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*EXHIBIT 4.4
OPTION AGREEMENT
THIS AGREEMENT made effective as of December 16, 1997 between
BRIGHTSTAR INFORMATION TECHNOLOGY GROUP, INC., a Delaware corporation, and any
of its successors in interest (the "Company"), and XXXXXX-XXXXXXXX CAPITAL
ADVISORS, LLC (the "Option Holder").
1. Grant of Option. Subject to the terms and conditions of this
Agreement, the Company hereby grants to the Option Holder effective December
16, 1997 (the "Grant Date") an option (the "Option") to purchase the number of
shares (the "Stock") of the common stock of the Company, $.001 par value
("Common Stock"), equal to $100,000 divided by the difference between (i) the
per share initial public offering price of Common Stock sold to the public in
the Company's initial public offering and (ii) the Option Price (defined
below). The Option shall be exercisable at a price of $6.00 per share (the
"Option Price"). This Agreement and the purchase of the shares of Stock
hereunder is not intended and should not be interpreted to qualify as an
Incentive Stock Option as that term is used in Section 422 of the Internal
Revenue Code of 1986, as it may be amended from time to time (the "Internal
Revenue Code").
2. Method for Exercising the Option. The Option may be exercised
in whole or in part only by delivery in person or through certified or
registered mail to the Company at its principal office in Houston, Texas
(attention: Corporate Secretary) of written notice specifying the Option that
is being exercised and the number of shares of Stock with respect to which the
Option is being exercised. The notice must be accompanied by payment of the
total Option Price, payable in cash or by certified or cashier's check to the
order of BrightStar Information Technology Group, Inc.
Upon such notice to the Corporate Secretary and payment of the
total Option Price, the exercise of the Option shall be deemed to be effective,
and a properly executed certificate or certificates representing the Stock so
purchased shall be issued by the Company and delivered to the Option Holder.
3. Adjustment of the Option.
(a) Adjustment by Stock Split, Stock Dividend, Etc. If
at any time the Company increases or decreases the number of its outstanding
shares of Common Stock, or changes in any way the rights and privileges of its
Common Stock, by means of the payment of a stock dividend or the making of any
other distribution on such shares payable in Common Stock, or though a stock
split or subdivision of shares of Common Stock, or a consolidation or
combination of shares of Common Stock, or through a reclassification or
recapitalization involving the Common Stock, the numbers, rights and privileges
of the shares of Stock included in the Option shall be increased, decreased or
changed in like manner as if such shares of Stock had been issued and
outstanding, fully paid and non-assessable at the time of such occurrence.
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(b) Dividends Payable in Stock of Another Corporation,
Etc. If at any time the Company pays or makes any dividend or other
distribution upon its Common Stock payable in securities or other property
(except money or Stock), a proportionate part of such securities or other
property shall be set aside and delivered to the Option Holder upon issuance of
the Stock purchased at the time of the exercise of the Option. The securities
and other property delivered to the Option Holder upon exercise of the Option
shall be in the same ratio to the total securities and property set aside for
the Option Holder as the number of shares of Stock with respect to which the
Option is then exercised is to the total shares of Common Stock subject to the
Option. Prior to the time that any such securities or other property are
delivered to the Option Holder in accordance with the foregoing, the Company
shall be the owner of such securities or other property and Option Holder shall
not have the right to vote the securities, receive any dividends payable on
such securities, or in any other respect be treated as the owner. If
securities or other property which have been set aside by the Company in
accordance with this Section 3 are not delivered to the Option Holder because
the Option is not exercised, then such securities or other property shall
remain the property of the Company and shall be dealt with by the Company as it
shall determine in its sole discretion.
(c) Other Changes in Stock. In the event there shall be
any change, other than as specified in the preceding subsections 3(a) and (b),
in the number or kind of outstanding shares of Common Stock or of any stock or
other securities into which the Common Stock shall be changed or for which it
shall have been exchanged, then and if the Board of Directors of the Company
shall in its discretion determine that such change equitably requires an
adjustment in the number or kind of shares subject to the Option, such
adjustments shall be made by the Board of Directors and shall be effective for
all purposes as of this Agreement.
(d) Apportionment of Option Price. Upon any occurrence
described in the preceding subsections 3(a), (b), and (c), the aggregate Option
Price for the shares of Stock then subject to the Option shall remain unchanged
and shall be apportioned ratably over the increased or decreased number or
changed kinds of securities or other properties subject to the Option.
