Exhibit 10.2
AGREEMENT
This AGREEMENT (the "Agreement") is made this 20th day of January, 2004,
by and among BRANDPARTNERS GROUP, INC., a Delaware corporation with a principal
place of business at 00 Xxxx 00xx Xxxxxx, Xxxx 0000, New York, New York
("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 "Consultants," and individually or a
"Consultant"); and 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").
WHEREAS, each of the Employees, respectively, and the Company are parties
to an Employment Agreement dated January 11, 2001, as amended ("Employment
Agreements");
WHEREAS, Xxxxx X. Xxxxxx, individually and as trustee of the Xxxxx X.
Xxxxxx Trust - 1995, Xxxxxx X. Xxxxxx, individually and as trustee of The Xxxxxx
X. Xxxxxx 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 Consultants entered into an agreement
dated May 15, 2003 superceding each of the Employment Agreements in their
entirety ("Settlement Agreement");
WHEREAS, the Company and each of the Consultants subsequently entered into
a first amendment to the Settlement Agreement dated June 16, 2003 ("First
Amendment"), a second Settlement Agreement dated September 30, 2003("Second
Amendment") with the Second Amendment providing for an option for a third
extension of the Settlement Agreement which was invoked by BPTR ("Third
Amendment") (collectively the "Amendments");
WHEREAS, the Third Amendment has expired and BPTR and each of the Holders
desire to enter into a new agreement to settle all claims against and
outstanding obligations owed to each of the Consultants and/or 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 Consultants 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. Settlement Consideration.
Upon the full and final payment of two million dollars ($2,000,000) (the
"Note Payments") (one million dollars ($1,000,000) of the Note Payments payable
to each of the Holders), in cash or other immediately available funds in
installments as set forth below, the settlement of certain obligations as set
forth in Section 7 below shall be effective. The Note Payments shall be made in
the ordinary course of business from funds received by BPTR by way of an equity
infusion in BPTR or other funds available for such purpose. It is expressly
understood that the Company and BPTR by way of their ninth amendment to the
credit facility with Fleet Capital Corporation ("Fleet") have obtained the
consent of Fleet to permit the Company and BPTR to satisfy the promissory notes
from funds received by way of equity infusions. The Note Payments shall be made
by BPTR as follows: (i) separate payments of $500,000 each in favor of The Xxxxx
X. Xxxxxx Trust-1995 and The Xxxxxx X. Xxxxxx Revocable Trust of 1998
contemporaneous with the execution of the Agreement; (ii) separate payments of
$250,000 each in favor of The Xxxxx X. Xxxxxx Trust-1995 and The Xxxxxx X.
Xxxxxx Revocable Trust of 1998 on or before April 15, 2004, subject to a five
day grace period, time being of the essence; and (iii) separate payments of
$250,000 each in favor of The Xxxxx X. Xxxxxx Trust-1995 and The Xxxxxx X.
Xxxxxx Revocable Trust of 1998 on or before July 15, 2004, subject to a five day
grace period, time being of the essence. Upon full and final payment of the Note
Payments, in cash or other immediately available funds, 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 releases to the appropriate parties as described
in Section 8 below. In the event that the Note Payments are not made when due,
subject to the applicable grace period, the Escrow Agent shall xxxx the releases
"cancelled" and promptly, and in any event not later than two (2) business days
following such payment due date, return the releases to the appropriate parties
and shall return the 24-Month Notes to the respective Holders (each of which
notes shall remain in full force and effect with any Note Payments that have
been made as of the date of such default to be deemed to have been applied to
accrued and unpaid interest prorata and then to principal on each of the new
subordinated promissory notes evidencing Note Payment obligations). In the event
that the Note Payments are made in full, the 24-Month Notes shall be discharged
and any and all Earn-Out obligations under the SPA shall be cancelled, forgiven
and satisfied in full.
2. Termination of Employment.
2.1 Contemporaneously with the execution of this Agreement, all Employment
Agreements previously entered into by and between the Company and/or BPTR with
Consultants are terminated with all obligations satisfied and no further
obligations on the part of either party except as expressly provided for in this
Agreement.
3. Consulting.
3.1 From commencement of this Agreement and continuing until January 1,
2005 unless earlier terminated as provided in Section 3.4 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 Consultant's schedule, the
Consultants shall provide consulting services to the Company in the area of
national and regional account sales. 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 two week's
notice.
3.2 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 as a consultant for the Company, including travel time in
connection with providing such services. Consulting fees shall be paid within
fifteen (15) days of presentation of an invoice from the Consultant.
