WAIVER AND RELEASE AGREEMENT
THIS WAIVER AND RELEASE AGREEMENT ("Agreement") is entered into as
of this 8th day of November, 2000, between Merisel, Inc., a Delaware corporation
(the "Company"), and Xxxxxx X. Xxxxxxxxxx ("Executive").
WHEREAS, the Executive has been employed by the Company in the
capacity of Chief Executive Officer and President;
WHEREAS, effective as of August 4, 2000, the Board of Directors of the
Company removed Executive as Chairman of the Board, Chief Executive Officer and
President of the Company; and
WHEREAS, Executive has entered into (i) an Employment Agreement dated
as of February 12, 1997 between Executive and the Company (the "Employment
Agreement"), (ii) an Indemnity Agreement dated as of February 12, 1996 between
Executive and the Company and (iii) various stock option agreements pursuant to
which the Company has granted stock options to Executive (collectively with the
Merisel Employment Agreement and the Indemnity Agreement, the "Other
Agreements").
NOW, THEREFORE, the parties hereby agree as follows:
1. Release by Executive. Executive hereby releases, covenants not to
xxx and holds harmless the Company and any direct or indirect parent, subsidiary
or affiliate of the Company (collectively, the "Company Entities") and their
respective employee benefit plans, together with the directors, trustees,
officers, employees and agents of the Company Entities, and their respective
heirs, executors and administrators, successors and assigns (collectively, the
"Released Parties"), with respect to and from any and all claims, wages,
demands, rights, liens, agreements, contracts, covenants, actions, suits, causes
of action, obligations, debts, costs, expenses, attorneys' fees, damages,
judgments, orders and liabilities of any kind whatsoever or nature in law,
equity or otherwise, 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 of 1986, the Fair Labor Standards Act,
and the Consolidated Omnibus Budget Reconciliation Act of 1986, whether now or
hereafter known or unknown, suspected or unsuspected (collectively, "Claims"),
which Executive may have against (i) the Company Entities arising out of any act
or omission occurring before the date hereof, including, without limitation,
claims arising out of or in connection with Executive's employment by any of the
Company Entities or the termination of Executive's employment or (ii) the
Released Parties other than the Company Entities arising out of any act or
omission occurring before the date hereof relating in any manner to the business
of the Company Entities, including, without limitation, claims arising out of or
in connection with Executive's employment by any of the Company Entities or the
termination of Executive's employment; provided, however, that this Agreement
shall not operate so as to terminate any of the provisions of the Other
Agreements that have not by their own terms already expired except to the extent
specifically stated herein. Executive represents that he has not assigned any
Claim or portion thereof. Notwithstanding the foregoing, this Section 1 shall
not be effective with respect to any Released Party that makes any claim against
Executive covered by Section 2 hereof or that would have been covered by Section
2 hereof if such Released Party were a Company Entity.
2. Release by Company. The Company, on behalf of itself and the Company
Entities, hereby releases, covenants not to xxx and holds harmless Executive and
his heirs, executors and administrators, successors and assigns (collectively,
the "Executive Released Parties"), with respect to and from any and all claims,
demands, rights, liens, agreements, contracts, covenants, actions, suits, causes
of action, obligations, debts, costs, expenses, attorneys' fees, damages,
judgments, orders and liabilities of any kind whatsoever or nature in law,
equity or otherwise, whether now or hereafter known or unknown, suspected or
unsuspected (collectively, "Company Claims"), which the Company or any Company
Entity may have against Executive arising out of any act or omission occurring
before the date hereof, including, without limitation, claims arising out of or
in connection with Executive's employment by any of the Company Entities;
provided, however, that this Agreement shall not operate so as to terminate any
of the provisions of the Other Agreements that have not by their own terms
already expired except to the extent specifically stated herein. The Company
represents that it has not assigned any Company Claim or any portion thereof.
Notwithstanding the foregoing, this Section 2 shall not be effective with
respect to any Executive Released Party that makes any claim against the Company
or any Company Entity covered by Section 1 hereof.
