Exhibit 10.2
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into as of
August 1, 2004 (the "Effective Date") between Cricket Communications
("Company"), a corporation organized and existing under the laws of the State
of Delaware, and having its principal place of business located at 10307
Pacific Center Court, San Diego, CA 92121, and, Albin "Al" Moschner
("Consultant"), having its principal place of business at 660 Northcroft Court,
Lake Forest, Ill 60045.
In consideration of the promises and mutual covenants hereinafter set
forth, Company and Consultant hereby agree as follows:
1. SCOPE OF AGREEMENT.
Consultant shall perform the consulting services described in Exhibit A
hereto and incorporated by reference (the "Services"). The Services shall
be performed with promptness and diligence in a thorough, workmanlike
manner.
1.1 The Services shall be performed to Company's satisfaction in
accordance with the highest professional standards in the field.
1.2 Consultant shall remove, at Company's request, any employee or
subcontractor furnished by Consultant, who in Company's opinion
is incapable, uncooperative or otherwise unacceptable in the
performance of the Services.
2. COMPENSATION.
Payment for the Services shall be paid as follows:
2.1 Company shall compensate Consultant for the Services in
accordance with Exhibit B; provided, however, that Company's
total liability under this Agreement shall not exceed $170,000.00
(not including out-of-pocket expense which meet the company's
guidelines, policy will be provided to Consultant) unless Company
so agrees in writing.
2.2 Consultant shall provide Company with monthly invoices, which
include a detailed itemization of (i) the nature and amount of
Services performed; and (ii) expenses for which Consultant seeks
reimbursement from Company. Provided that the Services have been
accepted in accordance with Section 1 above, Company shall remit
payment within (15) days of receipt of each monthly invoice
unless otherwise provided for on Exhibit B.
2.3 If any items are disputed, such items and only such items may be
withheld from payment until such dispute is resolved. In the event
that Company timely disputes any billed matter, Company shall pay the
remaining undisputed portion of the invoice in accordance with the
terms of this Agreement.
2.4 All taxes and similar assessments, levies and government-imposed
obligations with respect to Consultant's income derived from its
performance of Services hereunder, as well as all other taxes
associated with the performance of the Services, shall be the
obligation of and be paid by Consultant.
3. CONFIDENTIALITY.
3.1 Use of Confidential Information Received. Company may from time to
time communicate to Consultant, or Consultant may otherwise gain
access to, certain confidential business and/or technical information
with respect to Company's operations, business plans and/or
intellectual property (the "Information"). Consultant shall treat all
Information as confidential, whether or not so identified, and shall
not disclose, or permit the disclosure of any Information without the
prior written consent of Company. Consultant shall limit the use and
disclosees of the Information within its organization to the extent
necessary to perform the Services and shall inform all such
disclosures of the confidential nature of such Information and of
Consultant's obligations under this Section 3. The foregoing
obligations of this Section 3 shall not apply to any Information,
which has been or is through no fault of Consultant hereafter
disclosed in publicly available sources of information. The terms of
this Agreement are in addition to the terms of any nondisclosure
agreement currently in effect between Company and Consultant, and in
the event of any inconsistency between the terms of such agreements,
those terms which are most protective of the Information shall
prevail.
3.2 Confidentiality of Work Product. Consultant shall not disclose to any
party, including but not limited to any subcontractor, without the
prior written consent of Company any of (i) Consultant's works,
discoveries, inventions and innovations resulting from the Services,
(ii) any proposals, research, records, reports, recommendations,
manuals, finding, evaluations, forms, reviews, information, data,
computer programs and software originated or prepared by Consultant
for or in the performance of the Services (the items listed in clauses
(i) and (ii) being hereinafter referred to collectively and severally
as "Work Product") or (iii) the existence or the subject matter of
this Agreement.
3.3 Return of Information and Work Product; Survival. In the event of any
termination, expiration or upon request by Company, all copies of such
Information and all Work Product shall be immediately returned to
Company. The terms and conditions of this Section 3 shall survive the
expiration or termination of this Agreement.
4. PROPRIETARY RIGHTS.
4.1 Rights to Information. Consultant acknowledges and agrees that all
Information shall remain the property of Company, and no license,
express or implied, to use any of Cricket's intellectual property is
granted under this Agreement, except as specifically required to
perform the Services.
4.2 Assignment of Work Product. All Work Product shall be promptly
communicated to Company. As additional consideration for the
compensation to be paid to Consultant under this Agreement, Consultant
shall assign to Company all of its right, title and interest in and to
all Work Product immediately upon origination, preparation or
discovery thereof and regardless of the medium of expression thereof.
