Exhibit 10.6
EMPLOYMENT AGREEMENT 11/17/00
This Employment Agreement (the "Agreement") in entered into as of November 17,
2000 Between INSIGHT DIRECT WORLDWIDE, INC. ("Company"), and Xxxx X. Xxxxxxx
("Executive").
RECITALS
Executive is currently employed by Company in the position of Executive Vice
President. Company is the wholly owned subsidiary of Insight Enterprises, Inc.
(the "Parent"). Company has decided to offer executive an employment agreement,
the terms and provisions of which are set forth below.
NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREED AS FOLLOWS:
1) TERMS OF AGREEMENT
a) Initial Term. Executive shall be employed by Company for the duties set
forth in Section 2 for a two year term, commencing as of 1/01/01 and
ending on 12/31/02 (the "initial Term"), unless sooner terminated in
accordance with the provisions of this Agreement.
b) Renewal Term: Employment period Defined. On each successive day after the
commencement of the Initial Term, without further action on the part of
Company or Executive, this Agreement shall be automatically renewed for a
new 2-year term dated effective and beginning upon each such successive
day (the "Renewal Term"); provided, however, that Company may notify
Executive, or the Executive may notify the Company, at any time, that
there shall be no renewal of this Agreement, and in the event of such
notice, neither party shall be under any obligation to renew or extend
this Agreement. The period of time commencing as of the date hereof and
ending on the effective date of the termination of employment of Executive
under this or any successor Agreement shall be referred to as the
"Employment Period".
2) POSITION AND DUTIES
a) Job Duties. Company does hereby employ, engage and hire Executive as
Executive Vice President, of Company, and Executive does hereby accept and
agree to such employment, engagement, and hiring. Executive's duties and
authority during the Employment Period shall be such executive and
managerial duties as the President and Chief Operating Officer
("President") shall reasonably provide; provided that such duties and
authority shall not be materially different than they are at the date of
this Agreement; further that the authority of Executive shall not be
diminished, and that Executive shall not be demoted. Executive will devote
such time as the President shall reasonably determine; provided that such
devotion of time shall not be materially different from Executive's
devotion of time at the date of this Agreement, reasonable absences
because
of illness, personal and family emergencies excepted. Executive shall be
required to work and travel in various countries in Europe throughout the
term of this agreement.
b) Best Efforts. Executive agrees that at all times during the Employment
Period he will faithfully, and to the best of his ability, experience and
talents, perform the duties that may be required of and from him and
fulfill his responsibilities hereunder pursuant to the express terms
hereof. Executive's ownership of, or participation (including any board
memberships) in, any entity (other than Company or Parent) must be
disclosed to the President; provided, however, that Executive need not
disclose any equity interest held in any public company or any private
company that is not engaged in a competing business as defined in Section
10 of this Agreement when such interest constitutes less than 1% of the
issued and outstanding equity of such public or private company.
3) COMPENSATION
a) Base Salary. Company shall pay Executive a "Base Salary" in consideration
for Executive's services to Company at the rate of $215,000 per annum. The
Base Salary shall be payable as nearly as possible in equal semi-monthly
installments or in such other installments as are customary from time to
time for Company's or Parent's executives. The Base Salary may be adjusted
from time to time in accordance with the procedures established by Company
or Parent for salary adjustments for executives, provided that the Base
Salary shall not be reduced.
b) Incentive and Benefit Plans. Executive will be entitled to participate in
those incentive compensation and benefit plans reserved for the Company's
or Parent's executives, including any stock option plan maintained by
Parent, in accordance with the terms of such compensation and benefits
plans. Executive shall also be permitted to participate in such incentive
compensation plans as adopted by the President from time to time.
Additionally, the Executive shall be entitled to participate in any other
benefit plans sponsored by Company or Parent that employees are eligible
for, including but not limited to, any savings plan, life insurance plan
and health insurance plan available generally to employees of Company or
Parent from time to time, subject to any restrictions specified in, or
amendments made to, such plans.
c) Vacation. The Executive shall be entitled to four (4) weeks vacation
during the calendar year, and such additional vacation time as the
President shall approve, with such vacation to be scheduled and taken in
accordance with the Company's or Parent's standard vacation policies, but
this provision is not intended to interfere with or limit Executive's
discretion to determine the appropriate time to be devoted to his duties
hereunder.
