EXHIBIT 10.3
EMPLOYEE BENEFIT MATTERS AGREEMENT
THIS EMPLOYEE BENEFIT MATTERS AGREEMENT (this "Agreement") is entered
into on September 1, 2004, by and between PC Mall, Inc., a Delaware corporation
("PC Mall"), and eCost.com, Inc., a Delaware corporation ("eCost").
RECITALS
WHEREAS, eCost is currently a wholly-owned subsidiary of PC Mall;
WHEREAS, eCost is considering an initial public offering of its Common Stock ("IPO"); and
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WHEREAS, in furtherance of the foregoing, PC Mall and eCost desire to
enter into this Agreement to allocate between them assets, liabilities and
responsibilities with respect to certain employee compensation, benefit plans
and programs, and certain employment matters.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE I
DEfinitions
The following terms, as used herein, shall have the following meanings:
"Adjusted Option" shall have the meaning set forth in Section 5.1(a) of
this Agreement.
"Administrative Services Agreement" shall have the meaning set forth in
Article I of the Master Separation and Distribution Agreement.
"Affiliate" shall mean, when used with respect to a Person, another
Person that controls, is controlled by, or is under common control (within the
meaning of Section 414(b), (c), (m) or (o) of the Code) with the Person
specified.
"Ancillary Agreements" shall have the meaning set forth in Article I of
the Master Separation and Distribution Agreement.
"Board of Directors" shall mean, when used with respect to a specified
corporation, the board of directors of the corporation so specified.
"COBRA" shall mean the Consolidated Omnibus Budget Reconciliation Act
of 1985, as amended, and the regulations promulgated thereunder, including any
successor legislation.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
the regulations promulgated thereunder, including any successor legislation.
"Distribution Date" shall mean the date on which PC Mall's interest in
eCost shall be distributed, as further defined in the Master Separation and
Distribution Agreement.
"Distribution Ratio" shall have the meaning set forth in Section 5.1(a)
of this Agreement.
"eCost" shall have the meaning set forth in the recitals hereto.
"eCost Adjusted Exercise Price to Market Price Ratio" shall have the
meaning set forth on Schedule 5.1(b) of this Agreement.
"eCost Employees" shall mean persons who are employed by eCost
(including persons who would otherwise be deemed to be eCost Employees who are
absent from work by reason of disability or leave of absence and inactive
employees treated as such by agreement therewith).
"eCost Employment Liabilities" shall have the meaning set forth in
Section 7.1(c) of this Agreement.
"eCost Flex Plan" shall have the meaning set forth in Section 4.2 of
this Agreement.
"eCost Option" shall have the meaning set forth in Section 5.1(a) of
this Agreement.
"eCost Option Plans" shall mean that certain eCost 1999 Stock Incentive
Plan and that certain eCost 2004 Stock Incentive Plan.
"eCost Savings Plan" shall have the meaning set forth in Section 3.2(a)
of this Agreement.
"eCost Welfare Plan" shall have the meaning set forth in Section 4.1 of
this Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended, and the regulations promulgated thereunder, including any successor
legislation.
"Group Status Change" shall mean the cessation of PC Mall's ownership
of at least eighty percent (80%) of the combined voting power of all classes of
stock entitled to vote or the total value of all shares of all classes of stock
of eCost then outstanding. PC Mall's ownership of outstanding eCost stock shall
be determined pursuant to Sections 414 and 1563 of the Code.
"Group Status Change Date" shall mean the earlier of (i) the
Distribution Date or (ii) the date on which the Group Status Change occurs, or
such other date as PC Mall and eCost shall mutually agree upon.
"Master Separation and Distribution Agreement" shall mean that certain
Master Separation and Distribution Agreement, by and between PC Mall and eCost,
of even date herewith..
"Offering Date" shall mean the date on which the IPO closes.
"PC Mall" shall have the meaning set forth in the recitals hereto.
"PC Mall Adjusted Exercise Price to Market Price Ratio" shall have the
meaning set forth on Schedule 5.1(b) of this Agreement.
"PC Mall Adjusted Option" shall have the meaning set forth in Section
5.1(a) of this Agreement.
"PC Mall Employees" shall mean persons who, immediately prior to the
Group Status Change Date are employed by the PC Mall Group (including persons
who would otherwise be deemed to be PC Mall Employees who are absent from work
by reason of disability or leave of absence and inactive employees treated as
such by agreement therewith).
"PC Mall Group" shall mean PC Mall, together with all its wholly-owned
subsidiaries, excluding eCost.
"PC Mall Option Number" shall have the meaning set forth in Section
5.1(a) of this Agreement.
