Exhibit 10.2
STOCK PURCHASE AGREEMENT
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This Stock Purchase Agreement is entered into as of September 3, 1999, by
and among CellStar Telecom, Inc., a corporation organized under the laws of
Delaware ("CellStar Telecom"), Inmobiliaria Aztlan, S.A. de C.V., a corporation
organized under the laws of Mexico (the "Purchaser"), and for purposes of
Sections 5 and 8 only, ▇▇▇▇ Telecom, Inc, a corporation organized under the laws
of Florida ("▇▇▇▇ Telecom").
Recitals
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WHEREAS, CellStar Telecom owns an aggregate of: (i) 5,885 shares of Class A
Voting Common Stock, $0.01 par value per share of ▇▇▇▇ Telecom; and (ii) 124,841
shares of Class B Non-voting Common Stock, $0.01 par value per share of ▇▇▇▇
Telecom (collectively, the "Shares");
WHEREAS, the Purchaser wishes to purchase, and CellStar Telecom wishes to
sell the Shares on the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the foregoing and the mutual promises
and covenants contained in this Agreement, the parties hereto agree as follows:
1. Sale of Shares. Subject to the terms and conditions of this Agreement,
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at the Closing (as hereinafter defined), CellStar Telecom will sell to the
Purchaser, and the Purchaser will purchase from CellStar Telecom the Shares. The
consideration to be paid by the Purchaser to CellStar Telecom for the Shares
shall be an aggregate of Twenty-Six Million Five Hundred Thousand Dollars
($26,500,000.00) (the "Share Purchase Price").
2. The Closing. The closing ("Closing") of the sale and purchase of the
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Shares under this Agreement shall take place at the offices of ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ on September 3, 1999. At the
Closing: (a) CellStar Telecom shall deliver to the Purchaser certificates
representing the Shares, which certificates shall be endorsed or accompanied by
written instruments of transfer executed by CellStar Telecom; and (b) the
Purchaser shall deliver to CellStar Telecom the Share Purchase Price by wire
transfer of immediately available funds to the account designated by CellStar
Telecom in Exhibit A attached hereto. The date of the Closing is hereinafter
referred to as the "Closing Date."
3. Representations of CellStar Telecom. CellStar Telecom represents and
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warrants to the Purchaser as follows:
(a) Good Standing. CellStar Telecom is a corporation, duly organized,
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validly existing and in good standing under the laws of the State of
Delaware and has all
requisite power and authority to own, lease and operate its properties
and to carry on its business as now being conducted.
(b) Title. At Closing CellStar Telecom will own the Shares of record and
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beneficially, free and clear of any mortgages, pledges, liens,
encumbrances, charges, restrictions on transfer, taxes, security
interests, options, warrants, purchase rights, contracts, commitments,
equities, claims, demands, rights of first refusal or first offer,
voting agreements or other limitations (collectively, the "Liens"),
other than any restrictions under that certain Shareholders' Agreement
dated as of February 12, 1999 by and among ▇▇▇▇ Telecom and the
shareholders of ▇▇▇▇ Telecom (the "Shareholders' Agreement") and the
Securities Act of 1933, as amended (the "Securities Act"). The
delivery by CellStar Telecom to Purchaser at the Closing of the stock
certificates representing the Shares duly endorsed or accompanied by
duly endorsed stock powers will vest Purchaser with good title to the
Shares, free and clear of all Liens. The foregoing warranties exclude
any title defect arising from the failure of ▇▇▇▇ Telecom to deliver
good title to CellStar Telecom.
(c) Authority. CellStar Telecom has full right and power to execute,
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deliver and perform this Agreement and the CellStar Release (as
hereinafter defined) and to sell, assign, transfer and deliver the
Shares to be sold by CellStar Telecom at Closing. This Agreement has
been duly executed and delivered by CellStar Telecom and constitutes
the valid and binding obligation of CellStar Telecom enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
moratorium, reorganization, and other laws affecting creditors' rights
generally and to limitations in the availability of equitable
remedies. The execution of and performance of the transactions
contemplated by this Agreement and compliance with their provisions by
CellStar Telecom will not (i) conflict with or result in any breach of
any of the terms, conditions or provisions of, or constitute a default
under, or require a consent or waiver under any indenture, lease,
agreement or other instrument to which CellStar Telecom is a party or
by which it or any of its properties are bound (other than such
consents as are to be obtained prior to or upon the consummation of
the transactions contemplated hereby), or (ii) require any consent,
approval or authorization of, or declaration or filing with, any
governmental authority (other than such consents, approvals,
authorizations or filings as are to be obtained prior to the
consummation of the transactions contemplated hereby).
