Exhibit 10.22
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made and entered
into as of May 24, 2004 by and between Cricket Communications, Inc., a Delaware
corporation (the "Company") and Xxxxxxx X. Xxxxxxx, an individual currently
residing in Warren, New Jersey ("EXECUTIVE"). The Company is a subsidiary of
LEAP WIRELESS INTERNATIONAL, INC., a Delaware corporation (the "Parent"). The
Company and EXECUTIVE are hereinafter collectively referred to as the "Parties,"
and individually referred to as a "Party."
1. Employment.
1.1 The Company hereby employs EXECUTIVE, and EXECUTIVE hereby
accepts employment by the Company, upon the terms and conditions set forth in
this Agreement for the period beginning on the date hereof and ending as
provided in Paragraph 3 hereof (the "Employment Period").
1.2 During the Employment Period, EXECUTIVE shall serve as the Chief
Executive Officer of the Company on a full-time basis and shall have the normal
duties, responsibilities and authority of such office. During the Employment
Period, EXECUTIVE shall report directly to the Company's Board of Directors. It
is recognized and agreed that, due to the location of his current residence and
the activities of the Company, and its subsidiaries, a not insubstantial portion
of EXECUTIVE's working time may be spent on the East Coast. However, it is
anticipated that EXECUTIVE will spend approximately 85% of his time devoted to
the activities of the Company working from the Company's headquarters in San
Diego, California, or other business locations, subject to Company-related
business travel. EXECUTIVE shall use all reasonable commercial efforts to do and
perform all services, acts, or responsibilities necessary or advisable to carry
out the job duties of the Chief Executive Officer as reasonably assigned by the
Board of Directors of the Company, provided, however, that at all times during
his employment EXECUTIVE shall be subject to the direction and policies and
procedures from time to time established by the Board of Directors of the
Company.
2. Loyal and Conscientious Performance.
2.1 During his employment with the Company, EXECUTIVE shall
faithfully and diligently devote EXECUTIVE's full business time and efforts to
the performance of the duties of the Chief Executive Officer with the degree of
loyalty and care prescribed by law provided that EXECUTIVE shall be permitted to
continue to serve on the boards of directors/trustees/advisors of CIT Group,
Value Added Communications, Drew University, and Junior Achievement, and no
other boards of directors or similar obligations, unless approved by the Board
of Directors, so long as his services do not materially and adversely affect
EXECUTIVE's ability to perform his duties hereunder as reasonably determined by
the Company's Board of Directors. This Employment Agreement is a personal
services contract whereby the Company is engaging the services of EXECUTIVE.
3. Term of Employment.
3.1 EXECUTIVE shall be employed pursuant to the terms of this
Agreement for a three (3) year term beginning on May 24, 2004 (the "Effective
Date") and expiring at midnight on May 23, 2007. The term of employment,
including any renewal period contemplated below, shall be referred to as the
"Employment Period." This Agreement will automatically renew for additional one
(1) year periods unless 30 days prior written notice is given by either party.
4. Compensation Benefits.
4.1 Beginning with the Effective Date, Company shall pay EXECUTIVE a
salary (the "Base Salary") of four hundred thousand and 00/100 Dollars
($400,000) per year, payable bi-weekly in accordance with the Company's normal
payroll practices for Executives.
4.2 During the Employment Period, EXECUTIVE shall be eligible to
receive an annual performance bonus ("Performance Bonus") in according with the
Company's then prevailing bonus practices. Executive's annual Performance Bonus
target shall be 85% of EXECUTIVE's Base Salary with the actual amount of the
Performance Bonus paid with respect to any calendar year to be determined based
upon the achievement of reasonable performance targets that are set by the Board
of Directors (or a Board Committee to which such determination has been
delegated), and that are used to determine bonus compensation for the senior
executives of the Company generally, provided, however, that EXECUTIVE's
Performance Bonus with respect to calendar 2004 shall be at least 50% of
EXECUTIVE's Base Salary, prorated to reflect Executive's period of service
during calendar 2004.
4.3 EXECUTIVE's Base Salary may be changed only by mutual agreement
of EXECUTIVE and the Board of Directors of the Company. Any such agreement shall
be evidenced by a written amendment of this Agreement, which, among other
things, shall specify with particularity any change in EXECUTIVE's Base Salary
and the date or dates when each such change shall become effective.
