Consulting Agreement - McKinsey & Co. Inc. and The Publishing Co. of North America Inc.
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is dated as of February 29,
2000 (the "Effective Date"), and is made by and between McKinsey & Company, Inc.
United States, a Delaware corporation ("McKinsey"), and The Publishing Company
of North America, Inc., a Florida corporation ("Client") with respect to certain
services provided by McKinsey as described herein. The parties hereby agree to
the following terms and conditions in connection with such services.
1. Services. McKinsey agrees to assist the Client in connection with
its development of a business plan, launch program and financing negotiations
for Attorneys.com, as more fully described in Exhibit A (the "Project"). In the
event the Client requests additional services related to the Project, the scope
of such additional services shall be as agreed by the parties and shall be
governed by this agreement.
2. Compensation. The parties agree that McKinsey will be compensated by
Client for its professional fees in connection with the Project as provided on
Exhibit B. In addition, Client will reimburse McKinsey for expenses incurred,
which expenses will include external costs such as travel and courier, and other
costs such as administrative support, report reproduction and computer support
as provided in Exhibit B. Compensation for any additional services provided by
McKinsey relating to the Project shall be as agreed by the parties.
3. Term. McKinsey's services in connection with the Project shall begin
on or about March 6, 2000, and are expected to be completed approximately by
April 28, 2000. This agreement shall govern all services provided by McKinsey in
connection with the Project and any additional services related to the Project
as agreed by the parties. Either party may terminate the Project by giving ten
(10) days' prior written notice to the other. In the event of any such
termination, McKinsey shall be compensated pro rata for professional fees and
expenses incurred with respect to services performed through the effective date
of termination in accordance with Section 2, but will not be entitled to any
additional compensation.
4. Confidentiality. McKinsey recognizes that certain confidential
information concerning the Client will be furnished by the Client to McKinsey in
connection with the Project ("Confidential Information").
McKinsey agrees that it will disclose Confidential Information only to
those of its directors, officers, employees, advisors or agents who have a need
to know such information, or to advisors to the Client. Confidential Information
shall not include information that (i) is in the possession of McKinsey prior to
its receipt of such information from the Client, (ii) is or becomes publicly
available other than as a result of a breach of this agreement by McKinsey, or
(iii) is or can be independently acquired or developed by McKinsey without
violating any of its obligations under this agreement.
The Client recognizes and confirms that McKinsey (a) will use and rely
primarily on the Confidential Information and on information available from
public sources in performing the services
<PAGE>
contemplated by this agreement without having independently verified the same,
and (b) does not assume responsibility for the accuracy or completeness of the
Confidential Information or such other publicly available information.
In the event that McKinsey receives a request to disclose all or any
part of any Confidential Information under the terms of a valid and effective
subpoena or order issued by a court of competent jurisdiction, judicial or
administrative agency or by a legislative body or committee, such disclosure by
McKinsey shall not constitute a violation of this Agreement provided that
McKinsey (a) promptly notifies Client of the existence, terms and circumstances
surrounding such request, (b) consults with Client on the advisability of taking
available legal steps to resist or narrow such request, and (c) if disclosure of
such Confidential Information is required or deemed advisable, exercises its
best efforts to obtain an order or other reliable assurance that confidential
treatment will be accorded to such portion of the Confidential Information to be
disclosed which Client designates.
5. Use of McKinsey Name and Work Products. In connection with the
Project, McKinsey may furnish the Client with reports, analyses or other such
materials (the "Materials"). The Client understands and agrees that any such
Materials will be furnished solely for its internal use and may not be furnished
in whole or in part to any other person other than its directors, officers and
employees without the prior written consent of McKinsey.
The Client may furnish Materials to its legal counsel, accountants or
investment bankers who have been retained by the Client to provide services in
connection with the Project and who need to know such information in the
performance of such services if (i) the Client informs each such person of the
confidential nature of the Materials, (ii) each such person agrees not to
disclose the Materials to any other person and to use the Materials solely in
connection with the performance of its services to the Client, and (iii) each
such person agrees that in connection with discussions with or disclosures to
other third parties, it will not attribute any information contained in the
Materials to McKinsey.
