EXHIBIT 10.43
AMENDED AND RESTATED STOCK PLEDGE AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED STOCK PLEDGE AND SECURITY AGREEMENT (the
"Agreement ") is made as of April 23, 2004, by BRIGHTSTAR CORP., a Delaware
corporation (the "Pledgor"), in favor of MOTOROLA , INC., a Delaware
corporation, in its capacity as agent for itself and the other Motorola Parties
(in such capacity, the "Secured Party").
Preliminary Statements
(a) The Pledgor entered into a stock pledge and security agreement dated
May 24, 2002 (the "Original Pledge Agreement"), in favor of Motorola, Inc.
(b) The Pledgor and the Secured Party desire to amend the Original Pledge
Agreement and to restate it in its entirety as so amended.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties agree to amend and restate the Original Pledge
Agreement in its entirety as follows:
1. Definitions. All capitalized terms used but not defined in this
Agreement have the meanings given in the Amended and Restated Payment Terms
Agreement, dated as of April 23, 2004, by and among Motorola, Inc. (in its
capacity as agent for itself and the other Motorola Parties), Brightstar Corp.
and the other persons and entities that are parties thereto (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the
"Payment Terms Agreement").
"Collateral" shall mean collectively (i) the Pledged Stock (as defined
herein) together with any other securities which the Pledgor is required to
deliver to the Secured Party hereunder and (ii) the Proceeds (as hereinafter
defined) of the foregoing.
"Pledged Stock" shall have the meaning given to such term in Section 4(b)
hereof.
"Proceeds" shall mean whatever is received when any of the Pledged Stock
is sold, exchanged, collected or otherwise disposed of, including cash, payment
of money, chattel paper, security agreements and other documents.
2. Amendment and Restatement; Guaranties and Liens Unimpaired. This
Agreement amends, restates and replaces the Original Pledge Agreement in its
entirety. It is the intention and understanding of the parties that (a) this
Agreement shall continue the obligations under the Original Pledge Agreement
(and any Brightstar Obligations represented, guarantied or secured thereby) and
shall not act as a novation of the Original Pledge Agreement (or any Brightstar
Obligations represented, guarantied or secured thereby), (b) all guaranties and
all security interests, pledges and other liens guarantying or securing the
Original Pledge Agreement (or any Brightstar Obligations represented, guarantied
or secured thereby) shall remain in full force and effect and shall guarantee
and secure this Agreement (and all Brightstar Obligations represented,
guarantied or secured thereby), and (c) the priority of all guaranties and all
security interests, pledges and other liens guarantying or securing any
obligations under the Original
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Pledge Agreement (or any Brightstar Obligations represented, guarantied or
secured thereby) shall not be impaired by the execution, delivery or performance
of this Agreement.
3. Creation of Security Interest. To secure the prompt payment and
performance of the Brightstar Obligations, the Pledgor hereby grants, bargains,
hypothecates, assigns, transfers, sets over to the Secured Party, a first
priority security interest in and to the Collateral. Until termination of the
security interest as provided hereinafter, the pledge, assignment, transfer,
setting over, conveyance and delivery of, and security interest in, all the
Collateral hereby shall continue in full force and effect.
4. Representations and Warranties. The Pledgor represents and warrants to
the Secured Party, as follows:
(a) Collateral.
(i) The Pledgor has all right, title and interest in and to
the Collateral, and that the Pledgor shall warrant and defend the Secured
Party's security interest against the claims of all persons whomsoever.
(ii) Except as granted herein, the Collateral is not subject
to any agreement, trust, pledge, charge, option, restriction, claim,
demand, security interest, lien or encumbrance or any kind or nature and
the Pledgor has not disposed of any interest in the Collateral.
(iii) The Pledgor has full right, power and lawful authority
to transfer, convey, assign and pledge the Collateral to the Secured
Party.
(iv) This Agreement creates and constitutes and will at all
times constitute a valid, direct and paramount security interest in the
Collateral.
(v) The Pledgor has complied with all foreign, federal and
state laws and regulations applicable to the pledge of the Collateral, and
no consents are required to make the pledge effective.
(b) The Pledged Stock. The Pledgor owns all of the ownership, voting
and all other rights in 9,000 shares of the capital stock of Brightstar US,
Inc., a Florida corporation ("Brightstar US"). All of the foregoing right,
title and interest of the Pledgor, and all shares resulting from the exercise of
any options, warrants or other contractual rights to acquire additional shares
in Brightstar US and all distributions on all of the foregoing, whether in kind,
in the form of additional shares of stock of Brightstar US or in cash, is
subject to the pledge being granted herein, and all of the foregoing is referred
to as the "Pledged Stock". To the extent any of the foregoing may also be
considered Proceeds, the characterization shall be such as better protects the
security interest of the Secured Party, it being the intent of the parties
hereto that the characterization of the interests being granted herein should
not adversely effect the Secured Party.
