Exhibit 10.11
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 10th day of November, 2003 by and between
BRANDPARTNERS GROUP, INC., having a place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter referred to as "EMPLOYER") and ▇▇▇▇▇ ▇▇▇▇▇▇,
residing __________________________(hereinafter referred to as "EMPLOYEE").
W I T N E S S E T H:
WHEREAS, the EMPLOYER is engaged in the business of developing and marketing
providing financial services firms and other service retailers with
merchandising, branch planning and design, and creative services; and
WHEREAS, the EMPLOYER is desirous of employing EMPLOYEE, and EMPLOYEE
wishes to be employed by EMPLOYER in accordance with the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND
PROMISES AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT OF
WHICH IS HEREBY ACKNOWLEDGED, IT IS MUTUALLY AGREED AS FOLLOWS:
1. EMPLOYMENT DUTIES AND TERM: The EMPLOYER does hereby employ, engage and
hire the EMPLOYEE as President of EMPLOYER for a period of one (1) year
retroactive to October 15, 2003 and terminating October 14, 2004. The duties of
EMPLOYEE shall include, but not be limited to, acting as Chief Executive Officer
of EMPLOYER and its subsidiary, ▇▇▇▇▇▇ Brothers EMPLOYEE will perform services
on behalf of EMPLOYER with respect to the management and general supervision of
the business of EMPLOYER.
2. GOOD FAITH PERFORMANCE OF DUTIES: The EMPLOYEE agrees that he will, at
all times, faithfully, industriously, and to the best of his ability, experience
and talent, perform all of the duties that may be required of and from him,
pursuant to the expressed and implicit term hereof.
3. COMPENSATION: EMPLOYER shall pay to the EMPLOYEE, and the EMPLOYEE
agrees to accept from the EMPLOYER, in full payment for the EMPLOYEE's services
hereunder, compensation at the rate of $300,000 per annum. EMPLOYEE will be paid
bi-weekly, in accordance with the subsidiary of EMPLOYER's usual payroll
practice during the term of the within Agreement.
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4. STOCK OPTIONS: In addition, EMPLOYER agrees to issue to EMPLOYEE stock
options, as follows:
o Options to purchase 500,000 shares of common stock of Employer at
$0.20 per share;
o Options to purchase 500,000 shares of common stock of Employer at
$0.30 per share.
All options vest as of the date this agreement is executed by both
parties and are exercisable for a period of five years from the effective date
of this Agreement, subject to the terms and conditions contained herein.
EMPLOYER will grant EMPLOYEE piggyback registration rights for the shares
underlying the options and will seek to include the options in an existing
approved option benefits plan and register the underlying shares by way of a
Form S-8.
5. VACATION: Paid vacation (taken consecutively or in segments) in
accordance with the EMPLOYER's policies generally applicable to other executives
of the Company from time to time, taken at such times as is reasonably
consistent with proper performance by Employee of Employee's duties and
responsibilities hereunder.
6. DEDICATION OF TIME: EMPLOYEE shall devote all of his working time,
attention, knowledge and skill solely and exclusively to the business and
interest of the EMPLOYER. The EMPLOYEE expressly agrees that he will not, during
the term hereof or for one (1) year from the termination of this Agreement, be
involved directly or indirectly, in any form, fashion or manner, as a partner,
officer, director, stockholder (owning in excess of 4.9%), advisor, consultant
or employee in any other business similar to or in any way competing with the
business of the EMPLOYER. Nothing herein contained shall, however, limit the
rights of the EMPLOYEE to own up to 5% of the capital stock or other securities
of any corporation, whose stock or securities are publicly owned or traded
regularly on a public exchange or in the over-the-counter market, or to prevent
the EMPLOYEE from investing financially in, or limiting the EMPLOYEE's rights to
invest financially in, other businesses not allied with or competing with the
business of the EMPLOYER, as long as EMPLOYEE continues to devote all of his
working time, attention, knowledge and skill, solely and exclusively to the
business and interest of the EMPLOYER. EMPLOYEE will be permitted to serve on
the Board of Directors of publicly owned companies.
