EXHIBIT 10.29 1 of 6
EXECUTIVE SERVICES AGREEMENT
This Executive Services Agreement ("Agreement") is made as of May 30, 2003
by and between Simon Worldwide, Inc. (the "Company") and Xxxxxx Xxxxxxxx, (the
"Executive").
INTRODUCTION
The Company desires to retain the services of the Executive so as to
secure the Executive's availability to assist with the wind up of the Company's
former business, its compliance with corporate governance requirements and the
analysis and implementation of a future direction for the Company. The Executive
wishes to provide service to the Company and to remain available for assistance
pursuant to the terms of this Agreement. 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
shall be entitled to participate at no cost to the Executive in any health
insurance plan maintained by the Company to the extent permitted under the terms
of such plan, and along with any dependents shall be eligible to participate in
Cobra Coverage at the Executive's expense following termination of employment
hereunder.
3. TERM. The Executive's engagement by the Company hereunder shall
commence on the date hereof and continue until December 31, 2005. Such
engagement may be terminated by either party without cause as follows: The
Company may terminate this Agreement at any time by giving notice of termination
to the Executive and making a lump sum payment to the Executive equivalent to
180 days of compensation at the rate set forth on Schedule A plus the Company
shall continue to provide health insurance coverage at no cost to the Executive
for 180 days thereafter, and no further Services will be required. The Executive
may terminate this Agreement by giving 180 days prior written notice to the
Company. If the Agreement is not terminated prior to December 31, 2005, it shall
continue in effect thereafter until terminated by either party as provided
above. 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
provisions of Sections 4 through 13 hereof shall survive the termination of this
Agreement and shall continue thereafter in full force and effect.
4. TERMINATION BY EXECUTIVE UNDER CERTAIN CIRCUMSTANCES.
Notwithstanding any other provision hereof, in the event that (i) the Executive
is removed, or upon the request of the Board or a significant shareholder
voluntarily resigns, 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 or deletion of a total of
two or more Directors or (iii) the Company fails to maintain D&O Insurance as
provided in Section 6 below, 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 thirty (30) days following such event terminate this Agreement and
the Company shall then pay to the Executive a lump sum payment equivalent to 180
days of compensation at the rate set forth on Schedule A, and no further
Services will be required. The Executive shall also be entitled to receive
health insurance as provided above for a period of 180 days.
5. ONGOING COOPERATION. Following the termination of this Agreement for
any reason, the Executive agrees to cooperate with the Company as necessary with
the conduct of any litigation or regulatory or administrative proceeding or
investigation to which the Company is a party ("Legal Proceedings"). The
Executive shall be paid the hourly rate set forth in Schedule A for all time
spent in connection with such Legal Proceedings litigation, including time spent
preparing for and engaged in depositions and otherwise assisting with discovery
or other matters.
6. DIRECTORS AND OFFICERS INSURANCE. The Company agrees that for the
term hereof it will maintain directors and officers insurance coverage ("D&O
Insurance) with carriers of comparable quality and under substantially the same
terms, and conditions in an amount not less than $15 million as are currently
being maintained by the Company on the date hereof. In addition the Company
shall provide D&O coverage to the Executive for a period of three (3) years
following expiration of the term hereof.
7. CONFIDENTIALITY; INTELLECTUAL PROPERTY. In consideration of the
mutual promises contained herein, the Executive agrees that during the term of
this Agreement and thereafter:
(A) The Executive will not at any time, directly or indirectly,
disclose or divulge any Confidential Information (as hereinafter defined),
except as required in connection with the performance of the Services, and
except to the extent required by law (but only after the Executive has provided
the Company with reasonable notice and opportunity to take action against any
legally required disclosure). As used herein, "Confidential Information" means
all trade secrets and all other confidential information of a business,
financial, marketing, technical or other nature relating to the business of the
Company learned by the Executive in connection with his performance of Services
pursuant to this Agreement including, without limitation, any customer or vendor
lists, prospective customer names, financial statements and projections,
know-how, pricing policies, operational methods, methods of doing business,
technical processes, formulae, designs and design projects, inventions, computer
hardware, software programs, business plans and projects pertaining to the
Company and including any information of others that the Company has agreed to
keep confidential; provided, that Confidential
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Information shall not include any information that has entered or enters the
public domain through no fault of the Executive.
(B) The Executive shall make no use whatsoever, directly or
indirectly, of any Confidential Information, except as required in connection
with the performance of the Services to the Company.
(C) Upon the Company's request at any time and for any reason, the
Executive shall promptly deliver to the Company all materials (including all
soft and hard copies) in the Executive's possession which contain or relate to
Confidential Information.
(D) All inventions, modifications, discoveries, designs,
developments, improvements, processes, software programs, works of authorship,
documentation, formulae, data, techniques, know-how, secrets or intellectual
property rights or any interest therein (collectively, the "Developments") made
by the Executive, either alone or in conjunction with others, at any time or at
any place when the Executive is performing the Services, whether or not reduced
to writing or practice, which relate to the business in which the Company is
engaged or in which the Company intends to engage, shall be and hereby are the
exclusive property of the Company without any further compensation to the
Executive. In addition, without limiting the generality of the prior sentence,
all Developments which are copyrightable work by the Executive are intended to
be "work made for hire" as defined in Section 101 of the Copyright Act of 1976,
as amended, and shall be and hereby are the property of the Company.
(E) The Executive shall promptly disclose any Developments to the
Company. If any Development is not the property of the Company by operation of
law, this Agreement or otherwise, the Executive will, and hereby does, assign to
the Company all right, title and interest in such Development, without further
consideration, and will assist the Company and its nominees in every reasonable
way, at the Company's expense, to secure, maintain and defend the Company's
rights in such Development. The Executive shall sign all instruments necessary
for the filing and prosecution of any applications for, or extension or renewals
of, letters patent (or other intellectual property registrations or filings) of
the United States or any foreign country which the Company desires to file and
relates to any Development. The Executive hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents as such
Executive's agent and attorney-in-fact (which designation and appointment shall
be deemed coupled with an interest and shall survive the Executive's death or
incapacity), to act for and on the Executive's behalf to execute and file any
such applications, extensions or renewals and to do all other lawfully permitted
acts to further the prosecution and issuance of such letters patent, other
intellectual property registrations or filings, or such other similar documents
with the same legal force and effect as if executed by the Executive.
8. REMEDIES. Without limiting the remedies available to the Company,
the Executive acknowledges that a breach of any of the covenants contained in
Section 7 hereof could result in irreparable injury to the Company for which
there might be no adequate remedy at law, and that, in the event of such a
breach or threat thereof, the Company shall be entitled to obtain a temporary
restraining order and/or a preliminary injunction and a permanent injunction
restraining the Executive from engaging in any activities prohibited by Section
7 herein or such other equitable relief as may be required to enforce
specifically any of the covenants of Section 7 herein.
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9. MUTUAL RELEASES. Effective upon termination of this Agreement,
except for those obligations created by or arising out of (i) this Agreement
which expressly survive such termination or (ii) the Indemnification Agreement
between the Company and the Executive dated as of February 6, 2002 (the
"Indemnification Agreement"), the Company and the Executive shall enter into
mutual releases substantially in the form as follows:
"Except for those obligations referenced in the first paragraph of Section 9 of
the Executive Services Agreement dated as of May 30, 2003,
(A) the Company hereby fully releases and discharges, and
covenants not to xxx, the Executive and/or his descendants, dependants, heirs,
executors, spouse, administrators, assigns and successors, past and present, and
each of them (the "Executive Releasees"), with respect to and from any and all
claims, agreements, obligations, losses, liens, damages, injuries, causes of
action, rights, demands, contracts, covenants, actions, suits, debts, interest,
costs, expenses, attorneys' fees, judgments, orders and liabilities of whatever
kind or nature, in law, equity or otherwise, known or unknown, suspected or
unsuspected, and whether or not concealed or hidden, which it owns or holds upon
termination of this Agreement or may in the future hold against Executive and/or
the Executive's Releasees, resulting from any act or omission by or on the part
of Executive in the performance of the Services or as a member of the Board of
Directors of the Company other than acts or omissions to act which (y) result in
the Executive's conviction by, or entry of a plea of guilty in, a court of
competent jurisdiction for a felony involving moral turpitude or harm to the
business or reputation of the Company, and such conviction or guilty plea
becomes non-applicable or (z) constitute a material breach of duty to the
Company or this Agreement by the Executive or his habitual neglect of his duty
to perform the Services (collectively, "Company Claims"); and
(B) the Executive hereby covenants not to xxx and fully releases
and discharges the Company and its parent, subsidiary and affiliated entities,
past and present, and each of then, as well as its and their trustees,
directors, officers, agents, attorneys, insurers, employees, stockholders,
representatives, assigns and successors, past and present, and each of them,
hereinafter together and collectively referred to as the "Company Releasees,"
with respect to and from any and all claims, wages, demands, rights, liens,
agreements, contracts, covenants, actions, suits, causes of action, obligations,
debts, interest, costs, expenses, attorneys' fees, damaged, judgments, orders
and liabilities of whatever kind or nature in law, equity or otherwise, known or
unknown, suspected or unsuspected, and whether or not concealed or hidden, which
he owns or holds upon termination of this Agreement or may in the future hold as
against said Company Releasees, arising out of or in any way connected with the
performance of the Services and the termination of this Agreement, including
without limiting the generality of the foregoing, any claim under Title VII of
the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, the Family and Medical Leave Act of 1993, the
California Fair Employment and Housing Act, and the California Family Rights Act
(collectively "Executive Claims").
(C) It is the intention of the Company and the Executive in
executing these releases that said releases shall be effective as a bar to each
and every claim, demand and cause of action hereinabove specified. In
furtherance of this intention, each hereby knowingly, intentionally,
voluntarily, and expressly waives any and all rights and benefits conferred by
the provisions of SECTION 1542 OF THE CALIFORNIA CIVIL CODE and expressly
consents
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that this Agreement shall be given full force and effect according to each and
all of its express terms and provisions, including those related to unknown or
unsuspected claims, demands and causes of action, if any, as well as those
relating to any other claims, demands and causes of action hereinabove
specified. SECTION 1542 provides:
"A GENERAL RELEASE DOES NOT EXTEND
TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED
HIS SETTLEMENT WITH THE DEBTOR."