(d) No Other Ownership Interests. The Shares represent all of the capital
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stock of ▇▇▇▇ Telecom owned by CellStar Telecom and its affiliates.
Neither CellStar Telecom nor any of its affiliates has any option,
warrant, subscription, or other right or agreement to acquire or vote
any shares of capital stock of ▇▇▇▇ Telecom, other than as provided in
the Shareholders' Agreement.
(e) No Brokers. Neither CellStar Telecom nor any of its affiliates has
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made any agreement or taken any action which might cause any person or
entity to become
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entitled to a broker's fee or commission as a result of the
transactions contemplated hereunder.
(f) Investment Representations Regarding the Shares. Neither CellStar
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Telecom nor any of its affiliates has relied upon any representation,
warranty or statement (other than the representations, warranties and
statements contained in Section 4 hereof) made by, nor upon any
analysis of, Purchaser in connection with its sale of the Shares, and
has made its own investment analysis and decision to sell the Shares
based upon such information as it has deemed appropriate. CellStar
Telecom has the financial sophistication, knowledge and experience in
financial matters, and access to the information, necessary to make an
informed investment decision with respect to its proposed disposition
of the Shares. CellStar Telecom acknowledges that it has been advised
that it is the intention of ▇▇▇▇ Telecom to access the public markets
through a debt or equity offering in the future.
Other than as expressly set forth in this Section 3, CellStar Telecom makes
no representation or warranty whatsoever, and, specifically, makes no
representation or warranty as to the financial condition, results of operations,
cash flows, business, properties, prospects or creditworthiness of, or any other
circumstance in connection with ▇▇▇▇ Telecom, it being agreed that the Purchaser
controls ▇▇▇▇ Telecom and therefore has available to it all material information
concerning ▇▇▇▇ Telecom.
4. Representations of the Purchaser. The Purchaser represents and
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warrants to CellStar Telecom as follows:
(a) Good Standing. The Purchaser is a company, duly organized, validly
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existing and in good standing under the laws of Mexico and the
Purchaser has all requisite power and authority to own, lease and
operate its properties and to carry on its business as now being
conducted.
(b) Authority. The Purchaser has full right and power to execute,
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deliver and perform this Agreement and the Purchaser Release (as
hereinafter defined) and to purchase the Shares to be purchased by the
Purchaser at Closing. This Agreement has been duly executed and
delivered by the Purchaser and constitutes the valid and binding
obligation of the Purchaser enforceable in accordance with its terms,
subject to bankruptcy, insolvency, moratorium, reorganization, and
other laws affecting creditors' rights generally and to limitations in
the availability of equitable remedies. The execution of and
performance of the transactions contemplated by this Agreement and
compliance with their provisions by the Purchaser will not (i)
conflict with or result in any breach of any of the terms, conditions
or provisions of, or constitute a default under, or require a consent
or waiver under any indenture, lease, agreement or other instrument to
which the Purchaser is a party or by which it or any of its properties
are bound (other than such consents as are to be obtained prior to or
upon the consummation of the transactions contemplated hereby), or
(ii) require any consent, approval or authorization of, or declaration
or filing with, any governmental authority (other
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than such consents, approvals, authorizations or filings as are to be
obtained prior to the consummation of the transactions contemplated
hereby).
(c) Investment Representation regarding the Shares. The Purchaser
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acknowledges that the Shares have not been registered under the
Securities Act, and may not be reoffered or resold, except pursuant to
an exemption from the registration requirements of the Securities Act.
The Purchaser is acquiring the Shares for investment purposes only and
not with a view to, or for resale in connection with, any distribution
thereof in violation of applicable law. The Purchaser understands that
no liquid market exists for the Shares and that it is financially
capable of bearing the potential risks associated with holding the
Shares for an indefinite period of time. The Purchaser has not relied
upon any representation, warranty or statement (other than the
representations, warranties and statements contained in Section 3
hereof) made by, nor upon any analysis of, CellStar Telecom in
connection with its purchase of the Shares, and has made its own
investment analysis and decision to purchase the Shares based upon
such information as it has deemed appropriate. The Purchaser has the
financial sophistication, knowledge and experience in financial
matters, and access to the information, necessary to make an informed
investment decision with respect to its proposed purchase of the
Shares.
