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EXHIBIT 10.1
SEPARATION AND CONSULTING AGREEMENT
This Separation and Consulting Agreement (the "Agreement") is entered into
between XXX X. XXXXX ("Xxxxx") and VANSTAR CORPORATION, a Delaware corporation
("Vanstar"), to set forth the terms of Xxxxx'x separation from employment with
Vanstar, together with certain other matters relating thereto.
In consideration of the mutual promises, covenants and agreements set forth
below, the adequacy and sufficiency of which are hereby acknowledged, Xxxxx and
Vanstar agree as follows:
1. TERMINATION OF EMPLOYMENT. Xxxxx will cease his current employment
with Vanstar for all purposes effective on the Employment Change Date (as
hereafter defined) and shall commence, at such time, the performance of the
consulting services contemplated in Paragraph 2 below. On or before the
Employment Change Date, Xxxxx will submit to Vanstar the attached Exhibit A
letter of resignation evidencing Xxxxx'x resignation as President of Vanstar and
as an officer and/or director of all subsidiaries and affiliates of Vanstar.
Xxxxx will continue as a member of the Board of Directors of Vanstar for the
remainder of his current term. The Employment Change Date shall mean August 31,
1998.
2. OBLIGATION OF THE PARTIES. In connection with Xxxxx'x resignation as
an employee of Vanstar, Vanstar and Xxxxx have agreed as follows:
(a) On the Employment Change Date, Vanstar shall pay to Xxxxx
$737,498. Vanstar shall pay Xxxxx an additional $737,498 in four equal
installments of $184,374.50 on each of November 1, 1998, February 1, 1999,
May 1, 1999 and August 1, 1999; provided, upon the occurrence of a Change
of Control of Vanstar, any unpaid portion of such amount shall be
immediately paid to Xxxxx.
(b) Xxxxx shall be retained as a consultant by Vanstar for a period
beginning on the Employment Change Date and terminating on the earlier to
occur of (x) a Change of Control of Vanstar (as hereafter defined) and (y)
the first anniversary of the Employment Change Date, as such term may be
extended by the mutual written agreement of Xxxxx and Vanstar (the
"Consulting Period"). During the Consulting Period, Xxxxx will provide such
consulting, advisory and related services (the "Consulting Services") as
may be reasonably requested by the Chief Executive Officer of Vanstar. The
actual hours and days to be expended by Xxxxx in the performance of the
Consulting Services shall be mutually agreed to by the parties. In
rendering the Consulting Services, Xxxxx shall be an independent contractor
and not an employee of the Company or any subsidiary or affiliate of the
Company and, as such, Xxxxx shall not be nor hold himself out as an
officer, partner, employee, or agent of the Company or any of its
subsidiaries or affiliates.
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(c) During the Consulting Period, Xxxxx shall be furnished with an
office at Vanstar's New York, New York location (including use of Vanstar's
customary administrative support associated therewith, such as facsimile
machines, voice mail and e-mail usage), together with such reasonable
secretarial support as may be appropriate to permit Xxxxx to perform the
Consulting Services. Vanstar shall also pay all reasonable costs of
relocation of Xxxxx to the greater New York area consistent with Vanstar's
current Relocation Policy, including Vanstar HR Policy 415 which provides
reimbursement on an after tax basis for all such costs of relocation.
(d) All of Xxxxx'x outstanding options to purchase shares of the
common stock (the "Options") of Vanstar shall vest in accordance with and
shall otherwise continue to be subject to the terms and conditions
contained in the applicable stock option agreements (including, without
limitation, a requirement that such options be exercised on or before the
90th day following the expiration of the Consulting Period); provided, in
the event Xxxxx complies with the terms of this Agreement during the
Consulting Period, Vanstar hereby covenants and agrees to cause any Options
which remain unvested in accordance with their terms as of the last day of
the Consulting Period to become fully vested as of the last day of the
Consulting Period.
(e) Reference is hereby made to that certain Executive Involuntary
Severance Agreement dated May 26, 1998 between Vanstar and Xxxxx (the
"Prior Severance Agreement"). In the event of the occurrence of a Change of
Control of Vanstar (as such term is defined in the Prior Severance
Agreement), or in the event that a transaction is deemed to be a "Change of
Control" under the terms of Executive Involuntary Severance Agreements for
other officers of Vanstar, on or prior to the last day of the Consulting
Period, Vanstar shall pay to Xxxxx, in addition to payment specified in
Section 2(a) and (b) above, the sum of $737,438, within two (2) business
days of the Change of Control (the "Change of Control Payment").
