Exhibit 10.78
[***] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS
UTSTARCOM
PROFESSIONAL SERVICES AGREEMENT
This Agreement is made this 10th day of September 2002, between UTStarcom, a
Delaware corporation having an address and place of business at 1275 Harbor Bay
Parkway, Alameda, CA 94502, (hereinafter referred to as "UTStarcom"), and N.
Lohr Bangle, Jr. (hereinafter referred to as "Consultant"), having a Social
Security Number of [***].
WHEREAS, Consultant is engaged in the general business of providing [***]
services to a variety of individuals including companies in the wireless and
telecommunications products and services companies;
WHEREAS, UTSI wishes to retain Consultant to provide services related to its
products related to [***].
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, it is agreed as follows:
1.
STATEMENT OF WORK.
DURING THE TERM OF THIS AGREEMENT, CONSULTANT
WILL PERFORM SERVICES AS REQUESTED FROM TIME TO TIME BY UTSTARCOM, AT SUCH PLACE
OR PLACES AND AT SUCH TIMES AS SHALL BE MUTUALLY AGREEABLE TO THE PARTIES
HERETO.
CONSULTANT SHALL ASSIST UTSTARCOM WITH [***] SUPPLIED BY UTSI.
CONSULTANT WILL COORDINATE [***] EFFORTS WITH COMPANIES AND INDIVIDUALS AND
SHALL PROVIDE PURCHASE ORDERS FOR UTSTARCOM'S PRODUCTS TO PROSPECTIVE CUSTOMERS
PURSUANT TO THE RESELLER AGREEMENT DATED SEPTEMBER 10, 2002 BETWEEN [***] AND
UTSTARCOM, INC. (THE "RESELLER AGREEMENT").
2.
PAYMENT.
UTSTARCOM SHALL PAY CONSULTANT ACCORDING TO THE
FOLLOWING SCHEDULE:
(A)
FEES.
IN CONSIDERATION OF THE SERVICES TO BE PERFORMED BY
CONSULTANT, UTSTARCOM AGREES TO PAY CONSULTANT A MARKET DEVELOPMENT FEE OF [***]
(B)
PAYMENTS.
THE MARKET DEVELOPMENT FEE FOR ALL SUBMITTED PURCHASE
ORDERS RECEIVED BY UTSTARCOM FROM CONSULTANT OR ATTRIBUTABLE END USER CUSTOMERS
SHALL BE PAID TO CONSULTANT WITHIN [***] OF RECEIPT BY THE CONSULTANT OF AN
INVOICE.
CONSULTANT SHALL SEND INVOICES TO: UTSTARCOM, INC., ATTN: ACCOUNTS
PAYABLE, 1275 HARBOR BAY PARKWAY, ALAMEDA, CA 94502.
3.
OTHER OBLIGATIONS.
CONSULTANT AGREES TO ALLOCATE A MINIMUM OF
[***] FOR UTSI USE.
THERE WILL NOT BE ANY OTHER EXPENSES OR CHARGES FOR THIS
POSITION UNLESS MUTUALLY AGREED UPON IN WRITING BY BOTH PARTIES.
4.
TERM AND TERMINATION.
CONSULTANT'S AUTHORITY SHALL BEGIN AS OF
THE DATE OF THIS AGREEMENT AND SHALL CONTINUE FOR AN INITIAL PERIOD OF [***]
(THE "INITIAL PERIOD").
AT THE END OF THE INITIAL PERIOD, THIS AGREEMENT SHALL
AUTOMATICALLY RENEW FOR AN ADDITIONAL [***] UNLESS EITHER PARTY GIVES [***]
WRITTEN NOTICE TO THE OTHER OF INTENT TO TERMINATE CONSULTANT'S AUTHORITY.
5.
CONFIDENTIALITY.
BOTH PARTIES RECOGNIZE AND AGREE THAT THE TERMS
OF THIS AGREEMENT AND ANY INFORMATION REGARDING EACH PROSPECTIVE AGREEMENT SHALL
BE HELD CONFIDENTIAL BY ITS RESPECTIVE PARTIES, AGENTS, EMPLOYEES AND OFFICERS.
(A)
DURING THE TERM OF THIS AGREEMENT, CONSULTANT WILL HAVE ACCESS TO
AND BECOME ACQUAINTED WITH VARIOUS TRADE SECRETS AND OTHER PROPRIETARY AND
CONFIDENTIAL INFORMATION WHICH ARE OWNED BY UTSTARCOM AND WHICH ARE USED IN THE
OPERATION OF UTSTARCOM'S BUSINESS (COLLECTIVELY "CONFIDENTIAL INFORMATION").
CONFIDENTIAL INFORMATION CONSISTS OF FOR EXAMPLE, AND NOT INTENDING TO BE