EXHIBIT 10.32
RETENTION BONUS AND SEVERANCE BENEFITS AGREEMENT
This Retention Bonus Agreement (this "Agreement") by and between
[__________] ("Executive"), Leap Wireless International, Inc., a Delaware
corporation ("Leap") and Cricket Communications, Inc., a Delaware corporation
("Cricket") (individually, a "Party" and collectively, the "Parties") is made
and entered into as of February 14, 2003 (the "Effective Date") and amends and
replaces in its entirety that certain Retention Bonus Agreement between
Executive and Cricket dated February 4, 2003. Leap and Cricket are hereinafter
collectively referred to as the "Companies."
WHEREAS, Leap and Executive previously entered into a Change in Control
Agreement, dated [__________], 2001 (the "Change in Control Agreement");
WHEREAS, Executive was previously employed by Leap;
WHEREAS, Cricket is an indirect, wholly-owned subsidiary of Leap;
WHEREAS, Executive's employment has been transferred to Cricket and
Executive is presently employed by Cricket;
WHEREAS, Executive occupies a key position with Cricket, and Cricket
desires to provide Executive with certain severance benefits and a retention
bonus as an incentive for Executive to remain in the employment of Cricket;
WHEREAS, Cricket further desires to provide Executive with certain
severance benefits as additional incentives to remain in the employ of Cricket
in the event Cricket files a petition for proceeding under chapter 7 or 11 of
Title 11 of the United States Bankruptcy Code (the "Petition") during the Term
of the Agreement (as defined below) and Section 3 of this Agreement is approved
by the United States Bankruptcy Court in which the Petition is filed (the
"Bankruptcy Court"); and
WHEREAS, the Parties desire to terminate the Change in Control Agreement
in the event the Petition is filed during the Term of the Agreement and Section
3 of this Agreement is approved by the Bankruptcy Court.
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein and for other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged by each Party hereto,
the Parties hereby agree as follows:
1. TERM OF AGREEMENT. This Agreement shall commence on the Effective
Date and shall continue in effect through December 31, 2004 (the "Term of the
Agreement").
2. LUMP-SUM RETENTION BONUS. Executive acknowledges that prior to the
Effective Date but pursuant to this agreement, Cricket has paid Executive a
retention bonus in cash in the amount of $[_____] less applicable tax
withholdings and all other required and authorized deductions and withholdings
(the "Retention Bonus"). Executive further agrees that, in the event Executive
voluntarily terminates employment with Cricket on or before the earlier
of: (i) the date Cricket files the Petition, or (ii) ninety (90) days from the
Effective Date, Executive shall forfeit Executive's right to the Retention Bonus
under this Section 2 and shall be obligated to repay to Cricket such Retention
Bonus (the "Repayment Obligation"); provided, further, that Executive shall be
entitled to offset the amounts owed under the Repayment Obligation by any
amounts payable to Executive by the Companies in respect of accrued, unpaid
vacation benefits as of the date of such voluntary termination of employment.
3. SEVERANCE BENEFITS.
x. Xxxxxxxxx Benefits. In the event that, during the period commencing
on the Section 3 Effective Date (as set forth in Section 3(i)) and during the
remaining Term of the Agreement, Executive's employment is terminated by Cricket
other than for Cause (as defined below), or by Executive for Good Reason (as
defined below), Executive shall be entitled to the following:
(i) Cricket shall pay Executive a lump sum payment in cash (the
"Severance Payment") equal to: (A) seventy-five percent (75%) of the sum
of (I) Executive's annual base salary as in effect as of the Date of
Termination (as defined below), and (II) Executive's targeted annual
bonus for the fiscal year in which the Date of Termination occurs, less
(B) the sum of (I) the actual amount, if any, paid to Executive
post-Petition by the Companies in respect of accrued, unused vacation
benefits and (II) the aggregate amount of vacation benefits actually
paid to Executive for post-Petition periods during which Executive was
on paid vacation.