The Company and the Executive each acknowledge that he or it may hereafter
discover claims or facts in addition to or different from those which he or it
now knows or believes to exist with respect to the subject matter of this
Agreement or otherwise and which, if known or suspected at the time of executing
this Agreement, may have materially affected this settlement. Nevertheless, each
hereby knowingly, intentionally, voluntarily, and expressly waives any right,
claim or cause of action that might arise as a result of such different or
additional claims or facts. Each acknowledges that he or it understands the
significance and consequences of such release and such specific waiver of
SECTION 1542.
The Company and the Executive also knowingly, intentionally, voluntarily, and
expressly waive any and all rights and benefits conferred by law of any state or
territory of the United States or any foreign country or principle of common law
that is similar to SECTION 1542 OF THE CALIFORNIA CIVIL CODE.
(D) The Executive expressly acknowledges and agrees that, by
entering into this Agreement, he is waiving any and all rights or claims that he
may have arising under the Age Discrimination in Employment Act of 1967, as
amended, which may have arisen on or before the Effective Date. To this end, the
Executive further expressly acknowledges and agrees that:
A. in return for this Agreement, he will receive
compensation beyond that which he was already entitled to receive before
entering into this Agreement;
B. he was advised by the Company and is hereby advised in
writing by this Agreement to consult with an attorney before signing this
Agreement;
C. he was given a copy of this Agreement on _______ __,
20__ and informed that he had twenty-one (21) days within which to consider the
Agreement (although he may voluntarily choose to shorten that consideration
period by signing earlier); and
D. he was informed that he has seven (7) days following the
date of his execution of this Agreement in which to revoke the Agreement.
(E) The Company covenants that it will not assign or transfer to
any person not a party to this Agreement any Company Claim or any part or
portion thereof, and the Executive covenants that he will not assign or transfer
to any person not a party to this Agreement any Executive Claim or any part or
portion thereof. The Company and the Executive
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shall each defend, indemnity and hold harmless the other from and against any
claim (including the payment of attorneys' fees and costs actually incurred
whether or not litigation is commenced) based on or in connection with or
arising out of any such assignment or transfer made, purported or claimed."
10. 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.
11. 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 Xxxxxxx Xxxx Xxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Board of Directors
with a copy to:
Xxxxxx, Hall & Xxxxxxx
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Cameron Read, P.C.
(B) If to the Executive:
Mr. Xxxxxx Xxxxxxxx, Esq.
00 Xxxxxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
with a copy to:
-------------------------
-------------------------
-------------------------
Attn:
-------------------
or to such other address as the parties shall have designated by notice to the
other party.
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12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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 and the Letter Agreement.
18. 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.
19. 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
------------------------------------
Xxxxxx Xxxxxxxx
Director
By /s/ XXXXXXXX XXXXXXX
------------------------------------
Xxxxxxxx Xxxxxxx
Assistant Secretary
The Executive
/s/ XXXXXX XXXXXXXX
------------------------------------
Xxxxxx Xxxxxxxx
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Schedule A
I. SERVICES
Services to be rendered from time to time in the capacity as Director over
and above participating in Board Meetings. Such services, including
services as a Director and Board Committee Member, explicitly do not
include legal advice, legal counseling or other services or advice which
might be construed as engaging in the practice of law.
II. MAXIMUM HOURS PER MONTH
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 4 hours per
month, all served consecutively or as otherwise agreed upon by the
Executive with the Company
III. COMPENSATION
Twelve thousand dollars ($12,000) per year paid monthly. In addition to
the extent services are required in preparation for and testimony in
depositions or other discovery with respect to Legal Proceedings, the
Executive shall be compensated at the rate of $450 per hour.
IV. LEGAL PROCEEDINGS FOLLOWING TERMINATION (Section 5 Services)
$750 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.
EXHIBIT 10.29 2 of 6
EXECUTIVE SERVICES AGREEMENT
This Executive Services Agreement ("Agreement") is made as of May 30, 2003
by and between Simon Worldwide, Inc. (the "Company") and Xxxxx Xxxxx, (the
"Executive").
INTRODUCTION
The Company desires to retain the services of the Executive so as to
secure the Executive's availability to assist with the wind up of the Company's
former business, its compliance with corporate governance requirements and the
analysis and implementation of a future direction for the Company. The Executive
wishes to provide service to the Company and to remain available for assistance
pursuant to the terms of this Agreement. 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
shall be entitled to participate at no cost to the Executive in any health
insurance plan maintained by the Company to the extent permitted under the terms
of such plan, and along with any dependents shall be eligible to participate in
Cobra Coverage at the Executive's expense following termination of employment
hereunder.
3. TERM. The Executive's engagement by the Company hereunder shall
commence on the date hereof and continue until December 31, 2005. Such
engagement may be terminated by either party without cause as follows: The
Company may terminate this Agreement at any time by giving notice of termination
to the Executive and making a lump sum payment to the Executive equivalent to
180 days of compensation at the rate set forth on Schedule A plus the Company
shall continue to provide health insurance coverage at no cost to the Executive
for 180 days thereafter, and no further Services will be required after receipt
of such notice. The Executive may terminate this Agreement by giving 180 days
prior written notice to the Company. If the Agreement is not terminated prior to
December 31, 2005, it shall continue in effect thereafter until terminated by
either party as provided above. 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 provisions of Sections 4 through 13 hereof
shall survive the termination of this Agreement and shall continue thereafter in
full force and effect.
4. TERMINATION BY EXECUTIVE UNDER CERTAIN CIRCUMSTANCES.
Notwithstanding any other provision hereof, in the event that (i) the Executive
is removed, or upon the request of the Board or a significant share holder
voluntarily resigns, 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 or deletion of a total of
two or more Directors or (iii) the Company fails to maintain D&O Insurance as
provided in Section 6 below, 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 thirty (30) days following such event terminate this Agreement and
the Company shall then pay to the Executive a lump sum payment equivalent to 180
days of compensation at the rate set forth on Schedule A, and no further
Services will be required. The Executive shall also be entitled to receive
health insurance as provided above for a period of 180 days.
5. ONGOING COOPERATION. Following the termination of this Agreement for
any reason, the Executive agrees to cooperate with the Company as necessary with
the conduct of any litigation or regulatory or administrative proceeding or
investigation to which the Company is a party ("Legal Proceedings"). The
Executive shall be paid the hourly rate set forth in Schedule A for all time
spent in connection with such Legal Proceedings, including time spent preparing
for and engaged in depositions and otherwise assisting with discovery or other
matters.
6. DIRECTORS AND OFFICERS INSURANCE. The Company agrees that for the
term hereof it will maintain directors and officers insurance coverage ("D&O
Insurance) with carriers of comparable quality and under substantially the same
terms, and conditions in an amount not less than $15 million as are currently
being maintained by the Company on the date hereof. In addition the Company
shall provide D&O coverage to the Executive for a period of three (3) years
following expiration of the term hereof.
7. CONFIDENTIALITY; INTELLECTUAL PROPERTY. In consideration of the
mutual promises contained herein, the Executive agrees that during the term of
this Agreement and thereafter:
(A) The Executive will not at any time, directly or indirectly,
disclose or divulge any Confidential Information (as hereinafter defined),
except as required in connection with the performance of the Services, and
except to the extent required by law (but only after the Executive has provided
the Company with reasonable notice and opportunity to take action against any
legally required disclosure). As used herein, "Confidential Information" means
all trade secrets and all other confidential information of a business,
financial, marketing, technical or other nature relating to the business of the
Company learned by the Executive in connection with his performance of Services
pursuant to this Agreement including, without limitation, any customer or vendor
lists, prospective customer names, financial statements and projections,
know-how, pricing policies, operational methods, methods of doing business,
technical processes, formulae, designs and design projects, inventions, computer
hardware, software programs, business plans and projects pertaining to the
Company and including any information of others that the Company has agreed to
keep confidential; provided, that Confidential
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Information shall not include any information that has entered or enters the
public domain through no fault of the Executive.
(B) The Executive shall make no use whatsoever, directly or
indirectly, of any Confidential Information, except as required in connection
with the performance of the Services to the Company.
(C) Upon the Company's request at any time and for any reason, the
Executive shall promptly deliver to the Company all materials (including all
soft and hard copies) in the Executive's possession which contain or relate to
Confidential Information.
(D) All inventions, modifications, discoveries, designs,
developments, improvements, processes, software programs, works of authorship,
documentation, formulae, data, techniques, know-how, secrets or intellectual
property rights or any interest therein (collectively, the "Developments") made
by the Executive, either alone or in conjunction with others, at any time or at
any place when the Executive is performing the Services, whether or not reduced
to writing or practice, which relate to the business in which the Company is
engaged or in which the Company intends to engage, shall be and hereby are the
exclusive property of the Company without any further compensation to the
Executive. In addition, without limiting the generality of the prior sentence,
all Developments which are copyrightable work by the Executive are intended to
be "work made for hire" as defined in Section 101 of the Copyright Act of 1976,
as amended, and shall be and hereby are the property of the Company.
(E) The Executive shall promptly disclose any Developments to the
Company. If any Development is not the property of the Company by operation of
law, this Agreement or otherwise, the Executive will, and hereby does, assign to
the Company all right, title and interest in such Development, without further
consideration, and will assist the Company and its nominees in every reasonable
way, at the Company's expense, to secure, maintain and defend the Company's
rights in such Development. The Executive shall sign all instruments necessary
for the filing and prosecution of any applications for, or extension or renewals
of, letters patent (or other intellectual property registrations or filings) of
the United States or any foreign country which the Company desires to file and
relates to any Development. The Executive hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents as such
Executive's agent and attorney-in-fact (which designation and appointment shall
be deemed coupled with an interest and shall survive the Executive's death or
incapacity), to act for and on the Executive's behalf to execute and file any
such applications, extensions or renewals and to do all other lawfully permitted
acts to further the prosecution and issuance of such letters patent, other
intellectual property registrations or filings, or such other similar documents
with the same legal force and effect as if executed by the Executive.
8. REMEDIES. Without limiting the remedies available to the Company,
the Executive acknowledges that a breach of any of the covenants contained in
Section 7 hereof could result in irreparable injury to the Company for which
there might be no adequate remedy at law, and that, in the event of such a
breach or threat thereof, the Company shall be entitled to obtain a temporary
restraining order and/or a preliminary injunction and a permanent injunction
restraining the Executive from engaging in any activities prohibited by Section
7 herein or such other equitable relief as may be required to enforce
specifically any of the covenants of Section 7 herein.
