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EXHIBIT 2.3
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is made as of this
12th day of April, 2000, by and among U.S. Technologies Inc., a Delaware
corporation (the "Company"), USV Partners, LLC, a Delaware limited liability
company ("USV"), James V. Warren ("Warren"), Northwood Ventures LLC, a New York
limited liability company ("Northwood Ventures"), Northwood Capital Partners
LLC, a New York limited liability company ("Northwood Capital") and Jonathan J.
Ledecky ("Ledecky") (USV, Warren, Northwood Ventures, Northwood Capital and
Ledecky hereinafter referred to collectively as the "Shareholders").
RECITALS
WHEREAS, each of USV and Warren is the owner of certain
shares of the Company's common stock, par value $0.02 per share (the "Common
Stock"), the Company's Series A Convertible Preferred Stock, par value $0.02
per share (the "Series A Stock"), and/or warrants (the "Warrants") to purchase
shares (subject to adjustment pursuant to the terms thereof) of the Common
Stock;
WHEREAS, the Company has entered into a Stock Exchange
Agreement dated as of February 21, 2000, as amended by the Amendment to Stock
Exchange Agreement dated as of April 5, 2000 (together, the "Stock Exchange
Agreement"), with E2Enet, Inc. ("E2E"), U.S. Technologies Acquisition Sub, Inc.
and those persons (including Northwood Capital, Northwood Ventures and Ledecky)
who as of the closing of the merger contemplated therein (the "Closing") will
own, collectively, all of the issued and outstanding shares of the capital
stock of E2E (the "E2E Stockholders");
WHEREAS, pursuant to the Stock Exchange Agreement, the
Company is issuing to the E2E Stockholders at the Closing shares of the
Company's Series B Convertible Preferred Stock, par value $0.02 per share (the
"Series B Stock"), of which the majority will be owned, collectively, by
Northwood Capital, Northwood Ventures and Ledecky;
WHEREAS, the execution and delivery of this Agreement,
setting forth the agreement of the parties hereto with respect to the size and
composition of the Board of Directors of the Company (the "Board"), is a
condition to the Closing;
WHEREAS, the restated bylaws of the Company provide that the
Board shall consist of not less than one (1) nor more than fifteen (15)
members, and provides that the number of directors shall be determined by
resolution of the Board or by the shareholders of the Company at an annual
meeting; and
WHEREAS, the Shareholders desire to set forth their agreement
with respect to the designation of nominees to be elected to the Board and the
voting of shares of the Company's capital stock in the election of directors,
as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth herein, the Company and the Shareholders hereby agree as
follows:
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1. SHARES SUBJECT TO AGREEMENT. Each Shareholder agrees to hold all of
its or his shares of Common Stock, Series A Stock, Series B Stock, Common Stock
issuable upon exercise of the Warrants and upon conversion of the Series A
Stock and Series B Stock, and any and all securities of the Company legally or
beneficially acquired by each of the Shareholders after the date hereof
(hereinafter referred to as the "Voting Shares") subject to, and to vote the
Voting Shares in accordance with, the provisions of this Agreement.
2. BOARD OF DIRECTORS.
(a) Each of the Shareholders hereby agrees to vote all of its or
his Voting Shares and to take all other necessary or desirable actions within
its or his control, and the Company hereby agrees to take all necessary and
desirable actions within its control (including, without limitation, calling
special meetings of the Board and of its shareholders), so that: (i) the number
of directors on the Board shall be established at eight (8) directors; and (ii)
such Board shall be composed of (A) four (4) directors designated by USV,
including C. Gregory Earls as Chairman and Chief Executive Officer of the
Company; (B) two (2) directors designated by Ledecky; and (C) two (2) directors
designated by Northwood Ventures and Northwood Capital.
