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EXHIBIT 10.20
DEED OF VARIATION
THIS DEED is made on 17 April 1998 between:
BRIGHTSTAR INFORMATION TECHNOLOGY GROUP, INC., a Delaware corporation of 00000
Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx, XXX, 00000 (the "Purchaser");
SOFTWARE CONSULTING SERVICES PTY. LTD., (ACN 005 931 886) of c/- Cugley Ciravolo
Bordin Pty Ltd, 0-00 Xxxxxxxx Xxxxxx, Xxxxxxxxxxxxx, Xxxxxxxx, 0000 in its
capacity as trustee of the Trust (the "Company");
KENTCOM PTY LTD (ACN 065 369 440) in its own right and in its capacity as
trustee of the Xxxxx Family Trust and XXXXXXXXX XXXXX both of 0 Xxxxxxxx Xxxxx,
Xxxx Xxxx, Xxxxxxxx, 0000 and PEPPER TREE PTY LTD (ACN 007 342 538) in its own
right and in its capacity as trustee of the Banks Trust and XXXXXXXXXXX XXXXXXX
XXXXX both of 00 Xxxxxxx Xxxx, Xxxxxxxx, XX, 0000 and CEDARMAN PTY LTD (ACN 067
279 850) in its own right and in its capacity as trustee of the Xxxxxxx Trust
and XXXXXXX XXXXXX XXXXXXX both of 00 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, 0000 and
QUICKTREND PTY LTD (ACN 000 000 000) in its own right and in its capacity as
trustee of the Lock Trust and DESMOND XXXX XXXX both of 00 Xxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx, 0000, and KULLAMURRA PTY LTD (ACN 066 512 534) in its own
right and in its capacity as trustee of the Kullamurra Trust and XXXXXX XXXXXXX
XXXXXXXX both of 0 Xxxxxxxx Xxxx, Xxxxx Xxxxxx, Xxxxxxxx, 0000 and KPMG
INFORMATION SOLUTIONS PTY LTD (ACN 065 410 746) in its own right of Xxxxx 0, 000
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx, 0000 (together, the "Owners"); and
DATA COLLECTION SYSTEMS INTEGRATION PTY LTD (ACN 080 412 166) of 0-00 Xxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx, Xxxxxxxx ("DCSI").
RECITALS:
1. On 20 December 1997 the parties executed a Agreement and Plan of
Exchange ("Agreement") for the acquisition of certain assets and
liabilities of the software consulting business of the Company.
2. It was contemplated by section 1.6.1 of the Agreement that the
Purchaser would immediately after the IPO Closing Date assign all
Acquired Assets and all Assumed Obligations and all of its right, title
and interest in and to the Agreement, amongst other things, to SCSI.
3. Pursuant to section 11.4 of the Agreement, the Purchaser is only able
to assign its rights under the Agreement, amongst other things:
1. to SCSI at any time;
2. after thirteen months from the IPO Closing Date, to any
entity; or
3. within the thirteen month period from the IPO Closing Date, to
any entity which forms part of a bona fide reconstruction or
re-organisation of the affairs of the Purchaser or SCSI or the
group of companies of which they are a part with the consent
of the Owners and the Company, such consent not to be
unreasonably withheld.
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4. Brightstar wants to assign all Acquired Assets and all Assumed
Obligations and all of its right, title and interest in and to the
Agreement, amongst other things, to SCSI and shall procure that SCSI
assigns the same to Software Consulting Services Australia Pty Ltd
("SCS Australia").
5. To enable the assignments set out in clause D to occur, and to protect
the interests of the Company and the Owners, the parties have agreed to
vary the Agreement on the terms set out in this Deed.
THIS DEED WITNESSES:
1. DEFINITIONS
Defined terms in this Deed (including the Recitals to this
Deed) shall have the same meaning given to them in the
Agreement unless the context otherwise requires.
2. INTERPRETATION
Any provisions of the Agreement dealing with the interpretation of the
Agreement shall apply to the provisions of this Deed.
3. VARIATIONS
The parties agree that the Agreement is varied as follows:
(1) Section 1.5 of the Agreement (Purchase Price)
In section 1.5(b) the words "and Software Consulting Services
Australia Pty Ltd ("SCS Australia")" shall be inserted after
the words "SCSI" where they appear on the third line.
