Settlement Agreement and Mutual General Release
CONFIDENTIAL
TREATMENT REQUESTED BY MERISEL, INC.
EXHIBIT
10.27
Settlement
Agreement and Mutual General Release
This
Settlement Agreement and Mutual General Release (“Agreement”) is made and
entered into as of the 3rd day of February 2005, by and between Merisel,
Inc.
and Merisel Americas, Inc. (“Merisel”) and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇, D&H Services, LLC (“D&H”), and TDH Enterprises, LLC
(“TDH”). Each is referred to herein as a “Party,” and collectively, as “the
Parties.”
Recitals
WHEREAS,
on November 30, 2004, Merisel commenced an action against ▇▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇,
▇▇. ▇▇▇▇▇, ▇▇▇▇ ▇▇▇, D&H and TDH in the Superior Court of Los Angeles
County, California under Case Number Case No. BC 325224, bearing the caption
Merisel,
Inc., et al. ▇. ▇▇▇▇▇▇, et. al,
asserting claims arising out of a the sale of certain assets and liabilities
of
Merisel to D&H in August 2004 (the “Original Action”);
WHEREAS,
on January 10, 2005, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ filed a Cross-Complaint in the Original
Action asserting claims arising from various contracts between Merisel and
▇▇.
▇▇▇▇▇▇, as well as claims for fraud in the inducement, negligent
misrepresentation, common count, work, labor services, violations of labor
code,
conversion, invasion of privacy, defamation, intentional infliction of emotional
distress, and negligent infliction of emotional distress (“Cross-Complaint”)
(collectively with the Original Action, “Actions”);
WHEREAS,
the Parties wish to complete the settlement, compromise, and resolution of
the
claims raised in the Actions, on the terms and subject to the conditions
stated
herein;
Settlement
Agreement and General Release
*
BLANK
SPACES CONTAINED CONFIDENTIAL INFORMATION WHICH HAS BEEN FILED SEPARATELY
WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
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CONFIDENTIAL
TREATMENT REQUESTED BY MERISEL, INC.
The
Parties, in consideration of the covenants contained herein, and in
consideration and exchange of the following consideration, hereby stipulate
and
agree as follows:
Terms
and Conditions
1.0 Nature
of Agreement
Except
as
otherwise expressly provided herein, this Agreement, and the monies, documents,
and/or instruments to be paid, exchanged, and/or filed with the court,
constitute a fully executed settlement, accord and satisfaction, and general
and
special release of any and all claims and disputes by and between the Parties
for claims now existing or hereinafter that may arise in regard to, or which
in
any way relate to or arise out of, the Actions.
2.0 Settlement
Obligations.
2.1 Merisel,
▇▇. ▇▇▇▇▇, and D&H agree to terminate and rescind the Purchase Agreement
between D&H and Merisel Americas, Inc., which closed on August 18, 2004
(“the Purchase Agreement”). ▇▇. ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, Mr. Low and TDH each
represent and warranty that they have no direct or indirect interest in D&H
or the Purchase Agreement.
2.2 ▇▇.
▇▇▇▇▇
and D&H agree to execute documents releasing any direct or indirect claims
to title they may have to all assets and liabilities listed on Schedule A
hereto. ▇▇. ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, Mr. Low and TDH each represent and warranty
that
they have no direct or indirect interest in the assets and liabilities listed
on
Schedule A hereto.
2.3 D&H
agrees to pay to Merisel one million, five hundred, forty thousand, eight
hundred twenty-nine dollars and forty-nine cents ($1,540,829.49). D&H shall
wire such funds to an escrow account to be established by [*], and [*] shall
release the funds to Merisel seven (7) days after completion of the obligations
of Section 2.
Settlement
Agreement and General Release
*
BLANK
SPACES CONTAINED CONFIDENTIAL INFORMATION WHICH HAS BEEN FILED SEPARATELY
WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
2
CONFIDENTIAL
TREATMENT REQUESTED BY MERISEL, INC.
2.4 The
collective obligations of Sections 2.1, 2.2, and 2.3 constitute a full
settlement of all of Merisel’s claims, damages, attorneys’ fees and costs.
2.5 Merisel,
Inc. agrees to pay ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ [*], as may be adjusted pursuant to Section
5
of this Agreement, which payment, along with the obligations of Sections
2.1,
constitutes a full settlement of all of ▇▇▇▇▇▇’▇ claims, damages, attorneys’
fees and costs. Merisel shall wire this sum of money into the trust account
of
[*], and [*] shall release the funds to ▇▇. ▇▇▇▇▇▇ seven (7) days after the
completion of the obligations of Section 2.
