EXHIBIT 10.21
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"), dated as of August 16, 1996, is
between CompUSA Inc., a Delaware corporation, and _______________________
("Employee").
R E C I T A L S:
A. Employee has been employed by Employer, and Employer and Employee
have entered into a written agreement dated as of May 1, 1996 and an amendment
thereto dated as of May 2, 1996 (collectively, the "Prior Agreement"), to
specify the terms and conditions of Employee's employment with Employer.
B. Employer and Employee desire to extend the term of the Prior Agreement
for a period of four years from the date hereof by replacing the Prior Agreement
with this Agreement.
C. Employer considers the maintenance of a sound management team,
including Employee, essential to protecting and enhancing its best interests and
those of its stockholders.
D. Employer recognizes that the possibility of a change in control of
Employer may result in the departure or distraction of management to the
detriment of Employer and its stockholders.
E. Employee is a key executive of Employer and an integral member of its
management team.
F. Employer has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of selected
members of Employer's management team to their assigned duties without the
distraction arising from the possibility of a change in control of Employer.
NOW, THEREFORE, in consideration of Employee's past and future employment
with Employer and other good and valuable consideration, including the mutual
release of Employer and Employee of their respective obligations under the Prior
Agreement the parties agree as follows:
SECTION 1. Employment. Employer hereby employs Employee, and Employee
hereby accepts employment, upon the terms and subject to the conditions
hereinafter set forth.
SECTION 2. Duties. Employee shall be employed as ________________ of
Employer, or such other position to which he may be appointed by the Board of
Directors. Employee agrees to devote his full time and best efforts to the
performance of the duties attendant to his executive position with Employer.
SECTION 3. Term. The term of employment of Employee hereunder shall
commence on the date of this Agreement (the "Commencement Date") and continue
until August 15, 2000, unless earlier terminated pursuant to Section 6 or
Section 10.
SECTION 4. Compensation and Benefits. In consideration for the services
of Employee hereunder, Employer shall compensate Employee as follows:
(a) Base Salary. Until the termination of Employee's employment
hereunder, Employer shall pay Employee, semi-monthly in arrears, a base salary
at an annual rate of $_________ (the "Base Salary"). The Base Salary may not be
decreased at any time during the term of Employee's employment hereunder and
shall be reviewed by Employer each October. Any increase in the Base Salary
shall be in the sole discretion of the Compensation Committee of the Board of
Directors of the Company.
(b) Management Incentive Bonus. Employee shall be eligible to receive
from Employer such annual management incentive bonuses as may be provided in
management incentive bonus plans adopted from time to time by Employer.
(c) Vacation. Employee shall be entitled to ____ hours of paid vacation
per year at the reasonable and mutual convenience of Employer and Employee.
Unless otherwise approved by the Compensation Committee of the Board of
Directors of the Company, accrued vacation not taken in any calendar year shall
not be carried forward or used in any subsequent calendar year.
(d) Insurance Benefits. Employer shall provide accident, health, dental,
disability and life insurance for Employee under the group accident, health,
dental, disability and life insurance plans maintained by Employer for its full-
time, salaried employees.
(e) Car Allowance. As a condition of Employee's employment, Employee
shall from time to time be required to travel by automobile on Employer's
business. Accordingly, during the term of Employee's employment hereunder,
Employer shall provide Employee with a monthly car allowance of $1,000, payable
in equal semi-monthly installments, to cover Employee's costs of obtaining,
maintaining and insuring a suitable automobile.
(f) Health Club Membership. For the duration of Employee's employment
with Employer hereunder, Employer shall pay up to $300 per month for a health
club membership in a health club selected by Employee.
SECTION 5. Expenses. The parties anticipate that in connection with the
services to be performed by Employee pursuant to the terms of this Agreement,
Employee will be required to make payments for travel, entertainment of business
associates and similar expenses. Employer shall reimburse Employee for all
reasonable expenses of types authorized by Employer and incurred by Employee in
the performance of his duties hereunder. Employee shall comply with such budget
limitations and approval and reporting requirements with respect to expenses as
Employer may establish from time to time.
SECTION 6. Termination.
(a) General. Employee's employment hereunder shall commence on the
Commencement Date and continue until the end of the term specified in Section 3,
except that the employment of Employee hereunder shall terminate prior to such
time in accordance with the following:
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(i) Death or Disability. Upon the death of Employee during the term
of his employment hereunder or, at the option of Employer, in the event of
Employee's Disability, upon 30 days' notice to Employee.
(ii) For Cause. For "Cause" immediately upon written notice by
Employer to Employee. A termination shall be for Cause if:
(1) Employee commits a criminal act involving moral
turpitude; or
(2) Employee commits a material breach of any of the
covenants, terms and provisions hereof or fails to obey written
directions delivered to Employee by the Company's Chairman of the
Board, President, Chief Executive Officer or its Board of Directors.
(iii) Without Cause. Without Cause upon notice by Employer to
Employee.
(b) Severance Pay and Bonuses.
(i) Termination Upon Death or Disability. Employee shall not be
entitled to any severance pay or other compensation upon termination of his
employment hereunder pursuant to Section 6(a)(i) except for the following:
(1) his Base Salary accrued but unpaid as of the date of
termination;
(2) unpaid expense reimbursements under Section 5 for
expenses incurred in accordance with the terms hereof prior to
termination;
(3) compensation for accrued, unused vacation as of the date
of termination; and
(4) any bonus to which Employee would have been entitled for
the Bonus Period if he were still employed hereunder on the last day
of the Bonus Period. Any such bonus shall be paid to Employee at the
same time bonuses are paid in respect of the Bonus Period to other
employees of Employer entitled to receive bonuses for the Bonus
Period. In the event the determination of Employee's bonus in respect
of the Bonus Period involves any subjective assessment, such
assessment shall be made in a manner most favorable to Employee. For
purposes of this Section 6(b)(i)(4), the term "Bonus Period" means the
full fiscal year or other applicable bonus period during which an
Employee's employment hereunder was terminated.