(b) The obligations of the Shareholders pursuant to this Section
2 shall include the shareholder vote, if any, to amend the Certificate of
Incorporation or Bylaws of the Company currently in effect as required to
effect the intent of this Agreement. In the event any director elected pursuant
to the terms hereof ceases to serve as a member of the Board, the Company and
the Shareholders agree to take all such action as is reasonable and necessary,
including the voting of Voting Shares by the Shareholders, to cause the
election or appointment of such other substitute person to the Board as may be
designated in accordance with the terms of this Agreement. The Company shall
promptly give the Shareholders written notice of any election to or appointment
of, or change in the composition of, the Board. Each of the Shareholders and
the Company agrees not to take any actions which would materially and adversely
affect the provisions of this Agreement and the intention of the parties with
respect to the composition of the Board as herein stated.
(c) Each of the Shareholders and the Company represents that it or
he has not granted and is not a party to any proxy, voting agreement or similar
arrangement which is inconsistent with or conflicts with the provisions of this
Agreement, and no holder of Voting Shares shall grant any proxy or become party
to any voting agreement or similar arrangement which is inconsistent with or
conflicts with the provisions of this Agreement.
3. TERMINATION. Unless earlier terminated by written agreement of the
Shareholders that have rights and obligations hereunder, this Agreement shall
terminate upon the third (3rd) anniversary hereof (it being agreed that no
Shareholder shall have any rights or obligations hereunder once such
Shareholder shall have sold at least half of the Voting Shares owned by it or
him immediately following the Closing).
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4. SUCCESSORS IN INTEREST.
(a) The provisions of this Agreement shall be binding upon all
transferees or assignees of the Voting Shares; provided, however, that
transferees or assignees that acquire Voting Shares through open-market,
non-negotiated transactions shall not be subject to the provisions of this
Agreement. The Company shall not permit the transfer of any of the Voting
Shares on its books or issue a new certificate representing any of the Voting
Shares unless and until the person to whom such security is to be transferred
shall have executed a written agreement, substantially in the form of this
Agreement, pursuant to which such person becomes a party to this Agreement and
agrees to be bound by all the provisions hereof as if such person were a
Shareholder on the date hereof; provided, however, that transferees or
assignees that acquire Voting Shares through open-market, non-negotiated
transactions shall not be subject to the provisions of this Agreement.
(b) In addition to any other legends that are required, either by
agreement or by federal or state securities laws, each certificate representing
any of the Voting Shares shall be marked by the Company with a legend reading
as follows:
THE SHARES EVIDENCED HEREBY ARE SUBJECT TO THE TERMS AND CONDITIONS OF A
VOTING AGREEMENT DATED AS OF _________________, 2000, BY AND AMONG U.S.
TECHNOLOGIES INC. AND CERTAIN HOLDERS OF THE OUTSTANDING CAPITAL STOCK OF
SUCH CORPORATION (A COPY OF WHICH MAY BE OBTAINED FROM SUCH CORPORATION).
BY ACCEPTING ANY INTEREST IN SUCH SHARES, THE PERSON HOLDING SUCH INTEREST
SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL OF THE
PROVISIONS OF SUCH AGREEMENT.
5. ENFORCEABILITY. Each of the Shareholders and the Company expressly
agrees that this Agreement shall be specifically enforceable in any court of
competent jurisdiction in accordance with its terms.
6. NOTICES. All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by registered or certified
mail, postage prepaid, return receipt requested, or otherwise delivered by hand
or by messenger or sent by facsimile, addressed:
(a) if to the Company, to:
U.S. Technologies Inc.
c/o U.S. Viewing Corporation
2001 Pennsylvania Avenue, NW
Suite 675
Washington, DC 20006
Attn: C. Gregory Earls
Telephone: 202-466-3100
Facsimile: 202-466-4557
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(b) if to USV, to:
USV Partners, LLC
c/o U.S. Viewing Corporation
2001 Pennsylvania Avenue, N.W., Suite 675
Washington, D.C. 20006
Attn: C. Gregory Earls
Telephone: (202) 466-3100
Facsimile: (202) 466-4557
(c) if to Warren, to:
James V. Warren
c/o U.S. Technologies Inc.
