Exhibit 10.23
AMENDED CONSULTING AGREEMENT AND GENERAL RELEASE
This Amended Consulting Agreement and General Release ("Agreement") is
entered into as of the 1st day of March, 2002, by and between Xxxx Xxxxxxx
("Consultant"), on the one hand, and Simon Worldwide, Inc., its subsidiary Simon
Marketing, Inc., and Simon Marketing (Hong Kong) Limited (together, "Simon" or
"the Company"), on the other hand.
Reference is made to the Consulting Agreement effective June 8, 1997,
as subsequently amended (the "Consulting Agreement"), between Consultant and
Simon Worldwide, Inc. and Simon Marketing, Inc.
In consideration of the mutual covenants set forth herein, and for good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
1. TERMINATION OF CONSULTING RELATIONSHIP. Consultant shall
continue to provide consulting services to Simon through June 30, 2002 (the
"Termination Date"), on which date Consultant's consulting relationship with
Simon shall terminate. Through the Termination Date, Consultant shall continue
to provide, on a non-exclusive basis, such services to Simon as he has
heretofore provided to Simon pursuant to the Consulting Agreement, including,
without limitation, using his best efforts to negotiate reductions of the
accounts payable owed by Simon Marketing (Hong Kong) Limited to its creditors.
On or prior to the Termination Date, Consultant shall resign from his membership
on the Board of Directors of Simon Marketing (Hong Kong) Limited. On and after
the Termination Date, Simon and Consultant shall have no further contractual
relationship except as may arise out of this Agreement, or as may be created by
future agreements in writing. Consultant waives any right or claim to
reinstatement as a consultant or Board Member of Simon after the Termination
Date and will not seek such reinstatement, appointment or retention in the
future with Simon.
2. CONTINUING OBLIGATIONS. Upon execution of this agreement,
Simon shall not take any action, direct or indirect, to interfere with
Consultant's new employment and/or business ventures, and, subject to his
providing the services described in Paragraph 1 above, Consultant shall be free
to engage in any business he may choose, including the solicitation of employees
and business accounts of Simon; provided, however, that in exchange for the
consideration to be provided to him hereunder, Consultant covenants:
(a) that during the six (6)-month time period immediately following
the Termination Date, Consultant will not employ any of the
following employees of Simon Marketing (Hong Kong) Limited, or
directly or indirectly induce or seek to induce any of these
employees to terminate their employment with Simon Marketing (Hong
Kong) Limited: Xxxxxxx Xxxxx, Xxxx To, Xxxx So, Xxxxx Xxxxx, Xxxxxx
Xxx and Xxxxx Xxx; provided, however, that this restriction shall
not continue to apply in the event that Simon Marketing (Hong Kong)
Limited ceases its operations prior to the expiration of this
six-month period; and provided further that if any of the
aforementioned employees is terminated involuntarily by
Simon Marketing (Hong Kong) Limited prior to the expiration of this
six-month period, Executive thereafter shall not be restricted from
employing him or her;
(b) that if, at any time following the Termination Date, Consultant
employs, or is employed by any entity that employs, any of the six
persons identified in the foregoing subparagraph (a), Consultant
shall exercise his best efforts, upon reasonable advance notice by
Simon, to make any such persons reasonably available during normal
business hours to assist Simon in connection with any ongoing
lawsuits or other legal matters of which they have knowledge;
provided, that, if requested by Consultant, Simon shall reimburse
such persons' employer, at their then-current hourly rates of
compensation, for the time devoted by them to such assistance; and
(c) that until all disputes between XxXxxxxx'x Corporation
("McDonald's) and its affiliates on the one hand and Simon and its
affiliates on the other hand have been finally resolved through a
settlement or a final court judgment, Consultant will not, without
the prior written consent of Simon, on his own behalf or on behalf
of any person, firm or company, directly or indirectly, consult or
contact McDonald's or any of its subsidiaries, affiliates,
associated companies, suppliers or agents with respect to any
matter relating to McDonald's; provide service to, or solicit or
seek to procure orders from or do business with McDonald's; or
sell, provide or cause to be manufactured any toys, promotional
premiums, or other goods for sale or distribution by McDonald's or
any of its restaurants anywhere in the world.
