Exhibit 10.4


 


SEPARATION AGREEMENT AND RELEASE (CHINA)


 


This Separation Agreement and Release (this “China Release”) is made by
and between Ying Wu (“Employee”) and UTStarcom (China) Co., Ltd. (the “Company”)
(collectively, referred to as the “Parties” or individually, referred to as a “Party”).


 


WHEREAS, the Parties wish to resolve any and all disputes, claims,
complaints, grievances, charges, actions, petitions, and demands that the
Employee may have against the Company and any of the Releasees as defined
below, including, but not limited to, any and all claims arising out of or in
any way related to Employee’s employment with or separation from the Company;


 


WHEREAS, concurrently with this Agreement, Employee and UTStarcom, Inc.
are entering into the Separation Agreement and Release (California) dated even
date herewith and to which this China Release is attached as Exhibit B
(the “Agreement”);


 


NOW, THEREFORE, in consideration of the mutual promises made herein,
the Company and Employee hereby agree as follows:


 


1.               Consideration.  The Company agrees to provide Employee the
consideration set forth in Section 1 of the Agreement, which is a lump sum
payment of twelve (12) months of Employee’s base salary as in effect as of the
date of such termination plus an additional one hundred thousand USD ($100,000)
dollars, (subject to and reduced by the individual income tax), payable within
ten (10) days after the Effective Date of the Agreement.


 


2.               Release
of Claims.  Employee agrees that the
foregoing consideration represents settlement in full of all outstanding
obligations owed to Employee by the Company and its current and former
officers, directors, employees, agents, investors, attorneys, shareholders,
administrators, affiliates, divisions, and subsidiaries, and predecessor and
successor corporations and assigns (collectively, the “Releasees”).  Employee, on his own behalf and on behalf of
his respective heirs, family members, executors, agents, and assigns, hereby
and forever releases the Releasees from, and agrees not to sue concerning, or
in any manner to institute, prosecute, or pursue, any claim, complaint, charge,
duty, obligation, or cause of action relating to any matters of any kind,
whether presently known or unknown, suspected or unsuspected, that Employee may
possess against any of the Releasees arising from any omissions, acts, facts,
or damages that have occurred up until and including the Effective Date of this
Agreement, including, without limitation, any and all claims:  for violation of any applicable laws, except as prohibited by law; relating to or
arising from Employee’s employment relationship with the Company and the
termination of that relationship; arising out of any other laws and regulations
relating to employment or employment discrimination; for any loss, cost,
damage, or expense arising out of any dispute over the non-withholding or other
tax treatment of any of the proceeds received by Employee as a result of this
Agreement; for wrongful discharge of employment or any theory based on contract,
common law, or any statute; and for fraud, negligent or intentional
misrepresentation, negligent or intentional interference with contract or
prospective economic advantage, unfair business practices, defamation, libel,
and slander.


 


3.               Employment Relationship.  The
Parties acknowledge and agree that the employment relationship between the
Parties terminated on June 1, 2007.


 

















 


4.               Non-Disparagement.  Employee agrees to refrain from any
disparagement, defamation, libel, or slander of any of the Releasees, and
agrees to refrain from any tortious interference with the contracts and
relationships of any of the Releasees.


 


5.               Company
Property.  Employee acknowledges that
he has returned to the Company all company property, including but not limited
to his computer laptop, and any documents that were in his possession, custody,
or control prior to the Effective Date.


 


6.               Choice of Law.  The
China Release is governed and construed by the laws of the People’s Republic of
China.


 


7.               Dispute Process. 
Any dispute arising from or relating to this China
Release shall be
submitted to the labor dispute arbitration tribunal in the place where the
Company is located for arbitration.


 


8.               Integration.  The Agreement, including Exhibits A and B,
together with any fully executed stock option agreements between the Parties,
represent the entire agreement and understanding between the Parties as to the
subject matter herein and supersedes all prior or contemporaneous agreements,
whether written or oral.


 


9.               Effective
Date.  Each Party has seven (7) days
after that Party signs the Agreement and this Exhibit B to revoke it.  The
Agreement will become effective on the eighth (8th) day after Employee signed
the Agreement and this Exhibit B, so long as it has been signed by the Parties
and has not been revoked by either Party before that date (the “Effective Date”).


 


10.         Voluntary
Execution of Agreement.  Employee
understands and agrees that he executed the Agreement, including this Exhibit B,
voluntarily, without any duress or undue influence on the part of the Company
or any third party, with the full intent of releasing all of his claims against
the Company and any of the other Releasees. 
Employee acknowledges that:  he
has read the Agreement; he has been represented in the preparation,
negotiation, and execution of the Agreement by legal counsel of his own choice
or has elected not to retain legal counsel; he understands the terms and
consequences of the Agreement and of the releases it contains; and he is fully
aware of the legal and binding effect of the Agreement and its Exhibits.


 


IN WITNESS
WHEREOF, the Parties have executed this Agreement on the dates set forth below.


 


	
   

  	
  YING WU, an individual

  
	
   

  	
   

  
	
  Dated: July 25, 2008

  	
  /s/ Ying Wu

  
	
   

  	
   

  
	
   

  	
  Ying Wu

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  UTSTARCOM
  (China) Co., Ltd.

  
	
   

  	
   

  
	
  Dated: July 25, 2008

  	
  By

  	
  /s/ Hong Liang Lu

  
	
   

  	
   

  	
  Hong Liang Lu, legal representative