(c) Further Representations and Warranties. The execution, delivery
and performance of this Agreement will not (A) violate any provisions of (i)
law; (ii) any order of
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any court or other agency of government applicable to the Pledgor or its
property; or (iii) any agreement to which the Pledgor is a party or by which the
Pledgor or any of its properties is bound, or (B) be in conflict with, result in
a breach of or constitute (with due notice or lapse of time or both) a default
under, any such indenture, agreement or other instrument, or result in the
creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon the Collateral.
5. Affirmative Covenants of the Pledgor. The Pledgor covenants and agrees
with the Secured Party that the Pledgor will:
(a) Deliver Collateral. (i) Deliver to the Secured Party
simultaneously with the execution of this Agreement and shall continuously at
all times maintain with the Secured Party during the term hereof, the Pledged
Stock, including original stock certificates evidencing the Pledged Stock; and
(ii) at all times will execute and deliver such instruments as the Secured Party
may request, including but not limited to stock powers endorsed in blank, in
order to assign to the Secured Party and confirm unto the Secured Party the
pledge of all rights of the Pledgor arising from the ownership of the Pledged
Stock. At the time of execution hereof, there are 10,000 shares of Brightstar US
stock issued and outstanding and the record and beneficial ownership thereof is
as follows: the Pledgor, 9,000 shares; Xxxxxx Xxxxxx, 1,000 shares. Delivery and
custody of the Pledged Stock will be in the manner selected by the Secured Party
and shall be held by such persons as the Secured Party, in its discretion, may
designate.
(b) Transfer Legends. (i) Cause the issuer of the Pledged Stock (a)
to maintain appropriate stop transfer legends in its corporate stock record
books prohibiting any attempted transfer thereof by the Pledgor; and (ii) to
place on each of the stock certificates evidencing the Pledged Stock a legend in
form acceptable to the Secured Party to the general effect of serving to notify
any third party of the security interest of the Secured Party in the Pledged
Stock evidenced by the particular stock certificate.
(c) Other Provisions. Comply with each and every other provision of
this Agreement and promptly do or refrain from doing such acts as the Secured
Party may reasonably request to effectuate the provisions and purposes of this
Agreement.
(d) Representations and Warranties. Perform such other actions as
may be necessary to ensure that all representations and warranties made
hereunder shall be true and correct during the term hereof.
6. Negative Covenant of the Pledgor. The Pledgor covenants and agrees with
the Secured Party that it will not contract, create, assume, incur or suffer to
be created, assumed or incurred or to exist any mortgage, lien, security
interest, charge or encumbrance of any kind, upon, or pledge of, any of the
Collateral other than that in favor of the Secured Party, or attempt to sell,
transfer or convey any interest in the Collateral, and will pay or cause to be
paid prior to delinquency all taxes, fees, assessments or other charges now or
hereafter imposed upon the Collateral.
7. No Additional Stock Issued. The Pledgor covenants and agrees with the
Secured Party that it will not permit the issuance of any additional shares of
capital stock of Brightstar US
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without the prior written consent of the Secured Party, except for options
granted to employees (other than the Pledgor) which shall not exceed 10% of
Brightstar US's outstanding capital stock and voting rights.
