RELEASE AND SEVERANCE AGREEMENT
Exhibit 10.3
The parties to this Release and Severance Agreement (the “Agreement”) are Xxxxxxxxx Xxxxxxxx
(“Employee”) and Insight Enterprises, Inc. (the “Company”).
RECITALS
| A. | Employee’s employment by Company commenced on July 1, 2004 and terminates on July 18, 2008. |
| B. | Company is terminating Employee’s employment effective July 18, 2008. |
| C. | The parties hereto wish to settle and compromise fully and finally any and all claims arising between them including, but not limited to, those arising out of Employee’s employment and the termination of that employment, on the terms and conditions set forth herein. |
| D. | Employee represents that Employee is forty (40) years of age or older. |
| E. | Employee acknowledges receipt of disclosures regarding eligibility for and the ages and job titles of individuals who were and were not selected for this program. |
AGREEMENTS
In consideration of the mutual promises in this Agreement, it is agreed as follows:
1. Termination. Employee agrees that Employee’s employment with the Company
terminates on July 18, 2008.
2. Recitals. The parties hereby acknowledge the correctness and accuracy of the
foregoing recitals.
3. Payment and Other Benefits. Under the terms of Employee’s Employment Agreement
with the Company, including section 6, Employee is entitled to receive a severance payment in the
event her employment is involuntarily terminated. In the absence of this Agreement, the provisions
of Employee’s Employment Agreement would need to be amended by December 31, 2008 to either comply
with Section 409A of the Internal Revenue Code (the “Code”) or qualify for an exception to the
requirements of Section 409A. Effective immediately, Section 6(c) and Section 6(d) of the
Employment Agreement are amended, restated and replaced by the provisions of this Section 3. The
provisions of this Section 3, like the provisions of Section 6(c) and Section 6(d) of the
Employment Agreement, are intended to fit within the short-term deferral exception to Section 409A
as described in Treas. Reg. § 1.409A-1(b)(4).
(a) Within ninety (90) days of the receipt of this signed Agreement and expiration of the
revocation period referenced in Section 7 of this Agreement, the Company will tender to Employee a
check for severance pay in the amount of $295,000 (gross, less required and authorized
withholdings).
(b) Within ninety (90) days of the receipt of this signed Agreement and expiration of the
revocation period referenced in Section 7 of this Agreement, and as further consideration, Company
will pay Employee one times the annual target compensation as identified under the 2008 Executive
Incentive Compensation Plan (the “IC Plan”). Identified annual target compensation is equal to
$205,000 (gross, less required and authorized withholdings).
(c) Employee shall also be eligible for outplacement assistance for a period of up to six (6)
months with Xxx Xxxxx Xxxxxxxx. To receive outplacement assistance, Employee must contact Xxx
Xxxxx Xxxxxxxx and begin using such assistance within sixty (60) days of termination. The
Company’s provision of outplacement assistance under this Section 3(c) also may be subject to
Section 409A of the Code. The Company intends that the Company’s payment for outplacement services
pursuant to this Section 3(c) will comply with the exception to Section 409A for reimbursements and
certain other separation payments described in Treas. Reg. § 1.409A-1(b)(9)(v). Accordingly,
Employee will not incur any expenses in connection with the outplacement services after the
expiration of the six (6) month period described in this Section 3(c) and all reimbursements for
such expenses will be made before December 31, 2009.
4. Acknowledgement of Consideration. Employee understands and agrees that Employee is
receiving the payment and benefits described in Section 3 in exchange for this Agreement and that
the payments and benefits called for by Section 3 exceed those Employee would be entitled to
receive in the absence of this Agreement. The Company will pay Employee wages and accrued and
untaken vacation pay through Employee’s last day of employment without regard to whether Employee
executes this Agreement. Employee acknowledges that she is receiving benefits under this Agreement
and Employee hereby waives any and all benefits which may be due pursuant to Employee’s Employment
Agreement.
