BRIGHTSTAR INFORMATION TECHNOLOGY GROUP INC
EXHIBIT 10.41
<DOCUMENT>
<TYPE>EX-10.41
<SEQUENCE>4
<FILENAME>a4603070ex1041.txt
<DESCRIPTION>EXHIBIT 10.41
<TEXT>
                    AMENDED AND RESTATED EMPLOYMENT AGREEMENT


     THIS AGREEMENT is entered into as of the 21 day of October, 2003, by and
between Joseph A. Wagda (the "Executive") and Brightstar Information Technology
Group, Inc. (the "Company").

Section 1.        Term of Employment

(a)      Basic Rule. The Company agrees to continue the Executive's employment,
         and the Executive agrees to remain in employment with the Company, from
         May 1, 2002, until the earliest of:

     (1)  The date of the Executive's death;

     (2)  October 31, 2004, or if a Transaction resulting in a Change in Control
          closes on or before October 31, 2004, then 12 months after the closing
          of said Transaction; or

     (3)  The date when the Executive's employment terminates pursuant to
          Subsection (b), (c), (d) or (e) below.

(b)      Early Termination or Resignation. The Company may terminate the
         Executive's employment at any time and for any reason by giving the
         Executive 30 days' advance notice in writing or 30 days payment of Base
         Compensation in lieu of notice. The Executive may terminate the
         Executive's employment for any reason by giving the Company not less
         than 30 days' advance notice in writing.

(c)  Termination for Cause. The Company may terminate the Executive's employment
     at any time for Cause shown. For all purposes under this Agreement, "Cause"
     shall mean (1) a failure by the Executive to substantially perform the
     Executive's duties under this Agreement, other than a failure resulting
     from the Executive's complete or partial incapacity due to physical or
     mental illness or impairment, (2) an intentional act by the Executive that
     constitutes gross misconduct and that is materially injurious to the
     Company, (3) a breach by the Executive of a material provision of this
     Agreement or (4) a material violation of a federal or state law or
     regulation applicable to the business of the Company that is materially and
     demonstrably injurious to the Company. No act, or failure to act, by the
     Executive shall be considered "intentional" unless committed without good
     faith and without a reasonable belief that the act or omission was in the
     Company's best interest.

(d)  Termination for Disability. The Company may terminate the Executive's
     employment for Disability by giving the Executive written notice. For all
     purposes under this Agreement, "Disability" shall mean that the Executive,
     at the time the notice is given, has been unable to perform the Executive's
     duties under this Agreement for a period of not less than six consecutive
     months as a result of the Executive's incapacity due to physical or mental
     illness. In the event that the Executive resumes the performance of
     substantially all of the Executive's duties under this Agreement before the
     termination of the Executive's employment under this Section becomes
     effective, the notice of termination shall automatically be deemed to have
     been revoked.

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(e)      Termination of Agreement. This Agreement shall expire on the earlier of
         October 31, 2004 or when all obligations of the parties hereunder have
         been satisfied. In addition, either the Company or the Executive may
         terminate this Agreement for any reason, and without affecting the
         Executive's status as an Executive, by giving the other party
         one-year's advance notice in writing. A termination of this Agreement
         pursuant to the preceding sentence shall be effective for all purposes,
         except that such termination shall not affect the payment or provision
         of compensation or benefits under this Agreement on account of a
         termination of employment occurring prior to the termination of this
         Agreement.

Section 2.        Duties and Scope of Employment

(a)      Position. The Company and each of its subsidiaries agree to employ the
         Executive for the term of employment under this Agreement in the
         position of President and Chief Executive Officer. Executive shall be
         given such duties, responsibilities and authorities as are appropriate
         to his position.

(b)      Obligations. During the term of employment under this Agreement, the
         Executive shall devote the Executive's full business efforts and time
         to the business and affairs of the Company as needed to carry out his
         duties and responsibilities hereunder subject to the overall
         supervision of the Company's Board of Directors. The foregoing shall
         not preclude the Executive from engaging in appropriate civic,
         charitable or religious activities or from devoting a reasonable amount
         of time to private investments or from serving on the boards of
         directors of other entities, as long as such activities and service do
         not interfere or conflict with the Executive's responsibilities to the
         Company.

