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EXHIBIT 10.44
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT is entered into between Xxxxxxx X. Xxxxxx
("Associate") and Xxxxxx Micro Inc., a Delaware corporation ("Ingram"), in
recognition of Associate's service to Xxxxxx and in order to induce Associate to
continue to provide limited services to Ingram after his resignation. In
consideration of the mutual promises and agreements contained in this document,
intending to be legally bound, Associate and Ingram contract and agree as
follows:
1. Resignation. Associate has informed Ingram that he intends to resign as an
officer and employee of Ingram on July 16, 1999 (the "Separation Date").
2. Salary Continuation. Subject to Paragraph 11 hereof, as compensation for all
sums and benefits owed to and/or earned by Associate based on his employment
with Ingram and any and all of its Affiliates, and in consideration of
Associate's continuing obligations under this Agreement, Ingram will
continue to pay Associate his current base salary for a period of 20 weeks
after the Separation Date (the "Salary Continuation Period"). Such amount
shall be payable through Xxxxxx'x normal payroll procedures, and will be
subject to applicable withholding requirements.
3. COBRA Coverage. Associate acknowledges that, effective as of the Separation
Date, he will cease to be qualified to participate in the employee benefit
plans to which he was entitled as an associate or employee of Ingram.
Associate will, however, have the rights of a terminated employee to convert
and/or continue certain benefit coverages as provided in the respective
benefit plans, including COBRA continuation rights for medical and dental
coverages. Ingram will provide under separate cover further information to
Associate regarding COBRA continuation coverage and other conversion and/or
continuation rights. Notwithstanding the foregoing, but subject to Paragraph
11 hereof, during the Salary Continuation Period, Ingram will pay directly
or reimburse Associate for the amount by which the premiums for COBRA
continuation coverage exceeds the cost for the equivalent coverage which
Ingram charges its employees at that time.
4. Key Employee Stock Purchase Plan. Subject to Paragraph 11 hereof and
notwithstanding the provisions of Section 6(b)(i) of the Acquisition
Agreement dated June 27, 1996 between Ingram and Associate relating to
Associate's purchase of 60,000 shares of Ingram Class B Common Stock under
the Ingram Key Employee Stock Purchase Plan (the "Acquisition Agreement"),
Ingram shall not exercise its right to repurchase the Shares (as such term
is defined in the Acquisition Agreement) for so long as Associate performs
his obligations under this Agreement and will be permitted to exercise its
repurchase rights only with respect to the Restricted Shares (as such term
is defined in the Acquisition Agreement), owned by Associate, if any, as of
the date of any failure by Associate to perform his obligations. Except as
modified hereby, the Acquisition Agreement shall continue in full force and
effect in accordance with its terms.
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5. Non-disclosure. Associate acknowledges his obligation not to disclose,
during or after employment, any trade secrets or proprietary and/or
confidential data or records of Ingram or its Affiliates or to utilize any
such information for private profit. Each of the parties hereto agrees that
such party will not release, publish, announce or otherwise make available
to the public in any manner whatsoever any information or announcement
regarding this Agreement or the transactions contemplated hereby without the
prior written consent of the other party hereto, except as required by law
or legal process, including, in the case of Ingram, filings with the
Securities and Exchange Commission. Associate agrees not to communicate
with, including responding to questions or inquiries presented by, the
media, employees or investors of Ingram, its Affiliates or any third party
relating to the terms of this Agreement, without first obtaining the prior
written consent of Ingram. Notwithstanding the foregoing, Associate may make
disclosure to his spouse, attorneys and financial advisors of the existence
and terms of this Agreement provided that they agree to be bound by the
provisions of this Paragraph 5. Each party agrees not to make statements or
take any action to disparage, dissipate or negatively affect the reputation
of the other with employees, customers, suppliers, competitors, vendors,
stockholders or lenders of Ingram, its Affiliates or any third party.
6. Return of Property. Associate acknowledges his obligation to promptly return
to Ingram all property of Ingram and its Affiliates in his possession,
including without limitation all keys, credit cards, computers, office
equipment, documents, files and instruction manuals, on or before the
Separation Date, or earlier if Ingram so requests it.
