Amendment to General Statement of Beneficial Ownership — Sch. 13D Filing Table of Contents
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STOCKHOLDERS’
AGREEMENT
(this
“Agreement”),
dated
as of __________, 2007, by and among each of the stockholders of U.S. Energy
Systems, Inc., a Delaware corporation, (the “Corporation”)
whose
name and address appears on Schedule
A
hereto
(collectively, the “General
Stockholders”)
and
each of Nakash
Energy, LLC, a Delaware limited liability company with an office at c/o Law
Offices of Robert A. Spiegelman, Esq., 1400 Broadway, 15th
Floor,
New York, NY10018 (“Nakash
Energy”),
Nakash
Holding, LLC, a Delaware limited liability company with an office at c/o Law
Offices of Robert A. Spiegelman, Esq., 1400 Broadway, 15th
Floor,
New York, NY10018 (“Nakash
Holding”),
Joe
Nakash,
an
individual with an office at c/o Law Offices of Robert A. Spiegelman, Esq.,
1400
Broadway, 15th
Floor,
New York, NY10018, Avi
Nakash,
an
individual with an office at c/o Law Offices of Robert A. Spiegelman, Esq.,
1400
Broadway, 15th
Floor,
New York, NY10018,
and
Ralph
Nakash,
an
individual with an office at c/o Law Offices of Robert A. Spiegelman, Esq.,
1400
Broadway, 15th
Floor,
New York, NY10018 (Nakash Energy, Nakash Holding, Joe Nakash, Avi Nakash and
Ralph Nakash, collectively, the “Nakash
Stockholders”).
W
I T N E S E T H:
Each
of
the General Stockholders has been disappointed by the deterioriation of the
overall financial condition and operations of the Corporation, in which he,
she
or it holds a significant interest as a stockholder, and has been furthermore
dissatisfied with the manner in which the current management and Board of
Directors of the Corporation (the “Board”)
has
failed to prevent such deterioration.
In
order
to improve the overall corporate governance and financial performance of the
Corporation,
the
Nakash Stockholders have determined to seek to influence the policies and
management of
the
Corporation, including possibly seeking to (a) replace members of the current
management of the Corporation and certain members of the Board, (b) eliminate
the current “staggered board” provisions of the Corporation’s charter and, if
need be, to effect a change of control of the Corporation.
17
Each
General Stockholder views it in his, her or its individual best interest as
a
stockholder of the Corporation that the Nakash Group achieves its goals and
is
therefore willing, pursuant to this Agreement, to agree to vote all shares
of
the Corporation’s stock held by such General Stockholder (a) in favor of the
election, removal and composition of the Board as a whole or individual members
thereof supported by the Nakash Stockholders, and (b) in favor of, or in
opposition to, any amendment to the Corporation’s Amended and Restated
Certificate of Incorporation (the “Charter”)
or
By-Laws (the “By-Laws”)
supported or opposed (respectively) by the Nakash Stockholders.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements set forth herein, ten dollars (US $10), and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto hereby agree as follows:
Section
1.
Agreement to Vote as Directed by Nakash Stockholders
1.1 From
the
date hereof up to, and including, June 30, 2008, each General Stockholder hereby
agrees to vote all shares (the “Shares”)
of the
Corporation’s Common Stock, par value $0.01 per share (“Common
Stock”)
which
such General Stockholder now holds or hereafter acquires (whether as stockholder
of record or not) and is entitled to vote (i) in favor of, or in opposition
to,
any nominees for the Board that are supported or opposed (respectively) by
the
Nakash Stockholders at each election of members of the Board, (ii) in favor
of,
or in opposition to, the removal of any member of the Board as directed by
the
Nakash Stockholders, (iii) in favor of, or in opposition to, any increase or
decrease in the authorized size of the Board as directed by the Nakash
Stockholders, and (iv) as directed by the Nakash Stockholders with respect
to
any proposed amendment to the Charter or By-Laws, in each case whether
at
a
meeting of the Corporation’s stockholders, at an adjournment thereof, or
pursuant to any consent in lieu of a meeting, or otherwise.
