-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WYKMNlabft2m8hBA+Q1lGE4XU7bBME67kznvmVX0YSGNPcHgYkR5q2fIH0HO+PVG xsZkuPUc+Qy1SHo8K0gB5Q== 0000950144-99-002277.txt : 19990301 0000950144-99-002277.hdr.sgml : 19990301 ACCESSION NUMBER: 0000950144-99-002277 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 19990215 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19990226 FILER: COMPANY DATA: COMPANY CONFORMED NAME: U S TECHNOLOGIES INC CENTRAL INDEX KEY: 0000810130 STANDARD INDUSTRIAL CLASSIFICATION: PRINTED CIRCUIT BOARDS [3672] IRS NUMBER: 731284747 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 000-15960 FILM NUMBER: 99552763 BUSINESS ADDRESS: STREET 1: 3901 ROSWELL ROAD SUITE 300 CITY: MARIETTA STATE: GA ZIP: 30062 BUSINESS PHONE: 7705654311 MAIL ADDRESS: STREET 1: 3901 ROSWELL ROAD STREET 2: SUITE 300 CITY: MARIETTA STATE: GA ZIP: 30062 FORMER COMPANY: FORMER CONFORMED NAME: CAREAMERICA INC DATE OF NAME CHANGE: 19890720 8-K 1 U.S. TECHNOLOGIES, INC. 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported) February 15, 1999 ------------------------------- U.S. Technologies, Inc. - -------------------------------------------------------------------------------- (Exact name of registrant as specified in its charter) Delaware 0-15960 73-1284747 - -------------------------------------------------------------------------------- (State or other jurisdiction (Commission File Number) (IRS Employer of incorporation) Identification No.) 3901 Roswell Road, Suite 300, Marietta, Georgia 30062 - -------------------------------------------------------------------------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code (770) 565-4311 --------------------------- Not applicable - -------------------------------------------------------------------------------- (Former name or former address, if changed since last report) 2 ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS. Pursuant to that certain Severance Agreement (the "Severance Agreement") entered into on February 11, 1999, between U.S. Technologies Inc. (the "Company") and Kenneth H. Smith, the former President and Chief Executive Officer of the Company ("Smith"), the Company sold to Smith all of the Company's interest in the Company's wholly-owned subsidiary, GWP, Inc., a Georgia corporation ("GWP"). GWP is the owner of 51% of the voting shares of Technology, Manufacturing & Design, Inc., a Texas corporation ("TMD"), which shares GWP acquired on October 5, 1998. The sale of GWP, including the 51% interest in TMD owned by GWP, was concluded on February 15, 1999, at which time Smith executed a personal Promissory Note (the "Promissory Note") in the amount of $1,234,832 as payment of the purchase price of the Company's interest in GWP. This amount reflects the Company's estimate of the investment by the Company in GWP and TMD through February 11, 1999. The Severance Agreement provides that the amount of the Promissory Note is subject to adjustment based on the findings of BDO Seidman, LLP, the independent auditors of the Company, with respect to the total investment by the Company in GWP and TMD through February 11, 1999, and that such findings of BDO Seidman, LLP shall be conclusive as to the amount of the Company's investment and the amount of the adjustment, if any, to the Promissory Note. The Promissory Note is secured by a pledge by Smith of 3,000,000 shares of the Company's common stock, which pledge also secures a personal guaranty by Smith of certain obligations of the Company with respect to TMD. In addition, GWP has pledged of all of its shares of TMD to secure a guaranty by GWP of certain obligations of the Company with respect to TMD. Immediately following the execution of the Severance Agreement by Smith, the board of directors of TMD, consisting of Smith and Larry Little, caused the Company to file a bankruptcy petition pursuant to Chapter 11 of the Bankruptcy Code. Following the execution of the Severance Agreement, Smith paid $875,199.52 to the Company, as repayment of certain of loans from the Company to Smith. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS. (a) Exhibits: 2.1 Severance Agreement entered into February 11, 1999 by and between the Company and Kenneth H. Smith. 2.2 Promissory Note dated as of February 15, 1999 in the principal amount of $1,234,832 executed by Kenneth H. Smith in favor of the Company 2.3 Agreement of Non-Dilution entered into February 15, 1999 between TMD and the Company. -2- 3 2.4 Stock Pledge and Guaranty Agreement of GWP, Inc. dated as of February 15, 1999 by and between GWP, Inc. and the Company. 2.5 Stock Pledge and Guaranty Agreement of Kenneth H. Smith dated as of February 15, 1999 by and between the Company and Kenneth H. Smith. 2.6 Stock Purchase Agreement entered into as of February 15, 1999 by and between the Company and Kenneth H. Smith. (b) Pro Forma Financial Information: At the present time, it is impractical to provide the pro forma financial information relative to the TMD disposition as required by Article 11 of Regulation S-K and this Item 7 of Form 8-K. The Company will file such pro forma financial information under cover of Form 8-K/A as soon as practicable. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned hereunto duly authorized. U.S. TECHNOLOGIES INC. Dated: February 26, 1999 By: /s/ C. Gregory Earls ------------------------- C. Gregory Earls President and Chief Executive Officer -3- 4 EXHIBIT INDEX
EXHIBIT NO. Description of Exhibit ----------- ---------------------- 2.1 Severance Agreement entered into February 11, 1999 by and between the Company and Kenneth H. Smith. 2.2 Promissory Note dated as of February 15, 1999 in the principal amount of $1,234,832 executed by Kenneth H. Smith in favor of the Company 2.3 Agreement of Non-Dilution entered into February 15, 1999 between TMD and the Company. 2.4 Stock Pledge and Guaranty Agreement of GWP, Inc. dated as of February 15, 1999 by and between GWP and the Company. 2.5 Stock Pledge and Guaranty Agreement of Kenneth H. Smith dated as of February 15, 1999 by and between the Company and Kenneth H. Smith. 2.6 Stock Purchase Agreement entered into as of February 15, 1999 by and between the Company and Kenneth H. Smith.
-4- EX-2.1 2 SEVERANCE AGREEMENT 1 EXHIBIT 2.1 U.S. Technologies Inc. February 11, 1999 Mr. Kenneth H. Smith President and Chief Executive Officer U.S. Technologies Inc. 3901 Roswell Road, Suite 300 Marietta, GA 30062 Re: Offer of U.S. Technologies Inc. (the "Company") of Severance Terms and Conditions Dear Ken: In reviewing your proposal of the compensation and other benefits to be paid to you by the Company as consideration for your resignation as President and Chief Executive Officer of the Company and as a controlling director of the Company, I have considered what I believe to be the best interests of the Company and its shareholders, including the significant benefits to be derived by the Company from the avoidance of shareholder and creditor lawsuits and from the potential avoidance of the imminent bankruptcy of the Company. Based upon these considerations and based upon my consultations with the outside accountants for the Company and the outside legal counsel for the Company, I hereby, on behalf of the Company, as I have been specifically empowered by the Board of Directors of the Company to do, offer the following terms and conditions for your severance from employment with the Company: (b) The Company will retain you as an independent contractor for consulting services, as needed by the Company, for six months and will pay to you for such consulting services the aggregate amount of $125,000, in six equal installments, commencing on the later date of (i) 30 days after the date of your resignation as an officer and director of the Company, and (ii) the date of the repayment of your indebtedness to the Company, as provided below, with each additional installment to be paid 30 days following the payment of the most recent installment; provided that the payments contemplated