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Exhibit
10.16
CONSULTING
AGREEMENT
THIS CONSULTING AGREEMENT
(this “ Agreement ”) is made and entered into as
of January 3, 2007 (the “ Effective Date
”), by and between Welsh, Carson, Anderson & Stowe
IX, L.P., a Delaware limited partnership (“ WCAS
”), and Local Insight Media, Inc., a Delaware corporation
(the “ Consultant ”).
RECITALS :
WHEREAS, WCAS is a party to
that certain Share Exchange Agreement dated as of December 12,
2006 (the “ Share Exchange Agreement ”), by and
among WIN, the Parents and the WCAS Subs (as those terms are
defined in the Share Exchange Agreement);
WHEREAS, WCAS is an Affiliate
(as that term is defined below) of: (i) the WCAS Subs and
(ii) Consultant;
WHEREAS, pursuant to the
Share Exchange Agreement, the WCAS Subs will receive shares of
common stock of Windstream Regatta Holdings, Inc. (“
Holdings ”), which at or prior to the Closing (as that
term is defined in the Share Exchange Agreement) will own all the
issued and outstanding capital stock of Windstream Yellow Pages,
Inc.; and
WHEREAS, WCAS desires to
engage Consultant to perform certain consulting services relating
to the WCAS Subs’ acquisition, ownership and operation of
Holdings and its subsidiaries, and Consultant desires to provide
such consulting services, all in accordance with the terms of this
Agreement;
NOW, THEREFORE, in
consideration of the foregoing premises and the respective
agreements hereinafter set forth and the mutual benefits to be
derived herefrom, Consultant and WCAS hereby agree as
follows:
1. Definitions . As
used herein, the following terms shall have the following
respective meanings:
“ Affiliate
” means, with respect to any Person, any other Person that,
directly or indirectly through one or more of its intermediaries,
controls, is controlled by or is under common control with such
Person.
“ Services
” has the meaning set forth in Section 2.
“ Person ”
means an individual, a partnership, a corporation, an association,
a limited liability company, a joint stock company, a trust, a
joint venture, an unincorporated organization or any other entity
(including any governmental entity or any department, agency or
political subdivision thereof).
2. Engagement of
Consultant; Scope of Services . WCAS hereby engages Consultant
as an independent consultant to provide such consulting services
(including strategic, operational,
finance and accounting, treasury, legal,
human resource, integration and/or administrative services)
relating to the WCAS Subs’ acquisition, ownership and
operation of Holdings and its subsidiaries as WCAS may from time to
time request (the “ Services ”), and Consultant
hereby accepts such engagement.
3. Compensation
.
(a) In consideration of
Consultant’s provision of the Services, WCAS shall cause
Holdings (or one or more of its subsidiaries or Affiliates) to pay
to Consultant an amount equal to one hundred fifteen percent
(115%) of Consultant’s fully burdened cost (including
all direct costs and allocable indirect costs) of providing the
Services. Such compensation shall be paid as follows:
(i) At or following the
Closing, Consultant shall deliver to WCAS an invoice that:
(A) describes in reasonable detail the Services rendered
during the period commencing on the Effective Date and ending at
the Closing and (B) sets forth one hundred fifteen percent
(115%) of the fully burdened cost of such Services. Subject to
WCAS’s approval of the nature and cost of such Services, WCAS
shall cause Holdings (or one or more of its subsidiaries or
Affiliates) to pay such invoice as promptly as practicable
following the Closing (and in any event within thirty
(30) days following the date of such invoice).
(ii) Within fifteen
(15) days after the end of each calendar quarter following the
Closing, Consultant shall deliver to WCAS an invoice that:
(A) describes in reasonable detail the Services rendered
during the preceding calendar quarter (or, for the first calendar
quarter ending following the Closing, during the period commencing
on the day after the Closing and ending on the last day of such
calendar quarter) and (B) sets forth one hundred fifteen
percent (115%) of the fully burdened cost of such Services.
Subject to WCAS’s approval of the nature and cost of the
Services described in each such invoice, WCAS shall cause Holdings
(or one or more of its subsidiaries or Affiliates) to pay such
invoice thirty (30) days following the date
thereof.
(b) In addition to the
amounts payable pursuant to Section 3(a), WCAS agrees to cause
Holdings (or one or more of its subsidiaries or Affiliates) to
reimburse Consultant for all reasonable expenses incurred by
Consultant that are directly attributable to the Services.
Consultant will invoice WCAS for any such reimbursable expenses,
and each such invoice shall be accompanied by an itemized account
of the claimed reimbursable expenses, together with copies of
receipts relating thereto. Notwithstanding the foregoing,
Consultant shall not be entitled to invoice WCAS for any
reimbursable expenses prior to the Closing. WCAS shall cause
Holdings (or one or more of its subsidiaries or Affiliates) to pay
the amounts set forth in each such invoice within thirty
(30) days following the date thereof.
4. Independent
Contractor . Nothing herein shall be construed to create a
joint venture or partnership between the parties hereto or an
employee/employer relationship between WCAS or any of its
Affiliates and Consultant’s personnel. Consultant shall be an
independent contractor pursuant to this Agreement. Neither party
hereto shall have any express or implied right or authority to
assume
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or create any obligations on behalf of
or in the name of the other party or to bind the other party to any
contract, agreement or undertaking with any third party.
5. Liability . Neither
Consultant nor any of its Affiliates, stockholders, employees,
consultants or agents shall b
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