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EXHIBIT 10.37
Dated 29 January 1999
NEXTERA ENTERPRISES, INC.
and
MR XXXXXX XXXXXXXXX
and
MR XXXXXX XXXXXX
SUPPLEMENTAL DEFERRED CONSIDERATION
AGREEMENT
relating to the granting of
Loan Notes
to Mr Xxxxxx Xxxxxxxxx and Mr Xxxxxx Xxxxxx
LINKLATERS & PAINES
One Xxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: (x00) 000 000 0000
Ref: MSM/AXXL
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AGREEMENT FOR PURCHASE OF SHARES
THIS AGREEMENT is made on 29 January 1999
Between:
(1) XXXXXX XXXXXXXXX of 000X Xxxx Xxx Xxxx, Xxxxxx XX0 0XX;
(2) XXXXXX XXXXXX xx Xxxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxxxxxxxxxx XX0 0XX; and
(3) NEXTERA ENTERPRISES, INC., a Delaware corporation, whose registered office
is at Xxx Xxxxxxxxx Xxxx, Xxxxxxxxx, XX, Xxxxxx Xxxxxx of America (NEXTERA
or the PURCHASER).
IT IS AGREED as follows:
1 INTERPRETATION
In this Agreement, including its Schedules, the headings shall not affect
its interpretation and, unless the context otherwise requires, the
provisions in this Clause 1 apply:
1.1 DEFINITIONS
ALEXANDER OR THE COMPANY means The Alexander Corporation Limited registered
office 00 Xxxxx Xxxxxx Xxxxxx X0X 0XX registration number 2204495;
ALEXANDER DEFERRED CONSIDERATION means the consideration to be issued in
accordance with Schedule 1;
DEFERRED CONSIDERATION means the Alexander Deferred consideration and the
Xxxxxx Deferred Consideration;
EMPLOYEES means both Xxxxxx Xxxxxxxxx and Xxxxxx Xxxxxx;
XXXXXX DEFERRED CONSIDERATION means the consideration to be issued in
accordance with Schedule 2; and
PRINCIPAL AGREEMENT means the agreement between Nextera and the Employees
relating to the Sale and purchase of the whole of the issued capital in The
Alexander Corporation Limited.
Unless otherwise stated, terms in this agreement shall have the same
meaning as in the Principal Agreement.
1.2 HEADINGS
Headings shall be ignored in construing this Agreement.
2 SUPPLEMENTAL DEFERRED CONSIDERATION
In consideration of Xxxxxx Xxxxxxxxx and Xxxxxx Xxxxxx entering and
fulfilling Service Agreements with Alexander, Nextera agrees subject to
this Agreement, to grant to Xxxxxx Xxxxxxxxx the Xxxxxxxxx Deferred
consideration and to Xxxxxx Xxxxxx the Xxxxxx Deferred Consideration.
3 ALEXANDER DEFERRED CONSIDERATION & XXXXXX DEFERRED CONSIDERATION
3.1 ALEXANDER DEFERRED CONSIDERATION
The Alexander Deferred Consideration must be granted by Nextera in
accordance with Schedule 1.
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3.2 XXXXXX DEFERRED CONSIDERATION
The Xxxxxx Deferred Consideration must be granted by Nextera in
accordance with Schedule 2.
4 TERMINATION OF EMPLOYMENT
In the event that Xxxxxx Xxxxxxxxx'x employment or Xxxxxx Xxxxxx'x
employment with the Company is terminated by the Company prior to the
end of the Earn-Out period, then each of them shall still be entitled
to be granted their respective Deferred Consideration if the Company
achieves the targets in Schedule 1 and Schedule 2 PROVIDED they have
not been terminated for gross misconduct.
5. OTHER PROVISIONS
5.1 ANNOUNCEMENTS
No public announcement (excluding announcements (not disclosing the
amount of the consideration paid hereunder) to employees, customers and
suppliers of the Company) concerning the transactions contemplated by,
or the terms of, this Agreement shall (save as required by law or by
the United States securities authorities) be made by either party,
unless the written consent of the other has been obtained and the terms
of the announcement have been agreed in advance. In the case of the
Employees any such consent shall be given by the Employees' Solicitors
on their behalf.
