Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Brighstar Corp. Form S-1 HTML 1.42M
2: EX-4.1 Form of Common Stock Certificate 4 22K
3: EX-4.2 Certificate of Designation 34 124K
4: EX-4.3 Stockholders' Agreement 41 165K
5: EX-4.4 Purchase Agreement 246 961K
6: EX-4.5 Redemption Agreement 8 47K
7: EX-10.1 Amended & Restated Distribution Agreement 32 129K
W/Motorola
16: EX-10.10 Kyocera Wireless Corp. Supply Agreement 6 44K
17: EX-10.11 Amendment to Supply Agreement W/Kyocera 1 18K
18: EX-10.12 Amendment No. 2 to Supply Agreement W/Kyocera 2± 19K
19: EX-10.13 Amendment No. 3 to Supply Agreement W/Kyocera 1 18K
20: EX-10.14 Amendment No. 4 to Supply Agreement W/Kyocera 2 20K
21: EX-10.15 Amendment No. 5 to Supply Agreement W/Kyocera 2± 19K
22: EX-10.16 Contract for Services W/Otecel S.A. 42 170K
23: EX-10.17 Operating Agreement W/Narbitec 33 128K
24: EX-10.18 First Amendment to Operating Agreement 3 21K
25: EX-10.19 Development and Supply Agreement W/Csi Wireless 44 190K
8: EX-10.2 Exclusive Distribution Agreement W/Motorola 19 73K
26: EX-10.20 First Amendment to Development and Supply 16 67K
Agreement
27: EX-10.21 Employment Agreement / Denise Gibson 11 66K
28: EX-10.22 Executive Employment Agreement/ Marcelo Claure 17 90K
29: EX-10.23 Executive Employment Agreement W/Oscar Fumagali 10 60K
30: EX-10.24 Independent Contractor Agreement/ Victor Raul 8 41K
Califa
31: EX-10.25 Independent Contractor Agreement/ Carlos M. Touyaa 8 41K
32: EX-10.26 Industrial Multi-Tenant Lease 40 183K
33: EX-10.27 Lease Agreement 94 395K
34: EX-10.28 Factoring Agreement/ Factor Banarte 18 118K
35: EX-10.29 Factoring Agreement/ Bbva Bancomer, S.A. 15 65K
9: EX-10.3 Motorola Master Distributor Agreement 23± 94K
36: EX-10.30 Revolving Credit and Security Agreement W/Pnc Bank 131 511K
37: EX-10.31 Amended and Restated Payment Terms Agreement 22 101K
W/Motorola
38: EX-10.32 Intercreditor Agreement W/Motorola 29 124K
39: EX-10.33 Amended and Restated Stock Pledge and Security 14 63K
Agreement W/Motorola
40: EX-10.34 Limited Security Agreement W/Motorola 22 91K
41: EX-10.35 Security Agreement W/Motorola 22 98K
42: EX-10.36 Amended and Restated Security Agreement W/Motorola 13 67K
43: EX-10.37 Amended and Restated Unconditional Guaranty/ 9 45K
Brightstar Corp W/Motorola
44: EX-10.38 Amended and Restated Unconditional Guaranty/ 9 45K
Brightstar U.S.,Inc. W/Motorola
45: EX-10.39 Unconditonal Guaranty W/Motorola 16 70K
10: EX-10.4 Amendment One to Motorola Master Distributor 3 25K
Agreement
46: EX-10.40 Amended and Restated Personal Guaranty W/Motorola 5 32K
47: EX-10.41 Stock Pledge and Security Agreement W/Motorola 11 51K
48: EX-10.42 Amended and Restated Security Agreement W/Motorola 14 67K
49: EX-10.43 Amended and Restated Stock Pledge and Security 10 49K
Agreement/ Motorola
50: EX-10.44 Amended and Restated Pledge Agreement/Telcel C.A. 8± 42K
51: EX-10.45 Promissory Note W/American Express 5± 32K
52: EX-10.49 Purchase Agreement/El Salvador 14 64K
11: EX-10.5 First Amendment to Motorola Master Distributor 2 20K
Agreement
53: EX-10.50 Amendment No. 1 to Purchase Agreement /El Salvador 2 21K
54: EX-10.51 Purchase Agreement/ Guatemala 14 64K
55: EX-10.52 Amendment No. 1 to Purchase Agreement/Guatemala 2 23K
56: EX-10.53 2004 Stock Incentive Plan 20 89K
57: EX-10.54 Cellular Essential Properties Cross License Agmt 17 58K
12: EX-10.6 U.S. Distribution Agreement W/Motorola 30 105K
13: EX-10.7 Distributor Agreement W/Sendo America, Inc. 26 100K
14: EX-10.8 Distribution Agreement W/Sagem S.A. 33 117K
15: EX-10.9 Distributor Agreement W/Samsung 16 68K
58: EX-21 List of Subsidiaries 1 18K
59: EX-23.2 Consent of Deloitte & Touche LLP 1 17K
EXHIBIT 10.51
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is entered into this first day
of July 2004, by and among BRIGHTSTAR CORP., a Delaware corporation
("Brightstar"), RAUL MARCELO CLAURE ("Claure"), BRIGHTSTAR GUATEMALA, S.A., an
entity formed under the laws of Guatemala (the "Company") and J Y M
INMOBILIARIA, S.A. DE C.V., an entity formed under the laws of the Republic of
El Salvador ("Seller") and acknowledged and accepted by Seller's sole
shareholder, ANA MARGARITA FLORES DE MARTINEZ ("Margarita") and SEBASTIAN DE
JESUS MARTINEZ ("Sebastian"). Brightstar and Claure shall collectively be
referred to as "Buyer" and Margarita and Sebastian shall collectively be
referred to as "Seller's Shareholders".
