EXHIBIT 2.4
MUTUAL RELEASE AGREEMENT
Reference is made to the letter agreement dated as of March 12, 2002, as
amended by a letter dated March 22, 2002 (the "Letter Agreement"), by and
between Cyrk, Inc., a Massachusetts corporation ("Cyrk"), and Simon Worldwide,
Inc., a Delaware corporation ("Simon"), and to the Settlement Agreement, dated
on or about the date hereof, by and among Simon, Cyrk and Xxxx Xxxxxxx (the
"Xxxxxxx Settlement Agreement").
Pursuant to the Xxxxxxx Settlement Agreement, an aggregate amount of
$775,000 shall be payable to Xxxx Xxxxxxx and his attorneys. In accordance with
the terms of the Letter Agreement, Simon shall pay $500,000 of such amount, and
Cyrk shall pay $275,000 of such amount.
In consideration of the mutual covenants contained herein and in the
Letter Agreement, and for other good and valuable consideration, the receipt,
adequacy, fairness and value of which is hereby acknowledged, (i) Cyrk, with an
address of 000 Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxxxxxxxxxxx 00000, on the one hand,
and (ii) Simon, with an address of c/o Simon Marketing, Inc., 1900 Avenue of the
Stars, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, on the other hand (each a
"Releasor"; and collectively, the "Releasors"), on behalf of themselves and
their respective successors and assigns, each agree to release, acquit, remise,
and forever discharge the other Releasor and its respective predecessors,
subsidiaries, successors and assigns, and any present or former agents,
officers, directors, employees, consultants, shareholders, members, partners,
representatives, attorneys, or affiliates of the other Releasor or any of its
subsidiaries, of and from any and all claims, demands, obligations, liabilities,
indebtedness, breaches of contract, breaches of duty, acts, omissions,
malfeasance, causes of action, debts, sums of money, accounts, compensation,
contracts, controversies, promises, damages, costs, losses, and expenses, of
every description or character, heretofore, now existing, or hereafter
discovered, of whatever kind or name, whether known or unknown, liquidated or
unliquidated, or at law or in equity (collectively, the "Claims"), each as
though fully set forth herein which any of the Releasors ever had or now have;
provided, however, that this Mutual Release Agreement shall not (i) be construed
to limit or impair any Releasor from enforcing the terms of the Letter Agreement
or this Mutual Release Agreement, (ii) apply to any Claims which Simon or any of
its affiliates may have arising out of Sections 6.3(c), (d) or (g) of the
Purchase Agreement by and between Cyrk and Simon, dated as of January 20, 2001,
as amended, which Sections shall remain in full force and effect after the
effective date of this Mutual Release Agreement, (iii) apply to any Claims which
any Releasor or any of its affiliates may have arising out of any
confidentiality, nondisclosure or similar agreement or covenant, which
agreements and covenants shall remain in full force and effect after the
effective date of this Mutual Release Agreement, and (iv) apply to any Claims
that any Releasor or its affiliates may have against the other Releasor or its
affiliates for payments by customers of the Releasor or its affiliates intended
by such customer to be delivered to the Releasor for services rendered, but
mistakenly delivered to the other Releasor or its affiliates after the date of
the Letter Agreement.
Each Releasor represents and warrants to the other Releasor that it has
not transferred or assigned any of its Claims referred to herein, except for the
Claims transferred and assigned by Cyrk to Simon pursuant to paragraph 5 of the
Letter Agreement (the "Assigned Claims"). For the avoidance of doubt, Simon and
Cyrk agree that this Mutual Release Agreement shall not release any current or
former attorney of Simon and Tonkin, Inc. from any of the Assigned Claims.
This Mutual Release Agreement shall not be deemed or construed as an
admission of liability by any of the Releasors, and the Releasors expressly deny
liability of any nature whatsoever arising from or related to the subject of
this Mutual Release Agreement.
The Releasors hereby further agree, represent, and warrant that they have
had the opportunity to obtain the advice of counsel of their own choosing in
connection with all negotiations between the Releasors, as to the preparation,
execution and delivery of this release, and that they have read this Mutual
Release Agreement or have had the opportunity for the same to be read by their
counsel and have this Mutual Release Agreement fully explained by such counsel,
and that they are fully aware of its contents and legal effect.
Since freedom from costs, including attorneys' fees, of future litigation
represents an important item of consideration bargained for by the Releasors, it
is agreed that damages recoverable for breach of this Mutual Release Agreement
shall include reasonable attorneys' fees incurred as a consequence of such
breach.
This Mutual Release Agreement shall be governed by the laws of The
Commonwealth of Massachusetts, without giving effect to its conflicts of laws
principles, and shall in all cases be construed as a whole, according to its
fair meaning, and not strictly for or against any of the parties. This Mutual
Release Agreement may be separately executed in counterparts, including
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. The
parties to this Mutual Release Agreement agree to maintain the strict
confidentiality of all of the terms and conditions of this agreement, except
such terms and conditions may be disclosed to attorneys, tax advisors, or
accountants of any Releasor, or to the extent required by law. This agreement
shall not be modified or amended except by an instrument in writing signed by
all parties.
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The parties have caused this Mutual Release Agreement to be executed as of
March __, 2002.
CYRK, INC.
By:
----------------------------
(title)
SIMON WORLDWIDE,
INC.
By:
----------------------------
(title)
If you agree that the foregoing represents the agreement of the parties,
please signify by executing this letter agreement in the space provided and
returning an executed copy to me at your earliest convenience.
Very truly yours
CYRK, INC.
By:
-----------------------------------------
Xxxxxx Xxxxxxxxx, Chief Executive Officer
AGREED AS AFORESAID:
SIMON WORLDWIDE, INC.
By:
----------------------------
Name:
Title:
