Exhibit 10.4
EXECUTION COPY
AGREEMENT
THIS AGREEMENT (the "Agreement") is made this 15th day of May, 2003, by
and among BRANDPARTNERS GROUP, INC., a Delaware corporation with a principal
place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ("BPTR"),
▇▇▇▇▇▇ BROTHERS, INC., a New Hampshire corporation with a principal place of
business at Rochester, New Hampshire (the "Company"); ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ of Rye,
New Hampshire, individually and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ of Stratham, New Hampshire,
individually (collectively, the "Employees" or the "Consultants," and
individually an "Employee" or a "Consultant"); and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as trustee of
the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ TRUST - 1995 and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as trustee of THE ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ REVOCABLE TRUST OF 1998 (collectively the "Holders" and individually a
"Holder").
WHEREAS, each of the Employees, respectively, and the Company are parties
to an Employment Agreement dated January 11, 2001, as amended ("Employment
Agreements");
WHEREAS, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, individually and as trustee of the ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ Trust - 1995, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, individually and as trustee of The ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ Revocable Trust of 1998, and Financial Performance Corporation n/k/a
BrandPartners Group, Inc. entered into a certain Stock Purchase Agreement dated
January 11, 2001, as amended ("SPA");
WHEREAS, BPTR issued to each of the Holders a term note dated January 11,
2001, as amended, in the original principal amount of Three Million Seven
Hundred Fifty Thousand Dollars ($3,750,000) pursuant to the SPA (individually, a
"Term Note" and collectively, the "Term Notes" as more specifically defined in
the SPA);
WHEREAS, BPTR issued to each of the Holders a term note dated January 11,
2001, as amended, in the original principal amount of One Million Dollars
($1,000,000) pursuant to the SPA (individually, a "24-Month Note" and
collectively the "24-Month Notes" as more specifically defined in the SPA);
WHEREAS, pursuant to, and in accordance with the terms and conditions of,
the SPA, BPTR has agreed to pay to each of the Holders certain Earn-Out (as that
term is defined in the SPA) obligations;
WHEREAS, the Company and each of the Employees desire to supercede each of
the Employment Agreements in their entirety on the terms and conditions set
forth herein;
WHEREAS, BPTR and each of the Holders desires to amend the obligations
owed to each of the Holders by BPTR pursuant to the SPA on the terms and
conditions set forth herein; and
WHEREAS, BPTR, the Company and each of the Holders and Employees wish to
settle all their respective claims against each other.
NOW, THEREFORE, in consideration of the mutual promises set forth herein,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. Effectiveness of Certain Provisions.
1.1 Sections 2 through 9 of this Agreement shall become effective
immediately upon full and final payment, in cash or other immediately available
funds, by or on behalf of BPTR, to the Holders, of the full amount of the
principal balance due under the respective 24-Month Notes, to be made at or
contemporaneously with the closing of any transaction (a "Transaction") not in
the ordinary course of business (including, without limitation, a debt or equity
investment in, or a refinancing of all or a portion of the indebtedness of,
either the Company or BPTR), but in any event not later than September 1, 2003
(individually a "Note Payment" and collectively the "Note Payments"), such
payments to be applied in complete satisfaction of the 24-Month Notes as set
forth in Section 8.1.2 below. Upon receipt by the Holders of the Note Payments,
in cash or other immediately available funds, said Sections 2 through 9 of this
Agreement shall become effective without further notice to or consent or other
action of any party hereto (the "Effectiveness"), and the escrow agent ("Escrow
Agent") under that certain Escrow Agreement among BPTR, the Company, the Holders
and the Escrow Agent, dated as of even date herewith (the "Escrow Agreement"),
shall release the Term Notes, the 24-Month Notes and the releases to the
appropriate parties as described in Sections 8 and 9 below. In the event that
the Note Payments are not made on or before September 1, 2003, the Escrow Agent
shall promptly return the Term Notes and the 24-Month Notes to the respective
Holders and shall ▇▇▇▇ the releases "cancelled" and return the releases to the
appropriate parties, all no later than September 3, 2003.
2. Employment.
2.1 Upon the Effectiveness, if any, the Employment Agreements shall be
deemed terminated in their entirety without further obligation on the part of
the Company or the Employees thereunder for periods following the Effectiveness.
