EXHIBIT
10.88


 


 


$402,500,000


 


UTSTARCOM,
INC.


 


7/8%
Convertible Subordinated Notes Due 2008


 


REGISTRATION
RIGHTS AGREEMENT


 


	
  March 12,
  2003

  
	
  Banc of America Securities LLC

  
	
  9 West 57th Street, 40th Floor

  
	
  New York, New York 10019

  
	
  and

  
	
  Credit Suisse First Boston LLC

  
	
  Eleven Madison Avenue

  
	
  New York, New York 10010-3629

  
	
  and

  
	
  Merrill Lynch, Pierce, Fenner & Smith
  Incorporated

  
	
  North Tower

  
	
  World Financial Center

  
	
  New York, New York 10281-1201

  



 


Ladies and Gentlemen:


 


UTStarcom, Inc., a
Delaware corporation (the “Company”),
proposes to issue and sell to the Initial Purchasers (as defined herein), upon
the terms set forth in a purchase agreement dated March 7, 2003 (the “Purchase Agreement”), $402,500,000
aggregate principal amount of its 7/8% Convertible Subordinated Notes Due 2008
(the “Notes”).  The Notes will be issued pursuant to an
Indenture, dated as of March 12, 2003 (the “Indenture”), between the Company and U.S. Bank National
Association, as trustee (the “Trustee”).  The Notes will be convertible into shares of
Common Stock at the Conversion Price. 
As an inducement to the Initial Purchasers to enter into the Purchase
Agreement, the Company agrees with the Initial Purchasers, for the benefit of
the beneficial owners (including the Initial Purchasers) from time to time of
the Notes and of the Underlying Common Stock (as defined herein) issued upon
conversion of the Notes (each of the foregoing, a “Holder” and, collectively, the “Holders”), as follows:


 


1.                                       Shelf Registration.


 


(a)                                  The
Company shall prepare and file with the Securities and Exchange Commission (the
“Commission”) not later than 120
days (such 120th day being a “Filing Deadline”)
after the first date on which the Initial Purchasers purchase the Notes
pursuant to the Purchase Agreement (the “Closing
Date”), a Shelf Registration Statement for an offering to be made on
a delayed or continuous basis pursuant to Rule 415 of the Securities Act
of 1933, as amended (the “Securities Act”),
registering the resale from time to time by Holders thereof (who satisfy
certain conditions relating to the provision of information in connection with
the Shelf Registration Statement) of all of the Registrable Securities (defined
herein) (the “Shelf Registration Statement”).  The Shelf Registration Statement shall be filed
on Form S-3, or its successor, under the Securities Act permitting registration
of such Registrable Securities for resale by such Holders from time to time in
accordance with the methods of distribution elected by the Holders and set
forth in the Shelf Registration Statement. 
The Company shall use its reasonable efforts to cause the Shelf
Registration Statement to be declared effective under the Securities Act not
later than 210 days after the Closing Date (the “Effectiveness Deadline Date”); provided, however,
that the Company may, upon written notice to all Holders, postpone having the
Shelf Registration Statement declared effective for a reasonable period not to
exceed 90 days if the Company possesses material non-public information, the
disclosure of which would have a material adverse effect on the Company and its
subsidiaries taken as a whole.  The
Company shall also use its reasonable efforts to keep the Shelf


 

















 


Registration Statement continuously effective under the Securities Act
in order to permit the prospectus included therein to be lawfully delivered by
the Holders of the Registrable Securities for a period of two years from the
last date on which the Initial Purchasers purchase Notes pursuant to the
Purchase Agreement or such shorter period that will terminate when all the
Registrable Securities covered by the Shelf Registration Statement
(i) have been sold pursuant thereto or (ii) are, with respect to such
securities held by non-affiliates, eligible to be sold to the public pursuant
to Rule 144(k) under the Securities Act (“Rule 144”), or any successor rule thereof (such period, the “Effectiveness Period”).  Subject to Section 2(b)(vi), the Company
shall be deemed not to have used its reasonable efforts to keep the Shelf
Registration Statement effective during the requisite period if it voluntarily
takes any action that would result in Holders of Registrable Securities covered
thereby not being able to offer and sell such Registrable Securities during
that period, unless such action is (i) required by applicable law or (ii) taken
by the Company in good faith and contemplated by Section 2(b)(v) below, and the
Company thereafter complies with the requirements of Section 2(i).  At the time the Shelf Registration Statement
is declared effective, each Holder who has provided the Company with an
appropriately completed Notice and Questionnaire (as defined herein) on or
prior to the deadline for response set forth therein and who holds Registrable
Securities, shall be named as a selling securityholder in the Shelf
Registration Statement and the related prospectus in such a manner as to permit
such Holder to deliver such prospectus to purchasers of Registrable Securities
in accordance with applicable law.  None
of the Company’s securityholders (other than the Holders of Registrable
Securities) shall have the right to include any of the Company’s securities in
the Shelf Registration Statement.


 


(b)                                 The
Company may suspend the use of the prospectus for a period not to exceed 45
days in any 90-day period or an aggregate of 90 days in any 365-day period if
the Board of Directors of the Company, or the Chief Executive Officer or the
Chief Financial Officer of the Company, shall have determined in good faith
that because of valid business reasons (not including avoidance of the
Company’s obligations hereunder), including, without limitations, the
acquisition or divestiture of assets, pending corporate developments, public
filings with the Commission and similar events, it is in the interest of the
Company to suspend such use, and prior to suspending such use the Company
provides the Notice Holders with written notice of such suspension, which
notice need not specify the nature of the event giving rise to such suspension.


 


(c)                                  Notwithstanding
any other provisions of this Agreement to the contrary, the Company shall cause
the Shelf Registration Statement and the prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf Registration
Statement, amendment or supplement, (i) to comply in all material respects with
the applicable requirements of the Securities Act and the rules and regulations
of the Commission and (ii) not to contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.


 


(d)                                 As
used in this Agreement, the following terms shall have the following meanings:


 


“Applicable Conversion Price” as of any date
of determination means the Conversion Price in effect as of such date of
determination or, if no Notes are then outstanding, the Conversion Price that
would be in effect were Notes then outstanding.


 


“Business Day” means each Monday, Tuesday,
Wednesday, Thursday and Friday that is not a day on which banking institutions
in The City of New York are authorized or obligated by law or executive order
to close.


