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EXHIBIT 10.18
AGREEMENT REGARDING REPURCHASE OF STOCK
This Agreement is made effective as of February 25, 1998, by and among
BrightStar Information Technology Group, Inc., a Delaware corporation
("BrightStar"), Xxxxxx X. Xxxxxx, Xxxxxxxx X. Xxxx, Xxxxxx X. Xxxxxxx, Xxxxxx X.
Xxxxxx, Xxxx X. Xxxxx, Xxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, and Xxxxxxx Xxxxxxx
(the "Shareholders");
WHEREAS, pursuant to that certain Agreement and Plan of Exchange, dated
as of December 15, 1997 (the "Exchange Agreement"), entered into by and among
BrightStar, BIT Group Services, Inc., a Delaware corporation ("BITG"), BIT
Investors, LLC, a Texas limited liability company ("BITI"), and the holders of
the outstanding capital stock of BITG, all of the Shareholders except Xxxxxxx X.
Xxxxxx will acquire shares (the "Management Shares") of common stock of
BrightStar, par value $.001 per share (the "BrightStar Common Stock"); and
WHEREAS, pursuant to Section 3.1 of the Exchange Agreement, Xxxxxxxx X.
Xxxx, Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx have previously
agreed to execute and deliver a stock repurchase agreement granting BrightStar
the option to repurchase their respective Management Shares;
WHEREAS, pursuant to Section 1.2 of the Exchange Agreement, Xxxxxx X.
Xxxxxx, Xxxx X. Xxxxx and Xxxxxxx Xxxxxxx are entitled to receive the Exchange
Consideration, which is an amount of shares of BrightStar Common Stock which may
be up to the following number of shares: Xxxxxx X. Xxxxxx--42,900 shares, Xxxx
X. Xxxxx--20,000 shares, Tarrant Xxxxxxx--33,900 shares;
WHEREAS, upon the successful completion of BrightStar's initial public
offering of BrightStar Common Stock (the "IPO") and the dissolution of BITI, it
is anticipated that the following Shareholders (the "Class B Holders") will
receive the indicated number of shares of BrightStar Common Stock upon the
liquidation of the Class B Units of BITI, based on the current estimated IPO
price of the BrightStar Common Stock, although the actual number of such shares
(the "Class B Shares") may vary substantially:
NAME NO. OF SHARES
---- -------------
Xxxxxx X. Xxxxxx 15,909
Xxxxxxxx X. Xxxx 15,909
Xxxxxx X. Xxxxxxx 15,909
Xxxxxx X. Xxxxxx 15,909
Xxxx X. Xxxxx 12,727
Xxxxxxx X. Xxxxxx 3,182
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NOW THEREFORE, in consideration of the mutual promises, covenants and
obligations contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. Share Repurchase Agreements. The Shareholders hereby agree to
execute and deliver a stock repurchase agreement on or before the Closing Date
(defined below) in the form attached hereto as Exhibit A (the "Stock Repurchase
Agreements") granting BrightStar the option to repurchase, under certain terms
and conditions provided in the Stock Repurchase Agreements, the number of shares
of BrightStar Common Stock set forth in Section 2 hereof, and shares of
Restricted Common Stock, if any received by the Shareholders pursuant to the
Restricted Stock Exchange as set forth in Section 2.1 of the Exchange Agreement.
2. Shares Subject to Repurchase.
2.1 Management Shares. All shares of BrightStar Common Stock included
in the Exchange Consideration received by Xxxxxx X. Xxxxxx, Xxxx X. Xxxxx and
Xxxxxxx Xxxxxxx shall be subject to repurchase by BrightStar pursuant to the
terms of the Stock Repurchase Agreement.
2.2 Class B Shares. All of the Class B Shares, if any, received by the
Class B Holders shall be subject to repurchase by BrightStar pursuant to the
terms of the Stock Repurchase Agreements.
3. Closing Date. For purposes hereof, the Closing Date shall mean the
date that BrightStar receives funds in consideration for the sale of its
securities in its initial public offering.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
on the date first hereinabove written.
BRIGHTSTAR INFORMATION
TECHNOLOGY GROUP, INC.