The Client further agrees not to refer to McKinsey or attribute any
information to McKinsey (i) in the press, (ii) for advertising or promotional
purposes, or (iii) for the purpose of informing or influencing any third party,
including the investment community, without the prior written consent of
McKinsey.
In the event that the Client receives a request to disclose all or any
part of any Materials under the terms of a valid and effective subpoena or order
issued by a court of competent jurisdiction, judicial or administrative agency
or by a legislative body or committee, such disclosure by the Client shall not
constitute a violation of this Agreement provided that the Client (a) promptly
notifies McKinsey of the existence, terms and circumstances surrounding such
request, (b) consults with McKinsey on the advisability of taking available
legal steps to resist or narrow such request, and (c) if disclosure of such
Materials is required or deemed advisable, exercises its best efforts to obtain
an order or other reliable assurance that confidential treatment will be
accorded to such portion of the Materials to be disclosed which McKinsey
designates.
<PAGE>
6. Work Product. Client shall have a perpetual, irrevocable,
nontransferable, paid-up right and license to use and copy the Materials and
prepare derivative works based on the Materials for its internal use, subject to
the terms of Section 5. All other rights in the Materials, subject to the terms
of Section 4, remain in and/or are assigned to McKinsey. The parties will
cooperate with each other and execute such other documents as may be appropriate
to achieve the objectives of this Section.
Client acknowledges that McKinsey may develop for itself, or for
others, problem solving approaches, frameworks or other tools or information
similar to the Materials and processes developed in performing the Project and
any additional Services, and nothing contained herein precludes McKinsey from
developing or disclosing such materials and information provided that the same
do not contain or reflect Confidential Information.
7. Indemnification. The Client hereby agrees to indemnify and hold
harmless (i) McKinsey, (ii) any entity directly or indirectly controlling,
controlled by, or under common control with, McKinsey, or any other affiliates
of McKinsey or such entities (collectively "McKinsey Affiliates"), and (iii) the
respective directors, officers, stockholders, agents and employees of McKinsey
and such entities (collectively, "Indemnified Persons"), from and against all
claims, liabilities, losses, damages, and expenses as incurred (including
reasonable legal fees and disbursements of counsel and the costs of McKinsey
professional time), joint or several (including actions or proceedings in
respect thereof) (collectively "Losses"), relating to or arising out of: (i) the
Project (including without limitation the provision of consulting services), or
(ii) any transaction or matter which is related to the subject matter of the
Project. The Client shall not, however, be liable under the foregoing indemnity
agreement to the extent that any such Losses are determined by an arbitration
pursuant to Section 14 or are otherwise finally determined, as the case may be,
to have resulted primarily from the gross negligence, willful misconduct or bad
faith of any Indemnified Person in connection with the Project. The Client also
agrees that no Indemnified Person shall have any liability (whether direct or
indirect, in contract or in tort or otherwise) to the Client or any person
claiming through the Client, including without limitation its owners, parents,
affiliates, security holders or creditors, for any Losses suffered by the Client
or any such other person relating to or arising out of (i) the Project
(including without limitation the provision of consulting services), or (ii) any
transaction or matter which is related to the subject matter of the Project, and
further agrees that McKinsey shall be reimbursed for any expenses as incurred by
any Indemnified Persons relating to the foregoing (including reasonable legal
fees and disbursements of counsel and the costs of McKinsey professional time),
except to the extent that any such Losses are determined by an arbitration
pursuant to Section 14 or are otherwise finally determined, as the case may be,
to have resulted primarily from the gross negligence, willful misconduct or bad
faith of any Indemnified Person in connection with the Project.