4.4 EXECUTIVE shall be entitled to relocation benefits as follows:
4.4.1 The reasonable cost of rental housing and reasonable
auto allowance for a period of up to 12 months after the Effective Date, not to
exceed $5,000.00 per month in the aggregate.
4.4.2 The Company shall reimburse EXECUTIVE for transportation
costs for two air trips per calendar month between San Diego, California and
Warren, NJ for either EXECUTIVE or EXECUTIVE's spouse and child, not to exceed
$25,000.00 per year in the aggregate.
4.5 The EXECUTIVE shall be entitled to the following benefits during
the Employment Period:
4.5.1 All benefits to which other Executive officers of the
Company are entitled as determined by the Company's Board of Directors, on terms
no less favorable than other such participants, including but not limited to,
participation in any and all retirement
2
plans, bonus and incentive payment programs, group life insurance policies and
plans, medical, health, dental and disability insurance policies and plans, and
the like, which may be maintained by the Company for the benefit of its
Executive officers.
4.5.2 Four (4) weeks of Scheduled Time Off ("STO") per year
under the Company's Paid Time Off ("PTO") policy, which shall accrue and may be
used by EXECUTIVE in accordance with the Company's then prevailing PTO
practices. EXECUTIVE shall also be entitled to paid holidays and paid
personal/sick days, in a manner consistent with the Company's policies and
practices for senior executives.
4.6 The Company shall reimburse EXECUTIVE for all reasonable
out-of-pocket expenses incurred by him in the course of performing his duties
under this Agreement (whether such reimbursement is sought before or after
termination of this Agreement), to the extent consistent with the Company's
policies in effect from time to time with respect to travel, entertainment and
other business expenses, subject to the Company's requirements with respect to
reporting and documentation of such expenses pursuant to Company policy.
4.7 All of EXECUTIVE's compensation shall be subject to customary
federal and state withholding taxes and any other employment taxes as are
commonly required to be collected or withheld by the Company.
4.8 The Parties acknowledge that a significant portion of the
consideration that EXECUTIVE expects to receive in connection with his
employment with the Company is his participation in a long-term equity based
incentive plan (the "LTIP") of Parent, the terms of which have previously been
discussed by EXECUTIVE and representatives of the Company. The Parties agree
that they will work together to establish the terms of and to implement the LTIP
and EXECUTIVE's participation therein, in a manner consistent with the prior
discussions. Specifically, promptly following the Effective Date, the Company
will retain the services of an independent, nationally recognized executive
compensation consultant to assist it with surveying incentive compensation
arrangements that are similar to the LTIP that are maintained by entities
comparable to the Company and the level of participation in such plans by the
Chief Executive Officers of such comparable entities. Promptly following
Parent's emergence from its pending bankruptcy proceeding, the Parties will
mutually agree in good faith to EXECUTIVE's participation in and the terms of
the LTIP as they relate to Executive.
5. Termination of Employment
5.1 This Agreement shall terminate without notice upon the date of
EXECUTIVE's death.
5.1.1 In the event of EXECUTIVE's death, all rights of
EXECUTIVE to compensation hereunder shall automatically terminate immediately
upon his death, except that EXECUTIVE's heirs, personal representatives or
estate shall be entitled to any unpaid portion of his salary and accrued
benefits earned up to the date of his death, including a pro rata share of
EXECUTIVE's Performance Bonus.
5.2 The Company may terminate this Agreement after 30 days notice in
the event that EXECUTIVE is unable to substantially perform his duties for an
aggregate period of 60 days during any 180-day period resulting from EXECUTIVE's
incapacity due to a physical
3
or mental disability after attempts to reasonably accommodate EXECUTIVE's
disability have failed. If so terminated, EXECUTIVE shall be entitled to any
unpaid portion of his salary and accrued benefits earned up to the date of his
termination, including a pro rata share of EXECUTIVE's Performance Bonus.
5.3 In the event that during the remaining Employment Period,
EXECUTIVE's employment is terminated by the Company other than for Cause (as
defined below), or by EXECUTIVE for Good Reason (as defined below), EXECUTIVE
shall be entitled to the following:
5.3.1 The Company shall pay EXECUTIVE a lump sum payment in
cash (the "Severance Payment") equal to the product of (a) the EXECUTIVE's Base
Salary plus 50% of EXECUTIVE's Performance Bonus target multiplied by (b) the
number of years, including fractional years, from the Date of Termination (as
defined below) to the end of the Employment Period, except if EXECUTIVE'S LTIP
fully vests EXECUTIVE shall receive Base Salary only, as described and
calculated earlier in this Section 5.3.1 and shall not receive a Bonus or
benefits.
