EXHIBIT 10.5
PORTIONS OF THIS DOCUMENT INDICATED BY AN [***] HAVE BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT OF SUCH INFORMATION.
FIRST AMENDMENT TO MOTOROLA
MASTER DISTRIBUTOR AGREEMENT
The First Amendment to Motorola Master Distributor Agreement
("Amendment") is made and entered into effective as of the 1st day of April,
2004 by and between Motorola, Inc., a Delaware corporation, 0000 Xxxx Xxxxxxxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000 ("Motorola") and Brightstar Corp., a Delaware
corporation, having its principal place of business at 0000 X.X. 00xx Xxxxxx,
Xxxxx, Xxxxxxx 00000 ("Master Distributor"), to amend that certain Motorola
Master Distributor entered into and effective as of the 23rd day of January,
2003, by and between Motorola and Master Distributor ("Agreement").
WHEREAS, Motorola and Master Distributor desire to amend the Agreement;
NOW THEREFORE, in consideration of valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. The following specific paragraphs of the Agreement and its Exhibits and
Attachments are hereby amended, as follows:
a. Section 4(b) of the Agreement is hereby deleted in its
entirety.
b. Section 11 (a) of the Agreement is hereby deleted in its
entirety and the following is substituted therefor:
"(a) IF THIS AGREEMENT IS TERMINATED OR EXPIRES, OR IF
MOTOROLA CANCELS ANY OF MASTER DISTRIBUTOR'S ORDERS FOR THE
PRODUCTS WHICH REMAIN UNDELIVERED ON THE EFFECTIVE DATE OF ANY
TERMINATION OR EXPIRATION OF THIS AGREEMENT, MOTOROLA SHALL
NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, BUT NOT
LIMITED TO, ANY CLAIM FOR LOSS OF PROFITS OR PROSPECTIVE
PROFITS) WHICH ARE IN ANY WAY RELATED TO THE SALE OR PURCHASE
OF PRODUCTS UNDER THIS AGREEMENT."
c. Section A(5) of Attachment B is amended by deleting the last
sentence of such subsection.
d. The first sentence of Section A(9) of Attachment B is amended
by deleting the phrase [***] and substituting
therefor the phrase [***]
e. A new second sentence is added to Section A(9) of Attachment B
as follows:
[***]
2. Except as otherwise specifically superceded by this Amendment, the
terms and provisions of the Agreement shall remain in full force and
effect.
3. Unless expressly provided otherwise, all capitalized terms used herein
but not otherwise defined shall have the meaning assigned to them in
the Agreement.
4. In the event of any conflict between the provisions of this Amendment
and the Agreement or any prior amendment, the provisions of this
Amendment shall take precedence.
IN WITNESS WHEREOF, the undersigned have executed this Amendment in
duplicate, as of the day and year first above written.
MANUFACTURER:
MOTOROLA, INC.
By /s/ Xxxxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxxxx
--------------------------
Title: VP & GM Motorola Company
--------------------------
MASTER DISTRIBUTOR:
BRIGHTSTAR CORP.
By /s/ Oscar Fumgali
-----------------------------
Name: Oscar Fumgali
--------------------------
Title: Chief Financial Officer
--------------------------
