Exclusive Distribution Agreement W/Motorola

Exhibit 10.2


EXCLUSIVE DISTRIBUTION AGREEMENT


ENTERED INTO BY AND BETWEEN


MOTOROLA, INC.


BY AND THROUGH ITS


PERSONAL COMMUNICATIONS SECTOR


LATIN AMERICA DIVISION


AND


BRIGHTSTAR CORP.


NOVEMBER 7TH, 2002


MOTOROLA CONFIDENTIAL PROPRIETARY


[***] Denotes Confidential Treatment Requested


DISTRIBUTION AGREEMENT


THIS DISTRIBUTION AGREEMENT (this "Agreement") is entered into between MOTOROLA, INC., a corporation duly organized and existing under the laws of the State of Delaware, by and through the Latin America Group of its Personal Communications Sector, having a place of business at 1000 Corporate Drive, Ft. Lauderdale, FL 33334 (hereinafter "Motorola"), and BrightStar Corp., a company duly organized and existing under the laws of the State of Delaware, having its principal place of business at 2040 NW 84th Avenue, Miami FL 33172 (hereinafter "Exclusive Master Services Distributor"), effective as of October 4, 2002 ("Effective Date").


WHEREAS, Motorola manufactures, licenses and has others manufacture accessories for communications equipment and distributes them directly to its customers and also through independent distributors;


WHEREAS, Motorola and its distributors and licensees sell accessories for communications equipment throughout the world, including the country of Mexico and the regions of Central America, South America and the Caribbean;


WHEREAS, Motorola also wishes to expand its distribution system in Mexico, Central America, South America (excluding Brazil) and the Caribbean to include Exclusive Master Services Distributor as a distributor; and


WHEREAS, Exclusive Master Services Distributor wishes to become a distributor of the Motorola communications equipment and accessories set forth in this Agreement in Mexico, Central America, South America (excluding Brazil) and the Caribbean.


NOW THEREFORE, the parties hereto hereby agree as follows:


1. APPOINTMENT AS EXPORT DISTRIBUTOR


a. Subject to the terms of this Agreement, Motorola hereby appoints
Exclusive Master Services Distributor, and Exclusive Master Services
Distributor hereby accepts the appointment, as an authorized
co-exclusive distributor (as used herein co-exclusive means exclusive
to all other companies other than Motorola and Motorola's owned
subsidiaries and affiliates) of models of the Customer Solutions &
Accessories Group Motorola Original accessories listed in Attachment 2
hereto (the "Products"). Exclusive Master Services Distributor agrees
that Products includes only PCS phone accessories and expressly does
not include iDen or FRS/2-way radio accessories. Exclusive Master
Services Distributor is authorized to purchase Products directly from
Motorola or from whom Motorola designates from time to time pursuant to
purchase orders entered into in connection with this Agreement and
resell such Products solely within and into the territory of Mexico,
Central America, South America (excluding Brazil) and the Caribbean
that is described in specificity in Attachment 1 hereto (hereafter
referred to as the "Territory") or to sub-distributors or resellers in
the Miami, FL area, that will re-sell such Products solely into the
Territory. Motorola may, from time to time and at its absolute
discretion modify the list of Products or the Territory. Motorola
agrees that all sales of Products into assigned territory shall utilize
BrightStar as Exclusive Master


MOTOROLA CONFIDENTIAL PROPRIETARY


[***] Denotes Confidential Treatment Requested


Distribution Agreement
BrightStar Corp.
11/20/2002
Page 2


Services Distributor, with the exception of Products that are: included
as part of a standard phone product contents, sold as in-box bundles,
sold via e-commerce or direct sales to consumers that reside in the
Territory. From time to time, Motorola will provide price lists to
Exclusive Master Services Distributor for the Products that Exclusive
Master Services Distributor is authorized to distribute in the
Territory. Exclusive Master Services Distributor shall incorporate the
foregoing limitations into all of its agreements for the resale of
Products purchased hereunder and Exclusive Master Services Distributor
shall enforce these restrictions.


b. Exclusive Master Services Distributor acknowledges and agrees that
Exclusive Master Services Distributor must maintain certain minimum
purchase volumes in order to maintain co-exclusive status as set forth
in Attachment 4. If Exclusive Master Services Distributor fails to meet
such minimum purchase volumes at the end of any relevant period,
Motorola may elect to reduce Exclusive Master Services Distributor's
co-exclusive status to non-exclusive.