2.2 Upon the Effectiveness, the Employees shall, subject to earlier
termination pursuant to Section 3 below, be employed as salesmen by the Company
until December 31, 2003 (the "Employment Term"). The duties of the Employees
shall be to support the generation of large sales opportunities and support
national and regional accounts which the parties acknowledge and agree shall
require two days per week.
2
2.3 During the Employment Term, in consideration of the performance by
each of the Employees of the services provided for herein and their observance
of the covenants contained herein, the Company shall pay each Employee a
bi-weekly salary of $2,884.62.
3. Termination of Employment.
3.1 Subject to the other terms and conditions hereof, the Employee's
employment under this Agreement shall terminate on the earlier of (i) December
31, 2003 or (ii) any of the following events:
3.1.1 Upon the death of the Employee, as follows: If Employee shall
die during the Employment Term, this Agreement shall terminate on the date
of death and his Holder shall be entitled to receive his base salary at
the rate provided in Section 2.3 for the lesser of (i) 90 days or (ii) the
remainder of the Employment Term, plus reimbursement of all expenses due
to the Employee.
3.1.2 For Cause, as follows: The Company may terminate the
Employee's employment for Cause, upon written notice to the Employee. As
used in this Agreement, "Cause" shall mean (A) a conviction or plea of
guilty or nolo contendere to a felony (or indictable offense) or a
misdemeanor (or summary conviction offense) involving moral turpitude, or
(B) any act or omission of the Employee which in the view of the Company
(i) constitutes a material breach by the Employee of this Agreement, or
(ii) is a grossly negligent or willful violation of corporate policy, or
(iii) constitutes a material breach of the Employee's fiduciary duties, or
(iv) is a statement or act by the Employee which violates the Company's
personnel policies then in effect or which reasonably might expose the
Company to any claim or legal action, or (v) is an act or failure to
perform any act (other than in good faith) to the detriment of the
business of the Company. In the event that the Company elects to terminate
this Agreement in accordance with this Section 3.1.2, the Company shall
first provide the Employee with written notice stating with reasonably
sufficient specificity the reasons for concluding that it has Cause to
terminate this Agreement pursuant to this Section 3.1.2. Upon receipt of
the Company's notice, the Employee shall have ten (10) days to respond to
the Company in writing that he reasonably believes that the acts or
omissions can be cured, that he has commenced to cure such failure and
that such cure can be completed within forty-five (45) days of such
written notice. In such event, the Employee shall have the right to cure
the circumstances giving rise to the Company's reasons for terminating
this Agreement within such forty-five (45) day period, if such
circumstances are curable. In the event the Employee is terminated
pursuant to the terms of this Section 3.1.2, the Employee shall be
entitled to receive his base salary provided in Section 2.3 at the rate
provided in Section 2.3 only through the date of termination.
3.1.3 Without Cause, as follows: The Company may terminate the
Employee's employment without Cause, upon five (5) days written notice to
the
3
Employee. In such event, the Company shall pay to the Employee, on the
date of such termination, an amount equal to the base salary remaining for
the Employment Term.
3.1.4 For Good Reason, as follows: The Employee may terminate his
employment for Good Reason (as defined below), upon thirty (30) days
written notice to the Company. As used in this Agreement, "Good Reason"
shall mean the Employee's resignation due to, in the Employee's view, a
material breach of this Agreement by the Company and the failure of the
Company to cure such breach within forty-five (45) days of receipt by the
Company of written notification from the Employee of such breach. Such
written notification shall state with reasonably sufficient specificity
the reasons for concluding that the Employee has Good Reason to terminate
this Agreement. In the event of such resignation, the Employee shall be
entitled to receive, through the balance of the Employment Term as if no
resignation has occurred, his base salary at the rate provided in Section
2.3.
3.1.5 Without Good Reason, as follows: The Employee may terminate
his employment without Good Reason, upon ten (10) days prior written
notice to the Company. Upon such termination, the Employee shall be
entitled to receive his base salary at the rate provided in Section 2.3
through the date of termination.
4. Health Benefits.
4.1 During the Employment Term and the Consulting Term the Company shall
provide each of the Employees and their respective spouses with comprehensive
health benefits. Upon termination of the Employment Term or the Consulting Term
for any reason, the Company shall continue to provide to each Employee and his
spouse health insurance coverage at the same coverage level provided as of the
date hereof, until such time as such Employee or his spouse, as appropriate,
becomes eligible for Medicare coverage (the "Post-Term Heath Benefits").
