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.
EXHIBIT 10.33
AMENDED AND RESTATED STOCK PLEDGE AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED STOCK PLEDGE AND SECURITY AGREEMENT (the
"Agreement") is made as of April 23, 2004, by Xxxx X. Xxxxxx and Xxxxx X.
Xxxxxxxx (collectively, the "Pledgor"), in favor of MOTOROLA, INC., a Delaware
corporation, in its capacity as agent for itself and the other Motorola Parties
(in such capacity, the "Secured Party").
Preliminary Statements
(a) The Pledgor entered into a stock pledge and security agreement dated
June 18, 2001 (the "Original Pledge Agreement"), in favor of Motorola, Inc.
(b) The Original Pledge Agreement was amended by (i) an Omnibus Amendment
made as of May 24, 2002, by and among the Pledgor, Motorola, Inc. and the other
parties thereto and (ii) an Amendment and Consent to Falcon Transactions made as
of December 30, 2003, by and among the Pledgor, Motorola, Inc. and the other
parties thereto.
(c) The Pledgor and the Secured Party desire to further amend the Original
Pledge Agreement and to restate it in its entirety as so further amended.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree to amend and restate the Original Pledge
Agreement in its entirety as follows:
1. Definitions. All capitalized terms used but not defined in this
Agreement have the meanings given in the Amended and Restated Payment Terms
Agreement, dated as of April 23, 2004, by and among Motorola, Inc. (in its
capacity as agent for itself and the other Motorola Parties), Brightstar Corp.
and the other persons and entities that are parties thereto (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the
"Payment Terms Agreement").
"Collateral" shall mean collectively (i) the Pledged Stock (as defined
herein) together with any other securities which the Pledgor is required to
deliver to the Secured Party hereunder and (ii) the Proceeds (as hereinafter
defined) of the foregoing.
"Pledged Stock" shall have the meaning given to such term in Section 5(b)
hereof.
"Proceeds" shall mean whatever is received when any of the Pledged Stock
is sold, exchanged, collected or otherwise disposed of, including cash, payment
of money, chattel paper, security agreements and other documents.
2. Amendment and Restatement; Guaranties and Liens Unimpaired. This
Agreement amends, restates and replaces the Original Pledge Agreement in its
entirety. It is the intention and understanding of the parties that (a) this
Agreement shall continue the obligations under the Original Pledge Agreement
(and any Brightstar Obligations represented, guarantied or secured thereby) and
shall not act as a novation of the Original Pledge Agreement (or any Brightstar
Obligations represented, guarantied or secured thereby), (b) all guaranties and
all
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security interests, pledges and other liens guarantying or securing the Original
Pledge Agreement (or any Brightstar Obligations represented, guarantied or
secured thereby) shall remain in full force and effect and shall guarantee and
secure this Agreement (and all Brightstar Obligations represented, guarantied or
secured thereby), and (c) the priority of all guaranties and all security
interests, pledges and other liens guarantying or securing any obligations under
the Original Pledge Agreement (or any Brightstar Obligations represented,
guarantied or secured thereby) shall not be impaired by the execution, delivery
or performance of this Agreement.
3. Creation of Security Interest. To secure the prompt payment and
performance of the Brightstar Obligations, the Pledgor hereby grants, bargains,
hypothecates, assigns, transfers, sets over to the Secured Party, a first
priority security interest in and to the Collateral. Until termination of the
security interest as provided hereinafter, the pledge, assignment, transfer,
setting over, conveyance and delivery of, and security interest in, all the
Collateral hereby shall continue in full force and effect.
4. Joint and Several Nature. The obligations, representations and
warranties of the Pledgor hereunder are the joint and several obligations,
representations and warranties of each of Xxxx X. Xxxxxx and Xxxxx X. Xxxxxxxx.
5. Representations and Warranties. The Pledgor represents and warrants to
the Secured Party, as follows:
(a) Collateral.
(i) The Pledgor has all right, title and interest in and to
the Collateral, and that the Pledgor shall warrant and defend the Secured
Party's security interest against the claims of all persons whomsoever.
(ii) Except as granted herein, the Collateral is not subject
to any agreement, trust, pledge, charge, option, restriction, claim,
demand, security interest, lien or encumbrance or any kind or nature and
the Pledgor has not disposed of any interest in the Collateral.
