Exhibit 10.4
[CRICKET COMMUNICATIONS, INC. LETTERHEAD]
October 26, 2004
Xx. Xxxxxxx Xxxxxxx
0000 Xxxxxxxx Xxx
Xxx Xxxxx, XX 00000
Dear Xxxxxxx:
We appreciate your willingness to postpone the date of your departure from
Cricket Communications, Inc. (the "Company") following the tender of your
voluntary resignation from the position of Vice President and Controller on
August 10, 2004. This letter sets forth the terms of the retention agreement
(the "Agreement") negotiated between you and the Company to cover the additional
period of employment.
You have agreed to continue working for the Company and to continue to serve as
the Vice President and Controller of the Company and of Leap Wireless
International, Inc. ("Leap"), through the later of November 15, 2004 and the
date on which Leap files its the Quarterly Report on Form 10-Q for the quarter
ended September 30, 2004 (the latter of such dates being the "Final Employment
Date"). During this period you will continue to be responsible for your normal
duties, including providing direction to the Accounting Department and
continuing to assist the CFO with accounting and finance projects including
activities related to fresh start accounting and the third quarter Form 10-Q. It
is the Company's expectation that you will perform your duties as assigned at an
optimal level consistent with the Company's performance expectations for an
executive at your level.
In addition to your regular compensation and benefits, the Company will pay you
(a) $25,000, less required tax withholdings, promptly after your execution and
delivery of this Agreement, and (b) the sum of:
(i) $25,000 plus
(ii) $10,000 for each two week period (or portion thereof), if any, from
November 16, 2004 through the date Leap files its third quarter Form
10-Q that you continue to be employed by the Company
(collectively, the "Completion Payment"), less required tax withholdings,
provided that (1) you continue working for the Company at the expected level of
performance through the Final Employment Date, and (2) on or after the Final
Employment Date, you execute and deliver to the Company a Mutual Release of
Claims in the form attached to this letter as Exhibit A. In addition, in order
to receive the Completion Payment, you must be an active employee of the Company
through the Employment Date, and be in good standing and not have been on a
leave of absence or a performance improvement plan (PIP) at any time from the
date of this letter through the Final Employment Date. The Completion Payment
will be paid to you as soon as reasonably practical after the passage of the
seven (7) day revocation period contemplated by the Mutual Release of Claims
described above so long as you do not revoke your execution of
such Mutual Release of Claims as provided for therein. Should the Company
terminate your employment prior to the Final Employment Date other than for
cause you will be entitled to receive the Completion Payment.
So long as you satisfy the conditions to receive the Completion Payment, the
Company will engage you as an independent consultant, commencing on the
effective date of your termination pursuant to a written consulting agreement in
the form attached to this Agreement as Exhibit B. The term of the consulting
engagement will be for a minimum duration of twenty (20) weeks and the Company
will pay you a weekly consulting fee of $2,500.00 per week, less required tax
withholdings, during this period. You agree to make yourself available to
consult during this period on issues related to accounting matters of the
Company and any or its affiliated companies. During the term of the consulting
arrangement, you will be available to spend up to ten business days per month in
San Diego. The Company will pay your reasonable out-of-pocket expenses for
travel and accommodations (excluding any expenses for accommodations in a
dwelling you own) associated with those visits. To the extent your consulting
hours exceed 20 hours in any calendar week, the Company will pay you $150 per
hour for each such additional hour of consulting.
In accordance with the provisions of our November 13, 2003 letter agreement, the
Company will pay you a lump sum severance payment equal to four (4) months of
base pay as in effect on the date hereof, less required tax withholdings, on the
last day of your employment with the Company.
The provisions of this paragraph supersede the terms of the November 13, 2004
Letter with respect to the Company's provision of insurance coverage to you and
your eligible dependents. Upon the termination of your employment by the
Company, you, your eligible spouse and your eligible dependants shall be
entitled to continuation coverage pursuant to section 4980B of the Internal
Revenue Code, as amended from time to time (the "Code"). This coverage is
typically referred to as COBRA coverage. The Company agrees to pay the first
five months of the applicable premiums for such COBRA continuation coverage. If
your COBRA continuation coverage terminates (for example, because you have a new
employer who is providing you with insurance coverage), then the Company will
instead pay you an amount equal to the unpaid applicable premiums for the
remainder of the five month period.
Your compensation and benefits (including scheduled time off (STO) and
unscheduled time off (UTO)) shall remain consistent with Company policies for
similarly situated employees through the Final Employment Date.
