{"id":43141,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/agreement-and-plan-of-merger-utstarcom-inc-and-wacos-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-and-plan-of-merger-utstarcom-inc-and-wacos-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/agreement-and-plan-of-merger-utstarcom-inc-and-wacos-inc.html","title":{"rendered":"Agreement and Plan of Merger &#8211; UTStarcom Inc. and WACOS Inc."},"content":{"rendered":"<pre>\n                            AGREEMENT AND PLAN OF MERGER\n\n                                   BY AND BETWEEN\n\n                                  UTSTARCOM, INC.,\n\n                                        AND\n\n                                    WACOS, INC.\n\n                           Dated as of December 14, 1999\n\n\n\n\n\n\n                              TABLE OF CONTENTS\n                                                                                  PAGE\n                                                                                  ----\n                                                                               \nARTICLE I THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1\n     1.1  The Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1\n     1.2  The Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1\n     1.3  Actions at the Closing . . . . . . . . . . . . . . . . . . . . . . . . . . 1\n     1.4  Effect of Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2\n     1.5  Procedure for Issuance of Buyer Shares . . . . . . . . . . . . . . . . . . 3\n     1.6  Closing of Transfer Records. . . . . . . . . . . . . . . . . . . . . . . . 4\n     1.7  No Further Ownership Rights in Company Shares. . . . . . . . . . . . . . . 4\n     1.8  Lost, Stolen or Destroyed Certificates . . . . . . . . . . . . . . . . . . 4\n     1.9  Tax and Accounting Treatment . . . . . . . . . . . . . . . . . . . . . . . 4\n     1.10 Taking of Necessary Action; Further Action . . . . . . . . . . . . . . . . 4\n\nARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY  AND THE\n          STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5\n\n     2.1  Organization of the Company. . . . . . . . . . . . . . . . . . . . . . . . 5\n     2.2  Company Capital Structure. . . . . . . . . . . . . . . . . . . . . . . . . 5\n     2.3  Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6\n     2.4  Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6\n     2.5  Company Financial Statements . . . . . . . . . . . . . . . . . . . . . . . 6\n     2.6  Restrictions on Business Activities. . . . . . . . . . . . . . . . . . . . 7\n     2.7  Title of Properties; Absence of Liens and Encumbrances; \n          Condition of Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . 7\n     2.8  Intellectual Property. . . . . . . . . . . . . . . . . . . . . . . . . . . 7\n     2.9  Interested Party Transactions. . . . . . . . . . . . . . . . . . . . . . . 8\n     2.10 Governmental Authorization . . . . . . . . . . . . . . . . . . . . . . . . 8\n\nARTICLE III REPRESENTATIONS AND WARRANTIES OF BUYER. . . . . . . . . . . . . . . . . 8\n\n     3.1  Organization of the Buyer. . . . . . . . . . . . . . . . . . . . . . . . . 9\n     3.2  Buyer Capital Structure. . . . . . . . . . . . . . . . . . . . . . . . . . 9\n     3.3  Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10\n     3.4  Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10\n     3.5  Buyer Financial Statements . . . . . . . . . . . . . . . . . . . . . . . .10\n     3.6  Compliance with Other Instruments. . . . . . . . . . . . . . . . . . . . .10\n\nARTICLE IV ADDITIONAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . .11\n\n     4.1  Company Stockholder Approval . . . . . . . . . . . . . . . . . . . . . . .11\n     4.2  Access to Information. . . . . . . . . . . . . . . . . . . . . . . . . . .11\n     4.3  Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11\n\n\n                                            -i-\n\n\n\n     4.4  Public Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . .11\n     4.5  Board of Directors of the Company. . . . . . . . . . . . . . . . . . . . .11\n     4.6  Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11\n     4.7  FIRPTA Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . .12\n     4.8  Best Efforts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12\n     4.9  Notification of Certain Matters. . . . . . . . . . . . . . . . . . . . . .12\n     4.10 Additional Documents and Further Assurances. . . . . . . . . . . . . . . .12\n     4.11 Conversion of Company Series A Preferred Stock . . . . . . . . . . . . . .12\n\nARTICLE V CONDITIONS TO THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . .13\n\n     5.1  Conditions to Obligations of Each Party to Effect the Merger13\n     5.2  Additional Conditions to Obligations of the Company and the \n          Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13\n     5.3  Additional Conditions to Obligations of Buyer. . . . . . . . . . . . . . .13\n\nARTICLE VI SURVIVAL OF REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . .14\n\n     6.1  Survival of Representations and Warranties . . . . . . . . . . . . . . . .14\n\nARTICLE VII TERMINATION, AMENDMENT AND WAIVER. . . . . . . . . . . . . . . . . . . .14\n\n     7.1  Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14\n     7.2  Extension; Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . .14\n\nARTICLE VIII GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . .15\n\n     8.1  Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15\n     8.2  Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16\n     8.3  Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16\n     8.4  Entire Agreement; Assignment . . . . . . . . . . . . . . . . . . . . . . .16\n     8.5  Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16\n     8.6  Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16\n     8.7  Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16\n     8.8  Rules of Construction. . . . . . . . . . . . . . . . . . . . . . . . . . .17\n\n\n\n                                    -ii-\n\n\n\n                                  INDEX OF EXHIBITS\n\n\n\nEXHIBIT                DESCRIPTION\n-------                -----------\n                    \nExhibit A              Company Disclosure Schedule\n\nExhibit B              Buyer Disclosure Schedule\n\nExhibit C              Third Amended and Restated Registration Rights Agreement\n\n\n\n\n                                     -iii-\n\n\n\n                             AGREEMENT AND PLAN OF MERGER\n\n       This AGREEMENT AND PLAN OF MERGER (the 'AGREEMENT') is made and entered\ninto as of December 14, 1999 by and between UTStarcom, Inc., a Delaware\ncorporation ('BUYER') and WACOS, Inc., a Delaware corporation ('COMPANY').\n\n                                       RECITALS\n\n       A.     This Agreement contemplates a tax-free merger of the Company with\nand into Buyer in a reorganization pursuant to Section 368(a)(1)(A) of the\nInternal Revenue Code of 1986, as amended (the 'MERGER').\n\n       B.     The Boards of Directors of each of Buyer and Company believe it is\nin the best interests of each company and their respective stockholders that the\nMerger be consummated and, in furtherance thereof, have approved the Merger.