3. Acknowledgment and Waiver. The parties hereto acknowledge that each
party has expressly bargained for the benefits accruing to such party under this
Agreement. Executive further acknowledges that this Agreement is a full and
final release of all Claims. Each party waives any right to any benefits that
may be available to such party under the provisions of Section 1542 of the
California Civil Code, to the extent applicable, 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 KNOW BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
In connection with the above waiver, each party is aware that such
party may hereafter discover claims or facts in addition to or different from
those such party now knows or believes to exist with respect to the subject
matter of this instrument or the Released Parties or, in the case of the
Company, the Company Released Parties. However, each party hereby settles and
releases all of the claims that such party may have against the Released Parties
or, in the case of the Company, the Company Released Parties, in either case, to
the extent provided in this Agreement. Notwithstanding anything to the contrary
in this Agreement, none of the covenants, representations or warranties of any
party as provided in this Agreement is being released pursuant to this
Agreement.
4. Consideration. In exchange for Executive's execution of this Agreement,
the Company agrees to:
(i) keep Executive on the Company's payroll through October 31, 2000 at
Executive's base salary in effect on August 4, 2000, with payments to
be made in accordance with the Company's standard payroll policies and
the Employment Agreement;
(ii) pay to Executive a lump sum payment in an amount equal to $400,000,
less amounts required to be withheld;
(iii) assign the car lease associated with the 1995 Mercedes Benz 500SL to
Executive, provided that Executive
agrees to assume the Company's obligations thereunder;
(iv) extend the period during which Executive is entitled to exercise the
stock options that were vested as of August 7, 2000 to February 7,
2003; and
(v) release Executive from any obligations under Section 9.2 of the
Employment Agreement.
5. Resignation by Executive as a Director. Concurrently with the
execution of this Agreement, Executive agrees to submit his resignation as a
Director of the Company effective as of the date seven days after the date
hereof.
6. Confidentiality. Executive agrees that the terms and conditions of
this Agreement shall remain confidential and shall not be disclosed to any other
person (other than Executive's immediate 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 the Company and Executive. Executive
also agrees that as a Director, Officer and employee of the Company, he has
received confidential information, including, without limitation, information
which would be protected by the attorney-client privilege or work-product
doctrine, and Executive further agrees not to disclose any such confidential
information to anyone other than Executive's attorney unless compelled to do so
by legal process and Executive has first given the Company at least five days'
advance written notification of his intention to disclose or such shorter period
as is reasonably practicable.
7. Further Assurances and Future Cooperation. The Company and
Executive, 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, Executive agrees to cooperate in good
faith with the Company and its counsel in connection with any pending or
subsequent administrative proceeding, mediation, arbitration or litigation
including, without limitation, providing information and/or documents,
participating in informal interviews, and appearing for depositions and/or
testimony. The Company agrees to reimburse Executive for any costs incurred by
Executive at the request of the Company. Executive further agrees to notify the
Company immediately, telephonically and in writing, of any subpoena, interview
or deposition, or any request therefor, with respect to his employment with the
Company. The Company agrees to be bound under the terms of the Indemnity
Agreement dated as of February 12, 1996 between the Company and Executive.
8. No Admissions. Executive agrees and acknowledges that this
Agreement is not to be construed as an admission of any violation of any
federal, state or local statutes, ordinances or regulations of any duty
allegedly owed by any Released Party to Executive.
9. Time Periods. Executive acknowledges and agrees that he has been
advised to consult with an attorney prior to executing this Agreement; that to
the extent he has desired he has availed himself of that right; that he has
carefully read and understand all of the provisions of this Agreement; that he
was given twenty-one (21) days in which to consider this Agreement; that he may
revoke this agreement within seven (7) days after he has executed it; and that
he is voluntarily entering into this Agreement.
10. No Inducements. Executive further warrants 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 Released Party concerning any fact material to his act in releasing them,
and that he is legally competent to execute this Agreement and accept full
responsibility therefor. The Company further warrants 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 Executive Released Party concerning any fact material to the Company's
act in releasing them, and that the execution of this Agreement has been
authorized by all necessary corporate action.
11. Invalidity. 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.
12. Arbitration. Any dispute that may arise between Executive and the
Company or any other Released Party in connection with 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 such party's own attorney's fees and costs in connection with any such
arbitration, except that the Company shall pay the fees of the arbitrator.
13. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their successors and assigns;
provided that Executive shall not assign any of his rights or duties under this
Agreement without the express prior written consent of the Company.
14. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
IN WITNESS WHEREOF, this Waiver and Release Agreement has been duly
executed as of the date first set forth above.
MERISEL, INC.
By: ________________________________
Name:
Title:
XXXXXX X. XXXXXXXXXX
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