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EXHIBIT 10.12
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is dated September 26, 1997,
between Bright Star Information Technology Group, Inc. (the "Company") and
Xxxxxx-Xxxxxxxx Capital Advisors, LLC, 0000 Xxxxx Xxxx Xxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 7054 ("BGCA").
RECITALS:
WHEREAS, the Company is seeking investment capital and desires to
develop its business.
WHEREAS, BGCA has agreed to assist the Company in capital formation
and the strategic corporate development of the Company's business.
NOW, THEREFORE, the Company and BGCA agree as follows:
1. ENGAGEMENT OF BGCA
The Company hereby engages BGCA to act as a consultant to the Company
regarding capital formation and corporate development matters. BGCA will perform
the following services on a non-exclusive basis for the Company:
- Identification of appropriate and qualified investors;
- Identification of potential acquisitions.
2. FEES
The Company agrees to pay BGCA fees for services rendered pursuant to
this Agreement as follows:
a. A fee of $60,000. Such fee shall be paid in a lump sum at the
closing of the Company's initial public offering of securities to the
act pursuant to a registration statement deemed effective by the
Securities Exchange Commission under the Securities Exchange Act of
1934 ("IPO").
b. The Company agrees to issue to BGCA an option to purchase shares
of the Company's common stock at such a price and in such a number
that, upon the closing of the IPO and the exercise of the option, the
option shall have a value of $100,000. For example, in the event that
the Company's common stock is priced at $10.00 per share at the
closing of the IPO, BGCA shall be entitled to exercise the option to
purchase 20,000 shares of the Company's common stock at $5.00 per
share. The option granted to BGCA by the Company pursuant to this
Agreement shall be exercisable for five years from the date of issue.
The Company agrees that, if BGCA exercises its option on or before the
date of the IPO, to include the shares issued to BGCA pursuant to the
option in the registration for the IPO. The option
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agreed to herein shall be issued in the form of an Option Agreement,
satisfactory in form to the Company, to be executed after the date
hereof.
c. With regard to any potential business acquisition presented to the
Company by BGCA, the Company agrees (i) to take no action to in any
way circumvent or interfere with BGCA's agreement with the potential
acquisition target; (ii) to pay fees to BGCA in an amount consistent
with the formula set forth below, and (iii) that BGCA does not
represent the Company exclusively and has the right to present such
target acquisition to others.
A. In the event that the Company closes on the acquisition of
a company presented to the Company BGCA, the Company agrees to
pay BGCA a fee equivalent to the following:
- 5% of the value of the consideration paid by the
Company up to the first $1,000,000; plus
- 4% of the second $1,000,000 of the consideration
paid by the Company; plus
- 3% of the third $1,000,000 of the consideration
paid by the Company; plus
- 1% of the consideration paid by the Company above
$4,000,000.
d. The Company agrees to pay BGCA a cash fee equivalent to 10% of the
gross investment proceeds received from any investor identified by
BGCA.
3. DIRECT EXPENSES
The Company agrees to reimburse BGCA for all direct expenses authorized by the
Company in writing incurred during the term of this Agreement. BGCA shall
submit expenses from time to time to the Company for approval after which the
Company shall pay such invoices within ten days of receipt.
4. TERM
The term of this Agreement shall be one year from the date hereof and shall be
renewable by the written consent of the parties for another one year term.
5. CONFIDENTIALITY
The parties hereto understand that the terms of this Agreement shall be
confidential, and neither party shall disclose the terms hereof, whether during
or after the term hereof, except pursuant to court order or for the parties'
respective internal accounting and tax purposes.
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6. MISCELLANEOUS
a. Relationship of the parties. The parties agree that
nothing in this Agreement shall be deemed to create, require
or otherwise result in, as the case may be, (i) the
relationship of partnership between the parties; (ii) an
employer-employee relationship; (iii) an agency relationship
between the parties; (iv) BGCA being deemed to be an
"Investment Advisor," an "Underwriter" or a "Broker/Dealer"
pursuant to the terms of any state or federal securities laws
or regulations; or (v) BGCA being deemed to be an "Affiliate"
of the Company pursuant to any state or federal securities
laws or regulations. It is understood by the parties that
BGCA is an independent contractor, responsible for all of
BGCA's own local, state and federal taxes.
