Exhibit 10.1
SECOND AMENDMENT AGREEMENT
SECOND AMENDMENT AGREEMENT, dated September 15, 2003, by and among
BRANDPARTNERS GROUP, INC., a Delaware corporation with a principal place of
business at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx ("BPTR"), XXXXXX
BROTHERS, INC., a New Hampshire corporation with a principal place of business
at Rochester, New Hampshire (the "Company"); XXXXX X. XXXXXX of Rye, New
Hampshire, individually and XXXXXX X. XXXXXX of Stratham, New Hampshire,
individually (collectively, the "Employees" or the "Consultants," and
individually an "Employee" or a "Consultant"); Xxxxx X. Xxxxxx as trustee of the
XXXXX X. XXXXXX TRUST - 1995 and Xxxxxx X. Xxxxxx as trustee of THE XXXXXX X.
XXXXXX REVOCABLE TRUST OF 1998 (collectively the "Holders" and individually a
"Holder"), and Xxxxx Peabody LLP (the "Escrow Agent").
WHEREAS, BPTR, the Company and each of the Holders and Employees entered
into an Agreement, dated May 15, 2003, as amended by Amendment Agreement dated
June 16, 2003, (the "Original Agreement"), providing for the amendment of
certain terms and conditions of the Employment Agreements, SPA, Term Notes,
24-Month Notes and Earn Out (as each of such terms is defined in the Original
Agreement) under certain conditions;
WHEREAS, in connection with the Original Agreement, BPTR, the Company,
each of the Holders and Employees and the Escrow Agent have entered into an
Escrow Agreement, dated as of May 15, 2003, as amended by Amendment Agreement
dated June 16, 2003, (the "Original Escrow Agreement"), pursuant to which the
Escrow Agent agreed to serve as escrow agent and hold the Escrowed Property (as
such term is defined in the Original Escrow Agreement) in accordance with the
terms and conditions set forth therein; and
WHEREAS, BPTR, the Company and each of the Holders and Employees now wish
to extend the effectiveness of the Original Agreement and to amend certain terms
contained therein and in the Original Escrow Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Definition of Terms. Terms not otherwise defined herein shall have the
meanings ascribed to them in the Original Agreement.
2. Effectiveness of Second Extension. The parties hereby agree that,
effective upon the payment of the Second Extension Payments to the Holders, and
without further action by any of the parties, the Second Extension shall be
activated and fully effective.
3. Legal Fees. Contemporaneously with the payment of the Second Extension
Payments to the Holders, BPTR will deliver or cause to be delivered to McLane,
Graf, Xxxxxxxxx & Xxxxxxxxx a payment of up to an amount of $1,800.00, such
payment representing the payment in full of the unpaid balance of the legal fees
and expenses incurred by the Holders and Employees through the date hereof in
connection with, relating to or arising out of the negotiation, preparation,
execution and delivery and performance of the Original Agreement and the
consummation of the transactions contemplated thereby, as set forth in Section
10.5 of the Original Agreement.
4. Option for Third Extension. The parties hereby agree that BPTR shall
have the right, at its option and without further action on the part of the
Holders, to further extend the Second Extension from October 31, 2003 until
November 30, 2003 (the "Third Extension"), provided that (i) BPTR shall give the
Holders, with a copy to the Escrow Agent, written notice of its intent to
exercise its right to the Second Extension on or prior to October 15, 2003, (ii)
BPTR shall certify in such written notice that it has received a letter of
intent which provides for payment in full of the Note Payments and does not
directly prejudice or otherwise affect the Holders'or the Employees' rights
under the Original Agreement, as amended, and (iii) BPTR shall deliver to each
of the Holders contemporaneously with the delivery of such notice an additional,
non-refundable payment in the amount of $5,000 (the "Third Extension Payments").
In the event that BPTR elects to activate the Third Extension as set forth
above, the date "October 31, 2003" as it appears in Sections 1.1, 10.5 and 10.8
of the Original Agreement, as amended, and Section 3 of the Original Escrow
Agreement, as amended, shall be deemed deleted and the date "November 30, 2003"
deemed inserted in place thereof without further action. In addition, in the
event that the Third Extension is activated by BPTR, the maturity date of each
of the 24-Month Notes shall be extended until November 30, 2003. The parties
acknowledge and agree that the Third Extension Payments constitute consideration
for granting the Third Extension as described above, and shall not be applied
to, set off against, or in any manner result in any reduction of any other
payment obligations pursuant to the 24-Month Notes, the Term Notes, or the
Original Agreement, including, without limitation, the Note Payments.
5. Term Sheet; No Required Consent. BPTR and the Company represent to the
Holders and Employees that (i) BPTR has received a term sheet which contemplates
the payment in full of the Note Payments, and (ii) the execution, delivery and
performance of this Second Amendment Agreement by BPTR and the Company,
including without limitation the payment of the Second Extension Payments and,
if applicable, the Third Extension Payments, does not require the consent of
Fleet Capital Corporation.
6. Full Force and Effect. Except as otherwise amended hereby, the Original
Agreement and the Original Escrow Agreement shall remain in full force and
effect.
7. Modification; Waiver; Severability; Counterparts; Facsimile Execution.
No modification or termination of this Second Amendment Agreement shall be valid
unless such modification or termination is in writing and signed by each of the
parties hereto. No waiver of any provision of this Second Amendment Agreement
shall be valid unless
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in writing and signed by the person or party against whom charged. The
invalidity or unenforceability of any particular provision of this Second
Amendment Agreement shall not affect the other provisions of this Second
Amendment Agreement, and this Second Amendment Agreement shall be construed as
if the invalid or unenforceable provision was omitted. This Second Amendment
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 Second Amendment Agreement.
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IN WITNESS WHEREOF, the parties hereto have set their hands, duly
authorized where applicable, as of the date and year first above written.
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
---------------------------------
XXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxx
---------------------------------
THE XXXXXX X. XXXXXX REVOCABLE TRUST OF 1998
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Trustee
XXXXX X. XXXXXX TRUST - 1995
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Trustee
BRANDPARTNERS GROUP, INC.
By: /s/ Xxxxxx Xxxx
----------------------------
Name: Xxxxxx Xxxx
Title: Chief Financial Officer
XXXXXX BROTHERS, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Operating Officer
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Accepted and Agreed as to
Sections 2 and 4 above:
XXXXX XXXXXXX LLP, as Escrow Agent
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Partner
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