SEPARATION AGREEMENT AND RELEASE OF CLAIMS
SEPARATION
AGREEMENT AND RELEASE OF CLAIMS
THIS
SEPARATION AGREEMENT AND RELEASE OF CLAIMS (“Agreement”) is made between XXXXXXX
X. XXXXXXX (“Xxxxxxx”) and BRANDPARTNERS GROUP, INC. and all of its subsidiaries
and affiliated companies (collectively hereafter “Brand” or “the Company”) and
shall become effective on the Effective Date as set forth herein.
RECITALS
WHEREAS,
Xxxxxxx has been retained by Brand as Chairman of the Board of Directors
pursuant to an amended Agreement dated March 16, 2005 (the “Agreement”), and the
parties hereto desire to end that relationship, and to settle, fully, finally
and amicably, all claims against each other, including, but not limited to
the
termination of that Agreement.
NOW,
THEREFORE, in order to provide said benefits and, in consideration of the mutual
promises, covenants and representations set forth below and other good and
valuable consideration, the parties agree as follows:
| 1. |
Relinquishment
of Positions
|
Pursuant
to this Agreement, Xxxxxxx agrees to resign, effective as of August 10, 2006,
his position as Chairman of the Board of Directors of the Company, as well
as
any other position he holds from any subsidiary or affiliated company
(“Resignation Date”).
| 2. |
Payment
of Good and Valuable
Consideration
|
a. Following
the execution of this Separation Agreement and Release of Claims (the
“Separation Agreement”) the Company will pay Xxxxxxx monetary payments totaling
$90,000 in the aggregate in the form of three (3) monthly payments of $30,000
on
the first business day
of
the month starting in September 2006 and ending November 2006.
b. The
Company will pay Xxxxxxx additional monetary payments totaling $90,000 in the
aggregate in the form of six (6) monthly payments of $15,000 on the first
business day
of
the month starting in December 2006 and ending May 2007.
c. Within
ten (10) days of the execution of this Separation Agreement, the Company will
provide duly authorized written instruction to its transfer agent to issue
to
Xxxxxxx $90,000 of restricted common stock of the Company, par value $.01 (the
“Common Stock”) as calculated herein. All of the Shares of Common Stock issued
to Xxxxxxx will be subject to cost free piggyback registration rights as well
as
to Rule 144 of the Securities Act of 1933, as amended, and shall include a
legend, in substantially the form as follows:
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES.
THESE SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED
OR
HYPOTHECATED EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES
LAWS PURSUANT TO REGISTRATION OR AN EXEMPTION THEREFROM. THE ISSUER OF THESE
SECURITIES MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
ISSUER THAT SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION OTHERWISE
COMPLIES WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
The
shares of Common Stock issuable to Xxxxxxx will be issued based upon the
following formula:
90,000/Y
= Z
Y
= The
twenty-one (21) day average closing price of Common Stock, as reported by
Bloomberg Financial Markets, immediately preceding the Effective Date of this
Agreement.
Z
= The
number of shares of restricted Common Stock to be issued to
Xxxxxxx.
d. Notwithstanding
anything to the contrary, it is expressly understood that all payments under
this Agreement are unconditional obligations of Brand, and are not contingent
on
consulting or advisory services being provided by Xxxxxxx or used by the
Company. It is further understood that Brand will have no right of setoff to
its
payment obligations under this Agreement, and that this Agreement is
irrevocable, non-cancelable and is not subject to early termination for any
reason whatsoever.
e. Notwithstanding
anything to the contrary in this Agreement, the Company’s 2004 Stock Incentive
Plan (the “Plan”) or any other option plans under which Xxxxxxx may have
received options, nothing herein shall prevent Xxxxxxx from exercising any
vested options pursuant to the Company’s applicable stock option plans with the
term to exercise all options expiring at the end of the term as provided for
under the specific option(s).
f. All
valid
and supported expenses incurred by Xxxxxxx, prior to the Resignation Date and
submitted to the Company, will be paid by the Company concurrent with the
effective date of this Separation Agreement.
