DEFERRED COMPENSATION AGREEMENT
DEFERRED COMPENSATION AGREEMENT (this "Agreement"), dated as
of September 18, 2001 (the "Effective Date"), by and between Merisel, Inc., a
Delaware corporation (the "Company") and Xxxxxxx X. Xxxxxx (the "Executive").
WHEREAS, the Executive serves as Chief Executive Officer and
President of the Company and of Merisel Americas, Inc., a Delaware corporation
("Merisel Americas"); and
WHEREAS, the Company desires to assure itself of the services
of the Executive in accordance with the terms and conditions provided herein;
and
WHEREAS, the Executive wishes to perform services for the
Company in accordance with the terms and conditions provided herein.
NOW, THEREFORE, in consideration of the premises and the
respective covenants and agreements of the parties herein contained, and
intending to be legally bound hereby, the parties hereto agree as follows:
1) Deferred Compensation Account.
-----------------------------
a) Effective as of the Effective Date, the Company shall establish a book
reserve (the "Deferred Compensation Account"), and the Company shall
credit to such account an amount equal to (i) 100% of the amounts
payable after the date hereof pursuant to Schedule I of the Retention
Agreement, dated April 1, 2001, by and among the Executive, the Company
and Merisel Americas (the "Retention Agreement") up to a maximum of
$1,000,000, (ii) 50% of any other bonuses payable in the calendar year
ending December 31, 2002 and (iii) that portion of any bonuses payable
in future years that the Executive elects to defer provided such
deferral election is made prior to the last day of the immediately
preceding year (or such earlier day as may be required by applicable
law), in each case as such bonuses are accrued and earned.
Notwithstanding the foregoing, no elections to defer compensation may
be made by the Executive pursuant to clause (iii) after the Company's
Board of Directors or any committee thereof determines that no such
further elections may be made.
b) The Deferred Compensation Account shall be deemed, solely for purposes
of this paragraph, to be invested in such investment or investments as
shall be directed reasonably for investment, from time to time, by the
Executive (including directions to transfer between or among
investments), and shall be credited or debited, from time to time as
the Company deems necessary or appropriate, as if the amounts credited
thereto had earned the same return (or experienced the same losses) as
such investment or investments; provided, however, that, if the
Executive fails to instruct the Company timely with respect to all or
any portion of the Deferred Compensation Account for any period of
time, then such portions of the Deferred Compensation Account for which
no investment direction has been given shall be credited or debited by
reference to the return (or losses) of assets invested in 90-day
Treasury Bills or the Xxxxxx Value Advantage Money Fund.
c) The Executive agrees on behalf of himself and his designated
beneficiary to assume all risk in connection with any debits or credits
made by reason of losses or earnings on investments made in accordance
with paragraph (b) above.
d) As soon as practicable following the end of each calendar year ending
prior to the distribution of the Deferred Compensation Account, the
Company shall furnish (or cause to be furnished) to the Executive (or
the Executive's beneficiary, in the event of death) with a statement of
the balances credited to the Deferred Compensation Accounts as of the
end of such calendar year and a record of the credits and debits to the
Deferred Compensation Account during such calendar year.
2) Deferred Compensation Payments.
------------------------------
a) Time and Form of Payment.
------------------------
i) Unless sooner paid pursuant to clause (ii) or (iii) below, the
Company shall pay to the Executive or to the Executive's
beneficiary (in the event of his death), in the form of a cash
lump sum, the balance of (x) the amount credited to the Deferred
Compensation Account pursuant to Section 1(a)(i) and (ii) on
12/31/03, provided that the Executive may elect to further defer
such payment provided that such election is made at least 12
months prior to the payment date; and (y) any other amounts
credited to such account in accordance with the terms of the
applicable deferral election.
ii) Notwithstanding clause (i) above to the contrary, in the event
that the Executive's employment with the Company is terminated for
any reason, then, as soon as practicable but in no event later
than ten (10) days thereafter, the Company shall pay to the
Executive or to the Executive's beneficiary (in the event of his
death), in the form of a cash lump sum, the then current balance
of the Deferred Compensation Account.
iii) Notwithstanding clause (i) above to the contrary, in the event of
the occurrence of a Financial Event, then as soon as practicable
but in no event later than ten (10) days thereafter, the Company
shall pay to the Executive or to the Executive's beneficiary (in
the event of his death), in the form of a cash lump sum, the then
current balance of the Deferred Compensation Account.