c. Exclusive Master Services Distributor acknowledges and agrees that
Motorola has appointed certain other licensees that have the right to
distribute their products within the Territory and that Motorola may,
at its sole and unrestricted discretion, choose to promote the sale of,
and/or distribute, Products within the Territory (using agents,
representatives, independent contractors and/or Motorola's regularly
employed sales force and that of its subsidiaries or affiliated
companies).


d. Exclusive Master Services Distributor acknowledges and agrees that
Motorola reserves the right to restrict the distribution of specific
models of Products to specific areas and/or customers within the
Territory and Exclusive Master Services Distributor agrees to limit
its distribution of such models accordingly. Exclusive Master Services
Distributor shall incorporate this limitation into all of its
agreements for the resale of Products purchased hereunder and Exclusive
Master Services Distributor shall enforce this restriction.


2. TERM OF THIS AGREEMENT


The term of this Agreement shall commence on the Effective Date and
shall continue for one year, unless terminated as permitted herein.
[***] The number of renewals notwithstanding, this Agreement is and
shall always be interpreted as a fixed term agreement and not as an
indefinite term agreement.


3. PARTY RELATIONSHIP


It is agreed that Exclusive Master Services Distributor's relationship
to Motorola is that of an independent contractor and no other
relationship is intended to be created between the parties hereto.
Nothing in this Agreement shall be construed so as to make Exclusive


MOTOROLA CONFIDENTIAL PROPRIETARY


[***] Denotes Confidential Treatment Requested


Distribution Agreement
BrightStar Corp.
11/20/2002
Page 3


Master Services Distributor or its employees or agents an employee of
Motorola or an agent with the power to bind Motorola contractually.
Exclusive Master Services Distributor shall have no authority to bind,
obligate or incur any liability on behalf of Motorola. This Agreement
does not create any agency, joint venture or partnership between
Exclusive Master Services Distributor and Motorola.


4. DISTRIBUTOR RESPONSIBILITIES


In distributing Products Exclusive Master Services Distributor shall
perform the following services:


a. Export the Products from the U.S. to the Territory only.


b. Use best efforts to sell, advertise and promote the sale and use of
Products throughout the Territory.


c. Maintain a sales organization adequate to effectively promote and
market the Products in the Territory, including funding and hiring
seven (7) new employees completely dedicated to selling the Products as
further detailed in Attachment 3.


d. Purchase the Products from Motorola in the manner described in
Section 5.


e. Furnish to Motorola a three (3) month rolling forecast for all Products
on a monthly basis (as described further in Subsection 5f, below) and
other information relating to orders, sales, service and inventory of
Products and Product sales budgets and forecasts in such manner as
Motorola may require.


f. Furnish Motorola, upon Motorola's request, detailed market analyses and
reports with respect to the Territory.


g. Render the services described in Attachment 5 and according to the
terms of the Services Agreement attached to Attachment 5.


h. Provide office space at Exclusive Master Services Distributor's Miami
office for one individual Motorola sales manager at no cost to
Motorola.


5. PURCHASE OF PRODUCTS.


a. Under the terms and conditions of this Agreement, Exclusive Master
Services Distributor agrees to purchase at its own risk and for its own
account, Products to be resold in the Territory, solely from Motorola's
Personal Communications Sector, Companion Products and Accessories
Division or any other supplier approved by the Companion Products and
Accessories Division. Exclusive Master Services Distributor shall
submit to Motorola for its acceptance purchase orders listing the
model, quantity, shipment date, and price of the Products requested.
All other terms and conditions on Exclusive Master Services


MOTOROLA CONFIDENTIAL PROPRIETARY


[***] Denotes Confidential Treatment Requested


Distribution Agreement
BrightStar Corp.
11/20/2002
Page 4


Distributor's purchase order form are hereby rendered null, void, and
of no effect, by the terms and conditions of this Agreement.


b. Prices stated on Exclusive Master Services Distributor's purchase
orders shall conform to Motorola's then current price list, copies of
which will be made available to Exclusive Master Services Distributor
from time to time.


c. Motorola reserves the right in its sole discretion to accept or reject
any order for Products received from Exclusive Master Services
Distributor without any further liability, including without limitation
for the failure of Exclusive Master Services Distributor to satisfy
Motorola's distribution qualification requirements for distribution of
the requested Product. No purchase order is binding on Motorola until
accepted. A purchase order is accepted by Motorola when Product is
shipped or when acceptance is acknowledged in writing by a duly
authorized officer or employee of Motorola, whichever occurs first.