2.6 Merisel
agrees to assume and pay all liabilities and obligations transferred to D&H
pursuant to the Purchase Agreement.
2.7 Merisel
agrees to file a request for dismissal with prejudice of the Original Action
and
all causes of action pleaded therein.
2.8 ▇▇▇▇▇▇
agrees to file a request for dismissal with prejudice of the Cross-Complaint
and
all causes of action pleaded therein.
2.9 The
Parties agree that they will cooperate to execute all papers and documents
as
may be necessary and proper to fulfill the terms and conditions of this
Agreement.
3.0 Release
of Claims.
Settlement
Agreement and General Release
*
BLANK
SPACES CONTAINED CONFIDENTIAL INFORMATION WHICH HAS BEEN FILED SEPARATELY
WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
3
CONFIDENTIAL
TREATMENT REQUESTED BY MERISEL, INC.
3.1 The
Parties, and each of them, on their own behalf and on behalf of their current
and former employees, representatives, companies, corporations, business
entities, officers, directors, shareholders, partners, joint venturers,
insurers, trustees, executors, creditors, agents, attorneys, heirs, dependents,
predecessors, successors, assigns, parents, subsidiaries, affiliates, related
companies, and controlling persons, past and present, and each of them, hereby
release and forever discharge the other Parties, and each of their respective
current and former employees, representatives, companies, corporations, business
entities, officers, directors, shareholders, partners, joint venturers,
insurers, trustees, executors, creditors, agents, attorneys, heirs, dependents,
predecessors, successors, assigns, parents, subsidiaries, affiliates, related
companies, and controlling persons, past and present, and each of them, of
and
from all claims, liabilities, demands, damages, actions, and causes of action,
at law or in equity, of every kind and nature, including claims for attorneys’
fees or costs, whether known or unknown, existing, claimed to exist or which
may
hereafter arise.
3.2 Specific
Release of Employment Related Claims:
In
addition to the release of Section 3.1, ▇▇. ▇▇▇▇▇▇, his respective current
and
former employees, representatives, companies, corporations, business entities,
officers, directors, shareholders, partners, joint venturers, insurers,
trustees, executors, creditors, agents, attorneys, heirs, dependents,
predecessors, successors, assigns, parents, subsidiaries, affiliates, related
companies, and controlling persons, past and present, and each of them,
specifically forever release and discharge:
3.2.1 [*]
3.2.2 [*]
3.2.3 any
and
all claims arising under the Employee Retirement Income Security Act of 1974,
the Civil Rights Acts of 1866 and 1867, Title VII of the Civil Rights Act
of
1964, as amended, the Civil Rights and Women’s Equity Act of 1991, Sections 1981
through 1988 of Title 42 of the United States Code, as amended, the Occupational
Safety and Health Act of 1970, the Consolidated Omnibus Budget Reconciliation
Act of 1985, the Family and Medical Leave Act of 1993, the Worker Adjustment
and
Retraining Notification Act of 1988, the Vocational Rehabilitation Act of
1973,
the Equal Pay Act of 1963, the Americans with Disabilities Act, the Fair
Labor
Standards Act and the National Labor Relations Act, as amended, the California
Fair Employment and Housing Act, the California Workers’ Compensation Act, the
California ▇▇▇▇▇ and ▇▇▇▇▇ Civil Rights Act, the California Alcohol and Drug
Rehabilitation Law, the California Equal Pay Law, any other federal or state
anti-discrimination law or any local or municipal ordinance relating to
discrimination in employment or human rights and under the common
law.
Settlement
Agreement and General Release
*
BLANK
SPACES CONTAINED CONFIDENTIAL INFORMATION WHICH HAS BEEN FILED SEPARATELY
WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
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CONFIDENTIAL
TREATMENT REQUESTED BY MERISEL, INC.
3.2.4 any
and
all claims for salary, bonus, severance pay, pension, vacation pay, life
insurance, health or medical insurance, or any other fringe benefits, other
than
the payments and benefits provided for in or in accordance with the Agreement.
3.2.5 any
and
all claims arising out of any other laws and regulations relating to employment
or employment discrimination.
3.2.6 any
and
all claims for attorneys’ fees and costs.
3.3 ADEA
Release.
