SEPARATION AND GENERAL RELEASE
AGREEMENT
This Separation and General Release Agreement
(this “Agreement”) is being entered into by and between
Insight Enterprises, Inc. (“Insight” or the
“Company”) and Stanley Laybourne
(“Retiree”) (collectively, the “Parties”)
as of May 1, 2007 (the “Date of this
Agreement”).
WHEREAS, Retiree is currently employed by the
Company as its Chief Financial Officer, Treasurer and
Secretary;
WHEREAS, the Parties wish to terminate their
relationship on mutually acceptable terms and conditions;
and
WHEREFORE in consideration of the foregoing
premises and the terms and conditions set forth below, the Parties
agree as follows:
1. Retirement. Retiree hereby retires from
his employment with the Company and any of its parents, affiliates
or subsidiaries as of December 31, 2007 (the “Retirement
Date”). Retiree hereby resigns from his membership on the
Company’s Board of Directors and retires from any other
positions held within the Company, its parents, subsidiaries, and
affiliates on the Retirement Date. On the Retirement Date, the
Company and Retiree agree that Retiree shall have a Separation from
Service as defined in Treasury
Regulation Section 1.409A-1(h). Retiree understands that
he is giving up any right or claim to further compensation from the
Company beyond the Retirement Date, except as set forth in this
Agreement.
2. Death/Disability. In the event of his
death or disability, Retiree’s heirs, executors,
administrators, and legal representatives shall have the right to
enforce this Agreement in accordance with its terms.
3. Press Release/Public Filings. Retiree
will be provided with copies of any Insight press release regarding
his retirement through the Retirement Date. Any press release
regarding Retiree’s retirement shall be issued after the Date
of this Agreement and shall thank Retiree for his service and
contributions to Insight.
4. Duties. Between the Date of this
Agreement and December 16, 2007, Retiree will continue with
his current duties and responsibilities as Chief Financial Officer
(“CFO”), Treasurer and Secretary of Insight as they
existed prior to the Date of this Agreement in accordance with the
terms of Retiree’s Employment Agreement, effective as of
November 1, 2003 (the “Employment Agreement”).
From December 17, 2007 through the Retirement Date, Retiree
shall assist the new Chief Financial Officer of the Company as
directed by the Company’s Chief Executive Officer.
5. Employment Agreement. Retiree and the
Company agree to be bound by paragraphs 4, 9, 10, 11 and 13 of the
Retiree’s Employment Agreement, a copy of which is attached
hereto as Exhibit A. Except for those enumerated paragraphs,
Retiree’s Employment Agreement shall be extinguished as of
the Retirement Date and Retiree acknowledges that he is not
entitled to any compensation or benefits, including without
limitation any severance benefits, under the Employment Agreement,
except as expressly set forth in this Agreement. Notwithstanding
the foregoing, the Company hereby acknowledges and agrees that it
remains bound by the terms of Directors and Officers
Indemnification Agreement, dated November 15, 2004, a copy of
which is attached hereto as Exhibit B, and any successor or
replacement agreement thereto, and that Retiree’s rights to
be indemnified for any actions taken as an officer or director of
the Company shall remain in place following the Retirement Date
both under Exhibit B, any successor or replacement
indemnification agreement, the Company’s Articles and Bylaws
and to the fullest extent permitted by law. The Company
acknowledges that Retiree’s indemnification rights are
cumulative and that he may invoke his indemnification rights from
any and all of the aforementioned sources without diminishing in
any way whatever other rights of indemnification Retiree may
have.
6. Benefit Plans. Retiree will continue to
participate in any retirement, 401(k) or savings plans, life
insurance plan and health insurance plan in which he currently
participates, up to and including the Retirement Date. Retiree will
be able to exercise any existing contractual rights under
Insight’s benefit plans, including Insight’s life
insurance plan. These rights include, without limitation,
Retiree’s right to continue coverage currently provided by
such plans, in accordance with each plan’s terms. Following
the Retirement Date, Retiree will be permitted to obtain COBRA
coverage, at Retiree’s expense, in accordance with law and
with the provisions of any insurance plan maintained by Insight for
employees.