3. COMPENSATION TO CONSULTANT. In consideration of Consultant's
continued provision of consulting services to Simon, and of the other terms and
conditions of this Agreement, Simon shall provide Consultant with four (4) final
monthly payments each in the gross amount of $34,967, with such payments to be
payable on March 15, April 15, May 15 and June 15, 2002, respectively.
Consultant also shall be entitled to receive final commission payments, in
accordance with the commission formula set forth in the Consulting Agreement,
amounting to approximately $4823.47 with respect to certain Thermofork orders
that have been shipped to customers, upon Simon's receipt of the revenues for
those orders, and subject to Consultant's providing Simon with appropriate
documentation of the receipt of such revenues. The payments set forth in this
Paragraph 3 shall be deemed inclusive of any amounts otherwise due Consultant
for any past or future services provided by him to Simon, of any expenses of any
description incurred by Consultant on or after the Termination Date, and of any
severance compensation to which Consultant otherwise would have any entitlement.
The aforementioned payments shall also be inclusive of any other rights,
benefits or entitlements that Consultant may have under the Consulting Agreement
or any other agreement, promise, pledge, commitment or obligation of any
description; provided, however, nothing herein shall reduce Consultant's
indemnification rights and unpaid business expense reimbursements incurred on or
before the Termination Date. Consultant shall deliver all business expense
reimbursement requests and supporting documentation to Simon on or prior to the
Termination Date, and the expense reimbursements thereafter shall be promptly
provided to Consultant (so long as such expenses are in accordance with Simon
policy).
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4. COMPANY PROPERTY. On or before the Termination Date,
Consultant shall return to Simon, or such other party as directed by Simon, all
property belonging to Simon that was supplied to Consultant by Simon to assist
him in performing his consulting services.
5. INDEMNITY. Simon shall continue in effect, and arrange at its
expense for Consultant to receive the benefit of, the same indemnity agreements,
arrangements and insurance policies to the broadest extent currently afforded,
and as may, on or after the Termination Date, be afforded, to the officers
and/or directors of Simon.
6. CONFIDENTIAL INFORMATION. Consultant will not at any time,
directly or indirectly, disclose or divulge any Confidential Information (as
hereinafter defined) acquired by him during or in connection with his consulting
relationship with Simon. As used herein "Confidential Information" means all
trade secrets of Simon and all other information relating to Simon's business
that Simon treats as confidential, including information of others that Simon
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 Consultant or which Consultant is required to disclose by legal
process or to defend himself in a legal proceeding. Consultant shall make no use
whatsoever, directly or indirectly, of any Confidential Information, except
nothing herein is intended to preclude Consultant after the termination of his
consulting relationship with Simon from being employed by others or for his own
account and from using the business techniques, knowledge, marketing skills and
contacts and relationships which Consultant possesses.
7. RELEASE BY CONSULTANT. In consideration of his receipt of the
payments provided for hereunder, and except for those obligations created by or
arising out of this Agreement, including the indemnification obligations of
Simon set forth in Paragraph 5 above, Consultant hereby covenants not to xxx and
fully releases and discharges Simon and its parent, subsidiary and affiliated
entities, past and present, and each of them, 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 "Simon Releasees"),
with respect to and from any and all claims, wages, demands, rights, liens,
agreements, contracts, covenants, actions, suits, causes of action, obligations,
debts, costs, expenses, attorneys' fees, damages, judgments, orders and
liabilities of whatever kind or nature, in law, equity or otherwise, whether now
known or unknown, suspected or unsuspected, and whether or not concealed or
hidden, which he now owns or holds or has at any time heretofore owned or held
or may in the future hold as against said Simon Releasees, arising out of or in
any way connected with his consulting relationship with Simon or the termination
thereof, his stockholder status, his Board of Directors status or any other
transactions, occurrences, acts or omissions or any loss, damage or injury of
any nature or cause whatsoever, known or unknown, suspected or unsuspected,
resulting from any act or omission by or on the part of Simon and/or the Simon
Releasees, or any of them, committed or omitted on or prior to the Termination
Date (collectively, "Consultant Claims"). The foregoing release and covenant not
to xxx shall not extend to Xxxxxx Xxxxxx; The Yucaipa Companies, LLC; Overseas
Toys, L.P.; OA3, LLC; or Multi-Accounts, LLC.
