EXHIBIT 10.5
EXECUTION COPY
AMENDMENT TO STOCK PURCHASE AGREEMENT
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This Amendment to Stock Purchase Agreement (the "Amendment"), dated as
of September 1, 1998, is entered into by and among Xxxx Telecom, Inc., a Florida
corporation ("Company") and CellStar Telecom, Inc., a Delaware corporation
("CellStar"); Xxxxx Xxxx ("Xxxx") is a party to the Stock Purchase Agreement for
purposes of Sections 4, 8, 9, 10, 11, and 12 only; and Xxxxxxxxx X. Xxxxxx
("Xxxxxx") is a party for purposes of Sections 5, 8, 9, 10, 11 and 12 only.
Capitalized terms used but not defined herein shall have the meanings given them
in that certain Stock Purchase Agreement, deemed effective November 1, 1997, by
and among the parties hereto (the "Stock Purchase Agreement").
RECITALS
WHEREAS, pursuant to the provisions of that certain letter agreement
dated as of September 1, 1998 by and among CellStar, the Company, Xxxxx Xxxx and
Xxxxxxxxx X. Xxxxxx (the "Letter Agreement"), CellStar and the Company have
agreed to enter into this Amendment.
NOW THEREFORE, in consideration of the mutual covenants and agreements
of the parties made herein, and such other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties, intending
to be legally bound, hereby agree as follows:
1. Amendments. The Stock Purchase Agreement is hereby amended as
follows:
All references to: (i) the December Shares, (ii) the Second Closing
Date and (iii) the Second Closing and any obligations relating thereto are
hereby deleted.
2. Agreement and Acknowledgment. The parties hereto agree and
acknowledge that: (i) the option granted to CellStar pursuant to that certain
Option Agreement by and between the Company and CellStar dated September 1, 1998
shall replace, and not be in addition to, the rights and obligations of CellStar
pursuant to Section 1 of the Stock Purchase Agreement with respect to the
December Shares, (ii) the rights and obligations of the parties described in
Section 1 of the Stock Purchase Agreement with respect to the automatic
conversion of the $2.0 million of Telecom's accounts payable owed to CellStar,
Ltd. are no longer in effect, and (iii) CellStar has not defaulted in any of its
obligations under the Stock Purchase Agreement.
3. Affirmation of Stock Purchase Agreement. Except as amended hereby,
the Stock Purchase Agreement remains in full force and effect in accordance with
its terms and conditions and is hereby ratified and affirmed for all purposes by
each of the parties.
4. Miscellaneous.
(a) This Amendment may be executed in any number of counterparts, each
of which shall be deemed an original but all of which taken together shall
constitute one and the same agreement.
(b) This Amendment shall be governed by and construed in accordance
with the internal laws of the State of Texas, without reference to the conflicts
of law principles thereof.
(c) Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
(d) The headings in this Amendment are for convenience of reference
only and shall not define or limit any of the terms or the provisions hereof.
(e) This Amendment and the Letter Agreement are to be construed so as
to be consistent and not in conflict, but should a conflict nonetheless arise
between this Amendment and the Letter Agreement, the conflict will be
resolved by giving the conflicting provision of this Amendment full force
and effect.
[Signatures follow immediately on next page]
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IN WITNESS WHEREOF, the parties have hereunto duly affixed their
signatures as of the day and year first written above.
XXXX TELECOM, INC. CELLSTAR TELECOM, INC.
By:/s/ X.X. XXXXXX By:/s/ XXXXXXX X. XXXXXXX
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Name: X. X. Xxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: President and CEO Title: U.S. Region President
For Purposes of Sections 4,8,9,10,11 and 12
only:/s/ XXXXX XXXX
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Xxxxx Xxxx
For Purposes of Sections 5,8,9,10,11 and 12
only:/s/ X.X. XXXXXX
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X.X. Xxxxxx
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