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EXHIBIT NO. 10.15
SHARE EXCHANGE AGREEMENT
by and among
NEXTERA ENTERPRISES, L.L.C.
as "Nextera,"
NEXTERA ENTERPRISES, INC.
as "Newco,"
THE SHAREHOLDERS OF SIBSON & COMPANY, INC.
as the "GP Shareholders,"
THE SHAREHOLDERS OF SC2, INC.
as the "LP Shareholders," and
CERTAIN SHAREHOLDERS OF SIBSON ACQUISITION CO.
as the "Canadian Shareholders"
Dated August 31, 1998
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SHARE EXCHANGE AGREEMENT
TABLE OF CONTENTS
Page
ARTICLE I. EXCHANGE OF THE SHARES AND CONSIDERATION..............................................................2
1.1. SHARES BEING EXCHANGED; CONSIDERATION........................................................................2
1.2. CLOSING......................................................................................................3
1.3. SURRENDER OF CERTIFICATES....................................................................................3
1.4. NO FURTHER RIGHTS............................................................................................4
1.5. CANADIAN EXCHANGEABLE SHARES.................................................................................4
1.6. SHAREHOLDER REPRESENTATIVE...................................................................................4
1.7. INCORPORATION TRANSACTION....................................................................................5
ARTICLE II. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS...................................................5
2.1. ORGANIZATION AND QUALIFICATION...............................................................................6
2.2. CAPITALIZATION; BENEFICIAL OWNERSHIP.........................................................................6
2.3. AUTHORITY....................................................................................................7
2.4. SUBSIDIARIES.................................................................................................7
2.5. LIABILITIES..................................................................................................7
2.6. TAXES........................................................................................................7
2.7. EXPERIENCE; ACCREDITED INVESTOR..............................................................................9
2.8. INVESTMENT...................................................................................................9
2.9. NO PUBLIC MARKET............................................................................................10
2.10. ACCESS TO DATA; INCORPORATION TRANSACTION..................................................................10
2.11. RESIDENCE..................................................................................................10
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF NEXTERA..........................................................10
3.1. ORGANIZATION AND QUALIFICATION..............................................................................10
3.2. CAPITALIZATION AND BENEFICIAL OWNERSHIP OF NEWCO............................................................10
3.3. AUTHORITY OF NEXTERA........................................................................................11
3.4. AUTHORITY OF NEWCO..........................................................................................12
3.5. INVESTOR REPRESENTATIONS....................................................................................13
3.6. FORMATION OF NEWCO..........................................................................................13
ARTICLE IV. COVENANTS...........................................................................................13
4.1. FURTHER ASSURANCES..........................................................................................13
4.2. INCORPORATION TRANSACTION...................................................................................13
4.3. NO DISTRIBUTION OF NEXTERA CLASS A UNITS TO THE U.S. SHAREHOLDERS...........................................14
4.4. CONVERSION OF THE PARTNERSHIP...............................................................................14
4.5. NO SOLICITATION OF OTHER OFFERS; NO SALE OF SHARES..........................................................14
4.6. NOTIFICATION OF CERTAIN MATTERS.............................................................................15
4.7. BOARDS OF DIRECTORS AND OFFICERS............................................................................15
4.8. OBLIGATIONS OF NEWCO........................................................................................15
4.9. TAX MATTERS.................................................................................................15
ARTICLE V. CONDITIONS TO OBLIGATIONS OF THE PARTIES.............................................................17
5.1. CONDITIONS TO OBLIGATIONS OF THE U.S. .S AND NEXTERA........................................................17
ARTICLE VI. INDEMNIFICATION.....................................................................................18
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6.1. INDEMNIFICATION BY THE U.S. SHAREHOLDERS....................................................................18
6.2. SATISFACTION OF CLAIMS AGAINST U.S. SHAREHOLDERS............................................................18
6.3. INDEMNIFICATION BY THE CANADIAN SHAREHOLDERS................................................................19
6.4. SATISFACTION OF CLAIMS AGAINST CANADIAN SHAREHOLDERS........................................................20
6.5. INDEMNIFICATION BY NEXTERA AND NEWCO........................................................................20
6.6. INDEMNIFICATION BY KE.......................................................................................21
6.7. NOTICE; DEFENSE OF CLAIMS...................................................................................21
ARTICLE VII. TERMINATION........................................................................................22
ARTICLE VIII. MISCELLANEOUS.....................................................................................22
8.1. CANADIAN SHAREHOLDERS.......................................................................................22
8.2. SURVIVAL OF REPRESENTATIONS, ETC............................................................................22
8.3. FEES AND EXPENSES...........................................................................................23
8.4. GOVERNING LAW...............................................................................................23
8.5. NOTICES.....................................................................................................23
8.6. ENTIRE AGREEMENT............................................................................................24
8.7. ASSIGNABILITY; BINDING EFFECT...............................................................................25
8.8. CAPTIONS AND GENDER.........................................................................................25
8.9. EXECUTION IN COUNTERPARTS...................................................................................25
8.10. AMENDMENTS.................................................................................................25
8.11. SPECIFIC PERFORMANCE.......................................................................................25
8.12. TERMINATION OF SHAREHOLDERS AGREEMENTS.....................................................................25
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SHARE EXCHANGE AGREEMENT
This Share Exchange Agreement (the "Agreement") is entered into
as of August 31, 1998 by and among Nextera Enterprises, L.L.C., a Delaware
limited liability company ("Nextera") and the sole member of SC/NE, LLC, a
Delaware limited liability company ("Buyer"), Nextera Enterprises, Inc., a
Delaware corporation ("Newco"), the holders of the capital stock of Sibson &
Company, Inc., a Delaware corporation ("General Partner"), listed on Exhibit A
hereto (the "GP Shareholders"), the holders of the capital stock of SC2, Inc., a
Delaware corporation ("Limited Partner"), listed on Exhibit A hereto (the "LP
Shareholders") (the GP Shareholders and the LP Shareholders are referred to
herein individually as a "U.S. Shareholder" and collectively as the "U.S.
Shareholders") and the holders of exchangeable preference shares in the capital
of Sibson Acquisition Co., a Nova Scotia unlimited liability company ("Sibson
Acquisition Co."), listed on Exhibit B hereto (the "Canadian Shareholders," and
together with the U.S. Shareholders, the "Shareholders").
WHEREAS, pursuant to an Asset Purchase Agreement (the "Purchase
Agreement") dated as of the date hereof, by and among Buyer, Nextera, Sibson &
Company, L.P. (the "Partnership"), General Partner, Limited Partner and the U.S.
Shareholders, Buyer is purchasing certain assets and assuming certain
liabilities from the Partnership;
WHEREAS, as of the date hereof, the GP Shareholders own one
hundred percent (100%) of the issued and outstanding capital stock (the "GP
Shares") of General Partner, and the LP Shareholders own one hundred percent
(100%) of the issued and outstanding capital stock (the "LP Shares") of Limited
Partner;
WHEREAS, prior to the Closing (as hereinafter defined) the
Partnership will have been converted to a limited liability company the
membership interests of which shall be owned by the U.S. Shareholders or their
Permitted Assignees, as contemplated by Section 4.5, and General Partner and
Limited Partner will own a certain number of Class A Common Units of Nextera
issued to the Partnership pursuant to the Purchase Agreement;
WHEREAS, Knowledge Enterprises, Inc. ("KE") desires to commit to
cause the business of Nextera to be incorporated (the "Incorporation
Transaction");
WHEREAS, Newco desires, and Nextera desires to commit to cause
Newco, to acquire the GP Shares and the LP Shares (collectively, the "Shares")
and the U.S. Shareholders desire to commit to exchange the Shares for Class A
Common Stock of Newco ("Newco Class A Stock");
WHEREAS, pursuant to an Escrow Agreement (the "U.S. Escrow
Agreement") dated as of the date hereof, by and among Buyer, Nextera, the
Partnership, General Partner, Limited Partner, the U.S. Shareholders and the
Escrow Agent (as defined therein) that number of Class A Common Units of Nextera
("Nextera Class A Units") held in escrow shall be released from escrow and
replaced with a portion of the Newco Class A Stock issued to the U.S.
Shareholders in connection with the Incorporation Transaction as described
herein;
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WHEREAS, pursuant to a Share Purchase Agreement (the "Canadian
Purchase Agreement") dated as of the date hereof, by and among Nextera, Sibson
Acquisition Co., and the Canadian Shareholders, Nextera is purchasing the
outstanding common stock of Sibson Canada, Inc., or its successor, and the
Canadian Shareholders will receive a number of exchangeable preference shares in
the capital stock of Sibson Acquisition Co. (the "Exchangeable Shares") which
may be exchanged for Nextera Class A Units as provided in the Canadian Purchase
Agreement; and
WHEREAS, Nextera and the Canadian Shareholders desire to cause
the Exchangeable Shares to be exchangeable for Newco Class A Stock following the
Incorporation Transaction.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises of the parties herein contained, and other good and valuable
consideration, receipt and sufficiency of which are hereby acknowledged, and in
reliance upon the representations and warranties hereinafter set forth, the
parties hereto agree as follows:
ARTICLE I.
EXCHANGE OF THE SHARES AND CONSIDERATION.