By: /S/XXXXXXXX X. XXXX
--------------------------------
/S/XXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
/S/XXXXXXXX X. XXXX
-----------------------------------
Xxxxxxxx X. Xxxx
/S/XXXXXX X. XXXXXXX
-----------------------------------
Xxxxxx X. Xxxxxxx
/S/XXXXXX X. XXXXXX
-----------------------------------
Xxxxxx X. Xxxxxx
/S/XXXX X. XXXXX
-----------------------------------
Xxxx X. Xxxxx
/S/XXXXXXX X. XXXXXX
-----------------------------------
Xxxxxxx X. Xxxxxx
/S/XXXXXXX X. XXXXXX
-----------------------------------
Xxxxxxx X. Xxxxxx
/S/TARRANT XXXXXXX
-----------------------------------
Tarrant Xxxxxxx
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EXHIBIT A
STOCK REPURCHASE AGREEMENT
This Stock Repurchase Agreement (this "Agreement") dated as of
____________________, 1997 is entered into by and between BRIGHTSTAR INFORMATION
TECHNOLOGY GROUP, INC., a Delaware corporation (the "Company") and
_________________________ (the "Grantor").
W I T N E S S E T H:
WHEREAS, Grantor owns certain shares of common stock of the Company
(the "Common Stock");
WHEREAS, the Company desires that Grantor grant to the Company an
option to purchase certain shares of Common Stock on the terms and conditions
hereinafter set forth:
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants and obligations contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. SHARES SUBJECT TO PURCHASE OPTION. Grantor currently owns _________
shares of Common Stock (the "Shares"), all of which shall initially be subject
to the terms, provisions and conditions of the Purchase Option (as hereafter
defined). The term "IPO" means the first underwritten public offering of the
Company's common stock other than any offering pursuant to any registration
statement (i) relating to any capital stock of the Company or options, warrants
or other rights to acquire any such capital stock issued or to be issued
primarily to directors, officers or employees of the Company, or any of its
subsidiaries (ii) relating to any employee benefit plan or interest therein,
(iii) relating principally to any preferred stock or debt securities of the
Company, or (iv) filed pursuant to Rule 145 under the Securities Act of 1933, as
amended, or any successor or similar provisions.
2. PURCHASE OPTION.
a. The Shares shall be subject to the option (the "Purchase
Option") set forth in this Section 2. In the event that Grantor shall cease to
[serve as a director of the Company] [be engaged, either as a consultant or as
an employee, by the Company (including a parent or subsidiary of the Company)]
under the circumstances set forth in Section 2(b) of this Agreement (the
"Section 2(b) Event"), the Company shall have the right, at any time within 90
days after the date Grantor ceases to be so engaged (the "Option Period"), to
exercise the Purchase Option, which consists of the right to purchase from
Grantor at a purchase price of $.10 per share (as adjusted pursuant to Section 4
below) (the "Option Price"), up to but not exceeding the number of Shares
specified in Section 2(b) below, upon the terms hereinafter set forth.
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b. If any of the following items (i) or (ii) occurs:
i. Grantor [voluntarily ceases to serve as a director
of the Company] [repudiates or renounces that certain Employment
Agreement between the Company and Grantor (the "Employment Agreement")
or voluntarily ceases his engagement with the Company] (other than by
reason of death or disability) prior to the date which is 12 months
following the date of the successful completion of the IPO without the
prior written consent of the Company; or
ii. Grantor's [service as a director of the Company]
[engagement by the Company under the Employment Agreement] is
terminated by the Company at any time prior to the date which is 12
months following the date of the successful completion of the IPO, with
"Cause," (as defined below);
prior to the occurrence of any Termination Event (as defined in Section 9), then
the Company may exercise the Purchase Option at the Option Price as to the
number of Shares determined as follows:
(A) Prior to the IPO, the Company may exercise the Purchase
Option as to all of the Shares;
(B) Following the IPO, the Company may exercise the Purchase
Option as to a number of Shares equal to the total number of Shares
less an aggregate number of Shares equal to the product (rounded down
to the nearest whole Share) of (i) 1/12 times (ii) the aggregate number
of full calendar months following the IPO that Grantor has [served as a
director of the Company] [been engaged as an employee to the Company],
times (iii) the total number of Shares (_____________).
For the purposes of this Agreement, "Cause" means the conviction of Grantor of a
crime involving fraud against the Company or any of its affiliates or the theft
or embezzlement of assets of the Company or any of its affiliates.