In
addition to the releases of Sections 3.2 and 3.3, ▇▇. ▇▇▇▇▇▇, in consideration
of the promises of the Merisel set forth in this Agreement, also hereby releases
and discharges Merisel from any and all claims that ▇▇. ▇▇▇▇▇▇ may have against
Merisel arising under the U.S. Age Discrimination in Employment Act of 1967,
as
amended, and the applicable rules and regulations promulgated thereunder
(“ADEA”). ▇▇. ▇▇▇▇▇▇ acknowledges that he understands that the ADEA is a federal
statute that prohibits discrimination on the basis of age in employment,
benefits and benefit plans. ▇▇. ▇▇▇▇▇▇ also understands that, by signing
this
Agreement, he is waiving all claims against Merisel, as well as any of its
each
of its current and former employees, representatives, companies, corporations,
business entities, officers, directors, shareholders, partners, joint venturers,
insurers, trustees, executors, creditors, agents, attorneys, heirs, dependents,
predecessors, successors, assigns, parents, subsidiaries, affiliates, related
companies, and controlling persons, past and present, and each of
them
By
signing this Agreement, ▇▇. ▇▇▇▇▇▇ hereby acknowledges and confirms the
following:
3.3.1 He
is
providing the release and discharge set forth in this Agreement in exchange
for
consideration in addition to anything of value to which ▇▇. ▇▇▇▇▇▇ is already
entitled.
3.3.2 ▇▇.
▇▇▇▇▇▇ was advised by the Company in writing to consult with an attorney
of his
choice prior to signing this Agreement and to have such attorney explain
to him
the terms of this Agreement including, without limitation, the terms relating
to
his release of claims arising under the ADEA.
Settlement
Agreement and General Release
*
BLANK
SPACES CONTAINED CONFIDENTIAL INFORMATION WHICH HAS BEEN FILED SEPARATELY
WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
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CONFIDENTIAL
TREATMENT REQUESTED BY MERISEL, INC.
3.3.3 ▇▇.
▇▇▇▇▇▇ has read this Agreement carefully and completely and understands each
of
the terms thereof.
3.3.4 ▇▇.
▇▇▇▇▇▇ is aware that he has twenty-one (21) days in which to consider the
terms
of the release contained in this Agreement. To the extent he has executed
this
Agreement within less than twenty-one (21) days after its delivery to him,
▇▇.
▇▇▇▇▇▇ hereby acknowledges that his decision to execute this Agreement prior
to
the expiration of such twenty-one (21)-day period was entirely voluntary.
For a
period of seven (7) days following the date of ▇▇. ▇▇▇▇▇▇’▇ execution and
delivery of this Agreement, ▇▇. ▇▇▇▇▇▇ has the right to revoke the release
contained in this Section (the “Revocation Period”). In the event that ▇▇.
▇▇▇▇▇▇ exercises his right to revoke the release contained in this Section,
this
Agreement will terminate as to all Parties and be of no further effect, with
no
liability to any of the Parties. The Revocation Period shall expire at 5:00
p.m.
California time on the last day of the Revocation Period; provided,
however,
that if
such seventh day is not a business day, the Revocation Period shall extend
to
5:00 p.m. on the next succeeding business day. No such revocation by ▇▇.
▇▇▇▇▇▇
shall be effective unless it is in writing and signed by ▇▇. ▇▇▇▇▇▇ and received
by Merisel prior to the expiration of the Revocation Period.
3.3.5 As
set
forth in section 7(f)(1)(C) of the ADEA, as added by the Older Workers Benefit
Protection Act of 1990, Employee understands that Employee is not waiving
any
rights or claims provided under ADEA that may arise after this Agreement
is
executed by Employee.
3.4 In
addition to the release of Section 3.1, Merisel, its respective current and
former employees, representatives, companies, corporations, business entities,
officers, directors, shareholders, partners, joint venturers, insurers,
trustees, executors, creditors, agents, attorneys, heirs, dependents,
predecessors, successors, assigns, parents, subsidiaries, affiliates, related
companies, and controlling persons, past and present, and each of them,
specifically forever release and discharge:
3.4.1 [*]
3.4.2 [*]
3.4.3 any
and
all claims payments of any kind, other than the payments and benefits provided
for in or in accordance with the Agreement.
3.4.4 [*]
3.4.5 any
and
all claims for attorneys’ fees and costs.
Settlement
Agreement and General Release
*
BLANK
SPACES CONTAINED CONFIDENTIAL INFORMATION WHICH HAS BEEN FILED SEPARATELY
WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
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CONFIDENTIAL
TREATMENT REQUESTED BY MERISEL, INC.
