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CONSULTING AGREEMENT
This CONSULTING AGREEMENT (“
Agreement ”) is
made as of the 20th day of March 2008 (the “
Effective Date ”)
by and between LEVEL 3 COMMUNICATIONS,
LLC , a Delaware limited liability
company (“ Company
”), whose address is 1025 Eldorado Boulevard,
Broomfield, CO 80021 and KEVIN J.
O’HARA , (“
Consultant ”),
whose address is 3747 Mountain Laurel Place, Boulder, CO 80304.
Company and Consultant hereby agree as follows:
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1.
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Services . During the term of this Agreement, Consultant agrees to
perform the following work and services: operations analysis and
support, capital raising support, regulatory and government affairs
support, market positioning and strategy, customer targeting,
sales, mergers and acquisitions support, and any other activities
related to his prior responsibilities with Company, requested by a
Group Vice President or higher level executive, and approved by
James Q. Crowe, or his successor, to be performed at such locations
as are designated by Company (“Services”). Consultant
shall be available to provide Company the Services under this
Agreement for such time as reasonably requested by Company.
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2.
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Representations
. Consultant represents
and warrants that the execution of this Agreement and the
performance of Consultant’s obligations hereunder shall not
violate the terms of any other agreement or any rule, law, order or
consent decree by which Consultant is bound.
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3.
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Term . Unless earlier terminated, the term
of this Agreement shall be from the Effective Date to March 9,
2009, unless earlier terminated as provided herein.
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4.
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Consideration
. In consideration for
Consultant’s full and timely performance of the Services, Company shall pay
Consultant the sum of One Hundred Thousand Dollars ($100,000.00)
per month (the 10 th of one month to the 9 th
of the next month), payable in arrears on the 9th day of each month
during the term of this Consulting Agreement.
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5.
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Expenses and Administrative
Support .
Subject to the Company’s travel and expense
reimbursement policies, the Company shall reimburse Consultant for
Consultant’s reasonable expenses incurred in performing the
Services. Company will provide Consultant with administrative
support, to the extent it is necessary for the performance of
Services. In addition, Consultant shall be allowed to continue the
use of Company’s computer during the term of this Agreement,
but will not have access to Company’s computer network. All
expenses to be reimbursed shall be submitted directly to Thomas C.
Stortz for payment.
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6.
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Independent Contractor
. Consultant and
Company, expressly intending that no employment, partnership, or
joint venture relationship is created by this Agreement, hereby
agree as follows:
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A.
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Consultant shall act at all times as an independent contractor hereunder
and is not an employee, partner, or co-venturer of, or in any other
relationship with Company. The manner in which Consultant’s
services are rendered shall be within Consultant’s sole
control and discretion.
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B.
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Neither Consultant nor anyone employed by or acting
for or on behalf of Consultant shall ever be construed as an
employee of Company and Company shall not be liable for employment
or withholding taxes or any benefits respecting Consultant or any
employee of Consultant.
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C.
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Consultant shall determine when, where and how
Consultant shall perform the Services.
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D.
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Consultant shall take all steps to ensure that
Consultant and Consultant’s employees (if any) are treated as
independent contractors of Company.
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E.
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Consultant expressly acknowledges and agrees that
except to the extent expressly provided in Sections 5 and 6 above,
neither Consultant nor anyone employed by or acting for or on
behalf of Consultant shall receive or be entitled to any
consideration, compensation or benefits of any kind from Company,
including without limitation, pension, stock options, profit
sharing or similar plans or benefits, or accident, health, medical,
life or disability insurance benefits or coverages.
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F.
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To the extent permitted by law, Consultant, for
Consultant and for anyone claiming through Consultant, waives any
and all rights to any consideration, compensation or benefits,
except as expressly provided for herein.
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7.
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Indemnity . Consultant shall indemnify and hold
harmless Company and its officers, directors, agents and employees,
from and against any and all claims, demands, causes of action,
losses, damages, costs and expenses (including reasonable
attorneys’ fees) arising out of or relating to
Consultant’s execution of this Agreement, Consultant’s
performance of the Services, a breach of the Consultant’s
representations contained in this Agreement or any claim for
withholding or other taxes that might arise or be imposed due to
this Agreement or the performance of the Services, except to the
extent such claim, demand, cause of action, loss, damage, cost and
expense is caused solely by the negligent acts or failures to act
of Company, its officers, directors, agents and employees, in which
case Company shall indemnify and hold Consultant harmless from any
and all claims, demands, causes of action, losses, damages, costs
and expenses (including reasonable attorney fees) to the extent and
in the same proportion as said loss or damage was caused by
Company’s (or its officers, directors, agents and
employees’) negligent acts or failures to act.
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8.
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Confidential Information
. All information and materials disclosed during the
performance of this Agreement shall be subject to the
Non-Disclosure Agreement dated March 10, 2008, executed between the
parties, which is incorporated herein and is considered a material
part of this Agreement.
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9.
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Confidentiality of
Agreement. The terms of this
Agreement, and the proposal of and discussions relating to this
Agreement, are and shall remain confidential as between
the
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parties, unless, and to the extent, disclosure is
required by law or to secure advice from a legal or tax
advisor.
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10.
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Standard of Conduct.
In rendering Services under this Agreement,
Consultant shall conform to high professional standards of work and
business ethics.
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11.
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Public Relations . This Agreement
shall not be construed as granting to Consultant any right to use
any of Company or its affiliates’ trademarks, service marks
or trade names, or otherwise refer to Company in any marketing,
promotional or advertising materials or activities. Without
limiting the generality of the forgoing, Consultant shall not
disclose (i) the terms and conditions of this Agreement, or (ii)
the existence of the project or any contractual relationship
between Company and Consultant, except as is reasonably necessary
to perform the Services, or (iii) issue any publication or press
release relating directly or indirectly to (i) or
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