(ii) To the extent Executive elects continuation health care
coverage for Executive and his eligible dependents under Section
4980B(f) of the Internal Revenue Code of 1986, as amended from time to
time (the "Code") and Sections 601-608 of the Employee Retirement Income
Security Act of 1974, as amended ("COBRA Coverage"), Executive shall not
be required to pay premiums for such COBRA Coverage for the nine month
period commencing on the Date of Termination (or, if earlier, until
Executive is eligible for comparable coverage with a subsequent
employer).
b. Cause. For purposes of this Section 3, "Cause" shall mean
termination of Executive's employment by Cricket: (i) upon Executive's
willful and continued failure substantially to perform Executive's
duties with Cricket (other than any such failure resulting from
Executive's incapacity due to physical or mental illness or any such
actual or anticipated failure after Executive's issuance of a Notice of
Termination (as defined below) for Good Reason), after a written demand
for substantial performance is delivered to Executive by the Board of
Directors of Cricket (the "Cricket Board"), which demand specifically
identifies the manner in which the Cricket Board believes that Executive
has not substantially performed such duties, (ii) upon Executive's
willful and continued failure substantially to follow and comply with
the specific and lawful directives of the Cricket Board, as reasonably
determined by the Cricket Board (other than any such failure resulting
from Executive's incapacity due to physical or mental illness or any
such actual or anticipated failure after Executive's issuance of a
Notice of Termination for Good Reason), after a written demand for
substantial performance is delivered to Executive by the Cricket Board,
which demand specifically identifies the
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manner in which the Cricket Board believes that Executive has not
substantially performed such directives, (iii) upon Executive's willful
commission of an act of fraud or dishonesty resulting in material and
demonstrable damage to Cricket, or (iv) upon Executive's willful
engagement in illegal conduct or gross misconduct that is materially and
demonstrably damaging to Cricket. For purposes of this Section 3(b), no
act, or failure to act, on Executive's part shall be deemed "willful"
unless done, or omitted to be done, by Executive not in good faith.
Notwithstanding the foregoing, Executive's employment shall not be
deemed terminated for "Cause" pursuant to this Section 3(b) unless and
until there shall have been delivered to Executive a copy of a
resolution duly adopted by the affirmative vote of not less than
two-thirds (2/3) of the entire membership of the Cricket Board at a
meeting of the Cricket Board (after reasonable notice to Executive, an
opportunity for Executive, together with Executive's counsel, to be
heard before the Cricket Board and a reasonable opportunity to cure
(provided such conduct is capable of being cured)), finding that, in the
Cricket Board's good faith opinion, Executive has committed the conduct
set forth above in this Section 3(b) and specifying the particulars
thereof in reasonable detail.
c. Good Reason. For purposes of this Section 3, "Good Reason"
shall mean, without Executive's express written consent, the occurrence
of any of the following circumstances unless such circumstances are
cured (provided such circumstances are capable of being cured) prior to
the Date of Termination specified in the Notice of Termination given in
respect thereof: (i) the assignment to Executive of any duties
inconsistent with Executive's position, a significant adverse alteration
in the nature or status of Executive's responsibilities or the
conditions of Executive's employment, or any other action that results
in a material diminution in Executive's position, authority, title,
duties or responsibilities; (ii) reduction of Executive's annual base
salary as in effect on the Effective Date or as the same may be
increased from time to time thereafter; (iii) the relocation of
Cricket's offices at which Executive is principally employed to a
location more than thirty (30) miles from such location; (iv) Cricket's
failure to pay Executive any portion of Executive's current
compensation; (v) Cricket's failure to continue in effect any material
compensation or benefit plan in which Executive participates, unless an
equitable arrangement (embodied in an ongoing substitute or alternative
plan) has been made with respect to such plan, or Cricket's failure to
continue Executive's participation therein (or in such substitute or
alternative plan) on a basis not materially less favorable, both in
terms of the amount of benefits provided and the level of Executive's
participation relative to other participants; (vi) Cricket's failure to
continue to provide Executive with benefits substantially similar in the
aggregate to those enjoyed by Executive under any of Cricket's life
insurance, medical, health and accident, disability, pension,
retirement, or other benefit plans in which Executive or Executive's
eligible family members were participating immediately prior thereto, or
the taking of any action by Cricket which would directly or indirectly
materially reduce any of such benefits; (vii) Cricket's failure to
obtain a satisfactory agreement from any successor to assume and agree
to perform this Agreement; or (viii) the continuation or repetition,
after written notice of objection from Executive, of harassing or
denigrating treatment of Executive by Cricket inconsistent with
Executive's position with Cricket. Executive's right to terminate
employment with Cricket pursuant to this Section 3(c) shall not be
affected by Executive's incapacity due to physical or
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mental illness. Executive's continued employment with Cricket shall not
constitute consent to, or a waiver of rights with respect to, any
circumstance constituting Good Reason hereunder.
