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EXHIBIT 10.44
RETIREMENT AGREEMENT
THIS RETIREMENT AGREEMENT is entered into between Xxxxx X. Xxxxx
("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
retirement. 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. Scheduled Retirement. Associate has informed Ingram that he intends to
retire as an officer of Ingram on July 4, 1999 (the "Retirement Date").
Associate will serve as Executive Vice President and President, Xxxxxx
Micro North America until March 1, 1999 and Executive Vice President and
advisor to the Office of the Chairman from March 1, 1999 until the
Retirement Date. Associate will continue as a part-time employee of
Ingram and advisor to the Office of the Chairman from the Retirement
Date until July 4, 2000 on the terms and conditions hereinafter set
forth at which time he will retire as an employee of Ingram. Associate
understands and agrees that, upon his retirement as an officer of
Ingram, he will no longer be an agent of Ingram or any of its
Affiliates, and he will have no authority to bind Ingram or any such
Affiliate or to act on behalf of Ingram or any such Affiliate. Beginning
April 1, 1999 and continuing until July 4, 2000, Associate's base salary
will be reduced to $1 per month.
2. Health Plan Coverage. Subject to Paragraph 12 hereof, Ingram will assist
Associate in obtaining private family medical and dental insurance
coverage as soon as reasonably practical and will pay directly or
reimburse Associate from the inception of any such policy through July
4, 2000, for the amount by which the monthly premium attributable to
such coverage exceeds the monthly cost for family coverage which Ingram
charges its employees for Xxxxxx'x group coverage. Associate agrees to
decline participation in Xxxxxx'x group medical and dental insurance at
the time a private policy providing such coverage goes into effect
unless such policy contains an applicable pre-existing coverage clause.
In such event, Associate may continue to participate in Xxxxxx'x group
policy on the same terms and conditions as other employees of Ingram
until the earlier of the satisfaction of the pre-existing condition
clause or July 4, 2000. Nothing herein shall alter Associate's rights
under COBRA to acquire insurance coverage from Ingram after July 4,
2000.
3. 1999 Incentive Bonus. Subject to Paragraph 12 hereof, in March 2000,
Associate will receive an incentive payment per the 1999 Executive
Incentive Plan calculated on the terms of Associate's award letter for
such plan, but prorated through the Retirement Date on the assumption
that he has received his pre-April 1, 1999 base salary through the
Retirement Date.
4. Stock Options. Subject to Paragraph 12 hereof and notwithstanding any
contrary provisions in any plan or relevant agreement, Associate's
currently existing stock options granted under Xxxxxx'x Rollover Stock
Option Plan will continue to vest as
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scheduled after the Retirement Date. Associate shall have the right to
exercise all vested stock options and grants through March 1, 2001, or
such earlier date as any such options or grants may expire per the terms
of the underlying agreements for such options and grants. A list of all
of Associate's current stock options is attached as Exhibit A hereto.
5. Key Employee Stock Purchase Plan. Subject to Paragraph 12 hereof and
notwithstanding the provisions of Section 6(b)(i) of the Acquisition
Agreement dated June 30, 1996 between Ingram and Associate relating to
Associate's purchase of 85,000 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 any of
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 such obligations. Except as modified hereby, the
Acquisition Agreement shall continue in full force and effect in
accordance with its terms.
6. 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 6. 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.
7. 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 Retirement Date, or earlier if Ingram so requests it.
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8. 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 December 31, 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 December 31, 2000, Associate will not (i) knowingly solicit,
entice, or persuade any associates of Ingram or any of its Affiliates
("Ingram Associates") to leave the services of Ingram or any of its
Associates for any reason, or (ii) solicit for employment, hire, or
engage any Ingram Associate as an employee, independent contractor or
consultant; provided, however, that Associate shall not be prohibited
hereby from hiring, either himself or on behalf of his employer, an
Ingram Associate who independently initiates contact with Associate for
the purpose of seeking new employment.
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 December 31, 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, Globelle,
Gates Arrow, CHS Electronics, 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
December 31, 2000, he shall not be deemed to be in breach of the
provisions of this Paragraph 8.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, he may own
less than 1% of the outstanding shares of any such entity whose shares
are traded in the public market.
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d. Subject to Associate's other commitments, upon request of Ingram or any
of its Affiliates through July 4, 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 July 4, 2000, Associate shall continue to
provide such assistance as requested by Ingram and, in such event, shall
be compensated at a rate to be agreed upon.
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.
9. 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 8.c
or 8.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 or permit any stock options to continue
to vest or any vested stock options to be exercised. In the event that
Ingram elects to terminate such obligations, Associate's obligations
under Paragraph 8.c and 8.d also will terminate.
10. 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.
11. 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.
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12. Release by Associate. As a condition to Xxxxxx'x obligations pursuant to
Paragraphs 2, 3, 4, and 5, Associate shall deliver an executed release
and waiver as of the Retirement Date in the form of Exhibit B hereto.
13. Right to Revoke. Associate acknowledges that he has the right to seek
legal counsel, and was advised to seek such counsel, before entering
into this Agreement. Associate shall have 21 days from the date on which
this Agreement was delivered to him in which to execute and return this
Agreement to Ingram. In the event that Associate does not execute and
return this Agreement within such 21 day period, the offer contained in
this Agreement shall be revoked and Ingram shall not be bound by any
terms or conditions contained herein. Associate further understands he
has the right to revoke this Agreement at any time within seven days of
execution of this Agreement by written notice sent by certified mail and
received by Ingram prior to expiration of the seventh day, whereupon
this Agreement shall be null and void as of its inception.
14. 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 or 5 hereof, at Associate's election, recovery of any
provable damages as a result of such breach.
15. 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.
16. 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.
17. 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.
18. 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.
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19. 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. This Agreement may not be
modified except in writing signed by the parties.
20. Governing Law. This Agreement shall be governed by California law,
without regard to the choice or conflict of law provisions thereof.
21. Paragraph Titles. The paragraph titles used in this Agreement are for
convenience only and do not define or limit the contents of any
paragraph.
22. 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.
Executed and delivered to Associate by Ingram on March 23, 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/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx,
President and Worldwide
Chief Operating Officer
"Associate"
4/1/99
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Date By: /s/ Xxxxx X. Xxxxx
Address:
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