{"id":42612,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/oem-agreement-utstarcom-inc-and-interwave-communications.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"oem-agreement-utstarcom-inc-and-interwave-communications","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/oem-agreement-utstarcom-inc-and-interwave-communications.html","title":{"rendered":"OEM Agreement – UTStarcom Inc. and Interwave Communications International Ltd."},"content":{"rendered":"
AMENDMENT<\/b><\/p>\n\n
TO\nOEM AGREEMENT BETWEEN UTSTARCOM, INC. AND INTERWAVE<\/b><\/p>\n\n
COMMUNICATIONS\nINTERNATIONAL, LTD., DATED JULY 14, 2000<\/b><\/p>\n\n
This Amendment is\ndated and entered into as of the 27th<\/sup> day of September 2002 by and\nbetween UTStarcom, Inc., a Delaware corporation with its place of business at\n1275 Harbor Bay Parkway, Alameda, CA 94502, USA (hereinafter referred to as\n\u0093UTStarcom\u0094) and Interwave Communications International, Ltd., a Bermuda\ncompany having offices at Clarendon House, 2 Church Street, Hamilton HM DX,\nBermuda (hereinafter referred to as \u0093Interwave\u0094) (collectively, the \u0093Parties\u0094).<\/p>\n\n
WHEREAS, The\nParties entered into a contractual relationship on July 14, 2000 (referred\nto herein as the \u0093Original OEM Agreement\u0094) for UTStarcom to purchase certain\nproducts and for resale as defined in the Original OEM Agreement;<\/p>\n\n
WHEREAS, UTStarcom\nhas expressed an interest in making an equity investment in Interwave in\nexchange for a) the development and production by Interwave of certain\ntechnology relating to [***] compatible with UTStarcom\u0092s [***] specifications;\nand b) incorporation of said technology into [***], where UTStarcom would\npurchase said products from Interwave pursuant to the terms of the Original OEM\nAgreement and this Amendment;<\/p>\n\n
NOW, THEREFORE, in\nconsideration of the premises and of the mutual covenants and conditions herein\ncontained, the Parties mutually agree as follows:<\/p>\n\n
1.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 [***]\nPurchase Agreement<\/u><\/h1>\n\n
In\nconsideration of Interwave\u0092s provision of technical design and product\nproduction services as described herein, UTStarcom shall purchase [***]\npursuant to the terms of a [***] Purchase Agreement (attached hereto as\nExhibit A).<\/p>\n\n
 <\/p>\n\n\n
\n\n
\n\n<\/div>\n\n\n\n
\n\n\n
 <\/p>\n\n
2.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Technical\nDesign Services<\/u><\/h1>\n\n
In\nreturn for UTStarcom\u0092s equity investment in Interwave as described in\nSection 1 of this Amendment, Interwave shall provide technical design\nservices with respect to [***] being made compatible with UTStarcom\u0092s [***]\nspecifications. These technical design services shall be provided pursuant to\nthe specifications attached hereto as Exhibit B, and shall be completed\npursuant to the delivery schedule attached hereto as Exhibit C.<\/p>\n\n
3.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Product\nProduction Services<\/u><\/h1>\n\n
In\nfurther consideration of [***] as described in Section 1 of this\nAmendment, Interwave shall produce, pursuant to the terms of this Amendment and\nthe Original OEM Agreement, [***] described in Section 2 of this Amendment.\nInterwave shall provide these [***] to UTStarcom at [***]. Interwave\nacknowledges and agrees that [***].<\/p>\n\n
4.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Software\nEscrow<\/u><\/h1>\n\n
Interwave\nacknowledges the importance to UTStarcom of having access to the technical\ndesigns created by Interwave pursuant to Section 2 of this Amendment in\nthe event that interWAVE goes into liquidation or ceases business. Accordingly,\nInterwave agrees that it shall forthwith upon the completion of the technical\ndesigns intended by Section 2 place all software (including source code),\nfirmware, documentation, and all other intellectual property necessary for the\nmanufacture of the [***] into an escrow reasonably acceptable to UTStarcom,\npursuant to terns and conditions expressed in the Software Escrow Agreement\nattached hereto as Exhibit D of this Amendment. All items placed into said\nescrow shall be used by UTStarcom only for the purpose of manufacturing the\n[***] that incorporates such technical designs and for no other purpose.<\/p>\n\n
5.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Limited\nEffect of Amendment<\/u><\/h1>\n\n
Aside\nfrom the modification in this Amendment, the remaining terms and conditions of\nthe Original OEM Agreement shall remain unaffected by this Amendment.<\/p>\n\n
 <\/p>\n\n
 <\/p>\n\n
-2-<\/p>\n\n\n
\n\n
\n\n<\/div>\n\n\n\n
\n\n\n
 <\/p>\n\n
IN WITNESS\nWHEREOF, the Parties hereto have caused this Amendment to be executed by their\nrespective duly authorized representatives as of the date first above written.\nAll copies of this Amendment, signed by both Parties, shall be deemed\noriginals.<\/p>\n\n
 <\/p>\n\n<\/pre>\n\n\n\n\n\n\n\n\n\n\n\n
\n
Interwave
\n  Communications<\/b><\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
UTStarcom,
\n  Inc.<\/b><\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
International,
\n  Ltd.<\/b><\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
By:<\/p>\n<\/td>\n
\n
\/s\/ PRISCILLA LU<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
By:<\/p>\n<\/td>\n
\n
\/s\/ HONG LU<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
Name: <\/p>\n<\/td>\n
\n
Priscilla Lu<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
Name: <\/p>\n<\/td>\n
\n
Hong Lu<\/p>\n<\/td>\n<\/tr>\n
\n
Title: <\/p>\n<\/td>\n
\n
Chief Executive
\n  Officer<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
Title: <\/p>\n<\/td>\n
\n
Chief Executive
\n  Officer<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
Date: <\/p>\n<\/td>\n
\n
September __,
\n  2002<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
Date: <\/p>\n<\/td>\n
\n
September __,
\n  2002<\/p>\n<\/td>\n<\/tr>\n<\/table>\n
\n
-3-<\/p>\n
\n
\n<\/div>\n

<\/p>\n

<\/p>\n
\n
Execution
\nCopy<\/b><\/p>\n
 <\/b><\/p>\n
UTSTARCOM, INC.<\/b><\/p>\n
AND<\/b><\/p>\n
INTERWAVE COMMUNICATIONS
\nINTERNATIONAL LTD.<\/b><\/p>\n
STOCK PURCHASE AGREEMENT<\/b><\/p>\n
SEPTEMBER 27, 2002<\/b><\/p>\n
 <\/b><\/p>\n
\n
\n<\/div>\n

<\/p>\n
\n
STOCK PURCHASE AGREEMENT<\/b><\/p>\n
THIS
\nSTOCK PURCHASE AGREEMENT<\/b> is made as of the ___ day of September 2002, by and between UTStarcom,
\nInc. (\u0093UTStarcom\u0094 or the \u0093Investor\u0094), a corporation organized under the laws of
\nthe State of Delaware, USA, with its principal place of business at 1275 Harbor
\nBay Parkway, Alameda, CA 94502 USA and interWAVE Communications International,
\nLtd. (the \u0093Company\u0094), a corporation organized under the laws of Bermuda, with
\nits principal place of business at Clarendon House, 2 Church Street, P.O. Box
\nHM 1022, Hamilton, Bermuda.<\/p>\n
WHEREAS, the parties have
\nagreed in principle upon the purchase of shares of Common Stock of the Company
\nby the Investor.<\/p>\n
NOW, THEREFORE, THE
\nPARTIES HEREBY AGREE AS FOLLOWS:<\/p>\n
1.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Purchase and Sale of Common Stock<\/b>.<\/p>\n
1.1\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Sale of the Common Shares<\/b>.\u00a0
\nAt the Closing (as defined below) and subject to the terms and
\nconditions of this Agreement, Company will issue and sell for [***] the number
\nof shares of the Company\u0092s Common Stock obtained by dividing the [***] into
\n[***] (the \u0093Common Stock\u0094) to the Investor, and the Investor will buy the
\nCommon Stock from the Company, at the Closing, for the per share purchase price
\ndetermined as set forth above (the \u0093Purchase Price\u0094). The parties agree that
\nthe Investor may assign the right and obligation to purchase the Common Stock
\nfor the Purchase Price, and all of its other rights and obligations under this
\nAgreement, to an \u0093Affiliate,\u0094 in which case the term \u0093Investor\u0094 shall refer
\nherein to such Affiliate.\u00a0 \u0093Affiliate\u0094
\nmeans, with respect to any specified person, any other person that directly or
\nindirectly through one or more intermediaries, controls, is controlled by, or
\nis under common control with, such specified person.\u00a0 In the event that Investor assigns this Agreement to an
\nAffiliate, UTStarcom shall guarantee and remain liable for the performance of
\nsuch Affiliate\u0092s obligations hereunder. \u00a0as reported by the Nasdaq National Market (or, if such market is
\nnot the principal trading market for the Common Stock, as reported by such
\nprincipal trading market).<\/p>\n
1.2\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Closing<\/b>.\u00a0 The closing
\nof purchase and sale of the Shares to be sold and purchased hereunder (the
\n\u0093Closing\u0094) shall occur on September 26, 2002 (the \u0093Closing Date\u0094) at 10:00
\na.m. at the offices Wilson, Sonsini, Goodrich and Rosati, 650 Page Mill Road,
\nPalo Alto, California 94304, USA.\u00a0 The
\nper share price is calculated to be [***] US dollars, and the number of shares
\nto be sold is calculated to be [***] shares, as shown in the attached
\ncalculation in Exhibit A.<\/p>\n
2.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Closing Date, Delivery<\/b>.<\/p>\n
2.1\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Closing Date<\/b>.\u00a0
\nThe Closing shall be held on September 26, 2002 or such other date
\nas the Company and the Investor may agree upon (the \u0093Closing Date\u0094).<\/p>\n
\n
\n
-2-<\/p>\n
\n
\n<\/div>\n

<\/p>\n
\n
2.2\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Delivery<\/b>.\u00a0
\nAt the Closing, the Company will deliver to the Investor a stock
\ncertificate, registered in the Investor\u0092s name, representing the Shares,
\nagainst payment of the Purchase Price by certified or cashier\u0092s check payable
\nto the Company, or by wire transfer of immediately available same day funds per
\nthe Company\u0092s wiring instructions.<\/p>\n
2.3\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Further Assurances<\/b>.\u00a0
\nThe Company and the Investor hereby covenant and agree without the
\nnecessity of any further consideration, to execute, acknowledge and deliver any
\nand all such other documents and take any such other action as may be
\nreasonably necessary to carry out the intent and purposes of this Agreement.<\/p>\n
3.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Representations and Warranties of the Company<\/b>.\u00a0
\nThe Company hereby represents and warrants to the Investor that, except
\nas set forth on the Schedule of Exceptions (the \u0093Schedule of Exceptions,\u0094
\nattached hereto as Exhibit A1) furnished to the Investor on the date
\nhereof, which exceptions shall be deemed to be representations and warranties
\nas if made hereunder and which shall be identified as exceptions to specific
\nSections of this Agreement:<\/p>\n
3.1\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Organization, Good Standing and Qualification<\/b>.\u00a0
\nThe Company is a corporation duly organized, validly existing and in
\ngood standing under the laws of Bermuda.\u00a0
\nThe Company has all requisite corporate power and corporate authority to
\nown and operate its properties and assets, to carry on its business as now conducted
\nand as proposed to be conducted, to sell the Shares, to enter into this
\nAgreement, and to carry out the transactions contemplated hereunder and
\nthereunder.\u00a0 The Company, and each of
\nits subsidiaries, is qualified to transact business and is in good standing in
\neach jurisdiction in which the failure to qualify would have, or could
\nreasonably be expected to have, a material adverse effect on the business,
\nproperties, financial condition or results of operations of the Company and its
\nsubsidiaries taken as a whole (a \u0093Material Adverse Effect\u0094).\u00a0 The Company has delivered to the Investor
\ntrue, correct and complete copies of the Company\u0092s Certificate of Incorporation
\n(the \u0093Certificate\u0094) and the Company\u0092s By-laws in effect on the date hereof.<\/p>\n
3.2\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Capitalization and Voting Rights<\/b>.<\/p>\n
(a)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The capital stock of the Company as
\nof September 5, 2002 consisted of:<\/p>\n
(i)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 100,000,000 authorized shares of Common Stock, of
\nwhich 58,130,029 shares are issued and outstanding<\/p>\n
(ii)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 10,000,000 authorized shares of Preferred Stock, of
\nwhich zero shares are issued and outstanding<\/p>\n
(b)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Except as set forth in the Company\u0092s
\nreport on Form 10-K for the fiscal year ended June 30, 2001, the
\nCompany\u0092s proxy statement for its 2001 annual general meeting of shareholders
\nand the Company\u0092s Quarterly Reports on Form 10-Q for the periods ended
\nSeptember 30, 2001, December 31, 2002, and March 31, 2001
\n(collectively, the \u0093Company\u0092s Public Filings\u0094) or in Section 3.2 of the
\nSchedule of Exceptions there are: (i) no outstanding options, warrants,
\nrights (including conversion or preemptive rights) or agreements pursuant to
\nwhich the<\/p>\n
\n
-3-<\/p>\n
\n
\n<\/div>\n

<\/p>\n
\n
Company is or may
\nbecome obligated to issue, sell or repurchase any shares of its capital stock
\nor any other securities of the Company; (ii) no restrictions on the
\ntransfer of capital stock of the Company imposed by the Certificate or By-laws
\nof the Company, or any agreement to which the Company is a party, any order of
\nany court or any governmental agency to which the Company is subject, or any
\nstatute other than those imposed by relevant state and federal securities laws;
\nand (iii) no cumulative voting rights for any of the Company\u0092s capital
\nstock.\u00a0 The Company has, as of December 31,
\n2001, reserved up to Nineteen Million Seven Hundred Thirty Thousand
\n(19,730,000) shares of its Common Stock for the issuance of Common Stock
\npursuant to the exercise of outstanding options and warrants or options to be
\ngranted in the future under its stock option and stock purchase plans listed on
\nSection 3.2 of the Schedule of Exceptions.<\/p>\n
(c)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Except as set forth in the Company\u0092s
\nPublic Filings or in Section 3.2 of the Schedule of Exceptions, the
\nCompany is not a party to any agreement or understanding which affects or
\nrelates to, the voting of shares of capital stock of the Company or the giving
\nof written consents by a shareholder or director of the Company.<\/p>\n
3.3\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Subsidiaries<\/b>.\u00a0
\nExcept as set forth in the Company\u0092s Public Filings or in
\nSection 3.3 of the Schedule of Exceptions, the Company has never owned and
\ndoes not presently own or control, directly or indirectly, any other
\ncorporation, association, or other business entity and has never owned or
\ncontrolled and does not currently own or control, directly or indirectly, any
\ncapital stock or other ownership interest, directly or indirectly, in any
\ncorporation, association, partnership, trust, joint venture or other
\nentity.\u00a0 Each of the Company\u0092s
\nsubsidiaries is duly organized and existing under the laws of its jurisdiction
\nor organization and is in good standing under such laws.\u00a0 None of the Company\u0092s subsidiaries owns or
\nleases property or engages in any activity in any jurisdiction that might
\nrequire its qualification to do business as a foreign corporation and in which
\nfailure to do so would have a Material Adverse Effect.<\/p>\n
3.4\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Authorization<\/b>.\u00a0
\nAll corporate action on the part of the Company and its stockholders
\nnecessary, for the authorization, execution and delivery of the Transaction
\nAgreements, the performance of all obligations of the Company hereunder and
\nthereunder and the authorization, issuance and delivery of the Shares to be
\nsold hereunder, has been taken or will be taken prior to the Closing.\u00a0 The Transaction Agreements have been duly
\nexecuted and delivered by the Company and constitute valid and legally binding
\nobligations of the Company, enforceable against the Company in accordance with
\ntheir terms (except as such enforceability may be limited by applicable
\nbankruptcy, insolvency, reorganization, moratorium or other laws of general application
\nrelating to or affecting enforcement of creditors rights).\u00a0 The execution, delivery and performance of
\nthe Transaction Agreements and compliance with the provisions thereof by the
\nCompany, will not:<\/p>\n
(a)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 violate any provision of law,
\nstatute, ordinance, rule or regulation or any ruling, writ, injunction, order,
\njudgment or decree of any court, administrative agency or other governmental
\nbody, the violation of which would have a Material Adverse Effect;<\/p>\n
(b)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 conflict with or result in any breach
\nof any of the terms, conditions or provisions of, or constitute (with due
\nnotice or lapse of time, or both) a default (or give rise to any<\/p>\n
\n
-4-<\/p>\n
\n
\n<\/div>\n

