UTSI [UTSTARCOM] SC 13D/A: AMENDMENT TO PURCHASE AND SALE AGREEMENT Agreement Sellers

Ticker: UTSI, Company: UTSTARCOM HOLDINGS CORP., Type: SC 13D/A, Date: 2019-08-20
Original SEC Filing: Click here


Webplus: UTSI/20190820/SC_13D.A/2_EX-99.14/000.htm SEC Original: a19-17108_1ex99d14.htm
AMENDMENT TO PURCHASE AND SALE AGREEMENT Agreement Sellers Acquirer Party Parties THIS AMENDMENT TO PURCHASE AND SALE AGREEMENT (this “ SPA WHEREAS, the Sellers and the Acquirer are parties to that certain Purchase and Sale Agreement dated January 31, 2019 (the “ WHEREAS, the Sellers and the Acquirer mutually desire to enter into this Agreement to amend the SPA to



EX-99.14 2 a19-17108_1ex99d14.htm EX-99.14

Exhibit 99.14

AMENDMENT TO PURCHASE AND SALE AGREEMENT

THIS AMENDMENT TO PURCHASE AND SALE AGREEMENT (this “Agreement”) is made on July 31 2019, among the persons listed on Schedule A (collectively, the “Sellers”) and Tonghao (Cayman) Limited (the “Acquirer”). The Sellers and the Acquirer shall be referred to individually herein as a “Party”, and collectively as the “Parties”.

WHEREAS, the Sellers and the Acquirer are parties to that certain Purchase and Sale Agreement dated January 31, 2019 (the “SPA”);

WHEREAS, the Sellers and the Acquirer mutually desire to enter into this Agreement to amend the SPA to extend the Termination Date (as such term is defined in the SPA); and

WHEREAS, Section 5.03 of the SPA provides, among others, that any amendment, supplement or modification of or to any provision of the SPA shall be effective only if it is made or given in writing and signed by the Acquirer and the Sellers.

NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:

SECTION I

DEFINITIONS

All capitalized terms used and not defined herein shall have the same meanings given to them in the SPA.

SECTION II

AMENDMENTS TO THE SPA

Section 1.06(b) of the SPA shall be deleted in its entirety and replaced with the following:

“If the Closing has not occurred by September 30, 2019 (the “Termination Date”) for any reason, either Party may terminate this Agreement by written notice to the other Parties; provided that the right to terminate this Agreement pursuant to this Section 1.06(b) shall not be available to any Party whose failure to fulfill any of its obligations under this Agreement or other breach of this Agreement has been a cause of, or resulted in, the failure for the Closing to occur on or prior to the Termination Date.”

SECTION III

MISCELLANEOUS

The Parties acknowledge and agree that (a) the terms and conditions of this Agreement, existence, nature or substance of the discussions between the parties regarding this Agreement shall constitute Confidential Information and shall be governed by Section 5.06 of the SPA; (b) this Agreement, once signed by each of the Parties, shall constitute an amendment to the SPA and shall become a part of the full and entire understanding and agreement between the Parties with respect to the subject matter under the SPA; (c) the SPA shall remain in full force and effect in accordance with its term, except to the extent of any terms that are explicitly amended by this Agreement, this Agreement shall prevail; and (d) Sections 5.04, 507 and 5.08 of the SPA shall applymutatis mutandis to this Agreement.

[remainder of page intentionally left blank]


IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

For and on behalf of

SHAH CAPITAL OPPORTUNITY FUND LP

July 31, 2019

Himanshu H. Shah

(Date)

(Name)

/s/ Himanshu H. Shah

(Signature)

[Signature Page to Amendment to SPA]


IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

HONG LIANG LU

July 31st, 2019

(Date)

/s/ Hong Liang Lu

(Signature)

HONG LU AND LUCY LU JTWROS

July 31st, 2019

July 31st, 2019

(Date)

(Date)

/s/ Hong Liang Lu

/s/ Lucy Lu

(Signature)

(Signature)

For and on behalf of

LU FAMILY LTD PARTNERSHIP

July 31st, 2019

Hong Liang Lu

(Date)

(Name)

/s/ Hong Liang Lu

(Signature)

[Signature Page to Amendment to SPA]


For and on behalf of

LU CHARITABLE REMAINDER TRUST

July 31st, 2019

Hong Liang Lu

(Date)

(Name)

/s/ Hong Liang Lu

(Signature)

[Signature Page to Amendment to SPA]


IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

For and on behalf of

LU FAMILY TRUST HONG LIANG LU & LUCY LU TTEES

July 31st, 2019

Hong Liang Lu

(Date)

(Name)

/s/ Hong Liang Lu

(Signature)

For and on behalf of

HONG LIANG LU IRA

July 31st, 2019

Hong Liang Lu

(Date)

(Name)

/s/ Hong Liang Lu

(Signature)

[Signature Page to Amendment to SPA]


IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

For and on behalf of

TONGHAO (CAYMAN) LIMITED

7/31/2019

Qian Huifang

(Date)

