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EXHIBIT 2.5
AMENDMENT TO STOCK EXCHANGE AGREEMENT
This Amendment to Stock Exchange Agreement (the "Amendment")
is made as of this 5th day of April, 2000, by and among U.S. Technologies Inc.,
a Delaware corporation (the "Company"), U.S. Technologies Acquisition Sub,
Inc., a Delaware corporation and wholly owned subsidiary of the Company
("Newco"), E2Enet, Inc., a Delaware corporation ("E2E"), Northwood Ventures
LLC, a New York limited liability company ("Northwood Ventures"), Northwood
Capital Partners LLC, a New York limited liability company ("Northwood Capital"
and, together with Northwood Ventures, "Northwood"), Xxxxxxxx X. Xxxxxxx
("Ledecky") and the other E2E Stockholders (as defined below) (each of the
foregoing, individually, a "Party," and, collectively, the "Parties").
Capitalized terms used but not defined herein have the respective meanings
assigned to them in the Stock Exchange Agreement (as defined below).
RECITALS:
A. The Company, E2E and the E2E Stockholders entered
into a Stock Exchange Agreement dated as of February 21, 2000 (the "Stock
Exchange Agreement"), pursuant to which the Company agreed to acquire all of
the issued and outstanding shares of capital stock of E2E (the "E2E Shares")
from those persons who would own all of such shares as of the closing of the
acquisition contemplated therein (the "E2E Stockholders");
B. In exchange for all of the issued and outstanding
shares of E2E, the Company agreed to issue to the E2E Stockholders the
Preferred Shares; and
C. The Parties desire to amend the Stock Exchange
Agreement to provide for (i) the merger of E2E with and into Newco, with Newco
being the surviving corporation, and (ii) the conversion of the shares of
capital stock of E2E into the Preferred Shares, all upon the terms and
conditions set forth herein.
AGREEMENTS:
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties agree as follows:
1. Additional Party. Newco is added as a party to the Stock Exchange
Agreement, and all references to Members of the Company Group shall be deemed
to include Newco.
2. Amendment to Article I.
(a) The definition of "Investment Documents" in Article I of the
Stock Exchange Agreement is amended by replacing it in its entirety with the
following:
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"Investment Documents" shall mean this Agreement,
the Preferred Shares, the Certificate of Designations, the
Amended and Restated Registration Rights Agreement, the
Voting Agreement relating to the Board of Directors of the
Company and the Certificate of Merger (as defined below).
(b) The following definition is added to Article I of the Stock
Exchange Agreement:
"Certificate of Merger" has the meaning given to it
in Section 2.2.
(c) The definition of "Preferred Shares" in Article I of the
Stock Exchange Agreement is amended by replacing it in its entirety with the
following:
"Preferred Shares" means the duly authorized,
validly issued, fully paid and non-assessable shares of the
Series B Mandatorily Convertible Preferred Stock of the
Company with an aggregate stated value equal to $11,200,000,
mandatorily convertible into an aggregate of 56,000,000
shares of Common Stock as described in Section 3.1.
3. Amendment to Article II. Article II of the Stock Exchange Agreement is
amended by replacing it in its entirety with the following:
ARTICLE II. THE MERGER
2.1 Merger; Effects of Merger.
(a) Upon the terms and subject to the
conditions of this Agreement, at the Effective Time (as
defined below), (i) E2E shall be merged with and into Newco
(the "Merger"), (ii) the separate existence of E2E shall
thereupon cease, and (iii) the name of Newco, as the
surviving corporation in the Merger (the "Surviving
Corporation"), shall by virtue of the Merger be E2Enet, Inc.
(b) The Merger shall have the effects
set forth in the Delaware General Corporation Law (the
"DGCL"). Without limiting the generality of the foregoing, at
the Effective Time, all of the properties, rights,
privileges, powers and franchises of E2E and Newco shall vest
in the Surviving Corporation, and all of the debts,
liabilities and duties of E2E and Newco shall become the
debts, liabilities and duties of the Surviving Corporation.
2.2 Closing of Merger. Subject to the terms and
conditions of this Agreement, the closing of the Merger (the
"Closing") shall take place at the offices of Xxxxxxxxxx and
Xxxxx, L.L.P. at 10:00 a.m., local time, on a date
satisfactory to the Company, Newco and E2E which is no later
than the fifth Business Day after satisfaction (or waiver) of
the conditions to Closing set forth in
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Articles IV and V hereof (other than those conditions which
require the delivery of any documents or the taking of other
actions at the Closing) (the "Closing Date"). On the Closing
Date, the Parties agree to file with the Secretary of State
of the State of Delaware a certificate of merger (the
"Certificate of Merger") in the form required by, and
executed in accordance with, the relevant provisions of the
DGCL. The Merger will become effective upon filing of the
Certificate of Merger with the Secretary of State of the
State of Delaware (the "Effective Time").
