EXHIBIT 10.27
Settlement Agreement and
Mutual General Release
This Settlement Agreement and Mutual General
Release (“Agreement”) is made and entered into as of
the 3rd day of February 2005, by and between Merisel, Inc. and
Merisel Americas, Inc. (“Merisel”) and Timothy Jenson,
Tina Wurtz, Craig Wurtz, John Low, D&H Services, LLC
(“D&H”), and TDH Enterprises, LLC
(“TDH”). Each is referred to herein as a
“Party,” and collectively, as “the
Parties.”
Recitals
WHEREAS, on November 30, 2004, Merisel commenced
an action against Mr. Jenson, Ms. Wurtz, Mr. Wurtz, John Low,
D&H and TDH in the Superior Court of Los Angeles County,
California under Case Number Case No. BC 325224, bearing the
caption Merisel, Inc., et al. v. Jenson, et. al ,
asserting claims arising out of a the sale of certain assets and
liabilities of Merisel to D&H in August 2004 (the
“Original Action”);
WHEREAS, on January 10, 2005, Timothy Jenson
filed a Cross-Complaint in the Original Action asserting claims
arising from various contracts between Merisel and Mr. Jenson, as
well as claims for fraud in the inducement, negligent
misrepresentation, common count, work, labor services, violations
of labor code, conversion, invasion of privacy, defamation,
intentional infliction of emotional distress, and negligent
infliction of emotional distress (“Cross-Complaint”)
(collectively with the Original Action,
“Actions”);
WHEREAS, the Parties wish to complete the
settlement, compromise, and resolution of the claims raised in the
Actions, on the terms and subject to the conditions stated
herein;
The Parties, in consideration of the covenants
contained herein, and in consideration and exchange of the
following consideration, hereby stipulate and agree as
follows:
Terms and
Conditions
Except as otherwise expressly provided herein,
this Agreement, and the monies, documents, and/or instruments to be
paid, exchanged, and/or filed with the court, constitute a fully
executed settlement, accord and satisfaction, and general and
special release of any and all claims and disputes by and between
the Parties for claims now existing or hereinafter that may arise
in regard to, or which in any way relate to or arise out of, the
Actions.
2.0
Settlement Obligations
.
2.1 Merisel, Ms. Wurtz, and D&H agree to
terminate and rescind the Purchase Agreement between D&H and
Merisel Americas, Inc., which closed on August 18, 2004 (“the
Purchase Agreement”). Mr. Jenson, Mr. Wurtz, Mr. Low and TDH
each represent and warranty that they have no direct or indirect
interest in D&H or the Purchase Agreement.
2.2 Ms. Wurtz and D&H agree to execute documents
releasing any direct or indirect claims to title they may have to
all assets and liabilities listed on Schedule A hereto. Mr. Jenson,
Mr. Wurtz, Mr. Low and TDH each represent and warranty that they
have no direct or indirect interest in the assets and liabilities
listed on Schedule A hereto.
2.3 D&H agrees to pay to Merisel one million,
five hundred, forty thousand, eight hundred twenty-nine dollars and
forty-nine cents ($1,540,829.49). D&H shall wire such funds to
an escrow account to be established by Shearman & Sterling LLP
(“Shearman”), and Shearman shall release the funds to
Merisel seven (7) days after completion of the obligations of
Section 2.
2.4 The collective obligations of Sections 2.1, 2.2,
and 2.3 constitute a full settlement of all of Merisel’s
claims, damages, attorneys’ fees and costs.
2.5 Merisel, Inc. agrees to pay Timothy Jenson one
million, eleven thousand seven hundred fifty-six dollars
($1,011,756.00), as may be adjusted pursuant to Section 5 of this
Agreement, which payment, along with the obligations of Sections
2.1, constitutes a full settlement of all of Jenson’s claims,
damages, attorneys’ fees and costs. Merisel shall wire this
sum of money into the trust account of Smith, Chapman &
Campbell (“SCC”), and SCC shall release the funds to
Mr. Jenson seven (7) days after the completion of the obligations
of Section 2.
2.6 Merisel agrees to assume and pay all liabilities
and obligations transferred to D&H pursuant to the Purchase
Agreement.
2.7 Merisel agrees to file a request for dismissal
with prejudice of the Original Action and all causes of action
pleaded therein.
2.8 Jenson agrees to file a request for dismissal
with prejudice of the Cross-Complaint and all causes of action
pleaded therein.
2.9 The Parties agree that they will cooperate to
execute all papers and documents as may be necessary and proper to
fulfill the terms and conditions of this Agreement.
3.1 The Parties, and each of them, on their own
behalf and on behalf of their current and former employees,
representatives, companies, corporations, business entities,
officers, directors, shareholders, partners, joint venturers,
insurers, trustees, executors, creditors, agents, attorneys, heirs,
dependents, predecessors, successors, assigns, parents,
subsidiaries, affiliates, related companies, and controlling
persons, past and present, and each of them, hereby release and
forever discharge the other Parties, and each of their respective
current and former employees, representatives, companies,
corporations, business entities, officers, directors, shareholders,
partners, joint venturers, insurers, trustees, executors,
creditors, agents, attorneys, heirs, dependents, predecessors,
successors, assigns, parents, subsidiaries, affiliates, related
companies, and controlling persons, past and present, and each of
them, of and from all claims, liabilities, demands, damages,
actions, and causes of action, at law or in equity, of every kind
and nature, including claims for attorneys’ fees or costs,
whether known or unknown, existing, claimed to exist or which may
hereafter arise.