7. CONFIDENTIALITY: During the terms of EMPLOYEE's employment under this
Agreement, and for one (1) year thereafter, the EMPLOYEE specifically agrees
that he will not, at any time, in any fashion, form or manner, either directly
or indirectly, use, divulge, disclose or communicate to any person, firm or
corporation, in any manner whatsoever, any confidential or proprietary
information of any kind, nature or description concerning any matters affecting
or relating to the business of the EMPLOYER including, without limiting the
generality of the foregoing, any of its customers, its manner of operations, its
plans, its ideas, processes, programs, its intellectual property or other data,
information or materials of any kind, nature or description, without regard to
whether any or all of the foregoing matters shall be deemed confidential,
material or important. The parties hereto stipulate that, as between them, the
same are important, material, confidential and gravely affect the effective and
successful conduct of the business of the EMPLOYER and its goodwill, and that
any breach of
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the terms of this Paragraph is a material breach thereof, except where the
EMPLOYEE shall be acting on behalf of the EMPLOYER. EMPLOYEE understands and
agrees that, in the event that EMPLOYEE violates the terms and conditions, as
stated in this Paragraph, that he will be subject to an injunction and damages,
and understands and agrees that EMPLOYER's remedy to prevent further or
continued damages will include a petition for injunctive relief. EMPLOYEE
expressly acknowledges that the restrictions contained in this Paragraph are
reasonable and are properly required for the adequate protection of the
EMPLOYER's interests.
EMPLOYEE further understands and agrees that EMPLOYER, in entering
into this Agreement, is relying upon EMPLOYEE's representation and warranty that
all trade secrets and other proprietary information of EMPLOYER will be kept
strictly confidential by EMPLOYEE and not utilized by EMPLOYEE in any manner
whatsoever other than on EMPLOYER's behalf during the course of EMPLOYEE's
employment with EMPLOYER.
8. NON-COMPETITION: EMPLOYEE agrees that, during the term of this
Agreement and for one (1) year after termination hereof, he shall not, for
himself or any third party, directly or indirectly, divert or attempt to divert
from the EMPLOYER or its subsidiaries or affiliates any business of any kind in
which it is engaged or employed, or solicit for employment, any person employed
by the EMPLOYER or by any of its subsidiaries or affiliates, during the period
of such person's employment. EMPLOYEE expressly acknowledges that the
restrictions contained in this paragraph are reasonable and are properly
required for the adequate protection of the EMPLOYER's interests.
9. EARLY TERMINATION: It is expressly understood and agreed that the terms
of this Agreement, may be terminated by the EMPLOYER prior to October 14, 2004,
upon the occurrence of any of the following events:
(a) Automatically and without notice upon the death of the EMPLOYEE;
it is also understood that EMPLOYEE will be entitled to three (3) months' salary
which will be payable to his estate;
(b) Persistent absenteeism on the part of the EMPLOYEE, which in the
reasonable judgment of the Board of Directors of the Company is having or will
have a material adverse effect on the performance of the EMPLOYEE's duties under
this Agreement;
(c) Deliberate and willful failure to perform normal services and
duties required of EMPLOYEE pursuant to this Agreement, except if the
performance of such duties or services would result in a violation of EMPLOYEE's
fiduciary responsibility to the Company and its shareholders or is in a
violation of applicable laws;
(d) Any willful act or failure to act, which in the reasonable
opinion of the Board, is in bad faith and to the material detriment of the
EMPLOYER;
(e) Conviction of a felony involving moral turpitude or dishonesty;
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(f) Total or partial disability of the EMPLOYEE for a period of
three (3) consecutive months or ninety (90) days, in the aggregate, so that he
is prevented from satisfactorily performing a substantial part of his duties; it
being understood that that EMPLOYEE will be entitled to three (3) months' salary
upon such termination; it being further understood and agreed that any proceeds
received by EMPLOYEE from a policy of disability benefits insurance or any other
proceeds received from any Federal, State or Municipal agency of government will
be credited to the amount of compensation paid to EMPLOYEE by EMPLOYER; and
(g) Fraudulent misconduct of the EMPLOYEE.
In the event of early termination for any reason stated in paragraphs 9 (a),
(b), (c), (d), (e), (f), or (g) all vested options will lapse immediately and be
null and void.
The Agreement shall not be terminated by any:
(x) Merger or consolidation, where the Company is not the
consolidating or surviving; or
(y) Transfer of all or a substantial majority of the assets of
the Company;
(z) Acquisition or control of fifty percent (50%) or more of
the Company's issued and voting equity share capital by any party, or by parties
acting in concert or under common control.
