Settlement Agreement and Mutual General Release (2005)Full Document 

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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;
 
Settlement Agreement and General Release
 
* BLANK SPACES CONTAINED CONFIDENTIAL INFORMATION WHICH HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
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CONFIDENTIAL TREATMENT REQUESTED BY MERISEL, INC.
 
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
 
1.0  Nature of Agreement
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 [*], and [*] shall release the funds to Merisel seven (7) days after completion of the obligations of Section 2.
 
Settlement Agreement and General Release
 
* BLANK SPACES CONTAINED CONFIDENTIAL INFORMATION WHICH HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
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CONFIDENTIAL TREATMENT REQUESTED BY MERISEL, INC.
 
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 [*], 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 [*], and [*] 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.
 
3.0  Release of Claims.
 
Settlement Agreement and General Release
 
* BLANK SPACES CONTAINED CONFIDENTIAL INFORMATION WHICH HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
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CONFIDENTIAL TREATMENT REQUESTED BY MERISEL, INC.
 
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  [*]
 
3.2.2  [*]
 
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.
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