EXHIBIT 10.35
SETTLEMENT AGREEMENT AND RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE (the "Settlement Agreement") is made
on February 13, 1997, by and among CHS Electronics, Inc., a Florida corporation
("CHS"), Merisel, Inc., a Delaware corporation ("Merisel"), and Merisel Europe,
Inc., a Delaware corporation ("Merisel Europe" and together with Merisel, the
"Sellers"). Capitalized terms not otherwise defined herein are used as defined
in the Purchase Agreement, dated as of August 29, 1996, by and among CHS and the
Sellers (the "Purchase Agreement").
WHEREAS, pursuant to the Purchase Agreement CHS acquired all of the issued
and outstanding shares of capital stock of certain subsidiaries of the Sellers;
and
WHEREAS, certain post closing adjustments and indemnification claims have
arisen under the Purchase Agreement; and
WHEREAS, CHS and the Sellers desire to settle all such claims and finalize
all matters relating to the Purchase Agreement pursuant to the terms and
conditions hereof except as otherwise specifically provided herein.
NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements set forth herein, it is agreed that:
1. SETTLEMENT OF CLAIMS. In settlement of all Claims (as defined below)
relating to the Purchase Agreement, the parties agree as follows:
(a) Concurrently with the execution hereof, CHS shall pay an amount
equal to $3,000,000, plus accrued interest from February 1, 1997 to the date
hereof at a rate of 10% per annum, and set off by the amount owed by Merisel
pursuant to paragraphs 3 and 4 of ANNEX B hereto, by wire transfer of
immediately available funds to the following account:
Account Name: Merisel Americas, Hdq.
Bank: Citibank, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA Routing No.: 0210 0008 9
Account No.: 4063 9503
(b) Concurrently with the execution hereof, CHS shall execute, and
deliver to the Sellers, a promissory note (the "Note") in form and substance
identical to ANNEX A hereto.
(c) CHS and the Sellers acknowledge and agree that the payment to the
Sellers pursuant to Paragraph 1(a) and the Note shall be received and accepted
by the Sellers in full payment and settlement of all Claims related to the
Purchase Agreement, except for the Claims identified on ANNEX B hereto (the
"Excluded Claims").
(d) The amount paid hereunder and pursuant to the Note shall be an
adjustment to the Purchase Price paid under the Purchase Agreement, and shall be
allocated for tax purposes in accordance with SCHEDULE 1 hereto.
2. RELEASE.
(a) Each of CHS and the Sellers, on behalf of themselves and their
respective affiliates, hereby fully release and forever discharge each other
and each of their respective affiliates from any and all claims, demands,
controversies, liabilities, damages, debts, obligations, costs, expenses,
attorneys' fees or causes of action of any kind or nature (collectively,
"Claims"), whether now known or unknown, suspected or unsuspected, in law or in
equity as may exist, in connection with, arising from or relating to the
Purchase Agreement or the transactions contemplated thereby, including without
limitation any and all Claims that may be used on contract, tort or other
theories (except for the Excluded Claims).
(b) Each of CHS and the Sellers on behalf of themselves and their
respective affiliates, hereby waive any and all rights which any of them may
have under the provisions of Section 1542 of the Civil Code of the State of
California as now worded and as hereafter amended, which section provides in
pertinent part:
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"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 HIS
SETTLEMENT WITH THE DEBTOR."
It is understood and agreed that the facts in respect of which this Settlement
Agreement is executed may turn out to be other than or different from the facts
in that respect now known or believed by each of the parties to be true; and
with such understanding and agreement, each of CHS and the Sellers, on behalf of
themselves and their respective affiliates, expressly accepts and assumes the
risk of facts being other than or different from the assumptions and perceptions
as of any date prior to and including the date hereof, and each agrees that this
Settlement Agreement shall be in all respects effective and shall not be subject
to termination or rescission by reason of any such difference in facts.
(c) Each party hereby represents to each other party that,
notwithstanding any documentaiton or facts that may later come to light with
respect to the matters in respect of which this Settlement Agreement is
executed, it has conducted an adequate investigation into such matters and has
reviewed all of the considerations and documentation that may be relevant or
that it requested to review in connection with entering into this Settlement
Agreement. With respect hereto, no party is relying on any inducements, promises
or representations not contained herein.
