EXHIBIT 10.75


UTSTARCOM, INC.


CHANGE OF CONTROL
SEVERANCE AGREEMENT


This Change of Control Severance Agreement (the “Agreement”) is made
and entered into effective as of April 12, 2002 (the “Effective Date”), by and
between Michael J. Sophie (the “Employee”) and UTStarcom, Inc., a Delaware
corporation (the “Company”).  Certain
capitalized terms used in this Agreement are defined in Section 1 below.


R E C I T A L S


A.            It is expected that
the Company from time to time will consider the possibility of a Change of
Control.  The Board of Directors of the
as Company (the “Board”) recognizes that such consideration can be a
distraction to the Employee and can cause the Employee to consider alternative
employment opportunities.


B.            The Board believes
that it is in the best interests of the Company and its shareholders to provide
the Employee with an incentive to continue his employment and to maximize the
value of the Company upon a Change of Control for the benefit of its
shareholders.


C.            In order to provide
the Employee with enhanced financial security and sufficient encouragement to
remain with the Company notwithstanding the possibility of a Change of Control,
the Board believes that it is imperative to provide the Employee with certain
severance benefits upon the Employee’s termination of employment following a
Change of Control.


AGREEMENT


In consideration of the mutual covenants herein contained and the
continued employment of Employee by the Company, the parties agree as follows:


1.             Definition
of Terms.  The following terms
referred to in this Agreement shall have the following meanings:


(a)           Cause.  “Cause” shall mean (i) any act of personal
dishonesty taken by the Employee in connection with his responsibilities as an
employee which is intended to result in substantial personal enrichment of the
Employee,  (ii) Employee’s conviction of
a felony which the Board reasonably believes has had or will have a material
detrimental effect on the Company’s reputation or business, (iii) a willful act
by the Employee which constitutes misconduct and is injurious to the Company,
and (iv) continued willful violations by the Employee of the Employee’s
obligations to the Company after there has been delivered to the Employee a
written demand for performance from the Company which describes the basis for
the Company’s belief that the Employee has not substantially performed his
duties.


(b)           Change
of Control.  “Change of Control”
shall mean the occurrence of any of the following events:

















 


(i)    the
approval by shareholders of the Company of a merger or consolidation of the
Company with any other corporation, other than a merger or consolidation which
would result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) more than fifty
percent (50%) of the total voting power represented by the voting securities of
the Company or such surviving entity outstanding immediately after such merger
or consolidation;


(ii)   the
approval by the shareholders of the Company of a plan of complete liquidation
of the Company or an agreement for the sale or disposition by the Company of
all or substantially all of the Company’s assets;


(iii)  any
“person” (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended) becoming the “beneficial owner”
(as defined in Rule 13d-3 under said Act), directly or indirectly, of
securities of the Company representing 50% or more of the total voting power
represented by the Company’s then outstanding voting securities; or


(iv)  a change in
the composition of the Board, as a result of which fewer than a majority of the
directors are Incumbent Directors. 
“Incumbent Directors” shall mean directors who either (A) are directors
of the Company as of the date hereof, or (B) are elected, or nominated for
election, to the Board with the affirmative votes of at least a majority of
those directors whose election or nomination was not in connection with any
transactions described in subsections (i), (ii), or (iii) or in connection with
an actual or threatened proxy contest relating to the election of directors of
the Company.


(c)           Involuntary
Termination.  “Involuntary
Termination” shall mean (i) without the Employee’s express written
consent, a significant reduction of the Employee’s duties, position or
responsibilities relative to the Employee’s duties, position or
responsibilities in effect immediately prior to such reduction, or the removal
of the Employee from such position, duties and responsibilities, unless the
Employee is provided with comparable duties, position and responsibilities (as,
for example, following a Change of Control, the Chief Financial Officer of the
Company is made the Chief Financial Officer of the acquiring entity);
(ii) without the Employee’s express written consent, a substantial
reduction, without good business reasons, of the facilities and perquisites
(including office space and location) available to the Employee immediately
prior to such reduction; (iii) a reduction by the Company of the
Employee’s base salary as in effect immediately prior to such reduction;
(iv) a material reduction by the Company in the kind or level of employee
benefits to which the Employee is entitled immediately prior to such reduction
with the result that the Employee’s overall benefits package is significantly
reduced; (v) without the Employee’s express written consent, the
relocation of the Employee to a facility or a location more than fifty (50)
miles from his current location; (vi) any purported termination of the
Employee by the Company which is not effected for Cause or for which the
grounds relied upon are not valid; or (vii) the failure of the Company to
obtain the assumption of this Agreement by any successors contemplated in
Section 6 below.