You represent that no promise other than those referred to in this Agreement
were made to you and that this Agreement contains the entire agreement between
you and the Company related to the matters set forth herein, and that the terms
of the releases to be provided as contemplated herein are contractual and not
mere recitals. Except as otherwise described herein or in the Consulting
Agreement or Indemnity Agreement executed simultaneously herewith, any other
agreements, whether oral or written, pertaining to your relationship with the
Company shall be superseded by this Agreement. Any modification to this
Agreement shall not be effective unless in writing and signed by both parties.
Should any part, term or provision of this Agreement or the releases
contemplated hereby be determined by any court to be illegal or invalid, this
shall not affect the validity of the remaining
parts, terms and provisions of this Agreement or such releases. This Agreement
and the releases contemplated hereby shall not be construed as an admission by
either party of any liability to the other party or of the violation by either
party of any statute or legal or equitable obligation, and the parties each deny
any such violation.
The validity, interpretation, and performance of this Agreement and the releases
contemplated hereby shall be construed and interpreted according to the laws of
the State of California.
This Agreement and the releases contemplated hereby have been reviewed by the
parties, and their respective attorneys, and the parties have had a full
opportunity to negotiate their contents. The parties have read this Agreement
and know its contents and fully understand it. The parties to this Agreement
expressly waive any common law or statutory rule of construction that
ambiguities should be construed against the drafter of this Agreement or the
releases contemplated hereby.
The Company will reimburse you for your reasonable out-of-pocket expenses
associated with consulting with an independent attorney with regards to this
Agreement.
We look forward to your execution of this Agreement and to your continuing
contributions to the results we have achieved to date at the Company. Please see
me with any questions pertaining to this matter.
Very truly yours,
/s/ S.D. Xxxxxxxxx
S. D. Xxxxxxxxx
EVP and CFO
I have had an adequate opportunity to review this document away from the
Company's premises and to consult anyone of my choice regarding it, including an
adequate opportunity to consult an independent attorney selected by me. I
understand the contents of this letter, and I agree to all of its terms and
conditions.
Dated: October 27, 2004 /s/ Xxxxxxx Xxxxxxx
-----------------------
Xxxxxxx Xxxxxxx
EXHIBIT A
MUTUAL RELEASE OF CLAIMS
This Mutual Release of Claims (this "Release") is entered into between
Xxxxxxx Xxxxxxx ("Employee"), Leap Wireless International, Inc. ("Leap") and
Cricket Communications, Inc. ("Cricket"; collectively Leap and Cricket are
referred to herein as the "Company"). This Release is the release contemplated
by the October __, 2004 letter (the "October __, 2004 Letter") from S.D.
Xxxxxxxxx, EVP and CFO of Cricket Communications, Inc. (the "Company") to
Employee which was agreed to by Employee).
For consideration received, Employee hereby releases and forever discharges
Leap, Cricket, the subsidiaries and affiliates of each of them, and the past,
present and future officers, directors, employees, agents and successors of each
of the foregoing (collectively, the "Released Parties"), from any and all costs
or expenses, charges, claims, suits, demands, actions and causes of action, in
law or in equity, known or unknown, that Employee now has against any and all of
the Released Parties arising out of, or in any way related to his employment by
or separation from the Company (or his prior employment by or separation from
any of the Released Parties), including any claim for breach of contract or
tort, or for violation of federal or state discrimination laws, including the
Age Discrimination in Employment Act.
For consideration received, Leap and Cricket each hereby releases and forever
discharges Employee from any and all costs or expenses, charges, claims, suits,
demands, actions and causes of action, in law or in equity, known or unknown,
that Leap or Cricket now has against Employee arising out of, or in any way
related to Employee's employment by or separation from the Company (or his prior
employment by or separation from any of the Released Parties), including any
claim for breach of contract or tort.
The parties hereby waive the benefits of Section 1542 of the California Civil
Code which provides as follows:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
The releases and waivers set forth herein include, among others, waivers of
rights and claims based on age discrimination in violation of the federal Age
Discrimination in Employment Act ("ADEA") and applicable state laws. By law, the
ADEA requires the Company to advise Employee in writing to consult with an
attorney prior to executing this Release. Further, the ADEA requires the Company
to provide Employee with the following information to waive rights and claims
under the ADEA:
You are agreeing to forego any rights or claims arising before the date
this Release is signed by you. You do not waive rights or claims under the
ADEA that might arise after the date this Release is executed;
The ADEA provides you with 21 days from the later of the date of the
October __, 2004 Letter and the date of your separation from the Company
to consider the Company's offer conditioned on the execution and delivery
of this Release.
