement of performance metrics established by the Board and the Executive each calendar year during the Employment Term, with the metrics for the first calendar year of the Employment Term to be established by the Board and the Executive on or before the date which is sixty (60) days from the date hereof. All such metrics shall be evidenced in a document signed by the Board and timely provided to the Executive. 4.7 Options. The Company shall issue to the Executive options to acquire a total of Five Hundred Eighty Million shares (580,000,000) of the Company's common stock, par value $0.001 per share ("Common Stock"), which options shall vest as follows: (i) options to acquire One Hundred Sixteen Million (116,000,000) shares of Common Stock shall vest on the date on which this Agreement is executed by the parties hereto; and (ii) options to acquire One Hundred Sixteen Million (116,000,000) additional shares of Common Stock shall vest at the end of each of the first, second, third and fourth calendar quarters following the execution of this Agreement by the parties hereto. Except as otherwise expressly provided in this Agreement, all terms and conditions concerning the granting and exercise of any options awarded to the Executive hereunder, including any cashless exercise provisions, shall be governed by the Company's option plan, as such plan may be amended from time to time. 4.8 Signing Bonus. The Company shall pay to the Executive a signing bonus (the "Signing Bonus") in the amount of One Hundred Twenty-Five Thousand Dollars ($125,000), with such Signing Bonus to be paid as follows: (i) Twenty-Five Thousand Dollars ($25,000) shall be paid on the date on which this Agreement is executed by the last of the Company or the Executive, provided that the other party has already executed this Agreement; and (ii) the remaining One Hundred Thousand Dollars ($100,000) shall be paid on the date on which the Company receives Two Hundred Fifty Thousand Dollars ($250,000) in financings. 2 5. Termination and Severance Arrangements. 5.1 Termination by the Company. Except as set forth in Section 5.3 hereof, the Company may terminate this Agreement at any time by providing at least thirty (30) days' prior written notice to the Executive. In the event that the Company terminates this Agreement (a) other than in connection with a Change of Control (as defined in Section 6 hereof), and (b) other than for Cause (as defined in Section 5.3 hereof), the Company shall, notwithstanding such termination, in consideration for all of the undertakings and covenants of the Executive contained herein, continue to pay to the Executive the Base Salary and the Regular Benefits for the remainder of the then-current Employment Term. In addition, in the event the Company terminates this Agreement as described in the immediately preceding sentence, any and all options granted to the Executive by the Company shall become automatically and immediately vested and exercisable. In no event however, shall the continuation of such payments during such post-termination period be deemed to be employment hereunder for purposes of calculating any bonus due to the Executive or for purposes of determining the vesting or exercise period of any stock options granted hereunder, or otherwise. 5.2 Termination by Executive. The Executive may terminate his employment at any time for Good Reason and receive the payments and benefits specified in Section 5.1 hereof in the same manner as if the Company had terminated his employment without Cause. For purposes of this Agreement, "Good Reason" will exist if any one or more of the following occur: failure by the Company to honor any of its material obligations under this Agreement, including, without limitation, its obligations under Section 4 hereof concerning compensation, Section 10 hereof concerning indemnification, and Section 12.5 hereof concerning successor obligations. 5.3 Termination for Cause. Notwithstanding the Employment Term, the Company may terminate the Executive for Cause upon a resolution duly adopted by the affirmative vote of not less than a majority of the entire membership of the Board (excluding the Executive, if a director at such time). In the event that the employment of the Executive is terminated by the Company for Cause, no severance or other post-termination payment shall be due or payable by the Company to the Executive (except solely such Base Salary or other payments as may have been accrued but not yet paid prior to such termination). For purposes hereof, "Cause" shall mean: (a) the conviction with respect to any felony or misdemeanor involving theft, fraud, dishonesty or misrepresentation; (b) any misappropriation, embezzlement or conversion of the Company's or any of its subsidiary's or affiliate's property by the Executive; (c) willful misconduct by the Executive in respect of the material duties or obligations of the Executive under this Agreement; or (d) a material breach by the Executive of any of his material obligations hereunder, after written notice thereof and a reasonable opportunity of thirty (30) days to cure the same, provided that the same is not caused by the physical disability including mental disease or defect of the Executive, in which event Section 5.4 hereof shall apply. 5.4 Death or Disability. In the event that the employment of the Executive by the Company is terminated by reason of the death of the Executive or by reason of medical or psychiatric disability which prevents the Executive from satisfactorily performing a material portion of his duties for ninety (90) consecutive calendar days or one hundred twenty (120) days in any three hundred sixty-five (365) day period (a "Disability"), the Company shall, promptly upon such termination, pay the Executive an amount equal to six (6) months of his then-current Base Salary, in a single lump sum. 3 6. Proprietary Rights. 