3.5 The
Parties specifically understand, acknowledge, and agree that this is a full
and
final release of all claims described herein, whether known or unknown, and
whether or not included in the pleadings of the Actions. The Parties therefore
hereby expressly and voluntarily waive all rights or benefits which each
respective Party might otherwise have under California Civil Code Section
1542,
which 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 the settlement with the debtor.
The
Parties further expressly and voluntarily waive any substantially similar
or
equivalent statutory, common law, or equitable rights or benefits arising
under
the laws of any other jurisdiction. The Parties acknowledge that claims or
facts
in addition to or different from those which are now known or believed to
exist
may later be discovered with respect to any claim, liability, demand, damage,
action or cause of action that they, or any of them, may possess against
each
other, or their respective current and former employees, representatives,
companies, corporations, business entities, officers, directors, shareholders,
partners, joint venturers, insurers, trustees, executors, creditors, agents,
attorneys, heirs, predecessors, successors, assigns, parents, subsidiaries,
affiliates, related companies, and controlling persons, past and present,
and
each of them, but each Party nevertheless intends this release to be effective
as a full, general release.
3.6 This
Agreement is in full settlement, accord, satisfaction, and discharge of all
of
the claims described herein. This Agreement has been executed with the express
intention of effectuating the full and final extinguishment of all such
claims.
Settlement
Agreement and General Release
*
BLANK
SPACES CONTAINED CONFIDENTIAL INFORMATION WHICH HAS BEEN FILED SEPARATELY
WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
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CONFIDENTIAL
TREATMENT REQUESTED BY MERISEL, INC.
4.0 Responsibility
for Fees and Costs
Each
of
the Parties shall bear and be responsible for his or its own attorneys’ fees and
costs associated with the matters and disputes that are the subject matter
of
this Agreement.
5.0 Tax
Responsibilities
5.1 The
payment of [*] by Merisel, Inc. to ▇▇. ▇▇▇▇▇▇ in Section 2.5 consists of
the
following:
5.1.1 [*]
that
currently is being held in an account for ▇▇. ▇▇▇▇▇▇ pursuant to the [*].
▇▇▇▇▇▇▇
▇▇▇▇▇▇ and Merisel acknowledge that [*] of this amount had FICA and Medicare
taxes withheld when it was placed in the [*]. Merisel shall withhold
from the remaining amount any applicable federal, state and local income
taxes,
and any FICA, Medicare and other payroll deduction
that it
is required to pay by law in accordance with the Internal Revenue Service
Form
W-4 with respect to ▇▇. ▇▇▇▇▇▇ on the date of payment contemplated by this
Section.
5.1.2 Two
hundred thousand dollars ($200,000.00) in severance
pay to ▇▇.
▇▇▇▇▇▇.
Merisel
shall
withhold
from this amount any applicable federal, state and local income taxes, and
any
FICA, Medicare and other payroll deduction that it is required to pay by
law in
accordance with the Internal Revenue Service Form W-4 with respect to ▇▇.
▇▇▇▇▇▇
on the date of payment contemplated by this Section.
5.1.3 Fifteen
thousand, six hundred forty-four dollars ($15,644.00) in COBRA reimbursement.
Merisel
shall withhold from this amount any applicable federal, state and local income
taxes, and any FICA, Medicare and other payroll deduction that is required
by
law in accordance with the Internal Revenue Service Form W-4 with respect
to ▇▇.
▇▇▇▇▇▇ on the date of payment contemplated by this Section.
5.1.4 [*]
Merisel
shall withhold from this amount any applicable federal, state and local income
taxes, and any FICA, Medicare and other payroll deduction that it is required
to
pay by law in accordance with the Internal Revenue Service Form W-4 with
respect
to ▇▇. ▇▇▇▇▇▇ on the date of payment contemplated by this Section.
6.0 Denial
of Liability
6.1 Each
Party denies any liability to any other Party, or any other individual or
entity, concerning the claims described in the Actions and in the releases
of
Section 3, above. Each Party acknowledges that each other Party continues
to
deny liability, disclaim responsibility, and dispute the factual allegations
claimed by any other Party.
Settlement
Agreement and General Release
*
BLANK
SPACES CONTAINED CONFIDENTIAL INFORMATION WHICH HAS BEEN FILED SEPARATELY
WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
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CONFIDENTIAL
TREATMENT REQUESTED BY MERISEL, INC.
