Exhibit 10
CONSULTING AGREEMENT
This CONSULTING AGREEMENT, which is dated as of July 2, 1996 (the
"Agreement"), is by and between Century Telephone Enterprises, Inc., a Louisiana
corporation (the "Company"), and Xxx X. Xxxxxxx ("Consultant").
WITNESSETH:
WHEREAS, Consultant has been employed by the Company and its predecessor
companies for over 36 years, most recently as Vice President;
WHEREAS, Consultant and the Company have entered into an agreement dated
December 31, 1994 (the "1994 Agreement"), which provides that Consultant will
retire as of the date hereof; and
WHEREAS, after the date hereof Consultant desires to assist the Company,
and the Company desires to engage Consultant, upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
set forth herein and in the 1994 Agreement, the parties hereto agree as follows:
1. Consulting Services to be Performed; Term; Compensation and Benefits.
(a) The Company hereby engages Consultant to serve as its consultant and
Consultant agrees to so serve for a period commencing on the date hereof and
ending on the tenth anniversary of the date hereof. Consultant agrees to perform
services regarding such matters and at such times as will be referred to him by
the President of the Company, including without limitation assisting the
executive officer or officers of the Company that are responsible for duties
previously performed by Consultant. Consultant agrees to devote such of his
time, skill, labor and attention to the performance of such services as may be
necessary or desirable to render the prompt and effective performance of his
duties hereunder, provided, however, that in no event shall Consultant be
obligated to (i) work more than 15 hours per week or 150 hours per year or (ii)
work from any location other than his principal residence, except for such trips
to the Company's principal or regional offices that the President of the Company
deems in good faith to be necessary or appropriate, which shall not exceed six
trips per year.
(b) Except as the Company may otherwise permit, Consultant shall
maintain in strict confidence and shall not disclose, directly or indirectly,
any non-public or proprietary information relating to the Company or its
affiliates ("Confidential Information") that Consultant (i) acquired in any
manner during the course of his employment by the Company or (ii) receives or
acquires in the course of rendering consulting services under this Agreement.
Consultant agrees that all Confidential Information is proprietary to the
Company. Consultant further agrees that he shall use all Confidential
Information (regardless of when and how acquired) solely in connection with the
rendering of consulting services under this Agreement. Consultant further agrees
that during the term of this Agreement, neither Consultant nor anyone acting in
concert
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with Consultant will solicit or induce, either directly or indirectly,
any employee of the Company or its affiliates to leave such employment.
(c) In exchange for Consultant's covenants and agreements hereunder,
the Company shall pay Consultant the following annual fees, payable annually in
advance, commencing with the initial annual payment which has been made
simultaneously with the execution of this Agreement:
Year Ending Year Ending
July 1 Fee July 1 Fee
----------- --------- ----------- ---------
1997 $ 14,000 2002 $ 16,230
1998 14,420 2003 16,717
1999 14,853 2004 17,218
2000 15,298 2005 17,735
2001 15,757 2006 18,267
(d) Consultant shall be entitled to reimbursement for all travel and
other out-of-pocket expenses reasonably incurred by him in the performance of
his duties hereunder, subject to his observance of any policies of general
application with respect thereto maintained by the Company.
2. Status of Consultant. (a) The Company and Consultant understand and
agree that Consultant is an independent contractor for withholding and other
employment tax purposes and is not an employee of the Company. Accordingly,
Consultant acknowledges and agrees that (i) he will not be treated as an
employee for purposes of any federal or state law regarding income tax
withholding or for purposes of contributions required under any unemployment,
insurance or compensatory program and (ii) he will be solely responsible for the
payment of any taxes or assessments imposed on account of the payment of
compensation to or the performance of consulting services by him pursuant to
this Agreement, including, without limitation, any unemployment insurance taxes,
federal, state or local income taxes, federal social security payments, or state
disability insurance taxes, all of which he expressly agrees to pay when such
taxes or assessments may become due.
(b) Consultant will not and has no authority to represent to others
that he is an employee of the Company. Except as expressly authorized in writing
by the Company, Consultant has no authority to bind or obligate the Company, to
participate in the management of the Company, to use the name of the Company or
any of its affiliates in any manner whatsoever, or to represent to others that
he has any such authority.
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(c) Consultant shall indemnify and hold harmless the Company from
any liabilities, claims, losses or expenses arising out of his breach of this
Section .