 


“Common Stock” means the shares of common
stock, $0.00125 par value per share, of the Company and any other shares of
common stock as may constitute “Common Stock” for purposes of the Indenture,
including the Underlying Common Stock.


 


“Conversion Price” has the meaning assigned
to such term in the Indenture.


 


“Exchange Act” means the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the SEC promulgated
thereunder.


 


“Effective Date” means the date the Shelf
Registration Statement is declared effective.


 


2

















 


“Initial Purchasers” means Banc of America
Securities LLC, Credit Suisse First Boston LLC and Merrill Lynch, Pierce,
Fenner & Smith Incorporated.


 


“Notice and Questionnaire” means a Selling
Securityholder Notice and Questionnaire substantially in the form of Appendix
A hereto.


 


“Notice Holder” means any Holder that has
delivered a properly completed and signed Notice and Questionnaire to the
Company in accordance with this Agreement and holds Registrable Securities as
of such date.


 


“Registrable Securities” means the Notes, until
such Notes have been converted into or exchanged for the Underlying Common
Stock and, at all times subsequent to any such conversion or exchange, the
Underlying Common Stock and any securities into or for which such Underlying
Common Stock have been converted or exchanged, and any security issued with
respect thereto upon any stock dividend, split or similar event until, in the
case of any such security, the earliest of (i) its effective registration
under the Securities Act and resale in accordance with the Shelf Registration
Statement covering it, (ii) expiration of the holding period that would be
applicable thereto under Rule 144(k) under the Securities Act were it not
held by an Affiliate of the Company, or (iii) it has been transferred
pursuant to Rule 144.


 


“Underlying Common Stock” means the shares
of Common Stock into which the Notes are convertible or issued upon any such
conversion.


 


2.                                       Registration Procedures.  In connection with the Shelf Registration
Statement contemplated by Section 1 hereof, the following provisions shall
apply:


 


(a)                                  Not
less than 30 calendar days prior to the Effective Date, the Company shall mail
the Notice and Questionnaire to the Holders of Registrable Securities.  No Holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement as of the Effective
Date, and no Holder shall be entitled to use the prospectus forming a part
thereof for offers and resales of Registrable Securities at any time, unless
such Holder has returned a completed and signed Notice and Questionnaire to the
Company by the deadline for response set forth therein; provided, however,
Holders of Registrable Securities shall have at least 28 calendar days from the
date on which the Notice and Questionnaire is first mailed to such Holders to
return a completed and signed Notice and Questionnaire to the Company.  Notwithstanding the foregoing, upon the
request of any Holder of Registrable Securities that did not return a Notice and
Questionnaire on a timely basis or did not receive a Notice and Questionnaire
because it was a subsequent transferee of Registrable Securities after the
Company mailed the Notice and Questionnaire, (x) the Company shall distribute a
Notice and Questionnaire to such Holders at the address set forth in the
request and (y) upon receipt of a properly completed Notice and Questionnaire
from such Holder, the Company shall use its reasonable efforts to name such
Holder as a selling securityholder in the Shelf Registration Statement by means
of a pre-effective amendment or, if permitted by the Commission, by means of a
prospectus supplement to the Shelf Registration Statement; provided, however,
that the Company shall have no obligation to pay Additional Interest to such
Holder for its failure to file a pre-effective amendment or prospectus
supplement and; provided, further, that the Company will have no
obligation to add a Holder to the Shelf Registration Statement if a
post-effective amendment would be necessary to name such Holder as a selling
securityholder.


 


(b)                                 The
Company shall (i) furnish to the Initial Purchasers, prior to the filing
of the Shelf Registration Statement, a copy of the Shelf Registration Statement
as proposed to be filed and each amendment thereto and, after the filing of any
prospectus supplement, if any, and upon the request of an Initial Purchaser, a
copy of such prospectus supplement.  The
Company shall use its reasonable efforts to take into account and reflect in
the Shelf Registration Statement, when so filed with the Commission, such
comments as the Initial Purchasers reasonably may propose; and
(ii) subject to the conditions set forth in Section 2(a) hereof include
the names of the Holders who propose to sell Registrable Securities pursuant to
the Shelf Registration Statement as selling securityholders.


 


3

















 


(c)                                  The
Company shall give written notice to the Initial Purchasers and the Notice
Holders (which notice pursuant to clauses (ii) through (vi) hereof shall be
accompanied by an instruction to suspend the use of the prospectus until the
requisite changes have been made, if applicable):


 


(i)                                     when
the Shelf Registration Statement or any amendment thereto has been filed with
the Commission and when the Shelf Registration Statement or any post-effective
amendment thereto has become effective;


 


(ii)                                  of
any request by the Commission for amendments or supplements to the Shelf
Registration Statement or the prospectus included therein or for additional
information;


 


(iii)                               of the issuance by the
Commission of any stop order suspending the effectiveness of the Shelf
Registration Statement or the initiation of any proceedings for that purpose;


 


(iv)                              of
the receipt by the Company or its counsel of any notification with respect to
the suspension of the qualification of the Registrable Securities included in
the Shelf Registration Statement for sale in any jurisdiction or the initiation
of any proceeding for such purpose;


 


(v)                                 of
the happening of any event (but not as to the substance of any such event) that
requires the Company to make changes in the Shelf Registration Statement or the
prospectus in order that the Shelf Registration Statement or the prospectus
does not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein (in the case of the prospectus, in light of the circumstances under
which they were made) not misleading; and


 


(vi)                              of
the occurrence or existence of any pending corporate development with respect
to the Company that the Company believes may be material and that, in the
determination of the Company, makes it inadvisable and not in the best interest
of the Company to allow continued availability of the Shelf Registration
Statement and the related prospectus.


 


(d)                                 The
Company shall use its reasonable efforts to obtain the withdrawal at the
earliest possible time, of any order suspending the effectiveness of the Shelf
Registration Statement or the lifting of any suspension of the qualification
(or exemption from qualification) of any of the Registrable Securities for sale
in any jurisdiction in which they have been qualified for sale.


 


(e)                                  The
Company shall furnish to each Notice Holder, without charge, at least one copy
of the Shelf Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder so requests in
writing, all exhibits thereto (including those, if any, incorporated by
reference).


