SHARE SUBSCRIPTION AGREEMENT
This Share Subscription Agreement (this Agreement), dated
as of March 11, 2014, is between UTStarcom Holdings Corp
a company incorporated in the Cayman Islands (the Company)
and Shah Capital Opportunity Fund LP (the Purchaser).
WHEREAS, on the terms and conditions set forth in this
Agreement, the Company desires to issue and allot to the
Purchaser, and the Purchaser desires to subscribe for
and purchase from the Company, an aggregate number of 2,000,000
ordinary shares, par value US$0.00375 per share, of the
Company (the Ordinary Shares or the Securities) for a price
of $2.67 per share.
NOW THEREFORE, the parties hereby agree as follows:
SECTION I
SUBSCRIPTION OF SECURITIES
1.01 Subscription of Securities. The Company hereby agrees
to issue and allot to the Purchaser, and the Purchaser
hereby agrees to subscribe for and purchase from the Company,
2,000,000 Ordinary Shares on the Closing Date and pursuant
to and in accordance with the terms and conditions set forth
in this Agreement.
1.02 Subscription Price.
(a) In full consideration of the subscription of all of
the Ordinary Shares by the Company, the Purchaser shall pay
to the Company on the Closing Date an aggregate amount equal
to US$5,340,000 (the Aggregate Subscription Price).
(b) The Aggregate Subscription Price payable to the Company
on the Closing Date shall be paid by the Purchaser via wire
transfer of immediately available funds in U.S. dollars to
an account designated by the Company.
1.03 Closing. The closing of the subscription of the Ordinary
Shares (the Closing) will take place at 10:00 a.m.
(United States Eastern time) on March 11, 2014, or at
such other time and date as the parties hereto may agree
(the Closing Date).
SECTION II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
2.01 In order to induce the Purchaser to subscribe for
and purchase the Securities from the Company, the Company
represents and warrants to the Purchaser as follows:
(a) Existence. The Company is duly incorporated and validly
existing under the laws of the jurisdiction of its incorporation,
and has full power and authority to issue and allot the Securities
and to enter into and perform its obligations under this
Agreement.
(b) Authorization. The execution and delivery of this Agreement
by the Company and the consummation by the Company of the
transactions contemplated by this Agreement have been duly
authorized by all necessary corporate action on the part of
the Company. No consent, approval, license from, or exemption
of (other than exemptions from applicable federal and
state securities laws), and no registration, qualification,
designation, declaration or filing with (other than applicable
filings pursuant to Sections 13 and 16 of the
Securities Exchange Act of 1934, as amended the Exchange Act,
any court or governmental department, commission, board, bureau,
agency or instrumentality, or any other party, which has not
been obtained as of the date hereof, is or will be necessary
for the valid execution and delivery by the Company of this
Agreement or the consummation by the Company of the
transactions contemplated by this Agreement.
(c) No Conflict with Other Instruments. Neither the execution
and delivery by the Company of this Agreement, the
consummation by the Company of the transactions contemplated
by this Agreement, nor the compliance by the Company with the
terms and conditions of this Agreement, will (i) violate any
provision of the Companys constitutional documents, as amended
to date (ii) to its knowledge, violate or conflict with or
result in a breach of any law, regulation, order, writ,
injunction or decree of any court, arbitrator
or governmental instrumentality to which the Company is
bound or (iii) violate or be in conflict with, or constitute
a default (or an event which, with notice or lapse of time or both,
would constitute a default) under, or entitle any party to
terminate any or all of the provisions of, or cause the
acceleration of or entitle any party to accelerate the
performance required by, or cause the acceleration of
or entitle any party to accelerate the maturity of any
debt or obligation pursuant to, any contract, agreement,
arrangement, commitment or restriction of any kind to
which the Company is a party or by which the Company is bound.
(d) Validity and Binding Effect. This Agreement has been duly
and validly executed and delivered by the Company and this Agreement
constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
except as the enforceability of this Agreement may be limited by
bankruptcy, insolvency or other similar laws of general application
affecting the enforceability of creditors rights generally, or by
general principles of equity.
(e) Offering. Provided that the representations and warranties
made by the Purchaser herein are complete, true and accurate,
then the offer, issuance and sale of the Securities pursuant
hereto will be exempt from the registration requirements of Section
5 of the U.S. Securities Act of 1933, as amended
(the Securities Act), and will have been registered or
qualified (or are exempt from registration and qualification)
under the registration, permit or qualification requirements
of all applicable U.S. state securities laws. Neither the
Company nor any agent on its behalf has solicited any offers
to sell or has offered to sell all or any part of the
Securities to any person or persons so as to bring the
sale of such securities within the registration and/or qualification
provisions of the Securities Act or any applicable U.S. state
securities laws.
