Exhibit 10.42
UTSTARCOM, INC.
AMENDMENT TO AMENDED AND
RESTATED
CHANGE OF CONTROL/INVOLUNTARY
TERMINATION SEVERANCE AGREEMENT
Hong Liang Lu (“
Employee ”) and UTStarcom, Inc. (the
“ Company ”, and together with Employee,
the “ Parties ”) desire to amend an
Amended and Restated Change of Control/Involuntary Termination
Severance Agreement dated January 30, 2008 (the “
Agreement ”) to bring the Agreement into
documentary compliance with Section 409A of the Internal
Revenue Code of 1986, as amended (the “
Code ”) and the final regulations and official
guidance promulgated thereunder (together, “
Section 409A ”), for good and valuable
consideration, as follows:
1.
Section 409A . Section 5 of the Agreement is
amended and restated as follows:
“5.
Section 409A.
(a)
Notwithstanding anything to the contrary in this Agreement, no
severance payments or benefits to be paid or provided to Employee,
if any, pursuant to this Agreement, when considered together with
any other severance payments or separation benefits that are
considered deferred compensation under Code Section 409A, and
the final regulations and any guidance promulgated thereunder
(“Section 409A”) (together, the “Deferred
Compensation Separation Benefits”) will be paid or otherwise
provided until Employee has a “separation from service”
within the meaning of Section 409A.
(b)
Any severance payments or benefits that would be considered
Deferred Compensation Severance Benefits will be paid on, or, in
the case of installments, will not commence until, the sixtieth
(60 th ) day following
Employee’s separation from service, or, if later, such time
as required by Section 5(c). Any installment payments
that would have been made to Employee during the sixty (60) day
period immediately following Employee’s separation from
service but for the preceding sentence will be paid to Employee on
the sixtieth (60th) day following Employee’s separation from
service and the remaining payments shall be made as provided in
this Agreement.
(c)
Notwithstanding anything to the contrary in this Agreement, if
Employee is a “specified employee” within the meaning
of Section 409A at the time of Employee’s termination
(other than due to death), then the Deferred Compensation
Separation Benefits that are payable within the first six
(6) months following Employee’s separation from service
will become payable on the first payroll date that occurs on or
after the date six (6) months and one (1) day following
the date of Employee’s separation from service. All
subsequent Deferred Compensation Separation Benefits, if any, will
be payable in accordance with the payment schedule applicable to
each payment or benefit. Notwithstanding anything herein to
the contrary, if Employee dies following Employee’s
separation from service, but prior to the six (6) month
anniversary of the separation from service, then any payments
delayed in accordance with this paragraph will be payable in a lump
sum as soon as administratively practicable after the date of
Employee’s death and all other Deferred Compensation
Separation Benefits will be payable in accordance with the payment
schedule applicable to each payment
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