**Exhibit 10.37**

 

**AMENDMENT TO EMPLOYMENT AGREEMENT DATEDDECEMBER 30, 2008**

 

THIS SECOND AMENDMENT TO EMPLOYMENT AGREEMENT (this “Amendment”)is made and entered into as of  December 30,2008, by and between PC MALL, INC., a Delaware corporation, (the “Company”),and Frank F. Khulusi, an individual (“Executive”).

 

**RECITALS**

 

WHEREAS , the Company and Executive previously entered into thatcertain Employment Agreement, effective January 1, 1995, setting forth theterms and conditions of Executive’s employment with the Company (the “EmploymentAgreement”); and

 

WHEREAS, the Company and Executive previously agreed to amend theEmployment Agreement, effective as of December 28, 2005, to addresscertain provisions of Section 409A of the Internal Revenue Code of 1986,as amended (the “Code”) and its proposed Treasury regulations; and

 

WHEREAS , the parties hereto now mutually desire to further amend theEmployment Agreement as provided herein solely to conform its terms to theapplicable provisions of Code Section 409A and its final Treasuryregulations.

 

**AGREEMENT**

 

**NOW, THEREFORE,** in consideration of theforegoing and the mutual promises and covenants contained in this Amendment,the parties hereto agree as follows:

 

1.                                       TheAgreement is hereby amended by the addition of the following new Section 15:

 

15.         Code Section 409AProvisions.

 

(a)**          **Compliance with Section 409A.  This Agreement is intended to comply withCode Section 409A (as amplified by any Internal Revenue Service or U.S.Treasury Department guidance), and shall be construed and interpreted inaccordance with such intent.  Executiveand the Company acknowledge that Executive and the Company intend that thecompensation arrangements set forth in this Agreement are in compliance withCode Section 409A, and Executive and the Company agree to cooperate withone another, to the extent reasonably requested by the other party, torestructure any compensation set forth in this Agreement in a manner, ifpossible and without any increase in cost to the Company, such that no earlierand/or additional taxes to Executive or the Company will arise under Code Section 409A.  Any provision of this Agreement that wouldcause the payment of any benefit to fail to satisfy Code Section 409Ashall have no force and effect until amended to comply with Code Section 409A(which amendment may be retroactive to the extent permitted by the Code or anyregulations or rulings thereunder).  TheCompany makes no representation that this Agreement will comply with Code Section 409Aand makes no undertaking to prevent Code Section 409A from applying tothis 

 

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Agreement or to mitigateits effects on any deferrals or payments made pursuant to this Agreement.

 

(b)           Delay Due to Code Section 409A.  Notwithstanding any other provision of thisAgreement to the contrary, the Company shall delay the payment of any benefitspayable under this Agreement as required and to the extent necessary to complywith Section 409A(a)(2)(B)(i) of the Code (relating to payments madeto certain “specified employees” of certain publicly-traded companies) and insuch event, any such amount to which Executive would otherwise be entitledduring the six (6) month period immediately following his termination ofemployment shall instead be accumulatedthrough and paid or provided, together with interest at the long-termapplicable federal rate (annual compounding) under Section 1274(d) ofthe Code in effect on his termination of employment, on the firstbusiness day following the expiration of such six (6) month period, or ifearlier, the date of his death; provided, however, that any amounts due to theExecutive as a result of his termination of employment that can be paid in amanner consistent with Section 409A(a)(2)(B)(i) of the Code duringsuch six (6) month period shall be paid to him as otherwise providedherein to the maximum extent permitted by Section 409A of the Code, itsrelated Treasury regulations (including, without limitation, Section 1.409A-1(b)(9),relating to separation pay arrangements), and any official administrativeguidance relating to Section 409A of the Code.

 

2.                                       Exceptto the extent specifically modified herein, the Employment Agreement remains infull force and effect.

 

3.                                       ThisAmendment may be executed in one or more counterparts, all of which shall be consideredone and the same agreement and shall become effective when one or morecounterparts have been signed by each party hereto and delivered to the otherparty hereto, it being understood the parties need not sign the samecounterpart.

 

4.                                       Capitalizedterms not otherwise defined herein shall have the meanings ascribed to them inthe Employment Agreement.

 

[Signature page follows]

 

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**IN WITNESS WHEREOF,** the parties have executedthis Amendment as of the 30th day of December, 2008.

 
| ** ** | **PC MALL, INC.**              |
|------------|--------------------------------|
| ** ** | ** **                     |
| ** ** | ** **                     |
|       | By:                            | /s/ Brandon H. LaVerne |
|       | Name: Brandon H. LaVerne       |
|       | Title: Chief Financial Officer |
|       |                           |
|       |                           |
| ** ** | **EXECUTIVE**                  |
| ** ** | ** **                     |
| ** ** | ** **                     |
|       | By:                            | /s/ Frank F. Khulusi |
|       | Frank F. Khulusi               |

 

 

Signature Pageto Second Amendment to Employment Agreement

 

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