d. Notice of Termination. Any purported termination of
Executive's employment by Cricket for Cause or by Executive for Good
Reason shall be communicated by Notice of Termination to the other party
hereto in accordance with Section 5. "Notice of Termination" shall mean
a written notice that shall indicate the specific termination provision
in this Section 3 relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for the
termination of employment under the provision so indicated.
e. Date of Termination. For purposes of this Section 3, "Date of
Termination" shall mean the date specified in the Notice of Termination
(which, in the case of a termination by Cricket for Cause shall not be
less than thirty (30) days after the date such Notice of Termination is
given, and in the case of a termination by Executive for Good Reason
shall not be less than fifteen (15) nor more than sixty (60) days after
the date such Notice of Termination is given).
x. Xxxxx-Up Payments. In the event that it shall be determined
under this Section 3(f) that any payment or benefit to Executive or for
Executive's benefit or on Executive's behalf (whether paid or payable or
distributed or distributable) pursuant to the terms of this Agreement or
any other agreement, arrangement or plan with Cricket, or any of its
direct or indirect, wholly-owned subsidiaries, or any Affiliate (as
defined below) (including, without limitation, any payment under Section
3 of this Agreement) (individually, a "Payment" and collectively, the
"Payments") would be subject to the excise tax imposed by section 4999
of the Code (the "Excise Tax"), then Executive shall be entitled to
receive from Cricket one or more additional payments (individually, a
"Gross-Up Payment" and collectively, the "Gross-Up Payments") in an
aggregate amount such that the net amount of the Payments and the
Gross-Up Payments retained by Executive after the payment of all Excise
Taxes (and any interest or penalties imposed with respect to such Excise
Taxes) on the Payments and all federal, state and local income tax,
employment tax and Excise Taxes (including any interest or penalties
imposed with respect to such taxes) on the Gross-Up Payments provided
for in this Section 3(f), and taking into account any lost or reduced
tax deductions on account of the Gross-Up Payments, shall be equal to
the Payments. For purposes of this Section 3(f), an "Affiliate" shall
mean any successor to all or substantially all of the business and/or
assets of Cricket, any person acquiring ownership or effective control
of Cricket or ownership of a substantial portion of the assets of
Cricket, or any person whose relationship to Cricket is such as to
require attribution under Section 318(a) of the Code.
(i) All determinations required to be made under this
Section 3(f), including whether and when any Gross-Up Payment is
required and the amount of such Gross-Up Payment, and the
assumptions to be utilized in arriving at such determinations
shall be made by the Accountants (as defined below) which shall
provide Executive and Cricket with detailed supporting
calculations with respect to such Gross-Up Payment within
fifteen (15) business days of the
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receipt of notice from Executive or Cricket that Executive has
received or will receive a Payment. For the purposes of this
Section 3(f), the "Accountants" shall mean Cricket's independent
certified public accountants. All fees and expenses of the
Accountants shall be borne solely by Cricket.
(ii) For the purposes of determining whether any of the
Payments will be subject to the Excise Tax and the amount of
such Excise Tax, such Payments will be treated as "parachute
payments" within the meaning of section 280G of the Code, and
all "parachute payments" in excess of the "base amount" (as
defined under section 280G(b)(3) of the Code) shall be treated
as subject to the Excise Tax, unless and except to the extent
that, in the opinion of the Accountants, such Payments (in whole
or in part) either do not constitute "parachute payments" or
represent reasonable compensation for services actually rendered
(within the meaning of section 280G(b)(4) of the Code) in excess
of the "base amount," or such "parachute payments" are otherwise
not subject to such Excise Tax.