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3.3 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.
3.4 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 3,
then the rights and obligations of the non-terminating Consultant shall continue
unaffected by such termination.
4. Health Benefits.
4.1 The Company shall continue during the Consulting Term to provide each
of the Consultants and their respective spouses with comprehensive health
benefits. Upon termination of the Consulting Term for any reason, the Company
shall continue to provide to each Consultant and his spouse comprehensive health
benefits at the same coverage level as provided to the respective Consultant as
of December 31, 2003, until such time as such Consultant or his spouse, as
appropriate, becomes eligible for Medicare coverage (the "Post-Term Heath
Benefits").
5. Restrictions.
5.1 Confidentiality. Each Consultant acknowledges that, in the course of
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 Consultant 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 Consultant'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 Consultant, generally known to the
public or the Consultant is required by law to make disclosure (after giving the
Company notice and an opportunity to contest such requirement). The Consultant's
obligations under this Section 5.1 are in addition to, and not in limitation or
preemption of, all other obligations of confidentiality which the Consultant may
have to the Company under general legal and/or equitable principles.
5.2 Non-Solicitation. During the Consulting Term and ending two (2) years
after the expiration or termination of the Consulting Term, the Consultant 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 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.
5.3 Non-Compete. During the Consulting Term and for a period ending two
(2) years after expiration or termination of the Consulting Term, the Consultant
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
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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 Consulting Term;
provided, however, nothing shall prohibit the Consultant from owning up to 4.9%
of the outstanding securities of any such company, the capital stock of which is
publicly traded.
5.4 Non-disparagement. During the Consulting Term and thereafter, (i) each
Consultant 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
(ii) 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 Consultants, or the
business reputation or good name of the Consultants, or to make any other
statement which would be otherwise detrimental to the interests of the
Consultants.
5.5 Injunctive Relief. Since the Company and the Consultants will be
irreparably damaged if the provisions of this Section 4 are not specifically
enforced, 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 5 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 5 by the other party(ies).
6. Acknowledgment of Outstanding Balances and Exchange.
6.1 The parties hereto hereby acknowledge that the following accurately
reflects the principal balance of the designated obligations (reflecting the
aggregate owed to the Consultants and/or 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
The parties hereto further agree that the Term Notes as reflected
above will be (i) amended, effective January 11, 2001, to reflect a fixed
interest rate of five and three quarters percent (5.75%), the minimum applicable
federal rate as of such date, and (ii) exchanged, cancelled and forgiven in
consideration of and concurrently with the execution of this Agreement, issuance
of Subordinated Promissory Notes for $1,000,000 each ($2,000,000 in the
aggregate) by BPTR in favor of Holders (in the form and substance attached
hereto as Exhibit B), and payment of the first installment pursuant to the
Subordinated Promissory Notes in the amount of $500,000 each ($1,000,000 in the
aggregate).
7. Settlement of Certain Obligations.
7.1 Upon the full and final payment of all Note Payments as outlined in
Section 1, the outstanding Earn-Out obligations shall be deemed to have never
been created.
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7.2 Upon the full and final payment of all Note Payments as outlined in
Section 1, except as expressly set forth herein, all of the parties' respective
rights, restrictions and obligations under the SPA shall be deemed terminated.
Notwithstanding the foregoing, the rights of the Consultants and/or the Holders
pursuant to Section 5.3 of the SPA shall survive the execution and delivery of
this Agreement, the closing of the transactions contemplated by this Agreement,
and the full and final payment of the Note Payments.
7.3 Upon the full and final payment of all Note Payments as outlined in
Section 1, the 24-Month Notes shall be cancelled and forgiven, and the Escrow
Agent shall release the 24-Month Notes to BPTR.
8. Release.
8.1 Upon the completion of all Note Payments as outlined in Section 1, the
parties' respective general releases, in form and substance as attached hereto
as Exhibit A, shall be released by the Escrow Agent to the respective
beneficiaries thereunder.
8.2 Notwithstanding anything to the contrary in this Agreement, in the
event the Holders at any time and at their sole option (to be exercised
collectively) direct the release and discharge of the 24-Month Notes from escrow
prior to completion of the Note Payments per the terms of this Agreement, the
general releases by BPTR and the Company in favor of the Consultants and Holders
held in escrow shall be immediately released from escrow and delivered to the
Consultants and the Holders. Such release of the 24-Month Notes by the Holders
prior to satisfaction of the Note Payments per the terms of this Agreement shall
not relieve BPTR or the Company of any obligation, including without limitation
any payment obligations, under this Agreement.