6.1 Non Competition. Except for (i) the Executive's position as an officer of Fortress America Acquisition Corporation and its successors, (ii) the Executive's ownership interest in Global Secure Corporation, and (iii) the Executive's ownership interest and/or position in any future special purpose acquisition corporations focused on homeland security, the Executive covenants and agrees that for so long as he shall be employed by the Company and for a period of two (2) years from the date of the termination of such employment for any reason (the "Restricted Period") the Executive shall not directly or indirectly, own, manage, control, operate invest in or become principal of employee of, director of, or consultant to, any business, entity or venture which is competitive with the business of the Company as conducted at such time; provided, however, that it shall not be a violation of this Agreement for the Executive to have beneficial ownership of less than five percent (5%) of the outstanding amount of any class of securities of any enterprise (but without otherwise participating in the activities of such enterprise) if such securities are listed on a national securities exchange or quoted on an inter-dealer quotation system. 6.2 Confidentiality. The Executive recognizes and acknowledges that certain confidential business and technical information used by the Employee in connection with his duties hereunder that includes, without limitation, certain confidential and proprietary information relating to the designing, development, construction and marketing of computer hardware, is a valuable and unique asset of the Company. Executive agrees that he shall at all times maintain the confidentiality of the proprietary information and trade secrets of the Company, and that he shall during the Restricted Period refrain from disclosing any such information to the disadvantage of the Company. 6.2.1 During the Restricted Period the Executive shall not, directly or indirectly: (a) solicit, in competition with the Company, any person who is a customer of any business conducted by the Company, or (b) in any manner whatsoever induce, or assist others to induce, any supplier of the Company to terminate its association with such entity or do anything, directly or indirectly, to interfere with the business relationship between the Company, and any of their respective current or prospective suppliers. 6.2.2 During the Restricted Period the Executive shall not, directly or indirectly, solicit or induce any employee of the Company to terminate his or her employment for any purpose, including without limitation, in order to enter into employment with any entity which competes with any business conducted by the Company 6.3 Ownership by Company. The Executive acknowledges and agrees that any of his work product created, produced or conceived in connection with his association with the Company shall be deemed work for hire and shall be deemed owned exclusively by the Company. The Executive agrees to execute and deliver all documents required by the Company to document or perfect the Company's proprietary rights in and to the Executive's work product. 6.4 Remedies. It is expressly understood and agreed that the services to be rendered hereunder by the Executive are special, unique, and of extraordinary character, and in the event of the breach by the Executive of any of the terms and conditions of this Agreement on his part to be performed hereunder, or in the event of the breach or threatened breach by the Executive of the terms and provisions of this Section 6, then the Company shall be entitled, if it so elects, to institute and prosecute any proceedings in any court of competent jurisdiction, either in law or equity, for such relief as it deems appropriate, including without limiting the generality of the foregoing, any proceedings, to obtain damages for any breach of this Agreement, or to enforce the specific performance thereof by the Executive. 4 7. Market Standoff Agreement. The Executive hereby agrees that if so requested by the Company or by any representative of any underwriters in connection with any registration of the offering of any securities of the Company under the Securities Act, the Executive shall not sell or otherwise transfer any securities of the Company during the ninety (90) day period following the effective date of a registration statement of the Company filed under the Securities Act. 8. Director's and Officer's Liability Insurance. To protect the Executive from any liability, loss, claims, damages, or costs, including legal fees and costs, prior to any public offering of any securities of the Company, the Company may purchase and maintain director's and officer's liability insurance (the "D&O Insurance") in an amount not less than Two Million Dollars ($2,000,000), or in such amount as is later agreed upon by the Executive and the Company. 9. Indemnification. As an employee, officer and director of the Company, the Executive shall be indemnified against all liabilities, damages, fines, costs and expenses by the Company in accordance with the indemnification provisions of the Company's Certificate of Incorporation as in effect on the date hereof, and otherwise to the fullest extent to which employees, officers and directors of a corporation organized under the laws of the state of incorporation of the Company may be indemnified pursuant to the laws of such state, as the same may be amended from time-to-time (or any subsequent statute of similar tenor and effect), subject to the terms and conditions of such statute. 10. Independent Representation. The Executive acknowledges that he has had the opportunity to seek independent legal counsel and tax advice in connection with the execution of this Agreement, and the Executive represents and warrants to the Company (a) that he has sought such independent counsel and advice as he has deemed appropriate in connection with the execution hereof and the transactions contemplated hereby, and (b) that he has not relied on any representation of the Company as to tax matters, or as to the consequences of the execution hereof. 10.1 Neutral Construction. No party may rely on any drafts of this Agreement in any interpretation of the Agreement. Each party to this Agreement has reviewed this Agreement and has participated in its drafting and, accordingly, no party shall attempt to invoke the normal rule of construction to the effect that ambiguities are to be resolved against the drafting party in any interpretation of this Agreement. 10.2 Attorneys' Fees. In the event that either party hereto commences litigation against the other to enforce such party's rights hereunder, the prevailing party shall be entitled to recover all costs, expenses and fees, including reasonable attorneys' fees (including in-house counsel), paralegals, fees, and legal assistants' fees through all appeals. 11. General. 