exv10w1






Exhibit 10.1




RETIREMENT AND EMPLOYMENT TRANSITION AGREEMENT




     This Retirement and Employment Transition Agreement (this “Agreement”) is entered into
among Albin F. Moschner (“Executive”), Leap Wireless International, Inc. (“Leap”)
and Cricket Communications, Inc. (“Cricket,” and together with Leap, the
“Company”), effective as of January 17, 2011 (the “Effective Date”).



     WHEREAS, Executive has communicated his plans to retire from the Company;



     WHEREAS, the Company desires to retain Executive to provide certain continuing employment and
consulting services to the Company and wishes to provide Executive with certain compensation and
benefits in return for Executive’s services; and



     WHEREAS, Executive wishes to provide services to the Company in return for certain
compensation and benefits.



     NOW, THEREFORE, in consideration of the mutual promises herein contained, the parties agree as
follows:



     1. Term of Employment/Consulting Services.



          (a) Employment Period. During the period (i) commencing on the Effective Date and
(ii) ending on January 31, 2011 (such date, the “Employment Termination Date” and such
period, the “Employment Period”), Executive will continue to be employed by the Company.
The parties acknowledge that the termination of the Employment Period will constitute Executive’s
“separation from service” with the Company as such term is defined in Treasury Regulation Section
1.409A-1(h) and any successor provision thereto and the scope of the consulting services to be
provided pursuant to this Agreement shall be limited to the extent necessary to establish that such
a separation from service has occurred.




          (b) Consulting Period. Subject to Section 4(a)(iii), on February 1, 2011, Executive
shall immediately begin to provide consulting services to Cricket for a period of eighteen (18)
months (the “Consulting Period, and together with the Employment Period, the
“Transition Period”). Executive’s consulting services pursuant to this Section 1(b) shall
automatically terminate at the end of the Consulting Period, unless terminated earlier pursuant to
this Agreement.




     2. Duties and Services.



          (a) Duties During Employment Period. During the Employment Period, Executive shall
report directly to the Chief Executive Officer of Cricket and shall devote substantially all of his
business time and effort to such duties as may be assigned to Executive from time to time by the
Chief Executive Officer. Executive shall serve as the Company’s Executive Vice President and Chief
Operating Officer until the Employment Termination Date. Executive shall be deemed to have
immediately resigned his positions as an officer and/or director of Leap, Cricket and their
subsidiaries effective as of such date, without any further action.






 









 








          (b) Scope of Services During Consulting Period.




               (i) During the Consulting Period, Executive shall devote such percentage of his business time
and effort, subject to Section 1(a), to the performance of his services hereunder as shall be
reasonably requested or directed from time to time by the Chief Executive Officer and shall provide
such additional information, advice and assistance concerning matters that are within the scope of
Executive’s knowledge and expertise.



               (ii) In order to avoid any actual or perceived conflict of interest during the Consulting
Period, Executive agrees that he will not, directly or indirectly, own, manage, operate, join,
control, or participate in the ownership, management, operation, or control of, or be involved as
an officer, director, employee, consultant, independent contractor, limited or general partner,
member, shareholder, joint venturer, advisor, or otherwise (the “Specified Activities”) of
any profit or nonprofit business or organization which, to the knowledge of Executive (A) provides
goods or services within the field of wireless telecommunications, or (B) holds or proposes to hold
or invest in debt or equity securities of the Company or that offers investment, strategic, proxy
or other advisory services to any such holder or proposed holder or investor in debt or equity
securities of the Company; provided, that nothing in this Section 2(b) shall be construed to
prohibit Executive from owning not in excess of 2% of the outstanding equity securities of any
publicly-traded entity. In the event that Executive desires to pursue any of the Specified
Activities with respect to any business or organization described in subsections (A) or (B) above,
Executive shall provide notice to the Chief Executive Officer regarding the proposed nature and
scope of such services or activities and may request a waiver from the provisions of this Section
2(b)(ii), which such request will be considered by the Chief Executive Officer in his sole and
absolute discretion. In the event that Executive desires to pursue any of the Specified Activities
with respect to any business or organization other than as described in subsections (A) or (B)
above, Executive shall provide notice to the Chief Executive Officer regarding the proposed nature
and scope of such services or activities.