"PC Mall Retained Employees" shall mean persons who, immediately after
the Group Status Change Date, are employed by the PC Mall Group (including
persons who would otherwise be deemed to be PC Mall Retained Employees who are
absent from work by reason of disability or leave of absence and inactive
employees treated as such by agreement therewith) but shall not include any
persons who are or become eCost Employees on or after such date.
"PC Mall Welfare Plan" shall mean the "PC Mall, Inc. Welfare Benefits
Plan" as in effect from time to time.
"PC Mall Savings Plan" shall mean the "Creative Computers, Inc. 401(k) Plan," as in effect from time to
time.
"PC Mall Stock Option" shall mean any option to purchase PC Mall common
stock.
"PC Mall Stock Option Plans" shall mean that certain PC Mall Amended
and Restated 1994 Stock Incentive Plan, as amended, and that certain PC Mall
Amended and Restated Directors' Non-Qualified Stock Option Plan.
"Person" shall mean an individual, a general or limited partnership, a
corporation, a trust, a joint venture, an unincorporated organization, a limited
liability entity, any other entity, and any federal, state, local, foreign or
international court, government, department, commission, board, bureau, agency,
official or other regulatory, administrative or governmental authority.
"Plan(s)" shall mean any "employee benefit plans" (within the meaning
of Section 3(3) of ERISA), retirement, pension, savings, profit-sharing,
welfare, stock purchase, stock option, equity-based, severance, employment,
change-in-control, fringe benefit, bonus, incentive, deferred compensation,
disability, worker's compensation and all other employee benefit plans,
agreements, programs, policies or other arrangements (including any funding
mechanisms therefor), whether or not subject to ERISA, whether formal or
informal, oral or written, legally binding or not.
"Plan Transfer Date" shall have the meaning set forth in Section 3.2(b)
of this Agreement.
"Pre-Distribution Exercise Price to Market Price Ratio" shall have the
meaning set forth on Schedule 5.1(b) of this Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Tax Allocation and Indemnification Agreement" shall mean that certain
Tax Allocation and Indemnification Agreement, by and between PC Mall and eCost,
of even date herewith.
"Welfare Benefit Plan" shall mean, any Plan providing welfare benefits
within the meaning of Section 3(1) of ERISA.
Except as otherwise expressly provided herein, all capitalized terms
used and not defined herein shall have the respective meanings assigned to them
in the Master Separation and Distribution Agreement.
ARTICLE II
Pre-Status Change Plan Participation
2.1 Continuing Participation in PC Mall Plans. Except as specified otherwise in
this Agreement, or as PC Mall may otherwise direct, eCost shall continue as a
"participating company" in the PC Mall Plans in effect as of the Offering
Date, to the extent that eCost has not yet established comparable Plans of
its own.
2.2 PC Mall's General Obligations as Plan Sponsor. The PC Mall Group shall
continue to administer, or cause to be administered, in accordance with their
terms and applicable law, such PC Mall Plans, and shall have the sole and
absolute discretion and authority to modify and interpret such Plans, as set
forth therein.
2.3 eCost's General Obligations as Participating Company. eCost shall perform
with respect to its participation in the PC Mall Plans, the duties of a
participating company as set forth in each such Plan or any procedures
adopted pursuant thereto, including (without limitation): (i) assisting in
the administration of claims, to the extent requested by the claims
administrator of the applicable Plan; (ii) prompt payment of its allocable
share expenses and costs relating to its participation; (iii) cooperating
fully with Plan auditors, benefit personnel and benefit vendors; (iv)
preserving the confidentiality of all financial arrangements the PC Mall
Group has or may have with any vendors, claims administrators, trustees or
any other entity or individual with whom the PC Mall Group has entered into
an agreement relating to such Plans; and (v) preserving the confidentiality
of participant information to the extent not specified otherwise in this
Agreement.
2.4 Termination of Participating Company Status. Except as otherwise may be
specified by PC Mall, effective as of the Group Status Change Date or such
other date as eCost establishes a comparable Plan (as specified in Section
3.2 or otherwise in this Agreement), eCost shall automatically cease to be a
Participating Company in the corresponding PC Mall Plan.
2.5 Terms of Participation for eCost Plans.
(a) Non-Duplication of Benefits. As of the Group Status Change Date or such
later date that applies to the particular eCost Plan established thereafter, the
eCost Plans shall be, with respect to eCost Employees, in all respects the
successors in interest to, and shall not provide benefits that duplicate
benefits provided by, the corresponding PC Mall Plans. PC Mall and eCost shall
mutually agree, if necessary, on methods and procedures, including amending the
respective Plan documents, to prevent eCost Employees from receiving duplicate
benefits from the PC Mall Plans and the eCost Plans.
