0001193125-13-423379.txt : 20131104 0001193125-13-423379.hdr.sgml : 20131104 20131101190211 ACCESSION NUMBER: 0001193125-13-423379 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20131104 DATE AS OF CHANGE: 20131101 GROUP MEMBERS: HIMANSHU H. SHAH GROUP MEMBERS: HONG LIANG LU GROUP MEMBERS: LU CHARITABLE REMAINDER TRUST GROUP MEMBERS: LU FAMILY LIMITED PARTNERSHIP GROUP MEMBERS: LU FAMILY TRUST GROUP MEMBERS: SHAH CAPITAL OPPORTUNITY FUND LP SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: UTSTARCOM HOLDINGS CORP. CENTRAL INDEX KEY: 0001030471 STANDARD INDUSTRIAL CLASSIFICATION: COMMUNICATIONS EQUIPMENT, NEC [3669] IRS NUMBER: 521782500 STATE OF INCORPORATION: E9 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-60651 FILM NUMBER: 131187290 BUSINESS ADDRESS: STREET 1: 52-2 BLDG. BDA INTL ENTERPRISE AVE STREET 2: NO. 2 JINGYUAN NORTH ST. DAXING DISTRICT CITY: BEIJING STATE: F4 ZIP: 100176 BUSINESS PHONE: 86 (10) 85205588 MAIL ADDRESS: STREET 1: 52-2 BLDG. BDA INTL ENTERPRISE AVE STREET 2: NO. 2 JINGYUAN NORTH ST. DAXING DISTRICT CITY: BEIJING STATE: F4 ZIP: 100176 FORMER COMPANY: FORMER CONFORMED NAME: UTSTARCOM INC DATE OF NAME CHANGE: 19970110 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SHAH CAPITAL MANAGEMENT CENTRAL INDEX KEY: 0001383838 IRS NUMBER: 201804775 STATE OF INCORPORATION: NC FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 8601 SIX FORKS ROAD STREET 2: SUITE 630 CITY: RALEIGH STATE: NC ZIP: 27615 BUSINESS PHONE: 919 719 6360 MAIL ADDRESS: STREET 1: 8601 SIX FORKS ROAD STREET 2: SUITE 630 CITY: RALEIGH STATE: NC ZIP: 27615 SC 13D/A 1 d619301dsc13da.htm SCHEDULE 13D AMENDMENT NO.9 SCHEDULE 13D AMENDMENT NO.9

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 9)*

 

 

UTSTARCOM HOLDINGS CORP.

 

(Name of Issuer)

Ordinary Shares, par value US$0.00375 per share

 

(Title of Class of Securities)

918076100

 

(CUSIP Number)

Shah Capital Management, Inc.

8601 Six Forks Road, Suite 630

Raleigh, NC 27615

Telephone: +1 (919) 719-6360

With a copy to:

Paul Strecker, Esq.

Shearman & Sterling

12th Floor, Gloucester Tower

The Landmark

15 Queen’s Road Central

Hong Kong

Telephone: +852 2978 8000

 

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

October 31, 2013

 

(Date of Event Which Requires Filing of this Statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because § 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g) check the following box  ¨.

 

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7(b) 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).

 

 

 


SCHEDULE 13D

 

CUSIP No. 918076100   Page 1 of 13 Pages

 

  1   

NAME OF REPORTING PERSONS

I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

 

Shah Capital Management, Inc.

  2  

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)

(a)  ¨        (b)  x

 

  3  

SEC USE ONLY

 

  4  

SOURCE OF FUNDS (See Instructions)

 

OO

  5  

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  ¨

 

  6  

CITIZENSHIP OR PLACE OF ORGANIZATION

 

North Carolina

NUMBER OF

SHARES

  BENEFICIALLY  

OWNED BY

EACH

REPORTING

PERSON

WITH

     7    

SOLE VOTING POWER

 

0

     8   

SHARED VOTING POWER

 

6,543,635

     9   

SOLE DISPOSITIVE POWER

 

0

   10   

SHARED DISPOSITIVE POWER

 

6,543,635

11  

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

6,543,6351

12  

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)  ¨

 

13  

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

16.8%2

14  

TYPE OF REPORTING PERSON (See Instructions)

 

IA

 