 


(f)                                    The
Company shall, during the Effectiveness Period, deliver to each Notice Holder,
without charge, as many copies of the prospectus (including each preliminary
prospectus) included in the Shelf Registration Statement and any amendment or
supplement thereto as such Notice Holder may reasonably request.  The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus or any amendment or
supplement thereto by each Notice Holders in connection with the offering and
sale of the Registrable Securities covered by the prospectus, or any amendment
or supplement thereto, during the Effectiveness Period.


 


(g)                                 Prior
to any public offering of the Registrable Securities pursuant to any Shelf
Registration Statement, the Company shall register or qualify or cooperate with
the Notice Holders and their respective counsel in connection with the
registration or qualification of the Registrable Securities for offer and sale
under the securities or “blue sky” laws of such states of the United States as
any Notice Holder reasonably requests in writing and do any and all other acts
or things necessary or advisable to enable the offer and sale in such
jurisdictions of the Registrable Securities covered by such Shelf Registration
Statement; provided, however, that the Company shall not be
required to (i) qualify generally to do business or as a dealer in
securities in any jurisdiction where it is not then so qualified or would not
otherwise be required to qualify but for this Section 2(g) or (ii) take
any action which would subject it to general service of process or to taxation
in any jurisdiction where it is not then so subject.


 


4

















 


(h)                                 Unless
any Registrable Securities shall be in book-entry only form, the Company shall
cooperate with the Notice Holders to facilitate the timely preparation and
delivery of certificates representing the Registrable Securities to be sold
pursuant to any Shelf Registration Statement free of any restrictive legends
and in such permitted denominations and registered in such names as the Notice
Holders may request a reasonable period of time prior to sales of the
Registrable Securities pursuant to such Shelf Registration Statement.


 


(i)                                     Upon
the occurrence of any event contemplated by paragraphs (ii) through (v) of
Section 2(c) above during the period for which the Company is required to
maintain an effective Shelf Registration Statement, the Company shall, as
promptly as reasonably practicable, prepare and file a post-effective amendment
to the Shelf Registration Statement or a supplement to the related prospectus
and any other required document so that, as thereafter delivered to Holders or
purchasers of Registrable Securities, the prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading ; provided, however,
that the Company shall not be required to file such amendment, supplement or
document if the Board of Directors of the Company (or the Chief Executive
Officer or the Chief Financial Officer of the Company) has made a determination
pursuant to Section 1(b), for so long as the suspension pursuant to
Section 1(b) is continuing.  If the
Company notifies the Initial Purchasers and the Holders of Registrable
Securities in accordance with paragraphs (ii) through (v) of
Section 2(c) above to suspend the use of the prospectus until the
requisite changes to the prospectus have been made, then the Initial Purchasers
and the Holders of Registrable Securities shall suspend use of such prospectus
(such period during which the availability of the Shelf Registration Statement
and any related prospectus is suspended being a “Deferral Period”).  The
Company will use its reasonable efforts to ensure that the use of the
prospectus may be resumed as promptly as is reasonably practicable, except that
in the case of suspension of the availability of the Shelf Registration
Statement and related prospectus pursuant to Section 2(b)(vi) above, the
Company shall not be required to take such action until such time as it shall
no longer determine that continued availability of the Shelf Registration
Statement and the related prospectus is inadvisable and not in the best
interests of the Company.


 


(j)                                     Not
later than the effective date of the Shelf Registration Statement, the Company
will provide a CUSIP number for the Registrable Securities that are debt
securities and provide the applicable trustee with printed certificates for the
Notes in a form eligible for deposit with The Depository Trust Company.


 


(k)                                  The
Company will use its reasonable efforts to comply with all rules and
regulations of the Commission to the extent and so long as they are applicable
to the Shelf Registration Statement and will make generally available to its
securityholders (or otherwise provide in accordance with Section 11(a) of
the Securities Act) an earnings statement satisfying the provisions of
Section 11(a) of the Securities Act, no later than 45 days after the end
of a 12-month period (or 90 days, if such period is a fiscal year) beginning
with the first month of the Company’s first fiscal quarter commencing after the
effective date of the Shelf Registration Statement, which statement shall cover
such 12-month period.


 


(l)                                     Not
later than the effective date of the Shelf Registration Statement, the Company
shall cause the Indenture to be qualified under the Trust Indenture Act of
1939, as amended (the “Trust Indenture Act”),
and to contain such changes, if any, as shall be necessary for such
qualification.  In the event that such
qualification would require the appointment of a new trustee under the
Indenture, the Company shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.


 


(m)                               The
Company may require each Notice Holder to furnish to the Company such
information regarding the such Holder and the distribution of the Registrable
Securities as the Company may from time to time reasonably require for
inclusion in the Shelf Registration Statement, and the Company may exclude from
such registration the Registrable Securities of any Holder that unreasonably
fails to furnish such information within a reasonable time after receiving such
request.


 


(n)                                 The
Company shall use its reasonable efforts to cause the Underlying Common Stock
to be listed on any securities exchange or any automated quotation system on
which similar securities issued by the Company are then listed, to the extent
the Underlying Common Stock satisfies applicable listing requirements.


 


5

















 


(o)                                 The
Company shall enter into such customary agreements (including, if requested, an
underwriting agreement in customary form) and take all such other actions, if
any, as any Holder shall reasonably request in order to facilitate the
disposition of the Registrable Securities pursuant to the Shelf Registration
Statement.


 


(p)                                 The
Company shall (i) make reasonably available for inspection by the Holders,
any underwriter participating in any disposition pursuant to the Shelf
Registration Statement and any attorney, accountant or other agent retained by
the Holders or any such underwriter, all relevant financial and other records,
pertinent corporate documents and properties of the Company and (ii) cause
the Company’s officers, directors, employees, accountants and auditors to
supply all relevant information reasonably requested by the Holders or any such
underwriter, attorney, accountant or agent in connection with the Shelf
Registration Statement, in each case, as shall be reasonably necessary to
enable such persons, to conduct a reasonable investigation within the meaning
of Section 11 of the Securities Act; provided, however, that
the foregoing inspection and information gathering shall be coordinated on
behalf of the Initial Purchasers by you and on behalf of the other parties, by
one counsel designated by and on behalf of such other parties as described in
Section 3 hereof.


