Exhibit 4.14
Amended April 1, 2005 Omnibus Agreement
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re
Series 1 Convertible Subordinated Promissory Notes
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This Amended April 1, 2005
Omnibus Agreement re Series 1 Convertible
Subordinated Promissory Notes
(this "Amended Agreement") is entered into as of
April 11, 2005 by and between
BrightStar Information Technology Group, Inc., a
Delaware corporation
("BrightStar"), BrightStar Information Technology
Services,
Inc., a Delaware corporation
(the "Company"), Stellar McKim LLC ("Stellar") a
Delaware limited liability
company and each of the holders of the Notes (as
defined below) (each a
"Holder" and, collectively, the "Holders").
P R E A M B L E
Whereas, the Company
initially issued to the Holders its Series 1 Convertible
Subordinated Promissory Notes
dated July 26, 2001 (as amended by amendments
dated as of October 14, 2003,
June 30, 2004 and September 1, 2004 by and between
the Company and holders of
Series 1 Convertible Subordinated Promissory Notes
representing in aggregate
outstanding principal amount not less than
seventy-five percent (75%) of
the aggregate outstanding principal amount of all
Series 1 Convertible
Subordinated Promissory Notes then outstanding, and
including those Series 1
Convertible Subordinated Promissory Notes issued to
Holders as payment in kind
for interest, the "Notes"); and
Whereas, the Notes are
secured pursuant to that certain Security Agreement
dated
as of July 26, 2001, made by
BrightStar and others; and
Whereas BrightStar and
Stellar have entered into that certain Offer to Purchase
dated March 25, 2005, the
form of which is set forth in Exhibit A (the "Purchase
Offer") which is subject to
the execution of a definitive agreement (the
"Definitive Agreement");
and
Whereas BrightStar and
Stellar have agreed to modify the terms of Exhibit A to
eliminate paragraph 7 thereof
pertaining to dilution protection in exchange for
increasing to $860,000 the
cash to be paid to the Holders for their Notes and
increasing by one-half
percent the number of fully diluted common shares of
BrightStar to be retained by
the current holders of BrightStar's common stock,
options and warrants
(excluding the Holder's warrants) at April 14, 2005; and
Whereas, BrightStar proposes
to issue approximately 13.869 million shares to the
Holders as consideration for
their sale of the Notes and for their surrender of
all warrants issued in
respect of the Notes, all as provided in the Purchase
Offer; and
<PAGE>
Whereas the Holders have
received information regarding the financial condition
of BrightStar and the Company
and have had the opportunity to request such
additional information
regarding BrightStar and the Company as may be material
to them in connection with
the transactions contemplated by this Amended
Agreement and, on the basis
of such information received, wish to carry out such
transactions;
NOW, THEREFORE, in
consideration of the foregoing premises, the mutual
covenants
contained herein and other
good and valuable consideration, the receipt and
adequacy of which are hereby
acknowledged, BrightStar, the Company, the Holders
and Stellar hereby agree as
follows:
1. Agreements of Holders
Effective Time. Effective upon the satisfaction
of the conditions set forth in Section 2 hereof (the
"Effective
Time"), on or before April 29, 2005 (the "Termination Date," which
may
be extended from time to time by the written consent of Holders
of
Notes representing in aggregate outstanding principal amount more
than
fifty percent (50%) of the aggregate outstanding principal amount
of
all Notes), each of the Holders hereby:
a. agrees to
sell their Notes to Stellar which shall pay an
aggregate of $860,000 in cash for all of the Notes which shall
be
distributed to the Holders in proportion to the principal
balance
of their Notes.
b. agrees that
all warrants issued to such Holder in connection with
the Notes are cancelled and of no further force or
effect.
c. releases
BrightStar, the Company, Stellar, and their respective
members, officers, directors, agents, affiliates, successors
and
assigns from any and all liability or obligation whatsoever
in
respect of any of the Notes, the Security Agreement or any
other
document or agreement related thereto, or in respect of any
other
claim or matter of any nature arising on or prior to the
Effective Time (except for obligations arising under this
Amended
Agreement);
Each of the Holders agrees to deliver the original Notes,
endorsed
payable to the order of Stellar, for sale as above provided
and
surrender to BrightStar the original warrants issued to
such
Holder in connection with the Notes as above provided, all at
such
time as is requested by BrightStar in connection with the
closing
of the transactions contemplated by the Purchase Offer.
In
addition, upon request by BrightStar, the Company or Stellar,
each
Holder, at no expense to such Holder, agrees to execute
and
deliver any and all further documents necessary or appropriate
to
further confirm and assure the effectiveness and completion of
the
actions described in clauses a, b, and c above and otherwise
to
carry out the intent and purposes of this Amended
Agreement,
including, without limitation, the execution of assignments
of
financing statements under the Uniform Commercial Code
2. Conditions to Effectiveness.
The agreements of the Holders set forth
in Section 1 above shall be effective only upon the prior
or
contemporaneous satisfaction of the following conditions on or
before
the Termination Date:
<PAGE>
a. BrightStar,
the Company, Stellar and all of the Holders shall
have executed this Amended Agreement;
b. Stellar shall
have acquired at least a majority of the voting
stock of BrightStar, or securities convertible into, or
exchangeable for, a majority of the voting stock of
BrightStar;
and
c. The Holders
shall have had issued to them by BrightStar
approximately 13.869 million shares of BrightStar common stock
in
proportion to the principal balance of their Notes
3. Representations and
Warranties of BrightStar and the Holders.
a. BrightStar
and the Company each represents and warrants to each
of the Holders and Stellar as follows:
i. It is a corporation validly existing under the laws
of
the State of Delaware and has the corporate power to own
its
assets and to conduct its business as presently
conducted.