b. Indemnification. With regard to the services to be
performed by BGCA pursuant to this Agreement, BGCA shall not
be liable to the Company, to anyone who may claim any right
due to any relationship with the Company, or to any third
party, for (i) any acts or omissions in the performance of any
of the services on the part of BGCA, except when said acts or
omissions of BGCA are due to BGCA's willful misconduct or
gross negligence, or (ii) any act or omission on the part of
any officer, director, shareholder, attorney, employee or
agent of the Company. The Company hereby agrees, on behalf of
itself, its successors, assigns, officers, directors,
shareholders, attorneys, and legal representatives
(collectively the "Indemnitors"), to indemnify and hold
harmless BGCA, its successors, agents, employees, attorneys,
legal representatives and assigns from and against any and all
liability, loss or damage any such parties may suffer as a
result of any and all claims, demands, costs or judgments
against any of them arising from any acts or omissions
occurring during the term on the part of any of the
Indemnitors or on the part of BGCA, except when said acts or
omissions of BGCA are due to BGCA's willful misconduct or
gross negligence.
c. This Agreement shall be binding upon BGCA and the Company
and shall inure to the benefit of both parties and their
respective successors and permitted assigns, including any
corporation with which or into which the Company or its
successor may be merged or which may succeed to its assets or
business. Although the obligations of BGCA are personal and
may be performed only by BGCA, BGCA may assign this Agreement
to any corporation which is wholly owned by BGCA which
corporation shall succeed to all of BGCA's rights and
obligations hereunder. Except for the foregoing, neither
party shall assign its rights or obligations hereunder to any
other entity without the prior written consent of the other,
which consent shall not be unreasonably withheld.
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7. COMPLETE AGREEMENT
This Agreement encompasses the complete understanding of the parties with
regard to the subject matter hereof, and supersedes all prior or
contemporaneous understandings and agreements. No amendment or modifications
hereof shall be effective absent the written consent of both parties.
8. GOVERNING LAW
THE INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT SHALL BE
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF TEXAS.
SIGNED THIS 29th day of September, 1997.
XXXXXX-XXXXXXXX CAPITAL ADVISORS, LLC THE COMPANY
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxxx X. Xxxx
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Title: President Title: President/CEO
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FIRST AMENDMENT
TO
CONSULTING AGREEMENT
THIS FIRST AMENDMENT TO CONSULTING AGREEMENT (this "Amendment") is
made and entered into this 15th day of December, 1997, by and between
BRIGHTSTAR INFORMATION TECHNOLOGY GROUP, INC., a Delaware corporation (the
"Company"), and XXXXXX-XXXXXXXX CAPITAL ADVISORS, LLC ("BGCA").
INTRODUCTION
BGCA and the Company previously entered into that certain Consulting
Agreement dated September 26, 1997 (the "Consulting Agreement"), whereby BGCA
agreed to provide consulting services regarding corporate development matters
to the Company. BGCA and the Company desire to amend the Consulting Agreement
pursuant to the terms and conditions contained herein. For and in
consideration of the premises and the agreements herein contained and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, BGCA and the Company hereby agree as follows:
1. The first two sentences of Section 2(b) are hereby deleted in
their entirety and the following shall be added in their place:
"The Company agrees to issue to BGCA an option to purchase the number
of shares of common stock of the Company, $.001 par value ("Common
Stock"), equal to $100,000 divided by the difference between the per
share initial public offering price of Common Stock sold to the public
in the Corporation's initial public offering ("IPO") and the exercise
price of $6.00 per share. For example, in the event that the
Company's Common Stock is priced at $10.00 per share at the closing of
the IPO, BGCA shall be entitled to exercise the option to purchase
25,000 shares of the Company's Common Stock at $6.00 per share."
2. Unless otherwise defined herein, all capitalized terms used in
this Amendment shall have the same meanings as set forth in the Consulting
Agreement.
3. Except as modified and amended in this Amendment, the
Consulting Agreement shall remain in full force and effect.
4. This Amendment may be executed in multiple counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, this Amendment has been entered into and
is effective as of the date set forth above.
COMPANY:
BrightStar Information Technology, Inc.
By: /s/ XXXXXXXX X. XXXX, PRESIDENT
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Xxxxxxxx X. Xxxx, President
BGCA
Xxxxxx-GruenertCapital Advisors, LLC:
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
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Title:
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