Employment Agreement (the "Agreement"), dated as of November 22, 2004, by
and between Merisel, Inc., a Delaware corporation (the "Company"), and ▇▇▇▇▇▇ ▇.
▇▇▇▇ (the "Executive").
WHEREAS, the Company desires to employ the Executive and the Executive is
willing to serve as an employee of the Company, subject to the terms and
conditions of this Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements set forth
herein, the parties hereto agree as follows:
1. Employment and Duties.
(a) General. The Executive shall serve as President and Chief Executive
Officer of the Company. The Executive shall have such duties and
responsibilities, commensurate with the Executive's position, and such other
duties and responsibilities as may be assigned to the Executive from time to
time by the Board of Directors (the "Board") of the Company. During the Term (as
defined below), the Company shall, subject to its fiduciary duties, use its best
efforts to include the Executive in management's nominees for election, and
recommend the election of the Executive, as a member of the Board.
(b) Exclusive Services. For so long as the Executive is employed by the
Company, the Executive shall devote his full working time to his duties and
responsibilities hereunder, shall faithfully serve the Company, shall in all
respects comply with the lawful and good faith directions and instructions given
to him by the Board and shall use his best efforts to promote and serve the
interests of the Company. Further, the Executive shall not, directly or
indirectly, render services to any other person or organization without the
written consent of the Board or otherwise engage in activities that would
interfere with his faithful performance of his duties and responsibilities
hereunder. Notwithstanding the foregoing, the Executive may (i) serve on
corporate, civic or charitable boards or engage in charitable activities without
remuneration therefore and (ii) manage personal investments, provided that such
activity does not contravene the first sentence of this Section 1(b) or Section
6 below.
(c) Place of Employment. The Executive's initial principal place of
employment shall be at the Company's current location in El Segundo, CA (the
"Current Location"). The Executive understands that it is the intention of the
Company to move from the Current Location and acknowledges and agrees that his
principal place of employment will be any location to which the Company may move
at any time in its sole discretion. The Executive shall be available for
reasonable travel as the needs of the business require.
2. Term of Employment. The Executive's employment under this Agreement
shall commence as of November 22, 2004 (the "Effective Date") and shall
terminate on the earlier of (i) the third anniversary of the Effective Date and
(ii) the termination of the Executive's employment under this Agreement;
provided, however, that the term of the Executive's employment shall be
automatically extended without further action of either party for additional one
year periods, unless written notice of either party's intention not to extend
has been given to the other party at least 90 days prior to the expiration of
the then effective term. The period from the Effective Date until the
termination of the Executive's employment under this Agreement is hereinafter
referred to as the "Term". A notice delivered by the Company that it does not
intend to extend the term of this Agreement shall hereinafter be referred to as
a "Nonrenewal Notice".
3. Compensation and Benefits. Subject to the provisions of this Agreement,
the Company shall pay and provide the following compensation and benefits to the
Executive during the Term as compensation for services rendered hereunder:
(a) Base Salary. The Company shall pay to the Executive an annual salary
(the "Base Salary") at the rate of $200,000 per year. The Base Salary shall be
payable in equal installments in accordance with the Company's payroll practices
in effect at the time of payment. The Base Salary may be increased as the Board
or the compensation committee thereof (the "Compensation Committee") determines
in its sole discretion.
(b) Base Salary Increase. Notwithstanding the foregoing, the Base Salary
shall be automatically increased in the amounts, and upon the occurrence of any
events, set forth in this Section 3(b). Upon the attainment by the Company of
earnings before taxes ("EBT") of at least $12 million on a rolling four-quarter
basis, the Base Salary shall be increased to $450,000. Upon the attainment by
the Company of EBT of at least $15 million on a rolling four-quarter basis, the
Base Salary shall be increased to $500,000. In the event that prior to the
attainment of either EBT goal set forth above there is a consummation of a
Transaction (as defined below) the Base Salary shall be increased to $400,000 on
the date of consummation of such Transaction. For purposes of this Agreement a
"Transaction" shall mean the acquisition by the Company of any entity as
approved by the Board.