4) BUSINESS EXPENSES
The Company will reimburse Executive for any and all necessary, customary and
usual expenses which are incurred by Executive on behalf of Company, provided
Executive
provides Company with receipts to substantiate the business expense in
accordance with Company's policies or otherwise reasonably justifies the
expense to the Company.
4) DEATH OR DISABILITY
a) Death. This Agreement shall terminate upon Executive's death. Executive's
estate shall be entitled to receive the Base Salary due through the date
of his death and any incentive compensation payable for quarters ended
prior to Executive's death, but no Base Salary or other payment or
benefit will be payable after death except as expressly provided
elsewhere in this Agreement. The determination of any bonuses or
incentive compensation to be payable for quarters ending following
Executive's death will be made in accordance with the provisions of any
incentive compensation program, practice, or policy in which Executive
participates at the time of Executive's death. If there is no written
incentive compensation program, policy, or practice in effect at the time
of Executive's death, Company, in the exercise of its discretion, may
elect to pay to Executive's estate a portion of the incentive
compensation to which Executive would have been entitled (had Executive
not died) for the year in which this Agreement terminated due to
Executive's death.
b) Disability. This Agreement shall also terminate in the event of
Executive's "Disability". For purposes of this Agreement, "Disability"
means the total and complete inability of Executive for a minimum period
of six (6) months to perform the essential duties associated with his
normal position with Company (after any accommodations required by the
Americans with Disabilities Act or applicable state law) due to a
physical or mental injury or illness that occurs while Executive is
actively employed by Company. If this Agreement is terminated due to
Executive's Disability, Executive shall receive the severance
compensation called for by Section 6(c).
5) TERMINATION BY COMPANY
a) Termination for Cause. Company may terminate this Agreement at any time
during the Initial Term or any Renewal Terms for "Cause" upon written
notice to Executive. If Company terminates this Agreement for "Cause",
Executive's Base Salary shall immediately cease, and Executive shall not
be entitled to severance payments, incentive compensation payments or any
other payments or benefits pursuant to this Agreement, except for any
vested rights pursuant to any benefit plans in which Executive
participates and any accrued compensation, vacation pay and similar
items. For purposes of this Agreement, the term "Cause" shall mean the
termination of Executive's employment by Company for one or more of the
following reasons:
(1) The criminal conviction for any felony involving theft or
embezzlement from Company or any affiliate;
(2) The criminal conviction for any felony involving moral turpitude
that reflects adversely upon the standing of Company in the
community;
(3) The criminal conviction for any felony involving fraud committed
against Company, any affiliate or any individual or entity that
provides goods or services to, receives goods or services from or
otherwise deals with Company or any affiliate;
(4) Acts by Executive that constitute repeated and material violations of
this Agreement, any written employment policies of Company or Parent,
or any written directives of Company or Parent. A violation will not
be considered to be "repeated" unless such violation has occurred
more than once and after receipt of written notice from Company of
such violation; or
(5) Failure to fully cooperate in any investigation by the Company or
Parent.
Any termination of Executive when there is not Cause is "without Cause."
If Company terminates Executive for Cause, and it is later determined
that Cause did not exist, Company will pay Executive the amount he would
have received under this Agreement if his employment had been terminated
by Company without Cause, plus interest at the Prime Rate published by
the Wall Street Journal on the date of termination. Such payments and
interest shall be calculated as of the effective date of the initial
termination. Payment shall be made within fifteen (15) days after such
later determination is made.
b) Termination Without Cause. Company also may terminate this Agreement at any
time during the Initial Term or Renewal Terms without Cause. If Company
terminates this Agreement pursuant to this paragraph, Company shall provide
Executive with ninety (90) days advance written notice. This Agreement
shall continue during such notice period. The termination of this Agreement
shall be effective on the ninetieth (90th) day (the "Date") following the
day on which the notice is given. Company may, at its discretion, place
Executive on a paid administrative leave during all or any part of said
notice period. During the administrative leave, Company may bar Executive's
access to Company's offices or facilities if reasonably necessary to the
smooth operation of the Company, or may provide Executive with access
subject to such reasonable terms and conditions as Company chooses to
impose.
