EXHIBIT 10.45
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of February 14,
2004 between INSIGHT ENTERPRISES, INC., a Delaware corporation. ("Company") and
P. Xxxxxx Xxxx ("Executive") to be effective as of November 1, 2003.
R E C I T A L S
A. Executive is currently employed by Company in the positions of
Chief Administrative Officer, Executive Vice President, General Counsel
and Secretary.
B. Executive and Company are parties to an Employment Agreement
that was entered into as of October 10, 2003 (the "Old Agreement").
C. Company has decided to offer Executive a new 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) REPLACEMENT OF OLD AGREEMENT. Except as specifically
provided in this Agreement, this Agreement shall replace and supersede the Old
Agreement for all purposes as of November 1, 2003.
(b) INITIAL TERM. Executive shall be employed by Company for
the duties set forth in Section 2 for a two-year term, commencing as of November
1, 2003 and ending on October 31, 2005 (the "Initial Term"), unless sooner
terminated in accordance with the provisions of this Agreement.
(c) RENEWAL TERM; EMPLOYMENT PERIOD DEFINED. The period of
time Executive is employed by Company under this or any successor Agreement
shall be referred to as the "Employment Period." On each successive day after
the commencement of the Initial Term, without further action on the part of
Company or Executive, the Employment Period 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
the Employment Period, and in the event of such notice, the Employment Period
shall immediately cease to renew and shall terminate naturally at the end of the
then current Renewal Term. No severance or other post-termination compensation
will be due or payable in the event of a termination resulting from non-renewal.
2. POSITION AND DUTIES.
(a) JOB DUTIES. Company does hereby employ, engage and hire
Executive as an Executive Vice President and as the Chief Administrative
Officer, General Counsel and the Secretary 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 Board of Directors of the Company (the "Board") shall
reasonably determine. Executive will devote full time on behalf of the Company,
or such lesser amount of time as the Board may determine, reasonable absences
because of illness, personal and family exigencies excepted.
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EXHIBIT 10.45
(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) must be disclosed to the Board; 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
5% of the issued and outstanding equity of such public or private company.
3. COMPENSATION.
(a) BASE SALARY. Beginning on November 1, 2003, Company shall
pay Executive a "Base Salary" in consideration for Executive's services to
Company at the rate of $325,000 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 executives. The
Base Salary may be adjusted from time to time in accordance with the procedures
established by Company for salary adjustments for executives, provided that the
Base Salary shall not be reduced.
(b) INCENTIVE COMPENSATION.
(1) Executive shall also be permitted to participate in
such incentive compensation plans as are adopted by the Board from time to time.
Executive's Incentive Compensation for the fourth quarter of FY2003 shall be as
provided in the Old Agreement. Beginning with FY 2004, Executive shall be
entitled to an incentive bonus, calculated and payable annually, based upon the
Company's reported diluted earnings per share ("EPS") provided that the
Company's EPS exceeds the EPS reported for FY 2003 (the "Minimum"). For FY 2004,
so long as the Minimum is satisfied, Executive shall receive a bonus equal to
450,000 times Company's reported EPS for FY 2004, less $100,000; provided that
such incentive amount shall not exceed $675,000, less $100,000. Certain
quarterly payments may be made with respect to the first three quarters of the
year as provided in the Section 3(b)(2), below. The Compensation Committee of
the Board (the "Committee") may, but is not required to, award additional bonus
amounts for extraordinary performance or to adjust for inequities resulting from
application of the formula. During the last half of each year beginning in 2004,
the Committee, with input from senior management (including Executive) shall
review the incentive compensation plan or formula currently in place in light of
all relevant circumstances and business conditions, and shall, in its discretion
and business judgment, determine whether to provide incentive compensation for
the following year and, if so, make a determination as to the appropriate
incentive formula or incentive allocation for Executive for such following year;
provided that $100,000 shall be deducted from the bonus payable for 2005 after
application of the applicable formula. The incentive formula shall be the same
as that used for the most senior executives of Company whose incentive is based
on Company-wide performance, though the amount of participation, if any, shall
be at the discretion of the Committee.