(c) Bonus. The Executive shall be eligible for an annual bonus (the "Annual
Bonus") with a target level of 100% of the Base Salary that may be awarded by
the Board or the Compensation Committee in their sole discretion.
Notwithstanding the foregoing, the Annual Bonus for calendar year 2005 shall be
not less than 50% of the Base Salary. The Annual Bonus shall be based on such
criteria as determined by the Board or the Compensation Committee in their sole
discretion; provided, however, that such criteria shall include achievement of
the Company's forecasted EBITDA in the financial plan approved by the Board. The
Board or the Compensation Committee may award such other bonus payments as they
determine in their sole discretion.
(d) Stock Option Grant. On the Effective Date, the Executive shall be
granted options (the "Effective Date Stock Options") to purchase 300,000 shares
of the Company's common stock, par value $.01 per share (the "Common Stock"),
pursuant to the 1997 Stock Award and Incentive Plan (the "Stock Plan") in three
tranches (each, an "Option Tranche") as follows: (i) 100,000 Effective Date
Stock Options at an exercise price of $5.00, (ii) 100,000 Effective Date Stock
Options at an exercise price of $8.00 and (iii) 100,000 Effective Date Stock
Options at an exercise price of $12.00. 50% of the Effective Date Stock Options
in each Option Tranche shall be vested on the first anniversary of the Effective
Date and the remaining Effective Date Stock Options in each Option Tranche shall
vest in two equal annual installments commencing on the second anniversary of
the Effective Date. The Effective Date Stock Options shall be subject to the
additional terms and conditions set forth in the Stock Plan and the Stock Option
Agreement to be entered into between the Executive and the Company. The Board
and the Compensation Committee may, in their sole discretion, award the
Executive additional grants of options to purchase shares of Common Stock based
on the Executive's performance.
(e) Restricted Stock Grant. On the Effective Date, the Executive shall be
granted 150,000 restricted shares of Common Stock (the "Effective Date
Restricted Stock") pursuant to the Stock Plan. 50% of the shares of Effective
Date Restricted Stock shall vest on the first anniversary of the Effective Date
and the remaining shares of Effective Date Restricted Stock shall vest in two
equal annual installments commencing on the second anniversary of the Effective
Date. The shares of Effective Date Restricted Stock shall be subject to the
additional terms and conditions set forth in the Stock Plan and the Restricted
Stock Award Agreement to be entered into between the Executive and the Company.
The Board and the Compensation Committee may, in their sole discretion, award
the Executive additional grants of shares of restricted stock based on the
Executive's performance.
(f) Benefit Plans. During the Term the Executive shall be entitled to
participate, on the same basis and at the same level as other senior officers of
the Company in any benefit plans, programs and arrangements of the Company in
accordance with the terms of such plans, programs and arrangements, as may be
amended from time to time.
(g) Expenses. The Company shall reimburse the Executive for reasonable
travel and other expenses incurred by the Executive in the fulfillment of his
duties hereunder upon presentation of written documentation thereof, in
accordance with the applicable expense reimbursement policies and procedures of
the Company as in effect from time to time.
(h) Vacation. The Executive shall be entitled to four weeks vacation per
calendar year. The date or dates of such vacations shall be selected by the
Executive having reasonable regard to the needs of the Company.
(i) Relocation. On the Effective Date, the Executive shall receive a
relocation allowance of $100,000 for expenses associated with the relocation of
his family and moving of his household goods and furnishings to a new residence.