5. Consulting.
5.1 Following the termination of the Employment Term and continuing until
January 1, 2005 unless earlier terminated as provided in Section 5.4 below (the
"Consulting Term"), at the request and direction of the Company's Chief
Executive Officer and/or Chief Operating Officer, and subject to each Employee's
schedule, the Employees shall provide consulting services to the Company in the
area of national and regional account sales (during the Consulting Term, each of
the Employees shall be known as a "Consultant"). Work is to be performed at such
location as the Company may reasonably designate. The Company shall provide
reasonable notice of assignments which shall in any event not be less than one
week's notice.
5.2 During the Consulting Term, the Company agrees to pay each Consultant
the rate of $1,000.00 per day, or any portion thereof, for services rendered in
his capacity
4
as a consultant for the Company, including travel time in connection with
providing such services. Consulting fees shall be paid upon presentation of an
invoice from the Consultant.
5.3 During the Consulting Term, the Company agrees to reimburse each
Consultant the cost of reasonable expenses incurred in the performance of his
consulting services upon presentation of expense statements or vouchers or such
other supporting information as the Company may reasonably require of the
Consultant.
5.4 Either party may terminate the consulting engagement upon ninety (90)
days written notice to the other parties. In the event that one of the
Consultants terminates his rights and obligations pursuant to this Section 5,
then the rights and obligations of the non-terminating Consultant shall continue
unaffected by such termination.
6. Restrictions.
6.1 Confidentiality. The Employee acknowledges that, in the course of his
employment and his engagement as a consultant, he has had and will have access
to and has become and will become aware of and informed of confidential and/or
proprietary information that is a competitive asset of the Company, its parents,
subsidiaries and affiliates, including, without limitation the terms of
agreements or arrangements between the Company and third parties, marketing
strategies, marketing methods, development ideas and strategies, personnel
training and development programs, financial results, strategic plans and
demographic analyses, trade secrets, business plans, product designs,
statistical data, and any non-public information concerning the Company, its
employees, suppliers, or customers (collectively, "Confidential Information").
The Employee will keep all Confidential Information in strict confidence while
employed or engaged as a consultant by the Company and thereafter and will not
directly or indirectly make known, divulge, reveal, furnish, make available or
use any Confidential Information (except in good faith in the course of his
regular authorized duties on behalf of the Company and for the benefit of the
Company). The Employee's obligations of confidentiality hereunder will survive
the termination of this Agreement, until and unless any such Confidential
Information becomes, through no fault of the Employee, generally known to the
public or the Employee is required by law to make disclosure (after giving the
Company notice and an opportunity to contest such requirement). The Employee's
obligations under this Section 6.1 are in addition to, and not in limitation or
preemption of, all other obligations of confidentiality which the Employee may
have to the Company under general legal and/or equitable principles.
6.2 Non-Solicitation. During the Employment Term and the Consulting Term
and ending on the later to occur of (i) two (2) years after expiration or
termination of the Employment Term or (ii) two (2) years after the expiration or
termination of the Consulting Term, the Employee shall not, without the prior
written consent of the Company, directly or indirectly, (i) solicit or encourage
any employee of the Company to leave the employ of the Company, (ii) hire any
employee who has left the employ of the
5
Company within one (1) year of the termination of such employee's employment
with the Company, or (iii) solicit or induce any customer, client or account of
the Company, or encourage any customer, client, account, supplier or other party
conducting business with the Company to change or alter the conduct of such
business in any manner which adversely effects the Company or its business or
operations.
6.3 Non-Compete. During the Employment Term and the Consulting Term and
for a period ending on the later to occur of (i) two (2) years after expiration
or termination of the Employment Term or (ii) two (2) years after the expiration
or termination of the Consulting Term, the Employee agrees that he will not, in
any manner, be engaged directly or indirectly, within the United States of
America, its territories and possessions (or for such lesser period of time or
for such lesser geographical areas as may be determined by a court of law or
equity to be a reasonable limitation on such competitive activities) as an
employee, partner, officer, director, representative, consultant, agent,
stockholder, member or otherwise, in competition with the business which the
Company or any of its affiliates or subsidiaries are conducting, or are planning
to conduct, at the time of the expiration or termination of the Employment Term
or the Consulting Term; provided, however, nothing shall prohibit the Employee
from owning up to 5% of the outstanding securities of any such company, the
capital stock of which is publicly traded.
