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EXHIBIT 2.12
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is
entered into as of this 27th day of March, 2001, by and among U.S. Technologies
Inc., a Delaware corporation (the "Company"), and the certain holders of shares
of the capital stock or other securities of the Company that are parties hereto,
including those that are added as parties by joinder (the "Yazam Holders").
W I T N E S S E T H :
WHEREAS, the Company has entered into an Agreement and Plan of
Merger dated as of February 28, 2001 (the "Merger Agreement"), with U.S.
Technologies Acquisition Co., and Xxxxx.xxx Inc. ("Yazam") whereby pursuant
thereto the Yazam Holders shall receive, among other things, an aggregate of
27,374 shares of the Company's Series F Convertible Preferred Stock, par value
$0.02 per share (the "Series F Convertible Preferred Stock") which are
convertible into shares of the Company's Common Stock, par value $0.02 per share
(the "Common Stock") at a conversion ratio of 1,000 to 1, and warrants (the
"Warrants") to purchase 8,000,000 shares (subject to adjustment pursuant to the
terms thereof) of the Common Stock;
WHEREAS, in connection with the Company's execution of the
Merger Agreement and the transactions contemplated thereby and as a condition to
the Closing thereof, the Company and the Yazam Holders have agreed to enter into
this Registration Rights Agreement, and the Company has agreed, on the terms and
conditions set forth herein, to register shares of Common Stock as set forth
below.
NOW THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of which are hereby
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):
"Action or Proceeding" means any action, suit, arbitration, proceeding
or Governmental Authority investigation or audit.
"Advice" has the meaning given it in Section 3.2 of this Agreement.
"Affiliate" means any Person that, directly or indirectly through one
or more intermediaries, controls or is controlled by or is under common control
with the Person specified. For purposes of this definition, control of a Person
means the power, direct or indirect, to direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Applicable Securities Authority" means the Commission or any other
Governmental Authority with which a registration statement or similar form must
be filed to issue securities under the Applicable Securities Laws.
Exhibit 2.12
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"Applicable Securities Law" means each Law applicable to the purchase
and sale of securities of the Company, including, without limitation, the
Securities Act, the Exchange Act and "Blue Sky" laws and the rules and
regulations promulgated thereunder.
"Blocking Notice" has the meaning given it in Section 3.2 of this
Agreement.
"Business Day" means any Day other than a Saturday, Sunday or public
holiday or the equivalent for banks under the laws of Washington, DC.
"Commission" means the United States Securities and Exchange Commission
or any other U.S. federal agency at the time administering the Securities Act.
"Common Stock" has the meaning given it in the recitals.
"Company Registration Notice" means a request to include Registrable
Securities in a registration initiated by the Company pursuant to Section 2.3
hereof (a) made in writing, (b) by a Holder of Registrable Securities, and (c)
specifying the number of Registrable Securities to be offered for sale pursuant
to such registration (which may be any or all of the Registrable Securities
owned by such Holder).
"Day" means a calendar day.
"Demand Registration" means a registration pursuant to Section 2.1
hereof and sale pursuant to such registration, under the Applicable Securities
Laws, of all or substantially all of the Registrable Securities that are the
subject of a Qualifying Request, which sale shall be made pursuant to a firm
commitment underwritten secondary offering arranged for by the Company, unless
the requirement of a firm commitment underwriting is waived in writing by the
Holders of a majority of the Registrable Securities that are the subject of such
Qualifying Request. For the purposes of a Demand Registration hereunder,
"Registrable Securities" shall not include shares of Common Stock issued
pursuant to the exercise of Warrants.
"Exchange Act" means the United States Securities Exchange Act of 1934,
as amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any court, panel, judge, board, bureau,
commission, agency or other entity, body or other Person exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to such government.
"Holder" means any Yazam Holder and any Transferee that has become a
Party to this Agreement by executing a joinder agreement in the form attached
hereto as Exhibit A.
"Indemnified Party" has the meaning given it in Section 5.3 of this
Agreement.
"Indemnifying Party" has the meaning given it in Section 5.3 of this
Agreement.
"Laws" means all laws, statutes, rules, regulations, ordinances and
other pronouncements having the effect of law in any country, or any state,
province, county, city or other political subdivision thereof.
"Merger Agreement" has the meaning given it in the recitals.
Exhibit 2.12
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"Order" means any writ, judgment, decree, injunction or similar order
of any Governmental Authority (in each case whether preliminary or final).
"Party" means a party to this Agreement.
"Person" means and includes any individual, partnership, joint venture,
corporation, trust, limited liability Company, joint stock Company,
unincorporated organization, association or other entity and includes any
Governmental Authority.
"Piggyback Notice" means a request to include Registrable Securities in
a registration pursuant to Section 2.2 hereof (a) made in writing, (b) by a
Holder of Registrable Securities, and (c) specifying the number of Registrable
Securities to be offered for sale pursuant to such registration (which may be
any or all of the Registrable Securities owned by such Holder) and the intended
disposition thereof.
"Qualifying Request" means a request for a Demand Registration (a) made
in writing, (b) by the Holder or Holders of Registrable Securities constituting
one half (1/2) of all Registrable Securities, (c) specifying the number of
Registrable Securities to be offered for sale pursuant to the Demand
Registration (the aggregate value of which shall not be less than $2,000,000, so
long as the aggregate value of the outstanding Registrable Securities is greater
than $2,000,000), and (d) specifying whether the Company is to arrange for a
public sale in a firm commitment underwritten secondary offering of the
Registrable Securities that are the subject of such request.
"Registering Shareholder" has the meaning given it in Section 2.2(a) of
this Agreement.
"Registrable Security" means each share of Common Stock (a) into which
a Series F Share is convertible, (b) for which a Warrant is exercisable, , and
(c) received with respect to a Series F Share or Warrant pursuant to any stock
dividend, stock split, recapitalization or similar event; provided, however,
that (i) a Holder of Series F Shares or of a Warrant shall be deemed to be the
Holder of the Registrable Securities attributable to such Series F Shares or
Warrant; and (ii) any Registrable Security will cease to be a Registrable
Security when (A) such Registrable Security has been transferred pursuant to an
effective registration statement or Rule 144 under the Securities Act or any
comparable Applicable Securities Law covering such Registrable Security (but not
including any transfer exempt from registration under any Applicable Securities
Law), (B) such Registrable Security is no longer held of record by a Holder, or
(C) such Registrable Security has ceased to be outstanding.