4. Reorganization. In case of any consolidation of the Company
with or merger of the Company into another person or in case of any sale,
transfer or lease to another corporation of all or substantially all of the
assets of the Company, the Company or such successor or purchaser, as the case
may be, shall execute with the Option Holder an agreement that the Option
Holder shall have the right thereafter upon payment of the Option Price in
effect immediately prior to such action to purchase upon exercise of the Option
the kind and amount of shares and other securities and property that the holder
thereof would have owned or have been entitled to receive after the happening
of such consolidation, merger, sale, transfer or lease had the Option been
exercised immediately prior to such action; provided, however, that no
adjustment in respect of cash dividends, interest or other income on or from
such shares or other securities and property shall be made during the Option
Period or upon the exercise of the Option. Such agreement shall provide for
appropriate adjustment to the number of shares of Stock purchasable upon the
exercise of the Option and/or the Option Price in order to preserve the
relative rights and interests of the Option Holder, such adjustment to be made
by the good faith determination of the Board of Directors of the Company. The
provisions of this subsection 4 shall apply similarly to successive
consolidations, mergers, sales, transfers or leases.
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5. Expiration and Termination of the Option. The Option shall
expire at 5:00 p.m. Houston, Texas, time on December 16, 2002 (the period from
the date of this Agreement to the expiration date is defined as the "Option
Period").
6. Transferability; Restriction on Transfer. Neither the Option
nor the Stock, nor any interest or participation in either, may be in any
manner transferred or disposed of, in whole or in part, except in compliance
with applicable United States federal and state securities laws. The Option
Holder agrees upon request of the underwriters managing any underwritten public
offering of the Company's securities, not to offer to sell, assign, pledge,
issue, distribute, sell, contract to sell, grant any option or enter into any
contract for the sale of, or otherwise voluntarily transfer or dispose of, or
announce any offer, sale, grant of any option to purchase or other transfer or
disposition of, any shares of Stock without the prior written consent of such
underwriters, for such period of time following the effective date of the
registration statement relating to each such underwritten public offering as
may be requested by the underwriters; provided however, that (i) such request
shall not be for a period extending longer than that applicable to management
shareholders of the Company; and (ii) any restrictions recommended by the
underwriters are no more restrictive than those imposed on the management
shareholders of the Company.
7. Compliance with Securities Laws. Upon the acquisition of any
shares pursuant to the exercise of the Option herein granted, Option Holder
will enter into such written representations, warranties and agreements as the
Company may reasonably request in order to comply with applicable securities
laws or with this Agreement.
8. Legends on Certificates. The Certificates representing the
shares of Common Stock purchased by exercise of an Option will be stamped or
otherwise imprinted with legends in such form as the Company or its counsel may
require with respect to any applicable restrictions on sale or transfer and the
stock transfer records of the Company will reflect stock-transfer instructions
with respect to such shares.
9. Miscellaneous.
(a) Notices. Any notice required or permitted to be
given under this Agreement shall be in writing and shall be given by first
class registered or certified mail, postage prepaid, or by personal delivery to
the appropriate party, addressed:
(i) If to the Company:
BrightStar Information Technology Group, Inc.
00000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Corporate Secretary
(ii) If to the Option Holder, to the Option Holder
at his address on file with the Company or at such other address as may have
been furnished to the Company by the Option Holder.
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Any such notice shall be deemed to have been given as of the
fourth day after deposit in the United States Postal Service, postage prepaid,
properly addressed as set forth above, in the case of mailed notice, or as of
the date delivered in the case of personal delivery.
(b) Amendment. The Board of Directors may make any
adjustment in the Option Price, the number of shares of Stock subject to, or
the terms of the Option by amendment or by substitution of an outstanding
Option. Such amendment or substitution may result in terms and conditions
(including Option Price, the number of shares of Stock covered or Option
Period) that differ from the terms and conditions of this Option. The Board of
Directors may not, however, adversely affect the rights of the Option Holder
without the consent of the Option Holder. If such action is effective by
amendment, the effective date of such amendment will be the date of the
original grant of this Option. Except as provided herein, this Agreement may
not be amended or otherwise modified unless evidenced in writing and signed by
the Company and the Option Holder.
(c) Severability. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement, and each other provision of this
Agreement shall be severable and enforceable to the extent permitted by law.
(d) Waiver. Any provision contained in this Agreement
may be waived, either generally or in any particular instance, by the Company.
(e) Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the Company and the Option Holder and their
respective heirs, executors, administrators, legal representatives, successors
and assigns.
(f) Gender and Number. Except when otherwise indicated
by the context, the masculine gender shall also include the feminine gender,
and the definition of any term herein in the singular shall also include the
plural.
(g) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware without
giving effect to the conflicts of laws provisions thereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
BRIGHTSTAR INFORMATION TECHNOLOGY
GROUP, INC.
By: /s/ XXXXXXXX X. XXXX
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Name: Xxxxxxxx X. Xxxx
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Title: President
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XXXXXX-XXXXXXXX CAPITAL ADVISORS, LLC
By: /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
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Title: Managing Director
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