RELEASE AND SEVERANCE AGREEMENT
Exhibit 10.15
RELEASE AND SEVERANCE AGREEMENT
The parties to this Release and Severance Agreement (the “Agreement”) are Xxxx X. XxXxxxx
(“Executive”) and Insight Direct USA, Inc., an Illinois corporation (the “Company”).
RECITALS
A. Executive’s employment with the Company began on May 23, 2005, and he is currently employed
by the Company as its President. Effective January 1, 2009, Executive and the Company entered into
an Amended and Restated Employment Agreement (the “Employment Agreement”).
B. The Company has decided that it is no longer in its best interests to continue Executive’s
employment as its President and, in the interest of amicably terminating their employment
relationship, has offered Executive the opportunity to resign, which opportunity Executive wishes
to accept, on the terms and conditions set forth herein.
C. Executive and the Company each desires to resolve amicably, fully and finally all matters
between them, including, but in no way limited to, those matters relating to the employment
relationship between them and the termination of that relationship.
NOW THEREFORE, in consideration of the recitals above and the mutual promises and obligations
contained herein, and other good and valuable consideration, the receipt and sufficiency of which
are expressly acknowledged, it is agreed as follows:
AGREEMENTS
In consideration of the mutual promises in this Agreement, it is agreed as follows:
1. Resignation. Executive hereby resigns from his employment with the Company and
from all offices he holds with the Company or any affiliate of the Company, including his position
as the Company’s President. Executive also hereby resigns from any other position or office he
holds with any other entity or employee benefit plan by reason of his association with and
employment by the Company. Executive’s resignation is effective as of March 1, 2009 (the
“Separation Date”).
2. Recitals. The parties hereby acknowledge the correctness and accuracy of the
foregoing recitals.
3. Payments and Benefits. Although Executive has resigned, his resignation shall be
treated as a termination by the Company without Cause within the meaning of Section 6(b) of the
Employment Agreement. Accordingly, Executive shall be entitled to receive the following pursuant
to Section 6 of the Employment Agreement: (a) a single lump sum payment equal to two (2) times
100% of his current Base Salary (which Executive acknowledges to be $850,000.00, representing two
(2) times Base Salary of $425,000) pursuant to Section 6(c) of the Employment Agreement; (b) a
single lump sum payment in an amount equal to 100% of the annual compensation paid to Executive in
the one (1) of the two (2) preceding years in which the
Executive received the higher annual compensation under all Incentive Compensation Plans
(annual and quarterly) of the Company in which Executive participated (which Executive acknowledges
to be $509,786.50) pursuant to Section 6(d)(1) of the Employment Agreement; and (c) continued
welfare benefits pursuant to Section 6(e) of the Employment Agreement. The payments called for by
clauses (a) and (b) will be paid within three (3) days of the Separation Date. The Company will
pay Executive the amounts referred to in this paragraph along with any wages (including any Q4 2008
bonus and 2008 annual bonus due) and accrued and untaken vacation pay through his last day of
employment without regard to whether Executive executes this Agreement.
In lieu of any amounts that might become due in the future pursuant to Section 6(d)(2) or (3)
of the Employment Agreement, Executive shall receive a single lump sum payment in an amount equal
to $62,500. This payment will be made within three days of the Effective Date defined in Section 7
of this Agreement.
All amounts referred to in this Agreement are gross amounts. The Company will deduct required
and authorized withholdings.
Under no circumstances may the time or schedule of any payment made or benefit provided
pursuant to this Agreement or the Employment Agreement be accelerated or subject to a further
deferral except as otherwise permitted or required pursuant to regulations and other guidance
issued pursuant to Section 409A of the Internal Revenue Code (the “Code”) or applicable
regulations. Executive has not been given the right to make any election regarding the time or
form of any payment due to him under this Agreement or the Employment Agreement.
4. Outplacement. Executive shall also be entitled to outplacement assistance with Xxx
Xxxxx Xxxxxxxx for a period of up to 6 months. The Company will pay the associated expense
directly to Xxx Xxxxx Xxxxxxxx.