"Registration Statement" has the meaning given it in Section 3.1(a).
"Requesting Holder" has the meaning given it in Section 2.3(a) of this
Agreement.
"Requesting Piggyback Holder" has the meaning given it in Section
2.2(a) of this Agreement.
"Securities Act" means the United States Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
"Series F Convertible Preferred Stock" has the meaning given it in the
recitals.
"Series F Shares" means the shares of Series F Convertible Preferred
Stock received by the Yazam Holders and any additional or replacement shares of
preferred or Common Stock issued with respect to Series F Shares upon any stock
dividend, stock split, recapitalization or similar event.
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"Shareholder" means any holder of equity securities of the Company.
"Transfer" means, as applicable, (i) a sale, transfer, assignment,
pledge, hypothecation or other disposition or encumbrance of capital stock or an
interest therein, or (ii) to sell, transfer, assign, pledge, hypothecate or
otherwise dispose or encumber capital stock or an interest therein.
"Transferee" means any Person to which Registrable Securities are
Transferred by a Holder, in each case in accordance with the terms of such
securities or the certificate of designations, purchase agreement or other
document designating, evidencing or otherwise relating to such securities, as
the case may be.
"Warrants" has the meaning given it in the recitals.
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. REGISTRATION RIGHTS
2.1 Demand Registrations. For the purpose of this Section 2.1, the
term "Registrable Securities" shall not include shares of Common Stock issued
pursuant to the exercise of Warrants. For the avoidance of doubt, holders of
Warrants who exercise same and receive shares of Common Stock shall not be
entitled to Demand Registrations hereunder.
(a) Following the authorization by the Company of the number of shares of Common
Stock sufficient for the conversion of the Series F Shares and for the exercise
of the Warrants, the Holders of Registrable Securities shall be entitled to
require the Company to effect from time to time Demand Registration of the
Registrable Securities pursuant to Qualifying Requests. If a Qualifying Request
is made by fewer than all Holders of Registrable Securities, copies of the
Qualifying Request shall be distributed by the Company to all Holders who are
not Parties to such Qualifying Request within five Business Days after it is
received by the Company. Each such Holder shall be entitled to join in the
Qualifying Request by delivering written notice to the Company within ten
Business Days after its receipt of a copy of the Qualifying Request from the
Company. Such notice shall specify the number of Registrable Securities that
each such Holder elects to include in the Qualifying Request and, if the
Qualifying Request does not already include such a requirement, whether such
Holder requires the Company to arrange for public sale in a firm commitment
underwritten secondary offering of the Registrable Securities that are the
subject of the Qualifying Request.
(b) Within 60 Days after receiving a Qualifying Request
from any Holder of Registrable Securities, the Company shall (i) prepare and
file a registration statement under the Applicable Securities Laws covering the
Registrable Securities which are the subject of such request, (ii) use its best
efforts to cause such registration statement to become effective promptly
thereafter and (iii) take appropriate steps to
Exhibit 2.12
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complete all other requirements for registration or qualification of the
Registrable Securities under the Applicable Securities Laws.
(c) The Company shall use its best efforts to arrange for
public sale in a firm commitment underwritten secondary offering of the
Registrable Securities that are the subject of a Qualifying Request delivered
pursuant to Section 2.1(a), unless the requirement of a firm commitment
underwriting is waived in writing by a majority of the Holders of the
Registrable Securities that are subject to such Qualifying Request. The Holders
of a majority of the Registrable Securities that are the subject of such
Qualifying Request shall have the right to designate the managing underwriter(s)
of any such offering, subject to the consent of the Company, which consent shall
not be unreasonably withheld. Except as the Holders having delivered or joined
in a Qualifying Request may consent in writing, the Company will not file with
the Applicable Securities Authority any other registration statement with
respect to its Common Stock (other than a registration effected on Form X-0,
Xxxx X-0 or any successor forms thereto), whether for its own account or that of
other stockholders, from the date of receipt of the Qualifying Request until the
completion of the period of distribution of the Registrable Securities
contemplated thereby.
(d) If the Company grants any demand registration rights
to another Person, the Company shall include within such demand registration
rights an obligation on behalf of such Person to notify the Company in writing
of its intent to exercise its demand registration rights at least 30 Days prior
to such exercise. Immediately after receipt of such notice but in no event later
than three Days after receipt thereof, the Company shall deliver a copy of such
notice to the Holders. If the Holders exercise their demand registration rights
hereunder prior to the exercise of the demand registration rights held by the
Person providing such notice, the Registrable Securities sought to be registered
by the Holders shall be included in the registration statement and any
associated offering prior to the securities sought to be registered by such
other Person.
2.2 "Piggyback" Registrations. (a) If at any time the Company
proposes or agrees to register any of its securities (other than securities
registered on Form S-4 or Form S-8 or any successor forms thereto) for the
account of any Shareholder (each a "Registering Shareholder"), then in each such
case the Company shall, not later than five Days after deciding or agreeing to
register such shares, give written notice thereof to each Holder of Registrable
Securities (which shall include a list of the jurisdictions in which the Company
intends to attempt to qualify such securities). If, within 30 Days of the
receipt by the Holders of any such written notice, any Holder (each a
"Requesting Piggyback Holder") delivers to the Company a Piggyback Notice,
subject to Section 2.4 hereof, the Company shall include in such registration
statement the Registrable Securities specified in such Piggyback Notice. The
Company shall have the right to designate the managing underwriter(s) of any
such offering, subject to the consent of the Registering Shareholders and the
Requesting Piggyback Holders, which consents shall not be unreasonably withheld.
(b) If, at any time prior to the filing of a registration
statement in connection with a registration described in Section 2.2(a) above,
the Registering Shareholders withdraw their request for registration or the
Company determines for any reason either not to register any securities or to
delay registration of such securities, the Company may, at its election, give
written notice of such withdrawal by the Registering Shareholders or
determination by the Company to each Requesting Piggyback Holder and, thereupon,
in the case of a withdrawal by the Registering Shareholders or a determination
not to register by the Company, shall be relieved of its obligation to register
any Registrable Securities in connection with such registration. No registration
effected under this Section 2.2 shall relieve the Company of its obligations to
effect any registration upon request under Section 2.1, nor shall any
registration hereunder be deemed to have been effected pursuant to Section 2.1.