(ii) Termination Without Cause; Separation Payments. In the event
Employee's employment hereunder is terminated pursuant to Section
6(a)(iii), Employer shall pay Employee Separation Payments as Employee's
sole remedy in connection with
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such termination. "Separation Payments" are payments made at the semi-
monthly rate of Employee's Base Salary in effect immediately preceding the
date of termination. Separation Payments shall be made for _____ months
after the date of termination (the "Separation Payment Period") and shall
be paid by Employer in equal semi-monthly payments in arrears. Separation
Payments shall be reduced by the amount of any personal services income
earned by Employee during the Separation Payment Period. Separation
Payments shall be made for the number of months specified above without
regard to the number of months remaining in the term of this Agreement.
Employer shall also pay Employee the following:
(1) his Base Salary accrued but unpaid as of the date of
termination;
(2) unpaid expense reimbursements under Section 5 for
expenses incurred in accordance with the terms hereof prior to
termination; and
(3) compensation for accrued, unused vacation as of the date
of termination.
This Section 6(b)(ii) is subject to the provisions of Section 10(k) dealing
with the coordination of payments in the event of a Change In Control.
(iii) Termination For Cause. Employee shall not be entitled to any
severance pay or other compensation upon termination of his employment
hereunder pursuant to Section 6(a)(ii) except for the following:
(1) his Base Salary accrued but unpaid as of the date of
termination;
(2) unpaid expense reimbursements under Section 5 for
expenses incurred in accordance with the terms hereof prior to
termination; and
(3) compensation for accrued, unused vacation as of the date
of termination.
(c) Transfers of Employment. Employee's employment hereunder shall
continue until the earlier of the following:
(i) Employee's employment with all Employers terminates; or
(ii) the last Employer (other than the Company) by which Employee is
employed under this Agreement ceases to be a subsidiary or affiliate of the
Company. For purposes of Section 6(b)(ii), the termination of Employee's
employment hereunder pursuant to this Section 6(c)(ii) shall be treated as
a termination by Employer without Cause pursuant to Section 6(a)(iii).
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SECTION 7. Inventions; Assignment.
(a) Inventions Defined. All rights to discoveries, inventions,
improvements, designs and innovations (including all data and records pertaining
thereto) that relate to the business of Employer, whether or not patentable,
copyrightable or reduced to writing, that Employee may discover, invent or
originate during the term of his employment hereunder, and for a period of six
months thereafter, either alone or with others and whether or not during working
hours or by the use of the facilities of Employer ("Inventions"), shall be the
exclusive property of Employer. Employee shall promptly disclose all Inventions
to Employer, shall execute at the request of Employer any assignments or other
documents Employer may deem necessary to protect or perfect its rights therein,
and shall assist Employer, at Employer's expense, in obtaining, defending and
enforcing Employer's rights therein. Employee hereby appoints Employer as his
attorney-in-fact to execute on his behalf any assignments or other documents
deemed necessary by Employer to protect or perfect its rights to any Inventions.
(b) Covenant to Assign and Cooperate. Without limiting the generality of
the foregoing, Employee shall assign and transfer to Employer the world-wide
right, title and interest of Employee in the Inventions. Employee agrees that
Employer may apply for and receive patent rights (including Letters Patent in
the United States) for the Inventions in Employer's name in such countries as
may be determined solely by Employer. Employee shall communicate to Employer
all facts known to Employee relating to the Inventions and shall cooperate with
Employer's reasonable requests in connection with vesting title to the
Inventions and related patents exclusively in Employer and in connection with
obtaining, maintaining and protecting Employer's exclusive patent rights in the
Inventions.
(c) Successors and Assigns. Employee's obligations under this Section 7
shall inure to the benefit of Employer and its successors and assigns and shall
survive the expiration of the term of this Agreement for such time as may be
necessary to protect the proprietary rights of Employer in the Inventions.
SECTION 8. Confidential Information.
(a) Acknowledgment of Proprietary Interest. Employee acknowledges the
proprietary interest of Employer in all Confidential Information. Employee
agrees that all Confidential Information learned by Employee during his
employment with Employer or otherwise, whether developed by Employee alone or in
conjunction with others or otherwise, is and shall remain the exclusive property
of Employer. Employee further acknowledges and agrees that his disclosure of
any Confidential Information will result in irreparable injury and damage to
Employer.
(b) Confidential Information Defined. "Confidential Information" means all
confidential and proprietary information of Employer, including without
limitation (i) information derived from reports, investigations, experiments,
research and work in progress, (ii) methods of operation, (iii) market data,
(iv) proprietary computer programs and codes, (v) drawings, designs, plans and
proposals, (vi) marketing and sales programs, (vii) client lists, (viii)
historical financial
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information and financial projections, (ix) pricing formulae and policies, (x)
all other concepts, ideas, materials and information prepared or performed for
or by Employer and (xi) all information related to the business, products,
purchases or sales of Employer or any of its suppliers and customers, other than
information that is publicly available.
(c) Covenant Not To Divulge Confidential Information. Employer is entitled
to prevent the disclosure of Confidential Information. As a portion of the
consideration for the employment of Employee and for the compensation being paid
to Employee by Employer, Employee agrees at all times during the term of his
employment hereunder and thereafter to hold in strict confidence and not to
disclose or allow to be disclosed to any person, firm or corporation, other than
to persons engaged by Employer to further the business of Employer, and not to
use except in the pursuit of the business of Employer, the Confidential
Information, without the prior written consent of Employer.
(d) Return of Materials at Termination. In the event of any termination or
cessation of his employment with Employer for any reason, Employee shall
promptly deliver to Employer all documents, data and other information derived
from or otherwise pertaining to Confidential Information. Employee shall not
take or retain any documents or other information, or any reproduction or
excerpt thereof, containing or pertaining to any Confidential Information.
SECTION 9. Noncompetition.
(a) Until two years after termination of Employee's employment hereunder,
Employee shall not do any of the following:
(i) engage directly or indirectly, alone or as a shareholder,
partner, director, officer, employee of or consultant to any other business
organization, in any business activities that:
(1) relate to the wholesale, direct or retail sale of
computer hardware, software, peripherals, training or other computer
related services (the "Designated Industry"); or
(2) were either conducted by Employer prior to the
termination of Employee's employment hereunder or proposed to be
conducted by Employer at the time of such termination;
(ii) divert to any competitor of Employer in the Designated Industry
any customer of Employer; or
(iii) solicit or encourage any director, officer, employee of or
consultant to Employer to end his relationship with Employer or commence
any such relationship with any competitor of Employer in the Designated
Industry.