hereby will be reduced by any amounts owed by you to the Company over and above the repayment contemplated by Section 4 and Section 5 below. Further, you will assist with the transition of management and with other Company matters, as may be requested by the Board of Directors of the Company. The payments for your consulting services will be reported on IRS Form 1099. -5- 2 (c) The Company will pay to you the aggregate amount of $4,800, in twelve equal installments, as payment of a portion of your lease payments due on a certain Mercedes Benz automobile, such installments to commence on the later date of (i) 30 days after the date of your resignation as both an officer and director of the Company and (ii) the date of the repayment of your indebtedness to the Company, as provided below, with each additional installment to be paid 30 days following the payment of the most recent installment. The lease will be reassigned to you by the Company and you will be responsible for all insurance coverages required for the automobile and for the lease. (d) The Company will sell to you the laptop computer currently used by you and owned by the Company, for a purchase price equal to the book value of said laptop computer; (e) You agree to sell 3,366,152 shares of the common stock, $.02 par value, of the Company, and to apply all of the proceeds thereof as repayment of all or a portion of the outstanding balance of loans due from you to the Company; (f) The Company, upon 30 days following the effective date of your resignation as an officer and director, and upon repayment of the amount contemplated in Section 4 above, will reimburse you in the amount any and all of your unpaid out-of-pocket expenses attributable to the business of the Company, less any amounts owed to the Company over and above the repayment amount paid pursuant to Section 4 above, including any accrued interest on your loans to the Company or other amounts due and owing to the Company; (g) Upon and as of the effective date of your resignation as an officer and director of the Company, you will purchase, and the Company will sell to you, GWP, Inc., the Company's wholly-owned subsidiary which currently owns 51% of the voting shares of Technology Manufacturing & Design, Inc. ("TMD"), in a transaction to be concluded as soon as possible following the effective date of your resignation as an officer and director of the Company and the repayment of your indebtedness to the Company, and upon such terms and conditions as are acceptable to legal counsel to the Company and are not inconsistent with the terms and conditions of this offer, such terms and conditions to include: (a) You agree to execute a personal, non-exculpated promissory note, in the amount of $1,234,832, representing the total existing investment, plus expenses, of the Company in GWP, Inc. (the "Note"), such Note to bear interest at the prime rate plus 200 basis points (as such prime rate is published from time to time in the Wall Street Journal), with interest to be payable quarterly, the first payment thereof being six months from the date of the Note (in the amount of the accrued -6- 3 interest thereon to date), with the principal thereof to be repaid in equal installments of $411,610.67, payable at the end of each 12-month period, beginning on the date of the Note, with no prepayment penalty thereon; (b) You hereby pledge, pursuant to this agreement, 3,000,000 shares of the common stock of the Company to the performance of your obligations hereunder this Section 6 and, further, to the repayment of the Note under the terms of a stock pledge and guaranty agreement which are acceptable to the legal counsel to the Company and which are not inconsistent with the terms and conditions hereof; such pledge to also secure your personal guaranty of the satisfaction of certain existing obligations of TMD (the "Obligations") which are presently guaranteed by the Company, including, but not limited to, the payment of the Fidelity Funding, Inc. loan, pursuant to the Loan and Security Agreement between TMD and Fidelity Funding, Inc., dated as of November 30, 1998, and the performance of the purchase price payment to the minority shareholders of TMD pursuant to Section 8.2 of the Amended and Restated Stock Purchase Agreement between TMD and GWP, Inc. dated as of October 5, 1998. You agree that any subsequent defaults of TMD with respect to the Obligations will constitute a default under the Note; (c) GWP, Inc. will pledge its shares of TMD to secure the Note and the performance by TMD of the Obligations and such pledge shall contain such anti-dilution covenants as are acceptable to legal counsel to the Company and which shall assure that the collateral pledged by GWP, Inc. will always equal 51% of the voting stock of TMD; (d) You and GWP, Inc. will each guarantee the performance by TMD of the Obligations, and GWP, Inc. and TMD will each guarantee the repayment of your Note; (e) As additional collateral for the repayment of the Note and the performance by TMD of the Obligations, you will give to C. Gregory Earls, or to such other proxy holder chosen by the Board of Directors of the Company, your irrevocable proxy, which shall be deemed to be coupled with an interest, with respect to all of your shares, pledged or otherwise, of common stock of the Company. Such proxy shall terminate immediately upon the later to occur of (i) the repayment of the Note with all interest thereon; and (ii) the satisfaction by TMD of the Obligations; -7- 4 (f) The amount of the Note shall be adjusted, if necessary, to reflect the total amount of investment and expenses of the Company in GWP, Inc. and TMD, Inc., as determined by BDO Siedman, LLP, CPAs, independent auditors of the Company, and such determination of said amount shall be deemed conclusive as between the parties; and (g) You, GWP, Inc. and TMD will agree to provide such additional assurances as may be deemed necessary by legal counsel to the Company in the event that the Company shall deem itself insecure with respect to the repayment of the Note and the performance by TMD of the Obligations. Further, you agree that BDO Seidman, LLP, CPA's will conduct the annual audit for TMD, at the expense of TMD, for 1998 and for each fiscal year in which the Note and the Obligations are outstanding and unsatisfied. (h) You agree that, for a period of three years, commencing on the effective date of your resignation as an officer and director of the Company, you will not directly or indirectly engage in or carry on, either individually or as a stockholder, director, officer, consultant, independent contractor, employee, agent, member or otherwise of or through any corporation, partnership, association, joint venture, firm, individual or otherwise, or in any other capacity, the business of prison-based manufacturing and/or services anywhere in the United States; provided, that there shall be no restriction upon your engaging in the business of the prison-based manufacturing of electronics anywhere outside the State of Texas. (i) You agree that you will not, for a period of three years, commencing on the effective date of your resignation as an officer and director of the Company, call upon, recruit, solicit, or assist others in calling upon, recruiting or soliciting any person who is or was an employee of the Company and its subsidiaries, for the purpose of having such person work in any other corporation, association, or business engaged in providing products or services of the same or similar kind as those offered by the Company. This letter constitutes the offer of the Company with respect to your severance compensation and benefits. This offer will be deemed to have been accepted upon (i) receipt of your effective, unconditional resignation, in writing, (ii) your repayment of the amount contemplated by Section 4 above, and (iii) your delivery, pursuant to the pledge requirements of Section 6(b) hereof, of 3,000,000 shares of your common stock of the Company, along with