Exhibit 2.12
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2.3 Company Registration. (a) If, at any time or from time to
time, the Company shall determine to register any of its securities for its own
account, the Company will promptly give the Holders of Registrable Securities
written notice thereof (which shall include a list of the jurisdictions in which
the Company intends to attempt to qualify such securities). If, within 30 Days
of the receipt by the Holders of any such written notice, any Holder (each a
"Requesting Holder") delivers to the Company a Company Registration Notice,
subject to Section 2.4 hereof, the Company shall include in such registration
statement the Registrable Securities specified in such Company Registration
Notice.
(b) If, at any time after giving written notice of its
intention to register any securities and prior to filing of a registration
statement in connection with such registration, the Company shall determine for
any reason either not to register or to delay registration of such securities,
the Company may, at its election, give written notice of such determination to
each Requesting Holder and, thereupon, in the case of a determination not to
register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration. No registration effected under
this Section 2.3 shall relieve the Company of its obligations to effect any
registration upon request under Section 2.1, nor shall any registration
hereunder be deemed to have been effected pursuant to Section 2.1.
2.4 Managing Underwriter Cut-Backs. If any registration pursuant
to this Section 2 contemplates an underwritten offering and the managing
underwriter(s) advise the Company and the Holders requesting that the Company
register Registrable Securities pursuant to this Section 2 in writing that the
inclusion in the registration statement of some or all of the Registrable
Securities sought to be registered by such Holders creates a significant risk
that the price per share that such Holders and the Company will derive from such
registration will be adversely affected or that the number of shares or
securities sought to be registered is too large a number to be reasonably sold,
the Company will include in such registration statement such number of shares or
securities as the Company and such Holders are so advised in writing can be sold
in such offering without such an effect, as follows and in the following order
of priority:
(a) with respect to registrations pursuant to Section
2.1, first, the Registrable Securities of each Holder that delivered or joined
in a Qualifying Request on a pro rata basis in proportion to the number of
Registrable Securities sought to be registered;
(b) with respect to registrations pursuant to Section
2.2, first, the securities sought to be registered by the Registering
Shareholders; second, on a pro rata basis in proportion to the number of
Registrable Securities sought to be registered, the Registrable Securities of
each of the Requesting Piggyback Holders; and
(c) with respect to registrations pursuant to Section
2.3, first, the number of shares or securities sought to be registered by the
Company; and second, on a pro rata basis in proportion to the number of
Registrable Securities sought to be registered, the Registrable Securities of
each of the Requesting Holders.
2.5 Other Registration Rights. The Company shall not enter into
any agreement offering registration rights that are superior to the rights set
forth in Sections 2.1, 2.2 and 2.3 without the prior written consent of the
Holders of a majority of the Registrable Securities, which consent shall not be
unreasonably withheld. For the purpose of this Section 2.5, the term
"Registrable Securities" shall not include shares of Common Stock issued
pursuant to the exercise of Warrants.
2.6 Conversion of Registrable Securities. The Series F Shares and
Warrants shall be deemed automatically converted into or exercised for their
corresponding Registrable Securities immediately before the sale of such
Registrable Securities pursuant to a Registration Statement. Any unpaid portion
or
Exhibit 2.12
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the exercise price for Registrable Securities attributable to the Warrants or
any other warrants shall be deducted from the proceeds of the sale and paid to
the Company at the closing of such sale. Upon such automatic conversion, such
converted or exercised Series F Shares and Warrants shall be deemed to be
canceled and shall cease to be outstanding.
ARTICLE III. REGISTRATION PROCEDURES
3.1 Company Obligations. Whenever the Holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company will:
(a) prepare and furnish to the Holders drafts of each
registration statement to an Applicable Securities Authority pertaining to any
securities of the Company (each a "Registration Statement"), any prospectus,
amendment or supplement thereto and any document incorporated by reference
therein, which documents will be subject to the review and comments of each
Holder as to matters regarding such Holder; file each Registration Statement and
use its best efforts to cause such Registration Statement to become effective;
notify each Holder of Registrable Securities of the effectiveness of each
Registration Statement; and furnish to the Holders such number of copies of such
Registration Statement, each amendment and supplement thereto (including any
exhibits thereto), the prospectus included in such Registration Statement
(including each preliminary prospectus), the documents incorporated by reference
therein and such other documents as any Holder may reasonably request;
(b) use its best efforts to maintain the effectiveness of
each registration statement filed pursuant to this Agreement, and take such
other steps as are required by Applicable Securities Laws to maintain the
registration or qualification in effect either (i) until such time as all
Registrable Securities registered pursuant to the registration statement have
been sold or (ii) for a period of 180 days, whichever is shorter. Each Holder
shall provide written notice to the Company within 15 Days after it has sold all
of its Registrable Securities registered pursuant to this Agreement;
(c) notify the Holders in writing of the occurrence of an
event requiring the preparation of a supplement or amendment to a prospectus and
promptly prepare and file with the Applicable Securities Authority any such
supplement or amendment;
(d) use its best efforts to register or qualify the
Registrable Securities registered pursuant to a Registration Statement under
such other Applicable Securities Laws as any Holder may reasonably request and
do any and all other acts which may be reasonably necessary or advisable to
enable any such Holder to consummate the disposition of its Registrable
Securities under such Applicable Securities Laws, except that the Company shall
not be required to qualify to do business as a foreign corporation, subject
itself to taxation or consent to general service of process in any jurisdiction
where it is not currently obligated to be so qualified, in accordance with and
subject to the terms and conditions contained herein;
(e) cause all such Registrable Securities to be listed or
quoted on each securities exchange or market on which similar securities issued
by the Company are then listed;
(f) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of the applicable
Registration Statement;
(g) enter into such customary agreements (including
underwriting agreements in customary form) in order to expedite or facilitate
the disposition of such Registrable Securities;
(h) make available for inspection by any underwriter
participating in any disposition pursuant to a Registration Statement, and any
attorney, accountant or other agent retained by any such
Exhibit 2.12
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underwriter, all financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers, directors,
employees and independent accountants to supply all information reasonably
requested by any such underwriter, attorney, accountant or agent in connection
with such Registration Statement; and
(i) otherwise use its best efforts to comply with all
Applicable Securities Laws.
