Exhibit 10.4
AGREEMENT
AGREEMENT, made this 13th day of August 2004 and effective as of the
16th day of August, 2004, between BRANDPARTNERS GROUP, INC., a Delaware
Corporation (the "Company"), located at 00 Xxxx Xxxxxx, Xxxxxxxxx, XX 00000, and
XXXXXXX X. XXXXXXX, ("Xxxxxxx").
W I T N E S S E T H:
WHEREAS, Xxxxxxx is serving as Non-Executive Chairman of the
Company and was elected as a director by shareholders; and
WHEREAS, Xxxxxxx has heretofore provided and is continuing to provide
certain consulting services to the Company and the Company is desirous of having
Xxxxxxx to continue to serve as a consultant to the Company.
NOW THEREFORE, IN CONSIDERATION OF THE PREMISES AND THE MUTUAL
PROMISES SET FORTH HEREIN, THE PARTIES HERETO AGREE AS FOLLOWS:
1. Xxxxxxx in addition to his duties as serving as Non-Executive
Chairman of the Company will provide advice and consultation on general
corporate matters, particularly related to shareholder and investor relations,
assisting the Company with respect to raising equity and other financing for the
Company, and other projects as may be assigned by the Company's Board of
Directors on an as needed basis for a term of three (3) years from the effective
date of this Agreement.
2. The Company shall be entitled to Xxxxxxx'x services at reasonable
times, and upon Xxxxxxx'x availability during times that do not conflict with
Xxxxxxx'x work on behalf of other public companies, so long as there is no
conflict of interest with the business of the Company, and to the extent
requested by, and subject to the direction of the Board of Directors. The
Company acknowledges that Xxxxxxx serves as Chairman of the Board of Calypte
Biomedical Corporation.
3. Xxxxxxx shall provide Company with periodic reports either verbal or
written, concerning the status of various projects assigned to Xxxxxxx.
4. Reasonable travel and other expenses necessarily incurred by Xxxxxxx
to render such services shall be reimbursed by the Company promptly upon receipt
of proper statements, including appropriate documentation, with regard to the
nature and amount of those expenses. Those statements shall be furnished to the
Company monthly at the end of each calendar month during the term hereof. The
Company shall pay expenses within five (5) business days of the receipt of a
request with appropriate documentation.
5. In consideration of the services performed by Xxxxxxx, Xxxxxxx will
continue to receive a monthly payment of $30,000. Xxxxxxx agrees that the within
payment is inclusive of director's fees except as may be approved by the board
and stockholders of the Company.
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6. In the event of any merger or consolidation, 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 Company) 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 change in composition of the Board of Directors without the
consent or agreement of the current director or directors as the case may be,
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, transfer of all or a
substantial majority of the assets of the Company, acquisition of the Company of
the Company's issued and voting equity share capital as aforesaid or a change in
composition of the Board of Directors without the consent or agreement of the
current director or directors as the case maybe so that a majority of the
Board's composition changes, Xxxxxxx may, at his option, continue his consulting
service 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, require the Company to effect full settlement of all Xxxxxxx'x
entitlements under the terms of this Agreement, which payment shall also include
the payment to Xxxxxxx for the full term of the Agreement, but in no event less
than six (6) months of monthly payments.
7. Except in cases where this Agreement is terminated due to Xxxxxxx
being convicted of a felony involving moral turpitude or has committed an act
determined to be in bad faith and to the detriment of the Company, Xxxxxxx will
be entitled to receive the full remuneration for the term of the agreement or
six (6) months compensation payable in a gross amount over the applicable
period, whichever is greater.
8. In the event Xxxxxxx should die during the term of this agreement or
becomes disabled so that he can not perform under this Agreement for a period
exceeding three (3) consecutive months, Xxxxxxx or his estate, as the case may
be, will be entitled to six (6) months of payments under this Agreement.
9. Neither this agreement nor any duties or obligations under this
agreement may be assigned by Xxxxxxx without the prior written consent of the
Company.