6.4 Non-disparagement. During the Employment Term and the Consulting Term
and thereafter, each Employee agrees not to take any action or make any
statement the effect of which would be, directly or indirectly, to impair the
goodwill of the Company, or any of its parents, subsidiaries or affiliates, or
the business reputation or good name of the Company, or any of its parents,
subsidiaries or affiliates, or to make any other statement which would be
otherwise detrimental to the interests of the Company, or any of its parents,
subsidiaries or affiliates, and the Company, together with its parents,
subsidiaries and affiliates, agrees not to take any action or make any statement
the effect of which would be, directly or indirectly, to impair the goodwill of
the Employees, or the business reputation or good name of the Employees, or to
make any other statement which would be otherwise detrimental to the interests
of the Employees.
6.5 Injunctive Relief. Since the Company and the Employees will be
irreparably damaged if the provisions of this Section 6 are not specifically
enforced, the such parties shall be entitled to an injunction or any other
appropriate decree of specific performance (without the necessity of posting any
bond or other security in connection therewith) restraining any violation or
nonfulfillment of the covenants under this Section 6 by the other party(ies).
Such remedies shall not be exclusive and shall be in addition to any other
remedy, at law or in equity, which the parties may have for any breach or
threatened breach of this Section 6 by the other party(ies).
7. Acknowledgment of Outstanding Balances.
7.1 The parties hereto hereby acknowledge and agree that the following
accurately reflects the principal balance of the designated obligations
(reflecting the
6
aggregate owed to the Holders) as of the date hereof, and that all payments in
respect of such obligations required or permitted to be made as of such date
have been made:
Term Notes (aggregate)
$7,500,000
24-Month Notes (aggregate)
$2,000,000
Earn-Out (aggregate)
$500,000
8. Settlement of Certain Obligations.
8.1 Upon the Effectiveness, the 24-Month Notes shall be deemed amended,
effective as of January 11, 2001, to reflect an interest rate of 5.75%, the
minimum applicable federal rate as of such date, and the following obligations
shall be deemed irrevocably settled and compromised as set forth below:
8.1.1 Term Notes. Each of the Term Notes, including outstanding
principal and accrued and unpaid interest, shall be forgiven and canceled,
and the Escrow Agent shall release the Term Notes to BPTR.
8.1.2 24-Month Notes. The outstanding principal of each of the
24-Month Notes shall be deemed paid and all the accrued interest shall be
deemed paid, and the Escrow Agent shall release the 24-Month Notes to
BPTR.
8.1.3 Earn-Out. The outstanding Earn-Out obligations, including
outstanding principal and accrued and unpaid interest, shall be deemed
forgiven and no further Earn-Out obligations shall accrue.
8.2 Upon the Effectiveness all of the parties' respective rights and
obligations under the SPA, the Term Notes, the 24-Month Notes and the Employment
Agreements shall be deemed terminated, except that the rights of the Holders
pursuant to Section 5.3 of the SPA shall survive the execution and delivery of
this Agreement and the closing of the transactions contemplated by this
Agreement.
7
9. Release.
9.1 Upon the Effectiveness, the parties' mutual general releases, in form
and substance as attached hereto as Exhibit A, shall be released by the Escrow
Agent to the respective beneficiaries thereunder.
10. Miscellaneous
10.1 Notice. All notices, requests, consents or other communications to be
sent or given under this Agreement shall be in writing and shall be delivered by
hand, overnight courier, certified mail or electronic facsimile, in each case
with written confirmation of receipt. Notice to any party shall be deemed
received on the day of delivery if delivered, with confirmation of receipt, by
electronic facsimile, by courier or by hand during normal business hours, and
the following day if delivered after normal business hours. Delivery of all
notices shall be made to the following persons at the address provided or such
other person or address as a party shall designate by written instrument
provided to the other parties:
If to the Employees/Consultants or the Holders:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
overnight delivery address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ V.A. ▇▇▇▇, Esq.
McLane, Graf, ▇▇▇▇▇▇▇▇▇ & Middleton
Professional Association
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
overnight delivery address:
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
8
If to BPTR or the Company:
BrandPartners Group, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
BrandPartners Group, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
10.2 Entire Agreement. This Agreement constitutes the entire Agreement
among the parties hereto with respect to the subject matter hereto and
supersedes all prior correspondence, conversations and negotiations.