g. In
the
event that Xxxxxxx should die or become incapacitated, all payments being made
to Xxxxxxx under this Separation Agreement, will be paid in accordance with
the
terms of this Agreement, to Xxxxxxx’x Estate or his duly appointed personal
representative as the case may be.
h. All
payments made by the Company, under this Agreement, shall be forwarded to an
address so designated in writing by Xxxxxxx or his legal counsel, from time
to
time.
i. The
Company will assist Xxxxxxx in the filing of any and all beneficial ownership
reports required to be filed, pursuant to the Securities Exchange Act of 1934,
as amended.
j. All
payments made to Xxxxxxx under this Agreement including the issuance of Common
Stock will be reported on an IRS form 1099.
| 3. |
Indemnification
Against Claims
|
Brand
agrees to indemnify and hold Xxxxxxx harmless from any liability, claims,
demands, costs, expenses and attorneys’ fees incurred by him as a result of any
actions by him in the course of his services as a Director of the Company to
the
extent other directors would be so indemnified pursuant to applicable law.
Brand
further agrees to provide continued insurance coverage for Xxxxxxx under the
Company’s director and officer liability insurance policy, otherwise known as
tail insurance for a minimum period of three (3) years from the Resignation
Date.
| 4. |
Non-Disclosure
of Trade Secrets and Confidential
Information
|
Xxxxxxx
understands and agrees that, in the course of his association with Brand, he
has
acquired confidential information and trade secrets concerning the operations
of
Brand and its future plans and methods of doing business, which information
Xxxxxxx understands and agrees would be damaging to Brand if disclosed to a
competitor or made available to any other person or corporations. Xxxxxxx
understands and agrees that such information either has been developed by him
or
divulged to him in confidence, and he understands and agrees that he will keep
all such information secret and confidential. Furthermore, Xxxxxxx agrees that,
on or before the Effective Date of this Agreement, he will turn over to Brand
all Company confidential files, records, and other documents. In addition,
Xxxxxxx will return all property in his possession owned by Brand.
| 5. |
Non-Solicitation
|
Xxxxxxx
further agrees that he will not solicit or participate or assist in any way
in
the solicitation of any employee at Brand for employment by any other company.
However, Xxxxxxx will not violate this provision if said employee pursues a
position with Xxxxxxx’x future employer or Company that Xxxxxxx is associated
with, without any encouragement or involvement direct or indirect of
Xxxxxxx.
| 6. |
No
Other Claims
|
Xxxxxxx
represents and warrants that he has not filed against Brand or any of its
representatives, any claim, complaint, charge or suit, with any federal, state
or other agency, court, board, office or other forum or entity as of the
Effective Date.
| 7. |
General
Release
|
a. As
a
material inducement to Brand to enter into this Agreement, Xxxxxxx, on behalf
of
himself and his heirs, executors, administrators, successors and assigns, does
hereby irrevocably and unconditionally release, acquit and forever discharge
Brand, and its divisions, subsidiaries, affiliates and all owners, stockholders,
predecessors, successors, assigns, agents, directors, officers, employees,
representatives, and attorneys, acting by, through, under or in concert with
Brand or any parent, subsidiary or related entity, from any and all charges,
complaints, grievances, claims, liabilities, obligations, promises, agreements,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, debts and expenses (including attorneys’ fees and costs actually
incurred), of any nature whatsoever, known or unknown, suspected or unsuspected,
joint or several, which Xxxxxxx has had or may hereafter claim to have had,
against Brand by reason of any matter, act, omission, cause or event whatever
from the beginning of time to the Resignation Date (“Claims”); other than those
obligations set forth in this Agreement. Xxxxxxx
further
acknowledges that he is waiving and releasing any rights he may have under
the
Age Discrimination in Employment Act of 1967 (“ADEA”) and that this waiver and
release is knowing and voluntary. Xxxxxxx agrees that this waiver and release
does not apply to any rights or claims that may arise under the ADEA after
the
Effective Date of this Agreement. Xxxxxxx acknowledges that the consideration
given for this waiver and release Agreement is in addition to anything of value
to which Xxxxxxx
was
already entitled. Xxxxxxx further acknowledges that he has been advised by
this
writing that: (a) he should consult with an attorney prior
to
executing this Agreement; (b) he has twenty-one (21) days within which to
consider this Agreement; (c) he has seven (7) days following the execution
of
this Agreement by the parties to revoke the Agreement; (d) this Agreement shall
not be effective until after the revocation period has expired; and (e) nothing
in this Agreement prevents or precludes Xxxxxxx from challenging or seeking
a
determination in good faith of the validity of this waiver under the ADEA,
nor
does it impose any condition precedent, penalties or costs for doing so, unless
specifically authorized by federal law. In the event Xxxxxxx signs this
Agreement and returns it to the Company in less than the 21-day period
identified above, Xxxxxxx hereby acknowledges that he has freely and voluntarily
chosen to waive the time period allotted for considering this
Agreement.