(c)      Board of Directors. During the term of employment under this Agreement,
         the Executive shall also be appointed to and serve on the Board of
         Directors of the Company.

Section 3.        Compensation

(a)  Base Compensation. During the term of employment under this Agreement, the
     Company agrees to pay the Executive as compensation for services a base
     salary at the annual rate of $300,000 for the first year of employment and
     $350,000 for the second year of employment and until the expiration of this
     agreement. Such salary shall be payable in accordance with the standard
     payroll procedures of the Company. Once the Company's Compensation/Option
     Committee of the Board of Directors has increased such salary, it
     thereafter shall not be reduced; provided, however, that if a Change in
     Control has not occurred, such salary (including any increases) may be
     reduced by the Company if (1) the Executive commits an act or omission that
     meets the definition of Cause, as defined in Section 1 (c), or (2) the
     Executive and all other executive officers of the Company who are parties
     to written employment agreements containing substantially the same
     provisions as this Agreement have their salaries (including any increases)
     reduced by the same percentage amount for the same time period. The annual
     compensation specified in this Section 3, together with any increases in
     such compensation that the Compensation/Option Committee of the Board of
     Directors may grant from time to time, and together with any reductions
     made in accordance with this Section 3, is referred to in this Agreement as
     "Base Compensation."

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(b)      Bonus Compensation. During the term of employment under this Agreement,
         the Executive shall receive annual bonus payments of 0 to 200% of Base
         Compensation. For the calendar year of employment hereunder ending
         12/31/02, the bonus will be at the complete discretion of the board.
         For the 12-month and 10-month calendar periods of employment hereunder
         ending 12/31/03 and October 31, 2004, respectively, the bonus will be
         based upon such Metrics as may be agreed upon with the Executive. Bonus
         Compensation shall be paid not later than 90 days after the period for
         which the bonus was awarded.

         In the event a transaction involving any future acquisition, merger,
         divestiture or sale of equity securities (a "Transaction") is completed
         in respect of the Company, the Executive shall receive a bonus in cash
         within 30 days of closing equal to (i) the lesser of $55,000 or 10% of
         the value of the Transaction (the "Tier One Bonus"), plus (ii) 10% of
         the amount by which the Net Equity Value of the Company (having added
         back the 10% bonus amount) exceeds $1.014 million (the "Tier Two
         Bonus"). If there are multiple Transactions, all Transactions shall be
         treated as a single Transaction for purposes of computing the Tier Two
         Bonus and the most recent Tier Two Bonus amount shall be computed by
         reducing it (but not below zero) by the sum of all Tier Two Bonus
         amounts paid or payable in respect of all prior Transactions. Net
         Equity Value shall be defined as cash received by and the market value
         of securities received or retained by the Company's shareholders. The
         market value of securities received or retained shall be the average of
         the closing mid points of the bid and ask prices thereof for the 10
         trading days following the closing of the Transaction.

         In the event any bonus is payable hereunder pursuant to a Transaction
         resulting in a Change in Control, a good faith estimate of the amount
         payable shall be made and the amount deposited in an escrow account at
         closing for the benefit of the Executive, in accordance with procedures
         approved by the Executive.



Section 4.        Company Stock and Stock Options

(a)      Up-Front Stock Grant. Executive received seven hundred fifty thousand
         (750,000) restricted shares of common stock in the Company effective
         February 15, 2002, a pro rata portion of which shall vest monthly over
         the succeeding 24 month period or immediately upon death, disability,
         termination without cause or a Change in Control.

(b)      Future Grant of Stock or Options. The Executive may be awarded
         restricted stock or stock options as incentive compensation in the
         future at the complete discretion of the board.



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Section 5.        Executive Benefits

In General. During the term of employment under this Agreement, the Executive
shall be eligible to participate in the executive benefit plans and executive
compensation programs maintained by the Company, including (without limitation)
savings or profit-sharing plans, deferred compensation plans, stock option,
incentive or other bonus plans, life, disability, health, accident and other
insurance programs, five weeks of paid vacation per annum, and similar plans or
programs, subject in each case to the generally applicable terms and conditions
of the plan or program in question and to the discretion and determinations of
any person, committee or entity administering such plan or program.