3.2 Suspension of Effectiveness. At least five Business Days prior
to any disposition of Registrable Securities, a Holder shall advise the Company
of the dates on which such disposition is expected to commence and terminate,
the number of Registrable Securities expected to be sold, the method of
disposition and such other information as the Company may reasonably request in
order to supplement the related prospectus in accordance with the Applicable
Securities Laws. The Company may suspend dispositions under the registration
statement and notify the Holder that it may not sell the Registrable Securities
pursuant to any registration statement or prospectus (a "Blocking Notice") if
(a) the Company's management determines in its reasonable good faith judgment
based on advice of its outside counsel that the Company's obligation to ensure
that such registration statement and prospectus are current and complete would
require the Company to take actions that might reasonably be expected to have a
detrimental effect on any proposal, negotiations or plan by the Company or any
of its subsidiaries to engage in any acquisition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer,
reorganization or similar transaction or (b) the Company determines that the
registration statement, the prospectus, any amendment or supplement thereto, or
any document incorporated by reference therein contains an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or requires the making
of any additions to or changes in the registration statement or the prospectus
in order to make the statements therein not misleading; provided that such
suspension may not exceed 60 days. Each Holder agrees by acquisition of the
Registrable Securities that, upon receipt of a Blocking Notice from the Company,
such Holder shall not dispose of, sell or offer for sale any Registrable
Securities pursuant to a registration statement until such Holder receives (a)
copies of the supplemented or amended prospectus, or a written determination
from counsel for the Company that such disclosure is not required due to
subsequent events, (b) notice in writing (the "Advice") from the Company that
the use of the prospectus may be resumed and (c) copies of any additional or
supplemental filings that are incorporated by reference in the prospectus. If so
directed by the Company in connection with any Blocking Notice, each Holder will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such Holder's possession of the prospectus
covering such Registrable Securities that was current immediately prior to the
time of receipt of such Blocking Notice. In the event the Company shall give any
Blocking Notice, the time regarding the effectiveness of a registration
statement set forth in Section 2.1 shall be extended by the number of Days
during the period from and including the date of the giving of such Blocking
Notice to and including the date when the Holder shall have received the copies
of the supplemented or amended prospectus, the Advice and any additional or
supplemental filings that are incorporated by reference in the prospectus or the
supplemental prospectus, as the case may be. Delivery of a Blocking Notice and
the related suspension of any registration statement in accordance with the
terms of this Section 3.2 shall not constitute a default under this Agreement.
ARTICLE IV. REGISTRATION EXPENSES; HOLDBACK
4.1 Company Expenses. Except as provided in Section 4.2, all fees
and expenses incident to the Company's performance of, or compliance with, this
Agreement shall be borne by the Company, including, without limitation, the
following fees and expenses: (a) all Applicable Securities Authority,
self-regulatory organization, stock exchange and other registration and filing
fees and listing fees; (b) the fees and expenses of the Company's compliance
with securities or "Blue Sky" laws (including reasonable fees and disbursements
of counsel in connection with "Blue Sky" qualifications of the Registrable
Exhibit 2.12
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Securities); (c) printing expenses; (d) all underwriting discounts and
commissions not attributable to the sale of Registrable Securities; (e) the fees
and disbursements of counsel for the Company and of one firm of counsel for the
selling Holders, collectively, in each relevant jurisdiction; (f) the fees and
expenses of independent certified public accountants; (g) the fees and expenses
of underwriters and other persons retained by the Company in connection with a
registration; (h) fees of transfer agents and registrars; and (i) messenger and
delivery expenses; provided, however, in connection with Demand Registration
pursuant to Section 2.1, the Company shall pay such fees and expenses only with
respect to the first three (3) times such right is exercised (but provided that
any registration at the Company's expense begun pursuant to Section 2.1 that is
subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities that are the subject of a Qualifying Request shall not
count toward the three (3) Demand Registrations at the Company's expense if the
Holders that delivered or joined in the Qualifying Request reimburse the Company
for all out-of-pocket expenses incurred by the Company in connection with such
withdrawn registration). In addition, the Company shall pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit or quarterly review, the expense of any liability insurance
obtained by the Company, and the expenses and fees for listing or authorizing
for quotation the securities to be registered on each securities exchange on
which any Registrable Securities are then listed or quoted.
4.2 Holder Expenses. The selling Holders shall pay all
underwriting discounts and commissions attributable to the sale of the
Registrable Securities sold by them and all of the selling Holders' internal
expenses incurred in connection with any offering (including, without
limitation, all salaries and expenses of the selling Holders' officers and
employees performing legal or accounting duties, but excluding fees and expenses
of the selling Holders' counsel that are payable by the Company under Section
4.1).
4.3 Restrictions on Public Sale by Holder of Registrable
Securities. To the extent not inconsistent with applicable Law, each Holder
whose securities are included in a registration statement agrees not to effect
any public sale or distribution of the issue being registered or a similar
security of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, including a sale pursuant to Rule 144 under the
Securities Act, during the 14 days prior to, and during the 90-day period
beginning on, the effective date of such registration statement (except as part
of such registration), if and to the extent requested by either the Company in
the case of a non-underwritten public offering or if and to the extent requested
by the managing underwriter(s) in the case of an underwritten public offering.
4.4 Restrictions on Public Sale by the Company and Others. The
Company agrees not to effect any public sale or distribution of any securities
similar to those being registered, or any securities convertible into or
exchangeable for such securities (other than any such sale or distribution of
such securities in connection with any merger or consolidation by either the
Company or any subsidiary thereof or in connection with the sale of the capital
stock or all or substantially all of the assets of any other Person or in
connection with an employee stock option plan or benefit plan), during the 14
days prior to, and during the 90-day period beginning on, the effective date of
any registration statement in which the Holders are participating or the
commencement of a public distribution of the Registrable Securities.