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8. RELEASE BY SIMON. Except for Criminal Felony Conviction
Act(s), as defined at the end of this paragraph, and except for those
obligations created by or arising out of this Agreement, Simon, on its own
behalf and on behalf of its subsidiaries, hereby fully releases and discharges,
and covenants not to xxx, Consultant and/or his descendents, dependents, heirs,
executors, administrators, assigns and successors, past and present, and each of
them (the "Consultant 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, 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 now owns or holds or has at any
time owned or held or may in the future hold against Consultant and/or the
Consultant Releasees, resulting from any act or omission by or on the part of
Consultant and/or the Consultant Releasees, or any of them, committed or omitted
on or prior to the Termination Date, including but not limited to any and all
claims arising out of or in any way connected with Consultant's consulting
relationship with Simon, or any other occurrences, acts or omissions, or any
loss, damage or injury of any nature or cause whatsoever, known or unknown,
suspected or unsuspected, hidden or concealed, which Simon now owns or holds or
has at any time heretofore owned or held as against Consultant and/or the
Consultant's Releasees (collectively, "Simon Claims"). Criminal Felony
Conviction Act(s) shall mean specific act(s) willfully and knowingly committed
by Consultant between May 8, 1997 and the Termination Date, which result in a
final criminal felony conviction of Consultant in a court of competent
jurisdiction.
9. MUTUAL WAIVER OF CIVIL CODE SS. 1542. It is the intention of
Simon and Consultant, in executing the releases in Paragraphs 7 and 8, 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 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 and 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."
Simon and Consultant 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
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additional claims or facts. Each acknowledges that he or it understands the
significance and consequence of such release and such specific waiver of SECTION
1542.
Simon and Consultant 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.
10. NO ASSIGNMENT OR TRANSFER. Simon warrants and represents that
it has not heretofore assigned or transferred to any person not a party to this
Agreement any Simon Claim or any part or portion thereof, and Consultant
warrants and represents that he has not heretofore assigned or transferred to
any person not a party to this Agreement any Consultant Claim or any part or
portion thereof. Simon and Consultant shall each defend, indemnify 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.
11. ENTIRE AGREEMENT. This instrument constitutes and contains the
parties' entire agreement and understanding concerning Consultant's consulting
relationship with Simon, the termination thereof and all of the other subject
matters addressed herein, and supersedes and replaces all prior negotiations and
all agreements, proposed or otherwise, whether written or oral, concerning the
subject matters hereof, including, without limitation, the Consulting Agreement.
This is an integrated document. It can be amended only by a written instrument
executed by Consultant and by a duly authorized representative of Simon.
12. NO WAIVER. The failure to enforce at any time any of the
provisions of this Agreement, or to require at any time performance by the other
party of any of the provisions hereof, shall in no way be construed to be a
waiver of such provisions or to affect either the validity of this Agreement or
any part hereof or the right of either party thereafter to enforce each and
every provision in accordance with the terms of this Agreement. Any waiver must
be in writing signed by the party making the waiver.
13. CHOICE OF LAW. This Agreement shall be deemed to have been
executed and delivered within the State of California, and the rights and
obligations of the parties hereunder shall be construed and enforced in
accordance with, and governed by, the laws of the State of California without
regard to principles of conflict of laws.
14. CONSTRUCTION OF AGREEMENT. Each party has cooperated in the
drafting and preparation of this Agreement, and, accordingly, in any
construction or interpretation of this Agreement, the same shall not be
construed against any party by reason of the source of drafting.
15. COUNTERPARTS. This Agreement may be executed in counterparts,
and each counterpart, when executed, shall have the efficacy of a signed
original. Photographic copies of such signed counterparts may be used in lieu of
the originals for any purpose.
