EXHIBIT 4.5
REDEMPTION AGREEMENT
THIS REDEMPTION AGREEMENT (the "Agreement") is made and entered into as of
this _________ day of December 2003, by and between BRIGHTSTAR CORP., a Delaware
corporation (the "Company") and XXXXX XXXXXXXX (the "Stockholder").
WITNESSETH
WHEREAS, the Stockholder legally and beneficially owns, after taking into
account a 24,207.267 for 1 common stock split, Seven Million Four Hundred Seven
Thousand Four Hundred Twenty Four (7,407,424) shares (the "Stockholder's
Shares") of common stock, no par value (the "Common Stock"), of the Company,
representing twenty seven and two-tenths percent (27.2%) of the issued and
outstanding shares of the capital stock of the Company;
WHEREAS, the Stockholder has requested that the Company purchase and
redeem from the Stockholder twenty two and two-tenths percent (22.2%) of the
issued and outstanding shares of Common Stock of the Company for Five Million
Eight Hundred Seventy Five Thousand Dollars ($5,875,000);
WHEREAS, the Company has agreed to purchase and redeem from the
Stockholder Six Million Three Hundred Sixty Three Thousand Nine Hundred Sixty
Three (6,363,963) shares (the "Redeemed Shares") of the Stockholder's Shares
pursuant to the terms and conditions set forth in this Agreement, as a result of
which the Stockholder shall continue to own One Million Forty Three Thousand
Four Hundred Sixty One (1,043,461) shares of Common Stock of the Company,
representing five percent (5.0%) of the issued and outstanding shares of Common
Stock of the Company after the redemption.
NOW THEREFORE, in consideration of the mutual agreements 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 foregoing recitals are true and correct and are
incorporated herein by this reference.
2. Redemption of Stockholder's Interest. Pursuant to the terms and
conditions of this Agreement and on the Closing Date (as hereinafter defined),
the Stockholder shall sell to the Company, and the Company shall purchase and
redeem from the Stockholder, the Redeemed Shares. The purchase price (the
"Purchase Price") for the Redeemed Shares shall be Five Million Eight Hundred
Seventy Five Thousand Dollars ($5,875,000).
3. Closing. The closing ("Closing") of the transactions contemplated
hereby shall take place as of the date hereof (the "Effective Date"); provided,
however, that in the event the first closing of the transactions contemplated by
that certain Purchase Agreement (the "Investor Purchase Agreement") by and among
the Company, Brightstar US, Inc., and the Purchasers (as defined in Purchase
Agreement) is not consummated within thirty (30) days from the date hereof, then
this Agreement shall be null and void ab initio, and all certificates evidencing
the Redeemed Shares shall be duly and validly transferred to the Stockholder and
no party shall have
any further obligations under this Agreement. A true and correct copy of the
Investor Purchase Agreement is attached hereto as Exhibit A.
4. Deliveries.
(a) Deliveries by Stockholder. Within five (5) business days after
Closing, the Stockholder shall deliver to the Company stock certificate number 7
of the Company, issued in the name of the Stockholder, representing the
Stockholder's Shares. The certificate shall be duly endorsed by the Stockholder,
validly transferring the Stockholder's Shares to the Company.
(b) Deliveries by the Company. Upon receipt of the certificate
evidencing the Stockholder's Shares, the Company shall issue to the Stockholder
a stock certificate of the Company, issued in the name of the Stockholder,
representing 1,043,461 shares of Common Stock of the Company. Within five (5)
business days after the closing of the Investor Purchase Agreement, the Company
shall pay to the Stockholder the Purchase Price, less any withholdings required
by law, via wire transfer to an account of the Stockholder designated in writing
to the Company by the Stockholder.
5. Representations and Warranties of the Stockholder. The Stockholder
represents, warrants and covenants to the Company, as of the date hereof, as
follows:
(a) Authority; Validity. The Stockholder has the full power and
authority to enter into this Agreement and to carry out the transactions
contemplated hereby, and this Agreement has been duly and validly executed and
delivered by the Stockholder and constitutes the legal, valid and binding
agreement of the Stockholder and is enforceable in accordance with its terms.