1.1. Shares Being Exchanged; Consideration.
(a) At the Closing (as hereinafter defined), and subject to the
terms and conditions of this Agreement, each U.S. Shareholder shall assign,
transfer and deliver to Newco all of its Shares in the manner described in
Section 1.3. Subject to the terms and conditions of this Agreement, and in
consideration of the assignment and delivery of the Shares to Newco, Newco shall
issue to the U.S. Shareholders and/or their Permitted Assignees (as defined in
Section 4.5), and the U.S. Shareholders and/or their Permitted Assignees shall,
in the aggregate, acquire and accept from Newco, that certain number of shares
of Newco Class A Stock which represents the identical percentage of the total
issued and outstanding common stock of Newco following the Incorporation
Transaction as that percentage of the total issued and outstanding membership
interest in Nextera which General Partner and Limited Partner own immediately
prior to the Incorporation Transaction (including the Class A Common Units held
pursuant to the Escrow Agreement) (the "New Stock").
Contemporaneous with the exchange of Shares by the U.S.
Shareholders for Newco Class A Stock, each member of Nextera other than General
Partner and Limited Partner shall contribute his membership interest in Nextera
in exchange for that certain number of shares of Newco common stock which
represents the identical percentage of the total issued and outstanding common
stock of Newco following the Incorporation Transaction as that percentage of the
total issued and outstanding membership interest in Nextera which such member
may own immediately prior to the Incorporation Transaction. Each member shall
receive Newco Class A Stock and Class B Common Stock of Newco ("Newco Class B
Stock") in exchange, and in proportion to, the Nextera Class A Units and Class B
Common Units of Nextera ("Nextera
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Class B Units") which he exchanges. The rights and preferences of the holders of
Newco Class A Stock and Newco Class B Stock shall be identical, except that the
holders of Newco Class A Stock are entitled to one vote per share and the
holders of Newco Class B Stock are entitled to ten votes per share on all
matters voted on by the stockholders of the Company. Each share of Newco Class B
Stock will be convertible into one share of Newco Class A Stock as described on
Schedule 3.2.
(b) To implement the foregoing, at the Closing, Newco shall issue
in the name of each U.S. Shareholder a number of shares of Newco Class A Stock
equal to the product of (i) the aggregate number of shares of Newco Class A
Stock to be issued to the U.S. Shareholders pursuant to Section 1.1(a) and (ii)
such U.S. Shareholder's combined ownership percentage set forth on Exhibit A
hereto (with respect to any U.S. Shareholder, such "U.S. Shareholder's
Percentage"). Each U.S. Shareholder shall be issued two certificates
representing the shares of Newco Class A Stock to which such U.S. Shareholder is
entitled pursuant to the immediately preceding sentence (a "U.S. Shareholder's
Total Newco Shares") as follows: the first for a number of shares of Newco Class
A Stock which is equal to the product of (A) the number of shares of Newco Class
A Stock which represents the identical percentage of the total issued and
outstanding Newco Class A Stock following the Incorporation Transaction as the
percentage of issued and outstanding Nextera Class A Units held pursuant to that
certain Escrow Agreement dated as of the date hereof by and among Nextera, the
Partnership, General Partner, Limited Partner, the U.S. Shareholders and Chase
Manhattan National Trust Company (the "U.S. Escrow Agreement") immediately prior
to the Incorporation Transaction (the "Total Escrow Shares") and (B) such U.S.
Shareholder's Percentage (the number of shares resulting from such product being
referred to as a "U.S. Shareholder's Escrow Shares"), and the second for the
balance of such U.S. Shareholder's Total Newco Shares (a "U.S. Shareholder's
Non-Escrow Shares"). Newco shall deliver the certificates representing each U.S.
Shareholder's Escrow Shares to the Escrow Agent for deposit into escrow pursuant
to the U.S. Escrow Agreement and each U.S. Shareholder shall deliver to the
Shareholder Representative (as hereinafter defined) a stock power, duly executed
in blank with respect to such U.S. Shareholder's Escrow Shares, for delivery by
the Shareholder Representative to the Escrow Agent. Newco shall deliver the
certificates representing each U.S. Shareholder's Non-Escrow Shares to the
Shareholder Representative for delivery to such U.S. Shareholder.
1.2. Closing. The Closing of the transaction contemplated by this
Agreement (the "Closing") shall take place at a mutually agreeable location in
New York, New York on or before January 1, 1999; provided, however, that Nextera
may extend the closing at its option to no later than March 31, 1999 if it in
good faith expects to complete an initial public offering of the capital stock
of Newco within such extended period and delivers to the Shareholder
Representative written notice to such effect on or before December 31, 1998. The
date of the Closing is referred to hereinafter as the "Closing Date."
1.3. Surrender of Certificates.
(a) As of the date hereof, the U.S. Shareholders have delivered
to the Shareholder Representative (who shall have presented to Nextera for
review) each certificate
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representing Shares with assignments duly executed in blank (or the equivalent)
and such other documents as may reasonably be required by Nextera in order to
effect as of the Closing a valid transfer of such Shares by the U.S.
Shareholders, free and clear of any and all liens, encumbrances, charges or
claims. At the Closing, the Shareholder Representative shall deliver the
certificates and assignments representing Shares to Newco and Newco shall
deliver certificates representing the Newco Class A Stock to the Shareholder
Representative and/or the Escrow Agent as provided in Section 1.1.
(b) There shall be no obligation to deliver the Newco Class A
Stock in respect of any Shares until (and then only to the extent that) the
holder thereof validly surrenders his certificate or certificates representing
the Shares, or, in lieu thereof, delivers to Newco an appropriate affidavit of
loss and an indemnity agreement as may be required in any such case by Newco in
its reasonable discretion.
(c) If any shares of Newco Class A Stock are to be issued in a
name other than that in which the certificate for Shares surrendered for
exchange is registered, it shall be a condition to the payment that the
certificate so surrendered shall be properly endorsed or otherwise in proper
form for transfer and that the person requesting the payment shall either (i)
pay to Newco any transfer or other taxes required by reason of the issuance of
Newco Class A Stock to a person other than the registered holder of the
certificate surrendered or (ii) establish to the satisfaction of Newco that such
taxes have been paid or are not payable.
1.4. No Further Rights. At and after the Closing, each holder of a
certificate that represented Shares immediately prior to the Closing shall cease
to have any rights as a shareholder of General Partner or Limited Partner. This
Section 1.4 shall not, however, impair rights otherwise expressly provided in
this Agreement.
1.5. Canadian Exchangeable Shares. At and after the Closing, each
certificate that represented Exchangeable Shares (including the Exchangeable
Shares deposited pursuant to that certain Escrow Agreement (the "Canadian Escrow
Agreement") by and among Nextera, Sibson Acquisition Co., the Canadian
Shareholders and Chase Manhattan Trust Company) shall cease to be exchangeable
for Nextera Class A Units and instead shall be exchangeable only for Newco Class
A Stock. Each Exchangeable Share shall be exchangeable for that certain number
of shares of Newco Class A Stock which represents the identical percentage of
the total issued and outstanding common stock of Newco following the
Incorporation Transaction (immediately after giving effect to the exchange of
Shares for shares of Newco Class A Stock by the U.S. Shareholders and the
exchange of membership interests by certain of the members of Nextera for shares
of Newco Class A Stock all as contemplated by Section 1.1 hereof) as that
percentage of the total issued and outstanding membership interest in Nextera
which such Exchangeable Share was exchangeable for immediately prior to the
Incorporation Transaction.
1.6. Shareholder Representative. The Shareholders hereby appoint the
Partnership, and, upon conversion of the Partnership to a limited liability
company as provided in Section 4.4, such limited liability company to serve as
the exclusive representative of the Shareholders with respect to this Agreement
(the "Shareholder Representative") and the
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Partnership, on behalf of itself and its successors and assigns, hereby accepts
such appointment. If, for any reason, the Shareholder Representative shall be
either unable or unwilling to serve, a successor Shareholder Representative
shall be appointed by written consent of the Shareholders and all references to
the Shareholder Representative shall be deemed to include such successor. Each
Shareholder whose signature appears below expressly agrees that this Agreement
may be amended or modified, and compliance with any condition or covenant may be
waived without the consent of, or execution thereof by, such Shareholder if the
Shareholder Representative agrees to such amendment or modification or grants
such waiver, in each case by a writing duly and validly executed by the
Shareholder Representative as provided in Section 8.10; provided, however, that
the Shareholder Representative will not enter into any such amendment or
modification or waive any condition or covenant that materially and adversely
affects any Shareholder differently than all other Shareholders affected thereby
without the consent of such Shareholder.
1.7. Incorporation Transaction.
(a) KE and the other Members (as defined in the Second Amended
and Restated Limited Liability Company Agreement of Nextera, dated as of May 1,
1998, as amended (the "Nextera Operating Agreement"), a copy of which has been
attached as Exhibit M to the Purchase Agreement), shall effect the Incorporation
Transaction pursuant to Section 11 of the First Amendment to the Nextera
Operating Agreement (the "First Amendment").
(b) The Members, other than General Partner and Limited Partner,
shall be required to contribute their Units to Newco in exchange for the stock
of Newco in accordance with Section 11 of the First Amendment. The amount and
class of such stock issued to each Member shall correspond to the class and
percentage membership interest of such Member immediately prior to the
Incorporation Transaction. Subject to the terms and conditions of this
Agreement, General Partner and Limited Partner shall not contribute their
Nextera Class A Units. In order to implement the foregoing, Nextera has gathered
from its members the certificates representing all of the issued and outstanding
membership interests in Nextera (including certificates representing membership
interests held under escrow agreements to which Nextera is a party) with
assignments duly executed in blank (or the equivalent) and any other documents
as may be reasonably necessary to effect as of the Closing a valid transfer of
such membership interests free and clear of all liens, encumbrances, charges or
claims.