(2) Quarterly payments shall be made as provided in this
subsection (2). The annual threshold number based on the incentive formula, or
Minimum, shall be prorated based on the quarterly budgets for the year in
question. If the prorated quarterly Minimum is achieved in any quarter, Company
will calculate the bonus that would be payable (assuming the annual Minimum is
achieved) based on actual performance of the particular quarter. A percentage of
this amount will be paid as a quarterly bonus. The percentage shall be 75% for
2004, 60% for 2005 and 50% for 2006 and later years.
At the end of the year, the total bonus payable will be calculated. After
deduction of actual amounts paid during the year, any additional amounts due
will be paid. Clawbacks, or required repayments, are possible, but not
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EXHIBIT 10.45
mandatory, and shall be subject to the procedures and standards described below.
Any clawbacks shall be in the form of decreases in future bonuses on a schedule
as determined by the Committee. If Executive's employment is terminated for any
reason, any unpaid clawback amounts will be deducted from any severance
compensation or shall be owed to Company by Executive after such termination.
LIMITATION ON CLAWBACKS:
If 90% of the annual threshold is reached, there will be no clawback of any
bonuses paid for the first three quarters.
If 100% of the prior year's actual earnings per share are reached, there
will be no clawback of any bonuses paid for the first three quarters.
If 75% of the annual threshold is reached, the clawback cannot exceed 50%
of the bonuses paid for the first three quarters.
OTHER STEPS REQUIRED BEFORE A CLAWBACK WILL BE INSTITUTED. A clawback will not
be not automatic. The Committee must decide to institute all or any part of a
permitted clawback.
In determining whether there should be a clawback, the Committee shall consider
at least all of the following factors: (1) the exent to which there were (a)
changes in accounting policies, tax provisions or regulations not anticipated at
the beginning of the year; (b) unusual or "one-time" occurrences not within the
reasonable control of the Company; or (c) extraordinary steps taken by the
Company that had an effect on financial performance but were in the longer term
interests of the Company; (2) the extent to which actual results for the peers
of Company is favorable or unfavorable vis-a-vis the Company; (3) industry
trends and results for the year; and (4) other factors presented by the Chief
Executive Officer.
POSSIBILITY OF BONUSES WITHOUT REGARD TO EARNINGS. The Committee shall also have
the discretion to award bonuses quarterly, or after the completion of any year,
based upon the factors enumerated above, regardless of whether or not the
Company achieves the annual threshold number.
(3) Each final annual bonus payment, if any, shall be
paid within the 30 days following the date of the year-end earnings
press release.
(c) SIGNING BONUS. Executive shall be paid signing-bonus
amounts, each of which shall be in the amount of $100,000, on each of March 15,
2004 and January 14, 2005. It shall be a condition precedent to each such
payment that on the date such payment is due, Executive is still employed by the
Company.
(d) EQUITY COMPENSATION. Executive shall also be
permitted to participate in such equity compensation plans as are adopted by the
Board from time to time. During the last half of each year beginning in 2004,
the Committee, with input from senior management (including Executive) shall
review the equity compensation plan or formula in light of all relevant
circumstances and business conditions, and shall, in its discretion and business
judgment, determine whether to provide equity compensation for the following
year and, if so, make a determination as to the appropriate equity formula or
equity allocation for Executive for such following year. The equity formula
shall be the same as that used for the most senior executives of Company whose
incentive is based on Company-wide performance, though amount of equity
participation, if any, shall be at the discretion of the Committee.
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EXHIBIT 10.45
(e) INCENTIVE AND BENEFIT PLANS. Executive will be
entitled to participate in those incentive compensation and benefit plans
reserved for the Company's executives, including any stock option plan
maintained by the Company, in accordance with the terms of such compensation and
benefit plans. Additionally, the Executive shall be entitled to participate in
any other benefit plans sponsored by Company, including but not limited to, any
retirement, 401(k), or savings plans, life insurance plan and health insurance
plan available generally either to employees or to senior executives of Company
from time to time, subject to any restrictions specified in, or amendments made
to, such plans. The Executive shall be entitled to four (4) weeks vacation
during the calendar year, and such additional vacation time as the Board shall
approve, with such vacation to be carried over, scheduled and taken in
accordance with the Company's standard vacation policies.