(iii) The Pledgor has full right, power and lawful authority
to transfer, convey, assign and pledge the Collateral to the Secured
Party.
(iv) This Agreement creates and constitutes and will at all
times constitute a valid, direct and paramount security interest in the
Collateral.
(v) The Pledgor has complied with all foreign, federal and
state laws and regulations applicable to the pledge of the Collateral, and
no consents are required to make the pledge effective.
(b) The Pledged Stock. The Pledgor owns all of the ownership, voting
and all other rights in 20,869,213 shares of the capital stock of Brightstar
Corp., a Delaware corporation ("Brightstar"). All of the foregoing right, title
and interest of the Pledgor, and all shares resulting from the exercise of any
options, warrants or other contractual rights to acquire additional shares in
Brightstar and all distributions on all of the foregoing, whether in kind, in
the form of
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additional shares of stock of Brightstar or in cash, is subject to the pledge
being granted herein, and all of the foregoing is referred to as the "Pledged
Stock". To the extent any of the foregoing may also be considered Proceeds, the
characterization shall be such as better protects the security interest of the
Secured Party, it being the intent of the parties hereto that the
characterization of the interests being granted herein should not adversely
effect the Secured Party.
(c) Further Representations and Warranties. The execution, delivery
and performance of this Agreement will not (A) violate any provisions of (i)
law; (ii) any order of any court or other agency of government applicable to the
Pledgor or its property; or (iii) any agreement to which the Pledgor is a party
or by which the Pledgor or any of its properties is bound, or (B) be in conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under, any such indenture, agreement or other instrument, or
result in the creation or imposition of any lien, charge or encumbrance of any
nature whatsoever upon the Collateral.
6. Affirmative Covenants of the Pledgor. The Pledgor covenants and agrees
with the Secured Party that the Pledgor will:
(a) Deliver Collateral. (i) Deliver to the Secured Party
simultaneously with the execution of this Agreement and shall continuously at
all times maintain with the Secured Party during the term hereof, the Pledged
Stock, including original stock certificates evidencing the Pledged Stock; and
(ii) at all times will execute and deliver such instruments as the Secured Party
may request, including but not limited to stock powers endorsed in blank, in
order to assign to the Secured Party and confirm unto the Secured Party the
pledge of all rights of the Pledgor arising from the ownership of the Pledged
Stock. At the time of execution hereof, the number of shares of Brightstar
issued and outstanding and the record and beneficial ownership thereof is listed
on Schedule 6(a) hereof. Delivery and custody of the Pledged Stock will be in
the manner selected by the Secured Party and shall be held by such persons as
the Secured Party, in its discretion, may designate.
(b) Transfer Legends. (i) Cause the issuer of the Pledged Stock (a)
to maintain appropriate stop transfer legends in its corporate stock record
books prohibiting any attempted transfer thereof by the Pledgor; and (ii) to
place on each of the stock certificates evidencing the Pledged Stock a legend in
form acceptable to the Secured Party to the general effect of serving to notify
any third party of the security interest of the Secured Party in the Pledged
Stock evidenced by the particular stock certificate.
(c) Other Provisions. Comply with each and every other provision of
this Agreement and promptly do or refrain from doing such acts as the Secured
Party may reasonably request to effectuate the provisions and purposes of this
Agreement.
(d) Representations and Warranties. Perform such other actions as
may be necessary to ensure that all representations and warranties made
hereunder shall be true and correct during the term hereof.
7. Negative Covenant of the Pledgor. The Pledgor covenants and agrees with
the Secured Party that it will not contract, create, assume, incur or suffer to
be created, assumed or
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incurred or to exist any mortgage, lien, security interest, charge or
encumbrance of any kind, upon, or pledge of, any of the Collateral other than
that in favor of the Secured Party, or attempt to sell, transfer or convey any
interest in the Collateral, and will pay or cause to be paid prior to
delinquency all taxes, fees, assessments or other charges now or hereafter
imposed upon the Collateral.