(d) No Brokers. The Purchaser has not made any agreement or taken any
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action which might cause any person or entity to become entitled to a
broker's fee or commission as a result of the transactions
contemplated hereunder.
Other than as expressly set forth in this Section 4, the Purchaser makes no
representation or warranty whatsoever, and, specifically, makes no
representation or warranty as to the financial condition, results of operations,
cash flows, business, properties, prospects or creditworthiness of, or any other
circumstance in connection with ▇▇▇▇ Telecom.
5. Covenant of CellStar Telecom. CellStar Telecom acknowledges on behalf
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of itself and its affiliates that, during the course of its relationship with
▇▇▇▇ Telecom, through its representation on the Board of Directors of ▇▇▇▇
Telecom and as a shareholder of ▇▇▇▇ Telecom, it may have become aware of
certain knowledge and information regarding ▇▇▇▇ Telecom's organization,
strategies, business and operations (including, but not limited to, information
concerning ▇▇▇▇ Telecom's financial condition, prospects, customers, sources of
leads, and methods of doing business). All such expertise, knowledge and
information shall be considered Confidential Information for purposes of this
Agreement; provided however, that, Confidential Information shall not include
information that (i) is or becomes generally available to the public other than
as a result of a disclosure by CellStar Telecom or any of its affiliates, or
(ii) became known by CellStar Telecom or any of its affiliates prior to or
subsequent to its relationship with ▇▇▇▇ Telecom, or (iii) was developed
independently by CellStar Telecom or any of its affiliates. For a period of
three years from the date hereof, CellStar Telecom or any of its affiliates
shall not divulge, communicate, use to the detriment of ▇▇▇▇ Telecom or for the
benefit of any other person or persons, or misuse in any way, any Confidential
Information under any circumstances, except as (i) first permitted in writing by
▇▇▇▇ Telecom, or (ii) required by
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law, subpoena, civil action demand or other process, in which case CellStar
Telecom shall provide ▇▇▇▇ Telecom with prompt written notice of such request or
requirement so that ▇▇▇▇ Telecom may seek a protective order or such appropriate
remedy and/or waive compliance with this covenant. Notwithstanding the
foregoing, CellStar Telecom or any of its affiliates may disclose Confidential
Information: (i) to its attorneys, accountants and professional consultants who
need to know such information, or (ii) as CellStar Telecom or any of its
affiliates deems appropriate in connection with the pending putative class
actions currently filed or threatened, against CellStar Telecom or any of its
affiliates and any investigation, action or proceeding relating to or arising
from the events and circumstances allegedly giving rise to said putative class
actions.
6. Conditions to the Obligations of the Purchaser. The obligation of the
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Purchaser to purchase the Shares at the Closing is subject to the fulfillment,
or the waiver by the Purchaser, of each of the following conditions on or before
the Closing.
(a) Accuracy of Representations and Warranties. The representations and
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warranties of CellStar Telecom contained in Section 3 shall be true on
and as of the Closing Date with the same effect as though such
representation and warranty had been made on and as of that date.
(b) Performance. CellStar Telecom shall have performed and complied with
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all agreements and conditions contained in this Agreement required to
be performed or complied with by CellStar Telecom prior to or at the
Closing.
(c) Cancellation of Note. CellStar shall have delivered that certain
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Divided Replacement Note One dated as of February 12, 1999, in the
aggregate original principal amount of $22,507,537.00 issued to
CellStar, Ltd. by ▇▇▇▇ Telecom (the "Note") to ▇▇▇▇ Telecom, marked
cancelled as of July 20, 1999, evidencing that all principal and
accrued and unpaid interest on the Note has been fully paid and
satisfied.
(d) Resignation of CellStar Director. ▇▇▇▇▇▇ ▇▇▇▇▇ shall have resigned as
--------------------------------
a director of ▇▇▇▇ Telecom.