ARTICLE V. INDEMNIFICATION; CONTRIBUTION
5.1 Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Holder, each of such Holder's officers,
directors, partners, employees and agents, and each Person controlling any such
Persons and, if requested by any underwriter, such underwriter and each person
who controls such underwriter from and against any and all losses, claims,
damages, liabilities and expenses (including reasonable costs of investigation,
any legal and any other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action, and
Exhibit 2.12
Page 9
10
any of the foregoing incurred in settlement of any litigation, commenced or
threatened) arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement or prospectus
contained therein or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arising out of or
based upon any violation by the Company of any Applicable Securities Law
applicable to the Company and relating to action or inaction by the Company in
connection with any registration, qualification or compliance required
hereunder, or arising out of or based upon the Company's breach of any
representation, warranty, covenant or agreement contained in this Agreement;
provided, however, that the Company shall not be liable in any such case to the
extent any of such losses, claims, damages, liabilities or expenses arise out
of, or are based upon, any such untrue statement or omission or allegation
thereof made in reliance on, and in conformity with, information relating to
such Holder furnished in writing to the Company by such Holder expressly for use
therein. In addition to any other information furnished in writing to the
Company, expressly for use therein, by the Holder, the information in the
registration statement under the caption "Selling Shareholders" (or any
similarly captioned section containing the information required pursuant to Item
507 of Regulation S-K promulgated pursuant to the Securities Act) relating to
such Holder shall be deemed information furnished in writing to the Company by
the Holder; provided that the Company has complied with its obligations pursuant
to Section 3.1(a).
5.2 Indemnification by Holders. Each Holder agrees severally to
indemnify and hold harmless the Company, its directors and officers and each
person, if any, who controls the Company and, if requested by any underwriter,
such underwriter and each person who controls such underwriter to the same
extent as the foregoing indemnity from the Company, but only with respect to
misstatements or omissions made in reliance on, and in conformity with,
information relating to such Holder furnished in writing by such Holder, or on
its behalf, expressly for use in a Registration Statement or prospectus relating
to Registrable Securities, any amendment or supplement thereto or any
preliminary prospectus, and provided that the obligation of each Holder to
indemnify will be several and not joint. Each Holder's indemnity obligations
under this Section 5.2 and contribution obligations under Section 5.4 shall be
limited, in the aggregate, to the net sales proceeds actually received by it in
connection with the applicable offering.
5.3 Conduct of Indemnification Proceedings. If any Action or
Proceeding (including any governmental investigation) shall be brought or
asserted against any Person entitled to indemnification under Section 5.1 or 5.2
above (an "Indemnified Party") in respect of which indemnity may be sought from
any Party who has agreed to provide such indemnification (an "Indemnifying
Party") and the Indemnifying Party acknowledges in writing to the Indemnified
Party that the Indemnified Party is entitled to indemnity by the Indemnifying
Party hereunder, the Indemnifying Party shall assume the defense of such Action
or Proceeding, including the employment of counsel reasonably satisfactory to
such Indemnified Party, and shall assume the payment of all expenses. Such
Indemnified Party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Party unless (a) the
Indemnifying Party has agreed to pay such fees and expenses, or (b) such
Indemnified Party shall have been advised by counsel that there is an actual or
potential material conflict of interest on the part of counsel employed by the
Indemnifying Party to represent such Indemnified Party. If counsel advises the
Indemnified Party of such a conflict of interest, or if the Indemnifying Party
fails to acknowledge in writing that the Indemnified Party is entitled to
indemnity hereunder, the Indemnifying Party shall not have the right to assume
the defense of such Action or Proceeding on behalf of such Indemnified Party
and, upon written notice to the Indemnifying Party, the Indemnified Party may
employ separate counsel at the expense of the Indemnifying Party; it being
understood, however, that the Indemnifying Party shall not, in connection with
any one Action or Proceeding or separate but substantially similar or related
Actions or Proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time for all such
Exhibit 2.12
Page 10
11
Indemnified Parties, which firm shall be designated in writing by such
Indemnified Parties. The Indemnifying Party shall not be liable for any
settlement of any such Action or Proceeding or any threatened Action or
Proceeding effected without its written consent, but if settled with its written
consent or if there be a final judgment for the plaintiff in any such Action or
Proceeding, the Indemnifying Party shall indemnify and hold harmless such
Indemnified Parties from and against any loss or liability (to the extent stated
above) by reason of such settlement or judgment. The failure of any Indemnified
Party to give prompt notice of a claim for indemnification hereunder shall not
limit the Indemnifying Party's obligations to indemnify under this Agreement,
except to the extent such failure is prejudicial to the ability of the
Indemnifying Party to defend the action. No Indemnifying Party, in the defense
of any such claim or litigation, shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any settlement
unless (x) there is no finding or admission of any violation of any rights of
any Person and no effect on any other claims that may be made against any
Indemnified Party, (y) the sole relief provided is monetary damages that are
paid in full by the Indemnifying Party and (z) such judgment or settlement
includes as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
of such claim or litigation.
5.4 Contribution. If the indemnification provided for in this
Article V is unavailable to any Indemnified Party in respect of any losses,
claims, damages, liabilities or judgments referred to herein, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall to the
extent permitted by applicable Law contribute to the amount paid or payable by
such Indemnified Party as a result of such losses, claims, damages, liabilities
and judgments in such proportion as is appropriate to reflect the relative fault
of the Indemnifying Party on the one hand and the Indemnified Party on the
other, in connection with the matters which resulted in such losses, claims,
damages, liabilities or judgments, as well as any other relevant equitable
considerations. The relative fault of any Indemnifying Party on the one hand and
of any Indemnified Party on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by such Party, and the Parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. No person guilty of fraudulent misrepresentation (within the meaning
of subsection 11(f) of the Securities Act) shall be entitled to contribution
from any Person who was not guilty of such fraudulent misrepresentation.
5.5 Survival. The indemnity and contribution agreements contained
in this Article V shall remain operative and in full force and effect with
respect to any sales of Registrable Securities made pursuant to a Registration
Statement regardless of (a) any termination of this Agreement, (b) any
investigation made by or on behalf of any Indemnified Party or by or on behalf
of the Company, and (c) the consummation of the sale or successive resale of the
Registrable Securities.
ARTICLE VI. MISCELLANEOUS
6.1 Rules 144 and 144A. The Company covenants that following the
registration of Registrable Securities it will file any reports required to be
filed by it under the Securities Act and the Exchange Act so as to enable
Holders holding Registrable Securities to sell such Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rules 144 and 144A under the Securities Act, as each
such Rule may be amended from time to time, or (b) any similar rule or rules
hereafter adopted by the Commission. Upon the request of any such Holder, the
Company will forthwith deliver to such Holder a written statement as to whether
it has complied with its obligation pursuant to this Section 6.1 to file any
reports required to be filed by it under the Securities Act and the Exchange
Act. In connection with any transfer pursuant to this Section 6.1, upon the
written request of the Company, the Holder shall furnish to the Company such
information so that the Company may ensure that the Holder has complied with the
limitations set forth in Rules 144 and 144A or any similar rule or rules
hereafter adopted by the Commission.
