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EXHIBIT 10.13
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into
on this 17th day of September, 1999 by and among Xxxxxxx Communications, Inc.,
an Indiana corporation ("HCI") and HC Acquisition Corp., a Colorado corporation
("Consultant").
RECITALS
A. HCI and Consultant have executed that certain Asset Purchase
Agreement of even date herewith (the "Purchase Agreement"), pursuant to which
Consultant is acquiring substantially all of HCI's assets, with the closing of
that sale scheduled for November 1, 1999.
B. HCI desires to engage Consultant to assist HCI by providing certain
management and consulting services as further described in this Agreement (the
"Management Consulting Services").
C. Consultant desires to perform the Management Consulting Services for
HCI on the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
1.1 Definitions. In addition to the terms defined in the recitals
hereto and in the other provisions hereof, as used in this Agreement, initially
capitalized terms shall have the meanings ascribed to them in the Purchase
Agreement, unless the context otherwise requires.
1.2 Construction.
(a) The meanings of terms defined herein are equally applicable to
the singular and plural of such defined terms.
(b) Except as otherwise specifically provided, the words "hereof,"
"herein," "hereto," "hereunder" and similar words refer to this Agreement as a
whole and not to any particular provision of this Agreement. Any references
herein to "Section," "subsection," "paragraph," "subparagraph," "Article" or
"Exhibit" refer to the Sections, subsections, paragraphs, subparagraphs,
Articles or Exhibits to this Agreement, as appropriate.
(c) The headings of Articles and Sections to this Agreement are
provided for convenience only and will not affect the construction or
interpretation hereof.
(d) This Agreement and all Exhibits hereto are a result of
negotiations among the parties hereto. Accordingly, neither this Agreement nor
any Exhibit hereto shall be construed against any party hereto because of that
party's involvement in its preparation.
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ARTICLE II
TERMS OF ENGAGEMENT
2.1 Engagement. HCI hereby hires and engages Consultant to perform the
Management Consulting Services on the terms and conditions of this Agreement,
which engagement Consultant hereby accepts.
2.2 Management Consulting Services to be Performed by Consultant.
Consultant shall provide HCI with the following Management Consulting Services:
(a) assistance in reducing costs and maximizing revenues;
(b) advice and consultation in restoring sales and customers;
(c) advice and consultation regarding appropriate staffing levels;
(d) preparation and revision of operating budgets, and
implementation of cash controls, including with respect to
releases of cash disbursements; and
(e) such other Consulting advisory services as are reasonably
requested by HCI.
Notwithstanding any other provision of this Agreement, Consultant shall have no
obligation to provide HCI with any Management Consulting Services not described
in this Section 2.2.
2.3 Authority of Consultant. Notwithstanding anything to the contrary
herein contained, (a) Consultant shall have no power or authority to bind HCI to
any agreements (whether oral or written) whatsoever, including, without
limitation, agreements to borrow money or to hire employees, and (b) HCI may act
upon or refuse to act upon any advice provided as a part of the Management
Consulting Services provided herein in its sole and absolute discretion.
2.4 Term of Consulting Services. Except as otherwise expressly agreed
to in writing by Consultant and HCI, Consultant's obligation to perform the
Management Consulting Services, as described in Section 2.2 of this Agreement,
shall commence on the date this Agreement is executed by the parties and shall
terminate on the first to occur of the date on which the Purchase Agreement is
terminated, pursuant to Section 10.11 thereof, or the Closing Date.
2.5 Compensation. Consultant shall be entitled to a fee of $25,000 in
respect of the Management Consulting Services hereunder, which fee shall be paid
on September 30, 1999.
ARTICLE III
CONFIDENTIALITY
3.1 Confidentiality Terms. The terms and provisions of this Agreement
and all proprietary or confidential information of HCI disclosed to Consultant
in furtherance of the Management Consulting Services shall be held by Consultant
in confidence on the terms and conditions set forth in Section 10.1 of the
Purchase Agreement.
3.2 Remedies. Any party to this Agreement, may, to the greatest extent
permitted by applicable law, seek to temporarily or permanently enjoin any
continued, threatened, likely or imminent breach of the covenants contained in
this Article III through application for a preliminary or permanent injunction
to any court of competent jurisdiction. Such party shall also have all other
remedies available to it at law, in equity or otherwise for any continued,
threatened, likely or imminent breach of the covenants contained in this Article
III.