2.3 Articles of Incorporation. The Articles of
Incorporation of Newco in effect at the time of the Merger
shall be the Articles of Incorporation of the Surviving
Corporation, until thereafter amended as provided thereunder
and under the DGCL.
2.4 Bylaws. The Bylaws of Newco in effect at
the time of the Merger shall be the Bylaws of the Surviving
Corporation, until thereafter altered, amended or repealed as
provided thereunder and under the Articles of Incorporation
of the Surviving Corporation and the DGCL.
2.5 Directors and Officers of Surviving
Corporation. The directors and officers of Newco immediately
prior to the Effective Time will be the directors and
officers of the Surviving Corporation, and each shall hold
office from the Closing Date until such time as his successor
is duly elected or appointed and qualified in the manner
provided in the Articles of Incorporation and Bylaws of the
Surviving Corporation, or as otherwise provided by law.
2.6 Conversion of Shares.
(a) E2E Shares. As of the Effective
Time, by virtue of the Merger and without any action on the
part of the E2E Stockholders, the E2E Shares held by each E2E
Stockholder shall be converted into such E2E Stockholder's
pro rata share of the Preferred Shares. As of the Closing
Date, all of the certificates which immediately prior to the
Closing represented E2E Shares shall be deemed for all
purposes to evidence ownership of and to represent the
Preferred Shares into which the E2E Shares formerly
represented by such certificates have been converted as
herein provided.
(b) Exchange of Certificates. On or
after the Closing Date, the E2E Stockholders shall surrender
to Xxxxxxxxxx and Xxxxx, L.L.P., as exchange agent (the
"Exchange Agent"), stock certificates representing their
respective E2E Shares, together with stock powers duly
executed in favor of the Company. Upon the surrender of any
such stock certificate by or on behalf of any E2E
Stockholder, the Company shall direct the Exchange Agent (1)
on behalf of the Surviving Corporation, to cancel such stock
certificate, and (2) on behalf of the
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Company, to issue to such E2E Stockholder certificates
representing the Preferred Shares into which the E2E Shares
held by such E2E Stockholder shall have been converted at the
Effective Time. The E2E Shares, when converted into the
Preferred Shares at the Effective Time, shall no longer be
outstanding and shall automatically be canceled and retired
and shall cease to exist. The Exchange Agent shall hold in
escrow stock certificates representing all of the Preferred
Shares issued in connection with the Merger until the earlier
of (i) written notice by the Company directing the Exchange
Agent to release such certificates; (ii) written notice by
the Company directing the Exchange Agent to release such
certificates following the Company's receipt of (x) a joinder
to the Agreement and a consent and joinder to the Amendment,
duly executed by each of the E2E Stockholders other than
Ledecky and Northwood, (y) releases in the form of the letter
from Xxxxx & Xxxxxxx L.L.P. to each E2E Stockholder dated
March 20, 2000, duly executed by each of the E2E Stockholders
other than Ledecky and Northwood, and (z) stock certificates
representing all of the E2E Shares, together with stock
powers duly executed in favor of the Company; or (iii)
approval of the Charter Amendment and the conversion of the
Preferred Shares into Common Stock as described in the
Agreement (provided, however, that, notwithstanding approval
of the Charter Amendment and the conversion of the Preferred
Shares into Common Stock, the Exchange Agent shall continue
to hold in escrow certificates representing shares of Common
Stock issued to those E2E Stockholders who have not executed
and delivered to the Company the documents described in
Section 2.6(b)(ii) until the Company receives such
documents).
(c) Newco Shares. Each share of common
stock, par value $0.01 per share, of Newco issued and
outstanding immediately prior to the Closing Date shall be
converted into and exchanged for one (1) validly issued,
fully paid and nonassessable share of common stock, par value
$0.01 per share, of the Surviving Corporation.
2.7 Tax-Free Merger. It is intended that the
Merger will constitute a tax-free reorganization under
Section 368(a) of the Internal Revenue Code of 1986, as
amended (the "Code"), and that this Agreement will constitute
a "plan of reorganization" within the meaning of the
regulations promulgated under such section of the Code.
4. Amendments to Article IV. Sections 4.2(b), 4.2(f) and 4.10 of the
Stock Exchange Agreement are deleted in their entirety.
5. Amendments to Article V. Sections 5.2(a), 5.2(d) and 5.3 of the Stock
Exchange Agreement are deleted in their entirety.
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6. Amendments to Article VII.
(a) Section 7.6 of the Stock Exchange Agreement is amended by
replacing it in its entirety with the following:
7.6 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 offer, issuance,
sale, execution or delivery by the Company of, or for the
performance by the Company of its obligations under, any of
the Investment Documents other than (i) under applicable
securities laws with respect to the Charter Amendment, (ii)
the filing of the Certificate of Merger with the Secretary of
State of the State of Delaware, and (iii) under applicable
securities laws with respect to the transactions contemplated
by the registration rights set forth in the Amended and
Restated Registration Rights Agreement.