(Name)

/s/ Qian Huifang

(Signature)

[Signature Page to Amendment to SPA]


SCHEDULE A

SELLERS

1. Shah Capital Opportunity Fund LP

2. Hong Liang Lu

3. Hong Lu and Lucy Lu JTWROS

4. Lu Family Ltd Partnership

5. Lu Charitable Remainder Trust

6. Lu Family Trust Hong Liang Lu & Lucy Lu TTEES

7. Hong Liang Lu IRA



Webplus: UTSI/20190820/SC_13D.A/1/000.htm SEC Original: a19-17108_1sc13da.htm



SC 13D/A 1 a19-17108_1sc13da.htm SC 13D/A

Director

Tonghao (Cayman) Limited

c/o Tongding Interconnection Information Co., Ltd.

Room 613, Floor 6, Building 1, No.185, Aona Road,

No.8 Xiaoping Road, Zhenze Town, Wujiang,

Suzhou, Jiangsu, People’s Republic of China

86 512 63876788

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

July 31, 2019

(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 which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box.o

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).


CUSIP No. 918076100

SCHEDULE 13D

Page 2 of 7 Pages

1

Name of Reporting Person
Tonghao (Cayman) Limited

2

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)

o

(b)

o

3

SEC Use Only

4

Source of Funds (See Instructions)
AF

5

Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)o

6

Citizenship or Place of Organization
Cayman Islands

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
0

8

Shared Voting Power
3,500,000

9

Sole Dispositive Power
0

10

Shared Dispositive Power
3,500,000

11

Aggregate Amount Beneficially Owned by Each Reporting Person
3,500,000

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)o

13

Percent of Class Represented by Amount in Row (11)
9.8%(1)

14

Type of Reporting Person (See Instructions)
CO


(1)Percentage calculated based on the 35,893,421 ordinary shares, par value $0.00375 per share (“Ordinary Shares”) outstanding as of March 31, 2018, as reported by UTStarcom Holdings Corp. (the “Issuer”) in Item 6 of its Annual Report on Form 20-F filed with the Securities and Exchange Commission (the “SEC”) on April 16, 2018.


CUSIP No. 918076100

SCHEDULE 13D

Page 3 of 7 Pages

1

Name of Reporting Person
Tonghao Information Technology (Shanghai) Co., Ltd.

2

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)

o

(b)

o

3

SEC Use Only

4

Source of Funds (See Instructions)
AF

5

Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)o

6

Citizenship or Place of Organization
People’s Republic of China

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
0

8

Shared Voting Power
3,500,000

9

Sole Dispositive Power
0

10

Shared Dispositive Power
3,500,000

11

Aggregate Amount Beneficially Owned by Each Reporting Person
3,500,000

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)o

13

Percent of Class Represented by Amount in Row (11)
9.8%(1)

14

Type of Reporting Person (See Instructions)
HC


(1)Percentage calculated based on the 35,893,421 outstanding Ordinary Shares as of March 31, 2018, as reported by the Issuer in Item 6 of its Annual Report on Form 20-F filed with the SEC on April 16, 2018.


CUSIP No. 918076100

SCHEDULE 13D

Page 4 of 7 Pages

1

Name of Reporting Person
Tongding Interconnection Information Co., Ltd.

2

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)

o

(b)

o

3

SEC Use Only

4

Source of Funds (See Instructions)
WC

5

Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)o

6

Citizenship or Place of Organization
People’s Republic of China

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
0

8

Shared Voting Power
3,500,000

9

Sole Dispositive Power
0

10

Shared Dispositive Power
3,500,000

11

Aggregate Amount Beneficially Owned by Each Reporting Person
3,500,000

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)o

13

Percent of Class Represented by Amount in Row (11)
9.8%(1)

14

Type of Reporting Person (See Instructions)
CO


(1)Percentage calculated based on the 35,893,421 outstanding Ordinary Shares as of March 31, 2018, as reported by the Issuer in Item 6 of its Annual Report on Form 20-F filed with the SEC on April 16, 2018.


CUSIP No. 918076100

SCHEDULE 13D

Page 5 of 7 Pages

1

Name of Reporting Person
TongDing Group Co., Ltd.

2

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)

o

(b)

o

3

SEC Use Only

4

Source of Funds (See Instructions)
WC

5

Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)o

6

Citizenship or Place of Organization
People’s Republic of China

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
0

8

Shared Voting Power
3,500,000

9

Sole Dispositive Power
0

10

Shared Dispositive Power
3,500,000

11

Aggregate Amount Beneficially Owned by Each Reporting Person
3,500,000

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)o

13

Percent of Class Represented by Amount in Row (11)
9.8%(1)

14

Type of Reporting Person (See Instructions)
IA


(1)Percentage calculated based on the 35,893,421 outstanding Ordinary Shares as of March 31, 2018, as reported by the Issuer in Item 6 of its Annual Report on Form 20-F filed with the SEC on April 16, 2018.


