SHALL CONTINUE
IN FULL FORCE AND EFFECT WITHOUT SAID PROVISION OR PORTION OF PROVISION.
22.
ATTORNEYS' FEES. EXCEPT WITH REGARD TO A
LEGAL ACTION CHALLENGING OR SEEKING A DETERMINATION IN GOOD FAITH OF THE
VALIDITY OF THE WAIVER HEREIN UNDER THE ADEA, IN THE EVENT THAT EITHER PARTY
BRINGS AN ACTION TO ENFORCE OR EFFECT ITS RIGHTS UNDER THIS AGREEMENT, THE
PREVAILING PARTY SHALL BE ENTITLED TO RECOVER ITS COSTS AND EXPENSES, INCLUDING
THE COSTS OF MEDIATION, ARBITRATION, LITIGATION, COURT FEES, AND REASONABLE
ATTORNEYS' FEES INCURRED IN CONNECTION WITH SUCH AN ACTION.
23.
ENTIRE AGREEMENT. THIS AGREEMENT REPRESENTS
THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE COMPANY AND EMPLOYEE
CONCERNING THE SUBJECT MATTER OF THIS
AGREEMENT AND EMPLOYEE'S EMPLOYMENT WITH AND SEPARATION FROM THE COMPANY AND THE
EVENTS LEADING THERETO AND ASSOCIATED THEREWITH, AND SUPERSEDES AND REPLACES ANY
AND ALL PRIOR AGREEMENTS AND UNDERSTANDINGS CONCERNING THE SUBJECT MATTER OF
THIS AGREEMENT AND EMPLOYEE'S RELATIONSHIP WITH THE COMPANY, WITH THE EXCEPTION
OF THE CONFIDENTIALITY AGREEMENT, THE INDEMNITY AGREEMENT AND THE EQUITY AWARD
AGREEMENTS.
24.
NO ORAL MODIFICATION. THIS AGREEMENT MAY
ONLY BE AMENDED IN A WRITING SIGNED BY EMPLOYEE AND THE COMPANY'S CHIEF
EXECUTIVE OFFICER.
25.
GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD FOR
CHOICE-OF-LAW PROVISIONS. EMPLOYEE CONSENTS TO PERSONAL AND EXCLUSIVE
JURISDICTION AND VENUE IN THE STATE OF CALIFORNIA.
26.
EFFECTIVE DATE. EMPLOYEE HAS SEVEN (7) DAYS
AFTER HE SIGNS THIS AGREEMENT TO REVOKE IT. THIS AGREEMENT WILL BECOME EFFECTIVE
ON THE EIGHTH (8TH) DAY AFTER EMPLOYEE SIGNED THIS AGREEMENT, SO LONG AS IT HAS
BEEN SIGNED BY THE PARTIES AND HAS NOT BEEN REVOKED (THE "EFFECTIVE DATE").
27.
COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED
IN COUNTERPARTS AND BY FACSIMILE, AND EACH COUNTERPART AND FACSIMILE SHALL HAVE
THE SAME FORCE AND EFFECT AS AN ORIGINAL AND SHALL CONSTITUTE AN EFFECTIVE,
BINDING AGREEMENT ON THE PART OF EACH OF THE UNDERSIGNED.
28.
VOLUNTARY EXECUTION OF AGREEMENT. EMPLOYEE
UNDERSTANDS AND AGREES THAT HE EXECUTED THIS AGREEMENT VOLUNTARILY, WITHOUT ANY
DURESS OR UNDUE INFLUENCE ON THE PART OR BEHALF 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:
(a)
he has read this Agreement;
(b)
he has been represented in the preparation,
negotiation, and execution of this Agreement by legal counsel of his own choice
or has elected not to retain legal counsel;
(c)
he understands the terms and consequences
of this Agreement and of the releases it contains; and
(d)
he is fully aware of the legal and binding
effect of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the respective
dates set forth below.
Francis P. Barton, an individual
Dated: August 28, 2008
/s/ Francis P. Barton
Francis P. Barton
UTStarcom, Inc.
Dated: August 28, 2008
By
/s/ Mark Green
Mark Green
Senior Vice President, Worldwide Human
Resources and Real Estate
SCHEDULE A
EQUITY AWARDS