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ON-SITE SOURCING, INC.
VOTING AGREEMENT
VOTING AGREEMENT, dated this 27th day of September, 2000, by and between
ON-SITE SOURCING, INC., a Delaware corporation ("ONSS"), and C. Gregory Earls,
James V. Warren, Jonathan Ledecky, Northwood Ventures LLC and Northwood Capital
Partners LLC (each, a "Stockholder" and, collectively, the "Stockholders").
RECITALS:
WHEREAS, the Stockholders currently beneficially own (as such term is
used under the Securities Exchange Act of 1934, as amended, and the rules and
regulations issued thereunder) the shares of common stock, par value $0.01 per
share ("Shares"), of U.S. Technologies Inc., a Delaware corporation ("USXX"),
shown on Schedule A; and
WHEREAS, as a condition of entering into the Agreement and Plan of
Merger, made as of the date hereof, by and between USXX and ONSS (the "Merger
Agreement"), ONSS has requested that the Stockholders agree, and the
Stockholders have agreed (i) to enter into a voting agreement and (ii) to give
ONSS an irrevocable proxy, coupled with an interest, to vote the Shares held by
the Stockholders, in each case as more fully set forth herein;
AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties hereby agree as follows:
1. AGREEMENT TO VOTE SHARES. Each Stockholder agrees during the
term of this Agreement to vote, or cause to be voted, the Shares
shown opposite the Stockholder's name on Schedule A hereto and
any other Shares acquired after the date hereof, in person or by
proxy, in favor of any proposal presented to stockholders that
is reasonably necessary to consummate the Merger, including the
amendment to USXX' Restated Certificate of Incorporation ("the
Charter Amendment"), and, if any separate vote occurs, the
Merger (as defined in the Merger Agreement), the adoption and
approval of the Merger Agreement (without any material changes
thereto) and the approval of the transactions contemplated by
the Merger Agreement at every meeting of the stockholders of
USXX at which such matters are considered and at every
adjournment thereof.
2. GRANT OF IRREVOCABLE PROXY. Each Stockholder hereby grants to
ONSS an irrevocable proxy, which proxy is coupled with an
interest because of the consideration recited herein, to
exercise, at any time and from time to time, all rights and
powers of the Stockholder with respect to the Shares shown
opposite the Stockholder's name on Schedule A hereto to vote,
give approvals, and receive
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and waive notices of meetings for purposes of securing the
approval and adoption by the stockholders of USXX of the Merger
Agreement (without any material changes thereto) and the
consummation of the transactions contemplated thereby and to
prevent any action that would prevent or hinder in any material
respect such approval or consummation. By giving this proxy,
each Stockholder hereby revokes any other proxy granted by the
Stockholder to vote on any of the Shares in a manner
inconsistent with the foregoing grant. The power and authority
hereby conferred shall not be terminated by any act of the
Stockholder or by operation of law, by the dissolution of, by
lack of appropriate power of authority, or by the occurrence of
any other event or events and shall be binding upon all of its
successors and assigns.
3. NO OTHER GRANT OF PROXY. Except for (i) the Proxy Agreement
dated, April 12, 2000, by and among, USV, James V. Warren and C.
Gregory Earls and (ii) the Voting Agreement dated, April 12,
2000, by and among, E2E, USXX, USV, James V. Warren, Northwood
Ventures LLC, Northwood Capital Partners LLC and Jonathan
Ledecky, each Stockholder will not, directly or indirectly,
grant any proxies or powers of attorney with respect to the
Shares shown opposite the Stockholder's name on Schedule A
hereto or acquired after the date hereof to any person in
connection with its vote, consent or other approval sought, in
favor of the Merger (as defined in the Merger Agreement), the
adoption and approval of the Merger Agreement and the approval
of the transactions contemplated by the Merger Agreement, other
than as set forth in Sections 1 and 2 hereof.
