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EXHIBIT 10.19
CONSENT AND AMENDMENT
CONSENT AND AMENDMENT (this "Consent and Amendment"), dated as of
December 31, 1998, to the SECURITIES PURCHASE AGREEMENT dated as of August 31,
1998 (as the same may be amended, supplemented or otherwise modified from time
to time, the "Purchase Agreement") among Nextera Enterprises L.L.C. (the
"Company"), Nextera Funding, Inc. (the "Purchaser"), Nextera Enterprises, Inc.
("Newco") and Knowledge Universe, Inc.. ("KU").
W I T N E S S E T H:
WHEREAS, the Company has requested the Purchaser to amend certain
provisions of the Purchase Agreement upon the terms and conditions set forth
herein; and
WHEREAS, the Company has requested the Purchaser to consent to certain
transactions upon the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, the undersigned hereby agree as follows:
1. Defined Terms. Terms defined in the Purchase Agreement and used
herein shall have the meanings given to them in the Purchase Agreement.
2. Consents. Purchaser is willing to consent to the following upon and
subject to the terms and conditions set forth below:
(a) The contribution by the Company of its membership interest in
SGM Consulting LLC (d/b/a Sigma Consulting) ("SGM") and the subsequent
liquidation of SGM into Symmetrix, Inc. pursuant to the Contribution
Agreement dated as of December 31, 1998 among SGM and the Company.
Symmetrix shall subsequently change its name on or after January 1, 1999
to "Nextera Business Performance Solutions Group, Inc."
(b) The transfer of all the ownership interests in the Company to
Newco on the date hereof and the subsequent dissolution of the Company
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pursuant to the Share Exchange Agreement dated as of August 31, 1998 by
and among the Company, Newco, the shareholders of Sibson & Company,
Inc., the shareholders of SC2, Inc. and certain shareholders of Sibson
Acquisition Co.
(c) In connection with the Contribution Agreement dated as of
December 31, 1998 by and among the Company, Lexecon Inc. ("Lexecon") and
the shareholders of Lexecon identified on Exhibit A thereto, the
shareholders of all of the outstanding capital stock of Lexecon will
contribute such stock to the Company in exchange for (i) the issuance by
the Company of 2,816,000 shares of its Class A Common Stock and (ii)
$31,152,000 in cash.
3. Amendments. (a) Section 1.1 of the Purchase Agreement is hereby
amended by adding at the end of the definition of "Commitment" the following:
"and the KU Commitment".
(b) Section 1.1 of the Purchase Agreement is hereby amended by
changing the definition of "Company" from "Nextera Enterprises, L.L.C., a
Delaware limited liability company" to "Nextera Enterprises, Inc., a Delaware
corporation".
(c) Section 1.1 of the Purchase Agreement is hereby amended by
adding at the end of the definition of "Engagement Letter" the following: "and
the letter agreement dated as of December 31, 1998 between the Company and
DLJSC".
(d) Section 1.1 of the Purchase Agreement is hereby amended by
changing the definition of "Maturity Date" from "March 1, 1999" to "April 30,
1999".
(e) Section 1.1 of the Purchase Agreement is hereby amended to
add the following definitions in the proper alphabetical order:
"Consent and Amendment" means the Consent and Amendment dated as
of December 31, 1998 among Nextera Enterprises L.L.C., Nextera Funding, Inc.,
Nextera Enterprises, Inc. and Knowledge Universe, Inc.
"KU" mean Knowledge Universe, Inc.
"KU Commitment" means the obligation of KU to purchase Notes
hereunder in an aggregate principal amount of up to $37,500,000 to be the first
funds
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advanced pursuant to the Second Takedown and to be used in connection with the
Lexecon Acquisition.
"Lexecon Acquisition" means the acquisition by the Company of the
stock Lexecon Inc. as described in the Consent and Amendment.
(f) Section 2.1 of the Purchase Agreement is hereby amended by
changing the reference to "and Purchaser agrees to purchase, Notes in an
aggregate amount not to exceed $40,000,000" to the following: "and Purchaser and
KU each agree to purchase, Notes in the aggregate amount not to exceed
$77,500,000".
(g) Section 2.6 of the Purchase Agreement is hereby amended by
adding at the end of the first sentence of clause (b) the following: ";
provided, however, that notwithstanding anything to the contrary in this Section
2.6(b), on and after December 31, 1998 the interest shall be payable at the rate
of 12% per annum."