9. Representations and Warranties of BPTR and the Company.
BPTR and the Company each covenants, warrants and represents to the
Consultants and Holders as follows:
9.1 Corporate Organization; Good Standing. BPTR is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of New Hampshire. BPTR, the Company
and each of its respective subsidiaries has all requisite power and authority
and all necessary licenses and permits to own and operate its properties and to
carry on its business as now conducted and, as the case may be, to enter into
and perform its obligations under this Agreement, and the transactions
contemplated hereby.
9.2 Legal, Valid and Binding Obligations; Authorized. This Agreement and
any other documents executed by or on behalf of BPTR and/or the Company in
connection with the transactions contemplated hereby or thereby each constitutes
the legal, valid and binding obligation of BPTR and the Company, enforceable in
accordance with the respective terms hereof and thereof, except as the same may
be limited by bankruptcy, insolvency, reorganization or other similar laws
relating to or affecting the enforcement of creditors' rights generally and by
equitable principles. The execution, delivery and performance of this Agreement
and the other documents contemplated hereby by BPTR and/or the Company are
within the corporate powers of BPTR and the Company and have been duly
authorized by all necessary corporate action and do not require any stockholder
approval, or approval or consent of any trustee or holders of any indebtedness
or obligations of BPTR or the Company except such as have been duly obtained.
9.3 No Conflicts. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated by this Agreement conflicts or
will conflict with or results
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or will result in a breach of the terms, conditions or provisions of, or
constitute, or will on the due date of any installment of the Note Payments
constitute, a default under, the Certificate of Incorporation or the By-Laws of
BPTR or the Company or a material breach or violation of or default under or
grounds for termination of, or an event which with the lapse of time or notice
and the lapse of time could cause a default under or breach or violation of, or
grounds for termination of, any note, indenture, mortgage, license, title
retention agreement or any other agreement or instrument to which BPTR or the
Company, is a party or by which BPTR, the Company or any of their respective
assets is bound, or would result in the creation of any lien, charge or other
security interest or encumbrance upon any property or asset or right of BPTR or
the Company, or violate, require consent or filings under any existing law,
order, rule regulation, writ, injunction or decree of any union or any
government, governmental department, commission, board, bureau, agency, body or
court, domestic or foreign, having jurisdiction over BPTR, the Company or any of
their respective properties. No governmental authorization, approval, order,
license, permit, franchise or consent, and no registration, declaration or
filing with any governmental authority is required, in connection with the
execution, delivery and performance of this Agreement by BPTR and the Company.
9.4 Certain Proceedings. There is no pending action, arbitration, audit,
hearing, investigation, litigation, or suit (whether civil, criminal,
administrative, investigative, or informal) commenced, brought, conducted, or
heard by or before, or otherwise involving, any federal, state, local or foreign
governmental or quasi-governmental body or arbitrator involving BPTR or the
Company and that challenges, or may have the effect of preventing, delaying,
making illegal, or otherwise interfering with, this Agreement or any of the
transactions contemplated herein. To BPTR's knowledge and/or to the Company's
knowledge, no such action, arbitration, audit, hearing, investigation,
litigation, or suit has been threatened.
9.5 No Undisclosed Liabilities. BPTR and the Company have no liabilities
or obligations of any nature, whether known or unknown and whether absolute,
accrued, contingent, or otherwise which do not have and could not reasonably be
expected to have, individually or in the aggregate, a material adverse effect,
except for liabilities or obligations reflected or reserved against in BPTR's
most recent Form 10-Q filed with the Securities and Exchange Commission (the
"Form 10-Q") and current liabilities incurred in the ordinary course of business
since period ending date of such Form 10-Q.
9.6 Absence of Changes and Events. Since the period ending date of the
Form 10-Q, BPTR, the Company, and their respective subsidiaries have conducted
their business only in, and have not engaged in any transaction other than
according to, the ordinary and usual course of such business in a manner
consistent with its past practice, and there have not been (i) any changes in
the business, condition (financial or otherwise), results of operations of BPTR,
the Company, or their respective subsidiaries or any development or combination
of developments of which BPTR has knowledge that, individually or in the
aggregate, have had or are reasonably likely to have a material adverse effect;
(ii) any material damage, destruction or other casualty loss with respect to any
material asset or property owned, leased or otherwise used by BPTR, the Company,
and their respective subsidiaries, whether or not covered by insurance; or (iii)
any change by BPTR or the Company in its accounting practices, principles or
methods.