(e) Security Interest. CellStar shall have delivered to the Purchaser a
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UCC-3 partial release from Chase Bank of Texas, N.A. ("Chase")
indicating that Chase no longer holds any interest in the Shares or
the Note.
(f) Release. CellStar Telecom shall deliver a release and waiver to
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Telefonos de Mexico, S.A. de C.V., a corporation organized under the
laws of Mexico ("Telmex") and the Purchaser, substantially in the form
of Exhibit B attached hereto ("CellStar Release"), releasing each of
Telmex and the Purchaser from certain claims arising out of or in
connection with that certain Stock Purchase Agreement dated as of
February 5, 1999 by and among CellStar Telecom, Telmex, the Purchaser,
▇▇▇▇ Telecom, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ Wine and ▇▇▇▇ ▇▇▇▇
(the "Stock Purchase Agreement").
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7. Conditions to the Obligations of CellStar Telecom. The obligations of
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CellStar Telecom under this Agreement are subject to fulfillment, or the waiver
by CellStar Telecom of the following conditions on or before the Closing:
(a) Accuracy of Representations and Warranties. The representations and
------------------------------------------
warranties of the Purchaser contained in Section 4 shall be true on
and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of that date.
(b) Performance. The Purchaser shall have performed and complied with all
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agreements and conditions contained in this Agreement required to be
performed or complied with by the Purchaser prior to or at the
Closing.
(c) Issuance of Shares. ▇▇▇▇ Telecom shall have issued to CellStar Telecom
------------------
3,177 Shares of Class A Voting Common Stock and 67,416 Shares of Class
B Voting Common Stock dated as of July 20, 1999 in exchange for the
Note.
(d) Release. The Purchaser shall deliver and shall cause Telmex to deliver
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a release and waiver to CellStar Telecom, substantially in the form of
Exhibit C attached hereto ("Purchaser Release"), releasing CellStar
Telecom from certain claims arising out of or in connection with the
Stock Purchase Agreement.
8. Consent to Sale. ▇▇▇▇ Telecom hereby consents to the sale of the
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Shares as contemplated by this Agreement.
9. Miscellaneous.
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(a) Survival of Representations, Warranties and Covenants. All
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representations, warranties, covenants and agreements contained herein
shall survive the execution and delivery of this Agreement and the
Closing and shall terminate at the close of business two years from
the date of Closing, except (i) the covenants in Section 5 hereof
shall survive as provided therein, and (ii) the representations in
Section 3(b) shall survive for the applicable statute of limitation.
(b) Modification. This Agreement may only be amended, terminated or
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modified by the written consent of CellStar Telecom and the Purchaser.
(c) Successors. This Agreement shall be binding upon the parties hereto,
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their heirs, administrators, successors, executors and assigns, and
the parties hereto do covenant and agree that they themselves and
their respective heirs, executors, successors, administrators and
assigns will execute any and all instruments, releases, assignments
and consents that may be reasonably required of them to more fully
execute the provisions of this Agreement.
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(d) Counterparts. This Agreement may be executed in several counterparts,
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each of which shall serve as an original for all purposes, but all
copies of which shall constitute but one and the same Agreement.
(e) Headings. All headings set forth in this Agreement are intended for
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convenience only and shall not control or affect the meaning,
construction or effect of this Agreement or of any of the provisions
thereof.
(f) Governing Law. This Agreement shall be governed by and shall be
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construed and enforced in accordance with the laws of the State of
Florida.
(g) Waiver. The waiver by any party hereto of a breach of any provision of
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this Agreement shall not operate or be construed as a waiver of any
subsequent breach by any party.
(h) Entire Agreement. This Agreement constitutes the entire Agreement of
----------------
the parties hereto with respect to the transactions contemplated
hereby, and it is hereby agreed that any prior oral or written
agreements concerning the transactions contemplated hereby shall be
null and void.
(i) Severability. If any provision of this Agreement shall be held to be
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illegal or unenforceable, such illegality or unenforceability shall
extend to that provision solely, and the remainder of this Agreement
shall be enforced as if such illegal or unenforceable provision were
not incorporated herein.
(j) Attorneys' Fees and Costs. If either party seeks to enforce its
-------------------------
rights or remedies hereunder, the prevailing party shall be entitled
to reasonable attorneys' fees, expenses, and costs incurred in connection
therewith.