10.3 Interpretation Guidelines. In this Agreement: the use of any gender
shall include all genders; the singular number shall include the plural and the
plural the singular as the context may require; whenever the context may
require, any pronouns used herein shall include the corresponding masculine,
feminine or neuter forms; the words "include," "including," and "such as" shall
each be construed as if followed by the phrases "without being limited to"; the
words "herein," "hereof," "hereunder" and words of similar import shall be
construed to refer to this Agreement as a whole and not to any particular
Section hereof unless expressly so stated; the section headings herein are for
convenience of reference only and shall not affect in any way the interpretation
of any of the provisions hereof.
10.4 No Presumption Against Drafter. Each of the parties hereto has
participated in the negotiation and drafting of this Agreement. In the event
that there arises any ambiguity or question of intent or interpretation with
respect to this Agreement, this Agreement shall be construed as if drafted
jointly by all of the parties hereto and no presumptions or burdens of proof
shall arise favoring any party by virtue of the authorship of any of the
provisions of this Agreement.
10.5 Expenses. BPTR and/or the Company shall bear the reasonable
attorneys' fees and expenses incurred by each party in connection with, relating
to or arising out of the negotiation, preparation, execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby. BPTR and the Company agree that such fees and expenses
shall be payable upon presentation of an invoice from the attorneys for the
Employees/Consultants and the Holders, but in any event not later than the
earlier of (i) September 1, 2003 or (ii) the closing of a Transaction.
9
10.6 Assignment. Neither party may assign or otherwise transfer this
Agreement or any of its rights or obligations hereunder to any third party
without the prior without the prior written consent of the other parties, except
that each of the Company and BPTR may assign this Agreement to a purchaser of
all or substantially all of its assets. If a party assigns this Agreement or any
right created hereby without such an exception and without the prior written
consent of the other parties, as the case may be, the assignment shall be null
and void.
10.7 Counterparts; Facsimile Execution. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original instrument
and all of which together shall constitute a single document. Signatures and
other longhand notations transmitted by electronic facsimile shall be deemed to
be original for purposes of the construction and enforcement of this Agreement.
10.8 Modification/Termination. No modification or termination of this
Agreement shall be valid unless such modification or termination is in writing
and signed by each of the parties hereto. If the Note Payments are not made on
or before the earlier of (i) September 1, 2003 or (ii) the closing of a
Transaction, this Agreement shall automatically terminate on such date, and the
parties' respective obligations under the Employment Agreements, the SPA
(including the Earn-Out), the Term Notes and the 24-Month Notes shall remain in
full force and effect.
10.9 Waiver. No waiver of any provision of this Agreement shall be valid
unless in writing and signed by the person or party against whom charged.
10.10 Severability. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions of this
Agreement, and this Agreement shall be construed as if the invalid or
unenforceable provision was omitted.
10.11 Governing Law and Jurisdiction. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New Hampshire,
without regard to conflict of laws principles. The parties, to the extent that
they can legally do so, hereby consent to service of process, and to be sued, in
the State of New Hampshire and consent to the jurisdiction of the courts of the
State of New Hampshire and the United States District Court for the District of
New Hampshire, as well as to the jurisdiction of all courts to which an appeal
may be taken from such courts, for the purpose of any suit, action or other
proceeding arising out of any of their obligations hereunder or with respect to
the transactions contemplated hereby, and expressly waive any and all objections
they may have to venue in such courts.
10
IN WITNESS WHEREOF, the parties hereto have set their hands, duly
authorized where applicable, as of the date and year first above written.
WITNESSES ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
THE ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ REVOCABLE TRUST OF 1998
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ TRUST - 1995
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
BRANDPARTNERS GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
▇▇▇▇▇▇ BROTHERS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Operating Officer
EXHIBIT A
MUTUAL RELEASE
THIS MUTUAL RELEASE (this "Release") is entered into and made effective as
of this 15th day of May, 2003, by and between ▇▇▇▇▇▇ Brothers, Inc., a New
Hampshire corporation with a principal place of business at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company") and BrandPartners Group, Inc., a
Delaware corporation with a principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("BPTR"), on the one hand (the Company and BPTR are
collectively referred to herein as the "Company Parties"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
of Stratham, New Hampshire, as an individual and as trustee of The ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ Revocable Trust of 1998 (the "TPW Trust"), the TPW Trust, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, of Rye, New Hampshire, as an individual and as trustee of the ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ Trust - 1995 (the "JMW Trust") and the JMW Trust on the other hand
(▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the TPW Trust, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and the JMW Trust are
collectively referred to herein as the "▇▇▇▇▇▇ Parties").