9.7 Governmental Consent. Except for federal and state securities laws, no
consent, approval or authorization of, or filing, registration or qualification
with, any person is necessary or required on the part of BPTR or the Company in
connection with the execution and delivery of this Agreement and the other
documents and transactions contemplated hereby to which BPTR or the Company is a
party, or compliance with the terms hereof or thereof.
9.8 Third Party Consents. BPTR and the Company have obtained any and all
consents necessary or required in connection with the execution and delivery of
this Agreement and the other documents and transactions contemplated hereby or
compliance with the terms hereof or thereof, including, without limitation, the
Consent of Fleet Capital Corporation, Canaan Partners, and each party to
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a debt or equity investment in BPTR or the Company, the proceeds of which will
be used to pay BPTR's obligations hereunder.
9.9 Payment Restrictions. Except for monthly compensation payments
pursuant to existing agreements with members of the Board of Directors BPTR,
payment of base compensation and reimbursement of reasonable expenses pursuant
to the existing employment agreement between BPTR/the Company and Xxxxx Xxxxxx
and derivative securities granted to Xxxxx Xxxxxx and members of the Board of
Directors of BPTR or the Company pursuant to existing agreements and
reimbursement of reasonable expenses incurred in connection with their services
on the board, BPTR and the Company warrant and represent and agree that BPTR
will not redeem any securities and will not make any payment directly or
indirectly to any member of the Board of Directors of BPTR or the Company until
such time as it has made the final Note Payments as outlined in Section 1 of
this Agreement. Notwithstanding the foregoing exception, neither BPTR nor the
Company will make any payment of bonus compensation, directly or indirectly, to
any executive officer of BPTR or to Xxxxx Xxxxxx, in any capacity, until such
time as it has made the final Note payments as outlined in Section 1 of this
Agreement.
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 Consultants or the Holders:
Xxxxx X. Xxxxxx
X.X. Xxx 000
Xxx Xxxxx, Xxx Xxxxxxxxx 00000
overnight delivery address:
000 Xxxxxxx Xxxx
Xxx, Xxx Xxxxxxxxx 00000
Xxxxxx X. Xxxxxx
00 Xxxxxxx Xxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxxxxx 00000
With a copy to:
Xxxxxxx V.A. Xxxx, Esq.
McLane, Graf, Xxxxxxxxx & Middleton
Professional Association
X.X. Xxx 000
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000-0000
overnight delivery address:
000 Xxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000
Facsimile: 000-000-0000
If to BPTR or the Company:
BrandPartners Group, Inc.
00 Xxxx 00xx Xxxxxx, Xxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
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Attn: Xxxxx Xxxxxx and Xxxxxxxx X. Xxxxxxx, Esq.
Facsimile: 000-000-0000
With a copy to:
Xxxxxx Xxxxxxx, Esq.
Xxxxxxx & Xxxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
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 its own attorneys' fees
and expenses and the reasonable attorneys' fees and expenses not to exceed
$17,500.00 in the aggregate incurred by Consultants and the Holders 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 of the Consultants and the Holders shall be payable promptly upon
presentation of an invoice from the attorneys for the Consultants and the
Holders.
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; provided that any such assignee shall
have provided the Consultants with adequate assurance of future performance,
agreed in writing to assume the obligations of the assignor and to be bound by
the terms of this Agreement, and provided the other parties hereto with copies
of such assumption. 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.
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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 dates set forth in Section 1 of this Agreement or under any
applicable cure periods, this Agreement shall automatically terminate on such
date, except for Sections 2, 3, 4, and 8.2 which shall survive, and the parties'
respective obligations under the SPA (including the Earn-Out), and the 24-Month
Notes shall remain in full force and effect if not previously released and
discharged per this Agreement.
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.
The Remainder of this Page
Intentionally Left Blank
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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.
WITNESSES /s/ Xxxxxx X. Xxxxxx
-----------------------------------
XXXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxx
-----------------------------------
XXXXX X. XXXXXX
THE XXXXXX X. XXXXXX REVOCABLE TRUST OF 1998
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Xxxxxx X. Xxxxxx, Trustee
XXXXX X. XXXXXX TRUST - 1995
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Xxxxx X. Xxxxxx, Trustee
BRANDPARTNERS GROUP, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
XXXXXX BROTHERS, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer and President
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