AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement
("Agreement"), is dated as of November 6, 1996 and is
between Merisel, Inc. (the "Company"), a Delaware
corporation, Merisel Europe, Inc., a Delaware corporation
("Europe" and together with the Company, "Merisel") and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇-▇▇▇▇▇, an executive officer of the Company
("Executive"). This Agreement amends, restates and
replaces, in its entirety, that certain Amended and Restated
Employment Agreement dated as of July 15, 1996 between
Merisel and Merisel Canada, Inc. and Executive, and
supersedes that certain Retention Agreement dated as of
April 22, 1996 between the Company and Executive, and that
certain Letter Agreement between Executive and the Company
dated October 25, 1994.
Executive and Merisel desire to set forth certain of
the terms and conditions governing Executive's continued
employment by Merisel (as defined below). Accordingly,
Executive and Merisel hereby agree as follows:
1. Term of Employment. Executive and Merisel agree
that Executive shall be employed by Merisel and shall serve
in the capacities of (i) Managing Director of Europe and
(ii) Senior Vice President of the Company or (iii) such
other capacities as Executive and the Chief Executive
Officer of the Company shall mutually agree, under the terms
and conditions of this Agreement until February 1, 1998 or
until termination of Executive's employment pursuant to this
Agreement (the period commencing on the date hereof and
ending on February 1, 1998 is referred to as the "Employment
Term"), and subject to renewal for additional periods as may
be mutually agreed by the Company and Executive. The
original term and any renewal terms of this Agreement may be
sooner terminated as provided herein.
2. Scope of Duties. Executive shall undertake and
assume the responsibility of performing for and on behalf of
Merisel those duties as shall be consistent with the
positions of Managing Director of Europe, Senior Vice
President of the Company or such other positions as
Executive and the Chief Executive Officer of the Company
shall mutually agree. Executive covenants and agrees that
at all times during the term of this Agreement, she shall
devote her substantially full-time and best efforts to the
execution of her duties pursuant hereto. Executive shall
report to either the Chairman of the Board, the Chief
Executive Officer or the President of the Company, as
determined by the Company. Merisel acknowledges and agrees
that Executive shall not be required to reside in any
particular location without her prior consent.
3. Compensation. As compensation for services
rendered pursuant to this Agreement, Merisel shall pay to
Executive, in installments customary with the Company's
standard payroll periods, base annual compensation of US$
250,000 during the Employment Term, provided that the Board
of Directors (the "Board') may, in its sole discretion,
increase such base annual compensation as merited by the
performance of Executive. Merisel shall deduct from all
payments paid to Executive under this Agreement any required
amount for applicable income tax withholding or any other
required taxes or contributions. The amount of base annual
salary under this Section 3 to be paid to Executive is the
aggregate amount to be paid by Merisel and Merisel may elect
to allocate such payments among the Company and Europe, in
any amount it deems appropriate.
4. Bonus and Additional Benefits. In addition to the
compensation to be paid to Executive pursuant to Section 3,
Merisel shall pay, reimburse or otherwise confer the
following items of benefit to Executive:
4.1 Merisel shall pay the cost to relocate Executive
and Executive's immediate family to ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇, grossed up so that Executive receives an amount
equal to the cost of such relocation, after taking into
account all applicable taxes. Provided, however, that the
amount of this relocation benefit and the particulars of the
relocation shall be in conformity with the Company's
relocation policy as then in effect. For example, Executive
may be required to use the least expensive available
carrier, air travel will be coach class and the Company may
pay the moving service directly or may require Executive to
use a moving service chosen by the Company. This
relocation benefit only covers the cost of moving Executive
and her family and does not cover any cost or loss Executive
may incur in the sale of Executive's home.
4.2 During the Employment Term, Executive shall be
eligible to receive an annual bonus of up to US$ 125,000 on
the basis of such criteria and financial/ performance
objectives as Executive and the Chief Executive Officer of
the Company shall mutually agree.
4.3 In addition, Executive shall be eligible to
participate in all other benefit programs and plans that may
be afforded to either senior management of the Company who
are resident in the location where Executive is resident.