(c) The Stockholders Agreement attached hereto as Exhibit C (the
"Stockholders Agreement") shall be executed as of the date hereof by Nextera,
Newco, the Members, and the Shareholders, shall become effective upon the
Closing and shall govern the actions of the stockholders of Newco with respect
to the matters set forth therein following the Incorporation Transaction.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS.
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As a material inducement to Nextera to enter into this Agreement
and consummate the transactions contemplated hereby, each of the U.S.
Shareholders hereby severally, but not jointly, makes to Nextera each of the
representations and warranties set forth in this Article II with respect to
himself only as applicable, and each of the Canadian Shareholders hereby
severally, but not jointly, makes to Nextera each of the representations and
warranties set forth in Section 2.3 and Sections 2.7 through 2.11 of this
Article II with respect to himself only as applicable.
2.1. Organization and Qualification.
(a) Each GP Shareholder represents and warrants to Nextera that
General Partner is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware with corporate power and
authority to own or lease its properties and to conduct its business in the
manner and in the places where such properties are owned or leased or such
business is currently conducted. Copies of the Certificate of Incorporation and
Bylaws of General Partner, and all amendments thereto, heretofore delivered to
Nextera are accurate and complete as of the date hereof. General Partner is not
in violation of any term of its Certificate of Incorporation or Bylaws.
(b) Each LP Shareholder represents and warrants to Nextera that
Limited Partner is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware with corporate power and
authority to own or lease its properties and to conduct its business in the
manner and in the places where such properties are owned or leased or such
business is currently conducted. Copies of the Certificate of Incorporation and
Bylaws of Limited Partner, and all amendments thereto, heretofore delivered to
Nextera are accurate and complete as of the date hereof. Limited Partner is not
in violation of any term of its Certificate of Incorporation or Bylaws.
2.2. Capitalization; Beneficial Ownership.
(a) Each GP Shareholder represents and warrants to Nextera that
the authorized capital stock of General Partner consists of 30,000 shares of
common stock of which 13,788 shares are duly and validly issued, and
outstanding, and are fully paid and non-assessable. Such GP Shareholder is the
record owner of the amount of shares of common stock of General Partner set
forth opposite such GP Shareholder's name on Exhibit A hereto. Other than as set
forth on Schedule 2.2, there are no outstanding options, warrants, rights,
commitments, preemptive rights or agreements of any kind for the issuance or
sale of, or outstanding securities convertible into, any additional equity of
any class of General Partner. None of General Partner's capital stock owned by
such GP Shareholder has been issued in violation of any federal or state law.
Except for the agreements listed on Schedule 2.2 and as provided in Section 4.5
with respect to Permitted Assignees, there are no voting trusts, voting
agreements, proxies or other agreements, instruments or undertakings with
respect to the voting of the capital stock of General Partner to which such GP
Shareholder is a party or by which his property is bound.
(b) Each LP Shareholder represents and warrants to Nextera that
the authorized capital stock of Limited Partner consists of 30,000 shares of
common stock of which
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3,167 shares are duly and validly issued, and outstanding, and are fully paid
and non-assessable. Such LP Shareholder is the record owner of the amount of
shares of common stock of Limited Partner set forth opposite such LP
Shareholder's name on Exhibit A hereto. Other than as set forth on Exhibit A,
there are no outstanding options, warrants, rights, commitments, preemptive
rights or agreements of any kind for the issuance or sale of, or outstanding
securities convertible into, any additional equity of any class of Limited
Partner. None of Limited Partner's capital stock owned by such LP Shareholder
has been issued in violation of any federal or state law. Except for the
agreements listed on Schedule 2.2 and as provided in Section 4.5 with respect to
Permitted Assignees, there are no voting trusts, voting agreements, proxies or
other agreements, instruments or undertakings with respect to the voting of the
capital stock of Limited Partner to which such LP Shareholder is a party or by
which his property is bound.
(c) Prior to the liquidation or conversion of the Partnership as
provided in Section 4.4., General Partner and Limited Partner will own of record
and beneficially all of the partnership interests of the Partnership.
2.3. Authority. Such Shareholder has full, authority, power and
capacity to enter into this Agreement and each agreement, document and
instrument to be executed and delivered by such Shareholder pursuant to this
Agreement and to carry out the transactions contemplated hereby and thereby.
This Agreement and each agreement, document and instrument executed and
delivered by such Shareholder pursuant to this Agreement constitutes a valid and
binding obligation of such Shareholder, enforceable in accordance with their
respective terms (assuming the due authorization, execution and delivery by the
other parties thereto), subject to the effect of any applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws affecting creditors'
rights generally and subject to the effect of general principles of equity,
including, without limitation, the possible unavailability of specific
performance or injunctive relief, regardless of whether considered in a
proceeding in equity or at law.
2.4. Subsidiaries. Other than General Partner's one percent (1%)
membership interest in Sibson Europe, LLC, a Delaware limited liability company
which shall be transferred to Buyer in connection with the Purchase Agreement,
neither General Partner nor Limited Partner own directly any equity interest in
any entity other than the Partnership.
2.5. Liabilities. There will be no Liabilities (as defined in Section
6.1 below) of General Partner or Limited Partner as of the close of business on
the Closing except for the Assumed Liabilities (as defined in the Purchase
Agreement) and except as set forth on Schedule 2.5 hereto.
2.6. Taxes. Except as otherwise set forth on Schedule 2.6:
(a) Each of General Partner and Limited Partner is, and has been
at all times since its formation, properly characterized as an "S" corporation
for federal income Tax (as defined in the Purchase Agreement) purposes and those
jurisdictions where General Partner or Limited Partner file income Tax Returns
(as hereinafter defined) which recognize such status.
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(b) Any transferee of stock of General Partner or Limited
Partner, except pursuant to this Agreement, is and will be a person who is
qualified to be a "S" Corporation shareholder.
(c) All returns, declarations, reports, estimates, statements,
schedules or other information or documents with respect to Taxes (collectively,
"Tax Returns") required to be filed by or with respect to General Partner or
Limited Partner have been timely filed (giving effect to extensions granted with
respect thereto) with the appropriate taxing authorities, and all such Tax
Returns are true, correct, and complete in all material respects.
(d) General Partner and Limited Partner have timely paid all
Taxes due from it or claimed to be due from it by any federal, state, local,
foreign or other taxing authority.
(e) There are no liens for Taxes upon any of the assets of, or
interests in General Partner or Limited Partner, except liens for Taxes not yet
due and payable.
(f) No Tax Returns of General Partner or Limited Partner have
been audited by the relevant taxing authority. No deficiency for any Taxes has
been proposed, asserted or assessed against General Partner or Limited Partner
that has not been paid in full. There are no outstanding waivers, extensions, or
comparable consents regarding the application of the statute of limitations with
respect to any Taxes or Tax Returns of General Partner or Limited Partner
(including the time for filing of Tax Returns or paying Taxes) and neither
General Partner nor any Limited Partner has pending requests for any such
waivers, extensions, or comparable consents.
(g) No audit or other proceeding by any federal, state, local or
foreign court, governmental, regulatory, administrative or similar authority is
presently pending with respect to any Taxes or Tax Return of General Partner or
Limited Partner, and neither General Partner nor any Limited Partner has
received written notice of any pending audits or proceedings.
(h) Neither General Partner nor any Limited Partner has received
a ruling from any taxing authority or signed an agreement with any taxing
authority that could reasonably be expected to have a material adverse effect on
General Partner or Limited Partner or the assets of General Partner or Limited
Partner.
(i) General Partner and Limited Partner have complied in all
material respects with all applicable laws, rules and regulations relating to
the payment and withholding of Taxes (including, without limitation, withholding
of Taxes pursuant to Sections 1441, 1442, 1445 and 1446 of the Code or similar
provisions under any applicable state and foreign laws) and has, within the time
and the manner prescribed by law, paid over to the proper governmental
authorities all amounts so withheld.
(j) Neither General Partner nor any Limited Partner is a party to
or bound by or has any obligation under any Tax sharing allocation or indemnity
agreement or similar contract or arrangement (whether or not written).
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(k) No power of attorney granted by General Partner or Limited
Partner with respect to any Taxes is currently in force.
(l) There is no expectation that any taxing authority may claim
or assess any material amount of Taxes payable by General Partner or Limited
Partner for any period ending on or prior to the Closing Date and there are no
facts of which General Partner or Limited Partner or the Shareholders are aware
which would constitute grounds for the assessment of any material amount of
Taxes payable by General Partner or Limited Partner for any period ending on or
prior to the Closing Date.
(m) No issue has been raised by a federal, state, local or
foreign taxing authority in any examination relating to General Partner or
Limited Partner which, by application of the same or similar principles, could
reasonably be expected to result in a proposed deficiency for any subsequent
taxable period.
(n) Schedule 2.6 sets forth each state, local and foreign
jurisdiction in which General Partner or Limited Partner has filed a Tax Return
during the last five years. No written claim has ever been received by General
Partner or Limited Partner from a taxing authority in a jurisdiction where
General Partner or Limited Partner does not pay Taxes or file Tax Returns that
General Partner or Limited Partner is or may be subject to Taxes assessed by
such jurisdiction, and, to the knowledge of such Shareholder, no such claim has
been threatened by a taxing authority.
