Exhibit 10.3
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 13th day of August 2004 by and between
BRANDPARTNERS GROUP, INC., having a place of business at 00 Xxxx Xxxxxx,
Xxxxxxxxx, XX 00000 (hereinafter referred to as "EMPLOYER") and XXXXX XXXXXX,
(hereinafter referred to as "EMPLOYEE").
W I T N E S S E T H:
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WHEREAS, the EMPLOYER is engaged in the business of developing and
marketing providing financial services firms and other service retailers with
merchandising, branch planning and design, and creative services; and
WHEREAS, EMPLOYEE is currently employed as Chief Executive Officer
pursuant to the terms of an employment agreement effective as of October 15,
2003.
WHEREAS, the EMPLOYER is desirous of extending the term of employment
of EMPLOYEE, and EMPLOYEE wishes to be employed by EMPLOYER in accordance with
the terms and conditions set forth in this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND
PROMISES AND OTHER GOOD AND VALUABLE CONSIDERATION, THE
RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, IT IS MUTUALLY AGREED
AS FOLLOWS:
1. EMPLOYMENT DUTIES AND TERM: The EMPLOYER does hereby employ, engage
and hire the EMPLOYEE as Chief Executive Officer, President and Corporate
Secretary of EMPLOYER for a period of three (3) years effective as of August 16,
2004 and terminating August 15, 2007. The duties of EMPLOYEE shall include, but
not be limited to, acting as Chief Executive Officer, President and Corporate
Secretary of EMPLOYER and its subsidiary, Xxxxxx Brothers Inc. ("Xxxxxx").
EMPLOYEE will perform services on behalf of EMPLOYER with respect to the
management and general supervision of the business of EMPLOYER and Xxxxxx.
2. GOOD FAITH PERFORMANCE OF DUTIES: The EMPLOYEE agrees that he will,
at all times, faithfully, industriously, and to the best of his ability,
experience and talent, perform all of the duties that may be required of and
from him, pursuant to the expressed and implicit term hereof.
3. COMPENSATION: EMPLOYER shall pay to the EMPLOYEE, and the EMPLOYEE
agrees to accept from the EMPLOYER, in full payment for the EMPLOYEE's services
hereunder, compensation at the rate of $300,000 per annum. EMPLOYEE will be paid
bi-weekly, in accordance with Xxxxxx'x usual payroll practice during the term of
the within Agreement.
4. ANNUAL REVIEW: EMPLOYER's Compensation Committee and/or Board of
Directors will undertake an annual review of EMPLOYEE's performance and may
determine at their sole discretion to increase EMPLOYEE's Compensation should
same be appropriate. The annual review preformed by the Compensation Committee
and/or Board of Directors will coincide with the filing of the Company's 10-K
report with the Securities and Exchange Commission.
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5. VACATION: Paid vacation (taken consecutively or in segments) in
accordance with the EMPLOYER's policies generally applicable to other executives
of the Company from time to time, taken at such times as is reasonably
consistent with proper performance by Employee of Employee's duties and
responsibilities hereunder.
6. DEDICATION OF TIME: EMPLOYEE shall devote all of his working time,
attention, knowledge and skill solely and exclusively to the business and
interest of the EMPLOYER. The EMPLOYEE expressly agrees that he will not, during
the term hereof or for one (1) year from the termination of this Agreement, be
involved directly or indirectly, in any form, fashion or manner, as a partner,
officer, director, stockholder (owning in excess of 4.9%), advisor, consultant
or employee in any other business similar to or in any way competing with the
business of the EMPLOYER. Nothing herein contained shall, however, limit the
rights of the EMPLOYEE to own up to 5% of the capital stock or other securities
of any corporation, whose stock or securities are publicly owned or traded
regularly on a public exchange or in the over-the-counter market, or to prevent
the EMPLOYEE from investing financially in, or limiting the EMPLOYEE's rights to
invest financially in, other businesses not allied with or competing with the
business of the EMPLOYER, as long as EMPLOYEE continues to devote all of his
working time, attention, knowledge and skill, solely and exclusively to the
business and interest of the EMPLOYER. EMPLOYEE will be permitted to serve on
the Board of Directors of publicly owned companies.