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9. MUTUAL RELEASES. Effective upon termination of this Agreement,
except for those obligations created by or arising out of (i) this Agreement
which expressly survive such termination, (ii) the Indemnification Agreement
between the Company and the Executive dated as of February 6, 2002 (the
"Indemnification Agreement"), or (iii) the Termination, Severance and General
Release Agreement dated as of March 18, 2002, ("the Termination Agreement") the
Company and the Executive shall enter into mutual releases substantially in the
form as follows:
"Except for those obligations referenced in the first paragraph of Section 9 of
the Executive Services Agreement dated as of May 30,2003,
(A) the Company hereby fully releases and discharges, and
covenants not to xxx, the Executive and/or his descendants, dependants, heirs,
executors, spouse, administrators, assigns and successors, past and present, and
each of them (the "Executive Releasees"), with respect to and from any and all
claims, agreements, obligations, losses, liens, damages, injuries, causes of
action, rights, demands, contracts, covenants, actions, suits, debts, interest,
costs, expenses, attorneys' fees, judgments, orders and liabilities of whatever
kind or nature, in law, equity or otherwise, known or unknown, suspected or
unsuspected, and whether or not concealed or hidden, which it owns or holds upon
termination of this Agreement or may in the future hold against Executive and/or
the Executive's Releasees, resulting from any act or omission by or on the part
of Executive in the performance of the Services or as a member of the Board of
Directors of the Company other than acts or omissions to act which (y) result in
the Executive's conviction by, or entry of a plea of guilty in, a court of
competent jurisdiction for a felony involving moral turpitude or harm to the
business or reputation of the Company, and such conviction or guilty plea
becomes non-applicable or (z) constitute a material breach of duty to the
Company or this Agreement by the Executive or his habitual neglect of his duty
to perform the Services (collectively, "Company Claims"); and
(B) the Executive hereby covenants not to xxx and fully releases
and discharges the Company and its parent, subsidiary and affiliated entities,
past and present, and each of then, as well as its and their trustees,
directors, officers, agents, attorneys, insurers, employees, stockholders,
representatives, assigns and successors, past and present, and each of them,
hereinafter together and collectively referred to as the "Company Releasees,"
with respect to and from any and all claims, wages, demands, rights, liens,
agreements, contracts, covenants, actions, suits, causes of action, obligations,
debts, interest, costs, expenses, attorneys' fees, damaged, judgments, orders
and liabilities of whatever kind or nature in law, equity or otherwise, known or
unknown, suspected or unsuspected, and whether or not concealed or hidden, which
he owns or holds upon termination of this Agreement or may in the future hold as
against said Company Releasees, arising out of or in any way connected with the
performance of the Services and the termination of this Agreement, including
without limiting the generality of the foregoing, any claim under Title VII of
the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, the Family and Medical Leave Act of 1993, the
California Fair Employment and Housing Act, and the California Family Rights Act
(collectively "Executive Claims").
(C) It is the intention of the Company and the Executive in
executing these releases that said releases shall be effective as a bar to each
and every claim, demand and cause of action hereinabove specified. In
furtherance of this intention, each hereby knowingly,
4
intentionally, voluntarily, and expressly waives any and all rights and benefits
conferred by the provisions of SECTION 1542 OF THE CALIFORNIA CIVIL CODE and
expressly consents that this Agreement shall be given full force and effect
according to each and all of its express terms and provisions, including those
related to unknown or unsuspected claims, demands and causes of action, if any,
as well as those relating to any other claims, demands and causes of action
hereinabove specified. SECTION 1542 provides:
"A GENERAL RELEASE DOES NOT EXTEND
TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED
HIS SETTLEMENT WITH THE DEBTOR."
The Company and the Executive each acknowledge that he or it may hereafter
discover claims or facts in addition to or different from those which he or it
now knows or believes to exist with respect to the subject matter of this
Agreement or otherwise and which, if known or suspected at the time of executing
this Agreement, may have materially affected this settlement. Nevertheless, each
hereby knowingly, intentionally, voluntarily, and expressly waives any right,
claim or cause of action that might arise as a result of such different or
additional claims or facts. Each acknowledges that he or it understands the
significance and consequences of such release and such specific waiver of
SECTION 1542.
The Company and the Executive also knowingly, intentionally, voluntarily, and
expressly waive any and all rights and benefits conferred by law of any state or
territory of the United States or any foreign country or principle of common law
that is similar to SECTION 1542 OF THE CALIFORNIA CIVIL CODE.
(D) The Executive expressly acknowledges and agrees that, by
entering into this Agreement, he is waiving any and all rights or claims that he
may have arising under the Age Discrimination in Employment Act of 1967, as
amended, which may have arisen on or before the Effective Date. To this end, the
Executive further expressly acknowledges and agrees that:
A. in return for this Agreement, he will receive
compensation beyond that which he was already entitled to receive before
entering into this Agreement;
B. he was advised by the Company and is hereby advised in
writing by this Agreement to consult with an attorney before signing this
Agreement;
C. he was given a copy of this Agreement on _______ __,
20__ and informed that he had twenty-one (21) days within which to consider the
Agreement (although he may voluntarily choose to shorten that consideration
period by signing earlier); and
D. he was informed that he has seven (7) days following the
date of his execution of this Agreement in which to revoke the Agreement.
5
(E) The Company covenants that it will not assign or transfer to
any person not a party to this Agreement any Company Claim or any part or
portion thereof, and the Executive covenants that he will not assign or transfer
to any person not a party to this Agreement any Executive Claim or any part or
portion thereof. The Company and the Executive shall each defend, indemnity and
hold harmless the other from and against any claim (including the payment of
attorneys' fees and costs actually incurred whether or not litigation is
commenced) based on or in connection with or arising out of any such assignment
or transfer made, purported or claimed."
10. 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.
11. 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 Xxxxxxx Xxxx Xxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Board of Directors
with a copy to:
Xxxxxx, Xxxx & Xxxxxxx
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Cameron Read, P.C.
(B) If to the Executive:
Mr. Xxxxx Xxxxx
0000 Xx Xxxxxx Xxx
Xxxxxxx Xxxxx, XX 00000
with a copy to:
-------------------------
-------------------------
-------------------------
Attn:
-------------------
6
or to such other address as the parties shall have designated by notice to the
other party.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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 and the Termination Agreement, which is
not affected by this Agreement and all the terms and conditions of which shall
remain in full force and effect.
18. 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.
19. 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.
7
This Agreement has been executed and delivered as of the date first above
written.
SIMON WORLDWIDE, INC.
By /s/ J. XXXXXXX XXXXX
------------------------------------
J. Xxxxxxx Xxxxx
Chairman Compensation Committee
By /s/ XXXXXXXX XXXXXXX
------------------------------------
Xxxxxxxx Xxxxxxx
Assistant Secretary
The Executive
/s/ XXXXX XXXXX
------------------------------------
Xxxxx Xxxxx
8
Schedule A
I. SERVICES
Services to be rendered from time to time in the capacity as Director over
and above participating in Board Meetings.
II. MAXIMUM HOURS PER MONTH
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 4 hours per
month, all served consecutively or as otherwise agreed upon by the
Executive with the Company
III. COMPENSATION
Twelve thousand dollars ($12,000) per year paid monthly. In addition to
the extent services are required in preparation for and testimony in
depositions or other discovery with respect to Legal Proceeding, the
Executive shall be compensated at the rate of $450 per hour.
IV. LEGAL PROCEEDINGS FOLLOWING TERMINATION (Section 5 Services)
$750 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.
EXHIBIT 10.29 3 of 6
EXECUTIVE SERVICES AGREEMENT
This Executive Services Agreement ("Agreement") is made as of May 30, 2003
by and between Simon Worldwide, Inc. (the "Company") and Xxxxxx Xxxxxxxx, (the
"Executive").
Introduction
The Company desires to retain the services of the Executive so as to
secure the Executive's availability to assist with the wind up of the Company's
former business, its compliance with corporate governance requirements and the
analysis and implementation of a future direction for the Company. The Executive
wishes to provide service to the Company and to remain available for assistance
pursuant to the terms of this Agreement. 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
shall be entitled to participate at no cost to the Executive in any health
insurance plan maintained by the Company to the extent permitted under the terms
of such plan, and along with any dependents shall be eligible to participate in
Cobra coverage at the Executive's expense following termination of employment
hereunder.
3. TERM. The Executive's engagement by the Company hereunder shall
commence on the date hereof and continue until December 31, 2005. Such
engagement may be terminated by either party without cause as follows: The
Company may terminate this Agreement at any time by giving notice of termination
to the Executive and making a lump sum payment to the Executive equivalent to
180 days of compensation at the rate set forth on Schedule A plus the Company
shall continue to provide health insurance coverage at no cost to the Executive
for 180 days thereafter, and no further Services will be required after receipt
of such notice. The Executive may terminate this Agreement by giving 180 days
prior written notice to the Company. If the Agreement is not terminated prior to
December 31, 2005, it shall continue in effect thereafter until terminated by
either party as provided above. 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 provisions of Sections 4 through 13 hereof
shall survive the termination of this Agreement and shall continue thereafter in
full force and effect.
4. TERMINATION BY EXECUTIVE UNDER CERTAIN CIRCUMSTANCES.
Notwithstanding any other provision hereof, in the event that (i) the Executive
is removed, or upon the request of the Board or a significant shareholder
voluntarily resigns, 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 or deletion of a total of
two or more Directors or (iii) the Company fails to maintain D&O Insurance as
provided in Section 6 below, 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 thirty (30) days following such event terminate this Agreement and
the Company shall then pay to the Executive a lump sum payment equivalent to 180
days of compensation at the rate set forth on Schedule A, and no further
Services will be required. The Executive shall also be entitled to receive
health insurance as provided above for a period of 180 days.
5. ONGOING COOPERATION. Following the termination of this Agreement for
any reason, the Executive agrees to cooperate with the Company as necessary with
the conduct of any litigation or regulatory or administrative proceeding or
investigation to which the Company is a party ("Legal Proceedings"). The
Executive shall be paid the hourly rate set forth in Schedule A for all time
spent in connection with such Legal Proceedings, including time spent preparing
for and engaged in depositions and otherwise assisting with discovery or other
matters.