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1.2 In
furtherance of the voting agreements set forth in this Section 1, upon the
request of the Nakash Stockholders, each General Stockholder shall deliver
a
proxy to the Nakash Stockholders that appoints Joe Nakash or Avi Nakash as
such
General Stockholder’s true and lawful proxy and attorney-in-fact, with full
power of substitution, to vote all Shares of Common Stock which such General
Stockholder then holds (whether as stockholder of record or not) and is entitled
to vote, for and in the name, place and stead of such General Stockholder with
respect to the matters described in Section 1.1. Each
General
Stockholder will furthermore, at the request of the Nakash Stockholders, execute
and deliver any additional documents and take such actions as may reasonably
be
deemed by the Nakash Stockholders to be necessary or desirable to carry out
the
provisions hereof.
1.3 The
voting agreement provided for by this Section 1 shall become null and void,
with
respect to each Share subject hereto, upon a General Stockholder’s sale or
transfer of such Share.
In the
event a General Stockholder shall sell or transfer any Shares, such General
Stockholder shall provide prompt notice to the parties to this Agreement
specifying the number of Shares sold or transferred and the date of such sale
or
transfer.
Section
2. Further Agreements Concerning the Shares
Except
as
otherwise provided in this Agreement, no General Stockholder shall grant any
proxy or enter into or agree to be bound by any voting trust with respect to
any
Shares nor shall any General Stockholder enter into any stockholder agreements
or arrangements of any kind with any person with respect to any Shares
inconsistent with the provisions of this Agreement (whether or not such
agreements and arrangements are with other General Stockholders, Nakash
Stockholders or holders of shares of Common Stock who are not parties to this
Agreement), including agreements or arrangements with respect to the voting
of
any Shares, nor shall any General Stockholder act, for any reason, as a member
of a group or in concert with any other persons in connection with the voting
of
any Shares in any manner which is inconsistent with this Agreement.
Section
3. Miscellaneous Provisions
19
3.1 This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware, without giving effect to the provisions thereof relating
to
conflicts of law.
3.2 If
any
term, provision, covenant, or restriction of this Agreement is held by a court
of competent jurisdiction to be invalid, void or unenforceable, the remaining
terms, provisions, covenants and restrictions hereof shall remain in full force
and effect and shall not in any way be affected, impaired or
invalidated.
3.3 Each
General Stockholder hereby consents to the public disclosure of his, her or
its
entry into this Agreement via the Nakash Stockholders’ filing of an amended
Schedule 13D with the Securities and Exchange Commission pursuant to the Nakash
Stockholders’ reporting obligations under Rule 13d-2 of the Exchange Act and
furthermore consents to being named in such amended Schedule 13D
filing.
3.4 All
notices, requests, consents, and other communications under this Agreement
shall
be in writing and shall be deemed delivered (i) upon personal delivery, (ii)
two
(2) business days after being send by registered or certified mail, return
receipt requested, postage prepaid or (iii) one business day after being sent
via a reputable nationwide overnight courier service guaranteeing next business
day delivery, in each case to the intended recipient as set forth
below:
or
at
such other address or addresses as may have been furnished in writing by the
Nakash Stockholders to the General Stockholders, with a copy (which shall not
constitute notice) to:
If
to the
General Stockholders, to each at his, her or its address listed on Schedule
A
hereto,
or at such other address or addresses as may be furnished in writing to the
Nakash Stockholders by such General Stockholder.
Any
party
may give any notice, request, consent or other communication under this
Agreement using other means (including telecopy), but no such notice, request,
consent or other communication shall be deemed to have been duly given unless
and until it is actually received by the party for whom it is intended. Any
party may change the address to which notices, requests, consents or other
communications hereunder are to be delivered by giving notice to the other
parties in the manner set forth in this Section 3.4.
3.5 This
Agreement may be executed in counterparts, each of which shall be deemed to
be
an original but all of which together shall constitute one and the same
document. This Agreement constitutes the full, complete and final expression
of
the parties’ understanding with respect to the subject matter hereof and may
only be modified or amended in writing, signed by the party to be
charged.
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IN
WITNESS WHEREOF, each General Stockholder and each Nakash Stockholder has caused
this Stockholders’ Agreement to be duly executed as of the date first above
written.
GENERAL
STOCKHOLDER:
_____________________________________
Name
of General Stockholder
_____________________________________
If
General Stockholder is a corporation or other entity, name of signing
officer or other authorized signatory