8. Rights and Remedies of the Secured Party. Upon the occurrence of any
Default or Event of Default, then and in addition to all other rights and
remedies set forth herein:
(a) The Secured Party shall have the right from time to time, in any
commercially reasonable manner, to sell, resell, assign, transfer and deliver
all or any part of, or otherwise realize the value of any of the property in
which the Secured Party has a security interest hereunder, at any brokers' board
or exchange, or at public or private sale or otherwise, at the option of the
Secured Party, for cash or on credit for future delivery, in such parcel or
parcels and at such time or times and at such place or places, and upon such
terms and conditions as the Secured Party may deem proper, and in connection
therewith may grant options and may impose reasonable conditions, all without
(except as shall be required by any applicable statute which cannot be waived)
advertisement or demand upon or notice to the Pledgor or right of redemption of
the Pledgor, all of which are hereby expressly waived, except where any such
rights cannot be waived under any applicable law;
(b) Upon any public sale, the Secured Party may, unless prohibited
by any applicable statute which cannot be waived, purchase all or any part of
any such property being sold, free from and discharged of all trust, claims,
rights of redemption and equities of the Pledgor, which are hereby waived and
released, unless preserved by any applicable statute which cannot be waived;
(c) The Secured Party shall have the right to receive, endorse,
assign or deliver in its own name or the name of the Pledgor any and all checks,
drafts and other instruments for the payment of money relating to the Collateral
and the Pledgor hereby waives notice of presentment, protest and nonpayment of
any instruments so endorsed. In furtherance of the foregoing, the Pledgor hereby
irrevocably appoints the Secured Party, or any of its officers or designees, as
the Pledgor's true and lawful agent and attorney-in- fact, with power of
substitution, (i) to sign the name of the Pledgor to any Collateral pledged
hereunder, including, but not limited to, transferring such Collateral in the
name of the Secured Party or its assigns; (ii) to commence and prosecute any and
all suits, actions or proceedings at law or in equity in any court of competent
jurisdiction to collect or otherwise realize on all or any of the Collateral or
to enforce any rights in respect thereof; (iii) to settle, compromise, compound,
adjust or, defend any actions, suits or proceedings relating to or pertaining to
all or any of the Collateral; (iv) to execute such other and further grants,
mortgages, pledges and assignments of the Collateral as the Secured Party may
reasonably require for the purpose of protecting or maintaining the security
interest granted to the Secured Party; (v) to vote the Collateral, or any of it,
in such manner and for such purposes as the Secured Party may, in its sole and
absolute discretion, desire, including, but not limited to, voting to remove any
or all of the then existing directors, officers or partners of the issuer of the
Pledged Stock or any subsidiary thereof and selling the Collateral on such terms
as the Secured Party shall desire; provided, however, unless and until an Event
of Default has occurred and has continued beyond the expiration of any
applicable cure period, that the foregoing shall not prohibit the Pledgor from
voting or collecting dividends with respect to the Collateral if not prohibited
under any agreement with the Secured Party; and (vi) generally to
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perform all other acts the Secured Party in its sole discretion deems necessary
or proper to carry out the intention of this Agreement, as fully and completely
as though the Secured Party were the absolute owner of the Collateral for all
purposes, and the Pledgor hereby ratifies and confirms all that the Secured
Party, as such agent or attorney- in-fact, or its substitutes, shall do by
virtue of this appointment and grant of power. The Pledgor agrees that the
Secured Party may notify the issuer of the Pledged Stock that the Collateral has
been assigned to the Secured Party or of the Secured Party's security interest
therein, and that the Pledgor shall deal with the Secured Party directly. The
Secured Party shall not be responsible nor liable for any shortage, discrepancy,
damage, loss or destruction of any part of the Collateral wherever the same may
be located regardless of the cause thereof, including, in particular, the
negligence of the Secured Party, unless the same shall happen through gross
negligence or willful misconduct of the Secured Party. The Secured Party shall
not, under any circumstances or any event whatsoever, unless the same shall
happen through gross negligence or willful misconduct of the Secured Party, have
any liability for any error or omission or delivery of any kind made in the
settlement, collection or payment of any of the Collateral or of any instrument
received in payment therefor or for any damage resulting therefrom. The
foregoing limitation of liability shall apply regardless of whether such loss
shall be caused by the negligence of the Secured Party. The costs of collection,
notification and enforcement, including, but not limited to, counsel fees and
out-of-pocket expenses, shall be borne solely by the Pledgor, whether the same
are incurred by the Secured Party or the Pledgor;
(d) The Pledgor will, upon the receipt by it of any payments,
revenue, income, profits or other sums in which, or resulting from any
Collateral in which a security interest is granted by this Agreement or of any
check, draft, note, trade acceptance or other instrument evidencing an
obligation to pay any such sum, hold the same in trust for the Secured Party in
precisely the form received, and will forthwith, without any notice or demand
whatsoever (all notices, demands or other actions on the part of the Secured
Party being hereby expressly waived), endorse, transfer and deliver any such
sums or instruments, or both, to the Secured Party for prompt application to the
payment of the Brightstar Obligations in a manner satisfactory to the Secured
Party; and
(e) The Secured Party shall have the right to require the Pledgor to
notify the issuers of securities pledged hereunder or the paying agents therefor
to make payments owed thereunder directly to the Secured Party, and to collect
any or all accounts or proceeds, or to sell, transfer, compromise, discharge,
extend or xxx for the whole or any part of such accounts.
(f) The Secured Party will exercise its remedies under this Section
6 in accordance with the applicable provisions of Chapter 679 of the Florida
Statutes.