5.3.2 For purposes of this Section, "Cause" shall mean
termination of EXECUTIVE's employment by the Company: (i) upon EXECUTIVE's
willful failure substantially to perform EXECUTIVE's duties with the Company
following written demand for substantial performance delivered to EXECUTIVE by
the Company's Board of Directors, which demand specifically identifies the
manner in which the Board of Directors believes that EXECUTIVE has not
substantially performed such duties, and following a reasonable period to cure
such failure, (ii) upon EXECUTIVE's willful failure substantially to follow and
comply with the specific and lawful directives of the Board of Directors, as
reasonably determined by the Board of Directors after a written demand for
substantial performance is delivered to EXECUTIVE by the Board of Directors,
which demand specifically identifies the manner in which the Board of Directors
believes that EXECUTIVE has not substantially performed such directives, and
following a reasonable period to cure such failure, (iii) upon EXECUTIVE's
commission of an act of fraud or dishonesty materially impacting or involving
the Company, (iv) upon EXECUTIVE's willful engagement in illegal conduct or
gross misconduct. In the event that the Board of Directors determines to
terminate EXECUTIVE for Cause, the Board of Directors will provide EXECUTIVE
with written notice of that determination and the basis for such termination. A
termination for "Cause" decision under this Agreement may only be made by a vote
of a majority of the full Board of the Company.
5.3.3 For purposes of this Section, "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
continuous assignment to EXECUTIVE of any duties materially 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
(including his reporting directly to the Board), 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 or
target bonus as in effect on the Effective Date or as the same may be increased
from time to time thereafter; (iii) the Company's failure and refusal
4
to pay EXECUTIVE any portion of EXECUTIVE's Base Salary or Performance Bonus;
(iv) the Company's failure to continue EXECUTIVE's participation in any benefit
or benefit plan, as they may be revised and changed from time to time, 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; (v) the Company's failure to continue to provide EXECUTIVE with
benefits substantially similar in the aggregate to those enjoyed by other
executives under any of the Company'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, (vi) the continuation or repetition, after written notice of
objection from EXECUTIVE, of harassing or denigrating treatment of EXECUTIVE by
the Company inconsistent with EXECUTIVE's position with the Company; (vii) the
failure of the court having jurisdiction over the bankruptcy proceeding to which
the Company and Parent are currently party to approve the Company's entering
into this Agreement within 60 days following the Effective Date or such court's
affirmative determination not to approve the Company's entering into this
Agreement (or, if the Company emerges from bankruptcy before the Bankruptcy
Court has an opportunity to consider and rule upon a motion to approve this
Agreement, the Parties to this Agreement do not confirm it in writing within
five days of the Company's emergence from bankruptcy); (viii) in the event that
following its emergence from bankruptcy Parent does not appoint EXECUTIVE as
Chief Executive Officer or fails to appoint EXECUTIVE to Parent's Board of
Directors within 5 business days following emergence, or he shall be removed
from either such office during the term of this Agreement without Cause; or (ix)
if a successor to Company does not retain EXECUTIVE'S services for at least one
year on substantially the same terms as Sections 4.1 and 4.2 of this Agreement,
which includes the obligation to assume the Company's obligations under this
Agreement. EXECUTIVE's continued employment with the Company shall not
constitute consent to, or a waiver of rights with respect to, any circumstance
constituting Good Reason hereunder.
5.3.4 Any purported termination of EXECUTIVE's employment by
the Company for Cause or by EXECUTIVE for Good Reason shall be communicated by
Notice of Termination to the other party hereto in accordance with Section 8.
"Notice of Termination" shall mean a written notice that shall indicate the
specific termination provision in this Section 5 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.
5.3.5 For purposes of this Section, "Date of Termination"
shall mean the date specified in the Notice of Termination (which, in the case
of a termination by the Company for Cause may occur immediately upon giving the
Notice of Termination, 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).