(k) VENUE. THE PARTIES HERETO CONSENT AND AGREE THAT THE STATE OR FEDERAL
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COURTS LOCATED IN MIAMI-DADE COUNTY, FLORIDA SHALL HAVE EXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE
PARTIES PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF
OR RELATING TO THIS AGREEMENT, PROVIDED, NOTHING IN THIS AGREEMENT
SHALL BE DEEMED OR OPERATE TO PRECLUDE THE PARTIES HERETO FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION
TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH PARTY. THE
PARTIES HERETO HEREBY WAIVE PERSONAL SERVICE OF THE SUMMONS,
COMPLAINTS AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREE THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS MAY
BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AND
THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE
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EARLIER OF ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN
THE U.S. MAIL, PROPER POSTAGE PREPAID.
(l) WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY
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AND INTENTIONALLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT
OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE, BETWEEN THE PARTIES HERETO ARISING OUT
OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THIS AGREEMENT OR THE
TRANSACTIONS RELATED HERETO OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER
PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES HERETO
ENTERING INTO THIS AGREEMENT.
(m) Notices. Any notice or communication hereunder must be in writing, and
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may be personally delivered or given by registered or certified mail,
return receipt requested, and if given by registered or certified
mail, shall be deemed to have been given and received forty-eight
hours after deposit in the United States mail of a registered or
certified letter, return receipt requested, containing such notice,
properly addressed, with postage prepaid; and if given otherwise than
by registered or certified mail, it shall be deemed to have been given
when received by the party to whom it is addressed at the time
received. All notices or communications shall be sent to the following
addresses unless subsequently changed in accordance with the
provisions of this Agreement:
To ▇▇▇▇ Telecom: ▇▇▇▇ Telecom, Inc.
▇▇▇▇ ▇.▇. ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
To the Purchaser: Inmobiliaria Aztlan, S.A. de C.V.
c/o Telefonos de Mexico, S.A. de C.V.
Parque Via, 190/1016
Col. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, D.F.
Mexico
Telecopier: 011 52 5 255-1576
Attention: Chief Financial Officer
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To CellStar Telecom: CellStar Telecom, Inc.
c/o CellStar Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
Any party may change its address for the purposes of this Agreement by giving
notice of such change of address to the other parties in the manner herein
provided for giving notice.
(n) Expenses. Each party shall bear its own expenses incidental to this
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Agreement.
(o) Publicity. There shall be consultation between Purchaser and CellStar
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prior to any public announcement concerning this Agreement or the
transactions contemplated hereby.
(p) Third Party Beneficiary. ▇▇▇▇ Telecom shall be deemed a third party
-----------------------
beneficiary with respect to the provision set forth in Section 5
hereof.
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IN WITNESS WHEREOF, the parties to this Agreement have hereunto set their
names as of the date first above written.
INMOBILIARIA AZTLAN, S.A. de C.V.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney-in-Fact
CELLSTAR TELECOM, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
For purposes of Sections 5 and 8 only:
▇▇▇▇ TELECOM, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
and General Counsel
EXHIBIT A
Wire Instructions:
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Bank Name: Chase Bank of Texas
Address of Bank: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Account #: 08806172217
ABA#: ▇▇▇▇▇▇▇▇▇
Name of Beneficiary: CellStar Corporation
Address of Beneficiary: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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EXHIBIT B
SPECIFIC RELEASE AND WAIVER
AND COVENANT NOT TO ▇▇▇
KNOW ALL MEN BY THESE PRESENTS that, the undersigned, individually and on
behalf of their Affiliates (as defined in the February Purchase Agreement (as
hereinafter defined)), officers, directors, employees, partners and agents
(hereafter, collectively the "Releasor"), for good and valuable consideration,
including, without limitation, the covenants contained in that certain Stock
Purchase Agreement of even date herewith, executed by CellStar Telecom, Inc.,
Inmobiliaria Aztlan, S.A. de C.V., , and for purposes of Section 5 and 8
thereof, ▇▇▇▇ Telecom, Inc. (the "Purchase Agreement") and the transactions
contemplated under the Purchase Agreement, the receipt and sufficiency of which
are hereby acknowledged, hereby fully release, remise, acquit, satisfy and
forever discharge Telefonos de Mexico S.A. de C.V. and Inmobiliaria Aztlan, S.A.