4. TRANSFERS. Each Stockholder will not, nor will such Stockholder
permit any entity under such Stockholder's control to, sell,
transfer, pledge, assign or otherwise dispose of (including by
gift) (collectively, "Transfer"), or consent to any Transfer of,
any Shares or any interest therein or enter into any contract,
option or other agreement or arrangement (including any profit
sharing or other derivative arrangement) with respect to the
Transfer of, any Shares or any interest therein to any person,
unless prior to any such Transfer the transferee of such Shares
agrees to be subject to the provisions of this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. Each
Stockholder, as to such Stockholder, hereby represents and
warrants to, and covenants with, ONSS as follows:
(a) The Stockholder beneficially owns with power to vote the
number of Shares shown opposite the Stockholder's name
on Schedule A free and clear of any and all liens,
charges, encumbrances, covenants, conditions,
restrictions, voting trust arrangements, options and
adverse claims or rights whatsoever, except as granted
hereby or as would have no adverse effect on this
Agreement and/or the proxy granted hereby. The
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Stockholder does not own of record or beneficially any
shares of capital stock of USXX or other securities
representing or convertible into shares of capital stock
of USXX except as set forth in the preceding sentence;
(b) The Stockholder has the full right, power and authority
to enter into this Agreement and to grant an irrevocable
proxy to ONSS with respect to the Shares; there are no
options, warrants, calls, commitments or agreements of
any nature whatsoever pursuant to which any person will
have the right to purchase or otherwise acquire the
Shares owned by the Stockholder except as would, if
exercised, require such purchaser or acquiror to abide
by this Agreement and the proxy granted hereby with
respect thereto; except as provided in this Agreement,
the Stockholder has not granted or agreed to grant any
proxy or entered into any voting trust, vote pooling or
other agreement with respect to the right to vote or
give consents or approvals of any kind and as to the
Shares which proxy, trust, pooling or other agreement
remains in effect as of the date hereof and is in
conflict with this Agreement or the proxy granted
hereby;
(c) The Stockholder is not a party to, subject to or bound
by any agreement or judgment, order, writ, prohibition,
injunction or decree of any court or other governmental
body that would prevent the execution, delivery or
performance of this Agreement by the Stockholder or the
exercise of proxy rights by ONSS with respect to the
Shares;
(d) This Agreement has been duly and validly executed and
delivered by the Stockholder and constitutes a legal,
valid and binding obligation of the Stockholder,
enforceable in accordance with its terms, subject only
to (i) the effect of bankruptcy, insolvency,
reorganization or moratorium laws or other laws
generally affecting the enforceability of creditors'
rights and (ii) general equitable principles which may
limit the right to obtain specific performance or other
equitable remedies; and
(e) The Stockholder will take all commercially reasonable
action necessary in order that its representations and
warranties set forth in this Agreement shall remain true
and correct.
6. STOCKHOLDERS' COVENANTS. Each Stockholder shall not enter into
any voting trust agreement, give any proxy or other right to
vote the Shares or take any action that would limit the rights
of any holder of the Shares to exercise fully the right to vote
such Shares that would be in conflict with this Agreement or the
proxy granted hereby.
7. SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is
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held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force
and effect and shall in no way be affected, impaired or
invalidated.
8. ASSIGNMENT. Except as otherwise provided in Section 4, this
Agreement shall not be assigned or delegated by any party
hereto, except that any assignment of any of the Shares by any
Stockholder shall require that such Shares remain subject to
this Agreement and the proxy granted hereby. This Agreement
shall be binding upon and inure to the benefit of ONSS and its
successors and assigns and shall be binding upon and inure to
the benefit of the Stockholders and their permitted successors
and any permitted assigns.
9. SPECIFIC PERFORMANCE. The parties hereto acknowledge that
damages would be an inadequate remedy for a breach of this
Agreement and that the obligations of the parties hereto shall
be specifically enforceable. In addition to any other legal or
equitable remedies to which ONSS would be entitled, in the event
of a breach or a threatened breach of this Agreement by any
Stockholder, ONSS shall have the right to obtain equitable
relief, including (but not limited to) an injunction or order of
specific performance of the terms hereof from a court of
competent jurisdiction.
10. AMENDMENTS. This Agreement may not be modified, amended, altered
or supplemented except upon the execution and delivery of a
written agreement executed by all of the parties hereto.
11. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed
given if delivered personally, by cable, telegram or telex, or
mailed by a party hereto by registered or certified mail (return
receipt requested) or by a nationally recognized overnight mail
delivery service, to other party at the following addresses (or
such other address for a party as shall be specified by like
notice):
If to ONSS: c/o On-Site Sourcing, Inc.
1111 North 19th Street, Sixth Floor
Arlington, VA 22209
Attn: Christopher J. Weiler
Fax No.: (703)276-8607
with a copy to: King & Spalding
1730 Pennsylvania Avenue, NW
Washington, D.C. 20006-4707
Attn: Glenn C. Campbell, Esq.
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Fax No.: (202) 626-3737
if to any Stockholder,
to such Stockholder:
U.S. Technologies Inc.