5.3.6 In consideration of, and as a condition to receiving,
the benefits to be provided to EXECUTIVE under this Section 5.3, EXECUTIVE shall
execute and deliver to the Company and to its parent company, Leap Wireless
International, Inc., 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 the Company is in connection with an exit incentive or other
employment termination program offered to a group or class of employees, not
later than
5
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 the General Release in accordance with this Section 5.3.6, or EXECUTIVE
revokes the General Release in accordance with the terms thereof, EXECUTIVE
shall not receive the benefits set forth in this Section 5.3.
5.3.7 As further consideration for the benefits to be provided
under this Section 5.3, EXECUTIVE hereby agrees as follows:
5.3.7.1 For the period commencing on the Date of
Termination and terminating on the second 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 the Company, 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 the Company, or any
of its affiliates; provided, however, that a general advertisement to which an
officer or employee of the Company, or any of its affiliates, responds shall in
no event be deemed to result in a breach of this Section 5.3.7.1.
5.3.7.2 In the event that EXECUTIVE breaches the
provisions of Section 5.3.7.1, or threatens to do so, in addition to and without
limiting or waiving any other remedies available to the Company in law or in
equity, the Company 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 Section 5.3.7.1. EXECUTIVE acknowledges that it
is impossible to measure in money the damages that the Company will sustain in
the event that EXECUTIVE breaches or threatens to breach Section 5.3.7.1 and, in
the event that the Company institutes any action or proceeding to enforce
Section 5.3.7.1 seeking injunctive relief, EXECUTIVE hereby waives and agrees
not to assert or use as a defense a claim or defense that the Company has an
adequate remedy at law. Also, in addition to any other remedies available to the
Company in law or in equity, in the event that EXECUTIVE breaches the provisions
of Section 5.3.7.1 in any material respect, EXECUTIVE shall forfeit EXECUTIVE's
right to further benefits under Section 5.3 and EXECUTIVE shall be obligated to
repay to the Company the benefits that EXECUTIVE has received under Section 5.3.
5.3.8 The payments provided for in this Section 5 shall be
made not later than the tenth day following the date on which the General
Release by EXECUTIVE becomes irrevocable.
6. Proprietary and Confidential Information.
6.1 Simultaneously with the execution of this Agreement, EXECUTIVE
has executed the Company's standard form of Invention Disclosure,
Confidentiality and Proprietary Rights Agreement which, among other matters,
requires EXECUTIVE to maintain the confidentiality of certain Company
information.
6
6.2 EXECUTIVE will exercise reasonable care, consistent with good
business judgment to preserve in good working order, subject to reasonable wear
and tear from authorized usage, and to prevent loss of, any equipment,
instruments or accessories of the Company in his custody for the purpose of
conducting the business of the Company. Upon request, EXECUTIVE will promptly
surrender the same to the Company at the conclusion of his employment, or if not
surrendered, EXECUTIVE will account to the Company to its reasonable
satisfaction as to the present location of all such instruments or accessories
and the business purpose for their placement at such location. At the conclusion
of EXECUTIVE's employment with the Company, he agrees to return such instruments
or accessories to the Company or to account for same to the Company's reasonable
satisfaction.
7. Assignment and Binding Effect.
7.1 This Agreement shall be binding upon and inure to the benefit of
EXECUTIVE and EXECUTIVE's heirs, executors, administrators, estate,
beneficiaries, and legal representatives. Neither this Agreement nor any rights
or obligations under this Agreement shall be assignable by either party without
the prior express written consent of the other party; provided, however, that
the Company may assign this Agreement and its rights and obligations hereunder
to any successor in interest to the Company. This Agreement shall be binding
upon and inure to the benefit of the Company and its successors, assigns and
legal representatives.
8. Notices.
8.1 All notices or demands of any kind required or permitted to be
given by the Company or EXECUTIVE under this Agreement shall be given in writing
and shall be personally delivered (and receipted for) or sent by facsimile (with
confirmation of receipt), or sent by recognized commercial overnight courier, or
mailed by certified mail, return receipt requested, postage prepaid, addressed
as follows:
If to the Company:
Cricket Communications, Inc.
Attention: General Counsel
00000 Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to EXECUTIVE:
Xxxxxxx X. Xxxxxxx
00 Xxxxxxx Xxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
7
With copies to:
Xxxxxxx Xxxxxxxxx, Esq.