 


 


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(d)           Termination
Date.  “Termination Date” shall mean
the effective date of any notice of termination delivered by one party to the
other hereunder.


2.             Term
of Agreement.  This Agreement shall
terminate upon the date that all obligations of the parties hereto under this
Agreement have been satisfied or, if earlier, on the date, prior to a Change of
Control, Employee is no longer employed by the Company.


3.             At-Will
Employment.  The Company and the
Employee acknowledge that the Employee’s employment is and shall continue to be
at-will, as defined under applicable law. 
If the Employee’s employment terminates for any reason, the Employee
shall not be entitled to any payments, benefits, damages, awards or
compensation other than as provided by this Agreement, or as may otherwise be
established under the Company’s then existing employee benefit plans or
policies at the time of termination.


4.             Severance
Benefits.


(a)           Termination
Following A Change of Control.  If
the Employee’s employment with the Company terminates as a result of an
Involuntary Termination at any time within twelve (12) months after a Change of
Control, Employee shall be entitled to the following severance benefits:


(i)    Twenty-four
(24) months of Employee’s base salary as in effect as of the date of such
termination, less applicable withholding, payable in a lump sum within thirty
(30) days of the Involuntary Termination;


(ii)   one hundred
percent (100%) of Employee’s bonus for the year in which the termination
occurs;


(iii)  all stock
options granted by the Company to the Employee prior to the Change of Control
shall become fully vested and exercisable as of the date of the termination to the
extent such stock options are outstanding and unexercisable at the time of such
termination and all stock subject to a right of repurchase by the Company (or
its successor) that was purchased prior to the Change of Control shall have
such right of repurchase lapse with respect to all of the shares;


(iv)  the same level of health (i.e., medical, vision and
dental) coverage and benefits as in effect for the Employee on the day
immediately preceding the day of the Employee’s termination of employment;
provided, however, that (i) the Employee constitutes a qualified beneficiary,
as defined in Section 4980B(g)(1) of the Internal Revenue Code of 1986, as
amended; and  (ii) Employee elects
continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended (“COBRA”), within the time period prescribed pursuant
to COBRA.  The Company shall continue to
provide Employee with health coverage until the earlier of (i) the date
Employee is no longer eligible to receive continuation coverage pursuant to
COBRA, or (ii) twelve (12) months from the termination date.


(b)           Termination
Apart from a Change of Control.  If
the Employee’s employment with the Company terminates other than as a result of
an Involuntary Termination within the twelve


 


 


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 (12) months
following a Change of Control, then the Employee shall not be entitled to
receive severance or other benefits hereunder, but may be eligible for those
benefits (if any) as may then be established under the Company’s then existing
severance and benefits plans and policies at the time of such termination.


(c)           Accrued
Wages and Vacation; Expenses. 
Without regard to the reason for, or the timing of, Employee’s
termination of employment:  (i) the
Company shall pay the Employee any unpaid base salary due for periods prior to
the Termination Date; (ii) the Company shall pay the Employee all of the
Employee’s accrued and unused vacation through the Termination Date; and
(iii) following submission of proper expense reports by the Employee, the
Company shall reimburse the Employee for all expenses reasonably and
necessarily incurred by the Employee in connection with the business of the
Company prior to the Termination Date. 
These payments shall be made promptly upon termination and within the
period of time mandated by law.