ii. The transactions contemplated by this Amended
Agreement
have been duly authorized on the part of BrightStar.
iii. BrightStar's Form 10-K and Form 10-Q reports filed
under the Securities Exchange Act of 1934, as amended
(the
"Exchange Act") since December 31, 2002, are substantially
in
compliance with the requirements of the Exchange Act, and
no
statement contained therein contains any untrue statement of
a
material fact or omits to state any material fact known
to
BrightStar necessary to make the statements contained therein
and
therein not misleading.
b. The Holders
each represent and warrant to Stellar, the Company
and BrightStar as follows:
i. the Holders have received information regarding
Stellar
and its operations and have had the opportunity to request
such
additional information regarding Stellar as may be material
to
them in connection with the transactions contemplated by
this
Amended Agreement and, on the basis of such information
received,
wish to carry out such transactions
4. Representations, Warranties
and Agreements of Stellar. Stellar
represents and warrants to each of the Holders, BrightStar and
the
Company as follows:
a. It is a
limited liability company validly existing under the
laws
of the State of Delaware and has the power to own its assets
and
to conduct its business as presently conducted.
b. The
transactions contemplated by this Amended Agreement,
including the purchase of the Notes by Stellar, have been
duly
authorized, and the person signing this Amended Agreement
on
behalf of Stellar is duly authorized to enter into this
Amended
Agreement and bind Stellar to carry out the transactions
contemplated by this Amended Agreement; and
<PAGE>
c. Stellar has
the financial resources to complete the transactions
contemplated by this Amended Agreement independent of
the
approval or financial support of any third party.
5. Disclaimers. Each Holder
executing this Amended Agreement is doing so
based solely on the representations and warranties set forth
in
Sections 3 and 4 above and the independent determination of
such
Holder. Except for the representations and warranties set forth
in
Sections 3 and 4 above, no Holder is relying in any way on
statements
made by or on behalf of BrightStar, the Company or Stellar,
whether
made by directors, officers or members of any of them, by members
of
the Company's Ad Hoc Committee of Note Holders, or by any party
acting
as a consultant, advisor or attorney for BrightStar, the Company
or
Stellar. Each Holder recognizes that any and all projections
of
financial performance of the Company in future periods which may
have
been furnished to Holders are predictions of future events and
thus
inherently uncertain, and actual financial performance will
differ
from such projections. In no event shall any individual have
any
obligation or liability to any Holder associated with the Notes,
the
obligations of BrightStar or the Company under the Notes, or
the
transaction contemplated by this Amended Agreement.
Stellar
acknowledges that it is not relying on any representation or
warranty
made by any Holder and that it is purchasing the Notes
without
recourse to any Holder.
6. Effectiveness. This Amended
Agreement shall become effective upon
execution hereof by BrightStar, the Company, Stellar and by
Holders
whose Notes represent in total one-hundred percent (100%) of
the
aggregate outstanding principal amount of the Notes. This
Amended
Agreement, when effective, supersedes and completely replaces
the
April 1, 2005 Omnibus Agreement re Series 1 Convertible
Subordinated
Promissory Notes by and among BrightStar, the Company, Stellar and
the
Holders.
7. Acknowledgement and Consent
of Company. BrightStar and the Company
acknowledge the continuation of their obligations under the Notes
and
the Security Agreement. BrightStar and the Company consent to
the
transactions contemplated by this Amended Agreement.
8. Notes Closing. The closing
of the sale of the Notes by each Holder to
Stellar shall occur not later than the later of the Termination
Date
or five business days after the closing of the transactions
described
in the Purchase Offer.
9. Notes Escrow.
BrightStar, Stellar and Guzov Ofsink, LLC (the "Escrow
Agent"), counsel to Stellar,
intend to enter into a Stock Purchase Agreement
relating to the sale of
common and preferred stock of BrightStar to Stellar (the
"Purchase Agreement").
Pursuant to the Purchase Agreement, the Escrow Agent
shall act as escrow agent for
the Notes, warrants to purchase common stock of
BrightStar held by the
Holders, common stock to be issued to the Holders
pursuant to this Agreement
and the cash purchase price to be paid by Stellar to
the Holders for the purchase
of their Notes. The Holders authorize BrightStar to
enter into and perform the
escrow provisions of the Stock Purchase Agreement
substantially upon the terms
set forth in the draft of Section 8 of such
agreement set forth as
Exhibit B attached hereto.
IN WITNESS WHEREOF, the
Parties have executed this Amended Agreement as of the
date first written
above.
Name of Holder
BrightStar Information Technology Group, Inc.
_______________________
By_____________________
Name of Holder
Joseph A. Wagda
Chief Executive Officer
BrightStar Information Technology Services, Inc.
By_____________________
Joseph A. Wagda
Chief Executive Officer
Consent of Other Debtors under Security Agreement
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Each of the undersigned
consents to the completion of each of the transactions
contemplated by the foregoing
Amended April 1, 2005 Omnibus Agreement re Series
1 Convertible Subordinated
Promissory Notes, and acknowledges that property
belonging to each of the
undersigned will remain subject to liens and security
interests to the extent set
forth in the Security Agreement (as defined in the
foregoing
Agreement).
IN WITNESS WHEREOF, each of
the undersigned has executed this Amended Agreement
as of the date and year first
above written.
INTEGRATED CONTROLS, INC.
By:
____________________________________________
Print Name:_______________________________
Title:____________________________________
<PAGE>
"DEBTOR"
SOFTWARE CONSULTING SERVICES AMERICA, INC.
By:
____________________________________________
Print Name:_______________________________
Title:____________________________________
"DEBTOR"
SOFTWARE INNOVATORS, INC.
By:
_____
