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EXHIBIT 2.2
STOCK EXCHANGE AGREEMENT
among
U.S. TECHNOLOGIES INC.,
E2ENET, INC.,
and
XXXXXXXX XXXXXXXXX
Dated as of April 26, 2000
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS
1.1 Definitions............................................................................1
1.2 Interpretation.........................................................................3
ARTICLE II EXCHANGE OF SHARES
2.1 Exchange of Shares.....................................................................3
2.2 The Closing............................................................................4
ARTICLE III CONDITIONS PRECEDENT TO XXXXXXXXX'X OBLIGATION TO CLOSE
3.1 Documentation at Closing...............................................................4
3.2 Voting Agreement.......................................................................5
ARTICLE IV CONDITIONS PRECEDENT TO THE COMPANY'S OBLIGATION TO
CLOSE
4.1 Documentation at Closing...............................................................5
4.2 Voting Agreement.......................................................................5
ARTICLE V REPRESENTATIONS AND WARRANTIES OF XXXXXXXXX
5.1 Authority..............................................................................6
5.2 Status of Buyline Shares...............................................................6
5.3 Consents and Approvals.................................................................6
5.4 No Conflict or Violation...............................................................6
5.5 Certain Fees...........................................................................6
5.6 Investment Representation..............................................................7
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND E2E
6.1 Organization...........................................................................7
6.2 Corporate Action.......................................................................8
6.3 Capitalization of the Company and Status of Capital Stock..............................8
6.4 Governmental Approvals.................................................................8
6.5 No Conflict or Violation...............................................................8
6.6 Certain Fees...........................................................................9
ARTICLE VII MISCELLANEOUS
7.1 Severability...........................................................................9
7.2 Survival of Representations and Warranties.............................................9
7.3 Entire Agreement; Amendments...........................................................9
7.4 Notices...............................................................................10
7.5 Waivers...............................................................................11
7.6 Headings..............................................................................11
7.7 Successors and Assignees..............................................................11
7.8 No Third Party Beneficiaries..........................................................11
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7.9 Counterparts..........................................................................11
7.10 Governing Law.........................................................................11
7.11 Dispute Resolution....................................................................11
7.12 Drafting..............................................................................12
7.13 WAIVER OF JURY TRIAL..................................................................12
7.14 Expenses..............................................................................13
7.15 Further Assurances....................................................................13
7.16 Disclosure to Other Persons...........................................................13
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STOCK EXCHANGE AGREEMENT
This STOCK EXCHANGE AGREEMENT (the "Agreement") is made as of this 26th
day of April, 2000, by and among U.S. TECHNOLOGIES INC., a Delaware corporation
(the "Company"), E2ENET, INC., a Delaware Corporation ("E2E"), and XXXXXXXX
XXXXXXXXX ("Xxxxxxxxx") (each of the foregoing parties, individually, a "Party"
and, collectively, the "Parties").
WITNESSETH:
WHEREAS, Xxxxxxxxx desires to sell to E2E, and E2E desires to purchase
from Xxxxxxxxx, 634,699 shares (the "Buyline Shares") of common stock of
Xxxxxxx.xxx, Incorporated, a Delaware corporation ("Buyline"), upon the terms
and conditions set forth herein; and
WHEREAS, in consideration for the Buyline Shares, the Company, which
owns all of the issued and outstanding shares of capital stock of E2E, will
issue Company Shares (as defined herein) to Xxxxxxxxx.
NOW, THEREFORE, in consideration of the respective representations,
warranties, covenants and agreements set forth herein, and other good and
valuable consideration, the receipt and sufficiency of which is hereby mutually
acknowledged, the Parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. As used herein, the following terms shall have
the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"AAA" shall have the meaning given to it in Section 7.11(a).
"Action or Proceeding" means any action, suit, arbitration, proceeding
or Government Entity investigation or audit.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under direct or indirect
common control with such Person. For the purposes of this definition, a Person
shall be deemed to control another Person if it possesses, directly or
indirectly, the power to direct or cause the direction of the management and
policies of such other Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agreement" means this Stock Exchange Agreement, as from time to time
amended and in effect between the Parties, including all exhibits hereto.
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"Business Day" means any day other than a Saturday, Sunday or public
holiday or the equivalent for banks under the laws of Washington, D.C.
"Buyline" has the meaning set forth in the preambles hereof.
"Buyline Shares" has the meaning set forth in the preambles hereof.