7. CONFIDENTIALITY: During the terms of EMPLOYEE's employment under
this Agreement, and for one (1) year thereafter, the EMPLOYEE specifically
agrees that he will not, at any time, in any fashion, form or manner, either
directly or indirectly, use, divulge, disclose or communicate to any person,
firm or corporation, in any manner whatsoever, any confidential or proprietary
information of any kind, nature or description concerning any matters affecting
or relating to the business of the EMPLOYER including, without limiting the
generality of the foregoing, any of its customers, its manner of operations, its
plans, its ideas, processes, programs, its intellectual property or other data,
information or materials of any kind, nature or description, without regard to
whether any or all of the foregoing matters shall be deemed confidential,
material or important. The parties hereto stipulate that, as between them, the
same are important, material, confidential and gravely affect the effective and
successful conduct of the business of the EMPLOYER and its goodwill, and that
any breach of the terms of this Paragraph is a material breach thereof, except
where the EMPLOYEE shall be acting on behalf of the EMPLOYER. EMPLOYEE
understands and agrees that, in the event that EMPLOYEE violates the terms and
conditions, as stated in this Paragraph, that he will be subject to an
injunction and damages, and understands and agrees that EMPLOYER's remedy to
prevent further or continued damages will include a petition for injunctive
relief. EMPLOYEE expressly acknowledges that the restrictions contained in this
Paragraph are reasonable and are properly required for the adequate protection
of the EMPLOYER's interests.
EMPLOYEE further understands and agrees that EMPLOYER, in
entering into this Agreement, is relying upon EMPLOYEE's representation and
warranty that all trade secrets and other proprietary information of EMPLOYER
will be kept strictly confidential by EMPLOYEE and not utilized by EMPLOYEE in
any manner whatsoever other than on EMPLOYER's behalf during the course of
EMPLOYEE's employment with EMPLOYER.
8. NON-COMPETITION: EMPLOYEE agrees that, during the term of this
Agreement and for one (1) year after termination hereof, he shall not, for
himself or any third party, directly or indirectly, divert or attempt to divert
from the EMPLOYER or its subsidiaries or affiliates any business of any kind in
which it is engaged or employed, or solicit for employment, any person employed
by the EMPLOYER or by any of its subsidiaries or affiliates, during the period
of such person's employment. EMPLOYEE expressly acknowledges that the
restrictions contained in this paragraph are reasonable and are properly
required for the adequate protection of the EMPLOYER's interests.
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9. EARLY TERMINATION: It is expressly understood and agreed that the
terms of this Agreement, may be terminated by the EMPLOYER prior to August 15,
2007 upon the occurrence of any of the following events:
(a) Automatically and without notice upon the death of the
EMPLOYEE or if EMPLOYEE becomes disabled so that he can not perform under this
Agrement for a period exceeding three (3) consecutive months; it is also
understood that EMPLOYEE or his estate will be entitled to six (6) months'
salary;
(b) Persistent absenteeism on the part of the EMPLOYEE, which
in the reasonable judgment of the Board of Directors of the Company is having or
will have a material adverse effect on the performance of the EMPLOYEE's duties
under this Agreement;
(c) Deliberate and willful failure to perform normal services
and duties required of EMPLOYEE pursuant to this Agreement, except if the
performance of such duties or services would result in a violation of EMPLOYEE's
fiduciary responsibility to the Company and its shareholders or is in a
violation of applicable laws;
(d) Any willful act or failure to act, which in the reasonable
opinion of the Board, is in bad faith and to the material detriment of the
EMPLOYER;
(e) Conviction of a felony involving moral turpitude or
dishonesty;
(f) Total or partial disability of the EMPLOYEE for a period
of three (3) consecutive months or ninety (90) days, in the aggregate, so that
he is prevented from satisfactorily performing a substantial part of his duties;
it being understood that that EMPLOYEE will be entitled to three (3) months'
salary upon such termination; it being further understood and agreed that any
proceeds received by EMPLOYEE from a policy of disability benefits insurance or
any other proceeds received from any Federal, State or Municipal agency of
government will be credited to the amount of compensation paid to EMPLOYEE by
EMPLOYER; and
(g) Fraudulent misconduct of the EMPLOYEE.
The Agreement may be terminated by any:
(x) Merger or consolidation, where the Company is not the
consolidating or surviving; or
(y) Transfer of all or a substantial majority of the assets of
the Company;
(z) Acquisition or control of fifty percent (50%) or more of
the Company's issued and voting equity share capital by any party, or by parties
acting in concert or under common control.