7.0 Warranties
7.1 Each
of
the Parties respectively represents and warrants that no other person or
entity
has claimed or now claims any interest in the subject of this Agreement,
and
that no right, claim, liability, demand, damage, action or cause of action,
or
any part thereof, of any kind or nature covered by this Agreement, has been
sold, assigned, granted or otherwise transferred to any other person or
entity.
7.2 ▇▇.
▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, Mr. Low, D&H, TDH and each of them, represent
that, except as represented on Schedule B to this Agreement, they have not
collected, received, or otherwise acquired any payments on accounts receivable,
payments on notes or loans, interest payments, tax refunds, or any other
monetary gain from their interest in the assets and liabilities listed on
Schedule A to this Agreement. Should any of these persons and entities become
aware of any such payment, refund or other monetary gain, they will reimburse
Merisel for that amount within ten (10) days of discovery thereof.
7.3 Merisel
represents and warranties that the check it issued to ▇▇. ▇▇▇▇▇▇ on November
22,
2004 for [*] has cleared Merisel’s bank account as of the date of this
Agreement.
7.4 Each
person executing this Agreement on behalf of the Party for whom he purports
to
act, represents and warrants that he is duly authorized to execute this
Agreement on behalf of such Party.
7.5 Each
of
the Parties represents and warrants that each has read and understands this
Agreement, and that no promise, inducement, representation or agreement not
expressly set forth herein has been made to them in connection with this
Agreement. The Parties agree that, prior to the execution of this Agreement,
they have apprised themselves of sufficient relevant data, through resources
of
their own selection, and have consulted with their respective counsel, in
order
that they might intelligently exercise their judgment in deciding whether
to
execute this Agreement. The Parties agree that this Agreement is executed
voluntarily and without duress or undue influence of any nature
whatsoever.
Settlement
Agreement and General Release
*
BLANK
SPACES CONTAINED CONFIDENTIAL INFORMATION WHICH HAS BEEN FILED SEPARATELY
WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
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CONFIDENTIAL
TREATMENT REQUESTED BY MERISEL, INC.
8.0 Cooperation
By Parties
The
Parties hereby acknowledge that Merisel’s auditors and other outside
professionals may need to inquire into various matters arising during the
period
that ▇▇. ▇▇▇▇▇▇ was CEO and President of Merisel. All Parties hereby covenant
and agree to provide reasonable cooperation to such professionals as requested.
9.0 Enforcement
of Agreement
It
is
specifically understood and agreed that this Agreement may be pleaded as
a full
and complete defense to and may be used as the basis for an injunction against
any action, arbitration, suit or other proceeding that may be instituted,
prosecuted or attempted in breach of this Agreement. In the event that
litigation is necessary to enforce a provision or provisions of this Agreement,
all costs and attorneys’ fees shall be paid by the non-prevailing Party or
Parties to the prevailing Party or Parties.
10.0 Confidentiality
10.1 The
Parties agree to
treat
[*] and all
“Confidential
Information”
(as
defined below)
as
confidential matters not to be disclosed to third parties.“Confidential
Information”
means
all data, information and materials related to the any Party or any subsidiary,
affiliate, related entity, division or any of their respective partners,
members, employees, consultants, portfolio companies, or business associates
thereof which are not generally known or available to the public or so known
only through improper means whether oral, graphic, written, electronic or
in
machine readable form, including [*].
Settlement
Agreement and General Release
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BLANK
SPACES CONTAINED CONFIDENTIAL INFORMATION WHICH HAS BEEN FILED SEPARATELY
WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
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CONFIDENTIAL
TREATMENT REQUESTED BY MERISEL, INC.
10.2 Protection
of Confidential Information.
The
Parties and their related representatives, officers, directors, affiliates,
agents, attorneys, assigns, parents, subsidiaries, related companies and
related
persons will not, directly or indirectly, use, make available, sell, disclose
or
otherwise communicate to any third party any Confidential Information. The
Parties are aware that the unauthorized disclosure of Confidential Information
may be highly prejudicial to other Parties’ interests, an invasion of privacy,
and an improper disclosure of trade secrets. Without limiting the foregoing,
the
Parties shall not make copies of, or otherwise reproduce, Confidential
Information unless there is a legitimate need of the Party for reproduction.
The
Parties will take all appropriate steps to safeguard and protect the
Confidential Information.
10.3 Delivery
of Confidential Information.
