{"id":38635,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/change-of-control-severance-agreement-utstarcom-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"change-of-control-severance-agreement-utstarcom-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/change-of-control-severance-agreement-utstarcom-inc.html","title":{"rendered":"Change of Control Severance Agreement – UTStarcom Inc."},"content":{"rendered":"
UTSTARCOM, INC.<\/b><\/p>\n\n
CHANGE OF CONTROL\nSEVERANCE AGREEMENT<\/b><\/p>\n\n
This Change of Control Severance Agreement (the \u0093Agreement\u0094) is made\nand entered into effective as of April 12, 2002 (the \u0093Effective Date\u0094), by and\nbetween Michael J. Sophie (the \u0093Employee\u0094) and UTStarcom, Inc., a Delaware\ncorporation (the \u0093Company\u0094).\u00a0 Certain\ncapitalized terms used in this Agreement are defined in Section 1 below.<\/p>\n\n
R E C I T A L S<\/u><\/p>\n\n
A.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 It is expected that\nthe Company from time to time will consider the possibility of a Change of\nControl.\u00a0 The Board of Directors of the\nas Company (the \u0093Board\u0094) recognizes that such consideration can be a\ndistraction to the Employee and can cause the Employee to consider alternative\nemployment opportunities.<\/p>\n\n
B.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Board believes\nthat it is in the best interests of the Company and its shareholders to provide\nthe Employee with an incentive to continue his employment and to maximize the\nvalue of the Company upon a Change of Control for the benefit of its\nshareholders.<\/p>\n\n
C.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In order to provide\nthe Employee with enhanced financial security and sufficient encouragement to\nremain with the Company notwithstanding the possibility of a Change of Control,\nthe Board believes that it is imperative to provide the Employee with certain\nseverance benefits upon the Employee\u0092s termination of employment following a\nChange of Control.<\/p>\n\n
AGREEMENT<\/u><\/p>\n\n
In consideration of the mutual covenants herein contained and the\ncontinued employment of Employee by the Company, the parties agree as follows:<\/p>\n\n
1.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Definition\nof Terms<\/u>.\u00a0 The following terms\nreferred to in this Agreement shall have the following meanings:<\/p>\n\n
(a)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Cause<\/u>.\u00a0 \u0093Cause\u0094 shall mean (i) any act of personal\ndishonesty taken by the Employee in connection with his responsibilities as an\nemployee which is intended to result in substantial personal enrichment of the\nEmployee,\u00a0 (ii) Employee\u0092s conviction of\na felony which the Board reasonably believes has had or will have a material\ndetrimental effect on the Company\u0092s reputation or business, (iii) a willful act\nby the Employee which constitutes misconduct and is injurious to the Company,\nand (iv) continued willful violations by the Employee of the Employee\u0092s\nobligations to the Company after there has been delivered to the Employee a\nwritten demand for performance from the Company which describes the basis for\nthe Company\u0092s belief that the Employee has not substantially performed his\nduties.<\/p>\n\n
(b)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Change\nof Control<\/u>.\u00a0 \u0093Change of Control\u0094\nshall mean the occurrence of any of the following events:<\/p>\n\n\n
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(i)\u00a0\u00a0\u00a0 the\napproval by shareholders of the Company of a merger or consolidation of the\nCompany with any other corporation, other than a merger or consolidation which\nwould result in the voting securities of the Company outstanding immediately\nprior thereto continuing to represent (either by remaining outstanding or by\nbeing converted into voting securities of the surviving entity) more than fifty\npercent (50%) of the total voting power represented by the voting securities of\nthe Company or such surviving entity outstanding immediately after such merger\nor consolidation;<\/p>\n\n
(ii)\u00a0\u00a0 the\napproval by the shareholders of the Company of a plan of complete liquidation\nof the Company or an agreement for the sale or disposition by the Company of\nall or substantially all of the Company\u0092s assets;<\/p>\n\n
(iii)\u00a0 any\n\u0093person\u0094 (as such term is used in Sections 13(d) and 14(d) of the\nSecurities Exchange Act of 1934, as amended) becoming the \u0093beneficial owner\u0094\n(as defined in Rule 13d-3 under said Act), directly or indirectly, of\nsecurities of the Company representing 50% or more of the total voting power\nrepresented by the Company\u0092s then outstanding voting securities; or<\/p>\n\n