"Closing" has the meaning given to it in Section 2.2.
"Common Stock" means (a) the Company's common stock, with a par value
of $0.02 per share, as authorized on the date of this Agreement, (b) any other
capital stock of any class or classes (however designated) of the Company
authorized on or after the date hereof, the holders of which shall have the
right, without limitation as to amount per share, either to all or to a share of
the balance of current dividends and liquidating distributions after the payment
of dividends and distributions on any shares entitled to preference in the
payment thereof, and the holders of which shall ordinarily, in the absence of
contingencies, be entitled to vote for the election of directors of the Company,
and (c) any other securities into which or for which any of the securities
described in (a) or (b) above may be converted or exchanged pursuant to a plan
of recapitalization, reorganization, merger, sale of assets or otherwise.
"Company" has the meaning set forth in the introduction hereof.
"E2E" has the meaning set forth in the introduction hereof.
"Government Entity" means any court or tribunal or administrative,
governmental or regulatory body, agency, commission, division, department,
public body or other authority.
"Laws" means all laws, statutes, rules, regulations, ordinances and
other pronouncements having the effect of law in the United States, or any
state, province, county, municipality or other political subdivision thereof.
"Lien" means any mortgage, security interest, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge, preference, priority or other security agreement, option, warrant,
attachment, right of first refusal, preemptive, conversion, put, call or other
claim or right, restriction on transfer (other than restrictions imposed by
applicable securities Laws), or preferential arrangement of any kind or nature
whatsoever (including any restriction on the transfer of any assets), any
conditional sale or other title retention agreement, any financing lease
involving substantially the same economic effect as any of the foregoing and the
filing of any financing statement or similar document with any pertinent public
or private registry.
"Order" means any writ, judgment, decree, injunction or similar order
of any Government Entity (in each case whether preliminary or final).
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"Organizational Documents" means with respect to any Person, articles
of incorporation, certificates of incorporation, by-laws, partnership agreement,
articles of association, joint venture or other agreement, instrument or
document, individually or collectively, pursuant to which such Person is
established or organized, and that governs the internal affairs of such Person,
as such documents may be amended from time to time.
"Party" has the meaning set forth in the introduction hereof.
"Person" means and includes any individual, partnership, joint venture,
corporation, trust, limited liability company, joint stock company,
unincorporated organization, Government Entity or any political subdivision or
agency thereof, or any other entity.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar successor federal statute, and the rules and regulations of the United
States Securities and Exchange Commission (or any other federal agency at that
time administering the Securities Act) thereunder, all as the same shall be in
effect at the time.
1.2 Interpretation. Unless otherwise expressly provided herein (a)
defined terms in the singular include the plural and vice versa, and the
masculine, feminine and neuter gender include all genders; (b) the words
"hereof," "herein" and "hereunder" and words of similar import refer to this
Agreement as a whole and not to any particular provision of this Agreement; (c)
the words "include," "includes," and "including" mean include, includes and
including "without limitation" and "without limitation by specification"; (d)
references to any Person shall be construed as a reference to such Person and
any permitted successors or assigns of such Person; (e) references to "consent"
shall mean prior consent evidenced in writing; (f) terms such as "satisfactory
to ______," "acceptable to _________," "in such manner as ______ may determine,"
"to ______'s satisfaction," and phrases of similar import authorize and permit
such Party to approve, disapprove, act or decline to act, unless otherwise
specified herein, in its reasonable discretion without unreasonable delay or
condition; and (g) references to Sections refer to Sections of this Agreement.
ARTICLE II
EXCHANGE OF SHARES
2.1 Exchange of Shares. Subject to and in reliance upon the
representations, warranties, terms and conditions of this Agreement, Xxxxxxxxx
agrees to sell the Buyline Shares, free and clear of any and all Liens, to E2E.
In exchange for the sale of the Buyline Shares to E2E, the Company agrees to
issue and deliver to Xxxxxxxxx 23,008 duly authorized, validly issued, fully
paid, and non-assessable shares of the Company's Common Stock (the "Company
Shares").
2.2 The Closing. Subject to the terms and conditions of this
Agreement, such exchange described in Section 2.1 shall take place at a closing
("Closing") to be held at the offices of Xxxxxxxxxx and Xxxxx, L.L.P. at 10:00
a.m., local time, on the date hereof (the "Closing Date").