A "Financial Event" shall have occurred if (i) the Company's
independent auditors determine that they will not be able to
deliver an unqualified independent auditors' report with respect
to the Company's financial statements , (ii) the Company publicly
discloses that, or management advises the Company's Board of
Directors that, it does not expect to have or may not have
sufficient liquidity to meet expected obligations over the
following 12 months or (iii) the Company reports, or management
advises the Company's Board of Directors that it will report, net
losses (calculated on a cash basis by adding non-cash items that
reduced income) for any two consecutive quarterly periods that in
the aggregate exceed $10,000,000.
iv) Except as provided in this Section 3, the Company shall have no further
obligations to the Executive under this Agreement.
b) The beneficiary referred to in paragraph (a) above may be designated or
changed by the Executive (without the consent of any prior beneficiary)
on a form provided by the Company and delivered to the Company before
his death. If no such beneficiary shall have been designated, or if no
designated beneficiary shall survive the Executive, the Deferred
Compensation Account, if not previously paid, shall be paid to the
Executive's estate.
3) Unfunded Arrangement. It is the intention of the parties hereto that the
arrangement described in Sections 2 and 3 of this Agreement be unfunded for
tax purposes and for purposes of Title I of the Employee Retirement Income
Security Act of 1974, as amended. Nothing contained in this Agreement and
no action taken pursuant to the provisions of this Agreement shall create
or be construed to create a fiduciary relationship between the Company and
the Executive, his designated beneficiary or any other person. Any funds
that may be invested under the provisions of any trust agreement shall
continue for all purposes to be a part of the general funds of the Company
and no person other than the Company shall by virtue of the provisions of
this Agreement have any interest in such funds. To the extent that any
person acquires a right to receive payments from the Company under this
Agreement, such right shall be no greater than the right of any unsecured
general creditor of the Company. This Agreement constitutes a mere promise
by the Company to make a benefit payment in the future.
4) Nonalienation of Benefits. The right of the Executive or any other person
to the payment of deferred compensation or other benefits under this
Agreement shall not be subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, attachment or garnishment
by creditors of the Executive or the Executive's beneficiary or estate.
5) Successors; Binding Agreement.
-----------------------------
a) The Company shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially
all of the business and/or assets of the Company, by agreement in form
and substance reasonably satisfactory to the Executive, 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 if no
such succession had taken place. As used in this Agreement, "Company"
shall mean the Company as hereinbefore defined and any successor to its
business and/or assets as aforesaid that executes and delivers the
agreement provided for in this Section 6 or that otherwise becomes
bound by the terms and provisions of this Agreement by operation of
law.
b) This Agreement and all rights of the Executive hereunder shall inure to
the benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees, legatees and beneficiaries. If the Executive
should die while any amounts would still be payable to him hereunder if
he had continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to
the Executive's devisee, legatee, or other designee or, if there be no
such designee, to the Executive's estate.
6) Notice. For the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall
be deemed to have been duly given when delivered or (unless otherwise
specified) mailed by United States certified or registered mail, return
receipt requested, postage prepaid, addressed as follows:
If to the Company:
Merisel, Inc.
000 Xxxxxxxxxxx Xxxxxxxxx
Xx Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
If to the Executive:
Xxxxxxx X. Xxxxxx
c/o Merisel, Inc.
000 Xxxxxxxxxxx Xxxxxxxxx
Xx Xxxxxxx, XX 00000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
7) Miscellaneous. No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in
writing signed by the Executive and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been
made by either party that are not set forth expressly in this Agreement.
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of California without
regard to its conflicts of law principles.
8) Validity. The invalidity or unenforceability of any provision or provisions
of this Agreement shall not affect the validity or enforceability of any
other provision of this Agreement, which shall remain in full force and
effect.
9) Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together
will constitute one and the same instrument.
10) Entire Agreement. This Agreement sets forth the entire agreement of the
parties hereto in respect of the subject matter contained herein and
supersedes any and all other prior agreements, promises, covenants,
arrangements, communications, representations or warranties, whether oral
or written, by any officer, employee or representative of any party hereto;
and any prior agreement of the parties hereto in respect of the subject
matter contained herein is hereby terminated and cancelled.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
MERISEL, INC.
_____________________________
By:
Title:
XXXXXXX X. XXXXXX