5.             Limitation
on Payments.  In the event that the
severance and other benefits provided for in this Agreement or otherwise
payable to the Employee (i) constitute “parachute payments” within the
meaning of Section 280G of the Code, and (ii) would be subject to the
excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then
Employee’s benefits under this Agreement shall be either


(a)           delivered
in full, or


(b)           delivered
as to such lesser extent which would result in no portion of such benefits
being subject to the Excise Tax,


whichever of the foregoing amounts, taking into
account the applicable federal, state and local income taxes and the Excise
Tax, results in the receipt by Employee on an after-tax basis, of the greatest
amount of benefits, notwithstanding that all or some portion of such benefits
may be taxable under Section 4999 of the Code.


Unless the Company and the Employee otherwise agree in writing, any
determination required under this Section shall be made in writing by the
Company’s independent public accountants (the “Accountants”), whose
determination shall be conclusive and binding upon the Employee and the Company
for all purposes.  For purposes of
making the calculations required by this Section, the Accountants may make
reasonable assumptions and approximations concerning applicable taxes and may
rely on reasonable, good faith interpretations concerning the application of
Section 280G and 4999 of the Code. 
The Company and the Employee shall furnish to the Accountants such
information and documents as the Accountants may reasonably request in order to
make a determination under this Section. 
The Company shall bear all costs the Accountants may reasonably incur in
connection with any calculations contemplated by this Section.


6.             Successors.


(a)           Company’s
Successors.  Any successor to the
Company (whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) to all or


 


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 substantially all of the Company’s business
and/or assets shall assume the Company’s obligations under this Agreement and
agree expressly to perform the Company’s obligations under this Agreement in
the same manner and to the same extent as the Company would be required to
perform such obligations in the absence of a succession.  For all purposes under this Agreement, the
term “Company” shall include any successor to the Company’s business and/or
assets which executes and delivers the assumption agreement described in this
subsection (a) or which becomes bound by the terms of this Agreement by
operation of law.


(b)           Employee’s
Successors.    Without the written
consent of the Company, Employee shall not assign or transfer this Agreement or
any right or obligation under this Agreement to any other person or entity.
Notwithstanding the foregoing, the terms of this Agreement and all rights of
Employee hereunder shall inure to the benefit of, and be enforceable by,
Employee’s personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.


7.             Notices.


(a)           General.  Notices and all other communications
contemplated by this Agreement shall be in writing and shall be deemed to have
been duly given when personally delivered or when mailed by U.S. registered or
certified mail, return receipt requested and postage prepaid.  In the case of the Employee, mailed notices
shall be addressed to him at the home address which he most recently
communicated to the Company in writing. 
In the case of the Company, mailed notices shall be addressed to its
corporate headquarters, and all notices shall be directed to the attention of its
Secretary.


(b)           Notice
of Termination.  Any termination by
the Company for Cause or by the Employee as a result of a voluntary resignation
or an Involuntary Termination shall be communicated by a notice of termination
to the other party hereto given in accordance with this Section.  Such notice shall indicate the specific
termination provision in this Agreement relied upon, shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination under the provision so indicated, and shall specify the Termination
Date (which shall be not more than 30 days after the giving of such
notice).  The failure by the Employee to
include in the notice any fact or circumstance which contributes to a showing
of Involuntary Termination shall not waive any right of the Employee hereunder
or preclude the Employee from asserting such fact or circumstance in enforcing
his rights hereunder.


8.             Arbitration.


(a)           Any
dispute or controversy arising out of, relating to, or in connection with this
Agreement, or the interpretation, validity, construction, performance, breach,
or termination thereof, shall be settled by binding arbitration to be held in
Santa Clara County, California, in accordance with the National Rules for the
Resolution of Employment Disputes then in effect of the American Arbitration
Association (the “Rules”).  The
arbitrator may grant injunctions or other relief in such dispute or
controversy.  The decision of the
arbitrator shall be final, conclusive and binding 


 


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on the
parties to the arbitration.  Judgment
may be entered on the arbitrator’s decision in any court having jurisdiction.