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At the Closing, (i) the Company will issue to Xxxxxxxxx a certificate evidencing
the Company Shares, registered in the name of Xxxxxxxxx and (ii) Xxxxxxxxx will
deliver to E2E certificate(s) representing the Buyline Shares, duly endorsed (or
accompanied by stock power(s) duly executed) in favor of E2E.
ARTICLE III
CONDITIONS PRECEDENT TO XXXXXXXXX'X OBLIGATION TO CLOSE
The obligations of Xxxxxxxxx to exchange the Buyline Shares hereunder
for the Company Shares at the Closing are subject to satisfaction of each of the
following conditions, all or any of which may be waived in writing by Xxxxxxxxx:
3.1 Documentation at Closing. Xxxxxxxxx shall have received prior
to or at the Closing all of the following, each in form and substance reasonably
satisfactory to them and their respective counsel:
(a) Stock certificates, duly executed by the Company,
representing Company Shares.
(b) Such other documents relating to the transactions
contemplated hereby as Xxxxxxxxx or his special counsel may reasonably request.
3.2 Voting Agreement. Execution and delivery by the Investors (as
defined therein) of a voting agreement in the form set forth on Exhibit A (the
"Voting Agreement").
ARTICLE IV
CONDITIONS PRECEDENT TO THE COMPANY'S OBLIGATION TO CLOSE
The obligation of the Company to issue the Company Shares to Xxxxxxxxx
at the Closing is subject to the satisfaction of each of the following
conditions, all or any of which may be waived in writing by the Company:
4.1 Documentation at Closing. The Company shall have received
prior to or at the Closing all of the following, each in form and substance
satisfactory to the Company and its special counsel:
(a) Certificates representing the Buyline Shares, which
shall be either duly endorsed or accompanied by stock powers duly executed in
favor of E2E.
(b) Such other documents referenced in or relating to the
transactions contemplated hereby as the Company or its special counsel may
reasonably request.
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4.2 Voting Agreement. Execution and delivery by the Shareholders
(as defined therein) of a voting agreement in the form set forth on Exhibit A
(the "Voting Agreement").
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF XXXXXXXXX
Xxxxxxxxx hereby represents and warrants that:
5.1 Authority. He has the legal capacity to enter into this
Agreement and to carry out his obligations hereunder. This Agreement has been
duly and validly executed and delivered by Xxxxxxxxx and (assuming this
Agreement constitutes a valid and binding obligation of the Company and E2E)
constitutes a valid and binding agreement of Xxxxxxxxx, enforceable against him
in accordance with its terms, except as enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or affecting creditors' rights generally and by general principles
of equity.
5.2 Status of Buyline Shares. The Buyline Shares owned by
Xxxxxxxxx are duly authorized, validly issued, fully paid, nonassessable and
free and clear of all Liens.
5.3 Consents and Approvals. No filing with, and no License of, any
Government Entity is necessary for the execution, delivery and performance of
this Agreement and the other documents contemplated hereby.
5.4 No Conflict or Violation. The execution, delivery and
performance by Xxxxxxxxx of this Agreement, the consummation of the transactions
contemplated hereby, the fulfillment of the terms hereof, and the compliance
with any of the provisions hereof:
(a) will not conflict with, result in a violation or
breach of, or constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termination, cancellation, vesting,
payment, exercise, acceleration, suspension, revocation or modification) under,
any of the terms, conditions or provisions of any note, credit agreement, bond,
mortgage, deed of trust, security instrument, indenture, lease, License,
Contract, plan or other instrument or obligation to which Xxxxxxxxx is a party
or by which he or any of his properties or assets may be bound or affected, or
result in the creation or imposition of any material Lien on any of his assets
or properties pursuant to (i) any Law to which he or any of his property is
subject, or (ii) any Order to which he is bound or any of his property is
subject;
(b) does not require the consent, approval or
authorization of, or registration or filing with, any Person; and
(c) will not violate any Order or Law applicable to him
or any of his properties or assets.
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5.5 Certain Fees. Xxxxxxxxx has not entered into, nor will he
enter into, during the term of this Agreement, any agreement, arrangement or
understanding with any Person that will result in the obligation of the Company
or E2E to pay any finder's fee, brokerage commission or similar payment in
connection with the transactions contemplated hereby.
5.6 Investment Representation.
(a) Xxxxxxxxx acknowledges that the Company Shares are
not registered under the securities laws of any jurisdiction and that he is
acquiring the Company Shares for his own account, and not as nominee or agent.
