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Exhibit 10.117  


 
 

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
                        , 2006 (the "Effective Date"), by and between Francis P. Barton (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 employement 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 (vii) the failure of the Company to obtain the assumption of this Agreement by any successors contemplated in Section 6 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 twelve (12) 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 



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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,
with the right to exercise said equity awards within twelve (12) months of such 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)(1) 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 (C) the date Employee is no
longer eligible to receive continuation coverage pursuant to COBRA, or (D) 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)  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 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, with the right to exercise said equity awards within twelve
(12) months of such termination; and 





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        (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)(1) 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 (C) the date Employee is no longer eligible to receive continuation coverage pursuant
to COBRA, or (D) 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.    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. 


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        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 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 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. 




        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 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 




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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. 





        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 




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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.
	

 	
 	

By:	
 	

    

	 	 	Title:	 	    

	

EMPLOYEE:	
 	

    
 Signature
	

 	
 	

Francis P. Barton
 Printed Name




SIGNATURE PAGE TO AMENDED AND RESTATED CHANGE OF

CONTROL/INVOLUNTARY TERMINATION SEVERANCE AGREEMENT


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UTSTARCOM, INC. AMENDED AND RESTATED CHANGE OF CONTROL/INVOLUNTARY TERMINATION SEVERANCE AGREEMENT