6. DIRECTORS AND OFFICERS INSURANCE. The Company agrees that for the
term hereof it will maintain directors and officers insurance coverage ("D&O
Insurance) in an amount not less than $15 million with carriers of comparable
quality and under substantially the same terms, and conditions as are currently
being maintained by the Company on the date hereof. In addition the Company
shall provide D&O coverage to the Executive for a period of three (3) years
following expiration of the term hereof.
7. CONFIDENTIALITY; INTELLECTUAL PROPERTY. In consideration of the
mutual promises contained herein, the Executive agrees that during the term of
this Agreement and thereafter:
(A) The Executive will not at any time, directly or indirectly,
disclose or divulge any Confidential Information (as hereinafter defined),
except as required in connection with the performance of the Services, and
except to the extent required by law (but only after the Executive has provided
the Company with reasonable notice and opportunity to take action against any
legally required disclosure). As used herein, "Confidential Information" means
all trade secrets and all other confidential information of a business,
financial, marketing, technical or other nature relating to the business of the
Company learned by the Executive in connection with his performance of Services
pursuant to this Agreement including, without limitation, any customer or vendor
lists, prospective customer names, financial statements and projections,
know-how, pricing policies, operational methods, methods of doing business,
technical processes, formulae, designs and design projects, inventions, computer
hardware, software programs, business plans and projects pertaining to the
Company and including any information of others that the Company has agreed to
keep confidential; provided, that Confidential
2
Information shall not include any information that has entered or enters the
public domain through no fault of the Executive.
(B) The Executive shall make no use whatsoever, directly or
indirectly, of any Confidential Information, except as required in connection
with the performance of the Services to the Company.
(C) Upon the Company's request at any time and for any reason, the
Executive shall promptly deliver to the Company all materials (including all
soft and hard copies) in the Executive's possession which contain or relate to
Confidential Information.
(D) All inventions, modifications, discoveries, designs,
developments, improvements, processes, software programs, works of authorship,
documentation, formulae, data, techniques, know-how, secrets or intellectual
property rights or any interest therein (collectively, the "Developments") made
by the Executive, either alone or in conjunction with others, at any time or at
any place when the Executive is performing the Services, whether or not reduced
to writing or practice, which relate to the business in which the Company is
engaged or in which the Company intends to engage, shall be and hereby are the
exclusive property of the Company without any further compensation to the
Executive. In addition, without limiting the generality of the prior sentence,
all Developments which are copyrightable work by the Executive are intended to
be "work made for hire" as defined in Section 101 of the Copyright Act of 1976,
as amended, and shall be and hereby are the property of the Company.
(E) The Executive shall promptly disclose any Developments to the
Company. If any Development is not the property of the Company by operation of
law, this Agreement or otherwise, the Executive will, and hereby does, assign to
the Company all right, title and interest in such Development, without further
consideration, and will assist the Company and its nominees in every reasonable
way, at the Company's expense, to secure, maintain and defend the Company's
rights in such Development. The Executive shall sign all instruments necessary
for the filing and prosecution of any applications for, or extension or renewals
of, letters patent (or other intellectual property registrations or filings) of
the United States or any foreign country which the Company desires to file and
relates to any Development. The Executive hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents as such
Executive's agent and attorney-in-fact (which designation and appointment shall
be deemed coupled with an interest and shall survive the Executive's death or
incapacity), to act for and on the Executive's behalf to execute and file any
such applications, extensions or renewals and to do all other lawfully permitted
acts to further the prosecution and issuance of such letters patent, other
intellectual property registrations or filings, or such other similar documents
with the same legal force and effect as if executed by the Executive.
8. REMEDIES. Without limiting the remedies available to the Company,
the Executive acknowledges that a breach of any of the covenants contained in
Section 7 hereof could result in irreparable injury to the Company for which
there might be no adequate remedy at law, and that, in the event of such a
breach or threat thereof, the Company shall be entitled to obtain a temporary
restraining order and/or a preliminary injunction and a permanent injunction
restraining the Executive from engaging in any activities prohibited by Section
7 herein or such other equitable relief as may be required to enforce
specifically any of the covenants of Section 7 herein.
3
9. MUTUAL RELEASES. Effective upon termination of this Agreement,
except for those obligations created by or arising out of (i) this Agreement
which expressly survive such termination, (ii) the Indemnification Agreement
between the Company and the Executive dated as of February 6, 2002 (the
"Indemnification Agreement") or (iii) the letter agreement between the Company
and the Executive dated February 7, 2003 (the "Letter Agreement"), the Company
and the Executive shall enter into mutual releases substantially in the form as
follows:
"Except for those obligations referenced in the first paragraph of Section 9 of
the Executive Services Agreement dated as of May 30,2003,
(A) the Company hereby fully releases and discharges, and
covenants not to xxx, the Executive and/or his descendants, dependants, heirs,
executors, spouse, administrators, assigns and successors, past and present, and
each of them (the "Executive Releasees"), with respect to and from any and all
claims, agreements, obligations, losses, liens, damages, injuries, causes of
action, rights, demands, contracts, covenants, actions, suits, debts, interest,
costs, expenses, attorneys' fees, judgments, orders and liabilities of whatever
kind or nature, in law, equity or otherwise, known or unknown, suspected or
unsuspected, and whether or not concealed or hidden, which it owns or holds upon
termination of this Agreement or may in the future hold against Executive and/or
the Executive's Releasees, resulting from any act or omission by or on the part
of Executive in the performance of the Services or as a member of the Board of
Directors of the Company other than acts or omissions to act which (y) result in
the Executive's conviction by, or entry of a plea of guilty in, a court of
competent jurisdiction for a felony involving moral turpitude or harm to the
business or reputation of the Company, and such conviction or guilty plea
becomes non-applicable or (z) constitute a material breach of duty to the
Company or this Agreement by the Executive or his habitual neglect of his duty
to perform the Services (collectively, "Company Claims"); and
(B) the Executive hereby covenants not to xxx and fully releases
and discharges the Company and its parent, subsidiary and affiliated entities,
past and present, and each of then, as well as its and their trustees,
directors, officers, agents, attorneys, insurers, employees, stockholders,
representatives, assigns and successors, past and present, and each of them,
hereinafter together and collectively referred to as the "Company Releasees,"
with respect to and from any and all claims, wages, demands, rights, liens,
agreements, contracts, covenants, actions, suits, causes of action, obligations,
debts, interest, costs, expenses, attorneys' fees, damaged, judgments, orders
and liabilities of whatever kind or nature in law, equity or otherwise, known or
unknown, suspected or unsuspected, and whether or not concealed or hidden, which
he owns or holds upon termination of this Agreement or may in the future hold as
against said Company Releasees, arising out of or in any way connected with the
performance of the Services and the termination of this Agreement, including
without limiting the generality of the foregoing, any claim under Title VII of
the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, the Family and Medical Leave Act of 1993, the
California Fair Employment and Housing Act, and the California Family Rights Act
(collectively "Executive Claims").
(C) It is the intention of the Company and the Executive in
executing these releases that said releases shall be effective as a bar to each
and every claim, demand and cause of action hereinabove specified. In
furtherance of this intention, each hereby knowingly,
4
intentionally, voluntarily, and expressly waives any and all rights and benefits
conferred by the provisions of SECTION 1542 OF THE CALIFORNIA CIVIL CODE and
expressly consents that this Agreement shall be given full force and effect
according to each and all of its express terms and provisions, including those
related to unknown or unsuspected claims, demands and causes of action, if any,
as well as those relating to any other claims, demands and causes of action
hereinabove specified. SECTION 1542 provides:
"A GENERAL RELEASE DOES NOT EXTEND
TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED
HIS SETTLEMENT WITH THE DEBTOR."
The Company and the Executive each acknowledge that he or it may hereafter
discover claims or facts in addition to or different from those which he or it
now knows or believes to exist with respect to the subject matter of this
Agreement or otherwise and which, if known or suspected at the time of executing
this Agreement, may have materially affected this settlement. Nevertheless, each
hereby knowingly, intentionally, voluntarily, and expressly waives any right,
claim or cause of action that might arise as a result of such different or
additional claims or facts. Each acknowledges that he or it understands the
significance and consequences of such release and such specific waiver of
SECTION 1542.
The Company and the Executive also knowingly, intentionally, voluntarily, and
expressly waive any and all rights and benefits conferred by law of any state or
territory of the United States or any foreign country or principle of common law
that is similar to SECTION 1542 OF THE CALIFORNIA CIVIL CODE.
(D) The Executive expressly acknowledges and agrees that, by
entering into this Agreement, he is waiving any and all rights or claims that he
may have arising under the Age Discrimination in Employment Act of 1967, as
amended, which may have arisen on or before the Effective Date. To this end, the
Executive further expressly acknowledges and agrees that:
A. in return for this Agreement, he will receive
compensation beyond that which he was already entitled to receive before
entering into this Agreement;
B. he was advised by the Company and is hereby advised in
writing by this Agreement to consult with an attorney before signing this
Agreement;
C. he was given a copy of this Agreement on _______ __,
20__ and informed that he had twenty-one (21) days within which to consider the
Agreement (although he may voluntarily choose to shorten that consideration
period by signing earlier); and
D. he was informed that he has seven (7) days following the
date of his execution of this Agreement in which to revoke the Agreement.
5
(E) The Company covenants that it will not assign or transfer to
any person not a party to this Agreement any Company Claim or any part or
portion thereof, and the Executive covenants that he will not assign or transfer
to any person not a party to this Agreement any Executive Claim or any part or
portion thereof. The Company and the Executive shall each defend, indemnity and
hold harmless the other from and against any claim (including the payment of
attorneys' fees and costs actually incurred whether or not litigation is
commenced) based on or in connection with or arising out of any such assignment
or transfer made, purported or claimed."
10. 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.
11. 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 Xxxxxxx Xxxx Xxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Board of Directors
with a copy to:
Xxxxxx, Xxxx & Xxxxxxx
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Cameron Read, P.C.
(B) If to the Executive:
Xx. Xxxxxx Xxxxxxxx
0 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
with a copy to:
-------------------------
-------------------------
-------------------------
Attn:
-------------------
6
or to such other address as the parties shall have designated by notice to the
other party.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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 and the Letter Agreement.
18. 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.
19. 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.
7
This Agreement has been executed and delivered as of the date first above
written.
SIMON WORLDWIDE, INC.