4. Termination of Employment.
(a) Termination due to Nonrenewal. If the Executive's employment is
terminated following the Company's delivery to the Executive of a Nonrenewal
Notice, subject to the Executive's execution of a general release of claims
against the Company and its subsidiaries and affiliates (the "Company Group") in
a form satisfactory to the Company, the Executive shall be entitled to a pro
rata portion (determined based on a fraction, the numerator of which is the
number of days from the start of the calendar year to the date of such
termination and the denominator of which is 365 days) of the Annual Bonus, based
upon the attainment of the applicable criteria up to the date of such
termination (the "Pro Rata Annual Bonus"), for the calendar year in which such
termination occurs, payable at the time Annual Bonuses are generally paid. The
Executive shall also be entitled to any Annual Bonus for a completed calendar
year that has been accrued but not yet paid at the time of such termination.
Vested Effective Date Stock Options shall remain exercisable for 90 days
following the date of such termination and any vested Effective Date Stock
Options not exercised within such time shall terminate. The Executive shall have
no further right to receive any other compensation or benefits after such
termination.
(b) Termination for Cause. If, prior to the expiration of the Term, the
Company terminates the Executive's employment for Cause (as defined below), the
Executive shall only be entitled to payment of earned and unpaid Base Salary
through the date of termination. All vested and unvested Effective Date Stock
Options shall immediately terminate, and all vested and unvested Restricted
Stock shall be immediately forfeited. The Executive shall have no further right
to receive any other compensation or benefits after such termination.
For purposes of this Agreement "Cause" shall mean: (i) any act or omission
that constitutes a material breach by the Executive of any of his obligations
under this Agreement; (ii) the willful and continued failure or refusal of the
Executive to satisfactorily perform the duties reasonably required of him as an
employee of the Company; (iii) the Executive's conviction of, or plea of nolo
contendere to, any felony or another crime involving dishonesty or moral
turpitude or which could reflect negatively upon the Company or otherwise impair
or impede its operations; (iv) the Executive's engaging in any misconduct,
negligence, act of dishonesty, violence or threat of violence (including any
violation of federal securities laws) that is injurious to the Company Group;
(v) the Executive's material breach of a written policy of the Company or the
rules of any governmental or regulatory body applicable to the Company; (vi) the
Executive's refusal to following the directions of the Board; or (vii) any other
willful misconduct by the Executive which is materially injurious to the
financial condition or business reputation of the Company Group.
(c) Termination Due to Death or Disability. If prior to the expiration of
the Term, the Executive's employment is terminated due to death or Disability
(as defined below), subject to the Executive's or the Executive's beneficiaries'
execution of a general release of claims against the Company Group in a form
satisfactory to the Company, the Executive or the Executive's estate shall be
entitled to (i) the Pro Rata Annual Bonus for the calendar year in which such
termination occurs, payable at the time Annual Bonuses are generally paid, and
(ii) a continuation of his Base Salary for a period of 60 days commencing on the
date of termination, payable in accordance with the second sentence of Section
3(a). The Executive shall also be entitled to any Annual Bonus for a completed
calendar year that has been accrued but not yet paid at the time of such
termination. All unvested Effective Date Stock Options shall immediately
terminate and all unvested Effective Date Restricted Stock shall be immediately
forfeited; provided, however, that in the event such termination occurs prior to
the first anniversary of the Effective Date, 25,000 Effective Date Stock Options
in each Option Tranche and 37,500 shares of Effective Date Restricted Stock
shall become fully vested. Vested Effective Date Stock Options shall remain
exercisable for 90 days following the date of such termination and any vested
Effective Date Stock Options not exercised within such time shall terminate. For
purposes of this Agreement "Disability" shall have the meaning set forth in the
Company's Long-Term Disability Plan.
(d) Resignation by Executive. If, prior to the expiration of the Term, the
Executive resigns from his employment hereunder other than for Good Reason (as
defined below), the Executive shall only be entitled to payment of unpaid Base
Salary through the date of such resignation. All unvested Effective Date Stock
Options shall immediately terminate and all unvested Effective Date Restricted
Stock shall be immediately forfeited. Vested Effective Date Stock Options shall
remain exercisable for 90 days following the date of the Executive's resignation
and any vested Effective Date Stock Options not exercised within such time shall
terminate. The Executive shall have no further right to receive any other
compensation or benefits after a resignation of employment.