a stock power of attorney -8- 5 endorsed in blank relating to said shares, on or before 5:00 p.m. Eastern Standard Time on February 12, 1999. Very truly yours, U.S. TECHNOLOGIES INC. /s/ John P. Brocard ----------------------------------------- John P. Brocard, Executive Vice President and General Counsel Accepted this 15th day of February, 1999 /s/ Kenneth H. Smith - ------------------------ Kenneth H. Smith cc: James C. Melton C. Gregory Earls -9- EX-2.2 3 PROMISSORY NOTE 1 EXHIBIT 2.2 $1,234,832 Atlanta, Georgia February 15, 1999 PROMISSORY NOTE FOR VALUE RECEIVED, the undersigned (hereinafter sometimes referred to as "Maker"), promises to pay to the order of U.S. Technologies Inc. ("UST"), a Delaware corporation, its successors and assigns, including any subsequent assignee or holder of this Note, hereinafter referred to, collectively, as "Holder", at its principal office at 3901 Roswell Road, Suite 300, Marietta, Georgia 30062, or at such other place or to such other person or persons as Holder shall designate in writing, the principal sum of One Million Two Hundred Thirty-four Thousand Eight Hundred Thirty-two and No/100 Dollars ($1,234,832.00), with interest thereon. This Note is secured by and is subject to the benefits and security provided by, and the terms and conditions of, that certain stock pledge and guaranty agreement, by and between Maker and UST, of even date herewith ("Smith Pledge Agreement"), and that certain stock pledge agreement, by and between GWP, Inc. and UST, of even date herewith ("GWP Pledge Agreement") as well as the relevant terms of that certain severance agreement entered into between Maker and UST on February 11, 1999 ("Severance Agreement"). Interest shall be computed on the outstanding balance from day to day on the basis of actual days elapsed, and a year of 360 days consisting of 12 months having 30 days each, at the prime rate (as published from time to time in the Wall Street Journal) plus 200 basis points. The interest accrued hereunder shall be payable in quarterly installments, beginning on the fifteenth (15th) day of August, 1999, six months following the date of this Note, and in the amount of the accrued interest thereon to date, and, thereafter, continuing on the fifteenth (15th) day of the first month of each succeeding three-month period until all principal, interest, penalties and other charges, if any, due and payable hereunder have been paid in full. The principal hereunder shall be repaid in equal installments of $411,610.67, payable at the end of each 12-month period, beginning on the date of this Note. The principal amount of this Note and any accrued unpaid interest shall be due and payable in full on the fifteenth (15th) day of February, 2002. Payments, as made, shall be applied first to the payment of accrued but unpaid interest, then to penalties and late charges, if any, and the balance of said payments shall be applied to principal. Principal, interest, penalties and late charges shall be payable in lawful money of the United States -10- 2 of America. All interest and principal payments shall be made by federal wire funds or checks issued by a United States commercial bank or a United States savings bank. Maker shall be permitted to prepay the Note, in part or in full, together with accrued and unpaid interest to the date of such prepayment, and all other accrued but unpaid late charges or penalties, if any, without premium or penalty for such prepayment. Should a default occur under any of the terms and conditions contained herein, and in any such event, the entire unpaid principal sum evidenced by this Note, with all accrued and unpaid interest then due, shall, at the option of the Holder and without notice or demand, except as expressly provided in this Note, become due and may be collected forthwith pursuant to the terms of the Pledge Agreement, time being of the essence of this Note. It is further agreed that the failure of Holder to exercise this right of accelerating the maturity of the debt, or indulgence granted from time to time, shall in no event be considered as a waiver of such right of acceleration or estop the holder from exercising such right. If a default shall occur under this Note, as a result of a failure by Maker to pay when due any sum of money required to be paid by this Note, Holder shall not exercise any of its rights and remedies under this Note without first giving to Maker written notice of such monetary default and an opportunity for five (5) calendar days following the date of such notice by Holder to cure such monetary default. If any other default, not involving nonpayment by Maker of a sum of money, shall occur under this Note, Holder shall not exercise any of its rights and remedies under this Note without first giving to Maker written notice of such non-monetary default and an opportunity for fifteen (15) calendar days following the date of such notice by Holder to cure such non-monetary default. Notwithstanding the foregoing, Holder shall have no obligation to give more than one (1) monetary default notice or more than one (1) non-monetary default notices for a non-monetary default in any 365 day period. Default events under this Note shall include the following: 1. Failure to pay any indebtedness evidenced by this Note, whether for principal or interest, when such indebtedness becomes due for whatever reason; 2. Failure of Technology Manufacturing & Design, Inc., a Texas corporation ("TMD") (51% of the voting shares of which are owned by GWP, Inc., a Georgia company which is wholly-owned by Maker) to satisfy or perform, fully, promptly, and completely, its obligations pursuant to the November 30, 1998 Loan and Security Agreement between TMD and Fidelity Funding, Inc., or pursuant to the Agreement of Non-Dilution between TMD and UST (the "TMD Non-Dilution Agreement"); 3. Failure of TMD to satisfy and perform, fully, promptly, and completely, the purchase price payment to the minority shareholders of TMD pursuant to Section 8.2 of the -11- 3 Amended and Restated Stock Purchase Agreement between TMD and GWP, Inc., dated as of October 5, 1998. 4. The occurrence of any event of default, or the occurrence of any event which, upon the passage of time, would constitute an event of default, under any agreement between the Maker and UST, between GWP, Inc. and UST, or between TMD and UST, including, but not limited to, the Smith Pledge Agreement, the GWP Pledge Agreement, the Severance Agreement and the TMD Non-Dilution Agreement. Should this Note be collected by law or through an attorney-at-law, all costs of collection, including reasonable attorneys' fees actually incurred, shall be paid by Maker. Notwithstanding any provision contained herein, the total liability of Maker for payment of interest, including late charges or other fees pursuant to this Note, or any other instrument evidencing the indebtedness evidenced by this Note, shall not exceed the maximum amount of such interest permitted by applicable law to be charged, and if any payments by Maker include interest in excess of such maximum amount, Holder shall apply such excess to the reduction of the unpaid principal amount due pursuant hereto. All notices, requests, demands and other communications required or permitted to be given hereunder shall be sufficient if in writing and delivered in person (including by overnight courier service) or sent by United States Certified Mail, return receipt requested, postage prepaid, to the party being given such notice at the following addresses: Maker: Kenneth H. Smith 2310 Edgemere Lake Circle Marietta, Georgia 30062 Holder: U.S. Technologies Inc. 3901 Roswell Road, Suite 300 Marietta, GA 30062 Any party may change said address for notice to another address in the continental United States by giving the other party hereto thirty (30) days prior written notice of such change of address. Notice given as herein provided above shall be deemed given on the date of its deposit (via certified mail) in the United