8. No Additional Stock Issued. The Pledgor covenants and agrees with the
Secured Party that it will not permit the issuance of any additional shares of
capital stock of Brightstar, except for (a) shares of Convertible Preferred
Stock (as defined in that certain Certificate of Designation of the Powers,
Preferences and Relative, Participating Optional and Other Special Rights of
8.0% Senior Cumulative Convertible Preferred Stock, Series A, and
Qualifications, Limitations and Restrictions Thereof as in effect on December
30, 2003 (the "Certificate of Designation"), (b) the Conversion Shares (as
defined in the Certificate of Designation), and (c) options granted to employees
other than the Pledgor which shall not exceed 10% of Brightstar's outstanding
capital stock and voting rights, without the prior written consent of the
Secured Party, which consent shall not be unreasonably withheld.
9. Rights and Remedies of the Secured Party. Upon the occurrence of any
Default or Event of Default, then and in addition to all other rights and
remedies set forth herein:
(a) The Secured Party shall have the right from time to time, in any
commercially reasonable manner, to sell, resell, assign, transfer and deliver
all or any part of, or otherwise realize the value of any of the property in
which the Secured Party has a security interest hereunder, at any brokers' board
or exchange, or at public or private sale or otherwise, at the option of the
Secured Party, for cash or on credit for future delivery, in such parcel or
parcels and at such time or times and at such place or places, and upon such
terms and conditions as the Secured Party may deem proper, and in connection
therewith may grant options and may impose reasonable conditions, all without
(except as shall be required by any applicable statute which cannot be waived)
advertisement or demand upon or notice to the Pledgor or right of redemption of
the Pledgor, all of which are hereby expressly waived, except where any such
rights cannot be waived under any applicable law;
(b) Upon any public sale, the Secured Party may, unless prohibited
by any applicable statute which cannot be waived, purchase all or any part of
any such property being sold, free from and discharged of all trust, claims,
rights of redemption and equities of the Pledgor, which are hereby waived and
released, unless preserved by any applicable statute which cannot be waived;
(c) The Secured Party shall have the right to receive, endorse,
assign or deliver in its own name or the name of the Pledgor any and all checks,
drafts and other instruments for the payment of money relating to the Collateral
and the Pledgor hereby waives notice of presentment, protest and nonpayment of
any instruments so endorsed. In furtherance of the foregoing, the Pledgor hereby
irrevocably appoints the Secured Party, or any of its officers or designees, as
the Pledgor's true and lawful agent and attorney-in-fact, with power of
substitution, (i) to sign the name of the Pledgor to any Collateral pledged
hereunder, including, but not limited to, transferring such Collateral in the
name of the Secured Party or its assigns; (ii) to commence and prosecute any and
all suits, actions or proceedings at law or in equity in any court of
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competent jurisdiction to collect or otherwise realize on all or any of the
Collateral or to enforce any rights in respect thereof; (iii) to settle,
compromise, compound, adjust or, defend any actions, suits or proceedings
relating to or pertaining to all or any of the Collateral; (iv) to execute such
other and further grants, mortgages, pledges and assignments of the Collateral
as the Secured Party may reasonably require for the purpose of protecting or
maintaining the security interest granted to the Secured Party; (v) to vote the
Collateral, or any of it, in such manner and for such purposes as the Secured
Party may, in its sole and absolute discretion, desire, including, but not
limited to, voting to remove any or all of the then existing directors, officers
or partners of the issuer of the Pledged Stock or any subsidiary thereof and
selling the Collateral on such terms as the Secured Party shall desire;
provided, however, unless and until an Event of Default has occurred and has
continued beyond the expiration of any applicable cure period, that the
foregoing shall not prohibit the Pledgor from voting or collecting dividends
with respect to the Collateral if not prohibited under any agreement with the
Secured Party; and (vi) generally to perform all other acts the Secured Party in
its sole discretion deems necessary or proper to carry out the intention of this
Agreement, as fully and completely as though the Secured Party were the absolute
owner of the Collateral for all purposes, and the Pledgor hereby ratifies and
confirms all that the Secured Party, as such agent or attorney-in-fact, or its
substitutes, shall do by virtue of this appointment and grant of power. The
Pledgor agrees that the Secured Party may notify the issuer of the Pledged Stock
that the Collateral has been assigned to the Secured Party or of the Secured
Party's security interest therein, and that the Pledgor shall deal with the
Secured Party directly. The Secured Party shall not be responsible nor liable
for any shortage, discrepancy, damage, loss or destruction of any part of the
