STOCK ELECTION AGREEMENT
STOCK ELECTION AGREEMENT, dated this ____day of September, 2000,
by and among XXXXXXXXXXX X. XXXXXX and XXXXX XXXXXX (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.
3. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. Each
Stockholder, as to such Stockholder, hereby represents and
warrants to, and covenants with, USXX as follows:
(1) 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;
(2) 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;
(3) 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;
(4) 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
(5) 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.
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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 Election Deadline or such other expiration or
termination of the Merger Agreement in accordance with its
terms, and thereafter this Agreement shall be of
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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.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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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:
--------------------------------
Name: C. Xxxxxxx Xxxxx
Title: Co-Chairman and Co-Chief Executive
Officer
-------------------------------------
Xxxxxxxxxxx X. Xxxxxx
------------------------------------
Xxxxx Xxxxxx
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SCHEDULE A
Stockholder Number of Shares
----------- ----------------
Number of Options
-----------------
Xxxxxxxxxxx X. Xxxxxx 362,000
79,225
Xxxxx Xxxxxx 209,000
157,800
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