Exhibit 10.2


 


UTSTARCOM, INC.


 


FOURTH AMENDMENT TO COMMON STOCK PURCHASE AGREEMENT


 


This
FOURTH AMENDMENT (this “Amendment”) to
the Common Stock Purchase Agreement dated as of February 1, 2010, as
amended on April 30, 2010, June 4,
2010 and July 7, 2010 (the “Agreement”), by
and among UTStarcom, Inc., a corporation organized and existing under the
laws of the State of Delaware (the “Company”) and
the purchasers listed on Schedule A thereto (the “Purchasers”),
is made and entered into as of September 7, 2010.  Capitalized terms used and not otherwise
defined in this Amendment shall have the meanings ascribed to them in the
Agreement.


 


RECITALS


 


WHEREAS, Section 2.1
of the Agreement provides that the Purchasers agree to purchase certain shares
of common stock of the Company at a purchase price of US$2.20 per share.


 


WHEREAS, the Company
and the Purchasers desire to amend the Agreement to reduce the purchase price
and adjust the number of Purchase Shares accordingly.


 


WHEREAS, Section 6.8
of the Agreement provides that any provision of the Agreement may be amended,
modified or terminated only upon the written consent of the Company and the
Purchasers representing 75% of the Purchase Shares.


 


NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Purchasers and the Company hereby agree as follows:


 


1.     Amendments.  (a) 
Section 2 of the Agreement is hereby amended and restated in its entirety
to read as follows:


 


“2. Purchase and Sale of the
Purchase Shares.


 


2.1           Purchase
and Sale.  The Company hereby agrees to sell to the Purchasers, and
the Purchasers hereby agree to purchase, for such purchase price per share as
set forth on the Schedule of Purchasers, shares of Common Stock in the amounts
listed on the Schedule of Purchasers (the “Purchase Shares”)
at one or more closings.


 


2.2           Closings.  As soon as practicable following satisfaction
or waiver (to the extent permitted hereunder) of all the conditions precedent
set forth in Section 5.1
and Section 5.2 below (other than those conditions that by their terms are
to be satisfied at the Closing, but subject to the satisfaction or waiver (to
the extent permitted hereunder) of such conditions), at the first closing (the “Closing”), the Company shall issue and sell the applicable
Purchase Shares to the Purchasers as indicated on the Schedule of
Purchasers.  The Purchasers may purchase
up to an additional 3,972,251 Purchase Shares at a second closing (the “Second Closing) as indicated on the Schedule of Purchasers
until November 8, 2010.  The Closing
and Second Closing shall take place remotely through the exchange of signature pages and
documents electronically or by facsimile.


 


2.3           Deliveries.  At the Closing or the Second Closing as
applicable, each Purchaser shall pay to the Company the purchase price for the
Purchase Shares it is purchasing as indicated in the Schedule of
Purchasers.  Such payments shall be made
by wire transfer of U.S Dollars to a bank account


 


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of
the Company in accordance with the Company’s wire instructions.  The Company shall, at such closing, issue and
deliver to each Purchaser a certificate representing the Purchased Shares being
purchased by such Purchaser at such closing, as set forth opposite such
Purchaser’s name in the Schedule of Purchasers, registered in the name of such
Purchaser.”


 


 


(b)   Section 5.2 (a) of the Agreement is hereby amended and
restated in its entirety to read as follows:


 


“5.2         Conditions
to the Obligation of the Company to Consummate the Closings.  The
obligation of the Company to consummate the Closing and the Second Closing and
to issue and sell the Purchase Shares to the Purchasers at the Closing and the
Second Closing is subject to the satisfaction of the following conditions
precedent:


 


(a)          Representations and Warranties; Covenants.


 


(1)   Each of the representations and warranties of each Purchaser in Section 4
shall be true and correct as of the date of this Agreement and as of the date
of the Closing and/or the Second Closing as applicable as though made at that
time.