5. Release, Representations and Acknowledgments. In exchange for the consideration
provided pursuant to this Agreement, including but not limited to the outplacement assistance
provided pursuant to Section 4 and the payment provided by the second paragraph of Section 3 (the
payment in lieu of the amounts that might become due in the future pursuant to Sections 6(d)(2) and
(3) of the Employment Agreement), Executive agrees as follows:
(a) Executive understands and agrees that whenever the term “Insight” is used in this
Agreement, it refers to the Company, its corporate parents and its 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”). Executive, for himself and, as
applicable, his 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 he 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. Without limiting the foregoing, this release
includes any and all claims arising out of or which could arise out of the employment relationship
between Executive 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
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Employment Act, the Older Workers Benefit Protection Act of 1990, the Equal Pay Act, the
Family and Medical Leave Act, the Xxxxxxxx-Xxxxx Act of 2002, the Employee Retirement Income
Security Act of 1974 (“ERISA”), the Consolidated Omnibus Budget Reconciliation Act of 1985
(“COBRA”), the Worker Adjustment and Retraining Notification Act, the Arizona Civil Rights Act,
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; (iii) wrongful termination; or (iv) any other provision or theory of law. This release
may be pled as a complete bar and defense to any claim brought by Executive with respect to the
matters released in this Agreement. This release does not waive claims that arise after the date
this Agreement is signed. This release also does not waive any claims that Executive may have to
vested benefits due pursuant to any employee benefit plan (as that term is defined in ERISA) of the
Company or any affiliate, any amounts due pursuant to the Direct Alliance Corporation 2000
Long-Term Incentive Plan, or any rights Executive may have that arise out of an award made to
Executive under any equity compensation program of the Company.
(b) Executive acknowledges and agrees that the consideration he is receiving under this
Agreement is sufficient consideration to support the release of all entities identified in this
Section 5.
(c) Executive acknowledges and agrees that he 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.
(d) Executive acknowledges and agrees that he is waiving his right to file a lawsuit under the
Age Discrimination in Employment Act.
(e) Executive acknowledges and agrees that he has been granted any FMLA leave to which he was
entitled and has not been subjected to any discrimination or retaliation for using FMLA leave.
(f) Executive acknowledges and agrees that he has received all monies owed Executive for his
employment with Insight and has not been subjected to any discrimination or retaliation for raising
any issues regarding compensation issues.
6. Review. Executive has been advised and is hereby advised in writing to consult
with an attorney prior to signing this Agreement and that he has twenty-one (21) days from the date
he is presented with this Agreement to consider this Agreement. If Executive executes this
Agreement before the expiration of twenty-one (21) days, he acknowledges that he has done so for
the purpose of expediting the resolution of this matter, that he has had sufficient time to
consider this Agreement and that he has expressly and voluntarily waived his right to take
twenty-one (21) days to consider this Agreement. To accept the offer in this Agreement, Executive
must sign and return the Agreement to the Company, by the twenty-second (22nd) day following the
date of presentation hereof, at the following address: Insight Enterprises, Inc., 0000 Xxxx Xxxx
Xxxxx, Xxxxx, Xxxxxxx, 00000, Attention: General Counsel.
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7. Revocation. Executive may revoke this Agreement for a period of seven (7) days
after he signs it. Executive agrees that if he elects to revoke this Agreement, he will notify the
Chief People Officer of 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
Executive cancels and voids this Agreement. Provided that Executive does not provide a timely
notice of revocation, this Agreement will become effective on the calendar day immediately
following expiration of the revocation period (the “Effective Date”).
8. Return of Company Property. Executive represents that he has made a diligent
search and has already returned to the Company all Insight documents (in electronic, paper or any
other form as well as all copies thereof) and other Insight property that he has had in his
possession at any time, including, but not limited to, Insight files, notes, drawings, records,
business plans and forecasts, financial information, specifications, computer-recorded information,
tangible property including, but not limited to, entry cards, identification badges and keys, and
any materials of any kind that contain or embody any proprietary or confidential information of
Insight. Executive agrees to make a diligent search for all such Insight property and to return
any property not previously returned to the Company within five (5) days of execution of this
Agreement. Executive further agrees to provide to the Company, within five (5) days of execution
of this Agreement, with a computer-useable copy of any Insight 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 Insight confidential or proprietary
information from those computers, servers and e-mail systems.
9. Cooperation in Proceedings. The Company and Executive agree that they shall fully
cooperate with each other with respect to any claim, litigation or judicial, arbitral or
investigative proceeding initiated by any private party or by any regulator, governmental entity,
or self-regulatory organization, that relates to or arises from any matter with which Executive was
involved during his employment with the Company, or that concerns any matter of which Executive has
information or knowledge (collectively, a “Proceeding”). Executive’s duty of cooperation includes,
but is not limited to: (a) meeting with the Company’s attorneys by telephone or in person at
mutually convenient times and places in order to state truthfully Executive’s recollection of
events; (b) appearing at the Company’s request, upon reasonable notice, as a witness at depositions
or trials, without the necessity of a subpoena, in order to state truthfully Executive’s knowledge
of matters at issue; and (c) signing at the Company’s reasonable request declarations or affidavits
that truthfully state matters of which Executive has knowledge. The Company’s duty of cooperation
includes, but is not limited to: (i) providing Executive and his counsel access to documents,
information, witnesses and the Company’s legal counsel as is reasonably necessary to litigate on
behalf of Executive in any Proceeding; and (ii) indemnifying Executive and his counsel for any and
all reasonable costs and expenses, including legal fees in connection with any request for
cooperation from the Company as set forth in this paragraph. In addition, Executive agrees to
notify the Company’s General Counsel promptly of any requests for information or testimony that he
receives in connection with any litigation or investigation relating to the Company’s business, and
the Company agrees to notify Executive promptly of any requests for information or testimony that
it receives relating to Executive. Notwithstanding any other provision of this Agreement, this
Agreement shall not be construed or applied so as to require any Party to violate any
confidentiality agreement or understanding with any third party, nor shall it be construed or applied so as to compel any Party to take any action, or omit to take any action,
requested or directed by any regulatory or law enforcement authority.