3. REPRESENTATIONS AND WARRANTIES. Each party hereby represents and
warrants as follows:
(a) It has the legal capacity and all necessary power and authority to
execute and deliver this Settlement Agreement and to consummate the transactions
contemplated hereby.
(b) Assuming this Settlement Agreement has been duly and validly
authorized, executed and delivered by the other parties hereto, this Settlement
Agreement constitutes a valid and binding agreement of such party, enforceable
in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting creditors'
rights generally or by the principles governing the availability of equitable
remedies.
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4. NOTICES TO PARTIES. All notices and other communications shall be
effective upon receipt if hand delivered or sent by facsimile transmission and
confirmed by United States mail and shall be effective one day after sending by
recognized "overnight" delivery service to the addresses stated below, or to
such other addresses as to which either party shall have previously notified the
other party in writing. Any such notice not contemplated above shall be
effective upon receipt. For the purposes of this Paragraph 4, the addresses of
the parties shall be as follows:
IF TO THE SELLERS:
Merisel, Inc.
000 Xxxxxxxxxxx Xxxxxxxxx
Xx Xxxxxxx, Xxxxxxxxxx 00000
ATTENTION: President
Fax: (000) 000-0000
With copies to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 X. Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
ATTENTION: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
IF TO CHS:
CHS Electronics, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
ATTENTION: President
Fax (000) 000-0000
With copies to:
Greenberg, Traurig, Xxxxxxx
Xxxxxx, Xxxxx Xxxxxxx, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
ATTENTION: Xxxx Xxxxxxxxx, Esq.
Fax: (000) 000-0000
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5. COMPLETE AGREEMENT. This is the complete agreement between the parties
with respect to the subject matter hereof and supersedes all prior negotiations
and agreements with respect thereto. There are no representations, warranties,
covenants, conditions, terms, agreements, promises, understandings, commitments
or other arrangements with respect to the subject matter hereof other than those
expressly set forth or incorporated herein or made in writing on or after the
date of this Settlement Agreement. This Settlement Agreement settles all matters
relating to the Purchase Agreement except with respect to the Excluded Claims.
Except as expressly provided herein, this Settlement Agreement does not amend or
supersede the Purchase Agreement with respect to the Excluded Claims and the
Purchase Agreement shall remain in full force and effect.
6. GOVERNING LAW; CONSENT TO JURISDICTION. This Settlement Agreement is
made pursuant to the laws of the State of California; as to any question
concerning the Agreement as a whole, it shall be governed by, construed under
and enforced in accordance with, the laws of the State of California without
regard to its conflict-of-laws principles.
7. EXPENSES. Except as otherwise specifically provided herein, each of the
parties hereto shall pay their respective counsel fees, accounting fees and
other costs and expenses incurred in connection with the negotiation, making,
execution, delivery and performance of this Settlement Agreement.
8. BINDING AGREEMENT; SUCCESSORS. This Settlement Agreement shall be
binding upon, inure to the benefit of and be enforceable by the parties hereto
and the respective predecessors, successors, assigns, heirs, legatees,
executors, representatives, agents, guardians, custodians, administrators,
conservators, directors, officers, shareholders, subsidiaries, affiliates and
associates of the parties hereto and any other person or persons who may in any
fashion claim any interest in the subject matter hereof through any of the
parties hereto.
9. HEADINGS. The paragraph headings herein are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Settlement
Agreement, nor are they deemed to constitute a part of this Settlement
Agreement.
10. COUNTERPARTS. This Settlement Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument, which shall be
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effective upon the execution hereof by all of the parties hereto. A complete set
of counterparts shall be made available to each party hereto.
11. TIME OF THE ESSENCE. Time shall be of the essence of this Settlement
Agreement and of each and every part thereof.
12. SEVERABILITY. If any provision of this Settlement Agreement or the
application of any such provision shall be held invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof. In lieu of any such invalid, illegal or unenforceable provision, the
parties hereto intend that there shall be added as part of this Settlement
Agreement a provision as similar in terms to such invalid, illegal or
unenforceable provisions as may be possible and be valid, legal and enforceable.
