Exhibit 10.37


 


AMENDMENT TO EMPLOYMENT AGREEMENT DATED
DECEMBER 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 that
certain Employment Agreement, effective January 1, 1995, setting forth the
terms and conditions of Executive’s employment with the Company (the “Employment
Agreement”); and


 


WHEREAS, the Company and Executive previously agreed to amend the
Employment Agreement, effective as of December 28, 2005, to address
certain 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 the
Employment Agreement as provided herein solely to conform its terms to the
applicable provisions of Code Section 409A and its final Treasury
regulations.


 


AGREEMENT


 


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


 


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


 


15.         Code Section 409A
Provisions.


 


(a)           Compliance with Section 409A.  This Agreement is intended to comply with
Code Section 409A (as amplified by any Internal Revenue Service or U.S.
Treasury Department guidance), and shall be construed and interpreted in
accordance with such intent.  Executive
and the Company acknowledge that Executive and the Company intend that the
compensation arrangements set forth in this Agreement are in compliance with
Code Section 409A, and Executive and the Company agree to cooperate with
one another, to the extent reasonably requested by the other party, to
restructure any compensation set forth in this Agreement in a manner, if
possible and without any increase in cost to the Company, such that no earlier
and/or additional taxes to Executive or the Company will arise under Code Section 409A.  Any provision of this Agreement that would
cause the payment of any benefit to fail to satisfy Code Section 409A
shall 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 any
regulations or rulings thereunder).  The
Company makes no representation that this Agreement will comply with Code Section 409A
and makes no undertaking to prevent Code Section 409A from applying to
this 


 

















 


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


 


(b)           Delay Due to Code Section 409A.  Notwithstanding any other provision of this
Agreement to the contrary, the Company shall delay the payment of any benefits
payable under this Agreement as required and to the extent necessary to comply
with Section 409A(a)(2)(B)(i) of the Code (relating to payments made
to certain “specified employees” of certain publicly-traded companies) and in
such event, any such amount to which Executive would otherwise be entitled
during the six (6) month period immediately following his termination of
employment shall instead be accumulated
through and paid or provided, together with interest at the long-term
applicable federal rate (annual compounding) under Section 1274(d) of
the Code in effect on his termination of employment, on the first
business day following the expiration of such six (6) month period, or if
earlier, the date of his death; provided, however, that any amounts due to the
Executive as a result of his termination of employment that can be paid in a
manner consistent with Section 409A(a)(2)(B)(i) of the Code during
such six (6) month period shall be paid to him as otherwise provided
herein to the maximum extent permitted by Section 409A of the Code, its
related Treasury regulations (including, without limitation, Section 1.409A-1(b)(9),
relating to separation pay arrangements), and any official administrative
guidance relating to Section 409A of the Code.


 


2.                                       Except
to the extent specifically modified herein, the Employment Agreement remains in
full force and effect.


 


3.                                       This
Amendment 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 party hereto and delivered to the other
party hereto, it being understood the parties need not sign the same
counterpart.


 


4.                                       Capitalized
terms not otherwise defined herein shall have the meanings ascribed to them in
the Employment Agreement.


 


[Signature page follows]


 

















 


IN WITNESS WHEREOF, the parties have executed
this 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 Page
to Second Amendment to Employment Agreement