Exhibit 2.12
Page 11
12
6.2 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 6.2, under the Commercial Arbitration
Rules of the American Arbitration Association (the "AAA") which are then in
effect.
(b) The arbitral tribunal shall be composed of three
arbitrators, one or whom shall be appointed by the Company, one of whom shall be
appointed by the Holders that are parties to the dispute, controversy or claim,
and the third of whom shall be appointed by the two arbitrators designated by
the parties. The arbitration proceedings shall be conducted in the English
language, and all documents not in English submitted by any party must be
accompanied by an English translation. The arbitration proceedings shall be
conducted and any arbitral award shall be made in Washington, D.C.
(c) The Parties agree: (i) that the arbitral tribunal
shall have no authority to award punitive damages or any damages other than
those recoverable in accordance with this Agreement (which may include
reasonable attorneys' fees and other costs of arbitration); (ii) to be bound by
any arbitral award or Order resulting from any arbitration conducted hereunder
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; (iii) 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 hereunder (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); (iv)
that any monetary award shall be made and payable in U.S. Dollars, in each case
through a bank selected by the recipient of the award, together with interest
thereon at the lesser of the one year London Interbank Offered Rate (LIBOR), as
appearing in the Reuters screen, plus five percent, or the maximum interest rate
permissible under applicable Law, from the date the award is granted to but
excluding the date it is paid in full; and (v) that judgment on any arbitral
award or Order resulting from an arbitration conducted under this Section 6.2
may be entered in any court of competent jurisdiction having jurisdiction
thereof or having jurisdiction over any Party or any of its assets.
(d) The Company and the Holders hereby irrevocably waive
and exclude all rights of appeal, challenge, or recourse to any court from any
arbitral award or Order resulting from any arbitration conducted under this
Section 6.2 (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 the State
of Delaware 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.
(e) The arbitrators, in their 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 or to which the
Holders or Shareholders are a party into one arbitration, may terminate any such
consolidation and/or may establish other arbitration proceedings for different
claims that may rise in any one arbitration. Notwithstanding the foregoing, the
arbitrators shall consolidate arbitrations and/or claims if they determine
Exhibit 2.12
Page 12
13
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, and/or (iii) there is a danger of inconsistent
awards.
(f) Each Party shall bear its own expenses in connection
with the arbitration provided in this Section 6.2, except as specifically set
forth herein, provided that the fees of the arbitrators shall be divided equally
between the Parties.
6.3 Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given, other than as mutually
agreed upon in writing by the Company and the Holders.
6.4 Notices. Any notices or communications required or permitted
hereunder shall be in writing and shall be delivered by facsimile, courier, hand
or first class (registered or certified) mail to each Party at the address(es)
indicated for such Party on the signature pages to this Agreement. Any Party
may, upon written notice given in accordance with this Section 6.4 to the other
Parties, designate another address or Person for receipt of notices hereunder.
All notices, claims, demands and other communications hereunder shall be 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 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 five (5)
Business Days after the Day when mailed (postage prepaid, return receipt
requested).
6.5 Successors and Assigns; New Parties. A Holder may assign,
without the Company's consent, and shall be deemed to have assigned, such
Holder's rights and benefits with respect to the Registrable Securities that are
transferred to a Transferee. A Transferee that becomes bound by the terms of
this Agreement by its execution of a joinder agreement in the form attached
hereto as Exhibit A shall retain the rights and benefits of the transferor and
become a Holder under this Agreement. The Company may not assign any rights,
benefits or obligations under this Agreement without prior written consent of
two-thirds of the Holders. This Agreement shall inure to the benefit of and be
binding upon the permitted successors and assigns of the Company and the
Holders.
6.6 Counterparts; Facsimile. This Agreement may be executed in any
number of identical counterparts and it shall not be necessary for each Party to
execute each of such counterparts, but when each has executed and delivered one
or more of such counterparts, the several parts, when taken together, shall be
deemed to constitute one and the same instrument, enforceable against each Party
in accordance with its terms. In making proof of this Agreement, it shall not be
necessary to produce or account for more than one such counterpart executed by
the Party against whom enforcement of this Agreement is sought. Signatures
transmitted by facsimile shall be binding as evidence of a Party's agreement to
be bound by the terms and conditions hereof.
6.7 Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
6.8 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 its principles of choice of law or conflict of laws.
Exhibit 2.12
Page 13
14
6.9 Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term of this Agreement, such provision shall be fully severable; this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never constituted a part of this Agreement; and the
remaining provisions of this Agreement shall remain in full force and effect and
shall not be affected by the illegal, invalid or unenforceable provision or by
its severance from this Agreement.
6.10 Entire Agreement. This Agreement is intended by the Parties as
the final expression of their agreement and is intended to be a complete and
exclusive statement of their agreement and understanding in respect of the
subject matter contained herein. This Agreement supersedes all prior agreements
and understandings between the Parties with respect to such subject matter.
6.11 Third Party Beneficiaries. Other than Indemnified Parties not
a party hereto, this Agreement is intended for the benefit of the Company, the
Holders 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.
6.12 Obligations Several; Independent Nature of Each Holder's
Rights. Each obligation of any Holder is several and no such Holder shall be
responsible for the obligations of any other Holder. Nothing contained herein,
and no action taken by any Holder pursuant hereto, shall be deemed to constitute
any Holders as a partnership, an association, a joint venture or any other kind
of entity. Each Holder shall be entitled to protect and enforce its rights
arising out of this Agreement without notice to or the consent of any other
Person, except as specifically provided herein, and it shall not be necessary
for any other such Holder to be joined as an additional party in any proceeding
for such purpose.
6.13 Nonwaiver. No course of dealing or delay or failure to
exercise any right, power or remedy hereunder on the part of any Holder shall
operate as a waiver of or otherwise prejudice such Holder's rights, powers or
remedies.
