EXHIBIT 10.4
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.
AMENDMENT ONE
TO THE
MOTOROLA MASTER DISTRIBUTOR AGREEMENT
BETWEEN
BRIGHTSTAR CORP. AND MOTOROLA, INC.
This Amendment ("Amendment One") amends the Motorola Master Distributor
Agreement between Brightstar Corp. ("Master Distributor") and Motorola, Inc.
("Motorola") dated the 23rd day of January, 2003 (the "Agreement"). The
Effective Date of this Amendment One shall be the 7th day of April, 2003.
For good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereby agree to amend the Agreement as follows:
1. ATTACHMENT A - PRODUCTS, PRIMARY AREA OF MARKETING RESPONSIBILITY FOR
PRODUCTS is hereby amended; (i) to add [***] to the Area of Primary Marketing
Responsibility, (ii) to add the counties of [***] and (iii) to hereafter allow
Motorola to provide notice in writing to Master Distributor of those new
countries that have been certified for shipment and operation, or where
appropriate alternative permits, trial licenses, etc., have been secured and
approved by Motorola. Master Distributor may distribute Product into such
countries upon receipt of written notice from Motorola. To accomplish this
purpose, Attachment A is deleted and replaced with the Attachment A - Amendment
One to this Amendment.
2. SECTION 6, AREA OF PRIMARY MARKETING RESPONSIBILITY FOR PRODUCTS is
amended to allow Master Distributor to sell Product to Resellers who sell into
Master Distributor's Area but whose principal place of business is in the United
States of America. To accomplish this purpose, the first paragraph of Section 6
is deleted and replaced with the following:
"Master Distributor agrees that its defined role in Motorola's distribution
system is necessary in order to most efficiently assist Motorola, Master
Distributor and Motorola's other distributors, dealers, representatives and
resellers to expand Motorola's distribution of the Products and to provide the
highest levels of customer satisfaction. Accordingly, Master Distributor agrees
to use its best efforts to promote and sell the Products only to Resellers
within the territory described on Attachment A-Products, Area of Primary
Marketing Responsibility for Products, then in effect ("Area"). Master
Distributor may however sell Product to a Reseller whose principal place of
business is in [***] and who purchases the Product from Master Distributor
solely for sale into Master Distributor's Area. Master Distributor acknowledges
that it may not otherwise sell Products to any Reseller whose principal place of
business is outside of Master Distributor's Area. Master Distributor's sales
volume performance as a distributor of the Products will be evaluated based only
on its sales volume performance of sales to Resellers whose principal place of
business is in Master Distributor's Area and in [***] as provided for above.
Master Distributor's use of its best efforts within the Area is essential to
continuation of the Agreement."
3. SECTION 4, MASTER DISTRIBUTOR'S SCOPE OF DISTRIBUTION is amended to
expand the application of Referred Customer Rebates to certain sales by Master
Distributor of Product to other Motorola business units selling Product in the
Area. To accomplish this purpose Section 4(c) is deleted and replaced with the
following:
"Notwithstanding other provisions in this Agreement that prohibit Master
Distributor from selling Product to end user customers, Motorola Broadband
Wireless Technology Center ("BWTC") may,
1 April 03, 2003
[***] Denotes Confidential Treatment Requested
from time to time, approach Master Distributor with an opportunity to sell
Product to (i) an end user customer that has been working with Motorola BWTC, or
(ii) another Motorola business entity that is selling Product in the Area
("Referred Customer"). If Distributor, in its sole discretion, is interested in
selling Product directly to such Referred Customer under terms described by
Motorola, Motorola shall provide Master Distributor with a Referred Customer
sales rebate ("Referred Customer Rebate"). The Referred Customer Rebate is
calculated as: (Master Distributor purchase price of the Product less Master
Distributor's net sales price of the Product plus [***] of Master Distributor's
net sales price of the Product). In the event such total calculation described
in the parentheses ( ) results in a negative number, Motorola shall not owe
Master Distributor a Referred Customer Rebate or any other rebate and Master
Distributor shall not owe Motorola any offsetting rebate."
Except as modified herein, the terms and conditions of the Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed by
their duly authorized representative:
MOTOROLA, INC BRIGHTSTAR, CORP
By: /s/ Xxxxxxx Xxxxxxxxx By: /s/ Xxxxx Xxxxxxxx
----------------------------- -----------------------
Name: Xxxxxxx Xxxxxxxxx Name: Xxxxx Xxxxxxxx
---------------------------
Title: VP and GM Canopy Products Title: CFO
---------------------------
2 April 03, 2003
[***] Denotes Confidential Treatment Requested
AMENDMENT ONE
TO THE
MOTOROLA MASTER DISTRIBUTOR AGREEMENT
BETWEEN
BRIGHTSTAR CORP. AND MOTOROLA, INC.
ATTACHMENT A - AMENDMENT ONE
PRODUCTS, AREA OF PRIMARY MARKETING RESPONSIBILITY FOR PRODUCTS
PRODUCTS:
--------
MODEL DESCRIPTION MSRP MASTER DISTRIBUTOR'S PRICE
----- ----------- ---- --------------------------
(REFERENCE PRODUCT AND MSRP PRICE LIST PUBLISHED ON MOTOROLA'S MASTER
DISTRIBUTOR WEB-SITE)
Master Distributor shall purchase Motorola manufactured hardware Products
directly from Motorola at [***] Motorola's Manufacturer's Suggested Resale
Price ("MSRP"). Master Distributor shall not be entitled to a discount on
non-Motorola product, on product promotions or on services unless otherwise
offered in writing by Motorola.
AREA OF PRIMARY MARKETING RESPONSIBILITY FOR PRODUCTS
Master Distributor's area of primary marketing responsibility for the Products
shall be:
[***]
(1) Product can only be distributed into Master Distributor's Area of Primary
Marketing Responsibility countries certified for shipment and operation, or
where appropriate alternative permits, trial licenses, etc., have been secured
and approved by Motorola. A current listing of such countries is included below.
Country:
[***]
Motorola and Master Distributor may agree in writing to expand Master
Distributor's Area of Primary Marketing Responsibility. In such case, Motorola
and Master Distributor shall execute an Addendum to this Agreement that
specifies the additional Area(s) and that includes new or modified terms and
conditions for sales into the additional Area(s). Motorola may notify Master
Distributor in writing of new countries certified for shipment and operation, or
where appropriate alternative permits, trial licenses, etc., have been secured
and approved by Motorola. Master Distributor may distribute Product into such
countries upon receipt of written notice from Motorola.
3 April 03, 2003