(o) General Partner and Limited Partner are United States persons
within the meaning of the Code.
2.7. Experience; Accredited Investor. Such Shareholder has substantial
experience in evaluating and investing in private placement transactions of
securities in companies similar to Newco so that he is capable of evaluating the
merits and risks of acquiring the Newco Class A Stock to be issued to such
Shareholder and has the capacity to protect his own interests. Such Shareholder
must bear the economic risk of holding the Newco Class A Stock (when issued)
indefinitely unless such securities are registered pursuant to the Securities
Act of 1933, as amended (the "Securities Act"), or an exemption from
registration is available for the disposition thereof. Such Shareholder
understands that there is no assurance that any exemption from registration
under the Securities Act will be available. Such Shareholder is an "accredited
investor" as defined in Rule 501 under the Securities Act.
2.8. Investment. Such Shareholder is acquiring the Newco Class A Stock
for his own account for investment only, and not with the view to, or for resale
in connection with, any distribution thereof. It understands that the Newco
Class A Stock to be acquired has not been, and will not be, registered under the
Securities Act by reason of a specific exemption from the registration
provisions of the Securities Act, the availability of which depends upon, among
other things, the bona fide nature of the investment intent and the accuracy of
the Shareholder's representations as expressed herein.
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2.9. No Public Market. Such Shareholder understands that no public
market now exists for any of the securities issued by Nextera or Newco and that
Nextera has not made any assurances that a public market will ever exist for
such securities.
2.10. Access to Data; Incorporation Transaction. Such Shareholder has
received and read the Nextera business plan and financial statements and has had
an opportunity to discuss Nextera's business, management and financial affairs
and the Incorporation Transaction with its management. Such Shareholder has also
had an opportunity to ask questions of and receive answers from officers of
Nextera regarding the terms and conditions of acquiring Newco Class A Stock in
the Incorporation Transaction and pursuant to this Agreement, which questions
were answered to such Shareholder's satisfaction.
2.11. Residence. The residence of such Shareholder in which his
investment decision was made is set forth next to such Shareholder's name on the
signature page hereto.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF NEXTERA.
As a material inducement to the Shareholders to enter into this
Agreement and consummate the transactions contemplated hereby, Nextera hereby
makes to the Shareholders each of the representations and warranties set forth
in this Article III.
3.1. Organization and Qualification. Newco is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware with corporate power and authority to own or lease its properties and
to conduct its business in the manner and in the places where such properties
are owned or leased or such business is currently conducted or proposed to be
conducted as a result of the transactions contemplated by this Agreement. Copies
of the Certificate of Incorporation and Bylaws of Newco and all amendments
thereto shall be delivered to the Shareholder Representative not less than ten
(10) business days before the Closing and will be accurate and complete as of
the Closing. As of the Closing, Newco will not be in violation of any term of
its Certificate of Incorporation or Bylaws.
3.2. Capitalization and Beneficial Ownership of Newco. The Newco Class
A Stock and Newco Class B Stock to be issued to the Shareholders pursuant to
Article I will be duly and validly issued, and outstanding, and fully paid and
non-assessable. As of the Closing the rights and preferences of the holders of
Newco Class A Stock and Newco Class B Stock shall be identical, except that the
holders of Newco Class A Stock will be entitled to one vote per share and the
holders of Newco Class B Stock will be entitled to ten votes per share on all
matters voted on by the stockholders of the Company. Each share of Newco Class B
Stock will be convertible into one share of Newco Class A Stock as described on
Schedule 3.2 . Schedule 3.2 sets forth all of the issued and outstanding
membership interests of Nextera and Buyer on the date hereof and on the Closing
Date (assuming consummation of the transactions contemplated hereby, including,
in the case of Nextera, the sale of Nextera Class A Units and Nextera Class B
Units under the Employment Agreements (as defined in the Purchase Agreement)).
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The authorized capital stock of Newco will consist of such number of
shares of Newco Class A Stock and Newco Class B Stock as will be set forth on a
revised Schedule 3.2 to be provided at least ten (10) business days prior to the
Closing to the Shareholder Representative, which revised Schedule 3.2 will also
set forth the number of such shares that will be outstanding as of the Closing
assuming the consummation of the transactions contemplated hereby. Other than
options granted under the 1998 Equity Participation Plan of Newco (a true and
complete copy of which will be provided prior to the Closing to the Shareholder
Representative) or as set forth in the Stockholders Agreement or on a revised
Schedule 3.2 to be provided prior to the Closing to the Shareholder
Representative, there will be no outstanding options, warrants, rights,
commitments, preemptive rights or agreements of any kind for the issuance or
sale of, or outstanding securities convertible into, any additional equity of
any class of Newco. As of the Closing, none of Newco's capital stock will have
been issued in violation of any federal or state law. Except as provided in the
Stockholders Agreement, there will be no voting trusts, voting agreements,
proxies or other agreements, instruments or undertakings with respect to the
voting of the capital stock of Newco to which Newco or, to the knowledge of
Newco, any of the Members are or will be a party or by which their property is
or will be bound.
3.3. Authority of Nextera. Nextera has full authority, power and
capacity to enter into this Agreement and each agreement, document and
instrument to be executed and delivered by Nextera pursuant to this Agreement
and to carry out the transactions contemplated hereby and thereby. This
Agreement and each agreement, document and instrument executed and delivered by
Nextera pursuant to this Agreement constitutes a valid and binding obligation of
Nextera, enforceable in accordance with their respective terms (assuming the due
authorization, execution and delivery by the other parties thereto), subject to
the effect of any applicable bankruptcy, reorganization, insolvency, moratorium
or similar laws affecting creditors' rights generally and subject to the effect
of general principles of equity, including, without limitation, the possible
unavailability of specific performance or injunctive relief, regardless of
whether considered in a proceeding in equity or at law. No other limited
liability company proceedings on the part of Nextera are necessary to authorize
this Agreement and the transactions contemplated hereby. The execution, delivery
and performance by Nextera of this Agreement and each such agreement, document
and instrument:
(i) does not and will not violate any provision of any laws
of the United States or any state or other jurisdiction applicable to
Nextera, or require Nextera to obtain any approval, consent or waiver
from, or make any filing with, any person or entity (governmental or
otherwise) other than any such approval, consent or waiver of or
filing with respect to which the failure to so obtain will not have a
material adverse effect or result in a change in the condition
(financial or other), business, results of operations, prospects,
assets, Liabilities (as hereinafter defined) or operations of Nextera
and its Subsidiaries (as defined in the Purchase Agreement) taken as a
whole or on the ability of Nextera to consummate the transactions
contemplated hereby, or any event or condition which would, with the
passage of time, have such effect; and
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(ii) does not and will not result in (a) a breach of,
constitute a default under, accelerate any obligation under, or give
rise to a right of termination of, any indenture or loan or credit
agreement or any other agreement, contract, instrument, mortgage, lien,
lease, permit, authorization, order, writ, judgment, injunction,
decree, determination or arbitration award to which Nextera is a party
or by which the property of Nextera is bound or affected, or (b) the
creation or imposition of any mortgage, pledge, lien, security interest
or other charge or encumbrance on any of the assets or on the equity of
Nextera, except, in the case of clause (a) for such breaches, defaults,
accelerations or terminations as would not, individually or in the
aggregate, have a material adverse effect or result in a change in the
condition (financial or other), business, results of operations,
prospects, assets, Liabilities or operations of Nextera and its
Subsidiaries (as defined in the Purchase Agreement) taken as a whole or
on the ability of Nextera to consummate the transactions contemplated
hereby, or any event or condition which would, with the passage of
time, have such effect.
3.4. Authority of Newco. Newco has full authority, power and capacity
to enter into this Agreement and each agreement, document and instrument to be
executed and delivered by Newco pursuant to this Agreement and to carry out the
transactions contemplated hereby and thereby. This Agreement and each agreement,
document and instrument executed and delivered by Newco pursuant to this
Agreement constitutes a valid and binding obligation of Newco, enforceable in
accordance with their respective terms (assuming the due authorization,
execution and delivery by the other parties thereto), subject to the effect of
any applicable bankruptcy, reorganization, insolvency, moratorium or similar
laws affecting creditors' rights generally and subject to the effect of general
principles of equity, including, without limitation, the possible unavailability
of specific performance or injunctive relief, regardless of whether considered
in a proceeding in equity or at law. Except as set forth on Schedule 3.4, no
other corporate proceedings on the part of Newco are necessary to authorize this
Agreement and the transactions contemplated hereby. The execution, delivery and
performance by Newco of this Agreement and each such agreement, document and
instrument:
(i) will not violate any provision of any laws of the United
States or any state or other jurisdiction applicable to Newco, or
require Newco to obtain any approval, consent or waiver from, or make
any filing with, any person or entity (governmental or otherwise),
other than any such approval, consent or waiver of or filing with
respect to which the failure to so obtain will not have a material
adverse effect or result in a change in the condition (financial or
other), business, results of operations, prospects, assets,
Liabilities or operations of Newco and its subsidiaries taken as a
whole or on the ability of Newco to consummate the transactions
contemplated hereby, or any event or condition which would, with the
passage of time, have such effect; and
(ii) will not result in (a) a breach of, constitute a
default under, accelerate any obligation under, or give rise to a
right of termination of, any indenture or loan or credit agreement or
any other agreement, contract, instrument, mortgage, lien, lease,
permit, authorization, order, writ, judgment, injunction, decree,
determination or
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arbitration award to which Newco is a party or by which the property
of Newco is bound or affected, or (b) the creation or imposition of
any mortgage, pledge, lien, security interest or other charge or
encumbrance on any of the assets or on the capital stock of Newco
except, in the case of clause (a) for such breaches, defaults,
accelerations or terminations as would not, individually or in the
aggregate, have a material adverse effect or result in a change in the
condition (financial or other), business, results of operations,
prospects, assets, Liabilities or operations of Newco and its
subsidiaries taken as a whole or on the ability of Newco to consummate
the transactions contemplated hereby, or any event or condition which
would, with the passage of time, have such effect.