1  Includes (i) 1,117,578 Ordinary Shares managed by Shah Management in separately managed accounts, and (ii) 5,426,057 Ordinary Shares owned by Shah Opportunity. Shah Management is the investment manager of Shah Opportunity. Mr. Shah is the president and chief investment officer of Shah Management.
2  Percentage calculated based on 39,022,758 ordinary shares outstanding. According to Exhibit (a)(5)(iv) to Schedule TO (Amendment No. 3) filed with the SEC by the Company on January 10, 2013, the Company had 117,068,276 ordinary shares outstanding, par value US$0.00125 per share. According to Form 6-K filed by the Company on March 21, 2013, the Company effected a three-to-one reverse share split.

 

1


SCHEDULE 13D

 

CUSIP No. 918076100   Page 2 of 13 Pages

 

  1   

NAME OF REPORTING PERSONS

I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

 

Shah Capital Opportunity Fund LP

  2  

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)

(a)  ¨        (b)  x

 

  3  

SEC USE ONLY

 

  4  

SOURCE OF FUNDS (See Instructions)

 

OO

  5  

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  ¨

 

  6  

CITIZENSHIP OR PLACE OF ORGANIZATION

 

Delaware

NUMBER OF

SHARES

  BENEFICIALLY  

OWNED BY

EACH

REPORTING

PERSON

WITH

     7    

SOLE VOTING POWER

 

0

     8   

SHARED VOTING POWER

 

5,426,057

     9   

SOLE DISPOSITIVE POWER

 

0

   10   

SHARED DISPOSITIVE POWER

 

5,426,057

11  

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

5,426,0573

12  

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)  ¨

 

13  

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

13.9%4

14  

TYPE OF REPORTING PERSON (See Instructions)

 

PN

 

3  Includes 5,426,057 Ordinary Shares. Shah Capital LLC is the general partner of Shah Opportunity. Mr. Shah is the managing member of Shah Capital LLC.
4  Percentage calculated based on 39,022,758 ordinary shares outstanding. According to Exhibit (a)(5)(iv) to Schedule TO (Amendment No. 3) filed with the SEC by the Company on January 10, 2013, the Company had 117,068,276 ordinary shares outstanding, par value US$0.00125 per share. According to Form 6-K filed by the Company on March 21, 2013, the Company effected a three-to-one reverse share split.

 

2


SCHEDULE 13D

 

CUSIP No. 918076100   Page 3 of 13 Pages

 

  1   

NAME OF REPORTING PERSONS

I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

 

Himanshu H. Shah

  2  

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)

(a)  ¨        (b)  x

 

  3  

SEC USE ONLY

 

  4  

SOURCE OF FUNDS (See Instructions)

 

OO

  5  

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  ¨

 

  6  

CITIZENSHIP OR PLACE OF ORGANIZATION

 

United States

NUMBER OF

SHARES

  BENEFICIALLY  

OWNED BY

EACH

REPORTING

PERSON

WITH

     7    

SOLE VOTING POWER

 

311,333

     8   

SHARED VOTING POWER

 

6,543,635

     9   

SOLE DISPOSITIVE POWER

 

311,333

   10   

SHARED DISPOSITIVE POWER

 

6,543,635

11  

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

6,854,9685

12  

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)  ¨

 

13  

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

17.6%6

14  

TYPE OF REPORTING PERSON (See Instructions)

 

IN

 

5  Includes (i) 1,117,578 Ordinary Shares in separately managed accounts managed by Shah Management, (ii) 5,426,057 Ordinary Shares owned by Shah Opportunity, and (iii) 311,333 Ordinary Shares. Mr. Shah is the president and chief investment officer of Shah Management. Shah Capital LLC is the general partner of Shah Opportunity. Mr. Shah is the managing member of Shah Capital LLC.
6  Percentage calculated based on 39,022,758 ordinary shares outstanding. According to Exhibit (a)(5)(iv) to Schedule TO (Amendment No. 3) filed with the SEC by the Company on January 10, 2013, the Company had 117,068,276 ordinary shares outstanding, par value US$0.00125 per share. According to Form 6-K filed by the Company on March 21, 2013, the Company effected a three-to-one reverse share split.