 


(q)                                 The
Company, if requested by any Holder of Securities covered by the Shelf
Registration Statement, shall cause (i) its counsel to deliver an opinion and
updates thereof relating to the Registrable Securities in customary form
addressed to such Holders and the managing underwriters, if any, thereof, and
dated, in the case of the initial opinion, the effective date of such Shelf
Registration Statement (it being agreed that the matters to be covered by such
opinion shall include, without limitation, the due incorporation and good
standing of the Company and its subsidiaries; the qualification of the Company
and its subsidiaries to transact business as foreign corporations; the due
authorization, execution and delivery of the relevant agreement of the type
referred to in Section 2(p) hereof; the due authorization, execution,
authentication and issuance, and the validity and enforceability, of the Notes;
the absence of material legal or governmental proceedings involving the Company
and its subsidiaries; the absence of governmental approvals required to be
obtained in connection with the Shelf Registration Statement, the offering and
sale of the Registrable Securities, or any agreement of the type referred to in
Section 2(p) hereof; the compliance as to form of the Shelf Registration
Statement and any documents incorporated by reference therein and of the
Indenture with the requirements of the Securities Act and the Trust Indenture
Act, respectively; and, as of the date of the opinion and as of the effective
date of the Shelf Registration Statement or most recent post-effective
amendment thereto, as the case may be, the absence from the Shelf Registration
Statement and the prospectus included therein, as then amended or supplemented,
and from any documents incorporated by reference therein of an untrue statement
of a material fact or the omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading
(in the case of any such documents, in the light of the circumstances existing
at the time that such documents were filed with the Commission under the
Exchange Act of 1934, as amended (the “Exchange
Act”)); (ii) its officers to execute and deliver all customary
documents and certificates and updates thereof requested by any underwriters of
the Registrable Securities and (iii) its independent public accountants and the
independent public accountants with respect to any other entity for which
financial information is provided in the Shelf Registration Statement to provide
to the selling Holders of the applicable Registrable Securities and any
underwriter therefor a comfort letter in customary form and covering matters of
the type customarily covered in comfort letters in connection with primary
underwritten offerings, subject to receipt of appropriate documentation as
contemplated, and only if permitted, by Statement of Auditing Standards No. 72.


 


(r)                                    In
the event that any broker-dealer registered under the Exchange Act shall
underwrite any Securities or participate as a member of an underwriting
syndicate of selling group or “assist in the distribution” (within the meaning
of the Conduct Rules (the “Rules”)
of the National Association of Securities Dealers, Inc. (“NASD”)) thereof, whether as a Holder of
such Securities or as an underwriter, a placement or sales agent or a broker or
dealer in respect thereof, or otherwise, the Company will assist such
broker-dealer in complying with the requirement of such Rules, including,
without limitation, by (i) if such Rules, including Rule 2720, shall so
require, engaging a “qualified independent underwriter” (as defined in Rule
2720) to participate in the preparation of the Shelf Registration Statement
relating to such Registrable Securities, to exercise usual standards of due
diligence in respect thereto and, if any portion of the offering contemplated
by such Registration Statement is an underwritten offering or is made through a
placement or sales agent, to recommend the yield of such Registrable
Securities, (ii) indemnifying any such qualified independent underwriter to the
extent of the indemnification of underwriters provided in Section 5 hereof and
(iii) providing such


 


6

















 


information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules.


 


(s)                                  The
Company shall use its reasonable efforts to take all other steps necessary to
effect the registration of the Registrable Securities covered by a Registration
Statement contemplated hereby.


 


3.                                       Registration Expenses.


 


Except as
otherwise provided herein, the Company shall bear all fees and expenses
incurred in connection with the performance of its obligations under Sections 1
and 2 hereof and shall bear or reimburse the Notice Holders for the reasonable
fees and disbursements of a single counsel selected by at least 25% in
principal amount of the Notes covered by the Shelf Registration Statement
(provided that Holders of Underlying Common Stock issued upon the conversion of
the Notes shall be deemed to be Holders of the aggregate principal amount of
Notes from which such Common Stock was converted) to act as counsel for the
Holders in connection therewith.  Each
Notice Holder shall pay all underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of such Notice Holder’s
Registrable Securities pursuant to the Shelf Registration Statement.


 


4.                                       Indemnification.


 


(a)                                  The
Company agrees to indemnify and hold harmless each Notice Holder and each
person, if any, who controls such Holder within the meaning of the Securities
Act or the Exchange Act (each Notice Holder and such controlling persons are
referred to collectively as the “Indemnified
Parties”) from and against any losses, claims, damages or
liabilities, joint or several, or any actions in respect thereof (including,
but not limited to, any losses, claims, damages, liabilities or actions
relating to purchases and sales of the Registrable Securities) to which each
Indemnified Party may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages, liabilities or actions
arise out of, or are based upon, any untrue statement or alleged untrue
statement of a material fact contained in the Shelf Registration Statement or
prospectus, including any document incorporated by reference therein, or in any
amendment or supplement thereto or in any preliminary prospectus relating to
the Shelf Registration Statement, or arise out of, or are based upon, the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
shall reimburse, as incurred, the Indemnified Parties for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action in respect thereof;
provided, however, that the Company shall not be liable in any
such case to the extent that such loss, claim, damage or liability arises out
of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in a Shelf Registration Statement or
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus relating to a Shelf Registration in reliance upon and in conformity
with written information pertaining to such Holder and furnished to the Company
by or on behalf of such Holder specifically for inclusion therein; provided,
further, however, that this indemnity agreement will be in
addition to any liability which the Company may otherwise have to such
Indemnified Party.  The Company shall
also indemnify any underwriters, their officers and directors and each person
who controls such underwriters within the meaning of the Securities Act or the
Exchange Act to the same extent as provided above with respect to the
indemnification of the Notice Holders if requested by such Holders.


 


(b)                                 Each
Notice Holder of Registrable Securities, severally and not jointly, will
indemnify and hold harmless the Company and each person, if any, who controls
the Company within the meaning of the Securities Act or the Exchange Act from
and against any losses, claims, damages or liabilities or any actions in
respect thereof, to which the Company or any such controlling person may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as
such losses, claims, damages, liabilities or actions arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in a Shelf Registration Statement or prospectus or in any amendment
or supplement thereto or in any preliminary prospectus relating to the Shelf
Registration Statement, or arise out of or are based upon the omission or
alleged omission to state therein a material fact necessary to make the
statements therein not misleading, but in each case only to the extent that the
untrue statement or omission or alleged untrue statement or omission was made
in reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder specifically
for inclusion therein; and, subject to the limitation set forth immediately
preceding this clause, shall reimburse, as incurred, the Company for any legal
or


 


7

















 


other expenses reasonably incurred by the Company or any such
controlling person in connection with investigating or defending any loss,
claim, damage, liability or action in respect thereof.  This indemnity agreement will be in addition
to any liability which such Notice Holder may otherwise have to the Company or
any of its controlling persons.