c) Severance Compensation. Should Executive's employment by Company be
terminated without Cause, Executive shall receive as a lump sum immediately
upon such termination the total amount of his Base Salary for the remainder
of the Initial Term or current Renewal Term, as applicable, determined as
if the employment of the Executive had not been terminated prior to the
end of such term and as if the Executive had continued to perform all of
his obligations under this Agreement and as an employee and officer of the
Company. Executive shall have no duty to mitigate damages in order to
receive the Compensation described by this Subsection, and the Compensation
shall not be reduced or offset by other income, payments or profits
received by Executive from any source.
d) Incentive Compensation. Executive shall not be entitled to receive any
incentive compensation payments for the fiscal quarter in which his
employment is terminated for Cause or any later quarters. If Executive is
terminated without Cause, Executive shall
receive as a lump sum immediately upon such termination the total amount
of incentive compensation payments determined in accordance with the
provisions of any incentive compensation program, practice, or policy in
which Executive participates on the effective date of the termination,
determined as if the employment of the Executive had not been terminated
prior to the end of the Initial Term or latest Renewal Term, if later, and
as if the financial performance of Company upon which the programs,
practice, or policy is determined continues as it had been for the
immediately preceding last four (4) fiscal quarters ended prior to either
(i) the date of notice of termination or (ii) the date of termination, as
Executive shall elect after receiving the report of such performance for
the applicable fiscal quarters, and as if the Executive had continued to
perform all of his obligations under this Agreement and as an employee of
the Company. Executive shall have no duty to mitigate damages in order to
receive the Compensation described by this Subsection and the Compensation
shall not be reduced or offset by other income, payments or profits
received by Executive from any source. If there is no binding incentive
compensation program, policy or practice in effect on the effective date
of the termination, Company, in the exercise of its discretion, may elect
to pay Executive a portion of the incentive compensation to which he would
have been entitled (had his employment not terminated) for the quarter in
which his employment is terminated without Cause.
e) Other Plans. Except to the extent specified in this Section 6 and as
provided in this Subsection (e), termination of this Agreement shall not
affect Executive's participation in, distributions from, and vested rights
under any employee benefit plan of Company, which will be governed by the
terms of those respective plans, in the event of Executive's termination
of employment. If Executive is terminated without Cause, then Executive
shall become fully vested under any and all stock bonus and stock option
plans and agreements in which Executive had an interest, vested or
contingent. If applicable law or the terms of such plan(s) prohibit such
vesting, then Company shall pay Executive an amount equal to the value of
the benefits and rights that would have, but for such prohibition, been
vested. Executive shall have no duty to mitigate damages in order to
receive the Compensation described by this Subsection and the Compensation
shall not be reduced or offset by other income, payments or profits
received by Executive from any source.
f) Example. For example, if Company provides notice to Executive of
Termination without Cause on January 1, 2002, then the Employment Period
ends ninety days thereafter, on April 1, 2002, and Company will pay to
Executive in a lump sum payment immediately thereafter the sum of an
amount equal to (i) Executive's Base Salary for the next two (assuming the
contract started Jan 1, 2002)(2) years plus (ii) the incentive
compensation for eight fiscal quarters computed as stated above, and
Executive shall become fully vested in all stock bonus and stock option
plans and agreements in which Executive had an interest.
6) TERMINATION BY EXECUTIVE
a) General. Executive may terminate this Agreement at any time, with or without
"Good Reason." If Executive terminates this Agreement without Good Reason,
Executive shall provide Company with ninety (90) days advance written notice.
If Executive terminates this Agreement with Good Reason, Executive shall
provide Company with thirty (30) days advance written notice.
b) Good Reason Defined. For purposes of this Agreement, "Good Reason" shall mean
and include each of the following (unless Executive has expressly agreed to
such event in a signed writing):
(1) The demotion of Executive by Company, such as (i) assignment to Executive
of any duties that materially are inconsistent with or inferior to his
positions, duties, responsibilities, and status with Company as in effect
on the date of execution of this Agreement (the "Relevant Date"); or (ii)
a materially adverse change in his titles, offices, or authority as in
effect on the Relevant Date; except in connection with the termination of
this Agreement for Cause, Executive's death or Disability, termination by
Executive other than for Good Reason, or the expiration of the Agreement
without renewal;
(2) The recommended travel of Executive by the President in furtherance of
Company business which is materially more extensive than Executive's
travel or contemplated travel at the Relevant Date;
(3) Failure by Company to continue in effect any incentive compensation
program, policy or practice, or any savings, life insurance, health and
accident or disability plan in which Executive is participating on the
Relevant Date (or plans which provide Executive with substantially
similar benefits) or the taking of any action by Company which would
adversely affect Executive's participation in or materially reduce his
benefit under any of such plans or deprive him of any material fringe
benefit enjoyed by him as of the Relevant Date or any later date.
Amendment or modification of said plans, to the extent required pursuant
to applicable federal law and the procedures set forth in the respective
plan, or amendments of such plans that apply to either all employees
generally or all senior executives shall not considered to be "Good
Reason" for purposes of this clause (5);
(4) Failure of Company to obtain a specific written agreement satisfactory to
Executive from any successor to the business, or substantially all the
assets of Company, to assume this Agreement or issue a substantially
similar agreement;
(5) The termination or attempted termination of this Agreement by Company
purportedly for Cause if it is thereafter determined that Cause did not
exist under this Agreement with respect to the termination;
(6) Breach of any material provisions of this Agreement by Company
which is not cured within thirty (30) days after receipt by
Company of written notice of such breach from Executive; or
(7) Any action taken by Company over the specific, contemporaneous,
written objection of the Executive that is likely (i) to cause a
material reduction in the value of this Agreement to Executive or
(ii) to materially impair Executive's abilities to discharge his
duties hereunder. This provision is not intended to affect either
the Company's or Executive's right to terminate this Agreement as
provided for elsewhere herein.
c) Effect of Good Reason Termination. If Executive terminates this Agreement
for Good Reason (as defined in Section 7(b)), Executive shall be entitled
to receive all of the payments and benefits provided by Section 6 and
otherwise in this Agreement to the same extent as if this Agreement had
been terminated by Company without Cause.
d) Effect of Termination without Good Reason. If Executive terminates this
Agreement without Good Reason, Executive shall be entitled to receive his
Base Salary through the effective date of his termination. Executive's
entitlement to receive any other amount shall be determined in accordance
with the provisions of any benefit plans in which Executive participates
on the effective date of the termination. Executive shall not be entitled
to receive any incentive compensation for the quarter in which his
employment is terminated by him without Good Reason or any later quarter.
7) CHANGE IN CONTROL OF COMPANY
a) General. Company considers the maintenance of a sound and vital
management to be essential to protecting and enhancing the best interests
of Company, Parent and Parent's shareholders. Company and Parent
recognize that, as is the case with many publicly held corporations, the
continuing possibility of an unsolicited tender offer or other takeover
bid for Parent may be unsettling to Executive and other senior executives
of Company or Parent and may result in the departure or distraction of
management personnel to the detriment of Company, Parent and Parent's
shareholders. The President has previously determined that it is in the
best interests of Company, Parent and Parent's shareholders for Company
to minimize these concerns by making this Change in Control provision an
integral part of this Employment Agreement, which would provide the
Executive with a continuation of benefits in the event the Executive's
employment with Company terminates under certain limited circumstances.
This provision is offered to help assure a continuing dedication by
Executive to his duties to Company notwithstanding the occurrence of a
tender offer or other takeover bid. In particular, the President believes
it important, should Company or Parent receive proposals from third
parties with respect to its future, to enable Executive, without being
influenced by the uncertainties of his own situation, to assess and
advise the President whether such proposals would be in the best
interests of Company, Parent and Parent's shareholders and to take such
other action regarding such proposals as the President
might determine to be appropriate. The President also wishes to demonstrate
to Executive that Company is concerned with his welfare and intends to see
he is treated fairly.
