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EXHIBIT NO. 10.11
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
This First Amendment to Asset Purchase Agreement dated as of
August 31, 1998, is by and among SC/NE, LLC, a Delaware limited liability
company ("Buyer"), Nextera Enterprises, L.L.C., a Delaware limited liability
company, ("Nextera"), Sibson & Company, L.P., a Delaware limited partnership
(the "Seller") on behalf of itself and as the Shareholder Representative of the
Shareholders (as defined in the Purchase Agreement as hereinafter defined),
Sibson & Company, Inc., a Delaware corporation ("General Partner") and SC2,
Inc., a Delaware corporation ("Limited Partner").
W I T N E S S E T H
WHEREAS, by that Asset Purchase Agreement, dated as of August 31,
1998 (the "Purchase Agreement"), the parties thereto have agreed, among other
things, that Seller shall sell substantially all of its assets to Buyer, Buyer
shall assume certain liabilities of Seller and Nextera shall provide certain
consideration to Seller as more particularly described in the Purchase
Agreement;
WHEREAS, Buyer, Nextera, the Seller, on behalf of itself and the
Shareholders, General Partner and Limited Partner desire to modify and amend the
Purchase Agreement and certain exhibits to the Purchase Agreement as provided
herein; and
WHEREAS, Seller was appointed by the Shareholders to serve as the
Shareholder Representative for purposes of amending the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and in the Purchase Agreement, and of other good and valuable
consideration, the mutual receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto, for themselves and their respective successors
and assigns, hereby agree as follows:
1. Definitions. Unless otherwise defined herein, all capitalized
terms used herein shall have the meanings ascribed to them in the Purchase
Agreement.
2. Purchase Price. The provisions of Section 2.4 of the Purchase
Agreement are modified as follows:
(a) The first sentence of Section 2.4(a) is hereby deleted
and the following is inserted in lieu thereof:
In consideration of the sale, transfer, assignment,
conveyance and delivery of an undivided 84.18% interest in
the Assets by Seller to Buyer and in reliance upon the
representations and warranties of Seller herein contained
and made at the Closing and upon the terms
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and subject to the satisfaction or waiver by the party
entitled thereto of all of the conditions set forth herein,
Buyer agrees that at the Closing, it will pay to Seller the
aggregate amount of Thirty Four Million Seven Hundred Sixty
Three Thousand Nine Hundred Dollars ($34,763,900) (the
"Purchase Price") (to be paid by wire transfer of
immediately available funds) and shall assume the Assumed
Liabilities pursuant to this Agreement.
(b) The first sentence of Section 2.4(b) is hereby deleted
and the following is inserted in lieu thereof:
In consideration of the contribution of an undivided 15.82%
interest in the Assets by Seller to Buyer and in reliance
upon the representations and warranties of Seller herein
contained and made at the Closing and upon the terms and
subject to the satisfaction or waiver of all of the
conditions set forth herein, Buyer agrees that at the
Closing, it will (i) deliver to Seller the aggregate amount
of 1,828,539 Nextera Class A Units issued by Nextera in
Seller's name pursuant to the Nextera Operating Agreement
and (ii) deliver to the Escrow Agent 784,548 Nextera Class A
Units (the "Escrow Amount") issued by Nextera in Seller's
name pursuant to and in accordance with the terms of the
Nextera Operating Agreement and to be held in the manner
described in the Escrow Agreement to be executed in
substantially the form attached hereto as Exhibit B
2. Notices. The provision of Section 14.3 of the Purchase Agreement
listing the address of "Xxxxxx Xxxxxxxx" under the heading "TO THE SHAREHOLDERS"
is hereby deleted in its entirety and the following is inserted in lieu thereof:
Xxxxxx Xxxxxxxx
0 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Notwithstanding anything to the contrary in the Purchase Agreement or
other agreements related thereto, the parties acknowledge that Xxxxxx Xxxxxxxx'x
state of residence is Connecticut.