(b) Service Credit. Except as specified otherwise in this Agreement, with
respect to eCost Employees, each eCost Plan shall provide that all service, all
compensation and all other benefit-affecting determinations that, as of the
Group Status Change Date, were recognized under the corresponding PC Mall Plan
shall, as of the Group Status Change Date, receive full recognition and credit
and be taken into account under such eCost Plan to the same extent as if such
items occurred under such eCost Plan, except to the extent that duplication of
benefits would result. The service crediting provisions shall be subject to any
respectively applicable "break in service," "employment date," or "eligibility
date" rules under the eCost Plans and the PC Mall Plans.
2.6 Right to Amend or Terminate. Except as specifically provided herein, nothing
in this Agreement shall be construed or interpreted to restrict PC Mall's
right or authority to amend or terminate the PC Mall Plans at any time it
deems necessary or appropriate.
2.7 Access to Information. The PC Mall Group and eCost shall share, or cause to
be shared, all participant information that is necessary or appropriate for
the efficient and accurate administration of each of the PC Mall Plans and
eCost Plans during the respective periods applicable to such Plans as PC Mall
and eCost may mutually agree. The PC Mall Group, eCost and their respective
authorized agents shall, subject to applicable laws of confidentiality and
data protection, be given reasonable and timely access to, and may make
copies of, all information relating to the subjects of this Agreement in the
custody of the other party or its agents, to the extent necessary or
appropriate for such administration.
ARTICLE III
Savings plans
3.1 PC Mall Savings Plan. From and after the Group Status Change Date, PC Mall
shall continue to sponsor the PC Mall Savings Plan for the benefit of PC Mall
Retained Employees who, prior to such date, were participants thereunder.
Active participation of all eCost Employees in the PC Mall Savings Plan shall
cease immediately prior to the Group Status Change Date, and the trustee of
such plan shall not accept or permit further contributions made by or on
behalf of the eCost Employees, other than contributions that accrued prior to
the Group Status Change Date. Except as may be required by Section 411(d)(3)
of the Code or other applicable law, nothing contained in this Article 3
shall have the effect of accelerating the degree to which any individual has
a vested interest in the PC Mall Savings Plan or the eCost Savings Plan.
3.2 eCost Savings Plan.
(a) Effective as of the Group Status Change Date, eCost shall adopt a defined
contribution plan that is intended to qualify under Sections 401(a) and 40l(k)
of the Code (the "eCost Savings Plan"), under which retirement benefits shall
generally be provided for eCost Employees. Subject to such adoption, eCost
agrees to use its reasonable best efforts to cause the applicable fiduciaries of
the eCost Savings Plan to accept a transfer of assets and liabilities from the
PC Mall Savings Plan, in accordance with the spin-off provisions set forth under
Section 414(l) of the Code and other applicable law, representing the full
account balances of eCost Employees for all periods of participation in the PC
Mall Savings Plan through the Group Status Change Date (including all
contributions and all earnings attributable thereto).
(b) Prior to the date on which the transfer of assets and liabilities to the
eCost Savings Plan may occur (the "Plan Transfer Date"), which date shall occur
as promptly as practicable following the Group Status Change Date and be subject
to the fiduciaries of the eCost Savings Plan accepting a transfer of assets and
liabilities under Section 3.2(a), PC Mall shall (i) cause the trustee of the PC
Mall Savings Plan to segregate, in accordance with the spin-off provisions set
forth under Section 414(l) of the Code and other applicable law, the assets of
the PC Mall Savings Plan representing the full account balances of eCost
Employees for all periods of participation in the PC Mall Savings Plan through
the Group Status Change Date (including all contributions and all earnings
attributable thereto); (ii) make all required filings and submissions to the
appropriate governmental agencies; and (iii) make all required amendments to the
PC Mall Savings Plan and related trust agreement necessary to provide for the
segregation of assets described in this Section 3.2(b).
(c) On the Plan Transfer Date, PC Mall shall cause the trustee of the PC Mall
Savings Plan to transfer to the trustee of the eCost Savings Plan the account
balances (inclusive of outstanding participant loans) of any participating eCost
Employees, as determined under Section 3.2(b). Such transfer shall be "in kind,"
based on those investment funds in which such account balances are then invested
or in such other form as PC Mall and eCost may mutually agree; provided,
however, that any participant loans to eCost Employees shall be transferred in
the form of notes. In consideration of the segregation and transfer of assets
described herein, the eCost Savings Plan shall, as of the Plan Transfer Date,
assume all liabilities attributable to such assets. Upon the full completion of
the transfer described herein, the PC Mall Group and the PC Mall Savings Plan
shall be relieved of, and eCost and the eCost Savings Plan shall assume, all
liabilities for the payment of any account balances transferred from the PC Mall
Savings Plan to the eCost Savings Plan.
