Exhibit 10.32
NEW EXECUTIVE SERVICES AGREEMENT
This New Executive Services Agreement ("Agreement") is made as of March 27,
2006 by and between Simon Worldwide, Inc. (the "Company") and Xxxx Xxxx, (the
"Executive").
INTRODUCTION
The Company and the Executive are parties to an Executive Services
Agreement dated as of May 30, 2003, as amended by Amendment No. 1 dated as of
May 3, 2004 (the "Prior Agreement"). The Prior Agreement was terminated on the
date hereof in connection with the Executive's resignation, at the Company's
request, from the Board of Directors of the Company. The Company desires that
the Executive continue to provide to the Company the services provided by the
Executive under the Prior Agreement in accordance with the terms of this
Agreement, and the Executive wishes to provide such services. Therefore, the
Company and the Executive agree as follows:
1. SERVICES. The Executive shall perform the services for the Company,
and shall have the duties and responsibilities, described in Schedule A hereto
(the "Services") during the term of this Agreement. The Executive shall be
available to provide the Services for such time each week as shall be necessary
to perform the Services, or as otherwise provided in Schedule A. Executive may
engage in activities for other unrelated entities during the term hereof, but
shall at all times maintain the ability and availability to perform the Services
and shall engage in no activities which would constitute a conflict of interest
with the Company.
2. COMPENSATION. For Services rendered during the term of this Agreement,
the Executive shall be entitled to compensation in the amount and on the payment
terms set forth on Schedule A. The Executive shall also be entitled to
reimbursement of reasonable and necessary out-of-pocket expenses incurred by the
Executive in the ordinary course of business on behalf of the Company in
accordance with Company policy, subject to the presentation of appropriate
documentation. In addition, during the term of this Agreement the Executive and
any dependents shall be entitled to participate at no cost to the Executive in a
health insurance plan maintained by the Company at substantially the same
benefit level as of the date hereof, and along with any dependents shall be
eligible to participate in C.O.B.R.A. coverage at the expense of the Company
following termination of employment hereunder for as long as then permissible
under C.O.B.R.A. and at the same benefit level as of the date hereof.
3. TERM. The Executive's engagement by the Company hereunder shall
commence on the date hereof and continue until terminated by either party at any
time by giving 90 days prior written notice to the other party. Following
termination of this Agreement, the Company shall pay to the Executive all
compensation that had accrued, and shall reimburse all expenses incurred by the
Executive, prior to the date of termination in accordance with Section 2 hereof.
The C.O.B.R.A. obligations set forth in Section 2 shall survive the termination
of this Agreement and shall continue thereafter in full force and effect.
4. SURVIVAL OF CERTAIN PROVISIONS OF PRIOR AGREEMENT. The Company and the
Executive acknowledge and confirm their agreement that the provisions of
Sections 5 through 13 of the Prior Agreement survive the termination of the
Prior Agreement and continue thereafter in full force and effect.
5. ENFORCEABILITY, ETC. This Agreement shall be interpreted so as to be
effective under applicable law, but if any portion hereof is prohibited or
invalid, such portion shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of this Agreement.
6. NOTICES. Any notice, demand or other communication given pursuant to
this Agreement shall be in writing and shall be personally delivered, sent by
nationally recognized overnight courier, or mailed by first class certified or
registered mail, postage prepaid, return receipt requested as follows:
(a) If to the Company:
0000 X. Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Board of Directors
with a copy to:
Xxxxxx, Hall & Xxxxxxx LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Cameron Read
(b) If to the Executive:
Xxxx Xxxx
00 Xxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
with a copy to:
---------------------------------
---------------------------------
---------------------------------
Attn:
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or to such other address as the parties shall have designated by notice to the
other party.
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7. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of California, without regard to
its choice of law principles.
8. DISPUTE RESOLUTION. Any dispute or claim relating to the enforcement
or any alleged breach of this Agreement shall be resolved exclusively through
final and binding arbitration before a neutral arbitrator, pursuant to the
Employment Arbitration Rules of the American Arbitration Association. Any
arbitration proceeding initiated hereunder shall take place in Los Angeles,
California. The costs of any arbitration proceeding (including the arbitrator's
fees) initiated hereunder shall be borne equally by the parties, and the
prevailing party in any proceeding shall be entitled to recover reasonable costs
and expenses, including reasonable attorneys' fees and travel costs, incurred in
presenting the case in the arbitration proceeding.
9. AMENDMENTS AND WAIVERS. This Agreement may be amended or modified only
by a written instrument signed by the Company and the Executive. No waiver of
this Agreement or any provision hereof shall be binding upon the party against
whom enforcement of such waiver is sought unless it is made in writing and
signed by or on behalf of such party. The waiver of a breach of any provision of
this Agreement shall not be construed as a waiver or a continuing waiver of the
same or any subsequent breach of any provision of this Agreement. No delay or
omission in exercising any right under this Agreement shall operate as a waiver
of that or any other right.
10. BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding on and
inure to the benefit of the parties hereto and their respective heirs, executors
and administrators, successors and assigns, except that the rights and
obligations of the Executive hereunder are personal and may not be assigned
without the Company's prior written consent.
11. NO CONFLICTS. The Executive represents to the Company that the
Executive is not a party to or bound by any agreement or commitment that
conflicts with the obligations of the Executive under this Agreement.
12. ENTIRE AGREEMENT. This Agreement constitutes the final and entire
agreement of the parties with respect to the matters covered hereby, and
replaces and supersedes all other agreements and understandings relating thereto
other than the Indemnification Agreement, the Letter Agreement and, to the
extent provided in Section 4 of this Agreement, the Prior Agreement.
13. CAPTIONS. The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
14. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
and counterparts by facsimile, each of which shall be deemed an original, but
all of which when taken together shall constitute one and the same instrument.
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This Agreement has been executed and delivered as of the date first above
written.
SIMON WORLDWIDE, INC.
By /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
Co-Chief Executive Officer
By /s/ J. Xxxxxxx Xxxxx
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J. Xxxxxxx Xxxxx
Co-Chief Executive Officer
The Executive
/s/ Xxxx Xxxx
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Xxxx Xxxx
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Schedule A
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I. SERVICES
Manage the finance and financial reporting functions of the Company
including performing the duties of the Chief Financial Officer.
II. MAXIMUM HOURS PER WEEK
In the event that the Executive elects to terminate the Agreement by giving
180 days notice of termination, then during such 180 day period the
Executive may be required to provide services for a maximum of 8 hours per
week, all served consecutively or as otherwise agreed upon by the Executive
with the Company
III. COMPENSATION
Four thousand forty dollars ($4,040) per week paid bi-weekly. In addition
to the extent Services are required beyond twenty (20) hours per week (i)
in connection with the analysis and negotiation of mergers, acquisitions or
business combinations which the Company might pursue from time to time or
(ii) in preparation for and testimony in depositions or other discovery
with respect to Legal Proceedings, the Executive shall be compensated at
the rate of $250 per hour for hours in excess of twenty (20) per week.
IV. LEGAL PROCEEDINGS FOLLOWING TERMINATION (Section 5 Services)
$400 per hour for all preparation, deposition and discovery time. The
Company shall at the request of the Executive provide independent legal
counsel selected by the Executive at the Company's expense.