 

3


SCHEDULE 13D

 

CUSIP No. 918076100   Page 4 of 13 Pages

 

  1   

NAME OF REPORTING PERSONS

I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

 

Hong Liang Lu

  2  

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)

(a)  ¨        (b)  x

 

  3  

SEC USE ONLY

 

  4  

SOURCE OF FUNDS (See Instructions)

 

OO

  5  

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  ¨

 

  6  

CITIZENSHIP OR PLACE OF ORGANIZATION

 

United States

NUMBER OF

SHARES

  BENEFICIALLY  

OWNED BY

EACH

REPORTING

PERSON

WITH

     7    

SOLE VOTING POWER

 

1,073,954

     8   

SHARED VOTING POWER

 

181,704

     9   

SOLE DISPOSITIVE POWER

 

1,073,954

   10   

SHARED DISPOSITIVE POWER

 

181,704

11  

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

1,255,6587

12  

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)  ¨

 

13  

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

3.2%8

14  

TYPE OF REPORTING PERSON (See Instructions)

 

IN

 

7  Includes (i) 734,062 Ordinary Shares, (ii) 181,704 Ordinary Shares over which Mr. Lu and his spouse, Lucy Lu, share voting and dispositive power, (iii) 26,925 Ordinary Shares registered in the name of Lu Charitable Remainder Trust, of which Mr. Lu is the trustee, (iv) 16,408 Ordinary Shares registered in the name of the Lu Family Trust, of which Mr. Lu is a trustee and of which Mr. Lu and his spouse are beneficiaries, (v) 76,333 Ordinary Shares registered in the name of The Lu Family Limited Partnership, of which Mr. Lu is a general partner, and (vi) 220,226 Ordinary Shares issuable upon exercise of options held by Mr. Lu that are exercisable currently or within 60 days of October 31, 2013.
8  Percentage calculated based on 39,022,758 ordinary shares outstanding. According to Exhibit (a)(5)(iv) to Schedule TO (Amendment No. 3) filed with the SEC by the Company on January 10, 2013, the Company had 117,068,276 ordinary shares outstanding, par value US$0.00125 per share. According to Form 6-K filed by the Company on March 21, 2013, the Company effected a three-to-one reverse share split.

 

4


SCHEDULE 13D

 

CUSIP No. 918076100   Page 5 of 13 Pages

 

  1   

NAME OF REPORTING PERSONS

I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

 

Lu Charitable Remainder Trust

  2  

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)

(a)  ¨        (b)  x

 

  3  

SEC USE ONLY

 

  4  

SOURCE OF FUNDS (See Instructions)

 

OO

  5  

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  ¨

 

  6  

CITIZENSHIP OR PLACE OF ORGANIZATION

 

California

NUMBER OF

SHARES

  BENEFICIALLY  

OWNED BY

EACH

REPORTING

PERSON

WITH

     7    

SOLE VOTING POWER

 

26,925

     8   

SHARED VOTING POWER

 

0

     9   

SOLE DISPOSITIVE POWER

 

26,925

   10   

SHARED DISPOSITIVE POWER

 

11  

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

26,9259

12  

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)  ¨

 

13  

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

0.1%10

14  

TYPE OF REPORTING PERSON (See Instructions)

 

OO

 

9  Includes 26,925 Ordinary Shares. Mr. Lu is the trustee of Lu Charitable Trust.
10  Percentage calculated based on 39,022,758 ordinary shares outstanding. According to Exhibit (a)(5)(iv) to Schedule TO (Amendment No. 3) filed with the SEC by the Company on January 10, 2013, the Company had 117,068,276 ordinary shares outstanding, par value US$0.00125 per share. According to Form 6-K filed by the Company on March 21, 2013, the Company effected a three-to-one reverse share split.