3.3 Outstanding Participant Loans. Subject to the fiduciaries of the eCost
Savings Plan accepting a transfer of assets and liabilities under Section
3.2(c), with respect to any eCost Employees who have outstanding plan loans
originally made from the eCost Savings Plan, such Employees shall be
permitted to repay such loans to the eCost Savings Plan by way of regular
deductions from their paychecks, and, prior to the Plan Transfer Date, the PC
Mall Group or eCost (as the case may be) shall cause all such deductions to
be forwarded to the PC Mall Savings Plan as promptly as practicable. From and
after the Plan Transfer Date, all plan loan repayments made by eCost
Employees shall be remitted exclusively to the eCost Savings Plan but only to
the extent such plan loans are transferred to the eCost Savings Plan. Unless
expressly contemplated by this Agreement, in no event will the transactions
contemplated by this Agreement alter the terms of the applicable notes or the
loan provisions of the eCost Savings Plan or the PC Mall Savings Plan.
3.4 Allocation of Liabilities. From and after the Group Status Change Date, the
eCost Savings Plan shall assume all liabilities relating to the payment of
benefits to eCost Employees in the PC Mall Savings Plan. The PC Mall Group
shall retain all other liabilities relating to the PC Mall Savings Plan.
ARTICLE IV
Welfare Plans
4.1 Transition for Welfare Plan Participation. From and after the Group Status
Change Date, the PC Mall Group shall continue to maintain the PC Mall Welfare
Plan for the PC Mall Retained Employees who, prior to such date, were
receiving benefits under such plan. Active participation of all eCost
Employees in the PC Mall Welfare Plan shall cease as of 11:59 p.m. Pacific
Time on the earlier of: (a) the day immediately preceding the Group Status
Change Date; or (b) the 90th day following PC Mall's notification to eCost
that the eCost Employees will no longer be eligible to participate in the PC
Mall Welfare Plan. From and after such time, eCost shall adopt and maintain
the eCost Welfare Plan for the benefit of eCost Employees. Notwithstanding
the foregoing, neither PC Mall nor eCost shall have any obligation to sponsor
any specific Welfare Plan prior to or after the Group Status Change Date.
4.2 Adoption of eCost Flex Plan. Effective as of the Group Status Change Date,
eCost shall adopt a "flexible benefit plan" under Section 125 of the Code for
the benefit of the eCost Employees (the "eCost Flex Plan"), the material
terms of which plan shall be substantially similar to those set forth in the
"flexible benefits" component of the PC Mall Welfare Plan. As provided in
Section 4.1 above, active participation of all eCost Employees in the
flexible benefits component of the PC Mall Welfare Plan shall cease
immediately prior to the Group Status Change Date, and such plan shall not
accept further contributions made by or on behalf of the eCost Employees,
other than contributions that accrued prior to the Group Status Change Date.
With respect to amounts deferred into the PC Mall Welfare Plan by eCost
Employees prior to the Group Status Change Date, such amounts shall remain
available for reimbursement of qualified medical and dependent care expenses
incurred prior to the Group Status Change for a period of time to be mutually
agreed upon by PC Mall and eCost (the "Run-out Period"). Any claims relating
to expenses incurred prior to the Group Status Change Date that are not
submitted to administrator for the PC Mall Welfare Plan prior to the end of
the Run-out Period shall not be eligible for reimbursement. Any amounts
deferred by eCost Employees under the PC Mall Welfare Plan that are not paid
out in connection with claims submitted prior to the end of the Run-out
Period shall be forfeited. Reimbursement for medical and dependent care
expenses incurred after the Group Status Change Date shall be subject to the
terms of the eCost Code Flex Plan.
4.3 Continuance of Elections, Co-Payments and Maximum Benefits.
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(a) As of the Group Status Change Date, eCost shall cause the eCost Welfare
Plans to maintain comparable coverage and contribution elections made by eCost
Employees under the PC Welfare Plan and apply such elections under the eCost
Welfare Plans for the remainder of the period or periods for which such
elections are by their terms applicable. The transfer or other movement of
employment between the PC Mall Group and eCost at any time upon or before the
Group Status Change Date shall constitute neither a "change in status event"
under the PC Mall Welfare Plan or the eCost Welfare Plans nor a "qualifying
event," as defined under COBRA.
(b) On and after the Group Status Change Date, eCost shall cause the eCost
Welfare Plans to recognize and give credit for (i) all amounts applied to
deductibles, out-of-pocket maximums, co-payments and other applicable benefit
coverage limits with respect to which such expenses have been incurred by eCost
Employees under the PC Mall Welfare Plan for the remainder of the calendar year
in which the Group Status Change Date occurs, and (ii) all benefits paid to
eCost Employees under the PC Mall Welfare Plan for purposes of determining when
such persons have reached their lifetime maximum benefits under the eCost
Welfare Plan. Notwithstanding the above, eCost's obligations under this
SubSection 4.3(b) shall be limited by the market availability of health
insurance products or other arrangements satisfying the criteria described
above. eCost shall use its commercially reasonable best efforts to locate and
engage the services of a vendor whose policies or other arrangements meet the
requirements above.