Consultant shall communicate to Company or its representatives all
facts known to it respecting such Work Product. Further, whenever
requested, Consultant shall testify in all legal proceedings, sign all
lawful papers and otherwise perform all acts necessary or appropriate
to enable Company and its successors and assigns to obtain and enforce
legal protections for all such Work Product in all countries, for
which Company may pay Consultant a reasonable fee. All Work Product
shall become the exclusive property of Company, and Consultant shall
be deemed to have relinquished all right, title and interest in and to
such Work Product by virtue of this Paragraph 4.2.
4.3 Work for Hire. To the extent that the Services under this Agreement
are a work of the type described under the definition of "work made
for hire" in the Copyright Act of 1978, 17 U.S.C. Section 101, Company
and Consultant agree that the work shall be considered a "work made
for hire."
4.4 Survival. The terms and conditions of this Section 4 shall survive
the expiration or termination of this Agreement.
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5. TERM AND TERMINATION.
5.1 Term of Agreement. This Agreement shall become effective on the
Effective Date and shall continue in full force and in effect until
January 31, 2005, unless sooner terminated as provided for herein.
Should any consulting activity continue after January 31, 2005, the
terms of the new contract will be mutually agreed upon at that time.
5.2 Termination. Company without prejudice to any right or remedy it
may have due to any failure of Consultant to perform its obligations
under this Agreement, may, at any time, for any reason or for no
reason, terminate the performance of work hereunder, in whole or in
part, upon sixty (60) days written notice to Consultant specifying
the date upon which termination becomes effective. In the event of
any such termination Leap's sole obligation shall be to pay
Consultant for those Services actually rendered prior to the
effective date of termination; provided, however, that any such
payment shall be subject to any provision for the limit of
expenditures set forth elsewhere in this Agreement. Such payment
shall constitute full settlement of any and all claims of every
description, including profit.
5.3 Return of Material and Information. In the event of such
termination or upon expiration of this Agreement, Consultant shall
return to Company: (i) any and all equipment, documents and other
materials containing any Information which Consultant has received
from Company; and (ii) any and all Work Product and all copies
thereof made by Consultant.
6. INDEPENDENT CONTRACTOR. The parties expressly intend and agree that
Consultant is acting as an independent contractor and not as an agent or
employee of Company. Consultant retains sole and absolute discretion,
control and judgment regarding the manner and means of performing and
providing the Services, except as to the policies and procedures set forth
herein. Consultant understands and agrees that it shall not be entitled to
any of the rights and privileges established for Company's employees,
including but not limited to retirement benefits; medical, life insurance or
disability coverage; severance pay; and paid vacation or sick pay.
Consultant understands and agrees that Company will not pay or withhold from
the compensation paid to Consultant any sums customarily paid or withheld
for or on behalf of employees for income tax, unemployment insurance, social
security, workers compensation or any other withholding tax, insurance or
payment, and all such payments as may be required by law are the sole
responsibility of Consultant. Consultant agrees to hold Company harmless
against and indemnify Company for any of such payments of liabilities for
which Consultant may become liable with
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respect to such matters. This Agreement shall not be construed as a
partnership agreement, joint venture or franchise and neither party shall
have the right or authority to assume or create any obligation on behalf
of or in the name of the other. Company shall have no responsibility for
any of Consultant's debts, liabilities or other obligations or for the
intentional, reckless or negligent acts or omissions of Consultant or
Consultant's employees or agents.
7. INDEMNIFICATION. Consultant hereby agrees to indemnify,defend and hold
Company harmless from and against any and all claims, damages, losses and
expenses, including but not limited to attorneys' fees and disbursements,
arising out of or resulting from any claim, action or other proceeding
(including without limitation any proceeding by any of Consultant's
employees, agents or contractors) that is based upon any of the following:
(i) Consultant's breach of this Agreement; (ii) the conduct or actions of
Consultant (including its employees, agents or representatives) within or
outside the scope of this Agreement; (iii) any negligent act or omission
or willful misconduct of Consultant; or (iv) a claim that any of the
Services or any Work Product infringes a patent, copyright, trademark,
service mark, trade secret, trade name or other legally protected
proprietary right of any party. Consultant shall pay all costs, fees
(including attorneys' fees and litigation expenses) and damages which may
be incurred by Company and its affiliates and agents in connection with
any such claim or action, including but not limited to the settlement
thereof. Nothing in this Agreement shall preclude Company from retaining
counsel of its own choice to represent its interests in defending against
any such action or proceeding. All of the terms and conditions of this
Section 7 shall survive the expiration or termination of this Agreement.