 


(c)                                  Promptly
after receipt by an indemnified party under this Section 4 of notice of
the commencement of any action or proceeding (including a governmental
investigation), such indemnified party will, if a claim in respect thereof is
to be made against the indemnifying party under this Section 4, notify the
indemnifying party of the commencement thereof; but the omission so to notify
the indemnifying party will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above.  In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party (who shall not, except with
the consent of the indemnified party, be counsel to the indemnifying party),
and after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof the indemnifying party will not be
liable to such indemnified party under this Section 4 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof.  Notwithstanding the indemnifying party’s
election to assume the defense of the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel) and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel (and local counsel) if (i) the use
of counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall authorize
the indemnified party to employ separate counsel at the expense of the indemnifying
party.  No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action, and does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.


 


(d)                                 If
the indemnification provided for in this Section 4 is unavailable or
insufficient to hold harmless an indemnified party under subsections (a)
or (b) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above in such proportion as is appropriate to
reflect the relative fault of the indemnifying party or parties on the one hand
and the indemnified party on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof) as well as any other relevant equitable
considerations.  The relative fault of
the parties shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party on the one hand or such indemnified party, as the case
may be, on the other, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.  The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which
is the subject of this subsection (d). 
Notwithstanding any other provision of this Section 4(d), the
Holders of Registrable Securities shall not be required to contribute any
amount in excess of the amount by which the net proceeds received by such
Holders from the sale of the Registrable Securities pursuant to the Shelf
Registration Statement exceeds the amount of damages which such Holders of
Registrable Securities have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.  No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.  For
purposes of this subsection (d), each person, if any, who controls such
indemnified party within the meaning of the Securities Act or the Exchange Act
shall have the same


 


8

















 


rights to contribution as such indemnified party and each person, if
any, who controls the Company within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as the Company.


 


(e)                                  The
agreements contained in this Section 4 shall survive the sale of the
Registrable Securities pursuant to a Shelf Registration Statement and shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of any indemnified
party.


 


5.                                       Additional Interest Under Certain Circumstances.


 


(a)                                  Additional
interest (the “Additional Interest”)
with respect to the Registrable Securities shall be assessed as follows if any
of the following events occur (each such event in clauses (i) through
(iii) below being herein called a “Registration
Default”):


 


(i)                                     the
Shelf Registration Statement required by this Agreement is not filed with the
Commission on or prior to the Filing Deadline;


 


(ii)                                  the
Shelf Registration Statement required by this Agreement is not declared
effective by the Commission on or prior to the Effectiveness Deadline Date; or


 


(iii)                               any Shelf Registration
Statement required by this Agreement that has been declared effective by the
Commission thereafter ceases to be effective or useable (subject to the
Company’s right to suspend the use of the Shelf Registration Statement and the
prospectus as set forth in Section 1(b)) in connection with the resale of
the Registrable Securities and the Common Stock issuable upon the conversion of
the Notes in accordance with and during the periods specified herein and
(A) the Company does not cause the Shelf Registration Statement to become
effective within five (5) Business Days (which shall not be deemed to extend
the incurrence and accrual of any obligation to pay Additional Interest beyond
the time provided for in the last sentence of Section 1(b)) after it
ceases to be effective or useable by a post-effective amendment or additional
Shelf Registration Statement being filed and declared effective or a report
filed pursuant to the Exchange Act or (B) if applicable, the Company does
not terminate any Deferral Period within the time provided for in
Section 1(b).


 


Each of the
foregoing will constitute a Registration Default whatever the reason for any
such event and whether it is voluntary or involuntary or is beyond the control
of the Company or pursuant to operation of law or as a result of any action or
inaction by the Commission.


 


Additional
Interest shall accrue on the Registrable Securities over and above the interest
set forth in the title of the Registrable Securities from and including the
date on which any such Registration Default shall occur to but excluding, the
date on which all such Registration Defaults have been cured at a rate of 0.50%
of the principal amount per annum.


 


In the case of
Notes that have been converted into or exchanged for Underlying Common Stock,
Additional Interest shall accrue at the rate described above, applied to the
Applicable Conversion Price of such shares of Underlying Common Stock that are
Registrable Securities.  In the case of
a Registration Default described in clause (iii) above, the Company’s obligation
to pay Additional Interest extends only to Registrable Securities of Notice
Holders.  Any Additional Interest
accrued with respect to any Note or portion thereof converted into Underlying
Common Stock on a conversion date prior to the interest payment date with
respect to the Notes under the Indenture, shall, in any such event, be paid
instead to the Holder who submitted such Note or portion thereof for conversion
on the applicable conversion date, as the case may be, on such date.  Notwithstanding the foregoing, no Additional
Interest shall accrue as to any Registrable Security from and after the earlier
of (x) the date such security is no longer a Registrable Security and
(y) the expiration of the Effectiveness Period.  The rate of accrual of the Additional Interest with respect to
any period shall not exceed the rate provided for in this paragraph
notwithstanding the occurrence of multiple concurrent Registration
Defaults.  Following the cure of all
Registration Defaults requiring the payment by the Company of Additional
Interest to the Holders of Registrable Securities pursuant to this Section, the
accrual of Additional Interest will cease (without in any way limiting the
effect of any subsequent Registration Default requiring the payment of Additional
Interest by the Company).


 


9

















 


The Trustee shall
be entitled, on behalf of Holders of Notes or Underlying Common Stock, to seek
any available remedy for the enforcement of this Agreement, including for the
payment of any Additional Interest.


 


All of the
Company’s obligations set forth in this Section 5 that are outstanding
with respect to any Registrable Security at the time such security ceases to be
a Registrable Security shall survive until such time as all such obligations
with respect to such security have been satisfied in full.


 


The parties hereto
agree that the Additional Interest provided for in this Section 5
constitutes a reasonable estimate of the damages that may be incurred by
Holders of Registrable Securities by reason of the failure of the Shelf
Registration Statement to be filed or declared effective or available for
effecting resales of Registrable Securities in accordance with the provisions
hereof, and that the Additional Interest shall be the exclusive remedy at law
or in equity or otherwise available to the Holders of Registrable Securities
for such Registration Default.