Each
party acknowledges that all Confidential Information is and shall remain
the
sole, exclusive and valuable property of the Party to which it belongs and
that
any other Party shall not have and shall not acquire any right, title or
interest therein. Any and all printed, typed, written or other material which
any Party has or may obtain with respect to Confidential Information (including
without limitation all copyrights therein) shall be and shall remain the
exclusive property of the originating Party. Each
Party understands, however, that any Party may have a legal obligation not
to
destroy documents it currently has in its possession, and may be required
by law
to produce those documents or reveal the contents of those documents, regardless
of any Party’s view as to whether those documents are the property of another
Party.
10.4 Public
Disclosure.
The
Parties acknowledge that Merisel, Inc. is a publicly traded company and subject
to certain disclosure requirements. Despite anything in this Agreement to
the
contrary, the Parties may disclose any Confidential Information to the extent
it
is required by law.
Settlement
Agreement and General Release
*
BLANK
SPACES CONTAINED CONFIDENTIAL INFORMATION WHICH HAS BEEN FILED SEPARATELY
WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
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CONFIDENTIAL
TREATMENT REQUESTED BY MERISEL, INC.
11.0 Press
Release and 8K
Upon
execution of this Agreement, Merisel, Inc. will issue a press release announcing
the fact of this settlement, and file a corresponding 8K. The content of
the
press release, as agreed to by the Parties, is set forth in Schedule C hereto.
12.0 [*]
13.0 Public
Disclosure
[*]
14.0 Good
Faith
This
Agreement represents a good faith compromise of disputed claims and is not
and
shall not be considered, regarded or described as an admission of liability
or
responsibility by any of the Parties.
15.0 Entire
Agreement; Modification and Amendment
This
Agreement constitutes the entire agreement between the Parties, and supersedes
any and all prior oral and written agreements and understandings. The Agreement
may not be altered, amended, or modified or otherwise changed in any respect
whatsoever except by a writing duly executed by the Parties or their authorized
representatives.
16.0 Titles,
Captions, and Provisions.
16.1 All
of
the provisions of this Agreement are contractual and not mere recitals, and
shall be considered severable, such that if any provision or part hereof
shall
at any time be held under any law or ruling to be invalid, such provision
or
part shall remain in force to the extent allowed by law, and all other
provisions shall remain in full force and effect and enforceable.
Settlement
Agreement and General Release
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BLANK
SPACES CONTAINED CONFIDENTIAL INFORMATION WHICH HAS BEEN FILED SEPARATELY
WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
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CONFIDENTIAL
TREATMENT REQUESTED BY MERISEL, INC.
16.2 The
Recitals set forth above shall be merged in and is part of this Agreement,
and
the titles or captions contained in this Agreement are inserted only as a
matter
of convenience and for reference and in no way define, limit, extend or describe
the scope of this Agreement or the intent of any provision herein.
17.0 Construction
and Jurisdiction
This
Agreement shall be construed and enforced according and pursuant to the laws
of
the State of California. The Parties agree to the exclusive jurisdiction
of the
Los Angeles County Superior Court to enforce the provisions of this Agreement.
18.0 Drafting
and Interpretation
The
Parties agree that the terms and conditions expressed herein have been
negotiated and that no ambiguity shall be construed against any Party.
19.0 Execution
and Counterparts
This
Agreement may be executed in one or more counterparts and by facsimile
signatures, which, taken together, shall constitute a single document
representing the whole of the agreement between the Parties.
IN
WITNESS WHEREOF,
the
undersigned have executed this Agreement on the respective dates set forth
below:
| MERISEL, INC. | ||
| |
|
|
| Date: February 03, 2005 | By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ |
|
▇▇▇▇▇▇ ▇. ▇▇▇▇ |
||
| Title: President and CEO of Merisel, Inc. | ||
| MERISEL AMERICAS, INC. | ||
| |
|
|
| Date: February 03, 2005 | By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ |
|
▇▇▇▇▇▇ ▇. ▇▇▇▇ |
||
| Title: President and CEO of Merisel Americas, Inc. | ||
Settlement
Agreement and General Release
*
BLANK
SPACES CONTAINED CONFIDENTIAL INFORMATION WHICH HAS BEEN FILED SEPARATELY
WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
13
CONFIDENTIAL
TREATMENT REQUESTED BY MERISEL, INC.