RECITALS
WHEREAS, Seller owns Four Thousand Four Hundred Thirty-Seven (4,437)
shares of the Company's stock, which constitute a forty-nine percent (49%)
ownership interest (the "Seller's Interest") in the Company; and
WHEREAS, Seller desires to sell to Buyer and Buyer desires to purchase
from Seller Seller's Interest on the terms and conditions set forth in this
Agreement.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Recitals. The above recitals are true and correct and are incorporated
into this Agreement by this reference.
2. Sale and Purchase. Subject to the terms and conditions of this
Agreement, Seller hereby irrevocably sells, transfers and assigns to (i) one
share of the Seller's Interest to Claure ("Claure's Purchased Interest") and
(ii) Four Thousand Four Hundred Thirty-Six (4,436) shares of the Seller's
Interest to Brightstar (the "Brightstar Purchased Interest"); and Brightstar and
Claure hereby purchase and acquire from Seller, free and clear of all mortgages,
liens, charges, claims, pledges, encumbrances, security interests and rights of
other persons and entities of every nature and description whatsoever
(collectively, the "Encumbrances"), Seller's Interest, and all of Seller's
rights, title and interest in and to Seller's Interest, in the proportions set
forth hereinabove and for the consideration set forth in Section 3 below.
3. Purchase Price.
(a) Net Book Value. The net book value of the Company as of May 31,
2004 was One Million Eight Hundred Eighty-Seven Thousand Five Hundred Sixty-Nine
US Dollars (US$1,887,569) (the "Net Book Value"). For purposes of this
Agreement, the Net Book Value represents the Company's total stockholders equity
as determined in accordance with accounting principles generally accepted in the
United States of America ("US").
(b) Interest Expense Allocation. Due to an interest expense that
should have been allocated to the Company relating to that certain Twenty Four
Million Dollar ($24,000,000) loan by Ocean Bank in 2003, which loan was
terminated in April 2004, the Company is subject to an adjustment of an interest
expense allocation of One Hundred Thirteen Thousand Eight Hundred Twenty-Seven
US Dollars (US$113,827). At a tax rate of 31%, the applicable after-tax interest
expense adjustment is equal to Seventy Eight Thousand Five-Hundred Forty One US
Dollars (US$78,541) (the "Interest Expense Allocation").
(c) Calculation of Purchase Price. In consideration for Seller's
Interest, Buyer shall pay to Seller the sum of Four Hundred Seventy Nine
Thousand Four Hundred Eighty-Six U.S. Dollars (US$479,486) (the "Purchase
Price"), representing forty-nine percent (49%) of: (i) the Net Book Value, minus
(ii) the Prepayment (defined in Section 4(b)), minus (iii) the Interest Expense
Allocation. Claure shall pay One Hundred Eight US Dollars (US$108) of the
Purchase Price to Seller that is payable to Seller pursuant to Section 3(d)(i)
below as set forth in Section 7(b).
(d) Payment of Purchase Price. The Purchase Price shall be payable
as follows: (i) Two Hundred Eighty-Seven Thousand Six Hundred Ninety-Two U.S.