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Not withstanding the foregoing, in the event of any merger or
consolidation, transfer of all, or a substantial majority, of the assets of the
Company or acquisition or control of fifty percent (50%) (or an amount of stock
ownership that has the ability to elect the Board of Directors of EMPLOYER) or
more of the Company's issued and voting equity share capital by any party or by
parties acting in concert or under common control, or a change in composition of
the Board of Directors without the consent or agreement of the current director
or directors as the case may be, the surviving or resulting entity or the
transferee or transferees of the Company's assets or its issued and voting
equity share capital, shall be bound by, and shall have the benefit of, the
provision of this Agreement, and the Company shall endeavor to take all actions
necessary to ensure that such entity or transferee or transferees shall be bound
by the provisions of the Agreement. Moreover, in the event of such merger or
consolidation, transfer of all or a substantial majority of the assets of the
Company, acquisition of the Company of the Company's issued and voting equity
share capital as aforesaid or a change in composition of the Board of Directors
without the consent or agreement of the current director or directors as the
case maybe so that a majority of the Board's composition changes, the EMPLOYEE
may, at his option, continue his employment under the terms of this Agreement,
or upon giving not less than thirty (30) days notice at any time, by registered
mail, to the registered office of the Company, require the Company to effect
full settlement of all the EMPLOYEE's entitlements under the terms of this
Agreement, which settlement shall also include the payment of EMPLOYEE's
remuneration for the full term of the Agreement, but in no event less than six
(6) months salary.
10. BENEFITS: EMPLOYER agrees that EMPLOYEE will be entitled, during
the term, to all fringe benefits in effect for executive officers of the
EMPLOYER, such as no-contribution medical insurance, housing, meal and car
(monthly payment, insurance, fuel, and maintenance expenses) allowances.
11. SEVERANCE: In the event this Agreement is terminated by EMPLOYER
prior to the end of its term for any reason OTHER than those set forth in
paragraphs 9(a) through 9(g) herein, then in that event EMPLOYEE will be
entitled to remuneration for the full term of the Agreement or six (6) months
compensation payable in a gross amount over the applicable period, whichever is
greater.
If EMPLOYEE is terminated for any reason set forth in
paragraphs 9(a) through 9(g), then EMPLOYEE will not be entitled to any form of
severance except as otherwise provided in paragraphs 9(a) and (f) above.
12. NO WAIVER: The parties hereto do further agree that no waiver or
modification of this Agreement or of any covenant, condition or limitation
herein contained, shall be valid, unless in writing and duly executed by the
party to be charged therewith, and that no evidence of any proceedings or
litigation between either of the parties arising out of or affecting this
Agreement or the rights and obligations of any party hereunder shall be valid
and binding unless such waiver or modification is in writing, duly executed, and
the parties further agree that the provisions of this paragraph may not be
waived except as herein set forth.
13. GOVERNING LAW: The parties hereto agree that it is their intention
and covenant that this Agreement and the performance hereunder shall be
construed in accordance with and under the laws of the State of New York, and
that the terms hereof may be enforced in any court of competent jurisdiction in
an action for specific performance which may be instituted under this Agreement,
and that in the event of any dispute or claim under the within Agreement, that
same will be resolved in the Courts of the State of New York.
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14. OPPORTUNITY TO REVIEW: EMPLOYEE and EMPLOYER warrant and represent
that each has had sufficient and adequate opportunity to consult with
independent counsel concerning the within Agreement, and has requested that the
firm of Xxxxxxx & Xxxxxxxxx prepare the within Agreement, and is aware that said
firm is relying upon the within representation prior to the parties entering
into the Agreement herein.
15. NOTICES: All notices required or permitted to be given by either
party hereunder shall be in writing and mailed by registered mail, return
receipt requested and by regular mail to the other party addressed as follows:
If to EMPLOYER at:
BrandPartners Group, Inc.
00 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
If to EMPLOYEE at:
[ ]
[ ]
[ ]
Any notice mailed, as provided above, shall be deemed completed on the date of
receipt, or five (5) days from the postmark on said postal receipt.
16. CAPTION HEADINGS: Caption headings in this Agreement are provided
merely for convenience and are of no force and effect.
17. ENTIRE AGREEMENT: This Agreement contains the total and entire
Agreement between the parties and shall, as of the effective date hereof,
supersede any and all other Agreements between the parties. The parties
acknowledge and agree that neither of them has made any representations that are
not specifically set forth herein, and each of the parties hereto acknowledges
that he or it has relied upon his or its own judgment in entering into same, and
that the within Agreement has been approved by the EMPLOYERS compensation
committee and its board of directors.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
the day, month and year first above written.
BRANDPARTNERS GROUP, INC.
By:
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XXXXX XXXXXX
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