4.4 Allocation of Liabilities.
(a) Except to the extent welfare benefits are funded by employee contributions
or as otherwise provided in this Agreement, the PC Mall Group shall retain
responsibility for and continue to pay all premiums, expenses and benefits
relating to the PC Mall Welfare Plan with respect to claims incurred or premiums
due prior to the Group Status Change Date by PC Mall Employees (including eCost
Employees participating in the PC Mall Welfare Plan prior to such date) as well
as their covered dependents.
(b) Except to the extent welfare benefits are funded by employee contributions
or as otherwise provided in this Agreement, eCost shall assume responsibility
for and pay all premiums, expenses and benefits relating to the eCost Welfare
Plan with respect to claims incurred or premiums due from and after the Group
Status Change Date by eCost Employees as well as their covered dependents.
(c) For the purposes of this Section 4.4, a claim is deemed incurred when the
services that are the subject of the claim are performed; in the case of life
insurance, when the death occurs; in the case of long-term disability, when the
disability occurs; and, in the case of a hospital stay, when the employee first
enters the hospital.
(d) The eCost Welfare Plan shall be responsible for making COBRA continuation
coverage available with respect to the eCost Employees (and their covered
dependents) subsequent to the Group Status Change Date.
ARTICLE V
EQUITY COMPENSATION
5.1 PC Mall Stock Options. PC Mall Stock Options shall be treated as follows:
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(a) As of the Distribution Date, each PC Mall Stock Option outstanding as of the
Distribution Record Date and not exercised prior to the Distribution Date shall
be adjusted as set forth in this Section 5.1. Each PC Mall Stock Option shall be
converted (an "Adjusted Option"), as of the Distribution Date, into two options:
an option (the "PC Mall Adjusted Option") to purchase the same number of shares
of PC Mall Common Stock covered by the PC Mall Stock Option and as to which the
PC Mall Stock Option has not been exercised as of the Distribution Date ("PC
Mall Option Number") and an option (the "eCost Option") to purchase a number of
shares of eCost Common Stock equal to the PC Mall Stock Option Number times a
fraction, the numerator of which is the total number of shares of eCost Common
Stock distributed to PC Mall stockholders in the Distribution and the
denominator of which is the total number of shares of PC Mall Common Stock
outstanding on Distribution Record Date (the "Distribution Ratio"). The terms of
the PC Mall Adjusted Option and the eCost Option (other than the exercise price
and the number of shares) shall be substantially the same as the PC Mall Stock
Option.
(b) The exercise prices per share for each PC Mall Adjusted Option and the eCost
Option shall be established, as set forth in Schedule 5.1(b) hereto, in a manner
so that: (i) the aggregate "intrinsic value" (i.e. the market value of the stock
underlying the option, less the exercise price of such option, multiplied by the
number of shares then covered by such option) after the Distribution of the PC
Mall Adjusted Option plus the eCost Option is not greater than the intrinsic
value of the related PC Mall Stock Option immediately prior to the Distribution,
and (ii) the ratio of the exercise price per option to the market value per
share after the Distribution is not lower than the ratio of the exercise price
of the PC Mall Stock Option to the market value per share of PC Mall Common
Stock immediately prior to the Distribution. The determination of the exercise
prices for each PC Mall Adjusted Option and eCost Option shall be made by PC
Mall as advised by its professional advisors.
(c) The eCost Options to be granted with respect to each Adjusted Option shall
be issued under the eCost 2004 Stock Incentive Plan, and eCost shall take all
corporate action and make all required filings under applicable state blue sky
laws and the Securities Act to (i) issue the eCost Options required under this
Section 5.1 and (ii) to register or qualify the eCost Options and/or the
underlying shares of eCost Common Stock so that the shares of eCost Common Stock
acquired upon exercise of each eCost Option are freely tradable under the
Securities Act (except for shares acquired by Affiliates of eCost) and each
applicable state's blue sky laws.
(d) The Board of Directors of PC Mall may determine that certain PC Mall Stock
Options described above may not be adjusted as described above, but instead
shall be subject to such conditions as the Board of Directors of PC Mall (or the
compensation committee thereof) shall determine to the extent necessary to avoid
adverse tax consequences to option holders who are not U.S. residents.
(e) PC Mall and eCost acknowledge that the adjustment to PC Mall Stock Options
under this Article V will be implemented in part by the issuance of the eCost
Options under the terms of the eCost 2004 Stock Incentive Plan.