13. U.S. DOLLARS. Unless otherwise specified, all references to "$" or
"dollars" in this Settlement Agreement shall mean U.S. dollars.
14. ATTORNEYS' FEES. In any action or proceeding brought to enforce any
provision of this Settlement Agreement, or where any provision hereof is validly
asserted as a defense, the successful party shall be entitled to recover
reasonable and actual attorney's fees in addition to its cost and expense and
any other available remedy; PROVIDED, that, for the purposes hereof, the Sellers
shall be deemed one party and CHS shall be deemed one party.
15. INTERPRETATION. As used herein, "affiliates" of a person shall mean
such person's shareholders, subsidiaries, associates, predecessors and
successors, and assigns of any of them, and each and all of such person's
directors, officers, employees, agents and representatives, and assigns of any
of them. Each party has participated in the drafting and preparation of this
Settlement Agreement, and, accordingly, in any construction or interpretation
of this Settlement Agreement, the same shall not be construed against any party
by reason of the source of drafting.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Settlement Agreement on the day and year first above written.
MERISEL, INC.
By:\s\XXXXXX XXXXXXXXXX
---------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Chief Executive Officer
MERISEL EUROPE, INC.
By:\s\XXXXXX XXXXXXXXXX
---------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Chief Executive Officer
CHS ELECTRONICS, INC.
By: \s\XXXXXXX XXXXXX
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
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ANNEX A
PROMISSORY NOTE
$8,000,000.00 February 1, 1997
FOR VALUE RECEIVED, CHS Electronics, Inc., a Florida corporation
("Borrower"), hereby unconditionally promises to pay to the order of Merisel,
Inc., a Delaware corporation, and its successors, endorsees, transferees and
assigns (collectively, "Lender"), the principal amount of EIGHT MILLION DOLLARS
AND NO CENTS ($8,000,000.00) such principal to be due and payable as follows:
$4,000,000, plus accrued interest, on March 12, 1997, and $4,000,000, plus
accrued interest, on April 11, 1997.
Borrower agrees to pay interest on the unpaid principal amount hereof and,
to the extent lawful, on any interest payment due but unpaid. Interest shall
accrue from the date hereof until this Note is paid in full at a rate equal to
10% per annum, except that upon the occurrence of an Event of Default (as
hereinafter defined), all unpaid principal and, to the extent lawful, any
interest payment due but unpaid shall accrue interest at a rate of 14% per
annum.
Borrower may at its option prepay all or any portion of this Note without
premium or penalty. Each payment on this Note shall be credited first on
interest, and the remainder, if any, on principal, and interest shall thereupon
cease to accrue on the principal so credited.
If Borrower shall fail to pay when and as required to be paid herein, any
amount of principal or interest (an "Event of Default"), the Lender may, by
notice, declare the principal amount then outstanding and the accrued interest
thereon and all other amounts payable to Lender to be forthwith due and payable,
whereupon such amounts shall be immediately due and payable without presentment,
demand, protest or other formalities of any kind, all of which are hereby
expressly waived by Borrower.
If the payment of principal or interest on this Note shall become due on a
Saturday, Sunday or legal holiday under the laws of the State of California,
such payment shall be made on the next succeeding business day, and any such
A-1
extended time of the payment of principal shall be included in computing
interest at the rate this Note bears prior to maturity in connection with
such payment.
All payments of principal, interest and all other amounts payable in
respect of this Note shall be made in lawful money of the United States of
America in immediately available funds by wire transfer to the following
account:
Account Name: Merisel Americas, Hdq.
Bank: Citibank, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA Routing No.: 0210 0008 9
Account No.: 4063 9503
Lender shall, before disposing of this Note or any part hereof, make a
notation hereon of all principal and interest payments previously made hereunder
and of the date to which interest hereon has been paid; PROVIDED, HOWEVER, that
the failure to correctly make a notation of any payment made on this Note shall
not limit or otherwise affect the obligation of Borrower under this Note with
respect to any loan evidenced hereby or payments of principal or interest on
this Note.
THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND SHALL BE
GOVERNED BY, THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICT OF
LAW PRINCIPLES THEREOF.
