Exhibit 10.3
SEPARATION AGREEMENT AND RELEASE
(CALIFORNIA)
This Separation Agreement and
Release (this “Agreement”) is made by and between Ying
Wu (“Employee”) and UTStarcom, Inc. (the
“Company”) (collectively, referred to as the
“Parties” or individually, referred to as a
“Party”).
WHEREAS, the Parties wish to resolve
any and all disputes, claims, complaints, grievances, charges,
actions, petitions, and demands that the Employee may have against
the Company and any of the Releasees as defined below, including,
but not limited to, any and all claims arising out of or in any way
related to Employee’s employment with or separation from the
Company;
WHEREAS, concurrently with this
Agreement, Employee and UTStarcom (China) Co., Ltd. are entering
into the Separation Agreement and Release (China) dated even date
herewith and attached as Exhibit B (the “China
Release”);
NOW, THEREFORE, in consideration of
the mutual promises made herein, the Company and Employee hereby
agree as follows:
1.
Consideration
.
a.
The Company
agrees to provide Employee with a lump sum payment of twelve
(12) months of Employee’s base salary as in effect as of
the date of such termination plus an additional one hundred
thousand ($100,000) dollars, less applicable withholding, payable
within ten (10) days after the Effective Date of this
Agreement.
b.
In addition to
the general release of claims contained in this Agreement, Employee
agrees that as a condition precedent to receipt of the payment set
forth in Section 1.a. above, Employee will also execute and
not revoke the China Release attached as
Exhibit B.
2. General Release of Claims
. Employee agrees that the
foregoing consideration represents settlement in full of all
outstanding obligations owed to Employee by the Company and its
current and former officers, directors, employees, agents,
investors, attorneys, shareholders, administrators, affiliates,
divisions, and subsidiaries, and predecessor and successor
corporations and assigns (collectively, the
“Releasees”). Employee, on his own behalf and on
behalf of his respective heirs, family members, executors, agents,
and assigns, hereby and forever releases the Releasees from, and
agrees not to sue concerning, or in any manner to institute,
prosecute, or pursue, any claim, complaint, charge, duty,
obligation, or cause of action relating to any matters of any kind,
whether presently known or unknown, suspected or unsuspected, that
Employee may possess against any of the Releasees arising from any
omissions, acts, facts, or damages that have occurred up until and
including the Effective Date of this Agreement, including, without
limitation, any and all claims: for violation of any federal,
state, or municipal statute, except as prohibited by law; for
violation of the federal or any state constitution; relating to, or
arising from, Employee’s right to purchase, or actual
purchase of shares of stock of the Company; relating to or arising
from Employee’s employment relationship with the Company and
the termination of that relationship; arising out of any other laws
and regulations relating to employment or employment
discrimination; for any loss, cost, damage, or expense arising out
of any dispute over the non-withholding or other tax treatment of
any of the proceeds received by Employee as a result of this
Agreement; for wrongful discharge of employment or any theory based
on
contract, common law, or any statute; and for
fraud, negligent or intentional misrepresentation, negligent or
intentional interference with contract or prospective economic
advantage, unfair business practices, defamation, libel, and
slander. Employee acknowledges that he is waiving and
releasing any rights he may have under the Age Discrimination in
Employment Act of 1967, as set forth in Exhibit A.
Employee agrees that the release set
forth in this section shall be and remain in effect in all respects
as a complete general release as to the matters released.
This release does not extend to any obligations incurred under this
Agreement. This release does not release claims that cannot
be released as a matter of law, including, but not limited
to: (1) Employee’s right to file a charge with or
participate in a charge by the Equal Employment Opportunity
Commission or comparable state agency against the Company (with the
understanding that any such filing or participation does not give
Employee the right to recover any monetary damages against the
Company; Employee’s release of claims herein bars Employee
from recovering such monetary relief from the Company);
(2) claims under Division 3, Article 2 of the California
Labor Code (which includes California Labor Code section 2802
regarding indemnity for necessary expenditures or losses by
employee); and (3) claims prohibited from release as set forth
in California Labor Code section 206.5 (specifically “any
claim or right on account of wages due, or to become due, or made
as an advance on wages to be earned, unless payment of such wages
has been made”).
3. California Civil Code
Section 1542 .
Employee acknowledges that he has been advised to consult with
legal counsel and is familiar with the provisions of California
Civil Code Section 1542, a statute that otherwise prohibits
the release of unknown claims, which provides as
follows:
A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN
BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR.
Employee, being aware of said code
section, agrees to expressly waive any rights he may have
thereunder, as well as under any other statute or common law
principles of similar effect.
4. Employment Relationship . The Parties acknowledge and agree that
the employment relationship between the Parties terminated on
June 1, 2007.
5. Non-Disparagement . Employee agrees to refrain from any
disparagement, defamation, libel, or slander of any of the
Releasees, and agrees to refrain from any tortious interference
with the contracts and relationships of any of the
Releasees.
6. Company Property . Employee acknowledges that he has
returned to the Company all company property, including but not
limited to his computer laptop, a