Dollars (US$287,692), subject to Section 4(a) hereof, payable as set forth in
Section 7(b) and 7(c)(i), (iii) and (iv) in immediately available funds; and
(ii) One Hundred Ninety One Thousand Seven Hundred Ninety-Four U.S. Dollars
(US$191,794), payable in shares of Brightstar common stock, $0.0001 par value
("Brightstar Stock"). The number of shares of Brightstar Stock transferred to
Seller pursuant to subsection (d)(ii) hereof shall be calculated by dividing the
dollar value reflected in subsection (d)(ii) hereof by the price per share of
the Brightstar Stock, which price shall be equal to its fair market value as
determined by the valuation study currently prepared by Houlihan Lokey Howard
and Zukin, an independent valuation company ("HLHK"), on or about June 2004 (the
"HLHK Valuation Report").
4. Post-Closing Audit.
(a) Standard Audit. Except as set forth in Section 4(b), Brightstar
shall have a period of thirty (30) days to conduct a post-closing audit of the
books and records of the Company to verify the Net Book Value of the Company as
of May 31, 2004. In the event the audit discloses that the Net Book Value of the
Company is materially less (i.e., a difference of 2% or greater than the net
book value used in calculating the Purchase Price set forth Section 3 hereof),
then Seller shall deduct forty-nine percent (49%) of such difference in the Net
Book Value (the "NBV Difference") from the amounts payable by Brightstar to
Seller pursuant to Sections 7(c)(iii) and (iv) hereof. If the amounts deducted
pursuant to this Section 4(a) are less than the NBV Difference, then Seller
shall refund, within fifteen (15) days of receiving notice of such NBV
Difference, the difference between the NBV Difference and the amounts deductable
pursuant to this Section 4(a).
(b) Pre-paid Taxes. Brightstar has, on behalf of the Company,
pre-paid approximately Eight Hundred Thirty Thousand Four Hundred Eighty-Five US
Dollars (US$830,485) in taxes to the taxing authorities in Guatemala (the
"Prepayment"), for which it will request a full refund. The parties hereto agree
that in the event that Brightstar receives a full refund of the Prepayment,
Brightstar shall pay Seller Four Hundred Six Thousand Nine Hundred
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Thirty-Eight US Dollars (US$406,938) (i.e., forty-nine percent (49%) of the
amount of the Prepayment recovered by Brightstar) (the "Prepayment Refund"). If
Brightstar receives a partial or no refund of the Prepayment, the parties agree
that Seller shall not be entitled to any Prepayment Refund. The Prepayment
Refund shall be payable within fifteen days of Brightstar's receipt of the
Prepayment Refund, as follows: (i) Two Hundred Forty-Four Thousand One Hundred
Sixty-Three US Dollars (US$244,163) shall be payable in immediately available
funds, and (ii) One Hundred Sixty-Two Thousand Seven Hundred Seventy-Five US
Dollars (US$162,775) shall be payable in Brightstar Stock. For purposes of this
Section 4(b), the number of shares transferred to Seller pursuant to subsection
(b)(ii) hereof shall be calculated by dividing the dollar value reflected in
subsection (b)(ii) hereof by: (x) the fair market value per share of the
Brightstar Stock as determined by HLHK at the time such Prepayment Refund is due
to Seller or, (y) if Brightstar has already undergone its initial public
offering, the closing price of the Brightstar Stock on the day immediately
preceding the date that the Prepayment Refund is due, as listed on a the Nasdaq
National Market, the Nasdaq SmallCap Market, the American Stock Exchange, the
OTC Bulletin Board or the New York Stock Exchange, whichever is at the time the
principal trading exchange or market for the stock of Brightstar.
5. Resignations. Seller shall cause Margarita to resign in writing from
any position as offider, director or employee of the Company as of the Closing
Date. Attached hereto as Exhibit A is the form resignation to be executed by
Margarita.
6. Closing. The closing of the transactions contemplated herein (the
"Closing") shall take place on or before July 6, 2004 (the "Closing Date") at
the principal executive offices of Brightstar in Miami, Florida or, if the
parties agree, they may close via telephone and facsimile.
7. Closing Deliveries.
(a) Deliveries of Seller. At the Closing, Seller shall deliver the
following:
(i) Stock certificates or other written instruments
representing Seller's Interest, together with endorsements thereof or valid
stock powers thereto executed by Seller and duly transferring Claure's Purchased
Interest to Claure and Brightstar's Purchased Interest to Brightstar; and
(ii) Margarita's written resignation pursuant to Section 5
hereof in the form attached hereto as Exhibit A.
(b) Deliveries of Claure. At the Closing, Claure shall deliver to
Seller One Hundred Eight US Dollars (US$108) payable by wire transfer or other
method of payment acceptable to Seller.
