Exhibit
10.42


 


UTSTARCOM,
INC.


 


AMENDMENT TO
AMENDED AND RESTATED


CHANGE OF
CONTROL/INVOLUNTARY TERMINATION SEVERANCE AGREEMENT


 


Hong Liang Lu (“Employee”) and UTStarcom, Inc.
(the “Company”, and together with
Employee, the “Parties”) desire to amend an
Amended and Restated Change of Control/Involuntary Termination Severance
Agreement dated January 30, 2008 (the “Agreement”)
to bring the Agreement into documentary compliance with Section 409A of
the Internal Revenue Code of 1986, as amended (the “Code”)
and the final regulations and official guidance promulgated thereunder
(together, “Section 409A”), for good
and valuable consideration, as follows:


 


1.             Section 409A.  Section 5 of the Agreement is amended
and restated as follows:


 


“5.           Section 409A.


 


(a)           Notwithstanding anything to the
contrary in this Agreement, no severance payments or benefits to be paid or
provided to Employee, if any, pursuant to this Agreement, when considered
together with any other severance payments or separation benefits that are considered
deferred compensation under Code Section 409A, and the final regulations
and any guidance promulgated thereunder (“Section 409A”) (together, the “Deferred Compensation Separation Benefits”) will be paid or
otherwise provided until Employee has a “separation from service” within the
meaning of Section 409A.


 


(b)           Any severance payments or benefits
that would be considered Deferred Compensation Severance Benefits will be paid
on, or, in the case of installments, will not commence until, the sixtieth (60th) day following Employee’s separation from service,
or, if later, such time as required by Section 5(c).  Any installment payments that would have been
made to Employee during the sixty (60) day period immediately following
Employee’s separation from service but for the preceding sentence will be paid
to Employee on the sixtieth (60th) day following Employee’s separation from
service and the remaining payments shall be made as provided in this Agreement.


 


(c)           Notwithstanding anything to the
contrary in this Agreement, if Employee is a “specified employee” within the
meaning of Section 409A at the time of Employee’s termination (other than
due to death), then the Deferred
Compensation Separation Benefits that are payable within the first six (6) months
following Employee’s separation from service will become payable on the first
payroll date that occurs on or after the date six (6) months and one (1) day
following the date of Employee’s separation from service.  All subsequent Deferred Compensation
Separation Benefits, if any, will be payable in accordance with the payment
schedule applicable to each payment or benefit. 
Notwithstanding anything herein to the contrary, if Employee dies
following Employee’s separation from service,
but prior to the six (6) month anniversary of the separation from service,
then any payments delayed in accordance with this paragraph will be payable in
a lump sum as soon as administratively practicable after the date of Employee’s
death and all other Deferred Compensation Separation Benefits will be payable
in accordance with the payment schedule applicable to each payment 


 





















 


or benefit.  Each payment and benefit payable under this
Agreement is intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of
the Treasury Regulations.


 


(d)           Any amount paid under this Agreement
that satisfies the requirements of the “short-term deferral” rule set
forth in Section 1.409A-1(b)(4) of the Treasury Regulations will not
constitute Deferred Compensation Separation Benefits for purposes of Section 5(a) above.


 


(e)           Any amount paid under this Agreement
that qualifies as a payment made as a result of an involuntary separation from
service pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury
Regulations that does not exceed the Section 409A Limit will not
constitute Deferred Compensation Separation Benefits for purposes of Section 5(a) above.  For purposes of this Agreement, “Section 409A Limit” will mean the
lesser of two (2) times: (i) Employee’s annualized compensation based
upon the annual rate of pay paid to Employee during the Company’s taxable year
preceding the Company’s taxable year of Employee’s termination of employment as
determined under Treasury Regulation 1.409A-1(b)(9)(iii)(A)(1) and
any Internal Revenue Service guidance issued with respect thereto; or (ii) the
maximum amount that may be taken into account under a qualified plan pursuant
to Section 401(a)(17) of the Code for the year in which Employee’s
employment is terminated.


 


(f)            The foregoing provisions are intended
to comply with the requirements of Section 409A so that none of the severance payments and benefits to be
provided hereunder will be subject to the additional tax imposed under Section 409A,
and any ambiguities herein will be interpreted to so comply.  Notwithstanding anything in this Agreement to
the contrary, the Company reserves the authority to amend the Agreement as it
deems necessary or desirable, and without the consent of any Employee or
without providing any advance notice of any such amendment, in order to ensure
the Agreement complies with Section 409A.”


 


2.             Parachute Payments.  The following is added to the end of Section 6
of the Agreement:


 


“Any
reduction in payments and/or benefits required by this Section 6 will
occur in the following order: (i) reduction of cash payments; (ii) reduction
of vesting acceleration of equity awards; and (iii) reduction of other
benefits paid or provided to Employee. 
In the event that acceleration of vesting of equity awards is to be
reduced, such acceleration of vesting will be cancelled in the reverse order of
the date of grant for Employee’s equity awards. 
If two or more equity awards are granted on the same date, each award
will be reduced on a pro-rata basis.”


 


3.             Release and Non-Disparagement
Agreement.  Section 7 of the
Agreement is amended and restated as follows:


 


“7.           Release and Non-Disparagement
Agreement  As a condition to receiving the
severance payments or benefits under this Agreement, Employee will be required
to sign a waiver and release of all claims arising out of his Involuntary
Termination and employment with the Company and its subsidiaries and affiliates
and an agreement not to disparage the Company, its directors, or its executive
officers, in a form reasonably satisfactory to the Company;
provided, such release must be effective within sixty (60)
days following Employee’s termination of employment or such shorter period
specified in the release (the “Release Deadline”).  If the release of claims does not become
effective by the Release Deadline, 


 


2

















 


Employee
will forfeit any rights to the severance payments and benefits under this
Agreement.  No severance
payments and benefits will be paid or provided until the waiver and release
agreement becomes effective or irrevocable.”


 


4.             Entire Agreement.  This Amendment to the Amended and Restated
Change of Control/Involuntary Termination Severance Agreement (the “Amendment”) and the Agreement
constitute the full and entire understanding and agreement between the Parties
with regard to the subjects hereof and thereof. 
This Amendment may be amended at any time only by mutual written
agreement of the Parties.


 


5.             Counterparts.  This Amendment may be executed in
counterparts, all of which together shall constitute one instrument, and each
of which may be executed by less than all of the parties to this Amendment.


 


IN WITNESS WHEREOF, each of the
Parties has executed this Amendment, in the case of the Company by its duly
authorized officer, as of the 17th day of December 2008.


 


	
   

  	
  UTSTARCOM, INC.

  	
   

  	
  EMPLOYEE

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  /s/ Mark Green

  	
   

  	
  /s/ Hong Liang Lu

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  Mark Green

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  SVP, Worldwide Human Resources and Real Estate

  	
   

  	
   

  



 


3