Exhibit 10.26
AMENDMENT TO CONTRIBUTION AGREEMENT
This AMENDMENT (the "Amendment") to the Contribution Agreement, dated
as of June 7, 1999 (as in effect on the date hereof, but without giving effect
to this Amendment, the "Agreement"), by and between Luminant Worldwide
Corporation, a Delaware corporation (f/k/a Clarant Worldwide Corporation and
referred to herein as "Luminant"), and Young & Rubicam Inc., a Delaware
corporation (the "Contributor"), is made and entered into as of September 2,
1999.
RECITALS
A. Luminant and Contributor have determined that it is in their best
interests to revise the Agreement.
B. Luminant and Contributor desire to amend the Agreement on the terms
and subject to the conditions set forth herein.
C. All of the Other Founding Companies and their stockholders or
members have simultaneously executed and delivered amendments to each of their
respective 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 hereto 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
Contributor 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.
3. Article 3 is hereby amended by adding a new Section 3.4 and Section 3.5 to
read as follows:
3.4 SALE AND PURCHASE OF SHARES AT IPO. At the closing of the IPO,
Luminant agrees to sell to Contributor, and Contributor agrees to
purchase from Luminant, shares of Luminant Common Stock, at the IPO
price per share, with an aggregate value equal to fifteen million
dollars ($15,000,000). The Underwriters' discount for the transaction
described in this Section 3.4 shall not exceed four percent (4.0%) and
shall be paid by Luminant.
3.5 ISSUANCE OF NON-VOTING COMMON STOCK; EXCHANGE OF VOTING
COMMON STOCK FOR NON-VOTING COMMON STOCK.
(a) Solely to the extent that any issuance of shares of Luminant
Common Stock to Contributor in connection with the transactions
contemplated hereby, including but not limited to the payment of the
Merger Consideration or the Contingent Consideration, and the issuance
of shares pursuant to the exercise of the option described in Section
10.8(i), would cause Contributor's direct or indirect ownership of
Luminant Stock to exceed eighteen percent (18%) of the issued and
outstanding voting securities of Luminant, Luminant shall issue to
Contributor shares of non-voting common stock of Luminant (the
"Non-Voting Common Stock").
(b) Except for voting rights, the Non-Voting Common Stock shall
have the same rights, entitlements and preferences as any other class
of Luminant Common Stock.
(c) Luminant shall use commercially reasonable efforts to inform
the Contributor when Contributor's direct or indirect ownership of
Luminant Stock may exceed eighteen percent (18%) of the issued and
outstanding voting securities of Luminant.
(d) Luminant shall, upon Contributor's request, exchange on a
one-for-one basis any shares of Luminant Common Stock held by
Contributor for shares of Non-Voting Common Stock.
(e) The parties acknowledge and agree that the value of each share
of Non-VotingCommon Stock is equal to the value of each share of
Luminant Common Stock, and that any shares of Non-Voting Common Stock
issued to Contributor in lieu of shares of Luminant Common Stock
pursuant to Section 3.5(a), or in exchange for shares of Luminant
Common Stock pursuant to Section 3.5(d), shall be treated as shares of
Luminant Common Stock for all other purposes under this Agreement and
the transactions contemplated hereby.
2
4. Section 10.3(b) is hereby amended by deleting "ten (10)" on the third line
and inserting "eleven (11)."
5. Section 10.8(i) is amended to provide that Luminant shall grant to
Contributor, at the Closing, an option to purchase one million eight hundred
thousand (1,800,000) shares of Luminant common stock at an exercise price equal
to the IPO price per share of Luminant common stock. Further, EXHIBIT 10.8(i) is
hereby amended to reflect such increase in the shares of Luminant Common Stock
subject to the option.
6. Article 10 is hereby amended by adding the following new Section 10.10:
10.10 FORM S-8 FILING. Within thirty (30) days after the Closing,
Luminant shall 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 Addendum A and Addendum B to EXHIBIT
3.1 shall be prohibited from exercising the Vested Options for a period
of thirty (30) days following the Closing.
7. Section 12.1(b) is hereby amended by deleting "December 31, 1999" on the
fourth line and inserting "October 15, 1999."
8. The third sentence of Section 17.1(a) 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(a) 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 Contributor 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
Contributor 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 Contributor and the stockholders and
members of the Other Founding Companies shall be effected
3
on a pro rata basis; provided that to the extent that the Contributor
or 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 its, his or her Initial Holdings pursuant to
any registration under this Section 17.1(a), such holder's rights to
be included in the offering shall be subordinate to the rights of
Luminant, the Contributor and the members and stockholders of the
other Founding Companies.
9. 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 the Contributor to
sell up to fifteen percent (15%) of its Initial Holdings pursuant to
the Green Shoe; provided however that Luminant may reduce pro rata the
number of Shares to be sold by the Contributor 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 Contributor's Shares or the aggregate number of Shares
proposed to be sold pursuant to the Green Shoe by all members and
stockholders of the 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, the Contributor
and the 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. If
the Contributor desires to sell Shares pursuant to the Green Shoe, it
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
Contributor.
10. EXHIBIT 3.1 is deleted in its entirety and replaced with the EXHIBIT 3.1
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]
4
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:
YOUNG & RUBICAM INC.
By: _________________________
Name:
Title:
5