(2) Section 1.6.1 of the Agreement (Successor Operating Company)
Section 1.6.1 shall be deleted and replaced with the
following:
"Subject to payment of the Closing Cash
Consideration, the parties hereto acknowledge and
agree that the Purchaser shall immediately after the
IPO Closing Date (as defined above) assign all
Acquired Assets and all Assumed Obligations and all
of its right, title and interest in and to this
Agreement, the related agreements and documents, and
its rights and obligations thereunder and the
products thereof, first to a new wholly owned
subsidiary corporation of the Purchaser named
Software Consulting Services International, Inc., a
Delaware, U.S.A. corporation ("SCSI") and that
Purchaser shall procure that SCSI shall immediately
thereafter assign the same to SCS Australia. Neither
SCSI nor SCS Australia shall have any material assets
or liabilities prior to acquiring the
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Acquired Assets. The Purchaser shall cause SCSI and
SCS Australia to receive and assume ownership of such
assets and rights and responsibility for the
performance of such obligations and seek to employ
the employees previously employed by the Company so
that SCSI and SCS Australia may after the IPO Closing
Date conduct the business previously conducted by the
Company and seek to further develop such business."
(3) Section 1.6.2 (Successor Operating Company)
In section 1.6.2 of the Agreement, each time the word "SCSI"
appears, it shall be deleted and replaced with the words "SCS
Australia".
(4) Section 3.27.3 (SAP)
In section 3.27.3 of the Agreement after the word "SCSI", the
words "or SCS Australia" shall be inserted.
(5) Section 6.1.7 (Insolvency)
In section 6.1.7, after the word "SCSI", the words "or SCS
Australia" shall be inserted.
(6) Section 6.2 (Audit)
Section 6.2 shall be deleted and replaced with the following:
"Prior to Closing, Deloitte Touche Tohmatsu, shall
complete such additional review work as may be
requested by the Purchaser through and including the
Closing Date (or other period subsequent to June 30,
1997) and provide its report to the Purchaser and the
Owners."
(7) Section 6.6 (Incentive Stock Bonus Plan)
Section 6.6 shall be deleted and replaced with the following:
"In order to provide incentive to the key employees
of SCS Australia, Purchaser agrees to cause SCS
Australia, as a subsidiary of SCSI, to enter into an
Incentive Stock Bonus Plan ("Bonus Plan") with the
key employees of SCS Australia (who were formerly the
key employees of the Company), which will provide for
a bonus pool of shares of Purchaser's Common Stock to
be issued to key employee participants in the Bonus
Plan, being the persons specified in section 6.11
("Participants") contingent on the combined
recognised revenues for the 1998 calendar year of the
Company to the IPO Closing Date and SCSI and SCS
Australia (and its permitted assignee) between the
IPO Closing Date and the end of the 1998 calendar
year. The Participants shall determine the amount of
participation of each Participant. The shares will be
issued at a value per share equal to the IPO Price.
The Bonus Plan will provide that if, for the 1998
calendar year, the Company from 1 January 1998 to the
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IPO Closing Date and SCSI and SCS Australia (and its
permitted assignee) from the IPO Closing Date to the
end of the 1998 calendar year ("1998 Year") have
combined recognized revenue (less allowances for
doubtful accounts and sales returns) as determined in
accordance with GAAP ("Recognized Revenue"), of AUD
$38,400,000 or more, then there shall be a bonus pool
payable to the key employee participants in the Bonus
Plan of AUD $4,000,000 in value of Purchaser's Common
Stock to be issued at a value per share in United
States dollars equal to the IPO Price. If the Company
from 1 January 1998 to the IPO Closing Date and SCSI
and SCS Australia (and its permitted assignee) from
the IPO Closing Date to the end of the 1998 Year have
combined Recognized Revenue of AUD$31,200,000 or less
for the 1998 Year, then there will be no bonus pool
payable. If the Company from 1 January 1998 to the
IPO Closing Date and SCSI and SCS Australia (and its
permitted assignee) from the IPO Closing Date to the
end of the 1998 Year have Recognized Revenue of more
than AUD $31,200,000, but less than AUD $38,400,000,
for the 1998 Year, then the amount of the bonus pool
shall be the result of the following computation:
Recognized Revenue for 1998 Year minus AUD$31,200,000 times
AUD$4,000,000 AUD$7,200,000
(8) Section 7.1.13 (ASAP Restraint)
In section 7.1.13, after the word "SCSI", the words "or SCS
Australia" shall be inserted.
(9) Section 7.9 (Provision of Working Capital)
In section 7.9, after the word "SCSI", the words "or SCS
Australia, as appropriate" shall be inserted.
(10) Section 11.4 (Assignability)
On the fourth line of section 11.4, after the words "to SCSI
at any time," the words "and SCSI shall be entitled to assign
the same to SCS Australia at any time" shall be inserted.
(11) Section 11.9 (Public Announcements)
In section 11.9(b), after the word "SCSI", the words ",SCS
Australia" shall be inserted.
