**Exhibit 10.3**

** **

**SEPARATION AGREEMENT AND RELEASE(CALIFORNIA)**

 

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

 

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

 

WHEREAS, concurrently with this Agreement, Employeeand UTStarcom (China) Co., Ltd. are entering into the Separation Agreement andRelease (China) dated even date herewith and attached as Exhibit B (the “ChinaRelease”);

 

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

 

### 1.     Consideration.

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### a.     The Company agrees to provideEmployee with a lump sum payment of twelve (12) months of Employee’s basesalary as in effect as of the date of such termination plus an additional onehundred thousand ($100,000) dollars, less applicable withholding, payable withinten (10) days after the Effective Date of this Agreement.

###  

### b.     In addition to the generalrelease of claims contained in this Agreement, Employee agrees that as acondition precedent to receipt of the payment set forth in Section 1.a.above, Employee will also execute and not revoke the China Release attached as Exhibit B.

###  

2.     General Release of Claims.  Employee agrees that the foregoingconsideration represents settlement in full of all outstanding obligations owedto Employee by the Company and its current and former officers, directors,employees, agents, investors, attorneys, shareholders, administrators,affiliates, divisions, and subsidiaries, and predecessor and successorcorporations and assigns (collectively, the “Releasees”).  Employee, on his own behalf and on behalf of hisrespective heirs, family members, executors, agents, and assigns, hereby andforever releases the Releasees from, and agrees not to sue concerning, or inany 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 maypossess against any of the Releasees arising from any omissions, acts, facts, ordamages that have occurred up until and including the Effective Date of thisAgreement, including, without limitation, any and all claims:  for violation of any federal, state, ormunicipal statute, except as prohibited by law; for violation of the federal orany state constitution; relating to, or arising from, Employee’s right topurchase, or actual purchase of shares of stock of the Company; relating to orarising from Employee’s employment relationship with the Company and the terminationof that relationship; arising out of any other laws and regulations relating toemployment or employment discrimination; for any loss, cost, damage, or expensearising out of any dispute over the non-withholding or other tax treatment ofany of the proceeds received by Employee as a result of this Agreement; forwrongful discharge of employment or any theory based on 

 

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contract, common law, or any statute; and for fraud, negligent orintentional misrepresentation, negligent or intentional interference withcontract or prospective economic advantage, unfair business practices,defamation, libel, and slander.  Employeeacknowledges that he is waiving and releasing any rights he may have under theAge Discrimination in Employment Act of 1967, as set forth in Exhibit A.

 

Employee agrees that the release set forth in thissection shall be and remain in effect in all respects as a complete generalrelease as to the matters released.  Thisrelease does not extend to any obligations incurred under this Agreement.  This release does not release claims thatcannot be released as a matter of law, including, but not limited to:  (1) Employee’s right to file a charge with orparticipate in a charge by the Equal Employment Opportunity Commission orcomparable state agency against the Company (with the understanding that anysuch filing or participation does not give Employee the right to recover anymonetary damages against the Company; Employee’s release of claims herein bars Employeefrom recovering such monetary relief from the Company); (2) claimsunder Division 3, Article 2 of the California Labor Code (which includesCalifornia Labor Code section 2802 regarding indemnity for necessaryexpenditures or losses by employee); and (3) claims prohibited fromrelease as set forth in California Labor Code section 206.5 (specifically “anyclaim or right on account of wages due, or to become due, or made as an advanceon wages to be earned, unless payment of such wages has been made”).

 

3.     California Civil Code Section 1542.  Employee acknowledges that he has beenadvised to consult with legal counsel and is familiar with the provisions ofCalifornia Civil Code Section 1542, a statute that otherwise prohibits therelease of unknown claims, which provides as follows:

 

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOTKNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THERELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HERSETTLEMENT WITH THE DEBTOR.

 

Employee, being aware of said code section, agrees toexpressly waive any rights he may have thereunder, as well as under any otherstatute or common law principles of similar effect.

 

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

 

5.     Non-Disparagement.  Employee agrees to refrain from anydisparagement, defamation, libel, or slander of any of the Releasees, and agreesto refrain from any tortious interference with the contracts and relationshipsof any of the Releasees.

 

6.     Company Property.  Employee acknowledges that he has returned tothe Company all company property, including but not limited to his computerlaptop, and any documents that were in his possession, custody, or controlprior to the Effective Date.

 

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

 

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8.     Voluntary Execution ofAgreement.  Employee understands andagrees that he executed this Agreement voluntarily, without any duress or undueinfluence on the part of the Company or any third party, with the full intentof releasing all of his claims against the Company and any of the other Releasees.  Employee acknowledges that:  he has read this Agreement; he has beenrepresented in the preparation, negotiation, and execution of this Agreement bylegal counsel of his own choice or has elected not to retain legal counsel; heunderstands the terms and consequences of this Agreement and of the releases itcontains; and he is fully aware of the legal and binding effect of thisAgreement.