11.1 No Brokers. Each of the parties to this Agreement represents and warrants to the other that it has not utilized the services of any finder, broker or agent. Each of the parties agrees to indemnify the other against any and all liabilities to any person, firm or corporation claiming any fee or commission of any kind on account of services rendered on behalf of such party in connection with the transactions contemplated by this Agreement. 11.2 Applicable Law. This document shall in all respects be governed by the laws of the State of Delaware. 11.3 Successor Obligations. The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume by written agreement and to agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. 5 11.4 Survival. The parties hereto agree that the covenants contained in Section 6 hereof shall survive any termination of employment by the Executive and any termination of this Agreement. 11.5 Assignability. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their respective heirs, personal representatives, successors and assigns. The obligations of the Executive however, may not be assigned, and the Executive may not, without the Company's written consent, assign, transfer, convey, pledge, encumber, hypothecate or otherwise dispose of this Agreement or any interest therein. Any such attempted assignment or disposition shall be null and void and without effect. Notwithstanding anything in this Section 11.5 to the contrary, the Company and the Executive agree that this Agreement and all of the Company's rights and obligations hereunder may be assigned or transferred by the Company to and may be assumed by and become binding upon and may inure to the benefit of any affiliate of or successor to the Company. The term "successor" shall mean, with respect to the Company or any of its subsidiaries, and any other corporation or other business entity which, by merger, consolidation, purchase of the assets, or otherwise, acquires all or a material part of the assets of the Company, including but not limited to HSCC. Any assignment by the Company of its rights and obligations hereunder to any affiliate of or successor shall not be considered a termination of employment for purposes of this Agreement. 11.6 Notices. Any and all notices required or desired to be given hereunder by any party shall be in writing and shall be validly given or made to another party if delivered either personally, by telex, facsimile transmission, same-day delivery service, overnight expedited delivery service, or if deposited in the United States Mail, certified or registered, postage prepaid, return receipt requested. If notice is served personally, notice shall be deemed effective upon receipt. If notice is served by telex or by facsimile transmission, notice shall be deemed effective upon transmission, provided that such notice is confirmed in writing by the sender within one (1) day after transmission. If notice is served by same day delivery service or overnight expedited delivery service, notice shall be deemed effective the day after it is sent, and if notice is given by United States mail, notice shall be deemed effective five (5) days after it is sent. In all instances, notice shall be sent to the parties at the following addresses: If to the Company: Celerity Systems, Inc. 146 Maryville Pike, Suite #201 Knoxville, TN 37920 Fax: 865-539-3502 Attention: Board of Directors With a copy to: Kirkpatrick & Lockhart Nicholson Graham LLP 201 South Biscayne Boulevard, 20th Floor Miami, FL 33131 Fax: 305-358-7095 Attention: Clayton Parker, Esq. If to the Executive: C. Thomas McMillen 1103 South Carolina Avenue, S.E. Washington, D.C. 20003 Fax: 202-546-1712 With a copy to: Ernest M. Stern Schiff Hardin LLP 1101 Connecticut Avenue Suite 600 Washington, D.C. 20031 Fax: 202-778-6460 6 Any party may change its address for the purpose of receiving notices by a written notice given to the other party. 11.7 Modifications or Amendments. No amendment, change or modification of this document shall be valid unless in writing and signed by all of the parties hereto. 11.8 Waiver. No reliance upon or waiver of one or more provisions of this Agreement shall constitute a waiver of any other provisions hereof. 11.9 Severability. If any provision of this Agreement as applied to either party or to any circumstances shall be adjudged by a court of competent jurisdiction to be void or unenforceable, the same shall in no way affect any other provision of this Agreement or the validity or enforceability of this Agreement. If any court construes any of the provisions to be unreasonable because of the duration of such provision or the geographic or other scope thereof, such court may reduce the duration or restrict the geographic or other scope of such provision and enforce such provision as so reduced or restricted. 11.10 Separate Counterparts; Signatures Transmitted Via Facsimile Machines. This document may be executed in one or more separate counterparts, each of which, when so executed, shall be deemed to be an original. Such counterparts shall, together, constitute and shall be one and the same instrument. This Agreement, and the counterparts thereto, may be executed by the parties using their respective signatures transmitted via facsimile machines. 11.11 Headings. The captions appearing at the commencement of the sections hereof are descriptive only and are for convenience of reference. Should there be any conflict between any such caption and the section at the head of which it appears, the substantive provisions of such section and not such caption shall control and govern in the construction of this document. 11.12 Further Assurances. Each of the parties hereto shall execute and deliver any and all additional papers, documents and other assurances, and shall do any and all acts and things reasonably necessary in connection with the performance of their obligations hereunder and to carry out the intent of the parties hereto. 7 11.13 Entire Agreement. This Agreement constitutes the entire understanding and agreement of the parties with respect to the subject matter of this Agreement, and any and all prior agreements or representations are hereby terminated and canceled in their entirety. [SIGNATURE PAGE FOLLOWS; REMAINDER OF PAGE INTENTIONALLY BLANK] 8 IN WITNESS WHEREOF, the parties hereto have caused this Executive Employment Agreement to be effective as of the Effective Date. THE COMPANY: CELERITY SYSTEMS, INC. By: -------------------------- Name: Title: THE EXECUTIVE: C. Thomas McMillen -----END PRIVACY-ENHANCED MESSAGE-----