By /s/ J. XXXXXXX XXXXX
------------------------------------
J. Xxxxxxx Xxxxx
Chairman Compensation Committee
By /s/ XXXXXXXX XXXXXXX
------------------------------------
Xxxxxxxx Xxxxxxx
Assistant Secretary
The Executive
/s/ XXXXXX XXXXXXXX
------------------------------------
Xxxxxx Xxxxxxxx
8
Schedule A
I. SERVICES
Oversee and manage the Company and perform the duties of Co-Chief
Executive Officer, including participation in the Executive Committee and
staff meetings as necessary.
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
Six thousand seven hundred thirty-five dollars ($6,735) 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 $450 per hour for hours in
excess of twenty (20) per week.
IV. LEGAL PROCEEDINGS FOLLOWING TERMINATION (Section 5 Services)
$750 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.
Exhibit 10.29 4 of 6
EXECUTIVE SERVICES AGREEMENT
This Executive Services Agreement ("Agreement") is made as of May 30,
2003 by and between Simon Worldwide, Inc. (the "Company") and J. Xxxxxxx Xxxxx,
(the "Executive").
INTRODUCTION
The Company desires to retain the services of the Executive so as to
secure the Executive's availability to assist with the wind up of the Company's
former business, its compliance with corporate governance requirements and the
analysis and implementation of a future direction for the Company. The Executive
wishes to provide service to the Company and to remain available for assistance
pursuant to the terms of this Agreement. 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
shall be reimbursed as an out of pocket expense for health insurance in an
amount equal to the cost to the Company of the premium which would cover the
Executive had he been included under any health plan maintained by the Company.
3. TERM. The Executive's engagement by the Company hereunder
shall commence on the date hereof and continue until December 31, 2005. Such
engagement may be terminated by either party without cause as follows: The
Company may terminate this Agreement at any time by giving notice of termination
to the Executive and making a lump sum payment to the Executive equivalent to
180 days of compensation at the rate set forth on Schedule A plus the cost of
health insurance for 180 days, and no further Services will be required. The
Executive may terminate this Agreement by giving 180 days prior written notice
to the Company. If the Agreement is not terminated prior to December 31, 2005,
it shall continue in effect thereafter until terminated by either party as
provided above. 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 provisions of Sections 4 through 13 hereof
shall survive the termination of this Agreement and shall continue thereafter in
full force and effect.
4. TERMINATION BY EXECUTIVE UNDER CERTAIN CIRCUMSTANCES.
Notwithstanding any other provision hereof, in the event that (i) the Executive
is removed, or upon the request of the Board or a significant shareholder
voluntarily resigns, 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 or deletion of a total of
two or more Directors or (iii) the Company fails to maintain D&O Insurance as
provided in Section 6 below, 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 thirty (30) days following such event terminate this Agreement and
the Company shall then pay to the Executive a lump sum payment equivalent to 180
days of compensation at the rate set forth on Schedule A, and no further
Services will be required. The Executive shall also be entitled to receive
health insurance as provided above for a period of 180 days.
5. ONGOING COOPERATION. Following the termination of this
Agreement for any reason, the Executive agrees to cooperate with the Company as
necessary with the conduct of any litigation or regulatory or administrative
proceeding or investigation to which the Company is a party ("Legal
Proceedings"). The Executive shall be paid the hourly rate set forth in Schedule
A for all time spent in connection with such Legal Proceedings, including time
spent preparing for and engaged in depositions and otherwise assisting with
discovery or other matters.
6. DIRECTORS AND OFFICERS INSURANCE. The Company agrees that for
the term hereof it will maintain directors and officers insurance coverage ("D&O
Insurance) in an amount not less than $15 million with carriers of comparable
quality and under substantially the same terms, and conditions as are currently
being maintained by the Company on the date hereof. In addition the Company
shall provide D&O coverage to the Executive for a period of three (3) years
following expiration of the term hereof.
7. CONFIDENTIALITY; INTELLECTUAL PROPERTY. In consideration of
the mutual promises contained herein, the Executive agrees that during the term
of this Agreement and thereafter:
(A) The Executive will not at any time, directly or
indirectly, disclose or divulge any Confidential Information (as hereinafter
defined), except as required in connection with the performance of the Services,
and except to the extent required by law (but only after the Executive has
provided the Company with reasonable notice and opportunity to take action
against any legally required disclosure). As used herein, "Confidential
Information" means all trade secrets and all other confidential information of a
business, financial, marketing, technical or other nature relating to the
business of the Company learned by the Executive in connection with his
performance of Services pursuant to this Agreement including, without
limitation, any customer or vendor lists, prospective customer names, financial
statements and projections, know-how, pricing policies, operational methods,
methods of doing business, technical processes, formulae, designs and design
projects, inventions, computer hardware, software programs, business plans and
projects pertaining to the Company and including any information of others that
the Company has agreed to keep confidential; provided, that Confidential
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(B) The Executive shall make no use whatsoever, directly
or indirectly, of any Confidential Information, except as required in connection
with the performance of the Services to the Company.
(C) Upon the Company's request at any time and for any
reason, the Executive shall promptly deliver to the Company all materials
(including all soft and hard copies) in the Executive's possession which contain
or relate to Confidential Information.
(D) All inventions, modifications, discoveries, designs,
developments, improvements, processes, software programs, works of authorship,
documentation, formulae, data, techniques, know-how, secrets or intellectual
property rights or any interest therein (collectively, the "Developments") made
by the Executive, either alone or in conjunction with others, at any time or at
any place when the Executive is performing the Services, whether or not reduced
to writing or practice, which relate to the business in which the Company is
engaged or in which the Company intends to engage, shall be and hereby are the
exclusive property of the Company without any further compensation to the
Executive. In addition, without limiting the generality of the prior sentence,
all Developments which are copyrightable work by the Executive are intended to
be "work made for hire" as defined in Section 101 of the Copyright Act of 1976,
as amended, and shall be and hereby are the property of the Company.
(E) The Executive shall promptly disclose any
Developments to the Company. If any Development is not the property of the
Company by operation of law, this Agreement or otherwise, the Executive will,
and hereby does, assign to the Company all right, title and interest in such
Development, without further consideration, and will assist the Company and its
nominees in every reasonable way, at the Company's expense, to secure, maintain
and defend the Company's rights in such Development. The Executive shall sign
all instruments necessary for the filing and prosecution of any applications
for, or extension or renewals of, letters patent (or other intellectual property
registrations or filings) of the United States or any foreign country which the
Company desires to file and relates to any Development. The Executive hereby
irrevocably designates and appoints the Company and its duly authorized officers
and agents as such Executive's agent and attorney-in-fact (which designation and
appointment shall be deemed coupled with an interest and shall survive the
Executive's death or incapacity), to act for and on the Executive's behalf to
execute and file any such applications, extensions or renewals and to do all
other lawfully permitted acts to further the prosecution and issuance of such
letters patent, other intellectual property registrations or filings, or such
other similar documents with the same legal force and effect as if executed by
the Executive.
8. REMEDIES. Without limiting the remedies available to the
Company, the Executive acknowledges that a breach of any of the covenants
contained in Section 7 hereof could result in irreparable injury to the Company
for which there might be no adequate remedy at law, and that, in the event of
such a breach or threat thereof, the Company shall be entitled to obtain a
temporary restraining order and/or a preliminary injunction and a permanent
injunction restraining the Executive from engaging in any activities prohibited
by Section 7 herein or such other equitable relief as may be required to enforce
specifically any of the covenants of Section 7 herein.
3
9. MUTUAL RELEASES. Effective upon termination of this Agreement,
except for those obligations created by or arising out of (i) this Agreement
which expressly survive such termination, (ii) the Indemnification Agreement
between the Company and the Executive dated as of February 6, 2002 (the
"Indemnification Agreement") or (iii) the letter agreement between the Company
and the Executive dated February 7, 2003 (the "Letter Agreement"), the Company
and the Executive shall enter into mutual releases substantially in the form as
follows:
"Except for those obligations referenced in the first paragraph of Section 9 of
the Executive Services Agreement dated as of May 30, 2003,
(A) the Company hereby fully releases and discharges, and
covenants not to xxx, the Executive and/or his descendants, dependants, heirs,
executors, spouse, administrators, assigns and successors, past and present, and
each of them (the "Executive Releasees"), with respect to and from any and all
claims, agreements, obligations, losses, liens, damages, injuries, causes of
action, rights, demands, contracts, covenants, actions, suits, debts, interest,
costs, expenses, attorneys' fees, judgments, orders and liabilities of whatever
kind or nature, in law, equity or otherwise, known or unknown, suspected or
unsuspected, and whether or not concealed or hidden, which it owns or holds upon
termination of this Agreement or may in the future hold against Executive and/or
the Executive's Releasees, resulting from any act or omission by or on the part
of Executive in the performance of the Services or as a member of the Board of
Directors of the Company other than acts or omissions to act which (y) result in
the Executive's conviction by, or entry of a plea of guilty in, a court of
competent jurisdiction for a felony involving moral turpitude or harm to the
business or reputation of the Company, and such conviction or guilty plea
becomes non-applicable or (z) constitute a material breach of duty to the
Company or this Agreement by the Executive or his habitual neglect of his duty
to perform the Services (collectively, "Company Claims"); and
(B) the Executive hereby covenants not to xxx and fully
releases and discharges the Company and its parent, subsidiary and affiliated
entities, past and present, and each of then, as well as its and their trustees,
directors, officers, agents, attorneys, insurers, employees, stockholders,
representatives, assigns and successors, past and present, and each of them,
hereinafter together and collectively referred to as the "Company Releasees,"
with respect to and from any and all claims, wages, demands, rights, liens,
agreements, contracts, covenants, actions, suits, causes of action, obligations,
debts, interest, costs, expenses, attorneys' fees, damaged, judgments, orders
and liabilities of whatever kind or nature in law, equity or otherwise, known or
unknown, suspected or unsuspected, and whether or not concealed or hidden, which
he owns or holds upon termination of this Agreement or may in the future hold as
against said Company Releasees, arising out of or in any way connected with the
performance of the Services and the termination of this Agreement, including
without limiting the generality of the foregoing, any claim under Title VII of
the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, the Family and Medical Leave Act of 1993, the
California Fair Employment and Housing Act, and the California Family Rights Act
(collectively "Executive Claims").