WHEREAS, this Release is being executed and delivered in connection with
that certain Agreement, dated as of even date herewith, by and among the Company
Parties and the ▇▇▇▇▇▇ Parties (the "Settlement Agreement"); and
WHEREAS, the parties hereto desire to set forth herein their agreements
and understandings with respect to the foregoing.
NOW, THEREFORE, for good and valuable consideration, the receipt, adequacy
and sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Release by Company Parties. Each of the Company Parties does hereby
fully and forever irrevocably waive, release and discharge each of the ▇▇▇▇▇▇
Parties, and his or its current and former officers and directors, trustees,
beneficiaries, employees, agents, attorneys, representatives, predecessors,
heirs, executors, administrators, successors and assigns (collectively, the
"▇▇▇▇▇▇ Released Parties") from any and all actions, causes of action, suits,
debts, covenants, contracts, controversies, agreements, promises, damages,
judgments, executions, claims and demands whatsoever, in law or equity
(including, without limitation, any and all rights to obtain indemnification,
contribution or other relief from or against any of the ▇▇▇▇▇▇ Released
Parties), which such Company Party or its successors, agents and/or assigns ever
had, now has or have or hereafter can, shall or may have for, upon or by reason
of any matter, cause or thing, known or unknown, mature or contingent, in any
way arising prior to and including the date hereof, except with respect to the
rights and obligations contained in the Settlement Agreement, which shall
continue in full force and effect.
2. Release by ▇▇▇▇▇▇ Parties. Each of the ▇▇▇▇▇▇ Parties does hereby fully
and forever irrevocably waive, release and discharge each of the Company
Parties, and its current and former officers and directors, employees, agents,
attorneys, representatives,
predecessors, successors and assigns (collectively, the "Company Released
Parties") from any and all actions, causes of action, suits, debts, covenants,
contracts, controversies, agreements, promises, damages, judgments, executions,
claims and demands whatsoever, in law or equity (including, without limitation,
any and all rights to obtain indemnification, contribution or other relief from
or against any of the Company Released Parties), which such ▇▇▇▇▇▇ Party or its
successors, agents and/or assigns ever had, now has or have or hereafter can,
shall or may have for, upon or by reason of any matter, cause or thing, known or
unknown, mature or contingent, in any way arising prior to and including the
date hereof, except with respect to the rights and obligations contained in the
Settlement Agreement, which shall continue in full force and effect.
2. Covenants Not to ▇▇▇. Each of the Company Parties hereby irrevocably
covenants to refrain from directly or indirectly asserting any claim or demand,
and from commencing, instituting, or causing to be commenced, any proceeding of
any kind against any ▇▇▇▇▇▇ Released Party, upon any matter released hereby.
Each of the ▇▇▇▇▇▇ Parties hereby irrevocably covenants to refrain from directly
or indirectly asserting any claim or demand, and from commencing, instituting,
or causing to be commenced, any proceeding of any kind against any Company
Released Party, upon any matter released hereby.
3. Severability. If any provision of this Release is held invalid or
unenforceable by any court of competent jurisdiction, the same shall be deemed
severed in such circumstances, and the other provisions of this Release will
remain in full force and effect. Any provision of this Release that shall be
held invalid or unenforceable only in part or degree will remain in full force
and effect to the extent not held invalid or unenforceable.
4. Amendments; Governing Law; Counterparts. This Release may not be
changed except in a writing signed by the person or persons against whose
interest such change shall operate. This Release shall be governed by and
construed under the laws of New Hampshire, without regard to principles of
conflicts of law. This Release 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.
2
IN WITNESS WHEREOF, the parties have executed and delivered this Release
effective as of the day and year set forth above.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
THE ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ REVOCABLE TRUST OF 1998
By: ________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ TRUST - 1995
By: ________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
BRANDPARTNERS GROUP, INC.
By: ________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
▇▇▇▇▇▇ BROTHERS, INC.
By: ________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Operating Officer
3