Exhibit
10.36
May 6, 2009
Via E-Mail
James Brailean
Chief Executive Officer
NextWave Wireless Inc.
10350 Science Drive
San Diego, CA 92121
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Re:
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Letter Agreement; Francis Harding
Employment Benefits
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Dear Jim:
The purpose of this letter agreement
(hereafter, “ Agreement ”) is to confirm
the mutual understanding regarding the provision of additional
employment benefits to the undersigned (hereafter, “
Executive ”) which are not otherwise provided
to executives of NextWave Wireless Inc., a Delaware company
(hereafter, “ Company ”), in accordance
with the company’s standard executive employee benefit
offerings.
If the Company is in agreement with
the terms set forth in this Agreement, please: (i) sign and date
the two (2) copies of the acknowledgement below; (ii) retain one
(1) original acknowledgement for the Company’s records; and
(iii) please forward an original executed copy of the
acknowledgement to the undersigned.
Status; Duties;
Term
Each of the Company and Executive
(hereafter, collectively, “ Parties ”)
acknowledge and agree that Executive shall serve as the
Company’s Chief Financial Officer (hereafter, “
CFO ”) position, with an effective date of May
4, 2009 (the “ Effective Date ”). The
Parties agree that during the Term (as hereinafter defined)
Executive will also continue to be employed as the Company’s
Executive Vice President, Corporate Controller and Chief Accounting
Officer. Executive’s responsibilities shall and have included
the preparation and management of the following: (i) fiscal 2008
year end accountings, which will have encompassed the successful
completion of the 2008 audit with Ernst & Young LLP; (ii) first
quarter 2009 accountings; and (iii) the preparation and filing of
the company’s SEC Form 10K for fiscal 2008 and the
Company’s SEC Form 10Q for the first quarter of fiscal 2009.
The Parties recognize the extensive effort by Executive that was
required in order to successfully complete these
projects.
The initial term of this Agreement
shall be for the period commencing on the Effective Date and ending
on the third (3 rd ) anniversary thereafter (hereafter,
the “ Term ”). The Term shall be
automatically extended by one (1) additional day for each day
beyond the conclusion of the initial Term of this Agreement that
the Executive remains employed by the Company.
Termination
The Company recognizes that
Executive’s contribution to the Company’s success will
be substantial; and the Company wishes to encourage the Executive
to remain with and devote full time and attention to the business
affairs of the Company and wishes to provide income protection to
Executive for a period of time in the event of an involuntary
termination of his employment without Cause (as hereinafter
defined) or a voluntary termination of his employment for Good
Reason (as hereinafter defined) during the Term of this Agreement.
A termination of Executives employment by the Company for “
Cause ”, for the purpose of this agreement
shall mean any termination relating to: (i) any act or acts
constituting a felony or any other crime involving moral turpitude;
and/or (ii) any material failure by Executive to perform his duties
as described in this Agreement in a manner consistent with his
position, but only after the Company delivers to a written notice
of such failure at least sixty (60) business days prior to the
effective date of the Executive’s termination of his
employment for a material failure or violation, which notice shall
set forth the specific actions, inactions, violations or failures
of the Executive that, in the Company’s view, permit the
Company to terminate his employment for a material failure or
violation, and the Executive shall