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.
5. DEATH OR DISABILITY.
(a) DEATH. This Agreement shall terminate upon
Executive's death. Until the Company adopts a comprehensive program relating to
death and disability for executives, if Executive dies prior to October 10, 2005
while this Agreement is in effect, Executive's estate shall be entitled to
receive all of the payments and benefits provided by Sections 6(c), 6(d) and
6(e), including those with respect to incentive compensation, and otherwise in
this Agreement to the same extent as if this Agreement had been terminated by
Company without Cause. After the earlier to occur of (i) the time such a
comprehensive program has been adopted and is in effect with respect to
Executive, or (ii) October 10, 2005, Executive's estate shall be entitled to
receive the Base Salary due through the date of his death and within the 30 days
following the date of the year-end earnings press release, a prorated portion of
any 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, but no Base Salary or other payment or benefit will be
payable for time periods after death except as expressly provided in this
paragraph or elsewhere in this Agreement.
(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 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. Any dispute concerning whether
Disability has occurred will be determined by a physician selected by mutual
agreement of Company and Executive. Until the Company adopts a comprehensive
program relating to death and disability for executives, if this Agreement is
terminated due to Executive's Disability prior to October 10, 2005, Executive
shall be entitled to receive all of the payments and benefits provided by
Sections 6(c), 6(d) and 6(e), including those with respect to incentive
compensation, and otherwise in this Agreement to the same extent as if this
Agreement had been terminated by Company without Cause. Company may not
terminate this Agreement for Cause due solely to Executive's breach of Section 2
if such breach is the result of Executive's Disability. After the earlier to
occur of (i) the time such a comprehensive program has been adopted and is in
effect with respect to Executive, or (ii) October 10, 2005, if this Agreement is
terminated due to Executive's Disability, Executive shall receive all of the
payments and benefits called for by Section 6(c).
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EXHIBIT 10.45
6. 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; or
(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 any written directives of Company. 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.
Any termination of Executive when there is not Cause is
"without Cause." If Company terminates Executive for Cause, and it is later
determined as provided in Section 11 of this Agreement 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
Executive's employment at any time during the Initial Term or any Renewal Term
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 "Termination
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 Company, or may
provide Executive with access subject to such reasonable terms and conditions as
Company chooses to impose.
(c) CONTINUED COMPENSATION. Should Executive's employment by
Company be terminated without Cause, Executive shall receive as a lump sum
immediately upon such termination of the total amount of his Base Salary for the
remainder of the Initial Term or Renewal Terms, if later, less 90 days,
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.
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EXHIBIT 10.45
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 year in which his
employment is terminated for Cause or any later years. If Executive is
terminated without Cause, Executive shall receive as a lump sum immediately upon
such termination two (2) times the higher annual bonus that would have been
awarded, based on the method of calculation then in effect, during the one of
the two immediately preceding fiscal years which would produce the higher award.
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 was no binding incentive compensation program, policy,
or practice in effect for any portion of the two years immediately prior to the
effective date of the termination, Company, in the exercise of its discretion,
may elect to pay Executive incentive compensation for the prorated portion, up
to the date of termination, of the year 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, stock option, restricted stock or other
equity-based 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
in and under any and all stock option grants awarded prior to November 1, 2003
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. Except as otherwise provided
herein, 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.
7. 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.
Company may, at its discretion, place Executive on a paid administrative leave
during all or any part of any such 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 Company, or may provide
Executive with access subject to such reasonable terms and conditions as Company
chooses to impose
(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 removal of Executive's title of Executive
Vice President, Chief Administrative Officer, General Counsel
and Secretary or the assignment to Executive of duties by
Company that are not senior executive duties by nature except
in connection with the termination of Executive's employment
by Company either without Cause or for Cause, Executive's
death or Disability, termination by Executive either with or
without Good Reason, or the expiration of the Agreement
without renewal.
