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EXHIBIT B
VOTING SHARES
Shareholder Shares Held
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USV Partners, LLC 500,000 Shares of Common Stock Issuable Upon
Conversion of Warrant
625,000 Shares of Series A Preferred
Convertible Stock
6,366,152 Shares of Common Stock
Xxxxx X. Xxxxxx 1,500,000 Shares of Common Stock Issuable
Upon Conversion of Options
6,318,652 Shares of Common Stock
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EXHIBIT B
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is made as of this
12th day of April, 2000, by and among U.S. Technologies Inc., a Delaware
corporation (the "Company"), USV Partners, LLC, a Delaware limited liability
company ("USV"), Xxxxx X. Xxxxxx ("Xxxxxx"), Northwood Ventures LLC, a New York
limited liability company ("Northwood Ventures"), Northwood Capital Partners
LLC, a New York limited liability company ("Northwood Capital") and Xxxxxxxx X.
Xxxxxxx ("Ledecky") (USV, Xxxxxx, Northwood Ventures, Northwood Capital and
Ledecky hereinafter referred to collectively as the "Shareholders").
RECITALS
WHEREAS, each of USV and Xxxxxx is the owner of certain shares
of the Company's common stock, par value $0.02 per share (the "Common Stock"),
the Company's Series A Convertible Preferred Stock, par value $0.02 per share
(the "Series A Stock"), and/or warrants (the "Warrants") to purchase shares
(subject to adjustment pursuant to the terms thereof) of the Common Stock;
WHEREAS, the Company has entered into a Stock Exchange
Agreement dated as of February 21, 2000, as amended by the Amendment to Stock
Exchange Agreement dated as of April 5, 2000 (together, the "Stock Exchange
Agreement"), with E2Enet, Inc. ("E2E") and those persons (including Northwood
Capital, Northwood Ventures and Ledecky) who as of the closing of the merger
contemplated therein (the "Closing") will own, collectively, all of the issued
and outstanding shares of the capital stock of E2E (the "E2E Stockholders");
WHEREAS, pursuant to the Stock Exchange Agreement, the Company
is issuing to the E2E Stockholders at the Closing shares of the Company's Series
B Convertible Preferred Stock, par value $0.02 per share (the "Series B Stock"),
of which the majority will be owned, collectively, by Northwood Capital,
Northwood Ventures and Ledecky;
WHEREAS, the execution and delivery of this Agreement, setting
forth the agreement of the parties hereto with respect to the size and
composition of the Board of Directors of the Company (the "Board"), is a
condition to the Closing;
WHEREAS, the restated bylaws of the Company provide that the
Board shall consist of not less than one (1) nor more than fifteen (15) members,
and provides that the number of directors shall be determined by resolution of
the Board or by the shareholders of the Company at an annual meeting; and
WHEREAS, the Shareholders desire to set forth their agreement
with respect to the designation of nominees to be elected to the Board and the
voting of shares of the Company's capital stock in the election of directors, as
set forth herein.
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NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth herein, the Company and the Shareholders hereby agree as
follows:
1. SHARES SUBJECT TO AGREEMENT. Each Shareholder agrees to hold
all of its or his shares of Common Stock, Series A Stock, Series B Stock, Common
Stock issuable upon exercise of the Warrants and upon conversion of the Series A
Stock and Series B Stock, and any and all securities of the Company legally or
beneficially acquired by each of the Shareholders after the date hereof
(hereinafter referred to as the "Voting Shares") subject to, and to vote the
Voting Shares in accordance with, the provisions of this Agreement.
2. BOARD OF DIRECTORS.
(A) Each of the Shareholders hereby agrees to vote all of its
or his Voting Shares and to take all other necessary or desirable actions within
its or his control, and the Company hereby agrees to take all necessary and
desirable actions within its control (including, without limitation, calling
special meetings of the Board and of its shareholders), so that: (i) the number
of directors on the Board shall be established at eight (8) directors; and (ii)
such Board shall be composed of (A) four (4) directors designated by USV,
including C. Xxxxxxx Xxxxx as Chairman and Chief Executive Officer of the
Company; (B) two (2) directors designated by Ledecky; and (C) two (2) directors
designated by Northwood Ventures and Northwood Capital.
(B) The obligations of the Shareholders pursuant to this
Section 2 shall include the shareholder vote, if any, to amend the Certificate
of Incorporation or Bylaws of the Company currently in effect as required to
effect the intent of this Agreement. In the event any director elected pursuant
to the terms hereof ceases to serve as a member of the Board, the Company and
the Shareholders agree to take all such action as is reasonable and necessary,
including the voting of Voting Shares by the Shareholders, to cause the election
or appointment of such other substitute person to the Board as may be designated
in accordance with the terms of this Agreement. The Company shall promptly give
the Shareholders written notice of any election to or appointment of, or change
in the composition of, the Board. Each of the Shareholders and the Company
agrees not to take any actions which would materially and adversely affect the
provisions of this Agreement and the intention of the parties with respect to
the composition of the Board as herein stated.
(C) Each of the Shareholders and the Company represents that
it or he has not granted and is not a party to any proxy, voting agreement or
similar arrangement which is inconsistent with or conflicts with the provisions
of this Agreement, and no holder of Voting Shares shall grant any proxy or
become party to any voting agreement or similar arrangement which is
inconsistent with or conflicts with the provisions of this Agreement.
3. TERMINATION. Unless earlier terminated by written agreement of
the Shareholders that have rights and obligations hereunder, this Agreement
shall terminate upon the third (3rd) anniversary hereof (it being agreed that no
Shareholder shall have any rights or obligations hereunder once such
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Shareholder shall have sold at least half of the Voting Shares owned by it or
him immediately following the Closing).