 


(2)   Each of the Purchasers shall have performed, satisfied and
complied in all material respects with the covenants, agreements and conditions
required by this Agreement prior to the date of Closing and/or the Second
Closing as applicable.”


 


(c)   Schedule A of the Agreement is hereby amended and restated
in its entirety to read as follows:


 


“SCHEDULE OF PURCHASERS


Closing:


 


	
  Name and Address

  	
   

  	
  Price Per Share (US$)

  	
   

  	
  Investment Amount (US$)

  	
   

  	
  Number of Purchase Shares

  	
   

  
	
  Elite Noble Limited

  Address:

  Room 512, 5/F.,
  Tower 1

  Silvercord, 30 Canton
  Road

  Tsimshatsui, Kowloon 

  Hong Kong 

  Facsimile: +852 2114
  0183 

  Attn: Jingchun Sun

  	
   

  	
  2.027

  	
   

  	
  2,600,000

  	
   

  	
  1,282,711

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Shah Capital
  Opportunity Fund LP

  Address: 8601 Six Forks
  Road, Suite 630 

  Raleigh, NC  27615
  

  USA 

  Facsimile: +1 (919)
  719-6370 

  Attn: Himanshu H. Shah

  	
   

  	
  2.027

  	
   

  	
  11,000,000

  	
   

  	
  5,426,855

  	
   

  



 


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Second Closing:


 


Elite Noble Limited may, at the Second Closing,
purchase up to 3,972,251 additional Purchase Shares at a purchase price per
share of US$2.027 if the Second Closing takes place on or prior to October 7,
2010 and US$2.047 if the Second Closing takes place between October 8,
2010 and November 8, 2010.”


 


2.     Continuing Agreement. 
Except as specifically amended by this Amendment, all of the terms of
the Agreement shall remain and continue in full force and effect.


 


3.     Counterparts.  This
Amendment may be executed in any number of counterparts, each of which shall be
an original, but all of which together shall constitute one instrument.  A
facsimile, portable document file (PDF) or other reproduction of this Amendment
may be executed by one or more parties and delivered by such party by facsimile,
electronic mail or any similar electronic transmission pursuant to which the
signature of or on behalf of such party can be seen.  Such execution and
delivery shall be considered valid, binding and effective for all purposes.


 


4.     Governing Law.  This Amendment shall be governed by and
construed in accordance with the internal and substantive laws of the State of
California and without regard to any conflicts of laws concepts which would
apply the substantive law of some other jurisdiction.


 


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IN
WITNESS WHEREOF, the Purchasers and the Company have caused their duly
authorized representatives to execute this Amendment as of the date first
written above.


 




	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  UTSTARCOM, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter Blackmore

  	
   

  
	
   

  	
  Name:

  	
  Peter Blackmore

  
	
   

  	
  Title:
  

  	
  Chief
  Executive Officer

  
					






 


Signature
Page to Fourth Amendment to Common Stock Purchase Agreement


 


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IN
WITNESS WHEREOF, the Purchasers and the Company have caused their duly
authorized representatives to execute this Amendment as of the date first
written above.


 




	
   

  	
  PURCHASERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ELITE
  NOBLE LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jingchun Sun

  	
   

  
	
   

  	
  Name:
  

  	
  Jingchun Sun

  
	
   

  	
  Title:
  

  	
  Director

  
					






 


Signature
Page to Fourth Amendment to Common Stock Purchase Agreement


 


5

















 


IN
WITNESS WHEREOF, the Purchasers and the Company have caused their duly
authorized representatives to execute this Amendment as of the date first
written above.


 




	
   

  	
  PURCHASERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SHAH
  CAPITAL OPPORTUNITY FUND LP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Himanshu H. Shah

  	
   

  
	
   

  	
  Name:
  

  	
  Himanshu H. Shah

  
	
   

  	
  Title:
  

  	
  General
  Partner

  
					






 


Signature Page to Fourth Amendment to
Common Stock Purchase Agreement


 


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