WAIVER AND RELEASE AGREEMENT
This Release is given
By the Releasor(s): XXXXXX X. XXXXXXXXX
Address:
hereinafter referred to as "I",
To the Releasee(s): MERISEL, INC. and its parent, subsidiary
and affiliated corporations(including
predecessors and successors) and their
officers,directors,employees and
representatives
sometimes hereinafter referred to as "You" or "Merisel".
1. Release. I hereby release and give up any and all actions, causes of action,
claims and rights (hereinafter "Claims") which I may have against You. This
releases all claims, including those of which I am not aware and those not
mentioned herein. This Waiver and Release Agreement ("Agreement") applies to
Claims resulting from anything that has happened prior to and through and
including the date of this Agreement. I specifically release any and all Claims
relating in any way to my employment relationship with you, or the termination
of the Employment Agreement entered into as of February 3, 1997 between myself
and Merisel, Inc. (the "Employment Agreement"), including, but not limited to,
any Claims arising under the Age Discrimination in Employment Act, the Older
Workers Benefit Protection Act of 1990, Title VII of the Civil Rights Act of
1964, the Equal Pay Act, the Employee Retirement Income Security Act, the Fair
Labor Standards Act, the Consolidated Omnibus Budget Reconciliation Act of 1986,
or any other federal, state or local laws or ordinances and any common law
claims under tort, contract, or any other theories now or hereafter recognized.
This Agreement specifically includes, but without limitation, all Claims arising
out of my employment relationship with You.
2. Waiver. I hereby acknowledge and assume all risks or chances that the
injuries claimed to have resulted from the above-stated matter may become
greater or more extensive than now known, anticipated or expected. I understand
that this instrument shall be effective as a full and final release of all
Claims. I acknowledge that I am familiar with, and have been provided with,
separate consideration for that portion of Section 1542 of the Civil Code of the
State of California which provides as follows:
"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 debtor."
I waive any right that I have under the above-mentioned Section 1542 to the
fullest extent that I may lawfully waive all such rights pertaining to the
subject matter of this Agreement. In connection with the above waiver, I am
aware that I may hereafter discover Claims or facts in addition to or different
from those I now know or believe to exist with respect to the subject matter of
this Agreement or You. However, I, on behalf of myself and my successors and
assigns, hereby settle and release all of the Claims which I may have against
You.
3. No Admissions. I agree and acknowledge that this Agreement is not to be
construed as an admission of any violation of any federal, state or local
statutes, ordinance or regulation or any duty allegedly owed by You to me. You
specifically disclaim any liability to me on any basis.
4. Time Periods. I have been given the opportunity to take a period of at least
twenty-one (21) days within which to consider this Agreement. If I choose to
sign this Agreement before that time period expires, I do so knowingly and
voluntarily. I also understand that I have the right to change my mind and
cancel this Agreement within seven (7) days following the date that I have
signed it. This Agreement will not be effective until the end of this seven (7)
day period.
5. Consideration. In exchange for consideration of and reliance on (1) my
resignation as President and Chief Operating Officer effective March 11, 1998
and as a full-time associate effective April 30, 1998, (2) my agreement to
resign as a Director of Merisel, Inc. prior to June 30, 1998, (3) my execution
of this Agreement, and (4) my agreement to be bound by Paragraphs 6 (Disclosure
of Information), 7 (Employee Covenants), 8 (Non-Compete and Non-Solicitation)
and 9 (Return of Work Product) of the Employment Agreement, You agree to (1)
employ me as an employee consultant from May 1, 1998 through February 3, 1999 or
until I am employed on a full time basis or working as a consultant on a more
than half-time basis, whichever occurs first, at $12,500.00 monthly payable in
bi-weekly installments (this equates to an annualized salary of $150,000.00),
(2) continue benefit coverage through February 3, 1999 or until I am employed
and eligible for coverage, whichever occurs first, (3) pay me an amount equal to
the bonus I would have been entitled to receive pursuant to the Employment
Agreement for the first quarter of 1998 based on the guidelines of the 1998
Incentive Plan in accordance with Merisel's normal bonus payment procedures, and
(4) reimburse me for business expenses that result from employee consulting
services provided by me to Merisel. I agree that I will not be eligible for
bonus payments and any vacation or sick time beyond the first quarter of 1998. I
also agree that I will not seek anything further, including any other payment
from You. I further agree, in return for receipt of the foregoing payments, to
abide by all of your rules, policies and procedures applicable to current and
former associates.
6. Confidentiality. I agree that the terms and conditions of this Agreement
shall remain confidential and shall not be disclosed to any other person (other
than my family members, attorneys, and accountants who shall be informed of and
bound by the confidentiality provisions of this Agreement) other than as
required by court order, legal process or applicable law or as otherwise agreed
to by You and me. I also agree that as a Director, Officer and employee of
Merisel, I received confidential information, including, without limitation,
information which would be protected by the attorney-client privilege or
work-product doctrine, and I further agree not to disclose any such confidential
information to anyone unless compelled to do so by legal process. I understand
that this provision regarding confidentiality constitutes a substantial
inducement for You to enter into this Agreement.
7. Non-Compete. In return for the payments set forth in paragraph 5 hereinabove,
for the period from the date of this Agreement through February 3, 1999, I will
not directly or indirectly (a) own or control any debt, equity, or other
interest in (except as a passive investor of less than 5% of the capital stock
or publicly traded notes or debentures of a publicly held company); or (b) act
as a director, officer, manager, employee, participant or consultant to; or (c)
be obligated to, or connected in any advisory business enterprise or ownership
capacity with, any of Tech Data Corp., Xxxxxx Micro, Inc., Micro Age, Inc.,
Inacom Corp., Compucom, Entex Information Services, Inc., SYNNEX Technologies,
Inc., Arrow Electronics, 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 or any other wholesale
distributor of micro computer products or otherwise engage or participate in any
such business.