Collateral wherever the same may be located regardless of the cause thereof,
including, in particular, the negligence of the Secured Party, unless the same
shall happen through gross negligence or willful misconduct of the Secured
Party. The Secured Party shall not, under any circumstances or any event
whatsoever, unless the same shall happen through gross negligence or willful
misconduct of the Secured Party, have any liability for any error or omission or
delivery of any kind made in the settlement, collection or payment of any of the
Collateral or of any instrument received in payment therefor or for any damage
resulting therefrom. The foregoing limitation of liability shall apply
regardless of whether such loss shall be caused by the negligence of the Secured
Party. The costs of collection, notification and enforcement, including, but not
limited to, counsel fees and out-of-pocket expenses, shall be borne solely by
the Pledgor, whether the same are incurred by the Secured Party or the Pledgor;
(d) The Pledgor will, upon the receipt by it of any payments,
revenue, income, profits or other sums in which, or resulting from any
Collateral in which a security interest is granted by this Agreement or of any
check, draft, note, trade acceptance or other instrument evidencing an
obligation to pay any such sum, hold the same in trust for the Secured Party in
precisely the form received, and will forthwith, without any notice or demand
whatsoever (all notices, demands or other actions on the part of the Secured
Party being hereby expressly waived), endorse, transfer and deliver any such
sums or instruments, or both, to the Secured Party for prompt application to the
payment of the Brightstar Obligations in a manner satisfactory to the Secured
Party; and
(e) The Secured Party shall have the right to require the Pledgor to
notify the issuers of securities pledged hereunder or the paying agents therefor
to make payments owed
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thereunder directly to the Secured Party, and to collect any or all accounts or
proceeds, or to sell, transfer, compromise, discharge, extend or xxx for the
whole or any part of such accounts.
(f) The Secured Party will exercise its remedies under this Section
6 in accordance with the applicable provisions of Chapter 679 of the Florida
Statutes.
10. Notification of Disposition. If any notification of intended
disposition of any property described herein or of any other intended action of
the Secured Party is required by any applicable law, such notification shall be
deemed reasonably and properly given if mailed to the Pledgor at the address set
forth herein at least ten (10) Business Days before such disposition or other
intended action.
11. Remedies Cumulative. All options, powers and rights granted to the
Secured Party hereunder, or under any guarantee or other document or writings
delivered to the Secured Party by the Pledgor, shall be cumulative and shall be
in addition to any other options, powers or rights which the Secured Party may
now or hereafter have as a secured party under the Florida Uniform Commercial
Code or under any other applicable law or otherwise.
12. Expenses, Etc. The Pledgor will reimburse the Secured Party for all
reasonable expenses (including reasonable expenses for legal services of every
kind) of, or incidental to the enforcement of any of the provisions of, this
Agreement or any actual or attempted sale, or any exchange, enforcement,
collection, compromise or settlement of any of the Collateral and for the care
of the Collateral and defending or asserting the rights and claims of the
Secured Party in respect of the Collateral, by litigation or otherwise,
including, but not limited to, reasonable fees and expenses of counsel for the
Secured Party. All such expenses shall be secured by this Agreement.
13. Delay. No delay on the part of the Secured Party in exercising any of
its options, powers or rights, or partial or single exercise thereof, shall
constitute a waiver thereof.
14. Application of Proceeds. All proceeds received from the sale or other
disposition of the Collateral shall be applied by the Secured Party as follows:
(a) First: to the payment of all costs and expenses incurred by the
Secured Party in connection with any such sale or collection of the Collateral,
including, without limitation, all court costs and the reasonable fees and
expenses of counsel for the Secured Party in connection therewith, and the
payment of all costs and expenses paid or incurred by the Secured Party in
connection with this Agreement, or the exercise of any right or remedy hereunder
or thereunder, to the extent that such advances, costs and expenses shall not
have been paid to the Secured Party upon its demand therefor;
(b) Second: to the payment of all other Brightstar Obligations;
(c) Lastly: the balance, if any, of such proceeds remaining after
payment in full of the Brightstar Obligations and all other amounts owed to the
Secured Party or any of the Motorola Parties, shall be paid to the Pledgor or as
directed by a court of competent jurisdiction.
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15. Obligation to Sell. The Secured Party shall have no obligation to sell
or otherwise realize upon any of the Collateral as authorized herein, and shall
not be responsible for any failure to do so or for any delay in so doing.
