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EXHIBIT 10.18
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT is made and entered into as of July
20, 2001, by and between USV Partners, L.L.C., a Delaware limited liability
company ("Buyer"), and each party listed as a Seller on Schedule 1 hereto (each
a "Seller" and together "Sellers").
RECITALS
Sellers own the shares of the issued and outstanding Series F Preferred
Stock (the "Shares") of U.S. Technologies, Inc., a Delaware corporation (the
"Company"), as indicated on Schedule 1 hereto (together, the "Securities").
Buyer desires to purchase from Sellers, and Sellers desire to sell to Buyer the
Securities.
AGREEMENTS
In consideration of the premises and of the agreements set forth
herein, and intending to be legally bound, the parties agree as follows:
SECTION 1. PURCHASE AND SALE
1.1 Purchase and Sale of Securities. In consideration of the
Purchase Price described below in Section 1.2, each Seller hereby agrees to
sell, assign, convey and deliver all of the Securities owned by such Seller
(together with and subject to any and all agreements associated therewith,
including under or entered into as of the closing of the Agreement and Plan of
Merger Among U.S. Technologies Inc., U.S. Technologies Acquisition Co. and
Xxxxx.xxx, Inc., as amended March 22, 2001 (the "Merger Agreement"), to Buyer,
free and clear of any claim, security interest, mortgage, pledge, lien or other
encumbrance of any nature whatsoever (except the aforementioned agreements), and
Buyer hereby agrees to purchase the Securities from the Sellers.
1.2 Purchase Price. The purchase price (the "Purchase Price")
payable to a Seller for all of its Securities shall be $150.00 multiplied by the
number of Shares it owns, as set forth on Schedule 1.
1.3 Closing. Closing for the purchase and sale of the Securities
shall occur at 1:00 p.m. Eastern time on August 3, 2001, at the offices of
Xxxxxxxxxx and Xxxxx, LLP, counsel for Buyer, or such other time or place as
agreed to by the parties ("xxx Xxxxxxx").
SECTION 2. DELIVERIES BY SELLERS AND BUYER
2.1 Deliveries by Seller. At Closing, each Seller shall deliver to
Buyer (a) stock certificate(s) representing its Shares duly endorsed by such
Seller (or accompanied by stock powers).
2.2 Deliveries by Buyer. At the Closing, Buyer shall deliver to
each Seller the Purchase Price for such Seller's Securities by wire transfer of
immediately available funds to a bank account indicated by such Seller by 1:00
p.m. on the business day before Closing.
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SECTION 3. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to each Seller as follows:
3.1 Incorporation and Authority of Buyer. Buyer is a limited
liability company duly formed, validly existing and in good standing under the
laws of the State of Delaware and has all necessary power and authority to enter
into this Agreement, to carry out its obligations hereunder and to consummate
the transactions contemplated hereby. Execution of this Agreement has been
authorized by all necessary limited liability company action in accordance with
the organizational documents of the Buyer and applicable law.
3.2 Enforceability of Agreement. This Agreement has been duly
executed and delivered by Buyer and such execution and delivery, and the
performance by Buyer of this Agreement and all transactions contemplated hereby,
have been duly and validly authorized by any necessary action on the part of
Buyer. This Agreement constitutes the legal, valid and binding obligation of
Buyer, enforceable against Buyer in accordance with its terms.
3.3 No Conflict. The execution, delivery and performance of this
Agreement by Buyer do not:
(a) violate or conflict with any term or provision of the
organizational documents of Buyer;
(b) conflict with or violate any law, rule, regulation,
order, writ, judgment, injunction, decree, or other judicial or regulatory
determination or award applicable to Buyer;
(c) result in any breach of, or constitute a default (or
event which with the giving of notice or lapse of time, or both, would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of any lien, security
interest, charge or other encumbrance on any of the assets or properties of
Buyer pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit or other instrument relating to such assets or properties
to which Buyer is a party or by which any of such assets or properties is bound
or affected; or
(d) require Buyer to make or obtain any consent, order,
approval, authorization or other action by, or filing with or notification to,
any federal, state or local governmental or regulatory authority or any other
person or entity.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF SELLER
Each Seller, severally, hereby represents and warrants to Buyer as
follows:
4.1 Organization and Authority. Seller is an entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its formation, and has all necessary power and authority to
enter into this Agreement, to carry out its obligations hereunder and to
consummate the transactions contemplated hereby.