(f) After the Distribution Date, (i) PC Mall Stock Options, regardless of by
whom held, shall be settled by PC Mall pursuant to the terms of the applicable
PC Mall Stock Option Plans, and (ii) eCost Options, regardless of by whom held,
shall be settled by eCost pursuant to the terms of the eCost 2004 Stock
Incentive Plan.
5.2 Allocation of Liabilities. Except as provided in Article VII of the Tax
Allocation and Indemnification Agreement, (a) eCost shall assume all
liabilities with respect to awards granted pursuant to the eCost Option
Plans, and (b) the PC Mall Group shall retain all other liabilities with
respect to awards granted pursuant to the PC Mall Stock Option Plans
(including, but not limited to, awards granted to PC Mall Retained
Employees).
ARTICLE VI
EMPLOYEE TRANSITION
Unless PC Mall and eCost otherwise mutually agree in writing, for the
period beginning on the Offering Date and ending on the second anniversary
thereof, neither eCost nor the PC Mall Group will, nor will they permit their
applicable Affiliates to, solicit or hire any employee of the other or of the
other's Affiliates or any person who, within the six (6) months immediately
preceding such solicitation or hiring, was employed by the other or the other's
Affiliates.
ARTICLE VII
Indemnification
Article V of the Master Separation and Distribution Agreement shall
govern the rights of PC Mall and eCost with respect to indemnification. The term
"PC Mall Liabilities" in that Article shall be read to include all liabilities
assumed or retained by the PC Mall Group pursuant to this Agreement. The term
"eCost Liabilities" in that Article shall be read to include all liabilities
assumed or retained by eCost pursuant to this Agreement.
ARTICLE VIII
Dispute resolution
Article IX of the Master Separation and Distribution Agreement shall
govern the rights of the PC Mall Group and eCost with respect to dispute
resolution.
ARTICLE IX
MISCELLANEOUS
9.1 Counterparts, Entire Agreement, Corporate Power. This Agreement may be
executed in one or more counterparts, all of which shall be considered one
and the same agreement, and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the
other party. This Agreement and the Schedules hereto contain the entire
agreement between the parties with respect to the subject matter hereof,
supersede all previous agreements, negotiations, discussions, writings,
understandings, commitments and conversations with respect to such subject
matter, and there are no agreements or understandings between the parties
other than those set forth or referred to herein or therein.
9.2 Governing Law. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of California (other
than as to its laws of arbitration which shall be governed under the United
States Arbitration Act, 9 U.S.C. ss.ss. 1-14, as the same may be amended from
time to time, or other applicable federal law pursuant to Article IX of the
Master Separation and Distribution Agreement), irrespective of the choice of
laws principles of the State of California, as to all matters, including
matters of validity, construction, effect, enforceability, performance and
remedies.
9.3 Assignability. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and thereto, respectively, and their respective
successors and assigns; provided, however, that no party hereto or thereto
may assign its respective rights or delegate its respective obligations under
this Agreement without the express prior written consent of the other parties
hereto or thereto.
9.4 Third Party Beneficiaries. The provisions of this Agreement are solely for
the benefit of the parties and are not intended to confer upon any Person
except the parties any rights or remedies hereunder. There are no third party
beneficiaries of this Agreement, and this Agreement shall not provide any
third person with any remedy, claim, liability, reimbursement, claim of
action or other right in excess of those existing without reference to this
Agreement. No party hereto shall have any right, remedy or claim with respect
to any provision of this Agreement to the extent such provision relates
solely to the other two parties hereto or the members of such other two
parties' respective Groups.
9.5 Notices. All notices, requests, demands, waivers and other communications
under this Agreement, any Ancillary Agreement or the Tax Indemnification and
Allocation Agreement shall be in writing and shall be deemed to have been
duly given if delivered personally or by facsimile transmission or mailed
(certified or registered mail, postage prepaid, return receipt requested):
If to PC Mall, to: PC Mall, Inc.
2555 West 190th Street, Suite 201
Torrance, California 90504
Attention: Chief Executive Officer
Fax No.: (310) 353-7411
with a copy to: PC Mall, Inc.
2555 West 190th Street, Suite 201
Torrance, California 90504
Attention: General Counsel
Fax No.: (310) 630-3992
If to eCOST: eCOST.com, Inc.
2555 West 190th Street, Suite 106
Torrance, California 90504
Attention: Chief Executive Officer
Fax No.: (310) 630-3578
or to such other person or address as any party shall specify by notice in
writing to the other party. All such notices, requests, demands, waivers and
communications shall be deemed to have been received on the date on which hand
delivered, upon transmission of the facsimile transmission by the sender and
issuance by the transmitting machine of a confirmation slip confirming that the
number of pages constituting the notice have been transmitted without error, or
on the third business day following the date on which so mailed, except for a
notice of change of address, which shall be effective only upon receipt thereof.
