Exhibit 10.22
AMENDMENT TO AGREEMENT AND PLAN OF ORGANIZATION
This AMENDMENT (the "Amendment") to the Agreement and Plan of
Organization, dated as of June 1, 1999 (as in effect on the date hereof, but
without giving effect to this Amendment, the "Agreement"), by and among Luminant
Worldwide Corporation, a Delaware corporation (f/k/a Clarant, Inc. and referred
to herein as "Luminant"), Interactive8 Acquisition Corp., a New York corporation
("Newco"), Interactive8, Inc., a New York corporation (the "Company") and the
stockholders named therein (the "Stockholders"), is made and entered into as of
September 2, 1999.
RECITALS
A. Luminant, Newco, the Company and Stockholders have determined that
it is in their best interests to revise the Agreement.
B. Luminant, Newco, the Company and Stockholders desire to amend the
Agreement on the terms and subject to the conditions set forth herein.
C. All of the Other Founding Companies have simultaneously agreed to
amend the Other Agreements.
NOW, THEREFORE, in consideration of the agreements set forth herein,
and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereby agree as follows:
1. Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Agreement. The term "Shares" means shares of Luminant
Common Stock. The term "Initial Holdings" means the number of Shares issued to
the Stockholders at the Closing. All defined terms in the Agreement using the
word "Clarant" are hereby revised to use the word "Luminant."
2. The Agreement is amended to provide that the references in the Agreement to
"this Agreement" or "the Agreement" (including indirect references such as
"hereunder," "hereby," "herein" and "hereof") shall be deemed to be references
to the Agreement as amended hereby. To the extent that any provisions of the
Agreement as in effect prior to the effectiveness of this Amendment conflict
with or contradict the provisions of this Amendment, the provisions of this
Amendment shall control and shall supersede such inconsistent provisions.
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3. Section 3.1 is hereby deleted in its entirety and replaced with the
following:
3.1 MERGER CONSIDERATION; TENDER. At the Closing, Luminant shall
deliver to the Stockholders of the Company the consideration allocable
pro rata to each such holder (the "Merger Consideration") as follows:
(a) upon the surrender by each of the Company's
Stockholders of his or her certificates for shares of Company Stock
each of the Accredited Stockholders shall receive (A) the number of
shares of Clarant Common Stock allocable to such Accredited Stockholder
pursuant to EXHIBIT 2.1(a) and (B) the amount of cash allocable to such
Accredited Stockholder pursuant to EXHIBIT 2.1(a); and
(b) The cash portion of the Merger Consideration allocable
to each Accredited Stockholder of the Company shall be paid by wire
transfer to the accounts of each such holder pursuant to the wire
transfer instructions given on EXHIBIT 16(f)(iii).
4. Article 7 is hereby amended by adding the following new Section 7.15:
7.15 EXERCISE OF OPTIONS BEFORE IPO. The Stockholders agree to use
their commercially reasonable best efforts to cause holders of Options
and Convertible Securities, if any, that are currently exercisable or
that will become exercisable prior to Closing to refrain from
exercising such Options and/or Convertible Securities prior to the
Closing.
5. Article 10 is hereby amended by adding the following new Sections 10.7
and 10.8:
10.7 FORM S-8 FILING. Within thirty (30) days after the Closing,
Luminant agrees to file a registration statement on Form S-8 pursuant
to which eligible Persons holding options to purchase Shares will be
permitted to sell Shares to the public. Persons holding the "Vested
Options" in Luminant identified on EXHIBIT 2.1(a) shall be prohibited
from exercising the Vested Options for a period of thirty (30) days
following the Closing.
10.8 OPTIONS AND CONVERTIBLE SECURITIES. At the Closing, all
Options that are vested as of the Closing Date (as shown on EXHIBIT
5.3) shall be treated as set forth on SCHEDULE 10.8; provided, however,
that fifty percent (50%), or such other number as the parties mutually
agree upon, of such Options shall be terminated in consideration for
cash consideration, the amount of which will be determined in
accordance with SCHEDULE 10.8, and all Options that are not vested as
of the Closing Date shall be terminated no later than the Effective
Time.
