Employment Agreement
Agreement
dated as of June 30, 2005, by and between BrandPartners Group, Inc, Inc., a
Delaware corporation (the “Company”) and Xxxxxxx X. Xxxxxxx (the
“Employee”).
WHEREAS,
the Company desires to employ the Employee with the Company on the terms and
conditions set forth in this Agreement; and
WHEREAS,
the Employee desires to be so employed and has agreed to enter into this
Agreement.
1. Term
of Employment.
The
Company agrees to employ the Employee and the Employee agrees to serve in the
employ of the Company, for a term commencing the date hereof and ending December
31, 2005 unless sooner terminated or extended as herein provided. The term
shall
automatically be extended for one (1) additional year periods effective January
1, 2006 and annually thereafter, unless either party provides the other with
written notice not later than ninety (90) days prior to the expiration of the
term, as extended, of its selection not to extend the term.
2. Position
and Duties.
During
the term, the Employee shall be employed as Executive Vice President, Finance
and Chief Financial Officer, reporting to the Chief Executive Officer.
Employee’s responsibilities shall include managing the financial business units,
revenues and profit and loss (gross margin basis) responsibility, and other
duties consistent with Employee’s title and role as determined from time to time
by the Chief Executive Officer.
3. Compensation
and Benefits.
In
partial consideration of Employee’s performance of the services and observance
of the covenants set forth herein, the Company shall pay the Employee, and
the
Employee shall accept, the compensation and benefits described on Schedule
A
attached hereto and incorporated herein by reference.
4. Non-Disclosure,
Non-Disparagement and Non-Competition.
Employee acknowledges that, in the course of Employee’s employment, Employee has
had and will have access to and has been and will become aware of and informed
of confidential and/or proprietary information that is a competitive asset
of
the Company. It is understood and agreed upon between the Employee and the
Company that, during the course of Employee’s employment with the Company and
continuing thereafter for a period of six (6) months with regard to (a) and
(b),
fifteen (15) months with regard to (c) and (d) below, and indefinitely with
regards to (e) below, neither Employee nor Employee’s agent(s)
shall:
(a) engage,
directly or indirectly, whether as a principal, agent, employee, representative,
shareholder (other than an investment of not more than 5% of the stock or equity
of any corporation, the capital stock of which is publicly traded) or otherwise,
in any activity or business venture, including but not limited to the
manufacture or sale of any products or services directed toward the financial
services industry, which is in competition with the Company; or
(b) solicit,
entice, endeavor to solicit or entice or employ, directly or indirectly, any
person who was a director, officer, employee or consultant to the Company at
the
time that the Employee’s employment with the Company terminates, who by reason
of such position is in possession of any confidential information or trade
secrets relating to the business of the Company, either on Employee’s own
account or for any person, firm, corporation or other organization, whether
or
not such person would commit any breach of such person’s agreement by reason of
leaving the service of the Company; or
(c) disclose
or divulge to any person, firm, corporation, or other organization any of the
Company’s non-public information concerning customers or employees;
or
(d) take
any
action or make any statement to the effect of which would be, directly or
indirectly, to impair the goodwill of the Company or any of its subsidiaries,
or
the business reputation or good name of the Company or any of its subsidiaries
to make any other statement which would otherwise be detrimental to the interest
of the Company, including, without limitation, any action or statement intended,
directly or indirectly, to benefit a competitor of the Company or any of its
subsidiaries; or
(e) disclose
or divulge to any person, firm, corporation, or other organization any of the
Company’s trade secrets.