5.2 SUCCESSORS AND ASSIGNS
5.2.1 The Employees agree that the benefit of every provision in this
Agreement is given to Nextera for itself and its successors in
title and assigns. Accordingly, Nextera (and its successors and
assigns) may, without the consent of the Employees, assign the
benefit of all or any of the Employees' obligations under this
Agreement, and/or any benefit arising under or out of this
Agreement to any entity which is its subsidiary, holding company
or a subsidiary of any such holding company.
5.2.2 The Employees may not assign the benefit of all or any of
Nextera's obligations under this Agreement except with the
written consent of Nextera.
5.3 VARIATION
No variation of this Agreement shall be effective unless in writing and
signed by or on behalf of each of the parties to this Agreement.
5.4 TIME OF THE ESSENCE
Any time, date or period referred to in any provision of this Agreement
may be extended by mutual agreement between the parties but as regards
any time, date or period originally fixed or any time, date or period
so extended time shall be of the essence.
5.5 FURTHER ASSURANCE
At any time after the date of this Agreement the Employees shall and
shall use their best endeavours to procure that any necessary third
party shall execute such documents and do such acts and things as
Nextera may reasonably require for the purpose of giving to Nextera the
full benefit of all the provisions of this Agreement.
5.6 COSTS
The Employees shall bear all legal, accountancy and other costs and
expenses incurred by them in connection with this Agreement. Nextera
shall bear all such costs and expenses incurred by it.
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5.7 SPECIFIC PERFORMANCE
The parties agree that it would be difficult to measure damages which
might result from a breach of this Agreement by either party and that
money damages would be an inadequate remedy for such a breach.
Accordingly, if there is a breach or proposed breach of any provision of
this Agreement by the Company or any party to this agreement shall be
entitled, in addition to any other remedies which it may have, to an
injunction or other appropriate equitable relief to restrain such breach
without having to show or prove actual damage.
5.8 NOTICES
5.8.1 Any notice or other communication requiring to be given or served
under or in connection with this Agreement shall be in writing and
shall be sufficiently given or served if delivered or sent:
In the case of any of the Employees to:
Address: Alexander Corporation Limited
00 Xxxxx Xxxxxx
Xxxxxx
X0X 0XX
Fax:
Attention: Xxxxxx Xxxxxxxxx
In the case of the Purchaser to Nextera Enterprises, Inc. at:
Address: Sibson UK
000 Xxxxxx Xxxx
Xxxxxx Xxxxx
Xxxxxx XX0 0XX
Fax:
Attention: Xxxx Xxxxxxxxxx
with a copy to:
Address: Xxx Xxxxxxxxx Xxxx
Xxxxxxxxx
XX 00000
Xxxxxx Xxxxxx of America
Fax: x0 000 000 0000
Attention: Xxxxxxx Xxxxx
Address: Maron & Sandler
000 Xxxxxx Xxxxx
Xxx Xxxxxxx
XX 000000
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Fax: x0 000 000 0000
Attention: Xxx Xxxxx
5.8.2 Any Party to this agreement may by notice under this clause change
the address or references to which notices must be sent. Any such
notice or other communication shall be delivered by hand or sent by
courier, fax or prepaid first class post. If sent by courier or fax
such notice or communication shall conclusively e deemed to have
been given or served at the time of despatch, in case of service in
the United Kingdom, or the following Business Day in the case of
international service. If sent by post such notice or communication
shall conclusively be deemed to have been received two Business
Days from the time of posting, in the case of inland mail in the
United Kingdom or three Business Days from the time of posting in
the case of international mail.
5.9 SEVERANCE
If any term or provision in this Agreement is to be held to be illegal or
unenforceable, in whole or in part, under any enactment or rule of law,
such term or provision or part shall to that extent be deemed not to form
part of this Agreement but the enforceability of the remainder of this
Agreement shall not be affected.
5.10 COUNTERPARTS
This Agreement may be executed in any number of counterparts each of
which shall be deemed an original, but all the counterparts shall
together constitute one and the same instrument.
5.11 GOVERNING LAW AND SUBMISSION TO JURISDICTION
This Agreement and the documents to be entered into pursuant to it, save
as expressly referred to therein, shall be governed by and construed in
accordance with English law and all the parties irrevocably agree that
the courts of England are to have exclusive jurisdiction to settle any
disputes which may arise out of or in connection with this Agreement and
such documents.