6.14 Remedies. The Company and the Holders acknowledge that the
remedies at law in the event of any default or threatened default in the
performance of or compliance with any of the terms of this Agreement are not and
will not be adequate and that, to the fullest extent permitted by law and
equity, such terms may be specifically enforced by a decree for the specific
performance of any agreement contained herein or by an injunction against a
violation of any of the terms hereof or otherwise without requiring any bond or
other security, unless otherwise required by applicable law (which cannot be
waived).
6.15 New Parties. During the term of this Agreement (and except
with respect to Tranferees, which shall be governed by Section 6.5 hereof), the
Company may, upon the prior written consent of the Holders of a majority of the
Registrable Securities, permit any additional Person to become a party to this
Agreement by executing a joinder agreement in the form attached hereto as
Exhibit A.
6.16 Termination. Except for Section 6.17 hereof, all rights
granted hereunder shall expire and this Agreement shall terminate on the earlier
of (i) the written consent of the Holders, and (ii) the sixth (6th) anniversary
of the date hereof.
6.17 Board Seat. So long as at least one-third of the Series F
Shares issued pursuant to the Merger Agreement at the Effective time remain
outstanding, the holders of Series F Shares shall be entitled to elect one
director of the Company who shall be reasonably acceptable to the Company.
Exhibit 2.12
Page 14
15
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
U.S. TECHNOLOGIES INC.
BY: /S/ XXXXXXX XXXXX
------------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Chairman and CEO
Address: 0000 Xxxxxxxxxxx Xxx, XX,
Xxxxx 000
Xxxxxxxxxx, XX 00000
Phone: (000) 000.0000
Fax: (000) 000.0000
YAZAM SHAREHOLDER
BY: /S/ XXXXXXXX XXXXXX
------------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: MD
Address: 0000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXXXXXX X. XXXXXXX
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
Address: 00 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXXX XXXXXXXXX
------------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Manager
Address: 0000 X. Xxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXXX XXXX
------------------------------------------------
Name: Xxxx Xxxx
Title:
Address: 0000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Phone: 000-000-0000
Fax: n/a
Exhibit 2.12
Page 15
16
BY: /S/ XXXXXX X. XXXXXXX
------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Address: 0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXXXXX XXXXXXXXX
------------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director
Address: 00 X. 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXXXXX X. XXXXX
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title:
Address: c/o WIT
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXXXXX SILESNI
------------------------------------------------
Name: Xxxxxx Silesni
Title: President/Trustee of The Kernele LLC
Address: 000 Xxx Xxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXXXXX SILESNI
------------------------------------------------
Name: Xxxxxx Silesni
Title: President/Trustee of Kenwrck, D.K.
Address: 000 Xxx Xxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXXXXXX XXXXXXX
------------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title:
Address: M.P. Xxxxx Xxxx Xxxxxxx
Xxxxx, 00000, Xxxxxx
Phone: 000-000-0-0000000
Fax: 000-000-0-0000000
Exhibit 2.12
Page 16
17
BY: /S/ M. XXXXXXX XXXXX
------------------------------------------------
Name: M. Xxxxxxx Xxxxx
Title:
Address: 00 Xxxx 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone:
Fax:
BY: /S/ XXXXXXXX BULKELRY
------------------------------------------------
Name: Xxxxxxxx Bulkelry
Title:
Address:
Phone: 000-000-0000
Fax:
BY: /S/ XXXXX X. XXXXXXXXXX
------------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: President, DASH 1999 LLC
Address: x/x XXXX & XXXX
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXX XXXXXX
------------------------------------------------
Name: Xxx Xxxxxx
Title:
Address: 000 Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXXXXX X. XXXXXX
------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title:
Address: 00 XxXxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ C. XXXXXXX XXXXXXX
------------------------------------------------
Name: C. Xxxxxxx Xxxxxxx
Title: Trustee
Address: 000 Xxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXXXXXXX X. XXXXX
------------------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: President
Address: 00 Xxxxxxx Xxxxx
Xxxxx Xxxxx, Xxx Xxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
Exhibit 2.12
Page 17
18
BY: /S/ XXXXXXX XXXXXXXXX
------------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President, J2JK, Inc.
Address: 0000 Xxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000-0000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ JALQUES X. XXXXXX
------------------------------------------------
Name: Jalques X. Xxxxxx
Title: Trustee, GAN, Inc.
Address: 00000 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Xxxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXXXXXXXX XXXXXXXXX
------------------------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Senior Vice President
Itochu international Inc.
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ STIVENTURES, N.V.
------------------------------------------------
Name: Stiventures, N.V.
Title:
Address: Xxxxxxxxxxxxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Phone: + 00-00-0000000
Fax: + 00-00-0000000
Exhibit 2.12
Page 18
19
BY: /S/ XXXXX XXXXXXX
------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: General Partner
Xxxxxxx Family Partnership
Address: 0 Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXXXX XXXXXXX
------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Trustee and Officer of SMART Inc.
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXXX XXXXXX
------------------------------------------------
Name: Xxxx Xxxxxx
Title: Equity Analyst
Address: Xxxxxxx X. Xxxxxxxxx & Co.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXXXXX X. XXXXXX AND XXXX X. XXXXXX
------------------------------------------------
Name: Xxxxxx X. Xxxxxx and Xxxx X. Xxxxxx
Title:
Address: 0000 Xxxxx Xxxxxx Xxxx, XX
Xxxxxxx, Xxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXXXX X. XXXXXXXXXX
------------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President, Sprouting LLC
Address: c/o LOEB & LDEB
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
Exhibit 2.12
Page 19
20
BY: /S/ EQUITY TRUST (CURACAO) N.V.
------------------------------------------------
Name: Equity Trust (Curacao) N.V.
