OR CONDITION OF THE PLAN, OR ANY RELATED DOCUMENT,
WILL BE CONCLUSIVE AND BINDING ON ALL PERSONS AND BE GIVEN THE MAXIMUM POSSIBLE
DEFERENCE ALLOWED
6
BY LAW.
THE ADMINISTRATOR HAS THE AUTHORITY TO ACT FOR THE COMPANY (IN A
NON-FIDUCIARY CAPACITY) AS TO ANY MATTER PERTAINING TO THE PLAN; PROVIDED,
HOWEVER, THAT THIS AUTHORITY DOES NOT APPLY WITH RESPECT TO (A) THE COMPANY'S
POWER TO AMEND OR TERMINATE THE PLAN OR (B) ANY ACTION THAT COULD REASONABLY BE
EXPECTED TO INCREASE SIGNIFICANTLY THE COST OF THE PLAN IS SUBJECT TO THE PRIOR
APPROVAL OF THE SENIOR OFFICER OF THE COMPANY.
THE ADMINISTRATOR MAY DELEGATE
IN WRITING TO ANY OTHER PERSON ALL OR ANY PORTION OF HIS OR HER AUTHORITY OR
RESPONSIBILITY WITH RESPECT TO THE PLAN.
9.
ELIGIBILITY TO PARTICIPATE.
THE ADMINISTRATOR WILL NOT BE
EXCLUDED FROM PARTICIPATING IN THE PLAN IF OTHERWISE ELIGIBLE, BUT HE OR SHE IS
NOT ENTITLED TO ACT OR PASS UPON ANY MATTERS PERTAINING SPECIFICALLY TO HIS OR
HER OWN BENEFIT OR ELIGIBILITY UNDER THE PLAN.
THE SENIOR OFFICER OF UTSTARCOM,
INC. WILL ACT UPON ANY MATTERS PERTAINING SPECIFICALLY TO THE BENEFIT OR
ELIGIBILITY OF THE ADMINISTRATOR UNDER THE PLAN.
10.
AMENDMENT OR TERMINATION.
THE COMPANY RESERVES THE RIGHT TO
AMEND, MODIFY OR TERMINATE THE PLAN AT ANY TIME, WITHOUT ADVANCE NOTICE TO ANY
COVERED EMPLOYEE; PROVIDED, HOWEVER, THAT, COMMENCING ON THE DATE OF A CHANGE IN
CONTROL, NO AMENDMENT OR TERMINATION OF THE PLAN SHALL REDUCE THE SEVERANCE
BENEFIT PAYABLE TO ANY COVERED EMPLOYEE (UNLESS THE AFFECTED COVERED EMPLOYEE
CONSENTS TO SUCH AMENDMENT OR TERMINATION).
ANY ACTION OF THE COMPANY IN
AMENDING OR TERMINATING THE PLAN WILL BE TAKEN IN A NON-FIDUCIARY CAPACITY.
11.
CODE SECTION 409A.
11.1
AMENDMENT.
NOTWITHSTANDING ANYTHING IN THIS PLAN TO THE CONTRARY,
THE COMPANY RESERVES THE AUTHORITY TO AMEND THE PLAN AS IT DEEMS NECESSARY OR
DESIRABLE, AND WITHOUT THE CONSENT OF ANY COVERED EMPLOYEE OR WITHOUT PROVIDING
ANY ADVANCE NOTICE OF ANY SUCH AMENDMENT, IN ORDER TO ENSURE THE PLAN COMPLIES
WITH SECTION 409A OF THE CODE AND ANY REGULATIONS AND OTHER GUIDANCE ISSUED
THEREUNDER.
11.2
DISTRIBUTIONS.
IN THE EVENT THAT THE ADMINISTRATOR DETERMINES THAT
SECTION 409 A OF THE CODE, OR ITS REGULATIONS AND OTHER GUIDANCE ISSUED
THEREUNDER, WOULD REQUIRE THE DELAY IN THE PAYMENT OF ANY SEVERANCE BENEFITS TO
A COVERED EMPLOYEE WHO WOULD BE CONSIDERED A "SPECIFIED EMPLOYEE" (AS DEFINED
BELOW), THE ADMINISTRATOR WILL, IRRESPECTIVE OF ANY ELECTION TO THE CONTRARY OR
ANY OTHER TERM OF THE PLAN, DELAY THE PAYMENT OF SEVERANCE BENEFITS UNTIL THE
DATE WHICH IS AT LEAST SIX (6) MONTHS AFTER THE DATE OF THE COVERED EMPLOYEE'S
INVOLUNTARY TERMINATION.
FOR THE PURPOSES OF THIS SECTION 11.2, THE TERM
"SPECIFIED EMPLOYEE" MEANS ANY COVERED EMPLOYEE WHO WOULD BE CONSIDERED A
"SPECIFIED EMPLOYEE" AS THAT TERM IS DEFINED IN SECTION 409A(A)(2)(B)(I) OF THE
CODE.
12.
CLAIMS PROCEDURE.
ANY EMPLOYEE OR OTHER PERSON WHO BELIEVES HE OR
SHE IS ENTITLED TO ANY PAYMENT UNDER THE PLAN MAY SUBMIT A CLAIM IN WRITING