3. Termination of Consultancy Period. (a) Unless earlier
terminated pursuant to the provisions of paragraph (b), the terms and
provisions of this Agreement shall terminate on the tenth anniversary of the
date hereof.
(b) Notwithstanding anything to the contrary contained herein,
this Agreement may be terminated:
(i) Upon the parties' mutual written consent;
(ii) By the Company upon (A) Consultant's death, (B) the
Company's good faith determination that Consultant
has engaged in a pattern of habitual intoxication,
has abused or become addicted to a controlled
substance or has been convicted of a felony or (C)
Consultant's willful, unreasonable and uncorrected
refusal to provide the consulting services
contemplated hereunder, but not less than 45 days
after a written demand for performance is made by the
Company; or
(iii) By Consultant upon (A) the Company's failure to pay
Consultant any amounts owed hereunder, which failure
continues for a period of 45 days after Consultant gives
the Company notice thereof, or (B) any directive,
following a Change in Control of the Company (as defined
in the 1994 Agreement), requiring Consultant to perform
more duties, engage in more travel or otherwise
discharge more responsibilities than previously
performed, engaged in or discharged by Consultant prior
to the Change in Control of the Company.
(c) Upon any termination of this Agreement under paragraph
3(b)(iii), all payments under Section 1(c) not previously paid to Consultant
shall accelerate and shall become due and payable on the fifth business day
following Consultant's delivery of a notice terminating this Agreement. If any
court of competent jurisdiction finds that the Company has breached its
obligations to make any payment required under this paragraph (c), the amount
payable hereunder shall be trebled.
(d) Sections 1(b), 2(c), 3(d), 4 and 5 shall survive any termination
of this Agreement, all of which shall be binding upon Consultant and his
personal or legal representatives, executors, administrators, heirs, devises,
legatees and permitted assigns.
4. Release. Consultant hereby reaffirms the representations,
warranties, covenants and agreements made by him under Section 7.02 of the
1994 Agreement, pursuant to which Consultant, among other things, released
the Company from various claims.
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5. Miscellaneous. (a) Any notice permitted or required to be delivered
under this Agreement by one party shall be in writing and shall be delivered by
hand, overnight delivery service or U.S. registered or certified mail, postage
prepaid with return receipt requested, to the other party at the address set
forth opposite such party's name on the signature page hereof until notice of a
change in address is delivered as provided in this Section . Notices shall be
deemed to be given, in the case of (i) by hand delivery, upon receipt; (ii)
overnight delivery service, on the business day after timely delivery to a
recognized overnight delivery service; and (iii) U.S. mail, upon the third
business day after deposit with the U.S. mail.
(b) This Agreement constitutes the entire understanding between the
Company and Consultant with respect to the matters provided for herein, and all
prior discussions, negotiations, commitments, writings and understandings
related hereto are hereby superseded. This Agreement shall not be amended or
modified except by the written agreement of the parties hereto.
(c) This Agreement shall be binding and inure to the benefit of the
Company and its successors and assigns. Consultant may not assign either his
rights or obligations hereunder without the prior written consent of the
Company.
(d) The construction and interpretation of this Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of Louisiana.
(e) The failure by any party to enforce any of its rights hereunder
shall not be deemed to be a waiver of such rights, unless such waiver is an
express written waiver. Waiver of any one breach shall not be deemed to be a
waiver of any other breach of the same or any other provision hereof.
(f) The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
(g) Consultant hereby acknowledges that he has read, understands and
expressly agrees to the terms of this Agreement, and has been advised and has
had an opportunity to consult with an attorney of his choice before executing
this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
CENTURY TELEPHONE ENTERPRISES, INC.
Century Telephone Enterprises, Inc.
000 Xxxxxxx Xxxx Xxxxx
Xxxxxx, Xxxxxxxxx 00000 By: /s/ Xxxx X. Post, III
Attention: Xxxx X. Post, III ________________________________
Xxxx X. Post, III
Vice Chairman of the Board,
President and Chief Executive Officer
Xxx X. Xxxxxxx
Red Barn Farm /s/ Xxx X. Xxxxxxx
Old Xxxxxxx Road _______________________________
Xxxxx, Xxxxxxxx 00000 Xxx X. Xxxxxxx
or
X.X. Xxx 0
Xxxxx, Xxxxxxxx 00000
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