The Company shall not have the right to exercise the Purchase Option in
the event Grantor's [service as a director of the Company] [employment by the
Company under the Employment Agreement] is terminated for death, disability,
without "Cause" or for any other reason except as provided in Section 2(b)
above.
c. The Purchase Option may be exercised by the Company by giving notice
to the Grantor in accordance with Section 13.1 hereof stating that the Company
has elected to acquire the Shares subject to the Purchase Option. Each sale and
purchase in accordance with the rights so exercised shall be thereafter
completed without avoidable delay by the transfer and assignment of such Shares
to the Company and payment of the Option Price. The Option Price shall be
payable, at the option of the Company, by cancellation of all or a portion of
any outstanding indebtedness of the Grantor to the Company or by payment in cash
(by check), or both.
d. Nothing in this Agreement shall affect in any manner whatsoever the
right or power of the Company, or a parent or subsidiary of the Company, to
terminate Grantors' [service as a director of the Company] [engagement with the
Company], for any reason, with or without cause as provided in the [Bylaws of
the Company] [applicable Employment Agreement].
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3. ASSIGNMENT. Neither the Company nor Grantor may assign this
Agreement or any of its respective rights and obligations hereunder.
4. ADJUSTMENTS. If, from time to time during the term of the Purchase
Option (i) there is any dividend of stock or other securities or liquidating
dividend of cash or property, stock split, reverse stock split, subdivision,
combination, recapitalization, reorganization, reclassification or other change
in the character or amount of any of the outstanding securities of the Company,
or (ii) there is any transaction involving the consolidation or merger of the
Company in which the Company is the surviving entity (collectively, (i) and (ii)
shall be referred to as a "Reorganization"), then, in such event, any and all
new, substituted or additional securities or other property to which Grantor is
entitled by reason of Grantor's ownership of the Shares shall be immediately
subject to the Purchase Option and be included in the term "Shares" for all
purposes of the Purchase Option with the same force and effect as the Shares
subject to the Purchase Option under the terms of Section 2 hereof. In the event
that the outstanding Common Stock is at any time increased or decreased solely
by reason of a Reorganization, appropriate adjustments to the Option Price shall
be made effective as of the date of such occurrence so that the total Option
Price upon exercise of the Purchase Option will be the same as it would have
been had the Company exercised the Purchase Option immediately prior to the
occurrence of such event.
5. LEGENDS. All certificates representing any of the Shares subject to
the provisions of this Agreement shall have endorsed thereon a legend
substantially as follows:
"ANY DISPOSITION, GRANT OR OTHER TRANSFER OF ANY
INTEREST IN THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS
SUBJECT TO RESTRICTIONS, AND THE SECURITIES REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO AN OPTION, CONTAINED IN A
CERTAIN AGREEMENT EXECUTED BY THE RECORD HOLDER HEREOF, THE
CORPORATION AND CERTAIN OTHER PARTIES, A COPY OF WHICH WILL BE
MAILED TO ANY HOLDER OF THIS CERTIFICATE WITHOUT CHARGE AFTER
RECEIPT BY THE CORPORATION OF A WRITTEN REQUEST THEREFOR."
Upon presentation to the Company or any authorized transfer agent of
certificates representing the Shares, the number of Shares represented thereby
which are no longer subject to the Purchase Option shall be exchanged for
certificates not bearing such legend, and all Shares, if any, which remain
subject to the Purchase Option, shall be represented by certificates endorsed
with the legend set forth above.
6. NO RESALE OR TRANSFER. Grantor shall not sell, assign or otherwise
transfer (otherwise than by operation of law) any of the Shares which are
subject to the Purchase Option or any interest therein, or grant or otherwise
allow to exist any lien, claim or other encumbrance on or with respect to any of
the Shares then subject to the Purchase Option.
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7. NO TRANSFER. The Company shall not be required (i) to transfer on
its books any of the Shares which shall have been sold or transferred in
violation of any of the provisions set forth in this Agreement or (ii) to treat
as owner of such Shares or to accord the right to vote as such owner or to pay
dividends to any transferee to whom such Shares shall have been so transferred.
8. RIGHTS AS A SHAREHOLDER. Subject to the provisions of Section 7
above, Grantor shall, during the term of this Agreement, exercise all rights and
privileges of a shareholder of the Company with respect to the Shares.
9. TERMINATION. This Agreement and the Purchase Option granted
hereunder shall terminate on the earlier to occur of any of the following events
(each a "Termination Event"):
a. the 91st calendar day immediately succeeding the date which
is 12 months following the date of the successful completion of the
IPO;
b. upon expiration of the Option Period;
c. the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent to
the entry of a decree or order for relief in respect of the Company in
an involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, or
the consent to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee
trustee, sequestrator or other similar official of the Company or of
any substantial part of its property, or the making of an assignment
for the benefit of creditors, or the admission in writing of inability
to pay debts generally as they become due, or the taking of corporate
action by the Company in furtherance of any such action; or
d. the sale of all or substantially all of the assets of the
Company.