(b) Ownership of Shares. Except for that certain pledge in favor of
Motorola, Inc., said pledge to be dissolved prior to the payment of the Purchase
Price, the Stockholder is the lawful record and beneficial owner of the Redeemed
Shares, free and clear of any liens, claims or encumbrances of any kind.
(c) No Violations. The execution and delivery of this Agreement and
the consummation and compliance with the transactions contemplated hereunder by
the Stockholder shall not, directly or indirectly (with or without notice or the
lapse of time or both), violate, breach or cause an event of default under any
agreement, contract, judgment or order to which the Purchaser is a party or by
which he is bound.
(d) Consents and Approvals. There is no requirement applicable to
the Stockholder to make any filing with, or to obtain any permit, authorization,
license, consent or approval of, any third party as a condition to the lawful
consummation of the transactions contemplated by this Agreement.
(e) Access to Information. The Stockholder and his attorneys,
accountants, tax advisors and financial consultants (collectively, the
"Advisors") have such knowledge and experience in financial, tax, and business
matters, and, in particular, the Company, so as to enable them to utilize the
information made available to them in connection with this sale of the Redeemed
Shares and to evaluate the merits and risks of such sale, especially in light of
the
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contemplated Investor Purchase Agreement. The Stockholder and his Advisors have
received, carefully reviewed and understood all documents requested by them in
connection with this Agreement. The Stockholder and his Advisors have had
sufficient access to all of the Company's business, financial and accounting
records, and the Stockholder and his Advisors have obtained sufficient
information to evaluate the merits and risks of Stockholder's sale of the
Redeemed Shares and to make such a decision. The Stockholder and his Advisors
have had the opportunity to ask questions and receive answers from the Company's
directors and officers concerning the Company (including, without limitation,
the Company's financial condition, strategic plans and current and proposed
operations) which the Stockholder and his Advisors believe to be necessary in
order to reach an informed decision regarding the advisability of his sale of
the Redeemed Shares. The Stockholder is satisfied that there are no material
facts regarding the Company as to which he has not been fully informed and he is
aware that he is selling the Redeemed Shares for a Purchase Price which is
significantly under market value. WITHOUT LIMITING THE FOREGOING, THE
STOCKHOLDER AND HIS ADVISORS HAVE BEEN MADE SPECIFICALLY AWARE OF THE
TRANSACTIONS CONTEMPLATED BY THE INVESTOR PURCHASE AGREEMENT, AND ARE
FULLY-AWARE OF THE TERMS AND CONDITIONS OF SUCH INVESTOR PURCHASE AGREEMENT,
INCLUDING, WITHOUT LIMITATION, THAT THE VALUE OF THE COMPANY FOR PURPOSES OF THE
INVESTOR PURCHASE AGREEMENT IS TWO HUNDRED TWENTY NINE MILLION (U.S.) DOLLARS
($229,000,000), AND THE STOCKHOLDER AND HIS ADVISORS ARE FULLY AWARE THAT SAID
VALUATION IS FAR IN EXCESS OF THE VALUATION OF THE COMPANY OF APPROXIMATELY
TWENTY SIX MILLION ($26,000,000) ESTABLISHED BY THIS TRANSACTION.
(f) No Other Representations or Statements. In entering into this
Agreement, neither the Stockholder nor his Advisors are relying on any
representations or statements made by the Company or its subsidiaries or their
respective shareholders, officers, directors, employees, agents or advisors, but
the Stockholder's decision to enter into this Agreement is based solely on the
terms and conditions set forth in this Agreement and the information made
available to the Stockholder and his Advisors for their independent review, and
the Stockholder is entering into this Agreement voluntarily and that no person
or entity has coerced or unduly influenced his decision to enter into this
Agreement.