5.12 APPOINTMENT OF PROCESS AGENT
Nextera irrevocably appoints Selson UK Limited as its agent to accept
service of process in England in any legal action or proceedings arising
out of or in connection with this Agreement, service upon whom shall be
deemed completed whether or not forwarded to or received by Nextera. If
such process agent ceases to be able to act as such or to have an address
in England, Nextera irrevocably agrees to appoint a new process agent in
England acceptable to the other Parties and to deliver to the other
Parties within 14 days a copy of a written acceptance of appointment by
the process agent. Nothing in this Agreement shall affect the right to
serve process in any other manner permitted by law.
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SCHEDULE 1
THE ALEXANDER DEFERRED CONSIDERATION
The aggregate value of Loan Notes to be issued as the Alexander Deferred
Consideration will be equal to the Alexander First Amount plus the Alexander
Second Amount unless Xxxxxx Xxxxxxxxx has, over the Earn-Out Period, spent less
than on average 30 hours per week (whether on client or administration matters)
as shown by the Company's time recording system, devoted to the Company in
which case the Alexander Deferred Consideration shall be nil.
Where:
The ALEXANDER FIRST AMOUNT is the Relevant Percentage of L150,000;
The RELEVANT PERCENTAGE is that percentage in the table set out below which
corresponds to the Company's Cumulative Revenue and the Company's Cumulative
Profit Before Tax (values between the figures shown being calculated using
interpolation):
RELEVANT PERCENTAGE
-------------------
Company's >11.4 0 70 90 100
---------------------------------------------------
Cumulative 10.26 0 60 75 90
---------------------------------------------------
Revenue 9.12 0 50 65 80
---------------------------------------------------
(LMM) < 9.12 0 0 50 65
---------------------------------------------------
<1.74 1.74 1.95 2.17
Company's Cumulative Profit Before Tax
(L MM)
The ALEXANDER SECOND AMOUNT is the Alexander Fee Revenue Percentage of L150,000;
THE ALEXANDER FEE REVENUE PERCENTAGE is that percentage in the table set out
below which corresponds to the appropriate SNA fee Revenue (values between the
figures shown being calculated using interpolation);
ALEXANDER FEE REVENUE PERCENTAGE
SNA >4.0 100
---
Fee 3.6 75
---
Revenue 3.2 50
---
(US$MM) >4.0 0
---
SNA FEE REVENUE means the Sibson North America (Sibson US and Sibson Canada)
aggregate fee revenue from change leadership consulting over the Earn-Out
Period calculated by reference to the financial statements of Sibson North
America. For the purpose of calculating the SNA Fee Revenue, the companies
comprising Sibson US and Sibson Canada throughout the Earn-Out Period shall
include only those companies comprising Sibson US and Sibson Canada at
Completion;
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< means less than; and
> means greater than.
SCHEDULE 2
THE XXXXXX DEFERRED Consideration
The aggregate value of Loan Notes to be issued as the Xxxxxx Deferred
Consideration will be equal to (the Xxxxxx Fee Revenue Percentage of L100,000)
less the Morgan Cash Adjustment.
THE XXXXXX FEE REVENUE PERCENTAGE is that percentage in the table set out below
which corresponds to the relevant Xxxxxx Fee Revenue (values between the
figures shown being calculated using interpolation):
>2.0 100
-----------
Xxxxxx Fee 1.34 50
-----------
Revenue 0.67 25
-----------
(LM) <0.67 0
-----------
XXXXXX FEE REVENUE means the total client fees introduced to Alexander by
Xxxxxxx Xxxxxx during the Earn-out Period which are acknowledged by Nextera as
such;
MORGAN CASH ADJUSTMENT means one half of the aggregate annual retainer paid to
Xxxxxxx Xxxxxx during the Earn-Out Period;
< means less than; and
> means greater than.
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In witness whereof this Agreement has been duly executed.
SIGNED by NEXTERA
ENTERPRISES INC. by XXXXXXX /s/ XXXXXXX XXXXXXXXX
XXXXXXXXX, Chief Financial
Officer.
SIGNED as an AGREEMENT by
XXXXXX XXXXXXXXX in the /s/ XXXXXX XXXXXXXXX
Presence of:
XXXXXX XXXX
Xxx Xxxx Xxxxxx
Xxxxxx, XX0X 0XX
SIGNED as an AGREEMENT by
XXXXXX XXXXXXXXX for and on /s/ XXXXXX XXXXXXXXX
behalf of XXXXXX XXXXXX by
power given under power of
attorney dated 20 January 1999 in
the presence of:
XXXXXX XXXX
Xxx Xxxx Xxxxxx
Xxxxxx, XX0X 0XX
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