However, if you wish, you may sign this Release prior to the end of the
21-day period. This is entirely your decision. If you decide to shorten
the 21-day period, you acknowledge that you are doing so knowingly and
voluntarily;
The ADEA also provides that you may revoke your execution of this Release
within seven (7) days after the date on which you sign this Release. To be
effective, your revocation must be in writing, signed, dated and delivered
to Xxxxxxx X. Xxxxxxxx at the Company's headquarters office no later than
7 days from the date on which you signed and dated this Release. If the
7th day falls on a weekend or holiday, your revocation must be delivered
the next business day. This Release shall not become effective or
enforceable until this revocation period has expired.
IN WITNESS WHEREOF, the undersigned have executed this Release as of the date
indicated below.
Dated:
____________________________________
Xxxxxxx Xxxxxxx
Leap Wireless International, Inc.
By: ______________________________
Name: ____________________________
Title: ___________________________
Cricket Communications, Inc.
By: ______________________________
Name: ____________________________
Title: ___________________________
EXHIBIT B
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into as of
___________ __, [2004] (the "Effective Date") between Cricket Communications
("Company"), a corporation organized and existing under the laws of the State of
Delaware, and having its principal place of business located at 00000 Xxxxxxx
Xxxxxx Xxxxx, Xxx Xxxxx, XX 00000, and Xxxxxxx Xxxxxxx ("Consultant"), residing
at ______________________________ .
In consideration of the promises and mutual covenants hereinafter set
forth, Company and Consultant hereby agree as follows:
1. SCOPE OF AGREEMENT.
Consultant shall perform personally the consulting services described in
Exhibit A hereto and incorporated by reference (the "Services"). The
Services shall be performed with promptness and diligence in a thorough,
workmanlike manner. The Services shall be performed to Company's
satisfaction in accordance with the highest professional standards in the
field.
2. COMPENSATION.
Payment for the Services shall be paid as follows:
2.1 Company shall compensate Consultant for the Services in accordance
with Exhibit B; provided, however, that Company's total liability
under this Agreement shall not exceed $100,000.00 unless Company so
agrees in writing.
2.2 Consultant shall provide Company with bi-weekly invoices, which
include an itemization of (i) the nature and amount of Services
performed; and (ii) expenses for which Consultant seeks
reimbursement from Company. Company shall remit payment within
thirty (30) days of receipt of each monthly invoice unless otherwise
provided for on Exhibit B.
2.3 If any items are disputed, such items and only such items may be
withheld from payment until such dispute is resolved. In the event
that Company timely disputes any billed matter, Company shall pay
the remaining undisputed portion of the invoice in accordance with
the terms of this Agreement.
2.4 All taxes and similar assessments, levies and government-imposed
obligations with respect to Consultant's income derived from its
performance of Services hereunder, as well as all other taxes
associated with the performance of the Services, shall be the
obligation of and be paid by Consultant.
3. CONFIDENTIALITY.
3.1 Use of Confidential Information Received. Company may from time to
time communicate to Consultant, or Consultant may otherwise gain
access to, certain confidential business and/or technical
information with respect to the operations, business plans and/or
intellectual property of Company and its affiliates (the
"Information"). Consultant shall treat all Information as
confidential, whether or not so identified, and shall not disclose,
or permit the disclosure of any Information without the prior
written consent of Company. Consultant shall limit the use and
disclosure of the Information within its organization to the extent
necessary to perform the Services and shall inform all such
disclosees of the confidential nature of such Information and of
Consultant's obligations under this Section 3. The foregoing
obligations of this Section 3 shall not apply to any Information,
which has been or is through no fault of Consultant hereafter
disclosed in publicly available sources of information. The terms of
this Agreement are in addition to the terms of any nondisclosure
agreement currently in effect between Company (or any of its
affiliates) and Consultant, and in the event of any inconsistency
between the terms of such agreements, those terms which are most
protective of the Information shall prevail.
3.2 Confidentiality of Work Product. Consultant shall not disclose to
any party, including but not limited to any subcontractor, without
the prior written consent of Company any of (i) Consultant's works,
discoveries, inventions and innovations resulting from the Services,
(ii) any proposals, research, records, reports, recommendations,
manuals, findings, evaluations, forms, reviews, information, data,
computer programs and software originated or prepared by Consultant
for or in the performance of the Services (the items listed in
clauses (i) and (ii) being hereinafter referred to collectively and
severally as "Work Product") or (iii) the existence or the subject
matter of this Agreement.