Xxxxxxxx & Xxxxx LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any such written notice shall be deemed received when personally delivered
or upon receipt in the event of facsimile or overnight courier, or three (3)
days after its deposit in the United States mail by certified mail as specified
above. Either Party may change its address for notices by giving notice to the
other Party in the manner specified in this section.
9. Choice of Law.
9.1 This Agreement is made in San Diego, California. This Agreement
shall be construed and interpreted in accordance with the internal laws of the
State of California. Any controversy or claim arising out of or relating to this
Agreement or breach hereof, whether involving remedies at law or in equity, or
arising out of or relating to the rights, duties or obligations of the Company
or of EXECUTIVE shall be brought and adjudicated exclusively in San Diego
County, California or in such other location as the parties may agree.
10. Integration.
10.1 This Agreement and the Invention Disclosure, Confidentiality
and Proprietary Rights Agreement referred to in Section 6.1 contain the entire
agreement of the parties relating to the subject matter hereof, and supersede
all prior oral and written employment agreements or arrangements between the
Parties. This Agreement cannot be amended or modified except by a written
agreement signed by EXECUTIVE and the Company.
11. Waiver.
11.1 No term, covenant or condition of this Agreement or any breach
thereof shall be deemed waived, except with the written consent of the Party
against whom the waiver is claimed, and any waiver of any such term, covenant,
condition or breach shall not be deemed to be a waiver of any preceding or
succeeding breach of the same or any other term, covenant, condition or breach.
No failure to exercise, delay in exercising, or single or partial exercise of
any right, power or remedy by either party hereto shall constitute a waiver
thereof or shall preclude any other or further exercise of the same or any other
right, power or remedy.
12. Severability.
12.1 The unenforceability, invalidity, or illegality of any
provision of this Agreement shall not render any other provision of this
Agreement unenforceable, invalid or illegal.
8
13. Interpretation; Construction.
13.1 The headings set forth in this Agreement are for convenience
only and shall not be used in interpreting this Agreement. The Parties
acknowledge that each Party and its counsel has reviewed and revised, or had an
opportunity to review and revise, this Agreement, and the normal rule of
construction to the effect any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement.
14. Attorneys' Fees.
14.1 In any controversy or claim arising out of or relating to this
Agreement or the breach thereof, which results in legal action, proceeding or
arbitration, the prevailing party in such action, as determined by the court or
arbitrator, shall be entitled to recover reasonable attorneys' fees and costs
incurred in such action.
14.2 The Company hereby agrees to pay EXECUTIVE's reasonable legal
fees and expenses up to $20,000 incurred in connection with the negotiation of
this Agreement and any related agreements and documents (including review and
comment on the LTIP).
15. Counterparts.
15.1 This Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall together constitute an
original thereof.
16. Representations and Warranties.
16.1 Executive Representations and Warranties. EXECUTIVE represents
and warrants that he is not restricted or prohibited, contractually or
otherwise, from entering into and performing each of the terms and covenants
contained in this Agreement, and that his execution and performance of this
Agreement will not violate or breach any other agreement between EXECUTIVE and
any other person or entity.
16.2 Company Representatives and Warranties.
(a) Due Authorization. The Company has full corporate power
and authority to execute, deliver and perform its obligations under this
Agreement, and this Agreement constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms;
(b) Conflicts. The execution, delivery and performance of this
Agreement by the Company, does not and will not (i) violate any constitution,
statute, regulation, rule, injunction, judgment, order, decree, ruling, charge,
or other restriction of any government, governmental agency, or court to which
the Company is subject or any provision of its Certificate of Incorporation,
bylaws, or other governing documents or (ii) conflict with, result in a breach
of, constitute a default under, result in the acceleration of, create in any
party the right to accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license, instrument, or other
arrangement to which the Company is a party or by which the Company is bound or
to which any of the Company 's assets is subject.
9
17. Bankruptcy Court Approval.
Notwithstanding the other provisions of this Agreement, this
Agreement shall be subject to the approval of the Bankruptcy Court; provided,
however, that if the Company emerges from bankruptcy before the Bankruptcy Court
has an opportunity to consider and rule upon a motion to approve this Agreement,
then this Agreement shall become automatically effective without any further
actions by the Parties or the Bankruptcy Court. Notwithstanding the preceding
sentence, the Parties shall perform their obligations under this Agreement from
the Effective Date until such time that the Bankruptcy Court approves this
Agreement or the Company emerges from bankruptcy, at which time this Agreement
will become fully effective. In any event, when the Company emerges from
bankruptcy, the EXECUTIVE and Company shall reaffirm this Agreement in writing.