The Client further agrees that it will not settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action
or proceeding in respect of which indemnification may be sought hereunder
(whether or not any Indemnified Person is an actual or potential party to such
claim, action or proceeding) unless the Client has given McKinsey reasonable
prior written notice thereof and obtained an unconditional release of each
Indemnified Person from all liability arising therefrom, which unconditional
release shall not place any non-financial obligations on any Indemnified Person.
<PAGE>
The Client acknowledges and agrees that its obligations hereunder shall
be in addition to any rights that any Indemnified Person may have at law or
otherwise.
Upon receipt by McKinsey of notice of a claim, action or proceeding in
respect of which indemnity may be sought hereunder, McKinsey shall promptly
notify the Client with respect thereto. If in McKinsey's reasonable judgment
there is no conflict of interest between McKinsey (or any Indemnified Person)
and the Client, the Client may at its option assume and control the defense of
any litigation or proceeding in respect of which indemnity is sought hereunder
with counsel reasonably acceptable to McKinsey. If in McKinsey's reasonable
judgment there is a conflict of interest between McKinsey (or any Indemnified
Person) and the Client, McKinsey shall assume and control the defense of any
litigation or proceeding (as it relates to McKinsey or any such Indemnified
Person) in respect of which indemnity is sought hereunder with counsel
reasonably acceptable to the Client. The Client shall not be liable hereunder or
otherwise for any settlement of any claim, action or proceeding effected without
its written consent, which shall not be unreasonably withheld. Nothing contained
herein shall prevent McKinsey from retaining, at its own expense, legal counsel
of its choice.
8. Client Acknowledgment. It is the long-standing practice of McKinsey
to serve multiple clients within industries, including those with opposing
economic interests, as well as counter-parties in potential and actual merger,
acquisition and alliance transactions. McKinsey is committed to maintaining the
confidentiality of each client's information (generally as described in this
agreement) in all such situations. Accordingly, the Client acknowledges the
possibility and agrees that McKinsey may have served, may currently be serving
or may in the future serve other companies whose interests are adverse to those
of the Client, including parties with whom the Client (i) competes; (ii) has a
commercial relationship or potential commercial relationship (e.g., suppliers,
distributors); (iii) enters into competitive bidding situations; and (iv) enters
into or considers entering into merger, acquisition, divestiture, alliance or
joint venture transactions.
9. Independent Contractor. The parties agree that McKinsey is an
independent contractor to Client and will not be deemed an employee of Client
for any purpose whatsoever. Without limiting the foregoing, all income taxes
arising from or in connection with professional fees paid by Client to McKinsey
for the services provided under this Agreement shall be borne by McKinsey.
Neither party nor such party's directors, officers, employees or agents, shall
bind or make any commitment on behalf of the other party.
10. Survival and Succession. This agreement shall survive the
completion or termination of the Project and any related services provided by
McKinsey. Further, this agreement, in its entirety, shall inure to the benefit
of and be binding on the successors and assigns of the Client and McKinsey.
<PAGE>
11. Assignment. Neither of the parties hereto shall assign or transfer
its interest in this Agreement or any portion thereof without the prior written
consent of the other party except that (i) Client may assign or transfer its
rights and obligations under this Agreement to a subsidiary or entity
controlling, controlled by or under common control with Client (an "Affiliate")
or to any entity that acquires all or substantially all of the assets of Client
or more than 50% of the current outstanding voting stock of Client and (ii)
McKinsey shall be entitled to assign the right to receive any compensation
received hereunder to a third party without the prior written consent of Client,
subject to restrictions of applicable law.
12. Severability. The various provisions and subprovisions of this
Agreement are severable and if any provision or subprovision or part thereof is
held to be unenforceable by any court of competent jurisdiction, then such
enforceability shall not affect the validity or enforceability of the remaining
provisions or subprovisions or parts thereof in this Agreement.