4. GENERAL
Subject to the variations contained in section 3 of this Deed, the
provisions of the Agreement shall in all respects remain in full force
and effect and the provisions of the Agreement shall be deemed always
to have read as they do after being varied by the provisions of this
Deed.
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EXECUTED by the parties as a Deed:
BRIGHTSTAR INFORMATION
TECHNOLOGY GROUP, INC.
SIGNED SEALED AND DELIVERED by:
------------------------
Xxxxxx X. Xxxxxxx, Vice President
THE COMMON SEAL OF SOFTWARE
CONSULTING SERVICES PTY. LTD.
(ACN 005 931 886) was hereunto affixed in
accordance with its Articles of Association
in the presence of:
Director
------------------------
Name (please print)
------------------------
Secretary
------------------------
Name (please print)
------------------------
THE COMMON SEAL of KPMG
INFORMATION SOLUTIONS PTY.
LTD. (ACN 065 410 746) was hereunto
affixed in accordance with its Articles of
Association in the presence of:
Director
------------------------
Name (please print)
------------------------
Secretary
------------------------
Name (please print)
------------------------
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THE COMMON SEAL of KENTCOM
PTY LTD (ACN 065 369 440) was
hereunto affixed in accordance with its
Articles of Association in the presence of:
Director
------------------------
Name (please print)
------------------------
Secretary
------------------------
Name (please print)
------------------------
SIGNED SEALED AND DELIVERED by
XXXXXXXXX XXXXX in the presence of:
Xxxxxxxxx Xxxxx
------------------------
Witness
------------------------
Name (please print)
------------------------
THE COMMON SEAL of PEPPER TREE
PTY LTD (ACN 007 342 538) was hereunto
affixed in accordance with its Articles of
Association in the presence of:
Director
------------------------
Name (please print)
------------------------
Secretary
------------------------
Name (please print)
------------------------
SIGNED SEALED AND DELIVERED by
XXXXXXXXXXX XXXXXXX XXXXX in the
presence of:
Xxxxxxxxxxx Xxxxx
------------------------
Witness
------------------------
Name (please print)
------------------------
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THE COMMON SEAL of CEDARMAN
PTY LTD (ACN 067 279 850) was
hereunto affixed in accordance with its
Articles of Association in the presence of:
Director
------------------------
Name (please print)
------------------------
Secretary
------------------------
Name (please print)
------------------------
SIGNED SEALED AND DELIVERED by
XXXXXXX XXXXXX XXXXXXX in the
presence of:
Xxxxxxx Xxxxxxx
------------------------
Witness
------------------------
Name (please print)
------------------------
THE COMMON SEAL of QUICKTREND
PTY LTD (ACN 000 000 000) was hereunto
affixed in accordance with its Articles of
Association in the presence of:
Director
------------------------
Name (please print)
------------------------
Secretary
------------------------
Name (please print)
------------------------
SIGNED SEALED AND DELIVERED by
DESMOND XXXX XXXX in the presence of:
Desmond Lock
------------------------
Witness
------------------------
Name (please print)
------------------------
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THE COMMON SEAL of KULLAMURRA
PTY LTD (ACN 066 512 534) was hereunto
affixed in accordance with its Articles of
Association in the presence of:
Director
------------------------
Name (please print)
------------------------
Secretary
------------------------
Name (please print)
------------------------
SIGNED SEALED AND DELIVERED by
XXXXXX XXXXXXXX in the presence of:
Xxxxxx Xxxxxxxx
------------------------
Witness
------------------------
Name (please print)
------------------------
THE COMMON SEAL of DATA COLLECTION
SYSTEMS INTEGRATION PTY LTD
(ACN 080 412 166) was hereunto affixed in
accordance with its Articles of Association in the
presence of:
Director
------------------------
Name (please print)
------------------------
Secretary
------------------------
Name (please print)
------------------------
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BRIGHTSTAR INFORMATION TECHNOLOGY GROUP, INC.
and
SOFTWARE CONSULTING SERVICES PTY LTD
and
KENTCOM PTY LTD, XXXXXXXXX XXXXX, PEPPER TREE PTY LTD,
XXXXXXXXXXX XXXXXXX XXXXX, CEDARMAN PTY LTD,
XXXXXXX XXXXXX XXXXXXX, QUICKTREND PTY LTD, DESMOND
XXXX XXXX, KULLAMURRA PTY LTD, XXXXXX XXXXXXX XXXXXXXX,
AND KPMG INFORMATION SOLUTIONS PTY LTD
and
DATA COLLECTION SYSTEMS INTEGRATION PTY LTD
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DEED OF VARIATION
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MADGWICKS
Lawyers
Xxxxx 00
000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Tel: 0000 0000
Fax: 0000 0000
Ref: HDW:ab CHA026-1
