Securities Purchase Agreement - KPMG Consulting Inc., KPMG Consulting LLC and KPMG LLP
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement"), is made
and entered into as of October 4, 2000, by and among KPMG Consulting, Inc., a
Delaware corporation ("KCI"), KPMG Consulting, LLC, a Delaware limited liability
company ("LLC," and together with KCI, "Consulting"), and KPMG LLP, a Delaware
limited liability partnership ("LLP"). Certain capitalized terms used herein
shall have the meanings set forth in Article IV.
WITNESSETH:
WHEREAS, LLP and Consulting have previously made separate
investments in Thrupoint, Inc. ("Thrupoint," f/k/a Total Network Solutions,
Inc.) and Intraspect, Inc. ("Intraspect"); and
WHEREAS, Consulting currently owns 283,688 shares of Series D
preferred stock of Thrupoint and 208,349 shares of Series E preferred stock of
Intraspect; and
WHEREAS, Consulting desires to sell all of the shares of
preferred stock it holds of both Thrupoint and Instraspect to LLP, and LLP
desires to purchase such shares, for an aggregate consideration of $4,521,000,
which reflects the fair market value of such shares.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties and agreements contained herein, and for other good
and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE
1.1 Purchase and Sale. Upon the terms and subject to the
conditions set forth in this Agreement, Consulting hereby agrees to sell, and
LLP hereby agrees to purchase, (i) the 283,688 shares of Series D preferred
stock of Thrupoint held by Consulting and (ii) the 208,349 shares of Series E
preferred stock of Intraspect held by Consulting (the "Transferred Shares") for
an aggregate purchase price equal to $4,521,000 in cash (the "Purchase Price").
1.2 The Closing. The Closing shall be deemed to be
simultaneous with the execution of this Agreement by each of the respective
parties hereto, and LLP shall promptly pay to Consulting the Purchase Price by
wire transfer of immediately available funds to an account designated by
Consulting.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF LLP
LLP hereby represents and warrants to Consulting, as of the
date of this Agreement, as follows:
2.1 Authorization, Validity and Enforceability. The execution
and delivery and performance by LLP of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
all necessary partnership action on the part of LLP. This Agreement has been
duly executed and delivered by LLP and (assuming the due authorization,
execution and delivery by Consulting) constitutes the legal, valid and binding
obligation of LLP, enforceable against LLP in accordance with its terms, except
to the extent such enforceability may be limited by the effect of any applicable
bankruptcy, reorganization, insolvency, moratorium or similar laws affecting
creditors' rights generally and general principles of equity or public policy
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
2.2 Consents and Approvals. Except where the failure to
obtain, make or give such Consent would not, individually or in the aggregate,
have a material adverse effect on, or a material adverse change in, the ability
of LLP to execute and deliver this Agreement, perform its obligations hereunder
or consummate the transactions contemplated hereby, no Consent of any
Governmental Entity or other Person is necessary to be obtained, made or given
by LLP or any of its Subsidiaries in connection with the execution and delivery
by LLP of this Agreement, the performance by LLP of its obligations hereunder,
and the consummation of the transactions contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF Consulting
Consulting hereby represents and warrants to the LLP, as of
the date of this Agreement, as follows:
3.1 Authorization, Validity and Enforceability. The execution
and delivery and performance by Consulting of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of Consulting. This
Agreement has been duly executed and delivered by Consulting and (assuming the
due authorization, execution and delivery by LLP) constitutes the legal, valid
and binding obligation of Consulting, enforceable against Consulting in
accordance with its terms, except to the extent such enforceability may be
limited by the effect of any applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting creditors' rights generally and general
principles of equity or public policy (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
3.2 Consents and Approvals. Except where the failure to
obtain, make or give such Consent would not, individually or in the aggregate,
have a material adverse effect on, or a
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material adverse change in, the ability of Consulting to execute and deliver
this Agreement, perform its obligations hereunder or consummate the transactions
contemplated hereby, no Consent of any Governmental Entity or other Person is
necessary to be obtained, made or given by Consulting or any of its Subsidiaries
in connection with the execution and delivery by Consulting of this Agreement,
the performance by Consulting of its obligations hereunder, and the consummation
of the transactions contemplated hereby.
3.3 Ownership. The shares of preferred stock of Thrupoint and
Intraspect that are the subject of this Agreement are owned by Consulting. Upon
the consummation of the sale of the Transferred Shares to LLP, LLP will acquire
good and marketable title to each of the Transferred Shares, free and clear of
any Lien or Encumbrance, and will be entitled to all the rights and benefits of
a holder of such securities.
ARTICLE IV
DEFINITIONS
4.1 Definitions. The following terms when used in this
Agreement shall have the following respective meanings:
"Agreement" has the meaning set forth in the first paragraph
of this Agreement.
"Consent" means any consent, approval, authorization, license
or order of, registration or filing with, or notice to, any Governmental Entity
or any other Person.
"Governmental Entity" means any federal, state, local or
foreign government, political subdivision, legislature, court, agency,
department, bureau, commission or other governmental or regulatory authority,
body or instrumentality, including any industry or other non-governmental
self-regulatory organizations.
"Lien or Encumbrance" means any lien, pledge, mortgage,
security interest, claim, lease, charge, option, right, easement, servitude,
transfer limit, restriction, title defect or other encumbrance.
"LLP" has the meaning set forth in the first paragraph of this
Agreement.
"Person" means any individual, corporation, partnership,
limited liability company, firm, joint venture, association, joint stock
company, trust, unincorporated organization, Governmental Entity or other entity
or organization.
"Transferred Shares" has the meaning set forth in Section 1.1.
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ARTICLE V
MISCELLANEOUS
5.1 Notices. Any notices and other communications required to
be given pursuant to this Agreement shall be in writing and shall be effective
upon delivery by hand (against written receipt) or upon receipt if sent by
certified or registered mail (postage prepaid and return receipt requested) or
by a nationally recognized overnight courier service (appropriately marked for
overnight delivery) or upon transmission if sent by telex or facsimile (with
request for immediate confirmation of receipt in a manner customary for
communications of such respective type and with physical delivery of the
communication being made by one of the other means specified in this Section 6.1
as promptly as practicable thereafter). Notices are to be addressed as follows:
If to LLP to:
KPMG LLP
Three Chestnut Ridge Road
Montvale, New Jersey 07645
Attention: Joseph E. Heintz
Telecopy No.: (201) 307-7227
If to Consulting to:
KPMG Consulting
1676 International Drive
McLean, Virginia 22102
Attention: David W. Black, Esq.
Telecopy No.: (703) 747-3847
or to such other respective addresses as any of the parties hereto shall
designate to the others by like notice, provided that notice of a change of
address shall be effective only upon receipt thereof.
5.2 Entire Agreement; Waivers and Amendments. This Agreement
contains the entire agreement and understanding of the parties with respect to
the subject matter hereof and supersedes all prior written or oral agreements,
representations and understandings with respect thereto. This Agreement may only
be amended or modified, and the terms hereof may only be waived, by a writing
signed by all parties hereto or, in the case of a waiver, by the party entitled
to the benefit of the terms being waived.
5.3 Assignment; Binding Effect. This Agreement may not be
assigned or delegated, in whole or in part, by any party hereto without the
prior written consent of the other party hereto.
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5.4 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware, without
giving effect to the principles of conflicts of law thereof.
5.5 Captions. The Article and Section Headings in this
Agreement are inserted for convenience of reference only, and shall not affect
the interpretation of this Agreement.
5.6 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
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