0001383838-14-000011.txt : 20140314 0001383838-14-000011.hdr.sgml : 20140314 20140314101207 ACCESSION NUMBER: 0001383838-14-000011 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20140314 DATE AS OF CHANGE: 20140314 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: UTSTARCOM HOLDINGS CORP. CENTRAL INDEX KEY: 0001030471 STANDARD INDUSTRIAL CLASSIFICATION: COMMUNICATIONS EQUIPMENT, NEC [3669] IRS NUMBER: 521782500 STATE OF INCORPORATION: E9 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-60651 FILM NUMBER: 14693104 BUSINESS ADDRESS: STREET 1: 52-2 BLDG. BDA INTL ENTERPRISE AVE STREET 2: NO. 2 JINGYUAN NORTH ST. DAXING DISTRICT CITY: BEIJING STATE: F4 ZIP: 100176 BUSINESS PHONE: 86 (10) 85205588 MAIL ADDRESS: STREET 1: 52-2 BLDG. BDA INTL ENTERPRISE AVE STREET 2: NO. 2 JINGYUAN NORTH ST. DAXING DISTRICT CITY: BEIJING STATE: F4 ZIP: 100176 FORMER COMPANY: FORMER CONFORMED NAME: UTSTARCOM INC DATE OF NAME CHANGE: 19970110 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SHAH CAPITAL MANAGEMENT CENTRAL INDEX KEY: 0001383838 IRS NUMBER: 201804775 STATE OF INCORPORATION: NC FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 8601 SIX FORKS ROAD STREET 2: SUITE 630 CITY: RALEIGH STATE: NC ZIP: 27615 BUSINESS PHONE: 919 719 6360 MAIL ADDRESS: STREET 1: 8601 SIX FORKS ROAD STREET 2: SUITE 630 CITY: RALEIGH STATE: NC ZIP: 27615 SC 13D/A 1 schedule13damendedtwelve.txt AMENDING 13D/A NUMBER ELEVEN UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO.11) SCHEDULE 13D/A UTSTARCOM HOLDINGS CORP (Name of Issuer) Common Stock (Title of Class of Securities) 918076100 (CUSIP Number) Shah Capital Management 8601 Six Forks Road, Suite 630 Raleigh, NC 27615 Tel. No.: (919) 719-6360 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) March 11, 2014 (Date of Event Which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of 240.13d 1(e), 240.13d 1(f) or 240.13d 1(g), check the following box. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d 7 for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of section 18 of the Securities Exchange Act of 1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). (1) Names of reporting persons: Shah Capital Management (2) Check the appropriate box if a member of a group: (a) (b) (3) SEC use only (4) Source of funds (see instructions) OO (5) Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e) of Schedule 13D N/A (6) Citizenship or place of organization NORTH CAROLINA Number of shares beneficially owned by each reporting person with: (7) Sole voting power 0 (8) Shared voting power 9,540,830 (9) Sole dispositive power 0 (10) Shared dispositive power 9,540,830 (11) Aggregate amount beneficially owned by each reporting person 9,540,830 (12) Check if the aggregate amount in Row (11) excludes certain shares (see instructions) N/A (13) Percent of class represented by amount in Row (11) 25.17% (14) Type of reporting person (see instructions) IA (1) Names of reporting persons: Shah Capital Opportunity Fund LP (2) Check the appropriate box if a member of a group: (a) (b) (3) SEC use only (4) Source of funds (see instructions) OO (5) Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e) of Schedule 13D N/A (6) Citizenship or place of organization DELAWARE Number of shares beneficially owned by each reporting person with: (7) Sole voting power 0 (8) Shared voting power 8,426,057 (9) Sole dispositive power 0 (10) Shared dispositive power 8,426,057 (11) Aggregate amount beneficially owned by each reporting person 8,426,057 (12) Check if the aggregate amount in Row (11) excludes certain shares (see instructions) N/A (13) Percent of class represented by amount in Row (11) 22.23% (14) Type of reporting person (see instructions) PN (1) Names of reporting persons: Himanshu H. Shah (2) Check the appropriate box if a member of a group: (a) (b) (3) SEC use only (4) Source of funds (see instructions) PF (5) Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e) of Schedule 13D N/A (6) Citizenship or place of organization UNITED STATES Number of shares beneficially owned by each reporting person with: (7) Sole voting power 311,472 (8) Shared voting power 9,852,302 (9) Sole dispositive power 311,472 (10) Shared dispositive power 9,852,302 (11) Aggregate amount beneficially owned by each reporting person 9,852,302 (12) Check if the aggregate amount in Row (11) excludes certain shares (see instructions) N/A (13) Percent of class represented by amount in Row (11) 25.99% (14) Type of reporting person (see instructions) IN SCHEDULE 13D Item 1. Security and Issuer Common Stock of UTSTARCOM HOLDINGS CORP. UTSTARCOM HOLDINGS CORP 52-2 Building, BDA International Enterprise Avenue No. 2 Jingyuan North Street Daxing District, Beijing 100176 Item 2. Identity and Background (a). Name: SHAH CAPITAL MANAGEMENT. (b). Business Address: 8601 Six Forks Road, Suite 630, Raleigh, NC 27615 (c). Principal business: Asset management (d). During the last five years, the reporting person has not been convicted in a criminal proceeding. (e). During the last five years, the reporting person has not been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction. (f). N/A Item 3. Source and Amount of Funds or Other Consideration In making the purchases of the shares of Common Stock, the reporting person uses the assets under management. Item 4. Purpose of the Transaction The reporting person values the issuer as a good investment. Item 5. Interest in Securities of the Issuer (a) Aggregate number of shares owned: (b) Percentage of class of securities owned: (c) Number of Shares to which reporting person has: (i) Sole Voting Power (ii) Shared Voting Power (iii) Sole Dispositive Power (iv) Shared Dispositive Power SCM Shah Capital Opportunity Himanshu Fund LP (a) 9,540,830 8,426,057 9,852,302 (b) 25.17% 22.23% 25.99% (i) N/A N/A 311,472 (ii) 9,540,830 8,426,057 9,852,302 (iii) N/A N/A 311,472 (iv) 9,540,830 8,426,057 9,852,302 (c) The Reporting Person has not effected any transactions relating to the Ordinary Shares during the past sixty (60) days (d) to (e). Not Applicable Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer Not Applicable Item 7. Material to be Filed as Exhibits Subscription Agreement Signature After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Date: March 14, 2014 Signature: Himanshu H. Shah/Sd. Name/Title: Himanshu H. Shah, President and CIO EX-99 2 subscriptionagreement.txt SUBSCRIPTION AGREEMENT 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 William Wong Chief Executive Officer Sd Shah Capital Opportunity Fund LP Himanshu H. Shah Managing Member, President and CIO