3.5. Investor Representations. Newco will be acquiring the Shares for
its own account for investment only, and not with the view to, or for resale in
connection with, any distribution thereof. It will understand that the Shares to
be acquired will not be registered under the Securities Act by reason of a
specific exemption from the registration provisions of the Securities Act, the
availability of which depends upon, among other things, the bona fide nature of
Newco's investment intent.
3.6. Formation of Newco. Newco will be formed for the sole purpose of
engaging in the Incorporation Transaction, will have conducted no other business
since its formation and will have no Liabilities upon the Closing except as
provided herein and for expenses related to its formation.
ARTICLE IV.
COVENANTS.
4.1. Further Assurances. Upon the terms and subject to the conditions
contained herein, each Shareholder, Nextera and KE, agree, both before and after
the Closing, (a) to use all reasonable efforts to take, or cause to be taken,
all actions and to do, or cause to be done, all things necessary, proper or
advisable to consummate and make effective the transactions to be effected by it
pursuant to this Agreement, (b) to execute any documents, instruments or
conveyances of any kind which may be reasonably necessary or advisable to be
executed by it to carry out any of the transactions contemplated hereunder, and
(c) to cooperate with each other in connection with the foregoing. Without
limiting the foregoing, each Shareholder and Nextera agree to use their
respective commercially reasonable efforts (i) to obtain all necessary waivers,
consents and approvals from other parties to effectuate the exchange of shares
by such person described in Article I hereto; provided, however, that no party
shall be required to make any payments, commence litigation or agree to any
other modifications of the terms thereof in order to obtain any such waivers,
consents or approvals, (ii) to give all notices to, and make all registrations
and filings with third parties, including without limitation submissions of
information requested by governmental authorities, and (iii) to fulfill all
conditions to this Agreement.
4.2. Incorporation Transaction. KE agrees to effect the Incorporation
Transaction pursuant to Section 11 of the First Amendment on or before January
1, 1999,
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provided that in the event Nextera extends the Closing pursuant to Section 1.2,
KE agrees to effect the Incorporation Transaction by such extended date.
4.3. No Distribution of Nextera Class A Units to the U.S.
Shareholders. The U.S. Shareholders shall cause General Partner and Limited
Partner to retain the Nextera Class A Units issued to the Partnership other than
such Nextera Class A Units deposited pursuant to the U.S. Escrow Agreement, and,
except as provided below, to not distribute such Nextera Class A Units to the
U.S. Shareholders, provided that the Partnership shall distribute the Nextera
Class A Units to General Partner and Limited Partner other than such Nextera
Class A Units deposited pursuant to the U.S. Escrow Agreement. General Partner
and Limited Partner may distribute the Nextera Class A Units to the U.S.
Shareholders or their Permitted Assignees if Nextera or KE has breached their
respective obligations to effect the Incorporation Transaction on the schedule
set forth in Section 1.2.
4.4. Conversion of the Partnership. Prior to the Closing, the U.S.
Shareholders, General Partner and Limited Partner shall cause the Partnership to
be converted to a limited liability company, none of the membership interests of
which will be owned by General Partner or Limited Partner.
4.5. No Solicitation of Other Offers; No Sale of Shares. No U.S.
Shareholder will, directly or indirectly, solicit, encourage, assist, initiate
discussions or engage in negotiations with, provide any information concerning
the operations, properties or assets of the Partnership, General Partner or
Limited Partner, or entertain or enter into any agreement or transaction with,
any person, other than SC/NE, LLC or Nextera, relating to the possible
acquisition of the equity of the Partnership, General Partner or Limited Partner
or any of their assets. If such a proposal is received, such U.S. Shareholder
will promptly notify Nextera of the terms of such proposal and the identity of
the party making the proposal. No U.S. Shareholder shall sell, transfer or
assign his Shares without the prior written consent of Nextera; provided,
however, that any U.S. Shareholder may assign his right to receive the Newco
Class A Stock to a Permitted Assignee, provided (a) the Permitted Assignee
agrees in writing to be bound by the terms and provisions of this Agreement and
the Stockholders Agreement and (b) the U.S. Shareholder or Permitted Assignee
furnishes an opinion of counsel reasonably acceptable to Newco such that the
transfer does not violate federal or state securities laws. If the U.S.
Shareholder represents to Newco in writing that the transfer was made as a bona
fide gift without payment of consideration, no securities law opinion is
required. For purposes of this agreement, the term "Permitted Assignee" shall
mean (i) any transferee by will or pursuant to the laws of descent and
distribution to any member or members of a U.S. Shareholder's Family (as defined
below) or (ii) a domestic trust created for the sole benefit of a U.S.
Shareholder or such U.S. Shareholder's Family, provided that in any case where
the U.S. Shareholder is not the trustee with the exclusive right and power
during his life to cast the votes attributable to the Shares and Newco Class A
Stock, as applicable, the trustee of each such trust shall grant an irrevocable
proxy to the Shareholder Representative (or another individual or entity
reasonably acceptable to Nextera) to vote the Newco Class A Stock held by it on
all matters at all times prior to the initial public offering of Newco Class A
Stock. For purposes of this Agreement, the term "Family" shall mean a person's
spouse, lineal
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descendants, parents, siblings, and lineal descendants of siblings (including
any such relationship by legal adoption).
4.6. Notification of Certain Matters. From the date hereof through the
Closing, the Shareholders and Nextera, shall give prompt notice to the other of
(a) the occurrence, or failure to occur, of any event which occurrence or
failure would be likely to cause any representation or warranty contained in
this Agreement or in any exhibit or schedule hereto to be untrue or inaccurate
in any respect and (b) any failure of such party, or any of its respective
affiliates or representatives, to comply with or satisfy any covenant, condition
or agreement to be complied with or satisfied by it under this Agreement or any
exhibit or schedule hereto; provided, however, that such disclosure shall not be
deemed to cure any breach of a representation, warranty, covenant or agreement
or to satisfy any condition.
4.7. Boards of Directors and Officers. At the Closing, the directors
of General Partner and Limited Partner shall all resign. At the Closing, all the
officers of General Partner and Limited Partner shall likewise resign.
4.8. Obligations of Newco. Nextera and KE agree to cause Newco to
perform all actions required to be performed by Newco under this Agreement.
4.9. Tax Matters.
(a) The U.S. Shareholders shall be responsible for all Liabilities for
Taxes with respect to all taxable periods of the Partnership ending on or prior
to the Closing Date and, to the extent provided in Section 4.9(b) hereof, all
taxable periods that include, and end after, the Closing Date other than, in
each case, Taxes which have been taken into account in the Working Capital
Adjustment (as defined in Section 2.5 of the Purchase Agreement).
(b) For federal income tax purposes, the U.S. Shareholders and Nextera
agree that the taxable period for which General Partner and Limited Partner are
"S" corporations will end as of the close of business on the day immediately
preceding the Closing Date and that the taxable periods for which General
Partner and Limited Partner are "C" corporations will begin as of the beginning
of business on the Closing Date. For all other Tax purposes, the U.S.
Shareholders will cause General Partner and Limited Partner, to the extent
permitted by applicable law, to close the taxable periods of General Partner and
Limited Partner on the day immediately preceding the Closing Date, and on the
Closing Date, respectively. In any case where applicable law does not permit
General Partner and Limited Partner to close its taxable period on the day
immediately preceding the Closing Date, or on the Closing Date, as the case may
be, then Taxes, if any, attributable to the taxable periods of General Partner
and Limited Partner beginning on or before and ending after the Closing Date
shall be allocated (A) to the U.S. Shareholders for the period up to and
including the Closing Date and (B) to Newco for the period subsequent to the
Closing Date. For purposes of this Section 4.9(b), Taxes for the period up to
and including the Closing Date and for the period subsequent to the Closing Date
shall be determined on the basis of an interim closing of the books as of the
Closing Date or, to the extent not susceptible to such allocation, by
apportionment on the basis of elapsed days.
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(c) Newco shall be responsible for all Liabilities for Taxes of
General Partner and Limited Partner with respect to all taxable periods of
General Partner and Limited Partner beginning on and after the Closing Date and,
to the extent provided in Section 4.9(b) hereof, all taxable periods that
include, and end after, the Closing Date.