5. Release, Representations and Acknowledgments.
(a) Employee understands and agrees that whenever the term “Insight” is used in this
Agreement, it refers to the Company and its parent, subsidiaries and affiliates, and the officers,
directors, shareholders, agents, predecessors, successors, assigns, and current and past employees
of each and all of the foregoing (“Insight”). Employee, for herself and, as applicable, Employee’s
respective agents, attorneys, successors, and assigns, hereby fully, forever, irrevocably, and
unconditionally releases Insight from any and all claims, charges, complaints, liabilities, and
obligations of any nature whatsoever, which Employee may have against Insight, whether now known or
unknown, and whether asserted or unasserted, arising from any event or omission occurring prior to
execution of this Agreement.
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Without limiting the foregoing, this release includes any and all claims arising out of or which
could arise out of the employment relationship between Employee and Insight and the termination of
that employment, including but not limited to: (i) any and all claims under Title VII of the Civil
Rights Act of 1964, the Americans with Disabilities Act, Section 1981 of the Civil Rights Act of
1866, the Age Discrimination in Employment Act, the Equal Pay Act, the Family Medical Leave Act,
ERISA, COBRA, the Worker Adjustment and Retraining Notification Act, the Arizona Civil Rights Act,
other state and local civil rights laws, Arizona wage payment laws and any similar laws in other
states; (ii) any and all Executive Orders (governing fair employment practices) which may be
applicable to Insight; and (iii) any other provision or theory of law. This release may be pled as
a complete bar and defense to any claim brought by Employee with respect to the matters released in
this Agreement. This release does not waive claims that may arise after the date this Agreement is
signed.
(b) Employee acknowledges and agrees that the consideration Employee is receiving under this
Agreement is sufficient consideration to support the release of all entities identified in this
section 5, and that said consideration (other than wages and accrued and untaken vacation pay) is
in addition to anything of value to which Employee is already entitled.
(c) Employee acknowledges and agrees that Employee is not aware of any facts or circumstances
that could be the basis for a valid claim or charge of discrimination or harassment against
Insight. Employee represents and warrants that there are no administrative charges with government
agencies known to Employee pending against Insight. Employee agrees that Employee has not filed,
or caused to be filed, any claim or charge with any adjudicative body, regulatory body, or agency
arising out of Employee’s employment or the termination of that employment.
(d) Employee acknowledges and agrees that Employee has been granted any FMLA leave to which
Employee was entitled and has not been subjected to any discrimination or retaliation for using
FMLA leave.
(e) Employee acknowledges and agrees that Employee has received all monies owed Employee for
Employee’s employment with Insight and has not been subjected to any discrimination or retaliation
for raising any issues regarding compensation issues.
6. Review. Employee acknowledges receipt of this Agreement on Employee’s last day of
employment with the Company and has been advised that she has up to forty-five (45) calendar days
from Employee’s last day of Employment to execute and return the Agreement to the Company.
Employee shall not execute the agreement prior to the last day of employment and any execution
prior to such date shall not be valid until the last day of employment. To accept the offer in
this Agreement, Employee must sign and return the Agreement to the Company, within the forty-five
(45) day period, at the following address: Insight, 0000 Xxxxx Xxxx Xxxxxx, Xxxxx, XX 00000
Attention: Xxxx Xxxxxxx.
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7. Revocation. Employee may revoke this Agreement for a period of seven (7) days
after Employee signs it. Employee agrees that if Employee elects to revoke this Agreement,
Employee will notify Xxxx Xxxxxxx at the Company (at the above address) in writing on or before the
expiration of the revocation period. Receipt by the Company of proper and timely notice of
revocation from Employee cancels and voids this Agreement. Provided that Employee does not provide
a notice of revocation, this Agreement will become effective upon expiration of the revocation
period.