(C) It is the intention of the Company and the Executive
in executing these releases that said releases shall be effective as a bar to
each and every claim, demand and cause of action hereinabove specified. In
furtherance of this intention, each hereby knowingly,
4
intentionally, voluntarily, and expressly waives any and all rights and benefits
conferred by the provisions of SECTION 1542 OF THE CALIFORNIA CIVIL CODE and
expressly consents that this Agreement shall be given full force and effect
according to each and all of its express terms and provisions, including those
related to unknown or unsuspected claims, demands and causes of action, if any,
as well as those relating to any other claims, demands and causes of action
hereinabove specified. SECTION 1542 provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST
HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
The Company and the Executive each acknowledge that he or it may hereafter
discover claims or facts in addition to or different from those which he or it
now knows or believes to exist with respect to the subject matter of this
Agreement or otherwise and which, if known or suspected at the time of executing
this Agreement, may have materially affected this settlement. Nevertheless, each
hereby knowingly, intentionally, voluntarily, and expressly waives any right,
claim or cause of action that might arise as a result of such different or
additional claims or facts. Each acknowledges that he or it understands the
significance and consequences of such release and such specific waiver of
SECTION 1542.
The Company and the Executive also knowingly, intentionally, voluntarily, and
expressly waive any and all rights and benefits conferred by law of any state or
territory of the United States or any foreign country or principle of common law
that is similar to SECTION 1542 OF THE CALIFORNIA CIVIL CODE.
(D) The Executive expressly acknowledges and agrees that,
by entering into this Agreement, he is waiving any and all rights or claims that
he may have arising under the Age Discrimination in Employment Act of 1967, as
amended, which may have arisen on or before the Effective Date. To this end, the
Executive further expressly acknowledges and agrees that:
A. in return for this Agreement, he will
receive compensation beyond that which he was already entitled to receive before
entering into this Agreement;
B. he was advised by the Company and is hereby
advised in writing by this Agreement to consult with an attorney before signing
this Agreement;
C. he was given a copy of this Agreement on
_______ __, 20__ and informed that he had twenty-one (21) days within which to
consider the Agreement (although he may voluntarily choose to shorten that
consideration period by signing earlier); and
D. he was informed that he has seven (7) days
following the date of his execution of this Agreement in which to revoke the
Agreement.
5
(E) The Company covenants that it will not assign or
transfer to any person not a party to this Agreement any Company Claim or any
part or portion thereof, and the Executive covenants that he will not assign or
transfer to any person not a party to this Agreement any Executive Claim or any
part or portion thereof. The Company and the Executive shall each defend,
indemnity and hold harmless the other from and against any claim (including the
payment of attorneys' fees and costs actually incurred whether or not litigation
is commenced) based on or in connection with or arising out of any such
assignment or transfer made, purported or claimed."
10. 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.
11. 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 Xxxxxxx Xxxx Xxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Board of Directors
with a copy to:
Xxxxxx, Hall & Xxxxxxx
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Cameron Read, P.C.
(B) If to the Executive:
Mr. J. Xxxxxxx Xxxxx
0000 Xxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
with a copy to:
---------------------------
---------------------------
---------------------------
Attn:
----------------------
6
or to such other address as the parties shall have designated by notice to the
other party.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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 and the Letter Agreement.
18. 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.
19. 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.
7
This Agreement has been executed and delivered as of the date first
above written.
SIMON WORLDWIDE, INC.
By /s/ XXXXXX XXXXXXXX
----------------------------------
Xxxxxx Xxxxxxxx
Director
By /s/ XXXXXXXX XXXXXXX
----------------------------------
Xxxxxxxx Xxxxxxx
Assistant Secretary
The Executive
/s/ J. XXXXXXX XXXXX
----------------------------------
J. Xxxxxxx Xxxxx
8
Schedule A
I. SERVICES
Oversee and manage the Company and perform the duties of Co-Chief
Executive Officer, including participation in the Executive Committee
and staff meetings as necessary.
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
Six thousand seven hundred thirty-five dollars ($6,735) 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 $450 per
hour for hours in excess of twenty (20) per week.
IV. LEGAL PROCEEDINGS FOLLOWING TERMINATION (Section 5 Services)
$750 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.
Exhibit 10.29 5 of 6
EXECUTIVE SERVICES AGREEMENT
This Executive Services Agreement ("Agreement") is made as of May 30,
2003 by and between Simon Worldwide, Inc. (the "Company") and Xxxx Xxxx, (the
"Executive").
INTRODUCTION
The Company desires to retain the services of the Executive so as to
secure the Executive's availability to assist with the wind up of the Company's
former business, its compliance with corporate governance requirements and the
analysis and implementation of a future direction for the Company. The Executive
wishes to provide service to the Company and to remain available for assistance
pursuant to the terms of this Agreement. 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
shall be entitled to participate at no cost to the Executive in any health
insurance plan maintained by the Company to the extent permitted under the terms
of such plan, and along with any dependants shall be eligible to participate in
Cobra coverage at the Executive's expense following termination of employment
hereunder.
3. TERM. The Executive's engagement by the Company hereunder
shall commence on the date hereof and continue until December 31, 2005. Such
engagement may be terminated by either party without cause as follows: The
Company may terminate this Agreement at any time by giving notice of termination
to the Executive and making a lump sum payment to the Executive equivalent to
180 days of compensation at the rate set forth on Schedule A, plus the Company
shall continue to provide health insurance coverage at no cost to the Executive
for 180 days thereafter and no further Services will be required. The Executive
may terminate this Agreement by giving 180 days prior written notice to the
Company. If the Agreement is not terminated prior to December 31, 2005, it shall
continue in effect thereafter until terminated by either party as provided
above. 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
provisions of Sections 4 through 13 hereof shall survive the termination of this
Agreement and shall continue thereafter in full force and effect.
4. TERMINATION BY EXECUTIVE UNDER CERTAIN CIRCUMSTANCES.
Notwithstanding any other provision hereof, in the event that (i) the
composition of the Company's Board of Directors changes from the date hereof by
the addition or deletion of a total or two or more Directors, or (ii) the
Company fails to maintain D&O Insurance as provided in Section 6 below, 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 thirty (30) days following such
event terminate this Agreement and the Company shall then pay to the Executive a
lump sum payment equivalent to 180 days of compensation at the rate set forth on
Schedule A, and no further Services will be required. The Executive shall also
be entitled to receive health insurance as provided above for a period of 180
days.
5. ONGOING COOPERATION. Following the termination of this
Agreement for any reason, the Executive agrees to cooperate with the Company as
necessary with the conduct of any litigation or regulatory or administrative
proceeding or investigation to which the Company is a party ("Legal
Proceedings"). The Executive shall be paid the hourly rate set forth in Schedule
A for all time spent in connection with such Legal Proceedings, including time
spent preparing for and engaged in depositions and otherwise assisting with
discovery or other matters.
6. DIRECTORS AND OFFICERS INSURANCE. The Company agrees that for
the term hereof it will maintain directors and officers insurance coverage ("D&O
Insurance) in an amount not less than $15 million with carriers of comparable
quality and under substantially the same terms, and conditions as are currently
being maintained by the Company on the date hereof. In addition the Company
shall provide D&O coverage to the Executive for a period of three (3) years
following expiration of the term hereof.
7. CONFIDENTIALITY; INTELLECTUAL PROPERTY. In consideration of
the mutual promises contained herein, the Executive agrees that during the term
of this Agreement and thereafter:
(A) The Executive will not at any time, directly or
indirectly, disclose or divulge any Confidential Information (as hereinafter
defined), except as required in connection with the performance of the Services,
and except to the extent required by law (but only after the Executive has
provided the Company with reasonable notice and opportunity to take action
against any legally required disclosure). As used herein, "Confidential
Information" means all trade secrets and all other confidential information of a
business, financial, marketing, technical or other nature relating to the
business of the Company learned by the Executive in connection with his
performance of Services pursuant to this Agreement including, without
limitation, any customer or vendor lists, prospective customer names, financial
statements and projections, know-how, pricing policies, operational methods,
methods of doing business, technical processes, formulae, designs and design
projects, inventions, computer hardware, software programs, business plans and
projects pertaining to the Company and including any information of others that
the Company has agreed to keep confidential; provided, that Confidential
Information shall not include any information that has entered or enters the
public domain through no fault of the Executive.
2
(B) The Executive shall make no use whatsoever, directly
or indirectly, of any Confidential Information, except as required in connection
with the performance of the Services to the Company.
(C) Upon the Company's request at any time and for any
reason, the Executive shall promptly deliver to the Company all materials
(including all soft and hard copies) in the Executive's possession which contain
or relate to Confidential Information.
(D) All inventions, modifications, discoveries, designs,
developments, improvements, processes, software programs, works of authorship,
documentation, formulae, data, techniques, know-how, secrets or intellectual
property rights or any interest therein (collectively, the "Developments") made
by the Executive, either alone or in conjunction with others, at any time or at
any place when the Executive is performing the Services, whether or not reduced
to writing or practice, which relate to the business in which the Company is
engaged or in which the Company intends to engage, shall be and hereby are the
exclusive property of the Company without any further compensation to the
Executive. In addition, without limiting the generality of the prior sentence,
all Developments which are copyrightable work by the Executive are intended to
be "work made for hire" as defined in Section 101 of the Copyright Act of 1976,
as amended, and shall be and hereby are the property of the Company.
(E) The Executive shall promptly disclose any
Developments to the Company. If any Development is not the property of the
Company by operation of law, this Agreement or otherwise, the Executive will,
and hereby does, assign to the Company all right, title and interest in such
Development, without further consideration, and will assist the Company and its
nominees in every reasonable way, at the Company's expense, to secure, maintain
and defend the Company's rights in such Development. The Executive shall sign
all instruments necessary for the filing and prosecution of any applications
for, or extension or renewals of, letters patent (or other intellectual property
registrations or filings) of the United States or any foreign country which the
Company desires to file and relates to any Development. The Executive hereby
irrevocably designates and appoints the Company and its duly authorized officers
and agents as such Executive's agent and attorney-in-fact (which designation and
appointment shall be deemed coupled with an interest and shall survive the
Executive's death or incapacity), to act for and on the Executive's behalf to
execute and file any such applications, extensions or renewals and to do all
other lawfully permitted acts to further the prosecution and issuance of such
letters patent, other intellectual property registrations or filings, or such
other similar documents with the same legal force and effect as if executed by
the Executive.