b. As
a
material inducement to Xxxxxxx to enter into this Agreement, Brand, and its
divisions, subsidiaries, affiliates and all predecessors, successors, assigns
and agents, to the extent permissible by law, do hereby irrevocably and
unconditionally release, acquit and forever discharge Xxxxxxx, from any and
all
charges, complaints, grievances, claims, liabilities, obligations, promises,
agreements, controversies, damages, actions, causes of action, suits, rights,
demands, costs, losses, debts and expenses (including attorneys’ fees and costs
actually incurred), of any nature whatsoever, known or unknown, suspected or
unsuspected, joint or several, which Brand has had or may hereafter claim to
have had, against Xxxxxxx by reason of any matter, act, omission, cause or
event
whatever from the beginning of time to the Resignation Date (“Claims”); other
than those obligations of Xxxxxxx set forth in this Agreement.
This
release and waiver of Claims specifically includes, but without limiting the
foregoing general terms, the following: Any and all Claims which might have
been
asserted by Xxxxxxx in any suit, claim, or charge, for or on account of any
matter or things whatsoever that has occurred up to and including the date
of
this Agreement, under any and all laws, statutes, orders, regulations, or any
Claim in contract or tort.
| 8. |
Release
of Unknown or Unsuspected
Claims
|
For
the
purpose of implementing a full and complete release and discharge of the parties
hereto, Xxxxxxx expressly acknowledges that this Agreement is intended to
include in its effect, without limitation, all Claims which the parties have
against one another but do not know or suspect to exist in their favor at the
time of execution hereof, which if known or suspected by them would materially
affect their decision to execute this release; that this Agreement contemplates
the extinguishment of any such Claim or Claims, and that all rights under
Section 1542 of the California Civil Code are hereby expressly waived.
Section 1542 of the Civil Code provides:
“A
general release does not extend to claims which the creditor does not know
or
suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with the
debtor”.
Xxxxxxx
and Brand represent that he has read and understood the provisions of California
Civil Code Section 1542.
| 9. |
Future
Litigation or Anticipated
Litigation
|
Xxxxxxx
agrees that he shall make himself reasonably available to the Company and its
counsel to assist in, cooperate with or otherwise testify in connection with
any
litigation where his participation or assistance is needed or required by law.
Brand agrees that it shall make its employees and directors reasonably available
to Xxxxxxx and his counsel to assist in, cooperate with, or otherwise testify
in
connection with any litigation where its participation or assistance is needed
or required by law.
| 10. |
Nondisparagement
|
Xxxxxxx
agrees that he will not disparage Brand, and its officers, directors or
employees. Brand’s officers and directors agree that they will not disparage
Xxxxxxx.
| 11. |
Other
Relief
|
The
parties agree that any dispute, controversy or claim between the parties arising
out of, or relating to this Agreement, or any breach or asserted breach thereof,
shall be determined and settled by arbitration in accordance with the rules
of
the American Arbitration Association in effect at the time the arbitration
commences. The prevailing party in such arbitration shall be entitled to its
reasonable costs and expenses (including reasonable attorneys’ fees) in such
arbitration as part of the award. Judgment on the award may be entered in any
court having jurisdiction thereof, and the parties specifically reserve all
rights to appeal such judgment as if it were rendered in a court of law.
| 12. |
Press
Release
|
Brand
shall issue a press release to the public concerning Xxxxxxx’x resignation in
the form attached hereto. Xxxxxxx’x written consent to form and wording of the
press release, prior to the issuance of the press release, as same pertains
to
Xxxxxxx’x resignation as Chairman must be obtained by the Company. Xxxxxxx’x
consent shall not be unreasonably withheld.