Section 6.        Business Expenses and Travel

During the term of employment under this Agreement, the Executive shall be
authorized to incur necessary and reasonable travel, entertainment and other
business expenses in connection with the Executive's duties hereunder. The
Company shall reimburse the Executive for such expenses upon presentation of an
itemized account and appropriate supporting documentation, all in accordance
with generally applicable policies.

Section 7.        Involuntary Actual or Constructive Termination Without Cause
                  or Disability

In the event that, during the term of this Agreement, the Executive's employment
terminates in a Qualifying Termination, as defined in Subsection (a), then,
after executing the release of claims described in Section 7(e), the Executive
shall be entitled to receive the payments and rights described in Subsections
(b), (c) and (d).

(a)      Qualifying Termination. A Qualifying Termination occurs if:

     (1)  The Company terminates the Executive's employment for any reason other
          than Cause or Disability; or

     (2)  The Executive resigns from employment with the Company as a result of
          a "Constructive Termination." For the purposes of this Agreement, a
          Constructive Termination means that the Executive resigns from the
          Company within 60 days of any of the following events that occur
          without his written consent: (i) the Executive's responsibilities are
          materially diminished; (ii) the Executive ceases to be CEO of the
          Company; (iii) the Executive is removed from the Board of Directors;
          (iv) the Executive's office is relocated more than 35 miles from his
          current office location; or (vi) the Executive's Base Salary or Target
          Bonus is reduced by more than 10%; or

     (3)  The Executive resigns from employment with the Company as a result of
          a Change in Control, provided that such resignation occurs within 180
          days after a Change in Control but not before 90 days after a Change
          in Control.

(b)      Severance. For a period of 12 months following the date of the
         Qualifying Termination, the Executive shall receive, in accordance with
         standard payroll procedures, an amount equal to the Executive's monthly
         Base Compensation in effect on the date of the employment termination.


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(c)      Continued Vesting of Stock Options. If the Qualifying Termination does
         not occur within the 365-day period following a Change in Control,
         then, for a period of 12 months following the date of the Qualifying
         Termination, the Executive shall continue to vest, subject to Section
         4(a) above, in any outstanding restricted stock or options to purchase
         stock in the Company. Nothing in this Agreement shall give the
         Executive the right to receive grants of new options to purchase stock
         in the Company following a Qualifying Termination.

(d)      Immediate Vesting of Stock Options. If the Qualifying Termination
         occurs within the 365-day period following a Change in Control, then
         the Executive shall be vested immediately in all unvested shares of
         restricted stock or options to purchase stock in the Company.

(e)      Release of Claims. As a condition to the receipt of the payments and
         benefits described in this Section 7, the Executive shall be required
         to execute a release of all claims arising out of the Executive's
         employment or the termination thereof including, but not limited to,
         any claim of discrimination under state or federal law, but excluding
         claims for indemnification from the Company under any indemnification
         agreement with the Company, its certificate of incorporation and
         by-laws or applicable law or claims for directors and officers'
         insurance coverage.

(f)      No Mitigation. The Executive shall not be required to mitigate the
         amount of any payment or benefit contemplated by this Section 7, nor
         shall any such payment or benefit be reduced by any earnings or
         benefits that the Executive may receive from any other source.

(g)  Conditions to Receipt of Payments and Benefits. In view of Executive's
     position and his access to Confidential Information, as a condition to the
     receipt of payments and benefits described in this Section 7, the Executive
     shall not, without the Company's written consent, directly or indirectly,
     alone or as a partner, joint venturer, officer, director, Executive,
     consultant, agent or stockholder (other than a less than 5% stockholder of
     a publicly traded company) (i) solicit any of the Company's Executives,
     consultants or customers, (ii) hire any of the Company's Executives or
     consultants in an unlawful manner or actively encourage Executives or
     consultants to leave the Company, or (iii) otherwise breach his
     Confidential Information obligations.

