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EXHIBIT 2.4
VOTING AGREEMENT AND PROXY
THIS VOTING AGREEMENT (the "Agreement") is made as of this 12th day of
April, 2000, by and among USV Partners, LLC, a Delaware limited liability
company ("USV"), Xxxxx X. Xxxxxx ("Xxxxxx") and C. Xxxxxxx Xxxxx ("Earls"), in
favor of those persons (the "E2E Stockholders") who will own all of the issued
and outstanding shares of capital stock of E2Enet, Inc. ("E2E") at or prior to
the closing of the merger contemplated by the Stock Exchange Agreement dated as
of February 21, 2000, as amended by the Amendment to Stock Exchange Agreement
dated as of April 5, 2000, among E2E, U.S. Technologies Inc. (the "Company"),
U.S. Technologies Acquisition Sub, Inc. and the E2E Stockholders (as amended,
the "Stock Exchange Agreement").
RECITALS
WHEREAS, each of USV and Xxxxxx 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, pursuant to the Stock Exchange Agreement, the Company is
issuing to the E2E Stockholders at the closing of the merger contemplated
therein (the "Closing") shares of the Series B Convertible Preferred Stock of
the Company, par value $0.02 per share (the "Series B Stock");
WHEREAS, as a condition to the Closing, the Company is raising
additional capital of at least $6,250,000, for which the Company will issue at
or following the Closing shares of its Series C Convertible Preferred Stock,
par value $0.02 per share (the "Series C Stock"), and additional shares of the
Series A Stock;
WHEREAS, it is contemplated in connection with the Stock Exchange
Agreement that the Series A Stock, Series B Stock, and Series C Stock will
convert automatically into shares of Common Stock (pursuant to the terms of
their respective certificates of designations) upon the availability of
authorized Common Stock for conversion;
WHEREAS, the Stock Exchange Agreement requires the Company, as
promptly as practicable after the Closing, to hold an annual meeting of its
shareholders to consider and vote on, among other things, amendment of the
Company's Restated Certificate of Incorporation dated December 3 1997, to
increase the number of shares of authorized Common Stock (the "Charter
Amendment"), which will enable the automatic conversion of the Series A Stock,
Series B Stock and Series C Stock into Common Stock;
WHEREAS, USV and Xxxxxx desire to vote for the Charter Amendment,
subject to the terms and conditions set forth herein; and
WHEREAS, USV, Xxxxxx and Earls desire to enter into an agreement to be
specifically enforceable against each of them pursuant to which they agree to
take the actions specified herein.
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NOW, THEREFORE, in consideration of the foregoing and the terms and
conditions set forth herein, USV, Xxxxxx and Earls agree as follows:
1. Voting Agreement. Each of USV and Xxxxxx agrees at the next duly
called shareholders' meeting of the Company called to consider, among other
things, approval of the Charter Amendment to vote any and all of its or his
shares of Common Stock, shares of Series A Stock, shares of Common Stock
issuable upon exercise of the Warrants and upon conversion of the Series A
Stock and other shares of capital stock and other securities of the Company,
whether now owned or hereafter acquired (the "Voting Shares"), in favor of the
Charter Amendment.
2. Irrevocable Proxy. In order to insure the voting of USV and Xxxxxx in
accordance with this Agreement, each of USV and Xxxxxx agrees to execute an
irrevocable proxy simultaneously with the execution hereof in the form of
Exhibit A attached hereto granting to Earls the right to vote, or to execute
and deliver shareholder written consents, in respect of all of its or his
Voting Shares. It is understood and agreed that such irrevocable proxy relates
solely to voting in favor of the Charter Amendment.
3. Changes in Common Stock. 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.
4. Representations of USV and Xxxxxx. Each of USV and Xxxxxx hereby
represents and warrants that (a) it or he is the record owner as of the date
hereof and owns and has the right to vote the number of Voting Shares set forth
opposite its or his name on Exhibit B attached hereto, (b) such number of
Voting Shares set forth opposite its or his name on Exhibit B constitutes all
of the shares of capital stock and other securities of the Company held by it
or him as of the date hereof, (c) it or he has full power to enter into this
Agreement and has not, prior to the date of this Agreement, executed or
delivered any proxy or entered into any other voting agreement or similar
arrangement other than one which has expired or terminated prior to the date
hereof or which is superseded by this Agreement and the irrevocable proxy
granted hereunder, and (d) it or he will not take any action inconsistent with
the purpose and provisions of this Agreement.