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(b) Employee's noncompetition obligations hereunder shall not preclude
Employee from owning less than five percent of the common stock of any publicly
traded corporation conducting business activities in the Designated Industry.
If at any time the provisions of this Section 9 are determined to be invalid or
unenforceable by reason of being vague or unreasonable as to area, duration or
scope of activity, this Section 9 shall be considered divisible and shall be
immediately amended to only such area, duration and scope of activity as shall
be determined to be reasonable and enforceable by the court or other body having
jurisdiction over the matter, and Employee agrees that this Section 9 as so
amended shall be valid and binding as though any invalid or unenforceable
provision had not been included herein.
SECTION 10. Termination of Employment in Connection With a Change In
Control.
(a) Applicability. The provisions of this Section 10 shall apply in lieu
of all conflicting provisions in this Agreement in the event Employee's
employment hereunder is terminated in a Triggering Termination. Each of the
following events constitutes a "Triggering Termination" when Employee's
employment hereunder is:
(i) terminated for any reason (other than death) within the 12
month period following a Change In Control;
(ii) terminated by Employer during an Applicable Period for any
reason other than the commission of a felony by Employee;
(iii) Constructively Terminated by Employer during an Applicable
Period;
(iv) terminated pursuant to Section 6(c)(ii) during an Applicable
Period or within 12 months following a Change In Control; or
(v) terminated in an Agreement Termination pursuant to this Section
10(a)(v).
(1) An "Agreement Termination" shall occur when Employee's
employment hereunder is terminated by Employee immediately prior to a
Change In Control to the extent that his continued employment with
Employer is not pursuant to the terms of this Agreement (other than as
provided herein with respect to an Agreement Termination) and
thereafter is only on an at-will basis. Employee's determination to
effect an Agreement Termination must be based on a good faith judgment
of Employee and any two or more Concurring Persons, in light of the
circumstances as then known or understood by them, that a Change In
Control is going to occur within 24 hours, but it is not required as a
condition to such good faith judgment that:
(I) Employee or any Concurring Person conduct any
investigation or consult with any other person or group (except
only for
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Employee's requirement to obtain the concurrence or approval of
Concurring Persons);
(II) no condition remains to be satisfied before the
Change In Control can occur; or
(III) the Board of Directors of Employer has taken any
action to approve or facilitate the Change In Control.
(2) The concurrence or approval of the Concurring Persons is
limited to the occurrence and timing of the Change In Control and is
not made regarding the propriety of Employee's effecting an Agreement
Termination.
(3) In consideration of the right to effect an Agreement
Termination and receive a Termination Payment and Gross Up Payment
immediately prior to a Change In Control, Employee agrees that, upon
(and notwithstanding) his exercise of such right and the payment to
him of the Termination Payment and Gross Up Payment, he shall
continue, without interruption until such Change In Control occurs
(unless his at-will employment with Employer is sooner terminated or
Constructively Terminated by Employer, as described in Sections
10(a)(ii), (iii) and (iv), or Employee dies or terminates his
employment with Employer due to Disability), to devote his full time
and best efforts as an at-will employee of Employer to the performance
of the same duties that he performed for Employer, holding the same
office or position with Employer as he held before the Agreement
Termination, but without the right to any compensation from Employer
for such continued performance (except as provided below in Section
10(a)(v)(4)(I)). Employee's obligation set forth in the preceding
sentence is referred to herein as the "Continued Performance
Obligation."
(4) Employee shall have no obligation to comply with Section
8(d) until he has no further Continued Performance Obligation. If the
anticipated Change In Control does not occur within five business days
after Employee's receipt of a Termination Payment and Gross Up Payment
following the exercise of his right to effect an Agreement
Termination, then:
(I) such Agreement Termination shall be void and
ineffective, and Employee's employment under all of the terms
of this Agreement (including without limitation his
compensation and benefits, duties, position and rights
regarding any other actual or expected Change In Control) shall
be deemed to have continued without interruption; and
(II) Employee shall, and Employee hereby agrees to,
repay to Employer within two business days the full Termination
Payment and
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Gross Up Payment received by Employee (together with interest,
if any, actually earned on the funds while in Employee's
control).
(5) If Employee fails to satisfy his Continued Performance
Obligation, then:
(I) such Agreement Termination shall be void and
ineffective, and Employee shall be deemed to have voluntarily
terminated his employment hereunder before a Change In Control;
and
(II) Employee shall repay to Employer within one
business day the full Termination Payment and Gross Up Payment
received by Employee (together with interest, if any, actually
earned on the funds while in Employee's control).
(b) Termination Payment.
(i) Amount.
(1) Upon the occurrence of a Triggering Termination, Employer
shall pay Employee a lump sum payment in cash equal to 2.99 times the
sum of the following items:
(I) Employee's annual base compensation determined by
reference to his highest annual base compensation in effect at
any time during Employee's employment with Employer;
(II) two times the Target Bonus that would be payable
to Employee by Employer for the bonus period in which the
Change In Control occurred; provided that the amount determined
under this Section 10(b)(i)(1)(II) shall not be less than ____%
of the amount determined under Section 10(b)(i)(1)(I); and
(III) Employee's annualized car allowance determined by
reference to his highest car allowance rate in effect at any
time during Employee's employment with Employer.
(2) The term "Termination Payment" shall include the amounts
described above in Section 10(b)(i)(1) plus the following amounts
described in this Section 10(b)(i)(2):
(I) Employee's Base Salary accrued but unpaid as of
the date of the Triggering Termination;
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(II) reimbursement under Section 5 for unpaid expenses
incurred in the performance of his duties hereunder prior to
the date of the Triggering Termination;
(III) any other benefit accrued but unpaid as of the
date of the Triggering Termination; and
(IV) $18,000, which represents the estimated cost to
Employee of obtaining accident, health, dental, disability and
life insurance coverage for the 18 month period following the
expiration of his continuation (COBRA) rights; provided that
this Section 10(b)(i)(2)(IV) shall be applied without regard
to, and the amount payable under this Section 10(b)(i)(2)(IV)
is in addition to, any continuation (COBRA) rights or
conversion rights under any plan provided by Employer, which
rights are not affected by any provision hereof.