7. Associate's Obligations. In consideration of the benefits and stock
ownership rights to be received by Associate hereunder, Associate and Ingram
have further agreed as follows:
a. Associate will not directly or indirectly make known to any person,
firm, corporation, partnership or other entity any list, listing or
other compilation, whether prepared or maintained by Associate, Ingram
or any of Xxxxxx'x Affiliates, which contains information that is
confidential to Ingram or any of its Affiliates about their customers
("Ingram Customers"), including but not limited to names and addresses,
or, at any time on or before April 1, 2000, call on or solicit, or
attempt to call on or solicit, in either case with the intent to divert
business or potential business from Ingram or any of its Affiliates, any
of the Ingram Customers with whom he has become acquainted during his
employment with Ingram or any of its Affiliates, either for his own
benefit or for the benefit of any other person, firm, corporation,
partnership or other entity.
b. Through April 1, 2000, Associate will not, and will not permit any
person, firm, corporation, partnership or other entity of which he is an
officer or control person to, (i) knowingly solicit, entice, or persuade
any individual who is an associate of Ingram or any of its Affiliates at
any time during the period from the date of this Agreement through April
1, 2000 (each such individual, an "Ingram Associate") to leave the
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services of Ingram or any of its Associates for any reason, or (ii)
solicit for employment, hire, or engage any present or future Ingram
Associate as an employee, independent contractor or consultant.
c. Associate acknowledges that he has unique knowledge of Ingram and its
Affiliates and unique knowledge of the computer and software sales and
distribution industry. Based on his unique status, he agrees that
through April 1, 2000, he will not be employed or hired as an employee
or consultant by, or otherwise directly or indirectly provide services
for, any of Tech Data, Merisel, Inacom, Pinacor, Ameriquest, Gates
Arrow, CHS Electronics, Trilogy, PC Order, Marshall, Hallmark, Xxxxxxxx
Avnet, Daisytek, Azerti, Azlan, Northamber, Tech Pacific, Synnex, and/or
GE Capital Information Technology Solutions-North America, Inc., and any
subsidiary or affiliate of these entities in a business or line of
business conducted by any such entity which competes with any line of
business conducted by Ingram or any of its Affiliates. Notwithstanding
the foregoing, should Associate be employed by an entity that is not a
subsidiary or affiliate of one of these entities at the time he
commences such employment, but subsequently becomes a subsidiary or
affiliate of, or becomes merged into, one of these entities on or before
April 1, 2000, he shall not be deemed to be in breach of the provisions
of this Paragraph 7.c due to such employment provided that at the time
he commenced his employment there had been no public announcement of an
agreement pursuant to which his employer would become a subsidiary or
affiliate of, or merged into, one of these entities or discussions that
could lead to such an agreement and Associate had no knowledge of the
existence of any such agreement or discussions. Associate further agrees
that he will not own any interest in, provide financing to, be connected
with, or be a principal, partner or agent of any such competitive
distributor or aggregator; provided, however, he may own less than 1% of
the outstanding shares of any such entity whose shares are traded in the
public market.
d. Subject to Associate's other commitments, upon request of Ingram or any
of its Affiliates from the Separation Date through April 1, 2000,
Associate will make himself available to provide reasonable assistance
to Ingram or any such Affiliate up to a maximum of 15 hours per month
and will use reasonable efforts to arrange his commitments so as to make
himself available for such assistance on a basis which is consistent
with the requests of Ingram or any of its Affiliates. Such assistance
may include telephone conversations, correspondence, attendance and
participation in meetings, transfer of knowledge or information
regarding operational or other issues, litigation preparation and
trials. During such period, Ingram shall reimburse Associate for any
out-of-pocket expenses he may incur in connection with such assistance
in accordance with Xxxxxx'x reimbursement policies. After April 1, 2000,
Associate shall continue to provide such assistance as requested by
Ingram and, in such event, shall be compensated at a rate per day
(minimum charge, one half day) commensurate with the daily rate he was
earning based on his current base salary immediately prior to the
Separation Date.
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The running of the periods prescribed in this Paragraph shall be tolled
and suspended by the length of time Associate works in circumstances
that a court of competent jurisdiction subsequently finds to violate
the terms of this partial restraint.