(d) (i) The U.S. Shareholders shall prepare or cause to be prepared,
and shall file or cause to be filed, all Tax Returns required to be filed by or
on behalf of General Partner and Limited Partner which relate to taxable periods
(or portions thereof) ending on or prior to the Closing Date ("Pre-Closing Date
Tax Returns") and shall cause to be paid any Taxes shown to be due thereon
(other than Taxes which have been taken into account in the Working Capital
Adjustment) except as otherwise provided herein. Newco shall be responsible for
preparing and filing or causing to be prepared and filed all Tax Returns
required to be filed by or on behalf of General Partner and Limited Partner and
any of their operations and/or assets on and after the Closing Date and shall
pay or cause to be paid any Taxes shown to be due thereon.
(ii) With respect to any Tax Return required to be filed by Newco
for a taxable period of General Partner or Limited Partner beginning before and
ending after the Closing Date, Newco shall provide the Shareholder
Representative with copies of such Tax Return, along with a calculation setting
forth the amount of Tax shown on such Tax Return for which Newco believes the
U.S. Shareholders are responsible, at least thirty (30) Business Days prior to
the due date for filing of such Tax Return. The Shareholder Representative shall
have the right to review such Tax Return and calculation prior to the filing of
such Tax Return. The Shareholder Representative and Newco agree to consult and
resolve in good faith any issues arising as a result of the review of such Tax
Return and calculation and to mutually consent to the filing of such Tax Return
as promptly as possible. In the event the parties are unable to resolve any
dispute, the parties shall jointly request an independent accounting firm to
resolve any issue in dispute as promptly as possible. The fees and expenses of
such accounting firm to resolve any issue in dispute as promptly as possible.
The fees and expenses of such accounting firm shall be paid one-half by the U.S.
Shareholders and one-half by Newco. Not later than the later of (i) five (5)
days before the due date for payment of Taxes with respect to such Tax Return or
(ii) in the event of a dispute, five (5) days after written notice to the U.S.
Shareholders of the resolution thereof, the U.S. Shareholders shall pay to Newco
an amount equal to the Taxes allocable to the U.S. Shareholders.
(e) Newco shall promptly notify the U.S. Shareholders in writing upon
receipt by Newco, General Partner, Limited Partner or their affiliates of notice
of any pending or threatened Tax audits of or assessments against General
Partner or Limited Partner for any taxable period ending on, prior to or
including the Closing Date. Other than any claim, audit or other proceeding
concerning the validity or the status of the "S" corporation elections of
General Partner or Limited Partner, the Shareholder Representative shall have
the right to represent General Partner's and Limited Partner's interests in any
Tax audit or administrative or court proceeding with respect to any taxable
period ending on, prior to or including the Closing Date, to employ counsel of
their choice at their expense and to agree to a settlement or compromise of any
such audit or proceeding. The parties agree that they will cooperate fully with
each other and
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their respective counsel in the defense against or compromise of any claim in
any audit or proceeding contemplated herein.
(f) The parties hereto agree to furnish or cause to be furnished to
each other, at their own expense, such information, access to-books and records,
and assistance, including making employees available during regular business
hours on a mutually convenient basis, as may reasonably be necessary for the
preparation and filing of any Tax Return contemplated by this Section 4.9.
(g) Newco agrees to assign and promptly remit (and to cause General
Partner and Limited Partner to assign and promptly remit) to the U.S.
Shareholders all refunds (including interest thereon) of any Taxes received by
Newco, General Partner, Limited Partner or their affiliates for taxable periods
ending on, prior to or including the Closing Date. Newco agrees that, upon the
request of the U.S. Shareholders, Newco shall file, or cause General Partner and
Limited Partner to file, a claim for refund of any such Tax.
(h) The U.S. Shareholders and the Buyer agree to treat any indemnity
payment made pursuant to this Agreement as an adjustment to the consideration
for the Shares for all federal, state, local and foreign income Tax purposes.
(i) Notwithstanding anything to the contrary in this Agreement, the
representations, warranties and obligations of the parties set forth in this
Section 4.9 shall survive until the expiration of the applicable statute of
limitations.
ARTICLE V.
CONDITIONS TO OBLIGATIONS OF THE PARTIES.
The obligations of the parties to consummate the transactions provided
for hereby are subject, in the discretion of such party, to the satisfaction, on
or prior to the Closing, of each of the following conditions, any of which may
be waived by such party:
5.1. Conditions to Obligations of the U.S. .s and Nextera. The
performance of the obligations of the U.S. Shareholders, on the one hand, and
Nextera, on the other, hereunder is subject, at the election of the Shareholders
or Nextera, to the following condition precedent to Closing: No proceedings
shall have been initiated or threatened by any governmental department,
commission, board, bureau, agency or instrumentality, and no proceeding, not
frivolous on its face, has been initiated by any third party seeking to enjoin
or otherwise restrain the consummation of the transactions contemplated hereby.
In addition, the performance of the obligations of the U.S. Shareholders is
subject, at the election of the U.S. Shareholders, to the condition that the
transactions described in the second paragraph of Section 1.1(a) occur
contemporaneously with the Closing.
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ARTICLE VI.
INDEMNIFICATION
6.1. Indemnification by the U.S. Shareholders. Each U.S. Shareholder
agrees to indemnify and hold harmless Nextera and Newco and their respective
subsidiaries, affiliates, successors and assigns and persons serving as
officers, directors, partners, managers, shareholders, members, employees and
agents thereof (other than the Shareholders, except to the extent of Liabilities
incurred in their capacities as an officer, director or employee of Nextera,
Newco or its subsidiaries after the Closing) (collectively, the "Nextera
Indemnified Parties") harmless from and against any damages, Liabilities,
losses, Tax, fines, penalties, costs, and expenses (including, without
limitation, reasonable fees of counsel) of any kind or nature whatsoever
(whether or not arising out of third-party claims and including all amounts paid
in investigation, defense or settlement of the foregoing) which may be sustained
or suffered by any of them arising, attributable to, out of or based upon any of
the following matters:
(a) the commission of common law fraud by such U.S. Shareholder
in connection with the transactions contemplated by this Agreement;
(b) any failure by such U.S. Shareholder to convey title to the
Shares free and clear of any encumbrances;
(c) any Liability of the Partnership, General Partner or Limited
Partner arising prior to the Closing other than the Assumed Liabilities (as
defined in the Purchase Agreement);
(d) any Liability of the Partnership, General Partner, Limited
Partner for Taxes arising from their respective activities, assets and all
events and transactions on or prior to the Closing and any breach of the
representations and warranties set forth in Section 2.6 hereof and any covenant
with respect to Taxes; and
(e) any other breach (whether or not deliberate or willful) of
any representation, warranty or covenant of the U.S. Shareholders under this
Agreement or in any schedule delivered pursuant hereto, or by reason of any
claim, action or proceeding asserted or instituted growing out of any matter or
thing constituting a breach of such representations, warranties or covenants.
For purposes of this Agreement, the term "Liability" shall mean
any direct or indirect liability, indebtedness, obligation, commitment, expense,
claim, guaranty or endorsement of or by any person of any type, whether accrued,
absolute, contingent, matured, unmatured or other.
6.2. Satisfaction of Claims Against U.S. Shareholders.
(a) In order to satisfy the indemnification obligations of the
U.S.
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Shareholders hereunder, a Nextera Indemnified Party, acting through Nextera,
shall proceed first directly against the Escrow Deposit as further set forth and
defined in the U.S. Escrow Agreement and then may proceed directly against the
U.S. Shareholders subject to the limitations set forth herein.
(b) To the extent indemnification claims exceed the Escrow
Deposit, the U.S. Shareholders may, at their option, elect to satisfy any
indemnification claims under this Agreement by delivering Nextera Class A Units
or shares of Newco Class A Stock. To the extent that Nextera Class A Units or
shares of Newco Class A Stock are used to satisfy indemnification obligations
under this Agreement, such units or shares shall be valued in accordance with
the terms of the U.S. Escrow Agreement. No statement of value in the Purchase
Agreement shall affect such valuation under the U.S. Escrow Agreement.
(c) No claims for indemnification shall be made under this
Agreement against any U.S. Shareholder, and no indemnification shall be payable
to any Nextera Indemnified Party, with respect to any representation, warranty,
or covenant relating to Taxes after expiration of all applicable statutes of
limitation with respect to the Tax that is the subject of the indemnification
claim taking into account any extensions thereof with respect to collection of
such Tax.
(d) With respect to claims relating to representations or
warranties with respect to, or covenants of, the Partnership, General Partner or
Limited Partner (and not relating to a U.S. Shareholder in his or her individual
capacity), the amount payable by a U.S. Shareholder to all Nextera Indemnified
Parties for claims for indemnification hereunder shall in no event exceed such
U.S. Shareholder's Percentage of the total amount to be paid by all Nextera
Indemnified Parties for claims for indemnification hereunder.
(e) With respect to claims relating to representations or
warranties with respect to, or covenants of, an individual U.S. Shareholder
relating to such U.S. Shareholder in his or her individual capacity, the U.S.
Shareholder who makes the representation, warranty or covenant from which the
claim arose shall be severally liable for indemnification in respect of such a
claim and the other U.S. Shareholders shall not be jointly liable therefor.
