Exhibit 10.31
AMENDMENT NO. 2 TO EXECUTIVE SERVICES AGREEMENT
This Amendment No. 2 to Executive Services Agreement is made as of March
27, 2006 by and between Simon Worldwide, Inc. (the "Company") and Xxxxxxxx
Xxxxxxx (the "Executive").
INTRODUCTION
The Company and the Executive have previously entered into an Executive
Services Agreement dated May 30, 2003, as amended by Amendment No. 1 dated as of
May 3, 2004 (the "Agreement"). The Executive has been instrumental in helping
the Company satisfy its liabilities and attain solvency over the preceding years
and is being asked to perform a significant role in determining the future
course of the business. In addition, the Executive has today been elected to the
Board of Directors of the Company. In order to (i) ensure that the Company might
retain his knowledge, expertise and services in such endeavor, (ii) retain the
continuing commitment of the Executive to provide the Company with the
substantial time and attention necessary to meet the needs of the Company, and
(iii) to conform the terms of this Agreement to those of the similar agreements
between the Company and the other members of the Board of Directors, the Company
and the Executive agree that the Agreement shall be amended as follows:
Section 4 of the Agreement shall be amended in its entirety to read as
follows:
"4. TERMINATION BY EXECUTIVE UNDER CERTAIN CIRCUMSTANCES. Notwithstanding any
other provision hereof, in the event that (i) the Executive is removed, or
voluntarily resigns upon the request of the Board or a significant shareholder,
from the Company's Board of Directors or is not nominated, appointed or elected
to a new term on the Board of Directors following the expiration of the existing
term, (ii) the composition of the Company's Board of Directors changes from the
date hereof by the addition of a total of two or more Directors, or by two or
more existing Directors ceasing to serve as Directors for any reason, (iii) the
Company fails to maintain D&O insurance as provided in Section 6 below or (iv)
there is a change of control of the Company, defined as (a) the acquisition by
any person or group of beneficial ownership, direct or indirect, of securities
of the Company representing 50% or more of the combined voting power of the
Company's then outstanding equity securities or (b) the merger or consolidation
of the Company with or into, or the sale or assignment of all or substantially
all the assets of the Company to, another person or entity, provided that
following such transaction the holders of voting stock of the Company
immediately prior to such transaction do not own more than 50% of the voting
stock of the company surviving such transaction or to which such assets are sold
or assigned, then, in any of such events, in addition to any other rights of the
Executive under this Agreement, the Executive may at any time within six (6)
months following such event terminate this Agreement and the Company shall then
pay to the Executive a lump sum payment equivalent to one (1) year compensation
at the rate set forth on Schedule A, and no further Services will be required.
The Executive shall also
be entitled to receive C.O.B.R.A. health insurance at the Company's expense and
any other payments as provided in Section 2 above."
All other terms and provisions of the Agreement shall remain in full force
and effect. This Amendment No. 2 to Executive Services Agreement has been
executed and delivered as of the date first above written.
Simon Worldwide, Inc.
By: /s/ J. Xxxxxxx Xxxxx
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J. Xxxxxxx Xxxxx
Co-Chief Executive Officer
By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
Co-Chief Executive Officer
The Executive
/s/ Xxxxxxxx Xxxxxxx
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Xxxxxxxx Xxxxxxx