8. Return of Company Property. Employee represents that Employee has made a diligent
search and has already returned to the Company all Company documents (in electronic, paper or any
other form as well as all copies thereof) and other Company property that Employee has had in
Employee’s possession at any time, including, but not limited to, Company files, notes, drawings,
records, business plans and forecasts, financial information, specifications, computer-recorded
information, tangible property including, but not limited to, computers, entry cards,
identification badges and keys, and any materials of any kind that contain or embody any
proprietary or confidential information of the Company. Employee agrees to make a diligent search
for all such Company property and to return any property not previously returned to the Company
within five (5) days of execution of this Agreement. Employee further agrees to provide to the
Company, within five (5) days of execution of this Agreement, with a computer-useable copy of any
Company confidential or proprietary data, materials or information received, stored, reviewed,
prepared or transmitted on any personal computer, server, or e-mail system, to the extent the same
may be retrieved from such computers, servers and e-mail system, and, then, to delete such Company
confidential or proprietary information from those computers, servers and e-mail systems. The
Company agrees to allow the Employee to retain the laptop computer assigned to her after a review
by the Company and deletion of Company related material by the Company’s internal IT department.
The Company will also permit the Employee to retain her Blackberry device and agrees to cooperate
with the employee in porting the Employee’s Blackberry phone number to an account for which the
Employee, and not the Company, is responsible.
9. Confidentiality. Employee agrees that Employee will keep the terms and fact of
this Agreement confidential. Employee will not disclose the existence of this Agreement or any of
its terms to anyone except Employee’s attorneys or accountants, unless required by law.
10. Fees and Costs. In the event of any litigation arising under this Agreement, the
parties agree that the prevailing party shall be entitled to recover its reasonable attorneys’ fees
and costs from the other party.
11. Severability. Should any provision in this Agreement be declared or determined to
be illegal or invalid, the validity of the remaining parts, terms, or provisions shall not be
affected and the illegal or invalid part, term, or provision shall be deemed not to be a part of
this Agreement.
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12. Acknowledgement. Employee acknowledges that Employee is herein being advised to
consult with an attorney prior to executing this Agreement. Employee represents and agrees that
Employee has read and fully understands all of the provisions of this Agreement, and that Employee
is voluntarily entering into this Agreement with a full and complete understanding of all of its
terms. Employee further acknowledges and agrees that Employee has been provided with statistical
data on the persons eligible for the benefits being offered to Employee.
13. Integration. This Agreement constitutes the entire agreement between the parties,
supersedes all oral negotiations and any prior and other writings with respect to the subject
matter of this Agreement and is intended by the parties as the final, complete and exclusive
statement of the terms agreed to by them. NOTWITHSTANDING THE FOREGOING, Employee acknowledges and
agrees that this Agreement does not limit, modify, amend, or supersede, in any way, Employee’s
obligations to abide by any agreement Employee signed with the Insight regarding the treatment of
confidential or proprietary information of Insight and/or containing any restrictive covenants.
14. Choice of Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Arizona.
15. Amendment. This Agreement shall be binding upon the parties and may not be
abandoned, supplemented, changed, or modified in any manner, orally or otherwise, except by an
instrument in writing of concurrent or subsequent date signed by the parties.
16. Successors and Assigns. This Agreement is and shall be binding upon and inure to
the benefit of the heirs, executors, successors and assigns of each of the parties.
17. Non-Admission. This Agreement shall not in any way be construed as an admission
by the Company that it has acted wrongfully with respect to Employee, and the Company specifically
denies the commission of any wrongful acts against Employee. Employee acknowledges that Employee
has not suffered any wrongful treatment by the Company.
Insight Enterprises, Inc.:
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Employee: | |||||
By: |
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/s/ Xxxx X. Xxxxxxx
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/s/ Xxxxxxxxx X. Xxxxxxxx | |||||
Name
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Employee Name | |||||
Chief People Officer |
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Title
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8/1/08
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7/31/08 | |||||
Date |
Date |
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