3.3 Return of Information and Work Product; Survival. In the event of
any termination, expiration or upon request by Company, all copies
of such Information and all Work Product shall be immediately
returned to Company. The terms and conditions of this Section 3
shall survive the expiration or termination of this Agreement.
4. PROPRIETARY RIGHTS.
4.1 Rights to Information. Consultant acknowledges and agrees that all
Information shall remain the property of Company, and no license,
express or implied, to use any of Cricket's intellectual property is
granted under this Agreement, except as specifically required to
perform the Services.
4.2 Assignment of Work Product. All Work Product shall be promptly
communicated to Company. As additional consideration for the
compensation to be paid to Consultant under this Agreement,
Consultant shall assign to Company all of its right, title and
interest in and to all Work Product immediately upon origination,
preparation or discovery thereof and regardless of the medium of
expression thereof. Consultant shall communicate to Company or its
representatives all facts known to it respecting such Work Product.
All Work Product shall become the exclusive property of Company, and
Consultant shall be deemed to have relinquished all right, title and
interest in and to such Work Product by virtue of this Paragraph
4.2.
4.3 Work for Hire. To the extent that the Services under this Agreement
are a work of the type described under the definition of "work made
for hire" in the Copyright Act of 1978, 17 U.S.C. Section 101,
Company and Consultant agree that the work shall be considered a
"work made for hire."
4.4 Survival. The terms and conditions of this Section 4 shall survive
the expiration or termination of this Agreement.
5. TERM AND TERMINATION.
5.1 Term of Agreement. This Agreement shall become effective on the
Effective Date and shall continue in full force and effect for
twenty weeks from the Effective Date unless sooner (a) terminated as
provided for herein or (b) extended by the parties hereto in
writing.
5.2 Termination. Either party to this Agreement may terminate this
Agreement by notice in writing in the event that the other breaches
its obligations under this Agreement, makes an assignment for the
benefit of creditors, files for bankruptcy protection, admits in
writing inability to pay debts as they mature, or if a trustee or
receiver of the other, or any substantial part of the other's
assets, is appointed by any court.
5.3 Return of Material and Information. In the event of such termination
or upon expiration of this Agreement, Consultant shall return to
Company: (i) any and all equipment, documents and other materials
containing any Information which Consultant has received from
Company; and (ii) any and all Work Product and all copies thereof
made by Consultant.
6. INDEPENDENT CONTRACTOR. The parties expressly intend and agree that
Consultant is acting as an independent contractor and not as an agent or
employee of Company. Consultant retains sole and absolute discretion,
control and judgment regarding the
manner and means of performing and providing the Services, except as to
the policies and procedures set forth herein. Consultant understands and
agrees that it shall not be entitled to any of the rights and privileges
established for Company's employees, including but not limited to
retirement benefits; medical, life insurance or disability coverage;
severance pay; and paid vacation or sick pay. Consultant understands and
agrees that Company will not pay or withhold from the compensation paid to
Consultant any sums customarily paid or withheld for or on behalf of
employees for income tax, unemployment insurance, social security, workers
compensation or any other withholding tax, insurance or payment, and all
such payments as may be required by law are the sole responsibility of
Consultant. Consultant agrees to hold Company harmless against and
indemnify Company for any of such payments of liabilities for which
Consultant may become liable with respect to such matters. This Agreement
shall not be construed as a partnership agreement, joint venture or
franchise and neither party shall have the right or authority to assume or
create any obligation on behalf of or in the name of the other. Except as
otherwise provided in a separate Indemnification Agreement previously
executed by and between the Company (or any of its affiliates) and
Consultant, Company shall have no responsibility for any of Consultant's
debts, liabilities or other obligations or for the intentional, reckless
or negligent acts or omissions of Consultant or Consultant's employees or
agents.
7. INDEMNIFICATION. Omitted.
8. INSURANCE. Omitted.
9. LAWS, RULES AND REGULATIONS. Consultant shall comply at its own expense
with the provisions of all applicable federal, state and municipal laws,
statutes, ordinances, regulations and codes, including without limitation
the Fair Labor Standards Act of 1938, that are applicable to Contractor as
an employer of labor or otherwise.