3. TAXES. Except as hereafter provided, Xxxxx agrees that if any taxing
authority determines taxes, penalties or interest to be due or owing with
respect to any monies, compensation or benefits payable to or received by Xxxxx
hereunder, Xxxxx shall be solely responsible for and shall timely remit the
payment of all such taxes, penalties and interest or shall reimburse Vanstar
promptly upon demand, for any such taxes, penalties or interest for which it may
become liable. Notwithstanding the foregoing, in the event that Vanstar makes a
Change of Control Payment to Xxxxx, then the provisions of Section 6 of the
Prior Severance Agreement (Obligation to Reimburse for Taxes) shall apply to all
payments made to Xxxxx pursuant to the terms of this Agreement.
4. CONFIDENTIAL TERMS. Xxxxx acknowledges that in the course of his
employment with Vanstar he has acquired, and that during the Consulting Period
Xxxxx may acquire, trade secrets and other confidential and proprietary
information of Vanstar, its subsidiaries or affiliates.
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Xxxxx further agrees that the terms of this Agreement shall be treated as
confidential. Xxxxx covenants and agrees that he will retain all such trade
secrets, confidential and proprietary information concerning the foregoing in
trust for the sole benefit of Vanstar and that he will not disclose,
disseminate, publicize, or cause or permit to be disclosed, disseminated, or
publicized, any of such trade secrets, confidential and proprietary information
to any person, corporation, association, governmental agency, or any other
entity, other than his professional outplacement counselor, legal counsel and
tax advisor under circumstances where such persons have a need to know, except:
(a) to the extent necessary to report income to appropriate tax
authorities;
(b) in response to an order or subpoena of a court of competent
jurisdiction; or
(c) to the extent any such information shall become publicly
available or known otherwise than as a result of any breach of this
Agreement;
(d) in response to any subpoena issued by a state or federal
governmental agency;
provided, however, that notice of receipt of any such order or subpoena shall be
immediately communicated to Vanstar so that Vanstar may have an opportunity to
intervene and assert its rights with respect to nondisclosure prior to Xxxxx'x
response to such order or subpoena. Vanstar may make disclosure of this
Agreement as required by law, including, without limitation, disclosure required
by applicable securities laws.
5. COVENANT NOT TO COMPETE; NONSOLICITATION COVENANT.
(a) Xxxxx agrees that for a period of one (1) year from the date
hereof, he will not, without the prior written consent of Vanstar, which
consent may be withheld in Vanstar's sole discretion, engage, whether for
compensation or not, as an individual proprietor, owner, partner,
stockholder, officer, director, employee, investor, sales representative or
in any other capacity whatsoever in any activity or endeavor that competes
in the United States of America directly or indirectly with the business of
Vanstar or its subsidiaries or affiliates.
(b) Xxxxx further agrees that until the earlier to occur of (x) the
second anniversary of the Employment Change Date and (y) the first
anniversary following any Change of Control of Vanstar, Xxxxx will not,
directly or indirectly (x) solicit, take away, hire, employ or endeavor to
employ any person who is an employee of Vanstar or any of its subsidiaries
or affiliates, and shall further refrain from providing, directly or
indirectly, assistance to any third party who seeks to solicit, take away,
hire, employ or endeavor to employ any such person and (y) solicit or
conduct business with any person or entity that is a Material Client of
Vanstar. The term Material Client of Vanstar means any person or entity to
whom Vanstar or any of its subsidiaries or affiliates made sales of any
products or services in excess of $1,000,000 during the one (1) year period
preceding the Employment Change Date.