Item 1.Security and Issuer

This Amendment No. 3 (this “Amendment”) amends and supplements the Schedule 13D filed by the Reporting Persons on December 8, 2017, as amended by Amendment No. 1 filed on January 16, 2019 and Amendment No. 2 filed on February 4, 2019 (as amended, the “Original Schedule 13D”) with respect to the Ordinary Shares of the Issuer.  The Reporting Persons have entered into a joint filing agreement (the “Joint Filing Agreement”), dated as of February 4, 2019, a copy of which is attached as Exhibit 99.13 to the Original Schedule 13D.  Capitalized terms used in this Amendment and not otherwise defined have the same meanings ascribed to them in the Original Schedule 13D.  Unless specifically amended hereby, the disclosure set forth in the Original Schedule 13D remains unchanged.

Item 4.Purpose of Transaction

Item 4 of the Original Schedule 13D is hereby amended by deleting the last two paragraphs and replacing them with the following language:

On July 31, 2019, Tonghao Cayman entered into an Amendment to Purchase and Sale Agreement (the “Amendment Agreement”) with the Shah Sellers (save for Mr. Shah), pursuant to which the parties agreed to extend the Termination Date (as such term is defined in the Shah Purchase Agreement) to September 30, 2019. The Shah Purchase Agreement remains in full force and effect in accordance with its terms, except as explicitly amended by the Amendment Agreement.

The closing of the purchase and sale of the Sale Shares pursuant to the Shah Purchase Agreement, as amended by the Amendment Agreement, is subject to customary conditions, including the obtaining of all necessary authorizations, consents, orders and approvals of The Committee on Foreign Investment in the United States, which approvals were obtained on August 5, 2019, and completing (i) filing with and/or approval by the National Development and Reform Commission of the People’s Republic of China (“PRC”) or its competent local counterparts, (ii) filing with and/or approval by the Ministry of Commerce of the PRC or its competent local counterparts, and (iii) registration with a commercial bank supervised by the State Administration of Foreign Exchange of the PRC or its competent local counterparts, in each case with respect to the payment of the Purchase Price and the purchase and sale of the Sale Shares. Assuming the transactions contemplated by the Shah Purchase Agreement, as amended by the Amendment Agreement, are consummated in accordance with the terms and conditions thereof, the Reporting Persons will become the beneficial owner of an additional 9,200,000 Ordinary Shares.

The information disclosed in this Item 4 is not purported to be complete and is qualified in its entirety by reference to the Shah Purchase Agreement, a copy of which is attached as Exhibit 99.12 and is incorporated herein by reference in its entirety, and the Amendment Agreement, a copy of which is attached as Exhibit 99.14 and is incorporated herein by reference in its entirety.

Item 6.Contracts, Arrangements, Understandings or Relationships with respect to Securities of the Issuer

Item 6 of the Original Schedule 13D is hereby amended by deleting the last paragraph and replacing it with the following language:

The descriptions of the agreements referenced in Items 3 and 4 of this Schedule 13D are incorporated by reference into this Item 6. The foregoing descriptions are not complete and are qualified in their entirety by reference to the full text of the agreements , copies of which are filed as exhibits to this Schedule 13D and are listed in Item 7 of this Schedule 13D.

Item 7Material to be Filed as Exhibits

Item 7 of the Original Schedule 13D is hereby amended and supplemented by adding the following exhibit:

Exhibit No.

Description

99.14

Amendment to Purchase and Sale Agreement, dated as of July 31, 2019, by and among Tonghao (Cayman) Limited, Shah Capital Opportunity Fund LP, Hong Liang Lu, Hong Lu and Lucy Lu JTWROS, Lu Family Ltd Partnership, Lu Charitable Remainder Trust, Lu Family Trust Hong Liang Lu & Lucy Lu TTEES, and Hong Liang Lu IRA*


*Filed herewith.

6


SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated:  August 20, 2019

TONGHAO (CAYMAN) LIMITED

By:

/s/ Qian Huifang

Name: Qian Huifang

Title: Director

TONGHAO INFORMATION TECHNOLOGY
(SHANGHAI) CO., LTD.

By:

/s/ Qian Huifang

Name: Qian Huifang

Title: Director

TONGDING GROUP CO., LTD.

By:

/s/ Shen Xiaoping

Name: Shen Xiaoping

Title: Legal Representative

TONGDING INTERCONNECTION
INFORMATION CO., LTD.

By:

/s/ Yan Yongqing

Name: Yan Yongqing

Title: Chairman & CEO

7


Company Info:

Ticker: UTSI, Company: UTSTARCOM HOLDINGS CORP., Type: SC 13D/A, Date: 2019-08-20CIK: 0001030471, Location: K3, SIC: 3669, SIC Desc: COMMUNICATIONS EQUIPMENT, NEC
Business Phone & Address:
6TH FLOOR, 28 HENNESSY ROAD, ADMIRALTY
HONG KONG, K3 NA

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