b) Continued Eligibility to Receive Benefits. In view of the foregoing and in
further consideration of Executive's continued employment with Company, if a
Change in Control occurs, Executive shall be entitled to a lump-sum
severance benefit provided in subparagraph (c) of this Section 8 if, prior
to the expiration of twenty-four (24) months after the Change in Control,
Executive notifies Company of his intent to terminate his employment with
Company for Good Reason or Company terminates Executive's employment without
Cause or if, within thirty (30) days after the first anniversary of the
Change in Control, Executive terminates his employment with Company. If
Executive triggers the application of this Section by terminating employment
for Good Reason, he must do so within sixty days (60) days following his
receipt of notice of the occurrence of the last event that constitutes Good
Reason. The full severance benefits provided by this Section shall be
payable regardless of the period remaining until the expiration of the
Agreement without renewal.
c) Receipt of Benefits. If Executive is entitled to receive a severance benefit
pursuant to Section 8(b) hereof, Company will provide Executive with the
following benefits:
(1) A lump sum severance payment within ten (10) days following Executive's
last day of work equal to the sum of (i) two times the greater of
Executive's annualized Base Salary in effect on the date of termination
of employment or Executive's highest annualized Base Salary in effect
on any date during the term of this Agreement and (ii) two times the
amount of all incentive compensation paid or accrued to Executive for
the Company's most recent last four fiscal quarters then ended.
(2) Executive shall become vested in any and all stock bonus and stock
option plans and agreements of Company or Parent that were granted
prior to the change in control in which Executive had an interest,
vested or contingent. If applicable law prohibits such vesting, then
Company shall pay Executive an amount equal to the value of benefits
and rights that would have, but for such prohibition, have been vested
in Executive.
(3) Executive will continue to receive life, disability, accident and group
health and dental insurance benefits substantially similar to those
which he was receiving immediately prior to his termination of
employment until the earlier of (i) the end of the period of 24 months
following his termination of employment or (ii) the day on which he
becomes eligible to receive any substantially similar continuing health
care benefits under any plan or program of any other employer. The
benefits provided pursuant to this Section shall be provided on
substantially the same terms and conditions as they were provided prior
to the Change in Control, except that the full cost of such benefits
shall be paid by Company. Executive's
right to receive continued coverage under Company's group health plans
pursuant to Section 601 et seq. of the Employee Retirement Income
Security Act of 1974, as it may be amended or replaced from time to time,
shall commence following the expiration of his right to receive continued
benefits under this Agreement. Executive's right to receive all forms of
benefits under this Section is reduced to the extent he is eligible to
receive any health care benefit from any other employer without his
request to pay any premium with respect thereto.
(4) Executive shall have no duty to mitigate damages or loss in order to
receive the benefits provided by this Section or in this Agreement. If
Executive is entitled to receive the payments called for by this Section
8(c), Executive's right to receive the compensation provided by Section
6(c) or 7(c) shall to the extent of such payments be reduced.
d) Change in Control Defined. For purposes of this Agreement, a "Change in
Control" means any one or more of the following events:
(1) When the individuals who, at the beginning of any period of two years or
less, constituted the Board of Parent cease, for any reason, to
constitute at least a majority thereof unless the election or nomination
for election of each new director was approved by the vote of at least
two thirds of the directors then still in office who were directors at
the beginning of such period;
(2) A change of control of Parent through a transaction or series of
transactions, such that any person (as that term is used in Section 13
and 14(d)(2) of the Securities Exchange Act of 1934 ("1934 Act")),
excluding affiliates of the Company as of the Effective Date, is or
becomes the beneficial owner (as that term is used in Section 13(d) of
the 0000 Xxx) directly or indirectly, of securities of Parent
representing 50% or more of the combined voting power of Parent's then
outstanding securities;
(3) Any merger, consolidation or liquidation of Parent in which Parent is not
the continuing or surviving company or pursuant to which stock would be
converted into cash, securities or other property, other than a merger of
Parent in which the holders of the shares of stock immediately before the
merger have the same proportionate ownership of common stock of the
surviving company immediately after the merger;
(4) The shareholders of Parent approve any plan or proposal for the
liquidation or dissolution of Parent; or
(5) Substantially all of the assets of Parent are sold or otherwise
transferred to parties that are not within a "controlled group of
corporations" (as defined in Section 1563 of the Internal Revenue Code of
1986, as amended (the "Code") in which Parent is a member at the Relevant
Date.
e) Good Reason Defined. For purposes of this Section, "Good Reason" shall
have the meaning assigned to it in Section 7(b).
f) Notice of Termination by Executive. Any termination by Executive under
this Section 8 shall be communicated by written notice to Company which
shall set forth generally the facts and circumstances claimed to provide a
basis for such termination.