(iii) For purposes of determining the amount of the
Gross-Up Payment, Executive shall be deemed to pay Federal
income taxes at the highest applicable marginal rate of Federal
income taxation for the calendar year in which the Gross-Up
Payment is to be made and to pay any applicable state and local
income taxes at the highest applicable marginal rate of taxation
for the calendar year in which the Gross-Up Payment is to be
made, net of the maximum reduction in Federal income taxes which
could be obtained from the deduction of such state or local
taxes if paid in such year (determined without regard to
limitations on deductions based upon the amount of Executive's
adjusted gross income); and to have otherwise allowable
deductions for Federal, state and local income tax purposes at
least equal to those disallowed because of the inclusion of the
Gross-Up Payment in Executive's adjusted gross income. To the
extent practicable, any Gross-Up Payment with respect to any
Payment shall be paid by Cricket at the time Executive is
entitled to receive the Payment and in no event will any
Gross-Up Payment be paid later than five days after the receipt
by Executive of the Accountant's determination.
(iv) Any determination by the Accountants shall be
binding upon Cricket and Executive. As a result of uncertainty
in the application of section 4999 of the Code at the time of
the initial determination by the Accountants hereunder, it is
possible that the Gross-Up Payment made will have been an amount
less than Cricket should have paid pursuant to this Section 3(f)
(the "Underpayment"). In the event that Cricket exhausts its
remedies pursuant to Section 3(f)(vi) and Executive is required
to make a payment of any Excise Tax, the Underpayment shall be
promptly paid by Cricket to or for Executive's benefit; and
(v) Executive shall notify Cricket in writing of any
claim by the Internal Revenue Service that, if successful, would
require the payment by Cricket of the Gross-Up Payment. Such
notification shall be given as soon as
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practicable after Executive is informed in writing of such claim
and shall apprise Cricket of the nature of such claim and the
date on which such claim is requested to be paid. Executive
shall not pay such claim prior to the expiration of the 30-day
period following the date on which Executive gives such notice
to Cricket (or such shorter period ending on the date that any
payment of taxes, interest and/or penalties with respect to such
claim is due). If Cricket notifies Executive in writing prior to
the expiration of such period that it desires to contest such
claim, Executive shall: (A) give Cricket any information
reasonably requested by Cricket relating to such claim; (B) take
such action in connection with contesting such claim as Cricket
shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation
with respect to such claim by an attorney reasonably selected by
Cricket; (C) cooperate with Cricket in good faith in order to
effectively contest such claim; and (D) permit Cricket to
participate in any proceedings relating to such claims;
provided, however, that Cricket shall bear and pay directly all
costs and expenses (including additional interest and penalties)
incurred in connection with such contest and shall indemnify
Executive for and hold Executive harmless from, on an after-tax
basis, any Excise Tax or income or other taxes (including
interest and penalties with respect thereto) imposed as a result
of such representation and payment of all related costs and
expenses.
(vi) Without limiting the foregoing provisions of this
Section 3(f), Cricket shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue
or forgo any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in respect of
such claim and may, at its sole option, either direct Executive
to pay the tax claimed and xxx for a refund or contest the claim
in any permissible manner, and Executive agrees to prosecute
such contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as Cricket shall determine; provided, however,
that if Cricket directs Executive to pay such claim and xxx for
a refund, Cricket shall advance the amount of such payment to
Executive, on an interest-free basis, and shall indemnify
Executive for and hold Executive harmless from, on an after-tax
basis, any Excise Tax or income or other taxes (including
interest or penalties with respect thereto) imposed with respect
to such advance or with respect to any imputed income with
respect to such advance (including as a result of any
forgiveness by Cricket of such advance); provided, further, that
any extension of the statute of limitations relating to the
payment of taxes for the taxable year of Executive with respect
to which such contested amount is claimed to be due is limited
solely to such contested amount. Furthermore, Cricket's control
of the contest shall be limited to issues with respect to which
a Gross-Up Payment would be payable hereunder and Executive
shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other
taxing authority.