10. The within Agreement has been approved by the Board of the Company,
and Xxxxxxx, as Chairman of the Board, has not participated in any discussions
with the Board, and recused himself from any Board vote on the approval for said
Agreement.
11. Any notices to be given hereunder by either party to the other may
be given either by personal delivery, in writing or by mail, registered or
certified, postage prepaid with return receipt requested. Mailed notices shall
be addressed to the parties at the addressed appearing in the introductory
paragraph of this agreement, but each party may change the address by written
notice in accordance with the paragraph. Notices delivered personally will be
deemed communicated as of actual receipt; mailed notices will be deemed
communicated as of two days after mailing.
12. This agreement amends and extends the prior agreement between the
parties. Each party to this agreement acknowledges that no representations,
inducements, promises, or agreements, orally or otherwise, have been made by any
party, or anyone acting on behalf of any party, which are not embodied herein,
and that no other agreement, statement, or promise not contained in this
agreement shall be valid or binding. Any modification of this agreement will be
effective only if it is in writing signed by the party to be charged.
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13. This agreement will be governed by and construed in accordance with
the laws of the State of New York, without regard to its conflicts of laws
provisions; and the parties agree that the proper venue for the resolution of
any disputes hereunder shall be New York County, New York.
14. For purposes of this Agreement, Intellectual Property will mean (i)
works, ideas, discoveries, or inventions eligible for copyright, trademark,
patent or trade secret protection; and (ii) any applications for trademarks or
patents, issued trademarks or patents, or copyright registrations regarding such
items. Any items of Intellectual Property discovered or developed by Xxxxxxx
during the term of this Agreement will be the property of the Xxxxxxx, subject
to the irrevocable right and license of the Company to make, use or sell
products and services derived from or incorporating any such Intellectual
Property without payment of royalties. Such rights and license will be exclusive
during the term of this Agreement, and any extensions or renewals of it. After
termination of this Agreement, such rights and license will be nonexclusive, but
will remain royalty-free. Notwithstanding the preceding, the textual and/or
graphic content of materials created by Xxxxxxx under this Agreement (as opposed
to the form or format of such materials) will be, and hereby are, deemed to be
"works made for hire" and will be the exclusive property of the Company. Each
party agrees to execute such documents as may be necessary to perfect and
preserve the rights of either party with respect to such Intellectual Property.
15. The written, printed, graphic, or electronically recorded materials
furnished by the Company for use by Xxxxxxx are Proprietary Information and are
the property of the Company. Proprietary Information includes, but is not
limited to, product specifications and/or designs, pricing information, specific
customer requirements, customer and potential customer lists, and information on
Company's employees, agent, or divisions. Xxxxxxx shall maintain in confidence
and shall not, directly or indirectly, disclose or use, either during or after
the term of this agreement, any Proprietary Information, confidential
information, or know-how belonging to the Company, whether or not is in written
form, except to the extent necessary to perform services under this agreement.
On termination of Xxxxxxx'x services to the Company, or at the request of the
Company before termination, Xxxxxxx shall deliver to the Company all material in
Xxxxxxx'x possession relating to the Company's business.
16. The obligations regarding Proprietary Information extend to
information belonging to customers and suppliers of the Company about which
Xxxxxxx may have gained knowledge as a result of performing services hereunder.
17. Xxxxxxx shall not, during the term of this agreement and for a
period of one year immediately after the termination of this agreement, or any
extension of it, either directly or indirectly (a) for purposes competitive with
the products or services currently offered by the Company, call on, solicit, or
take away any of the Company's customers or potential customers about whom
Xxxxxxx became aware as a result of Xxxxxxx'x services to the Company hereunder,
either for Xxxxxxx or for any other person or entity, or (b) solicit or take
away or attempt to solicit or take away any of the Company's employees or
consultants either for Xxxxxxx or for any other person or entity.
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18. The Company will indemnify and hold harmless Xxxxxxx from any claims
or damages related to statements prepared by or made by Xxxxxxx that are either
approved in advance by the Company, the Board or entirely based on information
provided by the Company.
Company:
BRANDPARTNERS GROUP, INC.
By:
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XXXXXXX X. XXXXXXX
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