8) CONFIDENTIALITY
Executive covenants and agrees to hold in strictest confidence, and not disclose
to any person, firm or company, without the express written consent of Company,
any and all of Company's Parent's and all other subsidiaries of Parent's
(collectively, "Parent's Family") confidential data, including but not limited
to information and documents concerning Parent's Family's business, customers,
and suppliers, market methods, files, trade secrets, or other "know-how" or
techniques or information not of a published nature or generally known (for the
duration they are not published or generally known) which shall come into his
possession, knowledge, or custody concerning the business of Parent's Family,
except as such disclosure may be required by law or in connection with
Executive's employment hereunder or except as such matters may have been known
to Executive at the time of his employment by Company. This covenant and
agreement of Executive shall survive this Agreement and continue to be binding
upon Executive after the expiration or termination of this Agreement, whether by
passage of time or otherwise so long as such information and data shall be
treated as confidential by Parent's Family.
9) RESTRICTIVE COVENANTS
a) Covenant-not-to-Compete.
(1) In consideration of Company's agreements contained herein and the
payments to be made by it to Executive pursuant hereto, and except
for termination of Executive's employment by Company without Cause,
or termination of employment by Executive for Good Reason, Executive
agrees that, for two years ("Time Period") following his termination
of employment and so long as Company is continuously not in default
of its obligations to Executive hereunder or under any other
agreement, covenant, or obligation, he will not, without prior
written consent of Company, consult with or act as an advisor to
another company about activity which is a "Competing Business" of
such company in the United States, Canada and Europe ("Area"). For
purposes of this Agreement, Executive shall be deemed to be engaged
in a "Competing Business" if, in any capacity, including but not
limited to proprietor, partner, officer, director or employee, he
engages or participates, directly or indirectly, in the operation,
ownership or management of the activity of any proprietorship,
partnership, company or other business entity which activity is
competitive with the then actual business in which Company or Parent
is engaged on the date of, or any business contemplated by the
Company's or Parent's business plan in effect on the date of notice
of, Executive's termination of employment. Nothing in this
subparagraph is intended to limit Executive's ability to own equity
in a public company constituting less
than one percent (1%) of the outstanding equity of such company, when
Executive is not actively engaged in the management thereof. Company
shall furnish Executive with a good-faith written description of the
business or businesses in which Company and Parent are then actively
engaged within 30 days after Executive's termination of employment,
and only those activities so timely described which are in fact
actively engaged by Company and Parent may be treated as activities of
which one may be engaged that is competitive with Company and Parent.
b) Non-Solicitation. Executive recognizes that Parent's Family's customers
are valuable and proprietary resources of Parent's Family. Accordingly,
Executive agrees that for a period of one year following his termination
of employment, and only so long as Company is continuously not in default
of its obligations to Executive hereunder or under any other agreement,
covenant, or obligation, he will not directly or indirectly, through his
own efforts or through the efforts of another person or entity, solicit
business from any individual or entity located in the United States,
Canada, and Europe--which obtained services from Parent's Family at any
time during Executive's employment with Company, he will not solicit
business from any individual or entity located in the United States,
Canada, or Europe which was solicited by Executive on behalf of Parent's
Family, and he will not solicit employees of Parent's Family who would
have the skills and knowledge necessary to enable or assist efforts by
Executive to engage in a Competing Business.
c) Remedies: Reasonableness. Executive acknowledges and agrees that a breach
by Executive of the provisions of this Section 10 will constitute such
damage as will be irreparable and the exact amount of which will be
impossible to ascertain and, for that reason, agrees that Company will be
entitled to an injunction to be issued by any court of competent
jurisdiction restraining and enjoining Executive from violating the
provisions of this Section. The right to an injunction shall be in
addition to and not in lieu of any other remedy available to Company for
such breach or threatened breach, including the recovery of damages from
Executive.