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ARTICLE IV
GENERAL PROVISIONS
4.1 Notice. Any notice required or permitted by this Agreement
("Notice") shall be in writing and shall be deemed to have been properly given
(a) if sent by first class United States registered mail, return receipt
requested, postage prepaid (by "Mail"), (b) if sent by a national express or
overnight delivery service of recognized responsibility for next business day
delivery (by "Courier"), (c) if hand delivered (by "Hand Delivery") or (d) if
sent via facsimile transmission (by "Facsimile"); provided, that any Notice
delivered by Mail or by Courier shall be addressed to the party to whom such
Notice is given (the "Notice Party") to the address for the Notice Party set
forth below (the "Address"), any Notice delivered by Hand Delivery shall be
delivered in person to the individual representative of the Notice Party
described below (the "Notice Party Representative"), and any Notice delivered by
Facsimile shall be sent via facsimile transmission to the facsimile number of
the Notice Party described below (the "Facsimile Number"), so long as the party
delivering Notice by Facsimile simultaneously delivers a duplicate Notice to the
Notice Party by Mail, by Courier or by Hand Delivery. The initial Addresses,
Notice Party Representatives and the Facsimile Numbers of the parties are as
follows:
HCI: Xxxxx Xxxxxxx
00000 Xxxxxxx xxxxx
Xxxxxxxxxxxx, XX 00000
With a copy to: Xxxxxx & Xxxxxxx, PC
Attn: Xxxxxx Xxxxx
4000 Bank One Tower
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Consultant: HC Acquisition Corp.
C/O Multi-Link Telecommunications, Inc.
Attn: Xxxxx Xxxxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
With a copy to: Xxxxx, Johnson, Robinson,
Xxxx & Ragonetti, PC
Attn: Xxxxx X. Xxxxxxxx
000 Xxxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Facsimile No.: 303/825-6525
Either party hereto may change its Address, Notice Party Representative or
Facsimile Number by Notice to the other party given at least thirty (30) days in
advance.
4.2 Governing Law. This Agreement will be governed by the laws of the
State of Indiana without regard to its conflicts of law principles.
4.3 Modification. This Agreement may only be modified or amended by
written instrument executed by a duly authorized representative of HCI, and
Consultant.
4.4 Entire Agreement. This Agreement, including all Exhibits and
Schedules attached hereto, contains the entire understanding of the parties
hereto with regard to the subject matter contained in this Agreement and
supersedes all prior agreements or understandings of the parties with respect
thereto.
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4.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original, and all of which
when taken together, shall be deemed to constitute one and the same agreement.
4.6 Severability. All of the words, clauses, sentences, paragraphs,
sections and Articles of this Agreement are distinct and severable. If any court
of competent jurisdiction determines that this Agreement, or any part hereof, is
void or unenforceable, such court shall, to the greatest extent permitted by
applicable law, strike such words, clauses, sentences, paragraphs, sections or
Articles of this Agreement as is minimally necessary to preserve the
enforceability of this Agreement as a whole. The provisions so stricken from
this Agreement shall not affect the validity, legality or unenforceability of
the remaining provisions of this Agreement and this Agreement, in its amended
form, shall be construed and enforced as if this Agreement did not contain the
provisions stricken therefrom.
4.7 Assignment. No party may assign any or all of its right, title or
interest in, to or under this Agreement without the express written consent of
the remaining parties hereto first had and obtained.
4.8 Indemnity. HCI shall indemnify and hold Consultant harmless from
and against all damages, claims, causes of action, losses and expenses,
including reasonable attorneys' fees and expenses (collectively, "Indemnifiable
Losses"), incurred in connection with HCI's implementation of Consultant's
advice given as a part of the Management Consulting Services; provided, however,
that HCI shall have no obligation to indemnify or hold Consultant harmless from
or against any Indemnifiable Losses resulting from any gross negligence or acts
of intentional misconduct of Consultant in performing the Management Consulting
Services or in rendering such advice in connection therewith.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
"HCI"
Xxxxxxx Communications, Inc.
By: __________________________
Title: _______________________
"Consultant"
HC Acquisition Corp.
By: __________________________
Title: _______________________