3.2
Specific Release of Employment
Related Claims:
In addition to the release of Section 3.1, Mr.
Jenson, his respective current and former employees,
representatives, companies, corporations, business entities,
officers, directors, shareholders, partners, joint venturers,
insurers, trustees, executors, creditors, agents, attorneys, heirs,
dependents, predecessors, successors, assigns, parents,
subsidiaries, affiliates, related companies, and controlling
persons, past and present, and each of them, specifically forever
release and discharge:
3.2.1 all claims relating to or arising from Mr.
Jenson’s employment relationship with the Company and the
termination of that relationship.
3.2.2 any and all claims for wrongful discharge of
employment; breach of contract, both express and implied; breach of
a covenant of good faith and fair dealing, both express and
implied; negligent or intentional infliction of emotional distress;
negligent or intentional misrepresentation; negligent or
intentional interference with contract or prospective economic
advantage; and defamation.
3.2.3 any and all claims arising under the Employee
Retirement Income Security Act of 1974, the Civil Rights Acts of
1866 and 1867, Title VII of the Civil Rights Act of 1964, as
amended, the Civil Rights and Women’s Equity Act of 1991,
Sections 1981 through 1988 of Title 42 of the United States Code,
as amended, the Occupational Safety and Health Act of 1970, the
Consolidated Omnibus Budget Reconciliation Act of 1985, the Family
and Medical Leave Act of 1993, the Worker Adjustment and Retraining
Notification Act of 1988, the Vocational Rehabilitation Act of
1973, the Equal Pay Act of 1963, the Americans with Disabilities
Act, the Fair Labor Standards Act and the National Labor Relations
Act, as amended, the California Fair Employment and Housing Act,
the California Workers’ Compensation Act, the California
Unruh and Ralph Civil Rights Act, the California Alcohol and Drug
Rehabilitation Law, the California Equal Pay Law, any other federal
or state anti-discrimination law or any local or municipal
ordinance relating to discrimination in employment or human rights
and under the common law.
3.2.4 any and all claims for salary, bonus, severance
pay, pension, vacation pay, life insurance, health or medical
insurance, or any other fringe benefits, other than the payments
and benefits provided for in or in accordance with the
Agreement.
3.2.5 any and all claims arising out of any other laws
and regulations relating to employment or employment
discrimination.
3.2.6 any and all claims for attorneys’ fees and
costs.
3.3
ADEA Release
. In addition to the releases of
Sections 3.2 and 3.3, Mr. Jenson, in consideration of the promises
of the Merisel set forth in this Agreement, also hereby releases
and discharges Merisel from any and all claims that Mr. Jenson may
have against Merisel arising under the U.S. Age Discrimination in
Employment Act of 1967, as amended, and the applicable rules and
regulations promulgated thereunder (“ADEA”). Mr. Jenson
acknowledges that he understands that the ADEA is a federal statute
that prohibits discrimination on the basis of age in employment,
benefits and benefit plans. Mr. Jenson also understands that, by
signing this Agreement, he is waiving all claims against Merisel,
as well as any of its each of its current and former employees,
representatives, companies, corporations, business entities,
officers, directors, shareholders, partners, joint venturers,
insurers, trustees, executors, creditors, agents, attorneys, heirs,
dependents, predecessors, successors, assigns, parents,
subsidiaries, affiliates, related companies, and controlling
persons, past and present, and each of them
By signing this Agreement, Mr. Jenson hereby
acknowledges and confirms the following:
3.3.1 He is providing the release and discharge set
forth in this Agreement in exchange for consideration in addition
to anything of value to which Mr. Jenson is already
entitled.
3.3.2 Mr. Jenson was advised by the Company in writing
to consult with an attorney of his choice prior to signing this
Agreement and to have such attorney explain to him the terms of
this Agreement including, without limitation, the terms relating to
his release of claims arising under the ADEA.
3.3.3 Mr. Jenson has read this Agreement carefully and
completely and understands each of the terms thereof.
3.3.4 Mr. Jenson is aware that he has twenty-one (21)
days in which to consider the terms of the release contained in
this Agreement. To the extent he has executed this Agreement within
less than twenty-one (21) days after its delivery to him, Mr.
Jenson hereby acknowledges that his decision to execute this
Agreement prior to the expiration of such twenty-one (21)-day
period was entirely voluntary. For a period of seven (7) days
following the date of Mr. Jenson’s execution and delivery of
this Agreement, Mr. Jenson has the right to revoke the release
contained in this Section (the “Revocation Period”). In
the event that Mr. Jenson exercises his right to revoke the release
contained in this Section, this Agreement will terminate as to all
Parties and be of no further effect, with no liability to any of
the Parties. The Revocation Period shall expire at 5:00 p.m.
California time on the last day of the Revocation Period;
provided , however , that if such seventh
day is not a business day, the Revocation Period shall extend to
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