EXHIBIT 10.58
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
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.
2
“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
3
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
4
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