4.2 Enforceability of Agreement. This Agreement has been
duly executed and delivered by Seller and such execution and delivery, and the
performance by Seller of this Agreement and all
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transactions contemplated hereby, have been duly and validly authorized by any
necessary action on the part of Seller. This Agreement constitutes the legal,
valid and binding obligation of Seller, enforceable against Seller in accordance
with its terms.
4.3 The Securities. Seller owns, legally and beneficially, and has
good title to all of the Securities, free and clear of any claim, security
interest, mortgage, pledge, lien or other encumbrance of any nature whatsoever
other than as described in Section 1.1.
4.4 No conflict. The execution, delivery and performance of this
Agreement by Seller do not:
(a) violate or conflict with any term or provision of the
articles of incorporation or bylaws of Seller;
(b) conflict with or violate any law, rule, regulation,
order, writ, judgment, injunction, decree, or other judicial or regulatory
determination or award applicable to Seller;
(c) require Seller to make or obtain any consent, order,
approval, authorization or other action by, or filing with or notification to,
any federal, state or local governmental or regulatory authority or any other
person or entity; or
(d) result in any breach of, or constitute a default (or
event which with the giving of notice or lapse of time, or both, would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of any lien, security
interest, charge or other encumbrance on any of the assets or properties of
Seller pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit or other instrument relating to such assets or properties
to which Seller is a party or by which any of such assets or properties is bound
or affected.
SECTION 5. GENERAL PROVISIONS
5.1 Further Action. Each of the parties hereto shall execute and
deliver such documents and other papers and take such further actions as may be
reasonably required, or as may be reasonably requested by any other party, to
carry out the provisions hereof and give effect to the transactions contemplated
hereby.
5.2 Headings. The headings used in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
any term or provision of this Agreement.
5.3 Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party.
5.4 Entire Agreement.
(a) This Agreement represents the entire understanding of
the parties with reference to the matters set forth
herein. This Agreement supersedes all prior
negotiations, discussions, correspondence,
communications and prior agreements among the parties
relating to the subject matter herein.
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(b) The parties acknowledge that Section 6.13 of the
Merger Agreement shall remain in effect as set forth
therein.
5.5 Amendment and Waiver. This Agreement may not be amended or
modified except by an instrument in writing signed by the parties hereto
affected thereby. This Agreement may not be waived except by an instrument in
writing signed by the party granting such waiver.
5.6 Assignment. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors and
permitted assigns. Notwithstanding the preceding sentence, neither this
Agreement nor any right, remedy, obligation or liability arising hereunder or by
reason hereof shall be assignable by any party without the prior written consent
of the other party.
5.7 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware without regard
to its laws pertaining to conflicts of law.
5.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original, but all of which taken
together shall constitute one and the same agreement.
THIS REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to execute this Stock Purchase Agreement as of the
date first above written.
USV PARTNERS, L.L.C., as Buyer
By: USV Management, L.L.C.
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx, Managing Member
TPG PARTNERS III, L.P., as a Seller T3 DUTCH PARALLEL, C.V., as a Seller
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President Title: Vice President
TPG PARALLEL III, L.P., as a Seller T3 PARTNERS, L.P., as a Seller
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------- ----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President Title: Vice President
TPG DUTCH PARALLEL III, C.V., as a Seller T3 PARALLEL, L.P., as a Seller
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President Title: Vice President
TPG INVESTOR III, L.P., as a Seller FOF PARTNERS III, L.P., as a Seller
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President Title: Vice President
T3 INVESTORS, L.P., as a Seller FOF PARTNERS III-B, L.P., as a Seller
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------- ---------------------------------
Name: Xxxxxxx X. Xxxxxxxxx Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President Title: Vice President
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SCHEDULE 1
Name of Seller Series F Shares PURCHASE PRICE
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TPG Partners III, L.P. 5,608.18 $ 841,227.00
TPG Parallel III, L.P. 728.61 $ 109,291.50
TPG Dutch Parallel III, C.V 146.66 $ 21,999.00
TPG Investor III, L.P. 338.14 $ 50,721.00
T3 Partners, L.P. 2,599.83 $ 389,974.50
T3 Parallel, L.P. 196.38 $ 29,457.00
T3 Dutch Parallel, C.V 151.07 $ 22,660.50
T3 Investors, L.P. 145.58 $ 21,837.00
FOF Partners III, L.P. 8.84 $ 1,326.00
FOF Partners III-B, L.P. 196.48 $ 29,472.00
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$1,517,965.50
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Exhibit 10.18
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