(e) Termination without Cause. If, prior to the expiration of the Term, the
Executive's employment is terminated by the Company without Cause, subject to
the Executive's execution of a general release of claims against the Company
Group in a form satisfactory to the Company, the Executive will be entitled to
(i) the Pro Rata Annual Bonus for the calendar year in which such termination
occurs, payable at the time Annual Bonuses are generally paid, (ii) a
continuation of his Base Salary for a period commencing on the date of
termination and ending on the later of (x) the first anniversary of the date of
termination and (y) the remaining period of the Term, payable in accordance with
the second sentence of Section 3(a). The Executive shall also be entitled to any
Annual Bonus for a completed calendar year that has been accrued but not yet
paid at the time of such termination. A pro rata portion (determined based on a
fraction, the numerator of which is the number of days from the most recent
anniversary of the Effective Date to the date of such termination and the
denominator of which is 365 days) of (x) the unvested Effective Date Stock
Options in each Option Tranche and (y) the shares of Effective Date Restricted
Stock that were scheduled to have vested on the anniversary of the Effective
Date next following the date of termination shall become immediately vested. In
the event such termination occurs prior to the first anniversary of the
Effective Date, (i) 25,000 of the Effective Date Stock Options in each Option
Tranche and 37,500 shares of Effective Date Restricted Stock shall become fully
vested and (ii) a pro rata portion of the remaining unvested Effective Date
Stock Options in each Option Tranche and the remaining Effective Date Restricted
Stock that were scheduled to have vested on the first anniversary of the
Effective Date shall become immediately vested. All unvested Effective Date
Stock Options shall immediately terminate and all unvested Effective Date
Restricted Stock shall be immediately forfeited. Vested Effective Date Stock
Options shall remain exercisable for 90 days following the date of the
Executive's termination and any vested Effective Date Stock Options not
exercised within such time shall terminate. The Executive shall have no further
right to receive any other compensation or benefits after such termination of
employment.
(f) Termination or Resignation following a Change in Control. In the event
that during the one-year period immediately following a Change in Control (as
defined below) the Executive's employment is terminated by the Company without
Cause or the Executive resigns for Good Reason, subject to the Executive's
execution of a general release of claims against the Company Group in a form
satisfactory to the Company, the Executive will be entitled to (i) the Pro Rata
Annual Bonus for the calendar year in which such termination or resignation
occurs, payable at the time Annual Bonuses are generally paid, and (ii) a
continuation of his Base Salary for a period commencing on the date of such
termination or resignation and ending on the later of (x) the second anniversary
of the date of such termination or resignation and (y) the remaining period of
the Term, payable in accordance with the second sentence of Section 3(a). The
Executive shall also be entitled to any Annual Bonus for a completed calendar
year that has been accrued but not yet paid at the time of such termination. All
outstanding unvested Effective Date Stock Options and all outstanding unvested
Restricted Stock shall become fully vested. Vested Effective Date Stock Options
shall remain exercisable for 90 days following the date of such termination or
resignation and any vested Effective Date Stock Options not exercised within
such time shall terminate.
