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EXHIBIT 10.4
INSURANCE MATTERS AGREEMENT
This INSURANCE MATTERS AGREEMENT (this "Agreement"), is made as of
__________, 2000, by and between INSIGHT ENTERPRISES, INC., a Delaware
corporation ("Insight"), and DIRECT ALLIANCE CORPORATION, a Delaware corporation
("Direct Alliance"). Capitalized terms not defined herein shall have the meaning
set forth in the Separation and Distribution Agreement dated as of
_____________, 2000 by and between Insight and Direct Alliance (the "Separation
Agreement").
RECITALS
WHEREAS, pursuant to the Separation Agreement, Insight will, subject to
the terms and conditions set forth therein (i) transfer to Direct Alliance
certain assets relating to the Direct Alliance Business and (ii) effect a tax
free, pro-rata distribution to its shareholders of all Direct Alliance common
stock held by it (the "Spin-Off");
WHEREAS, prior to the Distribution Date, Insight or the Insight
Affiliates (the "Insight Insurance Parties") and Direct Alliance and the Direct
Alliance Affiliates maintained various policies of insurance, including but not
limited to those listed on Schedule 1 hereto (the "Policies"), covering, among
other things, risks associated with, or arising out of, the assets, business or
operations of the Direct Alliance Business;
WHEREAS, without relinquishing any rights as an owner of, and insured
under, the Policies, the Insight Insurance Parties wish to permit Direct
Alliance to retain, after the Distribution Date, the same rights and benefits it
enjoyed under the Policies as it had prior to the Distribution Date, and Direct
Alliance wishes to assume certain of the Insight Insurance Parties'
responsibilities, under the Policies; and
WHEREAS, the parties hereto intend for this Agreement to govern the
rights and obligations of the Insight Insurance Parties and Direct Alliance with
respect to various pre-existing contracts insuring Insight and its subsidiaries
and covering risks associated with, or arising out of, the assets, business or
operations of the Direct Alliance Business.
NOW, THEREFORE, in consideration of the premises and the mutual
promises contained in this Agreement and the other Separation Documents (as
defined in the Separation Agreement), the parties hereto agree as follows:
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ARTICLE I
INSURANCE COVERAGE
1.1. Continuing Ownership. The Insight Insurance Parties and Direct
Alliance and the Direct Alliance Affiliates shall continue at all times as
respective owners of, and beneficiaries under, the Policies to the same extent
each party enjoyed prior to the Distribution Date, and this Agreement shall not
be construed as an attempted assignment of the Policies or as a contract of
insurance.
1.2. List of Policies. The Policies which are listed on Schedule 1 were
obtained by the Insight Insurance Parties at various times prior to the date of
this Agreement and may cover risks associated with, or arising out of, the
Direct Alliance Business. Neither Insight nor any of the other Insight Insurance
Parties warrant that Schedule 1 contains or will contain an accurate or complete
list of the insurance potentially available to cover the Direct Alliance
Business, and state only that they have compiled the list to the best of their
abilities based on currently available information. Neither Insight nor any of
the other Insight Insurance Parties shall have any obligation to undertake any
further search of their records, or the records of any third parties, to seek
additional policies or information about policies not found on Schedule 1. The
Insight Insurance Parties will permit Direct Alliance to review or search their
records concerning policies not available on Schedule 1, and will take
reasonable steps to give Direct Alliance access to third parties. However, each
party agrees that it will share with the other any information it gathers about
additional existing policies, and that such additional policies which are found
potentially to provide coverage for risks associated with the Direct Alliance
Business shall be subject to the provisions of this Agreement as if listed on
Schedule 1 and shall be deemed within the definition of Policies. The parties
agree to generally cooperate with one another in connection with exchanging
information regarding coverage limits.
1.3. No Warranty of Coverage. Neither Insight nor any of the other
Insight Insurance Parties warrant that the Policies or any other policies of
insurance provide any coverage to Direct Alliance or the Insight Insurance
Parties generally, or with respect to any particular risk.
1.4. Obligation to Continue. Neither any of the Insight Insurance
Parties nor Direct Alliance or any of the Direct Alliance Affiliates shall
cancel any Policy under which any of Direct Alliance or any Direct Alliance
Affiliate or any Insight Insurance Party, respectively, remains a beneficiary.
After the Distribution Date, Direct Alliance shall be solely responsible for
obtaining and maintaining all policies of insurance covering its business and
other activities after such date.