Borrower hereby waives diligence, presentment, protest, demand and notice
of every kind and, to the full extent permitted by law, the right to plead any
statue of limitations as a defense to any demand hereunder.
Wherever possible each provision of this Note shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Note shall be prohibited by or invalid under such law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Note and shall be interpreted so as to be effective and valid.
The holder of this Note shall have the right at any time to sell, assign,
transfer, negotiate or pledge (collectively, "transfer") all or any part of his
interest in this Note.
A-2
This Note is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein and therein, and Lender has made no representations, warranties
or covenants that are not located herein or therein. This note supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
A-3
IN WITNESS WHEREOF, Borrower has executed and delivered this Note as of the
day and year first above written.
CHS ELECTRONICS, INC.
a Florida corporation
By:
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
A-4
TRANSACTIONS ON
PROMISSORY NOTE
Amount of Amount of Outstanding
Principal Interest Principal
Paid This Paid This Balance Notation
Date Date Date This Date Made By
---- ---- ---- --------- -------
A-5
ANNEX B
EXCLUDED CLAIMS
1. Payment of $42,000 owed by CHS to the Sellers for the provision by the
Sellers for the period ending December, 1996 to CHS and/or its affiliates
of the use of the CAMBAR System.
2. Payment of amounts due from time to time, by CHS to Merisel Americas, Inc.
under the Agreement entered into between Merisel Americas, Inc. and Merisel
Latin America, Inc. dated as of October 4, 1996 (the "Fulfillment
Agreement") which Fulfillment Agreement shall continue in full force and
effect pursuant to the terms thereof until February 28, 1997, at which time
the Fulfillment Agreement shall terminate.
3. Payment of $1,255,660 owed by Merisel Americas, Inc. to CHS for Novell
computer products purchased by Merisel Americas, Inc. from an affiliate of
CHS, such payment to be made in accordance with the terms and conditions
under which the products were originally sold (such amount to be adjusted up
to a maximum of $1,350,840 upon CHS providing proof of delivery to Merisel
Americas, Inc. of additional product).
4. Payment by Merisel to CHS of $8,494 for notarial services provided.
5. Claims brought in good faith and alleged in reasonable detail under Section
6.4(d) of the Purchase Agreement prior to June 30, 1997, to the extent
Damages arising from such claims exceed $5,000,000 (recovery on Damages
shall be limited to such excess). In any Claim brought under this paragraph,
the prevailing party shall be entitled to attorneys' fees from the losing
party.
6. Each party and their respective affiliates shall be required to comply with
the duties and obligations set forth in Section 6.11(d) of the Purchase
Agreement.
7. Bonuses totaling approximately $150,000 due March 27, 1997 from Merisel to
the following persons: Xxxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxx Xxxx, Xxxxxx
Xxxx, Xxxxxx Eceto, Xxxxx Xxxxxxxxxx, Xxxxxxxxx Xxxx, Xxxxxxxxxx Xxxx, Xxxxx
Xxxxxxx, Xxxxxx Xxxxxx and Xxxxx Xxxxx.
B-1
MERISEL, INC. SALE TO CHS ELECTRONICS
SUMMARY OF PURCHASE PRICE ALLOCATION
AMOUNTS IN US$
STOCK DEBT OTHER TOTAL
----- ---- ----- -----
Merisel (UK) Limited 1 14,852,081 14,852,082
Securitization 0 0 26,252,175 26,252,175
Merisel France, Inc. 1 19,942,402 19,942,403
MIFINCO, Inc. 1 1
Merisel GmbH 11,836,493 23,222,144 35,058,637
Merisel GesmbH 1 4,431,749 4,431,750
Merisel Netherlands B.V. 1 6,563,930 6,563,931
Europe fixed assets 530,000 530,000
---------- ---------- ---------- -----------
EUROPE 11,836,498 69,012,306 26,782,175 107,630,979
========== ========== ========== ===========
Mexico 12,108,899 0 0 12,108,899
Latin America 8,336,922 19,554,179 27,891,101
---------- ---------- ---------- -----------
LATIN/MEXICO 20,445,821 19,554,179 0 40,000,000
========== ========== ========== ===========
TOTAL 32,282,319 88,566,485 26,782,175 147,630,979
