Exhibit 10.19
AMENDMENT TO AGREEMENT AND PLAN OF ORGANIZATION
THIS AMENDMENT (the "Amendment") to the Agreement and Plan of
Organization, dated as of June 2, 1999 (the "Agreement"), by and among Luminant
Worldwide Corporation, a Delaware corporation (f/k/a Clarant, Inc. and referred
to herein as "Luminant"), Align Solutions Acquisition Corp., a Delaware
corporation ("Newco"), Align Solutions Corp., a Delaware corporation (the
"Company"), and the stockholders of the Company (the "Stockholders"), is made
and entered into as of September 2, 1999.
RECITALS
A. Luminant, Newco, the Company and the Stockholders have determined
that it is in their best interests to revise the Agreement.
B. Luminant, Newco, the Company and the 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 premises, the mutual 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, with respect to each
Stockholder, the number of Shares issued to the Stockholder 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 7 is hereby amended by adding the following new
section 7.15:
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7.15 EXERCISE OF OPTIONS BEFORE IPO. The Stockholders shall
not themselves, and shall use their commercially reasonable best efforts to
cause other holders of Options and Convertible Securities, if any, not to,
exercise such Options and Convertible Securities prior to the Closing that are
currently exercisable or that will become exercisable prior to Closing.
4. Article 10 is hereby amended by adding the following new
Section 10.9:
10.9 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.
5. Section 12.1(b) is hereby amended by deleting "December 31, 1999" on
the sixth line, and replacing it with "October 15, 1999."
6. Section 17.1 is hereby amended by deleting the third sentence in its
entirety and replacing it 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; provided, further, that 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 one or more previous offerings), fifteen
percent
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(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."
7. Article 17 of the Agreements 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 Stockholders 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 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.
8. EXHIBIT 2.1(a) is hereby amended by deleting it in its entirety and
replacing it with the EXHIBIT 2.1(a) attached hereto.
9. EXHIBIT 3.3 is hereby amended by deleting it in its entirety and
replacing it with the EXHIBIT 3.3 attached hereto.
10. SCHEDULE 10.8 of the Agreement is hereby amended by deleting it in
its entirety and replacing it with the SCHEDULE 10.8 attached hereto. If the
actual IPO per Share price varies from the examples reflected on SCHEDULE 10.8,
the number of options and the exercise prices will be adjusted using the same
method of calculation that was applied to arrive at the values reflected in the
examples.
11. The Company shall provide copies of resolutions of the Board of
Directors and Stockholders of the Company to Luminant approving this Amendment
promptly following its execution.
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12. Except as herein provided, the Agreement shall remain unchanged and
in full force and effect.
[Signature Pages Follow]
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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: _________________________
ALIGN SOLUTIONS ACQUISITION CORP.
By: _________________________
Name: _________________________
Title: _________________________
ALIGN SOLUTIONS CORP.
By: _________________________
Name: _________________________
Title: _________________________
Stockholders' Representative
__________________________________
Stockholders:
Xxxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxxxxx Xxxxxxx 1999 GST Trust
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Xxxxx Xxxxxxxx Xxxxxxx 1999 GST Trust
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W. Xxxxx Xxxxx
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The 1996 Xxxxx X. Xxxxx Trust
The 1996 Xxxxxxx X. Xxxxx Trust
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___________________________________
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