 

5


SCHEDULE 13D

 

CUSIP No. 918076100   Page 6 of 13 Pages

 

  1   

NAME OF REPORTING PERSONS

I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

 

Lu Family Trust

  2  

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)

(a)  ¨        (b)  x

 

  3  

SEC USE ONLY

 

  4  

SOURCE OF FUNDS (See Instructions)

 

OO

  5  

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  ¨

 

  6  

CITIZENSHIP OR PLACE OF ORGANIZATION

 

California

NUMBER OF

SHARES

  BENEFICIALLY  

OWNED BY

EACH

REPORTING

PERSON

WITH

     7    

SOLE VOTING POWER

 

16,408

     8   

SHARED VOTING POWER

 

0

     9   

SOLE DISPOSITIVE POWER

 

16,408

   10   

SHARED DISPOSITIVE POWER

 

0

11  

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

16,40811

12  

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)  ¨

 

13  

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

0.0%12

14  

TYPE OF REPORTING PERSON (See Instructions)

 

OO

 

11  Includes 16,408 Ordinary Shares. Mr. Lu is a trustee of Lu Family Trust, of which Mr. Lu and his spouse are beneficiaries.
12  Percentage calculated based on 39,022,758 ordinary shares outstanding. According to Exhibit (a)(5)(iv) to Schedule TO (Amendment No. 3) filed with the SEC by the Company on January 10, 2013, the Company had 117,068,276 ordinary shares outstanding, par value US$0.00125 per share. According to Form 6-K filed by the Company on March 21, 2013, the Company effected a three-to-one reverse share split.

 

6


SCHEDULE 13D

 

CUSIP No. 918076100   Page 7 of 13 Pages

 

  1   

NAME OF REPORTING PERSONS

I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

 

The Lu Family Limited Partnership

  2  

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)

(a)  ¨        (b)  x

 

  3  

SEC USE ONLY

 

  4  

SOURCE OF FUNDS (See Instructions)

 

OO

  5  

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  ¨

 

  6  

CITIZENSHIP OR PLACE OF ORGANIZATION

 

Delaware

NUMBER OF

SHARES

  BENEFICIALLY  

OWNED BY

EACH

REPORTING

PERSON

WITH

     7    

SOLE VOTING POWER

 

76,333

     8   

SHARED VOTING POWER

 

0

     9   

SOLE DISPOSITIVE POWER

 

76,333

   10   

SHARED DISPOSITIVE POWER

 

0

11  

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

76,33313

12  

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)  ¨

 

13  

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

0.2%14

14  

TYPE OF REPORTING PERSON (See Instructions)

 

PN

 

13  Includes 76,333 Ordinary Shares. Mr. Lu is a general partner of Lu Family Partnership.
14  Percentage calculated based on 39,022,758 ordinary shares outstanding. According to Exhibit (a)(5)(iv) to Schedule TO (Amendment No. 3) filed with the SEC by the Company on January 10, 2013, the Company had 117,068,276 ordinary shares outstanding, par value US$0.00125 per share. According to Form 6-K filed by the Company on March 21, 2013, the Company effected a three-to-one reverse share split.

 

7


This Amendment No. 9 is being filed jointly by Shah Capital Management, Inc. (“Shah Management”), Shah Capital Opportunity Fund LP (“Shah Opportunity”), Himanshu H. Shah (“Mr. Shah”), Hong Liang Lu (“Mr. Lu”), Lu Charitable Remainder Trust (“Lu Charitable Trust”), Lu Family Trust (“Lu Family Trust”) and The Lu Family Limited Partnership (“Lu Family Partnership”, together with Shah Opportunity, Mr. Shah, Mr. Lu, Lu Charitable Trust, Lu Family Trust, the “Reporting Persons”).

This Amendment No. 9 amends and supplements the amendment No. 8 to the statement on Schedule 13D jointly filed with the Securities and Exchange Commission (the “SEC”) on March 27, 2013 by the Reporting Persons (the “Original Schedule 13D”). Unless otherwise stated herein, the Original Schedule 13D remains in full force and effect. Terms used but not defined herein have the meanings ascribed thereto in the Original Schedule 13D.

 

Item 2. Identity and Background.

Item 2 of the Original Schedule 13D is hereby amended and supplemented by adding the following at the end thereof:

As described in Item 4 below, Shah Opportunity, Mr. Shah, Mr. Lu, Lu Charitable Trust, Lu Family Trust and Lu Family Partnership (collectively, the “Shah and Lu Parties”) have entered into an agreement which terminates the Consortium Agreement and ceased to be the Consortium Members effective as of October 31, 2013. The information set forth in Item 4 below is hereby incorporated by reference into this Item 2.

 

Item 3. Source and Amount of Funds or Other Consideration.