\n\n       NOW, THEREFORE, in consideration of the covenants, promises and\nrepresentations set forth herein, and for other good and valuable consideration,\nthe parties agree as follows:\n\n                                     ARTICLE I\n\n                                     THE MERGER\n\n       1.1    THE MERGER.  On and subject to the terms and conditions of this\nAgreement, the Company will merge with and into the Buyer (the 'MERGER') at the\nEffective Time (as defined in Section 1.4(a) below).  The Buyer shall be the\ncorporation surviving the Merger.\n\n       1.2    THE CLOSING.  The closing of the transactions contemplated by this\nAgreement (the 'CLOSING') shall take place at the offices of Wilson Sonsini\nGoodrich &amp; Rosati, Professional Corporation, in Palo Alto, California,\ncommencing at 10:00 a.m. local time on the second business day following the\nsatisfaction or waiver of all conditions to the obligations of the parties to\nconsummate the transactions contemplated hereby (other than conditions with\nrespect to actions the respective parties will take at the Closing itself) or\nsuch other date and time as the parties may mutually determine (the 'CLOSING\nDATE').\n\n       1.3    ACTIONS AT THE CLOSING.  At the Closing:  (i) the Company will\ndeliver to the Buyer the various certificates, instruments, and documents as\nrequired by Section 5.3 below; (ii) the Buyer will deliver to the Company the\nvarious certificates, instruments, and documents as required by Section 5.2\nbelow; (iii) the Buyer and the Company will file an agreement of merger with the\nSecretary of State of the State of California and the Secretary of State of the\nState of Delaware; and (iv) the Buyer will deliver to the stockholders of the\nCompany (the 'STOCKHOLDERS') in the manner provided in \n\n\n\nSection 1.5 below, the certificates evidencing the Buyer Shares (as defined \nbelow) to be issued in the Merger.\n\n       1.4    EFFECT OF MERGER\n\n              (a)    GENERAL.  The Merger shall become effective at the time\n(the 'EFFECTIVE TIME') the Buyer and the Company file the agreement of merger\nwith the Secretary of State of the State of California and the Secretary of\nState of the State of Delaware.  The Merger shall have the effect set forth in\nthe Delaware General Corporation Law and the applicable laws of the State of\nCalifornia.  Without limiting the generality of the foregoing, and subject\nthereto, at the Effective Time, all the property, rights, privileges, powers and\nfranchises of the Company shall vest in Buyer, and all debts, liabilities and\nduties of the Company shall become the debts, liabilities and duties of Buyer. \nThe Buyer may, at any time after the Effective Time, take any action (including\nexecuting and delivering any document) in the name and on behalf of the Company\nin order to carry out and effectuate the transactions contemplated by this\nAgreement.\n\n              (b)    CERTIFICATE OF INCORPORATION.  The Certificate of\nIncorporation of the Buyer in effect at and as of the Effective Time will remain\nthe Certificate of Incorporation of the Buyer without any modification or\namendment resulting from the Merger.\n\n              (c)    BYLAWS.  The Bylaws of the Buyer in effect at and as of the\nEffective Time will remain the Bylaws of the Buyer without any modification or\namendment resulting from the Merger.\n\n              (d)    DIRECTORS AND OFFICERS.  The directors and officers of the\nBuyer in office at and as of the Effective Time will remain the directors and\nofficers of the Buyer (retaining their respective positions and terms of\noffice).\n\n              (e)    CONVERSION OF COMPANY SHARES.  At and as of the Effective\nTime:\n\n                     (i)    Each outstanding share of Common Stock of the\nCompany ('COMPANY COMMON STOCKS') shall be cancelled and extinguished and be\nconverted automatically into the right to receive 0.4498070 shares of Series G\nPreferred Stock, $0.0025 per value, of Buyer ('BUYER SHARES') (the ratio of\n0.4498070 Buyer Shares to one (1) Company Common Stock is referred to herein as\nthe 'COMMON STOCK CONVERSION RATIO').\n\n                     (ii)   Each outstanding share of Series B Preferred Stock\nof the Company ('COMPANY SERIES B SHARES') shall be cancelled and extinguished\nand be converted automatically into the right to receive 0.9335977 Buyer Shares\n(the ratio of 0.9335977 Buyer Shares to one (1) Company Series B Share is\nreferred to herein as the 'SERIES B CONVERSION RATIO')\n\n       The Common Stock Conversion Ratio and the Series B Conversion Ratio shall\nbe subject to equitable adjustment in the event of any stock split, stock\ndividend, reverse stock split, or other change in the capital stock of the Buyer\nprior to the Effective Time.  The number of Buyer Shares \n\n\n                                      -2-\n\n\n\nwhich shall be delivered to each Stockholder at the Closing is as set forth on \nSCHEDULE 2.2(a) attached hereto.  The aggregate number of Buyer Shares issuable \nto the holders of Company Common Stock and Company Series B Shares \n(collectively, the 'COMPANY SHARES') pursuant to this Section 1.4(e) is \nhereinafter referred to as the 'MERGER CONSIDERATION'.  No Company Share shall \nbe deemed to be outstanding or to have any rights other than those set forth \nabove in this Section 1.4(e) after the Effective Time.\n\n              (f)    NO FRACTIONAL SHARES.  No fractional of a share of Buyer\nShares will be issued, but in lieu thereof, each holder of shares of Company\nCapital Stock who would otherwise be entitled to a fraction of a share of Buyer\nShares (after aggregating all fractional shares of Buyer Common Stock to be\nreceived by such holder) shall be entitled to receive from Buyer an amount of\ncash (rounded to the nearest whole cent) equal to the product of (i) such\nfraction, multiplied by (ii) $16.2605.\n\n              (g)    COMPANY STOCK OPTIONS.  At the Effective Time, all options\nto purchase Company Common Stock then outstanding under the Company's 1997 Stock\nPlan (the 'OPTION PLAN') or otherwise shall be assumed by Buyer in accordance\nwith provisions described below:\n\n                     (i)    At the Effective Time, each outstanding option to\npurchase shares of Company Common Stock (each a 'COMPANY OPTION') under the\nOption Plan or otherwise, whether vested or unvested, shall be, in connection\nwith the Merger, assumed by Buyer.  Each Company Option so assumed by Buyer\nunder this Agreement shall continue to have, and be subject to, the same terms\nand conditions set forth in the Option Plan and\/or as provided in the respective\noption agreements governing such Company Option immediately prior to the\nEffective Time, except that such Company Option shall be exercisable for that\nnumber of whole shares of the Buyer's Common Stock equal to the product of the\nnumber of shares of Company Common Stock that were issuable upon exercise of\nsuch Company Option immediately prior to the Effective Time multiplied by\n0.4498070, rounded down (in the case of Company Options granted under the Option\nPlan) to the nearest whole number of shares of the Buyer's Common Stock.\n\n                     (ii)   It is the intention of the parties that the Company \nOptions assumed by Buyer qualify following the Effective Time as incentive \nstock options as defined in Section 422 of the Code to the extent the Company \nOptions qualified as incentive stock options immediately prior to the Effective \nTime.