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16. ADVICE. In entering this Agreement, the parties represent that
they have relied upon the advice of their attorneys, who are attorneys of their
own choice, and that the terms of this Agreement have been completely explained
to them by their attorneys, and that those terms are fully understood and
voluntarily accepted by them.
17. CONFIDENTIALITY. Consultant agrees not to talk about, write
about, or otherwise disclose the terms or existence of this Agreement or any
fact concerning its negotiation, execution or implementation to any person
(other than his immediate family, attorney or tax advisor), firm or corporation
unless required by federal, state or local law or court order.
18. COOPERATION. All parties agree to cooperate fully and to
execute any and all supplementary documents and to take all additional actions
that may be necessary or appropriate to give full force to the basic terms and
intent of this Agreement and which are not inconsistent with its terms.
Consultant covenants to do all such other reasonable acts, to deliver all such
other documents and to provide all reasonably necessary assistance and
cooperation as may be reasonably required by Simon in connection with the
termination of his consulting relationship with Simon. Consultant also agrees to
provide reasonably necessary assistance and cooperation in connection with the
claims made by Simon and McDonald's against one another, as well as in
connection with any other legal matters concerning which Consultant has
knowledge by virtue of his consulting relationship with Simon.
19. NO DISPARAGEMENT. Simon's Board and officers with respect to
Consultant, and Consultant with respect to Simon, agree that they will not at
any time, orally or in writing, defame or intentionally make disparaging remarks
that could be expected to have a material adverse impact on the business
reputation or prospects of the other party or person, except as may be required
by law. The sole and exclusive remedy for breach of this Paragraph 19 shall be
direct money damages only.
20. AUTHORITY. Simon and Consultant each represent to the other
and agree that he or it has the full right and authority to enter into this
Agreement, and that the person executing this Agreement has the full right and
authority to fully commit and bind such party or person.
21. CHALLENGE TO AGREEMENT. Simon, at its sole expense, agrees to
timely contest any challenge to the validity of one or more provisions of this
Agreement in any proceeding in which a challenge is made, provided that, in
Simon's reasonable judgment upon consultation with counsel, Simon's contesting
such challenge would be reasonably supported by applicable law. In the event of
a challenge, Simon shall take such action as may be necessary to support the
validity of this Agreement, all at Simon's sole expense, including but not
limited to instructing its lawyers to file papers and make arguments in the
proceedings in support of the validity of this Agreement and each of its
provisions.
22. SEVERABILITY. If any provision of this Agreement other than
Paragraph 3 ("Compensation to Consultant"), Paragraph 7 ("Release by
Consultant") or Paragraph 8 ("Release by Simon") is determined by a court of
competent jurisdiction to be unlawful, void or for any reason unenforceable, in
whole or part, such provision shall be deemed
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severable from, and shall in no way affect the validity or enforceability of,
the remaining provisions of this Agreement. Should Paragraph 3, 7 or 8 be
determined by a court of competent jurisdiction to be unlawful, void or for any
reason unenforceable, in whole or part, this Agreement and all of its provisions
shall be voidable at the option of the injured party.
23. 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, unless on or prior to July 7, 2002, Consultant
initiates an arbitration proceeding alleging that Simon has wrongfully failed to
deliver any of the payments set forth in the above Paragraph 3, in which event
the arbitration proceeding shall take place in Hong Kong. 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 his or its reasonable costs and
expenses, including reasonable attorneys' fees and travel costs, incurred in
presenting his or its case in the arbitration proceeding..
24. NO ADMISSIONS. Each of the parties hereto expressly agrees and
acknowledges that this Settlement Agreement represents a settlement of disputed
claims and that, by entering into this Settlement and General Release Agreement,
no party hereto admits or acknowledges the existence of any claim or wrongdoing
on his or its part.
EXECUTED as of the date first above written at Hong Kong.
By
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Xxxx Xxxxxxx
EXECUTED as of the date first above written at Los Angeles, California.
Simon Worldwide, Inc., Simon Marketing, Inc.
By
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For the Board
Simon Marketing (Hong Kong) Limited
By
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For the Board, Xxxxx Xxxxx
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