(b) The Company Shares are being and will be acquired for
the purpose of investment and not with a view to distribution or resale thereof,
subject, nevertheless, to the condition that, except as otherwise provided
herein and subject to compliance with applicable securities laws, the
disposition of his property at all times be within his control.
(c) Xxxxxxxxx hereby acknowledges that the Company Shares
and any other securities issued in respect of such securities upon any stock
split, stock dividend, recapitalization, merger or similar event (unless no
longer required in the opinion of counsel) shall bear a legend substantially in
the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD OR
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF WITHOUT AN OPINION OF LEGAL
COUNSEL (REASONABLY SATISFACTORY TO U.S. TECHNOLOGIES INC. AND ITS LEGAL
COUNSEL) THAT SUCH SALE, TRANSFER, PLEDGE OR OTHER DISPOSITION IS IN COMPLIANCE
WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND
STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS THEREFROM.
(d) Xxxxxxxxx represents and warrants to the Company that
(i) at the time he was offered the Company Shares, he was, and (ii) at the date
hereof, he is an "accredited investor" as defined in Regulation D under the
Securities Act.
The acquisition at Closing by Xxxxxxxxx of the Company Shares shall
constitute a confirmation by him of each of the foregoing representations and
warranties.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND E2E
Each of the Company and E2E represents and warrants that:
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6.1 Organization. Each of the Company and E2E is a corporation
duly organized, validly existing and in good standing under the Laws of the
State of Delaware.
6.2 Corporate Action. Each of the Company and E2E has all
necessary corporate power and authority to enter into this Agreement and to
carry out its obligations hereunder. Each of the Company and E2E has duly
executed and delivered this Agreement, and this Agreement is a legal, valid and
binding obligation of the Company and E2E, enforceable against them in
accordance with its terms, except as enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or affecting creditors' rights generally and by general principles
of equity.
6.3 Capitalization of the Company and Status of Capital Stock. (a)
The Company Shares, when issued and exchanged for the Buyline Shares at the
Closing, will be duly authorized, validly issued, fully paid, nonassessable and
free and clear of all Liens other than Liens created by Xxxxxxxxx. The Company
has a total authorized capitalization consisting of 40,000,000 shares of Common
Stock, of which 29,444,278 shares are issued and outstanding as of March 20,
2000 and 10,000,000 shares of Preferred Stock, of which 625,000 shares of Series
A Convertible Preferred Stock, 112,000 shares of Series B Mandatorily
Convertible Preferred Stock and 5,184 shares of Series C Mandatorily Convertible
Preferred Stock are issued and outstanding as of the date hereof.
(b) Except as disclosed in the Company's reports filed
with the SEC, as of the Closing there will be no options, warrants or rights to
purchase shares of capital stock or other securities of the Company issued or
outstanding, nor will the Company be obligated in any other manner to issue
shares of its capital stock or other securities. There are no restrictions on
the transfer of shares of capital stock of the Company other than those imposed
by relevant state and federal securities laws. Except as set forth in this
Agreement, no holder of any security of the Company is entitled to preemptive or
similar statutory or contractual rights, either arising pursuant to any
agreement or instrument to which the Company is a party, or which are otherwise
binding upon the Company.
6.4 Governmental Approvals. No authorization, consent, approval,
License, exemption of or filing or registration with any court or Government
Entity is or will be necessary for, or in connection with, the performance by
the Company or E2E of their respective obligations under this Agreement.
6.5 No Conflict or Violation. The execution, delivery and
performance of this Agreement, the consummation of the transactions contemplated
hereby, the fulfillment of the terms hereof, and the compliance with any of the
provisions hereof will not:
(a) conflict with or result in a breach or violation of
the Organizational Documents of the Company or E2E;
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(b) conflict with, result in a violation or breach of,
constitute (with or without due notice or the lapse of time or both) a default
(or give rise to any right of termination, cancellation, vesting, payment,
exercise, acceleration, suspension, revocation or modification) under, any of
the terms, conditions or provisions of any note, credit agreement, bond,
mortgage, deed of trust, security instrument, indenture, lease, License,
Contract, plan or other instrument or obligation to which the Company or E2E is
a party or by which the Xxxxxxx, X0X or any of their respective properties or
assets may be bound or affected, or result in the creation or imposition of any
material Lien on any of the assets or properties of the Company or E2E pursuant
to (i) any Law to which the Company or E2E or any of their respective properties
is subject, or (ii) any Order to which the Company or E2E is bound or any of
their respective properties are subject; or
(c) violate any Order or Law applicable to the Company or
E2E or any of their respective properties or assets.