(b)           The
arbitrator(s) shall apply California law to the merits of any dispute or claim,
without reference to conflicts of law rules. 
The arbitration proceedings shall be governed by federal arbitration law
and by the Rules, without reference to state arbitration law.  Employee hereby consents to the personal
jurisdiction of the state and federal courts located in California for any action
or proceeding arising from or relating to this Agreement or relating to any
arbitration in which the parties are participants.


(c)           Employee
understands that nothing in this Section modifies Employee’s at-will employment
status.  Either Employee or the Company
can terminate the employment relationship at any time, with or without Cause.


(d)           EMPLOYEE
HAS READ AND UNDERSTANDS THIS SECTION, WHICH DISCUSSES ARBITRATION.  EMPLOYEE UNDERSTANDS THAT SUBMITTING ANY
CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR
THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION
THEREOF TO BINDING ARBITRATION, CONSTITUTES A WAIVER OF EMPLOYEE’S RIGHT TO A
JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL
ASPECTS OF THE EMPLOYER/EMPLOYEE RELATIONSHIP, INCLUDING BUT NOT LIMITED TO,
THE FOLLOWING CLAIMS:


(i)    ANY AND
ALL CLAIMS FOR WRONGFUL DISCHARGE OF EMPLOYMENT; BREACH OF CONTRACT, BOTH
EXPRESS AND IMPLIED; BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING,
BOTH EXPRESS AND IMPLIED; NEGLIGENT OR INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS; NEGLIGENT OR INTENTIONAL MISREPRESENTATION; NEGLIGENT OR INTENTIONAL
INTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC ADVANTAGE; AND DEFAMATION.


(ii)   ANY AND ALL
CLAIMS FOR VIOLATION OF ANY FEDERAL STATE OR MUNICIPAL STATUTE, INCLUDING, BUT
NOT LIMITED TO, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE CIVIL RIGHTS ACT
OF 1991, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE AMERICANS WITH
DISABILITIES ACT OF 1990, THE FAIR LABOR STANDARDS ACT, THE CALIFORNIA FAIR
EMPLOYMENT AND HOUSING ACT, AND LABOR CODE SECTION 201, et seq;


(iii)  ANY AND
ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND REGULATIONS RELATING TO EMPLOYMENT
OR EMPLOYMENT DISCRIMINATION.


 


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9.             Miscellaneous
Provisions.


(a)           No
Duty to Mitigate.  The Employee
shall not be required to mitigate the amount of any payment contemplated by
this Agreement, nor shall any such payment be reduced by any earnings that the
Employee may receive from any other source.


(b)           Waiver.  No provision of this Agreement may be
modified, waived or discharged unless the modification, waiver or discharge is
agreed to in writing and signed by the Employee and by an authorized officer of
the Company (other than the Employee). 
No waiver by either party of any breach of, or of compliance with, any
condition or provision of this Agreement by the other party shall be considered
a waiver of any other condition or provision or of the same condition or
provision at another time.


(c)           Integration.  This Agreement and any outstanding stock
option agreements and restricted stock purchase agreements referenced herein
represent the entire agreement and understanding between the parties as to the
subject matter herein and supersede all prior or contemporaneous agreements,
whether written or oral, with respect to this Agreement and any stock option
agreement or restricted stock purchase agreement.


(d)           Choice
of Law.  The validity, interpretation,
construction and performance of this Agreement shall be governed by the
internal substantive laws, but not the conflicts of law rules, of the State of
California.


(e)           Severability.  The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full force
and effect.


(f)            Employment
Taxes.  All payments made pursuant
to this Agreement shall be subject to withholding of applicable income and
employment taxes.


(g)           Counterparts.  This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together will constitute one and the same instrument.


 


 


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IN
WITNESS WHEREOF, each of the parties has executed this Agreement, in the case
of the Company by its duly authorized officer, as of the day and year first
above written.


	
   

  	
   

  
	
   

  	
   

  
	
  COMPANY:

  	
  UTSTARCOM, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
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  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EMPLOYEE:

  	
   

  
	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Printed Name

  
	
   

  	
   

  	
   

  



 


 


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