<\/p>\n
\n
right of termination,
\ncancellation or acceleration) under (i) any material agreement, document,
\ninstrument, contract, understanding, arrangement, note, indenture, mortgage or
\nlease to which the Company is a party or under which the Company or any of its
\nassets is bound or affected, (ii) the Company\u0092s Restated Certificate, or
\n(iii) the By-laws of the Company; or<\/p>\n
(c)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 result in the creation of any lien,
\nsecurity interest, charge or encumbrance upon any of the properties or assets
\nof the Company.<\/p>\n
3.5\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Valid Issuance of Common Stock<\/b>.<\/p>\n
(a)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 When issued, sold and delivered in
\naccordance with the terms hereof for the consideration expressed herein, the
\nShares will be validly issued and outstanding, fully paid and nonassessable and
\nnot subject to any preemptive rights, rights of first refusal or other similar
\nrights imposed by the Company.<\/p>\n
(b)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The outstanding shares of Common
\nStock are all duly authorized and validly issued, fully paid and nonassessable.<\/p>\n
3.6\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Governmental Consents<\/b>.\u00a0
\nNo consent, approval, order or authorization of, or registration,
\nqualification, designation, declaration or filing with, any federal, state or
\nlocal governmental authority on the part of the Company is required in
\nconnection with the consummation of the transactions contemplated by the
\nAgreement, except for registration or qualification, or taking such action to
\nsecure exemption from such registration or qualification, of the Shares under
\napplicable state or federal securities laws, which actions shall be taken, by
\nand at the expense of the Company, on a timely basis as may be required.<\/p>\n
3.7\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Litigation<\/b>.\u00a0
\nExcept as set forth in Section 3.7 of the Schedule of Exceptions,
\nthere is no action, suit, proceeding or investigation pending or, to the
\nCompany\u0092s knowledge, currently threatened against the Company which questions
\nthe validity of the Transaction Agreements or the right of the Company to enter
\ninto such agreements, or to consummate the transactions contemplated thereby,
\nor which reasonably would be expected to have, either individually or in the
\naggregate, a Material Adverse Effect, nor is the Company aware that there is
\nany basis for the foregoing.\u00a0 To the
\nCompany\u0092s knowledge, there are no legal actions or investigations pending or
\nthreatened in writing involving the employment by or with the Company of any of
\nthe Company\u0092s current or former employees, their use in connection with the
\nCompany\u0092s business of any information or techniques allegedly proprietary to
\nany of their former employers, or their obligations under any agreements with
\nprior employers or alleging a violation of any federal, state or local statute
\nor common law relationship with the Company.\u00a0
\nThe Company is not a party to any order, writ, injunction; judgment or
\ndecree of any court that has had, or could reasonably be expected to have, a
\nMaterial Adverse Effect.<\/p>\n
\n
-5-<\/p>\n
\n
\n<\/div>\n

<\/p>\n
\n
3.8\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Employees and Consultants<\/b>.\u00a0
\nExcept as set forth in Section 3.8 of the Schedule of Exceptions:<\/p>\n
(a)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 To the Company\u0092s knowledge; none of
\nits employees is obligated under any contract (including licenses, covenants or
\ncontracts of any nature) or other agreement, or subject to any judgment, decree
\nor order of any court or administrative agency, that would interfere with the
\nuse of his best efforts to promote the interests of the Company or that would
\nconflict with the Company\u0092s business as proposed to be conducted.\u00a0 Neither the execution nor delivery of the
\nTransaction Agreements, nor the carrying on of the Company\u0092s business by the
\nemployees of the Company, nor the conduct of the Company\u0092s business as
\nproposed, will, to the Company\u0092s knowledge, conflict with or result in a breach
\nof the terms, conditions or provisions of, or constitute a default under, any
\nmaterial contract, covenant or instrument under which any of such employees is
\nnow obligated.<\/p>\n
(b)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Each employee of, or consultant to,
\nthe Company, who has or is proposed to have access to confidential or
\nproprietary information of the Company, is a signatory to, and is bound by, an
\nagreement with the Company relating to nondisclosure, proprietary information
\nand, with respect to employees, assignment of patent, copyright and other
\nintellectual property rights.<\/p>\n
(c)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 To the knowledge of the Company, no
\nemployee of, or consultant to, the Company is in violation of any term of any
\nemployment contract, patent disclosure agreement or any other contract or
\nagreement between such individual and the Company including, but not limited
\nto, those matters relating to (i) the relationship of any such employee
\nwith the Company or to any other party as a result of the nature of the
\nCompany\u0092s business as currently conducted, or (ii) unfair competition,
\ntrade secrets or proprietary information.<\/p>\n
3.9\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Patents and Trademarks<\/b>.\u00a0
\nThe Company owns or possesses all rights to use all patents, patent
\nrights or licenses, inventions, collaborative research agreements, trade
\nsecrets, know-how, trademarks, service marks, trade names and copyrights which
\nare necessary to conduct its businesses as described in the Company\u0092s Public
\nFilings.\u00a0 Except as set forth in the
\nCompany\u0092s Public Filings or in Section 3.9 of the Schedule of Exceptions,
\nThe Company has not received any written communications alleging that the
\nCompany has violated or, by conducting its business as proposed, would violate
\nany of the Intellectual Property of any other person or entity.\u00a0 Compliance with Other Instruments.\u00a0 The Company is not in violation or default
\nof any provisions of the Restated Certificate or the Company\u0092s By-laws or of
\nany instrument, judgment, order, writ or decree.<\/p>\n
3.10\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Agreements;
\nAction<\/b>.<\/p>\n
(a)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Except for agreements explicitly
\ncontemplated hereby and as set forth in the Company\u0092s Public Filings or in
\nSection 3.10 of the Schedule of Exceptions, there are no agreements,
\nunderstandings, transactions or proposed transactions between the Company and
\nany of its officers, directors, or affiliates, or any affiliate thereof of a
\nnature required to be disclosed pursuant to the provisions of
\nRegulation S-K.<\/p>\n
(b)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Except as set forth in the Company\u0092s
\nPublic Filings or in Section 3.10 of the Schedule of Exceptions, since
\nDecember 31, 2001 the Company has not (i) declared or paid any
\ndividends, or authorized or made any distribution upon or with respect to any
\nclass or series of its<\/p>\n
\n
-6-<\/p>\n
\n
\n<\/div>\n

<\/p>\n
\n
capital stock, or
\n(ii) sold, exchanged or otherwise disposed of any of its assets or rights,
\nother than in the ordinary course of business.<\/p>\n
(c)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Company has not admitted in
\nwriting its inability to pay its debts generally as they become due, filed or
\nconsented to the filing against it of a petition in bankruptcy or a petition to
\ntake advantage of any insolvency act, made an assignment for the benefit of
\ncreditors, consented to the appointment of a receiver for itself or for the
\nwhole or any substantial part of its property, or had a petition in bankruptcy
\nfiled against it, been adjudicated a bankrupt, or filed a petition or answer
\nseeking reorganization or arrangement under the federal bankruptcy laws or any
\nother laws of the United States or any other jurisdiction.<\/p>\n
(d)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Company is in compliance in all
\nmaterial respects with all obligations, agreements and conditions contained in
\nany evidence of indebtedness or any loan agreement or other contract or
\nagreement (whether or not relating to indebtedness) to which the Company is a
\nparty or is subject (collectively, the \u0093Obligations\u0094), the lack of compliance
\nwith which could afford to any person the right to (i) accelerate any
\nindebtedness or (ii) terminate any right or agreement of the Company, the
\ntermination of which would have a Material Adverse Effect.\u00a0 To the Company\u0092s knowledge, all other
\nparties to such Obligations are in compliance with the terms and conditions of
\nsuch Obligations.<\/p>\n
3.11\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Title to Property and Assets<\/b>.\u00a0
\nThe Company has good title to all of its assets, including all
\nproperties and assets reflected on its December 31, 2001 Balance Sheet,
\nfree and clear of all liens, claims, restrictions or encumbrances, except those
\nassets disposed of since the date of such Balance Sheet in the ordinary course
\nof business, none of which either alone or in the aggregate are material,
\neither in nature or amount, to the business of the Company.\u00a0 All machinery and equipment included in such
\nproperties which are material to the business of the Company are in good
\ncondition and repair, ordinary wear and tear excepted, and each lease of real
\nor personal property to which the Company is a party is effective, affords the
\nCompany peaceful and undisturbed possession of the subject matter of the lease,
\nand such lease is free of any liens, claims restrictions or encumbrances.\u00a0 Each such lease constitutes a valid and
\nbinding obligation of, and is enforceable in accordance with its terms against,
\nthe Company and, to the Company\u0092s knowledge, the other respective parties
\nthereto.\u00a0 Except as provided in the
\nCompany\u0092s Public Filings or in Section 3.11 of the Schedule of Exceptions;
\nwith respect to the property and assets it leases, the Company is in all
\nrespects in compliance with such leases, has not received notice of any
\nallegations that it is in default thereunder in any respect and holds a valid
\nleasehold interest free of any liens, claims or encumbrances.<\/p>\n
3.12\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Financial Statements<\/b>.\u00a0
\nThe Company has delivered to the Investor (i) its report on
\nForm 10-K for the year ended June 30, 2001 containing its audited
\nBalance Sheets at June 30, 2000 and 2001 and its audited Statements of
\nOperations, Statements of Shareholder\u0092s Equity and Statements of Cash Flow for
\nthe years ended June 30, 1999, 2000 and 2001 (the \u0093Audited Financial
\nStatements\u0094); and (ii) the unaudited financial statements appearing in the
\nCompany\u0092s reports on Form 10-Q for the quarters ended September 30,
\n2001, December 31, 2001 and March 31, 2002 (the \u0093Unaudited Financial
\nStatements\u0094).\u00a0 The Audited Financial
\nStatements and the Unaudited Financial<\/p>\n
\n
-7-<\/p>\n
\n
\n<\/div>\n

<\/p>\n
\n
Statements are
\ncollectively referred to as the \u0093Financial Statements\u0094.\u00a0 The Financial Statements have been prepared
\nin accordance with the United States generally accepted accounting principles
\n(\u0093GAAP\u0094) applied on a consistent basis throughout the periods indicated and
\nfairly present the financial condition and consistent operating results of the
\nCompany as of the dates, and for the periods, indicated therein, provided that
\nthe Unaudited Financial Statements may not contain complete footnote disclosure
\nwhich would be required by GAAP and are subject to audit adjustments.\u00a0 Since December 31, 2001, the Company
\nhas conducted its business in the ordinary course, and there has not been any
\nmaterial adverse change in the financial condition or operations of the
\nCompany.\u00a0 Except as set forth in the
\nFinancial Statements and in the material agreements listed in Section 3.12
\nof the Schedule of Exceptions, the Company has no material liabilities,
\ncontingent or otherwise, other than (i) liabilities incurred in the
\nordinary course of business subsequent to September 30, 2001 and
\n(ii) obligations under contracts and commitments incurred in the ordinary
\ncourse of business and not required under GAAP to be reflected in the Financial
\nStatements, which, in both cases, individually or in the aggregate, are not
\nmaterial to the financial condition or operating results of the Company.\u00a0 Except as disclosed in the Financial
\nStatements, the Company is not a guarantor or indemnitor of any indebtedness of
\nany other person, firm or corporation.\u00a0
\nThe Company maintains and consistently applies and will continue to
\nmaintain and consistently apply a standard system of accounting established and
\nadministered in accordance with GAAP.<\/p>\n
Since June 30, 2000,
\nthe Company has filed all required reports, schedules, forms, statements and
\nother documents (including exhibits and all other information incorporated
\ntherein) with the SEC (\u0093Company SEC Documents\u0094).\u00a0 As of their respective dates, the Company SEC Documents complied
\nin all material respects with the requirements of the Securities Act or the
\nSecurities Exchange Act, as the case may be, and the rules and regulations of
\nthe SEC promulgated thereunder applicable to such Company SEC Documents, and no
\nCompany SEC Documents when filed contained any untrue statement of a material
\nfact or omitted to state a material fact required to be stated therein or
\nnecessary in order to make the statements therein, in light of the
\ncircumstances under which they were made, not misleading.\u00a0 The financial statements of the Company
\nincluded in Company SEC Documents complied as to form, as of their respective
\ndates of filing with the SEC, in all material respects with applicable
\naccounting requirements and the published rules and regulations of the SEC with
\nrespect thereto, have been prepared in accordance with GAAP (except, in the
\ncase of unaudited statements, as permitted by Form 10-Q of the SEC)
\napplied on a consistent basis during the periods involved (except as may be
\nindicated in the notes thereto) and fairly present the consolidated financial
\nposition of the Company and its consolidated subsidiaries as of the dates
\nthereof and the consolidated results of their operations and cash flows for the
\nperiods then ended (subject, in the case- of unaudited statements, to normal
\nyear-end audit adjustments).<\/p>\n
3.13\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Employee Benefit Plans<\/b>.\u00a0
\nTo the Company\u0092s knowledge, the Company is in compliance with applicable
\nlaws governing the Company\u0092s \u0093employee benefit plans\u0094 as such term is defined
\nin Section 3(3) of the Employee Retirement Income Security Act of 1974,
\nexcept where such failure to comply would not have a Material Adverse Effect.<\/p>\n
\n
-8-<\/p>\n
\n
\n<\/div>\n