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EXHIBIT 10.45
(2) The recommended travel of Executive by the Board
in furtherance of Company business which is materially more
extensive than at November 1, 2003 (the "Relevant Date").
(3) The assignment of Executive by the Company to a
location more than 50 miles from the present executive offices
of the Company.
(4) Reduction by Company of Executive's Base Salary
as set forth in this Agreement or as the same may be increased
from time to time.
(5) Failure by Company to compensate Executive
pursuant to the same incentive and equity formulas as are used
for the most senior executives of Company whose incentive is
based on Company-wide performance or to continue in effect 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 be considered to
be "Good Reason" for purposes of this clause (5).
(6) 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.
(7) The termination of this Agreement by Company
without Cause or any attempted termination by Company
purportedly for Cause if it is thereafter determined that
Cause did not exist under this Agreement with respect to the
termination.
(8) 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.
(9) 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)), it shall for all
purposes be treated as a termination by Company without Cause.
(d) EFFECT OF TERMINATION WITHOUT GOOD REASON. If Executive
terminates this Agreement without Good Reason, while the termination shall not
be characterized as a termination for Cause, it shall for all purposes, result
in the same compensation as a termination for Cause.
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EXHIBIT 10.45
8. 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 and its shareholders. Company recognizes that, as is the case with
many publicly held corporations, the continuing possibility of an unsolicited
tender offer or other takeover bid for Company may be unsettling to Executive
and other senior executives of Company and may result in the departure or
distraction of management personnel to the detriment of Company and its
shareholders. The Board and the Committee have previously determined that it is
in the best interests of Company and its 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 Board and the
Committee believe it important, should Company 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
Board whether such proposals would be in the best interests of Company and its
shareholders and to take such other action regarding such proposals as the Board
might determine to be appropriate. The Board and the Committee also wish 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. If Executive triggers the application of this Section by terminating
employment for Good Reason, he must do so within one hundred twenty (120) 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 (2) 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 (2) times
the higher annual bonus that would have been awarded, based on
the method of calculation then in effect, during the one of
the two immediately preceding fiscal years which would produce
the higher award.
(2) Executive shall be vested in any and all stock
bonus and stock option plans and agreements of Company 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 shall be compensated in a manner
selected by the Company to provide for life, disability,
accident and group health and dental insurance benefits, at
substantially the levels
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EXHIBIT 10.45
Executive was receiving immediately prior to his termination,
for a period of time expiring upon the earlier of (i) the end
of the period of 42 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 or
source without being required to pay any premium with respect
thereto. At Company's option, Company may satisfy the
obligation to provide the benefits pursuant to this Section by
either (1) paying for or reimbursing Executive at reasonable
intervals for the actual cost of such benefits (and Executive
shall cooperate with Company in all respects in securing and
maintaining such benefits, including exercising all
appropriate COBRA elections and complying with all terms and
conditions of such coverage in a manner to minimize the cost),
(2) payment of a lump sum in the amount of the present value,
discounted at Company's effective borrowing rate, of the
premiums for such benefits for the continuing coverage period
(which shall be calculated based on the conclusive presumption
that the cost or premiums will remain constant at the rate
existing for COBRA coverage immediately following
termination), or (3) a combination of the foregoing options
(for example, Company may elect to pay Executive's premiums
during the period of time covered by COBRA, and thereafter pay
a lump sum to cover the present value of the remaining cost).
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 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 the Company 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 the Company representing 20% or more of the combined voting
power of the Company's then outstanding securities;
(3) Any merger, consolidation or liquidation of the
Company in which the Company 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 the Company 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 the Company approve any plan
or proposal for the liquidation or dissolution of the Company;
or
(5) Substantially all of the assets of the Company
are sold or otherwise transferred to parties that are not
within a "controlled group of corporations" (as defined in
Section 1563 of the Code) in which the Company is a member at
the Relevant Date.