States mail or delivery in person, as the case may be, and, unless sooner received, shall be deemed received by the party to whom it is addressed on the fifth calendar day following the date on which said notice is deposited in the mail. Refusal to accept delivery of any notice or inability to deliver notice as a result of an address change of which no notice is given shall be deemed receipt. -12- 4 Maker hereby waives and renounces for itself and its legal representatives, successors and assigns, all rights to the benefits of any statute of limitations and any moratorium, reinstatement, marshaling, forbearance, valuation, stay, extension, redemption, appraisement, exemption and homestead now provided, or which may hereafter be provided, by the Constitution and laws of the United States of America and of any state thereof, against the enforcement and collection of the obligation evidenced by this Note. This Note shall be governed by, enforced and interpreted in accordance with the laws of the State of Georgia. The word "undersigned," as used herein, shall include the successors and permitted assigns of Maker. The word "Holder" as used herein shall include any transferees and assignees of Holder, and all rights of Holder shall inure to the benefit of the successors and assigns of Holder. IN WITNESS WHEREOF, Maker has executed and sealed this Note the day and year first above written. MAKER: /s/ Kenneth H. Smith (SEAL) ------------------------------------------ Kenneth H. Smith -13- EX-2.3 4 AGREEMENT OF NON-DILUTION 1 EXHIBIT 2.3 AGREEMENT OF NON-DILUTION This Agreement of Non-Dilution (the "Agreement") is entered into, as of the 15th day of February, 1999, between Technology Manufacturing & Design, Inc., a Texas corporation ("TMD") and U.S. Technologies Inc., a Delaware corporation ("UST"). WHEREAS, UST intends to sell all of its capital shares of GWP Inc.. a Georgia corporation, and the parent corporation of TMD, to Kenneth H. Smith ("Smith") for the purchase price of $1,234,832, which purchase price shall be payable by the purchase-money, promissory note of Smith (the "Purchase-Money Note"); and WHEREAS, UST has extended and continues to make available, to TMD certain financial resources which constitute the working capital of TMD (the "Working Capital Resources"); and WHEREAS, TMD desires that UST sell all of its capital shares of GWP Inc. to Smith and that said Working Capital Resources continue to be made available to TMD; it is therefore AGREED, that in consideration of the aforementioned Working Capital Resources and other good and valuable consideration, receipt of which is hereby acknowledged: 5. TMD acknowledges and agrees that GWP, Inc. has pledged all of the shares of the capital stock of TMD, currently owned by GWP, Inc., to UST, as security for the payment of the interest and principal under the Purchase-Money Note and for the performance and satisfaction of certain other obligations of Smith and SWP, Inc. (the "Collateral"); 6. TMD acknowledges and agrees that said Collateral constitutes 51% of the voting stock and voting control of TMD; 7. TMD acknowledges and agrees that UST, Smith and GWP, Inc. have agreed and acknowledged that the Collateral, at all times prior to the repayment of the Note and the satisfaction of certain other obligations of Smith and GWP, Inc. to UST, shall constitute 51% of the voting stock and voting control of TMD; 8. TMD, at all time prior to the repayment of the Note and the satisfaction of the other obligations of Smith and GWP, Inc. to UST, shall take any and all actions and measures necessary to insure that the Collateral constitutes at least 51% of the voting stock and voting control of TMD and shall take no actions of any kind which would dilute the voting shares and voting control of the Collateral; -14- 2 9. TMD further acknowledges and agrees that a violation of the terms of this Agreement shall constitute an event of default under the Note and, thereby, will enable UST to exercise its remedies thereunder, and under certain other agreements between UST and Smith and UST and GWP, Inc., with respect to the Collateral. IN WITNESS WHEREOF, parties have executed this Agreement as of the date first above written. U.S. TECHNOLOGIES INC. By: /s/ John P. Brocard -------------------------------------- John P. Brocard Executive Vice President TECHNOLOGY MANUFACTURING & DESIGN, INC. By: /s/ Kenneth H. Smith --------------------------------------- Kenneth H. Smith Chief Executive Officer -15- EX-2.4 5 STOCK PLEDGE AND GUARANTY AGREEMENT OF GWP 1 EXHIBIT 2.4 STOCK PLEDGE AND GUARANTY AGREEMENT OF GWP, INC. THIS STOCK PLEDGE AGREEMENT (this "Agreement"), dated as of February 15, 1999, by and between GWP, INC., a Georgia corporation (the "Pledgor"), and U.S. TECHNOLOGIES, INC., a Delaware corporation ("Pledgee"). WITNESSETH: WHEREAS, pursuant to that certain promissory note, dated as of the date hereof, executed by Kenneth H. Smith ("Smith"), the sole owner of all of the capital stock of Pledgor, in favor of Pledgee, in the principal amount of $1,234,832 (the "Note") and pursuant to the obligations, agreement and guaranties of Smith pursuant to that certain stock pledge and guaranty agreement, dated as of the date hereof, between Smith and Pledgee (the "Smith Pledge"), Pledgee has agreed to extend certain financial obligations to Smith, with respect to his purchase of all of the capital shares of Pledgor; and WHEREAS, Pledgee, to the significant financial benefit of Smith and Pledgor, has provided, and continues to provide, significant working capital to Technology Manufacturing & Design, Inc., a Texas corporation ("TMD") and the subsidiary of Pledgor (the "Working Capital Benefits"); and WHEREAS, Pledgor is the owner of 15,250,000 shares of the common stock, no par value, and 3,750,000 shares of the Series C Preferred Stock of TMD (the "Pledged Shares"); and WHEREAS, as a condition to Pledgee's willingness to extend the financial accommodations to Smith evidenced by the Note, and in consideration of the Working Capital Benefits and other valuable consideration, receipt of which is hereby acknowledged, Pledgee has required that Pledgor execute this Agreement in order to further secure the obligations of Smith under the Note and under the Smith Pledge, and to secure Pledgor's obligations hereunder; NOW, THEREFORE, in consideration of the premises and the covenants set forth herein the parties hereto agree as follows: 10. Security for Obligations. This Agreement is given to Pledgee as security for the full, prompt and complete performance and satisfaction of the obligations, agreements and guaranties of Pledgor under this Agreement and of Smith under the Smith Pledge, and for the full, prompt and complete payment and performance in full when due of the indebtedness under the Note (the obligations, agreements and guaranties of Pledgor hereunder and of Smith under the Smith Pledge, and the payment and performance of the Note, in full, when due, being referred to, collectively, as the "Obligations"). 11. Guaranties. The Pledgor hereby guarantees, primarily, fully and unconditionally the following: (a) The full, prompt and complete satisfaction and performance of the obligations, including the payment of any principal or interest which is due but unpaid, under the Note. 2 (b) The full, prompt and complete payment of all outstanding principal of, and accrued interest on, the Note, upon the happening of any default under the Note which remains uncured under the terms of the Note; (c) The full, prompt and complete satisfaction and performance of the obligations and guaranties of Smith under the Smith Pledge; (d) The full, prompt and complete satisfaction and performance by TMD of all of its obligations under and pursuant to the Loan and Security Agreement between TMD and Fidelity Funding, Inc., dated as of November 30, 1998; (e) The full, prompt and complete satisfaction and performance by TMD of all of its obligations under Section 8.2 of the Amended and Restated Stock Purchase Agreement between TMD and Pledgor, dated as of October 5, 1998; (f) The full, prompt and complete satisfaction and performance by Smith of his obligations under Section 6 of that certain Severance Agreement, dated as of February 11, 1999, between Smith and Pledgee; and (g) The full, prompt and complete satisfaction and performance by TMD of all of its obligations pursuant to that certain Agreement of Non-Dilution, dated as of the date hereof, between Pledgee and TMD. Any failure of Smith or TMD to fully, promptly and completely perform and satisfy the obligations and performance guaranteed by the Pledgor hereby shall be deemed a breach of these guaranties and, thereby, a breach of the Obligations. 