For purposes of this Agreement, "Change in Control" shall mean the
occurrence of any one or more of the following events: (i) when a "person" (as
defined in Section 3(a)(9) of the Exchange Act), other than any of the direct or
indirect members of Phoenix Acquisition Company II, L.L.C. as of the date hereof
(the "Phoenix Owners"), becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act) of 50% or more of either (x) the then outstanding Common
Stock or (y) the combined voting power of the then outstanding voting securities
of the Company entitled to vote generally in the election of directors; (ii)
when, during any period of 24 consecutive months, the individuals who, at the
beginning of such period, constitute the Board (the "Company Incumbent
Director") cease for any reason other than death to constitute at least a
majority thereof; provided, however, that a director who was not a director at
the beginning of such 24-month period shall be deemed to be a Company Incumbent
Director if such director was elected by, or on the recommendation of or with
the approval of at least two-thirds of the directors of the Company who then
qualified as Company Incumbent Directors; (iii) there occurs a reorganization,
merger, consolidation or other corporate transaction involving the Company (a
"Business Combination"), in each case with respect to which the direct or
indirect beneficial owners of the Common Stock immediately prior to such
transaction do not, immediately after such transaction, own directly or
indirectly more than 50% of the combined voting power of the Company or other
corporation resulting from such Business Combination of the voting securities of
the Company; (iv) the consummation of a plan of complete liquidation or
dissolution of the Company; or (v) the sale or other disposition of all or
substantially all of the assets of the Company to an entity other than (x) the
Phoenix Owners or (y) an affiliate of the Company. Notwithstanding the
foregoing, a Transaction shall not be deemed a Change in Control.
For purposes of this Agreement "Good Reason" shall mean following a Change
of Control: (i) a decrease in the Executive's Base Salary or a failure by the
Company to pay material compensation due and payable to the Executive in
connection with his employment; (ii) a diminution of the responsibilities,
positions or titles of the Executive from those set forth in this Agreement;
(iii) the Company requiring the Executive to be based at any office or location
more than 50 miles from the Executive's principal place of employment (other
than as set forth in Section 1(b) above); or (iv) a material breach by the
Company of any term or provision of this Agreement; provided, however, that no
event or condition described in clauses (i) through (iv) shall constitute Good
Reason unless (x) the Executive gives the Company written notice of his
intention to terminate his employment for Good Reason and the grounds for such
termination and (y) such grounds for termination (if susceptible to correction)
are not corrected by the Company within 20 days of its receipt of such notice.
(g) Resignation from Directorships and Officerships. The termination of the
Executive's employment for any reason shall constitute the Executive's
resignation from (i) any director, officer or employee position the Executive
has with the Company and (ii) all fiduciary positions (including as a trustee)
the Executive holds with respect to any employee benefit plans or trusts
established by the Company. The Executive agrees that this Agreement shall serve
as written notice of resignation in this circumstance.
5. Confidentiality.
(a) Confidential Information. The Executive agrees, that he shall not, at
any time during the Term or thereafter, except in performance of his obligations
to the Company hereunder or with the prior written consent of the Company,
directly or indirectly, reveal to any person, entity or other organization or
use for his own benefit any information deemed to be confidential by the Company
("Confidential Information") relating to the assets, liabilities, employees,
goodwill, business or affairs of the Company Group, including, without
limitation, any information concerning past, present or prospective customers,
suppliers, marketing data, or other confidential information used by, or useful
to, the Company and known to the Executive by reason of his service to,
shareholdings in or other association with the Company, provided that such
Confidential Information does not include (i) information that is in the public
domain through no fault of the Executive; (ii) information approved for release
by written authorization of the Company; or (iii) information that may be
required by law or an order of any court, agency or proceeding to be disclosed.
(b) Exclusive Property. The Executive confirms that all Confidential
Information is and shall remain the exclusive property of the Company Group. All
business records, papers and documents kept or made by the Executive relating to
the business of the Company Group shall be and remain the property of the
Company Group. Upon the request and at the expense of the Company Group, the
Executive shall promptly make all disclosures, execute all instruments and
papers and perform all acts reasonably necessary to vest and confirm in the
Company Group, fully and completely, all rights created or contemplated by this
Section 5.