\n\n              (h)    BUYER SHARES.  Each Buyer Share issued and outstanding at \nand as of the Effective Time will remain issued and outstanding.\n\n       1.5    PROCEDURE FOR ISSUANCE OF BUYER SHARES.  \n\n              (a)    Promptly after the Effective Time, Buyer shall make \navailable to the Stockholders of the Company the Buyer Shares issuable to such \nStockholders pursuant to Section 1.4(e) in exchange for all of the outstanding \ncapital stock of the Company. \n\n\n                                      -3-\n\n\n\n              (b)    The Buyer will not pay any dividend or make any \ndistribution on Buyer Shares (with a record date at or after the Effective \nTime) to any Stockholder until such Stockholder surrenders for exchange his \ncertificates which formerly represented Company Shares.  The Buyer instead will \nhold such dividend in trust for the benefit of such Stockholder pending \nsurrender and exchange.  In no event, however, will any Stockholder be entitled \nto any interest or earnings on the dividend or distribution pending receipt.\n\n              (c)    The Buyer shall pay all charges and expenses of issuing \nthe Buyer Shares.\n\n       1.6    CLOSING OF TRANSFER RECORDS.  After the close of business on the \nClosing Date, transfers of Company Shares outstanding prior to the Effective \nTime shall not be made on the stock transfer books of the Company.\n\n       1.7    NO FURTHER OWNERSHIP RIGHTS IN COMPANY SHARES.  All amounts paid \nupon the surrender for exchange of the Company Shares in accordance with the \nterms hereof shall be deemed to have been issued in full satisfaction of all \nrights pertaining to such Company Shares, and there shall be no further \nregistration of transfers on the records of the Company of Company Shares which \nwere outstanding immediately prior to the Effective Time.  If, after the \nEffective Time, certificates are presented to the Buyer for any reason, they \nshall be canceled and the Buyer Shares shall be delivered to the person \nentitled thereto.\n\n       1.8    LOST, STOLEN OR DESTROYED CERTIFICATES.  In the event any \ncertificates evidencing Company Shares shall have been lost, stolen or \ndestroyed, Buyer shall make payment in exchange for such lost, stolen or \ndestroyed certificates, upon the making of an affidavit of that fact by the \nholder thereof, such amount, if any, as may be required pursuant to Section \n1.5; PROVIDED, HOWEVER, that Buyer may, in its sole discretion and as a \ncondition precedent to the issuance thereof, require the owner of such lost, \nstolen or destroyed certificates to deliver an agreement (in form and substance \nsatisfactory to it) to indemnify Buyer against any claim that may be made \nagainst Buyer with respect to the certificates alleged to have been lost, \nstolen or destroyed.\n\n       1.9    TAX AND ACCOUNTING TREATMENT.  The Merger shall constitute a \ntax-free transaction pursuant to Section 368(a)(1)(A) of the Internal Revenue \nCode of 1986, as amended (the 'Code'), and will be treated as a 'purchase' for \nfinancial accounting purposes.\n\n       1.10   TAKING OF NECESSARY ACTION; FURTHER ACTION.  If, at any time \nafter the Effective Time, any further action is necessary or desirable to carry \nout the purposes of this Agreement and to vest the Buyer with full right, title \nand possession to all assets, property, rights, privileges, powers and \nfranchises of the Company, the officers and directors of the Company and Buyer \nare fully authorized in the name of their respective corporations or otherwise \nto take, and will take, all such lawful and necessary and\/or desirable action.\n\n\n                                      -4-\n\n\n\n                                     ARTICLE II\n                                          \n                   REPRESENTATIONS AND WARRANTIES OF THE COMPANY \n \n\n       The Company represents and warrants to Buyer, subject to such exceptions \nas are specifically disclosed in the Disclosure  Schedule attached hereto as \nEXHIBIT A, as follows:\n\n       2.1    ORGANIZATION OF THE COMPANY.  The Company is a corporation duly \norganized, validly existing and in good standing under the laws of the State of \nDelaware.  The Company has the corporate power to own its properties and to \ncarry on its business as now being conducted.  The Company is duly qualified to \ndo business and in good standing as a foreign corporation in each jurisdiction \nin which the failure to be so qualified would have a material adverse effect on \nthe business, assets (including intangible assets), financial condition, \nprospects or results of operations of the Company (hereinafter referred to in \nthis Article II to as a 'Material Adverse Effect').  The Company has delivered \na true and correct copy of its Certificate of Incorporation and Bylaws, each as \namended to date, to Buyer or its counsel.\n\n       2.2    COMPANY CAPITAL STRUCTURE.  \n\n              (a)    The authorized capital of the Company consists of \n24,525,000 shares. 18,000,000 of the shares are designated as Common Stock, \n$0.0001 par value, 10,120,665 shares of which are issued and outstanding \n(assuming conversion of each share of Series A Preferred Stock of Buyer as of \nNovember 30, 1999 into one share of Common Stock).  5,000,000 of the shares are \ndesignated as Series A Preferred Stock, $0.001 par value, no shares of which \nare issued and outstanding (assuming conversion of each share of Series A \nPreferred Stock of Buyer as of November 30, 1999 into one share of Common \nStock). 1,525,000 of the shares are designated as Series B Preferred Stock, \n$0.0001 par value, 868,825 shares of which are issued and outstanding.  All of \nthe capital stock of the Company is held by the persons and in the amounts set \nforth on SCHEDULE 2.2(a).  All outstanding shares of the Company Common Stock \nare duly authorized, validly issued, fully paid and non-assessable and not \nsubject to preemptive rights created by statute, the Certificate of \nIncorporation or Bylaws of the Company or any agreement to which the Company is \na party or by which it is bound.  Any rights of first refusal and rights of \nrepurchase in favor of the Company, if any, shall be waived in full by the \nCompany as provided in Section 5.3 as a condition of Buyer's obligation to \nconsummate the transactions contemplated by this Agreement.\n\n              (b)    The Company has reserved 1,315,500 shares of Common Stock \nfor issuance to employees and consultants pursuant to the Option Plan, of which \n1,315,500 shares are subject to outstanding, unexercised options and no shares \nremain available for future grant.  SCHEDULE 2.2(b) sets forth for each \noutstanding option ('COMPANY OPTIONS'), the name of the holder of such option, \nthe number of shares of Common Stock subject to such option, the exercise price \nof such option and the vesting schedule for such option.  