OF THE COMPANY TO ASSUME EXPRESSLY
AND TO AGREE TO PERFORM THIS AGREEMENT IN THE SAME MANNER AND TO THE SAME EXTENT
THAT THE COMPANY WOULD BE REQUIRED TO PERFORM IT IF NO SUCH SUCCESSION HAD TAKEN
PLACE.
(E)
AMENDMENT.
NO PROVISION OF THIS AGREEMENT MAY BE AMENDED,
MODIFIED, WAIVED OR DISCHARGED UNLESS SUCH AMENDMENT, MODIFICATION, WAIVER OR
DISCHARGE IS AGREED TO IN WRITING AND SIGNED BY THE PARTIES.
NO WAIVER BY
EITHER PARTY HERETO AT ANY TIME OF ANY BREACH BY THE OTHER PARTY HERETO OF, OR
COMPLIANCE WITH, ANY CONDITION OR PROVISION OF THIS AGREEMENT TO BE PERFORMED BY
SUCH OTHER PARTY SHALL BE DEEMED A WAIVER OF SIMILAR OR DISSIMILAR PROVISIONS OR
CONDITIONS AT THE SAME OR AT ANY PRIOR OR SUBSEQUENT TIME.
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(F)
SEVERABILITY.
IF ANY TERM OR PROVISION HEREOF IS DETERMINED TO
BE INVALID OR UNENFORCEABLE IN A FINAL COURT OR ARBITRATION PROCEEDING, (I) THE
REMAINING TERMS AND PROVISIONS HEREOF SHALL BE UNIMPAIRED AND (II) THE INVALID
OR UNENFORCEABLE TERM OR PROVISION SHALL BE DEEMED REPLACED BY A TERM OR
PROVISION THAT IS VALID AND ENFORCEABLE AND THAT COMES CLOSEST TO EXPRESSING THE
INTENTION OF THE INVALID OR UNENFORCEABLE TERM OR PROVISION.
(G)
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (DETERMINED WITHOUT REGARD
TO THE CHOICE OF LAW PROVISIONS THEREOF).
(H)
ENTIRE AGREEMENT.
THIS AGREEMENT CONTAINS THE ENTIRE AGREEMENT OF
THE EXECUTIVE, THE COMPANY AND ANY PREDECESSORS OR AFFILIATES THEREOF WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND ALL PRIOR AGREEMENTS AND NEGOTIATIONS,
INCLUDING, WITHOUT LIMITATION, THE EXISTING EMPLOYMENT AGREEMENT, ARE SUPERSEDED
HEREBY AS OF THE DATE OF THIS AGREEMENT.
(I)
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED BY THE PARTIES
HERETO IN COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL, BUT BOTH SUCH
COUNTERPARTS SHALL TOGETHER CONSTITUTE ONE AND THE SAME DOCUMENT
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IN WITNESS WHEREOF, the parties have executed this Agreement, effective as of
the day and year first written above.
UTSTARCOM, INC.
By:
/s/ Hong Liang Lu
Name:
Title:
EXECUTIVE
/s/ Philip Christopher
Philip Christopher
EXHIBIT A
RELEASE AGREEMENT
THIS RELEASE AGREEMENT (the "Release") is made as of this [DATE], by and between
Philip Christopher (the "Executive"), and UTStarcom, Inc. (the "Company").
In
consideration of the mutual agreements set forth below, the Executive and the
Company hereby agree as follows:
1.
General Release of Claims Against the Company.
For good and
valuable consideration, including the payments and benefits set forth in the
Employment Agreement dated June 11,2004 between the Company and the Executive
(the "Employment Agreement"), of which this Release forms a part, the Executive
hereby knowingly, voluntarily, and willingly releases, discharges, and covenants
not to sue the Company and its direct and indirect parents, subsidiaries,
affiliates and related companies, past and present, as well as each of its and
their directors, officers, employees, agents of the foregoing, representatives,
advisers, attorneys, trustees, insurers, assigns, successors, and agents, past
and present (collectively hereinafter referred to