5. Termination.
(a)
Subject to the other terms and conditions hereof, the Employee’s employment
under this Agreement shall terminate upon the expiration of the term, or, if
earlier, upon the earliest to occur of any of the following events:
(i) Upon
the
death of the Employee, as follows: If the Employee shall die during the term,
this Agreement shall terminate on the date of Employee’s death and Employee’s
estate shall be entitled to receive Employee’s base salary at the rate provided
in Schedule A hereto to the end of the calendar month in which Employee’s death
occurs, if not already paid, and bonus or earn out, if any, for the fiscal
year
prior to the date Employee’s death occurs, if not already paid, and for the
fiscal year in which Employee’s death occurs, on a prorated basis up until the
date of Employee’s death, payable in accordance with Company policies then in
effect.
(ii) Upon
the
disability of the Employee as follows: if, in the written opinion of a qualified
physician selected by the Company, the Employee shall become unable to perform
his/her duties hereunder due to physical or mental illness, and has failed,
because of such illness, to render, for 90 days out of any 180-day period,
services of the character contemplated by this Agreement, the Company may
terminate the Employee’s employment upon written notice to the Employee. In such
event, the Employee shall be entitled to receive Employee’s base salary at the
rate provided in Schedule A hereto to the end of the calendar month in which
the
termination occurs, and bonus, if any, for the fiscal year prior to the date
Employee’s termination occurs, if not already paid, and for the fiscal year in
which Employee’s disability occurs, on a prorated basis up until the date of
termination, payable in accordance with Company policies then in
effect.
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(iii)
For
Cause, as follows: The Company may terminate the Employee’s employment for
cause, upon written notice to the Employee, subject to the Employee’s ability to
cure as set forth below. As used in this Agreement, cause shall mean (A) a
conviction or plea of guilty or not contendre to a felony or a misdemeanor
(or
summary conviction offense) involving moral turpitude, or (B) any act or
omission of the Employee which (i) constitutes a material breach by the Employee
of this Agreement, or (ii) is a willful violation of Company policy in effect
from time to time, to (iii) constitutes a material breach of the Employee’s
fiduciary duties, or (iv) is a statement or act by the Employee which violates
the Company’s personnel policies then in effect or which reasonably might expose
the Company to any claim or legal action, or (v) is an act or failure to perform
any act (other than in good faith) to the detriment of the business of the
Company. In the event of a termination pursuant to this Section 5(a)(iii),
the
Employee shall be entitled to receive only Employee’s base salary at the rate
provided in Schedule A hereto through the date of termination. Prior to
termination for cause, the Company shall give the Employee ten (10) days prior
written notice of its intent to terminate the Employee’s employment for cause.
Such notice shall set forth in reasonable detail the basis giving rise to cause.
The Employee shall have the right, if the basis for such cause is curable,
to
cure the same within a reasonable period of time after the date of such written
notice, provided that the Employee begins to cure within ten (10) days of the
date of such written notice and diligently prosecutes such efforts
thereafter.
(iv)
Without cause, as follows: The Company may terminate the Employee’s employment
without cause, at any time, upon written notice to the Employee. In such an
event, the Employee shall be entitled to receive Employee’s base salary at the
rate in effect on the date of termination for a six month period from the date
of termination, and bonus, if any, for the fiscal year prior to the date
Employee’s termination occurs, if not already paid, and for the fiscal year in
which Employee’s termination occurs, on a prorated basis up until the date of
Employee’s termination.
(v)
For
Good Reason, as follows: The Employee may terminate his/her employment for
Good
Reason (as defined below) as provided below. In such an event, the Employee
shall be entitled to the same termination benefits as would have been payable
in
the event of a termination without cause as set forth in Section 5(a)(iv)
above,
subject to the Company’s ability to cure as set forth below. For purposes of
this Agreement, termination for “Good Reason” shall mean termination for reason
of (A) a material change in Employee’s, duties or responsibilities as set forth
in this Agreement, or (B) a reduction in the compensation or benefits payable
to
the Employee, except in the case that such reduction is in conjunction with
a
Company-wide reduction; or (C) a material breach of this Agreement by the
Company; or (D) the relocation of the Employee’s primary place of business
outside of a fifty (50) mile radius of such primary place of business without
the Employee’s prior written consent.