     3. Compensation.



          (a) Employment Period. Executive shall be entitled to the following compensation and
benefits from Cricket:




               (i) During the Employment Period, Cricket shall continue to pay to Executive his base salary
as was in effect immediately prior to the Effective Date, payable in accordance with Cricket’s
standard payroll practices.



               (ii) Executive shall be eligible to be considered to receive a cash bonus award in recognition
of Cricket’s financial and operational performance in 2010 and Executive’s individual contributions
to Cricket during such period, which amount shall be awarded by the Compensation Committee of
Leap’s Board of Directors in its sole and absolute discretion. Such bonus shall be paid at the
same time as 2010 annual bonuses are generally paid to the Company’s executives.



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               (iii) During the Employment Period, Executive shall be eligible to continue to participate in
Cricket’s employee benefit plans or programs maintained or established by Cricket (including, but
not limited to, group medical, dental, and vision benefits, life and disability insurance benefits,
long term care insurance, and other programs) to the same extent as other executive officers of
Cricket, subject to the generally applicable terms and conditions of the plan or program in
question.



          (b) Consulting Period. During the Consulting Period, in consideration for the
consulting services to be provided hereunder and Executive’s compliance with the provisions of
Section 2(b) above and Sections 5, 6, 7 and 8 below, Executive shall be entitled to receive the
following compensation and benefits from Cricket:




               (i) Cricket shall pay to Executive a monthly consulting fee as follows: (A) following
commencement of the Consulting Period, Cricket shall pay Executive the amount of Seventy Nine
Thousand One Hundred Sixty Seven Dollars ($79,167) on the first regularly scheduled payroll date
following the effectiveness of Executive’s First Release (as defined below); and (B) Cricket shall
thereafter pay Executive the amount of Seventy Nine Thousand One Hundred Sixty Seven Dollars
($79,167) on the first regularly scheduled payroll date of each of the following seventeen (17)
calendar months during the Consulting Period; provided, however, that the aggregate consulting fees
paid to Executive during the Consulting Period pursuant to this Section 3(b)(i) shall not exceed
One Million Four Hundred Twenty-Five Thousand Dollars ($1,425,000) (the “Aggregate Consulting
Fees”).



               (ii) To the extent that 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; provided, however, that the payment of such premiums by Cricket
shall cease at such time as Executive is eligible for comparable coverage with a subsequent
employer. Executive acknowledges that, following the termination of the Employment Period,
Executive shall not be eligible to participate in any plan or program which, as a condition of
eligibility for such plan or program, requires Executive to be an employee of the Company.



               (iii) Cricket shall reimburse Executive for reasonable out-of-pocket business expenses
incurred in connection with the performance of his consulting services, subject to (A) such
policies as Cricket may from time to time establish, and (B) Executive furnishing Cricket with
evidence in the form of receipts satisfactory to Cricket substantiating the claimed expenditures.



          (c) Stock Awards.




               (i) During the Employment Period and the Consulting Period, all of Executive’s unexercised
Stock Awards shall continue to vest and be exercisable, if applicable, pursuant to the terms of the
Stock Plan and the individual award agreements pursuant to which they were granted. There shall be
no break in service to the Company as a result of Executive’s conversion from an employee to a
consultant for purposes of Executive’s Stock Awards. Upon either (i) the termination of the
Employment Period (without a subsequent Consulting Period



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hereunder), or (ii) subject to Section 3(c)(ii), the termination of the Consulting Period,
Executive shall cease vesting in any unvested Stock Awards and the vested Stock Awards shall be
exercisable pursuant to the terms of the Stock Plan and the individual award agreements. For
purposes of this Agreement, “Stock Awards” means all options to purchase shares of Leap
common stock and restricted stock awards for shares of Leap common stock granted pursuant to the
Leap Wireless International, Inc. 2004 Stock Option, Restricted Stock and Deferred Stock Unit Plan
(the “Stock Plan”).