Neither
party will issue any other press release concerning the resignation.
| 13. |
Binding
Agreement
|
This
Agreement shall be binding upon Xxxxxxx and Brand and their respective heirs,
administrators, representatives, executors, successors and assigns and shall
inure to the benefit of the parties hereto and their representatives, and each
of them, and to their heirs, administrators, representatives, executors,
successors and assigns.
| 14. |
Attorney’s
Fees
|
Each
party agrees to pay its own costs and attorneys’ fees incurred in achieving the
settlement and release of this matter. If any party defaults under the terms
of
this Agreement, and the other party employs an attorney to enforce or interpret
the terms of this Agreement, or to obtain a declaration of rights under this
Agreement, whether or not legal proceedings are commenced, then such other
party
shall be entitled to recover from the defaulting party all attorneys’ fees,
costs and expenses incurred. If a party commences an action against the other
to
enforce or interpret the terms of this Agreement, or to obtain a declaration
of
rights under this Agreement, the prevailing party shall be entitled to all
attorneys’ fees, costs and expenses incurred in such action or any appeal or
enforcement of such action.
| 15. |
Non-Reliance
|
Other
than as expressly set forth in this Agreement, Xxxxxxx and Brand represent
and
acknowledge that in executing this Agreement they did not rely upon and they
have not relied upon any representation nor statement made by any of the parties
hereto or by any of their agents, representatives or attorneys with regard
to
the subject matter, basis or effect of this Agreement or otherwise.
| 16. |
Agreement
Obligates, Extends and Inures
|
The
provisions of this Agreement shall be deemed to obligate, extend and inure
to
the benefit of the legal successors, assigns, transferees, grantees, heirs,
shareholders, officers and directors of each signatory party hereto, and to
those who may assume any or all of the above-described capacities subsequent
to
the execution and Resignation Date of this Agreement.
| 17. |
Non-Admission
of Liability
|
This
Agreement shall not in any way be construed as an admission by Brand that it
has
acted in any manner in violation of the common law or in violation of any
federal, state or local statute or regulation.
| 18. |
Method
of Execution
|
This
Agreement may be executed in counterparts and each counterpart shall be deemed
a
duplicate original.
| 19. |
Applicable
Law
|
This
Agreement is deemed to have been made and entered into in the State of Delaware
and shall in all respects be interpreted, enforced and governed under the laws
of said State. The language of all parts of this Agreement shall in all causes
be construed as a whole, according to its fair meaning, and not strictly for
or
against any of the parties.
| 20. |
Severability
|
The
provisions of this Agreement are severable, and should any provision of this
Agreement be declared or be determined by any arbitrator or court to be illegal
or invalid, any such provision shall be stricken, and the validity of the
remaining parts, terms or provisions shall not be affected.
| 21. |
Entire
Agreement
|
This
Agreement sets forth the entire agreement between the parties and fully
supersedes any and all prior agreements or understandings between the parties
pertaining to the same subject matter, further, this Agreement may not be
changed except by explicit written agreement by the parties hereto.
22. Notices
All
notices under this Agreement are to be in writing and delivered by overnight
courier and are deemed effective upon receipt. If to:
Company:
BrandPartners
Group, Inc.
00
Xxxx
Xxxxxx
Xxxxxxxxx,
XX 00000
If
to
Xxxxxxx:
0000
Xxxxxxx Xxxxxx
Xxxx,
XX
00000
The
parties further acknowledge that this Agreement has been entered into without
fraud, duress, undue influence or mistake, and that upon the Effective Date,
that this Agreement is not subject to rescission.
SIGNATURES
|
Date:
_________________________
|
_________________________________
Xxxxxxx
X. Xxxxxxx
|
|
Date:
_________________________
|
BrandPartners
Group, Inc.
By:___________________________________
|