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(c) Xxxxx'x covenants contained in this Section 5 will be construed
as independent of any other provision in this Agreement; and the existence
of any claim or cause of action by Xxxxx against Vanstar will not
constitute a defense to the enforcement by Vanstar of said covenants. Xxxxx
understands that the covenants contained in this Section are essential
elements of the transaction contemplated by this Agreement and, but for
Xxxxx'x agreement to this Section, Vanstar would not have agreed to provide
Xxxxx payments described herein. Xxxxx has been advised to consult with
counsel in order to be informed in all respects concerning the
reasonableness and propriety of this Section and its provisions wit
specific regard to the nature of the business conducted by Vanstar. Xxxxx
further agrees and acknowledges that this Section (i) is reasonable as to
length of time, scope and geographic area for purposes of protecting the
commercial advantages enjoyed by Vanstar, (ii) will not interfere with
Xxxxx'x ability to pursue a proper livelihood, (iii) does not impose a
greater restraint than is necessary to protect the goodwill or business
interests of Vanstar and (iv) is reasonable in relation to the
consideration derived by Xxxxx under this Agreement. Xxxxx further agrees
that notwithstanding any other alleged breach of any provision in this
Agreement, the provisions of this Section will be valid and binding upon
Xxxxx. Vanstar and Xxxxx also agree that any applicable court shall have
jurisdiction to modify any provision of this covenant not to compete in
accordance with the court's ruling as to reasonableness or scope of
application and that this Section shall remain enforceable as modified or
amended in the jurisdiction where this Section is so modified or amended.
(d) Xxxxx hereby acknowledges his duty, both by contract and common
law, not to interfere with contractual relationships and not to use
proprietary and confidential information concerning customers or clients of
Vanstar for the advantage of any person or entity other than Vanstar.
(e) Vanstar may assign Xxxxx'x covenants contained in this Section 5
to any person or entity acquiring a material portion of the business and
assets of Vanstar. Within thirty (30) days of any such assignment, Vanstar
shall notify Xxxxx of such assignment, together with the name and address
of the assignee.
6. CONTINUATION OF BENEFITS. Vanstar shall maintain in full force and
effect, for the continued benefit of Xxxxx and Xxxxx'x dependents, for two (2)
years after the Employment Change Date, insured and self-insured employee
welfare benefit plans in which Xxxxx was entitled to participate immediately
prior to the Employment Change Date, provided that Xxxxx'x continued
participation (or that of Xxxxx'x dependents) is possible under the general
terms and provisions of such plan (and any applicable funding mechanism) and
that Xxxxx continues to pay an amount equal to Xxxxx'x regular contribution (as
if Xxxxx remained an employee of Vanstar) under such plan for such
participation. In the event that Xxxxx'x participation in any such plans is
barred, Vanstar, at its sole expense, shall arrange to have issued for the
benefit of Xxxxx and Xxxxx'x dependents, individual policies of insurance
providing benefits substantially similar on an after-tax basis to those that
Xxxxx otherwise would have been entitled to receive under such plans pursuant to
this Section 6 and Xxxxx shall pay to Vanstar the amount or amounts that would
have been required as a contribution from Xxxxx, or, if such insurance is not
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available at a reasonable cost to Xxxxx, Xxxxxxx shall otherwise provide
substantially equivalent benefits to Xxxxx (on an after-tax basis).
7. TERMINATION OF PRIOR SEVERANCE AGREEMENT. Except for the incorporation
by reference of the definition of Change of Control and the terms of the section
entitled Obligation to Reimburse for Taxes set forth in the Prior Separation
Agreement as specified in Section 2(e) and Section 3 above, the Prior Separation
Agreement is hereby terminated and of no further force or effect, without any
obligation of Vanstar to pay Xxxxx any sums due and owing thereunder; it being
specifically acknowledged and agreed by Xxxxx that the terms of this Agreement
supersede all payment obligations due and owing to Xxxxx by Vanstar under the
terms of the Prior Severance Agreement.
8. RETURN OF INFORMATION/PROPERTY. Except for the laptop computer used by
Xxxxx in performing his employment duties prior to the Employment Change Date
(which, exclusive of any confidential and proprietary information of Vanstar
included therein, shall be considered the property of Xxxxx), Xxxxx agrees that
he will return to Vanstar, not later than 30 days from date of his execution of
this Agreement, all copies of all documents, computer discs, tapes or other
tangible media of any sort which he has in his possession or under his custody
or control, whether developed by him or others, that are the property of Vanstar
or that contain the confidential or proprietary information of Vanstar or that
relate in any manner to his duties at Vanstar or his positions with Vanstar
other than media containing information otherwise available to the public, that
relate to Xxxxx'x contractual rights arising from his employment or that Xxxxx
must retain in order to provide the Consulting Services. Any media retained by
Xxxxx as being necessary to the performance of the Consulting Services together
with all copies thereof and any excerpts therefrom or analyses thereof, in
whatever media maintained, shall be returned to the Company within thirty (30)
days following the termination of the Consulting Period.