6. Restrictions on Competitive Activity. The Executive agrees that, for a
period commencing on the Effective Date and ending on the second anniversary of
the date of the Executive's termination of employment for any reason (the
"Restricted Period") the Executive shall not, without the prior written consent
of the Company, directly or indirectly, and whether as principal or investor or
as an employee, officer, director, manager, partner, consultant, agent or
otherwise, alone or in association with any other person, firm, corporation or
other business organization, carry on a Competing Business (as defined below) in
any geographic area in which the Company Group has engaged, in a Competing
Business. For purposes of this Agreement a "Competing Business" means any
business engaged in by the Company Group within 12 months of the Executive's
termination of employment or in which the Company Group plans to be engaged, so
long as the Executive is directly involved in such business or planned business
on behalf of the Company Group; provided, however, that nothing herein shall
limit the Executive's right to own not more than 1% of any of the debt or equity
securities of any business organization that is then filing reports with the
Securities and Exchange Commission pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended.
7. Restrictions on Solicitation. The Executive agrees that, during the
Restricted Period, the Executive shall not, directly or indirectly, (a)
interfere with or attempt to interfere with the relationship between any person
who is, or was during the then most recent six-month period, an employee,
officer, representative or agent of the Company Group and any member of the
Company Group, or solicit, induce or attempt to solicit or induce any of them to
leave the employ of any member of the Company Group or violate the terms of
their respective contracts, or any employment arrangements, with such entities;
or (b) induce or attempt to induce any customer, client, supplier, licensee or
other business relation of any member of the Company Group to cease doing
business with any member of the Company Group, or in any way interfere with the
relationship between any member of the Company Group and any customer, client,
supplier, licensee or other business relation of any member of the Company
Group. As used herein, the term "indirectly" shall include, without limitation,
the Executive's permitting the use of the Executive's name by any competitor of
any member of the Company Group to induce or interfere with any employee or
business relationship of any member of the Company Group.
8. Assignment of Developments. All Developments (as defined below) that are
at any time made, conceived or suggested by the Executive, whether acting alone
or in conjunction with others, during or as a result of the Executive's
employment with the Company, shall be the sole and absolute property of the
Company, free of any reserved or other rights of any kind on the Executive's
part. During the Executive's employment and, if such Developments were made or
conceived by the Executive during or as a result of the Executive's employment
with the Company thereafter, the Executive shall promptly make full disclosure
of any such Developments to the Company and, at the Company's cost and expense,
do all acts and things (including, among others, the execution and delivery
under oath of patent and copyright applications and instruments of assignment)
reasonably deemed by the Company to be necessary or desirable at any time in
order to effect the full assignment to the Company of the Executive's right and
title, if any, to such Developments. For purposes of this Agreement,
"Developments" shall mean all data, discoveries, findings, reports, designs,
plans, inventions, improvements, methods, practices, techniques, developments,
programs, concepts, and ideas, whether or not patentable, relating to the
present or planned activities, or future activities of which the Executive is
aware, or the products and services of the Company.
9. Remedies.
(a) Injunctive Relief. Without intending to limit the remedies available to
the Company Group, the Executive agrees that a breach of any of the covenants
contained in Sections 5, 6, 7 and 8 of this Agreement may result in material and
irreparable injury to the Company Group for which there is no adequate remedy at
law, that it will not be possible to measure damages for such injuries precisely
and that, in the event of such a breach or threat thereof, any member of the
Company Group shall be entitled to seek a temporary restraining order or a
preliminary or permanent injunction, or both, without bond or other security,
restraining the Executive from engaging in activities prohibited by the
covenants contained in Sections 5, 6, 7 and 8 of this Agreement or such other
relief as may be required specifically to enforce any of the covenants contained
in this Agreement. Such injunctive relief in any court shall be available to the
Company Group in lieu of, or prior to or pending determination in, any
arbitration proceeding.
(b) Extension of Restricted Period. In addition to the remedies the Company
may seek and obtain pursuant to this Section 9, the Restricted Period shall be
extended by any and all periods during which the Executive shall be found to
have been in violation of the covenants contained in Sections 5, 6, 7 or 8 of
this Agreement.
