EXHIBIT 10.70
FORM OF
FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
This FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (the "Amendment") is made as of
, 1997 between Merisel, Inc., a Delaware corporation (the "Company" or
"Merisel"), and Xxxxx X. Xxxxxx ("Executive").
BACKGROUND
WHEREAS, the Company and Executive entered into an Employment Agreement
dated as of August 19, 1996 (the "Agreement") pursuant to which the terms and
conditions governing the Executive's employment by the Company were set forth;
and
WHEREAS, the Company and Executive desire to modify the terms of the
Agreement as set forth herein;
NOW, THEREFORE, the Company and Executive hereby agree to amend the
Agreement as set forth below.
AGREEMENT
1. Section 5.2(c) of the Agreement is hereby amended to read in its entirety
as follows:
"(c) The Company will recommend to the Company's Option Committee for
such Option Committee to cause all remaining unvested options to purchase
the Common Stock of the Company vest upon the date of such Covered
Termination."
2. Section 5.5(a) of the Agreement is hereby amended to read in its entirety
as follows:
"5.5 Definitions. (a) A "Sale of the Company" shall have occurred if (i)
any person, corporation, partnership, trust, association, enterprise or
group shall become the beneficial owner, directly or indirectly, of
outstanding capital stock of the Company of directors) of the outstanding
capital stock of the Company, or the Company stockholders of the Company
transaction do not own, immediately after such transaction, stock of the
purchasing or surviving corporation in the transaction (or of the parent
corporation of the purchasing or surviving corporation) possessing more
than 50% of the voting power (for the election of directors) of the
outstanding capital stock of that corporation, which ownership shall be
measured without regard to any stock of the purchasing, surviving or parent
corporation owned by the stockholders of the Company before the
transaction, or (iii) within one year following a transaction in which the
holders of the Company's 12.5% Senior Notes due 2004 (the "Senior Notes")
exchange all or substantially all of the Senior Notes for Common Stock of
the Company, Xxxxxx X. Xxxxxxxxxx is terminated by the Company's Board of
Directors as Chief Executive Officer of the Company or the Company breaches
its employment agreement with Xx. Xxxxxxxxxx in any material respect. It is
expressly understood that, for purposes of this Section 5.5(a), the holders
of indebtedness of the Company or its subsidiaries shall not be deemed to
constitute a "group" solely by virtue of their roles as debtholders or by
exercising their rights with respect thereto."
3. Section 7.1 of the Agreement is hereby amended to read in its entirety as
follows:
"7.1 Executive agrees that during the Employment Term and, if Executive
is entitled to payments pursuant to Section 5.3, during the 180 day period
following Executive's receipt of payment under Section 5.3(a), Executive
will not directly or indirectly (a) own or control any debt, equity, or
other interest in (except as a passive investor of less that 5% of the
capital stock or publicly traded notes or debentures of a
publicly held company); or (b) act as 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., Computer 2000 AG (C2000), Arrow Electronics,
Inc., Intelligent Electronics, Inc., MicroAge, Inc., Inacom Corp.,
Compucom, Entex Information Services, Inc., SYNNEX Technologies, Inc.,
ComputerLand Corporation 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 business that is in competition in any manner whatsoever
with the business of the Company."
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
First Amendment to Employment Agreement, as of the day and year first written
above.
MERISEL, INC. XXXXX X. XXXXXX
By: _________________________________ -------------------------------------
Its: ________________________________