6.3. Indemnification by the Canadian Shareholders. Each Canadian
Shareholder agrees to indemnify and hold harmless the Nextera Indemnified
Parties from and against any damages, Liabilities, losses, Tax, fines,
penalties, costs, and expenses (including, without limitation, reasonable fees
of counsel) of any kind or nature whatsoever (whether or not arising out of
third-party claims and including all amounts paid in investigation, defense or
settlement of the foregoing) which may be sustained or suffered by any of them
arising, attributable to, out of or based upon any of the following matters:
(a) the commission of common law fraud by such Canadian
Shareholder in connection with the transactions contemplated by this Agreement;
and
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(b) any other breach (whether or not deliberate or willful) of
any representation, warranty or covenant of such Canadian Shareholder under this
Agreement or in any schedule delivered pursuant hereto, or by reason of any
claim, action or proceeding asserted or instituted growing out of any matter or
thing constituting a breach of such representations, warranties or covenants.
6.4. Satisfaction of Claims Against Canadian Shareholders.
(a) In order to satisfy the indemnification obligations of the
Canadian Shareholders hereunder, a Nextera Indemnified Party shall proceed first
directly against the Escrow Deposit as further set forth and defined in that
certain Escrow Agreement (the "Canadian Escrow Agreement") dated as of the date
hereof by and among Nextera, Sibson Acquisition Co., the Canadian Shareholders
and Chase Manhattan Trust Company and then may proceed directly against the
Canadian Shareholders subject to the limitations set forth herein.
(b) To the extent indemnification claims exceed the Escrow
Deposit, the Canadian Shareholders may, at their option, elect to satisfy any
indemnification claims under this Agreement by delivering Exchangeable Shares,
Nextera Class A Units or shares of Newco Class A Stock. To the extent that
Exchangeable Shares, Nextera Class A Units or shares of Newco Class A Stock are
used to satisfy indemnification obligations under this Agreement, such units or
shares shall be valued in accordance with the terms of the Canadian Escrow
Agreement. No statement of value in the Canadian Purchase Agreement shall affect
such valuation under the Canadian Escrow Agreement.
(c) With respect to claims relating to representations or
warranties with respect to, or covenants of, an individual Canadian Shareholder
relating to such Canadian Shareholder in his or her individual capacity, the
Canadian Shareholder who makes the representation, warranty or covenant from
which the claim arose shall be severally liable for indemnification in respect
of such a claim and the other Canadian Shareholders shall not be jointly liable
therefor.
6.5. Indemnification by Nextera and Newco. Nextera agrees, and Newco
will agree, to indemnify and hold harmless the Shareholders and their respective
affiliates, successors and assigns and persons serving as employees and agents
thereof harmless from and against any damages, Liabilities, losses, Tax, fines,
penalties, costs, and expenses (including, without limitation, reasonable fees
of counsel) of any kind or nature whatsoever (whether or not arising out of
third-party claims and including all amounts paid in investigation, defense or
settlement of the foregoing) which may be sustained or suffered by any of them
arising, attributable to, out of or based upon any of the following matters:
(a) the commission of common law fraud by Nextera or Newco in
connection with the transactions contemplated by this Agreement;
(b) any failure of Newco to convey title to the Newco Class A
Stock free and clear of any encumbrances;
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(c) any Liability of General Partner or Limited Partner arising
after the Closing other than the Excluded Liabilities (as defined in the
Purchase Agreement); and
(d) any other breach (whether or not deliberate or willful) of
any representation, warranty or covenant of Nextera or Newco under this
Agreement or in any schedule delivered pursuant hereto, or by reason of any
claim, action or proceeding asserted or instituted growing out of any matter or
thing constituting a breach of such representations, warranties or covenants.
6.6. Indemnification by KE. KE agrees to indemnify and hold harmless
the Shareholders and their respective affiliates, successors and assigns and
persons serving as employees and agents thereof harmless from and against any
damages, Liabilities, losses, Tax, fines, penalties, costs, and expenses
(including, without limitation, reasonable fees of counsel) of any kind or
nature whatsoever (whether or not arising out of third-party claims and
including all amounts paid in investigation, defense or settlement of the
foregoing) which may be sustained or suffered by any of them arising,
attributable to, out of or based upon any of the following matters:
(a) the commission of common law fraud by KE in connection with
the transactions contemplated by this Agreement; and
(b) any other breach (whether or not deliberate or willful) of
any representation, warranty or covenant of KE under this Agreement or in any
schedule delivered pursuant hereto, or by reason of any claim, action or
proceeding asserted or instituted growing out of any matter or thing
constituting a breach of such representations, warranties or covenants.
6.7. Notice; Defense of Claims. An indemnified party shall make claims
for indemnification hereunder by giving written notice thereof to the
indemnifying party promptly on discovery and in any event within the period in
which indemnification claims can be made hereunder. If indemnification is sought
for a claim or Liability asserted by a third party, the indemnified party shall
also give written notice thereof to the indemnifying party promptly after it
receives notice of the claim or Liability being asserted, but the failure to do
so shall not relieve the indemnifying party from any Liability except to the
extent that it is prejudiced by the failure or delay in giving such notice. Such
notice shall summarize the basis for the claim for indemnification and any claim
or Liability being asserted by a third party. Within 20 days after receiving
such notice the indemnifying party shall give written notice to the indemnified
party stating whether it disputes the claim for indemnification and whether it
will defend against any third party claim or Liability at its own cost and
expense. If the indemnifying party fails to give notice that it disputes an
indemnification claim within 20 days after receipt of notice thereof, it shall
be deemed to have accepted and agreed to the claim, which shall become
immediately due and payable. The indemnifying party shall be entitled to direct
the defense against a third party claim or Liability with counsel selected by it
(subject to the consent of the indemnified party, which consent shall not be
unreasonably withheld) as long as the indemnifying party is conducting a good
faith and diligent defense and to compromise or settle it, with the consent of
the indemnified party which consent shall not be unreasonably withheld. The
indemnified party shall at all times have the right to fully participate at its
own expense in the defense of a third party
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claim or Liability, directly or through counsel; provided, however, that if the
named parties to the action or proceeding include both the indemnifying party
and the indemnified party and the indemnified party is advised that
representation of both parties by the same counsel would be inappropriate under
applicable standards of professional conduct, the indemnified party may engage
separate counsel at the expense of the indemnifying party. If no such notice of
intent to dispute and defend a third party claim or Liability is given by the
indemnifying party, or if such good faith and diligent defense is not being or
ceases to be conducted by the indemnifying party, the indemnified party shall
have the right, at the expense of the indemnifying party, to undertake the
defense of such claim or Liability (with counsel selected by the indemnified
party), and to compromise or settle it, with consent of the indemnifying party,
which consent shall not be unreasonably withheld. If the third party claim or
Liability is one that by its nature cannot be defended solely by the
indemnifying party, then the indemnified party shall make available such
information and assistance as the indemnifying party may reasonably request and
shall cooperate with the indemnifying party in such defense, at the expense of
the indemnifying party.
ARTICLE VII.
TERMINATION.
7.1 Termination. At any time prior to the Closing, this Agreement may
be terminated by mutual written consent of all of the parties to this Agreement,
provided that the Shareholder Representative may consent on behalf of the
Shareholders. All obligations of the parties hereunder shall cease upon any
termination pursuant to Section 7.1, provided, however, that the provisions of
Article VII, Section 8.3 and Section 8.11 hereof shall survive any termination
of this Agreement. No termination shall relieve any party of any liability for
breach of this Agreement prior to such termination.
ARTICLE VIII.
MISCELLANEOUS.
8.1. Canadian Shareholders. Notwithstanding anything to the contrary
contained herein, in the event that "Closing" under the Canadian Purchase
Agreement has not occurred prior to the Closing hereunder, the obligations
and/or representations of the Canadian Shareholders and the other parties hereto
with respect to Sections 1.5, 6.3 and 6.4 and the representations and warranties
of the Canadian Shareholders in Article II shall be deemed null and void and the
Canadian Shareholders shall be deemed to not be parties to this Agreement. The
terms and provisions of this Agreement shall otherwise survive.
8.2. Survival of Representations, Etc. Each of the representations,
warranties, agreements, covenants and obligations herein are material, shall be
deemed to have been relied upon by the other party and shall survive the Closing
regardless of any investigation and shall not merge in the performance of any
obligation by either party hereto.
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8.3. Fees and Expenses. Except as otherwise specified in this
Agreement, each party hereto shall pay its own legal, accounting, out-of-pocket
and other expenses incident to this Agreement and to any action taken by such
party in preparation for carrying this Agreement into effect. In the event that
Nextera extends the Closing beyond January 1, 1999 pursuant to Section 1.2,
Nextera shall reimburse the U.S. Shareholders for all costs and expenses
reasonably incurred by them and General Partner and Limited Partner as a result
of such extension up to a maximum aggregate reimbursement of $100,000 per annum.
Notwithstanding the foregoing, in the event Nextera, Newco or KE breaches any
material provision of this Agreement, including, without limitation, the
obligation to effect the Incorporation Transaction on the schedule set forth in
Section 1.2, and the U.S. Shareholders bring an action as a result of such
breach which is successful in whole or in any substantive part, the U.S.
Shareholders shall be entitled to receive from Nextera reimbursement for
reasonable attorneys fees in connection with the enforcement of this Agreement.
8.4. Governing Law. This Agreement shall be construed under and
governed by the internal laws of the State of New York without regard to its
conflict of laws provisions.
8.5. Notices. Any notice, request, demand or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been given if delivered or sent by facsimile transmission, upon receipt, or if
sent by registered or certified mail, upon the sooner of the date on which
receipt is acknowledged or the expiration of three days after deposit in United
States post office facilities properly addressed with postage prepaid. All
notices to a party will be sent to the addresses set forth below or to such
other address or person as such party may designate by notice to each other
party hereunder:
TO NEXTERA OR NEWCO: Nextera Enterprises, L.L.C.