Executive expressly acknowledges and agrees that (i) the Restrictive
Covenants contained herein are reasonable as to time and geographical area
and do not place any unreasonable burden upon him; (ii) the general public
will not be harmed as a result of enforcement of these Restrictive
Covenants; and (iii) Executive understands and hereby agrees to each and
every term and condition of the Restrictive Covenants set forth in this
Agreement.
d) Change of Control. The provisions of this Section 10 shall lapse and be of
no further force or effect if Executive's employment is terminated by
Company "without Cause" or by Executive for "Good Reason."
10) BENEFIT AND BINDING EFFECT
This Agreement shall inure to the benefit of and be binding upon Company, its
successors and assigns, including but not limited to any company, person, or
other entity which may acquire all or substantially all of the assets and
business of Company or any company with or into which Company may be
consolidated or merged, and Executive, his heirs, executors, administrators,
and legal representatives, provided that the obligations of Executive may not
be delegated.
11) NOTICES
All notices hereunder shall be in writing and delivered personally or sent by
registered or certified mail, postage prepaid and return receipt requested:
If to Company, to: Insight Worldwide, Inc.
c/o Xxxxxxx Xxxxxxx, President, COO
0000 Xxxxx Xxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
If to Executive, to: Xxxx X. Xxxxxxx
0000 X. Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Either party may change the address to which notices are to be sent to it by
giving ten (10) days written notice of such change of address to the other
party in the manner above provided for giving notice. Notice will be considered
delivered on personal delivery or on the date of deposit in the United States
mail in the manner provided for giving notice by mail.
12) ENTIRE AGREEMENT
The entire understanding and agreement between the parties has been
incorporated into this Agreement, and this Agreement supersedes all other
agreements and understandings between Executive and Company with respect to the
relationship of Executive with Company, except with respect to other continuing
or future bonus, incentive, stock option, health, benefit and similar plans or
agreements.
13) GOVERNING LAW
This Agreement shall be governed by and interpreted in accordance with the laws
of the State of Arizona.
14) CAPTIONS
The captions included herein are for convenience and shall not constitute a
part of this Agreement.
15) DEFINITIONS
Throughout this Agreement, certain defined terms will be identified by the
capitalization of the first letter of the defined word or the first letter of
each substantive word in a defined phrase. Whenever used, these terms will be
given the indicated meaning.
16) SEVERABILITY
If any one or more of the provisions or parts of a provision contained in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity or unenforceability shall not affect any other
provision or part of a provision of this Agreement, but this Agreement shall be
reformed and construed as if such invalid, illegal or unenforceable provision
or part of a provision had never been contained herein and such provisions or
part thereof shall be reformed so that it would be valid, legal and enforceable
to the maximum extent permitted by law. Any such reformation shall be read as
narrowly as possible to give the maximum effect to the mutual intentions of
Executive and Company.
17) TERMINATION OF EMPLOYMENT
The termination of this Agreement by either party also shall result in the
termination of Executive's employment relationship with Company in the absence
of an express written agreement providing to the contrary. Neither party
intends that any oral employment relationship continue after the termination of
this Agreement.
18) TIME IS OF THE ESSENCE
Company and Executive agree that time is of the essence with respect to the
duties and performance of the covenants and promises of this Agreement.
19) NO CONSTRUCTION AGAINST EITHER PARTY
This Agreement is the result of negotiation between Company and Executive and
both have had the opportunity to have this Agreement reviewed by their legal
counsel and other advisors. Accordingly, this Agreement shall not be construed
for or against Company or Executive, regardless of which party drafted the
provision at issue.
COMPANY:
INSIGHT DIRECT WORLDWIDE, INC.
an Arizona corporation
/s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Xxxxxxx Xxxxxxx, President, COO
EXECUTIVE:
Xxxx X. Xxxxxxx, Executive Vice President
/s/ Xxxx X. Xxxxxxx
-----------------------------------------
Xxxx X. Xxxxxxx, Executive Vice President