10. COMPANY PROPERTY. Title to all property owned by Company (or any affiliate
of Company) and furnished to Consultant shall remain in Company (or the
affiliate). Any property owned by Company (or any affiliate) and in
Consultant's possession or control shall be used only in the performance
of this Agreement unless authorized in writing by Company for another use.
Consultant shall adequately protect such property and shall return it to
Company or otherwise dispose of it as directed by Company. Consultant
shall be responsible for any loss or damage to any property owned by
Company and in Consultant's possession or control.
11. NOTICES. All notices, certifications, requests, demands, payments and
other communications hereunder shall be in writing and shall be deemed to
have been duly given and delivered if sent by overnight delivery, by a
nationally-recognized overnight delivery service; if mailed, by first
class certified mail, postage prepaid, or delivered personally; or if sent
by facsimile, with transmission confirmed to:
IF TO COMPANY: IF TO CONSULTANT:
Cricket Communications, Inc. Xxxxxxx Xxxxxxx
Xxxx: Chief Financial Officer [Insert Address]
00000 Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
or to such other address or addresses as may hereafter be specified by
notice given by any of the above to the others. Notices given by United
States certified mail as aforesaid shall be effective on the date of the
first attempt at delivery. Notices delivered in person shall be effective
upon delivery. Notices given by facsimile shall be effective when
transmitted, provided facsimile notice is is transmitted on a business day
during regular business hours.
12. PUBLICITY. Consultant shall not issue or release for publication any
articles or advertising or publicity matter relating to the work to be
performed hereunder or mentioning or implying the name of Company, or any
affiliate of Company or any of their personnel, unless prior written
permission is granted by Company.
13. RECORDS AND AUDIT. Consultant shall maintain complete records of all costs
reimbursable by Company under the terms of this Agreement. Company shall
have the right, either on its own or through its accredited
representatives, to examine asuch records at any reasonable time.
14. WRITTEN ASSURANCE. Consultant hereby expressly acknowledges that any
products and/or technical data received from Company, or any products
directly derived from any such technical data, may be subject to U.S.
export and re-export controls, and Consultant hereby gives its assurance
to Company that it will not knowingly, unless prior written authorization
is obtained from Company and the U.S. Commerce Department, export,
re-export or otherwise disclose, directly or indirectly, any such product
or technical data to any of the countries proscribed by the U.S.
Department of Commerce and or U.S. Treasury Department (as such list of
countries may be amended from time to time by the U.S. Department of
Commerce and/or the U.S. Treasury Department).
15. REPRESENTATIONS AND WARRANTIES.
Consultant represents and warrants that:
15.1 Consultant is financially solvent, able to pay its debts and
possessed of sufficient working capital to complete the Services in
accordance with this Agreement.
15.2 Consultant is authorized to do business in the states in which it
shall perform Services and properly licensed by all necessary
governmental and public and quasi-public authorities having
jurisdiction over it to perform the Services under the terms of this
Agreement.
15.3 Consultant's execution of this Agreement and the Consultant's
performance of its obligations hereunder does not now and shall not
in the future violate any agreement between the Consultant and any
third party, or any obligation of Consultant to any third party,
including, without limitation, any non-compete agreement or
obligation; Consultant will inform Company if any litigation is
instituted against Consultant that may have an effect on
Consultant's performance of the Agreement.
15.4 Consultant has the experience and skills necessary to provide and
perform the Services required pursuant to this Agreement; all
Services provided by Consultant shall be performed in a professional
manner in accordance with all professional standards applicable to
the Consultant, shall be of a high grade, nature and quality,
commensurate with that which is customary in the industry.
16. CHOICE OF LAW, JURISDICTION AND VENUE. This Agreement is made and shall be
governed and construed in accordance with the laws of the State of
California, excluding its conflicts of laws provisions. The parties hereto
consent to the jurisdiction of the State of California and agree that any
and all disputes between them shall be resolved pursuant to the terms and
conditions of this Agreement and in proceedings held in San Diego County,
California.
16.1 Consultant acknowledges that money damages are not adequate to
compensate Company for: (i) the disclosure of confidential
Information in breach of this Agreement; or (ii) the breach of the
terms of this Agreement which govern Proprietary Rights. Consultant
therefore consents to the imposition of injunctive relief by and
court or administrative body to prevent Consultant from disclosing
the Information or violating Company's Proprietary Rights as
provided for herein.
17. GENERAL PROVISIONS.
17.1 Survivability. The terms and conditions of this Agreement that by
their sense and context are intended to survive after performance
hereunder shall survive the termination or expiration of this
Agreement, including but not limited to Paragraphs 3, 4, 5.3, 10, 12
and 16.