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EXHIBIT 10.45
(e) GOOD REASON DEFINED. For purposes of this Section, "Good
Reason" shall have the meaning assigned to it in Section 7(b), except that for
this purpose only, Section 7(b)(1) shall read, "[t]the failure of Company and
any ultimately controling successor entity to continue Executive's titles of
Executive Vice President, Chief Administrative Officer, General Counsel and
Secretary or the assignment by Company or such successor entity of duties that
are materially different from Executive's duties before the Change in Control or
that are inconsistent with his position as Executive Vice President, Chief
Administrative Officer, General Counsel and Secretary of Company and such
ultimately controlling successor entity."
(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.
(g) GROSS-UP ALLOWANCE
(1) GENERAL RULES. The Code places significant tax
consequences on Executive and Company if the total payments
made to Executive due, or deemed due, to a Change in Control
exceed prescribed limits. For example, if Executive's "Base
Period Income" (as defined below) is $100,000 and Executive's
"Total Payments" exceed 299% of such Base Period Income (the
"Cap"), Executive will be subject to an excise tax under
Section 4999 of the Code of 20% of all amounts paid to him in
excess of $100,000. In other words, if Executive's Cap is
$299,999, he will not be subject to an excise tax if he
receives exactly $299,999. If Executive receives $300,000, he
will be subject to an excise tax of $40,000 (20% of $200,000).
In the event such a consequence occurs, for any reason, due to
this Agreement or otherwise, Company shall pay to Executive a
"gross-up allowance" equal in amount to the sum of (i) the
excise tax liability of Executive on the Total Payments, and
(ii) all the total excise, income, and payroll tax liability
of Executive on the "gross-up allowance," further increased by
all additional excise, and income, and payroll tax liability
thereon, which increase shall be part of the "gross-up
allowance" for purpose of computing the gross-up allowance.
Company shall indemnify and hold Executive harmless from such
additional tax liability for the income and payroll tax
arising from the "gross-up allowance" and all excise tax
arising with respect to compensation and other payments made
to Executive under this Agreement and excise, income, and
payroll tax on the "gross-up allowance, and all penalties and
interest thereon. The purpose and effect of the gross-up
allowance is to cause Executive to have the same net
compensation after income, excise, and payroll taxes that
Executive would have if there was no tax under Code Section
4999.
(2) SPECIAL DEFINITIONS. For purposes of this
Section, the following specialized terms will have the
following meanings:
(i) "BASE PERIOD INCOME". "Base Period Income" is an
amount equal to Executive's "annualized includable
compensation" for the "base period" as defined in
Sections 28OG(d)(1) and(2)of the Code and the
regulations adopted thereunder. Generally,
Executive's "annualized includable compensation" is
the average of his annual taxable income from the
Company for the "base period," which is the five
calendar years prior to the year in which the Change
of Control occurs.
(ii) "CAP" OR 280G CAP". "Cap" or "28OG Cap" shall mean an
amount equal to 2.99 times Executive's "Base Period
Income." This is the maximum amount which he may
receive without becoming subject to the excise tax
imposed by Section 4999 of the
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EXHIBIT 10.45
Code or which Company may pay without loss of
deduction under Section 28OG of the Code.
(iii) "TOTAL PAYMENTS". The "Total Payments" include any
"payments in the nature of compensation" (as defined
in Section 280G of the Code and the regulations
adopted thereunder), made pursuant to this Agreement
or otherwise, to or for Executive's benefit, the
receipt of which is contingent or deemed contingent
on a Change of Control and to which Section 28OG of
the Code applies.
(h) EFFECT OF REPEAL. In the event that the provisions of
Sections 28OG and 4999 of the Code are repealed without succession, this Section
shall be of no further force or effect.
(i) EMPLOYMENT BY SUCCESSOR. For purposes of this Agreement
employment by a successor of Company or a successor of any subsidiary of Company
that has assumed this Agreement shall be considered to be employment by Company
or one of its subsidiaries. As a result, if Executive is employed by such a
successor following a Change in Control, he will not be entitled to receive the
benefits provided by Section 8 unless his employment with the successor is
subsequently terminated without Cause or he terminates his employment for Good
Reason.
9. CONFIDENTIALITY.
Because of Executive's knowledge of and participation in
executive issues and decisions as a result of his present and former executive
positions, for purposes of Sections 9 and 10 of this Agreement, "Company" shall
be interpreted to include Company and all of Company's direct and indirect
subsidiaries.