2.02 No Other Representations or Warranties. Except for the
representations and warranties contained in Section 2.01,
the Company makes no express or implied representation or
warranty to the Purchaser.
SECTION III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
3.01 In order to induce the Company to issue and allot the
Securities to the Purchaser, the Purchaser represents and
warrants to the Company as follows:
(a) Existence and Good Standing. The Purchaser is duly
organized and validly existing under the laws and regulations
of its jurisdiction, and has full power and authority to
subscribe for and purchase the Securities and to enter into and
perform its obligations under this Agreement.
(b) Authorization. The execution and delivery of this
Agreement by the Purchaser and the consummation by the Purchaser
of the transactions contemplated by this Agreement have been
duly authorized and approved by all necessary corporate action
on the part of the Purchaser. No consent, approval, license from,
or exemption of (other than exemptions from applicable federal and
state securities laws), and no registration, qualification,
designation, declaration or filing with (other than applicable
filings pursuant to Sections 13 and 16 of the Exchange Act),
any court or governmental department, commission, board, bureau,
agency or instrumentality, or any other party, which has not
been obtained as of the date hereof, is or will be necessary
for the valid execution and delivery by the Purchaser of this
Agreement or the consummation by the Purchaser of the transactions
contemplated by this Agreement.
(c) No Conflict with Other Instruments. The execution and delivery
by the Purchaser of this Agreement, the consummation by the
Purchaser of the transactions contemplated by this Agreement and
the compliance by the Purchaser with the terms and conditions
by this Agreement, will not (i) violate any provision of the
Purchasers constitutive documents (ii) to its knowledge,
violate or conflict with or result in a breach of any law,
regulation, order, writ, injunction or decree of any court,
arbitrator or governmental instrumentality to which the
Purchaser is bound or (iii) violate or be in conflict with,
or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under, or
entitle any party to terminate any or all of the provisions
of, or cause the acceleration of or entitle any party to
accelerate the performance required by, or cause the
acceleration of or entitle any party to accelerate the
maturity of any debt or obligation pursuant to, any contract,
agreement, arrangement, commitment or restriction of any
kind to which the Purchaser is a party or by which the
Purchaser is bound.
(d) Validity and Binding Effect. This Agreement has been
duly and validly executed and delivered by the Purchaser,
and this Agreement constitutes the legal, valid and binding
obligation of the Purchaser, enforceable against the
Purchaser in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency or
other similar laws of general application affecting the
enforceability of creditors rights generally, or by general
principles of equity. The Purchaser has adequate surplus or
other available capital, as applicable, to effect the
subscription of the Securities in accordance with the terms
and conditions of this Agreement.
(e) Litigation. There is no (i) action, suit, claim,
proceeding or investigation pending or, to the Purchasers
knowledge, threatened against or affecting, the Purchaser,
at law or in equity, or before or by any federal, state,
municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign,
(ii) arbitration proceeding relating to the Purchaser, or
(iii) governmental inquiry pending, or to the Purchasers
knowledge threatened, against or affecting the Purchaser,
any of which, as it relates to clauses (i), (ii) and (iii),
if adversely determined, would invalidate or prevent the
performance by the Purchaser of the transactions contemplated
by this Agreement.
(f) Purchase for Own Account. The Purchaser represents that
it is acquiring the Securities solely for the Purchasers
own account not as a nominee or agent, and not with a view
to the resale or distribution of any part thereof, and
that the Purchaser has no present intention of selling,
granting any participation in, or otherwise distributing the same.
(g) Accredited Investor. (a) The Purchaser is an accredited
investor as such term is defined in Rule 501 of Regulation D
promulgated under the Securities Act (an Accredited Investor),
or (b) if the Purchaser was formed for the specific purpose of
acquiring the Securities, then each shareholder or member of
the Purchaser is an Accredited Investor.
(h) Rule 144. The Purchaser understands that the Securities
may not be sold, transferred or otherwise disposed of without
registration under the Securities Act or an exemption therefrom,
and that in the absence of an effective registration statement
covering the Securities or on an available exemption from
registration under the Securities Act, the Securities must be
held indefinitely. In particular, the Purchaser is aware that
the Securities may not be sold pursuant to Rule 144 promulgated
under the Securities Act unless all of the conditions of that
rule are met. Among the conditions for use of Rule 144 is
the availability of current information to the public
about the Company.