de C.V. (collectively, the "Released Parties"), of and from any and all rights,
claims, controversies, investigations, demands, damages, judgments, executions,
actions, suits and causes of action of any nature whatsoever, whether known or
unknown, direct or indirect, including, but not limited, to claims for
indemnity, rescission, restitution, specific performance, accounting, tort,
breach of contract, breach of fiduciary duty, negligence, fraud and claims under
all federal or state securities laws, whether arising at law or in equity, under
local, state, federal or foreign laws, which the Releasor or any of them may
have had, may now have or may in the future have or claim to have had, now have
or had, against the Released Parties or any of them by reason of, arising out
of, or based upon, any act, omission, occurrence, matter, transaction, event or
thing arising from or related to that certain Stock Purchase Agreement dated as
of February 5, 1999 by and among CellStar Telecom, Inc., ▇▇▇▇ Telecom, Inc.,
Telefonos de Mexico S.A. de C.V., Inmobiliaria Aztlan, S.A. de C.V., ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ Wine and ▇▇▇▇ ▇▇▇▇ (the "February Purchase Agreement"),
including without limitation, Article XIV thereof, except only for the
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representations and warranties contained in Article VI of the February Purchase
Agreement and the indemnification provisions contained in Articles XIV of the
February Purchase Agreement specifically relating to a breach of those
representations and warranties (collectively, the "Claims").
The Releasor hereby agrees that it or he will forever refrain and forbear
from commencing, instituting or prosecuting any lawsuit, action or other
proceeding of any kind whatsoever, by way of action, defense, set-off, cross-
complaint, counterclaim or third party action, against the Released Parties,
based on, relating to, arising out of, or in connection with any Claims released
and discharged hereunder.
The Releasor hereby waives, to the fullest extent permitted by law, the
benefits of any statute, law, rule, regulation or common law, which may limit
the scope of the covenants and releases contained herein.
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The Releasor hereby represents and warrants that the execution and delivery
of this Release and Waiver has been duly authorized, executed and delivered and
is the valid and binding obligation of the Releasor, enforceable in accordance
with its terms. The Releasor further confirms and acknowledges that the terms of
this Release and Waiver are contractual and not a mere recital and that the
Releasor has not been influenced in any manner in making this Release and Waiver
by any representations or statements made by or on behalf of the Released
Parties, that the Releasor has sought and received the advice of counsel in
connection with the effect of the execution and delivery of this Release and
Waiver, that the Releasor has carefully read and fully understand the contents
of this Release and Waiver, and that the Releasor has duly executed this Release
and Waiver freely and voluntarily, intending and agreeing to be fully bound by
the terms hereof.
This Release and Waiver shall be governed by Florida law without regard to
conflicts of law principles thereunder. If any provision of this Release and
Waiver, or the application of such provision to any person or circumstance,
shall be held invalid, void or unenforceable, the remainder of this Release and
Waiver, or the application of such provision to persons or circumstances other
than those to which it is held invalid, void or unenforceable, shall not be
effected thereby.
This Release and Waiver shall remain in full force and effect and survive
any future dealings among the parties hereto, unless this Release and Waiver
shall hereafter be modified by an instrument in writing and signed by the
Releasor and on behalf of the Released Parties.
If any provision of this Release and Waiver is waived in any manner,
whether by agreement or operation of law, the balance of the provisions hereof
shall nevertheless remain in full force and effect, shall not be deemed waived,
affected, impaired or otherwise invalidated and shall be enforced to the maximum
effect permitted by applicable law. All waivers to be effective shall be in
writing and signed by a duly authorized officer of the waiving party.
In the event that any claim, action or proceeding is brought with respect
to the Claims released hereunder or any breach of the covenants contained herein
or to interpret or enforce any of the terms hereof, the nonprevailing party(ies)
shall be jointly and severally obligated to pay to the prevailing party(ies)
their reasonable attorneys' fees, costs and expenses incurred in connection with
the prosecution or defense of such claim, action or proceeding (including at any
appellate level).
THE RELEASOR CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED
IN MIAMI-DADE COUNTY, FLORIDA SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE RELEASOR OR THE RELEASED PARTY
PERTAINING TO THIS RELEASE OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS
RELEASE, PROVIDED, NOTHING IN THIS RELEASE SHALL BE DEEMED OR OPERATE TO
PRECLUDE THE RELEASED PARTY OR THE RELEASOR FROM BRINGING SUIT OR TAKING OTHER
LEGAL ACTION IN ANY OTHER JURISDICTION TO ENFORCE A JUDGMENT OR OTHER COURT
ORDER IN FAVOR OF SUCH PARTY. THE RELEASOR HEREBY WAIVES PERSONAL SERVICE OF THE
SUMMONS, COMPLAINTS AND OTHER
13
PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL ADDRESSED TO THE RELEASOR AND THAT SERVICE SO MADE SHALL BE DEEMED
COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER
DEPOSIT IN THE U.S. MAIL, PROPER POSTAGE PREPAID.
THE RELEASOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY
DISPUTE WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN THE RELEASOR
AND THE RELEASED PARTY ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL
TO THIS RELEASE OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF EITHER THE RELEASOR OR THE RELEASED PARTY.
[Signatures follow immediately on next page]
14
IN WITNESS WHEREOF, the Releasor has executed this Release and Waiver as of
September 3, 1999.
CellStar Telecom, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Title: Senior Vice President
---------------------
15
EXHIBIT C
SPECIFIC RELEASE AND WAIVER
AND COVENANT NOT TO ▇▇▇
KNOW ALL MEN BY THESE PRESENTS that, the undersigned, individually and on
behalf of their Affiliates (as defined in the February Purchase Agreement (as
hereinafter defined)), officers, directors, employees, partners and agents
(hereafter, collectively the "Releasors"), for good and valuable consideration,
including, without limitation, the covenants contained in that certain Stock
Purchase Agreement of even date herewith, executed by CellStar Telecom, Inc.,
Inmobiliaria Aztlan, S.A. de C.V., , and for purposes of Section 5 and 8
thereof, ▇▇▇▇ Telecom, Inc. (the "Purchase Agreement") and the transactions
contemplated under the Purchase Agreement, the receipt and sufficiency of which
are hereby acknowledged, hereby fully release, remise, acquit, satisfy and
forever discharge CellStar Telecom, Inc. (the "Released Party"), of and from any
and all rights, claims, controversies, investigations, demands, damages,
judgments, executions, actions, suits and causes of action of any nature
whatsoever, whether known or unknown, direct or indirect, including, but not
limited, to claims for indemnity, rescission, restitution, specific performance,
accounting, tort, breach of contract, breach of fiduciary duty, negligence,
fraud and claims under all federal or state securities laws, whether arising at
law or in equity, under local, state, federal or foreign laws, which the
Releasors or any of them may have had, may now have or may in the future have or
claim to have had, now have or had, against the Released Parties or any of them
by reason of, arising out of, or based upon, any act, omission, occurrence,
matter, transaction, event or thing arising from or related to that certain
Stock Purchase Agreement dated as of February 5, 1999 by and among CellStar
Telecom, Inc., ▇▇▇▇ Telecom, Inc., Telefonos de Mexico S.A. de C.V.,
Inmobiliaria Aztlan, S.A. de C.V., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ Wine and
▇▇▇▇ ▇▇▇▇ (the "February Purchase Agreement"), including without limitation,
Article XIV thereof, except only for the representations and warranties
---------------
contained in Article V of the February Purchase Agreement and the
indemnification provisions contained in Articles XIV of the February Purchase
Agreement specifically relating to a breach of those representations and
warranties (collectively, the "Claims").
Each Releasor hereby agrees that it or he will forever refrain and forbear
from commencing, instituting or prosecuting any lawsuit, action or other
proceeding of any kind whatsoever, by way of action, defense, set-off, cross-
complaint, counterclaim or third party action, against the Released Party, based
on, relating to, arising out of, or in connection with any Claims released and
discharged hereunder.
Each Releasor hereby waives, to the fullest extent permitted by law, the
benefits of any statute, law, rule, regulation or common law, which may limit
the scope of the covenants and releases contained herein.
Each Releasor hereby represents and warrants that the execution and
delivery of this Release and Waiver has been duly authorized, executed and
delivered and is the valid and
16
binding obligation of the Releasors, enforceable in accordance with its terms.
