Exhibit 4.1(a)
AGREEMENT
AGREEMENT, effective as of the 1st day of April, 2004, between
BRANDPARTNERS GROUP, INC., a Delaware Corporation (the "Company"), located at 00
Xxxx Xxxxxx, Xxxxxxxxx, XX 00000, and XXXXXXX X. XXXXXXX, 0000 Xxxxxxx Xxxxxx,
Xxxx, Xxxxxxxxxx 00000 (social security number __________) ("Xxxxxxx").
W I T N E S S E T H:
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WHEREAS, the Company has previously appointed Xxxxxxx as Non-Executive
Chairman of the Company as of October 15, 2003 (the "Agreement"); and
WHEREAS, the Company and Xxxxxxx are desirous of amending the terms and
responsibilities under the Agreement with all terms regarding consideration
remaining the same.
NOW THEREFORE, IN CONSIDERATION OF THE PREMISES AND THE MUTUAL
PROMISES SET FORTH HEREIN, THE PARTIES HERETO AGREE AS FOLLOWS:
1. Xxxxxxx shall continue to serve as Non-Executive Chairman of the Company
and provide advice on general corporate matters, particularly related to
shareholder relations, including identifying and introducing potential merger
and acquisition candidates implementing new client initiatives and reorganizing
and restructuring of 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 six (6) months
from the effective date of this agreement.
2. The Company shall be entitled to Xxxxxxx'x services for 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 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 for the services to be performed by Xxxxxxx, Xxxxxxx
has received per his original Agreement the sum of $30,000 per month, and
3,000,000 options to purchase 3,000,000 shares of common stock for a period of
five (5) years as follows: 1,500,000 options at $.20 per share, and 1,500,000
options at $.30 per share with cost-free piggy back registration rights. The
options were fully vested as of the effective date of the Agreement and
exercisable as provided for therein.
6. Neither this agreement nor any duties or obligations under this
agreement may be assigned by Xxxxxxx without the prior written consent of the
Company.
7. The 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.
8. 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 addresses 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.
9. This agreement amends the Agreement dated as of October 15, 2003 and
supercedes any and all other agreements, either oral or written, between the
parties hereto with respect to the rendering of services by Xxxxxxx for the
Company. 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 the Agreement to the extent it does not conflict with this agreement, 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.
10. 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.
11. 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.
12. 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 it 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.
13. 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.
14. 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.
15. 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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XXXXX X. XXXXXX
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XXXXXXX X. XXXXXXX