Merisel shall make contributions to such plans and
arrangements on behalf of Executive as shall be required or
consistent with the terms and conditions of such plans.
Such plans and programs may included, by way of example,
deferred compensation, group insurance benefits, long-term
or permanent disability insurance and major medical
coverage. Executive shall be entitled, during the
Employment Term, to vacation time with compensation and time
off with compensation on account of illness or injury, in
accordance with the Company's written policies for employees
in effect from time to time.
4.4 Merisel shall reimburse Executive for the cost of
Executive's preparing and filing the applicable personal
taxation forms for the 1996 tax year.
5. Termination of Employment.
5.1 Notice. Executive may resign or Merisel may
terminate Executive's employment in either case prior to the
expiration of the Employment Term, upon 30 days written
notice by Executive or Merisel, as the case may be, to the
other party. Upon any such resignation or termination,
Merisel shall promptly pay Executive all salary and other
compensation, including amounts payable, if any, under
Section 3 and any unused vacation pay, earned by her through
the effective date of such termination or resignation.
5.2 Termination following a Sale. If there is a
Covered Termination (as defined below) within one year
following either (i) a Sale of the Company or (ii) October
4, 1996, then in addition to the amounts due under Section
5.1:
(a) Company shall make a lump sum payment to Executive
within two weeks of the effective date of the Covered
Termination equal to (i) Executive's annual base salary as
then in effect plus (ii) the average of the annual
performance bonus received by the Executive over the three
year period preceding the effective date of the Covered
Termination (excluding from such calculation however, any
performance bonus that was paid on a guaranteed basis and
was not earned as a result of achievement of financial/
performance criteria); and
(b) Company will recommend to the Company's Option
Committee for such Option Committee to cause all unvested
options to purchase the stock of the Company previously
granted to Executive to vest as of the date of such Covered
Termination (the benefits provided in the foregoing clauses
(a) and (b) are referred to herein as the "Severance
Benefit").
5.3 Voluntary Resignation by Executive. In the event
that Executive resigns without Good Reason (as defined
below) prior to August 1, 1997 and except as mutually agreed
with the Company's Chief Executive Officer pursuant to the
next sentence, then, at the time the resignation is
effective, all benefits and payments provided for hereunder
shall terminate, and, without limiting the foregoing,
Executive shall not be entitled to the Severance Benefit or
any other severance payment other than amounts due under
Section 5.1. In the event Executive and the Chief Executive
Officer of the Company mutually agree that Executive should
resign, then, at the time the resignation is effective, the
Company shall pay Executive the Severance Benefit and any
other amounts due under Section 5.1.
5.4 Definitions. (a) A "Sale" of a designated
corporation shall have occurred if (i) any person,
corporation, partnership, trust, association, enterprise or
group (collectively, an "Entity"), other than the Company or
any of its subsidiaries, shall become the beneficial owner,
directly or indirectly, of outstanding capital stock of such
designated corporation possessing at least 50% of the voting
power (for the election of directors) of the outstanding
capital stock of such designated corporation, or (ii) there
shall be a sale of all or substantially all of such
designated corporation's assets or such designated
corporation shall merge or consolidate with another
corporation and the stockholders of such designated
corporation 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 such
designated corporation before the transaction.
(b) "Covered Termination" shall mean any
termination of the Executive's employment by the Company
that occurs prior to February 1, 1998 other than as a result
of (i) Termination for Cause, (ii) Executive's death or
permanent disability, or (iii) Executive's resignation
without Good Reason.
(c) A resignation by Executive shall be with "Good
Reason" if after a Sale of the Company or after a Sale of
Europe, (A) there has been a material reduction in
Executive's job responsibilities from those that existed
immediately prior to the Change of Control, (B) without
Executive's prior written approval, the Company requires
Executive to be based anywhere other than the Executive's
then current location, or (C) a successor to all or
substantially all of the business and assets of the Company
fails to furnish Executive with the assumption agreement
required by Section 8 hereof.