1130 Connecticut Avenue, NW, Suite 700
Washington, D.C. 20036
Attn: C. Gregory Earls
Co-Chairman and Co-Chief Executive Officer
Fax No.: (202) 466-4557
with a copy to: Fleischman and Walsh, L.L.P.
1400 Sixteenth Street, NW, 6th Floor
Washington, D.C. 20036
Attn: Stephen A. Bouchard, Esq.
Fax No.: (202) 265-5706
Any party may change its address for notice by notice so given.
12. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware
regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws.
13. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of
which together shall constitute one and the same agreement.
14. TERM. This Agreement and the proxy granted herein shall
terminate automatically, upon the consummation of the Merger in
accordance with and as defined in the Merger Agreement or such
other expiration or termination of the Merger Agreement in
accordance with its terms (including, without limitation,
termination in accordance with Section 8.2(i) of the Merger
Agreement on March 31, 2001 if the closing has not occurred
prior thereto and on June 30, 2001 if the closing has not
occurred by such date because the conditions precedent to the
closing set forth in Section 7.2(h) have not been fulfilled),
and thereafter this Agreement shall be of no further force or
effect and there shall be no liability on the part of any party
with respect thereto except nothing herein will relieve any
party from liability for any prior breach hereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, ONSS has caused this Agreement to be duly executed, and each
Stockholder has duly executed this Agreement, on the day and year first above
written.
ON-SITE SOURCING, INC.,
By:
--------------------------------
Name: Christopher J. Weiler
Title: Chairman and Chief
Executive Officer
-----------------------------------
C. Gregory Earls
-----------------------------------
James V. Warren
-----------------------------------
Jonathan Ledecky
NORTHWOOD VENTURES LLC
By:
--------------------------------
Name: Henry T. Wilson
Title: Managing Director
NORTHWOOD CAPITAL PARTNERS LLC
By:
--------------------------------
Name: Henry T. Wilson
Title: Managing Director
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SCHEDULE A
Stockholder Number of Shares
----------- ----------------
C. Gregory Earls(1) 6,663,660 shares of Common Stock.
593,500 shares of Series A Stock,
convertible into 48,647,533 shares of
Common Stock.
2,120 share of Series C Stock,
convertible into 1,462,068 shares of
Common Stock
James V. Warren 6,357,152 share of Common Stock
Jonathan Ledecky 52,641.81 shares of Series B Stock,
convertible into 26,320,925 shares of
Common Stock
Northwood Ventures LLC 49,656.77 shares of Series B Stock,
convertible into 24,828,385 shares of
Common Stock
Northwood Capital Partners LLC 7,094.17 shares
of Series B Stock, convertible into
3,547,085 shares of common stock
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(1) The amount shown includes: 6,266,660 shares of common stock held
directly by USV Partners LLC; and 297,000 shares of common stock owned directly
by Equitable Production Funding, Inc., of which Mr. Earls is the majority owner.
Of the amount shown, 564,340 shares of the Series A Stock and all 2,120 shares
of the Series C Stock are held directly by USV. For purposes of Rule 13d-3 of
the Securities Exchange Act of 1934, Mr. Earls is deemed to be the beneficial
owner of all the shares owned by USV and Equitable Production Funding, Inc.
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IRREVOCABLE PROXY AND POWER OF ATTORNEY
The undersigned appoints ______________________ as the undersigned's
attorney-in fact and proxy, with full power of substitution, for and in the
undersigned's name, to in favor of any proposal presented to stockholders that
is reasonably necessary to consummate the Merger, including the amendment to the
U.S. Technologies Inc. Restated Certificate of Incorporation ("the Charter
Amendment"), and, if any separate vote occurs, the Merger (as defined in the
Merger Agreement), the adoption and approval of the Merger Agreement (without
any material changes thereto) and the approval of the transactions contemplated
by the thereby with respect to all of the shares of Common Stock, par value
$0.01 per share, of U.S. Technologies Inc., a Delaware corporation, owned of
record by the undersigned.