12. Pledge of Collateral. Pledgor hereby pledges, assigns, grants a security interest in, transfers and delivers unto Pledgee a continuing security interest in each of the following (collectively, the "Collateral"): (a) all of Pledgor's right, title and interest in and to all of the Pledged Shares described in, and evidenced by, certificate no. 1 (Series C Preferred Stock) and certificate no. 101 (Common Stock), and the certificates representing the Pledged Shares, and all dividends, cash, securities, instruments, rights and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the Pledged Shares, including, without limitation, all additional shares of capital stock of the issuer of the Pledged Shares from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the Pledged Shares and the certificates, if any, representing such additional shares (the "Additional Shares"); (b) all other rights appurtenant to the property described in clause (a) above (including, without limitation, voting rights); and (c) all cash and noncash proceeds of any and all of the foregoing. -17- 3 Simultaneously with the execution of this Agreement, Pledgor has delivered to Pledgee all of the certificates representing the Pledged Shares, accompanied by proper instruments of assignment duly executed in blank by Pledgor. 13. Representations and Warranties of Pledgor. Pledgor hereby represents and warrants to Pledgee, as of the date hereof, that: (a) Pledgor is the sole holder of record and beneficial owner of the Pledged Shares, free and clear of any pledge, hypothecation, assignment, lien, charge, claim, security interest, option, preference, priority or other preferential arrangement of any kind or nature whatsoever created by Pledgor ("Lien") thereon or affecting the title thereto other than as created by this Agreement. (b) Pledgor has the right and all requisite authority to pledge, assign, grant a security interest in, transfer and deliver the Collateral to Pledgee as provided in this Agreement. (c) This Agreement has been duly executed and delivered by Pledgor and constitutes the legal, valid and binding obligation of Pledgor, enforceable against Pledgor in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity. (d) No consent, approval, authorization or other order of any person is required for (i) the execution and delivery of this Agreement by Pledgor or the delivery by Pledgor of the Collateral to Pledgee as provided herein, or (ii) for the exercise by Pledgee of the voting or other rights provided for in this Agreement or the remedies in respect of the Collateral pursuant to this Agreement, except as may be required in connection with the disposition of the Collateral by laws affecting the offering and sale of securities generally. (e) Upon the delivery to Pledgee of the certificates representing the Pledged Shares, Pledgee will have a valid and perfected security interest therein subject to no prior lien. (f) The Pledged Shares constitute at least 51% of the voting securities and voting control of TMD, and Pledgor will cause the Collateral to consist, at all times prior to the full, prompt and complete satisfaction and performance of the Obligations, of the capital shares of TMD, which are equal to at least 51% of the voting securities and voting control of TMD. The representations and warranties set forth in this Section 4 shall survive the execution and delivery of this Agreement. 14. Voting and Dividend Rights. (a) Unless and until an Event of Default (as hereinafter defined) has occurred and is continuing during the term of this Agreement: (i) Pledgor shall be entitled to exercise any and all voting and other consensual rights pertaining to the Pledged Shares or any part thereof for any purpose not inconsistent with the terms of this Agreement. -18- 4 (ii) Pledgor shall be entitled, from time to time, to collect and receive for Pledgor's own use all cash dividends (except cash dividends paid or payable in respect of the total or partial liquidation of an issuer) paid on the Pledged Shares; provided, however, that until actually paid, all rights to such dividends shall remain subject to the Lien of this Agreement and that all dividends (other than cash dividends governed by the immediately preceding subparagraph) and all other distributions (other than said cash dividends) in respect of any of the Collateral, whenever paid or made, shall be delivered to Pledgee and held by it subject to the Lien created by this Agreement. (b) If any Event of Default shall have occurred and be continuing, at its option and election evidenced by a writing given to Pledgor, and whether or not Pledgee exercises any available option to declare any Obligation due and payable or seeks or pursues any other relief or remedy available to such holder under this Agreement or the Obligations: (i) Pledgee, or its nominee or nominees, may have the sole and exclusive right to exercise all voting, consensual and other powers of ownership pertaining to the Pledged Shares and may exercise such powers in such manner as Pledgee, in its sole discretion, shall determine to be necessary, appropriate or advisable, and, if Pledgee shall so request in writing, Pledgor agrees to execute and deliver to Pledgee such other and additional powers, authorizations, proxies, dividends and such other documents as Pledgee may reasonably request from time to time to secure to Pledgee the rights, powers and authorities intended to be conferred upon Pledgee by this subsection (b); and (ii) all dividends and other distributions on the Pledged Shares shall be paid directly to Pledgee and retained by it as part of the Pledged Shares, subject to the terms of this Agreement, and, if Pledgee shall so request in writing, Pledgor agrees to execute and deliver to the Pledgee from time to time appropriate additional dividend, distribution and other orders and documents to that end. 15. Covenants. Pledgor covenants and agrees that: (a) Pledgor will not, without the prior written consent of Pledgee, sell, assign, transfer, mortgage, pledge or otherwise encumber any of Pledgor's rights in or to the Collateral or any dividends or other distributions or payments with respect thereto or grant a Lien on any thereof. (b) Pledgor will, at Pledgor's own expense, execute, acknowledge and deliver all such instruments and take all such action as Pledgee from time to time may reasonably request in order to ensure to Pledgee the benefits of the first priority Lien on and to the Collateral intended to be created by this Agreement. (c) Pledgor will defend the title to the Collateral and the Lien of Pledgee thereon against the claim of any person claiming against or through Pledgor and will maintain and preserve such Lien so long as this Agreement shall remain in effect. -19- 5 (d) Pledgor will cause the Collateral to consist, at all times, of voting securities of TMD which are equal to at least 51% of the voting securities and voting control of TMD. 16. Event of Default. Any of the following specified events shall constitute an Event of Default under this Agreement: (a) any breach by the Pledgor or Smith of the Obligations; (b) any representation, warranty or statement made by Pledgor in connection with this Agreement shall have been false or misleading in any material respect when made; or (c) any failure by Pledgor to observe or perform any covenant or agreement set forth in this Agreement. 