 

9.     Integration.  This Agreement, the China Release and anyoutstanding stock option agreements between the Parties represent the entireagreement and understanding between the Parties as to the subject matter hereinand supersedes all prior or contemporaneous agreements, whether written or oral.

 

10.   Choice of Law.  The validity, interpretation, constructionand performance of this Agreement, but not the China Release, shall be governedby the laws of the State of California.

 

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

 
|                      |   | YING WU, an individual                                 |
|---------------------------|--------|--------------------------------------------------------|
|                      |   |                                                   |   |
| Dated: July 25, 2008 |   |        /s/ Ying  Wu |
|                      |   | Ying Wu                                                |
|                      |   |                                                   |   |
|                      |   |                                                   |   |
|                      |   | UTSTARCOM, INC.                                        |
|                      |   |                                                   |   |
| Dated: July 25, 2008 |   | By                                                     |        /s/ Susan Marsch |
|                      |   |                                                   | Susan Marsch, Vice President and General Counsel |

 

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**EXHIBIT A**

 

Acknowledgment of Waiver of Claims under ADEA.  Employee acknowledges that he is waiving andreleasing any rights he may have under the Age Discrimination in Employment Actof 1967 (“ADEA”), and that this waiver and release is knowing andvoluntary.  Employee agrees that thiswaiver and release does not apply to any rights or claims that may arise underthe ADEA after the Effective Date of this Agreement.  Employee acknowledges that the considerationgiven for this waiver and release is in addition to anything of value to whichEmployee was already entitled.  Employeefurther acknowledges that he has been advised by this writing that: (a) heshould consult with an attorney prior to executing this Agreement; (b) hehas twenty-one (21) days within which to consider this Agreement; (c) hehas seven (7) days following his execution of this Agreement to revokethis Agreement; (d) this Agreement shall not be effective until after therevocation period has expired; and (e) nothing in this Agreement preventsor precludes Employee from challenging or seeking a determination in good faithof the validity of this waiver under the ADEA, nor does it impose any conditionprecedent, penalties, or costs for doing so, unless specifically authorized byfederal law.  In the event Employee signsthis Agreement and returns it to the Company in less than the 21-day periodidentified above, Employee hereby acknowledges that he has freely andvoluntarily chosen to waive the time period allotted for considering thisAgreement.

 

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**EXHIBIT B**

 

**SEPARATION AGREEMENT AND RELEASE(CHINA)**

 

This Separation Agreement and Release (this “ChinaRelease”) 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 alldisputes, claims, complaints, grievances, charges, actions, petitions, anddemands that the Employee may have against the Company and any of the Releaseesas defined below, including, but not limited to, any and all claims arising outof or in any way related to Employee’s employment with or separation from theCompany;

 

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

 

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

 

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

 

2.        Release of Claims.  Employee agrees that the foregoingconsideration represents settlement in full of all outstanding obligations owedto Employee by the Company and its current and former officers, directors,employees, agents, investors, attorneys, shareholders, administrators,affiliates, divisions, and subsidiaries, and predecessor and successorcorporations and assigns (collectively, the “Releasees”).  Employee, on his own behalf and on behalf ofhis respective heirs, family members, executors, agents, and assigns, herebyand forever releases the Releasees from, and agrees not to sue concerning, orin 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 maypossess against any of the Releasees arising from any omissions, acts, facts,or damages that have occurred up until and including the Effective Date of thisAgreement, including, without limitation, any and all claims:  for violation of any applicable laws, except as prohibited by law; relating to orarising from Employee’s employment relationship with the Company and thetermination of that relationship; arising out of any other laws and regulationsrelating to employment or employment discrimination; for any loss, cost,damage, or expense arising out of any dispute over the non-withholding or othertax treatment of any of the proceeds received by Employee as a result of thisAgreement; for wrongful discharge of employment or any theory based oncontract, common law, or any statute; and for fraud, negligent or intentionalmisrepresentation, negligent or intentional interference with contract orprospective economic advantage, unfair business practices, defamation, libel,and slander.

 

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3.     Employment Relationship.  The Parties acknowledge andagree 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 refrainfrom any tortious interference with the contracts and relationships of any ofthe Releasees.

 

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

 

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

 

7.     Dispute Process. Any dispute arising from or relating to this ChinaRelease shall besubmitted to the labor dispute arbitration tribunal in the place where theCompany 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 thesubject matter herein and supersedes all prior or contemporaneous agreements,whether written or oral.

 

9.     Effective Date.  Each Party has seven (7) days after thatParty signs the Agreement and this Exhibit B to revoke it.  The Agreement will become effective on theeighth (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 eitherParty before that date (the “Effective Date”).

 

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

 

IN WITNESS WHEREOF, the Parties have executed this Agreement on thedates 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 |

 

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