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6. Section 12.1(b) is hereby amended by deleting "December 31, 1999" on the
sixth line and inserting "October 15, 1999."
7. The third sentence of Section 17.1 is hereby deleted in its entirety and
replaced with the following:
In addition, if Luminant is advised in writing in good faith by any
managing underwriter of an underwritten offering of the securities
being offered pursuant to any registration statement under this Section
17.1 that the number of Shares offered by any Persons (including
Luminant) is greater than the number of Shares that can be offered
without adversely affecting the offering, Luminant may reduce the
number of Shares to be offered by first reducing the number of Shares
to be offered by Persons other than Luminant, the Stockholders and the
members and stockholders of the Other Founding Companies, and second by
reducing pro rata the number of Shares to be offered by Luminant, the
Stockholders and the members and stockholders of the Other Founding
Companies; provided however that in no event shall the Shares to be
offered by Luminant be reduced to less than fifty percent (50%) of the
offering; further provided that if the number of Shares to be offered
by Luminant is already less than or equal to fifty percent (50%) of the
offering, then the number of Shares to be offered by Luminant shall not
be reduced. Subject to the foregoing, the reduction in the Shares
offered by Luminant and the Stockholders and the stockholders and
members of the Other Founding Companies shall be effected on a pro rata
basis; provided that to the extent that a member or stockholder of a
Founding Company has sold (in that or a previous offering), or is being
provided the right to sell, fifteen percent (15%) or more of his or her
Initial Holdings pursuant to any registration under this Section 17.1,
such holder's rights to be included in the offering shall be
subordinate to the rights of Luminant and the other members and
stockholders of the Founding Companies.
8. Article 17 is hereby amended by adding the following new Section 17.6:
17.6 SALE IN OVER-ALLOTMENT. The managing underwriter of the IPO
has requested an over-allotment option relating to the IPO (the "Green
Shoe"). Luminant will provide the opportunity to each of the
Stockholders to sell up to fifteen percent (15%) of the Stockholder's
Initial Holdings pursuant to the Green Shoe; provided however that
Luminant may reduce pro rata the number of Shares to be sold by the
Stockholder, the other Stockholder and the other members and
stockholders of the Other Founding Companies pursuant to the Green Shoe
if: (a) Luminant determines that the inclusion of all or any portion of
the Stockholder's Shares or the aggregate number of Shares proposed to
be sold pursuant to the Green Shoe by all members and stockholders of
the
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Founding Companies could adversely affect the "tax free" status of
the transactions contemplated in the Agreement and the Luminant Plan of
Organization; or (b) in the aggregate, stockholders and members of the
respective Founding Companies have subscribed to sell more Shares
pursuant to the Green Shoe than the total number of Shares that may be
sold pursuant to the Green Shoe. Any Stockholder desiring to sell
Shares pursuant to the Green Shoe must execute the underwriting
agreement relating to the IPO and otherwise comply with customary
procedures for selling shareholders. Luminant agrees to pay the
underwriting commissions and discounts payable in respect of Shares
sold pursuant to the Green Shoe by the Stockholders.
9. Article 18 is hereby amended by deleting the definition of "Fully-Diluted."
10. EXHIBIT 2.1(a) of the Agreement is deleted in its entirety and replaced with
the EXHIBIT 2.1(a) attached hereto.
11. EXHIBIT 3.3 is deleted in its entirety and replaced with the EXHIBIT 3.3
attached hereto.
12. Except as herein provided, the Agreement shall remain unchanged and in full
force and effect.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers or representatives, as of
the date first above written.
LUMINANT WORLDWIDE CORPORATION
By: _________________________
Name:
Title:
INTERACTIVE8 ACQUISITION CORP.
By: _________________________
Name:
Title:
INTERACTIVE8, INC.
By: _________________________
Name:
Title:
STOCKHOLDERS:
_____________________________
Xxxxxxx X. Xxxx
_____________________________
Xxxxxx Xxxxxxx Xxxxxx
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