(ii) Time for Payment; Interest. Employer shall pay the Termination
Payment to Employee concurrent with the Triggering Termination. Employer's
obligation to pay to Employee any amounts under this Section 10, including
without limitation the Termination Payment and any Gross Up Payment due
under Section 10(d), shall bear interest at the maximum rate allowed by law
until paid by Employer, and all accrued and unpaid interest shall bear
interest at the same rate, all of which interest shall be compounded daily.
(iii) Payment Authority. Any officer of Employer (other than
Employee) is authorized to issue and execute a check, initiate a wire
transfer or otherwise effect payment on behalf of Employer to satisfy
Employer's obligations to pay all amounts due to Employee under this
Section 10.
(iv) Termination. Employer's obligation to pay the Termination
Payment shall not be affected by the manner in which Employee's employment
hereunder is terminated. Without limiting the generality of the foregoing,
Employer shall be obligated to pay the Termination Payment and any Gross Up
Payment regardless of whether Employee's termination of employment is
voluntary, involuntary, for cause, without cause, in violation of any
employment agreement or other agreement in effect at the time of the Change
In Control (except as provided in Section 10(a)(v)(5)(I) with respect to
Employee's failure to satisfy his Continued Performance Obligation in the
event of an Agreement Termination) or due to Employee's retirement or
Disability. Employee's notice of his termination of employment hereunder in
connection with a Change In Control may be made by any means.
(c) Change In Control. A Change In Control shall be deemed to have
occurred for purposes hereof when any Person meets the requirements for becoming
an Acquiring Person, whether or not a Distribution Date occurs or the Rights are
redeemed by Employer, as those
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terms are defined in the Rights Agreement between the Company and Bank One,
Texas, N.A. as Rights Agent (First Interstate Bank of Texas, N.A. became
successor Rights Agent as of November 1, 1995), dated as of April 29, 1994 (the
"Rights Agreement"); provided that a Change In Control shall not be deemed to
have occurred for purposes hereof with respect to any Person meeting the
requirements of clauses (i) and (ii) of Rule 13d-1(b)(1) promulgated under the
Securities Exchange Act of 1934, as amended.
(d) Gross Up Payment.
(i) Excess Parachute Payment. If Employee incurs the tax (the
"Excise Tax") imposed by Section 4999 of the Code on "excess parachute
payments" within the meaning of Section 280G(b)(1) of the Code as the
result of the receipt of any payments under this Agreement, Employer shall
pay to Employee an amount (the "Gross Up Payment") such that the net amount
retained by Employee, after deduction of (1) any Excise Tax upon any
payments under this Agreement (other than payments provided by this Section
10(d)(i)) and (2) any federal, state and local income and employment taxes
(together with penalties and interest) and Excise Tax upon the payments
provided by this Section 10(d)(i), shall be equal to the amount of the
payments that Employee is entitled to receive under this Agreement (other
than payments provided by this Section 10(d)(i)).
(ii) Applicable Rates. For purposes of determining the Gross Up
Payment amount, Employee shall be deemed:
(1) to pay federal income taxes at the highest marginal rate
of federal income taxation applicable to individual taxpayers in the
calendar year in which the Gross Up Payment is made (which rate shall
be adjusted as necessary to take into account the effect of any
reduction in deductions, exemptions or credits otherwise available to
Employee had the Gross Up Payment not been received);
(2) to pay additional employment taxes as a result of the
receipt of the Gross Up Payment in an amount equal to the highest
marginal rate of employment taxes applicable to wages; provided that
if any employment tax is applied only up to a specified maximum amount
of wages, such limit shall be taken into account for purposes of such
calculation; and
(3) to pay state and local income taxes at the highest
marginal rates of taxation in the state and locality of Employee's
residence on the date of the Triggering Termination, net of the
maximum reduction in federal income taxes that could be obtained from
deduction of such state and local taxes.
(iii) Determination of Gross Up Payment Amount. The determination of
the Gross Up Payment amount shall be made by Ernst & Young LLP or another
nationally recognized public accounting firm selected by Employee (in
either case, the "Accountants"). If the Excise Tax amount payable by
Employee, based upon a
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"Determination," is different from the Excise Tax amount computed by the
Accountants for purposes of determining the Gross Up Payment amount, then
appropriate adjustments to the Gross Up Payment amount shall be made in the
manner provided in Section 10(d)(iv). For purposes of determining the Gross
Up Payment amount prior to a Determination of the Excise Tax amount, the
following assumptions shall be utilized:
(1) that portion of the Termination Payment that is
attributable to the items described in Sections 10(b)(i)(1)(I), (II),
(III) and Section 10(b)(i)(2)(IV), and the Gross Up Payment, shall be
treated as Parachute Payments without regard to whether a Change In
Control satisfies the requirements of Section 280G(b)(2)(A)(i) of the
Code;
(2) no portion of any payment made pursuant to Sections
10(b)(i)(2)(I), (II) or (III) or Section 11(c) shall be treated as a
Parachute Payment;
(3) the amount payable to Employee pursuant to Section 10(l)
shall be:
(I) deemed to be equal to 15% of the amount determined
under Section 10(b)(i)(1)(I);
(II) deemed to have been paid immediately following the
Change In Control;
(III) deemed to include the additional amount payable
under Section 10(l), if any, for additional taxes payable by
Employee as a result of the receipt of the payment described in
Section 10(l); and
(IV) treated 100% as a Parachute Payment;
(4) it shall be assumed that all of the payments that could
potentially be made to Employee pursuant to the Consulting Agreement
shall be made, and all of such payments shall be treated as Parachute
Payments; provided that nothing in this Section 10(d)(iii)(4) shall
limit or reduce the payment of any amount similar to the Gross Up
Payment under the Consulting Agreement;
(5) the "ascertainable fair market value" (as set forth in
Prop. Treas. Reg. (S)1.280G-1, Q&A 13) of the Options, the vesting of
which was accelerated by the Change In Control as provided in the
Incentive Plan and as further provided in Section 10(j), shall be
equal to the product of (I) and (II) as set forth below:
(I) the number of shares covered by such Options; and
(II) the difference between:
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a. the fair market value per share as of the date
of the Change In Control; and
b. the exercise price per share of stock subject
to such Options; and
(6) for purposes of applying the rules set forth in Prop.