(d) "Termination for Cause" shall mean if the Company
terminates Executive's employment for any of the following
reasons: Executive misconduct (misconduct shall mean
physical assault, falsification or misrepresentation of
facts on company records, fraud, dishonesty, creating or
contributing to unsafe working conditions, willful
destruction of company property or assets, or harassment of
another Associate by Executive); or Executive conviction for
or a plea of nolo contendere by Executive to a felony or to
any crime involving moral turpitude.
6. Mitigation. Executive shall have no obligation to
mitigate the amount of any payment provided for in this
Agreement by seeking employment or otherwise, unless the
Company in its sole discretion determines that Executive's
choice of new employer following a Covered Termination is
detrimental to the Company. Executive shall not be entitled
to payment hereunder if Executive's employment ceases as a
result of Executive's death or permanent disability.
7. Executive's Obligations.
7.1 Executive agrees that during the Employment Term
and for a period of 180 days following receipt of a
Severance Benefit (the "Benefit Period"), Executive will not
directly or indirectly (a) engage in; (b) own or control any
debt equity, or other interest in (except as a passive
investor of less that 5% of the capital stock or publicly
traded notes or debentures of a publicly held company); or
(c) (1) act as director, officer, manager, employee,
participant or consultant (except as a officer, manager or
employee resident anywhere other than North America and with
responsibilities unrelated to North American operations) to
or (2) be obligated to or connected in any advisory business
enterprise or ownership capacity (except in an advisory
business capacity while Executive is resident anywhere other
than North America and related to operations located outside
of North America) with, any of Tech Data Corp., ▇▇▇▇▇▇
Micro, Inc., Computer 2000 AG (C2000), Intelligent
Electronics, Inc., MicroAge, Inc., Inacom Corp., Compucom,
Entex Information Services, Inc. or Vanstar Corp. or with
any subsidiary, division or successor of any of them or with
any entity that acquires, whether by acquisition, merger or
otherwise, any significant amount of the assets or
substantial part of any of the business of any of them.
7.2 During the term of this Agreement, or if longer,
the Benefit Period, Executive will not, on behalf of any
business enterprise other than the Company and its
subsidiaries, solicit the employment of or hire any person
that is or was employed by the Company or any of its
subsidiaries at any time on or after January 1, 1995.
7.3 Within two weeks of the effective date of a Covered
Termination, and prior to receiving any severance
compensation from Company in respect of such Covered
Termination, whether under this Agreement or otherwise,
Executive will execute and deliver to Company a Release and
a Confidentiality Agreement, each substantially in the form
provided to Executive with this Agreement, with such changes
as Company might request.
7.4 In the event of any breach by Executive of the
restrictions contained in this Agreement, Company shall have
no further obligation to compensate Executive hereunder and
Executive acknowledges that the harm to Company cannot be
reasonably or adequately compensated in damages in any
action at law. Accordingly, Executive agrees that, upon any
violation of such restrictions, Company shall be entitled to
preliminary and permanent injunctive relief in addition to
any other remedy, without the necessity of proving actual
damages.
8. Assumption Agreement. In the event of a Sale of the
Company, the Company 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 the Company, expressly to assume and agree to
perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it
whether or not such succession had taken place.
9. Miscellaneous. This Agreement shall be binding
upon and inure to the benefit of Company and Executive;
provided that Executive shall not assign any of Executive's
rights or duties under this Agreement without the express
prior written consent of Company. This Agreement sets forth
the parties' entire agreement with regard to the subject
matter hereof. No other agreements, representations, or
warranties have been made by either party to the other with
respect to the subject matter of this Agreement. This
agreement may be amended only by a written agreement signed
by both parties. This Agreement shall be governed by and
construed in accordance with the laws of the State of
California. Any waiver by either party of any breach of any
provision of this Agreement shall not operate as or be
construed as a waiver of any subsequent breach. If any
legal action is necessary to enforce the terms of this
Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees in addition to any other relief
to which that party may be entitled.
WHEREOF, the parties hereto have executed this
Agreement, as of the day and year first written above.
MERISEL, INC., for itself and on behalf of MERISEL EUROPE,
INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Chief Executive Officer
"EXECUTIVE"
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇-▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇-▇▇▇▇▇