               (ii) In the event of the occurrence of a Change in Control (as such term is defined in the
Stock Plan), if the Consulting Period terminates (whether pursuant to the termination of the
Agreement pursuant to Section 1(b) or the Company’s earlier termination of the Consulting Period
pursuant to Section 4(b) for reasons other than Cause) during the period commencing ninety (90)
days prior to such Change of Control and ending twelve months after such Change in Control, then
all of Executive’s unvested Stock Awards (including, for the avoidance of doubt, any such Stock
Awards as to which vesting otherwise would have been deemed to have ceased pursuant to Section
3(c)(i) upon termination of the Consulting Period) shall immediately vest on the date of the
termination of the Consulting Period (or, if later, immediately prior to the date of the occurrence
of such Change in Control). For purposes of this Section 3(c)(ii), the term “Cause” shall mean
termination of the Consulting Period by the Company (A) upon Executive’s commission of an act of
fraud or dishonesty having a material adverse effect on the Company, (B) upon Executive’s willful
engagement in illegal conduct or gross misconduct having a material adverse effect on the Company
or (C) upon Executive’s being convicted of, or pleading nolo contendere to, the commission of a
felony. The provisions of this Section 3(c)(ii) shall be deemed to amend the applicable provisions
of Executive’s Stock Awards.



     4. Termination of Employment or Consultancy.



          (a) Termination of Employment.




               (i) Notwithstanding anything to the contrary in this Agreement, Executive’s employment with
the Company during the Employment Period is at-will and may be terminated at any time, with or
without Cause (as defined in that certain Amended and Restated Severance Benefits Agreement by and
among Executive, the Company and Leap dated March 1, 2008 (the “Severance Benefits
Agreement”)) or advance notice, by either Executive or the Company.



               (ii) Upon any termination of the Employment Period, Cricket shall issue Executive his final
paycheck, reflecting his fully earned but unpaid base salary, when due, through the date of
termination of employment at the rate then in effect, plus all accrued but unused vacation and
other amounts or benefits to which Executive is entitled under any compensation or benefit plan of
Cricket at the time of termination in accordance with the terms of such plans.



               (iii) In the event that the Employment Period terminates for any reason prior to the
Employment Termination Date, this Agreement shall terminate and shall be of no further force or
effect and there shall be no Consulting Period. Based on the



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circumstances of Executive’s termination of employment, Executive shall be entitled to receive
applicable benefits set forth in the Severance Benefits Agreement. In the event Executive’s
employment is terminated by the Company for Cause or by Executive without Good Reason (as defined
in the Severance Benefits Agreement), he will be entitled to no further compensation or benefits
under this Agreement or the Severance Benefits Agreement (other than as set forth in Section
4(a)(ii) above).




               (iv) In the event that the Employment Period terminates on the Employment Termination Date
pursuant to this Agreement, and the Consulting Period commences immediately thereafter, the
Severance Benefits Agreement shall terminate and Executive shall be entitled only to the payments
and benefits set forth in Section 3(b) above.



          (b) Termination of Consulting Period. The Company shall be entitled to terminate the
Consulting Period on thirty (30) days’ prior written notice to Executive. If the Consulting Period
is terminated by the Company for any reason prior to Executive’s provision of eighteen (18) months
of consulting services thereunder, subject to Executive’s compliance with Sections 5, 6, 7 and 8
below, Executive shall be entitled to receive the following from Cricket:




               (i) a lump sum payment in cash equal to the Aggregate Consulting Fees (less any monthly cash
consulting fees previously received by Executive for consulting services pursuant to Section
3(b)(i)), which amount shall be paid not later than the thirtieth (30th) day following
the date on which the Second Release (as defined below) by Executive becomes irrevocable; and



               (ii) to the extent that Executive has previously elected COBRA Coverage, continued payment of
Executive’s premiums for COBRA Coverage until the date on which the Consulting Period would have
otherwise ceased; provided, however, that the payment of such premiums by Cricket shall cease at
such time as Executive is eligible for comparable coverage with a subsequent employer.



          (c) Exclusive Remedy. In the event of a termination of the Consulting Period,
Executive’s sole remedy shall be to receive the payments and benefits described in this Agreement.