Xxx Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
Fax: (000) 000-0000
With a copy to: Xxxxxx & Xxxxxxx
000 "X" Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
With an additional copy to: Maron & Sandler
000 Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
TO KE: Knowledge Enterprises, Inc.
000 Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
With a copy to: Xxxxxx & Xxxxxxx
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000 "X" Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
With an additional copy to: Maron & Sandler
000 Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
TO THE U.S. SHAREHOLDERS: To the address set forth in the
Purchase Agreement.
With a copy to: Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
TO THE CANADIAN SHAREHOLDERS:
To the address set
forth in the Canadian
Purchase Agreement.
With a copy to: Xxxxxxx & Partners
Ernst & Young Tower
Toronto-Dominion Centre
000 Xxx Xxxxxx
Xxxxx 0000, Xxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxxxx X. Xxxxxxxxxx, Esq.
Fax: (000) 000-0000
With an additional copy to: Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
Any notice given hereunder may be given on behalf of any party by his
counsel or other authorized representatives.
8.6. Entire Agreement. This Agreement and schedules and exhibits
hereto constitute the entire agreement of the parties with respect to its
subject matter, and supersede all previous written or oral negotiations,
commitments and writings. No promises, representations, understandings,
warranties and agreements have been made by any of the parties hereto except as
referred to herein or in such schedules and exhibits; and all inducements to the
making of this Agreement relied upon by either party hereto have been expressed
herein or in such schedules or exhibits.
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8.7. Assignability; Binding Effect. This Agreement shall only be
assignable by (a) Nextera or KE to an entity controlling, controlled by or under
common control with Nextera or KE upon written notice to Shareholder
Representative or (b) a U.S. Shareholder to a Permitted Assignee; provided,
however, that Nextera, KE or such U.S. Shareholder, as applicable, shall remain
liable for all obligations hereunder to the extent such obligations are not
satisfied by the transferee. Except as provided in the preceding sentence, this
Agreement may not be assigned by the Shareholders without the prior written
consent of Nextera. This Agreement shall be binding upon and enforceable by, and
shall inure to the benefit of, the parties hereto and their respective
successors and permitted assigns. Assignment of this Agreement by any party
shall not relieve such party from its obligations hereunder.
8.8. Captions and Gender. The captions in this Agreement are for
convenience only and shall not affect the construction or interpretation of any
term or provision hereof. The use in this Agreement of the masculine pronoun in
reference to a party hereto shall be deemed to include the feminine or neuter,
as the context may require.
8.9. Execution in Counterparts. For the convenience of the parties and
to facilitate execution, this Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document.
8.10. Amendments. This Agreement may not be amended or modified, nor
may compliance with any condition or covenant set forth herein be waived, except
by a writing duly and validly executed by each party hereto, or in the case of a
waiver, the party waiving compliance, provided, however, that no amendment or
modification of this agreement or waiver of compliance with any condition or
covenant that has been duly and validly executed in writing by the Shareholder
Representative shall require the consent of, or execution thereof by, any
Shareholder and shall be valid and binding without such consent or execution.
8.11. Specific Performance. The parties agree that it would be
difficult to measure damages which might result from a breach of this Agreement
by any 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 any Shareholder, on the one hand, or by Nextera or KE, on the
other, Nextera or the Shareholders, as applicable, 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 to Nextera, the Shareholders, as applicable.
8.12. Termination of Shareholders Agreements. Each GP Shareholder by
signing below hereby agrees to terminate that certain Shareholders Agreement
dated as of October 31, 1993, as amended, among General Partner and the
shareholders identified therein, effective upon the Closing. Each LP Shareholder
by signing below hereby agrees to terminate that certain Shareholders Agreement
dated as of January 1, 1998, as amended, among Limited Partner and the
shareholders identified therein, effective upon the Closing.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their duly authorized representatives, as of the date first
written above.
NEXTERA:
NEXTERA ENTERPRISES, L.L.C., a Delaware
limited liability company
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
NEWCO:
NEXTERA ENTERPRISES, Inc.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
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U.S. SHAREHOLDERS:
By: /s/ XXXX XXXXXXX
---------------------------------------
Name: Xxxx Xxxxxxx
State of Residence: Illinois
By: /s/ XXXX XXXXXXXXXXX
---------------------------------------
Name: Xxxx Xxxxxxxxxxx
State of Residence: Illinois
By: /s/ XXXXXXXXX XXXXXX
---------------------------------------
Name: Xxxxxxxxx (Xxx) Xxxxxx
State of Residence: California
By: /s/ XXXXX XXXXXX
---------------------------------------
Name: Xxxxx Xxxxxx
State of Residence: California
By: /s/ XXXXXXX XXXXXXXX
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
State of Residence: Pennsylvania
By: /s/ XXXXXX XXXXX
---------------------------------------
Name: Xxxxxx Xxxxx
State of Residence: Michigan
By: /s/ XXXXX XXXXXX
---------------------------------------
Name: Xxxxx Xxxxxx
State of Residence: Missouri
By: /s/ XXXXXXX XXXXX
---------------------------------------
Name: Xxxxxxx Xxxxx
State of Residence: New Jersey
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By: /s/ XXXXXX XXXXX
---------------------------------------
Name: Xxxxxx Xxxxx
State of Residence: New Jersey
By: /s/ XXXXXX XXXXX
---------------------------------------
Name: Xxxxxx Xxxxx
State of Residence: New Hampshire
By: /s/ XXXXXXXXX XXXX
---------------------------------------
Name: Xxxxxxxxx Xxxx
State of Residence: Missouri
By: /s/ XXXXX XXXXXXXXX
---------------------------------------
Name: Xxxxx Xxxxxxxxx
State of Residence: Illinois
By: /s/ XXXXX XXXXXXXXX
---------------------------------------
Name: Xxxxx Xxxxxxxxx
State of Residence: North Carolina
By: /s/ XXXXXX XXXXXXXX
---------------------------------------
Name: Xxxxxx Xxxxxxxx
State of Residence: New York
By: /s/ XXXXX XxXXXXX
---------------------------------------
Name: Xxxxx XxXxxxx
State of Residence: North Carolina
By: /s/ XXXXXXX X'XXXXXXX
---------------------------------------
Name: Xxxxxxx X'Xxxxxxx
State of Residence: New Jersey
By: /s/ XXXXXXX XXXXX
---------------------------------------
Name: Xxxxxxx Xxxxx
State of Residence: New York
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By: /s/ XXXX XXXX
---------------------------------------
Name: Xxxx Xxxx
State of Residence: New Jersey
By: /s/ XXXXX XXXXX
---------------------------------------
Name: Xxxxx Xxxxx
State of Residence: California
By: /s/ XXXX XXXXXXX
---------------------------------------
Name: Xxxx Xxxxxxx
State of Residence: New York
By: /s/ XXXXXXX XXXXXX
---------------------------------------
Name: Xxxxxxx Xxxxxx
State of Residence: California
By: /s/ XXXXXXX XXXXXXXX
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
State of Residence: Illinois
By: /s/ XXXXXX XXXXXX
---------------------------------------
Name: Xxxxxx (Chip) Xxxxxx
State of Residence: North Carolina
By: /s/ XXXXXXX XXXXXX
---------------------------------------
Name: Xxxxxxx Xxxxxx
State of Residence: Connecticut
By: /s/ XXXXX XXXXXXXX XXXXX
---------------------------------------
Name: Xxxxx Xxxxxxxx Xxxxx
State of Residence: Illinois
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CANADIAN SHAREHOLDERS:
By: /s/ XXXX XXXXXXX
---------------------------------------
Name: Xxxx Xxxxxxx
Place of Residence: Toronto, Canada
By: /s/ XXXXX XXXXXXXXX
---------------------------------------
Name: Xxxxx Xxxxxxxxx
Xxxxx xx Xxxxxxxxx: Xxxxxxx, Xxxxxx
By: /s/ XXXXXXX XXXXX
---------------------------------------
Name: Xxxxxxx Xxxxx
Place of Residence: Toronto, Canada
By: /s/ XXXXXXX XxXXXXXXX
---------------------------------------
Name: Xxxxxxx XxXxxxxxx
Place of Residence: Toronto, Canada
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CONSENTED AND AGREED TO SOLELY
FOR PURPOSES OF SECTIONS 1.7, 4.1, 4.2,
4.8, 6.6, 6.7 AND 8.11:
KE
KNOWLEDGE ENTERPRISES, INC., a Delaware corporation
By: /s/ XXXXX XXXXXXXX
--------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary
AGREED TO FOR PURPOSES OF SECTION 8.12
SIBSON & COMPANY, INC. SC2, INC.
By: /s/ XXXXXXX X. XXXXXX By: /s/ XXXXXXX X. XXXXXX
-------------------------- --------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Vice President Title: Vice President
AGREED TO FOR PURPOSES OF ARTICLE I
AND SECTION 8.10:
SIBSON & COMPANY, L.P.
By: Sibson & Company, Inc., its General Partner
By: /s/ XXXXXXX X. XXXXXX
--------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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By: /s/ XXXX XXXXXXXXXX
-----------------------------------
Name: Xxxx Xxxxxxxxxx
Place of Residence: London, England
32