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 confidential data,
including but not limited to information and documents concerning Company'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 Company, 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 Company.
10. RESTRICTIVE COVENANTS.
(a) COVENANT-NOT-TO-COMPETE. In consideration of Company's
agreements contained herein and the payments to be made by it to Executive
pursuant hereto, Executive agrees that, for a period of time equal to the time
remaining in the Initial Term or any Renewal Term (or if, but only if, a court
or tribunal of final authority finds that this period is unenforceable because
it is unreasonably long, then, if it would shorten the duration, for one (1)
year) following his termination of employment and so long as Company is
continuously not in default of its obligations to provide payments or
employment-type benefits 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 Restricted Territory, as defined
below. 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, shareholder, partner,
11
EXHIBIT 10.45
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 is engaged on the
date of, or any business contemplated by the Company'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 five percent (5%) of the outstanding equity of
such company, when Executive is not actively engaged in the management thereof.
If requested by Executive, Company shall furnish Executive with a good-faith
written description of the business or businesses in which Company is then
actively engaged or which is contemplated by the Company's current business plan
within 30 days after such request is made, and only those activities so timely
described in which Company is, in fact, actively engaged or which are so
contemplated may be treated as activities which are competitive with Company.
(b) NON-SOLICITATION. Executive recognizes that Company's
customers are valuable and proprietary resources of Company. 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 provide payments or employment-type benefits 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 in the Restricted Territory for or in
connection with any Competing Business from any individual or entity which
obtained products or services from Company at any time during Executive's
employment with Company; he will not solicit business for or in connection with
a Competing Business from any individual or which may have been solicited by
Executive on behalf of Company and he will not solicit, hire or engage employees
of Company 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.
Executive also expressly acknoledges and agrees that
Executive's covenants and agreements in this Section 10 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
(d) RESTRICTED TERRITORY. Executive and Company understand and
agree that Company's business is not geographically restricted and is unrelated
to the physical location of Company facilities or the physical location of any
Competing Business, due to extensive use of the Internet, telephones, facsimile
transmissions and other means of electronic information and product
distribution. Executive and Company further understand and agree that Executive
will, in part, work toward expanding the Company's markets and geographic
business territories, and will be compensated for performing this work on behalf
of Company.
12
EXHIBIT 10.45
Accordingly, Company has a protectable business interest in,
and the parties intend the Restricted Territory to encompass, each and every
location from which Exectutive could engage in Competing Business in any
country, state, province, county or other political subdivision in which Company
has customers, employees, suppliers, distributors or other business partners or
operations. If, but only if, this Restrictive Territory is held to be invalid on
the ground that it is unreasonably broad, the Restricted Territory shall include
each location from which Executive can conduct business in any of the following
locations: the United States (including each state in which the Company conducts
sales or operations), Canada, the United Kingdom, and each policital subdivision
of each of the foregoing countries. If, but only if, this Restrictive Territory
is held to be invalid on the grounds that it is unreasonably broad, then the
restricted territory shall be the United States (including each state in which
the Company conducts sales or operations), Canada, the United Kingdom, any other
country in which the Company conducts sales or operations, and each policital
subdivision of each of the foregoing countries in which Company can articulate a
legitimate protectible business interest.
11. DISPUTE RESOLUTION.
(a) MEDIATION. Any and all disputes arising under, pertaining
to or touching upon this Agreement, or the statutory rights or obligations of
either party hereto, shall, if not settled by negotiation, be subject to
non-binding mediation before an independent mediator. Notwithstanding the
foregoing, both Executive and Company may seek preliminary injunctive or other
judicial relief if such action is necessary to avoid irreparable damage during
the pendency of the proceedings described in this Section 11. Any demand for
mediation shall be made in writing and served upon the other party to the
dispute, by certified mail, return receipt requested, at the address specified
in Section 13. The demand shall set forth with reasonable specificity the basis
of the dispute and the relief sought. The mediation hearing will occur at a time
and place convenient to the parties in Maricopa County, Arizona, within thirty
(30) days of the date of selection or appointment of the mediator. Mediation or
the waiver of mediation by both parties shall be a condition precedent to
Arbitration.
