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EXHIBIT 9.1
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
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the Stockholder's name on Schedule A hereto to vote, give
approvals, and receive 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
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on this Agreement and/or the proxy granted hereby.
The 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.
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7. 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.
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: /s/ Christopher J. Weiler
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Name: Christopher J. Weiler
Title: Chairman and Chief
Executive Officer
/s/ C. Gregory Earls
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C. Gregory Earls
/s/ James V. Warren
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James V. Warren
/s/ Jonathan Ledecky
------------------------------------
Jonathan Ledecky
NORTHWOOD VENTURES LLC
By: /s/ Henry T. Wilson
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Name: Henry T. Wilson
Title: Managing Director
NORTHWOOD CAPITAL PARTNERS LLC
By: /s/ Henry T. Wilson
---------------------------------
Name: Henry T. Wilson
Title: Managing Director
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SCHEDULE A
Stockholder Number of Shares
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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 On-Site Sourcing, Inc. 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: September 27, 2000 /s/ C. Gregory Earls
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C. Gregory Earls
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IRREVOCABLE PROXY AND POWER OF ATTORNEY
The undersigned appoints On-Site Sourcing, Inc. 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: September 27, 2000 /s/ James V. Warren
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James V. Warren
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IRREVOCABLE PROXY AND POWER OF ATTORNEY
The undersigned appoints On-Site Sourcing, Inc. 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: September 27, 2000 /s/ Jonathan Ledecky
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Jonathan Ledecky
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IRREVOCABLE PROXY AND POWER OF ATTORNEY
The undersigned appoints On-Site Sourcing, Inc. 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: September 27, 2000 NORTHWOOD CAPITAL PARTNERS LLC
By: /s/ Henry T. Wilson
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Name: Henry T. Wilson
Title: Managing Director
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