6.6 Certain Fees. None of the Company, E2E or any of their
respective officers, directors or employees, has entered into, or will enter
into, during the term of this Agreement, any agreement, arrangement or
understanding with any Person to pay any finder's fee, brokerage commission or
similar payment in connection with the transactions contemplated hereby.
ARTICLE VII
MISCELLANEOUS
7.1 Severability. If any term, provision, covenant or restriction
of this Agreement is held to be invalid, void or unenforceable, such provision
shall be amended by the Parties only to the extent necessary to be enforceable
consistent with the Parties' intent, and the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect, unless such action would substantially impair the benefits to any Party
of the remaining provisions of this Agreement.
7.2 Survival of Representations and Warranties. All
representations and warranties contained herein or made in writing by any Party
in connection herewith shall survive the execution and delivery of this
Agreement and the consummation of the transaction contemplated by this
Agreement, regardless of any investigation made by any Party or on its behalf.
Notwithstanding the foregoing, neither the Company nor E2E shall have any
liability to Xxxxxxxxx hereunder, except to the extent that such liability
relates to or arises in connection with a misrepresentation or omission in the
Company's filings with the Securities and Exchange Commission.
7.3 Entire Agreement; Amendments. This Agreement (including the
Exhibits hereto) and the other documents and instruments referred to herein
contain the entire understanding of the Parties with respect to the matters
covered hereby and supersede all other prior agreements and understandings, both
written and oral, among the Parties or any of them, with respect to the
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subject matter hereof. This Agreement may be amended only by an instrument in
writing executed by the Parties.
7.4 Notices. Any notices or communications required or permitted
hereunder shall be in writing and addressed as follows:
If to Xxxxxxxxx, to his address as set forth on the
signature pages hereto.
With a copy to:
X'Xxxxx, Xxxxx & Xxxxxxx, P.C.
531 Plymouth Road, Suite 000
Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
If to the Company or E2E:
c/o U.S. Viewing Corporation
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to:
Xxxxxxxxxx and Xxxxx L.L.P.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Any Party may, on fifteen (15) days' notice given in accordance with
this Section 7.4 to the other Parties, designate another address or Person for
receipt of notices hereunder. All notices, claims, demands and other
communications hereunder shall be in writing and shall be deemed given (a) in
the case of a facsimile transmission, when received by recipient in legible form
and sender has received an electronic confirmation of receipt of the
transmission; (b) in the case of delivery by a standard overnight courier, upon
the date of delivery indicated in the records
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of such courier; (c) in the case of delivery by hand, when delivered by hand; or
(d) in the case of delivery by first class (registered or certified) mail, upon
the expiration of three (3) Business Days after the day when mailed (postage
prepaid, return receipt requested), addressed to the respective Parties at the
above address (or such other address for a party as shall be specified by like
notice).
7.5 Waivers. No waiver by any Party of any default with respect to
any provision, condition or requirement hereof shall be deemed to be a
continuing waiver in the future thereof or a waiver of any other provision,
condition or requirement hereof; nor shall any delay or omission of any Party to
exercise any right hereunder in any manner impair the exercise of any such right
accruing to it thereafter.
7.6 Headings. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
7.7 Successors and Assignees. This Agreement shall be binding upon
and inure to the benefit of the Parties and their executors, administrators,
heirs, successors and permitted assigns. Neither this Agreement nor any of the
rights or obligations hereunder may be assigned by any Party without the prior
written consent of the other Parties hereto.
7.8 No Third Party Beneficiaries. This Agreement is intended for
the benefit of the Parties hereto, and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
7.9 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each Party and
delivered to the other Parties, it being understood that all Parties need not
sign the same counterpart.
7.10 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware,
without regard to the conflicts of laws principles thereof.
7.11 Dispute Resolution.
(a) All disputes, controversies, and claims directly or
indirectly arising out of or in relation to this Agreement or the validity,
interpretation, construction, performance, breach or enforceability of this
Agreement shall be finally, exclusively and conclusively settled by binding
arbitration, as provided in this Section by a single arbitrator under the
Commercial Arbitration Rules, as then amended and in effect, of the American
Arbitration Association (the "AAA"). The arbitration proceedings shall be
conducted and any arbitral award shall be made in Washington, DC.