3. Exhibit A to Purchase Agreement; Shareholders. Exhibit A to the
Purchase Agreement is hereby deleted and replaced in its entirety and in lieu
thereof with the "Amended Exhibit A to Purchase Agreement" attached hereto.
4. Exhibit C to Purchase Agreement; Shareholders. Exhibit C to the
Purchase Agreement is hereby deleted and replaced in its entirety and in lieu
thereof with the "Amended Exhibit C to Purchase Agreement" attached hereto.
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5. Exhibit L to Purchase Agreement; Business Plan. Exhibit L to the
Purchase Agreement is hereby modified by adding after the Buyer Operating
Agreement the "Business Plan" attached hereto as "Amended Exhibit L to Purchase
Agreement."
6. Exhibit N to Purchase Agreement. The Stockholders Agreement
attached as Exhibit C to the Exchange Agreement attached as Exhibit N to the
Purchase Agreement is hereby modified as follows: (a) "Xxxx Xxxxxxxxxx" is
hereby added as a party to the Stockholders Agreement and a signature block is
hereby added for such individual; (b) the name "Xxxx Xxxxxxxxxx" is hereby added
to the Table of Stockholders attached as Schedule A to the Stockholders
Agreement; (c) the names "Xxxx Xxxxxxx," "Xxxxxxx Xxxxx," "Xxxxx Xxxxxxxxx" and
signature blocks for such individuals are hereby removed from the signature
pages to the Stockholders Agreement; and (d) "Xxxx Xxxxxxx," "Xxxxxxx Xxxxx,"
"Xxxxxxx XxXxxxxxx" and "XxXxxxxxx Children's Trust" are hereby removed from the
Table of Stockholders attached as Schedule A to the Stockholders Agreement.
7. Exhibit S to Purchase Agreement; PNC Bank. The attached "Exhibit S
to Purchase Agreement" regarding the assignment to, and assumption by, Buyer of
Seller's Revolving Credit Facility with PNC Bank, National Association, and all
indebtedness thereunder (which includes a release of Seller and its Subsidiaries
from all obligations thereunder) shall be appended to the Purchase Agreement as
Exhibit S thereto.
8. Exhibit A to Escrow Agreement; Shareholders. Exhibit A to the form
of Escrow Agreement attached as Exhibit B to the Purchase Agreement is hereby
deleted and replaced in its entirety and in lieu thereof with the "Amended
Exhibit A to Escrow Agreement" attached hereto.
9. Exhibit A to Exchange Agreement; Shareholders. Exhibit A to the
form of Exchange Agreement attached as Exhibit N to the Purchase Agreement is
hereby deleted and replaced in its entirety and in lieu thereof with the
"Amended Exhibit A to Exchange Agreement" attached hereto.
10. Full Force and Effect of Agreement. As modified and amended by
this First Amendment, all of the terms, covenants and conditions of the Purchase
Agreement are hereby ratified and confirmed and shall continue to be and remain
in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the day and year first above written.
BUYER:
SC/NE, LLC, a Delaware limited
liability company
By: NEXTERA ENTERPRISES, L.L.C.
Its: Sole Member
By: /s/ XXXXXXX X. XXXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxxx
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Title: Chief Financial Officer
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NEXTERA:
NEXTERA ENTERPRISES, L.L.C., a Delaware
limited liability company
By: /s/ XXXXXXX X. XXXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxxx
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Title: Chief Financial Officer
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SELLER:
SIBSON & COMPANY, L.P., a Delaware
limited partnership
By: Sibson & Company, Inc.,
its General Partner
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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GENERAL PARTNER:
SIBSON & COMPANY, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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LIMITED PARTNER:
SC2, Inc., a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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SHAREHOLDER REPRESENTATIVE:
SIBSON & COMPANY, L.P.,
a Delaware limited partnership
By: Sibson & Company, Inc.,
its General Partner
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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