August 28, 1996
Xxxxxx Xxxxxx
Vice President and General Manager
Merisel Americas, Inc.
000 Xxxxxxxxxxx Xxxx.
El Segundo, CA 90245
PERSONAL AND CONFIDENTIAL
Dear Xxxxxx:
This letter amends that certain letter agreement
between you and Merisel Americas, Inc. ("Americas"), dated
June 1, 1995 (the "Letter Agreement"). Except as
specifically amended hereby, the Letter Agreement remains in
full force and effect.
The definition of "Applicable Time Period" is hereby
amended to be the period commencing on the date hereof and
extending through March 31, 1998.
Notwithstanding anything to the contrary contained in
the Letter Agreement, for purposes of the Letter Agreement,
as amended hereby, your employment shall be considered to be
terminated without cause, if (A) your employment is
terminated for any reason, other than your misconduct
(misconduct includes physical assault, insubordination,
falsification or misrepresentation of facts on company
records, fraud, dishonesty, willful destruction of company
property or assets, or harassment of another Associate by
you), excessive absenteeism, abuse of sick time or your
conviction for or a plea of nolo contendere by you to a
felony or any crime involving moral turpitude or (B) you
resign due to any of the following having occurred (i)
following an Americas Change of Control, there has been a
material reduction in your job responsibilities from those
that existed on the date hereof, it being understood that a
mere change in title alone shall not constitute a material
reduction in your job responsibilities, (ii) following an
Americas Change of Control, without your prior written
approval, you are required to be based anywhere other than
your current location, it being understood that required
business travel to an extent consistent with your current
business travel obligations does not constitute a
requirement that you be based somewhere other than your
current location, (iii) there has been a reduction in your
base salary, other than an across-the-board reduction in the
salary level of all of Americas' Vice Presidents in the same
percentage amount as part of a general salary level
reduction, or (iv) a successor to all or substantially all
of the business and assets of Americas' failed to furnish
you with the assumption agreement required below.
Retention Bonus. In order to induce you to remain as
an employee of Americas, Americas has guaranteed to pay you
50 % of your annual target bonus for 1996 (the "Guaranteed
Bonus"), a quarter of which Guaranteed Bonus shall be paid
quarterly as provided in the next sentence. Accordingly,
provided that you continue to be employed by Americas on the
date that the earnings for the applicable fiscal quarter of
Merisel, Inc. are released (the "Earnings Release Date"),
Americas shall pay to you the Guaranteed Bonus for that
quarter on the next regularly scheduled payday following the
Earnings Release Date. The amount of Guaranteed Bonus paid
to you, that would not otherwise have been earned by you
based on performance, shall be excluded from the calculation
of the Severance Payment under the Letter Agreement.
Mitigation. You shall have no obligation to mitigate
the amount of any payment provided for in the Letter
Agreement, as amended hereby, by seeking employment or
otherwise.
Assumption Agreement. Americas will require any
successor (whether direct or indirect, by purchase, merger
consolidation or otherwise) to all or substantially all of
the business and assets of Americas, expressly to assume
and agree to perform the Letter Agreement, as amended
hereby, in the same manner and to the same extent that
Americas would be required to perform it whether or not such
succession had taken place.
An "Americas Change of Control" shall have occurred if
(i) any person, corporation, partnership, trust,
association, enterprise or group, other than Merisel, Inc.,
shall become the beneficial owner, directly or indirectly,
of outstanding capital stock of Americas possessing at least
50% of the voting power (for the election of directors) of
the outstanding capital stock of Americas, or (ii) there
shall be a sale of all or substantially all of Americas's
assets or Americas shall merge or consolidate with another
corporation and the stockholders of Americas immediately
prior to such transaction do not own, immediately after such
transaction, stock of the purchasing or surviving
corporation in the transaction (or of the parent corporation
of the purchasing or surviving corporation) possessing more
than 50% of the voting power (for the election of directors)
of the outstanding capital stock of that corporation, which
ownership shall be measured without regard to any stock of
the purchasing, surviving or parent corporation owned by the
stock holders of Americas before the transaction. A "Company
Change of Control" shall have occurred if (i) any person,
corporation, partnership, trust, association, enterprise or
group shall become the beneficial owner, directly or
indirectly, of outstanding capital stock of the Company
possessing at least 50% of the voting power (for the
election of directors) of the outstanding capital stock of
the Company, or (ii) there shall be a sale of all or
substantially all of the Company's assets or the Company
shall merge or consolidate with another corporation and the
stockholders of the Company immediately prior to such
transaction do not own, immediately after such transaction,
stock of the purchasing or surviving corporation in the
transaction (or of the parent corporation of the purchasing
or surviving corporation) possessing more than 50% of the
voting power (for the election of directors) of the
outstanding capital stock of that corporation, which
ownership shall be measured without regard to any stock of
the purchasing, surviving or parent corporation owned by the
stock holders of the Company before the transaction. A
"Change of Control" shall be the first to occur of a Company
Change of Control or an Americas Change of Control.
If you agree to the terms of this amendment to the
Letter Agreement and intend to be bound by the Letter
Agreement, as amended hereby, please so indicate by signing
the enclosed copy of this letter and returning it to me.
Thank you.
Sincerely,
/s/Xxxxxx Xxxxxxxxxxx
Xxxxxx Xxxxxxxxxxx
Chief Operating Officer and President.
Accepted and agreed to:
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
