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EXHIBIT 10.1
STOCK ELECTION AGREEMENT
STOCK ELECTION AGREEMENT, dated this 27th day of September, 2000, by
and among CHRISTOPHER J. WEILER and ALLAN OUTLAW (each, a "Stockholder" and,
collectively, the "Stockholders"), and U.S. TECHNOLOGIES INC., a Delaware
corporation ("USXX").
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"), and options, warrants or similar rights to acquire shares
(collectively, "Options") of On-Site Sourcing, Inc., a Delaware corporation
("ONSS"), 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 among USXX, USXX Acquisition
Corporation and ONSS (the "Merger Agreement"), USXX has requested that each of
the Stockholders agree, and each of the Stockholders have agreed, to forego
their right to receive Cash Consideration and agree to elect to receive solely
Stock Consideration for any Shares held by them as of the Effective Time;
AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties hereby agree as follows:
1. Agreement to Elect Stock Consideration. Each Stockholder
irrevocably agrees, for purposes of the Merger, to elect to
receive solely Stock Consideration in exchange for any shares
of ONSS Common Stock held by them as of the Effective Time of
the Merger. The election made hereby shall not be terminated
by any act of the Stockholder or by operation of law, or by
the occurrence of any other event or events.
2. 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, Options 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,
Options or any interest therein to any person, unless prior to
any such Transfer the transferee of such Shares, Options
agrees to be subject to the provisions of this Agreement.
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3. Representations and Warranties of the Stockholders. Each
Stockholder, as to such Stockholder, hereby represents and
warrants to, and covenants with, USXX as follows:
(a) The Stockholder beneficially owns the number of
Shares and Options 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 (other than
the Voting Agreement and Irrevocable Proxy of even
date herewith entered into in connection with the
Merger Agreement), options and adverse claims or
rights whatsoever, except as granted hereby or as
would have no adverse effect on this Agreement and/or
the election effected hereby. The Stockholder does
not own of record or beneficially any shares of
capital stock of ONSS or other securities
representing or convertible into shares of capital
stock of ONSS except as set forth in the preceding
sentence. Any Shares or Options acquired after the
date hereof by any Stockholder shall become subject
to this Agreement and the election made hereby;
(b) The Stockholder has the full right, power and
authority to enter into this Agreement and to make an
irrevocable election with respect to the Shares owed
by him; 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 and Options
owned by the Stockholder except as would, if
exercised, require such purchaser or acquiror to
abide by this Agreement and the election made hereby
with respect thereto;
(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;
(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
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shall remain true and correct.
4. Stockholders' Covenants. Each Stockholder shall not enter into
any agreement or take any action that would limit the rights
of any holder of the Shares to exercise fully the right to
receive Stock Consideration, that would be in conflict with
this Agreement or the election made hereby.
5. Severability. If any term, provision, covenant or restriction
of this Agreement is 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.
6. Assignment. This Agreement shall not be assigned or delegated
by any party hereto, except that USXX may transfer its rights
hereunder to any wholly-owned subsidiary of USXX, and except
that any assignment of any of the Shares and Options by any
Stockholder shall require that such Shares and Options remain
subject to this Agreement and the election made hereby. This
Agreement shall be binding upon and inure to the benefit of
USXX 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.
7. 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 USXX would be entitled, in the
event of a breach or a threatened breach of this Agreement by
any Stockholder, USXX 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.
8. 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.
9. 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.
10. 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.
11. Term. This Agreement shall terminate automatically, at the
conclusion of the
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Election Deadline or such other expiration or termination of
the Merger Agreement in accordance with its terms, 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.
12. Capitalized Terms. Capitalized terms used but not defined
herein shall have the meaning given to them in the Merger
Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement, on the
day and year first above written.
U.S. TECHNOLOGIES INC.
By: /s/ C. Gregory Earls
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Name: C. Gregory Earls
Title: Co-Chairman and Co-Chief Executive
Officer
/s/ Christopher J. Weiler
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Christopher J. Weiler
/s/ Allan Outlaw
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Allan Outlaw
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SCHEDULE A
<TABLE>
<CAPTION>
Stockholder Number of Shares Number of Options
----------- ---------------- -----------------
<S> <C> <C>
Christopher J. Weiler 362,000 79,225
Allan Outlaw 209,000 157,800
</TABLE>
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