EXHIBIT 4.2
PROFESSIONAL CONSULTING AGREEMENT
THIS PROFESSIONAL CONSULTING AGREEMENT is made this 16th day of July,
1999, by and between MDC Group, Inc. ("Consultant"), a Colorado corporation, and
ALPNET, Inc. ("Company"), a Utah corporation.
WHEREAS, Consultant operates and sells marketing services designed to
heighten public awareness of the business conducted and performance results
achieved by specified companies, which services consist primarily of organizing
and assembling information provided to the Consultant by the company in a format
which profiles the company and which is conducive to dissemination in
appropriate information channels and networks, and disseminating such
information; and
WHEREAS, Company wishes to retain Consultant to provide such services
with respect to the Company on the terms and conditions set forth herein.
NOW THEREFORE, for the mutual promises and other consideration
described herein, the parties hereto agree as follows:
1. INFORMATION TO BE FURNISHED BY COMPANY. Company shall furnish
Consultant with current public information about the Company, including without
limitation the Company's Annual Report on Form 10-K or Form 10-KSB filed with
the Securities and Exchange Commission for the Company's most recently completed
fiscal year, its most recent Annual Report to Shareholders, its most recent
Proxy Statement and any other periodic or current reports filed with the
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934 since the dates of those documents, and shall also provide any other public
information reasonably requested by Consultant ("Company Information"). Company
shall not provide to Consultant any confidential or nonpublic information
concerning the Company, and any and all information concerning the Company
provided to the Consultant by Company shall be deemed nonconfidential and
public.
Company shall be responsible to assure Company Information accurately
and fairly presents the financial condition and results of operations of the
Company as of the dates indicated thereon. Consultant shall have no liability
for any misstatement or omission in the Company Information, and Company shall
be obligated to indemnify and defend Consultant against any claim, action or
proceeding brought by any party against Consultant asserting such third party
has been injured as a result of any such misstatement or omission.
2. SERVICES TO BE PROVIDED BY CONSULTANT. Consultant shall
exercise its best efforts to identify and establish appropriate informational
channels and networks capable of maximizing dissemination of Company Information
to targeted elements of the public specified by Company, and shall disseminate
the Company Information in such channels and networks. Consultant shall also
exercise commercially reasonable efforts to assemble and organize Company
Information in a format and medium which best facilitates dissemination through
such channels and networks, and shall further exercise commercially reasonable
efforts to instigate and facilitate such dissemination.
3. TERM AND TERMINATION. This Agreement shall become effective as
of the date written above, and shall remain in effect until the close of
business on that date which is twelve calendar months later, or, in the event
such date is not a business day, then on the first business day preceding such
date ("Expiration Date"). Thereafter, this Agreement automatically shall renew
for additional one-year terms; unless either party notifies the other in writing
at least 30 days prior to the Expiration Date that such party desires to
terminate the Agreement as of the Expiration Date. Upon any such termination of
this Agreement, the parties hereto shall have no further duty or obligations
hereunder; provided that, notwithstanding such termination, Company shall remain
obligated to defend and indemnify Consultant as described in paragraph 1 of this
Agreement and to make any payments of reimbursable expenses pursuant to
paragraph 5 which have not been previously paid, and except as otherwise
explicitly stated hereunder.
4. COMPENSATION FOR SERVICES.
(a) MONTHLY RETAINER FEE. Throughout the term of this
Agreement, Company shall pay to Consultant a retainer fee in the amount of
$5,000 per month. The first such monthly retainer fee shall be paid upon
execution and delivery of this Agreement by Company. Thereafter, said monthly
retainer fee shall be due and payable by Company in advance on the fifteenth day
of each calendar month throughout the term of the Agreement; provided that, if
any such day is not a business day, then the monthly retainer for the relevant
period shall be due and payable by Company on the first business day next
following said fifteenth day of the relevant month (the "Payment Date"). Failure
by Company to pay the monthly retainer fee on any Payment Date shall entitle
Consultant to cease providing services pursuant to this Agreement unless and
until said payment (together with any applicable late payment fee or penalty) is
tendered in full, in addition to any other rights or remedies Consultant may
have under this Agreement, at law or in equity on account of such late payment.
Any monthly payment made more than thirty (30) days after the Payment Date will
be subject to an interest charge at the rate of 18% per year from the Payment
Date until the date paid or, if less, the maximum legal rate permissible under
applicable law.
(b) STOCK OPTIONS. Concurrent with the execution of this
Agreement, Company shall grant to Xx. Xxxx X. Xxxxxxxxx non-qualified stock
options entitling him to purchase up to 25,000 shares of common stock of the
Company at the per share closing price for the Company's common stock quoted on
the exchange on which it is traded for the last trading day prior to grant. If
this Agreement is renewed for an additional term following the Expiration Date
as provided in paragraph 3 hereof, then, on the first day of such renewal term,
Company shall grant to Xx. Xxxxxxxxx non-qualified stock options entitling him
to purchase up to an additional 25,000 shares of common stock of the Company at
the per share closing price for the Company's common stock quoted on the
exchange on which it is traded for the last trading day prior to grant. All such
options shall vest six calendar months after the date of grant, shall be
fully-exercisable when vested, and shall survive for a term of two years from
date of vesting. The Company shall have reserved from shares of its common stock
held in treasury or from authorized and unissued shares of its common stock, or
from a combination of the two, a sufficient number of shares of common stock to
support the exercise of the options granted pursuant to this Agreement, and
prior to such grant(s) the Company shall have taken all steps necessary to
assure that such shares, upon issuance in connection with the exercise of said
options, will constitute duly authorized, fully-paid, non-assessable, validly
issued and outstanding shares of common stock of the Company. Additionally, any
shares of the Company's common stock issuable in connection with the exercise of
options granted pursuant to this Agreement shall have attached thereto customary
piggy-back registration rights providing the holder thereof with registration
rights in the event the Company and/or any of its shareholders register any of
their shares under the Securities Act of 1933 for sale in and offering,
excluding registrations on Form S-4 of shares being offered in connection with
business combination transactions and registrations on Form S-8, or any
successor registration forms. The terms of said options and matters and
procedures relating thereto, including those specifically set forth herein,
shall be set forth in an option agreement in form satisfactory to the parties
and entered into as of the date of grant of the revelant options. Such option
agreement(s) and the options granted thereunder shall survive the expiration or
early termination of this Agreement.
5. REIMBURSEMENT FOR EXPENSES. Company shall reimburse
Consultant for all out-of-pocket expenses incurred by Consultant in connection
with performing services pursuant to this Agreement, including without
limitation travel, meals, lodging, long distance telephone and the installation
and maintenance of one US West Local Line with an associated AT&T Toll Free Line
dedicated to the Company, and out-of-pocket expenses incurred in connection with
preparing Company Information for dissemination, including without limitation
art work, graphics, typesetting, printing, copying, copywriting and postage,
etc. Consultant shall obtain the Company's prior approval before incurring any
items of out-of-pocket expenses which exceed $1,000. Company agrees to make
reimbursement payments for out-of-pocket expenses upon receipt of Consultant's
invoice. Any reimbursement payments not made within thirty (30) days following
the Company's receipt of invoice shall accrue interest from the invoice date at
the rate of 18% per year, or, if less, the maximum rate permitted under
applicable law.
6. CONSULTANT'S REPRESENTATIONS AND WARRANTIES.
Consultant represents and warrants that services to be provided and materials to
be produced or developed by Consultant under this Agreement will be performed,
produced or developed by competent, trained personnel of Consultant or its
subcontractors in a workmanlike manner. Consultant, its personnel, its
subcontractors and their personnel shall comply with all applicable statutes,
rules and regulations governing all aspects of the services to be performed
under this Agreement. Company understands and acknowledges that Consultant
cannot guarantee that the services provided hereunder will achieve any
particular objective or fulfill any specified goals. OTHER THAN THE FOREGOING
EXPRESS WARRANTIES, CONSULTANT MAKES TO WARRANTIES WITH RESPECT TO THE QUALITY
OF THE GOODS AND SERVICES TO BE PROVIDED HEREUNDER OR ANY RESULTS TO BE
ACHIEVED, AND HEREBY EXPRESSLY DISCLAIMS THE EXISTENCE OF ANY SUCH
REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CONSULTANT
SHALL HAVE NO LIABILITY FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES
SUFFERED BY COMPANY. UNDER NO CIRCUMSTANCES SHALL CONSULTANT'S LIABILITY UNDER
THIS AGREEMENT ARISING FROM ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF
ACTION, EXCEED AN AMOUNT EQUAL TO SIX MONTHS' CONSULTING FEES PAID PURSUANT TO
SECTION 4(A) OF THIS AGREEMENT.
7. COMPANY'S REPRESENTATIONS AND WARRANTIES. Company
represents and warrants to Consultant that Company has all requisite corporate
or other power and authority, and has taken all corporate or other actions
necessary to authorize, the execution, delivery and performance by it of this
Agreement. This Agreement constitutes the valid and binding obligations of the
Company, enforceable against the Company in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to the rights of
creditors generally and for general principles of equity.
8. MISCELLANEOUS. Neither party may assign its rights or
duties under this Agreement without the express prior written consent of the
other party, except that Consultant may assign to any other party, without
Company's consent, its right to receive all or any portions of the monthly
consulting fee and reimbursable expenses due and owing to it. Additionally,
Consultant may retain one or more subcontractors to fulfill services to be
provided by Consultant hereunder, provided no such subcontracting on the part of
Consultant shall absolve Consultant from any liability or responsibility it
otherwise has under the terms of this Agreement on account of failures in
performance in the provision of such services.
This Agreement contains the entire understanding of the parties with
respect to the subject matter hereof. The terms of this Agreement may be altered
only by written agreement between the parties. The failure of either party to
object to or take affirmative action with respect to any conduct of the other
which is in violation of the terms of this Agreement shall not be construed as a
waiver of the violation or breach, or of any future similar violation or breach.
This Agreement is not intended, and shall not be interpreted, to bind or benefit
any third parties, except that Xx. Xxxx X. Xxxxxxxxx shall be deemed a
third-party beneficiary with respect to the option grant(s) described hereunder,
and shall be entitled to enforce all of Consultant's rights under this Agreement
insofar as necessary for him to receive the full benefit of those options.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its duly authorized officer or, as to an individual
party, has executed this Agreement in his or her own hand, as of the date first
written above.
ALPNET, INC. MDC GROUP, INC.
By: \s\ Xxxx X. Xxxxxxx By: \s\ Xxxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxx, Vice President Xxxxx X. Xxxxxxxxx
Finance and Chief Financial Officer President