Except for the \nCompany Options described in Schedule 2.2(b), there are no options, warrants, \ncalls, rights, commitments or agreements of any character, written or \n\n\n                                      -5-\n\n\n\noral, to which the Company is a party or by which it is bound obligating the \nCompany to issue, deliver, sell, repurchase or redeem, or cause to be issued, \ndelivered, sold, repurchased or redeemed, any shares of the capital stock of \nthe Company or obligating the Company to grant, extend, accelerate the vesting \nof, change the price of, otherwise amend or enter into any such option, \nwarrant, call, right, commitment or agreement.\n\n       2.3    SUBSIDIARIES.  The Company does not have any subsidiaries or \naffiliated companies and does not otherwise own any shares of capital stock or \nany ownership interest in, or control, directly or indirectly, of any other \ncorporation, partnership, association, joint venture or other business entity.\n\n       2.4    AUTHORITY.  Subject only to the requisite approval of the Merger \nand this Agreement by the Company's Stockholders, the Company has all requisite \ncorporate power and authority to enter into this Agreement and to consummate \nthe transactions contemplated hereby.   The execution and delivery of this \nAgreement and the consummation of the transactions contemplated hereby have \nbeen duly authorized by all necessary corporate action on the part of the \nCompany, subject only to the approval of the Merger by the Company's \nStockholders.  The Company's Board of Directors and the Stockholders have \napproved the Merger and this Agreement as required by applicable law.  This \nAgreement has been duly executed and delivered by the Company and constitutes \nthe valid and binding obligation of the Company, enforceable in accordance with \nits terms except as such enforceability may be limited by principles of public \npolicy and subject to the laws of general application relating to bankruptcy, \ninsolvency and the relief of debtors and rules of law governing specific \nperformance, injunctive relief or other equitable remedies.  Except as set \nforth on SCHEDULE 2.4, subject only to the approval of the Merger and this \nAgreement by the Company's Stockholders, the execution and delivery of this \nAgreement by the Company does not, and, as of the Effective Time, the \nconsummation of the transactions contemplated hereby will not, conflict with, \nor result in any violation of, or default under (with or without notice or \nlapse of time, or both), or give rise to a right of termination, cancellation \nor acceleration of any obligation or loss of any benefit that would have a \nMaterial Adverse Effect under (any such event, a 'Conflict') (i) any provision \nof the Certificate of Incorporation or Bylaws of the Company or (ii) any \nmortgage, indenture, lease, contract or other agreement or instrument, permit, \nconcession, franchise, license, judgment, order, decree, statute, law, \nordinance, rule or regulation applicable to the Company or its properties or \nassets.  No consent, waiver, approval, order or authorization of, or \nregistration, declaration or filing with, any court, administrative agency or \ncommission or other federal, state, county, local or foreign governmental \nauthority, instrumentality, agency or Commission ('Governmental Entity') or any \nthird party (so as not to trigger any Conflict), is required by or with respect \nto the Company in connection with the execution and delivery of this Agreement \nor the consummation of the transactions contemplated hereby, except for the \nfiling of an agreement of merger with the California Secretary of State and the \nDelaware Secretary of State and such other consents, waivers, authorizations, \nfilings, approvals and registrations which are set forth on SCHEDULE 2.4.\n\n       2.5    COMPANY FINANCIAL STATEMENTS.  The Company has provided Buyer \nwith the Company's unaudited balance sheet as of September 30, 1999 and the \nrelated unaudited profit and\n\n\n                                      -6-\n\n\n\nloss statement for the twelve-month period then ended (collectively, the \n'COMPANY FINANCIALS').  The Company Financials are true and correct in all \nmaterial respects and are consistent throughout the periods indicated and \nconsistent with each other.  The Company Financials present fairly the \nfinancial condition and operating results of the Company as of the dates and \nduring the periods indicated therein, subject to normal year-end adjustments, \nwhich will not be material in amount or significance in the aggregate.\n\n       2.6    RESTRICTIONS ON BUSINESS ACTIVITIES.  Other than the restrictions \ncontained in the agreements listed in the Disclosure Schedule, there is no \nagreement (noncompete or otherwise), commitment, judgment, injunction, order or \ndecree to which the Company or any of the Stockholders are a party or otherwise \nbinding upon the Company or any of the Stockholders which has or reasonably \ncould be expected to have the effect of materially prohibiting or impairing any \nbusiness practice of the Company, any acquisition of property (tangible or \nintangible) by the Company, the conduct of business by the Company or the \noperation of the business of the Company by Buyer following the Effective Time.\n\n       2.7    TITLE OF PROPERTIES; ABSENCE OF LIENS AND ENCUMBRANCES; CONDITION \nOF EQUIPMENT.  \n\n              (a)    The Company has good and valid title to, or, in the case \nof leased properties and assets, valid leasehold interests in, all of its \ntangible properties and assets, real, personal and mixed, used or held for use \nin its business, free and clear of any Liens (as defined in Section 2.8(vii)), \nexcept as reflected in the Company Financials or in the Disclosure Schedule and \nexcept for liens for Taxes not yet due and payable and such imperfections of \ntitle and encumbrances, if any, which are not material in character, amount or \nextent, and which do not materially detract from the value, or materially \ninterfere with the present use, of the property subject thereto or affected \nthereby.\n\n              (b)    Except as described in the Disclosure Schedule, the \nequipment (the 'EQUIPMENT') owned or leased by the Company is, taken as a \nwhole, (i) adequate for the conduct of the business of the Company as currently \nconducted and (ii) in good operating condition, regularly and properly \nmaintained, subject to normal wear and tear.\n\n       2.8    INTELLECTUAL PROPERTY.  The Company has sufficient title and \nownership of patents, copyrights, trademarks, trade secrets, and all other \nproprietary rights needed to conduct its business as proposed to be conducted.\n\n              There are no pending infringement claims regarding any third \nparty's patents, copyrights, trademarks, trade secrets or proprietary rights \nand processes against the Company nor, to the best of the Company's knowledge, \nis there any threat thereof or basis therefor.  To the best of the Company's \nknowledge, the Company is not infringing upon or otherwise acting adversely to, \nand will not, by conducting its business as presently conducted, infringe upon \nor otherwise act adversely to, the right or claimed right of any other person \nwith respect to any of the foregoing.  The Company is not aware of any \nviolation by a third party of any of its patents, copyrights, trademarks, trade\n\n\n                                      -7-\n\n\n\nsecrets or other proprietary rights.  The Company has taken reasonable security \nmeasures to protect the secrecy, confidentiality and value of its proprietary \ninformation.