(c) Deliveries of Brightstar. Brightstar shall deliver the following
to Seller:
(i) At the Closing, Ninety Five Thousand Seven Hundred
Eighty-Nine US Dollars (US$95,789) payable by wire transfer or other method of
payment acceptable to Seller;
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(ii) Within fifteen (15) calendar days from the Closing Date,
the stock certificates or other written instruments representing the Brightstar
Stock payable to Seller pursuant to Section 3(ii) hereof; and
(iii) Within Thirty (30) calendar days from the Closing Date,
subject to Section 4(a), Ninety-Five Thousand Eight Hundred Ninety-Seven US
Dollars (US$95,897), payable by wire transfer or other method of payment
acceptable to Seller; and
(iv) Within sixty (60) calendar days from the Closing Date,
subject to Section 4(a), Ninety-Five Thousand Eight Hundred Ninety-Seven US
Dollars (US$95,897) payable by wire transfer or other method of payment
acceptable to Seller.
8. Further Documentation. Each party hereto shall execute and deliver or
cause to be executed and delivered upon execution hereof and from time to time
hereafter, upon request, all such further documents and instruments, and shall
do and perform all such acts as may be reasonably necessary to give full effect
to the intent of this Agreement.
9. Restrictive Covenants.
(a) Restriction of Transfer of Brightstar Stock. As a material
inducement for Buyer and the Company to enter into this Agreement, Seller hereby
acknowledges and agrees that Seller shall comply with all of the contractual and
US Securities and Exchange Commission restrictions imposed upon Claure with
respect to the sale, transfer or disposal of shares of Brightstar common stock.
(b) Confidentiality. As a material inducement for Buyer and the
Company to enter into this Agreement, Seller and Seller's Shareholders hereby
acknowledge and agree that all information relating to Brightstar, Claure, the
Company and their respective affiliates, shareholders, directors, officers,
employees, agents, successors and assigns (for purposes of this Section 9 the
"Brightstar Parties"), including, without limitation, information regarding the
Brightstar Parties' business, investments and potential business and
investments, trade secrets, financial information, marketing and business plans,
investment and management strategies, methods of providing services, practices,
documentation, drawings, development and technical information, facilities,
contracts, customers, policies, suppliers, pricing, customer lists and leads,
and other information and know-how has actual or potential economic value to the
Brightstar Parties, is not generally known to others and is not readily
ascertainable by them ("Confidential Information"). The Confidential Information
constitutes a valuable, special and unique asset of the Brightstar Parties,
access to and knowledge of which are essential to the business of the Brightstar
Parties. In light of the highly competitive nature of the industry in which the
Brightstar Parties are engaged, Seller and Seller's Shareholders acknowledge and
agree that all such Confidential Information, heretofore or in the future
obtained by Seller or Seller's Shareholders, whether or not such information has
been specifically designated by the Brightstar Parties as Confidential
Information, shall be deemed to be Confidential Information. The Seller and
Seller's Shareholders shall not, and shall ensue that its officers, directors,
shareholders, employees and agents do not, for a period of five (5) years from
the Closing Date, disclose either directly or indirectly, to any other person,
partnership, corporation, limited liability company or
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other entity any of the Confidential Information of the Brightstar Parties or
use any of the Confidential Information.
(c) Non-Compete. Unless otherwise consented to in writing by
Brightstar, as a material inducement for Buyer and the Company to enter into
this Agreement, Seller and Seller's Shareholders warrant, represent and agree
that during the time that Margarita is employed by Brightstar El Salvador, S.A.,
and for a period of three (3) years after the date that such employment is
terminated (which period of time is agreed to by the parties to be reasonable)
neither Seller nor Seller's Shareholders, officers or directors shall (except as
it relates to Seller's ownership of the Brightstar Stock or except as it relates
to Margarita's employment by Brightstar El Salvador, S.A.) in any manner, either
directly or indirectly, including, without limitation, as an owner, investor,
independent contractor, partner, member, joint venturer, shareholder, manager,
officer, director, employee, agent, or licensee, for any person, firm,
partnership, corporation, limited liability company or other entity, engage in
the wholesale distribution or sale of cellular telephones or accessories (the
"Business") anywhere within South America, Central America, Mexico, the
Caribbean or the United States (the "Territory"). Except as consented to in
writing by Brightstar, without limiting the generality of the foregoing, neither
Seller, nor Seller's Shareholders, officers or directors, shall:
(i) Engage in the Business anywhere within the Territory;
(ii) Enter into, be employed by or consult in an association
or business which is the same or similar to the Business, anywhere within the
Territory;
(iii) Divert, directly or indirectly, business from any of the
Brightstar Parties;
(iv) Solicit or cause any person or entity ("Person") to
solicit any employees or agents of any of the Brightstar Parties to terminate
their relationship with any of the Brightstar Parties;
(v) Employ or otherwise engage the services of, or cause or
solicit any Person to employ or otherwise engage the services of, any employee
or agent of any of the Brightstar Parties or any Persons who were employees or
agents of any of the Brightstar Parties within the one (1) year period prior to
the date of this Agreement;
(vi) Solicit or cause any Person to solicit any suppliers,
vendors, customers or clients of any of the Brightstar Parties ("Customers") to
terminate their relationship with any of the Brightstar Parties; or
(vii) Enter into, or cause any Person to enter into, any
contractual or business relationship with a Customer or any Person that was a
Customer of any of the Brightstar Parties during the one (1) year period prior
to the date of this Agreement.