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(b) The Parties agree: (i) to be bound by any arbitral
award or Order resulting from any arbitration conducted thereunder and that any
such award or Order shall be a reasoned award, shall be in writing, shall
specify the factual and legal basis for the award, and shall be final and
binding; (ii) not to commence, procure, participate in, or otherwise be involved
as a party in any claim, Action or Proceeding that might result in any Order
concerning a dispute (except for initiating Actions or Proceedings to obtain a
judgment recognizing or enforcing an arbitral award or Order and except for
applications, claims, Actions or Proceedings by the Parties, seeking interim
interlocutory or other provisional relief in any court having jurisdiction, but
only on the ground that the award to which the applicant may be entitled may be
rendered ineffectual without such provisional relief); and (iii) that judgment
on any arbitral award or Order resulting from an arbitration conducted under
this Section may be entered in any court of competent jurisdiction having
jurisdiction thereof or having jurisdiction over any Party or any of their
assets.
(c) Each of the Parties hereby irrevocably waives and
excludes all rights of appeal, challenge, or recourse to any court from any
arbitral award or Order resulting from any arbitration conducted under this
Section (except for initiating Actions or Proceedings to obtain a judgment
recognizing or enforcing an arbitral award or Order and except for Actions or
Proceedings seeking interim, interlocutory or other provisional relief in any
court having jurisdiction, but only on the ground that the award to which the
applicant may be entitled may be rendered ineffectual without such provisional
relief). Each of the Parties to this Agreement hereby consents to the
non-exclusive jurisdiction of any court of competent jurisdiction in Washington,
DC for all Actions or Proceedings to obtain a judgment recognizing or enforcing
an arbitral award or Order and waives any defense or opposition to such
jurisdiction.
(d) The arbitrator, in its discretion, may consolidate
two or more arbitrations or claims between any of the Parties arising pursuant
to this Agreement or any other agreement among the parties into one arbitration,
or terminate any such consolidation and/or establish other arbitration
proceedings for different claims that may arise in any one arbitration.
Notwithstanding the foregoing, the arbitrator shall consolidate arbitrations
and/or claims if he determines that it would be more efficient to consolidate
such arbitrations and/or claims than to continue them separately and (i) there
are matters of fact or law that are common to the arbitrations and/or claims to
be consolidated, (ii) there are related payment and performance obligations
considered in the arbitrations and/or claims to be consolidated or (iii) there
is a danger of inconsistent awards.
(e) Each Party shall bear its own expenses in connection
with the arbitration provided in this Section, provided that the fees of the
arbitrator shall be divided equally between the Parties.
7.12 Drafting. Each Party acknowledges that its legal counsel
participated in the preparation of this Agreement. The Parties therefore
stipulate that the rule of construction that ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Agreement to favor any Party against any other.
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7.13 WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OF OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
7.14 Expenses. Except as otherwise expressly provided herein, each
of the Parties hereto shall bear and pay all costs and expenses incurred by it
or on its behalf in connection with the transactions contemplated hereunder,
including fees and expenses of its own financial consultants, investment
bankers, accountants and counsel.
7.15 Further Assurances. From and after the date of this Agreement,
each Party shall execute and deliver such instruments, documents and other
writings as may be reasonably necessary or desirable to confirm and carry out
and to effectuate fully the intent and purposes of this Agreement.
7.16 Disclosure to Other Persons. No Party hereto shall issue, make
or cause the publication of any press release or other announcement with respect
to this Agreement or the transactions contemplated hereby, or otherwise make any
disclosures relating thereto, without the consent of the other Parties, such
consent not to be unreasonably withheld or delayed; provided, however, that such
consent shall not be required where such release or announcement is required by
applicable law or the rules or regulations of a securities exchange, in which
event the Party so required to issue such release or announcement shall
endeavor, wherever possible, to furnish an advance copy of the proposed release
to the other Parties.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
U.S. TECHNOLOGIES INC.
By: /s/ C. Xxxxxxx Xxxxx
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Name: C. Xxxxxxx Xxxxx
Title: Co-Chairman and Co-CEO
E2ENET, INC.
By: /s/ C. Xxxxxxx Xxxxx
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Name: C. Xxxxxxx Xxxxx
Title: President
XXXXXXXX XXXXXXXXX
By: /s/ Xxxxxxxx Xxxxxxxxx
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Address: 000 Xxxxx Xxxx
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Xxxxxx Square, PA
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Phone: 000-000-0000
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Fax: 000-000-0000
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