          (d) Return of the Company’s Property. Upon the termination of his employment or
consultancy in any manner, as a condition to Executive’s receipt of any post-termination benefits
described in this Agreement, Executive shall, at the request of the Company, promptly surrender to
the Company or destroy all lists, books and records of, or in connection with, the Company’s
business, and all other property belonging to the Company, it being distinctly understood that all
such lists, books and records, and other documents, are the property of the Company, other than any
such property that the Company determines is necessary for Executive’s provision of consulting
services pursuant to this Agreement. At the request of the Company, Executive shall deliver to the
Company a signed statement certifying material compliance with this Section 4(d) prior to the
receipt of any post-termination benefits described in this Agreement.








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     5. Releases.



          (a) As a condition to Executive’s receipt of any payments or benefits during the Consulting
Period pursuant to Sections 3(b) and 3(c) above, on or after the date of the termination of the
Employment Period and not later than twenty-one (21) days after the date of such termination,
Executive shall execute and not revoke a general release of all claims in favor of the Company (the
“First Release”) in substantially the form attached hereto as Exhibit A. In the
event that Executive fails to execute and deliver to the Company the First Release in accordance
with this Section 5(a) within thirty (30) days following the date of the Termination of the
Employment Period, or Executive revokes the First Release in accordance with the terms thereof,
Executive shall not be entitled to any payments or benefits pursuant to Sections 3(b) and 3(c)
above.




          (b) As a condition to Executive’s receipt of any post-termination payments or benefits
following the termination of the Consulting Period pursuant to Section 4(b) above, on or after the
date of the termination of the Consulting Period and not later than twenty-one (21) days after the
date of such termination, Executive shall execute and not revoke a general release of all claims in
favor of the Company (the “Second Release”) in substantially the form attached hereto as
Exhibit B. In the event that Executive fails to execute and deliver to the Company the
Second Release in accordance with this Section 5(b) within thirty (30) days following the date of
the termination of the Consulting Period, or Executive revokes the Second Release in accordance
with the terms thereof, Executive shall not be entitled to any post-termination benefits pursuant
to Section 4(b) above.




     6. Confidentiality and Proprietary Rights. In consideration of the provisions of
Sections 3 and 4 of this Agreement, and in order to protect the goodwill of the Companies,
Executive hereby agrees to the following covenants:



          (a) Confidentiality. For the period of three (3) years commencing on the termination
of the Transition Period, 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 or as required for Executive’s provision of
consulting services hereunder; 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 the Company or any
of their respective affiliates 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 the Company and their respective affiliates.







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          (b) Non-Solicitation. For the period commencing on the termination of the Transition
Period and ending on the third (3rd) 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
their respective affiliates, any of their 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 their respective affiliates; provided,
however, that a general advertisement to which an employee of the Company or any of their
respective affiliates, responds shall in no event be deemed to result in a breach of this Section
6(b).




          (c) Effect of Breach. 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 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 this Section 6. 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 this Section 6 and, in the event that the Company 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 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 this Section 6 in any material respect, Executive
shall forfeit Executive’s right to further benefits under Section 3(b), Section 3(c) or Section
4(b) and Executive shall be obligated to repay to Cricket the benefits that Executive has received
under Section 3(b) or Section 4(b). 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. Mutual Nondisparagement. Executive and the Company agree that neither shall make
disparaging, demeaning or negative remarks about the other to any third party. Nothing in this
provision shall be construed as preventing any party from testifying truthfully under oath in a
deposition or other legal proceeding. For purposes of this Section 7, internal communications to
and among current management employees of the Company are not considered communications to third
parties. Any inquiries regarding Executive from prospective employers shall be forwarded to the
Chief Executive Officer or Senior Vice President, Human Resources of Cricket, who shall confirm
that Executive retired from the Company for personal reasons. Except as required by law or court
order, the Company shall not make any additional or inconsistent internal or public statements
regarding Executive’s resignation.



     8. Cooperation with the Company. Executive agrees to cooperate fully with the
Company and its counsel with respect to any reasonable request from the Company for assistance with
respect to any matter (including litigation, investigation, government proceedings and general
claims) which relates to matters with which Executive was involved during
the term of employment or service with the Company, subject to reimbursement of




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reasonable out-of-pocket travel costs and expenses. Such cooperation may include appearing
from time to time at the offices of the Company or the Company’s counsel, or telephonically, for
conferences and interviews and providing testimony in depositions, court proceedings and
administrative hearings as necessary for the Company to defend claims, and in general providing the
Company and its counsel with the full benefit of Executive’s knowledge with respect to any such
matter. Executive agrees to render such cooperation in a timely fashion and at such times as may
be mutually agreeable to the parties concerned.