17. Remedies. (a) Upon the occurrence of an Event of Default, or at any time during the term of this Agreement at which such Event of Default is continuing, Pledgee is hereby authorized and empowered, at its election and in addition to those rights and remedies provided it in Section 5 of this Agreement, to transfer and register in its or its nominee's name the whole or any part of the Collateral, in which case Pledgee shall be credited with a payment towards the Obligations in an amount equal to the value of the Collateral so transferred. (b) Pledgor agrees that Pledgor will not interfere with any right, power and remedy of Pledgee provided for in this Agreement or now or hereafter existing at law or in equity or by statute or otherwise, or the exercise or beginning of the exercise by Pledgee of any one or more such rights, powers or remedies. No failure or delay on the part of Pledgee to exercise any such right, power or remedy, and no notice or demand which may be given to or made upon Pledgor by Pledgee with respect to any such remedies, shall operate as a waiver thereof, or limit or impair Pledgee's right to take any action or to exercise any power or remedy hereunder without notice or demand, or prejudice Pledgee's rights as against Pledgor in any respect. (c) The rights and remedies of Pledgee hereunder and under the Note are cumulative and concurrent and may be pursued separately, successively or together at the sole discretion of Pledgee and may be exercised as often as the occasion thereof shall arise. The failure to exercise any such right or remedy shall in no event be construed as a waiver or release thereof. 18. Miscellaneous. (a) This Agreement shall be binding upon Pledgor and Pledgor's successors and assigns, and shall inure to the benefit of, and be enforceable by, Pledgee and its successors, transferees and assigns. None of the terms or provisions of this Agreement may be waived, altered, modified or amended except in writing duly signed for and on behalf of Pledgee and Pledgor. -20- 6 (b) This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the state of Georgia. 19. Pledgee Appointed Attorney-in-Fact; Indemnity. Pledgee, its successors and assigns, is hereby appointed the attorney-in-fact, with full power of substitution, of Pledgor for the purpose of carrying out the provisions of this Agreement and taking any action and executing any instruments which such attorney-in-fact may deem necessary or advisable to accomplish the purposes hereof, which appointment as attorney-in-fact is irrevocable while the Obligations remain outstanding and coupled with an interest. 20. No Waiver. No failure on the part of Pledgee to exercise, and no delay on the part of Pledgee in exercising, any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by Pledgee of any right, power or remedy hereunder preclude any other or further right, power or remedy. The remedies herein provided are cumulative and are not exclusive of any remedies provided by law. 21. Further Assurances. At Pledgor's expense, Pledgor will do all such acts, and will furnish to Pledgee all such financing statements, certificates and other documents and will do or cause to be done all such other things as Pledgee may reasonably request from time to time in order to give full effect to this Agreement and to secure the rights intended to be granted to Pledgee hereunder. 22. Notices. All communications required or otherwise provided under this Agreement shall be in writing and shall be deemed given when delivered to the address provided below such party's signature (as may be amended by notice from time to time), by hand, by courier or express mail, or by registered or certified United States mail, return receipt requested, postage prepaid. 23. Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall not invalidate the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 24. Attorney's Fees. If any action or proceeding relating to this Agreement or the enforcement of any provision of this Agreement is brought against any party hereto, the prevailing party shall be entitled to recover reasonable attorney's fees, costs and disbursements (in addition to any other relief to which the prevailing party may be entitled). [SIGNATURES ON FOLLOWING PAGE] -21- 7 IN WITNESS WHEREOF, the parties hereto have caused this Stock Pledge and Guaranty Agreement to be duly executed under seal as of the date first above written. "PLEDGOR" GWP, INC. By: /s/ Kenneth H. Smith --------------------------------------------- Name: Kenneth H. Smith ----------------------------------------- Title: President and Chief Executive Officer ----------------------------------------- Address: 3901 Roswell Road, Suite 300 Marietta, Georgia 30062 "PLEDGEE" U.S. TECHNOLOGIES INC. By: /s/ John P. Brocard ------------------------------------------ Name: John P. Brocard -------------------------------------- Title: Executive Vice President -------------------------------------- Address: 3901 Roswell Road, Suite 300 Marietta, Georgia 30062 -22- EX-2.5 6 STOCK PLEDGE AND GUARANTY AGRMNT OF KENNETH SMITH 1 EXHIBIT 2.5 STOCK PLEDGE AND GUARANTY AGREEMENT OF KENNETH H. SMITH THIS STOCK PLEDGE AGREEMENT (this "Agreement"), dated as of February 15, 1999, by and between KENNETH H. SMITH, an individual resident of the State of Georgia (the "Pledgor"), and U.S. TECHNOLOGIES INC., a Delaware corporation ("Pledgee"). WITNESSETH: WHEREAS, pursuant to that certain promissory note, dated as of the date hereof, executed by Pledgor in favor of Pledgee in the principal amount of $1,234,832 (the "Note"), Pledgee has agreed to extend certain financial obligations to Pledgor; and WHEREAS, Pledgor is the owner of 3,000,000 shares of the common stock, $.02 par value, of the Pledgee; and WHEREAS, as a condition to Pledgee's willingness to extend the financial accommodations to Pledgor evidenced by the Note, Pledgee has required that Pledgor execute this Agreement in order to further secure the obligations under the Note and under the agreements and personal guaranties provided by Pledgor herein; NOW, THEREFORE, in consideration of the premises and the covenants set forth herein the parties hereto agree as follows: 25. Security for Obligations. This Agreement is given to Pledgee as security for the full, prompt and complete performance and satisfaction of the agreements and personal guaranties provided by Pledgor herein and for the full, prompt and complete payment and performance in full when due of the indebtedness under the Note (the obligations of Pledgor hereunder and under the Note being referred to, collectively, as the "Obligations"). 26. Guaranties. The Pledgor hereby personally, primarily, fully and unconditionally guarantees the full, prompt and complete performance and satisfaction by Technology Manufacturing & Design, Inc., a Texas corporation ("TMD") (51% of the voting stock of which is owned by GWP, Inc., a Georgia corporation, which, as of the date hereof, is wholly-owned by Pledgor) and by GWP, Inc. of the following: (a) The full, prompt and complete satisfaction and performance by TMD of all of its obligations under and pursuant to the Loan and Security Agreement between TMD and Fidelity Funding, Inc., dated as of November 30, 1998; (b) The full, prompt and complete satisfaction and performance by TMD of all of its obligations pursuant to Section 8.2 of the Amended and Restated Stock Purchase Agreement between TMD and GWP, Inc., dated as of October 5, 1998; 2 (c) The maintenance by GWP, Inc., at all times during which the Obligations remain outstanding or unsatisfied, of the ownership and control of at least 51% of the voting shares and voting control of TMD; provided that this provision shall be deemed satisfied if Pledgee retains collateral under that certain Stock Pledge and Guaranty Agreement between GWP, Inc. and Pledgee, dated as of the date hereof (the "GWP Pledge Agreement"), which, at all times, is equal to at least 51% of the voting shares and voting control of TMD; (d) The full, prompt and complete satisfaction and performance by GWP, Inc., of all of its obligations and guaranties under and pursuant to the GWP Pledge Agreement; and (c) The full, prompt and complete satisfaction and performance by TMD of all of its obligations under and pursuant to that certain Agreement of Non-Dilution between TMD and Pledgee, dated as of the date hereof (the "TMD Non-Dilution Agreement"). Any failure of TMD or GWP, Inc. to fully, promptly and completely perform and satisfy the obligations and performance guaranteed by the Pledgor hereby shall be deemed a breach of the guaranties and agreements herein, and thereby, a breach of the Obligations. 