The proxy granted hereby shall be irrevocable and may be exercised at
any meeting of stockholders at which the Charter Amendment or Merger Agreement
is considered, notice of which is given or in respect of any written consent
which is solicited prior to the due and proper termination of, and subject to
and in accordance with the terms and conditions of, the letter agreement, dated
of even date herewith, among the undersigned, U.S. Technologies Inc. and On-
Site Sourcing, Inc. This proxy is coupled with an interest sufficient in law to
support such proxy. This proxy shall terminate automatically and shall have no
further force or effect upon the consummation of the Merger or the termination
of the Merger Agreement, in each case in accordance with the terms of the Merger
Agreement
Dated: , 2000
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C. Gregory Earls
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IRREVOCABLE PROXY AND POWER OF ATTORNEY
The undersigned appoints ______________________ as the undersigned's
attorney-in fact and proxy, with full power of substitution, for and in the
undersigned's name, to in favor of any proposal presented to stockholders that
is reasonably necessary to consummate the Merger, including the amendment to the
U.S. Technologies Inc. Restated Certificate of Incorporation ("the Charter
Amendment"), and, if any separate vote occurs, the Merger (as defined in the
Merger Agreement), the adoption and approval of the Merger Agreement (without
any material changes thereto) and the approval of the transactions contemplated
by the thereby with respect to all of the shares of Common Stock, par value
$0.01 per share, of U.S. Technologies Inc., a Delaware corporation, owned of
record by the undersigned.
The proxy granted hereby shall be irrevocable and may be exercised at
any meeting of stockholders at which the Charter Amendment or Merger Agreement
is considered, notice of which is given or in respect of any written consent
which is solicited prior to the due and proper termination of, and subject to
and in accordance with the terms and conditions of, the letter agreement, dated
of even date herewith, among the undersigned, U.S. Technologies Inc. and On-
Site Sourcing, Inc. This proxy is coupled with an interest sufficient in law to
support such proxy. This proxy shall terminate automatically and shall have no
further force or effect upon the consummation of the Merger or the termination
of the Merger Agreement, in each case in accordance with the terms of the Merger
Agreement
Dated: , 2000
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James V. Warren
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IRREVOCABLE PROXY AND POWER OF ATTORNEY
The undersigned appoints ______________________ as the undersigned's
attorney-in fact and proxy, with full power of substitution, for and in the
undersigned's name, to in favor of any proposal presented to stockholders that
is reasonably necessary to consummate the Merger, including the amendment to the
U.S. Technologies Inc. Restated Certificate of Incorporation ("the Charter
Amendment"), and, if any separate vote occurs, the Merger (as defined in the
Merger Agreement), the adoption and approval of the Merger Agreement (without
any material changes thereto) and the approval of the transactions contemplated
by the thereby with respect to all of the shares of Common Stock, par value
$0.01 per share, of U.S. Technologies Inc., a Delaware corporation, owned of
record by the undersigned.
The proxy granted hereby shall be irrevocable and may be exercised at
any meeting of stockholders at which the Charter Amendment or Merger Agreement
is considered, notice of which is given or in respect of any written consent
which is solicited prior to the due and proper termination of, and subject to
and in accordance with the terms and conditions of, the letter agreement, dated
of even date herewith, among the undersigned, U.S. Technologies Inc. and On-
Site Sourcing, Inc. This proxy is coupled with an interest sufficient in law to
support such proxy. This proxy shall terminate automatically and shall have no
further force or effect upon the consummation of the Merger or the termination
of the Merger Agreement, in each case in accordance with the terms of the Merger
Agreement
Dated: , 2000
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Jonathan Ledecky
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IRREVOCABLE PROXY AND POWER OF ATTORNEY
The undersigned appoints ______________________ as the undersigned's
attorney-in fact and proxy, with full power of substitution, for and in the
undersigned's name, to in favor of any proposal presented to stockholders that
is reasonably necessary to consummate the Merger, including the amendment to the
U.S. Technologies Inc. Restated Certificate of Incorporation ("the Charter
Amendment"), and, if any separate vote occurs, the Merger (as defined in the
Merger Agreement), the adoption and approval of the Merger Agreement (without
any material changes thereto) and the approval of the transactions contemplated
by the thereby with respect to all of the shares of Common Stock, par value
$0.01 per share, of U.S. Technologies Inc., a Delaware corporation, owned of
record by the undersigned.
The proxy granted hereby shall be irrevocable and may be exercised at
any meeting of stockholders at which the Charter Amendment or Merger Agreement
is considered, notice of which is given or in respect of any written consent
which is solicited prior to the due and proper termination of, and subject to
and in accordance with the terms and conditions of, the letter agreement, dated
of even date herewith, among the undersigned, U.S. Technologies Inc. and On-
Site Sourcing, Inc. This proxy is coupled with an interest sufficient in law to
support such proxy. This proxy shall terminate automatically and shall have no
further force or effect upon the consummation of the Merger or the termination
of the Merger Agreement, in each case in accordance with the terms of the Merger
Agreement
Dated: , 2000 NORTHWOOD CAPITAL PARTNERS LLC
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By:
---------------------------------
Name: Henry T. Wilson
Title: Managing Director
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