\n\n              The Company is not aware that any of its employees is obligated \nunder any contract (including licenses, covenants or commitments of any nature) \nor other agreement, or subject to any judgment, decree or order of any court or \nadministrative agency, that would interfere with the use of the employee's best \nefforts to promote the interests of the Company or that would conflict with the \nCompany's business as proposed to be conducted.  Neither the execution nor \ndelivery of this Agreement, nor the carrying on of the Company's business by \nthe employees of the Company, will, to the Company's knowledge, conflict with \nor result in a breach of the terms, conditions or provisions of, or constitute \na default under, any contract, covenant or instrument under which any of such \nemployees is now obligated.  The Company does not believe it is or will be \nnecessary to utilize any inventions of any of its employees (or people it \ncurrently intends to hire) made prior to their employment by the Company.\n\n       2.9    INTERESTED PARTY TRANSACTIONS.  Except as set forth on SCHEDULE \n2.9, no officer, director or Stockholder of the Company (nor any ancestor, \nsibling, descendant or spouse of any of such persons, or any trust, partnership \nor corporation in which any of such persons has an interest), has, directly or \nindirectly, (i) an interest in any entity which furnished or sold, or furnishes \nor sells, services or products that the Company furnishes or sells, or proposes \nto furnish or sell, or (ii) an interest in any entity that purchases from or \nsells or furnishes to, the Company, any goods or services or (iii) a beneficial \ninterest in any contract or agreement set forth in SCHEDULE 2.9; provided, that \nownership of no more than one percent (1%) of the outstanding voting stock of a \npublicly traded corporation shall not be deemed an 'interest in any entity' for \npurposes of this SECTION 2.9.\n\n       2.10   GOVERNMENTAL AUTHORIZATION.  SCHEDULE 2.10 accurately lists each \nmaterial consent, license, permit, grant or other authorization issued to the \nCompany by a Governmental Entity (i) pursuant to which the Company currently \noperates or holds any interest in any of its properties or (ii) which is \nrequired for the operation of its business or the holding of any such interest \n(herein collectively called 'COMPANY AUTHORIZATIONS'), which Company \nAuthorizations are in full force and effect and constitute all Company \nAuthorizations required to permit the Company to operate or conduct its \nbusiness substantially as it is currently and has been conducted or hold any \ninterest in its properties or assets.\n\n                                    ARTICLE III\n                                          \n                      REPRESENTATIONS AND WARRANTIES OF BUYER\n\n       The Buyer represents and warrants to the Company and each of the \nStockholders, subject to such exceptions as are specifically disclosed in the \ndisclosure schedule attached hereto as EXHIBIT B, as follows:\n\n\n                                      -8-\n\n\n\n       3.1    ORGANIZATION OF THE BUYER.  The Buyer is a corporation duly\norganized, validly existing and in good standing under the laws of the State of\nDelaware.  The Buyer has the corporate power to own its properties and to carry\non its business as it is now being conducted.  The Buyer is duly qualified to do\nbusiness and in good standing as a foreign corporation in each jurisdiction in\nwhich the failure to be so qualified would have a material adverse effect on the\nbusiness, assets (including intangible assets), financial condition, prospects\nor results of operations of the Buyer (hereinafter referred to in this Article\nIII as a 'Material Adverse Effect').  The Buyer has delivered a true and correct\ncopy of its Certificate of Incorporation and Bylaws, each as amended to date, to\nthe Company or its counsel.\n\n       3.2    BUYER CAPITAL STRUCTURE.\n\n              (a)    The authorized capital of the Company consists of\n121,000,000 shares.  71,400,000 of the shares are designated as Common Stock,\n$0.0025 par value, of which 4,410,394 shares are issued and outstanding. \n49,600,000 of the shares are designated as Preferred Stock, $0.0025 par value,\n2,000,000 of the shares are designated as Series A Preferred Stock, of which\n1,425,000 shares are issued and outstanding, 8,000,000 of the shares are\ndesignated as Series B Preferred Stock, of which 7,246,376 shares are issued and\noutstanding, 7,000,000 of the shares are designated as Series C Preferred Stock,\nof which 6,794,528 shares are issued and outstanding, 4,100,000 of the shares\nare designated as Series D Preferred Stock, of which 4,016,064 shares are issued\nand outstanding, 19,000,000 of the shares are designated as Series E Preferred\nStock, of which 10,061,185 shares of which are issued and outstanding, 4,000,000\nof the shares are designated as Series F Preferred Stock, of which 3,076,053 are\nissued and outstanding (assuming the sale and issuance of 922,816 shares between\nDecember 1, 1999 and the Effective Time) and 5,500,000 of the shares are\ndesignated as Series G Preferred Stock, of which no shares are issued and\noutstanding.  All outstanding shares of Buyer are duly authorized, validly\nissued, fully paid and non-assessable and are not subject to preemptive rights\ncreated by statute, the Certificate of Incorporation or Bylaws of the Buyer or\nany agreement to which the Buyer is a party or by which it is bound.  The Buyer\nShares, when issued in compliance with the provisions of this Agreement, will be\nvalidly issued, fully paid and nonassessable and will have the rights,\npreferences and  privileges described in the Certificate of Incorporation of\nBuyer.  The Buyer Shares will be free of any liens or encumbrances, other than\nany liens or encumbrances created by or imposed upon the holders thereof through\nno action of the Buyer; provided, however, that the Buyer Shares will be subject\nto restrictions on transfer under state and\/or federal securities laws.  The\nBuyer Shares are not subject to any preemptive rights, rights of first refusal,\nStockholder agreement or voting agreement.\n\n       The Buyer has reserved 810,164 shares of Common Stock for issuance to\nemployees and consultants pursuant to its 1992 Omnibus Equity Incentive Plan\n('1992 PLAN'), of which 21,344 shares are subject to outstanding , unexercised\noptions, and none of which remain available for grant. The Buyer also has\nreserved 3,355,032 shares of Common Stock for issuance to employees and\nconsultants pursuant to its 1995 Stock Plan ('1995 PLAN'), of which 3,098,488\nshares are subject to outstanding , unexercised options, and none of which\nremain available for grant. The Buyer also has reserved 3,657,509 shares of\nCommon Stock for issuance to employees and consultants pursuant to\n\n\n                                      -9-\n\n\nits 1997 Stock Plan ('1997 PLAN'), of which 2,531,610 shares are subject to \noutstanding, unexercised options (not including options to be granted by \nBuyer in connection with this Agreement and the transactions contemplated \nhereby), and 1,114,727 of which remain available for grant.  The Buyer has \nreserved 266,000 shares of Common Stock for issuance upon the exercise of \noutstanding warrants.