16. Secured Party's Duty of Care. The Secured Party's duty with respect to
the Collateral shall be solely to use reasonable care in the physical custody
and physical preservation of such Collateral in its possession and the Secured
Party shall not be obligated to take any steps necessary to preserve any rights
in any of such property against third parties and the Pledgor agrees to take
such steps. The Secured Party shall have no responsibility for ascertaining, nor
for informing the Pledgor with respect to, nor be required to take any action
concerning, any maturities, calls, conversions, exchanges, offers, tenders or
similar matters relating to any of the property of the Pledgor (whether or not
the Secured Party has, or is deemed to have, knowledge of any of the aforesaid),
provided that the Secured Party shall endeavor to take such action as may be
requested or authorized by the Pledgor if the Secured Party determines, in its
sole discretion, that such action will not in any way adversely affect the value
of the Collateral or the ability of the Secured Party to realize upon the value
of such Collateral. The Secured Party shall not be bound to take any steps
necessary to preserve any rights in any of the property of the Pledgor against
prior parties who may be liable in connection therewith.
17. Further Assurances. The Pledgor agrees to do or refrain from doing any
and all such further acts and things, and to execute and deliver such additional
conveyances, assignments, agreements and instruments, as the Secured Party may,
in its sole and absolute discretion, at any time request in connection with the
administration and enforcement of this Agreement, or with respect to the
Collateral or any part thereof or in order better to assure and confirm unto the
Secured Party its respective rights and remedies hereunder.
18. Rights and Remedies of the Pledgor. Subject to the terms hereof, the
Pledgor shall also have all the rights and remedies of a debtor both before and
after the occurrence of any Event of Default described herein provided in the
Uniform Commercial Code in force in the State of Florida at the date of
execution of this Agreement.
19. Bankruptcy Provisions. The provisions of the section entitled
"Bankruptcy" in the Brightstar Security Agreement are hereby incorporated by
reference, and the Pledgor agrees that all references in those provisions
regarding the "Agreement" (either directly or as a part of the Brightstar
Documents) shall also be deemed to be a reference to this Agreement.
20. Miscellaneous
(a) Amendment. Neither this Agreement nor any provision hereof may
be modified, changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
modification, change, waiver, discharge or termination is sought.
(b) Notices. Any notice, demand or other communication required to
or permitted to be given or made hereunder in writing, shall be deemed given or
made when (a) delivered in person; (b) five (5) days after such communication is
posted in the mails; or (c) one
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(1) day after such communication is sent by a nationally recognized overnight
courier service. Such communications shall be addressed as follows:
If to the Secured Party: Motorola, Inc.
000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: PCS Latin America Director of
Finance
With a copy to: Shook, Hardy & Bacon L.L.P.
Miami Center, Suite 2400
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxxx, Esq.
If to the Pledgor to: Xxxx X. Xxxxxx and Xxxxx X. Xxxxxxxx
c/o Brightstar Corp.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
With a copy to: Xxxxxxxxxxx & Xxxxxxxx LLP
Miami Center, 20th Floor
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
or at such other address as the party addressed may from time to time
designate in writing.
(c) Governing Law. This Agreement shall be construed in accordance
with, and be governed by the laws of the State of Florida, without regard to
laws regarding conflict of laws.
(d) Benefit. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns.
(e) Survival of Representations. All covenants, agreements,
representations and warranties made herein or in any certificate delivered
pursuant hereto shall survive the execution and delivery to the Secured Party of
this Agreement and shall continue in full force and effect so long as any
indebtedness or Obligation by the Pledgor to the Secured Party is outstanding or
unpaid.
(f) Severability. Each section, subsection, and lesser section of
this Agreement constitutes a separate and distinct undertaking, covenant and/or
provision hereof. In the event that any provision of this Agreement shall
finally be determined to be unlawful, or otherwise not binding on any party
hereto, such provision shall be deemed severed from this Agreement, but every
other provision of this Agreement shall remain in full force and effect.
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(g) Headings. The headings in this Agreement are intended solely for
convenience of reference and shall be given no effect in the structural
interpretation of this Agreement.
(h) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which will
constitute the same agreement.
21. WAIVER OF JURY TRIAL. THE PLEDGOR AND THE SECURED PARTY HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EACH MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN ANY OF
THE BRIGHTSTAR PARTIES, ON ONE HAND, AND ANY MOTOROLA PARTY ON THE OTHER HAND,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF EACH PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
THE PLEDGOR AND THE SECURED PARTY ENTERING INTO THIS AGREEMENT. THE PROVISIONS
OF THIS ARTICLE HAVE BEEN FULLY NEGOTIATED BY THE PARTIES HERETO AND THESE
PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NEITHER THE PLEDGOR NOR THE
SECURED PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT
THE PROVISIONS OF THIS ARTICLE WILL NOT BE ENFORCED IN ALL INSTANCES. NEITHER
THE PLEDGOR NOR THE SECURED PARTY SHALL SEEK TO CONSOLIDATE ANY SUCH ACTION, IN
WHICH A JURY TRIAL HAS BEEN WAIVED, WITH ANY OTHER ACTION IN WHICH A JURY TRIAL
HAS NOT BEEN OR CANNOT BE WAIVED.
22. Waiver of Plea of Jurisdiction or Venue. Because the Pledgor and the
Secured Party each have a significant interest in consistent interpretation of
this Agreement, the Pledgor designates Miami, Florida as the sole forum for
resolution of any dispute arising hereunder. The Pledgor hereby specifically
authorizes any action brought upon the enforcement of this Agreement by the
Secured Party to be instituted and prosecuted in either the Circuit Court of
Miami-Dade County, Florida, or in the United States District Court for the
Southern District of Florida, at the election of the Secured Party. The Pledgor
further agrees that a final judgment in any action or proceeding will be
conclusive and may be enforced against it in any other jurisdiction or in any
other manner provided by law.
[Signature pages follow]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
/s/ Xxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxxx
------------------ ----------------------
Xxxx X. Xxxxxx Xxxxx X. Xxxxxxxx
Accepted:
Motorola, Inc.
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Name: Xxxxxx X. Xxxxxx
Title: CFO - PCS
The undersigned, Xxxxxxxx Xxxxxx and Xxxxxx Xxxxxxxx are the spouses of
Xxxx X. Xxxxxx and Xxxxx X. Xxxxxxxx, respectively. The undersigned hereby
acknowledges that they have no interest in or title to the Collateral, as
defined above, and in particular, they waive any right each or they may have to
the Collateral, however and whenever arising, including but not limited to under
any homestead, tenancy, joint property right or otherwise. The undersigned
acknowledges that Motorola is relying to its detriment upon this representation
and agreement of the undersigned.
/s/ Xxxxxxxx Xxxxxx /s/ Xxxxxx Xxxxxxxx
------------------- ----------------------
Xxxxxxxx Xxxxxx Xxxxxx Xxxxxxxx
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The foregoing instrument was acknowledged before me this 23 day of April,
2004, by XXXX X. XXXXXX in his individual capacity and who is personally known
to me or has produced ____________________ as identification.
[XXXXXXX X. XXXXXX SEAL] /s/ XXXXXXX XXXXXX
MY COMMISSION # DD 240413 ---------------------------
EXPIRES: December 10, 2007 NOTARY PUBLIC
Bonded Thru Notary Public Underwriters NAME OF NOTARY PRINTED: XXXXXXX XXXXXX
My commission expires:
(NOTARY SEAL)
The foregoing instrument was acknowledged before me this ____ day of
April, 2004, by XXXXX X. XXXXXXXX in his individual capacity and who is
personally known to me or has produced ______________ as identification.
_______________________________
NOTARY PUBLIC
NAME OF NOTARY PRINTED:________
My commission expires: (NOTARY SEAL)
The foregoing instrument was acknowledged before me this____day of April,
2004, by XXXXXXXX XXXXXX in her individual capacity and who is personally known
to me or has produced ______________as identification.
_____________________________
NOTARY PUBLIC
NAME OF NOTARY PRINTED:
My commission expires: (NOTARY SEAL)
The foregoing instrument was acknowledged before me this _____ day of
April, 2004, by XXXXXX XXXXXXXX in her individual capacity and who is personally
known to me or has produced ______________ as identification.
__________________________
NOTARY PUBLIC
NAME OF NOTARY PRINTED:________
My commission expires: (NOTARY SEAL)
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The foregoing instrument was acknowledged before me this 27th day of
April, 2004, by XXXX X. XXXXXX in his individual capacity and who is personally
known to me or has produced State ID as identification.
/s/ Xxxxx X Xxxxxx
---------------------------
NOTARY PUBLIC
NAME OF NOTARY PRINTED: Xxxxx X Xxxxxx
My commission expires: [OFFICIAL SEAL] (NOTARY SEAL)
July 2 2004
The foregoing instrument was acknowledged before me this 27th day of
April, 2004, by XXXXX X. XXXXXXXX in his individual capacity and who is
personally known to me or has produced State ID as identification.
/s/ Xxxxx X Xxxxxx
-------------------------------
NOTARY PUBLIC
NAME OF NOTARY PRINTED: Xxxxx X Xxxxxx
My commission expires: [OFFICIAL SEAL] (NOTARY SEAL)
July 2 2004
The foregoing instrument was acknowledged before me this____day of April,
2004, by XXXXXXXX XXXXXX in her individual capacity and who is personally known
to me or has produced ______________as identification.
_____________________
NOTARY PUBLIC
NAME OF NOTARY PRINTED:__________________
My commission expires: (NOTARY SEAL)
The foregoing instrument was acknowledged before me this 27th day of
April, 2004, by XXXXXX XXXXXXXX in her individual capacity and who is personally
known to me or has produced State ID as identification.
/s/ Xxxxx X Xxxxxx
--------------------------
NOTARY PUBLIC
NAME OF NOTARY PRINTED: Xxxxx X Xxxxxx
My commission expires: [OFFICIAL SEAL] (NOTARY SEAL)
July 2 2004
Amended and Restated Stock Pledge Agreement (Xxxxxx/Xxxxxxxx) - Page 11
[***] Denotes Confidential Treatment Requested
The foregoing instrument was acknowledged before me this ___ day of
April, 2004, by XXXX X. XXXXXX in his individual capacity and who is personally
known to me or has produced ____________ as identification.
_____________________________________
NOTARY PUBLIC
NAME OF NOTARY PRINTED:______________
My commission expires: (NOTARY SEAL)
The foregoing instrument was acknowledged before me this_____day of April,
2004, by XXXXX X. XXXXXXXX in his individual capacity and who is personally
known to me or has produced ______________ as identification.
_______________________________
NOTARY PUBLIC
NAME OF NOTARY PRINTED:________
My commission expires: (NOTARY SEAL)
The foregoing instrument was acknowledged before me this____day of April,
2004, by XXXXXXXX XXXXXX in her individual capacity and who is personally known
to me or has produced IN PERSON as identification.
[XXXXXXX XXXXX SEAL] /s/ Xxxxxxx Yanoz
--------------------------
NOTARY PUBLIC
NAME OF NOTARY PRINTED: Xxxxxxx Yanoz
My commission expires: (NOTARY SEAL)
The foregoing instrument was acknowledged before me this ____ day of
April, 2004, by XXXXXX XXXXXXXX in her individual capacity and who is personally
known to me or has produced __________ as identification.
_____________________________
NOTARY PUBLIC
NAME OF NOTARY PRINTED:Xxxxx X Xxxxxx
My commission expires: (NOTARY SEAL)
Amended and Restated Stock Pledge Agreement (Xxxxxx/Xxxxxxxx) - Page 11
[***] Denotes Confidential Treatment Requested
Exhibit 6(a)
OWNERSHIP OF ALL SHARES
OF BRIGHTSTAR ISSUED AND OUTSTANDING
PREFERRED STOCK
SHARES OF
SERIES A
PREFERRED
NAME: STOCK:
----- ------
Falcon Mezzanine Partners, LP 1,351,214.575
Prudential Capital Partners, L.P. 1,307,909.867
Prudential Capital Partners Management 43,304.705
Fund, L.P.
[***] 600,000.000
Arrow Investment Partners 7,287.449
RCG Carpathia Master Fund, Ltd. 440,283.401
COMMON STOCK
NUMBER OF SHARES OF
NAME COMMON STOCK
---- ------------
R. Xxxxxxx Xxxxxx 19,825,752
Xxxxx Xxxxxxxx 1,043,461
Amended and Restated Stock Pledge Agreement (Xxxxxx/Xxxxxxxx) - Page 12