8. Non-Solicitation. In return for the payments set forth in paragraph 5
hereinabove, for the period from the date of this Agreement through February 3,
1999, I will not directly or indirectly solicit any associate of Merisel on my
behalf or on behalf of a competitor or customer of Merisel. As used herein, the
word "indirectly" includes but is not limited to attempting to induce any
associate of Merisel or its affiliates to leave Merisel or such affiliates for
any purpose.
9. Further Assurances and Future Cooperation. You and I, without further
consideration, agree to cooperate fully and execute any and all documents, and
to take all additional actions that may be necessary, convenient or appropriate
to give full force and effect to the basic terms and intent of this Agreement.
In addition, I agree to cooperate in good faith with You and your counsel in
connection with any pending or subsequent administrative proceeding, mediation,
arbitration or litigation including, without limitation, litigation relating to,
or arising out of, the Limited Waiver and Voting Agreement entered into on April
14, 1997 between Merisel and certain holders of Merisel's 12 - 1/2% percent
Senior Notes due in 2004, including, without limitation, by providing
information and/or documents, participating in informal interviews, and
appearing for depositions and/or trial testimony. I further agree to notify
Merisel immediately, telephonically and in writing, personally or through my
legal counsel, of any subpoena, interview, deposition, or other contact with any
third party with respect to my employment with You, or litigation involving the
Limited Waiver and Voting Agreement or any disputes relating thereto. You agree
that Merisel, Inc. remains bound under the Indemnity Agreement dated February 3,
1997 entered into between Merisel, Inc. and myself.
10. Who is Bound. You and I are bound by this Agreement. Anyone who succeeds to
my rights and responsibilities, such as my heirs or the executor of my estate,
and any or your successors or assigns, is also bound by and entitled to the
benefit of this Agreement.
11. No Inducements. I further warrant that no promise or inducement for this
Agreement has been made except as set forth herein, that this Agreement is
executed without reliance upon any statement or representation by any person or
parties released, or their officers, directors, employees, agents or
representatives, concerning any fact material to my act in releasing them, and
that I am legally competent to execute this Agreement and accept full
responsibility therefor.
12. Representations. I represent and acknowledge that I understand the contents,
implications, and consequences of this Agreement, and that I agree to the terms
of this Agreement and have executed it voluntarily. I have had an opportunity to
discuss the terms of this Agreement with individuals of my own choosing who are
not associated with You. I have been advised by You to consult with an attorney
of my own choosing.
13. Entire Agreement. This Agreement constitutes the entire agreement between
You and I concerning the subject matter hereof and supersedes all prior
agreements between You and I, except the Employment Agreement to the extent that
its provisions survive. This Agreement may not be modified orally.
14. Governing Law. This Agreement is made and entered into in the State of
California and shall in all respects be interpreted, enforced and governed under
the laws of said State. The language of all parts of this Agreement shall be
construed as a whole, according to its fair meaning, and not strictly for or
against You or I.
15. Invalidity. Should any provisions of this Agreement be determined by any
court to be illegal or invalid, the validity of the remaining parts, terms or
provisions shall not be affected thereby and said illegal or invalid part, term
or provision shall be deemed not to be a part of this Agreement.
16. Arbitration. All controversies, claims, disputes, and matters in question
arising out of or relating to this Agreement, or the breach thereof, shall be
decided by arbitration in accordance with the provisions of this paragraph. The
arbitration proceedings shall be conducted under the applicable rules of the
American Arbitration Association, or its successor in effect, at the time a
demand for arbitration under the rules is made. The arbitration board will
consist of three arbitrators, one chosen by each of us and the third selected by
the two arbitrators so chosen. The decision of the majority of the arbitrators,
including determination of amount of any damages suffered, shall be conclusive,
final, and binding on each of us, and our respective heirs, legal
representatives, successors, and assigns. The arbitrators shall be bound to
follow California law and case precedent. Any decision of the arbitrators will
not be binding if the arbitrators fail to follow California law and case
precedent. The losing party shall pay to the successful party its expenses in
the arbitration for arbitration costs, including arbitrators' fees and
attorneys' fees, fees for expert testimony, and for other expenses of presenting
its case.
I ACKNOWLEDGE AND AGREE THAT I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY
PRIOR TO EXECUTING THIS AGREEMENT; THAT TO THE EXTENT I HAVE DESIRED, I HAVE
AVAILED MYSELF OF THAT RIGHT; THAT I HAVE CAREFULLY READ AND UNDERSTAND ALL OF
THE PROVISIONS OF THIS AGREEMENT; THAT I WAS INFORMED I HAD TWENTY-ONE (21) DAYS
IN WHICH TO CONSIDER THIS AGREEMENT AND HAVE VOLUNTARILY WAIVED SUCH TWENTY-ONE
(21) DAY CONSIDERATION PERIOD; THAT I MAY REVOKE THIS AGREEMENT WITHIN SEVEN (7)
DAYS AFTER I EXECUTED IT; AND THAT I AM VOLUNTARILY ENTERING INTO THIS
AGREEMENT.
Please sign both copies of this Agreement on the line below to acknowledge your
agreement, retain one for your files and return the other in the enclosed
self-addressed stamped envelope.
IN WITNESS WHEREOF, the undersigned has executed this
AGREEMENT as of the date written freely and voluntarily.
4/30/98
DATED AS OF: ____________ MERISEL, INC.
/s/ Xxxxxx Xxxxxxxxxx
By:_________________________________
4/30/98
DATED AS OF: ______________ ACKNOWLEDGED AND AGREED:
/s/ Xxxxxx X. XxXxxxxxx
_________________________________