ARTICLE II
PENDING INSURED LITIGATION
2.1. List of Pending Insured Litigation. Direct Alliance has compiled
Schedule 2 which contains a list of the litigation, if any, allegedly associated
with, or arising out of, the Direct Alliance Business prior to the date of this
Agreement for which Direct Alliance believes there
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may be insurance coverage under the Policies. This litigation, together with all
threatened litigation and claims arising out of the Direct Alliance Business,
shall be referred to as "Pending Insured Litigation." Direct Alliance does not
warrant that Schedule 2 contains or will contain an accurate or complete list of
the Pending Insured Litigation, and states only that it has compiled and will
compile the list to the best of its abilities based on currently available
information. Additional litigation and threatened litigation determined by
Direct Alliance at a later date as having been omitted from Schedule 2 shall be
subject to this Agreement as if listed on Schedule 2 and shall be deemed
included within the definition of Pending Insured Litigation.
2.2. Notice to Insurers. Direct Alliance warrants that, to the best of
its knowledge, all appropriate insurance carriers have been or will be placed on
notice concerning the Pending Insured Litigation in a timely fashion, as or if
required by the terms of the Policies.
ARTICLE III
NEW INSURED LITIGATION
3.1. Further Litigation or Claims. The parties acknowledge that after
the Distribution Date there may be further litigation or other claims made,
filed, commenced or threatened against Direct Alliance or Insight allegedly
associated with, or arising out of, the Direct Alliance Business ("New Insured
Litigation").
3.2. New Insured Litigation Notification. Direct Alliance shall notify
Insight of any New Insured Litigation which may be covered under the Insight
Insurance Parties' insurance policies.
3.3. Notification to Insight. Direct Alliance shall be solely
responsible for notifying all appropriate insurance carriers providing coverage
to Direct Alliance or for the activities and operations of the Direct Alliance
Business, if any, regarding New Insured Litigation and all other litigation and
claims, except in cases where the insurance carriers have refused in writing to
deal directly with Direct Alliance, in which case Direct Alliance shall promptly
notify Insight. Direct Alliance shall notify Insight of any litigation and
claims Direct Alliance has submitted to Insight's insurers. Direct Alliance also
shall notify Insight promptly if it appears that New Insured Litigation may
involve the assets, business or operations of Insight.
ARTICLE IV
CASE HANDLING AND COOPERATION
4.1. Cooperation with Insurers and Insight. Direct Alliance agrees that
it shall notify, report to, and cooperate fully with the insurance carriers and
Insight with respect to Pending Insured Litigation and New Insured Litigation as
though Direct Alliance were the named insured under the policies of insurance.
4.2. Notification to Insurers. Insight will notify the insurance
carriers issuing the Policies of
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the terms of this Agreement and the Separation Agreement, and will request that
the insurance carriers deal directly with Direct Alliance, as case handler,
regarding the management of any Pending Insured Litigation and any New Insured
Litigation.
4.3. Direct Alliance to Continue as Case Handler. In the event that an
insurance carrier shall refuse or fail to deal directly with Direct Alliance,
Direct Alliance shall continue as case handler and Insight shall provide
reasonable support to Direct Alliance in communicating with the insurance
carrier.
4.4. Actions Against Insurers. In the event Direct Alliance wishes to
commence an action against an insurance carrier for failure to provide defense
or indemnification for Pending Insured Litigation or New Insured Litigation
under one or more of the Policies, it shall not do so without informing Insight
and obtaining Insight's consent. Upon receipt of Insight's consent, Direct
Alliance may prosecute such an action in the name of Insight, in which case
Direct Alliance shall bear all expenses of the litigation and shall hold Insight
harmless from any costs of such litigation, including without limitation fees,
expenses, charges, awards of any type or judgments which may be assessed against
Insight. Insight's consent to the prosecution of such an action will not be
withheld or delayed unreasonably.
ARTICLE V
PAYMENT OF COSTS AND PROCEEDS
5.1. Payment to Direct Alliance.
(a) To the extent that an insurance carrier pays one of the
Insight Insurance Parties for all or any portion of the costs of defense of, or
pays all or any portion of the amounts in settlement of, or in satisfaction of a
judgment for, Pending Insured Litigation or New Insured Litigation, for which
Direct Alliance provided one of the Insight Insurance Parties or itself with
defense and indemnification as required by the Separation Agreement, such
Insight Insurance Parties shall pay over (or cause to be paid over) to Direct
Alliance or for its benefit such sums in excess of such Insight Insurance
Parties' own reasonable expenses and costs within thirty (30) days of their
receipt.
(b) If Direct Alliance fails to defend and indemnify an
Insight Insurance Party for a Pending Insured Litigation matter or New Insured
Litigation matter as required under the Separation Agreement, that Insight
Insurance Parties shall have no obligation to pay over to Direct Alliance any
portion of the payments received with respect to that matter from the insurance
carriers; provided, however, that receipt of such payments by that Insight
Insurance Party shall not relieve Direct Alliance of its obligations to defend
or indemnify that Insight Insurance Party to the extent such proceeds are
insufficient to meet Direct Alliance's obligations.