9. Notification of Disposition. If any notification of intended
disposition of any property described herein or of any other intended action of
the Secured Party is required by any applicable law, such notification shall be
deemed reasonably and properly given if mailed to the Pledgor at the address set
forth herein at least ten (10) Business Days before such disposition or other
intended action.
10. Remedies Cumulative. All options, powers and rights granted to the
Secured Party hereunder, or under any guarantee or other document or writings
delivered to the Secured
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Party by the Pledgor, shall be cumulative and shall be in addition to any other
options, powers or rights which the Secured Party may now or hereafter have as a
secured party under the Florida Uniform Commercial Code or under any other
applicable law or otherwise.
11. Expenses, Etc. The Pledgor will reimburse the Secured Party for all
reasonable expenses (including reasonable expenses for legal services of every
kind) of, or incidental to the enforcement of any of the provisions of, this
Agreement or any actual or attempted sale, or any exchange, enforcement,
collection, compromise or settlement of any of the Collateral and for the care
of the Collateral and defending or asserting the rights and claims of the
Secured Party in respect of the Collateral, by litigation or otherwise,
including, but not limited to, reasonable fees and expenses of counsel for the
Secured Party. All such expenses shall be secured by this Agreement.
12. Delay. No delay on the part of the Secured Party in exercising any of
its options, powers or rights, or partial or single exercise thereof, shall
constitute a waiver thereof.
13. Application of Proceeds. All proceeds received from the sale or other
disposition of the Collateral shall be applied by the Secured Party as follows:
(a) First: to the payment of all costs and expenses incurred by the
Secured Party in connection with any such sale or collection of the Collateral,
including, without limitation, all court costs and the reasonable fees and
expenses of counsel for the Secured Party in connection therewith, and the
payment of all costs and expenses paid or incurred by the Secured Party in
connection with this Agreement, or the exercise of any right or remedy hereunder
or thereunder, to the extent that such advances, costs and expenses shall not
have been paid to the Secured Party upon its demand therefor;
(b) Second : to the payment of all other Brightstar Obligations;
(c) Lastly: the balance, if any, of such proceeds remaining after
payment in full of the Brightstar Obligations and all other amounts owed to the
Secured Party or any Motorola Party, shall be paid to the Pledgor or as directed
by a court of competent jurisdiction.
14. Obligation to Sell. The Secured Party shall have no obligation to sell
or otherwise realize upon any of the Collateral as authorized herein, and shall
not be responsible for any failure to do so or for any delay in so doing.
15. Secured Party's Duty of Care. The Secured Party's duty with respect to
the Collateral shall be solely to use reasonable care in the physical custody
and physical preservation of such Collateral in its possession and the Secured
Party shall not be obligated to take any steps necessary to preserve any rights
in any of such property against third parties and the Pledgor agrees to take
such steps. The Secured Party shall have no responsibility for ascertaining, nor
for informing the Pledgor with respect to, nor be required to take any action
concerning, any maturities, calls, conversions, exchanges, offers, tenders or
similar matters relating to any of the property of the Pledgor (whether or not
the Secured Party has, or is deemed to have, knowledge of any of the aforesaid),
provided that the Secured Party shall endeavor to take such action as may be
requested or authorized by the Pledgor if the Secured Party determines, in its
sole discretion, that such action will not in any way adversely affect the value
of the Collateral or the
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ability of the Secured Party to realize upon the value of such Collateral. The
Secured Party shall not be bound to take any steps necessary to preserve any
rights in any of the property of the Pledgor against prior parties who may be
liable in connection therewith.
16. Further Assurances. The Pledgor agrees to do or refrain from doing any
and all such further acts and things, and to execute and deliver such additional
conveyances, assignments, agreements and instruments, as the Secured Party may,
in its sole and absolute discretion, at any time request in connection with the
administration and enforcement of this Agreement, or with respect to the
Collateral or any part thereof or in order better to assure and confirm unto the
Secured Party its respective rights and remedies hereunder.
17. Rights and Remedies of the Pledgor. Subject to the terms hereof, the
Pledgor shall also have all the rights and remedies of a debtor both before and
after the occurrence of any Event of Default described herein provided in the
Uniform Commercial Code in force in the State of Florida at the date of
execution of this Agreement.
18. Bankruptcy Provisions. The provisions of the section entitled
"Bankruptcy" in the Brightstar Security Agreement are hereby incorporated by
reference, and the Pledgor agrees that all references in those provisions
regarding the "Agreement" (either directly or as part of the Brightstar
Documents) shall also be deemed to be a reference to this Agreement.
19. Miscellaneous
(a) Amendment. Neither this Agreement nor any provision hereof may
be modified, changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
modification, change, waiver, discharge or termination is sought.