 


(b)                                 Any
amounts of Additional Interest due pursuant to Section 5(a) will be
payable in cash on the regular interest payment dates with respect to the
Registrable Securities.  The amount of
Additional Interest will be determined by multiplying the applicable Additional
Interest Rate by the principal amount of the Registrable Securities or the
Applicable Conversion Price of the Registrable Securities, as applicable, and
further multiplied by a fraction, the numerator of which is the number of days
such Additional Interest Rate was applicable during such period (determined on
the basis of a 360-day year comprised of twelve 30-day months), and the
denominator of which is 360.  The
Registrable Securities entitled to payment of Additional Interest shall be
determined as of the Business Day immediately preceding the next regular
interest payment date with respect to the Registrable Securities.


 


6.                                       Rules 144 and 144A.  The Company shall use its reasonable efforts
to file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the request of any Holder, make publicly
available other information so long as necessary to permit sales of their
securities pursuant to Rules 144 and 144A.  The Company covenants that it will take such further action as
any Holder may reasonably request, all to the extent required from time to time
to enable such Holder to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by
Rules 144 and 144A (including the requirements of
Rule 144A(d)(4)).  The Company will
provide a copy of this Agreement to prospective purchasers of Notes identified
to the Company by the Initial Purchasers upon request.  Notwithstanding the foregoing, nothing in
this Section 6 shall be deemed to require the Company to register any of
its securities pursuant to the Exchange Act.


 


7.                                       Underwritten Registrations.  No person may participate in any
underwritten registration hereunder unless such person (i) agrees to sell
such person’s Registrable Securities on the basis reasonably provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.


 


If any of the
Registrable Securities covered by any Shelf Registration are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering (“Managing Underwriters”) will be selected by the Holders of a
majority in aggregate principal amount of such Registrable Securities to be
included in such offering (provided that Holders of Common Stock issued upon
conversion of the Notes shall not be deemed holders of Common Stock, but shall
be deemed to be holders of the aggregate principal amount of Notes from which
such Common Stock was converted), provided, however, that such
Managing Underwriters will be reasonably acceptable to the Company.


 


8.                                       Miscellaneous.


 


(a)                                  Remedies. 
Except as provided in Section 5, the Company acknowledges and agrees
that any failure by the Company to comply with its obligations under
Section 1 and 2 hereof may result in material irreparable injury to the
Initial Purchasers or the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, the Initial Purchasers or any Holder
may obtain such relief as may be required to specifically enforce the Company’s
obligations under Sections 1 and


 


10

















 


2 hereof.  The Company further
agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.


 


(b)                                 No Inconsistent Agreements.  The Company will not on or after the date of
this Agreement enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof.  The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders
of the Company’s securities under any agreement in effect on the date hereof.


 


(c)                                  Amendments and Waivers.  The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, except by the Company and the written
consent of the Holders of a majority in principal amount of the Registrable
Securities affected by such amendment, modification, supplement, waiver or
consents (provided that Holders of Common Stock issued upon conversion of Notes
shall not be deemed holders of Common Stock, but shall be deemed to be holders
of the aggregate principal amount of Notes from which such Common Stock was
converted).  Without the consent of the
Holder of each Registrable Security, however, no modification may change the
provisions relating to the payment of Additional Interest.


 


(d)                                 Notices. 
All notices and other communications provided for or permitted hereunder
shall be made in writing by hand delivery, first-class mail, facsimile
transmission, or air courier that guarantees overnight delivery:


 


(i)                                     if
to a Holder of the Registrable Securities, at the most current address given in
writing by such Holder to the Company.


 


(ii)                                  if
to the Initial Purchasers:


 


Banc of America Securities LLC

9 West 57th Street, 40th Floor

New York, New York 10019

Fax No.: (212) 847-5124

Attention: Eric Hambleton


 


 


Credit Suisse First Boston LLC

Eleven Madison Avenue

New York, NY 10010-3629

Fax No.:  (212) 325-8278

Attention:  Transactions Advisory Group


 


 


Merrill Lynch, Pierce, Fenner & Smith Incorporated

North Towers

World Financial Center

New York, New York 10281-1201

Fax No.: (212) 449-3207

Attention: Legal Department


 


 


with a copy to:


 


 


Davis Polk & Wardwell

1600 El Camino Real

Menlo Park, CA 94025

Attention:  Alan F. Denenberg, Esq.


 


11

















 


(iii)                               if to the Company, at
its address as follows:


 


UTStarcom, Inc.

1275 Harbor Bay Parkway

Alameda, CA 94502

Fax No.: (510) 864-8802

Attention:  Michael J. Sophie, Vice
President of Finance and Chief Financial Officer


 


 


with a copy to:


 


 


Wilson Sonsini Goodrich & Rosati, Professional
Corporation

650 Page Mill Road

Palo Alto, CA 94304-1050

Attention:  Carmen Chang, Esq.


 


All such notices and communications shall be deemed to
have been duly given:  (i) at the time
delivered by hand, if personally delivered, (ii) three business days after
being deposited in the mail, (iii) postage prepaid, if mailed; when receipt is
acknowledged by recipient’s facsimile machine operator, if sent by facsimile transmission
and (iv) on the day delivered, if sent by overnight air courier guaranteeing
next day delivery.


 


(e)                                  Third-Party Beneficiaries.  The Holders shall be third-party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right
to enforce such agreements directly to the extent they may deem such
enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder.  Any Notice Holder
shall be bound by the terms and provisions of this Agreement by reason of its
election with respect to the Registrable Securities to have its Registrable
Securities included in a Shelf Registration Statement.  All the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be enforceable
by the respective successors and assigns of the parties hereto and any Holder
from time to time of the Registrable Securities to the aforesaid extent.  In the event that any transferee of any
Holder of Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be entitled
to receive the benefits of and, if a Notice Holder, be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement to the aforesaid extent.


 


(f)                                    Successors and Assigns.  This Agreement shall be binding upon the
Company and its successors and assigns.


 


(g)                                 Counterparts.  This Agreement may be executed in any number of counterparts and
by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.


 


(h)                                 Headings. 
The headings in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.


 


(i)                                     Governing Law.  THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.


 


(j)                                     Severability.  If any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.


 


(k)                                  Securities Held by the Company.  Whenever the consent or approval of Holders
of a specified percentage of principal amount of Registrable Securities is
required hereunder, Registrable Securities held by the Company or its
affiliates (other than subsequent Holders of Registrable Securities if such
subsequent Holders are deemed


 


12

















 


to be affiliates solely by reason of their holdings of such Registrable
Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.