18. Arbitration.
18.1 Any controversy or claim arising out or relating to this
Agreement, or the breach hereof, whether involving remedies at law or in equity,
or arising out of or relating to the rights, duties or obligations of the
Company or of EXECUTIVE shall be settled by binding arbitration conducted in San
Diego County, California or in such other location as the parties may agree in
accordance with, and by an arbitrator appointed pursuant to the rules of the
American Arbitration Association in effect at the time, and the judgment upon
the award rendered pursuant thereto shall be in writing and may be entered in
any court having jurisdiction, and all rights or remedies of the Company and of
the EXECUTIVE to the contrary are hereby expressly waived. The arbitration fees
and costs shall be shared equally by the Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
THE COMPANY: EXECUTIVE:
CRICKET COMMUNICATIONS, INC.
By:
------------------------------ ----------------------------------
Name: Xxxxxxx X. Xxxxxxx
------------------------------
Title:
------------------------------
10
EXHIBIT A
GENERAL RELEASE
1. GENERAL RELEASE OF CLAIMS. In consideration of the benefits under
Section 5.2 of the Executive Employment Agreement (the "Agreement"), dated as of
May 24, 2004, by and between Cricket Communications, Inc. ("the "Company") and
Xxxxxxx X. Xxxxxxx ("Executive"), Executive does hereby for himself or herself
and his or her spouse, beneficiaries, heirs, successors and assigns, release,
acquit and forever discharge the Company, Leap Wireless International, Inc.,
their subsidiaries, and their respective stockholders, officers, directors, any
of the directors' affiliated entities, 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, known or unknown, which Executive 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, Executive's employment with the Company, or the termination
thereof, any claims under Title VII of the Civil Rights Act of 1964, as amended,
the Federal Age Discrimination and Employment Act, the Equal Pay Act, the Family
and Medical Leave Act, the Americans with Disabilities Act, the Civil Rights Act
of 1866, 1871 and 1991, the California Fair Employment and Housing Act, the
California Occupational Safety and Health Act, claims for unpaid wages and
failure to pay wages under the California Labor Code (collectively, "Claims").
This General Release shall not, however, constitute a waiver of any of
Executive's rights under the Agreement or under any outstanding stock option
granted to Executive, or under the terms of any employee benefit plan of the
Companies in which Executive is a participant after this General Release becomes
effective and remains unrevoked for eight days.
2. RELEASE OF UNKNOWN CLAIMS. IN ADDITION, EXECUTIVE 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 HIS 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. EXECUTIVE AGREES AND EXPRESSLY
ACKNOWLEDGES THAT THIS GENERAL RELEASE INCLUDES A WAIVER AND RELEASE OF ALL
CLAIMS WHICH EXECUTIVE 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 ALL
CLAIMS INCLUDING BUT NOT LIMITED TO 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 Executive.
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 Executive signs this General Release.
c. The Agreement provides for consideration in addition to anything
of value to which Executive is already entitled.
d. Executive is advised to consult an attorney before signing this
General Release.
e. Executive is afforded twenty-one (21) days (or, in the event that
the termination of Executive's employment is in connection with an exit
incentive or other employment termination program, forty-five (45) days)
after Executive is provided with this General Release to decide whether or
not to sign this General Release. If Executive executes this General
Release prior to the expiration of such period, Executive does so
voluntarily and after having had the opportunity to consult with an
attorney.
f. In the event that the termination of Executive's employment is in
connection with an exit incentive or other employment termination program,
Executive 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. Executive 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 Executive will not receive the benefits described in
Section 5.2 of the Agreement.
h. If Executive wishes to revoke the General Release, Executive
shall deliver written notice stating his intent to revoke this General
Release to the Company's General Counsel on or before the seventh (7th)
day after the date hereof.
4. NO ASSIGNMENT OF CLAIMS. Executive represents and warrants to the
Releasees that there has been no assignment or other transfer of any interest in
any Claim which Executive may have against the Releasees, or any of them, and
Executive agrees to indemnify and hold the
-2-
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. Executive 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.
6. NO ADMISSION. Executive 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.
EXECUTIVE
Date:
-------------------- --------------------------------------
Xxxxxxx X. Xxxxxxx
-3-