(d) Non-Disparagement. Seller, Seller's Shareholders, and Seller's
officers and directors shall refrain from making any written or oral statement
or taking any action, directly or indirectly, which Seller or Seller's
Shareholders reasonably know or reasonably should know to be a disparaging or
negative comment concerning the Brightstar Parties with the
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intent to injure or damage the Brightstar Parties, and shall refrain from
suggesting that any such disparaging or negative comment concerning the
Brightstar Parties be made except as may be compelled by a court of competent
jurisdiction.
(e) Independent Covenants. The covenants in this Section 9 shall be
deemed severable, and the invalidity of any covenant shall not affect the
validity or enforceability of any other covenant or the validity of this
Agreement. The existence of any claim or cause of action by Seller or Seller's
Shareholders shall not constitute a defense to the enforcement by any of the
Brightstar Parties of these covenants, but shall be litigated separately.
(f) Tolling of Time Periods. The time for calculating the term of
the restrictions contained herein shall not include any period of time during
which the covenant is violated or in which any legal action or other proceeding
is ongoing to enforce the terms of this Agreement through the date of final
judgment or final resolution, including all appeals, if any, of such legal
action or other proceeding, unless the Brightstar Parties fail to prevail in
such action or proceeding.
(g) Legitimate Business Interests. After discussion and consultation
or the opportunity to consult with their respective attorneys, the parties agree
that the Brightstar Parties have a legitimate business interest, which must be
protected under this Agreement. It is further acknowledged between the parties
hereto that the provisions contained in this Agreement are reasonable in terms
of scope, time and geographical location, that the restrictions contained herein
are reasonable restraints upon Seller and further acknowledge that any violation
of the terms of the covenants contained in this Agreement could have a
substantial detrimental effect on the legitimate business interests of the
Brightstar Parties. Seller has carefully considered the nature and extent of the
restrictions imposed upon it and the rights and remedies conferred upon the
Brightstar Parties under the provisions of this Agreement and hereby
acknowledges and agrees that same are designed to and are required to protect
the legitimate business interests of the Brightstar Parties, and do not confer a
benefit upon the Brightstar Parties disproportionate to the detriment of Seller.
(h) Injunctive Relief. It is further recognized and agreed between
the parties hereto that damages at law will be an insufficient remedy to the
Brightstar Parties in the event that Seller or Seller's Shareholders violate the
terms of this Agreement, and that the Brightstar Parties shall suffer
irreparable harm if Seller violates the terms of this Agreement. Therefore, in
the event Seller or Seller's Shareholders breach this covenant, the Brightstar
Parties shall have the right not only to pursue an action at law for damages,
but also to pursue an action for injunctive relief and specific performance of
this covenant from any court of competent jurisdiction without the posting of
any bond.
(i) Reconstruction of Restrictive Covenants. If any portions of the
terms of this Section 9 are held to be unreasonable, arbitrary or against public
policy by a court exercising competent jurisdiction, such portion of the
covenant shall be considered divisible as to both time and geographical area.
The parties agree that if a court of competent jurisdiction determines the
specified time period or specified geographical area applicable to this Section
9 to be unreasonable, arbitrary or against public policy, the lesser time period
or geographical area
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which is deemed to be reasonable, not arbitrary and not against public policy,
shall be enforced against Seller.
(j) Survival of Provisions. The provisions of this Section 9 shall
survive the termination of this Agreement.
