AMENDED AND RESTATED
FIRST AMENDMENT TO RETENTION AGREEMENT
THIS AMENDED AND RESTATED FIRST AMENDMENT TO RETENTION
AGREEMENT (the "Amendment") is made effective as of the 1st day of July, 2004
(the "Effective Date"), by and between Merisel, Inc., a Delaware corporation
("Merisel"), Merisel Americas, Inc., a Delaware corporation ("Merisel America"
and together with Merisel, each a "Company" and collectively, the "Companies")
and Xxxxxxx X. Xxxxxx (the "Executive").
WITNESSETH:
WHEREAS, the Companies and the Executive entered into a
Retention Agreement dated as of April 1, 2001 pursuant to which the Executive
was retained as Chief Executive Officer and President of each of the Companies
(the "Underlying Retention Agreement"). All capitalized terms not otherwise
defined in this Amendment shall have the meaning therefor in the Underlying
Retention Agreement;
WHEREAS, the Companies and the Executive entered into a First
Amendment to Retention Agreement, effective as of July 1, 2004 (the "First
Amendment");
WHEREAS, the Companies and the Executive agree to continue
their relationship to the extent necessary so as to effect an orderly transition
of the management of the Companies and to permit the Executive the opportunity
to secure alternate employment; and
WHEREAS, the Companies and the Executive acknowledge that it
is in their best interests to amend the Underlying Retention Agreement and to
restate the First Amendment in the manner set forth below;
WHEREAS, the Companies and the Executive are desirous of
restating in its entirety the First Amendment such that the terms and conditions
hereinafter stated shall supercede all of the terms and conditions of the First
Amendment.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, it is mutually agreed
to by and between the parties as follows:
1. Terms of Employment. The text of Section 2 of the Underlying Retention
Agreement shall be deleted and replaced with the following:
(a) The parties to this Agreement acknowledge and agree that
Executive's employment as Chief Executive Officer and President shall continue
until such time that either the Companies or the Executive provides the other
party with at least ten (10) days' prior written notice of its intent to
terminate the Executive's employment under the Underlying Agreement (the
"Term").
(b) From July 1, 2004 through the end of the Term, Executive shall be
paid an annual base salary $200,000, which shall be payable in accordance with
Merisel's standard salary policies as they exist from time to time, subject to
deductions as required by law or agreement.
(c) Following the termination of Executive and payment of all amounts
due hereunder, Executive agrees to resign immediately from the Boards of
Directors of each of the Companies."
2. Severance Obligations. The following text shall be added to Section 4 of the
Underlying Retention Agreement:
"The Companies each acknowledge and agree that, due to the reduction of
his salary and the non-causal nature of their termination of his employment,
Executive is now owed the full amount of severance owed to him under this
Section 4. In that regard and notwithstanding anything contained in this
Agreement to the contrary, on the termination of Executive's employment with the
Companies, regardless of the reason for such termination, Executive shall be
entitled to the immediate payment and collection of all amounts due thereto
pursuant to the terms of this Agreement, provided that Executive's Base Salary
shall equal $400,000 for the purpose of all such severance and related
calculations. Executive acknowledges and agrees that the amounts due to him
under this Section 4, plus any and all amounts owed to him under that certain
Deferred Compensation Agreement dated September 18, 2001 and entered into
between Merisel and Executive, as such agreement may be amended to date, are, in
the aggregate, the entire balances owed to Executive by the Companies."
3. Confirmation of Executive's Obligations. Executive acknowledges and agrees
that Section 8 of the Underlying Retention Agreement continues in full force and
effect following the execution of this Amendment.
4. No Further Changes. Except as set forth above, the Underlying Retention
Agreement shall remain in full force and effect without further amendment or
modification thereto.
5. Counterparts. This Amendment may be executed in one or more counterparts and
by facsimile, each of which counterparts and/or facsimiles shall be deemed to be
an original, and all such counterparts and facsimiles shall constitute one and
the same instrument.
IN WITNESS WHEREOF, each party hereto has duly executed this
Amendment as of the Effective Date.
MERISEL, INC.
By: /s/Xxxxxx Xxxxx
-------------------------
Name: Xxxxxx Xxxxx
Title: Secretary
MERISEL AMERICAS, INC.
By: /s/Xxxxxx Xxxxx
--------------------------
Name: Xxxxxx Xxxxx
Title: Secretary
XXXXXXX X. XXXXXX
/s/Xxxxxxx X. Xxxxxx
--------------------------
Xxxxxxx X. Xxxxxx