Treas. Reg. (S)1.280G-1, Q&A 24(c) to a payment described in Prop.
Treas. Reg. (S)1.280G-1, Q&A 24(b), the amount reflecting the lapse of
the obligation to continue performing services shall be equal to the
minimum amount allowed for such payment as set forth in Prop. Treas.
Reg. (S)1.280G-1, Q&A 24(c)(2) (or if Prop. Treas. Reg. (S)1.280G-1
has been superseded by temporary or final regulations, the minimum
amount provided for in any temporary or final regulations that
supersede Prop. Treas. Reg. (S)1.280G-1 and that are applicable to the
Termination Payment, Gross Up Payment, or both).
(iv) Time For Payment. Employer shall pay the estimated Gross Up
Payment amount in cash to Employee concurrent with the payment of the
Termination Payment. Employee and Employer agree to reasonably cooperate in
the determination of the actual Gross Up Payment amount. Further, Employee
and Employer agree to make such adjustments to the estimated Gross Up
Payment amount as may be necessary to equal the actual Gross Up Payment
amount, which in the case of Employee shall refer to refunds of prior
overpayments and in the case of Employer shall refer to makeup of prior
underpayments.
(e) Term. Notwithstanding the provisions of Section 3, if a Change In
Control occurs prior to __________, Sections 10, 11 and 12 shall continue in
effect for a period of 12 months after the date of the Change In Control.
(f) Consulting Agreement. To preserve a sound and vital management team
for the Company during the period immediately following a Change In Control,
Employee agrees that, in the event of a Triggering Termination, Employee shall
enter into a Consulting Agreement (the "Consulting Agreement") in the form
attached hereto if requested by the Board of Directors of the Company within 30
days after the Change In Control. If Employee breaches his obligation under the
preceding sentence by declining to enter into a Consulting Agreement, as
liquidated damages for such breach and not as a penalty, Employee shall pay to
Employer the amount that Employee otherwise would have received as compensation
from Employer under the Consulting Agreement assuming Employee fully performed
his obligations thereunder.
(g) No Duty to Mitigate Damages. Employee's rights and privileges under
this Section 10 shall be considered severance pay in consideration of his past
service and his continued service to Employer from the Commencement Date, and
his entitlement thereto shall neither be governed by any duty to mitigate his
damages by seeking further employment nor offset by any compensation that he may
receive from future employment.
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(h) Arbitration. Except as provided in Section 10(j) and in Section 11(d)
with respect to Section 10(m), any controversy or claim arising out of or
relating to this Section 10, or the breach thereof, shall be settled exclusively
by arbitration in Dallas, Texas, in accordance with the Commercial Arbitration
Rules of the American Arbitration Association then in effect. Judgment upon the
award rendered by the arbitrator may be entered in, and enforced by, any court
having jurisdiction thereof.
(i) No Right To Continued Employment. This Section 10 shall not give
Employee any right of continued employment or any right to compensation or
benefits from Employer except the rights specifically stated herein.
(j) Restricted Stock and Exercise of Stock Options. Employee may hold
options ("Options") issued under the Incentive Plan that become immediately
exercisable upon a Change In Control. In addition, Employee may hold restricted
stock ("Restricted Stock") issued under the Incentive Plan pursuant to which
applicable restrictions will lapse upon a Change In Control. Employer shall
take no action to facilitate a transaction involving a Change In Control,
including without limitation redemption of the Rights issued pursuant to the
Rights Agreement, unless it has taken such action as may be necessary to ensure
that Employee has the opportunity to exercise all Options he may then hold, and
obtain certificates containing no restrictive legends in respect of any
Restricted Stock he may then hold, at a time and in a manner that shall give
Employee the opportunity to sell or exchange the securities of Employer acquired
upon exercise of his Options and upon receipt of unrestricted certificates for
shares of Common Stock in respect of his Restricted Stock, if any (collectively,
the "Acquired Securities"), at the earliest time and in the most advantageous
manner any holder of the same class of securities as the Acquired Securities is
able to sell or exchange such securities in connection with such Change In
Control. Employer acknowledges that its covenants in the preceding sentence
(the "Covenants") are reasonable and necessary in order to protect the
legitimate interests of Employer in maintaining Employee as one of its employees
and that any violation of the Covenants by Employer would result in irreparable
injuries to Employee, and Employer therefore acknowledges that in the event of
any violation of the Covenants by Employer or its directors, officers or
employees, or any of their respective agents, Employee shall be entitled to
obtain from any court of competent jurisdiction temporary, preliminary and
permanent injunctive relief in order to (i) obtain specific performance of the
Covenants, (ii) obtain specific performance of the exercise of his Options,
delivery of certificates containing no restrictive legends in respect of his
Restricted Stock and the sale or exchange of the Acquired Securities in the
advantageous manner contemplated above or (iii) prevent violation of the
Covenants; provided that in the event Employee fails to obtain such injunctive
relief, nothing in this Agreement shall be deemed to prejudice Employee's rights
to damages for violation of the Covenants.
(k) Coordination With Other Payments.
(i) After the termination of Employee's employment hereunder:
(1) if Employee is entitled to receive Separation Payments;
and
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(2) Employee subsequently becomes entitled to receive a
Termination Payment, Gross Up Payment or both, then
(ii) prior to the disbursement of the Termination Payment and Gross
Up Payment:
(1) the payment date of all unpaid Separation Payments shall
be accelerated to the payment date of the Termination Payment and such
Separation Payments shall be made (in this event, Employer waives any
requirement that Employee reduce the Separation Payments by the amount
of any income earned by Employee thereafter); and
(2) the Termination Payment shall be reduced by the amount of
the Separation Payments so accelerated and made.
(l) Outplacement Services. If Employee becomes entitled to receive a
Termination Payment under this Section 10, Employer agrees to reimburse Employee
for any outplacement consulting fees and expenses incurred by Employee during
the two year period following the Change In Control; provided that the aggregate
amount reimbursed by Employer shall not exceed 15% of Employee's Base Salary in
effect immediately prior to the Change In Control. In addition and as to each
reimbursement payment, to the extent that any reimbursement under this Section
10(l) is not deductible by Employee for federal, state and local income tax
purposes, Employer shall pay Employee an additional amount such that the net
amount retained by Employee, after deduction of any federal, state and local
income tax on the reimbursement and such additional amount, shall be equal to
the reimbursement payment. All amounts under this Section 10(l) shall be paid
by Employer within 15 days after Employee's presentation to Employer of any
statements of such amounts and thereafter shall bear interest at the maximum
rate allowed by law until paid by Employer; and all accrued and unpaid interest
shall bear interest at the same rate, all of which interest shall be compounded
daily.