27. Pledge of Collateral. Pledgor hereby pledges, assigns, grants a security interest in, transfers and delivers unto Pledgee a continuing security interest in each of the following (collectively, the "Collateral"): (a) all of Pledgor's right, title and interest in and to 3,000,000 shares of stock of U.S. Technologies Inc., $.02 par value, described in, and evidenced by, certificates no(s). 8397, 8398, 8399, 8400, 8401, 8426, 8427, 8428, 8429, 8430, 8431, 8432, 8434 (the "Pledged Shares")and the said certificates representing the Pledged Shares, and all dividends, cash, securities, instruments, rights and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the Pledged Shares, including, without limitation, all additional shares of capital stock of the issuer of the Pledged Shares from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the Pledged Shares and the certificates, if any, representing such additional shares (the "Additional Shares"); (b) all other rights appurtenant to the property described in clause (a) above (including, without limitation, voting rights); and (c) all cash and non-cash proceeds of any and all of the foregoing. Upon and as of the execution of this Agreement, Pledgor has delivered to Pledgee the certificate(s) representing the Pledged Shares, accompanied by proper instruments of assignment duly executed in blank by Pledgor. 28. Representations and Warranties of Pledgor. Pledgor hereby represents and warrants to Pledgee, as of the date hereof, that: -24- 3 (a) Pledgor is the sole holder of record and beneficial owner of the Pledged Shares, free and clear of any pledge, hypothecation, assignment, lien, charge, claim, security interest, option, preference, priority or other preferential arrangement of any kind or nature whatsoever created by Pledgor thereon or affecting the title thereto other than as created by this Agreement. (b) Pledgor has the right and all requisite authority to pledge, assign, grant a security interest in, transfer and deliver the Collateral to Pledgee as provided in this Agreement. (c) This Agreement has been duly executed and delivered by Pledgor and constitutes the legal, valid and binding obligation of Pledgor, enforceable against Pledgor in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity. (d) No consent, approval, authorization or other order of any person is required for (i) the execution and delivery of this Agreement by Pledgor or the delivery by Pledgor of the Collateral to Pledgee as provided herein, or (ii) for the exercise by Pledgee of the voting or other rights provided for in this Agreement or the remedies in respect of the Collateral pursuant to this Agreement, except as may be required in connection with the disposition of the Collateral by laws affecting the offering and sale of securities generally. (e) Upon the delivery to Pledgee of the certificates representing the Pledged Shares, Pledgee will have a valid and perfected security interest therein subject to no prior lien. The representations and warranties set forth in this Section 4 shall survive the execution and delivery of this Agreement. 29. Voting and Dividend Rights. (a) Unless and until the full, prompt and complete performance and satisfaction of the Obligations has occurred: (i) Pledgee, or its nominee or nominees, shall have the sole and exclusive right to exercise all voting, consensual and other powers of ownership pertaining to the Pledged Shares and may exercise such powers in such manner as Pledgee, in its sole discretion, shall determine to be necessary, appropriate or advisable, and, if Pledgee shall so request in writing, Pledgor agrees to execute and deliver to Pledgee such other and additional powers, authorizations, proxies, dividends and such other documents as Pledgee may reasonably request from time to time to secure to Pledgee the rights, powers and authorities intended to be conferred upon Pledgee by this subsection (b); and (ii) all dividends and other distributions on the Pledged Shares shall be paid directly to Pledgee and retained by it as part of the Pledged Shares, subject to the terms of this Agreement, and, if Pledgee shall so request in writing, Pledgor agrees to execute and deliver to the Pledgee from time to time appropriate additional dividend, distribution and other orders and documents to that end. -25- 4 30. Covenants. Pledgor covenants and agrees that: (a) Pledgor will not, without the prior written consent of Pledgee, sell, assign, transfer, mortgage, pledge or otherwise encumber any of Pledgor's rights in or to the Collateral or any dividends or other distributions or payments with respect thereto or grant a lien on any thereof. (b) Pledgor will, at Pledgor's own expense, execute, acknowledge and deliver all such instruments and take all such action as Pledgee from time to time may reasonably request in order to ensure to Pledgee the benefits of the first priority lien on and to the Collateral intended to be created by this Agreement. (c) Pledgor will defend the title to the Collateral and the lien of Pledgee thereon against the claim of any person claiming against or through Pledgor and will maintain and preserve such Lien so long as this Agreement shall remain in effect. (d) Pledgor will cause the Collateral to consist, at all times, of voting securities of TMD which are equal to at least 51% of the voting securities and voting control of TMD. (e) The Pledgor will fully, promptly and completely satisfy and perform the obligations of Pledgor pursuant to Section 6 of that certain Severance Agreement between Pledgor and Pledgee, dated as of February 11, 1999. 31. Event of Default. Any of the following specified events shall constitute an Event of Default under this Agreement: (a) any breach by the Pledgor of the Obligations; (b) any representation, warranty or statement made by Pledgor in connection with this Agreement shall have been false or misleading in any material respect when made; or (c) any failure by Pledgor to observe or perform any covenant or agreement set forth in this Agreement. 32. Remedies. (a) Upon the occurrence of an Event of Default, or at any time during the term of this Agreement at which such Event of Default is continuing, Pledgee is hereby authorized and empowered, at its election and in addition to those rights and remedies provided it in Section 5 of this Agreement, to transfer and register in its or its nominee's name the whole or any part of the Collateral, in which case Pledgee shall be credited with a payment towards the Obligations in an amount equal to the value of the Collateral so transferred. (b) Pledgor agrees that Pledgor will not interfere with any right, power and remedy of Pledgee provided for in this Agreement or now or hereafter existing at law or in equity or by statute or otherwise, or the exercise or beginning of the exercise by Pledgee of any one or more such rights, powers or remedies. No failure or delay on the part of Pledgee to -26- 5 exercise any such right, power or remedy, and no notice or demand which may be given to or made upon Pledgor by Pledgee with respect to any such remedies, shall operate as a waiver thereof, or limit or impair Pledgee's right to take any action or to exercise any power or remedy hereunder without notice or demand, or prejudice Pledgee's rights as against Pledgor in any respect. (c) The rights and remedies of Pledgee hereunder and under the Note are cumulative and concurrent and may be pursued separately, successively or together at the sole discretion of Pledgee and may be exercised as often as the occasion thereof shall arise. The failure to exercise any such right or remedy shall in no event be construed as a waiver or release thereof. 