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10. Section 16 Reporting. Executive represents and warrants to Company that all
reportable transactions under Section 16 of the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated pursuant thereto, through the date hereof have been reported
and agrees to notify the General Counsel of the Company of any reportable transactions from the
date hereof through the six month anniversary of the Effective Date.
11. No Disparagement/Professional Conduct. Executive and the Company further agree
that neither shall: (i) disparage the other; nor (ii) engage in actions contrary to the interests
of the other, except as required by applicable law.
12. Confidentiality. Executive agrees that he will keep the terms and fact of this
Agreement confidential. He will not disclose the existence of this Agreement or any of its terms
to anyone except his attorneys or accountants, unless required by law.
13. 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.
14. Acknowledgement. Executive acknowledges that he is herein being advised to
consult with an attorney prior to executing this Agreement. Executive represents and agrees that
he has read and fully understands all of the provisions of this Agreement, and that he is
voluntarily entering into this Agreement with a full and complete understanding of all of its
terms.
15. Integration. Except as otherwise provided in this Agreement, 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, Executive acknowledges and agrees that this Agreement does not
limit, modify, amend, or supersede, in any way, his obligations to abide by the provisions of
Section 3(f) (Compensation — Clawback), Section 9 (Section 409A Compliance),
Section 10 (Intellectual Property), Section 11 (Restrictive Covenants) or Section
18 (Arbitration) of the Employment Agreement or any other provision of the Employment
Agreement that, by its terms or by implication, is intended to survive the termination of
Executive’s employment with the Company.
16. Arbitration; Choice of Law. Executive acknowledges that any and all claims
arising under the Employment Agreement or this Agreement are subject to the arbitration provisions
of Section 18 of the Employment Agreement. Executive and the Company acknowledge and agree that
this Agreement shall be interpreted in accordance with Arizona law excluding Arizona’s choice of
law rules.
17. Amendment. This Agreement shall be binding upon the parties and may not be
amended, 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.
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18. 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.
19. 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 Executive, and the Company specifically
denies the commission of any wrongful acts against Executive. Executive acknowledges that he has
not suffered any wrongful treatment by the Company.
20. Joint Drafting. Executive and the Company understand that this Agreement is deemed to
have been drafted jointly by the parties. Any uncertainty or ambiguity shall not be construed for
or against any party based on attribution of drafting to any party.
21. Counterparts. For the convenience of the Parties hereto, this Agreement may be
executed in any number of counterparts, each such counterpart being deemed to be an original
instrument, and all such counterparts shall together constitute the same agreement.
22. Section 409A. Section 9 of the Employment Agreement includes rules regarding the
application of Section 409A to the payments made pursuant to the Employment Agreement. Except as
otherwise modified by the terms of this Agreement, the provisions of Section 9 shall apply for
purposes of applying Section 409A to the provisions of this Agreement. Executive acknowledges that
he has had the opportunity to review the provisions of this Agreement, the Employment Agreement and
the application of Section 409A generally with legal counsel of his choice. Executive further
acknowledges that he is solely responsible for any tax consequences imposed upon him by Section
409A and that the Company shall not have any liability or responsibility with respect to taxes
imposed on Executive pursuant to Section 409A or any other provision of the Code.
23. Business Expenses. On or before the Effective Date, the Company will reimburse
Executive for any and all necessary, customary and usual expenses incurred by Executive on behalf
of the Company, provided that Executive has furnished the Company with receipts to substantiate the
business expenses in accordance with the Company’s policies or otherwise reasonably justifies the
expense to the Company.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly
authorized representative and Executive has executed this Agreement on this ___ day of March, 2009.
| Insight Direct USA, Inc., an Illinois corporation | Executive | |||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | /s/ Xxxx X. XxXxxxx | ||||||
| Name: | Xxxxxxx X. Xxxxxxxx | Xxxx X. XxXxxxx | ||||||
| Title: | Chief Executive Officer | |||||||
| March 19, 2009 | March 18, 2009 | |||||||
| Date | Date | |||||||
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