Exhibit 10.18


 


UTSTARCOM, INC.


 


2006 EQUITY INCENTIVE PLAN


 


NOTICE OF GRANT OF RESTRICTED STOCK UNITS


 


Unless otherwise
defined herein, the terms defined in the 2006 Equity Incentive Plan (the “Plan”)
will have the same defined meanings in this Notice of Grant of Restricted Stock
Units (the “Notice of Grant”).


 


Participant:


 


Address:


 


You have been
granted the right to receive Restricted Stock Units, subject to the terms and
conditions of the Plan, this Notice of Grant and the Restricted Stock Unit
Agreement attached hereto as Exhibit A (together, the “Award
Agreement”) as follows:


 


Grant
Number


 


Date of Grant


 


Vesting
Commencement Date


 


Total
Number of Restricted Stock Units


 


Vesting
Schedule:


 


The
Restricted Stock Units will vest as follows:


 


[Insert Vesting Schedule Here]


 


In the
event Participant ceases to be a Service Provider for any or no reason before
Participant vests in the Restricted Stock Unit, the Restricted Stock Unit and
Participant’s right to acquire any Shares hereunder will immediately terminate.


 


By Participant’s
signature and the signature of the Company’s representative below, Participant
and the Company agree that this Award is granted under and governed by the
terms and conditions of this Award Agreement and the Plan, which is made a part
of this document.


 


	
  PARTICIPANT

  	
   

  	
  UTSTARCOM, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature

  	
   

  	
  By

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Print Name

  	
   

  	
  Title

  



 


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EXHIBIT A


 


RESTRICTED STOCK UNIT
AGREEMENT


 


1.                                       Grant.  The Company hereby grants to
Participant under the Plan an Award of Restricted Stock Units, subject to all
of the terms and conditions in this Award Agreement and the Plan, which is
incorporated herein by reference. 
Subject to Section 19(c) of the Plan, in the event of a
conflict between the terms and conditions of the Plan and the terms and
conditions of this Award Agreement, the terms and conditions of the Plan will
prevail.


 


2.                                       Company’s Obligation to Pay.  Each
Restricted Stock Unit represents the right to receive a Share on the date it
vests.  Unless and until the Restricted
Stock Units will have vested in the manner set forth in Section 3,
Participant will have no right to payment of any such Restricted Stock
Units.  Prior to actual payment of any
vested Restricted Stock Units, such Restricted Stock Unit will represent an
unsecured obligation of the Company, payable (if at all) only from the general
assets of the Company.


 


3.                                       Vesting Schedule. 
Subject to Section 5, the Restricted Stock Units awarded by this
Award Agreement will vest in Participant according to the vesting schedule set
forth on the attached Notice of Grant, subject to Participant continuing to be
a Service Provider through each such date.


 


4.                                       Payment after Vesting.


 


(a)                                  General Rule. 
Subject to Section 7, any Restricted Stock Units that vest will be
paid to Participant (or in the event of Participant’s death, to his or her
properly designated beneficiary or estate) in whole Shares.  Subject to the provisions of Section 4(b),
such vested Restricted Stock Units shall be paid in whole Shares as soon as
practicable after vesting, but in each such case within the period ending no
later than the later of (i) the end of the calendar year that includes the
vesting date or (ii) the fifteenth (15th) day of the third (3rd) month
following the vesting date.  In no event
will Participant be permitted, directly or indirectly, to specify the taxable
year of payment of any Restricted Stock Units payable under this Award
Agreement.


 


(b)                                 Acceleration.


 


(i)            Discretionary Acceleration.  Notwithstanding anything in the Plan, this
Award Agreement, or any other plan or agreement to the contrary, if the
Administrator, in its discretion, accelerates the vesting of the balance, or
some lesser portion of the balance, of the unvested Restricted Stock Units, such
Restricted Stock Units will be considered as having vested as of the date
specified by the Administrator.  Subject
to the provisions of this Section 4, Section 5, and Section 7,
the payment of such accelerated portion of the Restricted Stock Units shall be
made as soon as practicable after the new vesting date, but, except as provided
in this Award Agreement, in no event later than the later of (i) the end
of the calendar year that includes the vesting date or (ii) the fifteenth
(15th) day of the third (3rd) month following the applicable vesting date;
provided, however, if the Award is “deferred compensation” within the meaning
of Section 409A of the Internal Revenue Code of 1986, as amended, and the
final Treasury Regulations and any official guidance promulgated thereunder (“Section 409A”),
the payment of such accelerated portion of the Restricted Stock Units
nevertheless shall be made at the same time or times as if such Restricted
Stock Units had vested in accordance with the vesting 


 


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schedule
set forth in the Notice of Grant as if the acceleration had not been applied,
including any necessary application of Section 4(b)(ii) (whether or
not Participant remains employed by the Company or a Parent or Subsidiary of
the Company as of such date(s)), unless an earlier payment date, in the
judgment of the Administrator, would not cause Participant to incur an
additional tax under Section 409A, in which case, payment of such
accelerated Restricted Stock Units shall be made no later than the fifteenth
(15th) day of the third (3rd) month (and in all cases within ninety (90) days)
following the earliest permissible payment date that would not cause
Participant to incur an additional tax under Section 409A (subject to Section 4(b)(ii)).  Notwithstanding the foregoing, any delay in
payment pursuant to this Section 4(b)(i) will cease upon Participant’s
death and such payment will be made as soon as practicable after the date of
Participant’s death (and in all cases within ninety (90) days following such
death).


 


(ii)           Separation from Service.  Notwithstanding anything in the Plan, this
Award Agreement, or any other plan or agreement to the contrary, if the vesting
of the balance, or some lesser portion of the balance, of the Restricted Stock
Units is accelerated in connection with Participant’s termination as a Service
Provider, such accelerated Restricted Stock Units will not be payable by virtue
of such acceleration until and unless Participant has a “separation from service”
within the meaning of Section 409A. 
Until Participant has a “separation from service,” the payment of such
accelerated portion of the Award will be made at the same time or times as if
such Award had vested in accordance with the vesting schedule set forth in the
Notice of Grant as if the acceleration had not been applied.  Further, and notwithstanding anything in the
Plan or this Award Agreement to the contrary, if any such accelerated
Restricted Stock Units would otherwise become payable upon a “separation from
service” within the meaning of Section 409A, and if (x) Participant
is a “specified employee” within the meaning of Section 409A at the time
of such “separation from service” (other than due to Participant’s death) and (y) the
payment of such accelerated Restricted Stock Units will result in the
imposition of additional tax under Section 409A if paid to Participant on
or within the six (6) month period following Participant’s “separation
from service,” then, to the extent necessary to avoid the imposition of such
additional taxation, the payment of such accelerated Restricted Stock Units
otherwise payable to Participant during such six (6) month period will
accrue and will not be made until the date six (6) months and one (1) day
following the date of Participant’s “separation from service,” unless
Participant dies following his or her termination as a Service Provider, in
which case, the Restricted Stock Units will be paid in Shares to Participant’s
estate as soon as practicable following his or her death (and in all cases
within ninety (90) days of Participant’s death).


 


(iii)          Change in Control.  Notwithstanding anything in the Plan, this
Award Agreement, or any other plan or agreement to the contrary, if the vesting
of all or a portion of the Restricted Stock Units accelerates (i) pursuant
to Section 14(c) of the Plan in the event of a Change in Control that
is not a “change in control” within the meaning of Section 409A or (ii) pursuant
to any other plan, agreement, resolutions or arrangement that provides for
acceleration in the event of a change in control that is not a “change in
control” within the meaning of Section 409A, then the payment of such
accelerated portion of the Restricted Stock Units will be made in accordance
with the timing of payment rules that apply to discretionary accelerations
under Section 4(b)(i) of this Award Agreement.  If the vesting of all or a portion of the
Restricted Stock Units accelerates in the event of a Change in Control that is
a “change in control” within the meaning of Section 409A, then the payment
of such accelerated Restricted Stock Units shall be paid no later than the date
that is the fifteenth (15th) day of the third (3rd) 


 


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month
(and in all cases within ninety (90) days) following the vesting date.


 


(c)           Section 409A.  It is the intent of this Award Agreement to
comply with the requirements of Section 409A so that none of the
Restricted Stock Units provided under this Award Agreement or Shares issuable
thereunder will be subject to the additional tax imposed under Section 409A,
and any ambiguities herein will be interpreted to so comply.  Each payment and benefit payable under
this Award Agreement is intended to constitute separate payments for purposes
of Treasury Regulation Section 1.409A-2(b)(2).


 


5.                                       Forfeiture upon Termination of Status as a
Service Provider.  Notwithstanding any contrary provision of
this Award Agreement, if Participant ceases to be a Service Provider for any or
no reason, the then-unvested Restricted Stock Units awarded by this Award
Agreement will thereupon be forfeited at no cost to the Company and Participant
will have no further rights thereunder.


 


6.                                       Death of Participant.  Any
distribution or delivery to be made to Participant under this Award Agreement
will, if Participant is then deceased, be made to Participant’s designated
beneficiary, or if no beneficiary survives Participant, the administrator or
executor of Participant’s estate.  Any
such transferee must furnish the Company with (a) written notice of his or
her status as transferee, and (b) evidence satisfactory to the Company to
establish the validity of the transfer and compliance with any laws or
regulations pertaining to said transfer.


 


7.                                       Withholding of Taxes.  Notwithstanding
any contrary provision of this Award Agreement, no certificate representing the
Shares will be issued to Participant, unless and until satisfactory
arrangements (as determined by the Administrator) will have been made by
Participant with respect to the payment of income, employment and other taxes
which the Company determines must be withheld with respect to such Shares so
issuable.  The Administrator, in its sole
discretion and pursuant to such procedures as it may specify from time to time,
may permit Participant to satisfy such tax withholding obligation, in whole or
in part (without limitation) by (a) paying cash, (b) electing to have
the Company withhold otherwise deliverable Shares having a Fair Market Value
equal to the minimum amount required to be withheld, (c) delivering to the
Company already vested and owned Shares having a Fair Market Value equal to the
amount required to be withheld, or (d) selling a sufficient number of such
Shares otherwise deliverable to Participant through such means as the Company
may determine in its sole discretion (whether through a broker or otherwise)
equal to the amount required to be withheld. 
To the extent determined appropriate by the Company in its discretion, it
shall have the right (but not the obligation) to satisfy any tax withholding
obligations by reducing the number of Shares otherwise deliverable to
Participant.  If Participant fails to
make satisfactory arrangements for the payment of any required tax withholding
obligations hereunder at the time any applicable Restricted Stock Units
otherwise are scheduled to vest pursuant to Sections 3 or 4, Participant will
permanently forfeit such Restricted Stock Units and any right to receive Shares
thereunder and the Restricted Stock Units will be returned to the Company at no
cost to the Company.


 


9.                                       Rights as Stockholder. 
Neither Participant nor any person claiming under or through Participant
will have any of the rights or privileges of a stockholder of the Company in
respect of any Shares deliverable hereunder, unless and until certificates
representing such Shares will have been issued, recorded on the records of the
Company or its transfer agents or registrars, and delivered to
Participant.  After such issuance,
recordation and delivery, Participant 


 


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will
have all the rights of a stockholder of the Company with respect to voting such
Shares and receipt of dividends and distributions on such Shares.


 


10.                                 No Guarantee of Continued Service. 
PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING OF THE RESTRICTED
STOCK UNITS PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY
CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY (OR THE PARENT OR
SUBSIDIARY EMPLOYING OR RETAINING PARTICIPANT) AND NOT THROUGH THE ACT OF BEING
HIRED, BEING GRANTED THIS AWARD OR ACQUIRING SHARES HEREUNDER.  PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES
THAT THIS AWARD AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE
VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED
PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD,
FOR ANY PERIOD, OR AT ALL, AND WILL NOT INTERFERE IN ANY WAY WITH PARTICIPANT’S
RIGHT OR THE RIGHT OF THE COMPANY (OR THE PARENT OR SUBSIDIARY EMPLOYING OR
RETAINING PARTICIPANT) TO TERMINATE PARTICIPANT’S RELATIONSHIP AS A SERVICE
PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE.


 


11.                                 Address for Notices.  Any
notice to be given to the Company under the terms of this Award Agreement will
be addressed to the Company at UTStarcom, Inc., 1275 Harbor Bay Parkway, Suite 100,
Alameda, California 94502, or at such other address as the Company may
hereafter designate in writing.


 


12.                                 Grant is Not Transferable. 
Except to the limited extent provided in Section 6, this grant and
the rights and privileges conferred hereby will not be transferred, assigned,
pledged or hypothecated in any way (whether by operation of law or otherwise)
and will not be subject to sale under execution, attachment or similar process.  Upon any attempt to transfer, assign, pledge,
hypothecate or otherwise dispose of this grant, or any right or privilege
conferred hereby, or upon any attempted sale under any execution, attachment or
similar process, this grant and the rights and privileges conferred hereby
immediately will become null and void.


 


13.                                 Binding Agreement. 
Subject to the limitation on the transferability of this grant contained
herein, this Award Agreement will be binding upon and inure to the benefit of
the heirs, legatees, legal representatives, successors and assigns of the
parties hereto.


 


14.                                 Additional Conditions to Issuance of Stock.  If
at any time the Company will determine, in its discretion, that the listing,
registration or qualification of the Shares upon any securities exchange or
under any state or federal law, or the consent or approval of any governmental
regulatory authority is necessary or desirable as a condition to the issuance
of Shares to Participant (or his or her estate), such issuance will not occur unless
and until such listing, registration, qualification, consent or approval will
have been effected or obtained free of any conditions not acceptable to the
Company.  Where the Company determines
that the delivery of the payment of any Shares will violate federal securities
laws or other applicable laws, the Company will defer delivery until the
earliest date at which the Company reasonably anticipates that the delivery of
Shares will no longer cause such violation. 
The Company will make all reasonable efforts to meet the requirements of
any such state or federal law or securities exchange and to obtain any such
consent or approval of any such governmental authority.


 


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15.                                 Plan Governs.  This
Award Agreement is subject to all terms and provisions of the Plan.  In the event of a conflict between one or
more provisions of this Award Agreement and one or more provisions of the Plan,
the provisions of the Plan will govern. 
Capitalized terms used and not defined in this Award Agreement will have
the meaning set forth in the Plan.


 


16.                                 Administrator Authority.  The
Administrator will have the power to interpret the Plan and this Award
Agreement and to adopt such rules for the administration, interpretation
and application of the Plan as are consistent therewith and to interpret or
revoke any such rules (including, but not limited to, the determination of
whether or not any Restricted Stock Units have vested).  All actions taken and all interpretations and
determinations made by the Administrator in good faith will be final and
binding upon Participant, the Company and all other interested persons.  No member of the Administrator will be
personally liable for any action, determination or interpretation made in good
faith with respect to the Plan or this Award Agreement.


 


17.                                 Electronic Delivery.  The
Company may, in its sole discretion, decide to deliver any documents related to
Restricted Stock Units awarded under the Plan or future Restricted Stock Units
that may be awarded under the Plan by electronic means or request Participant’s
consent to participate in the Plan by electronic means.  Participant hereby consents to receive such
documents by electronic delivery and agrees to participate in the Plan through
any on-line or electronic system established and maintained by the Company or
another third party designated by the Company.


 


18.                                 Captions.  Captions provided herein are
for convenience only and are not to serve as a basis for interpretation or
construction of this Award Agreement.


 


19.                                 Agreement Severable.  In
the event that any provision in this Award Agreement will be held invalid or
unenforceable, such provision will be severable from, and such invalidity or
unenforceability will not be construed to have any effect on, the remaining
provisions of this Award Agreement.


 


20.                                 Modifications to the Agreement.  This
Award Agreement constitutes the entire understanding of the parties on the
subjects covered.  Participant expressly
warrants that he or she is not accepting this Award Agreement in reliance on
any promises, representations, or inducements other than those contained
herein.  Modifications to this Award
Agreement or the Plan can be made only in an express written contract executed
by a duly authorized officer of the Company. 
Notwithstanding anything to the contrary in the Plan or this Award
Agreement, the Company reserves the right to revise this Award Agreement as it
deems necessary or advisable, in its sole discretion and without the consent of
Participant, to comply with Section 409A or to otherwise avoid imposition
of any additional tax or income recognition under Section 409A in
connection to this Award of Restricted Stock Units.


 


21.                                 Amendment, Suspension or Termination of the
Plan.  By accepting this Award, Participant
expressly warrants that he or she has received an Award of Restricted Stock
Units under the Plan, and has received, read and understood a description of
the Plan.  Participant understands that
the Plan is discretionary in nature and may be amended, suspended or terminated
by the Company at any time.


 


22.                                 Governing Law.  This
Award Agreement shall be governed by the laws of the 


 


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State
of California, without giving effect to the conflict of law principles
thereof.  For purposes of litigating any
dispute that arises under this Award of Restricted Stock Units or this Award
Agreement, the parties hereby submit to and consent to the jurisdiction of the
State of California, and agree
that such litigation shall be conducted in the courts of Alameda County,
California, or the federal courts for the United
States for the Northern District of California, and no other courts, where this
Award of Restricted Stock Units is made and/or to be performed.


 


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