4. SUCCESSORS IN INTEREST.
(A) The provisions of this Agreement shall be binding upon all
transferees or assignees of the Voting Shares; provided, however, that
transferees or assignees that acquire Voting Shares through open-market,
non-negotiated transactions shall not be subject to the provisions of this
Agreement. The Company shall not permit the transfer of any of the Voting Shares
on its books or issue a new certificate representing any of the Voting Shares
unless and until the person to whom such security is to be transferred shall
have executed a written agreement, substantially in the form of this Agreement,
pursuant to which such person becomes a party to this Agreement and agrees to be
bound by all the provisions hereof as if such person were a Shareholder on the
date hereof; provided, however, that transferees or assignees that acquire
Voting Shares through open-market, non-negotiated transactions shall not be
subject to the provisions of this Agreement.
(B) In addition to any other legends that are required, either
by agreement or by federal or state securities laws, each certificate
representing any of the Voting Shares shall be marked by the Company with a
legend reading as follows:
THE SHARES EVIDENCED HEREBY ARE SUBJECT TO THE TERMS AND CONDITIONS OF
A VOTING AGREEMENT DATED AS OF APRIL 12, 2000, BY AND AMONG U.S.
TECHNOLOGIES INC. AND CERTAIN HOLDERS OF THE OUTSTANDING CAPITAL STOCK
OF SUCH CORPORATION (A COPY OF WHICH MAY BE OBTAINED FROM SUCH
CORPORATION). BY ACCEPTING ANY INTEREST IN SUCH SHARES, THE PERSON
HOLDING SUCH INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL BECOME
BOUND BY ALL OF THE PROVISIONS OF SUCH AGREEMENT.
5. ENFORCEABILITY. Each of the Shareholders and the Company expressly
agrees that this Agreement shall be specifically enforceable in any court of
competent jurisdiction in accordance with its terms.
6. NOTICES. All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by registered or certified
mail, postage prepaid, return receipt requested, or otherwise delivered by hand
or by messenger or sent by facsimile, addressed:
(A) if to the Company, to:
U.S. Technologies Inc.
c/o U.S. Viewing Corporation
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
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Attn: C. Xxxxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
(B) if to USV, to:
USV Partners, LLC
c/o U.S. Viewing Corporation
0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: C. Xxxxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
(C) if to Xxxxxx, to:
Xxxxx X. Xxxxxx
c/o U.S. Technologies Inc.
0000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
(D) if to Northwood Ventures, to:
Northwood Ventures LLC
000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Telephone: 000-000-0000
Facsimile: 516-364-0879
(E) if to Northwood Capital, to:
Northwood Capital Partners LLC
000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Telephone: 000-000-0000
Facsimile: 516-364-0879
(F) if to Ledecky, to:
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Xxxxxxxx X. Xxxxxxx
0000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
or to such other address as any such party shall have furnished to the other
parties hereto in accordance with this Section 6. If notice is provided by mail,
notice shall be deemed to be given five (5) days following proper deposit with
the United States mail. If notice is delivered by hand or by messenger or sent
by facsimile, notice shall be deemed to be given upon receipt.
7. DELAYS IN EXERCISING RIGHTS. No delay in exercising or failure to
exercise any right, power or remedy accruing to any party hereto upon any breach
or default of any other party under this Agreement shall impair any such right,
power or remedy, nor shall it be construed to be a waiver of any such breach or
default or an acquiescence therein, or of any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any party hereto of any breach or default under this Agreement, or
any waiver on the part of any party hereto of any provisions or conditions of
this Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing or as provided in this Agreement. All
remedies, either under this Agreement or by law or otherwise afforded to any
party hereto, shall be cumulative and not alternative.
8. COUNTERPARTS. This Agreement may be executed in one or more
counterparts (including by facsimile), each of which shall constitute an
original enforceable against the party actually executing such counterpart, and
all of which together shall constitute one and the same instrument.
9. ADDITIONAL SHARES. In the event that subsequent to the date of this
Agreement any shares of capital stock or other securities of the Company are
issued on or in exchange for any of the Voting Shares by reason of any stock
dividend, stock split, consolidation of shares, reclassification or
consolidation involving the Company, such shares or other securities shall be
deemed to be covered by and subject to the terms of this Agreement.
10. SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement will continue in full force and effect
without said provision, and the parties hereto agree to replace such provision
with a valid and enforceable provision that will achieve, to the extent
possible, the economic, business and other purposes of such provisions.
11. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware without regard to its
principles of choice of law or conflict of laws.
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12. ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between any and among all of the parties hereto
regarding the subject matter hereof and supersedes all prior agreements with
regard to the subject matter hereof. [Without limiting the generality of the
foregoing, each of the Company, USV and Xxxxxx hereby acknowledges and agrees
that this Agreement supersedes all prior agreements between any or among all of
the Company, USV and Xxxxxx (whether pursuant to the Investment Agreement dated
as of July 16, 1998, between the Company and USV, pursuant to the Management
Agreement dated as of November 29, 1999, among the Company, Xxxxxx and X.X.
(Skip) Xxxxx, or otherwise) with regard to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Voting
Agreement as of the date first written above.
U.S. TECHNOLOGIES INC. USV PARTNERS, LLC
By: USV Management, LLC
By: /s/ C. Xxxxxxx Xxxxx By: /s/ C. Xxxxxxx Xxxxx
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C. Xxxxxxx Xxxxx, Co-Chairman C. Xxxxxxx Xxxxx, Sole Member
and Co-Chief Executive Officer
NORTHWOOD VENTURES LLC NORTHWOOD CAPITAL PARTNERS LLC
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Managing Director Xxxxx X. Xxxxxx, Managing Director
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxxxx X. Xxxxxxx
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XXXXX X. XXXXXX XXXXXXXX X. XXXXXXX
