SEPARATION AND
GENERAL RELEASE AGREEMENT
THIS SEPARATION AND GENERAL RELEASE
AGREEMENT (the “Agreement”) is entered into as of the
first date on the signature page hereto, by and between Insight
Enterprises, Inc. (“Insight” or the
“Company”) and Richard A. Fennessy
(“Executive”) (together, the
“Parties”).
R E C I T A L
S
WHEREAS, Executive was employed by
the Company as its President and Chief Executive Officer pursuant
to the terms of the Amended and Restated Employment Agreement
between Executive and the Company, dated January 1, 2009 (the
“Employment Agreement”); and
WHEREAS, the Parties have decided to
terminate Executive’s employment relationship with the
Company, and the Parties desire to resolve, fully and finally, all
outstanding matters between them.
NOW THEREFORE, in consideration of
the mutual covenants and agreements set forth hereinafter, and for
other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Parties, intending to be
legally bound, hereby agree as follows:
AGREEMENT
1. EXECUTIVE’S
SEPARATION . Executive’s separation from the Company is
effective as of September 7, 2009 (the “Separation
Date”). Executive hereby resigns as a director and officer of
the Company and each of its subsidiaries as of the Separation Date,
and Executive agrees that he will execute any and all documents
necessary to effect such resignations with respect to any foreign
or domestic Company subsidiary.
2. CONSIDERATION .
a. Following his execution and
non-revocation of this Agreement, Executive shall receive
(I) a lump sum cash payment on the first business day
following the Effective Date equal to the sum of (i) $ 4,460,316
(payable pursuant to the terms of Sections 6(c) and 6(d)(1) of the
Employment Agreement in connection with the termination of
Executive’s employment without cause), (ii) a pro rata
portion of Executive’s annual base salary of $750,000
allocable to all unpaid work days from the last payroll date
through the Separation Date, and (iii) the value of all of
Executive’s unused and accrued vacation days;
(II) pursuant to the terms of Section 6(d)(3) of the
Employment Agreement, a pro-rated 2009 annual bonus
(subject to any exercise of negative discretion at a percentage
level no greater than the average percentage level of negative
discretion applied to bonus determinations with respect to other
executives subject to the 162(m) plan at the IEI level), with such
amount paid when 2009 bonuses are paid to senior executives of the
Company, but in no event later than March 15, 2010; and
(III) pursuant to the terms of Section 6(e) of the Employment
Agreement, continuation of life, disability, accident and group
health and dental insurance benefits at substantially the levels
Executive was receiving immediately prior to his separation from
service, for the twenty-four (24) month period following the
Effective Date.
b. In addition, in full waiver
and release of all claims as set forth herein, and subject to the
execution and non-revocation of this Agreement as of the Effective
Date, the Company hereby agrees to the following:
(i) The Company will provide
Executive with the Company’s Release of Claims set forth in
Section 3.b;
(ii) The Company will continue
to pay for annual physicals for Executive at Mayo Clinic in
Scottsdale, Arizona (in the same manner as during the
Executive’s employment) for the two-year period following the
Separation Date;
(iii) Executive may retain his
Company-issued cell phone and laptop computer (following a
following a cell phone stored data and hard-drive review in
accordance with Company policy) and personal files; and
(iv) At the end of the welfare
benefits continuation period provided for in Section 6(e) of the
Employment Agreement, and to the extent permitted by applicable law
and the terms of the policy, Executive may (A) purchase his
Company-maintained life insurance policy for its then cash value,
or (B) to the extent such policy has no cash value, the
Company shall assign the policy to the Executive at no additional
cost.
(v) With respect to the
Executive’s option and equity awards, such awards shall be
treated in accordance with the terms and conditions of the award
grants.
b. Executive acknowledges and
agrees that under the terms of this Agreement he is receiving
consideration beyond that which he would otherwise be entitled to
and which, but for the mutual covenants set forth in this
Agreement, the Company would not otherwise be obligated to
provide.
c. Except for Executive’s
(i) 2009 pro-rated bonus pursuant to the Company’s
annual incentive plan, which will be payable no later than
March 15, 2010 in accordance with Section 6(d) of the
Employment Agreement; (ii) health and welfare and other
employee benefits continuation pursuant to Section 6(e) of the
Employment Agreement and (iii) business expenses to be
reimbursed in accordance with the Company’s policy, Executive
acknowledges and agrees that he has been paid all compensation due
to him under the terms of the Employment Agreement
d. The “Effective
Date” for purposes of this Agreement shall be the eighth (8
th ) calendar day following the date that Executive
executes this Agreement, provided that Executive does not revoke or
attempt to revoke his acceptance of this Agreement prior to such
date in accordance with Section 4.b.
3. MUTUAL RELEASE AND
WAIVER .
a. Executive’s
Release .
(i) In exchange for the
consideration described in Section 2.a. above, Executive
hereby forever releases and discharges the Company and its parents,
affiliates, successors, and assigns, as well as each of its past
and present officers, directors, employees, agents, attorneys, and
shareholders (collectively, the “Company Released
Parties”), from any and all claims, charges, complaints,
liens, demands, causes of action, obligations, damages, and
liabilities, known or unknown, suspected or unsuspected, that
Executive had, now has, or may hereafter claim to have against the
Company Released Parties arising out of or relating in any way to
Executive’s employment with, or termination from, the
Company, or otherwise relating to any of the Company Released
Parties from the beginning of time to the Effective Date of this
Agreement (the “Executive’s Release”).
Executive’s Release specifically extends to, without
limitation, any and all claims or causes of action for wrongful
termination, breach of an express or implied contract, breach of
the covenant of good faith and fair dealing, breach of fiduciary
duty, fraud, misrepresentation, defamation, slander, infliction of
emotional distress, disability, loss of future earnings, and any
claims under any applicable state, federal, or local statutes and
regulations, including, but not limited to, the Civil Rights Act of
1964, as amended, the Equal Pay Act of 1963, as amended, the Fair
Labor Standards Act, as amended, the Americans with Disabilities
Act of 1990, as amended (the “ADA”), the Rehabilitation
Act of 1973, as amended, the Age Discrimination in Employment Act,
as amended (“ADEA”), as amended, the Older Workers
Benefit Protection Act, as amended (the “OWBPA”), the
Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), the Worker Adjustment and Retraining
Notification Act, as amended (the “WARN Act”),
Section 806 of the Sarbanes-Oxley Act, the Family and Medical
Leave Act, as amended, and the Arizona Civil Rights Act, as
amended; provided , however , that Executive’s
Release does not waive, release, or otherwise discharge:
(A) any claim or cause of action that cannot legally be
waived; (B) any claim or cause of action to enforce
Executive’s rights under this Agreement or the Employment
Agreement; (C) any claim or cause of action for
indemnification pursuant to any applicable indemnification
agreement, any D&O insurance policy applicable to Executive
and/or the Company’s certificates of incorporation, charter
and by-laws or any claim for contribution o