Section 8.        Definition of Change in Control

For all purposes under this Agreement, "Change in Control" shall mean the
occurrence of any of the following:

(i)  The consummation of a merger or consolidation of the Company with or into
     another entity or any other corporate reorganization, if more than 50% of
     the combined voting power of the continuing or surviving entity's
     securities outstanding immediately after such merger, consolidation or
     other reorganization is owned by persons who were not stockholders of the
     Company immediately prior to such merger, consolidation or other
     reorganization;


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(ii) The sale, transfer or other disposition of all or substantially all of the
     Company's assets;

(iii) A change in the composition of the Board after April 30, 2002, as a result
     of which fewer than one-half of the incumbent directors are directors who
     either (i) had been directors of the Company on the date 12 months prior to
     the date of the event that may constitute a Change in Control (the
     "original directors") or (ii) were elected, or nominated for election, to
     the Board with the affirmative votes of at least a majority of the
     aggregate of the original directors who were still in office at the time of
     the election or nomination and the directors whose election or nomination
     was previously so approved;

(iv) Any transaction after April 30, 2002 as a result of which any person
     becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
     Act), directly or indirectly, of securities of the Company representing at
     least 20% of the total voting power represented by the Company's then
     outstanding voting securities. For purposes of this Paragraph (iii), the
     term "person" shall have the same meaning as when used in sections 13(d)
     and 14(d) of the Exchange Act but shall exclude:

          (A)  A trustee or other fiduciary holding securities under an employee
               benefit plan of the Company or a subsidiary of the Company;

          (B)  A corporation owned directly or indirectly by the stockholders of
               the Company in substantially the same proportions as their
               ownership of the common stock of the Company; and

          (C)  The Company; or

     (v)  A complete liquidation or dissolution of the Company.

Section 9.        Confidential Information

     (a)  Acknowledgement. The Company and the Executive acknowledge that the
          services to be performed by the Executive under this Agreement are
          unique and extraordinary and that, as a result of the Executive's
          employment, the Executive will be in a relationship of confidence and
          trust with the Company and will come into possession of "Confidential
          Information" (1) owned or controlled by the Company, (2) in the
          possession of the Company and belonging to third parties or (3)
          conceived, originated, discovered or developed, in whole or in part,
          by the Executive. As used herein "Confidential Information" includes
          trade secrets and other confidential or proprietary business,
          technical, personnel or financial information, whether or not the


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          Executive's work product, in written, graphic, oral or other tangible
          or intangible forms, including but not limited to specifications,
          samples, records, data, computer programs, drawings, diagrams, models,
          customer names, ID's or e-mail addresses, business or marketing plans,
          studies, analyses, projections and reports, communications by or to
          attorneys (including attorney-client privileged communications), memos
          and other materials prepared by attorneys or under their direction
          (including attorney work product), and software systems and processes.
          Any information that is not readily available to the public shall be
          considered to be a trade secret and confidential and proprietary, even
          if it is not specifically marked as such, unless the Company advises
          the Executive otherwise in writing.

(b)      Nondisclosure. The Executive agrees that the Executive will not,
         without the prior written consent of the Company, directly or
         indirectly use or disclose Confidential Information to any person,
         during or after the Executive's employment, except as may be necessary
         in the ordinary course of performing the Executive's duties under this
         Agreement. The Executive will keep the Confidential Information in
         strictest confidence and trust. This Section 9 shall apply
         indefinitely, both during and after the term of this Agreement.

(c)      Surrender Upon Termination. The Executive agrees that in the event of
         the termination of the Executive's employment for any reason, the
         Executive will immediately deliver to the Company all property
         belonging to the Company, including all documents and materials of any
         nature pertaining to the Executive's work with the Company, and will
         not take with the Executive any documents or materials of any
         description, or any reproduction thereof of any description, containing
         or pertaining to any Confidential Information. It is understood that
         the Executive is free to use information that is in the public domain
         (not as a result of a breach of this Agreement).

Section 10.       Successors

(a)  Company's Successors. The Company shall require any successor (whether
     direct or indirect and whether by purchase, lease, merger, consolidation,
     liquidation or otherwise) to all or substantially all of the Company's
     business and/or assets, by an agreement in substance and form satisfactory
     to the Executive, to assume this Agreement and to agree expressly to
     perform this Agreement in the same manner and to the same extent as the
     Company would be required to perform it in the absence of a succession. The
     Company's failure to obtain such agreement prior to the effectiveness of a
     succession shall be a breach of this Agreement and shall entitle the
     Executive to all of the compensation and benefits to which the Executive
     would have been entitled hereunder if the Company had involuntarily
     terminated the Executive's employment without Cause or Disability, on the
     date when such succession becomes effective. For all purposes under this
     Agreement, the term "Company" shall include any successor to the Company's
     business and/or assets that executes and delivers the assumption agreement
     described in this Subsection (a) or that becomes bound by this Agreement by
     operation of law.