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(vii) In any situation where under applicable law
Cricket has the power to indemnify (or advance expenses to)
Executive in respect of any judgments, fines, settlements, loss,
cost or expense (including attorneys' fees) of any nature
related to or arising out of Executive's activities as an agent,
employee, officer or director of Cricket or in any other
capacity on behalf of or at the request of Cricket, Cricket
shall promptly on written request, indemnify (and advance
expenses to) Executive to the fullest extent permitted by
applicable law, including but not limited to making such
findings and determinations and taking any and all such actions
as Cricket may, under applicable law, be permitted to have the
discretion to take so as to effectuate such indemnification or
advancement. Such agreement by Cricket shall not be deemed to
impair any other obligation of Cricket respecting Executive's
indemnification otherwise arising out of this or any other
agreement or promise of Cricket or under any statute.
g. General Release. In consideration of, and as a condition to
receiving, the benefits to be provided to Executive under this Section
3, Executive shall execute and deliver to the Companies the "General
Release" set forth on Exhibit A hereto on or after the Date of
Termination and not later than twenty-one (21) days after the Date of
Termination (or, in the event that the termination of Executive's
employment with Cricket is in connection with an exit incentive or other
employment termination program offered to a group or class of employees,
not later than forty-five (45) days after the Date of Termination (or,
if later, the date Executive is provided with the information required
in accordance with Section 3(f) of the General Release)). In the event
that Executive fails to execute and deliver to the Companies the General
Release in accordance with this Section 3(g), or Executive revokes the
General Release in accordance with the terms thereof, Executive shall
not receive the benefits set forth in this Section 3.
h. Termination of Change in Control Agreement. In consideration
of, and as a condition to receiving, the benefits to be provided to
Executive under this Section 3, the Change in Control Agreement is
hereby terminated effective as of the Section 3 Effective Date (as set
forth in Section 3(i) below). From and after the Section 3 Effective
Date, Executive waives any and all rights, claims, benefits and awards
under the Change in Control Agreement and releases Leap from any
liability or obligation for any and all rights, claims, benefits or
awards due Executive hereunder.
i. Petition. This Section 3 shall be subject to and shall only
be effective upon the occurrence of the following conditions: (i) the
filing of the Petition by Cricket during the Term of the Agreement, and
(ii) the approval of this Section 3 by the Bankruptcy Court. The date on
which the Bankruptcy Court approves this Section 3 is the "Section 3
Effective Date." In the event that the Petition is not filed by Cricket
at any time during the Term of the Agreement, or this Section 3 is not
approved by the Bankruptcy Court, this Section 3 shall be null and void
in its entirety and of no further force or effect and the Change in
Control Agreement shall remain in full force and effect.
j. Timing of Payments. The payments provided for in this Section
3 shall be made not later than the tenth day following the date on which
the General Release by Executive becomes irrevocable.
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4. SUCCESSORS; BINDING AGREEMENT. This Agreement shall inure to the
benefit of and shall be binding upon the Companies and their respective
successors and assigns, including any purchaser of all or substantially all of
their respective assets, and shall be binding upon Executive's assigns,
executors, administrators, beneficiaries, or their legal representatives.
5. NOTICE. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified or registered mail, return receipt requested, postage prepaid,
addressed to the last known mailing address of the respective Party, provided
that all notices to Cricket shall be directed to the attention of the Cricket
Board with a copy to the Secretary of Cricket, and all notices to Leap shall be
directed to the attention of the Board of Directors of Leap with a copy to the
Secretary of Leap, or to such other address as any Party may have furnished to
the other in writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.