Item 3 of the Original Schedule 13D is hereby amended and supplemented by adding the following at the end thereof:

As described in Item 4 below, the Shah and Lu Parties have entered into an agreement which terminates the Consortium Agreement and ceased to be the Consortium Members effective as of October 31, 2013. The information set forth in Item 4 below is hereby incorporated by reference into this Item 3.

 

Item 4. Purpose of Transaction.

Item 4 of the Original Schedule 13D is hereby amended and supplemented by adding the following at the end thereof:

On October 31, 2013, the Shah and Lu Parties submitted a letter (“Proposal Withdrawal Letter”) to the special committee of the board of directors the Company which notified the Company that such parties had unanimously determined to withdraw the Proposal. The withdrawal of the Proposal became effective on October 31, 2013.

In connection with the withdrawal of the Proposal, the Shah and Lu Parties have entered into a termination agreement, dated October 31, 2013 (the “Consortium Termination Agreement”), which terminates the Consortium Agreement.

 

8


The descriptions of the Proposal Withdrawal Letter and the Consortium Termination Agreement in this Item 4 are qualified in their entirety by reference to the complete text of the Proposal Withdrawal Letter and the Consortium Termination Agreement, which have been filed as Exhibit 99.4 and 99.5 to this Schedule 13D and are incorporated by reference in their entirety into this Item 4.

 

Item 5. Interest in Securities of the Issuer.

Item 5 of the Original Schedule 13D is hereby amended and restated in its entirety as follows:

(a)-(b) The following table sets forth the beneficial ownership of Ordinary Shares of the Company for each of the Reporting Persons as of October 31, 2013.

 

Name

  

Shares
Beneficially
Owned

    

Percentage
of Total

   

Sole Voting
Power

    

Shared
Voting
Power

    

Sole
Dispositive
Power

    

Shared
Dispositive
Power

 

Shah Management(1)

     6,543,635         16.8     —           6,543,635         —           6,543,635   

Shah Opportunity(2)

     5,426,057         13.9     —           5,426,057         —           5,426,057   

Mr. Shah(3)

     6,854,968         17.6     311,333         6,543,635         311,333         6,543,635   

Mr. Lu(4)

     1,255,658         3.2     1,073,954         181,704         1,073,954         181,704   

Lu Charitable Trust(5)

     26,925         0.1     26,925         —           26,925         —     

Lu Family Trust(6)

     16,408         0.0     16,408         —           16,408         —     

Lu Family Partnership(7)

     76,333         0.2     76,333         —           76,333         —     

 

(1) Includes (i) 1,117,578 Ordinary Shares managed by Shah Management in separately managed accounts, and (ii) 5,426,057 Ordinary Shares owned by Shah Opportunity. Shah Management is the investment manager of Shah Opportunity. Mr. Shah is the president and chief investment officer of Shah Management.
(2) Includes 5,426,057 Ordinary Shares. Shah Capital LLC is the general partner of Shah Opportunity. Mr. Shah is the managing member of Shah Capital LLC.
(3) Includes (i) 1,117,578 Ordinary Shares in separately managed accounts managed by Shah Management, (ii) 5,426,057 Ordinary Shares owned by Shah Opportunity, and (iii) 311,333 Ordinary Shares. Mr. Shah is the president and chief investment officer of Shah Management. Shah Capital LLC is the general partner of Shah Opportunity. Mr. Shah is the managing member of Shah Capital LLC.
(4) Includes (i) 734,062 Ordinary Shares, (ii) 181,704 Ordinary Shares over which Mr. Lu and his spouse, Lucy Lu, share voting and dispositive power, (iii) 26,925 Ordinary Shares registered in the name of Lu Charitable Remainder Trust, of which Mr. Lu is the trustee, (iv) 16,408 Ordinary Shares registered in the name of the Lu Family Trust, of which Mr. Lu is a trustee and of which Mr. Lu and his spouse are beneficiaries, (v) 76,333 Ordinary Shares registered in the name of The Lu Family Limited Partnership, of which Mr. Lu is a general partner, and (vi) 220,226 Ordinary Shares issuable upon exercise of options held by Mr. Lu that are exercisable currently or within 60 days of October 31, 2013.

 

9


(5) Includes 26,925 Ordinary Shares. Mr. Lu is the trustee of Lu Charitable Trust.
(6) Includes 16,408 Ordinary Shares. Mr. Lu is the trustee of Lu Family Trust, of which Mr. Lu and his spouse are beneficiaries.
(7) Includes 76,333 Ordinary Shares. Mr. Lu is a general partner of Lu Family Partnership.

 

(c) Except as disclosed in Item 6 below, to the best knowledge of each of the Reporting Persons, none of the Reporting Persons has effected any transactions relating to the Ordinary Shares during the past sixty (60) days.

 

(d) Not applicable.

 

(e) Not applicable.

 

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

Item 6 of the Original Schedule 13D is hereby amended and restated in its entirety as follows:

The descriptions of the principal terms of the Proposal Withdrawal Letter and the Consortium Termination Agreement under Item 4 are incorporated herein by reference in their entirety.

To the best knowledge of the Reporting Persons, except as provided herein, there are no other contracts, arrangements, understandings or relationships (legal or otherwise) among the Reporting Persons and between any of the Reporting Persons and any other person with respect to any securities of the Company.

 

Item 7. Materials to be Filed as Exhibits.

Item 7 is hereby supplemented by adding the following exhibits:

 

Exhibit No.    Description
99.4    Proposal Withdrawal Letter to the special committee of the board of directors of the Company, dated October 31, 2013.
99.5    Consortium Termination Agreement, dated October 31, 2013, by and among Shah Opportunity, Mr. Shah, Mr. Lu, Lu Charitable Trust, Lu Family Trust and Lu Family Partnership.

 

10


SIGNATURE

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

Dated:

November 1, 2013

 

Shah Capital Management, Inc.
By:     /s/ Himanshu H. Shah
  Name:   Himanshu H. Shah
  Title:   President and CIO

Shah Capital Opportunity Fund LP

By: Shah Capital LLC, the General Partner

By:   /s/ Himanshu H. Shah
  Name:   Himanshu H. Shah
  Title:   Managing Member
Himanshu H. Shah
/s/ Himanshu H. Shah
Hong Liang Lu
/s/ Hong Liang Lu
Lu Charitable Remainder Trust
By:   /s/ Hong Liang Lu
  Name:   Hong Liang Lu
  Title:   Trustee
Lu Family Trust
By:   /s/ Hong Liang Lu
  Name:   Hong Liang Lu
  Title:   Trustee

 

11


The Lu Family Limited Partnership

By: Hong Liang Lu, the General Partner

By:     /s/ Hong Liang Lu
  Name:   Hong Liang Lu

 

12


EXHIBIT INDEX

 

Exhibit No.    Description
99.4    Proposal Withdrawal Letter to the special committee of the board of directors of the Company, dated October 31, 2013.
99.5    Consortium Termination Agreement, dated October 31, 2013, by and among Shah Opportunity, Mr. Shah, Mr. Lu, Lu Charitable Trust, Lu Family Trust and Lu Family Partnership.

 

13

EX-99.4 2 d619301dex994.htm EX-99.4 EX-99.4

Exhibit 99.4

October 31, 2013

Special Committee of the Board of Directors

UTStarcom Holdings Corp.

Room 303, Building H, Phoenix Place

No. A5 Shuguangxili

Chaoyang District, Beijing 100028

People’s Republic of China

Dear Sirs:

We refer to our preliminary non-binding proposal (the “Proposal”) to the board of directors of UTStarcom Holdings Corp. (the “Company”), dated March 27, 2013, to acquire the Company pursuant to the Acquisition (as defined in the Proposal). Pursuant to the terms of our consortium agreement, we have unanimously determined to withdraw our Proposal for the Company. We hereby notify the Company of such withdrawal effective as of the date of this letter.

[Signature Page follows]

 

1


Sincerely,

 

Shah Capital Opportunity Fund LP

By: Shah Capital LLC, the General Partner

 

/s/ Himanshu H. Shah

Name: Himanshu H. Shah

Title: Managing Member

 

Himanshu H. Shah
/s/ Himanshu H. Shah

 

Lu Charitable Remainder Trust
/s/ Hong Liang Lu

Name: Hong Liang Lu

Title: Trustee

 

Lu Family Trust
/s/ Hong Liang Lu
Name: Hong Liang Lu
Title: Trustee

 

The Lu Family Limited Partnership

By: Hong Liang Lu, its General Partner

/s/ Hong Liang Lu
Name: Hong Liang Lu

 

Hong Liang Lu
/s/ Hong Liang Lu

cc:

Colin Banfield, Citigroup Global Markets Inc.

Chuck Kim, Citigroup Global Markets Inc.

Jesse Sheley, Kirkland & Ellis

[Unicycle Termination Notice Signature Page]

EX-99.5 3 d619301dex995.htm EX-99.5 EX-99.5

Exhibit 99.5

THIS TERMINATION AGREEMENT (this “Agreement”) is made as of October 31, 2013, among Shah Capital Opportunity Fund LP (“Shah Capital”), Himanshu H. Shah (“Mr. Shah”), the Lu Charitable Remainder Trust, the Lu Family Trust (together with the Lu Charitable Remainder Trust, the “Lu Trusts”), The Lu Family Limited Partnership (the “Lu Partnership”) and Hong Liang Lu (“Mr. Lu”). Each of Shah Capital, Mr. Shah, the Lu Trusts, the Lu Partnership and Mr. Lu is referred to herein as a “Party” and collectively, the “Parties”.

WHEREAS, the Parties entered into a consortium agreement dated as of March 27, 2013 (the “Consortium Agreement”) in relation to a proposed transaction with respect to UTStarcom Holdings Corp.; and

WHEREAS, the Parties, after consultation with one another, have withdrawn the Proposal (as defined in the Consortium Agreement) and unanimously determined not to proceed with the Transaction (as defined in the Consortium Agreement), and wish to terminate the Consortium Agreement upon the terms and subject to the conditions set forth herein.

NOW, THEREFORE, in consideration of the premises and the mutual agreements and covenants set forth hereinafter, the Parties hereby agree as follows:

1. Definitions and Interpretation. Capitalized terms used herein and not otherwise defined shall have their respective meaning as set forth in the Consortium Agreement. The provisions of Article XI (Definitions and Interpretation) of the Consortium Agreement shall apply mutatis mutandis with respect to this Agreement.

2. Termination of the Consortium Agreement. The Consortium Agreement shall be terminated with immediate effect; provided that, notwithstanding the foregoing, (a) Section 3.01(b) (Transaction Costs), Article IV (Limitation of Liability), Section 7.02 (Confidentiality), Section 7.03 (Permitted Disclosures), Article VIII (Notices), Article X (Miscellaneous) (other than Section 10.02 (Further Assurances)), and Article XI (Definitions and Interpretation) of the Consortium Agreement shall continue to have effect and be binding on each Party in accordance with their respective terms following such termination, and (b) nothing herein shall relieve any Party from liability for any breach of the Consortium Agreement or other acts or omissions occurring on or prior to the date hereof, and each Party reserves all of its respective rights.

3. Further Assurances. Each Party shall use all reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable to carry out the intent and purposes of this Agreement.

4. Amendment. Neither this Agreement nor any term hereof may be amended or otherwise modified other than by an instrument in writing signed by the Parties.

5. Counterparts. This Agreement may be executed in counterparts and all counterparts taken together shall constitute one document. This Agreement shall not be effective until each Party has executed at least one counterpart.

 

1


6. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. The provisions of Section 10.08 (Governing Law) and Section 10.09 (Remedies) of the Consortium Agreement shall apply mutatis mutandis with respect to this Agreement.

* * * *

 

2


IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date first written above.

 

Shah Capital Opportunity Fund LP

By: Shah Capital LLC, the General Partner

/s/ Himanshu H. Shah

Name: Himanshu H. Shah

Title: Managing Member

 

Himanshu H. Shah
/s/ Himanshu H. Shah

 

Lu Charitable Remainder Trust
/s/ Hong Liang Lu

Name: Hong Liang Lu

Title: Trustee

 

Lu Family Trust
/s/ Hong Liang Lu

Name: Hong Liang Lu

Title: Trustee

 

The Lu Family Limited Partnership

By: Hong Liang Lu, its General Partner

/s/ Hong Liang Lu
Name: Hong Liang Lu

 

Hong Liang Lu
/s/ Hong Liang Lu

[Unicycle Termination Notice Signature Page]