(b)  Executive's Successors. This Agreement and all rights of the Executive
     hereunder shall inure to the benefit of, and be enforceable by, the
     Executive's personal or legal representatives, executors, administrators,
     successors, heirs, distributees, devisees and legatees.


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Section 11.       Miscellaneous Provisions

(a)  Waiver. No provision of this Agreement shall be modified, waived or
     discharged unless the modification, waiver or discharge is agreed to in
     writing and signed by the Executive and by an authorized officer of the
     Company (other than the Executive). No waiver by either party of any breach
     of, or of compliance with, any condition or provision of this Agreement by
     the other party shall be considered a waiver of any other condition or
     provision or of the same condition or provision at another time.

(b)  Whole Agreement. No agreements, representations or understandings (whether
     oral or written and whether express or implied) that are not expressly set
     forth in this Agreement have been made or entered into by either party with
     respect to the subject matter hereof. In addition, the Executive hereby
     acknowledges and agrees that this Agreement supersedes in its entirety any
     employment agreement between the Executive and the Company in effect
     immediately prior to the effective date of this Agreement. As of the
     effective date of this Agreement, such employment agreement shall terminate
     without any further obligation by either party thereto, and the Executive
     hereby relinquishes any further rights that the Executive may have had
     under such prior employment agreement.

(c)  Notice. Notices and all other communications contemplated by this Agreement
     shall be in writing and shall be deemed to have been duly given when
     personally delivered or when mailed by U.S. registered or certified mail,
     return receipt requested and postage prepaid. In the case of the Executive,
     mailed notices shall be addressed to the Executive at the home address that
     the Executive most recently communicated to the Company in writing. In the
     case of the Company, mailed notices shall be addressed to its corporate
     headquarters, and all notices shall be directed to the attention of its
     Corporate Secretary.

(d)  Choice of Law. The validity, interpretation, construction and performance
     of this Agreement shall be governed by the laws of the State of California,
     irrespective of California's choice-of-law principles.

(e)  Severability. The invalidity or unenforceability of any provision or
     provisions of this Agreement shall not affect the validity or
     enforceability of any other provision hereof, which shall remain in full
     force and effect.

(f)  Arbitration. Except as otherwise provided in Section 14 and in the
     enforcement of Section 15, any dispute or controversy arising out of the
     Executive's employment or the termination thereof, including, but not
     limited to, any claim of discrimination under state or federal law, shall
     be settled exclusively by arbitration in San Francisco, California, in
     accordance with the rules of the American Arbitration Association then in
     effect. Judgment may be entered on the arbitrator's award in any court
     having jurisdiction.

(g)  No Assignment of Benefits. The rights of any person to payments or benefits
     under this Agreement shall not be made subject to option or assignment,
     either by voluntary or involuntary assignment or by operation of law,
     including (without limitation) bankruptcy, garnishment, attachment or other
     creditor's process, and any action in violation of this Subsection (i)
     shall be void.


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(h)  Employment at Will; Limitation of Remedies. The Company and the Executive
     acknowledge that the Executive's employment is at will, as defined under
     applicable law. If the Executive's employment terminates for any reason,
     the Executive shall not be entitled to any payments, benefits, damages,
     awards or compensation other than as provided by this Agreement.

(i)  Employment Taxes. All payments made pursuant to this Agreement shall be
     subject to withholding of applicable taxes.

(j)  Benefit Coverage Non-Additive. In the event that the Executive is entitled
     to life insurance and health plan coverage under more than one provision
     hereunder, only one provision shall apply, and neither the periods of
     coverage nor the amounts of benefits shall be additive.

IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case
of the Company by its duly authorized officer, as of the day and year first
above written. Executive has consulted (or has had the opportunity to consult)
with his own counsel (who is other than the Company's counsel) prior to
execution of this Agreement.

                              -------------------------------------------
                                         Joseph A. Wagda




                              BrightStar Information Technology Group, Inc.

                              By the Compensation Committee of the Board


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