 


[Remainder of page
intentionally left blank].


 


13

















 


If the foregoing is in accordance with your
understanding of our agreement, please sign and return a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Initial Purchasers and the Company in accordance with its
terms.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  UTStarcom, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Michael J. Sophie

  
	
   

  	
   

  	
  Michael J. Sophie

  
	
   

  	
   

  	
  Vice President of Finance
  and Chief Financial

  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  The foregoing
  Registration

  Rights Agreement is hereby confirmed

  and accepted as of the date first

  above written.

  	
   

  
	
   

  	
   

  
	
  Banc
  Of America Securities LLC

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
    /s/ Derek Dillon

  	
   

  	
   

  
	
   

  	
    Name: 

  	
  Derek Dillon

  	
   

  
	
   

  	
    Title: 

  	
  Managing Director

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Credit
  Suisse First Boston LLC

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
    /s/ John C. Hodge

  	
   

  	
   

  
	
   

  	
    Name: 

  	
  John C. Hodge

  	
   

  
	
   

  	
    Title: 

  	
  Managing Director

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Merrill
  Lynch, Pierce, Fenner & Smith Incorporated

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
    /s/ Gary Kirkham

  	
   

  	
   

  
	
   

  	
    Name: 

  	
  Gary Kirkham

  	
   

  
	
   

  	
    Title: 

  	
  Managing Director

  	
   

  
						



 


 


[Signature page to
Registration Rights Agreement]


 


14

















 


ANNEX A


 


FORM OF SELLING
SECURITYHOLDER NOTICE AND QUESTIONNAIRE


 


The undersigned
beneficial holder of 7/8% Convertible Subordinated Notes due 2008 (the “Notes”)
of UTStarcom, Inc. (“UTStarcom”), convertible into shares of UTStarcom’s common
stock, par value $0.00125 (the “Common Stock” and together with the Notes, the
“Registrable Securities”), understands that UTStarcom has filed or intends to
file with the Securities and Exchange Commission (the “SEC”) a registration
statement on Form S-3 (the “Shelf Registration Statement”) for the
registration and resale under Rule 415 of the Securities Act of 1933, as
amended (the “Securities Act”), of the Registrable Securities in accordance
with the terms of the Registration Rights Agreement (the “Registration Rights
Agreement”) dated March 12, 2003 between UTStarcom and the initial purchasers
named therein.  The Registration Rights
Agreement is available from UTStarcom upon request at the address set forth
below.  All capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the
Registration Rights Agreement.


 


Each beneficial
owner of Registrable Securities is entitled to the benefits of the Registration
Rights Agreement.  In order to sell or
otherwise dispose of any Registrable Securities pursuant to the Shelf
Registration Statement, a beneficial owner of Registrable Securities generally
will be required to be named as a selling security holder in the related
prospectus, deliver a prospectus to purchasers of Registrable Securities and be
bound by those provisions of the Registration Rights Agreement applicable to
such beneficial owner (including certain indemnification provisions as
described below).  In order to have
Registrable Securities included in the Shelf Registration Statement (or a
supplement or amendment thereto), this Notice of Registration Statement and
Selling Securityholder Questionnaire (“Notice
and Questionnaire”) must be completed, executed and delivered to the
Company at the address set forth herein for receipt ON OR BEFORE [insert date
that is 28 days from the date of the Notice and Questionnaire].  Beneficial owners of Registrable Securities
who do not complete, execute and return this Notice and Questionnaire by such
date (i) will not be named as selling securityholders in the Shelf
Registration Statement and (ii) may not use the Prospectus forming a part
thereof for resales of Registrable Securities.


 


Notwithstanding
the foregoing, upon the request of any Holder of Registrable Securities that
did not return a Notice and Questionnaire on a timely basis or did not receive
a Notice and Questionnaire because it was a subsequent transferee of
Registrable Securities after the Company mailed the Notice and Questionnaire,
(x) the Company shall distribute a Notice and Questionnaire to such Holders at
the address set forth in the request and (y) upon receipt of a properly
completed Notice and Questionnaire from such Holder, the Company shall use its
reasonable efforts to name such Holder as a selling securityholder in the Shelf
Registration Statement by means of a pre-effective amendment or, if permitted
by the Commission, by means of a Prospectus supplement to the Shelf
Registration Statement; provided,
however, that the Company shall
have no obligation to pay Liquidated Damages to such Holder for its failure to
file a pre-effective amendment or Prospectus supplement and; provided, further,
that the Company will have no obligation to add a Holder to the Shelf
Registration Statement if a post-effective amendment would be necessary to name
such Holder as a selling securityholder.


 


Certain legal
consequences arise from being named as selling security holders in the Shelf
Registration Statement and the related prospectus.  Accordingly, holders and beneficial owners of Registrable
Securities are advised to consult their own securities law counsel regarding
the consequences of being named or not being named as a selling security holder
in the Shelf Registration Statement and the related prospectus.


 


 


NOTICE


 


The undersigned
beneficial owner (the “Selling Securityholder”) of Registrable Securities
hereby gives notice to UTStarcom of its intention to sell or otherwise dispose
of Registrable Securities beneficially owned by it and listed below in
Item 3 (unless otherwise specified under Item 3) pursuant to the
Shelf Registration Statement.  The undersigned,
by signing and returning this Notice and Questionnaire, agrees to be bound by
the terms and conditions of


 


 


15

















 


this Notice and Questionnaire and the Registration Rights Agreement as
if the undersigned Selling Securityholder were an original party thereto.


 


Upon
any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the
Company and the Trustee the Notice of Transfer (completed and signed) set forth
in Exhibit 1 to this Notice and Questionnaire.


 


The undersigned hereby
provides the following information to UTStarcom and represents and warrants
that such information is accurate and complete:


 


16

















 


QUESTIONNAIRE


 


	
  1.