(m) Noncompetition.
(i) Following the occurrence of a Triggering Termination, Employee
shall not:
(1) for a period of two years following the date of the
Triggering Termination engage directly or indirectly, alone or as a
shareholder, partner, director, officer, employee of or consultant to,
any entity other than Employer that is in existence on the date of the
Triggering Termination and is at that time engaged directly, or
indirectly through any subsidiary, division or other business unit
(individually, an "Entity"), in retail or direct sales of computer
hardware, software, peripherals, training or other computer related
services to end users (the "Change In Control Designated Industry");
or
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(2) for a period of one year following the date of the
Triggering Termination solicit or encourage any director, officer,
employee of or consultant to Employer to end his relationship with
Employer and commence any such relationship with any competitor of
Employer in the Change In Control Designated Industry.
(ii) Notwithstanding the foregoing, an Entity shall not be deemed to
be engaged in the Change In Control Designated Industry if retail and
direct sales of computer hardware, software, peripherals, training or other
computer related services to end users are incidental to such Entity's
business. Retail and direct sales of computer hardware, software,
peripherals, training or other computer related services shall be deemed
incidental to an Entity's business so long as:
(1) the aggregate of such sales by such Entity is 40% or less
of the total sales of such Entity for the fiscal quarter of such
Entity immediately preceding the date of the Triggering Termination or
any of the eight immediately subsequent fiscal quarters of such
Entity; and
(2) such Entity is not a member of a group of Entities under
common control that includes one or more Computer Sales Entities;
provided that the foregoing restriction shall be deemed not to have
been violated if Employee terminates his employment or other
prohibited relationship with an Entity promptly after his discovery
that the Entity first became a Computer Sales Entity (during the term
of his relationship) during the preceding fiscal quarter of such
Entity. A "Computer Sales Entity" is defined as an Entity whose retail
and direct sales of computer hardware, software, peripherals, training
and other computer related services to end users, in the aggregate,
are more than 40% of the total sales of such Entity, measured over any
fiscal quarter. Notwithstanding the foregoing, the following Entities
shall be deemed to be Computer Sales Entities engaged in the Change In
Control Designated Industry: Best Buy, Circuit City, Tandy Corporation
(and its subsidiaries, affiliates and divisions including Computer
City), Fry's, Micro Electronics, Inc. (d/b/a Micro Center), Elek-Tek,
Silo/Fretter and Computer Discount Warehouse, Inc.
(iii) If at any time the provisions of this Section 10(m) are
determined to be invalid or unenforceable by reason of being vague or
unreasonable as to area, duration or scope of activity, this Section 10(m)
shall be considered divisible and shall be immediately amended to only such
area, duration or scope of activity as shall be determined to be reasonable
and enforceable by the court or other body having jurisdiction over the
matter; and Employee agrees that this Section 10(m) as so amended shall be
valid and binding as though any invalid or unenforceable provision had not
been included herein. Notwithstanding the foregoing, Employee's
noncompetition obligations hereunder shall not preclude Employee from
owning stock with less than five percent of the voting
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power or economic interest in any publicly traded corporation conducting
business activities in the Change In Control Designated Industry.
SECTION 11. General.
(a) Notices. Except as provided in Section 10(b)(iv), all notices and
other communications hereunder shall be in writing or by written
telecommunication, and shall be deemed to have been duly given if delivered
personally or if mailed by certified mail, return receipt requested or by
written telecommunication, to the relevant address set forth below, or to such
other address as the recipient of such notice or communication shall have
specified to the other party in accordance with this Section 11(a):
If to Employer, to: with a copy to:
CompUSA Inc. Jackson & Walker, L.L.P.
14951 North Dallas Parkway 901 Main Street, Suite 6000
Dallas, Texas 75240 Dallas, Texas 75202
Attention: Chairman of the Board Attention: Fred W. Fulton
Facsimile Number: (214) 982-4276 Facsimile Number: (214) 953-6115
If to Employee, to:
_____________________
_____________________
(b) Withholding; No Offset. All payments required to be made to Employee
by Employer shall be subject to the withholding of such amounts, if any,
relating to federal, state and local taxes as may be required by law. No
payments under Section 10 shall be subject to offset or reduction attributable
to any amount Employee may owe to Employer or any other person.
(c) Legal and Accounting Costs. Employer shall pay all attorneys' and
accountants' fees and costs incurred by Employee as a result of any breach by
Employer of its obligations under this Agreement, including without limitation
all such costs incurred in contesting or disputing any determination made by
Employer under Section 10 or in connection with any tax audit or proceeding to
the extent attributable to the application of Section 4999 of the Code to any
payment under Section 10. Reimbursements of such costs shall be made by Employer
within 15 days after Employee's presentation to Employer of any statements of
such costs and thereafter shall bear interest at the maximum rate allowed by law
until paid by Employer, and all accrued and unpaid interest shall bear interest
at the same rate, all of which interest shall be compounded daily.
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(d) Equitable Remedies. Each of the parties hereto acknowledges and agrees
that upon any breach by Employee of his obligations under any of Sections 7, 8,
9 and 10(m), Employer shall have no adequate remedy at law and accordingly shall
be entitled to specific performance and other appropriate injunctive and
equitable relief.
(e) Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable, such provision shall be fully severable, and
this Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision never comprised a part hereof, and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its severance
herefrom. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as part of this Agreement a
provision as similar in its terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
(f) Waivers. No delay or omission by either party in exercising any right,
power or privilege hereunder shall impair such right, power or privilege, nor
shall any single or partial exercise of any such right, power or privilege
preclude any further exercise thereof or the exercise of any other right, power
or privilege.
(g) Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
(h) Captions. The captions in this Agreement are for convenience of
reference only and shall not limit or otherwise affect any of the terms or
provisions hereof.