10. Releases.
(a) Release of Seller and Seller's Shareholders. Brightstar, Claure
and the Company, on their behalf and on behalf of their respective shareholders,
officers and directors (as applicable) hereby release Seller and Seller's
Shareholders from any and all claims, demands, actions, causes of action,
judgments, damages, losses, expenses (including reasonable attorneys' fees) and
costs ("Claims") arising from or relating to the Company, with the exception of
(i) the gross negligence or willful misconduct of Seller or Seller's
Shareholders; and (ii) the breach by Seller or Seller's Shareholders of any
provision, agreement, representation, warranty or covenant contained herein or
in the Addendum to Employment Agreement by and between Brightstar El Salvador,
S.A. and Margarita, executed as of the date hereof.
(b) Release of Brightstar, Claure and the Company. Seller and
Seller's Shareholders hereby release Brightstar, Claure and the Company and
their respective shareholders, officers and directors (as applicable), from any
and all Claims arising from or relating to the Company, with the exception of
(i) the gross negligence or willful misconduct of any of the indemnified
parties; and (ii) the breach by Brightstar, Claure or the Company of any
material provision, agreement, representation, warranty or covenant contained
herein.
11. Indemnification. Each party hereto (the "Indemnifying Party")
indemnifies and holds the other and the other's affiliates, successors and
assigns, and their respective shareholders, directors, officers, employees and
agents (the "Indemnified Parties"), as applicable, harmless from any and all
Claims arising from or relating to any breach by the Indemnifying Party, its
affiliates, successors, legal beneficiaries or assigns or their respective
shareholders, directors, officers, employees or agents of any agreement,
representation, warranty or covenant contained herein.
12. Representations and Warranties of Seller. Seller hereby represents,
warrants and covenants to Buyer and the Company that as of the date hereof and
as of the Closing Date:
(a) Power and Authorization. Seller has all requisite legal power
and authority to execute and deliver this Agreement and to perform her
obligations under the terms of this Agreement. All actions on the part of Seller
necessary for the authorization, execution, delivery and performance of this
Agreement by her have been performed.
(b) Binding Agreement. This Agreement constitutes legally valid and
binding obligations of Seller enforceable against her in accordance with its
terms. The execution of this Agreement will not constitute a breach of any other
agreement to which Seller is a party and the execution, delivery and performance
of this Agreement by Seller will not, with or without the giving of notice or
the passage of time, or both, conflict with, result in a default, right to
accelerate or loss of rights under, or result in the creation of any Encumbrance
pursuant to, any
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provision of any agreement, understanding, law, rule or regulation or any order,
judgment or decree to which Seller is a party or by which Seller is bound.
(c) Ownership. Seller is the sole legal and beneficial owner of
Seller's Interest and Seller's Interest, upon consummation of the transactions
contemplated hereby, will be validly issued, fully paid and non-assessable and
will have the rights, preferences, privileges and restrictions described in the
Company's organizational documents, and Seller's Interest will be free of any
Encumbrances. The Seller's Interest represent all of Seller's ownership interest
in the Company, and after the execution hereof, Seller shall have no rights,
title or interest in any shares of capital stock or other equity securities of
the Company and Seller has no options, warrants or other rights, whether
contractual, equitable or otherwise, to purchase any equity interest in the
Company. The certificates representing Seller's Interest are, and the signatures
and endorsements thereof or stock powers relating thereto will be, valid and
genuine.
(d) Litigation. There are no actions, suits, proceedings or
investigations pending or threatened against Seller, which would affect Seller's
Interest, before any court or governmental agency and there is no reasonable
basis therefore.
(e) Disclosure. This Agreement does not contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements contained herein not misleading in light of the circumstances
under which they were made.
(f) Securities Act. Seller hereby acknowledges and agrees that the
Brightstar Stock payable to Seller has not been registered under the Securities
Act of 1933, as amended (the "Securities Act"), and may be transferred pursuant
only to the registration under such Securities Act or an exemption therefrom.
Seller hereby acknowledges and agrees that Seller is not a "U.S. Person", as
defined in Rule 902(k) under the Securities Act.
13. Representations and Warranties of Seller's Shareholders. Seller's
Shareholders represent, warrant and covenant that Seller's Shareholders as of
the date hereof and as of the Closing Date:
(a) Power and Authorization. Seller's Shareholders have all
requisite legal power and authority to execute and deliver this Agreement and to
perform their obligations under the terms of this Agreement.