13. Entire Agreement/Governing Law. This Agreement (including Exhibit
A) constitutes the entire agreement between the parties and supersedes all prior
agreements and understandings, oral and written, and may not be modified or
amended except in writing signed by both parties. The laws of the State of New
York, excluding that body of law controlling conflicts of law, will govern all
disputes arising out of or relating to this Agreement.
14. Arbitration. Any dispute, controversy or claim arising out of or in
connection with, or relating to, this agreement, or the breach, termination or
validity thereof, shall be finally settled by arbitration. The arbitration shall
be conducted in accordance with the commercial arbitration rules of the American
Arbitration Association (the "AAA") in effect at the time of the arbitration,
except as they may be modified by mutual agreement of the parties. The seat of
the arbitration shall be New York, New York, and the arbitration shall be
conducted in English.
The arbitration shall be conducted by three arbitrators. The party
initiating arbitration (the "Claimant") shall appoint an arbitrator in its
request for arbitration (the "Request"). The other party (the "Respondent")
shall appoint an arbitrator within 30 days of receipt of the Request. If by that
date either party has not appointed an arbitrator, then that arbitrator shall be
appointed promptly by the AAA. The first two arbitrators appointed shall appoint
a third arbitrator within 30 days after the Respondent has notified Claimant of
the appointment of Respondent's arbitrator or, in the event of a failure by a
party to appoint, within 30 days after the AAA has notified the parties of its
appointment of an arbitrator on behalf of the party failing to appoint. If the
first two arbitrators appointed fail to appoint a third arbitrator within the
time period prescribed above, then the AAA shall appoint the third arbitrator.
The arbitral award shall be in writing, state the reasons for the
award, and be final and binding on the parties. The award may include an award
of costs, including reasonable attorneys' fees and disbursements. Judgment upon
the award may be entered by any court having jurisdiction thereof or having
jurisdiction over the relevant party or its assets.
15. Notices. Any notices under this Agreement will be sent by certified
or registered mail, return receipt requested, or by facsimile (provided that the
sender received electronic confirmation of
<PAGE>
receipt by recipient) to the address specified below or such other address as
the party specifies in writing. Such notice will be effective upon being sent as
specified in this Section.
The Publishing Company of
North America, Inc.
By: /s/ Peter S. Balise
---------------------
Title: President
------------------
Date: March 6, 2000
------------------
McKinsey & Company, Inc. United States
By: /s/ Joachim Heel
---------------------
Title: Principal
------------------
Date: March 6, 2000
-------------------
<PAGE>
EXHIBIT A
SCOPE OF SERVICES
The scope of McKinsey's services shall be as described in McKinsey's letter of
proposal to the Client dated February 2000, attached hereto and incorporated
herein by reference, subject to any changes as mutually agreed by the parties.
<PAGE>
EXHIBIT B
PROFESSIONAL FEES AND EXPENSES
McKinsey's professional fees for the Project shall be $300,000 per month, 40% of
which shall be paid by the Client in cash and 60% of which shall accrue and be
paid in restricted common stock of The Publishing Company of North America,
Inc., ("PCNA") as described further below. The cash and equity portions of the
professional fees shall be earned on a weekly basis; the cash portions shall be
billed and paid monthly and the equity shall be issued as described below. In
addition, the Client agrees to reimburse McKinsey in cash on a monthly basis for
expenses incurred in connection with the Project.
The common stock shall be valued at the end of each week at a 20% discount to
the average closing price of PCNA common stock for such week.
o The Client shall grant to McKinsey piggy-back registration
rights relating to the shares of common stock issued to
McKinsey in connection herewith.
o The Client shall issue the common stock payable to McKinsey
hereunder in 2 tranches as follows: on 3/31/00 the Client
shall issue all equity earned by McKinsey prior to such date,
and on 4/28/00 the Client shall issue to McKinsey all equity
earned after 3/31/00, unless otherwise agreed by the parties.
o The shares shall be issued to and held in the name of 52nd
Street Associates, Inc., which is a Delaware corporation and a
McKinsey affiliate.