(b) Notices. Any notice, demand or other communication required to
or permitted to be given or made hereunder in writing, shall be deemed given or
made when (a) delivered in person; (b) five (5) days after such communication is
posted in the mails; or (c) one (1) day after such communication is sent by a
nationally recognized overnight courier service. Such communications shall be
addressed as follows:
If to the Secured Party: Motorola, Inc.
000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: PCS Latin America Director of
Finance
With a copy to: Shook, Hardy & Bacon L.L.P.
Miami Center, Suite 2400
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxxx, Esq.
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If to the Pledgor to: Brightstar Corp.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxx
With a copy to: Xxxxxxxxxxx & Xxxxxxxx LLP
Miami Center, 20th Floor
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
or at such other address as the party addressed may from time to time
designate in writing.
(c) Governing Law. This Agreement shall be construed in accordance
with, and be governed by the laws of the State of Florida, without regard to
laws regarding conflict of laws.
(d) Benefit. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns.
(e) Survival of Representations. All covenants, agreements,
representations and warranties made herein or in any certificate delivered
pursuant hereto shall survive the execution and delivery to the Secured Party of
this Agreement and shall continue in full force and effect so long as any
indebtedness or Obligation by the Pledgor to the Secured Party is outstanding or
unpaid.
(f) Severability. Each section, subsection, and lesser section of
this Agreement constitutes a separate and distinct undertaking, covenant and/or
provision hereof. In the event that any provision of this Agreement shall
finally be determined to be unlawful, or otherwise not binding on any party
hereto, such provision shall be deemed severed from this Agreement, but every
other provision of this Agreement shall remain in full force and effect.
(g) Headings. The headings in this Agreement are intended solely for
convenience of reference and shall be given no effect in the structural
interpretation of this Agreement.
(h) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which will
constitute the same agreement.
20. WAIVER OF JURY TRIAL. THE PLEDGOR AND THE SECURED PARTY HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EACH MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN ANY OF
THE BRIGHTSTAR PARTIES, ON ONE HAND, AND ANY MOTOROLA PARTY ON THE OTHER HAND,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
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VERBAL OR WRITTEN) OR ACTIONS OF EACH PARTY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE PLEDGOR AND THE SECURED PARTY ENTERING INTO THIS AGREEMENT.
THE PROVISIONS OF THIS ARTICLE HAVE BEEN FULLY NEGOTIATED BY THE PARTIES HERETO
AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NEITHER THE PLEDGOR NOR
THE SECURED PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY
THAT THE PROVISIONS OF THIS ARTICLE WILL NOT BE ENFORCED IN ALL INSTANCES.
NEITHER THE PLEDGOR NOR THE SECURED PARTY SHALL SEEK TO CONSOLIDATE ANY SUCH
ACTION, IN WHICH A JURY TRIAL HAS BEEN WAIVED, WITH ANY OTHER ACTION IN WHICH A
JURY TRIAL HAS NOT BEEN OR CANNOT BE WAIVED.
21. Waiver of Plea of Jurisdiction or Venue. Because the Pledgor and the
Secured Party each have a significant interest in consistent interpretation of
this Agreement, the Pledgor designates Miami, Florida as the sole forum for
resolution of any dispute arising hereunder. The Pledgor hereby specifically
authorizes any action brought upon the enforcement of this Agreement by the
Secured Party to be instituted and prosecuted in either the Circuit Court of
Miami- Dade County, Florida, or in the United States District Court for the
Southern District of Florida, at the election of the Secured Party. The Pledgor
further agrees that a final judgment in any action or proceeding will be
conclusive and may be enforced against it in any other jurisdiction or in any
other manner provided by law.
[Signature pages follow]
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IN WITNESS WHEREOF, the Pledgor, on the day and year first written above,
has caused this Agreement to be executed under seal.
BRIGHTSTAR CORP.
BY: /s/ Xxxxxxx Xxxxxx
------------------
NAME: Xxxxxxx Xxxxxx
TITLE: President + CEO
ACCEPTED :
MOTOROLA , INC.
BY: /s/ Xxxxxx X. Xxxxxx
--------------------
NAME: XXXXXX X. XXXXXX
TITLE: CFO-PCS
I HEREBY CERTIFY the following instrument was acknowledged before me this
23rd day of April, 2004, by Xxxxxxx Xxxxxx in his capacity as Pres.+ CEO of
BRIGHTSTAR CORP., a Delaware corporation, and who is personally known to me or
has produced a license as identification.
/s/ XXXXXXX XXXXX
----------------------
Notary Public
Name of Notary Printed:
---------------
My commission expires:
[STAMP]
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