(i) Legend. Each certificate representing any of the Securities
shall be endorsed with the applicable legend set forth below and
any other legend required by applicable law, and the Purchaser
covenants that, except to the extent such restrictions are waived
in writing by the Company, it shall not transfer the shares
represented by any such certificate without complying with the
restrictions on transfer described in this Agreement and the
legend endorsed on such certificate:
THE ORDINARY SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE U.S.SECURITIES ACT OF 1933,
AS AMENDED (THE SECURITIES ACT) OR ANY STATE SECURITIES
LAWS AND MAY NOT BE OFFERED, SOLD OR TRANSFERRED
UNLESS (I) THERE IS AN EFFECTIVE REGISTRATION STATEMENT
COVERING SUCH OFFER, SALE OR TRANSFER OR (II) AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT OR ANY APPLICABLE STATE SECURITIES LAWS FOR SUCH OFFER,
SALE OR TRANSFER IS AVAILABLE AND AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO UTSTARCOM HOLDINGS CORP HAS
BEEN PROVIDED COVERING SUCH EXEMPTION. HEDGING TRANSACTIONS
INVOLVING THE SHARES REPRESENTED HEREBY MAY NOT BE CONDUCTED
UNLESS IN COMPLIANCE WITH THE SECURITIES ACT. THIS
CERTIFICATE MUST BE SURRENDERED TO THE COMPANY OR ITS
TRANSFER AGENT AS A CONDITION PRECEDENT TO THE SALE, PLEDGE,
HYPOTHECATION OR ANY OTHER TRANSFER OF ANY INTEREST IN ANY
OF THE SHARES REPRESENTED BY THIS CERTIFICATE.
3.02 No Other Representations or Warranties. Except for the
representations and warranties contained in Section 3.01,
the Purchaser makes no express or implied representation
or warranty to the Company.
SECTION IV
MISCELLANEOUS
4.01 Survival. All representations and warranties contained herein
shall survive the execution and delivery of this Agreement and
the closing of the transactions contemplated hereby for a period
of 12 months after the Closing. All covenants and other agreements
of the parties contained herein shall survive the execution and
delivery of this Agreement and the closings of the transactions
contemplated hereby until fully performed or
fulfilled.
4.02 Agreement; Amendments. This Agreement sets forth the
entire agreement of the parties with respect to the subject matter
hereof and supersedes all prior agreements between them, whether
written or oral, with respect to its subject matter. Any amendment,
supplement or modification of or to any provision of this Agreement,
any waiver of any provision of this Agreement, and any consent to
any departure by the Purchaser or the Company from the terms of
any provision of this Agreement, shall be effective (i) only if
it is made or given in writing and signed by the Purchaser and
the Company, and (ii) only in the specific instance and for the
specific purpose for which made or given. Neither the Purchaser
nor the Company shall assign any of its rights or obligations
under this Agreement without the written consent of the other
party hereto.
4.03 Fees and Expenses. Each of the parties hereto shall pay
its own fees and expenses incurred in connection with this
Agreement or otherwise.
4.04 Public Announcements. Except as required by law or
regulation, no party shall make any public announcements in
respect of this Agreement or the transactions contemplated hereby
or otherwise communicate with any news media without the prior
written consent of the other party, and the parties shall cooperate
as to the timing and contents of any such announcement.
Notwithstanding the foregoing, the Company may disclose
this Agreement and the transactions contemplated hereby to
the extent such details have been disclosed in accordance
with the beneficial ownership reporting requirements under
the United States securities laws.
4.05 Governing Law. This Agreement and the rights and obligations
of the parties under it shall be governed by, and construed
and enforced in accordance with, the laws of the State of New York,
without giving effect to the rules and principles of conflicts of
laws thereof
4.06 Counterparts; Facsimile Execution. This Agreement may be
executed in any number of counterparts, each of which when so
executed and delivered shall be deemed an original, but all of
which together shall constitute one and the same instrument. For
purposes of this Agreement, a document (or signature page thereto)
signed and transmitted by email or facsimile is to be treated as
an original document.
Sd
Xxxxxxx Xxxx
Chief Executive Officer
Sd
Shah Capital Opportunity Fund LP
Xxxxxxxx X. Xxxx
Managing Member, President and CIO