9. COMMUNICATIONS. Xxxxx agrees not to disparage, or make any disparaging
remark or send any disparaging communications concerning Vanstar, or any of its
affiliates, or with respect to any existing or future products, the business,
the financial condition or the prospects of Vanstar or any of its affiliates, or
with respect to any officer, director or employee of Vanstar or any of its
affiliates unless Xxxxx is required to make such disclosure pursuant to
applicable law. Vanstar agrees not to disparage, or make any disparaging remark
or send any disparaging communications concerning Xxxxx or Xxxxx'x services on
behalf of Vanstar or Xxxxx'x termination of employment with Vanstar unless
Vanstar is required to make such disclosure pursuant to applicable law. Xxxxx
and Vanstar shall consult with each other in good faith before issuing any press
release or otherwise making any public statement with respect to this Agreement,
and neither party shall issue any such press release or make any such public
statement prior to such consultation, except as may be required by law or by
obligations pursuant to any listing agreement with any national securities
exchange or by the National Association of Securities Dealers, Inc.
10. RELEASE OF VANSTAR. In consideration of the promises and actions of
Vanstar in this Agreement, Xxxxx hereby releases and forever discharges Vanstar
and all subsidiaries,
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predecessors, related and affiliated entities and all directors, officers,
employees, representatives and agents thereof (in all capacities, including
individually) from any and all claims, demands, actions or causes of action that
he may have had or now has whether known or unknown, contingent, or otherwise,
whether at law or in equity, including, without limitation, any and all claims
relating to his employment with and separation from Vanstar (except the benefits
to be provided under the terms of this Agreement); any claim of discrimination
based upon his race, color, creed, sex, age, national origin, disability or
handicap, if any; any claim that Vanstar has violated any federal, state or
local statute, regulation or ordinance with respect to his employment or the
separation thereof, including, without limitation, Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1991, the Americans with Disability Act,
and the Texas Commission on Human Rights Act; any claim that Vanstar has
wrongfully terminated his employment or breached any oral, written or implied
employment contract; any claim that Vanstar has violated Xxxxx'x rights if any,
under the United States or any state constitution or the public policies of any
state; and any claim of injury or tortious conduct by Vanstar including, without
limitation, negligent or fraudulent misrepresentation, negligent or intentional
infliction of emotional distress, invasion of privacy, libel, slander or
defamation. Notwithstanding the foregoing, Xxxxx does not release and discharge
Vanstar from any obligations of Vanstar to indemnify Xxxxx as an officer and/or
director of Vanstar and its subsidiaries or affiliates for all periods of time
in which Xxxxx serves or has served in such capacities pursuant to the terms of
Vanstar's certificate of incorporation, by-laws and any other written
contractual agreements between Vanstar and Xxxxx providing such indemnification
(collectively, the "Indemnification Provisions"). Vanstar specifically
acknowledges and agrees that the Indemnification Provisions shall remain in full
force and effect following the Employment Change Date pursuant to their
applicable terms.
11. RELEASE OF XXXXX. Vanstar hereby releases Xxxxx from any and all
claims or causes of action it has against Xxxxx for his actions or failure to
act while employed in his capacity as an employee or officer of Vanstar.
12. COVENANT NOT TO XXX. By signing this Agreement and accepting the
benefits hereunder, Xxxxx acknowledges that as part of this Agreement he is
agreeing that he will not pursue any individual claim against Vanstar, its
affiliate corporations and subsidiaries, or any of their respective officers,
directors, shareholders, employees or agents, in any federal, state or municipal
court or before any federal, state or municipal agency, including, for example,
the Equal Employment Opportunity Commission or the Department of Labor.