6525 The Corners Parkway, Suite 300
Norcross, Georgia 30092
Telephone: (770) 613-0322
Facsimile: (770) 662-5228
(d) if to Northwood Ventures, to:
Northwood Ventures LLC
485 Underhill Boulevard, Suite 205
Syosset, NY 11791
Attn: Henry T. Wilson
Telephone: 516-364-5544
Facsimile: 516-364-0879
(e) if to Northwood Capital, to:
Northwood Capital Partners LLC
485 Underhill Boulevard, Suite 205
Syosset, NY 11791
Attn: Henry T. Wilson
Telephone: 516-364-5544
Facsimile: 516-364-0879
(f) if to Ledecky, to:
Jonathan J. Ledecky
1400 34th Street, N.W.
Washington, D.C. 20007
Telephone: 202-965-2020
Facsimile: 202-342-9090
or to such other address as any such party shall have furnished to the other
parties hereto in accordance with this Section 6. If notice is provided by
mail, notice shall be deemed to be given five (5) days following proper deposit
with the United States mail. If notice is delivered by hand or by messenger or
sent by facsimile, notice shall be deemed to be given upon receipt.
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7. DELAYS IN EXERCISING RIGHTS. No delay in exercising or failure to
exercise any right, power or remedy accruing to any party hereto upon any
breach or default of any other party under this Agreement shall impair any such
right, power or remedy, nor shall it be construed to be a waiver of any such
breach or default or an acquiescence therein, or of any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party hereto of any breach or default under this
Agreement, or any waiver on the part of any party hereto of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing or as provided in this
Agreement. All remedies, either under this Agreement or by law or otherwise
afforded to any party hereto, shall be cumulative and not alternative.
8. COUNTERPARTS. This Agreement may be executed in one or more
counterparts (including by facsimile), each of which shall constitute an
original enforceable against the party actually executing such counterpart, and
all of which together shall constitute one and the same instrument.
9. ADDITIONAL SHARES. In the event that subsequent to the date of this
Agreement any shares of capital stock or other securities of the Company are
issued on or in exchange for any of the Voting Shares by reason of any stock
dividend, stock split, consolidation of shares, reclassification or
consolidation involving the Company, such shares or other securities shall be
deemed to be covered by and subject to the terms of this Agreement.
10. SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement will continue in full force and effect
without said provision, and the parties hereto agree to replace such provision
with a valid and enforceable provision that will achieve, to the extent
possible, the economic, business and other purposes of such provisions.
11. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to its
principles of choice of law or conflict of laws.
12. ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between any and among all of the parties hereto
regarding the subject matter hereof and supersedes all prior agreements with
regard to the subject matter hereof. Without limiting the generality of the
foregoing, each of the Company, USV and Warren hereby acknowledges and agrees
that this Agreement supersedes all prior agreements between any or among all of
the Company, USV and Warren (whether pursuant to the Investment Agreement dated
as of July 16, 1998, between the Company and USV, pursuant to the Management
Agreement dated as of November 29, 1999, among the Company, Warren and J.L.
(Skip) Moore, or otherwise) with regard to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this
Voting Agreement as of the date first written above.
U.S. TECHNOLOGIES INC. USV PARTNERS, LLC
By: USV Management, LLC
By: /s/ C. Gregory Earls By: /s/ C. Gregory Earls
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C. Gregory Earls, Co-Chairman C. Gregory Earls, Sole Member
and Co-Chief Executive Officer
NORTHWOOD VENTURES LLC NORTHWOOD CAPITAL PARTNERS LLC
By: /s/ Henry T. Wilson By: /s/ Henry T. Wilson
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Henry T. Wilson, Managing Director Henry T. Wilson, Managing Director
/s/ James V. Warren /s/ Jonathan J. Ledecky
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JAMES V. WARREN JONATHAN J. LEDECKY