10. FURTHER ASSURANCES. The parties agree to execute such further
instruments and to take such further actions as may reasonably be necessary to
carry out the purposes and intent of this Agreement.
11. FAILURE TO DELIVER SHARES. If Grantor becomes obligated to sell any
Shares to the Company under this Agreement and fails to deliver such Shares in
accordance with the terms of this Agreement, the Company may, at its option, in
addition to all other remedies it may have, send to the Grantor the purchase
price for such Shares as is herein specified. Thereupon, the Company upon
written notice to the Grantor, (a) shall cancel on its books the certificate or
certificates representing the Shares to be sold and (b) shall issue, in lieu
thereof, in the name of the Company a new certificate or certificates
representing such Shares, and thereupon all of the Grantor's rights in and to
such Shares shall terminate.
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12. SPECIFIC ENFORCEMENT. Grantor expressly agrees that the Company
will be irreparably damaged if this Agreement is not specifically enforced. Upon
a breach of the terms, covenants and/or conditions of this Agreement by Grantor,
the Company shall, in addition to all other remedies, be entitled to a temporary
or permanent injunction, without showing any actual damage, and/or a decree for
specific performance, in accordance with the provisions hereof.
13. MISCELLANEOUS.
a. Notice. For purposes of this Agreement, notices and all
other communications provided for herein shall be in writing and shall
be deemed to have been duly given when personally delivered or when
mailed by United States registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Company: BrightStar Information Technology Group, Inc.
00000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
If to Grantor, at the address identified on the signature page
hereof, or to such other address as either party may furnish to the
other in writing in accordance herewith, except that notices of changes
of address shall be effective only upon receipt.
b. Applicable Law. The substantive laws of the State of Texas,
excluding any law, rule or principle which might refer to the
substantive law of another jurisdiction, will govern the
interpretation, validity and effect of this Agreement without regard to
the place of execution or the place for performance thereof. This
Agreement is to be negotiated, executed and performed in Xxxxxx County,
Texas, and, as such, the Company and Grantor agree that personal
jurisdiction and venue shall be proper with the state or federal courts
situated in Xxxxxx County, Texas, to hear such disputes arising under
this Agreement.
c. No Waiver. No failure by either party hereto at any time to
give notice of any breach by the other party of, or to require
compliance with, any condition or provision of this Agreement shall be
deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time.
d. Severability. If a court of competent jurisdiction
determines that any provision of this Agreement, including any
appendices attached hereto, is invalid or unenforceable, then the
invalidity or unenforceability of that provision shall not affect the
validity or enforceability of any other provision of this Agreement,
and all other provisions shall remain in full force and effect.
Further, such provisions shall be reformed and construed to the extent
permitted by law so that it may be valid, legal and enforceable to the
maximum extent possible.
e. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all
of which together will constitute one and the same Agreement.
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f. Headings. The section headings have been inserted for
purposes of convenience and shall not be used for interpretive
purposes.
g. Successors. This Agreement shall inure to the benefit of
the permitted successors and assigns of the Company and be binding upon
Grantor and his or her heirs, executors, administrators and successors.
h. Construction. Each party to this Agreement has had the
opportunity to review this Agreement with legal counsel. This Agreement
shall not be construed or interpreted against any party on the basis
that such party drafted or authored a particular provision, parts of or
the entirety of this Agreement.
i. Entire Agreement. This Agreement and the agreements
referred to herein constitute the entire agreement of the parties with
regard to the subject matter hereof, and contains all the covenants,
promises, representations, warranties and agreements between the
parties with respect to the subject matter hereof. Each party to this
Agreement acknowledges that no representation, inducement, promise or
agreement, oral or written, with regard to the subject matter hereof,
has been made by either party, or by anyone acting on behalf of either
party, which is not embodied herein, and that no agreement, statement
or promise relating to the subject matter hereof which is not contained
in this Agreement or in such other agreements shall be valid or
binding.
j. Amendments. No amendment or modification to this Agreement
will be effective unless it is in writing and signed by the Company and
Grantor.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the day and year first above written.
COMPANY:
BRIGHTSTAR INFORMATION
TECHNOLOGY GROUP, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
SPOUSE OF GRANTOR (IF APPLICABLE) GRANTOR:
Name:
---------------------- Address:
--------------------------
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