Title: Managing Director
Address: Xxxxxxxxxxx 00
Xxxxxxx, XX
Phone: 0000 000 00 00
Fax: 0000 000 00 00
BY: /S/ XXX XXXXXXX
------------------------------------------------
Name: Xxx Xxxxxxx
Title: Trustee, Mansner Family 1997 Trust
Address: 00 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXXXX XXXXX
------------------------------------------------
Name: Xxxxx Xxxxx
Xxxxxxx: 00/0 Xx'Xxxx
Xx'xxx Xxxxxx
Xxxxxx 00000
Phone: 000-0-0000000
Fax: 000-0-0000000
BY: /S/ XXXXXX XXXXXXXX
------------------------------------------------
Name: Xxxxxx Xxxxxxxx
Address: 00 Xxxxxx Xxxxxx Xxxxxx
Xxxxx 00000
Xxxxxx
Phone: 000-0-000-0000
Fax: 000-0-000-0000
BY: /S/ XXXX XXXXXX
------------------------------------------------
Name: Xxxx Xxxxxx
Address: Xxxx 0, Xxxxxxxxx Xxxxx
0 Xxxxx Xxxxxx
Xxxxxx XX00XX
Phone: 000-000-0000 (US)
Phone: 00000-000000 (UK)
Exhibit 2.12
Page 20
21
BY: /S/ RAP XXXXXXX
-----------------------------------------
Name: RAP Michel
Title: ____ of Jersey for Burkoy Ltd.,
Sole Corporate Director of
Ensign Consulting Limited
Address: Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxx
Xxxxxxxx XX0 0XX
Channel Islands
United Kingdom
Phone: 00-0000-000000
Fax: 00-0000-000000
BY: /S/ XXXXXX XXXXXXXX
-----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Director, Prendon Investments
Address: 0000 Xxxxxx xx xxx Xxxxx,
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Phone: 000-000-0000
BY: /S/ XXXXXXX WEILBROOKS
-----------------------------------------
Name: Xxxxxxx Weilbrooks
Title: Director, Per Pro Apax
Funds Nominees Limited
Address: 00 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Phone: 0000-000-0000
Fax: 0000-000-0000
BY: /S/ XXXXX X. XX
-----------------------------------------
Name: Xxxxx X. Xx
Title: President, China Development
Industrial Bank, Inc.
Address: 000 Xxxxxxx Xxxx Xxxx
Xxxxxxx 0
Xxxxxx, Xxxxxx
Xxxxxxxx of China
Phone: 8862-2763-8800
Fax: 0000-0000-0000
BY: /S/ XXXXX X. XXXXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: VP/CFO, Christian & Timbers,
Inc.
Address: 00000 Xxxxxxx Xxxx Xxxxx #000
Xxxxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Exhibit 2.12
Page 21
22
BY: /S/ XXX X. XXXXXXXX, ESQ.
-----------------------------------------
Name: Xxx X. Xxxxxxxx, Esq.
Title: Trustee, The BL Squared
Foundation, Inc.
Address: 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXX XXXX
-----------------------------------------
Name: Xxx Xxxx
Address: 0000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXXXX X. XXXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Address: 000 Xxxxx Xxxxxx, Xxx. 0
Xxx Xxxxxxxxx, XX 00000
Phone: 000-000-0000
Fax:
BY: /S/ XXXXXXX X. XXXXXXXXX
-----------------------------------------
FOF Partners III-B, L.P.
By: TPG Genpar III, LP
By: TPG Advisors III, Inc.
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
Address: 000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXXXXXX X. XXXXXXXXX
-----------------------------------------
TPG Investors III, L.P.
By: TPG Genpar III, LP
By: TPG Advisors III, Inc.
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
Address: 000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Exhibit 2.12
Page 22
23
BY: /S/ XXXXXXX X. XXXXXXXXX
-------------------------------------------
Dutch Parallel III-B, L.P.
By: TPG Genpar III, LP
By: TPG Advisors III, Inc.
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
Address: 000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXXXXXX X. XXXXXXXXX
-------------------------------------------
T3 Partners, L.P.
By: T3 Genpar, Inc.
By: T3 Advisors, Inc.
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
Address: 000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXXXXXX X. XXXXXXXXX
-------------------------------------------
T3 Parallel, L.P.
By: T3 Genpar, Inc.
By: T3 Advisors, Inc.
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
Address: 000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXXXXXX X. XXXXXXXXX
-------------------------------------------
T3 Investors, L.P.
By: T3 Genpar, Inc.
By: T3 Advisors, Inc.
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
Address: 000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXXXXXX X. XXXXXXXXX
-------------------------------------------
TPG Parallel III, L.P.
By: TPG Genpar III, L.P.
By: TPG Advisors III, L.P.
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
Address: 000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Exhibit 2.12
Page 23
24
BY: /S/ XXXXXXX X. XXXXXXXXX
-------------------------------------------
TPG Partners III, L.P.
By: TPG Genpar III, L.P.
By: TPG Advisors III, L.P.
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
Address: 000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXX X'XXXXXXX
-------------------------------------------
Name: Xxx X'Xxxxxxx
Title: Director for and on behalf of
CIPE, Ltd. as
General Partner of CIPE General
Partner, L.P. as General Partner
of CIPE Investment I, L.P.
Address: x/x Xxxxxxx
Xxxxxx Xxxxx
X.X. Xxx 000XX
Xxxxxx Town
Grand Cayman
Cayman Islands
Phone: 000-000-0000
Fax: 000-000-0000
BY: /S/ XXXXX XXXXXXXXXX
-------------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Director
Address: X.X. Xxx 00
Xxxxx 00000
Xxxxxx
Phone: 000-0-0000000
Fax:
Exhibit 2.12
Page 24
25
EXHIBIT A
TO REGISTRATION RIGHTS AGREEMENT
FORM OF JOINDER AGREEMENT
This Joinder Agreement (the "Joinder Agreement") is entered into as of
the date written below among the undersigned (the "Joining Party") and the
parties to the Registration Rights Agreement dated as of the day of , 2000 (the
"Registration Rights Agreement"), among U.S. Technologies Inc., a Delaware
corporation (the "Company"), and certain holders of the capital stock and other
securities of the Company. Capitalized terms used but not defined herein shall
have the meanings given such terms in the Registration Rights Agreement.
The Joining Party hereby acknowledges, agrees and confirms that, by its
execution of this Joinder Agreement, the Joining Party shall be deemed to be a
party to the Registration Rights Agreement and shall have all of the rights and
obligations of a "Holder" under the Registration Rights Agreement. The Joining
Party hereby ratifies, as of the date hereof, and agrees to be bound by, all of
the terms, provisions and conditions contained in the Registration Rights
Agreement.
This Joinder Agreement may be executed by facsimile.
IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement
as of this ___ day of _______________, 2001.
-------------------------------
Name:
Address:
Telephone:
Facsimile:
Exhibit 2.12
Page 25