8. REMEDIES. Without limiting the remedies available to the
Company, the Executive acknowledges that a breach of any of the covenants
contained in Section 7 hereof could result in irreparable injury to the Company
for which there might be no adequate remedy at law, and that, in the event of
such a breach or threat thereof, the Company shall be entitled to obtain a
temporary restraining order and/or a preliminary injunction and a permanent
injunction restraining the Executive from engaging in any activities prohibited
by Section 7 herein or such other equitable relief as may be required to enforce
specifically any of the covenants of Section 7 herein.
3
9. MUTUAL RELEASES. Effective upon termination of this Agreement,
except for those obligations created by or arising out of (i) this Agreement
which expressly survive such termination, or (ii) the Indemnification Agreement
between the Company and the Executive dated as of February 6, 2002 (the
"Indemnification Agreement"), the Company and the Executive shall enter into
mutual releases substantially in the form as follows:
"Except for those obligations referenced in the first paragraph of Section 9 of
the Executive Services Agreement dated as of May 30, 2003,
(A) the Company hereby fully releases and discharges, and
covenants not to xxx, the Executive and/or his descendants, dependants, heirs,
executors, spouse, administrators, assigns and successors, past and present, and
each of them (the "Executive Releasees"), with respect to and from any and all
claims, agreements, obligations, losses, liens, damages, injuries, causes of
action, rights, demands, contracts, covenants, actions, suits, debts, interest,
costs, expenses, attorneys' fees, judgments, orders and liabilities of whatever
kind or nature, in law, equity or otherwise, known or unknown, suspected or
unsuspected, and whether or not concealed or hidden, which it owns or holds upon
termination of this Agreement or may in the future hold against Executive and/or
the Executive's Releasees, resulting from any act or omission by or on the part
of Executive in the performance of the Services other than acts or omissions to
act which (y) result in the Executive's conviction by, or entry of a plea of
guilty in, a court of competent jurisdiction for a felony involving moral
turpitude or harm to the business or reputation of the Company, and such
conviction or guilty plea becomes non-applicable or (z) constitute a material
breach of duty to the Company or this Agreement by the Executive or his habitual
neglect of his duty to perform the Services (collectively, "Company Claims");
and
(B) the Executive hereby covenants not to xxx and fully
releases and discharges the Company and its parent, subsidiary and affiliated
entities, past and present, and each of then, as well as its and their trustees,
directors, officers, agents, attorneys, insurers, employees, stockholders,
representatives, assigns and successors, past and present, and each of them,
hereinafter together and collectively referred to as the "Company Releasees,"
with respect to and from any and all claims, wages, demands, rights, liens,
agreements, contracts, covenants, actions, suits, causes of action, obligations,
debts, interest, costs, expenses, attorneys' fees, damaged, judgments, orders
and liabilities of whatever kind or nature in law, equity or otherwise, known or
unknown, suspected or unsuspected, and whether or not concealed or hidden, which
he owns or holds upon termination of this Agreement or may in the future hold as
against said Company Releasees, arising out of or in any way connected with the
performance of the Services and the termination of this Agreement, including
without limiting the generality of the foregoing, any claim under Title VII of
the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, the Family and Medical Leave Act of 1993, the
California Fair Employment and Housing Act, and the California Family Rights Act
(collectively "Executive Claims").
(C) It is the intention of the Company and the Executive
in executing these releases that said releases shall be effective as a bar to
each and every claim, demand and cause of action hereinabove specified. In
furtherance of this intention, each hereby knowingly, intentionally,
voluntarily, and expressly waives any and all rights and benefits conferred by
the provisions of SECTION 1542 OF THE CALIFORNIA CIVIL CODE and expressly
consents
4
that this Agreement shall be given full force and effect according to each and
all of its express terms and provisions, including those related to unknown or
unsuspected claims, demands and causes of action, if any, as well as those
relating to any other claims, demands and causes of action hereinabove
specified. SECTION 1542 provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST
HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
The Company and the Executive each acknowledge that he or it may hereafter
discover claims or facts in addition to or different from those which he or it
now knows or believes to exist with respect to the subject matter of this
Agreement or otherwise and which, if known or suspected at the time of executing
this Agreement, may have materially affected this settlement. Nevertheless, each
hereby knowingly, intentionally, voluntarily, and expressly waives any right,
claim or cause of action that might arise as a result of such different or
additional claims or facts. Each acknowledges that he or it understands the
significance and consequences of such release and such specific waiver of
SECTION 1542.
The Company and the Executive also knowingly, intentionally, voluntarily, and
expressly waive any and all rights and benefits conferred by law of any state or
territory of the United States or any foreign country or principle of common law
that is similar to SECTION 1542 OF THE CALIFORNIA CIVIL CODE.
(D) The Executive expressly acknowledges and agrees that,
by entering into this Agreement, he is waiving any and all rights or claims that
he may have arising under the Age Discrimination in Employment Act of 1967, as
amended, which may have arisen on or before the Effective Date. To this end, the
Executive further expressly acknowledges and agrees that:
A. in return for this Agreement, he will
receive compensation beyond that which he was already entitled to receive before
entering into this Agreement;
B. he was advised by the Company and is hereby
advised in writing by this Agreement to consult with an attorney before signing
this Agreement;
C. he was given a copy of this Agreement on
_______ __, 20__ and informed that he had twenty-one (21) days within which to
consider the Agreement (although he may voluntarily choose to shorten that
consideration period by signing earlier); and
D. he was informed that he has seven (7) days
following the date of his execution of this Agreement in which to revoke the
Agreement.
(E) The Company covenants that it will not assign or
transfer to any person not a party to this Agreement any Company Claim or any
part or portion thereof, and the Executive covenants that he will not assign or
transfer to any person not a party to this
5
Agreement any Executive Claim or any part or portion thereof. The Company and
the Executive shall each defend, indemnity and hold harmless the other from and
against any claim (including the payment of attorneys' fees and costs actually
incurred whether or not litigation is commenced) based on or in connection with
or arising out of any such assignment or transfer made, purported or claimed."
10. 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.
11. 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 Xxxxxxx Xxxx Xxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Board of Directors
with a copy to:
Xxxxxx, Hall & Xxxxxxx
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Cameron Read, P.C.
(B) If to the Executive:
Xxxx Xxxx
00 Xxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
with a copy to:
---------------------------
---------------------------
---------------------------
Attn:
----------------------
or to such other address as the parties shall have designated by notice to the
other party.
6
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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 and the Letter Agreement.
18. 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.
19. 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.
7
This Agreement has been executed and delivered as of the date first
above written.
SIMON WORLDWIDE, INC.
By /s/ XXXXXX XXXXXXXX
----------------------------------
Xxxxxx Xxxxxxxx
Director
By /s/ XXXXXXXX XXXXXXX
----------------------------------
Xxxxxxxx Xxxxxxx
Assistant Secretary
The Executive
/s/ XXXX XXXX
----------------------------------
Xxxx Xxxx
8
Schedule A
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.
Exhibit 10.29 6 of 6
EXECUTIVE SERVICES AGREEMENT
This Executive Services Agreement ("Agreement") is made as of May 30,
2003 by and between Simon Worldwide, Inc. (the "Company") and Xxxx Xxxx, (the
"Executive").
INTRODUCTION
The Company desires to retain the services of the Executive so as to
secure the Executive's availability to assist with the wind up of the Company's
former business, its compliance with corporate governance requirements and the
analysis and implementation of a future direction for the Company. The Executive
wishes to provide service to the Company and to remain available for assistance
pursuant to the terms of this Agreement. 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
shall be entitled to participate at no cost to the Executive in any health
insurance plan maintained by the Company to the extent permitted under the terms
of such plan, and along with any dependants shall be eligible to participate in
Cobra coverage at the Executive's expense following termination of employment
hereunder.
3. TERM. The Executive's engagement by the Company hereunder
shall commence on the date hereof and continue until December 31, 2005. Such
engagement may be terminated by either party without cause as follows: The
Company may terminate this Agreement at any time by giving notice of termination
to the Executive and making a lump sum payment to the Executive equivalent to
180 days of compensation at the rate set forth on Schedule A, plus the Company
shall continue to provide health insurance coverage at no cost to the Executive
for 180 days thereafter and no further Services will be required. The Executive
may terminate this Agreement by giving 180 days prior written notice to the
Company. If the Agreement is not terminated prior to December 31, 2005, it shall
continue in effect thereafter until terminated by either party as provided
above. 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
provisions of Sections 4 through 13 hereof shall survive the termination of this
Agreement and shall continue thereafter in full force and effect.
4. TERMINATION BY EXECUTIVE UNDER CERTAIN CIRCUMSTANCES.
Notwithstanding any other provision hereof, in the event that (i) the
composition of the Company's Board of Directors changes from the date hereof by
the addition or deletion of a total or two or more Directors, or (ii) the
Company fails to maintain D&O Insurance as provided in Section 6 below, 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 thirty (30) days following such
event terminate this Agreement and the Company shall then pay to the Executive a
lump sum payment equivalent to 180 days of compensation at the rate set forth on
Schedule A, and no further Services will be required. The Executive shall also
be entitled to receive health insurance as provided above for a period of 180
days.
5. ONGOING COOPERATION. Following the termination of this
Agreement for any reason, the Executive agrees to cooperate with the Company as
necessary with the conduct of any litigation or regulatory or administrative
proceeding or investigation to which the Company is a party ("Legal
Proceedings"). The Executive shall be paid the hourly rate set forth in Schedule
A for all time spent in connection with such Legal Proceedings, including time
spent preparing for and engaged in depositions and otherwise assisting with
discovery or other matters.
6. DIRECTORS AND OFFICERS INSURANCE. The Company agrees that for
the term hereof it will maintain directors and officers insurance coverage ("D&O
Insurance) in an amount not less than $15 million with carriers of comparable
quality and under substantially the same terms, and conditions as are currently
being maintained by the Company on the date hereof. In addition the Company
shall provide D&O coverage to the Executive for a period of three (3) years
following expiration of the term hereof.