     9. Agreement to Arbitrate. Except as set forth in Section 6(c), any dispute, claim or
controversy based on, arising out of or relating to Executive’s employment or this Agreement shall
be settled by final and binding arbitration in San Diego, California, before a single neutral
arbitrator in accordance with the National Rules for the Resolution of Employment Disputes (the
“Rules”) of the American Arbitration Association (“AAA”), and judgment on the award
rendered by the arbitrator may be entered in any court having jurisdiction. Arbitration may be
compelled pursuant to the California Arbitration Act (Code of Civil Procedure §§ 1280 et
seq.). If the parties are unable to agree upon an arbitrator, one shall be appointed by
the AAA in accordance with its Rules. Each party shall pay the fees of its own attorneys, the
expenses of its witnesses and all other expenses connected with presenting its case; provided that
Cricket shall pay to Executive all reasonable arbitration expenses and legal fees incurred by
Executive if Executive prevails in enforcing or obtaining his rights or benefits provided by this
Agreement. Such payments shall be made within five (5) days after Executive’s request for payment
accompanied with evidence of fees and expenses incurred as Cricket may reasonably request. Other
costs of the arbitration, including the cost of any record or transcripts of the arbitration, AAA’s
administrative fees, the fee of the arbitrator, and all other fees and costs, shall be borne by the
Company. Except as set forth in Section 6(c), this Section 9 is intended to be the exclusive
method for resolving any and all claims by the parties against each other for payment of damages
under this Agreement or relating to Executive’s employment; provided, however, that neither this
Agreement nor the submission to arbitration shall limit the parties’ right to seek provisional
relief, including without limitation injunctive relief, in any court of competent jurisdiction
pursuant to California Code of Civil Procedure § 1281.8 or any similar statute of an applicable
jurisdiction. Seeking any such relief shall not be deemed to be a waiver of such party’s right to
compel arbitration. Both Executive and the Company expressly waive their right to a jury trial.



     10. General Provisions.



          (a) Successors and Assigns. The rights of the Company under this Agreement will inure
to its successors and assigns. Executive shall not be entitled to assign any of Executive’s rights
or obligations under this Agreement. This Agreement shall inure to the benefit of and be
enforceable by Executive’s personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees and, in the event of Executive’s death
during the Consulting Period, the payments and benefits contemplated by Sections 4(a) and 4(b)
shall be paid to or made available to Executive’s estate or designated beneficiary.




          (b) Severability. In the event any provision of this Agreement is found to be
unenforceable by an arbitrator or court of competent jurisdiction, such provision shall be






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deemed modified to the extent necessary to allow enforceability of the provision as so
limited, it being intended that the parties shall receive the benefit contemplated herein to the
fullest extent permitted by law. If a deemed modification is not satisfactory in the judgment of
such arbitrator or court, the unenforceable provision shall be deemed deleted, and the validity and
enforceability of the remaining provisions shall not be affected thereby.




          (c) Interpretation; Construction. The headings set forth in this Agreement are for
convenience only and shall not be used in interpreting this Agreement. This Agreement has been
drafted by legal counsel representing the Company, but Executive has participated in the
negotiation of its terms. Furthermore, Executive acknowledges that Executive has had an
opportunity to review and revise the Agreement and have it reviewed by legal counsel, if desired,
and, therefore, the normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation of this Agreement.
Either party’s failure to enforce any provision of this Agreement shall not in any way be construed
as a waiver of any such provision, or prevent that party thereafter from enforcing each and every
other provision of this Agreement.




          (d) Governing Law and Venue. This Agreement will be governed by and construed in
accordance with the laws of the United States and the State of California applicable to contracts
made and to be performed wholly within such State, and without regard to the conflicts of laws
principles thereof. Except as set forth in Section 9, any suit brought hereon shall be brought in
the state or federal courts sitting in San Diego, California, the Parties hereby waiving any claim
or defense that such forum is not convenient or proper. Each party hereby agrees that any such
court shall have in personam jurisdiction over it and consents to service of process in any manner
authorized by California law.