17.2 Assignment. Consultant shall not assign any of its rights or
obligations under this Agreement and shall not subcontract any of
the Services to be performed hereunder without the prior written
consent of Company. This Agreement shall be binding upon and inure
to the benefit of the parties hereto, their successors and permitted
assigns. Company may assign its rights, duties and obligations under
this Agreement to any affiliates of Company, or any legal entity or
legal entities in which Company, or any of its' affiliates has or
will have any interest.
17.3 Entire Agreement; Modification. This Agreement, together with the
exhibits attached hereto, which are incorporated herein by this
reference, constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior oral
or written negotiations and agreements between the parties with
respect to the subject matter hereof. No modification, variation or
amendment of this Agreement (including any exhibit hereto) shall be
effective unless made in writing and signed by both parties.
17.4 Severability; Non-Waiver. In the event that any of the terms,
conditions or provisions of this Agreement are held to be illegal,
unenforceable or invalid by any court of competent jurisdiction, the
remaining terms, conditions or provisions hereof shall remain in
full force and effect. The failure or delay of either party to
enforce at any time any provision of this Agreement shall not
constitute a waiver
of such party's right thereafter to enforce each and every provision
of this Agreement.
17.5 Prevailing Agreement. In the case of any conflict or inconsistency
between the terms of this Agreement and the terms of the retention
agreement letter, dated as of _________ __, 2004 from Xxx Xxxxxxxx,
Senior Vice President, Human Resources of the Company, to
Consultant, the terms of this Agreement shall prevail.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date first above written.
Cricket Communications ("Company") Xxxxxxx Xxxxxxx ("Consultant")
By: ______________________________ By: ______________________________
Name: ____________________________ Name: ____________________________
Title: ___________________________ Title: ___________________________
VENDOR/CONSULTANT INFORMATION
For Tax Purposes:
Vendor/Consultant Name: ________________________________________
Corporation: Yes No
Tax ID Number: ________________________________________
Social Security Number:
EXHIBIT A
CONSULTANT SERVICES
STATEMENT OF WORK
Consultant will perform the following tasks and have the following
responsibilities:
Project Objective
This Consulting Agreement allows the Company to utilize Consultant's
professional knowledge, experience and judgment (including Consultant's in-depth
knowledge of accounting matters relating to the Company and its affiliates) in
the transition period beginning with Consultant's termination of employment by
the Company. .
Description of Work Efforts
Consultant agrees to make him available during the term of this Consulting
Agreement to consult, at the request of the Company, on issues related to
accounting matters of the Company and any or its affiliated companies. During
the term of the Consulting Agreement, Consultant agrees to be available to spend
up to ten business days per month in San Diego.
EXHIBIT B
COMPENSATION AND REIMBURSEMENT
The Company will pay Consultant you a consulting fee of $2,500.00 per week
during the term of this Consulting Agreement. To the extent Consultant's
services under this Agreement require him to spend more than 20 hours in any
calendar week, the Company will pay Consultant $150 per hour for each such
additional hour of consulting.
The above specified payments include compensation of Consultant for all elements
of cost (direct labor, overhead, general and administrative expenses and profit)
other than out of pocket expenses authorized by Cricket Communications as
described below.
The Company will reimburse Consultant for reasonable and necessary out of pocket
expenses incurred in connection with its performance of the Services, authorized
in accordance with Cricket Communications' Travel Management Policy then in
effect, and supported by reasonably detailed documentation, including reasonable
and necessary expenses for travel and accommodations (excluding any expenses for
accommodations in a dwelling you own) associated with Consultant's travel to San
Diego as contemplated in the Statement of Work. All such out of pocket expenses
shall be itemized on each invoice submitted to the Company and shall be
accompanied by the appropriate supporting documentation. The following costs
shall not be charged to Cricket Communications: (a) local telephone service and
calls; and (b) any office staff and supplies used in the normal course of
performing the Services.
To support payment for the Services, each invoice submitted therefore shall
include a certification by Consultant stating that the number of hours by
individual and labor category set forth therein was the actual number of hours
expended by each individual during the period for which the invoice is submitted
and that all out of pocket expenses for which reimbursement is requested were
properly incurred in the performance of the Services.
In no event shall the total payments made under this Agreement exceed the
maximum amount specified in Paragraph 2(a) of the Agreement without execution of
a written amendment to this Agreement by duly authorized representatives of
Cricket Communications and Consultant.