\n\n              (b)    Except for the warrants and options outstanding under the\n1992 Plan, the 1995 Plan, the 1997 Plan and the options to be issued by Buyer in\nconnection with this Agreement and the transactions contemplated hereby, there\nare no options, warrants, calls, rights, commitments or agreements of any\ncharacter, written or oral, to which the Buyer is a party or by which it is\nbound obligating the Buyer to issue, deliver, sell, repurchase or redeem, or\ncause to be issued, delivered, sold, repurchased or redeemed, any shares of the\ncapital stock of the Buyer or obligating the Buyer to grant, extend, accelerate\nthe vesting of, change the price of, otherwise amend or enter into any such\noption, warrant, call, right, commitment or agreement. \n\n       3.3    SUBSIDIARIES.  The Buyer has provided the Company with a list of\nits subsidiaries and affiliated companies.\n\n       3.4    AUTHORITY.  Buyer has all requisite corporate power and authority\nto enter in this Agreement and to consummate the transactions contemplated\nhereby.  The execution and delivery of this Agreement and the consummation of\nthe transactions contemplated hereby have been duly authorized by all necessary\ncorporate action on the part of the Buyer.  The Buyer's Board of Directors has\nunanimously approved the Merger and this Agreement.  This Agreement has been\nduly executed and delivered by the Buyer and constitutes the valid and binding\nobligation of the Buyer, enforceable in accordance with its terms except as such\nenforceability may be limited by principles of public policy and subject to the\nlaws of general application relating to bankruptcy, insolvency and the relief of\ndebtors and rules of law governing specific performance, injunctive relief or\nother equitable remedies. \n\n       3.5    BUYER FINANCIAL STATEMENTS.  Buyer has provided the Company with\nthe Buyer's unaudited balance sheet as of September 30, 1999 and the related\nunaudited statements of operations for the twelve-month period then ended\n(collectively, the 'BUYER FINANCIALS').  The Buyer Financials are true and\ncorrect in all material respects and are consistent throughout the periods\nindicated and consistent with each other.  The Buyer Financials present fairly\nthe financial condition and operating results of the Buyer as of the dates and\nduring the periods indicated therein, subject to normal year-end adjustments,\nwhich will not be material in amount or significance in the aggregate.\n\n       3.6    COMPLIANCE WITH OTHER INSTRUMENTS.  The execution, delivery and\nperformance of, and compliance with, this Agreement, and the issuance of the\nBuyer Shares will not result in any material violation of, or conflict with, or\nconstitute a material default under, the Buyer's Certificate of Incorporation or\nBylaws.\n\n\n                                     -10-\n\n\n                                  ARTICLE IV\n\n                             ADDITIONAL AGREEMENTS\n\n       4.1    COMPANY STOCKHOLDER APPROVAL.  The Company has submitted this\nAgreement and the transactions contemplated hereby to its stockholders for\napproval and adoption as provided by  the applicable laws of the State of\nCalifornia and the State of Delaware.  The Company has obtained the approval of\nholders of at least 90% of the outstanding equity securities of the Company in\nfavor of the Merger and this Agreement and to enable the Closing to occur as\npromptly as practicable.  The materials submitted to the Company's Stockholders\nshall include information regarding the Company, the terms of the Merger and\nthis Agreement and the unanimous recommendation of the Board of Directors of the\nCompany in favor of the Merger and this Agreement.\n\n       4.2    ACCESS TO INFORMATION.  The Company shall afford Buyer and its\naccountants, counsel and other representatives, reasonable access during normal\nbusiness hours during the period prior to the Effective Time to (a) all of the\nCompany's properties, books, contracts, commitments and records, and (b) all\nother information concerning the business, properties and personnel of the\nCompany as Buyer may reasonably request.  The Company agrees to provide to Buyer\nand its accountants, counsel and other representatives copies of internal\nfinancial statements promptly upon request.  No information or knowledge\nobtained in any investigation pursuant to this Section 4.2 shall affect or be\ndeemed to modify any representation or warranty contained herein or the\nconditions to the obligations of the parties to consummate the Merger.\n\n       4.3    EXPENSES.  Whether or not the Merger is consummated, all fees and\nexpenses incurred in connection with the Merger including, without limitation,\nall legal, accounting, financial advisory, consulting and all other fees and\nexpenses of third parties ('THIRD PARTY EXPENSES') incurred by a party in\nconnection with the negotiation and effectuation of the terms and conditions of\nthis Agreement and the transactions contemplated hereby, shall be the obligation\nof the respective party incurring such fees and expenses.\n\n       4.4    PUBLIC DISCLOSURE.  Unless otherwise required by law, prior to the\nEffective Time, no disclosure (whether or not in response to an inquiry) of the\nsubject matter of this Agreement shall be made by any party hereto unless\napproved by Buyer and the Company prior to release, provided that such approval\nshall not be unreasonably withheld.\n\n       4.5    BOARD OF DIRECTORS OF THE COMPANY.  Effective as of the Closing\nDate, the members of the Company's Board of Directors shall tender their\nresignations from the Board.\n\n       4.6    CONSENTS.  The Company shall use its best efforts to obtain the\nconsents, waivers and approvals under any of the Contracts as may be required in\nconnection with the Merger (all of such consents and approvals are set forth in\nSCHEDULE 2.4) so as to preserve all rights of, and benefits to, the Company\nthereunder.\n\n\n                                     -11-\n\n\n       4.7    FIRPTA COMPLIANCE.  On the Closing Date, the Company shall deliver\nto Buyer a properly executed statement in a form reasonably acceptable to Buyer\nfor purposes of satisfying Buyer's obligations under Treasury Regulation\nSection 1.1445-2(c)(3).\n\n       4.8    BEST EFFORTS.  Subject to the terms and conditions provided in\nthis Agreement, each of the parties hereto shall use its best efforts to take\npromptly, or cause to be taken, all actions, and to do promptly, or cause to be\ndone, all things necessary, proper or advisable under applicable laws and\nregulations to consummate and make effective the transactions contemplated\nhereby, to obtain all necessary waivers, consents and approvals and to effect\nall necessary registrations and filings and to remove any injunctions or other\nimpediments or delays, legal or otherwise, in order to consummate and make\neffective the transactions contemplated by this Agreement for the purpose of\nsecuring to the parties hereto the benefits contemplated by this Agreement;\nprovided that Buyer shall not be required to agree to any divestiture by Buyer\nor the Company or any of Buyer's subsidiaries or affiliates of shares of capital\nstock or of any business, assets or property of Buyer or its subsidiaries or\naffiliates or the Company or its affiliates, or the imposition of any material\nlimitation on the ability of any of them to conduct their businesses or to own\nor exercise control of such assets, properties and stock.