          (e) Notices. 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 Board of Directors of Cricket 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.




          (f) Survival. Sections 4 (“Termination of Employment or Consultancy”), 6
(“Confidentiality and Proprietary Rights”), 7 (“Mutual Nondisparagement”), 8 (“Cooperation with the
Company”), 9 (“Agreement to Arbitrate”) and 10 (“General Provisions”) of this Agreement and Section
6 of the Severance Benefits Agreement shall survive termination of Executive’s employment by or
service to the Company.




          (g) Entire Agreement. Together with the Severance Benefits Agreement and the Exhibits
hereto, this Agreement constitutes the entire agreement between the parties in respect of the
subject matter contained herein and therein and supersede all prior or simultaneous
representations, discussions, negotiations, and agreements, whether written or oral, between the
Company and Executive. This Agreement may be amended or modified only






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with the written consent of Executive and an authorized representative of the Company. No
oral waiver, amendment or modification will be effective under any circumstances whatsoever.




          (h) Code Section 409A.




               (i) Notwithstanding anything contained in this Agreement to the contrary, to the maximum
extent permitted by applicable law, amounts payable to Executive pursuant to this Agreement shall
be made in reliance upon Treas. Reg. Section 1.409A-1(b)(9) (“Separation Pay Plans”) or Treas. Reg.
Section 1.409A-1(b)(4) (“Short-Term Deferrals”). However, to the extent any such payments are
treated as non-qualified deferred compensation subject to Section 409A of the Code, then if
Executive is deemed at the time of his Separation from Service to be a “specified employee” for
purposes of Section 409A(a)(2)(B)(i) of the Code, then to the extent delayed commencement of any
portion of the benefits to which Executive is entitled under this Agreement is required in order to
avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, such portion of
Executive’s termination benefits shall not be provided to Executive prior to the earlier of (A) the
expiration of the six-month period measured from the date of Executive’s Separation from Service or
(B) the date of Executive’s death. Upon the earlier of such dates, all payments deferred pursuant
to this Section 10(h)(i) shall be paid in a lump sum to Executive. The determination of whether
Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code as of the
time of his Separation from Service shall made by the Company in accordance with the terms of
Section 409A of the Code and applicable guidance thereunder (including without limitation Treas.
Reg. Section 1.409A-1(i) and any successor provision thereto).



               (ii) Notwithstanding anything to the contrary in this Agreement, in-kind benefits and
reimbursements provided under this Agreement during any tax year of Executive shall not affect
in-kind benefits or reimbursements to be provided in any other tax year of Executive and are not
subject to liquidation or exchange for another benefit. Notwithstanding anything to the contrary
in this Agreement, reimbursement requests must be timely submitted by Executive and, if timely
submitted, reimbursement payments shall be made to Executive as soon as administratively
practicable following such submission, but in no event later than the last day of Executive’s
taxable year following the taxable year in which the expense was incurred. In no event shall
Executive be entitled to any reimbursement payments after the last day of Executive’s taxable year
following the taxable year in which the expense was incurred. This Section shall only apply to
in-kind benefits and reimbursements that would result in taxable compensation income to Executive.



               (iii) This Agreement is intended to be written, administered, interpreted and construed in a
manner such that no payment or benefits provided under the Agreement become subject to (A) the
gross income inclusion set forth within Code Section 409A(a)(1)(A) or (B) the interest and
additional tax set forth within Code Section 409A(a)(1)(B) (together, referred to herein as the
“Section 409A Penalties”), including, where appropriate, the construction of defined terms
to have meanings that would not cause the imposition of Section 409A Penalties. For purposes of
Section 409A of the Code (including, without limitation, for purposes of Treasury Regulation
Section 1.409A-2(b)(2)(iii)), each payment that Executive may be eligible to receive under this
Agreement shall be treated as a separate and distinct payment.



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               (iv) If the Company and Executive determine that any compensation or benefits payable under
this Agreement may be or become subject to Code Section 409A and related Department of Treasury
guidance, the Company and Executive agree to amend this Agreement or adopt other policies or
procedures (including amendments, policies and procedures with retroactive effect), or take such
other actions as the Company and Executive deem necessary or appropriate to (A) exempt the
compensation and benefits payable under this Agreement from Code Section 409A and/or preserve the
intended tax treatment of the compensation and benefits provided with respect to this Agreement, or
(B) comply with the requirements of Code Section 409A and related Department of Treasury guidance.