6. Representations and Warranties of the Company. The Company represents
and warrants to the Stockholder, as of the date hereof and as of the Closing
Date, that:
(a) Organization. The Company is a corporation duly organized and
validly existing under, and by virtue of, the laws of Delaware and is in good
standing under such laws. The Company has all requisite power and authority to
own and operate its properties and assets, and to carry on its business as
presently conducted.
(b) Authority. The Company has full power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
Company. This Agreement has been duly and validly executed and delivered by the
Company and constitutes the legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms
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(c) No Violations. The execution and delivery of this Agreement and
the consummation and compliance with the transactions contemplated hereunder by
the Company shall not, directly or indirectly (with or without notice or the
lapse of time or both), violate, breach or cause an event of default under the
Company's charter documents or bylaws, or any agreement, contract, judgment or
order to which the Company is a party or by which it is bound.
(d) Consents and Approvals. There is no requirement applicable to
the Stockholder to make any filing with, or to obtain any permit, authorization,
license, consent or approval of any third party (which will not have been
obtained by the Company prior to the Closing Date) as a condition to the lawful
consummation of the transactions contemplated by this Agreement.
(e) Guarantees. On and after the Effective Date, the Company shall
use its best reasonable efforts to have the Stockholder released from any
guarantees to which the Stockholder is a party as a result of him being a
stockholder of the Company. To the extent the Company is unable to have the
Stockholder released from a guarantee, the Company shall indemnify the
Stockholder from and against all losses, liabilities, claims, damages and
expenses whatsoever (including, but not limited to, any and all expenses
incurred in investigating, preparing or defending against any litigation
commenced or threatened) (collectively, "Indemnified Losses") based upon or
arising from said guaranty.
7. Indemnification.
(a) Indemnification by Stockholder. The Stockholder agrees to
indemnify and hold harmless the Company, and its respective officers, directors,
shareholders, employees, agents, representatives, and affiliates against all
Indemnified Losses based upon or arising out of any breach by the Stockholder of
any representation, warranty, covenant or agreement made by the Stockholder
herein.
(b) Indemnification by Company. The Company agrees to indemnify and
hold harmless the Stockholder against all Indemnified Losses based upon or
arising out of any breach by the Company of any representation, warranty,
covenant or agreement made by the Company herein.
8. Certain Company Protection Provisions. The following provisions apply
for the protection of the Company, and shall survive indefinitely, beyond the
duration of this Agreement; provided, however, no such survival shall have the
effect of extending the Restrictive Period (as hereinafter defined):
(a) Noncompetition. During the Restricted Period (as hereinafter
defined), the Stockholder shall not directly or indirectly compete with the
Company or any of its subsidiaries through a Competitive Business (as
hereinafter defined) or own, manage, control or participate in the ownership,
management or control of, or be employed or engaged by or otherwise affiliated
or associated with any Competitive Business. As used herein, the term
"Restricted Period" means a period of time commencing on the date hereof and
ending on the second (2nd) anniversary of the later of (i) the date the
Stockholder no longer maintains an ownership interest in the Company; or (ii)
the date the Stockholder no longer maintains an
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employment relationship with the Company. As used herein, a "Competitive
Business" is the wholesale distribution of wireless products in the United
States or Latin America and/or the provision of logistics and/or after-market
services in the wireless telecommunications industry.
(b) Confidentiality. The Stockholder agrees and acknowledges that,
by reason of the nature of his relationship with the Company and its
subsidiaries, he has had access to and learned of confidential and secret
information which is a competitive asset of the Company ("Confidential
Information"), including, without limitation, any lists of customers, suppliers,
formulas, financial statistics, research data or any other statistics and plans
contained in profit plans, capital plans, critical issue plans, strategic plans
or marketing or operation plans or other information concerning the business of
the Company or any of its subsidiaries. The Stockholder agrees faithfully to
keep in strict confidence, and not, either directly or indirectly, to make
known, divulge, reveal, furnish, make available or use any such Confidential
Information. The Stockholder acknowledges that all manuals, instruction books,
price lists, experiment logs or papers, information and records and other
information and aids relating to the business of the Company or any of its
subsidiaries, and any and all other documents containing Confidential
Information furnished to the Stockholder by the Company or any of its
subsidiaries or otherwise acquired or developed by the Stockholder is the
property of the Company and its subsidiaries and shall be returned promptly to
the Company by the Stockholder.