In the case of a notice sent by facsimile transmission, the sender shall
contemporaneously mail a copy of the notice to the addressee at the address
provided for above. However, such mailing shall in no way alter the time at
which the facsimile notice is deemed received. In no event shall the provision
of notice pursuant to this Section 10.5 constitute notice for service of
process.
9.6 Severability. If any provision of this Agreement or the application thereof
to any Person or circumstance is determined by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions
hereof or thereof, or the application of such provision to Persons or
circumstances or in jurisdictions other than those as to which it has been
held invalid or unenforceable, shall remain in full force and effect and
shall in no way be affected, impaired or invalidated thereby, so long as the
economic or legal substance of the transactions contemplated hereby or
thereby, as the case may be, is not affected in any manner adverse to any
party. Upon such determination, the parties shall negotiate in good faith in
an effort to agree upon such a suitable and equitable provision to effect the
original intent of the parties.
9.7 Force Majeure. No party shall be deemed in default of this Agreement to the
extent that any delay or failure in the performance of its obligations under
this Agreement results from any cause beyond its reasonable control and
without its fault or negligence, such as acts of God, acts of civil or
military authority, embargoes, epidemics, war, riots, insurrections, fires,
explosions, earthquakes, floods, unusually severe weather conditions, labor
problems or unavailability of parts, or, in the case of computer systems, any
failure in electrical or air conditioning equipment. In the event of any such
excused delay, the time for performance shall be extended for a period equal
to the time lost by reason of the delay.
9.8 Expenses. eCOST shall pay all third-party costs, fees and expenses relating
to the performance of its obligations under this Agreement.
9.9 Headings. The article, section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
9.10 Waivers of Default. Waiver by any party of any default by the other party
of any provision of this Agreement shall not be deemed a waiver by the
waiving party of any subsequent or other default, nor shall it prejudice the
rights of the other party.
9.11 Specific Performance. In the event of any actual or threatened default in,
or breach of, any of the terms, conditions and provisions of this Agreement,
the party or parties who are or are to be thereby aggrieved shall have the
right to specific performance and injunctive or other equitable relief of its
rights under this Agreement, in addition to any and all other rights and
remedies at law or in equity, and all such rights and remedies shall be
cumulative. The parties agree that the remedies at law for any breach or
threatened breach, including monetary damages, are inadequate compensation
for any loss and that any defense in any action for specific performance that
a remedy at law would be adequate is waived. Any requirements for the
securing or posting of any bond with such remedy are waived.
9.12 Amendments. No provisions of this Agreement shall be deemed waived,
amended, supplemented or modified by any party, unless such waiver,
amendment, supplement or modification is in writing and signed by the
authorized representative of the party against whom it is sought to enforce
such waiver, amendment, supplement or modification.
9.13 Interpretation. Words in the singular shall be held to include the plural
and vice versa and words of one gender shall be held to include the other
genders as the context requires. The terms "hereof," "herein," and "herewith"
and words of similar import shall, unless otherwise stated, be construed to
refer to this Agreement (or the applicable Ancillary Agreement) as a whole
(including all of the Schedules, Exhibits and Appendices hereto and thereto)
and not to any particular provision of this Agreement (or such Ancillary
Agreement). Article, Section, Exhibit, Schedule and Appendix references are
to the Articles, Sections, Exhibits, Schedules and Appendices to this
Agreement (or the applicable Ancillary Agreement) unless otherwise specified.
The word "including" and words of similar import when used in this Agreement
(or the applicable Ancillary Agreement) shall mean "including, without
limitation," unless the context otherwise requires or unless otherwise
specified. The word "or" shall not be exclusive.
9.14 Cooperation. PC Mall and eCost agree to, and to cause their Affiliates to,
cooperate and use reasonable efforts to promptly (a) comply with all
requirements of this Agreement, ERISA, the Code and other laws and
regulations which may be applicable to the matters addressed herein, and (b)
subject to applicable law, provide each other with such information
reasonably requested by the other Party to assist the other Party in
administering its Plans and complying with applicable law and regulations and
the terms of this Agreement.
9.15 Subsidiaries. Each of the parties hereto shall cause to be performed, and
hereby guarantees the performance of, all actions, agreements and obligations
set forth herein to be performed by any Subsidiary of such party or by any
entity that is contemplated to be a Subsidiary of such party on and after the
Group Status Change Date.