(b) ARBITRATION. In the event that the dispute is not settled
through mediation, the parties shall then proceed to binding arbitration before
an independent arbitrator. The mediator shall not serve as the arbitrator.
EXCEPT AS PROVIDED IN SECTION 11 (a), ALL DISPUTES INVOLVING ALLEGED UNLAWFUL
EMPLOYMENT DISCRIMINATION, TERMINATION BY ALLEGED BREACH OF CONTRACT OR POLICY,
OR ALLEGED EMPLOYMENT TORT COMMITTED BY COMPANY OR A REPRESENTATIVE OF COMPANY,
INCLUDING CLAIMS OF VIOLATIONS OF FEDERAL OR STATE DISCRIMINATION STATUTES OR
PUBLIC POLICY, SHALL BE RESOLVED PURSUANT TO THIS SECTION 11 AND THERE SHALL BE
NO RECOURSE TO COURT, WITH OR WITHOUT A JURY TRIAL.
The arbitration hearing shall occur at a time and place convenient to the
parties in Maricopa County, Arizona, within sixty (60) days of selection or
appointment of the arbitrator unless such time period is extended by the
arbitrator for good cause shown. If Company has adopted, with the consent of
Executive, a policy that is applicable to arbitrations with executives, the
arbitration shall be conducted in accordance with said policy, to the extent
that the policy is consistent with this Agreement and the Federal Arbitration
Act, 9 U.S.C. xx.xx. 1-16. If no such policy has been adopted, the arbitration
shall be governed by the National Rules for the Resolution of Employment
Disputes of the American Arbitration Association ("AAA") in effect on the date
of the first notice of demand for arbitration. Notwithstanding any provisions in
such rules to the contrary, the arbitrator shall issue findings of fact and
conclusions of law, and an award, within f if teen (15) days of the date of the
hearing unless the parties otherwise agree.
(c) PROCEDURE. Issues of procedure, arbitrability, or
confirmation of award shall be governed by the Federal Arbitration Act, 9 U.S.
C. SS 1-16, except that court review of the arbitrator's award shall be that of
an appellate court reviewing a decision of a trial judge sitting without a jury.
13
EXHIBIT 10.45
(d) EXPENSES. The costs and expenses of any arbitration shall
be borne by Company. Should Executive or Company, at any time, initiate
mediation or arbitration for breach of this Agreement, Company shall reimburse
Executive for all amounts spent by Executive to pursue such mediation or
arbitration (including reasonable attorneys fees and costs), regardless of the
outcome, unless the mediator or arbitrator finds Executive's action to have been
frivolous and without merit.
12. 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.
13. 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 Enterprises, Inc.
Attn: CEO and General Counsel
0000 Xxxx Xxxx Xxxxx
Xxxxx, Xxxxxxx 00000
With a copy to: The Chairman of Company's
Compensation Committee
If to Executive, to: P. Xxxxxx Xxxx
0000 X. Xxxxxx Xxxx Xxxx
Xxxxxxxx Xxxxxx, 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. Notices 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.
14. 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.
15. GOVERNING LAW
This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Arizona.
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EXHIBIT 10.45
16. CAPTIONS
The captions included herein are for convenience and shall not
constitute a part of this Agreement.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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. The language in all parts of this Agreement
shall in all cases be construed as a whole according to its fair meaning and not
strictly for or against either party. The Section headings contained in this
Agreement are for reference purposes only and will not affect the meaning or
interpretation of this Agreement in any way. Whenever the words "include,"
"includes," or "including" are used in the Agreement, they shall be deemed to be
followed by the words "without limitation.
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EXHIBIT 10.45
INSIGHT ENTERPRISES, INC., a
Delaware Corporation
By: /s/ Xxxxxxx X. Crown
--------------------
Xxxxxxx X. Crown
Its CEO
By: /s/ P. Xxxxxx Xxxx
------------------
P. Xxxxxx Xxxx
16