7. CONFIDENTIALITY; INTELLECTUAL PROPERTY. In consideration of
the mutual promises contained herein, the Executive agrees that during the term
of this Agreement and thereafter:
(A) The Executive will not at any time, directly or
indirectly, disclose or divulge any Confidential Information (as hereinafter
defined), except as required in connection with the performance of the Services,
and except to the extent required by law (but only after the Executive has
provided the Company with reasonable notice and opportunity to take action
against any legally required disclosure). As used herein, "Confidential
Information" means all trade secrets and all other confidential information of a
business, financial, marketing, technical or other nature relating to the
business of the Company learned by the Executive in connection with his
performance of Services pursuant to this Agreement including, without
limitation, any customer or vendor lists, prospective customer names, financial
statements and projections, know-how, pricing policies, operational methods,
methods of doing business, technical processes, formulae, designs and design
projects, inventions, computer hardware, software programs, business plans and
projects pertaining to the Company and including any information of others that
the Company has agreed to keep confidential; provided, that Confidential
Information shall not include any information that has entered or enters the
public domain through no fault of the Executive.
2
(B) The Executive shall make no use whatsoever, directly
or indirectly, of any Confidential Information, except as required in connection
with the performance of the Services to the Company.
(C) Upon the Company's request at any time and for any
reason, the Executive shall promptly deliver to the Company all materials
(including all soft and hard copies) in the Executive's possession which contain
or relate to Confidential Information.
(D) All inventions, modifications, discoveries, designs,
developments, improvements, processes, software programs, works of authorship,
documentation, formulae, data, techniques, know-how, secrets or intellectual
property rights or any interest therein (collectively, the "Developments") made
by the Executive, either alone or in conjunction with others, at any time or at
any place when the Executive is performing the Services, whether or not reduced
to writing or practice, which relate to the business in which the Company is
engaged or in which the Company intends to engage, shall be and hereby are the
exclusive property of the Company without any further compensation to the
Executive. In addition, without limiting the generality of the prior sentence,
all Developments which are copyrightable work by the Executive are intended to
be "work made for hire" as defined in Section 101 of the Copyright Act of 1976,
as amended, and shall be and hereby are the property of the Company.
(E) The Executive shall promptly disclose any
Developments to the Company. If any Development is not the property of the
Company by operation of law, this Agreement or otherwise, the Executive will,
and hereby does, assign to the Company all right, title and interest in such
Development, without further consideration, and will assist the Company and its
nominees in every reasonable way, at the Company's expense, to secure, maintain
and defend the Company's rights in such Development. The Executive shall sign
all instruments necessary for the filing and prosecution of any applications
for, or extension or renewals of, letters patent (or other intellectual property
registrations or filings) of the United States or any foreign country which the
Company desires to file and relates to any Development. The Executive hereby
irrevocably designates and appoints the Company and its duly authorized officers
and agents as such Executive's agent and attorney-in-fact (which designation and
appointment shall be deemed coupled with an interest and shall survive the
Executive's death or incapacity), to act for and on the Executive's behalf to
execute and file any such applications, extensions or renewals and to do all
other lawfully permitted acts to further the prosecution and issuance of such
letters patent, other intellectual property registrations or filings, or such
other similar documents with the same legal force and effect as if executed by
the Executive.
8. REMEDIES. Without limiting the remedies available to the
Company, the Executive acknowledges that a breach of any of the covenants
contained in Section 7 hereof could result in irreparable injury to the Company
for which there might be no adequate remedy at law, and that, in the event of
such a breach or threat thereof, the Company shall be entitled to obtain a
temporary restraining order and/or a preliminary injunction and a permanent
injunction restraining the Executive from engaging in any activities prohibited
by Section 7 herein or such other equitable relief as may be required to enforce
specifically any of the covenants of Section 7 herein.
3
9. MUTUAL RELEASES. Effective upon termination of this Agreement,
except for those obligations created by or arising out of (i) this Agreement
which expressly survive such termination, or (ii) the Indemnification Agreement
between the Company and the Executive dated as of February 6, 2002 (the
"Indemnification Agreement"), the Company and the Executive shall enter into
mutual releases substantially in the form as follows:
"Except for those obligations referenced in the first paragraph of Section 9 of
the Executive Services Agreement dated as of May 30, 2003,
(A) the Company hereby fully releases and discharges, and
covenants not to xxx, the Executive and/or his descendants, dependants, heirs,
executors, spouse, administrators, assigns and successors, past and present, and
each of them (the "Executive Releasees"), with respect to and from any and all
claims, agreements, obligations, losses, liens, damages, injuries, causes of
action, rights, demands, contracts, covenants, actions, suits, debts, interest,
costs, expenses, attorneys' fees, judgments, orders and liabilities of whatever
kind or nature, in law, equity or otherwise, known or unknown, suspected or
unsuspected, and whether or not concealed or hidden, which it owns or holds upon
termination of this Agreement or may in the future hold against Executive and/or
the Executive's Releasees, resulting from any act or omission by or on the part
of Executive in the performance of the Services other than acts or omissions to
act which (y) result in the Executive's conviction by, or entry of a plea of
guilty in, a court of competent jurisdiction for a felony involving moral
turpitude or harm to the business or reputation of the Company, and such
conviction or guilty plea becomes non-applicable or (z) constitute a material
breach of duty to the Company or this Agreement by the Executive or his habitual
neglect of his duty to perform the Services (collectively, "Company Claims");
and
(B) the Executive hereby covenants not to xxx and fully
releases and discharges the Company and its parent, subsidiary and affiliated
entities, past and present, and each of then, as well as its and their trustees,
directors, officers, agents, attorneys, insurers, employees, stockholders,
representatives, assigns and successors, past and present, and each of them,
hereinafter together and collectively referred to as the "Company Releasees,"
with respect to and from any and all claims, wages, demands, rights, liens,
agreements, contracts, covenants, actions, suits, causes of action, obligations,
debts, interest, costs, expenses, attorneys' fees, damaged, judgments, orders
and liabilities of whatever kind or nature in law, equity or otherwise, known or
unknown, suspected or unsuspected, and whether or not concealed or hidden, which
he owns or holds upon termination of this Agreement or may in the future hold as
against said Company Releasees, arising out of or in any way connected with the
performance of the Services and the termination of this Agreement, including
without limiting the generality of the foregoing, any claim under Title VII of
the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, the Family and Medical Leave Act of 1993, the
California Fair Employment and Housing Act, and the California Family Rights Act
(collectively "Executive Claims").
(C) It is the intention of the Company and the Executive
in executing these releases that said releases shall be effective as a bar to
each and every claim, demand and cause of action hereinabove specified. In
furtherance of this intention, each hereby knowingly, intentionally,
voluntarily, and expressly waives any and all rights and benefits conferred by
the provisions of SECTION 1542 OF THE CALIFORNIA CIVIL CODE and expressly
consents
4
that this Agreement shall be given full force and effect according to each and
all of its express terms and provisions, including those related to unknown or
unsuspected claims, demands and causes of action, if any, as well as those
relating to any other claims, demands and causes of action hereinabove
specified. SECTION 1542 provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST
HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
The Company and the Executive each acknowledge that he or it may hereafter
discover claims or facts in addition to or different from those which he or it
now knows or believes to exist with respect to the subject matter of this
Agreement or otherwise and which, if known or suspected at the time of executing
this Agreement, may have materially affected this settlement. Nevertheless, each
hereby knowingly, intentionally, voluntarily, and expressly waives any right,
claim or cause of action that might arise as a result of such different or
additional claims or facts. Each acknowledges that he or it understands the
significance and consequences of such release and such specific waiver of
SECTION 1542.
The Company and the Executive also knowingly, intentionally, voluntarily, and
expressly waive any and all rights and benefits conferred by law of any state or
territory of the United States or any foreign country or principle of common law
that is similar to SECTION 1542 OF THE CALIFORNIA CIVIL CODE.
(D) The Executive expressly acknowledges and agrees that,
by entering into this Agreement, he is waiving any and all rights or claims that
he may have arising under the Age Discrimination in Employment Act of 1967, as
amended, which may have arisen on or before the Effective Date. To this end, the
Executive further expressly acknowledges and agrees that:
A. in return for this Agreement, he will
receive compensation beyond that which he was already entitled to receive before
entering into this Agreement;
B. he was advised by the Company and is hereby
advised in writing by this Agreement to consult with an attorney before signing
this Agreement;
C. he was given a copy of this Agreement on
_______ __, 20__ and informed that he had twenty-one (21) days within which to
consider the Agreement (although he may voluntarily choose to shorten that
consideration period by signing earlier); and
D. he was informed that he has seven (7) days
following the date of his execution of this Agreement in which to revoke the
Agreement.
(E) The Company covenants that it will not assign or
transfer to any person not a party to this Agreement any Company Claim or any
part or portion thereof, and the Executive covenants that he will not assign or
transfer to any person not a party to this
5
Agreement any Executive Claim or any part or portion thereof. The Company and
the Executive shall each defend, indemnity and hold harmless the other from and
against any claim (including the payment of attorneys' fees and costs actually
incurred whether or not litigation is commenced) based on or in connection with
or arising out of any such assignment or transfer made, purported or claimed."
10. 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.
11. 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 Xxxxxxx Xxxx Xxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Board of Directors
with a copy to:
Xxxxxx, Xxxx & Xxxxxxx
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Cameron Read, P.C.
(B) If to the Executive:
Xx. Xxxxxxxx Xxxxxxx, Esq.
0000 Xxxxxxx Xxxxx
Xxxxxx Xxx Xxx, XX 00000
with a copy to:
---------------------------
---------------------------
---------------------------
Attn:
----------------------
or to such other address as the parties shall have designated by notice to the
other party.
6
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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 and the Letter Agreement.
18. 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.
19. 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.
7
This Agreement has been executed and delivered as of the date first
above written.
SIMON WORLDWIDE, INC.
/s/ J. XXXXXXX XXXXX
----------------------------------
J. Xxxxxxx Xxxxx
Director
By /s/ XXXXXX XXXXXXXX
----------------------------------
Xxxxxx Xxxxxxxx
Director
The Executive
XXXXXXXX XXXXXXX
----------------------------------
Xxxxxxxx Xxxxxxx
8
Schedule A
I. SERVICES
Manage and provide legal services to the Company and its General
Counsel.
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
Three thousand three hundred sixty-five dollars ($3,365) 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
a testimony in depositions or other discovery with respect to Legal
Proceedings, the Executive shall be compensated at the rate of $125
per hour for hours in excess of twenty (20) per week.
IV. LEGAL PROCEEDINGS FOLLOWING TERMINATION (Section 5 Services)
$250 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.
