Exhibit 1.4
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December 28, 2004
UTIX Group, Inc.
000 Xxxxxxxxx Xxxxxx
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Attn: Xxxxxxx Xxxx, President
Gentlemen:
Reference is made to the letter agreement, dated August 9, 2004 (the "ENGAGEMENT
LETTER") between Utix Group, Inc., a Delaware corporation (the "COMPANY") to
engage SD Partners, LLC ("SD"). Unless otherwise defined herein, all capitalized
terms used in this letter shall have the same meaning as is set forth in the
Engagement Letter.
Each of the Company and SD do hereby mutually agree to terminate the Engagement
Letter and all transactions contemplated thereby, effective as of November 30,
2004; provided, that in connection with such termination, each of the Company
and SD do hereby covenant and agree, as follows:
1. The Company shall issue and sell to SD, for $1,125, a total of
1,125,000 shares of the Company's Common Stock, and shall deliver to SD, against
payment of $1,125, a certificate for 1,125,000 shares of Common Stock registered
in the name of SD or its nominees (the "SD COMMON STOCK") within three (3)
Business Days from the date of execution of this letter by SD.
2. The Company shall issue additional five year warrants (the "SD
WARRANTS") entitling SD to purchase up to 1,125,000 shares of Common Stock at an
exercise price of $0.48 per share. The SD Warrant shall contain "cashless
exercise" provisions, shall be immediately exercisable by the holders, and shall
be substantially identical to the "Additional Warrants" purchased by certain
Purchasers pursuant to the Amended and Restated Securities Purchase Agreement,
dated as of November 30, 2004 between the Company and such Purchasers.
3. The shares of SD Common Stock and the Common Stock underlying the SD
Warrants shall be registered by the Company for potential future issuance in the
Form SB-2 registration statement (other than its Form SB-2 registration
statement declared effective September 8, 2004) that the Company shall file with
the Securities and Exchange Commission on or before January 15, 2005, for the
benefit of other selling security holders.
4. The Company shall pay to SD a termination fee of $125,000, receipt of
which is hereby acknowledged by SD.
5. Except as contemplated by the terms hereof or as required by applicable
law, regulation or legal process, SD shall keep confidential all material
non-public information provided to it by the Company, and shall not disclose
such information to any third party without the Company's consent, other than to
such of its employees and advisors as SD determines have a
00 Xxxxxxxx Xxxxx Xxxxxxxx, XX 00000 Tel: 000 000 0000
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need to know. The Company agrees that any information or advice rendered by SD
or its representatives in connection with this Agreement is solely for the
confidential use of the Company and, except as otherwise required by applicable
law, regulation or legal process, the Company will not and will not permit any
third party to disclose or otherwise refer to such advice or information in any
manner without SD's prior written consent.
6. This agreement shall be governed by and construed in accordance with
the laws of the State of New York, regardless of the laws that might otherwise
govern under applicable principles of conflicts of law thereof. The parties
hereby expressly and irrevocably agree and consent that any action, suit or
proceeding arising out of or relating to this Agreement and the transactions
contemplated hereby may be instituted in any state or federal court sitting in
the State of New York and, by execution of this Agreement, the parties expressly
waive any objection which they may have now or hereafter to the venue or
jurisdiction of any such action, suit or proceeding and irrevocably submit to
the jurisdiction of any such court in any such action, suit or proceeding. The
Company and SD agree to waive trial by jury in any action, proceeding or
counterclaim brought by or on behalf of either party with respect to any matter
whatsoever.
7. This agreement incorporates the entire understanding of the parties
with respect to the subject matter hereof and supersedes all previous agreements
should they exist with respect thereto, including, without limitation, the
Engagement Agreement, which is hereby terminated in its entirety. This agreement
(a) may not be amended or modified except in writing executed by the Company and
SD, (b) shall be binding upon and inure to the benefit of the Company and SD,
and their respective successors and assigns and (c) may be executed in two or
more counterparts (including by facsimile), each of which shall be deemed to be
an original, but all of which shall constitute one and the same agreement.
Please confirm that the foregoing is in accordance with your understanding of
our agreement by signing and returning to us a copy of this letter.
Very truly yours,
SD PARTNERS, LLC UTIX GROUP, INC.
Date: Date:
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By: By:
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President and CEO
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