6. NON-COMPETE, CONFIDENTIALITY AND NON-SOLICITATION COVENANTS. In
consideration of the benefits to be provided to Executive under Sections 2 and 3
of this Agreement, and in order to protect the goodwill of Cricket, Executive
hereby agrees to the following covenants.
a. Non-Compete. For a period of nine (9) months commencing on
the Date of Termination, Executive shall not, directly or indirectly,
own, manage, operate, join, control or participate in the ownership,
management, operation or control of, or be connected as a director,
officer, employee, partner, consultant or otherwise with, any profit or
nonprofit business or organization which, directly or indirectly
competes with, or in any way interferes with, the business of Cricket or
any of its respective affiliates in any region in which Cricket is then
operating or has firm plans to operate.
b. Confidentiality. For the period of three years commencing on
the Date of Termination, Executive shall not, directly or indirectly,
disclose or make available to any person, firm, corporation, association
or other entity for any reason or purpose whatsoever, any Confidential
Information (as defined below). Executive agrees that, upon termination
of Executive's employment with Cricket, all Confidential Information in
Executive's possession that is in writing or other tangible form
(together with all copies or duplicates thereof, including computer
files) shall be returned to Cricket and shall not be retained by
Executive or furnished to any third party, in any form except as
provided herein; provided, however, that Executive shall not be
obligated to treat as confidential, or return to Cricket copies of any
Confidential Information that (i) was publicly known at the time of
disclosure to Executive, (ii) becomes publicly known or available
thereafter other than by any means in violation of this Agreement or any
other duty owed to Cricket by any person or entity, or (iii) is lawfully
disclosed to Executive by a third party. As used in this Agreement, the
term "Confidential Information" means: information disclosed to
Executive or known by Executive as a consequence of or through
Executive's relationship with Cricket, about the customers, employees,
business methods, technical operations, public relations methods,
organization, procedures or finances, including, without limitation,
information of or relating to customer lists, of Cricket and its
affiliates.
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c. Non-Solicitation. For the period commencing on the Date of
Termination and terminating on the third anniversary thereof, Executive
shall not, either on Executive's own account or jointly with or as a
manager, agent, officer, employee, consultant, partner, joint venture,
owner or shareholder or otherwise on behalf of any other person, firm or
corporation, directly or indirectly solicit or attempt to solicit away
from Cricket, or any of its affiliates, any of its officers or employees
or offer employment to any person who, on or during the six (6) months
immediately preceding the date of such solicitation or offer, is or was
an officer or employee of Cricket, or any of its affiliates; provided,
however, that a general advertisement to which an employee of Cricket,
or any of its affiliates, responds shall in no event be deemed to result
in a breach of this Section 6(c).
d. Breach of Covenants. In the event that Executive breaches any
of the provisions of this Section 6, or threatens to do so, in addition
to and without limiting or waiving any other remedies available to
Cricket in law or in equity, Cricket shall be entitled to immediate
injunctive relief in any court having the capacity to grant such relief,
to restrain such breach or threatened breach and to enforce this Section
6. Executive acknowledges that it is impossible to measure in money the
damages that Cricket will sustain in the event that Executive breaches
or threatens to breach this Section 6 and, in the event that Cricket
institutes any action or proceeding to enforce this Section 6 seeking
injunctive relief, Executive hereby waives and agrees not to assert or
use as a defense a claim or defense that Cricket has an adequate remedy
at law. Also, in addition to any other remedies available to Cricket in
law or in equity, in the event that Executive breaches the provisions of
this Section 6 in any material respect, Executive shall forfeit
Executive's right to further benefits under Sections 2 and 3 and
Executive shall be obligated to repay to Cricket the benefits that
Executive has received under Sections 2 and 3. If a court or arbitrator
shall hold that the duration, scope or area restriction or other
provision of this Section 6 is unreasonable under the circumstances now
or then existing, the Parties hereto agree that the maximum duration,
scope or area restriction reasonable under the circumstances shall be
substituted for the stated duration, scope or area restriction.
7. MISCELLANEOUS. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by Executive and such officer of Cricket and Leap as may be
specifically designated thereby. No waiver by any Party hereto at any time of
any breach by any 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. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
any Party which are not expressly set forth in this Agreement. Executive
acknowledges that Executive has consulted with counsel (or has had a reasonable
opportunity to consult with counsel) and is fully aware of Executive's rights
and obligations under this Agreement. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the State of
California without regard to its conflicts of law principles. All references to
sections of any federal, state or local law shall be deemed also to refer to any
successor provisions to such sections. Any payments provided for hereunder shall
be paid net of any applicable withholding required under federal, state or local
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law. The Section headings contained in this Agreement are for convenience only,
and shall not affect the interpretation of this Agreement.
8. SEVERABILITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
9. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
10. ARBITRATION; DISPUTE RESOLUTION, ETC.
a. Arbitration Procedure. Any disagreement, dispute, controversy
or claim arising out of or relating to this Agreement or the
interpretation of this Agreement or any arrangements relating to this
Agreement or contemplated in this Agreement or the breach, termination
or invalidity thereof shall be settled by final and binding arbitration
administered by the American Arbitration Association ("AAA") in San
Diego, California in accordance with its then existing National Rules
for the Resolution of Employment Disputes. In the event of such an
arbitration proceeding, the Parties shall select a mutually acceptable
neutral arbitrator from among the AAA panel of arbitrators. In the event
the Parties cannot agree on an arbitrator, the Administrator of AAA will
appoint an arbitrator. Neither the Parties nor the arbitrator shall
disclose the existence, content, or results of any arbitration hereunder
without the prior written consent of all Parties. Except as provided
herein, the Federal Arbitration Act shall govern the interpretation,
enforcement and all proceedings. The arbitrator shall apply the
substantive law (and the law of remedies, if applicable) of the state of
California, or federal law, or both, as applicable and the arbitrator is
without jurisdiction to apply any different substantive law. The
arbitrator shall have the authority to entertain a motion to dismiss
and/or a motion for summary judgment by any party and shall apply the
standards governing such motions under the Federal Rules of Civil
Procedure. The arbitrator shall render an award and a written, reasoned
opinion in support thereof. Judgment upon the award may be entered in
any court having jurisdiction thereof. Cricket shall pay all fees and
expenses of the Arbitrator regardless of the result and shall provide
all witnesses and evidence reasonably required by Executive to present
Executive's case. Cricket shall pay to Executive all reasonable
arbitration expenses and legal fees incurred by Executive as a result of
a termination of Executive's employment in seeking to obtain or enforce
any right or benefit provided by this Agreement (whether or not
Executive is successful in obtaining or enforcing such right or
benefit). Such payments shall be made within five (5) days after
Executive's request for payment accompanied with such evidence of fees
and expenses incurred as Cricket reasonably may require.
b. Legal Fees. Cricket shall pay to Executive all legal fees and
expenses incurred by Executive in connection with any Dispute arising
out of or relating to this Agreement or the interpretation thereof
(including, without limitation, all such fees and expenses, if any,
incurred in contesting or disputing any termination of Executive's
employment or in seeking to obtain or enforce any right or benefit
provided by this
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Agreement).
11. AT-WILL EMPLOYMENT. Nothing in the foregoing diminishes or alters
Cricket's policy of at-will employment for all employees, where both Cricket and
Executive may terminate the employment relationship at any time and for any
reason, with or without cause or notice.
12. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement of
the Parties hereto in respect of the subject matter contained herein and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto; and any prior agreement
of the Parties hereto in respect of the subject matter contained herein,
including, without limitation, any prior severance agreements, is hereby
terminated and cancelled.
IN WITNESS WHEREOF, the Parties have signed their names as of the day
and year first above written.
CRICKET COMMUNICATIONS, INC.
By:
---------------------------------
Xxxxxxx X. Xxxxxxxx
Xx. Vice President, Human Resources
LEAP WIRELESS INTERNATIONAL, INC.
By:
---------------------------------
Xxxxxxx X. Xxxxxxxx
Xx. Vice President, Human Resources
EXECUTIVE
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[__________]
11
GENERAL RELEASE
1. GENERAL RELEASE OF CLAIMS. In consideration of the benefits under
Section 3 of the Retention Bonus Agreement (the "Agreement"), effective as of
February 14, 2003, by and between Leap Wireless International, Inc. ("Leap"),
Cricket Communications, Inc. ("Cricket") (collectively, the "Companies") and
[__________] ("Employee"), Employee does hereby for himself or herself and his
or her spouse, beneficiaries, heirs, successors and assigns, release, acquit and
forever discharge the Companies and their respective stockholders, officers,
directors, managers, employees, representatives, related entities, successors
and assigns, and all persons acting by, through or in concert with them (the
"Releasees") of and from any and all claims, actions, charges, complaints,
causes of action, rights, demands, debts, damages, or accountings of whatever
nature, except for criminal activity, known or unknown, which Employee may have
against the Releasees based on any actions or events which occurred prior to the
date of this General Release, including, but not limited to, those related to,
or arising from, Employee's employment with the Companies, or the termination
thereof, any claims under Title VII of the Civil Rights Act of 1964, the Federal
Age Discrimination and Employment Act and the California Fair Employment and
Housing Act, but excluding claims under the Agreement (collectively, "Claims").