In the event of any merger or consolidation or transfer of
all, or a substantial majority, of the assets of the Company or acquisition or
control of fifty percent (50%) (or an amount of stock ownership that has the
ability to elect the Board of Directors of EMPLOYER) or more of the Company's
issued and voting equity share capital by any party or by parties acting in
concert or under common control, the surviving or resulting entity or the
transferee or transferees of the Company's assets or its issued and voting
equity share capital, shall be bound by, and shall have the benefit of, the
provision of this Agreement, and the Company shall endeavor to take all actions
necessary to ensure that such entity or transferee or transferees shall be bound
by the provisions of the Agreement. Moreover, in the event of such merger or
consolidation, or transfer of all or a substantial majority of the assets of the
Company or acquisition of the Company of the Company's issued and voting equity
share capital as aforesaid, the EMPLOYEE may, at his option, at any time,
continue his employment under the terms of this Agreement, or upon giving not
less than thirty (30) days notice at any time, by registered mail, to the
registered office of the Company, requiring the Company to effect full
settlement of all the EMPLOYEE's entitlements under the terms of this Agreement,
which settlement shall also include the payment of EMPLOYEE's remuneration for
the full term of the Agreement.
In the event EMPLOYEE terminates this Agreement prior to the
end of its term, all options will lapse immediately and be null and void.
10. BENEFITS: EMPLOYER agrees that EMPLOYEE will be entitled, during the
term, to all fringe benefits in effect for executive officers of the EMPLOYER,
such as
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no-contribution medical insurance, housing, meal and car allowances
11. SEVERANCE: In the event this Agreement is terminated by EMPLOYER prior
to the end of its term for any reason other than those set forth in paragraphs
9(a) through 9(g) herein, then in that event EMPLOYEE will be entitled to six
(6) months compensation payable in a gross amount over a six (6) month period.
If EMPLOYEE is terminated for any reason set forth in paragraphs
9(a) through 9(g), then EMPLOYEE will not be entitled to any form of severance
except as otherwise provided in paragraphs 9(a) and (f) above.
12. NO WAIVER: The parties hereto do further agree that no waiver or
modification of this Agreement or of any covenant, condition or limitation
herein contained, shall be valid, unless in writing and duly executed by the
party to be charged therewith, and that no evidence of any proceedings or
litigation between either of the parties arising out of or affecting this
Agreement or the rights and obligations of any party hereunder shall be valid
and binding unless such waiver or modification is in writing, duly executed, and
the parties further agree that the provisions of this paragraph may not be
waived except as herein set forth.
13. GOVERNING LAW: The parties hereto agree that it is their intention and
covenant that this Agreement and the performance hereunder shall be construed in
accordance with and under the laws of the State of New York, and that the terms
hereof may be enforced in any court of competent jurisdiction in an action for
specific performance which may be instituted under this Agreement, and that in
the event of any dispute or claim under the within Agreement, that same will be
resolved in the Courts of the State of New York.
14. OPPORTUNITY TO REVIEW: EMPLOYEE and EMPLOYER warrant and represent
that each has had sufficient and adequate opportunity to consult with
independent counsel concerning the within Agreement, and has requested that the
firm of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ prepare the within Agreement, and is aware that said
firm is relying upon the within representation prior to the parties entering
into the Agreement herein.
15. NOTICES: All notices required or permitted to be given by either party
hereunder shall be in writing and mailed by registered mail, return receipt
requested and by regular mail to the other party addressed as follows:
If to EMPLOYER at:
BrandPartners Group, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
If to EMPLOYEE at:
▇▇▇▇▇ ▇▇▇▇▇▇
c/o BrandPartners Group, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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Any notice mailed, as provided above, shall be deemed completed on the date of
receipt, or five (5) days from the postmark on said postal receipt.
16. CAPTION HEADINGS: Caption headings in this Agreement are provided
merely for convenience and are of no force and effect.
17. ENTIRE AGREEMENT: This Agreement contains the total and entire
Agreement between the parties and shall, as of the effective date hereof,
supersede any and all other Agreements between the parties. The parties
acknowledge and agree that neither of them has made any representations that are
not specifically set forth herein, and each of the parties hereto acknowledges
that he or it has relied upon his or its own judgment in entering into same, and
that the within Agreement has been approved by the EMPLOYERS compensation
committee and its board of directors.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
the day, month and year first above written.
BRANDPARTNERS GROUP, INC.
By: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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