d. Exclusive Master Services Distributor shall submit firm processable
purchase orders no less than [***] prior to the requested shipment
date, unless otherwise agreed to by Motorola. Motorola agrees that
Exclusive Master Services Distributor may adjust model quantities on
any purchase order [***] prior to shipment month, so long as the total
dollar amount of the corresponding purchase order is not lower than the
original purchase order submitted.


e. Exclusive Master Services Distributor may not cancel orders without
prior written consent from Motorola. Orders that are in the process of
being released, picked or packed may not be canceled.


f. Exclusive Master Services Distributor shall provide Motorola on a
monthly basis, no less than [***] prior to the start of the following
month, a continuous usage forecast for the following [***] (the
"Forecast") to assist Motorola in maintaining an orderly production
flow for the purpose of Exclusive Master Services Distributor's
delivery requirements. Exclusive Master Services Distributor shall
indicate the Product model number and project purchase volume by units
for each month of the Forecast. Exclusive Master Services Distributor's
failure to provide such information may be considered cause for
Motorola's excusable delivery delay.


g. Exclusive Master Services Distributor agrees to comply with the minimum
purchase amounts set forth in Attachment 4 (hereinafter" Minimum
Purchase Amounts"). Exclusive Master Services Distributor also agrees
that purchase orders submitted to comply with the Minimum Purchase
Amounts shall be non-cancelable and, therefore, paragraph 5.e. above
will not apply to such purchase orders. Exclusive Master Services
Distributor further understands and agrees that compliance with the
Minimum Purchase Amounts will be revised [***] by Motorola and that
if Exclusive Master Services Distributor does not meet the Minimum
Purchase Amount for that specific quarter, Motorola shall have the
right, at its own discretion, to terminate this Agreement.


MOTOROLA CONFIDENTIAL PROPRIETARY


[***] Denotes Confidential Treatment Requested


Distribution Agreement
BrightStar Corp.
11/20/2002
Page 5


h. Motorola agrees to provide at no cost to Exclusive Master Services
Distributor [***] working samples of any new Product.


6. PAYMENT AND DELIVERY


a. Unless otherwise approved in writing by Motorola, Exclusive Master
Services Distributor must pay for Products at any of the Motorola's
bank accounts listed below, in U.S. currency by wire transfer within
the thirty (30) days following the date of the invoice. The following
is Motorola's banks information:


Bank One
One First National Plaza
Chicago, IL 60670
Motorola Account Number [***]
[***]


Citibank
399 Park Avenue
New York, NY 10022
Motorola Account Number [***]
[***]


b. All deliveries are [***] the applicable Motorola manufacturing facility
in the U.S.A., as defined in INCOTERMS 2000. Title to the Products sold
shall pass to Exclusive Master Services Distributor at the [***] point.


c. If Exclusive Master Services Distributor should fail to pay any invoice
for Products in accordance with its terms, or in the event that
Motorola, in its sole discretion deems Exclusive Master Services
Distributor's financial condition inadequate or unsatisfactory, then in
addition to its other rights herein, Motorola may repossess the unpaid
Products, cancel any previously accepted purchase order for Products,
or delay any further shipment of Products to Exclusive Master Services
Distributor, without incurring any liability for loss or damage of any
kind occasioned by reason of any such cancellation or delay.
Furthermore, such failure to pay may be deemed, at Motorola's option, a
justified cause for termination of this Agreement.


d. It is Exclusive Master Services Distributor's sole responsibility to
obtain credit from Motorola for all orders placed with Motorola. Should
credit not be sufficient to cover purchases, Motorola at its sole
discretion may require cash with order from Exclusive Master Services
Distributor. However, if Exclusive Master Services Distributor fails to
obtain credit due to Motorola reducing its current credit limit or in
agreement with Motorola uses this total credit for other Motorola
products, Motorola may seek any alternate methods of distribution,
including but not limited to contracting with one or more alternate
distributor(s). If Motorola uses such alternate methods of distribution
that would otherwise fall under the exclusive portion of Exclusive
Master Services Distributor's appointment as set forth in Section 1
above, the Minimum Purchase Amounts outlined in Attachment 4 shall be
reduced by the amount of such alternate sale


MOTOROLA CONFIDENTIAL PROPRIETARY


[***] Denotes Confidential Treatment Requested


Distribution Agreement
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