(iv)\u00a0 a change in\nthe composition of the Board, as a result of which fewer than a majority of the\ndirectors are Incumbent Directors.\u00a0\n\u0093Incumbent Directors\u0094 shall mean directors who either (A) are directors\nof the Company as of the date hereof, or (B) are elected, or nominated for\nelection, to the Board with the affirmative votes of at least a majority of\nthose directors whose election or nomination was not in connection with any\ntransactions described in subsections (i), (ii), or (iii) or in connection with\nan actual or threatened proxy contest relating to the election of directors of\nthe Company.<\/p>\n\n
(c)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Involuntary\nTermination<\/u>.\u00a0 \u0093Involuntary\nTermination\u0094 shall mean (i) without the Employee\u0092s express written\nconsent, a significant reduction of the Employee\u0092s duties, position or\nresponsibilities relative to the Employee\u0092s duties, position or\nresponsibilities in effect immediately prior to such reduction, or the removal\nof the Employee from such position, duties and responsibilities, unless the\nEmployee is provided with comparable duties, position and responsibilities (as,\nfor example, following a Change of Control, the Chief Financial Officer of the\nCompany is made the Chief Financial Officer of the acquiring entity);\n(ii) without the Employee\u0092s express written consent, a substantial\nreduction, without good business reasons, of the facilities and perquisites\n(including office space and location) available to the Employee immediately\nprior to such reduction; (iii) a reduction by the Company of the\nEmployee\u0092s base salary as in effect immediately prior to such reduction;\n(iv) a material reduction by the Company in the kind or level of employee\nbenefits to which the Employee is entitled immediately prior to such reduction\nwith the result that the Employee\u0092s overall benefits package is significantly\nreduced; (v) without the Employee\u0092s express written consent, the\nrelocation of the Employee to a facility or a location more than fifty (50)\nmiles from his current location; (vi) any purported termination of the\nEmployee by the Company which is not effected for Cause or for which the\ngrounds relied upon are not valid; or (vii) the failure of the Company to\nobtain the assumption of this Agreement by any successors contemplated in\nSection 6 below.<\/p>\n\n
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(d)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Termination\nDate<\/u>.\u00a0 \u0093Termination Date\u0094 shall mean\nthe effective date of any notice of termination delivered by one party to the\nother hereunder.<\/p>\n\n
2.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Term\nof Agreement<\/u>.\u00a0 This Agreement shall\nterminate upon the date that all obligations of the parties hereto under this\nAgreement have been satisfied or, if earlier, on the date, prior to a Change of\nControl, Employee is no longer employed by the Company.<\/p>\n\n
3.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 At-Will\nEmployment<\/u>.\u00a0 The Company and the\nEmployee acknowledge that the Employee\u0092s employment is and shall continue to be\nat-will, as defined under applicable law.\u00a0\nIf the Employee\u0092s employment terminates for any reason, the Employee\nshall not be entitled to any payments, benefits, damages, awards or\ncompensation other than as provided by this Agreement, or as may otherwise be\nestablished under the Company\u0092s then existing employee benefit plans or\npolicies at the time of termination.<\/p>\n\n
4.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Severance\nBenefits<\/u>.<\/p>\n\n
(a)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Termination\nFollowing A Change of Control<\/u>.\u00a0 If\nthe Employee\u0092s employment with the Company terminates as a result of an\nInvoluntary Termination at any time within twelve (12) months after a Change of\nControl, Employee shall be entitled to the following severance benefits:<\/p>\n\n
(i)\u00a0\u00a0\u00a0 Twenty-four\n(24) months of Employee\u0092s base salary as in effect as of the date of such\ntermination, less applicable withholding, payable in a lump sum within thirty\n(30) days of the Involuntary Termination;<\/p>\n\n
(ii)\u00a0\u00a0 one hundred\npercent (100%) of Employee\u0092s bonus for the year in which the termination\noccurs;<\/p>\n\n
(iii)\u00a0 all stock\noptions granted by the Company to the Employee prior to the Change of Control\nshall become fully vested and exercisable as of the date of the termination to the\nextent such stock options are outstanding and unexercisable at the time of such\ntermination and all stock subject to a right of repurchase by the Company (or\nits successor) that was purchased prior to the Change of Control shall have\nsuch right of repurchase lapse with respect to all of the shares;<\/p>\n\n
(iv)\u00a0 <\/b>the same level of health (i.e., medical, vision and\ndental) coverage and benefits as in effect for the Employee on the day\nimmediately preceding the day of the Employee\u0092s termination of employment;\nprovided, however, that (i) the Employee constitutes a qualified beneficiary,\nas defined in Section 4980B(g)(1) of the Internal Revenue Code of 1986, as\namended; and\u00a0 (ii) Employee elects\ncontinuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation\nAct of 1985, as amended (\u0093COBRA\u0094), within the time period prescribed pursuant\nto COBRA.\u00a0 The Company shall continue to\nprovide Employee with health coverage until the earlier of (i) the date\nEmployee is no longer eligible to receive continuation coverage pursuant to\nCOBRA, or (ii) twelve (12) months from the termination date.<\/p>\n\n
(b)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Termination\nApart from a Change of Control<\/u>.\u00a0 If\nthe Employee\u0092s employment with the Company terminates other than as a result of\nan Involuntary Termination within the twelve<\/p>\n\n
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\u00a0(12) months\nfollowing a Change of Control, then the Employee shall not be entitled to\nreceive severance or other benefits hereunder, but may be eligible for those\nbenefits (if any) as may then be established under the Company\u0092s then existing\nseverance and benefits plans and policies at the time of such termination.<\/p>\n\n
(c)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Accrued\nWages and Vacation; Expenses<\/u>.\u00a0\nWithout regard to the reason for, or the timing of, Employee\u0092s\ntermination of employment:\u00a0 (i) the\nCompany shall pay the Employee any unpaid base salary due for periods prior to\nthe Termination Date; (ii) the Company shall pay the Employee all of the\nEmployee\u0092s accrued and unused vacation through the Termination Date; and\n(iii) following submission of proper expense reports by the Employee, the\nCompany shall reimburse the Employee for all expenses reasonably and\nnecessarily incurred by the Employee in connection with the business of the\nCompany prior to the Termination Date.\u00a0\nThese payments shall be made promptly upon termination and within the\nperiod of time mandated by law.<\/p>\n\n
5.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Limitation\non Payments<\/u>.\u00a0 In the event that the\nseverance and other benefits provided for in this Agreement or otherwise\npayable to the Employee (i) constitute \u0093parachute payments\u0094 within the\nmeaning of Section 280G of the Code, and (ii) would be subject to the\nexcise tax imposed by Section 4999 of the Code (the \u0093Excise Tax\u0094), then\nEmployee\u0092s benefits under this Agreement shall be either<\/p>\n\n
(a)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 delivered\nin full, or<\/p>\n\n
(b)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 delivered\nas to such lesser extent which would result in no portion of such benefits\nbeing subject to the Excise Tax,<\/p>\n\n
whichever of the foregoing amounts, taking into\naccount the applicable federal, state and local income taxes and the Excise\nTax, results in the receipt by Employee on an after-tax basis, of the greatest\namount of benefits, notwithstanding that all or some portion of such benefits\nmay be taxable under Section 4999 of the Code.<\/p>\n\n
Unless the Company and the Employee otherwise agree in writing, any\ndetermination required under this Section shall be made in writing by the\nCompany\u0092s independent public accountants (the \u0093Accountants\u0094), whose\ndetermination shall be conclusive and binding upon the Employee and the Company\nfor all purposes.\u00a0 For purposes of\nmaking the calculations required by this Section, the Accountants may make\nreasonable assumptions and approximations concerning applicable taxes and may\nrely on reasonable, good faith interpretations concerning the application of\nSection 280G and 4999 of the Code.\u00a0\nThe Company and the Employee shall furnish to the Accountants such\ninformation and documents as the Accountants may reasonably request in order to\nmake a determination under this Section.\u00a0\nThe Company shall bear all costs the Accountants may reasonably incur in\nconnection with any calculations contemplated by this Section.<\/p>\n\n
6.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Successors<\/u>.<\/p>\n\n
(a)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Company\u0092s\nSuccessors<\/u>.\u00a0 Any successor to the\nCompany (whether direct or indirect and whether by purchase, lease, merger,\nconsolidation, liquidation or otherwise) to all or<\/p>\n\n
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\u00a0substantially all of the Company\u0092s business\nand\/or assets shall assume the Company\u0092s obligations under this Agreement and\nagree expressly to perform the Company\u0092s obligations under this Agreement in\nthe same manner and to the same extent as the Company would be required to\nperform such obligations in the absence of a succession.\u00a0 For all purposes under this Agreement, the\nterm \u0093Company\u0094 shall include any successor to the Company\u0092s business and\/or\nassets which executes and delivers the assumption agreement described in this\nsubsection (a) or which becomes bound by the terms of this Agreement by\noperation of law.<\/p>\n\n
(b)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Employee\u0092s\nSuccessors<\/u>.\u00a0\u00a0\u00a0 Without the written\nconsent of the Company, Employee shall not assign or transfer this Agreement or\nany right or obligation under this Agreement to any other person or entity.\nNotwithstanding the foregoing, the terms of this Agreement and all rights of\nEmployee hereunder shall inure to the benefit of, and be enforceable by,\nEmployee\u0092s personal or legal representatives, executors, administrators,\nsuccessors, heirs, distributees, devisees and legatees.<\/p>\n\n
7.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Notices<\/u>.<\/p>\n\n
(a)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 General<\/u>.\u00a0 Notices and all other communications\ncontemplated by this Agreement shall be in writing and shall be deemed to have\nbeen duly given when personally delivered or when mailed by U.S. registered or\ncertified mail, return receipt requested and postage prepaid.\u00a0 In the case of the Employee, mailed notices\nshall be addressed to him at the home address which he most recently\ncommunicated to the Company in writing.\u00a0\nIn the case of the Company, mailed notices shall be addressed to its\ncorporate headquarters, and all notices shall be directed to the attention of its\nSecretary.<\/p>\n\n
(b)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Notice\nof Termination<\/u>.\u00a0 Any termination by\nthe Company for Cause or by the Employee as a result of a voluntary resignation\nor an Involuntary Termination shall be communicated by a notice of termination\nto the other party hereto given in accordance with this Section.\u00a0 Such notice shall indicate the specific\ntermination provision in this Agreement relied upon, shall set forth in\nreasonable detail the facts and circumstances claimed to provide a basis for\ntermination under the provision so indicated, and shall specify the Termination\nDate (which shall be not more than 30 days after the giving of such\nnotice).\u00a0 The failure by the Employee to\ninclude in the notice any fact or circumstance which contributes to a showing\nof Involuntary Termination shall not waive any right of the Employee hereunder\nor preclude the Employee from asserting such fact or circumstance in enforcing\nhis rights hereunder.<\/p>\n\n
8.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Arbitration<\/u>.<\/p>\n\n
(a)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Any\ndispute or controversy arising out of, relating to, or in connection with this\nAgreement, or the interpretation, validity, construction, performance, breach,\nor termination thereof, shall be settled by binding arbitration to be held in\nSanta Clara County, California, in accordance with the National Rules for the\nResolution of Employment Disputes then in effect of the American Arbitration\nAssociation (the \u0093Rules\u0094).\u00a0 The\narbitrator may grant injunctions or other relief in such dispute or\ncontroversy.\u00a0 The decision of the\narbitrator shall be final, conclusive and binding <\/p>\n\n
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on the\nparties to the arbitration.\u00a0 Judgment\nmay be entered on the arbitrator\u0092s decision in any court having jurisdiction.<\/p>\n\n
(b)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The\narbitrator(s) shall apply California law to the merits of any dispute or claim,\nwithout reference to conflicts of law rules.\u00a0\nThe arbitration proceedings shall be governed by federal arbitration law\nand by the Rules, without reference to state arbitration law.\u00a0 Employee hereby consents to the personal\njurisdiction of the state and federal courts located in California for any action\nor proceeding arising from or relating to this Agreement or relating to any\narbitration in which the parties are participants.<\/p>\n\n
(c)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Employee\nunderstands that nothing in this Section modifies Employee\u0092s at-will employment\nstatus.\u00a0 Either Employee or the Company\ncan terminate the employment relationship at any time, with or without Cause.<\/p>\n\n
(d)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 EMPLOYEE\nHAS READ AND UNDERSTANDS THIS SECTION, WHICH DISCUSSES ARBITRATION.\u00a0 EMPLOYEE UNDERSTANDS THAT SUBMITTING ANY\nCLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR\nTHE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION\nTHEREOF TO BINDING ARBITRATION, CONSTITUTES A WAIVER OF EMPLOYEE\u0092S RIGHT TO A\nJURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL\nASPECTS OF THE EMPLOYER\/EMPLOYEE RELATIONSHIP, INCLUDING BUT NOT LIMITED TO,\nTHE FOLLOWING CLAIMS:<\/p>\n\n
(i)\u00a0\u00a0\u00a0 ANY AND\nALL CLAIMS FOR WRONGFUL DISCHARGE OF EMPLOYMENT; BREACH OF CONTRACT, BOTH\nEXPRESS AND IMPLIED; BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING,\nBOTH EXPRESS AND IMPLIED; NEGLIGENT OR INTENTIONAL INFLICTION OF EMOTIONAL\nDISTRESS; NEGLIGENT OR INTENTIONAL MISREPRESENTATION; NEGLIGENT OR INTENTIONAL\nINTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC ADVANTAGE; AND DEFAMATION.<\/p>\n\n
(ii)\u00a0\u00a0 ANY AND ALL\nCLAIMS FOR VIOLATION OF ANY FEDERAL STATE OR MUNICIPAL STATUTE, INCLUDING, BUT\nNOT LIMITED TO, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE CIVIL RIGHTS ACT\nOF 1991, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE AMERICANS WITH\nDISABILITIES ACT OF 1990, THE FAIR LABOR STANDARDS ACT, THE CALIFORNIA FAIR\nEMPLOYMENT AND HOUSING ACT, AND LABOR CODE SECTION 201, et seq<\/i>;<\/p>\n\n
(iii)\u00a0 ANY AND\nALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND REGULATIONS RELATING TO EMPLOYMENT\nOR EMPLOYMENT DISCRIMINATION.<\/p>\n\n
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9.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Miscellaneous\nProvisions<\/u>.<\/p>\n\n
(a)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 No\nDuty to Mitigate<\/u>.\u00a0 The Employee\nshall not be required to mitigate the amount of any payment contemplated by\nthis Agreement, nor shall any such payment be reduced by any earnings that the\nEmployee may receive from any other source.<\/p>\n\n
(b)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Waiver<\/u>.\u00a0 No provision of this Agreement may be\nmodified, waived or discharged unless the modification, waiver or discharge is\nagreed to in writing and signed by the Employee and by an authorized officer of\nthe Company (other than the Employee).\u00a0\nNo waiver by either party of any breach of, or of compliance with, any\ncondition or provision of this Agreement by the other party shall be considered\na waiver of any other condition or provision or of the same condition or\nprovision at another time.<\/p>\n\n
(c)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Integration<\/u>.\u00a0 This Agreement and any outstanding stock\noption agreements and restricted stock purchase agreements referenced herein\nrepresent the entire agreement and understanding between the parties as to the\nsubject matter herein and supersede all prior or contemporaneous agreements,\nwhether written or oral, with respect to this Agreement and any stock option\nagreement or restricted stock purchase agreement.<\/p>\n\n
(d)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Choice\nof Law<\/u>.\u00a0 The validity, interpretation,\nconstruction and performance of this Agreement shall be governed by the\ninternal substantive laws, but not the conflicts of law rules, of the State of\nCalifornia.<\/p>\n\n
(e)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Severability<\/u>.\u00a0 The invalidity or unenforceability of any\nprovision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision hereof, which shall remain in full force\nand effect.<\/p>\n\n
(f)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Employment\nTaxes<\/u>.\u00a0 All payments made pursuant\nto this Agreement shall be subject to withholding of applicable income and\nemployment taxes.<\/p>\n\n
(g)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Counterparts<\/u>.\u00a0 This Agreement may be executed in\ncounterparts, each of which shall be deemed an original, but all of which\ntogether will constitute one and the same instrument.<\/p>\n\n
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IN\nWITNESS WHEREOF, each of the parties has executed this Agreement, in the case\nof the Company by its duly authorized officer, as of the day and year first\nabove written.<\/p>\n\n<\/pre>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
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COMPANY:<\/p>\n<\/td>\n
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UTSTARCOM, INC.<\/p>\n<\/td>\n<\/tr>\n
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EMPLOYEE:<\/p>\n<\/td>\n
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Signature<\/p>\n<\/td>\n<\/tr>\n
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Printed Name<\/p>\n<\/td>\n<\/tr>\n
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