          (i) Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original but all of which together shall constitute one and the same
instrument.




          (j) Taxes. All compensation payable to Executive hereunder shall be subject to
applicable tax withholding.




          (k) RIGHT TO ADVICE OF COUNSEL. EXECUTIVE ACKNOWLEDGES THAT HE HAS THE RIGHT, AND IS
ENCOURAGED, TO CONSULT WITH HIS LAWYER; BY HIS SIGNATURE BELOW, EXECUTIVE ACKNOWLEDGES THAT HE
UNDERSTANDS THIS RIGHT AND HAS EITHER CONSULTED WITH A LAWYER OR DETERMINED NOT TO DO SO.




          (l) Unemployment Claim. If Executive makes a claim for unemployment benefits, the
Company will not oppose such claim by contending that he was terminated for reasons making him
ineligible for such benefits.




[Remainder of Page Intentionally Left Blank]



11









 





     THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND EACH AND
EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES HAVE EXECUTED THIS AGREEMENT ON THE DATES
SHOWN BELOW.



	 	 	 	 	 
	 	CRICKET COMMUNICATIONS, INC.

 	 
	Dated:      January 17, 2011 	By:  	/s/ Leonard C. Stephens
 	 
	 	 	Name:  	Leonard C. Stephens 	 
	 	 	Title:  	Senior Vice President, Human Resources 	 
	 
	 	LEAP WIRELESS INTERNATIONAL, INC.

 	 
	Dated: January 17, 2011 	By:  	/s/ Leonard C. Stephens
 	 
	 	 	Name:  	Leonard C. Stephens 	 
	 	 	Title:  	Senior Vice President, Human Resources 	 
	 
	 	EXECUTIVE

 	 
	Dated:        January 17, 2011 	/s/  Albin F. Moschner
 	 
	 	Albin F. Moschner
 	 
	 	Address:      660 Northcroft Court

                  Lake Forest, IL  60045 	 




12












 





EXHIBIT A




FIRST RELEASE



     1. General Release of Claims. In consideration of the benefits under Sections 3(b)
and (c) of the Employment and Retirement Transition Agreement (the “Agreement”), effective
as of January 17, 2011, by and among Leap Wireless International, Inc. (“Leap”), Cricket
Communications, Inc. (“Cricket”) (collectively, the “Companies”) and Albin F.
Moschner (“Executive”), Executive 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 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 Companies, or his resignation
therefrom, 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 Executive’s rights under the Agreement or under the terms of
any employee benefit plan of the Companies in which Executive is a participant.



     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 OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER
MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.



     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. § 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 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 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) 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
Sections 3(b) and (c) of the Agreement.



          (g) If Executive wishes to revoke the General Release, Executive shall deliver written notice
stating his or her intent to revoke this General Release to Cricket’s Chief Executive Officer or
Senior Vice President, Human Resources 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
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 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 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



 	 
	 	Albin F. Moschner

 	 
	 	Date: 
	 




 









 






	 	 	 	 	 



EXHIBIT B




SECOND RELEASE




     1. General Release of Claims. In consideration of the benefits under Section 4(b) of
the Employment and Retirement Transition Agreement (the “Agreement”), effective as of
January 17, 2011, by and among Leap Wireless International, Inc. (“Leap”), Cricket
Communications, Inc. (“Cricket”) (collectively, the “Companies”) and Albin F.
Moschner (“Executive”), Executive 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 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 Companies, or his resignation
therefrom, 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 Executive’s rights under the Agreement or under the terms of
any employee benefit plan of the Companies in which Executive is a participant.



     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 OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER
MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.



     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. § 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 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 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) 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 4(b) of the Agreement.



          (g) If Executive wishes to revoke the General Release, Executive shall deliver written notice
stating his or her intent to revoke this General Release to Cricket’s Chief Executive Officer or
Senior Vice President, Human Resources 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
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 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 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



 	 
	 	Albin F. Moschner

 	 
	 	Date: