EXHIBIT 10.1
STOCK REDEMPTION AGREEMENT
This STOCK REDEMPTION AGREEMENT (this "Agreement") is made and entered
into as of this 31st day of October, 2002, by and between: (i) BrandPartners
Group, Inc., a Delaware corporation (the "Seller"), and (ii) ▇▇▇▇▇▇▇▇.▇▇▇, Inc.,
a Delaware corporation (the "Company").
WHEREAS, the Company has authorized capital stock consisting of twenty
million (20,000,000) shares of common stock (the "Common Stock") and four
million eight hundred thousand (4,800,000) shares of Preferred Stock (the
Preferred Stock together with the Common Stock, the "Stock");
WHEREAS, Seller owns seven million four hundred fifty thousand
(7,450,000) shares of Common Stock (the "Redemption Shares");
WHEREAS, the Company, the Seller and the Company's other stockholders
previously entered into that certain Stockholders' Agreement, dated as of
February 12, 2001 (the "Stockholders' Agreement"); and
WHEREAS, the Seller desires to have redeemed by the Company, and the
Company desires to redeem, all of the Redemption Shares and each of the parties
hereto desires to terminate the Stockholders' Agreement as of the Closing Date.
NOW, THEREFORE, in consideration of the foregoing, of the mutual
promises hereinafter set forth, and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending legally to be bound, hereby agree as follows:
SECTION 1. REDEMPTION
Section 1.1. REDEMPTION. At the Closing (as defined in Section 1.5),
and subject to and upon the terms and conditions set forth in this Agreement,
the Company shall redeem from the Seller and the Seller shall have redeemed by
the Company, the Redemption Shares.
Section 1.2. REDEMPTION PRICE.
(a) On the Closing Date the Company shall deliver Four Hundred
Fifty Thousand Dollars ($450,000) to the Seller as a down payment (the "Down
Payment").
(b) At the Closing, the Company shall deliver to the Seller a
secured promissory note (the "Note"), substantially in the form attached hereto
as Exhibit A, in the principal amount of One Million Five Hundred Fifty Thousand
Dollars ($1,550,000), which, together with the Down Payment, shall constitute
the aggregate redemption price for the Redemption Shares (the "Redemption
Price").
Section 1.3. SECURITY. The obligations of the Company under the Note
shall be secured by a pledge by the Company to Seller of five million seven
hundred seventy-four thousand twenty-three (5,774,023) shares (the "Pledged
Shares") of the Redemption Shares (the "Pledge Agreement"), substantially in the
form attached hereto as Exhibit B, as more fully described in the Pledge
Agreement.
Section 1.4. DELIVERY OF SHARE CERTIFICATES. At the Closing, the Seller
shall deliver to the Company the certificate or certificates representing the
Redemption Shares, duly endorsed or accompanied by duly executed stock powers.
Section 1.5. CLOSING. The closing of the transactions provided for in
this Agreement (the "Closing") shall be held on October 31, 2002 or on such
other date (the "Closing Date") as the parties shall mutually agree upon.
SECTION 2. REPRESENTATIONS AND WARRANTIES
Section 2.1. REPRESENTATIONS AND WARRANTIES OF SELLER. As a material
inducement to the Company to enter into this Agreement, the Seller makes the
following representations and warranties to the Company, each of which (i) shall
be true and correct as of the Closing Date, (ii) shall survive the purchase by
the Company of the Redemption Shares and (iii) shall be deemed to be material
for all purposes hereof:
(a) The Seller and its officers and directors, together with
Seller's stockholders if applicable, have taken all necessary corporate action
to authorize this Agreement and the transactions contemplated hereby and the
performance of all obligations of the Seller hereunder. The execution, delivery
and performance of this Agreement, and all other documents contemplated hereby,
by the Seller shall constitute the valid and legally binding obligations of the
Seller, enforceable in accordance with their terms;
(b) The Redemption Shares are owned of record and beneficially
by the Seller, free and clear of any option, call, contract, commitment, demand,
lien, charge, security interest or encumbrance whatsoever (other than the
Stockholders' Agreement which is being terminated hereby). Seller is not a party
to any option, warrant, purchase right or other contract or commitment that
could require Seller to sell, transfer or otherwise dispose of the Redemption
Shares (other than this Agreement and the Stockholders' Agreement which is being
terminated hereby);
(c) There is no suit, action, investigation, inquiry, legal,
administrative or other proceeding by any governmental body or other party
instituted or, to the knowledge of the Seller, threatened, which questions the
validity or legality of any or all of the transactions contemplated by this
Agreement; and there is no injunction, writ, restraining order or other order of
any nature issued by a court of competent jurisdiction directing that any or all
of the transactions provided for herein not be consummated as so provided, or
imposing any conditions on the consummation of any or all of the transactions
contemplated hereby;
(d) The Seller has obtained all necessary consents, approvals
or waivers required under any agreement (other than the Stockholders' Agreement
which is being terminated hereby)
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or law to which the Seller is a party or subject with respect to the execution,
delivery or performance of this Agreement and the documents contemplated hereby;
and
(e) The Seller, in its capacity as a stockholder of the
Company has not, and no employee, stockholder, officer, director or other
representative or agent of the Seller who has served as an officer or director
of the Company has, at any time prior to the Closing Date, contracted on behalf
of the Company or otherwise agreed or committed the Company (orally or in
writing) to pay, perform or assume any liabilities, debts or obligations in
favor of any third party or in favor of the Seller or any subsidiary or
affiliate of the Seller.
Section 2.2. REPRESENTATIONS AND WARRANTIES OF COMPANY . As a material
inducement to the Seller to enter into this Agreement, the Company makes the
following representations and warranties to the Seller, each of which (i) shall
be true and correct as of the Closing Date, (ii) except as specifically set
forth below in Section 2.2(d), shall survive the purchase by the Company of the
Redemption Shares and (iii) shall be deemed to be material for all purposes
hereof:
(a) The Company, its officers, directors and stockholders have
taken all necessary corporate action to authorize this Agreement and the
transactions contemplated hereby and the performance of all obligations of the
Company hereunder. The execution, delivery and performance of this Agreement,
and all other documents contemplated hereby, by the Company shall constitute the
valid and legally binding obligations of the Company enforceable in accordance
with their terms;
(b) There is no suit, action, investigation, inquiry, legal,
administrative or other proceeding by any governmental body or other party
instituted or, to the knowledge of the Company, threatened which questions the
validity or legality of any or all of the transactions contemplated by this
Agreement; and there is no injunction, writ, restraining order or other order of
any nature issued by a court of competent jurisdiction directing that any or all
of the transactions provided for herein not be consummated as so provided, or
imposing any conditions on the consummation of any or all of the transactions
contemplated hereby;
(c) The Company has obtained all necessary consents, approvals
or waivers required under any agreement to which the Company is a party or
subject with respect to the execution, delivery or performance of this Agreement
and the documents contemplated hereby; and
(d) Except as set forth on Schedule 2.2(d) attached hereto,
since the meeting of the Board of Directors of the Company on September 18, 2002
and through and including the Closing Date, the Company has not entered into
negotiations with any person or entity in connection with any material new
contract with a customer or client which negotiations have resulted in the
execution of a written understanding between the Company and such person or
entity regarding any such new material contract; provided, however, that any
claim for breach of the foregoing representation and warranty of the Company
must be asserted in writing by the Seller to the Company prior to the expiration
of the one (1) year period following the Closing Date, which written notice
shall describe such alleged breach in reasonable detail and identify the new
customer or client in issue.
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SECTION 3. CONDITIONS TO CLOSING
Section 3.1. SELLER'S CONDITIONS. The Seller's obligations under this
Agreement shall be subject to and conditioned upon each of the following:
(a) The delivery to the Seller at Closing of the fully
executed Note;
(b) The delivery to the Seller at Closing of the Down Payment
in the form of a certified or bank check or by wire transfer; and
(c) The delivery to Seller at Closing of a fully executed
Pledge Agreement, together with the delivery by the Company of the Pledged
Shares to the Escrow Agent in accordance with the Pledge Agreement.
Section 3.2. COMPANY'S CONDITIONS. The Company's obligations under this
Agreement shall be subject to and conditioned upon each of the following:
(a) The Seller's delivery to the Company at the Closing of the
certificate or certificates representing the Redemption Shares, duly endorsed
(or accompanied by executed stock powers);
(b) The delivery to the Company at the Closing of the
following resignations, together with a General Mutual Release in the form of
Exhibit C attached hereto and made a part hereof: (i) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ as a
Senior Vice President, Treasurer and Director of the Company; (ii) ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ as a Director of the Company and (iii) ▇▇▇▇▇▇ ▇▇▇▇ as a Director of the
Company;
(c) The delivery of an opinion of counsel to Seller, in form
acceptable to the Company; and
(d) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ shall have executed and delivered to
the Company such signature cards and other documents as necessary and taken such
other actions as may be reasonably requested by the Company to remove his name
as a signatory on the deposit account of the Company held at HSBC (Turtle Bay
Office), account number ▇▇▇-▇▇▇▇▇-▇.
SECTION 4. TERMINATION OF STOCKHOLDERS' AGREEMENT
Section 4.1. TERMINATION. Each of the parties hereto acknowledges and
agrees that the Stockholders' Agreement, and all rights, remedies, obligations
and covenants thereunder, and regardless of anything therein to the contrary,
shall be, without the requirement of any further action, terminated on and as of
the Closing Date and shall, as of the Closing Date, have no further force or
effect.
Section 4.2. RELEASE. Each party to the Stockholders' Agreement hereby
mutually releases and forever discharges each other party to the Stockholders'
Agreement and each other party's successors, assigns, directors and officers,
heirs, legatees and personal and legal representatives, as the case may be, from
and against any and all actions, causes of action (at law or in equity), claims,
suits, demands, attorneys' fees, other expenses and all other obligations or
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liabilities of any nature whatsoever, whether known or unknown (collectively,
"Claims"), which it or his successors, assigns, directors and officers, heirs,
legatees and personal and legal representatives, as the case may be, ever had,
now has or may in the future have pursuant to, arising under or relating to the
Stockholders' Agreement.
SECTION 5. MUTUAL RELEASE
Section 5.1. COMPANY RELEASE. In consideration of the transactions
herein contemplated, the Company hereby wholly and completely releases and
forever discharges Seller and its successors, assigns, employees, directors,
officers or other legal representatives from and against any and all Claims
which the Company and its successors, assigns, employees, directors, officers or
other legal representatives had or now has or may in the future have, by reason
of any matter, cause or thing whatsoever, existing prior to or as of the Closing
Date; provided, however, that this Section 5.1 shall have no force or effect
upon any of the provisions of this Agreement, the Note or the Pledge Agreement.
Section 5.2. SELLER RELEASE. In consideration of the transactions
herein contemplated, Seller hereby wholly and completely releases and forever
discharges the Company and its successors, assigns, employees, directors,
officers or other legal representatives from and against any and all Claims
which Seller and its successors, assigns, employees, directors, officers or
other legal representatives had or now has or may in the future have, by reason
of any matter, cause or thing whatsoever, existing prior to or as of the Closing
Date (including specifically, but not limited to, any Claims the Seller and its
successors, assigns, employees, directors, officers or other legal
representatives may have under Section 5.9 of that certain Stock Purchase
Agreement, dated as of February 12, 2001, among the Company and the investors
set forth therein); provided, however, that this Section 5.2 shall have no force
or effect upon any of the provisions of this Agreement, the Note or the Pledge
Agreement.
Section 5.3. INTENT OF PARTIES. Except as provided in Sections 5.1 and
5.2 above, it is the specific intent and purpose of the Seller and the Company
that each of the Seller and the Company, and their respective successors,
assigns, employees, directors, officers and other legal representatives, release
and discharge each other of all Claims, of any kind or nature whatsoever,
whether known or unknown, whether specifically mentioned herein or not, which
may exist or might be claimed to exist, directly or indirectly, upon or prior to
the Closing Date, and each of the Seller and the Company hereby waives any right
or ability hereafter to assert that any Claim of any nature or kind whatsoever
has been, through oversight or error, intentionally or unintentionally, omitted
from the release in this Section 5.
SECTION 6. INDEMNIFICATION
Section 6.1. INDEMNIFICATION BY SELLER. The Seller shall indemnify and
hold harmless the Company against, and will reimburse it for, any payment, loss,
cost or expense (including, without limitation, reasonable attorneys' fees and
reasonable costs of investigation incurred in defending against such payment,
loss, cost or expense or claim therefor) made or incurred by, or asserted
against, the Company resulting from, or in connection with, any breach of a
representation or warranty or nonfulfillment of any term, provision, covenant or
agreement on the part of the Seller contained in this Agreement.
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Section 6.2. INDEMNIFICATION BY COMPANY. The Company shall indemnify
and hold harmless the Seller against, and will reimburse it for, any payment,
loss, cost, or expense (including, without limitation, reasonable attorneys'
fees and reasonable costs of investigation incurred in defending against such
payment, loss, cost or expense or claim therefor) made or incurred by, or
asserted against, the Seller resulting from, or in connection with, any breach
of a representation or warranty or nonfulfillment of any term, provision,
covenant or agreement on the part of the Company contained in this Agreement.
Section 6.3. RIGHT OF OFFSET. In the event Seller shall be in breach of
any representation, warranty or covenant under this Agreement, or shall have an
indemnification obligation under this Section 6, the Company shall be entitled
to seek satisfaction of such amounts through an offset against the Note. The
remedy of offset shall be in addition to, and not in limitation of, any
injunctive relief or other rights or remedies to which the Company is or may be
entitled at law or in equity or under this Agreement. In the event the Company
has a right of offset under this Section 6.3 and the Seller is disputing in good
faith the claim underlying such right of offset, then as amounts become due and
payable under the Note during such dispute, the Company shall deposit each such
payment into an escrow account with LandAmerica Financial Group, Inc., as the
escrow agent, which shall be held in escrow (separate from the escrow being held
pursuant to the Pledge Agreement) pending resolution of such dispute in
accordance with Section 8.11 hereof.
SECTION 7. CONFIDENTIALITY
Each of the parties hereto recognizes and acknowledges that each such
party and its officers, directors, stockholders, employees and other
representatives have in the past, currently have, and under Section 8 hereof may
in the future have, access to certain confidential information of the other
party, such as such other party's proprietary information and data, software,
lists of customers, operational policies and pricing and cost policies, that are
valuable, special and unique assets of such other party and its businesses. Each
of the parties hereto on its own behalf, and on behalf of its respective
officers, directors, stockholders, employees and other representatives, agrees
that they will not disclose confidential information of the other party to any
person or entity for any purpose or reason whatsoever, unless (i) such
information becomes known to the public generally through no fault of the
disclosing party or (ii) disclosure is required by law, the order of any
governmental or regulatory authority or by a court of competent jurisdiction
under color of law; provided, that prior to disclosing any information pursuant
to clause (ii) above, the disclosing party shall give prior written notice
thereof to the other party and provide the other party with the opportunity to
contest such disclosure.
SECTION 8. MISCELLANEOUS
Section 8.1. FURTHER ASSURANCES; ACCESS TO RECORDS. The parties agree
(a) to furnish upon request to each other such further information, (b) to
execute and deliver to each other such other documents, and (c) to do such other
acts and things, all as the other party may reasonably request for the purpose
of carrying out the intent of this Agreement and the documents referred to
herein. Each of the parties hereto (each a "Providing Party") covenants and
agrees to give the other party and its representatives (each such other party a
"Requesting Party"), upon five (5) days' prior written notice by the Requesting
Party to the Providing Party access to the books and
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records of the Providing Party which reflect such Providing Party's transactions
with the Requesting Party, any joint financial, accounting or tax records
(including Federal, state and local tax returns and other filings) and any other
matters of Providing Party which may involve the Requesting Party. The
Requesting Party shall have the right to copy such books and records at the
expense of the Requesting Party. In the event a Providing Party intends to
destroy or otherwise dispose of any of such books and records, the Providing
Party shall give the Requesting Party thirty (30) days' prior written notice of
its intent and shall allow the Requesting Party to take possession of and keep
such books and records.
Section 8.2. COSTS. Each of the parties hereto shall be responsible for
its own costs and expenses in connection with the negotiation and the
consummation of the transactions contemplated by this Agreement, including,
without limitation, legal and accounting fees.
Section 8.3. GOVERNING LAW. This Agreement shall be construed under and
governed by the laws of the State of Delaware without giving effect to any
choice or conflict of law statute, provision, rule or principle, whether of the
State of Delaware or of any other jurisdiction.
Section 8.4. SEVERABILITY. If any provision or part of any provision of
this Agreement shall for any reason be held invalid, illegal or unenforceable in
any respect, the remaining provisions and remaining parts of provisions, as the
case may be, shall be construed as if such invalid, illegal or unenforceable
provision or part of a provision had never been contained herein.
Section 8.5. CONSTRUCTION.
(a) The captions herein are for reference purposes only and in
no way define or limit the scope or content of this Agreement or in any way
affect the interpretation of its provisions.
(b) No delay or failure on the part of any party hereto in
exercising any right, power, remedy or privilege hereunder, nor any course of
dealing among the parties hereto, shall operate as a waiver of any right, power,
remedy or privilege hereunder; nor shall any single or partial exercise of any
right, power, remedy or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, power, remedy or privilege.
(c) This Agreement may not be amended or modified, nor may any
provision hereof be waived, except pursuant to an instrument in writing signed
by the Seller and the Company, or, in the case of a waiver, pursuant to an
instrument in writing signed by the party to whom or to which the subject
obligation was owed.
Section 8.6. INTEGRATION. This Agreement, together with the Exhibits
hereto, which are incorporated herein by this reference, and the other documents
contemplated hereby, constitutes the final written expression of all of the
agreements between the parties regarding the subject matter hereof and is a
complete and exclusive statement of those terms, and all prior expressions
thereof are hereby revoked. This Agreement, together with the Exhibits hereto
and the other documents contemplated hereby, supersedes all understandings and
negotiations concerning the matters specified herein and any representations,
promises, warranties or statements made by either party that differ in any way
from the terms of this Agreement, its Exhibits and the other documents
contemplated herein, shall be given no force or effect. The
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parties specifically represent, each to the other, that there are no additional
or supplemental agreements between them related in any way to the matters herein
contained unless specifically included or referred to herein.
Section 8.7. ASSIGNMENT. Neither this Agreement nor any rights or
obligations hereunder are assignable in whole or in part by any party without
the prior written consent of all other parties.
Section 8.8. BENEFIT OF AGREEMENT. This Agreement shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns and shall not be construed to confer any right or benefit, direct or
indirect, upon any other person.
Section 8.9. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 8.10. NOTICES. Any notices or communication hereunder shall be
deemed to have been duly given if in writing and shall be deemed effective as
follows: (i) if transmitted by hand-delivery upon personal delivery with receipt
therefor; (ii) if by certified or registered mail, return receipt requested,
first-class postage prepaid, three (3) business days after mailing; or (iii) if
by a nationally recognized overnight delivery service with guaranteed next-day
delivery with receipt therefor one (1) business day after delivery to the
overnight courier. All notices shall be addressed to the parties at their
following respective addresses, or at such other addresses as may be designated
in writing:
(a) To the Seller: Brand Partners Group, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, CEO
with a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(b) To the Company: ▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: Chief Executive Officer
with copy to: Venable, Baetjer, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esquire
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Any party may change the address to which notices are to be delivered hereunder
by giving written notice to the others as provided in this section.
Section 8.11. ARBITRATION. Any unresolved dispute or controversy
arising under or in connection with this Agreement after the Closing Date shall
be settled exclusively by a three (3) person arbitration panel, with such
arbitration proceeding conducted in accordance with the rules of the American
Arbitration Association then in effect. The arbitrators shall not have the
authority to add to, detract from, or modify any provision hereof. A decision by
a majority of the arbitration panel shall be final and binding. Judgment may be
entered on the arbitrators' award in any court having jurisdiction. The
arbitration proceeding shall be held in Washington, D.C. Notwithstanding the
foregoing, the parties shall be entitled to seek injunctive or other equitable
relief from any court of competent jurisdiction, without the need to resort to
arbitration.
[Signatures on following page.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
SELLER:
BRANDPARTNERS GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
COMPANY:
▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, III
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, III
Title: Chairman and Chief Executive Officer
Solely for purposes of Section 4 of the Agreement, each of the undersigned
consent and agree to the termination of the Stockholders' Agreement under
Section 4.1 thereof and the release in Section 4.2 thereof.
BG MEDIA INTERMEDIATE FUND, L.P.,
a Delaware limited partnership
By: BG Limited Media Intermediate Fund
Investors L.L.C., its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Partner
1404467 ONTARIO LIMITED,
an Ontario corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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