\n\n       4.9    NOTIFICATION OF CERTAIN MATTERS.  The Company shall give prompt\nnotice to Buyer, and Buyer shall give prompt notice to the Company, of (i) the\noccurrence or non-occurrence of any event, the occurrence or non-occurrence of\nwhich is likely to cause any representation or warranty of the Company and\nBuyer, respectively, contained in this Agreement to be untrue or inaccurate at\nor prior to the Effective Time and (ii) any failure of the Company or Buyer, as\nthe case may be, to comply with or satisfy any covenant, condition or agreement\nto be complied with or satisfied by it hereunder; PROVIDED, HOWEVER, that the\ndelivery of any notice pursuant to this Section 4.9 shall not limit or otherwise\naffect any remedies available to the party receiving such notice.\n\n       4.10   ADDITIONAL DOCUMENTS AND FURTHER ASSURANCES.  Each party hereto,\nat the request of another party hereto, shall execute and deliver such other\ninstruments and do and perform such other acts and things as may be necessary or\ndesirable for effecting completely the consummation of this Agreement and the\ntransactions contemplated hereby.\n\n       4.11   CONVERSION OF COMPANY SERIES A PREFERRED STOCK.  Prior to the\nEffective Date, each then outstanding share of Series A Preferred Stock of the\nCompany ('COMPANY SERIES A STOCK') shall be canceled and extinguished and\nconverted into one (1) share of Company Common Stock (the 'PRELIMINARY\nCONVERSION').  No Series A Preferred Stock of the Company shall be deemed\noutstanding after the Preliminary Conversion.\n\n\n                                     -12-\n\n\n                                   ARTICLE V\n\n                            CONDITIONS TO THE MERGER\n\n       5.1    CONDITIONS TO OBLIGATIONS OF EACH PARTY TO EFFECT THE MERGER.  The\nrespective obligations of each party to this Agreement to effect the Merger\nshall be subject to the satisfaction at or prior to the Effective Time of the\nfollowing condition:  No temporary restraining order, preliminary or permanent\ninjunction or other order issued by any court of competent jurisdiction or other\nlegal restraint or prohibition preventing the consummation of the Merger shall\nbe in effect, nor shall any proceeding brought by an administrative agency or\ncommission or other governmental authority or instrumentality, domestic or\nforeign, seeking any of the foregoing be pending; nor shall there be any action\ntaken, or any statute, rule, regulation or order enacted, entered, enforced or\ndeemed applicable to the Merger, which makes the consummation of the Merger\nillegal.\n\n       5.2    ADDITIONAL CONDITIONS TO OBLIGATIONS OF THE COMPANY.  The\nobligations of the Company to consummate and effect this Agreement and the\ntransactions contemplated hereby shall be subject to the satisfaction at or\nprior to the Effective Time of the following conditions, any of which may be\nwaived, in writing, exclusively by the Company:  The representations and\nwarranties of Buyer in this Agreement shall be true and correct in all material\nrespects on and as of the Effective Time as though such representations and\nwarranties were made on and as of such time and each of Buyer shall have\nperformed and complied with all covenants, obligations and conditions of this\nAgreement required to be performed and complied with by it as of the Effective\nTime.\n\n       5.3    ADDITIONAL CONDITIONS TO OBLIGATIONS OF BUYER.  The obligations of\nBuyer to consummate and effect this Agreement and the transactions contemplated\nhereby shall be subject to the satisfaction at or prior to the Effective Time of\neach of the following conditions, any of which may be waived, in writing,\nexclusively by Buyer:\n\n              (a)    REPRESENTATIONS, WARRANTIES AND COVENANTS.  The\nrepresentations and warranties of the Company in this Agreement shall be true\nand correct in all material respects on and as of the Effective Time as though\nsuch representations and warranties were made on and as of such time and the\nCompany shall have performed and complied with all covenants, obligations and\nconditions of this Agreement required to be performed and complied with by it as\nof the Effective Time.\n\n              (b)    NO INJUNCTIONS OR RESTRAINTS ON CONDUCT OF BUSINESS.  No\ntemporary restraining order, preliminary or permanent injunction or other order\nissued by any court of competent jurisdiction or other legal or regulatory\nrestraint or provision challenging Buyer's proposed acquisition of the Company,\nor limiting or restricting Buyer's conduct or operation of the business of the\nCompany (or its own business) following the Merger shall be in effect, nor shall\nany proceeding brought by an administrative agency or commission or other\ngovernmental authority or instrumentality, domestic or foreign, seeking any of\nthe foregoing be pending.\n\n\n                                     -13-\n\n\n              (c)    NO MATERIAL ADVERSE CHANGES.  There shall not have occurred\nany material adverse change in the business, assets (including intangible\nassets), results of operations, liabilities (contingent or accrued) or financial\ncondition of the Company.\n\n              (d)    COMPANY STOCKHOLDER APPROVAL.  This Agreement and the\nMerger shall have been approved and adopted by the Company's Stockholders\nholding at least 90% of the equity securities of the Company.\n\n              (e)    LITIGATION.  There shall be no action, suit, claim or\nproceeding of any nature pending, or overtly threatened, against the Buyer or\nthe Company, their respective properties or any of their officers or directors,\narising out of, or in any way connected with, the Merger or the other\ntransactions contemplated by the terms of this Agreement.\n\n              (f)    SURRENDER OF COMPANY STOCK CERTIFICATES.  Each of the\nCompany Stockholders shall have surrendered for exchange his certificates which\nformerly represented Company Shares (unless the Stockholder makes an affidavit\npursuant to Section 1.8).\n\n              (g)    REGISTRATION RIGHT AGREEMENT.  Each of the Company\nStockholders receiving Buyer Shares shall have executed the Third Amended and\nRestated Rights Agreement in the form attached as EXHIBIT C hereto.\n\n                                   ARTICLE VI\n\n                   SURVIVAL OF REPRESENTATIONS AND WARRANTIES\n\n       6.1    SURVIVAL OF REPRESENTATIONS AND WARRANTIES.  All representations\nand warranties made by the Company and Buyer in this Agreement or in any\ninstrument delivered pursuant to this Agreement shall survive the Merger and\ncontinue until 12 months following the Effective Time (the 'Survival Period').\n\n                                  ARTICLE VII\n\n                        TERMINATION, AMENDMENT AND WAIVER\n\n       7.1    AMENDMENT.  Except as is otherwise required by applicable law\nafter the stockholders of the Company approve this Agreement, this Agreement may\nbe amended by the parties hereto at any time by execution of an instrument in\nwriting signed on behalf of each of the parties hereto.\n\n       7.2    EXTENSION; WAIVER.  