(vi)
The
Employee may terminate his/her employment without Good Reason under this
Agreement at any time upon fourteen (14) days prior written notice to the
Company.
(b) Other
than as set forth in this Section 5, the
Employee or estate of the Employee shall not be entitled to any benefits or
compensation whatsoever from the Company or its affiliates upon or alter
termination or expiration of this Agreement, other than as required or permitted
by law.
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6. Injunctive
Relief. Because
the remedy at law for any breach of the provisions contained in paragraph
above would be inadequate, Employee hereby consents, in the case of any such
breach, to the granting by any court of competent jurisdiction all equity powers
including but not limited to pre-judgment injunctive relief. In the event of
a
breach or threatened breach of paragraph 4 of this Agreement, it is hereby
agreed that the Company shall be entitled to an injunction or similar equitable
relief restraining the commission or continuation of any such breach by granting
specific performance of any act required to be performed, without the necessity
of showing any actual damages or that money damages would not afford an adequate
remedy and without the necessity of posting any bond or other security. In
the
event that either party shall bring an action to enforce the terms contained
in
paragraph 4 of this Agreement, the successful party to such action shall be
entitled to recover the costs of litigation, including reasonable attorney’s
fees.
7. Successors.
This
Agreement shall be binding upon and shall insure to the benefit of the parties
and their respective heirs, legal representatives, successors and permitted
assigns. This Agreement shall not be assignable by the Employee.
8. Entire
Agreement. The
terms
of this Agreement are intended by the parties to be the final expression of
their agreement with respect to the employment of the Employee by the Company
and may not be contradicted by evidence of any prior or contemporaneous
agreement. The parties hereto agree that this Agreement shall be in effect
as of
the date hereof and shall supersede and be in lieu of any and all prior
agreements or understandings regarding the employment of the Employee, whether
verbal or written.
9. Severability.
Enforcement. If any provision of this Agreement, or the application thereof
to
any person, place or circumstance, shall be held by a court of competent
jurisdiction to be invalid, unenforceable or void, the remainder of this
Agreement and such provisions as applied to other persons, places and
circumstances shall remain in full force and effect.
10. Governing
Law.
The
parties agree that the courts of New Hampshire shall have nonexclusive
jurisdiction over the enforcement and interpretation of this Agreement and
that
New Hampshire law shall apply.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first above written.
BrandPartners
Group, Inc.
By:
Xxxxx
X.
Xxxxxx, Chief Executive Officer and President
Xxxxxxx
X. Xxxxxxx
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SCHEDULE
A
ANNUAL
SALARY$135,000.00
OTHER
BENEFITS
Employee
shall be eligible for vacation, sick/personal days, health, dental, disability
and life insurance and 401(k) profit sharing made available by the Company
to
its employees from time to time as described in the attached summary. All
Company insurance plans and contracted insurance carriers are subject to change,
as management deems necessary or advisable.
VACATION
Employee
shall be entitled to five (5)
weeks
of
paid vacation annually, accrued in accordance with Company policy.
BONUS
If
the
EBITDA for the Company’s operating subsidiaries (BrandPartners Retail, Inc.;
BrandPartners Europe, Ltd; and Grafico, Incorporated) is less than $9.75 million
for fiscal year 2005, a bonus for calendar year 2005, if any, will be at the
discretionary recommendation of the Company’s Compensation Committee, subject to
Board approval. If the EBITDA for the Company’s operating subsidiaries
(BrandPartners Retail, Inc.; BrandPartners Europe, Ltd; and Grafico,
Incorporated) is equal to or greater than $9.75 million for fiscal year 2005,
then in that event, the bonus for calendar year 2005 shall be a minimum of
20%
of Annual Salary. However, the Company’s Compensation Committee may, in its
discretion, recommend a bonus greater than 20% of Annual Salary, which
recommendation is subject to Board approval.
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