The execution of and performance of the obligations contemplated by this Release
and compliance with its provisions by the Releasors will not conflict with or
result in any breach of any of the terms, conditions or provisions of, or
constitute a default under, or require a consent or waiver under any indenture,
lease, agreement or other instrument to which either of the Releasors is a party
or by which it or any of its properties are bound (other than such consents as
are to be obtained prior to or on the date hereof), or require any consent,
approval or authorization of, or declaration or filing with, any governmental
authority (other than such consents, approvals, authorizations or filings as are
to be obtained prior to or on the date hereof or as may be required by the
Releasors in connection with any confidentiality agreement by which either of
the Releasors is bound and except for compliance with applicable requirements of
the Securities Exchange Act of 1934). Each Releasor further confirms and
acknowledges that the terms of this Release and Waiver are contractual and not a
mere recital and that each Releasor has not been influenced in any manner in
making this Release and Waiver by any representations or statements made by or
on behalf of the Released Party, that each Releasor has sought and received the
advice of counsel in connection with the effect of the execution and delivery of
this Release and Waiver, that each Releasor has carefully read and fully
understand the contents of this Release and Waiver, and that each Releasor has
duly executed this Release and Waiver freely and voluntarily, intending and
agreeing to be fully bound by the terms hereof.
This Release and Waiver shall be governed by Florida law without regard to
conflicts of law principles thereunder. If any provision of this Release and
Waiver, or the application of such provision to any person or circumstance,
shall be held invalid, void or unenforceable, the remainder of this Release and
Waiver, or the application of such provision to persons or circumstances other
than those to which it is held invalid, void or unenforceable, shall not be
effected thereby.
This Release and Waiver shall remain in full force and effect and survive
any future dealings among the parties hereto, unless this Release and Waiver
shall hereafter be modified by an instrument in writing and signed by each
Releasor and on behalf of the Released Parties.
If any provision of this Release and Waiver is waived in any manner,
whether by agreement or operation of law, the balance of the provisions hereof
shall nevertheless remain in full force and effect, shall not be deemed waived,
affected, impaired or otherwise invalidated and shall be enforced to the maximum
effect permitted by applicable law. All waivers to be effective shall be in
writing and signed by a duly authorized officer of the waiving party.
In the event that any claim, action or proceeding is brought with respect
to the Claims released hereunder or any breach of the covenants contained herein
or to interpret or enforce any of the terms hereof, the nonprevailing party(ies)
shall be jointly and severally obligated to pay to the prevailing party(ies)
their reasonable attorneys' fees, costs and expenses incurred in connection with
the prosecution or defense of such claim, action or proceeding (including at any
appellate level).
EACH RELEASOR CONSENTS AND AGREES THAT THE STATE OR FEDERAL
17
COURTS LOCATED IN MIAMI-DADE COUNTY, FLORIDA SHALL HAVE EXCLUSIVE JURISDICTION
TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE RELEASORS AND THE
RELEASED PARTIES PERTAINING TO THIS RELEASE OR TO ANY MATTER ARISING OUT OF OR
RELATING TO THIS RELEASE, PROVIDED, NOTHING IN THIS RELEASE SHALL BE DEEMED OR
OPERATE TO PRECLUDE THE RELEASED PARTIES OR THE RELEASORS FROM BRINGING SUIT OR
TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO ENFORCE A JUDGMENT OR
OTHER COURT ORDER IN FAVOR OF SUCH PARTY. EACH RELEASOR HEREBY WAIVES PERSONAL
SERVICE OF THE SUMMONS, COMPLAINTS AND OTHER PROCESS ISSUED IN ANY SUCH ACTION
OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS
MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO THE RELEASORS AND THAT
SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT
THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAIL, PROPER POSTAGE
PREPAID.
EACH RELEASOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY
DISPUTE WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN THE RELEASORS
AND THE RELEASED PARTIES ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THIS RELEASE OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER THE RELEASORS OR THE
RELEASED PARTIES.
[Signatures follow immediately on next page]
18
IN WITNESS WHEREOF, the Releasors have executed this Release and Waiver as
of September 3, 1999.
Telefonos de Mexico S.A. de C.V.,
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------
Title: Attorney-in-fact
---------------------
Inmobiliaria Aztlan, S.A. de C.V.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------
Title: Attorney-in-fact
---------------------
19