5. Enforceability. Each of USV, Xxxxxx and Earls expressly agrees that
this Agreement shall be specifically enforceable in any court of competent
jurisdiction in accordance with its terms against each of the parties hereto.
6. Termination. This Agreement shall terminate and be void and of no
effect upon shareholder approval of the Charter Amendment.
7. Indemnification. Each of USV and Xxxxxx hereby agrees jointly and
severally to indemnify, defend and hold harmless Earls from any and all claims,
liabilities, obligations or expenses he incurs (including attorneys' fees and
expenses) in connection with his being
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designated as and his actions in connection with carrying out his duties as
proxy for USV and Xxxxxx.
9. Proxy Holder. Earls hereby agrees to act as proxy for USV and Xxxxxx
subject to the terms and conditions set forth herein.
10. General Provisions.
(a) Other than the E2E Stockholders, this Agreement is intended for
the benefit of the Company, USV, Xxxxxx and Earls and their respective
successors and permitted assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other person.
(b) This Agreement and the rights of the parties hereunder 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.
(c) 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.
(d) If any provision of this Agreement shall be declared void or
unenforceable by any court or administrative board of competent jurisdiction,
such provision shall be deemed to have been severed from the remainder of this
Agreement and this Agreement shall continue in all respects to be valid and
enforceable.
(e) No waivers of any breach of this Agreement extended by any party
hereto to any other party shall be construed as a waiver of any rights or
remedies of any other party hereto or with respect to any subsequent breach.
(f) Whenever the context of this Agreement shall so require, the use
of the singular number shall include the plural and the use of any gender shall
include all genders.
IN WITNESS WHEREOF, USV, Xxxxxx and Earls have executed this Agreement
as of the date first written above.
USV PARTNERS, LLC /s/ Xxxxx X. Xxxxxx
By: USV MANAGEMENT, LLC -----------------------------------
XXXXX X. XXXXXX
By: /s/ C. Xxxxxxx Xxxxx /s/ C. Xxxxxxx Xxxxx
--------------------------------- -----------------------------------
C. Xxxxxxx Xxxxx C. XXXXXXX XXXXX
Sole Member
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EXHIBIT A
IRREVOCABLE PROXY
U.S. TECHNOLOGIES INC.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned (hereinafter referred
to as the "Shareholder"), agrees to and does hereby grant and convey to C.
Xxxxxxx Xxxxx an irrevocable proxy pursuant to the provisions of Section 212 of
the Delaware General Corporation Law to vote, or to execute and deliver written
consents or otherwise act with respect to, all of the Voting Shares of the
Shareholder in accordance with the terms of that certain Voting Agreement made
as of ___________, 2000, among the Shareholder, certain other shareholders of
the Company and C. Xxxxxxx Xxxxx (the "Voting Agreement") in connection with
the Charter Amendment. All capitalized terms used herein and not otherwise
defined shall have the respective meanings given to them in the Voting
Agreement. The Shareholder hereby affirms that this Proxy is given as a
condition of the Voting Agreement and as such is coupled with an interest and
is irrevocable.
It is further directed by the Shareholder that this Proxy shall be
exercised by C. Xxxxxxx Xxxxx at the Company's next duly called annual or
special shareholders' meeting (the "Meeting"), and any adjournments thereof,
which considers the approval of the Charter Amendment by his voting the shares
represented hereby in accordance with the terms of the Voting Agreement. This
Proxy shall expire simultaneously with the termination of the Voting Agreement.
DATED this__________ day of _______________, 2000.
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Signature
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Print Name
INSTRUCTIONS: Print full legal name in the space provided. Sign exactly as
name is printed below signature line. When stock is issued
in two or more names, all should sign. If signing as attorney,
administrator, executor, trustee, guardian or other fiduciary,
give full title as such. A corporation should sign by
authorized officer.
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EXHIBIT B
VOTING SHARES
Shareholder Shares Held
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USV PARTNERS, LLC 500,000 SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION
OF WARRANT
625,000 SHARES OF SERIES A PREFERRED CONVERTIBLE STOCK
6,366,152 SHARES OF COMMON STOCK
XXXXX X. XXXXXX 1,500,000 SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
OF OPTIONS
6,318,652 SHARES OF COMMON STOCK