| |
|
|
| Date: February 03, 2005 | By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
|
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
||
| |
|
|
| Date: February 03, 2005 | By: | /s/ ▇▇▇▇ ▇▇▇▇▇ |
|
▇▇▇▇ ▇▇▇▇▇ |
||
| |
|
|
| Date: February 03, 2005 | By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇ |
|
▇▇▇▇▇ ▇▇▇▇▇ |
||
| |
|
|
| Date: February 03, 2005 | By: | /s/ ▇▇▇▇ ▇▇▇ |
|
|
||
| Title: ▇▇▇▇ ▇▇▇ | ||
| D&H Services, LLC | ||
| |
|
|
| Date: February 03, 2005 | By: | /s/ ▇▇▇▇ ▇▇▇▇▇ |
|
▇▇▇▇ ▇▇▇▇▇ |
||
| TDH Enterprises, LLC | ||
| |
|
|
| Date: February 03, 2005 | By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
|
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
||
Settlement
Agreement and General Release
*
BLANK
SPACES CONTAINED CONFIDENTIAL INFORMATION WHICH HAS BEEN FILED SEPARATELY
WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
14
CONFIDENTIAL
TREATMENT REQUESTED BY MERISEL, INC.
APPROVED
AS TO FORM BY:
| SHEARMAN & STERLING, LLP | ||
| |
|
|
| Date: February 03, 2005 | By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
|
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
||
| Attorneys for Merisel, Inc. and Merisel Americas, Inc. | ||
| ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ | ||
| |
|
|
| Date: February 03, 2005 | By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ |
|
▇▇▇▇▇▇ ▇▇▇▇▇ |
||
| Attorneys for ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and TDH Enterprises, LLC. | ||
Settlement
Agreement and General Release
*
BLANK
SPACES CONTAINED CONFIDENTIAL INFORMATION WHICH HAS BEEN FILED SEPARATELY
WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 UNDER
THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
15
CONFIDENTIAL
TREATMENT REQUESTED BY MERISEL, INC.
| ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & BOLLARD | ||
| |
|
|
| Date: February 03, 2005 | By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
|
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
||
| Attorneys for ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇ and D&H Services, LLC | ||
Settlement
Agreement and General Release
*
BLANK
SPACES CONTAINED CONFIDENTIAL INFORMATION WHICH HAS BEEN FILED SEPARATELY
WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
16
CONFIDENTIAL
TREATMENT REQUESTED BY MERISEL, INC.
Schedule
A
D&H
Services, LLC (“D&H”) and ▇▇▇▇ ▇▇▇▇▇ will transfer and deliver to Merisel
Americas, Inc., subject to the terms and conditions of this Agreement, and
Merisel Americas, Inc. shall accept from D&H and ▇▇▇▇ ▇▇▇▇▇, all direct or
indirect right, title and interest they may have in the following assets,
without limitation:
| 1. |
The
trademarks and patents that D&H obtained pursuant to the Purchase
Agreement.
|
| 2. |
The
tradenames, intellectual property and other intangible rights of
whatever
nature that D&H obtained pursuant to the Purchase
Agreement.
|
| 3. |
Any
machinery, equipment, supplies and furniture that D&H obtained
pursuant to the Purchase Agreement of which it still has custody
and
control as of the date of this Agreement, along with any compensation
received by D&H for any machinery, equipment, supplies and furniture
that D&H obtained pursuant to the Purchase Agreement of which it no
longer has custody or control.
|
| 4. |
All
supplier lists, sales files, business development information, databases,
price lists and pricing records and schedules, accounting records,
rate
records, sales literature, technical literature, information and
know-how,
general intangibles, licenses (to the extent transferred), trade
association or other memberships (to the extent transferred), and
any
other books, documents, instruments and records transferred to D&H
pursuant to the Purchase Agreement.
|
| 5. |
D&H’s
interest in the customer lists that were purchased pursuant to the
Purchase Agreement;
|
| 6. |
All
receivables purchased pursuant to the Purchase Agreement that remain
uncollected as of the date of this Agreement, as well as payment
for any
receivables collected after the date of the Purchase Agreement that
are
not reflected on Schedule B.
|
| 7. |
All
goodwill transferred pursuant to the Purchase
Agreement.
|
| 8. |
All
issued and outstanding capital stock of the subsidiaries transferred
pursuant to the Purchase Agreement;
|
| 9. |
All
real property, or interests in real property, in the same condition
as
such property was transferred to D&H. These properties consist of the
following:
|
| · |
Operating
Agreement between Merisel Properties, Inc. and DCF I, LLC dated as
of
February 2, 2004, as amended;
|
| · |
Purchase
Money Note dated May 20, 2002;
|
| · |
Purchase
Money Deed of Trust between Merisel Properties and DCF I, LLC dated
May
20, 2002;
|
| · |
Construction
Promissory Note dated May 20, 2002;
|
| · |
Deed
of Trust and Security Agreement between Merisel Properties and DCF
I, LLC
dated May 20, 2002;
|
| · |
Construction
Loan Agreement between Merisel Properties, Inc. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and
DCF I,
LLC dated May 20, 2002 and related guaranty; and
|
| · |
Agreement
between Merisel Properties, Inc. and Creedmore Partners dated May
12,
2004.
|
▇▇.
▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, Mr. Low and TDH each represent and warranty that they have
no
direct or indirect interest in any of the assets and liabilities listed
above.
Settlement
Agreement and General Release
*
BLANK
SPACES CONTAINED CONFIDENTIAL INFORMATION WHICH HAS BEEN FILED SEPARATELY
WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
CONFIDENTIAL
TREATMENT REQUESTED BY MERISEL, INC.
Schedule
B
D&H
Services, LLC (“D&H”) and ▇▇▇▇ ▇▇▇▇▇ represent and warranty that they have
collected, received, or otherwise acquired the following payments on accounts
receivable, payments on notes or loans, interest payments, tax refunds, or
any
other monetary gain from their interest in the assets and liabilities listed
on
Schedule A of this Agreement:
| · |
Cash
payment of $47,623, received from Merisel on or about August 25,
2004.
|
| · |
Cash
payment of $1,715,177, received from Merisel on or about November
1,
2004.
|
| · |
[*]
collection of $3,429, received on or about December 6,
2004.
|
| · |
Check
from [*] for $4,670, received on or about January 27,
2005.
|
| · |
[*]
interest payment in the amount of $8,554 received on or about December
6,
2004
|
| · |
[*]
interest payment in the amount of $6,717 received on or about January
12,
2005
|
▇▇.
▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, Mr. Low, D&H, TDH and each of them, represent
that, except as represented above, they have not collected, received, or
otherwise acquired any payments on accounts receivable, payments on notes
or
loans, interest payments, tax refunds, or any other monetary gain from their
interest in the assets and liabilities listed on Schedule A to this Agreement.
Should any of these persons and entities become aware of any such payment,
refund or other monetary gain, they will reimburse Merisel for that amount
within ten (10) days of discovery thereof.
Settlement
Agreement and General Release
*
BLANK
SPACES CONTAINED CONFIDENTIAL INFORMATION WHICH HAS BEEN FILED SEPARATELY
WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
CONFIDENTIAL
TREATMENT REQUESTED BY MERISEL, INC.
SCHEDULE
C
FOR
IMMEDIATE RELEASE
Contact:
Chief
Executive
Officer
(▇▇▇)
▇▇▇-▇▇▇▇
MERISEL
AND FORMER CHIEF EXECUTIVE OFFICER SETTLE DISPUTE
EL
SEGUNDO, Calif. (February --, 2005) — Merisel, Inc. (the “Company” or “Merisel”)
today announced that it has amicably settled its dispute with former President
& Chief Executive Officer, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, D&H Services, LLC
(“D&H”) and other parties. The terms of the settlement are confidential. As
part of the settlement, ▇▇. ▇▇▇▇▇▇ will receive certain cash payments,
and
D&H will transfer to Merisel Americas, Inc., a wholly owned operating
subsidiary of Merisel, certain cash, assets and liabilities related to
the
Purchase Agreement between Merisel America, Inc. and D&H that closed in
August 2004.
Except
for the historical information contained herein, the matters discussed
in this
news release constitute forward-looking information that involves risks
and
uncertainties. Merisel’s actual results could differ materially from those
indicated by the forward-looking information. Among the factors that could
impact actual results are demand trends in the computer products industry,
competitive issues, changes in manufacturer terms and conditions, and other
items detailed in the company’s SEC filings.
Settlement
Agreement and General Release
*
BLANK
SPACES CONTAINED CONFIDENTIAL INFORMATION WHICH HAS BEEN FILED SEPARATELY
WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 UNDER
THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
CONFIDENTIAL
TREATMENT REQUESTED BY MERISEL, INC.
Schedule
D
[*]
Settlement
Agreement and General Release
*
BLANK
SPACES CONTAINED CONFIDENTIAL INFORMATION WHICH HAS BEEN FILED SEPARATELY
WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.