PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this Agreement), dated as of
January 17 2014 is among UTStarcom Holdings Corp a company incorporated
in the Cayman Islands (the Company) and Shah Capital Opportunity Fund LP
(together with the Company, the Purchasers and each a Purchaser),
and SoftBank America Inc a company incorporated in
Delaware (the Seller).
WHEREAS, on the terms and conditions set forth in this Agreement,
the Seller desires to sell, and the Purchasers desire to purchase
an aggregate number of 4,883,875 ordinary shares, par value
US$0.00375 per share, of the Company (the Ordinary Shares or
the Securities).
NOW THEREFORE, the parties hereby agree as follows:
SECTION I
PURCHASE AND SALE OF SECURITIES
1.01 Sale of Securities. The Seller hereby agrees to sell, assign,
transfer and deliver to each Purchaser, and each Purchaser hereby
agrees to purchase from the Seller, such number of Ordinary Shares
set forth opposite each Purchasers name in Schedule A hereto, on the
Closing Date and pursuant to and in accordance with the terms and
conditions set forth in this Agreement.
1.02 Purchase Price.
(a) In full consideration of the sale of all of the Ordinary
Shares by the Seller, each Purchaser shall pay to the
Seller on the Closing Date an aggregate amount equal to
(i) $2.54 per share in U.S. dollars multiplied
by (ii) the number of Ordinary Shares set forth opposite each
Purchasers name in Schedule A hereto (the Aggregate Purchase
Price).
(b) The Aggregate Purchase Price payable to the Seller on
the Closing Date shall be paid by each of the Purchasers via
wire transfer of immediately available funds in U.S. dollars
to an account designated by the Seller.
1.03 Closing. The closing of the purchase and sale of the Ordinary Shares (the
Closing) will take place at 10:00 a.m. (United States Eastern time) on
January 17, 2014, or at such other time and date as the parties hereto
may agree (the Closing Date). At the Closing, the
Seller will deliver to the Purchasers share transfer forms with
respect to the Ordinary Shares being sold by the Seller to such
Purchaser, against payment to the Seller of the Aggregate Purchase
Price in accordance with Section 1.02 of this Agreement.
SECTION II
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
2.01 In order to induce the Purchasers to purchase the
Securities, the Seller represents and warrants to the
Purchasers as follows:
(a) Existence. The Seller is duly organized and validly existing
under the laws of the jurisdiction of its formation, and has full
power and authority to sell the Securities being sold by the
Seller and to enter into and perform its obligations under this
Agreement.
(b) Authorization. The execution and delivery of this Agreement by
the Seller and the consummation by the Seller of the transactions
contemplated by this Agreement have been duly authorized by all necessary
corporate action on the part of the Seller. 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 Seller of this Agreement or the consummation by the Seller
of the transactions contemplated by this Agreement.
(c) No Conflict with Other Instruments. Neither the execution and
delivery by the Seller of this Agreement, the consummation by the
Seller of the transactions contemplated by this Agreement, nor the
compliance by the Seller with the terms and conditions of this Agreement,
will (i) violate any provision of the Sellers organizational 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 Seller 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
Seller is a party or by which the Seller is bound.
(d) Validity and Binding Effect. This Agreement has been duly and
validly executed and delivered by the Seller; and this Agreement
constitutes the legal, valid and binding obligation of the Seller,
enforceable against the Seller 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) Title to Securities. The Seller owns the Securities being
sold by it to the Purchasers free and clear of all liens, other
than restrictions imposed under applicable securities laws
and restrictions created by the Company or imposed by
the Companys constitutive documents then in effect.
(f) Litigation. There is no (i) action, suit, claim, proceeding
or investigation pending or, to the Sellers knowledge, threatened
against or affecting, the Seller, 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
Seller, or (iii) governmental inquiry pending, or to the
Sellers knowledge threatened, against or affecting the Seller,
any of which, as it relates to clauses (i), (ii) and (iii),
if adversely determined, would invalidate or prevent the
performance by the Seller of the transactions contemplated
by this Agreement.
2.02 No Other Representations or Warranties. Except for the
representations and warranties contained in Section 2.01, the
Seller makes no express or implied representation or
warranty to the Purchasers.
SECTION III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
3.01 In order to induce the Seller to sell the Securities, each
Purchaser represents and warrants to the Seller 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 acquire 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
purchase 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. Each 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.
3.02 No Other Representations or Warranties. Except for the
representations and warranties contained in Section 3.01,
the Purchasers make no express or implied representation
or warranty to the Seller.
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 Purchasers or the Seller 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 Purchasers and the Seller,
and (ii) only in the specific instance and for
the specific purpose for which made or given.
Neither the Purchasers nor the Seller shall assign
any of its rights or obligations under this Agreement
without the written consent of the other parties 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 parties, and the
parties shall cooperate as to the timing and
contents of any such announcement. Notwithstanding
the foregoing, the Seller 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
▇▇▇▇▇▇▇ ▇▇▇▇
Chief Executive Officer
Sd
Shah Capital Opportunity Fund LP
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Managing Member, President and CIO
Sd
Softbank Amerinca Inc
▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President and Treasurer
Schedule A
Name Shares to be Purchased
UTStarcom Holdings Corp. 3,883,875
Shah Capital Opportunity Fund LP 1,000,000