8. INSURANCE. Consultant shall maintain at its sole expense general
liability (including but not limited to automobile liability) and workers
compensation insurance covering the performance of the Services by
Consultant and any subcontractor or other party engaged by Consultant
therefore. Such insurance coverage shall have limits and terms
satisfactory to Cricket Communications, and Cricket Communications may
require Consultant to provide to Cricket Communications a certificate of
insurance evidencing such coverage. Further, any employee, agent or
subcontractor of Consultant permitted to operate a Cricket Communications
vehicle shall have a valid U.S. driver's license and shall be insured by
Consultant in accordance with the foregoing.
9. LAWS, RULES AND REGULATIONS. Consultant shall comply at its own expense
with the provisions of all applicable federal, state and municipal laws,
statutes, ordinances, regulations and codes, including without
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limitation the Fair Labor Standards Act of 1938, that are applicable to
Contractor as an employer of labor or otherwise.
10. COMPANY PROPERTY. Title to all property owned by Company (or any affiliate
of Company) and furnished to Consultant shall remain in Company (or the
affiliate). Any property owned by Company (or any affiliate) and in
Consultant's possession or control should be used only in the performance
of this Agreement unless authorized in writing by Company for another use.
Consultant shall adequately protect such property and shall return it to
Company or otherwise dispose of it as directed by Company. Consultant shall
be responsible for any loss or damage to any property owned by Company and
in Consultant's possession or control.
11. NOTICES. All notices, certifications, requests, demands, payments and other
communications hereunder shall be in writing and shall be deemed to have
been duly given and delivered if sent by overnight delivery, by a
nationally-recognized overnight delivery service; if mailed, by first class
certified mail, postage prepaid, or delivered personally; or if sent by
facsimile, with transmission confirmed to:
IF TO COMPANY: IF TO CONSULTANT:
WILLIAM FREEMAN, CEO ALBIN "AL" MOSCHNER ("CONSULTANT")
CRICKET COMMUNICATIONS 660 NORTHCROFT COURT
10307 PACIFIC CENTER COURT LAKE FOREST, ILL 60045
SAN DIEGO, CAL 92121
or to such other address or addresses as may hereafter be specified by
notice given by any of the above to the others. Notices given by United
States certified mail as aforesaid shall be effective on the date of the
first attempt at delivery. Notices delivered in person shall be effective
upon delivery. Notices given by facsimile shall be effective when
transmitted, provided facsimile notice is transmitted on a business day
during regular business hours.
12. PUBLICITY. Consultant shall not issue or release for publication any
articles or advertising or publicity matter relating to the work to be
performed hereunder or mentioning or implying the name of Company, or any
affiliate of Company or any of their personnel, unless prior written
permission is granted by Company.
13. RECORDS AND AUDIT. With the exception of the fixed charges, which are
agreed to herein, Consultant shall maintain complete records of all costs
either charges on an hourly or daily basis or all costs reimbursable by
Company under the terms of this Agreement. All such records shall be
maintained in accordance with recognized accounting practices. Company
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shall have the right, either on its own or through its accredited
representatives, to examine and audit such records at any reasonable
time. The correctness of Consultant's invoices shall be determined by
such audit.
14. WRITTEN ASSURANCE. Consultant hereby expressly acknowledges that any
products and/or technical data received from Company, or any products
directly derived from any such technical data, may be subject to U.S.
export and re-export controls, and Consultant hereby gives its assurance to
Company that it will not knowingly, unless prior written authorization is
obtained from Company and the U.S. Commerce Department, export, re- export
or otherwise disclose, directly or indirectly, any such product or
technical data to any of the countries proscribed by the U.S. Department of
Commerce and or U.S. Treasury Department (as such list of countries may be
amended from time to time by the U.S. Department of Commerce and/or U.S.
Treasury Department).
15. REPRESENTATIONS AND WARRANTIES.
Consultant represents and warrants that:
15.1 Consultant is financially solvent, able to pay its debts and
possessed of sufficient working capital to complete the Services
in accordance with this Agreement.
15.2 Consultant is authorized to do business in the states in which it
shall perform Services and properly licensed by all necessary
governmental and public and quasi-public authorities having
jurisdiction over it to perform the Services under the terms of this
Agreement.
15.3 Consultant's execution of this Agreement and the Consultant's
performance of its obligations hereunder does not now and shall not
in the future violate any agreement between the Consultant and any
third party, or any obligation of Consultant to any third party,
including, without limitation, any non-compete agreement or
obligation; Consultant will inform Company if any litigation is
instituted against Consultant that may have an effect on
Consultant's performance of the Agreement.
15.4 Consultant has the experience and skills necessary to provide and
perform the Services required pursuant to this Agreement; all
Services provided by Consultant shall be performed in a
professional manner in accordance with all professional standards
applicable to the Consultant, shall be of a high grade, nature and
quality, commensurate with that which is customary in the
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industry. Consultant's employees and agents, while on Company's
premises, shall comply with all rules and regulations in effect at
such premises, including security requirements.