(c) Remedies. It is expressly agreed by the Stockholder and the
Company that these provisions are reasonable for purposes of preserving for the
Company its business, goodwill and proprietary information. The Stockholder
acknowledges and agrees that the covenants contained in this Section 8 are
essential elements of this Agreement, and that but for these covenants, the
Company would not have entered into this Agreement. It is also agreed that if
any provision is found by a court having jurisdiction to be unreasonable because
of scope, area or time, then that provision shall be amended to correspond in
scope, area and time to that considered reasonable by a court and as amended
shall be enforced and the remaining provisions shall remain effective. In the
event of any breach of these provisions by the Stockholder, the parties
recognize and acknowledge that a remedy at law will be inadequate and the
Company may suffer irreparable injury. Accordingly, the Seller consents that in
the event the Stockholder breaches or threatens to commit a breach of any of the
provisions of Section 8, then the Company shall have the right and remedy to
injunctive and other appropriate equitable relief without the posting of any
type of bond or surety upon the institution of proceedings therefor by the
Company in order to protect the Company's rights.
9. 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.
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(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. Neither party may, at any time or times, waive (in whole
or in part) any rights or privileges to which he or 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.
(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 courts located in Miami-Dade County, Florida
in any and all actions between or among any of the parties hereto, whether
arising hereunder or otherwise, without regard to its conflict of laws
principles to the extent that such principles would require the application of
laws other than the State of Florida. Venue for any action arising hereunder
shall lie exclusively in Miami-Dade County, Florida.
(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) Independent Representation. Each party hereto acknowledges and
agrees that Xxxxxxxxxxx & Xxxxxxxx LLP has solely represented the Company in
connection with this Agreement, and the transactions contemplated herein, and
accordingly the Stockholder has relied solely on the professional services of
his own counsel, Xxxxxx X. Xxxxxx, Esq., with respect to this Agreement and the
transactions contemplated hereby, and the Stockholder has not received any legal
advice from Xxxxxxxxxxx & Xxxxxxxx LLP in connection with this Agreement. Each
of the parties hereto acknowledges that Xxxxxxxxxxx & Xxxxxxxx LLP has
represented the Stockholder in unrelated matters and each party specifically
waives any conflict as a result of such other representation and the
transactions contemplated herein.
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(j) Notice. All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing and shall be
addressed to the address set forth below:
If to the Company: Brightstar Corp.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: R. Xxxxxxx Xxxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxxxxxxxx & Xxxxxxxx LLP
Miami Center, 20th Floor
000 X. Xxxxxxxx Xxxx.
Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Stockholder: Xxxxx Xxxxxxxx
0000 Xxxxxxxx Xxx.
Xxxxxxx Xxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a Copy to: Xxxxxx X. Xxxxxx, Esq.
00 Xxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address as may be designated by notice complying with the terms
of this Section 9(j). Each such notice shall be deemed delivered: (a) on the
date delivered if by personal delivery; (b) upon electronic confirmation of
transmission if delivered by facsimile; (c) three (3) days after delivery, if
delivered by a nationally recognized courier (i.e., Federal Express, United
Parcel Service, DHL); or (d) five (5) days if delivered by registered mail,
return receipt requested.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
BRIGHTSTAR CORP.
By: /s/ R. Xxxxxxxx Xxxxxx
---------------------------------
Name: R. Xxxxxxx Xxxxxx
Its: Chief Executive Officer
/s/ Xxxxx Xxxxxxxx
--------------------------------------
XXXXX XXXXXXXX
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