This General Release shall not, however, constitute a waiver of any of
Employee's rights under the Agreement or under any outstanding stock option
granted to Employee, or under the terms of any employee benefit plan of the
Companies in which Employee is a participant.
2. RELEASE OF UNKNOWN CLAIMS. In addition, Employee expressly waives all
rights under Section 1542 of the Civil Code of the State of California, which
reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIM FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
3. OLDER WORKER'S BENEFIT PROTECTION ACT. Employee agrees and expressly
acknowledges that this General Release includes a waiver and release of all
claims which Employee has or may have under the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. Section 621, et seq. ("ADEA"). The following
terms and conditions apply to and are part of the waiver and release of the ADEA
claims under this General Release:
a. That the Agreement and this General Release are written in a
manner calculated to be understood by Employee.
b. The waiver and release of claims under the ADEA contained in
this General Release do not cover rights or claims that may arise after
the date on which Employee signs this General Release.
c. The Agreement provides for consideration in addition to
anything of value to which Employee is already entitled.
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d. Employee is advised to consult an attorney before signing
this General Release.
e. Employee is afforded twenty-one (21) days (or, in the event
that the termination of Employee's employment is in connection with an
exit incentive or other employment termination program, forty-five (45)
days) after Employee is provided with this General Release to decide
whether or not to sign this General Release. If Employee executes this
General Release prior to the expiration of such period, Employee does so
voluntarily and after having had the opportunity to consult with an
attorney.
f. In the event that the termination of Employee's employment is
in connection with an exit incentive or other employment termination
program, Employee is provided with written information, calculated to be
understood by the average individual eligible to participate, as to:
(i) any class, unit, or group of individuals covered by
such program, any eligibility factors for such program, and any
time limits applicable to such programs; and
(ii) the job titles and ages of all individuals eligible
or selected for the program, and the ages of all individuals in
the same job classification or organizational unit who are not
eligible or not selected for the program.
g. Employee will have the right to revoke this General Release
within seven (7) days of signing this General Release. In the event this
General Release is revoked, this General Release will be null and void
in its entirety, and Employee will not receive the benefits described in
Section 3 of the Agreement.
h. If Employee wishes to revoke the General Release, Employee
shall deliver written notice stating his intent to revoke this General
Release to Cricket's President on or before the seventh (7th) day after
the date hereof.
4. NO ASSIGNMENT OF CLAIMS. Employee represents and warrants to the
Releasees that there has been no assignment or other transfer of any interest in
any Claim which Employee may have against the Releasees, or any of them, and
Employee agrees to indemnify and hold the Releasees harmless from any liability,
claims, demands, damages, costs, expenses and attorneys' fees incurred as a
result of any person asserting any such assignment or transfer of any rights or
Claims under any such assignment or transfer from such party.
5. NO SUITS OR ACTIONS. Employee agrees that if he or she hereafter
commences, joins in, or in any manner seeks relief through any suit arising out
of, based upon, or relating to any of the Claims released hereunder, or in any
manner asserts against the Releasees any of the Claims released hereunder, then
he or she will pay to the Releasees against whom such suit or Claim is asserted,
in addition to any other damages caused thereby, all attorneys' fees incurred by
such Releasees in defending or otherwise responding to said suit or Claim.
A-2
6. NO ADMISSION. Employee further understands and agrees that neither
the payment of money nor the execution of this Release shall constitute or be
construed as an admission of any liability whatsoever by the Releasees.
EMPLOYEE
----------------------------------------
[____________]
Date:
-----------------------------------
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