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EXHIBIT 10.41
AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT TO ASSET PURCHASE AGREEMENT (this "Amendment") dated as
of June 23, 2000, by and among BRIGHTSTAR INFORMATION TECHNOLOGY GROUP, INC., a
Delaware corporation ("Buyer"), INTEGRATED SYSTEMS CONSULTING, LLC, an Arizona
limited liability company ("Seller"), and ALL THE UNDERSIGNED HOLDERS OF ALL OF
THE OUTSTANDING MEMBERSHIP INTERESTS OF SELLER, INCLUDING THE SHAREHOLDERS OF
SUCH HOLDERS (such holders and shareholders are referred to collectively as the
"Members").
RECITALS:
WHEREAS, Seller, Buyer and the Members are parties to a certain Asset
Purchase Agreement (the "Asset Purchase Agreement") dated as of April 1, 1999,
pursuant to which Seller acquired certain assets used or held for use by Seller
in the business of providing consulting services and consultant staffing to
users of enterprise resource planning; and
WHEREAS, the parties desire to modify Sections 1.5 and 5.10of the Asset
Purchase Agreement as hereinafter provided to provide for final settlement of
the Purchase Price;
NOW, THEREFORE, for and in consideration of the premises and the
covenants herein contained and the benefits to be derived therefrom, the parties
hereby agree as follows:
1. AMENDMENT OF SECTION 1.5. Section 1.5 of the Asset Purchase
Agreement is hereby amended and restated in its entirety to read as follows:
"1.5 Purchase Price. In consideration of the delivery
of the Purchased Assets, Buyer agrees to pay and deliver to Seller the
Purchase Price. The Purchase Price shall equal $3,000,000. The Purchase
Price shall be delivered to Seller in the following manner (the
"Closing Consideration"):
"(a) $500,000 shall be paid to Seller by
wire transfer or other immediately available
funds at the Closing;
"(b) $1,500,000 shall be payable to Seller
by delivery on June ___, 2000 of shares of
validly issued fully paid and non assessable
shares of common stock, $.001 par value per
share, of the Buyer (the "Buyer Common
Stock") at the price of $3.919 per share, or
an aggregate of 382,752 shares.
"(c) (1) The remaining $1,000,000 of the
Purchase Price shall be payable to Seller by
delivery on June ___, 2000 of shares of
validly issued fully paid and non assessable
shares of common
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stock, $.001 par value per share, of the
Buyer (the "Buyer Common Stock") at the
price of $3.500 per share, or an aggregate
of 285,716 shares.
"(2) It is expressly provided that the
amounts payable under Section 1.5(c) (i)
arise as a consequence of a disagreement
among the parties regarding the fair market
value of the Purchased Assets and (ii) are
expressly intended to constitute a portion
of the Purchase Price of the Purchased
Assets. Each party agrees to take a tax
reporting position consistent with the
foregoing.
"(3) It is expressly provided herein that in
determining the amount (if any) of imputed
interest associated with the transfer of the
Buyer Common Stock in accordance with
Sections 1.5(b) or 1.5(c) shall be deemed to
have been paid in connection with the Buyer
Common Stock. Preliminary to issuance and
filing with relevant taxing authorities of
any documents or forms reflecting the amount
of imputed interest associated with the
transfer of the Closing Consideration,
including any IRS Forms 1099, the parties
shall mutually agree as to the amount of
imputed interest arising as a consequence of
the transactions contemplated by this
Agreement."
2. MODIFICATION OF REGISTRATION RIGHTS.
(a) All parties hereto agree that Sections 5.10(a)
and 5.10(b) shall be deleted from the Asset Purchase Agreement and
shall be placed in its entirety by the following:
"5.10 S-1 Registration. (a) Buyer agrees to promptly
prepare and file a registration statement on Form S-1
(the "Registration Statement") with respect to, among
other shares, all of the shares issuable pursuant to
Sections 1.5(b) and 1.5(c) (collectively, the
"Registrable Securities"), and use its best efforts
to cause such Registration Statement to become
effective and keep such registration statement
continuously effective under the Securities Act of
1933, as amended (the "Securities Act") until the
date which is two years after the date such
Registration Statement is declared effective by the
Securities and Exchange Commission (the "Commission")
or such earlier date when all the Registrable
Securities covered by such Registration Statement
have been sold or may be sold without volume
restrictions pursuant to Rule 144(k) as determined by
the counsel to the Company pursuant to a written
letter to such effect, addressed and acceptable to
the Company's transfer agent and the affected Members
(the "Expiration Date"). In the event that, in the
good faith judgment of Buyer, it is advisable to
suspend use of the prospectus relating to such
Registration Statement for a discrete period of time
(a "Deferral Period")
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due to pending material corporate developments or
similar material events that have not been publicly
disclosed and as to which Buyer believes public
disclosure will be prejudicial to Buyer, Buyer shall
deliver a certificate in writing, signed by its Chief
Executive Officer or Chief Financial Officer, to each
Member, to the effect of the foregoing and, upon
receipt of such certificate, such Members agree not
to dispose of such Member's Registrable Securities
covered by such registration or prospectus (other
than in transactions exempt from the registration
requirements under the Securities Act); provided
however, that such Deferral Period shall be no longer
than 120 days. The Expiration Date shall be extended
for a period of time equal to such Deferral Period.
If necessary to achieve or maintain effectiveness of
such Registration Statement, Buyer agrees to promptly
file any amendments or supplements to such
Registration Statement. In any event, if such
Registration Statement has not been declared
effective by the Commission prior to or on December
1, 2000, Buyer hereby agrees to make a one-time cash
payment to the Members in an aggregate amount of
$90,000 and to continue to use its best efforts to
have such Registration Statement declared effective
as soon as possible. If such Registration Statement
is withdrawn for any reason, Buyer agrees to promptly
refile such Registration Statement or to file an
additional registration statement with respect to the
Registrable Securities.
"(b) Reserved."
3. REPRESENTATIONS AND WARRANTIES OF MEMBERS. The Members represent and
warrant to Buyer that the representation and warranties contained in Section
3.15 of the Asset Purchase Agreement continue to be true and correct as of the
date hereof. Furthermore, the Members represent and warrant to Buyer and Seller
that the person executing this Amendment on behalf of Seller has all required
legal authority to do so and to bind Seller and that this Amendment constitutes
the legal, valid and binding obligation of Seller and of each of the Members and
is enforceable against each of Seller and the Members in accordance with its
terms. The Members constitute all of the members of Seller.
4. NO OTHER AMENDMENTS. Except as amended hereby, the Asset Purchase
Agreement remains in full force and effect.
5. MISCELLANEOUS. This Amendment supersedes the Asset Purchase
Agreement with respect to the matters specified in paragraphs 1 and 2 hereof and
also supersedes all prior negotiations between the parties with respect to such
matters. This Amendment may be amended only by a written instrument duly
executed by the parties. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without regard to the choice
of law principles thereof. The headings contained in this Amendment are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Amendment. This Agreement may be executed in any number
of counterparts, no one of which needs to be executed by all of the parties, and
this Agreement shall be binding upon all the parties with the same force and
effect as if all the parties had signed the same document, and each such signed
counterpart
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shall constitute an original of this Agreement. This Agreement shall remain
binding on Buyer (or its successor), notwithstanding any sale, merger or other
change of control of Buyer.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date first written above.
BRIGHTSTAR INFORMATION
TECHNOLOGY GROUP, INC.
By:
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Name:
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Title:
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INTEGRATED SYSTEMS
CONSULTING, INC.
MEMBERS OF SELLER
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XXXXXX HOUSE XXXXX XXXXXX
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