Exhibit 10.53
CONSULTING AGREEMENT
THIS AGREEMENT dated as of July 14, 1999, is entered into by and between
Advanced Communications Group, Inc., a Delaware corporation (the "Company"),
and Compass Telecommunications, Inc., a Delaware corporation ("Consultant").
W I T N E S S E T H
WHEREAS, the Company is engaged in the Telecommunication Business (as
defined in the Stock Purchase Agreement dated as of the date hereof between
Consultant, the Company and certain subsidiaries of the Company (the "Stock
Purchase Agreement");
WHEREAS, certain employees of Consultant have acquired throughout the
years substantial experience in the Telecommunication Business; and
WHEREAS, Consultant has agreed to acquire the Telecommunication
Subsidiaries (as defined in the Stock Purchase Agreement) of the Company,
subject to the closing conditions referenced therein, including without
limitation, the receipt of all governmental and other consents and approvals
as described therein.
The parties hereto agree as follows:
1. Capitalized terms not otherwise defined herein shall have the
definitions given in the Stock Purchase Agreement.
2. The Company agrees to engage the Consultant for the period
commencing on the date that the notification period under the HSR Act has
expired or been earlier terminated (the "Commencement Date") through the
earlier to occur of (i) the Closing Date or (ii) the date on which the Stock
Purchase Agreement is terminated in accordance with its terms (the
"Consultancy Period"), upon the terms and conditions hereinafter set forth.
Consultant agrees to furnish services to the Company and to make its
employees available to the Company for consultation, review and advice with
respect to the Telecommunication Business, which shall include but not
necessarily be limited to the following activities and aspects of the
business:
a. Management of the Telecommunications Subsidiaries;
b. Sales force activity/performance;
c. Product packaging and marketing, pricing, marketing partnership
agreements;
d. Customer service, support and relations - billing system
installation, order entry;
e. Network performance and service quality;
f. Network investment/conversion project, co-location policies and
negotiation and rollout program;
g. Management and workforce key hires;
h. Employee relations;
i. Supplier contracts, facilities agreements, interconnection
agreements, and equipment purchases;
j. Relations with regulators;
k. Strategic relations with suppliers and customers;
l. Financial practices - accounts receivable management, regional
xxxx operating company billing issues and related settlements;
m. Transition process and matters.
Requests for consultation may be submitted directly to Consultant by
designated executive officers of the Company. The Company will appoint an
executive to serve as point person to work with each employee of Consultant
in such employee's specialty area. Consultant shall respond to reasonable
requests of the Executive Committee and Consultant shall present to the
Executive Committee its recommendations. The Executive Committee shall meet
with Consultant not more frequently than bi-weekly and the Executive
Committee shall use its best efforts to act promptly on recommendations from
Consultant. Consultant shall be an independent contractor. All decisions as
to the management and control of the Company shall be made solely by the
officers and directors of the Company and Consultant shall have no say in
such management and control.
Consultant agrees that during the Consultancy Period, as defined above,
Consultant will faithfully render such consulting and advisory services as
identified in Section 2(a) - (m) inclusive (the "Consulting Services").
Except for conditions beyond the control of Consultant, Consultant,
recognizing the time demands associated with providing the Consulting
Services, agrees to be available to provide Consulting Services during
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damages, losses and expenses (including reasonable attorneys' fees) arising
from Consultant's provision of the services hereunder to the Company.
10. This Agreement contains the entire agreement between the parties as
to the subject matter hereof and may not be changed except in writing.
11. This Agreement shall be subject to, and be governed by, the laws of
Delaware and any controversy arising under this agreement shall be subject to
the exclusive jurisdiction of the Texas courts or, if the parties hereto can
acquire jurisdiction, in the United States District Court for Northern
District of Texas.
12. Any notice required or permitted to be given under this Agreement
shall be sufficient if in writing and if sent in accordance with the
procedures of the Stock Purchase Agreement.
13. Nothing contained in this Agreement shall prevent the Consultant
and its employees and/or any other individual associated with the Consultant
from engaging in a business or businesses separate and apart from that of the
Company.
14. For purposes of this Agreement, Consultant shall continue to be
bound under the Confidentiality and Non-Disclosure Agreement signed June 2,
1999 between Compass Partners and Bank of America Securities, on behalf of
the Company with respect to the sale of the Telecommunication Subsidiaries.
15. Consultant may not assign its rights or sub-contract or delegate
its performance hereunder without the prior written consent of Company, and
any attempted assignment, sub-contracting or delegation without Company's
prior written consent shall be void.
16. The failure to enforce at any time any of the provisions of this
Agreement or to require at any time performance by the other party of any of
the provisions hereof shall in no way be construed to be a waiver of such
provisions or to affect either the validity of this Agreement, or any part
hereof, or the right of either party thereafter to enforce each and every
provision in accordance with the terms of this Agreement.
17. The validity or enforceability of any particular provisions of this
Agreement shall not affect the other provisions hereof, and this Agreement
shall be construed in all respects as if such invalid or unenforceable
provisions were omitted.
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18. This document constitutes the full understanding between the
parties and no terms, conditions, understanding or agreement purporting to
modify or vary the terms of this Agreement shall be binding unless hereafter
made in writing with reference to this Agreement and signed by Consultant and
a duly authorized representative of Company.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
ADVANCED COMMUNICATIONS GROUP, INC.
By: /s/ Xxxxxxx X. X'Xxxx
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Name: Xxxxxxx X. X'Xxxx
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Title: CEO
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COMPASS TELECOMMUNICATIONS, INC.
By: /s/ Xxxxxx X. X. Xxxxx
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Name: Xxxxxx X. X. Xxxxx
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Title: CEO
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