EXHIBIT 10.28


UTSTARCOM,
INC.


AMENDED AND RESTATED CHANGE OF CONTROL/INVOLUNTARY
TERMINATION 

SEVERANCE AGREEMENT


This Amended and Restated Change of
Control/Involuntary Termination Severance Agreement (the “Agreement”) is made
and entered into effective as of November 14, 2006 (the “Effective Date”), by
and between Ying Wu (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.            The
Company and Employee previously entered into a Change of Control/Involuntary
Termination Severance Agreement which provided the Employee with severance
benefits upon the Employee’s termination of employment under certain
circumstances (the “Original Agreement”).


B.            The
Board of Directors of the Company (the “Board”) believes that it is in the best
interests of the Company and its shareholders to provide the Employee with
further incentives to continue his employment.


C.            In
order to provide the Employee with enhanced financial security and sufficient
encouragement to remain with the Company, the Board wishes to augment certain
terms of the Original Agreement, which is hereby amended and restated in its
entirety as follows.


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)           Change
in Control Involuntary Termination.  “Change
in Control 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;
provided, however, that a reduction in duties, position or responsibilities
solely by virtue of the Company being acquired and made part of a larger entity
shall not constitute a “Change in Control Involuntary Termination;”
(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 



 2
 








(vii) the failure of the Company to obtain the assumption of this Agreement
by any successors contemplated in Section 7 below.


(d)           Regular
Involuntary Termination.  “Regular
Involuntary Termination” shall mean any termination (other than a termination
for Cause) of the Employee by the Company which is not within eighteen
(18) months after a Change in Control.


(e)           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 will have a term of three
(3) years commencing on the Effective Date.  Following the expiration of the three-year
term, the Employee and the Company may, but are not obligated to, enter into a
new agreement.  If Employee’s employment
continues following the expiration of the three-year term, and the Company and
Employee do not enter into a new agreement, Employee’s then current benefits
arrangements shall continue in accordance with the terms of this Agreement
until the Parties agree otherwise.


3.             At-Will Employment.  The Company and the Employee acknowledge that
subject to the provisions of this Agreement, 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 a Change
in Control Involuntary Termination at any time within eighteen (18) 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
equity awards, including without limitation stock option grants, restricted
stock and stock purchase rights, granted by the Company to the Employee prior
to the Change of Control shall become fully vested or released from the Company’s
repurchase right (if any shares of stock purchased by or granted to the
Employee prior to the Change of Control remain subject to such repurchase
right) and exercisable as of the date of the termination to the extent such
equity awards are outstanding and unexercisable or unreleased at the time of
such termination. The period over which the Employee shall be permitted to
exercise his or her vested equity awards (including awards that vest as a
result of the Agreement) shall be as follows: (a) with respect to 



 3
 








equity compensation awards outstanding as of June 20, 2006, such
awards shall remain exercisable until the latest of (i) the fifteenth
(15th) day of the third month following the date at which any such equity
award would have otherwise terminated, (ii) December 31 of the year
during which any such equity award would have otherwise terminated, or
(iii) such longer period of time (not to exceed twelve (12) months
from the date of termination) that would be permissible under Section 409A
of the Internal Revenue Code of 1986, as amended (the “Code”) and any
temporary, proposed or final Treasury Regulations and guidance promulgated
thereunder so that the extension of the post-termination exercise period would
not be considered a modification (as determined under Section 409A of the
Code) of such equity awards; and (b) with respect to equity awards granted
to the Employee after June 20 2006, such awards shall remain exercisable
for twelve (12) months from the date of termination; and


(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 (A) the
Employee constitutes a qualified beneficiary, as defined in
Section 4980B(g)(l) of the Internal Revenue Code of 1986, as amended; and
(B) 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 (A) the date Employee
is no longer eligible to receive continuation coverage pursuant to COBRA, or
(B) twelve (12) months from the termination date.


(b)           Termination
Apart from a Change of Control.  If
the Employee’s employment with the Company terminates as a result of a Regular
Involuntary Termination during the term of this Agreement, then the Employee
shall be entitled to the following severance benefits:


(i)    twelve
(12) 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 Regular Involuntary Termination;


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


(iii)  all
equity awards, including without limitation stock option grants, restricted stock
and stock purchase rights, granted by the Company to the Employee shall become
fully vested or released from the Company’s repurchase right (if any shares of
stock purchased by or granted to the Employee remain subject to such repurchase
right) and exercisable as of the date of the termination to the extent such
equity awards are outstanding and unexercisable or unreleased at the time of
such termination.  The period over which
the Employee shall be permitted to exercise his or her vested equity awards
(including awards that vest as a result of the Agreement) shall be as follows:
(a) with respect to equity compensation awards outstanding as of
June 20, 2006, such awards shall remain exercisable until the latest of
(i) the fifteenth (15th) day of the third month following the date at
which any such equity award would have otherwise terminated,
(ii) December 31 of the year during which any such equity award would
have otherwise terminated, or (iii) such longer period of time (not to
exceed twelve (12) months from the date of termination) that would be
permissible under Section 409A of the Code and any temporary, proposed or
final 



 4
 








Treasury Regulations and guidance promulgated thereunder so that the
extension of the post-termination exercise period would not be considered a
modification (as determined under Section 409A of the Code) of such equity
awards; and (b) with respect to equity awards granted to the Employee
after June 20, 2006, such awards shall remain exercisable for twelve (12) months
from the date of termination; and


(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 (A) the
Employee constitutes a qualified beneficiary, as defined in
Section 4980B(g)(l) of the Internal Revenue Code of 1986, as amended; and
(B) 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 (A) the date Employee is no longer eligible to
receive continuation coverage pursuant to COBRA, or (B) twelve
(12) months from the termination date.


(c)           Termination
Apart from a Change of Control or Regular Involuntary Termination.  For avoidance of doubt, if the Employee’s
employment with the Company terminates as a result of Cause, 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.


(d)           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.             Section 409A.  Notwithstanding anything to the contrary in
this Agreement, if the Company reasonably determines that Section 409A of
the Code will result in the imposition of additional tax to an earlier payment
of any severance or other benefits otherwise due to the Employee pursuant to
Section 4 of this Agreement or otherwise on or within the six
(6) month period following the Employee’s termination, the severance
benefits will accrue during such six (6) month period and will become
payable in a lump sum payment on the date six (6) months and one
(1) day following the Employee’s date of termination.  All subsequent payments, if any, will be
payable as provided in this Agreement. 
In addition, notwithstanding anything to the contrary in this Agreement,
this Agreement will be deemed amended to the extent necessary to avoid
imposition of any additional tax or income recognition prior to actual payment
to the Employee under Code Section 409A and any temporary, proposed or
final Treasury Regulations and guidance promulgated thereunder and the parties
agree to cooperate with each other and to take reasonably necessary steps in
this regard.



 5
 








 


6.             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.


7.             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 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.



 6
 








 


8.             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 thirty (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.


9.             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 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 



 7
 








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.


10.           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.



 8
 








 


(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.


 



 9















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.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark Green

  
	
   

  	
  Title:

  	
  VP, HR

  
	
   

  	
   

  	
   

  
	
  EMPLOYEE:

  	
  /s/ Ying Wu

  
	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
  Ying Wu

  
	
   

  	
  Printed Name

  






 


SIGNATURE
PAGE TO AMENDED AND RESTATED CHANGE OF

CONTROL/INVOLUNTARY TERMINATION SEVERANCE AGREEMENT