8. Rights in Event of Breach. In the event of Associate's breach of this
Agreement (excluding breach of this Agreement due to death or total
disability and provided that in the event of a breach of Paragraph 7.c or
7.d, such breach shall have continued for 15 days after the sooner of
Associate's discovery thereof or receipt of notice from Ingram thereof), in
addition to all other rights and remedies to which Ingram may be entitled by
law or in equity, Ingram shall have no obligation to make any further
payments hereunder and may purchase any remaining Restricted Shares under
the Acquisition Agreement. If Ingram exercises such right, Associate's
obligations under Paragraph 7.c and 7.d will terminate.
9. Confidential Information. This Agreement will in no way void or diminish
Associate's obligation to protect and keep confidential any and all
proprietary and/or confidential information of Ingram and its Affiliates
which Associate may have or acquire in the future.
10. Injunctive Relief. Irreparable harm will be presumed if Associate breaches
any covenant in this Agreement and damages may be very difficult to
ascertain. In light of these facts, Associate agrees that any court of
competent jurisdiction should immediately enjoin any breach of this
Agreement upon the request of Ingram, and Associate specifically releases
Ingram from the requirement of posting any bond in connection with temporary
or interlocutory injunctive relief, to the extent permitted by law. The
granting of injunctive relief by any court shall not limit Xxxxxx'x right to
recover any amounts previously paid to Associate under this Agreement or any
damages incurred by it due to a breach of this Agreement by Associate.
11 Release by Associate. As a condition to Xxxxxx'x obligations pursuant to
Paragraphs 2, 3 and 4, Associate shall deliver an executed release and
waiver as of the Separation Date in the form of Exhibit A hereto.
12. Sole Remedy. Associate agrees that, in the event Ingram breaches any
provision of this Agreement, his sole remedy for such breach shall be
enforcement of the terms of this Agreement or, in the case of a breach of
Paragraph 4 hereof, at Associate's election, recovery of any provable
damages as a result of such breach.
13. Attorney Fees. In the event that either party hereto files suit to enforce
or interpret the provisions of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees and costs incurred therewith.
14. Definition of Affiliate. An "Affiliate" of Ingram for purposes of this
Agreement shall include any corporation or business entity in which Ingram
owns, directly or indirectly, at least 15% of the outstanding equity
interest.
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15. Enforceability. If any provision of this Agreement shall be held invalid or
unenforceable, the remainder of this Agreement shall nevertheless remain in
full force and effect. If any provision is held invalid or unenforceable
with respect to a particular circumstance, it shall nevertheless remain in
full force and effect in all other circumstances.
16. Notices. Any notices, requests, demands and other communications required or
permitted to be given or made hereunder shall be in writing and shall be
deemed to have been duly given (a) on the date delivered if personally
delivered, (b) on the third day after deposit in the U.S. mail or with a
reputable air courier service, properly addressed with postage or charges
prepaid, or (c) on the date transmitted by telefax if the sender receives
electronic confirmation of receipt of such telefax, to the address or
telefax number of Ingram or Associate, as the case may be, set forth on the
signature page of this Agreement.
17. Entire Agreement. This instrument contains and accurately recites the
complete and entire agreement among the parties, and it expressly
terminates, cancels, and supersedes any and all prior agreements or
understandings, if any, among the parties, including without limitation the
Separation Agreement executed by Ingram effective May 1, 1998 and by
Associate effective May 18, 1998, as subsequently amended. This Agreement
may not be modified except in writing signed by the parties.
18. Governing Law. This Agreement shall be governed by California law, without
regard to the choice or conflict of law provisions thereof.
19. Paragraph Titles. The paragraph titles used in this Agreement are for
convenience only and do not define or limit the contents of any paragraph.
20. Successors and Assigns. This Agreement shall be binding upon, and shall
inure to the benefit of, the heirs of Associate and the successors and
assigns of Ingram.
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Executed and delivered to Associate by Ingram on June 17, 1999 and executed
by Associate on the date set out below.
Notice Information: "Ingram"
Xxxxxx Micro Inc. XXXXXX MICRO INC.
0000 X. Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention: Xxxxx XxXxxxx
Telephone: (000) 000-0000, ext. 22500
Facsimile: (000) 000-0000 By: /s/ XXXXX X. XXXXX
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Title: Chairman and Chief
Executive Officer
"Associate"
6/23/99 /s/ XXXXXXX X. XXXXXX
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Date Xxxxxxx X. Xxxxxx
Address:_________________________
_________________________________
_________________________________
Facsimile:_______________________
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