5.2. Obligation to Defend and Indemnify. It is understood between the
parties that Direct
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Alliance's obligation to defend, indemnify, save and hold harmless Insight under
the Separation Agreement shall arise at a time specified in that Agreement which
will often be prior to the time insurance proceeds will be available. The
parties acknowledge that Direct Alliance's obligation to provide a defense and
indemnification under the Separation Agreement shall not be delayed pending the
results of any claims made under insurance policies and that Insight and Direct
Alliance shall account between themselves at the conclusion of a matter if any
financial adjustments are required due to the receipt of such proceeds.
5.3. Allocation of Deductible. To the extent a non-claim specific
deductible or self-insured retention applies, the parties agree that the
deductible or self-insured retention will be allocated proportionately among
Direct Alliance and Insight based upon the total amount claimed by each party in
any respective insurance period.
ARTICLE VI
NOTICES
6.1. General. All notices and communications required or permitted
under this Agreement shall be in writing and any communication or delivery of
them shall be deemed to have been duly made if actually delivered, or if mailed
by first class or certified mail, postage prepaid, or by air express service,
with charges prepaid. Except for notices to insurance carriers under Section 3.2
and 3.3 and for bills and payments under Article V of this Agreement, all
notices and communications shall be addressed as follows:
If to any Insight Insurance Parties
Insight Enterprises, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxxx, Xxxxxxx
Attention: General Counsel
If to Direct Alliance:
Direct Alliance Corporation
0000 Xxxxx Xxxxx
Xxxxx, Xxxxxxx
Attention: General Counsel
6.2. Change of Address. Either party may by written notice so delivered
to the other, change the address to which future delivery shall be made.
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ARTICLE VII
MISCELLANEOUS
7.1. Entire Agreement. This Agreement and the Separation Agreement
constitute the entire understanding of the parties hereto with respect to the
subject matter hereof, superseding all negotiations, prior discussions and prior
agreements and understandings relating to their subject matter; provided,
however, that the specific provisions of any other agreement between the parties
executed and delivered by the parties in connection with the closing under the
Separation Agreement shall not be superseded by this Agreement and to the extent
any such other agreement is in conflict herewith, such specific agreement shall
control.
7.2. Assignment. This Agreement and all the provisions hereof shall be
binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by either party
without the prior written consent of the other party; except that this Agreement
may be assigned to a parent or subsidiary of a party, or to a third party
acquiring substantially all of the assets of a party, without such prior written
consent to such an assignment, provided that any such third party expressly
assumes, and agrees to be bound by the terms of, this Agreement, and provided
further that the assigning party shall not be relieved of any of its obligations
hereunder in the event of such an assignment.
7.3. No Third Party Beneficiaries. This Agreement is solely for the
benefit of the parties and is not intended to confer upon any person except the
parties any rights or remedies hereunder. There are no third party beneficiaries
to this Agreement.
7.4. Written Amendment and Waiver. This Agreement may not be altered or
amended nor any rights hereunder be waived, except by an instrument in writing
executed by the party or parties to be charged with the amendment or waiver.
7.5 Limited Amendment or Waiver. No waiver of any term, provision or
condition of this Agreement or failure to exercise any right, power or remedy or
failure to enforce any provision of this Agreement, in any one or more
instances, shall be deemed to be a further or continuing waiver of any such
term, provision or condition or as a waiver of any other term, provision or
condition or enforcement right of this Agreement or deemed to be an impairment
of any right, power or remedy or acquiescence to any breach.
7.6. Reformation and Severability. If any provision of this Agreement
shall be held to be invalid, unenforceable or illegal in any jurisdiction under
any circumstances for any reason, (a) that provision shall be reformed to the
minimum extent necessary to cause such provision to be valid, enforceable and
legal and preserve the original intent of the parties, or (b) if that provision
cannot be so reformed, it shall be severed from this Agreement. The holding
shall not affect or
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impair the validity, enforceability or legality of the provision in any other
jurisdiction or under any other circumstances. Neither the holding nor the
reformation or severance shall affect or impair the legality, validity or
enforceability of any other provision of this Agreement to the extent that the
other provision is not itself actually in conflict with any applicable law. Upon
a determination that any term or provision is invalid, unenforceable or illegal,
the parties hereto shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible.
7.7. Jurisdiction. This Agreement shall be governed and construed and
enforced in accordance with the internal laws of the State of Arizona (without
regard to conflict of law principles) as to all matters including, without
limitation, matters of validity, construction, effect, performance and remedies.
7.8. Titles and Headings. All titles and headings have been inserted
solely for the convenience of the parties and are not intended to be a part of
this Agreement or to affect its meaning or interpretation.
7.9. Counterparts. This Agreement, and any other agreement to be
executed in connection herewith, may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF the parties have caused this Agreement to be
executed as of the date first above written by their duly authorized officers.
INSIGHT ENTERPRISES, INC.
By:
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Name:
Title: President and Chief Executive Officer
DIRECT ALLIANCE CORPORATION
By:
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Name:
Title: President and Chief Executive Officer
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