(i) Reference to Agreement. Use of the words "herein," "hereof," "hereto,"
"hereunder" and the like in this Agreement refer to this Agreement only as a
whole and not to any particular section or subsection of this Agreement, unless
otherwise noted.
(j) Binding Agreement. This Agreement shall be binding upon and inure to
the benefit of the parties and shall be enforceable by the personal
representatives and heirs of Employee and the successors and assigns of
Employer. This Agreement may be assigned by the Company or any Employer to any
Employer; provided that in the event of any such assignment, the Company shall
remain liable for all of its obligations hereunder and shall be liable for all
obligations of all such assignees hereunder. If Employee dies while any amounts
would still be payable to him hereunder, such amounts shall be paid to
Employee's estate. This Agreement is not otherwise assignable by Employee.
(k) Entire Agreement; Effect on Prior Agreement. This Agreement contains
the entire understanding of the parties, supersedes all prior agreements and
understandings relating to the subject matter hereof and may not be amended
except by a written instrument hereafter signed by each of the parties hereto.
Employee and the Company hereby agree that, if any other employment agreement
between Employee and the Company (or its subsidiaries or other
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affiliates) is in existence on the Commencement Date, then this Agreement shall
supersede such other employment agreement in its entirety, and such other
employment agreement shall no longer be of any force and effect after the date
hereof.
(l) Governing Law. This Agreement and the performance hereof shall be
construed and governed in accordance with the laws of the State of Texas,
without regard to its choice of law principles.
(m) Gender and Number. The masculine gender shall be deemed to denote the
feminine or neuter genders, the singular to denote the plural, and the plural to
denote the singular, where the context so permits.
SECTION 12. Definitions. As used in this Agreement, the following terms
will have the following meanings:
(a) Accountants has the meaning ascribed to it in Section 10(d)(iii).
(b) Acquired Securities has the meaning ascribed to it in Section 10(j).
(c) Agreement has the meaning ascribed to it in the heading of this
document.
(d) Agreement Termination has the meaning ascribed to it in Section
10(a)(v)(1). References in this Agreement to termination of Employee's
employment with Employer, in any form, shall be deemed to include (whether or
not so expressed) an Agreement Termination.
(e) Applicable Period means, with respect to any Change In Control, the
period of 90 days immediately preceding the Change In Control.
(f) Base Salary has the meaning ascribed to it in Section 4(a).
(g) Cause has the meaning ascribed to it in Section 6(a)(ii).
(h) Change In Control has the meaning ascribed to it in Section 10(c).
(i) Change In Control Designated Industry has the meaning ascribed to it
in Section 10(m)(i)(1).
(j) Code means the Internal Revenue Code of 1986, as amended.
(k) Commencement Date has the meaning ascribed to it in Section 3.
(l) Company means CompUSA Inc., a Delaware corporation.
(m) Computer Sales Entity has the meaning ascribed to it in Section
10(m)(ii)(2).
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(n) A Concurring Person is an individual who is the Chairman of the Board
of Directors of the Company or a member of the Compensation Committee of the
Board of Directors of the Company (or, if no Compensation Committee exists, or
there are fewer than two members of the Compensation Committee, a nonemployee
member of the Board of Directors of the Company) at the time in question.
(o) Confidential Information has the meaning ascribed to it in Section
8(b).
(p) Constructively Terminated with respect to an Employee's employment
with Employer will be deemed to have occurred if Employer:
(i) demotes Employee to a lesser position, either in title or
responsibility, than the highest position held by Employee with Employer at
any time during Employee's employment with Employer;
(ii) decreases Employee's compensation below the highest level in
effect at any time during Employee's employment with Employer or reduces
Employee's benefits and perquisites below the highest levels in effect at
any time during Employee's employment with Employer (other than as a result
of any amendment or termination of any employee or group or other executive
benefit plan, which amendment or termination is applicable to all
executives of Employer); or
(iii) requires Employee to relocate to a principal place of business
more than 25 miles from the principal place of business occupied by
Employer on the first day of an Applicable Period.
(q) Consulting Agreement has the meaning ascribed to it in Section 10(f).
(r) Continued Performance Obligation has the meaning ascribed to it in
Section 10(a)(v)(3).
(s) Covenants has the meaning ascribed to it in Section 10(j).
(t) Designated Industry has the meaning ascribed to it in Section
9(a)(i)(1).
(u) Determination has the meaning ascribed to such term in Section 1313(a)
of the Code.
(v) Disability with respect to an Employee shall be deemed to exist if he
meets the definition of disability under the terms of the disability insurance
policy referred to in Section 4(d). Any refusal by Employee to submit to a
reasonable medical examination to determine whether Employee is so disabled
shall be deemed conclusively to constitute evidence of Employee's Disability.
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(w) Employee has the meaning ascribed to it in the heading of this
Agreement.
(x) Employer refers collectively to the Company and its subsidiaries and
other affiliates. In Section 10, the term "Employer" shall be deemed to refer
to the Company, and for purposes of Section 10, Employee shall be deemed to be
employed by the Company and all compensation and benefits paid or provided to
Employee by any Employer under this Agreement at any time shall be deemed to
have been paid or provided to Employee by the Company.
(y) Entity has the meaning ascribed to it in Section 10(m)(i)(1).
(z) Excise Tax has the meaning ascribed to it in Section 10(d)(i).
(aa) Gross Up Payment has the meaning ascribed to it in Section 10(d)(i).
(bb) Incentive Plan means the CompUSA Inc. Long-Term Incentive Plan, as
amended from time to time.
(cc) Inventions has the meaning ascribed to it in Section 7(a).
(dd) Options has the meaning ascribed to it in Section 10(j).
(ee) Parachute Payments has the meaning ascribed to such term in Section
280G(b)(2) of the Code.
(ff) Restricted Stock has the meaning ascribed to it in Section 10(j).
(gg) Rights Agreement has the meaning ascribed to it in Section 10(c).
(hh) Separation Payment Period has the meaning ascribed to it in Section
6(b)(ii).
(ii) Separation Payments has the meaning ascribed to it in Section
6(b)(ii).
(jj) Target Bonus means, with respect to each Employee, the dollar amount
that is equal to the established percentage of such Employee's Base Salary that
would be paid to Employee under the management incentive bonus plan of Employer
assuming the measurement criteria contained in such plan with respect to
Employee were achieved for the bonus period in which the Change In Control
occurred.