At any time prior to the Effective Time,\nBuyer, on the one hand, and the Company, on the other, may, to the extent\nlegally allowed, (i) extend the time for the performance of any of the\nobligations of the other party hereto, (ii) waive any inaccuracies in the\nrepresentations and warranties made to such party contained herein or in any\ndocument delivered\n\n\n                                     -14-\n\n\npursuant hereto, and (iii) waive compliance with any of the agreements, \ncovenants or conditions for the benefit of such party contained herein.  Any \nagreement on the part of a party hereto to any such extension or waiver shall \nbe valid only if set forth in an instrument in writing signed on behalf of \nsuch party.\n\n                                  ARTICLE VIII\n\n                               GENERAL PROVISIONS\n\n       8.1    NOTICES.  All notices and other communications hereunder shall be\nin writing and shall be deemed given if delivered personally or by commercial\ndelivery service, or mailed by registered or certified mail (return receipt\nrequested) or sent via facsimile (with acknowledgment of complete transmission)\nto the parties at the following addresses (or at such other address for a party\nas shall be specified by like notice):\n\n              (a)    if to Buyer, to:\n\n                     UTStarcom, Inc.\n                     1275 Harbor Bay Parkway\n                     Suite 100\n                     Alameda, California  94502\n                     Attention:  Hong Lu\n                     Facsimile No.:  (510) 864-8802\n\n                     with a copy to:\n\n                     Wilson Sonsini Goodrich &amp; Rosati, Professional Corporation\n                     650 Page Mill Road\n                     Palo Alto, California 94304-1050\n                     Attention:  Carmen Chang, Esq.\n                     Facsimile No.:  (650) 493-6811\n\n              (b)    if to the Company or Company stockholders, to:\n\n                     WACOS, Inc.\n                     1275 Harbor Bay Parkway\n                     Suite 100\n                     Alameda, California  94502\n                     Attention:  Hong Lu\n                     Facsimile No.:  (510) 864-8802\n\n\n                                     -15-\n\n\n                     with a copy to:\n\n                     McCutchen, Doyle, Brown &amp; Enersen, LLP\n                     3150 Porter Drive\n                     Palo Alto, California  94304\n                     Attention:  Edward S. Merrill, Esq.\n                     Facsimile No.: (650) 849-4800\n\n       8.2    INTERPRETATION.  The words 'include,' 'includes' and 'including'\nwhen used herein shall be deemed in each case to be followed by the words\n'without limitation.'  The table of contents and headings contained in this\nAgreement are for reference purposes only and shall not affect in any way the\nmeaning or interpretation of this Agreement.\n\n       8.3    COUNTERPARTS.  This Agreement may be executed in one or more\ncounterparts, all of which shall be considered one and the same agreement and\nshall become effective when one or more counterparts have been signed by each of\nthe parties and delivered to the other party, it being understood that all\nparties need not sign the same counterpart.\n\n       8.4    ENTIRE AGREEMENT; ASSIGNMENT.  This Agreement, the schedules and\nexhibits hereto, and the documents and instruments and other agreements among\nthe parties hereto referenced herein:  (a) constitute the entire agreement among\nthe parties with respect to the subject matter hereof and supersede all prior\nagreements and understandings, both written and oral, among the parties with\nrespect to the subject matter hereof; (b) are not intended to confer upon any\nother person any rights or remedies hereunder; and (c) shall not be assigned by\noperation of law or otherwise except as otherwise specifically provided, except\nthat Buyer may assign its respective rights and delegate its respective\nobligations hereunder to their respective affiliates and any successors.\n\n       8.5    SEVERABILITY.  In the event that any provision of this Agreement\nor the application thereof, becomes or is declared by a court of competent\njurisdiction to be illegal, void or unenforceable, the remainder of this\nAgreement will continue in full force and effect and the application of such\nprovision to other persons or circumstances will be interpreted so as reasonably\nto effect the intent of the parties hereto.  The parties further agree to\nreplace such void or unenforceable provision of this Agreement with a valid and\nenforceable provision that will achieve, to the extent possible, the economic,\nbusiness and other purposes of such void or unenforceable provision.\n\n       8.6    OTHER REMEDIES.  Except as otherwise provided herein, any and all\nremedies herein expressly conferred upon a party will be deemed cumulative with\nand not exclusive of any other remedy conferred hereby, or by law or equity upon\nsuch party, and the exercise by a party of any one remedy will not preclude the\nexercise of any other remedy.\n\n       8.7    GOVERNING LAW.  This Agreement shall be governed by and construed\nin accordance with the laws of the State of California, regardless of the laws\nthat might otherwise govern under applicable principles of conflicts of laws\nthereof.\n\n\n                                     -16-\n\n\n       8.8    RULES OF CONSTRUCTION.  The parties hereto agree that they have\nbeen represented by counsel during the negotiation and execution of this\nAgreement and, therefore, waive the application of any law, regulation, holding\nor rule of construction providing that ambiguities in an agreement or other\ndocument will be construed against the party drafting such agreement or\ndocument.\n\n\n                                     -17-\n\n\n       IN WITNESS WHEREOF, Buyer and the Company have caused this Agreement to\nbe signed by their duly authorized respective officers, all as of the date first\nwritten above.\n\nUTSTARCOM, INC.                        WACOS, INC.\n\/s\/ Hong Lu                            \/s\/ Hong Lu\n---------------------------------      ------------------------------------\nHong Lu                                Hong Lu\nPresident                              President\n\n\n                                     -18-\n\n\n\n                                   EXHIBIT A\n\n                                   [Omitted]\n\n\n                                     -19-\n\n\n\n                                   EXHIBIT B\n\n\n\nNot applicable.\n\n\n                                     -20-\n\n\n\n                                   EXHIBIT C\n\n                                   [Omitted]\n\n\n                                     -21-\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9205],"corporate_contracts_industries":[9516],"corporate_contracts_types":[9622,9626],"class_list":["post-43141","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-utstarcom-inc","corporate_contracts_industries-telecommunications__equipment","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43141","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43141"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43141"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43141"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43141"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}