9.16 Fiduciary Matters; Consent of Third Parties. PC Mall and eCost each
acknowledge that actions required to be taken pursuant to this Agreement may
be subject to fiduciary duties or standards of conduct under ERISA or other
applicable law, and no party shall be deemed to be in violation of this
Agreement if it fails to comply with any provisions hereof based upon its
good faith determination that to do so would violate such a fiduciary duty or
standard. If any provision of this Agreement is dependent on the consent of
any third party and such consent is withheld, PC Mall and eCost shall use
their reasonable best efforts to implement the applicable provisions of this
Agreement to the full extent practicable. If any provision of this Agreement
cannot be implemented due to the failure of such third party to consent, PC
Mall and eCost shall negotiate in good faith to implement the provision in a
mutually satisfactory manner.
9.17 Governmental Notices; Cooperation. Notwithstanding anything in this
Agreement to the contrary, all actions contemplated herein which are to be
consummated pursuant to this Agreement shall be subject to such notices to,
and/or approvals by, the Internal Revenue Service (or any other governmental
agency or entity) as are required or deemed appropriate by the sponsor of the
applicable Plan. Each of PC Mall and eCost agrees to use its commercially
reasonable efforts to cause all such notices and/or approvals to be filed or
obtained, as the case may be. Each party hereto shall reasonably cooperate
with the other parties with respect to any government filings, employee
notices or any other actions reasonably necessary to maintain and implement
the Plans covered by this Agreement.
9.18 Limitation of Damages. NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT OR ANY ANCILLARY AGREEMENT TO THE CONTRARY, IN NO EVENT WILL EITHER
PARTY OR ANY OF ITS GROUP MEMBERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
INDIRECT, COLLATERAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS IN
CONNECTION WITH ANY CLAIMS, LOSSES, DAMAGES, OR INJURIES ARISING OUT OF THE
CONDUCT OF SUCH PARTY PURSUANT TO THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have duly executed and entered into
this Agreement, as of the date first above written.
PC MALL, INC.
By: /s/ Theodore R. Sanders
-----------------------------------------------
Name: Theodore R. Sanders
Title: Chief Financial Officer
ECOST.COM, INC.
By: /s/ Adam Shaffer
-----------------------------------------------
Name: Adam Shaffer
Title: Chief Executive Officer
Schedule 5.1(b)
The exercise prices for each PC Mall Adjusted Option and eCost Option will be
determined as follows:
1. Calculate the aggregate intrinsic value of the PC Mall Stock Option
immediately prior to the Distribution and determine the ratio of the exercise
price for the PC Mall Stock Option to the market value of PC Mall Common Stock
immediately prior to the Distribution (the "Pre-Distribution Exercise Price to
Market Price Ratio").
2. Calculate the preliminary PC Mall Adjusted Option exercise price by
dividing (a) the market value of PC Mall Common Stock (without eCost)
immediately after the Distribution by (b) the sum of (i) the market value of PC
Mall Common Stock immediately after the Distribution and (ii) the market value
of eCost Common Stock immediately after the Distribution multiplied by the
Distribution Ratio, and multiplying the result by the exercise price for the PC
Mall Stock Option.
3. Divide the preliminary PC Mall Adjusted Option exercise price by the
market value of PC Mall Common Stock immediately after the Distribution to
determine the "PC Mall Adjusted Exercise Price to Market Price Ratio." If the PC
Mall Adjusted Exercise Price to Market Price Ratio is less than the
Pre-Distribution Exercise Price to Market Price Ratio, increase the preliminary
PC Mall Adjusted Option exercise price to align the PC Mall Adjusted Exercise
Price to Market Ratio with the Pre-Distribution Exercise Price to Market Price
Ratio in order to determine the final Adjusted PC Mall Option exercise price.
4. Calculate the preliminary eCost Option exercise price by multiplying
the exercise price for the PC Mall Stock Option by the result obtained by
dividing (a) one minus the fraction calculated in paragraph 2 above by (b) the
Distribution Ratio.
5. Divide the preliminary eCost Option exercise price by the market
value of eCost Common Stock immediately after the Distribution to determine the
"eCost Adjusted Exercise Price to Market Price Ratio." If the eCost Adjusted
Exercise Price to Market Ratio is less than the Pre-Distribution Exercise Price
to Market Price Ratio, increase the preliminary eCost Option exercise price to
align the eCost Adjusted Exercise Price to Market Price Ratio with the
Pre-Distribution Exercise Price to Market Price Ratio in order to determine the
final eCost Option exercise price.
6. Add the aggregate intrinsic values of the Adjusted PC Mall Option
and eCost Option and compare the sum to the aggregate intrinsic value calculated
in paragraph 1 above and make final adjustments, if necessary, so that the
aggregate intrinsic values of the Adjusted PC Mall Option and eCost Option do
not exceed the original aggregate intrinsic value of the PC Mall Stock Option.