(kk) Termination Payment has the meaning ascribed to it in Section
10(b)(i)(2).
(ll) Triggering Termination has the meaning ascribed to it in Section
10(a).
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EXECUTED as of the date and year first above written.
CompUSA Inc.
By ___________________________________
James F. Halpin, President and Chief
Executive Officer
_____________________________________
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CONSULTING AGREEMENT
This Consulting Agreement ("Agreement"), dated as of _____________________
_____, 19_____ ("Effective Date"), is between CompUSA Inc., a Delaware
corporation ("Company"), and ____________ ("Consultant").
R E C I T A L S:
A. Consultant was formerly employed by the Company (or one of its
subsidiaries or affiliates) as an executive officer.
B. Consultant and the Company previously entered into an Employment
Agreement, dated as of May 1, 1996 ("Employment Agreement"), under which
Consultant is obligated to enter into this Agreement at the request of the Board
of Directors of the Company under certain circumstances.
C. The Board of Directors of the Company has requested that Consultant
enter into this Agreement and Consultant is willing to do so.
NOW, THEREFORE, for and in consideration of the mutual promises contained
in this Agreement, and on the terms and subject to the conditions set forth in
this Agreement, the parties agree as follows:
SECTION 1. Duties. The Company retains Consultant to provide, and
Consultant agrees to render, such consulting and advisory services as may be
requested from time to time by the Company's Board of Directors. Consultant
agrees to devote his attention, skills and best efforts to the performance of
his duties under this Agreement. Consultant shall not be obligated, however, to
devote more than 30 hours per month to the discharge of his responsibilities
under this Agreement. Consultant shall be an independent contractor, not an
employee of the Company, during the term of this Agreement.
SECTION 2. Term. The term for providing consulting services under this
Agreement commences on the Effective Date and continues, unless earlier
terminated pursuant to Section 5, until 180 days after the date of the Change In
Control, as defined in the Employment Agreement.
SECTION 3. Compensation. In consideration for the services provided by
Consultant, the Company shall pay to Consultant during the term of this
Agreement compensation at a rate equal to the rate of his annual base
compensation considered for purposes of Section 10(b)(i)(1)(I) of the Employment
Agreement, which payments shall be made monthly in advance.
SECTION 4. Expenses. The parties anticipate that Consultant, in
connection with the services to be performed by him under this Agreement, will
incur expenses for travel, lodging and similar items. The Company shall advance
the estimated amount of such expenses to Consultant and shall, within 15 days
after Consultant's presentation to the Company of reasonable documentation of
the actual expenses, reimburse Consultant for all expenses incurred by
Consultant in the performance of his duties under this Agreement that have not
been so advanced.
SECTION 5. Early Termination.
(a) Events of Early Termination. This Agreement may terminate prior to the
expiration of the term specified in Section 2 as follows:
(i) Death. Upon the death of Consultant during the term hereof.
(ii) For Cause. For "Cause" immediately upon written notice by the
Company to Consultant. For purposes of this Agreement, a termination shall
be for Cause if:
(I) Consultant commits an unlawful or criminal act involving
moral turpitude; or
(II) Consultant (A) fails to obey written directions delivered
to Consultant by the Company's Board of Directors; or (B) commits a
material breach of any of the covenants, terms and provisions of this
Agreement and such failure or breach continues uncured for more than
30 days after receipt by Consultant of written notice of such failure
or breach.
(b) Payments Upon Early Termination. Consultant shall not be entitled to
any compensation upon termination of this Agreement pursuant to this Section 5
except for his compensation accrued but unpaid as of the date of such
termination and unpaid expense reimbursements under Section 4 for expenses
incurred in accordance with the terms hereof prior to such termination.
SECTION 6. General.
(a) Notices. All notices and other communications hereunder shall be in
writing or by written telecommunication and shall be deemed to have been duly
given if delivered personally or if mailed by certified mail, return receipt
requested or by written telecommunication, to the relevant address set forth
below, or to such other address as the recipient of such notice or communication
shall have specified to the other party hereto in accordance with this Section
6(a):
If to the Company, to: with a copy to:
CompUSA Inc. Jackson & Walker, L.L.P.
14951 North Dallas Parkway 901 Main Street, Suite 6000
Dallas, Texas 75240 Dallas, Texas 75202
Attention: Chairman of the Board Attention: Fred W. Fulton
Facsimile Number: (214) 982-4276 Facsimile Number: (214) 953-6115
If to Consultant, to:
_____________________
_____________________
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(b) Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable, such provision shall be fully severable, and
this Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision never comprised a part hereof, and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its severance
herefrom. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as part of this Agreement a
provision as similar in its terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
(c) Waivers. No delay or omission by either party hereto in exercising any
right, power or privilege hereunder shall impair such right, power or privilege,
nor shall any single or partial exercise of any such right, power or privilege
preclude any further exercise thereof or the exercise of any other right, power
or privilege.
(d) Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
(e) Captions. The captions in this Agreement are for convenience of
reference only and shall not limit or otherwise affect any of the terms or
provisions hereof.
(f) Reference to Agreement. Use of the words "hereof," "hereto,"
"hereunder" and the like in this Agreement refer to this Agreement as a whole
and not to any particular section or subsection of this Agreement, unless
otherwise noted.
(g) Binding Agreement. This Agreement shall be binding upon and inure to
the benefit of the parties and shall be enforceable by the personal
representatives and heirs of Consultant and the successors of the Company. If
Consultant dies while any amounts would still be payable to him hereunder, such
amounts shall be paid to Consultant's estate. This Agreement is not otherwise
assignable by Consultant or by the Company.
(h) Entire Agreement. This Agreement contains the entire understanding of
the parties, supersedes all prior agreements and understandings relating to the
subject matter hereof and may not be amended except by a written instrument
hereafter signed by each of the parties hereto.
(i) Governing Law. This Agreement and the performance hereof shall be
construed and governed in accordance with the laws of the State of Texas,
without regard to its choice of law principles.
(j) Gender and Number. The masculine gender shall be deemed to denote the
feminine or neuter genders, the singular to denote the plural, and the plural to
denote the singular, where the context so permits.
EXECUTED as of the date and year first above written.
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CompUSA Inc.
By _________________________________
_________________________________
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