(b) Binding Agreement. This Agreement constitutes legally valid and
binding obligations of Seller's Shareholders enforceable against them in
accordance with its terms. The execution of this Agreement will not constitute a
breach of any other agreement to which Margarita or Sebastian is a party and the
execution, delivery and performance of this Agreement by Margarita or Sebastian
will not, with or without the giving of notice or the passage of time, or both,
conflict with, result in a default, right to accelerate or loss of rights under,
or result in the creation of any Encumbrance pursuant to, any provision of any
agreement, understanding, law, rule or regulation or any order, judgment or
decree to which Margarita or Sebastian is a party or by which Margarita or
Sebastian is bound.
14. Representations and Warranties of Brightstar. Brightstar represents,
warrants and covenants to Seller that as of the date hereof and as of the
Closing Date:
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(a) Organization. Brightstar is a corporation duly incorporated and
validly existing under, and by virtue of, the laws of Delaware and is in good
standing under such laws.
(b) Power and Authorization. Brightstar, as well as the individual
executing this Agreement on its behalf, has all requisite legal power and
authority to execute and deliver this Agreement and to perform its obligations
under the terms of this Agreement. All actions on the part of Brightstar
necessary for the authorization, execution, delivery and performance of this
Agreement by it have been performed.
(c) Binding Agreement. This Agreement constitutes legally valid and
binding obligations of Brightstar enforceable against it in accordance with its
terms. The execution of this Agreement will not constitute a breach of any other
agreement to which Brightstar is a party and the execution, delivery and
performance of this Agreement by Brightstar will not, with or without the giving
of notice or the passage of time, or both, conflict with, result in a default,
right to accelerate or loss of rights under, or result in the creation of any
Encumbrance pursuant to, any provision of any agreement, understanding, law,
rule or regulation or any order, judgment or decree to which Brightstar is a
party or by which Brightstar is bound.
(d) Disclosure. This Agreement does not contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements contained herein not misleading in light of the circumstances
under which they were made.
15. Representations and Warranties of Claure. Claure represents, warrants
and covenants to Seller that, as of the date hereof and as of the Closing Date:
(a) Power and Authorization. Claurehas all requisite legal power and
authority to execute and deliver this Agreement and to perform his obligations
under the terms of this Agreement.
(b) Binding Agreement. This Agreement constitutes legally valid and
binding obligations of Claure enforceable against it in accordance with its
terms.
16. Representations and Warranties of the Company. The Company represents,
warrants and covenants to Seller that as of the date hereof and as of the
Closing Date:
(a) Organization. The Company is an entity duly organized and
validly existing under, and by virtue of, the laws of Guatemala and is in good
standing under such laws.
(b) Power and Authorization. The Company, as well as the individual
executing this Agreement on its behalf, has all requisite legal power and
authority to execute and deliver this Agreement and to perform its obligations
under the terms of this Agreement. All actions on the part of the Company
necessary for the authorization, execution, delivery and performance of this
Agreement by it have been performed.
(c) Binding Agreement. This Agreement constitutes legally valid and
binding obligations of the Company enforceable against it in accordance with its
terms. The execution of this Agreement will not constitute a breach of any other
agreement to which the Company is a party and the execution, delivery and
performance of this Agreement by the Company will not,
9
with or without the giving of notice or the passage of time, or both, conflict
with, result in a default, right to accelerate or loss of rights under, or
result in the creation of any Encumbrance pursuant to, any provision of any
agreement, understanding, law, rule or regulation or any order, judgment or
decree to which the Company is a party or by which the Company is bound.
(d) Disclosure. This Agreement does not contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements contained herein not misleading in light of the circumstances
under which they were made.
17. Survival. All agreements, representations, warranties and indemnities,
by whomsoever made, contained in this Agreement shall survive the execution and
delivery of this Agreement and the Closing.
18. Miscellaneous Provisions.
(a) Entire Agreement. This Agreement constitutes the entire
agreement among the parties pertaining to the subject matter hereof, and
supersedes and revokes any and all prior or existing agreements, written or
oral, relating to the subject matter hereof, and this Agreement shall be solely
determinative of the subject matter hereof.
(b) Amendments. This Agreement may not be amended, modified,
superseded, canceled, or terminated, except by a written instrument executed by
the parties hereto.
(c) Counterparts. This Agreement may be executed in one or more
counterparts, and any such counterpart shall, for all purposes, be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. All parties acknowledge that a facsimile copy of this Agreement
may be executed and shall have the same binding force and effect, and in such
case each party agrees to execute the appropriate original agreement thereafter
if requested.
(d) Severability. The invalidity or unenforceability of any
provision hereunder (or any portion of such a provision) shall not affect the
validity or enforceability of the remaining provisions (or remaining portions of
such provisions) of this Agreement.