(h) Section 5.2(a) of the Purchase Agreement is hereby amended by
deleting the phase "Delphi Acquisition" and substituting in lieu thereof the
phrase "Lexecon Acquisition".
(i) Article 6 of the Purchase Agreement is hereby amended to add
the following new section: "Section 6.21 KU Debt. The documents evidencing the
KU Debt shall be amended (as so amended, the "KU Documents") by the Company and
KU by no later than January 15, 1998 to provide that the obligations covered
thereunder shall, upon the occurrence of any notice of Default from Purchaser
hereunder, either be (i) moved up in the Company's capital structure to a
holding company level or at KU's election, (ii) exchanged for preferred stock of
the Company on terms essentially equivalent to those of the KU Debt and with a
liquidation preference until all amounts owed to the Purchaser are paid in full
at which time the terms can change, and such KU Documents shall be satisfactory
to the Purchaser in its sole discretion."
(j) Section 6.1 of the Purchase Agreement is hereby amended
(including grammatically as necessary) to add the following new subsection (l):
"(l) promptly at the end of each calendar month, monthly financial data of the
Company and its Subsidiaries for the preceding month (including without
limitation, income statements, balance sheets and backlog on a consolidated and
business unit basis) in form and substance satisfactory to Purchaser."
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4. Effective Date. This Consent and Amendment shall become effective on
the date (the "Effective Date") on which:
(a) the Company and the Purchaser shall have duly executed and
delivered to the Purchaser this Consent and Amendment and all other documents
required by Purchaser to be executed in connection with this Consent and
Amendment, including, without limitation, those items listed on Schedule I
hereto;
(b) KU shall have entered into an Assignment Agreement with the
Purchaser in form and substance satisfactory to the Purchaser, the form of which
is attached hereto;
(c) KU shall have provided evidence satisfactory to the Purchaser
of its willingness to fund up to $37,500,000 pursuant to the Purchase Agreement
in connection with the Second Takedown and that such funds shall be used first
in connection with the Second Takedown;
(d) Purchaser shall have received executed copies of one or more
favorable opinions of counsel for each of the Company and KU, in form and
substance satisfactory to Purchaser, dated as of the date hereof with respect
to, among other things, the enforceability, validity and binding effect of this
Consent and Amendment and the Assignment Agreement; and
(e) Purchaser shall have received an originally executed copy of
that certain letter agreement among DLJSC, the Company and the other parties
thereto (the "Letter Agreement").
5. Covenant. Purchaser agrees to amend the Financing Documents by
January 8, 1999 as may be reasonably necessary to reflect KU's status as secured
party thereunder.
6. No Other Amendments; Confirmation. Except as expressly amended
hereby, the provisions of the Purchase Agreement and other Financing Documents
are and shall remain in full force and effect.
7. Governing Law. This Consent and Amendment and the rights and
obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
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8. Counterparts. This Consent and Amendment may be executed by one or
more of the parties hereto on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. This Consent and Amendment may be delivered by facsimile
transmission of the relevant signature pages hereof.
9. Representations and Warranties. The Company hereby represents and
warrants that (a) each of the representations and warranties in Section 3 of the
Purchase Agreement shall be, after giving effect to this Consent and Amendment,
true and correct in all material respects as if made on and as of the date of
the Initial Takedown (unless such representations and warranties are stated to
relate to a specific earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of such earlier
date) and (b) after giving effect to this Consent and Amendment, no Default or
Event of Default shall have occurred and be continuing.
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IN WITNESS WHEREOF, the undersigned have caused this Consent and
Amendment to be executed and delivered by their duly authorized officers as of
the date first above written.
NEXTERA FUNDING, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Vice President
NEXTERA ENTERPRISES, L.L.C.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Secretary
NEXTERA ENTERPRISES, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Secretary
KNOWLEDGE UNIVERSE, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Secretary
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Schedule I
1) Assignment Agreement between Purchaser and KU.
2) Secured Note by Newco in favor of KU in the aggregate amount of up to
$37,500,000.
3) Assumption Agreement entered into by Newco in favor of the Purchaser.
4) UCC-1 and UCC-3 financing statements as required by the transactions
described in the Consent and Amendment.
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