  	
  (a)

  	
  Full Legal Name of
  Selling Securityholder:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
  Full Legal Name of
  Registered Holder (if not the same as (a) above) through which Registrable
  Securities listed in (3) below are held:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (c)

  	
  Full Legal Name of DTC
  Participant (if applicable and if not the same as (b) above) through which
  Registrable Securities listed in (3) below are held:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Address for Notices to
  Selling Securityholder: 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Telephone:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Fax:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Contact Person:

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Beneficial Ownership of
  Registrable Securities:

  
	
   

  	
   

  	
   

  
	
   

  	
  (a)

  	
  Type and principal
  amount of Registrable Securities beneficially owned: 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
  CUSIP No(s). of such
  Registrable Securities beneficially owned:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Beneficial Ownership of UTStarcom Securities Owned
  by the Selling Securityholder

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Except as set forth below in this
  item (4), the undersigned is not the beneficial or registered owner of any
  securities of UTStarcom other than the Registrable Securities listed above in
  Item (3).

  
	
   

  	
   

  	
   

  
	
   

  	
  (a)

  	
  Type and amount of
  other securities beneficially owned by the Selling Securityholder: 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
						



 


17

















 


	
   

  	
  (b)

  	
  CUSIP No(s). of such
  Registrable Securities beneficially owned:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Relationship with UTStarcom

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Except as set forth below, neither
  the undersigned nor any of its affiliates, directors or principal equity
  holder (5% or more) has held any position or office or has had any other
  material relationship with UTStarcom (or its predecessors or affiliates)
  during the past three years.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  State any exceptions here:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Plan of Distribution

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Except as set forth below, the
  undersigned (including its donees or pledgees) intends to distribute the
  Registrable Securities listed above in Item (3) pursuant to the Shelf
  Registration Statement only as follows (if at all): Such Registrable
  Securities may be sold from time to time directly by the undersigned or
  alternatively through initial purchasers or broker-dealers or agents.  If the Registrable Securities are sold
  through initial purchasers or broker-dealers, the Selling Securityholder will
  be responsible for underwriting discounts or commissions or agent’s
  commissions.  Such Registrable Securities
  may be sold in one or more transactions at fixed prices, at prevailing market
  prices at the time of sale, at varying prices determined at the time of sale,
  or at negotiated prices.  Such sales
  may be effected in transactions (which may involve block transactions)
  (i) on any national securities exchange or quotation service on which
  the Registrable Securities may be listed or quoted at the time of sale,
  (ii) in the over-the-counter market, (iii) in transactions
  otherwise than on such exchanges or services or in the over-the-counter market
  or (iv) through the writing of options. 
  In connection with sales of the Registrable Securities or otherwise,
  the undersigned may enter into hedging transactions with broker-dealers,
  which may in turn engage in short sales of the Registrable Securities, short
  and deliver Registrable Securities to close out such short positions, or loan
  or pledge Registrable Securities to broker-dealers that in turn may sell such
  securities.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  State any exceptions here:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Note:  In no event may such method(s) of
  distribution take the form of an underwritten offering of the Registrable
  Securities without the prior agreement of UTStarcom.

  



 


The undersigned
acknowledges that it understands its obligation to comply with the provisions
of the Securities Exchange Act of 1934, as amended, and the rules thereunder
relating to stock manipulation, particularly Regulation M thereunder (or
any successor rules or regulations), in connection with any offering of
Registrable Securities pursuant to the Shelf Registration Statement.  The undersigned agrees that neither it nor
any person acting on its behalf will engage in any transaction in violation of
such provisions.


 


18

















 


The Selling
Securityholder hereby acknowledges its obligations under the Registration
Rights Agreement to indemnify and hold harmless certain persons set forth
therein.


 


Pursuant to the
Registration Rights Agreement, UTStarcom has agreed under certain circumstances
to indemnify the Selling Securityholders against certain liabilities.


 


In the event that
the Selling Securityholder transfers all or any portion of the Registrable
Securities listed in Item (3) above after the date on which such information is
provided to the Company, the Selling Securityholder agrees to notify the
transferee(s) at the time of the transfer of its rights and obligations under
this Notice and Questionnaire and the Registration Rights Agreement.


 


In accordance with
the undersigned’s obligation under the Registration Rights Agreement to provide
such information as may be required by law for inclusion in the Shelf
Registration Statement, the undersigned agrees to promptly notify UTStarcom of
any inaccuracies or changes in the information provided herein that may occur
subsequent to the date hereof at any time while the Shelf Registration
Statement remains effective.  All
notices hereunder and pursuant to the Registration Rights Agreement shall be
made in writing at the address set forth below.


 


By signing this
Notice and Questionnaire, the undersigned consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above
and the inclusion of such information in the Shelf Registration Statement and
the related prospectus.  The undersigned
understands that such information will be relied upon by UTStarcom in
connection with the preparation or amendment of the Shelf Registration
Statement and the related prospectus.


 


IN WITNESS
WHEREOF, the undersigned, by authority duly given, has caused this Notice and
Questionnaire to be executed and delivered either in person or by its duly
authorized agent.


 


	
   

  	
  Dated:

  	
   

  
	
   

  	
   

  	
  Beneficial Owner

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
						



 


PLEASE RETURN THE
COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO:


 


UTStarcom Inc.

1275 Harbor Bay Parkway

Alameda, California 94502

Attention:  Russell L. Boltwood,

General Counsel

(510) 864-8800


 


19

















 


Exhibit
1

to Annex A


 


NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT


 


UTStarcom, Inc.


1275 Harbor Bay Parkway


Alameda, California 94502


Attention: Russell L.
Boltwood


General Counsel


 


U.S. Bank National
Association


550 S. Hope Street, Suite
500


Los Angeles, California
90071


Attention:  Corporate Trust Services


 


Re:                               UTStarcom,
Inc. (the “Company”) 7/8% Convertible Subordinated Notes due 2008 (the  “Notes”)


 


Dear Sirs:


 


Please be advised that
                                   has
transferred $                         aggregate
principal amount of the above-referenced Notes or shares of the Company’s common
stock, issued upon conversion or repurchase of the Notes, pursuant to an
effective Registration Statement on Form S-3 (File No.
333-            )
filed by the Company.


 


We hereby certify that the prospectus delivery
requirements, if any, of the Securities Act of 1933, as amended, have been
satisfied with respect to the transfer described above and that the above-named
beneficial owner of the Notes or common stock is named as a selling
securityholder in the Prospectus dated                  ,
or in amendments or supplements thereto, and that the aggregate principal
amount of the Notes or number of shares of common stock transferred are [a
portion of] the Notes or shares of common stock listed in such Prospectus as
amended or supplemented opposite such owner’s name.


 


	
  Dated:

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (Name)

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  (Authorized Signature)

  
				



 


20