7. 2007 Incentive Compensation. Retiree
will receive a bonus for the 2007 fiscal year. The bonus for the
2007 fiscal year will be calculated based on the incentive formula
used for the most senior executives of Insight, whose incentive is
based on Company-wide performance. The bonus for the 2007 fiscal
year will be paid at the time such bonus is paid to the other most
senior executives of Insight but in any event on or before
March 15, 2008.
8. Severance Payment. Provided that Retiree
signs and delivers this Agreement, and for a period of seven days
thereafter does not revoke it, the Company will pay Retiree
$750,000, less applicable withholding on the eighth day after
signature, by wire pursuant to wire instructions from
Retiree.
9. Incentive Compensation. Retiree will be
paid an amount equal to two (2) times the greater of the
annual bonus awarded to him for the 2006 or 2007 fiscal year on the
earlier of (a) July 17, 2008 or (b) the date of
Executive’s death. Any amount due under this Section 9
shall be paid subject to withholdings as required by
law.
2
10. Accrued Vacation Time; Business
Expenses. On the Retirement Date, Retiree will be compensated for
280 hours of accrued vacation time. The value will be calculated
based on the formula used by Insight in the usual course of
business. On or before the Retirement Date, the Company will
reimburse Retiree for any and all necessary, customary and usual
expenses incurred by Retiree on behalf of the Company, provided
that Retiree has furnished the Company with receipts to
substantiate the business expense in accordance with the
Company’s policies or otherwise reasonably justifies the
expense to the Company.
11. Vested Options. Retiree will be
permitted to exercise all options that are vested and unexercised
as of the Retirement Date, through the ninetieth (90th) day after
the Retirement Date, subject to repricing, if any, in accordance
with Insight’s restated 10-Ks. As of the Retirement Date,
Retiree will have 560,584 vested, unexercised options. The
90 day post-Retirement Date exercise period shall be
reasonably extended with respect to any options that are vested and
unexercised as of the Retirement Date if necessary to prevent
Retiree from forfeiting any such options that Retiree could not
exercise during the 90 day period due to any Company blackout
restrictions, provided, however, that in no event shall the
exercise period with respect to any such option be extended beyond
the earlier of (i) the latest date upon which the option could
have expired by its original terms under any circumstances, or
(ii) the tenth (10th) anniversary of the original date of
grant of such option.
12. Vested Restricted Stock. Retiree will
receive all shares of Company restricted stock that have vested as
of the Retirement Date. As of the Retirement Date, the
Company’s records reflect that the Retiree has vested 11,200
shares of Restricted Stock.
13. Unvested Options and Restricted Stock.
Retiree hereby surrenders as of the Retirement Date all Company
stock options and shares of Company restricted stock that are not
vested as of the Retirement Date.
14. DAC Sale Proceeds. Retiree is a
participant in the Direct Alliance Corporation 2000 Long-Term
Incentive Plan (the “DAC Plan”). As a participant,
Retiree is entitled to a portion of the proceeds of the earn out
payment, should any such payment become due in accordance with the
terms of the DAC Plan in connection with the acquisition of Direct
Alliance Corporation by TeleTech Holdings, Inc. Retiree shall be
paid the full amount to which he is entitled under the DAC Plan as
soon as any other DAC Plan participant receives any proceeds from
the DAC earn out. Executive’s right to payment, if any, under
the DAC Plan shall not be modified by this Agreement, except that
to the extent such payment or portion of a payment which would be
made between the Retirement Date and July 1, 2008 is subject
to Section 409A of the Internal Revenue Code (the
“Code”) and a delay in the payment is necessary in
order to avoid a prohibited distribution under Section
409A(a)(2)(b)(i) of the Code, such payment to be made at the
earliest date possible to avoid a prohibited payment under that
provision.
3
(a) General Release. In exchange for
th
|