13. COOPERATION. Xxxxx agrees to cooperate fully with Vanstar as
reasonably directed by Vanstar by responding to questions, attending meetings,
depositions, administrative proceedings and court hearings, executing documents,
and cooperating with Vanstar and its accountants and legal counsel with respect
to business issues and/or claims and litigation of which he has personal or
corporate knowledge. Xxxxx further agrees to maintain in strict confidence any
information with respect to which he has knowledge regarding current and/or
future claims, administrative proceedings and litigation. Xxxxx agrees to
communicate with any party(ies), their legal counsel or other person, firm or
entity adverse to Vanstar in any such claims, administrative proceedings or
litigation solely through Vanstar designated legal counsel. Xxxxx shall be
entitled to reimbursement for reasonable out-of-pocket expenses for travel,
meals
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and lodging in connection with any cooperation services provided at the
Company's request pursuant to this Paragraph..
14. ENFORCEMENT OF COVENANTS. The parties agree that violation of any
obligation imposed by this Agreement shall cause irreparable damage, and, if so,
that the injured party shall be entitled to obtain an injunction or decree of
specific performance from any court of competent jurisdiction restraining the
other from such violation, and directing performance according to the terms of
this Agreement. Such remedies shall be cumulative and non-exclusive of any other
remedies either party may have, including, but not limited to, the recovery of
actual damages. The parties further agree that the injured party will be
entitled to indemnification in full for all costs and expenses, including
reasonable attorneys' fees, which may be incurred by any such party as a result
of the breach of any term, condition, or covenant of this Agreement by the
other.
15. COMPLETE AGREEMENT; AMENDMENT. Xxxxx further acknowledges and agrees
that no other promise or agreement of any kind has been made to him by Vanstar
to cause him to sign this Agreement and that the only consideration for Xxxxx'x
signing this Agreement is set forth completely and expressly in this document.
No modification or amendment to any of the terms, conditions or provisions
hereof may be enforced unless evidenced by a subsequent written agreement
executed by each of the parties hereto or their duly authorized representatives.
16. KNOWING AND VOLUNTARY. Xxxxx acknowledges that he has carefully read
this Agreement, understands its meaning and intent, has had the opportunity to
discuss this Agreement with legal counsel and other advisors in its entirety to
the extent necessary to evaluate the benefits and the terms of this Agreement
and that he has signed this Agreement freely and voluntarily and without undue
influence.
17. ENFORCEABILITY. If any term or clause of this Agreement, not being the
essence of this Agreement, shall be held to be invalid, illegal or
unenforceable, such provision or clause shall not affect the validity, legality
or enforceability of the reminder of this Agreement, it being understood and
agreed that (a) such invalid, illegal or unenforceable provision shall be deemed
to be modified to the extent necessary to render it valid, legal and enforceable
without altering the intent thereof or (b) if such modification is not possible,
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
18. COUNTERPARTS; FACSIMILE COPIES. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. The parties hereby
agree that a facsimile copy of this Agreement will be deemed an original for all
purposes, and each hereby waives the necessity of providing the original copy of
this Agreement to bind the other.
19. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and may be enforced by the parties to this Agreement their respective heirs,
executors, administrators, legatees, successors and assigns.
20. WAIVER. The waiver by any party hereto of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach by any party, nor
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shall any waiver operate or be construed as a rescission of this Agreement. No
breach of this Agreement shall permit the non-breaching party to repudiate this
Agreement or refuse or fail to perform any obligation required hereunder.
21. NOTICES. All notices to the parties hereunder shall be addressed to
the address printed on the signature page of this Agreement, unless one party
has otherwise notified the other of a change in address, in which event notice
shall be given to such party at the changed address. Any notice given under this
Agreement shall be written and shall be deemed to have been sufficiently given
or made if (a) delivered personally (b) sent by reputable next-day or overnight
mail or delivery, proof of delivery requested, or (c) sent by facsimile (receipt
confirmed) to the facsimile number set forth on the signature page hereto.
22. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia, notwithstanding any conflict
of laws rules to the contrary.
23. HEADINGS. Headings contained in this Agreement are for reference
purposes only and shall not effect in any way the meaning or interpretation of
this Agreement.
[Signature page follows]
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August 31, 1998
XXX X. XXXXX /s/ Xxx Xxxxx
Address:
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Facsimile Number:
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VANSTAR CORPORATION
August 31, 1998 By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, Chairman
Address:
0000 Xxxxxxxxx Xxxx
Building 500, Ste. 1200
Xxxxxxx, Xxxxxxx 00000
Attn: General Counsel
Facsimile Number: 770/522-4587