(b) Article VII of the Stock Exchange Agreement is amended by
adding the following Section 7.18:
7.18 Newco.
(a) Newco is a corporation duly
organized, validly existing and in good standing under the
Laws of the State of Delaware.
(b) Newco has all necessary corporate
power and authority to enter into the Investment Documents to
which it is a party and to carry out its obligations
thereunder. Newco has duly executed and delivered (or will
have, with respect to deliveries to be executed and delivered
by it at Closing) each of the Investment Documents, and each
is (or will be, with respect to deliveries to be executed and
delivered by it at Closing) a legal, valid and binding
obligation of Newco, enforceable against Newco 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.
(c) The authorized capital stock of
Newco consists of 1,000 shares of common stock, par value
$0.01 per share, of which 100 shares are issued and
outstanding on the date hereof. Without limiting the
generality of the foregoing Section 7.4, all of the
outstanding shares of capital stock of Newco have been duly
authorized and validly issued, and are fully paid,
nonassessable and free and clear of all Liens. There are no
options, warrants or rights to purchase shares of capital
stock or other securities of Newco issued or outstanding, nor
is Newco obligated in any other manner to issue shares of its
capital stock or other securities.
(d) Other than the filing of the
Certificate of Merger, no authorization, consent, approval,
License, exemption of or filing or registration
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with any court or Government Entity is or will be necessary
for or in connection with the execution or delivery by Newco
of or the performance by Newco of its obligations under any
of the Investment Documents.
(c) Section 7.16 of the Stock Exchange Agreement is amended to
replace the reference to the "Exchange" with a reference to the "Merger."
7. Amendments to Article VIII.
(a) Section 8.2 of the Stock Exchange Agreement is amended such
that all references therein to the "Company" shall be deemed to be references
to the Company and Newco.
(b) Section 8.2 of the Stock Exchange Agreement is amended by
adding the following Section 8.2(h):
(h) Tax-Free Merger. The Company and
Newco agree that the Merger is intended to be a tax-free
reorganization under Section 368 of the Code and that this
Agreement is intended to be a "plan of reorganization" within
the meaning of the regulations promulgated under such section
of the Code. Neither the Company nor the Surviving
Corporation will take or fail to take any action which would
jeopardize the qualification of the Merger as such a
reorganization (other than such actions as may be legally
required).
8. Amendments to Article X.
(a) Section 10.1(a) of the Stock Exchange Agreement is amended by
replacing it in its entirety with the following:
(a) This Agreement may be terminated
and the Merger may be abandoned by (i) the mutual, written
agreement of the E2E Representatives and the Company, (ii) by
either the E2E Representatives or the Company if (x) the
Merger shall not have been consummated by 5:00 p.m. Eastern
Standard Time on April 11, 2000, provided that the party
seeking to terminate this Agreement pursuant to this clause
(ii) is not in breach of this Agreement (or in the case of
the E2E Representatives, neither they nor any of the other
E2E Stockholders are in breach of this Agreement), or (y) a
Government Entity shall have issued an Order or taken any
other action permanently restraining, enjoining or otherwise
prohibiting the transactions contemplated by this Agreement
and such Order or other action shall have become final and
nonappealable; provided that the Party or Parties seeking to
terminate this Agreement pursuant to this clause (ii) (y)
shall have used all reasonable efforts to remove such Order.
(b) Section 10.1(c) of the Stock Exchange Agreement is amended
such that all references therein to the "Company" shall be deemed to be
references to the Company or Newco, as the case may be.
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9. Amendment to Article XI. Section 11.4 of the Stock Exchange Agreement
is amended to add the following address for Newco:
U.S. Technologies Acquisition Sub, Inc.
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
10. Stock Exchange Agreement. Except as otherwise expressly provided in
this Amendment, the provisions of the Stock Exchange Agreement remain in full
force and effect.
11. Counterparts; Facsimile Signatures. This Amendment may be executed in
one or more counterparts, and executed signature pages sent by a Party to the
other Parties by facsimile shall be binding as evidence of such Party's
agreement hereto and acceptance hereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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The parties hereto have executed this Amendment to Stock
Exchange Agreement as of the date first written above.
U.S. TECHNOLOGIES INC.
By: /s/ C. Xxxxxxx Xxxxx
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Name: C. Xxxxxxx Xxxxx
Title: Co-Chairman and Co - CEO
U.S. TECHNOLOGIES ACQUISITION SUB, INC.
By: /s C. Xxxxxxx Xxxxx
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Name: C. Xxxxxxx Xxxxx
Title: President
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[signature page to Amendment to Stock Exchange Agreement,
dated as of April 5, 2000]
E2ENET, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
NORTHWOOD CAPITAL PARTNERS LLC
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
NORTHWOOD VENTURES LLC
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
/s/ Xxxxxxxx X. Xxxxxxx
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XXXXXXXX X. XXXXXXX
