BONUS AGREEMENT
This Bonus Agreement ("Agreement") is dated as of August 10, 2000 and
is between Merisel Americas, Inc., a Delaware corporation (the "Company"), and
Xxxxxxx X. Xxxxxx ("Associate").
The Company and Associate hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following terms
shall have the meanings set forth below:
(a) A resignation by Associate shall be with "Good Reason" if after the
date hereof (i) there has been a material reduction in Associate's job
responsibilities from those that existed immediately prior to such reduction, it
being understood that neither a mere change in title alone nor a reduction in
responsibilities resulting from a reduction in the size of the Company's
business shall constitute a material reduction in Associate's job
responsibilities, (ii) without Associate's prior written approval, the Company
requires Associate to be based anywhere other than, or within a 20 minute
commute from, the Associate's current location, it being understood that
required travel on the Company's business to an extent consistent with
Associate's normal and customary business travel obligations does not constitute
"Good Reason," or (iii) there is a reduction in Associate's Base Salary, except
that an across-the-board reduction in the salary level of all of the Company's
executives in the same percentage amount as part of a general salary level
reduction shall not constitute "Good Reason."
(b) "Termination for Cause" shall mean if the Company terminates
Associate's employment for any of the following reasons: Associate's misconduct
(misconduct includes physical assault, insubordination, falsification or
misrepresentation of facts on company records, fraud, dishonesty, willful
destruction of company property or assets, or harassment of another associate by
Associate in violation of the Company' policies); excessive absenteeism; abuse
of sick time; or Associate's conviction for or a plea of nolo contendere by
Associate to a felony or any crime involving moral turpitude.
2. Bonus Payments. So long as Associate remains an employee of the
Company, Associate will be entitled to lump sum payments (each a "Bonus") in the
amounts and subject to the conditions set forth below. On the date on which the
Company has completed the sale, restructuring and/or winding down in all
material respects of its U.S. distribution business, as set forth in a plan
approved by the Board of Directors of Merisel, Inc. and provided to the
operating agent under the Company's asset securitization facility, as such plan
may be amended, the Company shall make a lump sum payment to Associate equal to
$100,000. On the date on which the Company has completed the sale or accounts
receivable refinancing of Merisel Open Computing Alliance, Inc. ("MOCA"), the
Company shall make a lump sum payment to Associate equal to $100,000. On the
date on which the Company has completed the sale and/or winding down in all
material respects of its Canadian distribution business, or on the date of the
first quarterly earnings announcement of Merisel, Inc. after the date hereof
which includes profitable results for the Canadian business, the Company shall
make a lump sum payment to Associate equal to $50,000. If Associate's employment
with the Company terminates prior to the payment of one or more Bonuses for any
reason other than as a result of Termination for Cause, death or permanent
disability, or Associate's resignation without Good Reason, then the Company
shall make a lump sum payment to Associate equal to the aggregate of the amounts
set forth above that have not been paid to Associate prior thereto.
3. Withholding. The Company shall deduct from all payments paid to
Associate under this Agreement any required amounts for social security, federal
and state income tax withholding, federal or state unemployment insurance
contributions, and state disability insurance or any other required taxes.
4. Confidentiality. Associate agrees that the terms of this Agreement
and the amount and nature of all payments received by Associate hereunder shall
remain confidential and shall not be disclosed to any other person (other than
Associate's 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.
5. Arbitration. Any dispute that may arise between Associate and the
Company in connection with or relating to this Agreement, including any monetary
claim arising from or relating to this Agreement, will be submitted to final and
binding arbitration in Los Angeles, California, in accordance with the rules of
the American Arbitration Association ("AAA") then in effect. Such arbitration
shall proceed before a single arbitrator who shall be selected by the mutual
agreement of the parties. If the parties are unable to agree on the selection of
an arbitrator, such arbitrator shall be selected in accordance with the
Employment Dispute Resolution Rules and procedures of the AAA. The decision of
the arbitrator, including determination of the amount of any damages suffered,
shall be conclusive, final and binding on such arbitrating parties, their
respective heirs, legal representatives, successors, and assigns. Each party to
any such arbitration proceeding shall bear her or his own attorney's fees and
costs in connection with any such arbitration and each party shall pay half of
all costs associated with the arbitration including the arbitrator's fees.
9. Miscellaneous. This Agreement shall be binding upon and inure to the
benefit of the Company and Associate; provided that Associate shall not assign
any of Associate's rights or duties under this Agreement without the express
prior written consent of the Company. This Agreement sets forth the parties'
entire agreement with regard to the subject matter hereof. Neither party has
made any other agreements, representations, or warranties 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. Should any provisions of
this Agreement be declared to be or 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 part of this Agreement. 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.
10. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same instrument, which shall be effective upon the
execution hereof by all of the parties hereto. A complete set of counterparts
shall be made available to each party hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as
of the day and year first written above.
MERISEL AMERICAS, INC.
By:
Xxxxx Xxxxxx
President and Chief Executive Officer
XXXXXXX X. XXXXXX
