Exhibit 10.37
AMENDMENT TO EMPLOYMENT
AGREEMENT DATED DECEMBER 30, 2008
THIS SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
(this “ Amendment ”) is made and entered into as
of December 30, 2008, by and between PC MALL, INC., a
Delaware corporation, (the “ Company ”), and
Frank F. Khulusi, an individual (“ Executive
”).
RECITALS
WHEREAS , the Company and Executive previously
entered into that certain Employment Agreement, effective
January 1, 1995, setting forth the terms and conditions of
Executive’s employment with the Company (the “
Employment Agreement ”); and
WHEREAS, the Company and Executive previously
agreed to amend the Employment Agreement, effective as of
December 28, 2005, to address certain provisions of
Section 409A of the Internal Revenue Code of 1986, as amended
(the “ Code ”) and its proposed Treasury
regulations; and
WHEREAS , the parties hereto now mutually desire
to further amend the Employment Agreement as provided herein solely
to conform its terms to the applicable provisions of Code
Section 409A and its final Treasury regulations.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants contained in this Amendment, the parties
hereto agree as follows:
1.
The Agreement is hereby amended by
the addition of the following new Section 15:
15.
Code Section 409A
Provisions .
(a)
Compliance with
Section 409A .
This Agreement is intended to comply with Code Section 409A
(as amplified by any Internal Revenue Service or U.S. Treasury
Department guidance), and shall be construed and interpreted in
accordance with such intent. Executive and the Company
acknowledge that Executive and the Company intend that the
compensation arrangements set forth in this Agreement are in
compliance with Code Section 409A, and Executive and the
Company agree to cooperate with one another, to the extent
reasonably requested by the other party, to restructure any
compensation set forth in this Agreement in a manner, if possible
and without any increase in cost t