10. Investor's Rights Agreement. The Executive and the Company shall enter
into an Investor's Rights Agreement in a form reasonably acceptable to the
Company.
11. No Conflicting Agreement. The Executive represents and warrants to the
Company that the Executive is not a party to any agreement, whether written or
oral, that would be breached by or would prevent or interfere with the execution
by the Executive of this Agreement or the fulfillment by the Executive of the
Executive's obligations hereunder.
12. Source of Payments. All payments provided under this Agreement, other
than payments made pursuant to a plan which provides otherwise, shall be paid in
cash from the general funds of the Company, and no special or separate fund
shall be established, and no other segregation of assets shall be made, to
assure payment.
13. Arbitration. Any dispute or controversy arising under or in connection
with this Agreement or otherwise in connection with the Executive's employment
by the Company that cannot be mutually resolved by the parties to this Agreement
and their respective advisors and representatives shall be settled exclusively
by arbitration in the state in which the Company is located at the time of the
commencement of the arbitration and in accordance with the rules of the American
Arbitration Association before one arbitrator of exemplary qualifications and
stature, who shall be selected jointly by an individual to be designated by the
Company and an individual to be selected by the Executive, or if such two
individuals cannot agree on the selection of the arbitrator, who shall be
selected by the American Arbitration Association.
14. Nonassignability; Binding Agreement. This Agreement and any and all
rights, duties, obligations or interests hereunder shall not be assignable or
delegable by the Executive. This Agreement shall be binding upon, and inure to
the benefit of, the parties hereto, any successors to or assigns of the Company
and the Executive's heirs and the personal representatives of the Executive's
estate.
15. Withholding. Any payments made or benefits provided to the Executive
under this Agreement shall be reduced by any applicable withholding taxes or
other amounts required to be withheld by law or contract.
16. Amendment; Waiver. This Agreement may not be modified, amended or
waived in any manner, except by an instrument in writing signed by both parties
hereto. The waiver by either party of compliance with any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any other provision of this Agreement, or of any subsequent breach by such party
of a provision of this Agreement.
17. Governing Law. All matters affecting this Agreement, including the
validity thereof, are to be governed by, and interpreted and construed in
accordance with, the laws of the State of Delaware applicable to contracts
executed in and to be performed in that State.
18. Notices. All notices or communications hereunder shall be in writing,
addressed as follows:
To the Company:
Merisel, Inc.
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▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Manager
To the Executive:
▇▇. ▇▇▇▇▇▇ ▇▇▇▇
Merisel, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
All such notices shall be conclusively deemed to be received and shall be
effective (i) if sent by hand delivery, upon receipt or (ii) if sent by
electronic mail or facsimile, upon receipt by the sender of such transmission.
19. Entire Agreement; Supersedes Previous Agreements. This Agreement
contains the entire agreement and understanding of the parties hereto with
respect to the matters covered herein and supersedes all prior or
contemporaneous negotiations, commitments, agreements and writings with respect
to the subject matter hereof, all such other negotiations, commitments,
agreements and writings shall have no further force or effect, and the parties
to any such other negotiation, commitment, agreement or writing shall have no
further rights or obligations thereunder.
20. Severability. If a court of competent jurisdiction determines that any
term or provision hereof is invalid or unenforceable, (i) the remaining terms
and provisions hereof shall be unimpaired and (ii) such court shall have the
authority to replace such invalid or unenforceable term or provision with a term
or provision that is valid and enforceable and that comes closest to expressing
the intention of the invalid or unenforceable term or provision.
21. Counterparts. This Agreement may be executed by either of the parties
hereto in counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
22. Headings. The headings of sections herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by
its officer pursuant to the authority of its Board, and the Executive has
executed this Agreement, as of the day and year first written above.
MERISEL, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
By:------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Co-Chairman of the Board of Directors
EXECUTIVE
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
By: -----------------------------
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