(e) Waiver. The parties hereto may, at any time or times, waive (in
whole or in part) any rights or privileges to which it may be entitled
hereunder. However, no waiver by any party of any condition or of the breach of
any term contained in this Agreement, in any one or more instances, shall be
deemed to be or construed as a further continuing waiver of any other condition
or of any breach of any other terms contained in this Agreement, and no waiver
shall be effective unless it is in writing and signed by the waiving party and
to the extent required, any other prerequisites to a waiver under this Agreement
are satisfied.
(f) Binding Effect and Agreement. This Agreement shall be binding
upon the parties hereto and their respective heirs, personal or other legal
representatives, successors, and permitted assigns.
10
(g) Governing Law; Jurisdiction; Venue; Consent to Service. This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of Florida, determined without regard to provisions of
conflicts of laws. Each of the parties hereto irrevocably consents to the
exclusive jurisdiction of the state and federal courts located in Miami-Dade
County in the State of Florida in any and all actions between or among any of
the parties hereto, whether arising hereunder or otherwise. Venue for any action
arising hereunder shall lie exclusively in Miami-Dade County, Florida. The
parties hereto further agree that service of process, relating to an action
arising hereunder, pursuant to the notice provision set forth in this Agreement
shall be sufficient and hereby waive any claim for insufficiency of process as a
result of a party's use of such method of service.
(h) Enforcement Costs. If any legal action or other proceedings is
brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default or misrepresentation in connection with any provision of this
Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees, court costs and all expenses incurred in that action or
proceeding, in addition to any other relief to which such party may be entitled.
(i) Specific Performance. The Seller's Interest cannot be readily
purchased or sold in the open market, and, for that reason, among others, the
parties hereto will be irreparably damaged (and damages at law would be an
inadequate remedy) if this Agreement is not specifically enforced. Therefore, in
the event of a breach or threatened breach by any party hereto of any provision
hereof, the other party shall be entitled, in addition to all other rights or
remedies, to injunctions restraining such breach, without being required to show
any actual damage or to post any bond or other security, and/or to a decree for
specific performance of the provisions of this Agreement.
(j) Notice. All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed given upon hand delivery by messenger or two (2) days after mailing by
internationally recognized overnight courier (i.e., Federal Express, United
Parcel Service, DHL) addressed to the address set forth below for each party:
If to Brightstar, Claure and/or
the Company: Brightstar Corp.
2010 N.W. 84th Avenue
Miami, Florida 33122
Attn: R. Marcelo Claure
With a copy to: Kirkpatrick & Lockhart LLP
Miami Center, Suite 2000
201 S. Biscayne Blvd.
Miami, Florida 33131
Attn: Clayton E. Parker, Esq.
If to Seller and/or Seller's Shareholders: J y M Inmobiliaria, S.A. de
C.V.
67 Avenida Sur No. 2-D Colonia
Roma
San Salvador, El Salvador CA
11
Attn: Ana Margarita Flores de Martinez
With a copy to: Buffeste Aleman Soto
Calle Padres Aguilar No. 192
Colonia Escalon
San Salvador, El Salvador CA
or to such other address as may be designated by notice complying with the terms
of this Section.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
BRIGHTSTAR:
BRIGHTSTAR CORP.
By: /s/ R. Marcelo Claure
----------------------------
R. Marcelo Claure, President
CLAURE:
/s/ R. Marcelo Claure
----------------------------
R. MARCELO CLAURE, Individually
COMPANY:
BRIGHTSTAR GUATEMALA, S.A.
By:/s/ R. Marcelo Claure
-----------------------------
Name: Raul M. Claure
Title: President & CEO
SELLER:
J Y M INMOBILIARIA, S.A. DE C.V.
By: /s/ Ana Margarita Flores de Martinez
-------------------------------------
Name: Ana Margarita Flores de Martinez
Title: Representante Legal
THIS AGREEMENT WAS ACKNOWLEDGED AND AGREED TO ON THIS FIRST DAY OF JULY, 2004
BY:
SELLER'S SHAREOHOLDERS:
/s/ Ana Margarita Flores de Martinez
------------------------------------
Ana Margarita Flores de Martinez
12
/s/ Sebastian de Jesus Martinez
--------------------------------
Sebastian de Jesus Martinez
13
EXHIBIT A
RESIGNATION
14
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 8/9/04 | | | | | | | None on these Dates |
| | 7/6/04 | | 3 |
| | 5/31/04 | | 1 | | 2 |
| List all Filings |
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