33. Miscellaneous. (a) This Agreement shall be binding upon Pledgor and Pledgor's successors and assigns, and shall inure to the benefit of, and be enforceable by, Pledgee and its successors, transferees and assigns. None of the terms or provisions of this Agreement may be waived, altered, modified or amended except in writing duly signed for and on behalf of Pledgee and Pledgor. (b) This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the state of Georgia. 34. Pledgee Appointed Attorney-in-Fact; Indemnity. Pledgee, its successors and assigns, is hereby appointed the attorney-in-fact, with full power of substitution, of Pledgor for the purpose of carrying out the provisions of this Agreement and taking any action and executing any instruments which such attorney-in-fact may deem necessary or advisable to accomplish the purposes hereof, which appointment as attorney-in-fact is irrevocable while the Obligations remain outstanding and coupled with an interest. 35. No Waiver. No failure on the part of Pledgee to exercise, and no delay on the part of Pledgee in exercising, any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by Pledgee of any right, power or remedy hereunder preclude any other or further right, power or remedy. The remedies herein provided are cumulative and are not exclusive of any remedies provided by law. 36. Further Assurances. At Pledgor's expense, Pledgor will do all such acts, and will furnish to Pledgee all such financing statements, certificates and other documents and will do or cause to be done all such other things as Pledgee may reasonably request from time to time in order to give full effect to this Agreement and to secure the rights intended to be granted to Pledgee hereunder. 37. Notices. All communications required or otherwise provided under this Agreement shall be in writing and shall be deemed given when delivered to the address provided below such party's signature (as may be amended by notice from time to time), by hand, by courier or express mail, or by registered or certified United States mail, return receipt requested, postage prepaid. 38. Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall not invalidate the remaining provisions hereof, and any such prohibition or -27- 6 unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 39. Attorney's Fees. If any action or proceeding relating to this Agreement or the enforcement of any provision of this Agreement is brought against any party hereto, the prevailing party shall be entitled to recover reasonable attorney's fees, costs and disbursements (in addition to any other relief to which the prevailing party may be entitled). IN WITNESS WHEREOF, the parties hereto have caused this Stock Pledge and Guaranty Agreement to be duly executed under seal as of the date first above written. "PLEDGOR" /s/ Kenneth H. Smith (SEAL) -------------------------------- KENNETH H. SMITH Address: 3901 Roswell Road, Suite 300 Marietta, Georgia 30062 "PLEDGEE" U.S. TECHNOLOGIES, INC. By: /s/ John P. Brocard ------------------------------------ Name: John P. Brocard -------------------------------- Title: Executive Vice President -------------------------------- Address: 3901 Roswell Road, Suite 300 Marietta, Georgia 30062 -28- EX-2.6 7 STOCK PURCHASE AGEEMENT 1 EXHIBIT 2.6 STOCK PURCHASE AGREEMENT THIS STOCK PURCHASE AGREEMENT (the "Agreement") is entered into as of the 15th day of February, 1999, by and between U.S. TECHNOLOGIES, INC., a Delaware corporation (the "Seller") and KENNETH H. SMITH (the "Purchaser"). The Seller and the Purchaser in consideration of the premises and the mutual promises and representations hereinafter set forth, hereby agree as follows: 1. PURCHASE AND SALE OF STOCK. Subject to the terms and conditions hereinafter set forth, the Seller shall, and does hereby, sell, transfer, convey and deliver to Purchaser, and Purchaser shall, and does hereby, purchase from the Seller, FIVE HUNDRED (500) shares of the common stock, of GWP, Inc., a Georgia corporation (the "Company") (collectively, the "Purchased Shares"). Such sale, transfer, conveyance and delivery shall be evidenced by a duly endorsed stock power of attorney relating to the applicable share certificates. The consummation of the transactions contemplated hereby shall be completed on the date hereof. 2. CONSIDERATION. In consideration of the sale, transfer, conveyance and delivery of the Purchased Shares, and in reliance upon the representations made herein by the Seller, the Purchaser shall pay to the Seller the sum of ONE MILLION TWO HUNDRED THIRTY-FOUR THOUSAND EIGHT HUNDRED THIRTY-TWO and NO/100 Dollars ($1,234,832.00) (the "Purchase Price"). 3. METHOD OF PAYMENT. Seller hereby authorizes Purchaser to deliver to Seller, in full payment of the Purchase Price, his personal, non-exculpated promissory note, dated as of the date hereof, in the form and with such terms as contained in Exhibit A hereto, together with his fully-executed stock pledge and guaranty agreement, dated as of the date hereof, in the form and with such terms as contained in Exhibit B hereto, and with the collateral required thereby; and together with the fully executed stock pledge and guaranty agreement of GWP, Inc., dated as of the date hereof, in the form and with such terms as contained in Exhibit C hereto, and with the collateral required thereby; and together with the fully-executed Agreement of Non-Dilution of Technology Manufacturing & Design, Inc. dated as of the date hereof, in the form and with such terms as contained in Exhibit D hereto, dated as of the date hereof; and together with such other documentation, as deemed necessary in the reasonable opinion of legal counsel to the Seller, to effect the intent of such aforementioned documents, including an irrevocable proxy and stock powers endorsed in blank. 4. REPRESENTATIONS OF SELLER. In order to induce Purchaser to enter into this Agreement and consummate the transactions contemplated herein, the Seller represents and warrants to the Purchaser that the Purchased Shares are the same shares, and all of the shares, of GWP, Inc. common stock purchased by the Seller from Purchaser pursuant to that certain Stock Purchase Agreement between Seller and Purchaser, dated as of October 5, 1998, and are free and clear of all liens, claims, charges, security interests and other encumbrances, provided, however, that Seller, in providing these representations and warranties, has relied entirely and solely upon the representations and warranties of Purchaser contained in said Stock Purchase Agreement. -29- 2 5. GOVERNING LAW. This Agreement shall be governed in its enforcement, construction and interpretation by the laws of the State of Georgia. 6. SUCCESSORS. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, assigns, heirs and personal representatives. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. "SELLER" U.S. TECHNOLOGIES INC. By: /s/ John P. Brocard ---------------------------------------------------- Name: John P. Brocard Title: Executive Vice President and General Counsel "PURCHASER" /s/ Kenneth H. Smith (SEAL) ------------------------------------------ KENNETH. H. SMITH Acknowledged: TECHNOLOGY MANUFACTURING & DESIGN, INC. By: /s/ Kenneth H. Smith ---------------------------------------------------- Name: Kenneth H. Smith Title: President and Chief Executive Officer GWP, Inc. By: /s/ Kenneth H. Smith ---------------------------------------------------- Name: Kenneth H. Smith Title: President and Chief Executive Officer -30- -----END PRIVACY-ENHANCED MESSAGE-----