16. CHOICE OF LAW, JURISDICTION AND VENUE. This Agreement is made and shall be
governed and construed in accordance with the laws of the State of
California, excluding its conflicts of laws provisions. The parties hereto
consent to the jurisdiction of the State of California and agree that any
and all disputes between them shall be resolved pursuant to the terms and
conditions of this Agreement and in proceedings held in San Diego County,
California.
16.1 Consultant acknowledges that money damages are not adequate to
compensate Company for: (i) the disclosure of confidential Information
in breach of this Agreement; or (ii) the breach of the terms of this
Agreement which govern Proprietary Rights. Consultant therefore
consents to the imposition of injunctive relief by and court or
administrative body to prevent Consultant from disclosing the
Information or violating Company's Proprietary Rights as provided for
herein.
17. GENERAL PROVISIONS.
17.1 Survivability. The terms and conditions of this Agreement that by
their sense and context are intended to survive after performance
hereunder shall survive the termination or expiration of this
Agreement, including but not limited to Paragraphs 3, 4, 5.3, 7, 8,
10, 12 and 16.
17.2 Assignment. Consultant shall not assign any of its rights or
obligations under this Agreement and shall not subcontract any of the
Services to be performed hereunder without the prior written consent
of Company. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, their successors and permitted assigns.
Company may assign its rights, duties and obligations under this
Agreement to any affiliates of Company, or any legal entity or legal
entities in which Company, or any of its' affiliates has or will have
any interest.
17.3 Attorneys' Fees. In the event either party brings any legal action or
other proceeding to enforce its rights hereunder, the prevailing party
shall be entitled to recover its reasonable attorneys' fees and costs.
17.4 Entire Agreement: Modification. This Agreement, together with the
exhibits attached hereto, which are incorporated herein by this
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reference, constitutes the entire agreement between the
parties and supersedes all prior oral or written negotiations
and agreements between the parties with respect to the subject
matter hereof. No modification, variation or amendment of this
Agreement (including any exhibit hereto) shall be effective
unless made in writing and signed by both parties.
17.5 Severability; Non-Waiver. In the event that any of the terms,
conditions or provisions of this Agreement are held to be
illegal, unenforceable or invalid by any court of competent
jurisdiction, the remaining terms, conditions or provisions
hereof shall remain in full force and effect. The failure or
delay of either party to enforce at any time any provision of
this Agreement shall not constitute a waiver of such party's
right thereafter to enforce each and every provision of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date first above written.
Cricket Communications ("Company") ("Consultant")
By: /s/ Leonard C. Stephens By: /s/ Albin Moschner
----------------------------- ----------------------------
Leonard C. Stephens Albin Moschner
- --------------------------------- --------------------------------
(Printed Name) (Printed Name)
Title: Senior Vice President, Human Resources Title: Consultant
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VENDOR/CONSULTANT INFORMATION
For Tax Purposes:
Vendor/Consultant Name: ALBIN F. MOSCHNER
Corporation: Yes No X
----- -----
Tax ID Number:
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Social Security Number:
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EXHIBIT A
CONSULTANT SERVICES
STATEMENT OF WORK
Consultant will perform the following tasks and have the following
responsibilities:
Description of Work Efforts
Reporting to William Freeman, CEO, Cricket Communications, Mr. Moschner will
provide day-to-day management and oversight to Cricket Communication's
Marketing Department. Specific goals and deliverables will be developed and
agreed upon within 45 days of the assignment start date.
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EXHIBIT B
COMPENSATION AND REIMBURSEMENT
Consultant shall be compensated for performing the Services at the following
rate:
Service Monthly Retainer
- ---------------------------------------------------------------------
Professional Consulting $28,000.00/a month
Services
Cricket Communications will pay to Consultant the applicable rate specified
above for the labor expended in performing the Services under the Agreement.
The above-specified retainer includes all elements of cost (direct labor,
overhead, general and administrative expenses and profit) other than out of
pocket expenses authorized by Cricket Communications.
Cricket Communications will reimburse Consultant for reasonable and necessary
out of pocket expenses incurred in connection with its performance of the
Services, authorized in accordance with Cricket Communications' Travel
Management Policy then in effect, and supported by reasonably detailed
documentation. All such out of pocket expenses shall be itemized on each
invoice submitted to Cricket Communications and shall be accompanied by the
appropriate supporting documentation.
In no event shall the total payments made under this Agreement exceed the
maximum amount specified in Paragraph 2.1 of the Agreement, excluding
out-of-pocket expenses, without execution of a written amendment to this
Agreement by duly authorized representatives of Cricket Communications and
Consultant.
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