<\/p>\n
\n
3.14\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Tax Returns, Payments and Elections<\/b>.\u00a0
\nThe Company has filed all tax returns and reports as required, and
\nwithin the time prescribed, by law, including without limitation, all federal,
\nstate and local income, excise or franchise tax returns, real estate and
\npersonal property tax returns, sales and use tax returns, payroll tax returns and
\nother tax returns or reports required to be filed by it.\u00a0 These returns and reports are true and
\ncorrect in all material respects.\u00a0 The
\nCompany has paid or made provision for the payment of all accrued and unpaid
\ntaxes and other charges to which the Company is subject and which are not
\ncurrently due and payable.\u00a0 The federal
\nincome tax returns of the Company have never been audited by the Internal
\nRevenue Service, and the Company has not agreed to an extension of the statute
\nof limitations with respect to any of its tax years.\u00a0 Neither the Internal Revenue Service nor any other taxing
\nauthority is now asserting, nor is threatening in writing to assert, against
\nthe Company any deficiency or claim for additional taxes or interest thereon or
\npenalties in connection therewith; nor does such deficiency or claim or basis
\nfor such deficiency or claim exist.\u00a0 The
\nCompany has not made any elections pursuant to the Internal Revenue Code of
\n1986, as amended (the \u0093Code\u0094) (other than elections which relate solely to methods
\nof accounting, depreciation or amortization) which would have a Material
\nAdverse Effect as the Company\u0092s business is presently conducted or proposed to
\nbe conducted.<\/p>\n
3.15\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Insurance<\/b>.\u00a0
\nThe Company has in full force and effect fire, casualty and liability
\ninsurance policies, with coverage, in the case of property insurance,
\nsufficient in amount (subject to reasonable deductibles) to allow it to replace
\nany of its material properties or assets that might be damaged or destroyed,
\nand in the case of casualty and liability insurance, in amounts customary and
\nadequate for businesses similar to the business of the Company.<\/p>\n
3.16\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Labor Agreements and Actions<\/b>.\u00a0
\nThe Company does not have any collective bargaining agreements covering
\nany of its employees, nor is the Company bound by or subject to (and none of
\nits assets or properties is bound by or subject to) any written or oral,
\nexpress or implied, contract, commitment or arrangement with any labor union,
\nand no labor union has requested or, to the knowledge of the Company, has
\nsought to represent any of the employees, representatives or agents of the
\nCompany.\u00a0 There is no strike or other
\nlabor dispute involving the Company pending, or to the knowledge of the Company
\nthreatened in writing, which could have a Material Adverse Effect (as the
\nCompany\u0092s business is presently conducted and as it is proposed to be
\nconducted), nor is the Company aware of any labor organization activity
\ninvolving its employees.\u00a0 Offering.\u00a0 Subject to the accuracy of the Investor\u0092s
\nrepresentations set forth in Section 4 of this Agreement, the offer, sale
\nand issuance of the Shares to be issued in conformity with the terms of this
\nAgreement constitute transactions which are: (i) in compliance with
\napplicable federal and state securities laws; and (ii) exempt from the
\nregistration requirements of the Securities Act and from all applicable state
\nregistration or qualification requirements, other than those with which the
\nCompany has complied or will comply.<\/p>\n
3.17\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Environmental
\nMatters<\/b>.<\/p>\n
(a)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 To the Company\u0092s knowledge, the
\nCompany is not in violation of any Environmental Law (as hereinafter defined)
\nand to its knowledge, no material expenditures are or will be required in order
\nto comply with any Environmental Law.\u00a0
\nAs used in this Agreement,<\/p>\n
\n
-9-<\/p>\n
\n
\n<\/div>\n

<\/p>\n
\n
\u0093Environmental Law\u0094 shall
\nmean any applicable federal, state and local law, ordinance, rule or regulation
\nthat regulates, fixed liability for, or otherwise relates to, the handling, use
\n(including use in industrial processes, in construction, as building materials,
\nor otherwise), treatment, storage and disposal of hazardous and toxic wastes
\nand substances, and to the discharge, leakage, presence, migration, actual
\nRelease (as hereinafter defined) or threatened Release (whether by disposal, a
\ndischarge into any water source or system or into the air, or otherwise) of any
\npollutant or effluent.<\/p>\n
(b)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Company has not used, generated,
\nmanufactured, refined, treated, transported, stored, handled, disposed,
\ntransferred, produced, processed or released (hereinafter together defined as
\n\u0093Release\u0094) any Hazardous Materials (as hereinafter defined) on, from or
\naffecting any Property (as hereinafter defined) in any manner or by any means
\nin violation of any Environmental Laws and to the best of the Company\u0092s
\nknowledge and belief after due investigation, there is no threat of such
\nRelease.\u00a0 As used herein, the term
\n\u0093Property\u0094 shall include, without limitation, land, buildings and laboratory
\nfacilities owned or leased by the Company or as to which the Company now has
\nany duties, responsibilities (for cleanup, remedy or otherwise) or liabilities
\nunder any Environmental Laws, or as to which the Company or any subsidiary of
\nthe Company may have such duties, responsibilities or liabilities because of
\npast acts or omissions of the Company or any such subsidiary or their
\npredecessors, or because the Company or any such subsidiary or their
\npredecessors in the past was such an owner or operator of, or bore some other
\nrelationship with, such land, buildings or laboratory facilities.\u00a0 The term \u0093Hazardous Materials\u0094 shall
\ninclude, without limitation, any flammable explosives, petroleum products,
\npetroleum by-products, radioactive materials, hazardous wastes, hazardous
\nsubstances, toxic substances or related materials as defined by Environmental
\nLaws.<\/p>\n
(c)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Company has not received written
\nnotice that the Company is a party potentially responsible for costs incurred
\nat a cleanup site or corrective action under any Environmental Laws.\u00a0 The Company has not received any written
\nrequests for information in connection with any inquiry by any Governmental
\nAuthority (as hereinafter defined) concerning disposal sites or other
\nenvironmental matters.\u00a0 As used herein,
\n\u0093Governmental Authority\u0094 shall mean any nation or government, any federal,
\nstate, municipal, local, provincial, regional or other political subdivision
\nthereof, and any entity or person exercising executive, legislative, judicial
\nregulatory or administrative functions of or pertaining to government.<\/p>\n
(d)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The stockholders of the Company have
\nhad no control over, or authority with respect to, the waste disposal
\noperations of the Company.<\/p>\n
3.18\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Permits and Other Rights; Compliance with
\nLaws<\/b>.\u00a0 The Company has all franchises, permits,
\nlicenses and other rights and privileges necessary to permit it to own its
\nproperties and to conduct its business as presently conducted and is in
\ncompliance in all material respects thereunder.\u00a0 The Company is in compliance in all material respects with all
\nlaws and governmental rules and regulations applicable to its business,
\nproperties and assets, and to the products and services sold by it, including,
\nwithout limitation, all such rules, laws and regulations relating to fair
\nemployment practices, occupational safety and health and public safety, except
\nwhere the failure to comply would not have a Material Adverse Effect.<\/p>\n
\n
-10-<\/p>\n
\n
\n<\/div>\n

<\/p>\n
\n
3.20\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Corporate Records<\/b>.\u00a0
\nThe minute books of the Company provided to the Investor contain a
\ncomplete summary of all meetings of directors and stockholders since the time
\nof incorporation and reflect all material transactions of the Company
\naccurately in all material respects.<\/p>\n
3.21\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Reliance<\/b>.\u00a0
\nThe Company understands that the foregoing representations and
\nwarranties shall be deemed material and to have been relied upon by the
\nInvestor.\u00a0 No representation or warranty
\nby the Company in this Agreement, and no written statement contained in any
\ndocument, certificate or other writing delivered by the Company to the Investor
\ncontains any untrue statement of material fact or omits to state any material
\nfact necessary to make the statements herein or therein, in light of the
\ncircumstances under which they were made, not misleading.<\/p>\n
3.22\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Real Property Holding Corporation<\/b>.\u00a0
\nThe Company is not a United States real property holding corporation as
\ndefined in Section 897 of the Code.<\/p>\n
4.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Representations and Warranties of the
\nInvestor<\/b>.\u00a0 UTStarcom hereby represents and warrants the
\nfollowing:<\/p>\n
4.1\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Authorization, Governmental Consents and
\nCompliance with Other Instruments<\/b>.\u00a0 All
\ncorporate action on the part of the Investor necessary for the authorization,
\nexecution and delivery of the Transaction Agreements and the performance of all
\nobligations of the Investor thereunder has been taken or will be taken prior to
\nthe Closing.\u00a0 The Transaction Agreements
\nconstitute valid and legally binding obligations of the Investor, enforceable
\nin accordance with their terms, except as such enforcement is limited by
\nbankruptcy, insolvency and similar laws affecting creditor rights.\u00a0 No consent, approval, order or authorization
\nof, or registration, qualification, designation, declaration or filing with,
\nany federal, state or local governmental authority on the part of the Investor
\nis required in connection with the consummation of the transactions
\ncontemplated by the Transaction Agreements.\u00a0
\nThe execution, delivery and performance of the Transaction Agreements
\nand the consummation of the transactions contemplated thereby will not result
\nin any violation or be in conflict with or constitute, with or without the
\npassage of time and giving of notice, either a default under any provision of
\nthe Investor\u0092s corporate charter or By-laws or any instrument, judgment, order,
\nwrit, decree or contract to which the Investor is a party or by which it is
\nbound.<\/p>\n
4.2\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Purchase Entirely for Own Account<\/b>.\u00a0
\nBy the Investor\u0092s execution of this Agreement, the Investor hereby
\nconfirms that the Shares will be acquired for investment for the Investor\u0092s own
\naccount, not as a nominee or agent, and not with a view to the resale or
\ndistribution of any part thereof, and the Investor has no present intention of
\nselling, granting any participation, or otherwise distributing the Shares.\u00a0 By executing this Agreement, the Investor
\nfurther represents that the Investor does not have any contract, undertaking,
\nagreement or arrangement with any person to sell, transfer or grant
\nparticipation to such person or to any third person, with respect to any of the
\nShares.<\/p>\n
4.3\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Disclosure of Information<\/b>.\u00a0
\nThe Investor has received all the information from the Company and its
\nmanagement that the Investor considers necessary or appropriate for deciding<\/p>\n
\n
-11-<\/p>\n
\n
\n<\/div>\n

<\/p>\n
\n
whether to purchase the
\nShares hereunder.\u00a0 The Investor further
\nrepresents that it has had an opportunity to ask questions and receive answers
\nfrom the Company regarding the terms and conditions of the offering of the
\nShares.\u00a0 The foregoing, however, does
\nnot limit or modify the representations and warranties of the Company in
\nSection 3 of this Agreement.<\/p>\n
4.4\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Investment Experience and Accredited Investor
\nStatus<\/b>.\u00a0 The Investor either (i) is an
\naccredited investor (as defined in Regulation D promulgated under the
\nSecurities Act) or (ii) is not a United States Person as that term is
\ndefined in Regulation S of the Securities Act, as amended and is not
\nacquiring the Common Shares for the account or benefit of any United States
\nPerson.\u00a0 The Investor is an investor in
\nsecurities of companies in the development stage and acknowledges that it is
\nable to fend for itself, and bear the economic risk of its investment and has
\nsuch knowledge and experience in financial or business matters that it is
\ncapable of evaluating the merits and risks of the investment in the Shares
\nhereunder.<\/p>\n
4.5\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Restricted Securities<\/b>.\u00a0
\nThe Investor understands that the Shares, when issued, will be
\nrestricted securities under the federal securities laws inasmuch as they are
\nbeing acquired from the Company in a transaction not involving a public
\noffering and that under such laws and applicable regulations such securities
\nmay be resold without registration under the Securities Act only in certain
\nlimited circumstances, including pursuant to Regulation S and
\nRule 144 under the Securities Act.\u00a0
\nIn this connection, the Investor represents that it is familiar with
\nRegulation S and Rule 144 under the Securities Act, as presently in
\neffect, and understands the resale limitations imposed thereby and by the
\nSecurities Act.\u00a0 Notwithstanding the
\nprovisions of this section, Company hereby agrees to register the subject
\nsecurities pursuant to the terms and conditions contained in the Securities
\nRegistration terms And Conditions, which is attached hereto as Exhibit B,
\nand incorporated into this Stock Purchase Agreement by reference thereto.<\/p>\n
4.6\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Further Limitations on Disposition<\/b>.\u00a0
\nWithout in any way limiting the representations set forth above, the
\nInvestor further represents, warrants and agrees that it will not make any
\ndisposition of all or any portion of the Shares, except to an Affiliate,
\nunless:<\/p>\n
(a)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 There is then in effect a
\nregistration statement under the Securities Act covering such proposed
\ndisposition and such disposition is made in accordance with such registration
\nstatement; or<\/p>\n
(b)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The disposition is made pursuant to
\nRule 144 or Regulation S or similar provisions of federal securities
\nlaws as in effect from time to time; or<\/p>\n
(c)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Investor shall have notified the
\nCompany of the proposed disposition; and if requested by the Company, the
\nInvestor shall have furnished the Company with an opinion of counsel;
\nreasonably satisfactory tot the Company, that such disposition will not require
\nregistration of such Shares under the Securities Act.<\/p>\n
(a)<\/p>\n
\n
-12-<\/p>\n
\n
\n<\/div>\n

<\/p>\n
\n
4.7\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Legends<\/b>.\u00a0 It is
\nunderstood that the certificates evidencing the Shares will bear legends to the
\neffect of the following:<\/p>\n
\u0093These securities
\nhave not been registered under the Securities Act of 1933.\u00a0 They may not be sold, offered for sale,
\npledged or hypothecated in the absence of a registration statement in effect
\nwith respect to the securities under such Act or an opinion of counsel
\nreasonably satisfactory to the Company that such registration is not required
\nor unless sold pursuant to Regulation S or Rule 144 of such Act.\u0094<\/p>\n
\u0093The securities
\nevidenced by this certificate are subject to restrictions on transfer set forth
\nin an agreement between the original purchaser thereof and the corporation, a
\ncopy of which agreement is on file at the principal executive offices of the
\ncorporation.\u0094<\/p>\n
5.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Conditions to Closing of Investor<\/b>.\u00a0
\nThe Investor\u0092s obligation to purchase the Shares at the Closing is
\nsubject to the fulfillment as of the Closing Date of the following conditions:<\/p>\n
5.1\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Representations and Warranties Correct<\/b>.\u00a0
\nThe representations and warranties made by the Company in Section 3
\nhereof shall be true and correct in all material respects as of the Closing
\nDate with the same force and effect as though such representations and
\nwarranties had been made on the Closing Date, except that representations and
\nwarranties that speak as of a particular date shall be true and correct in all
\nmaterial respects as of such date.<\/p>\n
5.2\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Covenants<\/b>.\u00a0
\nAll covenants, agreements and conditions contained in this Agreement to
\nbe performed by the Company on or prior to the Closing Date shall have been
\nperformed or complied with in all material respects.\u00a0 All proceedings to have been taken and all waivers and consents
\nto be obtained in connection with the transactions contemplated by this Agreement
\nshall have been taken or obtained, and all documents incidental thereto shall
\nbe satisfactory to the Investor and its counsel, and the Investor and its
\ncounsel shall have received copies (executed or certified, as may be
\nappropriate) of all documents which the Investor or its counsel may reasonably
\nhave requested in connection with such transactions.<\/p>\n
5.3\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Compliance Certificate<\/b>.\u00a0
\nThe Company shall have delivered to the Investor a certificate of the
\nCompany in the form of Exhibit B hereto, executed by the President and
\nChief Executive Officer of the Company or the Chief Financial Officer of the
\nCompany, certifying to the fulfillment of the conditions specified in
\nSections 5.1 and 5.2 of this Agreement.<\/p>\n
5.4\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Legal Opinion<\/b>.\u00a0
\nAll legal matters incident to the purchase of the Shares shall be
\nsatisfactory to the Investor\u0092s counsel and the Investor shall have received
\nfrom Wilson, Sonsini, Goodrich & Rosati, P.C., counsel for the Company,
\nsuch firm\u0092s opinion addressed to the Investor and dated the date of the Closing,
\nin form and substance satisfactory to counsel to the Investor.<\/p>\n
5.5\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Certification of Resolutions and Officers<\/b>.\u00a0
\nThe Company shall have delivered to the Investor a certificate or
\ncertificates, dated the date of the Closing, of the Secretary of the Corporation
\ncertifying as to (a) the resolutions of the Company\u0092s Board of Directors
\nauthorizing the execution<\/p>\n
\n
-13-<\/p>\n
\n
\n<\/div>\n

<\/p>\n
\n
and delivery of the
\nTransaction Agreements, the issuance to the Investor of the Shares, the
\nexecution and delivery of such other documents and instruments as may be
\nrequired by this Agreement, and the consummation of the transactions
\ncontemplated thereby, and certifying that such resolutions were duly adopted
\nand have not been rescinded or amended as of said date and (b) the name
\nand the signature of the officers of the, Company authorized to sign, as
\nappropriate, the Transaction Agreements and the other documents and
\ncertificates to be delivered pursuant to this Agreement by either the Company or
\nany of its officers.<\/p>\n
5.6\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Certification of No Material Adverse Change<\/b>.\u00a0
\nThe Company shall have delivered to the Investor a certificate, dated
\nthe date of the Closing, of the Chief Financial Officer of the Corporation
\ncertifying that since December 31, 2001, there has not been any material
\nadverse change in the financial condition or operations of the Company.<\/p>\n
5.7\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Stock Certificates<\/b>.\u00a0
\nThe Company shall have delivered to the Investor a certificate or
\ncertificates representing the Shares purchased by the Investor on the Closing
\nDate.<\/p>\n
5.8\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Confirmation Letter<\/b>.\u00a0
\nA letter shall have been issued and delivered by the Investor\u0092s counsel
\nthat this agreement and other related agreements have been duly executed by the
\nparties concerned in the agreed forms.<\/p>\n
6.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Conditions to Closing of the Company<\/b>.\u00a0
\nThe Company\u0092s obligation to sell the Shares at the Closing is subject to
\nthe fulfillment as of the date of the following condition:<\/p>\n
6.1\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Representations and Warranties Correct<\/b>.\u00a0
\nThe representations and warranties made by the Investor in
\nSection 4 hereof shall be true and correct in all material respects as of
\nthe date of the Closing with the same force and effect as though such
\nrepresentations and warranties had been made on the Closing Date.<\/p>\n
7.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Mutual Conditions of Closing<\/b>.\u00a0
\nThe obligations of each of the Investor and the Company to consummate
\nthe Closing are subject to the fulfillment as of the Closing Date of the
\nfollowing conditions:<\/p>\n
7.1\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Qualifications<\/b>.\u00a0
\nAll consents, permits, approvals, qualifications and registrations to be
\nobtained or effected with any governmental authority, including, without
\nlimitation, necessary Blue Sky law permits and qualifications required by any
\nstate for the offer and sale to the investor of the Shares, shall have been
\nobtained or effected.<\/p>\n
7.2\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Absence of Litigation<\/b>.\u00a0
\nThere shall be no injunction, actions, suits, proceeding or
\ninvestigations pending or currently threatened against the Company or the
\nInvestor which questions the validity of the Transaction Agreements or the right
\nof the Company or the Investor to enter into such agreements, or to consummate
\nthe transactions contemplated thereby.<\/p>\n
\n
-14-<\/p>\n
\n
\n<\/div>\n

<\/p>\n
\n
8.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Additional Covenants and Agreements<\/b>.<\/p>\n
8.1\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Inspection of Books and Records<\/b>.\u00a0
\nThe Company shall permit the Investor from time to time, at the
\nInvestor\u0092s expense, to visit and inspect the Company\u0092s properties, to examine
\nits books of account and records and to discuss the Company\u0092s affairs, finances
\nand accounts with its officers, all at such reasonable times as may be
\nrequested by the Investor; provided, however, that the Company shall not be
\nobligated pursuant to this Section 8.1 to provide access to any
\ninformation which it reasonably considers to be a trade secret or similar
\nproprietary or confidential information.<\/p>\n
8.2\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Standstill<\/b>.\u00a0
\nThe Investor shall not, at any time from and after the date hereof until
\nthe tenth anniversary of the Closing Date (the \u0093Restricted Period\u0094), acquire
\nshares of Common Stock of the Company, or securities convertible into, exchangeable
\nfor or exercisable for, Common Stock of the Company such that the Investor
\nwould, at any time during the Restricted Period own in excess of 19.9% of the
\nTotal Voting Power (as defined below) of the Company\u0092s securities.\u00a0 For purposes hereof, the percentage of the
\nTotal Voting Power of the Company\u0092s securities shall be determined by dividing
\n(x) by (y) and expressing the resulting quotient as a percentage, where<\/p>\n
(x) equals the
\nnumber of shares of Common Stock of the Company held by the Investor and the
\nnumber of shares of Common Stock of the Company issuable upon conversion,
\nexercise or exchange of securities of the Company held by the Investor which
\nare convertible into, exchangeable for or exercisable for Common Stock of the
\nCompany, either directly or indirectly; and<\/p>\n
(y) equals the
\nnumber of issued and outstanding shares of Common Stock of the Company.<\/p>\n
In the event that
\nInvestor\u0092s ownership at any time exceeds the limits set forth above, Investor
\nshall be deemed, automatically and with no further action on the part of
\nInvestor, to have granted the Company\u0092s Chairperson an irrevocable proxy to
\nvote all shares of Company Common Stock held by Investor in excess of the
\nforegoing limits in such manner as may be recommended by the Board of Directors
\nof the Company with respect to any matter for which approval of the Company\u0092s
\nshareholders is sought.\u00a0 The remedy set
\nforth in the preceding sentence shall not be in lieu of, but shall be in
\naddition to, any other remedies which Company may have at law or pursuant to
\nthis Agreement or otherwise for breach of this provision.<\/p>\n
9.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Miscellaneous<\/b>.<\/p>\n
9.1\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Survival of Warranties<\/b>.\u00a0
\nThe warranties and representations of the Company and the Investor
\ncontained in this Agreement shall survive the closing until the first anniversary
\nof the Closing Date.<\/p>\n
9.2\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Remedies<\/b>.\u00a0
\nIn case any one or more of the covenants or agreements set forth in this
\nAgreement shall have been breached by any party hereto, the party or parties
\nentitled to the benefit of such covenants or agreements may proceed to protect
\nand enforce their rights either by suit in equity or action at law, including,
\nbut not limited to, an action for damages as a result of any such breach or an
\naction for specific performance of any such covenant or agreement contained in
\nthis<\/p>\n
\n
-15-<\/p>\n
\n
\n<\/div>\n

<\/p>\n
\n
Agreement.\u00a0 The rights, powers and remedies of the
\nparties under this Agreement are cumulative and not exclusive of any other
\nright, power or remedy which such parties may have under any other agreement or
\nlaw.\u00a0 No single or partial assertion or
\nexercise of any right, power or remedy of a party hereunder shall preclude any
\nother or further assertion or exercise thereof.<\/p>\n
9.3\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Successors and Assigns<\/b>.\u00a0
\nExcept as otherwise expressly provided herein, the terms and conditions
\nof this Agreement shall inure to the benefit of and be binding upon the
\nrespective successors and assigns of the parties.\u00a0 This Agreement and the rights and duties of the Company set forth
\nherein may be freely assigned, in whole or in part, upon the written consent of
\nthe Investor, which consent may not be unreasonably withheld.\u00a0 Notwithstanding the foregoing sentence, the
\nCompany may assign this Agreement, and the rights and the duties of the Company
\nset forth herein, to an entity or person which purchases all or substantially
\nall of its assets or voting securities, so long as the successor agrees in
\nwriting to be bound by all of the terms this Agreement.<\/p>\n
9.4\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Entire Agreement<\/b>.\u00a0
\nThis Agreement and the other writings referred to herein or delivered
\npursuant hereto which form a part hereof contain the entire agreement among the
\nparties with respect to the subject matter hereof and supersede all prior and
\ncontemporaneous arrangements or understandings, whether written or oral, with
\nrespect thereto; provided, however, that this Agreement is not intended to
\nsupersede the OEM Agreement or any other agreement not related to the purchase
\nand sale of the Company\u0092s securities between the Company and the Investor.<\/p>\n
9.5\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Governing Law and Consent to Jurisdiction<\/b>.\u00a0
\nThis Agreement shall be governed by and construed under the laws of the
\nState of California, U.S.A. (without regard to the conflict of law principles
\nthereof).\u00a0 Each of the parties
\nirrevocably submits to the exclusive jurisdiction of the state and federal
\ncourts within the State of California, U.S.A. for the purposes of any suit,
\naction or other proceeding arising out of this Agreement or any transaction
\ncontemplated hereby.\u00a0 Each of the
\nparties agrees to commence any action, suit or proceeding relating hereto in
\nthe federal courts within the State of California, U.S.A. or if such suit,
\naction or other proceeding may not be brought in such court for jurisdictional
\npurposes, in the state courts within the State of California, U.S.A.<\/p>\n
9.6\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Counterparts<\/b>. \u00a0This Agreement may be executed in two or more counterparts, each
\nof which shall be deemed an original, but all of which together shall
\nconstitute one and the same instrument.<\/p>\n
9.7\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Titles and Subtitles<\/b>.\u00a0
\nThe titles and subtitles used in this Agreement are used for convenience
\nonly and are not to be considered in construing or interpreting this Agreement.<\/p>\n
9.8\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Nouns and Pronouns<\/b>.\u00a0
\nWhenever the context may require, any pronouns used herein shall include
\nthe corresponding masculine, feminine or neuter forms, and the singular form of
\nnames and pronouns shall include the plural and vice-versa.<\/p>\n
9.9\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Notices<\/b>.\u00a0 Unless
\notherwise provided, all notices, requests, consents and other communications
\nhereunder to any party shall be given in writing and shall be deemed effectively
\ngiven upon personal delivery to the party to be notified or duly sent by first
\nclass registered or<\/p>\n
\n
-16-<\/p>\n
\n
\n<\/div>\n

<\/p>\n
\n
certified mail, or other
\ncourier service, postage prepaid, or telecopied with a confirmation copy by
\nregular mail, and addressed or telecopied to the party to be notified at the
\naddress or telecopier number indicated for such party, as the case may be, set
\nforth below or such other address or telecopier number, as the case may be, as
\nmay hereafter be designated in writing by the addressees to the addressor
\nlisting all parties:<\/p>\n
\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
\n
To the Company:<\/p>\n<\/td>\n
\n
Cal Hoagland, Chief Financial Officer<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Interwave Communications International Ltd.<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
c\/o Interwave Communications, Inc.<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
312 Constitution Drive<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Menlo Park, CA 94025<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Fax: 1-650-321-6570<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
With a copy to:<\/p>\n<\/td>\n
\n
Robin E. Foor, Esq.<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Vice President and General Counsel<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Interwave Communications, Inc.<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
312 Constitution Drive<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Menlo Park, CA 94025<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Fax: 1-650 321-6381<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
To the Investor:<\/p>\n<\/td>\n
\n
Michael Sophie<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Vice President and Chief Financial Officer<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
UTStarcom, Inc.<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
1275 Harbor Bay Parkway<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Alameda, CA 94502<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Fax: 1-510-<\/p>\n<\/td>\n<\/tr>\n<\/table>\n
All such notices,
\nrequests, consents and other communications shall be deemed to have been
\nreceived: (a) in the case of personal delivery, on the date of such
\ndelivery; (b) in the case of sending by international overnight courier
\nservice, on the fifth business day following the date of such sending by
\ninternational overnight courier service fully prepaid; and (c) in the case
\nof facsimile transmission, when confirmed by facsimile machine report.<\/p>\n
9.10\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Finder\u0092s Fee<\/b>.\u00a0
\nThe Investor agrees to indemnify and to hold harmless the Company from
\nany liability for any commission or compensation in the nature of a finder\u0092s
\nfee (and the reasonable costs and expenses of defending against such liability
\nor asserted liability) for which the Investor or any of its officers, partners,
\nemployees, or representatives is responsible.\u00a0
\nThe Company agrees to indemnify and hold harmless the Investor from any
\nliability for any commission or compensation in the nature of a finder\u0092s fee
\n(and the reasonable costs and expenses of defending against such liability or
\nasserted liability) for which the Company or any of its officers, employees or
\nrepresentatives is responsible.<\/p>\n
9.11\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Expenses<\/b>.\u00a0
\nEach party shall pay its own fees and expenses with respect to this
\nAgreement.\u00a0 If any action at law or in
\nequity is necessary to enforce or interpret the terms of this<\/p>\n
\n
-17-<\/p>\n
\n
\n<\/div>\n

<\/p>\n
\n
Agreement or the Research
\nand Collaboration Agreement, the prevailing party shall be entitled to
\nreasonable attorney\u0092s fees, costs and necessary disbursements in addition to
\nany other relief to which such party may be entitled.<\/p>\n
9.12\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Amendments and Waivers<\/b>.\u00a0
\nAny term of this Agreement may be amended and the observance of any term
\nof this Agreement may be waived (either generally or in a particular instance
\nand either retroactively or prospectively), only with the written consent of
\nthe Company and the Investor.<\/p>\n
9.13\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Severability<\/b>.\u00a0
\nIf one or more provisions of this Agreement are held to be unenforceable
\nunder applicable law, in any jurisdiction, such provision shall be ineffective,
\nas to such jurisdiction, and the balance of the Agreement shall be interpreted
\nas if such provision were so excluded, without invalidating the remaining
\nprovisions of this Agreement; and any such prohibition or unenforceability in
\nany jurisdiction shall not invalidate or render unenforceable such provision in
\nany other jurisdiction.<\/p>\n
9.14\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Confidentiality and Publicity<\/b>.\u00a0
\nNeither the Company nor the Investor will disclose to any person (other
\nthan its attorneys, accountants, employees, officers, and directors) the
\nexistence or terms of this Agreement or any of the transactions contemplated
\nhereby without the prior written consent of the other party, except as may, in
\nthe reasonable opinion of such party\u0092s counsel, be required by law (in which
\nevent the disclosing party will first consult with the other party with respect
\nto such disclosure).\u00a0 Except to the
\nextent public disclosure is required by law, the Company and the Investor will
\nconsult and reach agreement with one another as to the form and substance of
\nany press release or any other public disclosure of the existence or terms of
\nthis Agreement or the transactions contemplated hereby prior to issuing any
\nsuch press release or making any such public disclosure.<\/p>\n
\n
-18-<\/p>\n
\n
\n<\/div>\n

<\/p>\n
\n
IN WITNESS WHEREOF, the
\nparties have executed and delivered this Agreement as of the date first above
\nWritten.<\/p>\n
\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
\n
\n<\/td>\n
\n
UTSTARCOM, INC.<\/b><\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
By:<\/p>\n<\/td>\n
\n
\/s\/ HONG LU<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Name:<\/p>\n<\/td>\n
\n
Hong Lu<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Title:<\/p>\n<\/td>\n
\n
Chief Executive Officer<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
INTERWAVE COMMUNICATIONS<\/b><\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
INTERNATIONAL LTD.<\/b><\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
By:<\/p>\n<\/td>\n
\n
\/s\/ PRISCILLA LU<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Name:<\/p>\n<\/td>\n
\n
Priscilla Lu<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Title:<\/p>\n<\/td>\n
\n
Chief Executive Officer<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n<\/table>\n
\n
\n
-19-<\/p>\n
\n
\n<\/div>\n

<\/p>\n
Exhibit
\nA<\/b><\/p>\n
Stock
\nPurchase Agreement<\/b><\/p>\n
UTStarcom,
\nInc. and interWAVE Communications<\/b><\/p>\n
[***]<\/p>\n
\n
-20-<\/p>\n
\n
\n<\/div>\n

<\/p>\n
\n
<\/div>\n
\n
Schedule of Exceptions<\/b><\/p>\n
UTStarcom, Inc. and<\/b><\/p>\n
interWAVE Communications International, Ltd.<\/b><\/p>\n
Stock Purchase Agreement<\/b><\/p>\n
September 27, 2002<\/b><\/p>\n
[***]<\/b><\/p>\n
 <\/b><\/p>\n
1<\/p>\n
\n
\n<\/div>\n

<\/p>\n
\n
EXHIBIT B – SECURITIES REGISTRATION TERMS AND
\nCONDITIONS<\/b><\/p>\n
1.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Form
\nD Filing; Registration; Compliance with the Securities Act, Covenants<\/u>.<\/p>\n
1.1.1\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Registration
\nStatement; Expenses<\/u>.\u00a0 The Company
\nshall:<\/p>\n
(a)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 file
\nin a timely manner a Form D relating to the sale of the Shares under this
\nAgreement, pursuant to Securities and Exchange Commission Regulation D.<\/p>\n
(b)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 as
\nsoon as practicable after the Closing Date, but in no event later than the
\n[***] day following the Closing Date, prepare and file with the Commission a
\nRegistration Statement on Form F-3 relating to the sale of the Shares by the
\nPurchaser from time to time on the Nasdaq National Market (or the facilities of
\nany national securities exchange on which the Company\u0092s Common Stock is then
\ntraded) or in privately negotiated transactions (the \u0093Registration Statement\u0094);<\/p>\n
(c)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 provide
\nto the Purchaser any information required to permit the sale of the Shares
\nunder rule 144A of the Securities Act;<\/p>\n
(d)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 subject
\nto receipt of necessary information from the Purchaser, use its best efforts to
\ncause the Commission to notify the Company of the Commission\u0092s willingness to
\ndeclare the Registration Statement effective on or before 90 days after the
\nClosing Date;<\/p>\n
(e)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 notify
\nPurchaser promptly upon the Registration Statement, or any post-effective
\namendment thereto, being declared effective by the Commission;<\/p>\n
(f)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 prepare
\nand file with the Commission such, amendments and supplements to the
\nRegistration Statement and the Prospectus (as defined in Section 1.3.1
\nbelow) and take such other action, if any, as may be necessary to keep the
\nRegistration Statement effective until the earlier of (i) one year after
\nthe effective date of the Registration Statement, (ii) the date on which
\nthe Shares may be resold by the Purchaser without registration or without
\nregard to any volume limitations by reason of Rule 144(k) under the
\nSecurities Act or any other rule of similar effect or (iii) all of the
\nShares have been sold pursuant to the Registration Statement or
\nRule 144(k) under the Securities Act or any other rule of similar effect;<\/p>\n
(g)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 promptly
\nfurnish to the Purchaser with respect to the Shares registered under the
\nRegistration Statement such reasonable number of copies of the Prospectus,
\nincluding any supplements to or amendments of the Prospectus, in order to
\nfacilitate the public sale or other disposition of all or any of the Shares by
\nthe Purchaser;<\/p>\n
(h)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 during
\nthe period when copies of the Prospectus are required to be delivered under the
\nSecurities Act or the Exchange Act, will file all documents required to be
\nfiled with the Commission pursuant to Section 13, 14 or 15 of the Exchange
\nAct, to the extent such<\/p>\n
\n
\n
\n<\/div>\n

<\/p>\n
\n
requirements
\nare applicable to the Company, within the time periods required by the Exchange
\nAct and the rules and regulations promulgated thereunder;<\/p>\n
(i)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 file
\ndocuments required of the Company for customary Blue Sky clearance in all
\nstates requiring Blue Sky clearance; provided,
\nhowever,<\/i> that the Company shall not be required to qualify to do
\nbusiness or consent to service of process in any jurisdiction in which it is
\nnot now so qualified or has not so consented; and<\/p>\n
(j)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 bear
\n[***] expenses in connection with the procedures in paragraphs (a) through
\n(f) of this Section 1.1.1 and the registration of the Shares pursuant to
\nthe Registration Statement, including fees and expenses (whether external or
\ninternal) of up to [***] of the Purchaser, but not including any fees and
\nexpenses of any other advisers to the Purchaser or brokerage fees and
\ncommissions incurred by the Purchaser.<\/p>\n
1.1.2\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Delay
\nin Effectiveness of Registration Statement<\/u>.\u00a0 [***]<\/p>\n
1.2\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Transfer
\nof Shares After Registration<\/u>.\u00a0 The
\nPurchaser agrees that it will not effect any disposition of the Shares or its
\nright to purchase the Shares that would constitute a sale within the meaning of
\nthe Securities Act, except as contemplated in the Registration Statement
\nreferred to in Section 1.1 or as otherwise permitted by law, and that it
\nwill promptly notify the Company of any changes in the information set forth in
\nthe Registration Statement regarding the Purchaser or its plan of distribution.<\/p>\n
1.3\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Indemnification<\/u>.\u00a0 For the purpose of this Section 1.3,
\nthe term \u0093Registration Statement\u0094 shall include any preliminary or final
\nprospectus, exhibit, supplement or amendment included in or relating to the
\nRegistration Statement referred to in Section 1.1.<\/p>\n
1.3.1\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Indemnification
\nby the Company<\/u>.\u00a0 The Company agrees
\nto indemnify and hold harmless the Purchaser and each person, if any, who
\ncontrols the Purchaser within the meaning of the Securities Act, against any
\nlosses, claims, damages, liabilities or expenses, joint or several, to which
\nthe Purchaser or such controlling person may become subject, under the
\nSecurities Act, the Exchange Act, or any other federal or state statutory law
\nor regulation, or at common law or otherwise (including in settlement of any
\nlitigation, if such settlement is effected with the written consent of the
\nCompany, which consent shall not be unreasonably withheld), insofar as such
\nlosses, claims, damages, liabilities or expenses (or actions in respect thereof
\nas contemplated below) arise out of or are based upon any untrue statement or
\nalleged untrue statement of any material fact contained in the Registration
\nStatement, including the Prospectus, financial statements and schedules, and
\nall other documents filed as a part thereof, as amended at the time of
\neffectiveness of the Registration Statement, including any information deemed
\nto be a part thereof as of the time of effectiveness pursuant to
\nparagraph (b) of Rule 430A, or pursuant to Rule 434, of the
\nRules and Regulations, or the Prospectus, in the form first filed with the
\nCommission pursuant to Rule 424(b) of the Regulations, or filed as part of
\nthe Registration Statement at the time of effectiveness if no Rule 424(b)
\nfiling is required (the \u0093Prospectus\u0094), or any amendment or supplement thereto,
\nor arise out of or are based upon the omission or alleged omission to state in
\nany of them a material fact required to be stated therein or necessary to make
\nthe statements in any of them, in light of the<\/p>\n
\n
\n
\n<\/div>\n

<\/p>\n
\n
circumstances
\nunder which they were made, not misleading, or arise out of or are based in
\nwhole or in part on any inaccuracy in the representations and warranties of the
\nCompany contained in this Agreement, or any failure of the Company to perform
\nits obligations under this Agreement or under law, and will reimburse the
\nPurchaser and each such controlling person for any legal and other expenses as
\nsuch expenses are reasonably incurred by the Purchaser or such controlling
\nperson in connection with investigating, defending, settling, compromising or paying
\nany such loss, claim, damage, liability, expense or action; provided, however,
\nthat the Company will not be liable in any such case to the extent that any
\nsuch loss, claim, damage, liability or expense arises out of or is based upon
\n(i) an untrue statement or alleged untrue statement or omission or alleged
\nomission made in the Registration Statement, the Prospectus or any amendment or
\nsupplement of the Registration Statement or Prospectus in reliance upon and in
\nconformity with written information furnished to the Company by or on behalf of
\nthe Purchaser expressly for use in the Registration Statement or the
\nProspectus, or (ii) the failure of the Purchaser to comply with the
\ncovenants and agreements contained in Section 1.2 of this Agreement
\nrespecting resale of the Shares, or (iii) the inaccuracy of any
\nrepresentations made by the Purchaser in this Agreement or (iv) any untrue
\nstatement or omission of a material fact required to make such statement not
\nmisleading in any Prospectus that is corrected in any subsequent Prospectus
\nthat was delivered to the Purchaser before the pertinent sale or sales by the
\nPurchaser.<\/p>\n
1.3.2\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Indemnification
\nby the Purchaser<\/u>.\u00a0 The Purchaser
\nwill indemnify and hold harmless the Company, each of its directors, each of
\nits officers who signed the Registration Statement and each person, if any, who
\ncontrols the Company within the meaning of the Securities Act, against any
\nlosses, claims, damages, liabilities or expenses to which the Company, each of
\nits directors, each of its officers who signed the Registration Statement or
\ncontrolling persona may become subject, under the Securities Act, the Exchange
\nAct, or any other federal or state statutory law or regulation, or at common
\nlaw or otherwise (including in settlement of any litigation, if such settlement
\nis effected with the written consent of the Purchaser, which consent shall not
\nbe unreasonably withheld) insofar as such losses, claims, damages, liabilities
\nor expenses (or actions in respect thereof as contemplated below) arise out of
\nor are based upon (i) any failure on the part of the Purchaser to comply
\nwith the covenants and agreements contained in Section 1.2 of this
\nAgreement respecting the sale of the Shares or (ii) the inaccuracy of any
\nrepresentation made by the Purchaser in this Agreement or (iii) any untrue
\nor alleged untrue statement of any material fact contained in the Registration
\nStatement, the Prospectus, or any amendment or supplement to the Registration
\nStatement or Prospectus, or arise out of or are based upon the omission or
\nalleged omission to state therein a material fact required to be stated therein
\nor necessary to make the statements therein not misleading, in each case to the
\nextent, but only to the extent, that such untrue statement or alleged untrue statement
\nor omission or alleged omission was made in the Registration Statement, the
\nProspectus, or any amendment or supplement thereto, in reliance upon, and in
\nconformity with written information furnished to the Company by or on behalf of
\nthe Purchaser expressly for use therein; provided, however, that the Purchaser
\nshall not be liable for any such untrue or alleged untrue statement or omission
\nor alleged omission of which the Purchaser has delivered to the Company in
\nwriting a correction before the occurrence of the transaction from which such
\nloss was incurred, and the Purchaser will reimburse the Company, each of its
\ndirectors, each of its officers who signed the Registration Statement or
\ncontrolling person for any legal and<\/p>\n
\n
\n<\/div>\n

<\/p>\n
\n
other
\nexpense reasonably incurred by the Company, each of its directors, each of its
\nofficers who signed the Registration Statement or controlling person in
\nconnection with investigating, defending, settling, compromising or paying any
\nsuch loss, claim, damage, liability, expense or action.<\/p>\n
1.3.3\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Indemnification
\nProcedure<\/u>.<\/p>\n
(a)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Promptly
\nafter receipt by an indemnified party under this Section 1.3 of notice of
\nthe threat or commencement of any action, such indemnified party will, if a
\nclaim in respect thereof is to be made against an indemnifying party under this
\nSection 1.3, promptly notify the indemnifying party in writing of the
\nclaim; but the omission so to notify the indemnifying party will not relieve it
\nfrom any liability which it may have to any indemnified party for contribution
\nor otherwise under the indemnity agreement contained in this Section 1.3
\nor to the extent it is not prejudiced as a result of such failure:<\/p>\n
(b)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In
\ncase any such action is brought against any indemnified party and such
\nindemnified party seeks or intends to seek indemnity from an indemnifying
\nparty, the indemnifying party will be entitled to participate in, and, to the
\nextent that it may wish, jointly with all other indemnifying parties similarly
\nnotified, to assume the defense thereof with counsel reasonably satisfactory to
\nsuch indemnified party; provided, however,<\/i>
\nif the defendants in any such action include both the indemnified party and the
\nindemnifying party and the indemnified party shall have reasonably concluded
\nthat there may be a conflict between the positions of the indemnifying party
\nand the indemnified party in conducting the defense of any such action or that
\nthere may be legal defenses available to it or other indemnified parties that
\nare different from or additional to those available to the indemnifying party,
\nthe indemnified party or parties shall have the right to select separate
\ncounsel to assume such legal defenses and to otherwise participate in the
\ndefense of such action on behalf of such indemnified party or parties. Upon
\nreceipt of notice from the indemnifying party to such indemnified party of its
\nelection so to assume the defense of such action and approval by the
\nindemnified party of counsel, the indemnifying party will not be liable to such
\nindemnified party under this Section 1.3 for any legal or other expenses
\nsubsequently incurred by such indemnified party in connection with the defense
\nthereof unless;<\/p>\n
(i)\u00a0\u00a0\u00a0 the
\nindemnified party shall have employed such counsel in connection with the
\nassumption of legal defenses in accordance with the proviso to the preceding
\nsentence (it being understood, however, that the indemnifying party shall not
\nbe liable for the expenses of more than one separate counsel, approved by such
\nindemnifying party representing all of the indemnified parties who are parties
\nto such action) or<\/p>\n
(ii)\u00a0\u00a0 the
\nindemnifying party shall not have employed counsel reasonably satisfactory to
\nthe indemnified party to represent the indemnified party within a reasonable
\ntime after notice of commencement of action, in each of which cases the
\nreasonable fees and expenses of counsel shall be at the expense of the
\nindemnifying party. Notwithstanding the provisions of this Section 1.3,
\nthe Purchaser shall not be liable for any indemnification obligation under this
\nAgreement in excess of the amount of gross proceeds received by the Purchaser
\nfrom the sale of the Shares.<\/p>\n
\n
\n
\n<\/div>\n

<\/p>\n
\n
1.3.4\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Contribution<\/u>.\u00a0 If the indemnification provided for in this
\nSection 1.3 is required by its terms but is for any reason held to be
\nunavailable to or otherwise insufficient to hold harmless an indemnified party
\nunder this Section 1.3 in respect to any losses, claims, damages,
\nliabilities or expenses referred to in this Agreement, then each applicable
\nindemnifying party shall contribute to the amount paid or payable by such
\nindemnified party as a result of any losses, claims, damages, liabilities or
\nexpenses referred to in this Agreement<\/p>\n
(a)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 in
\nsuch proportion as is appropriate to reflect the relative benefits received by
\nthe Company and the Purchaser from the placement of Common Stock or<\/p>\n
(b)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 if
\nthe allocation provided by clause (a) above is not permitted by applicable
\nlaw, in such proportion as is appropriate to reflect not only the relative
\nbenefits referred to in clause (a) above but the relative fault of the
\nCompany and the Purchaser in connection with the statements or omissions or.
\ninaccuracies in the representations and warranties in this Agreement that
\nresulted in such losses, claims, damages, liabilities or expenses, as well as
\nany other relevant equitable considerations. The respective relative benefits
\nreceived by the Company on, the one hand and the Purchaser on the other shall
\nbe deemed to be in the same proportion as the amount paid by the Purchaser to
\nthe Company pursuant to this Agreement for the Shares purchased by the
\nPurchaser that were sold pursuant to the Registration Statement bears to the
\ndifference (the \u0093Difference\u0094) between the amount the Purchaser paid for the
\nShares that were sold pursuant to\u0092 the Registration Statement and the amount
\nreceived by the Purchaser from such sale. The relative fault of the Company and
\nthe Purchaser shall be determined by reference to, among other things, whether
\nthe untrue or alleged statement of a material fact or the omission or alleged
\nomission to state a material fact or the inaccurate or the alleged inaccurate
\nrepresentation or warranty relates to information supplied by the Company or by
\nthe Purchaser and the parties\u0092 relative intent, knowledge, access to
\ninformation and opportunity to correct or prevent such statement or omission.
\nThe amount paid or payable by a party as a result of the losses, claims,
\ndamages, liabilities and expenses referred to above shall be deemed to include,
\nsubject to the limitations set forth in Section 1.3.3, any legal or other
\nfees or expenses reasonably incurred by such party in connection with
\ninvestigating or defending any action or claim,. The provisions set forth in
\nSection 1.3.3 with respect to the notice of the threat or commencement of
\nany threat or action shall apply if a claim for contribution is to be made
\nunder this Section 1.3.4; provided, however, that no additional notice
\nshall be required with respect to any threat or action for which notice has
\nbeen given under Section 1.3 for purposes of indemnification. The Company
\nand the Purchaser agree that it would not be just and equitable if contribution
\npursuant to this Section 1.3 were determined solely by pro rata allocation
\n(even if the Purchaser were treated as one entity for such purpose) or by any
\nother method of allocation which does not take account of the equitable
\nconsiderations referred to in this paragraph. Notwithstanding the provisions of
\nthis Section 1.3, no Purchaser shall be required to contribute any amount
\nin excess of the amount by which the Difference exceeds the amount of any
\ndamages that the Purchaser has otherwise been required to pay by reason of such
\nuntrue or alleged untrue statement or omission or alleged omission. No person
\nguilty of fraudulent misrepresentation (within the meaning of Section 11(f)
\nof the Securities Act) shall be entitled to contribution from any person who
\nwas not guilty of such fraudulent misrepresentation. The Purchaser\u0092 obligations
\nto contribute pursuant to this Section 1.3 are several and not joint.<\/p>\n
\n
\n
\n<\/div>\n

<\/p>\n
\n
1.4\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Termination
\nof Conditions and Obligations<\/u>.\u00a0 The
\nrestrictions imposed by this Section 1 upon the transferability of the
\nShares shall cease and terminate as to any particular number of the Shares upon
\n[***] or at such time as an opinion of counsel satisfactory in form and
\nsubstance to the Company shall have been rendered to the effect that such
\nconditions are not necessary in order to comply with the Securities Act.<\/p>\n
1.5\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Information
\nAvailable<\/u>.\u00a0 So long as the
\nRegistration Statement is effective covering the resale of Shares owned by the
\nPurchaser, the Company will furnish to the Purchaser;<\/p>\n
(a)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 as
\nsoon as practicable after available (but in the case of the Company\u0092s Annual
\nReport to Stockholders, within [***] after the end of each fiscal year of the
\nCompany), one copy of<\/p>\n
(i)\u00a0\u00a0\u00a0 its Annual
\nReport to Stockholders (which Annual Report shall contain financial statements
\naudited in accordance with generally accepted accounting principles by a
\nnational firm of certified public accountants);<\/p>\n
(ii)\u00a0\u00a0 if not
\nincluded in substance in the Annual Report to Stockholders, its Annual Report
\non Form 10-K;<\/p>\n
(iii)\u00a0 if not
\nincluded in substance in its Quarterly Reports to Stockholders, its quarterly
\nreports on Form 10-Q; and<\/p>\n
(iv)\u00a0 a full copy
\nof the particular Registration Statement covering the Shares (the foregoing, in
\neach case, excluding exhibits);<\/p>\n
(v)\u00a0\u00a0 upon the
\nrequest of the Purchaser, a reasonable number of copies of the Prospectus to
\nsupply to any other party requiring the Prospectus.<\/p>\n
1.6\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Rule 144
\nInformation<\/u>.\u00a0 For two years after
\nthe date of this Agreement, the Company shall file all reports required to be
\nfiled by it under the Securities Act, the Rules and Regulations and the
\nExchange Act and shall take such further action to the extent required to
\nenable the Purchaser to sell the Shares pursuant to Rule 144 under the
\nSecurities Act (as such rule may be amended from time to time).<\/p>\n
1.7\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Consultation
\nPrior to the Issuance of Certain Securities<\/u>.\u00a0 The Company shall not sell or issue shares of Common Stock or any
\nother security of the Company convertible, exercisable or exchangeable into
\nshares of Common Stock, for a purchase, conversion, exercise or exchange price
\nper share which is subject to adjustment based on the market price of the
\nCommon Stock at the time of conversion, exercise or exchange of such security into
\nCommon Stock, without first consulting the Purchaser immediately prior to the
\napproval by the Company\u0092s Board of Directors of such sale or issuance;
\nprovided, however, that (i) the Company\u0092s obligation to enter into such
\nconsultations with the Purchaser shall be subject to the Purchaser entering
\ninto a nondisclosure agreement in form and substance appropriate for
\ntransactions of this nature, (ii) nothing in this Section 1.7 shall
\nprohibit the Company from consummating any such transaction provided that it
\nhas<\/p>\n
\n
\n
\n<\/div>\n

<\/p>\n
\n
complied with the
\nconsultation provisions hereof and (iii) the provisions of this
\nSection 1.7 shall not be applicable to transactions that are not effected
\nfor the purpose of raising capital.<\/p>\n
\n
\n
\n<\/div>\n

<\/p>\n
\n
Compliance Certificate<\/b><\/p>\n
UTStarcom, Inc. and<\/b><\/p>\n
interWAVE Communications International, Ltd.<\/b><\/p>\n
Stock Purchase Agreement<\/b><\/p>\n
September 27, 2002<\/b><\/p>\n
\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 September 27,
\n2002<\/p>\n
I, Priscilla Lu, Chief Executive Officer of
\ninterWAVE Communications International, Ltd. (\u0093interWAVE\u0094), certify as follows,
\nas to the Stock Purchase Agreement of September 27, 2002 between
\nUTStarcom, Inc. and interWAVE:<\/p>\n
 <\/b><\/p>\n
1.<\/b>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/b>Representations and Warranties Correct<\/b>.\u00a0 The representations and warranties made by the Company in
\nSection 3 of the Agreement are true and correct in all material respects
\nas of the Closing Date with the same force and effect as though such
\nrepresentations and warranties had been made on the Closing Date, except that
\nrepresentations and warranties that speak as of a particular date are true and
\ncorrect in all material respects as of such date.<\/p>\n
 <\/b><\/p>\n
2.<\/b>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/b>Covenants<\/b>.\u00a0 All
\ncovenants, agreements and conditions contained in the Agreement to be performed
\nby the Company on or prior to the Closing Date have been performed or complied
\nwith in all material respects. All proceedings to have been taken and all
\nwaivers. and consents to be obtained in connection with the transactions
\ncontemplated by this Agreement have been taken. or obtained.<\/p>\n
\n
I certify that the foregoing is true and
\ncorrect.<\/p>\n
\n\n\n\n\n\n\n\n\n
\n
\n<\/td>\n
\n
INTERWAVE COMMUNICATIONS<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
INTERNATIONAL, LTD.<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\/s\/ PRISCILLA LU<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Priscilla Lu<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Chief Executive Officer<\/p>\n<\/td>\n<\/tr>\n<\/table>\n
\n
\n
\n
\n<\/div>\n

<\/p>\n
\n
Section 5.4<\/b><\/p>\n
Certification of Resolutions and Officers<\/b><\/p>\n
UTStarcom, Inc.<\/b><\/p>\n
September 27,
\n2002<\/b><\/p>\n
I,
\nRobin E. Foor, Secretary of interWAVE Communications International, Ltd. (the
\n\u0093Company\u0094), certify that:<\/p>\n
(a)
\nthe Board of Directors of the Company has adopted resolutions duly authorizing
\nthe execution and delivery of the Agreement, the issuance to the Investor of
\nthe Shares, the execution and delivery of such other documents and instruments
\nas may be required by the Agreement, and the consummation of the transactions
\ncontemplated thereby, and such resolutions were duly adopted and have not been
\nrescinded or amended as of this date, and<\/p>\n
(b)
\nPriscilla Lu, Chief Executive Officer, is authorized to sign, as appropriate,
\nthe Agreement and the other documents and certificates to be delivered pursuant
\nto this Agreement by either the Company or any of its officers, and her
\nsignature appears on the Agreement.<\/p>\n
I
\ncertify that the foregoing is true and correct.<\/p>\n\n\n\n\n\n\n\n
\n
\n<\/td>\n
\n
INTERWAVE COMMUNICATIONS<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
INTERNATIONAL, LTD.<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\/s\/ ROBIN E. FOOR<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Robin E. Foor<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Secretary<\/p>\n<\/td>\n<\/tr>\n<\/table>\n
\n
\n
\n<\/div>\n

<\/p>\n
\n
Section 5.6<\/b><\/p>\n
Certification of No Material Adverse Change<\/b><\/p>\n
UTStarcom – interWAVE Amendment to OEM Agreement<\/b><\/p>\n
September 27,
\n2002<\/b><\/p>\n
I, Cal Hoagland, Chief
\nFinancial Officer of interWAVE Communications International, Ltd. (the
\n\u0093Company\u0094) represent, to the best of my knowledge and belief, that since
\nJune 30, 2002, there has not been any material adverse change in the
\nfinancial position or results of operations of the Company other than that
\ndescribed in Section 3.12 of the Stock Purchase Agreement and in the
\nSchedule of Exceptions.<\/p>\n
\n\n\n\n\n\n\n\n\n
\n
\n<\/td>\n
\n
INTERWAVE COMMUNICATIONS<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
INTERNATIONAL, LTD.<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\/s\/ CAL HOAGLAND<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Cal Hoagland<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Chief Financial Officer<\/p>\n<\/td>\n<\/tr>\n<\/table>\n
 <\/b><\/p>\n
\n
\n<\/div>\n

<\/p>\n
\n
Exhibit B<\/b><\/p>\n
\n
Specifications – Statement of Work<\/b><\/p>\n
UTStarcom – interWAVE Amendment to OEM Agreement<\/b><\/p>\n
September 27, 2002<\/b><\/p>\n
\n
\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The
\nparties will meet upon signing of the Amendment to OEM Agreement to develop a
\ndetailed written Statement of Work (\u0093SOW\u0094), and a written Product Specification
\nfrom the SOW.\u00a0 The SOW shall include the
\nfollowing:<\/p>\n
\n
[***]<\/p>\n
\n
\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The
\nparties will send people from [***] and from [***] to develop the written SOW.<\/p>\n
\n
\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Each
\nparty will appoint a project manager as the single point of contact for the
\nproject.<\/p>\n
\n
\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 [***]
\nwill be the project manager for interWAVE.<\/p>\n
\n
\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 A
\npreliminary SOW is attached and will be superceded by the SOW created.<\/p>\n
\n
\n
\n<\/div>\n

<\/p>\n
\n
Exhibit C<\/b><\/p>\n
Delivery Schedule<\/b><\/p>\n
UTStarcom – interWAVE Amendment to OEM Agreement<\/b><\/p>\n
September 27,
\n2002 (= Amendment Effective Date)<\/b><\/p>\n
The parties shall complete the Statement of
\nWork and interWAVE shall develop the interface between the UTSI iPAS, using a
\nthird party media gateway, as follows:<\/p>\n
Development Milestones<\/b><\/p>\n
\n\n\n\n\n\n
\n
[***] – Milestones<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
Completion Date<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
[***]<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n<\/table>\n
\n
UTStarcom must provide [***] to work [***] on
\nthe project.<\/p>\n
\n
interWAVE\/GBase will staff the project with
\n[***].<\/p>\n
\n
UTStarcom must provide [***] for the project
\nby [***].<\/p>\n
\n
\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Development
\nwill begin, and all completion dates are measured from [***]<\/p>\n
\n
Development will proceed in parallel to the
\npreparation of the detailed written Statement of Work and the written Product
\nSpecification, to be completed by [***].<\/p>\n
\n
The development schedule for an alternative
\npath shall be defined by the Statement Work.<\/p>\n
\n
\n
\n<\/div>\n

<\/p>\n
\n
PREFERRED ESCROW
\nAGREEMENT<\/b><\/p>\n
Account Number ____________________<\/p>\n
\n
This agreement (\u0093Agreement\u0094) is effective
\nSeptember 27, 2002 among DSI Technology Escrow Services, Inc. (\u0093DSI\u0094),
\nInterwave Communications International, Ltd. (\u0093Depositor\u0094) and UTStarcom, Inc.
\n(\u0093Preferred Beneficiary\u0094), who collectively may be referred to in this
\nAgreement as the parties (\u0093Parties\u0094).<\/p>\n
\n
A.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Depositor
\nand Preferred Beneficiary have entered or will enter into a license agreement,
\ndevelopment agreement, and\/or other agreement regarding certain proprietary
\ntechnology of Depositor (referred to in this Agreement as \u0093the License
\nAgreement\u0094).<\/p>\n
\n
B.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Depositor
\ndesires to avoid disclosure of its proprietary technology except under certain
\nlimited circumstances.<\/p>\n
\n
C.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The
\navailability of the proprietary technology of Depositor is critical to Preferred
\nBeneficiary in the conduct of its business and, therefore, Preferred
\nBeneficiary needs access to the proprietary technology under certain limited
\ncircumstances.<\/p>\n
\n
D.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Depositor
\nand Preferred Beneficiary desire to establish an escrow with DSI to provide for
\nthe retention, administration and controlled access of the proprietary
\ntechnology materials of Depositor.<\/p>\n
\n
E.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The
\nparties desire this Agreement to be supplementary to the License Agreement
\npursuant to 11 United States [Bankruptcy] Code, Section 365(n).<\/p>\n
ARTICLE 1 \u0097 DEPOSITS<\/b><\/p>\n
1.1\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Obligation to Make Deposit<\/u>.
\nUpon the completion of the development agreed to by the parities in the
\nSeptember 27, 2002 Amendment to the OEM Agreement between UTStarcom and
\nInterwave Communications International, Ltd. (the \u0093License Agreement\u0094),
\nDepositor shall deliver to DSI the proprietary technology and other materials
\n(\u0093Deposit Materials\u0094) required to be deposited pursuant to the terms and
\nconditions of the License Agreement or, if the License Agreement does not
\nidentify the materials to be deposited with DSI, then such materials will be
\nidentified on Exhibit A. If Exhibit A is applicable, it is to be
\nprepared and signed by Depositor and Preferred Beneficiary. DSI shall have no
\nobligation with respect to the preparation, signing or delivery of
\nExhibit A.<\/p>\n
1.2\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Identification of Tangible Media<\/u>.
\nPrior to the delivery of the Deposit Materials to DSI, Depositor shall
\nconspicuously label for identification each document, magnetic tape, disk, or
\nother tangible media upon which the Deposit Materials are written or stored.
\nAdditionally, Depositor shall complete Exhibit B to this Agreement by
\nlisting each such tangible media by the item label description, the type of
\nmedia and the quantity. Exhibit B shall be signed by Depositor and delivered
\nto DSI with the Deposit Materials. Unless and until Depositor makes the initial
\ndeposit with DSI, DSI shall have no obligation with respect to this Agreement,
\nexcept the obligation to notify the parties regarding the status of the account
\nas required in Section 2.2 below.<\/p>\n
\n
\n
\n<\/div>\n

<\/p>\n
\n
1.3\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Deposit Inspection<\/u>. When DSI
\nreceives the Deposit Materials and Exhibit B, DSI will conduct a deposit
\ninspection by visually matching the labeling of the tangible media containing
\nthe Deposit Materials to the item descriptions and quantity listed on
\nExhibit B.\u00a0 In addition to the
\ndeposit inspection, Preferred Beneficiary may elect to cause a verification of
\nthe Deposit Materials in accordance with Section 1.6 below.<\/p>\n
1.4\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Acceptance of Deposit<\/u>. At
\ncompletion of the deposit inspection, if DSI determines that the labeling of
\nthe tangible media matches the item descriptions and quantity on
\nExhibit B, DSI will date and sign Exhibit B and mail a copy thereof
\nto Depositor and Preferred Beneficiary. If DSI determines that the labeling
\ndoes not match the item descriptions or quantity on Exhibit B, DSI will
\n(a) note the discrepancies in writing on Exhibit B; (b) date and
\nsign Exhibit B with the exceptions noted; and (c) mail a copy of
\nExhibit B to Depositor and Preferred Beneficiary. DSI\u0092s acceptance of the
\ndeposit occurs upon the signing of Exhibit B by DSI. Delivery of the
\nsigned Exhibit B to Preferred Beneficiary is Preferred Beneficiary\u0092s
\nnotice that the Deposit Materials have been received and accepted by DSI.<\/p>\n
1.5\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Depositor\u0092s Representations<\/u>. Depositor
\nrepresents as follows:<\/p>\n
a.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Depositor lawfully possesses all of the
\nDeposit Materials deposited with DSI;<\/p>\n
b.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 With respect to all of the Deposit
\nMaterials, Depositor has the right and authority to grant to DSI and Preferred
\nBeneficiary the rights as provided in this Agreement;<\/p>\n
c.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Deposit Materials are not subject to
\nany lien or other encumbrance;<\/p>\n
d.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Deposit Materials consist of the
\nproprietary technology and other materials identified either in the License
\nAgreement or Exhibit A, as the case may be; and<\/p>\n
e.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Deposit Materials are readable and
\nuseable in their current form or, if any portion of the Deposit Materials is
\nencrypted, the decryption tools and decryption keys have also been deposited.<\/p>\n
1.6\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Verification<\/u>. Preferred
\nBeneficiary shall have the right, at Preferred Beneficiary\u0092s expense, to cause
\na verification of any Deposit Materials. Preferred Beneficiary shall notify
\nDepositor and DSI of Preferred Beneficiary\u0092s request for verification.
\nDepositor shall have the right to be present at the verification. A
\nverification determines, in different levels of detail, the accuracy,
\ncompleteness, sufficiency and quality of the Deposit Materials. If a
\nverification is elected after the Deposit Materials have been delivered to DSI,
\nthen only DSI, or at DSI\u0092s election an independent person or company selected
\nand supervised by DSI, may perform the verification.<\/p>\n
1.7\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Deposit Updates<\/u>. Unless
\notherwise provided by the License Agreement, Depositor shall update the Deposit
\nMaterials within [***] of each release of a new version of the product which is
\nsubject to the License Agreement. Such updates will be added to the existing
\ndeposit. All deposit updates shall be listed on a new Exhibit B and
\nDepositor shall sign the new Exhibit B. Each Exhibit B will be held
\nand maintained separately within the escrow account. An independent record will
\nbe created which will document the activity for each Exhibit B. The
\nprocessing of all deposit updates shall be in accordance with Sections 1.2
\nthrough 1.6 above. All references in this Agreement to the Deposit Materials
\nshall include the initial Deposit Materials and any updates.<\/p>\n
\n
\n
\n<\/div>\n

<\/p>\n
\n
1.8\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Removal of Deposit Materials<\/u>.
\nThe Deposit Materials may be removed and\/or exchanged only on written
\ninstructions signed by Depositor and Preferred Beneficiary, or as otherwise
\nprovided in this Agreement.<\/p>\n
ARTICLE 2 \u0097 CONFIDENTIALITY AND RECORD
\nKEEPING<\/b><\/p>\n
2.1\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Confidentiality<\/u>. DSI shall
\nmaintain the Deposit Materials in a secure, environmentally safe, locked
\nfacility which is accessible only to authorized representatives of DSI. DSI
\nshall have the obligation to reasonably protect the confidentiality of the
\nDeposit Materials. Except as provided in this Agreement, DSI shall not
\ndisclose, transfer, make available, or use the Deposit Materials. DSI and Preferred
\nBeneficiary shall not disclose the content or existence of this Agreement to
\nany third party unless having been agreed to by all parties in writing. If DSI
\nreceives a subpoena or any other order from a court or other judicial tribunal
\npertaining to the disclosure or release of the Deposit Materials, DSI will
\nimmediately notify the parties to this Agreement unless prohibited by law. It
\nshall be the responsibility of Depositor and\/or Preferred Beneficiary to
\nchallenge any such order; provided, however, that DSI does not waive its rights
\nto present its position with respect to any such order. DSI will not be
\nrequired to disobey any order from a court or other judicial tribunal. (See
\nSection 7.5 below for notices of requested orders.)<\/p>\n
2.2\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Status Reports<\/u>. DSI will issue
\nto Depositor and Preferred Beneficiary a report profiling the account history
\n[***]. DSI may provide copies of the account history pertaining to this
\nAgreement upon the request of any party to this Agreement.<\/p>\n
2.3\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Audit Rights<\/u>. During the term
\nof this Agreement, Depositor and Preferred Beneficiary shall each have the
\nright to inspect the written records of DSI pertaining to this Agreement. Any
\ninspection shall be held during normal business hours and following reasonable
\nprior notice.<\/p>\n
ARTICLE 3 \u0097 GRANT OF RIGHTS TO DSI<\/b><\/p>\n
3.1\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Title to Media<\/u>. Depositor
\nhereby transfers to DSI the title to the media upon which the proprietary
\ntechnology and materials are written or stored. However, this transfer does not
\ninclude the ownership of the proprietary technology and materials contained on
\nthe media such as any copyright, trade secret, patent or other intellectual
\nproperty rights.<\/p>\n
3.2\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Right to Make Copies<\/u>. DSI
\nshall have the right to make copies of the Deposit Materials as reasonably
\nnecessary to perform this Agreement. DSI shall copy all copyright,
\nnondisclosure, and other proprietary notices and titles contained on the
\nDeposit Materials onto any copies made by DSI. With all Deposit Materials
\nsubmitted to DSI, Depositor shall provide any and all instructions as may be
\nnecessary to duplicate the Deposit Materials including but not limited to the
\nhardware and\/or software needed.<\/p>\n
3.3\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Right to Transfer Upon Release<\/u>.
\nDepositor hereby grants to DSI the right to transfer the Deposit Materials to
\nPreferred Beneficiary upon any release of the Deposit Materials for use by
\nPreferred Beneficiary in accordance with Section 4.5. Except upon such a
\nrelease or as otherwise provided in this Agreement, DSI shall not transfer the
\nDeposit Materials.<\/p>\n
\n
\n
\n<\/div>\n

<\/p>\n
\n
ARTICLE 4 \u0097 RELEASE OF DEPOSIT<\/b><\/p>\n
4.1\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Release Conditions<\/u>. As used in
\nthis Agreement, \u0093Release Condition\u0094 shall mean the following:<\/p>\n
a.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Depositor\u0092s failure to carry out a
\nmaterial obligation imposed on it pursuant to the License Agreement, after
\n[***] written notice and opportunity to cure; or<\/p>\n
b.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Depositor\u0092s appointment of a receiver,
\nexecution of an assignment for the benefit of creditors, going into liquidation
\nin bankruptcy, or ceasing to operate its business for a period of [***].<\/p>\n
\n
Where any dispute arises over the meaning and
\ninterpretation of the term \u0093Release Condition\u0094 as applied to the terms and
\nconditions of the License Agreement, the matter shall be submitted to
\narbitration before a retired judge at Judicial Arbitration and Mediation
\nService (\u0093JAMS\u0094) in San Francisco, California under the JAMS Rules.<\/p>\n
4.2\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Filing For Release<\/u>. If
\nPreferred Beneficiary believes in good faith that a Release Condition has
\noccurred, Preferred Beneficiary may provide to DSI written notice of the
\noccurrence of the Release Condition and a request for the release of the
\nDeposit Materials. Upon receipt of such notice, DSI shall provide a copy of the
\nnotice to Depositor by commercial express mail.<\/p>\n
4.3\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Contrary Instructions<\/u>. From
\nthe date DSI mails the notice requesting release of the Deposit Materials, Depositor
\nshall have [***] to deliver to DSI contrary instructions (\u0093Contrary
\nInstructions\u0094). Contrary Instructions shall mean the written representation by
\nDepositor that a Release Condition has not occurred or has been cured. Upon
\nreceipt of Contrary Instructions; DSI shall send a copy to Preferred
\nBeneficiary by commercial express mail. Additionally, DSI shall notify both
\nDepositor and Preferred Beneficiary that there is a dispute to be resolved
\npursuant to Section 7.3 of this Agreement. Subject to Section 5.2 of
\nthis Agreement, DSI will continue to store the Deposit Materials without
\nrelease pending (a) joint instructions from Depositor and Preferred
\nBeneficiary; (b) dispute resolution pursuant to Section 7.3; or
\n(c) order of a court.<\/p>\n
4.4\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Release of Deposit<\/u>. If DSI
\ndoes not receive Contrary Instructions from the Depositor, DSI is authorized to
\nrelease the Deposit Materials to the Preferred Beneficiary or, if more than one
\nbeneficiary is registered to the deposit, to release a copy of the Deposit
\nMaterials to the Preferred Beneficiary. However, DSI is entitled to receive any
\nfees due DSI before making the release. Any copying expense in excess of $300
\nwill be chargeable to Preferred Beneficiary. This Agreement will terminate upon
\nthe release of the Deposit Materials held by DSI.<\/p>\n
4.5\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Right to Use Following Release<\/u>.
\nUnless otherwise provided in the License Agreement, upon release of the Deposit
\nMaterials in accordance with this Article 4, Preferred Beneficiary shall have
\nthe right to use the Deposit Materials for the sole purpose of continuing the
\nbenefits afforded to Preferred Beneficiary by the License Agreement. Preferred
\nBeneficiary shall be obligated to maintain the confidentiality of the released
\nDeposit Materials.<\/p>\n
\n
\n
\n<\/div>\n

<\/p>\n
\n
ARTICLE 5 \u0097 TERM AND TERMINATION<\/b><\/p>\n
5.1\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Term of Agreement<\/u>. The initial
\nterm of this Agreement is for a period of [***]. Thereafter, this Agreement
\nshall automatically renew from year-to-year unless (a) Depositor and
\nPreferred Beneficiary jointly instruct DSI in writing that the Agreement is
\nterminated; or (b) DSI instructs Depositor and Preferred Beneficiary in
\nwriting that the Agreement is terminated for nonpayment in accordance with
\nSection 5.2 or by resignation in accordance with Section 5.3. If the
\nDeposit Materials are subject to another escrow agreement with DSI, DSI
\nreserves the right, [***] to adjust the anniversary date of this Agreement to
\nmatch the then prevailing anniversary date of such other escrow arrangements.<\/p>\n
5.2\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Termination for Nonpayment<\/u>. In
\nthe event of the nonpayment of fees owed to DSI, DSI shall provide written
\nnotice of delinquency to all parties to this Agreement. Any party to this
\nAgreement shall have the right to make the payment to DSI to cure the default.
\nIf the past due payment is not received in full by DSI within one month of the
\ndate of such notice, then DSI shall have the right to terminate this Agreement
\nat any time thereafter by sending written notice of termination to all parties.
\nDSI shall have no obligation to take any action under this Agreement so long as
\nany payment due to DSI remains unpaid.<\/p>\n
5.3\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Termination by Resignation<\/u>.
\nDSI reserves the right to terminate this Agreement, for any reason, by
\nproviding Depositor and Preferred Beneficiary with [***] written notice of its
\nintent to terminate this Agreement. Within the [***], the Depositor and
\nPreferred Beneficiary may provide DSI with joint written instructions
\nauthorizing DSI to forward the Deposit Materials to another escrow company
\nand\/or agent or other designated recipient. If DSI does not receive said joint
\nwritten instructions within [***] of the date of DSI\u0092s written termination
\nnotice, then DSI shall destroy, return or otherwise deliver the Deposit
\nMaterials in accordance with Section 5.4.<\/p>\n
5.4\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Disposition of Deposit Materials
\nUpon Termination<\/u>. Subject to the foregoing termination provisions, and upon
\ntermination of this Agreement, DSI shall destroy, return, or otherwise deliver
\nthe Deposit Materials in accordance with Depositor\u0092s instructions. If there are
\nno instructions, DSI may, at its sole discretion, destroy the Deposit Materials
\nor return them to Depositor. DSI shall have no obligation to destroy or return
\nthe Deposit Materials if the Deposit Materials are subject to another escrow
\nagreement with DSI or have been released to the Preferred Beneficiary in
\naccordance with Section 4.4.<\/p>\n
5.5\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Survival of Terms Following
\nTermination<\/u>. Upon termination of this Agreement, the following provisions
\nof this Agreement shall survive:<\/p>\n
a.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Depositor\u0092s Representations
\n(Section 1.5);<\/p>\n
b.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The obligations of confidentiality with
\nrespect to the Deposit Materials;<\/p>\n
c.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The rights granted in the sections
\nentitled Right to Transfer Upon Release (Section 3.3) and Right to Use
\nFollowing Release (Section 4.5), if a release of the Deposit Materials has
\noccurred prior to termination;<\/p>\n
d.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The obligation to pay DSI any fees and
\nexpenses due;<\/p>\n
\n
\n
\n<\/div>\n

<\/p>\n
\n
e.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The provisions of Article 7; and<\/p>\n
f.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Any provisions in this Agreement which
\nspecifically state they survive the termination of this Agreement.<\/p>\n
ARTICLE 6 \u0097 DSI\u0092S FEES<\/b><\/p>\n
6.1\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Fee Schedule<\/u>. DSI is entitled
\nto be paid its standard fees and expenses applicable to the services provided.
\nDSI shall notify the party responsible for payment of DSI\u0092s fees [***] prior to
\nany increase in fees. For any service not listed on DSI\u0092s standard fee
\nschedule, DSI will provide a quote prior to rendering the service, if
\nrequested.<\/p>\n
6.2\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Payment Terms<\/u>. DSI shall not
\nbe required to perform any service unless the payment for such service and any
\noutstanding balances owed to DSI are paid in full. Fees are due upon receipt of
\na signed contract or receipt of the Deposit Materials whichever is earliest. If
\ninvoiced fees are not paid, DSI may terminate this Agreement in accordance with
\nSection 5.2.<\/p>\n
ARTICLE 7 \u0097 LIABILITY AND DISPUTES<\/b><\/p>\n
7.1\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Right to Rely on Instructions<\/u>.
\nDSI may act in reliance upon any instruction, instrument, or signature
\nreasonably believed by DSI to be genuine. DSI may assume that any employee of a
\nparty to this Agreement who gives any written notice, request, or instruction
\nhas the authority to do so. DSI will not be required to inquire into the truth
\nor evaluate the merit of any statement or representation contained in any
\nnotice or document. DSI shall not be responsible for failure to act as a result
\nof causes beyond the reasonable control of DSI.<\/p>\n
7.2\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Indemnification<\/u>. Depositor and
\nPreferred Beneficiary each agree to indemnify, defend and hold harmless DSI
\nfrom any and all claims, actions, damages, arbitration fees and expenses,
\ncosts, attorney\u0092s fees and other liabilities (\u0093Liabilities\u0094) incurred by DSI
\nrelating in any way to this escrow arrangement unless such Liabilities were
\ncaused solely by the negligence or willful misconduct of DSI.<\/p>\n
7.3\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Dispute Resolution<\/u>. Any
\ndispute relating to or arising from this Agreement shall be resolved by
\narbitration under the Commercial Rules of the American Arbitration Association.
\nThree arbitrators shall be selected. The Depositor and Preferred Beneficiary
\nshall each select one arbitrator and the two chosen arbitrators shall select
\nthe third arbitrator, or failing agreement on the selection of the third
\narbitrator, the American Arbitration Association shall select the third
\narbitrator. However, if DSI is a party to the arbitration, DSI shall select the
\nthird arbitrator. Unless otherwise agreed by Depositor and Preferred
\nBeneficiary, arbitration will take place in San Diego, California, U.S.A. Any
\ncourt having jurisdiction over the matter may enter judgment on the award of
\nthe arbitrator(s). Service of a petition to confirm the arbitration award may
\nbe made by First Class mail or by commercial express mail, to the attorney for
\nthe party or, if unrepresented, to the party at the last known business
\naddress.<\/p>\n
7.4\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Controlling Law<\/u>. This
\nAgreement is to be governed and construed in accordance with the laws of the
\nState of California, without regard to its conflict of law provisions.<\/p>\n
\n
\n
\n<\/div>\n

<\/p>\n
\n
7.5\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Notice of Requested Order<\/u>. If
\nany party intends to obtain an order from the arbitrator or any court of
\ncompetent jurisdiction which may direct DSI to take, or refrain from taking any
\naction, that party shall:<\/p>\n
a.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Give DSI at least [***] prior notice of
\nthe hearing;<\/p>\n
b.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Include in any such order that, as a
\nprecondition to DSI\u0092s obligation, DSI be paid in full for any past due fees and
\nbe paid for the reasonable value of the services to be rendered pursuant to such
\norder; and<\/p>\n
c.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Ensure that DSI not be required to
\ndeliver the original (as opposed to a copy) of the Deposit Materials if DSI may
\nneed to retain the original in its possession to fulfill any of its other
\nduties.<\/p>\n
ARTICLE 8 \u0097 GENERAL PROVISIONS<\/b><\/p>\n
8.1\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Entire Agreement<\/u>. This
\nAgreement, which includes Exhibits described herein, embodies the entire
\nunderstanding among the parties with respect to its subject matter and
\nsupersedes all previous communications, representations or understandings,
\neither oral or written. DSI is not a party to the License Agreement between
\nDepositor and Preferred Beneficiary and has no knowledge of any of the terms or
\nprovisions of any such License Agreement. DSI\u0092s only obligations to Depositor
\nor Preferred Beneficiary are as set forth in this Agreement. No amendment or
\nmodification of this Agreement shall be valid or binding unless signed by all
\nthe parties hereto, except that Exhibit A need not be signed by DSI,
\nExhibit B need not be signed by Preferred Beneficiary and Exhibit C
\nneed not be signed.<\/p>\n
8.2\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Notices<\/u>. All notices,
\ninvoices, payments, deposits and other documents and communications shall be
\ngiven to the parties at the addresses specified in the attached Exhibit C.
\nIt shall be the responsibility of the parties to notify each other as provided
\nin this Section in the event of a change of address. The parties shall have the
\nright to rely on the last known address of the other parties. Unless otherwise
\nprovided in this Agreement, all documents and communications may be delivered
\nby First Class mail.<\/p>\n
8.3\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Severability<\/u>. In the event any
\nprovision of this Agreement is found to be invalid, voidable or unenforceable,
\nthe parties agree that unless it materially affects the entire intent and
\npurpose of this Agreement, such invalidity, voidability or unenforceability
\nshall affect neither the validity of this Agreement nor the remaining
\nprovisions herein, and the provision in question shall be deemed to be replaced
\nwith a valid and enforceable provision most closely reflecting the intent and
\npurpose of the original provision.<\/p>\n
8.4\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Successors<\/u>. This Agreement
\nshall be binding upon and shall inure to the benefit of the successors and
\nassigns of the parties. However, DSI shall have no obligation in performing
\nthis Agreement to recognize any successor or assign of Depositor or Preferred
\nBeneficiary unless DSI receives clear, authoritative and conclusive written
\nevidence of the change of parties.<\/p>\n
\n
\n
\n<\/div>\n

<\/p>\n
\n
8.5\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Regulations<\/u>. Depositor and
\nPreferred Beneficiary are responsible for and warrant compliance with all applicable
\nlaws, rules and regulations, including but not limited to customs laws, import,
\nexport, and re-export laws and government regulations of any country from or to
\nwhich the Deposit Materials may be delivered in accordance with the provisions
\nof this Agreement,<\/p>\n
\n\n\n\n\n\n\n\n\n\n\n\n
\n
Interwave
\n  Communications International, Ltd.<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
UTStarcom, Inc.<\/p>\n<\/td>\n<\/tr>\n
\n
Depositor<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
Preferred
\n  Beneficiary<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
By:<\/p>\n<\/td>\n
\n
\/s\/ PRISCILA LU<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
By:<\/p>\n<\/td>\n
\n
\/s\/ HONG LU<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
Name: <\/p>\n<\/td>\n
\n
Priscilla Lu<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
Name: <\/p>\n<\/td>\n
\n
Hong Lu<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
Title: <\/p>\n<\/td>\n
\n
Chief Executive
\n  Officer<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
Title: <\/p>\n<\/td>\n
\n
Chief Executive
\n  Officer<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
Date: <\/p>\n<\/td>\n
\n
September 27,
\n  2002<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
Date: <\/p>\n<\/td>\n
\n
September 27,
\n  2002<\/p>\n<\/td>\n<\/tr>\n<\/table>\n
\n\n\n\n\n\n\n\n\n\n\n\n
\n
\n<\/td>\n
\n
DSI Technology Escrow
\n  Services, Inc.<\/p>\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
By:<\/p>\n<\/td>\n
\n
\/s\/ Grant Jones<\/p>\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Name:<\/p>\n<\/td>\n
\n
Grant Jones<\/p>\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Title:<\/p>\n<\/td>\n
\n
Regional Sales Manager<\/p>\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Date:<\/p>\n<\/td>\n
\n
November 4, 2002<\/p>\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n<\/table>\n
 <\/b><\/p>\n
\n
\n<\/div>\n

<\/p>\n
\n
EXHIBIT A<\/b><\/p>\n
MATERIALS TO BE DEPOSITED<\/b><\/p>\n
Account Number ____________________<\/p>\n
\n
Depositor represents to Preferred Beneficiary
\nthat Deposit Materials delivered to DSI shall consist of the following:<\/p>\n
\n
[***]<\/p>\n
\n
\n
\n
\n\n\n\n\n\n\n\n\n\n\n\n
\n
Interwave
\n  Communications International, Ltd.<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
UTStarcom, Inc.<\/p>\n<\/td>\n<\/tr>\n
\n
Depositor<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
Preferred
\n  Beneficiary<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
By:<\/p>\n<\/td>\n
\n
\/s\/ PRISCILA LU<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
By:<\/p>\n<\/td>\n
\n
\/s\/ Hong Lu<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
Name: <\/p>\n<\/td>\n
\n
Priscilla Lu<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
Name: <\/p>\n<\/td>\n
\n
Hong Lu<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
Title: <\/p>\n<\/td>\n
\n
Chief Executive
\n  Officer<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
Title: <\/p>\n<\/td>\n
\n
Chief Executive
\n  Officer<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
Date: <\/p>\n<\/td>\n
\n
September 27,
\n  2002<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
Date: <\/p>\n<\/td>\n
\n
September 27,
\n  2002<\/p>\n<\/td>\n<\/tr>\n<\/table>\n
\n
\n
\n<\/div>\n

<\/p>\n
\n
EXHIBIT B<\/b><\/p>\n
DESCRIPTION OF DEPOSIT
\nMATERIALS<\/b><\/p>\n
\n
Depositor Company Name: interWAVE
\nCommunications International, Ltd.<\/p>\n
\n
Account
\nNumber \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/u><\/p>\n
\n
Product
\nName:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 [***]
\n(Product Name will appear as the
\nExhibit B Name on Account History report)<\/i><\/p>\n
 <\/b><\/p>\n
DEPOSIT
\nMATERIAL DESCRIPTION:<\/b><\/p>\n\n\n\n\n\n\n\n\n\n\n
\n
Quantity<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
Media Type & Size<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
Label Description of
\n  Each Separate Item<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
Disk 3.5\u0094 or _____<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
DAT tape _____mm<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
CD-ROM<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
Data cartridge tape
\n  _____<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
TK 70 or _____ tape<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
Magnetic tape _____<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
Documentation<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
Other____________________<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n<\/table>\n
\n\n\n\n\n
\n
PRODUCT
\n  DESCRIPTION:<\/b><\/p>\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
Environment<\/p>\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n<\/table>\n
\n\n\n\n\n\n\n\n\n
\n
DEPOSIT
\n  MATERIAL INFORMATION:<\/b><\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
Is the media or are any of
\n  the files encrypted? Yes \/ No If yes, please include any passwords and the
\n  decryption tools.<\/p>\n<\/td>\n<\/tr>\n
\n
Encryption tool name<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
Version<\/p>\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
Hardware required<\/p>\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
Software required<\/p>\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
Other required information<\/p>\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n<\/table>\n
\n\n\n\n\n\n\n\n\n\n
\n
I certify for Depositor<\/b> that the above described
\n  Deposit Materials have been transmitted to DSI:<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
DSI<\/b> has inspected and accepted the above
\n  materials (any exceptions are noted above)<\/i>:<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
Signature<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
Signature<\/p>\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
Print Name<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
Print Name<\/p>\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
Date<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
Date Accepted<\/p>\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
Exhibit B#<\/p>\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n<\/table>\n
\n
Send
\nmaterials to: [***]<\/p>\n
\n
\n
\n
\n<\/div>\n

<\/p>\n
\n
EXHIBIT C<\/b><\/p>\n
DESIGNATED
\nCONTACT<\/b><\/p>\n
Account Number ____________________<\/p>\n
\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
\n
Notices, deposit
\n  material returns and communications to Depositor should be addressed to:<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
Invoices to Depositor
\n  should be addressed to:<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
Company Name: <\/p>\n<\/td>\n
\n
Interwave Advanced <\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
Robin Foor <\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Communications, Inc. <\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
Vice President
\n  and General Counsel <\/p>\n<\/td>\n<\/tr>\n
\n
Address:<\/p>\n<\/td>\n
\n
420 Widget Lane <\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
Interwave
\n  Communications, Inc.<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Walnut Creek, CA 94598<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
312 Constitution
\n  Drive,<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
Menlo Park, CA
\n  94025<\/p>\n<\/td>\n<\/tr>\n
\n
Designated Contact:
\n  Kiomars Anvari<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
Tel 650-838-2168<\/p>\n<\/td>\n<\/tr>\n
\n
Telephone: 925-287-4441<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
Contact:<\/p>\n<\/td>\n
\n
Febi Herrera
\n  650-838-2212<\/p>\n<\/td>\n<\/tr>\n
\n
Facsimile: 925-935-8597<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
E-mail: anvarik@gbasecom.com<\/u><\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
P.O.#,
\n  if required<\/b>:<\/p>\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
Verification Contact:
\n  Bob Nakata <\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
E-mail:<\/p>\n<\/td>\n
\n
rfoor@iwv.com<\/u>\u00a0
\n  faquino@iwv.com<\/u><\/p>\n<\/td>\n<\/tr>\n
\n
\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 650-838-2054<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
Notices and
\n  communications to Preferred Beneficiary should be addressed to:<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
Invoices to Preferred
\n  Beneficiary should be addressed to:<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
Company Name:<\/p>\n<\/td>\n
\n
UTStarcom, Inc. <\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
Same<\/p>\n<\/td>\n<\/tr>\n
\n
Address:<\/p>\n<\/td>\n
\n
1275 Harbor Bay Parkway\n  <\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
Alameda, CA\u00a0 94502\u00a0\n  <\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
Designated Contact:<\/p>\n<\/td>\n
\n
Russell Boltwood <\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
Contact:<\/p>\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
Telephone: <\/p>\n<\/td>\n
\n
(510) 864-8800<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
Facsimile: <\/p>\n<\/td>\n
\n
(510) 864-8802<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
P.O.#,
\n  if required<\/b>:<\/p>\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
E-mail:<\/p>\n<\/td>\n
\n
Russell@utstar.com<\/u><\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
E-mail:<\/p>\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
Requests from Depositor
\n  or Preferred Beneficiary to change the designated contact should be given in
\n  writing by the designated contact or an authorized employee of Depositor or
\n  Preferred Beneficiary.<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n<\/tr>\n
\n
Contracts, Deposit
\n  Materials and notices to<\/p>\n
DSI should be addressed
\n  to:<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
Invoice inquiries and
\n  fee remittances to DSI should be addressed to:<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
\n
\n<\/td>\n
\n
\n<\/td>\n<\/tr>\n
\n
DSI Technology Escrow
\n  Services, Inc.<\/p>\n
Contract Administration<\/p>\n
9265 Sky Park Court,
\n  Suite 202<\/p>\n
San Diego, CA\u00a0 92123<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
DSI Technology Escrow
\n  Services, Inc.<\/p>\n
PO Box 45156<\/p>\n
San Francisco, CA\u00a0 94145-0156<\/p>\n<\/td>\n<\/tr>\n
\n
Telephone: (858)
\n  499-1600<\/p>\n
Facsimile: (858)
\n  694-1919<\/p>\n
E-mail: ca@dsiescrow.com<\/u><\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
(858) 499-1636<\/p>\n
(848) 499-1637<\/p>\n<\/td>\n<\/tr>\n
\n
Date:<\/p>\n<\/td>\n
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