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EXHIBIT 10.46
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT is entered into between Philip D. Ellett
("Associate") and Ingram Micro Inc., a Delaware corporation ("Ingram"),
in recognition of Associate's service to Ingram and in order to induce
Associate to continue to provide limited services to Ingram after his
resignation. In consideration of the mutual promises and agreements
contained in this document, intending to be legally bound, Associate
and Ingram contract and agree as follows:
1. Resignation. Associate has resigned as an officer of Ingram effective
as of September 2, 1999 (the "Resignation Date"). After the Resignation
Date, Associate will continue as a part-time employee of Ingram in
accordance with the terms and conditions of this Agreement through
November 12, 1999 (the "Separation Date"), at which time his employment
with Ingram will terminate. During this period Associate will report to
the Office of the Chairman and undertake such projects as members of
the Office of the Chairman may request. Ingram will maintain
Associate's present extension on its telephone system, but Associate
will not be provided an office or administrative support except as
Ingram determines is necessary to enable him to accomplish the projects
assigned to him hereunder. Associate understands and agrees that after
the Resignation Date he no longer will be an agent of Ingram or any of
its Affiliates, and he will no longer have any authority to bind Ingram
or any Affiliate or act on behalf of Ingram or any such Affiliate.
2. Salary Continuation. As compensation for all sums and benefits owed to
and/or earned by Associate based on his employment with Ingram and any
and all of its Affiliates, and in consideration of Associate's
continuing obligations under this Agreement, Ingram will continue to
pay Associate his current base salary from the Resignation Date through
March 31, 2000 (the "Salary Continuation Period"). Such amount shall be
payable through Ingram's normal payroll procedures, and will be subject
to applicable withholding requirements.
3. COBRA Coverage. Associate acknowledges that, effective as of the
Separation Date, he will cease to be qualified to participate in the
employee benefit plans to which he was entitled as an associate or
employee of Ingram. Associate will, however, have the rights of a
terminated employee to convert and/or continue certain benefit
coverages as provided in the respective benefit plans, including COBRA
continuation rights for medical and dental coverages. Ingram will
provide under separate cover further information to Associate regarding
COBRA continuation coverage and other conversion and/or continuation
rights. Notwithstanding the foregoing, during the Salary Continuation
Period, Ingram will pay directly or reimburse Associate for the amount
by which the premiums for COBRA continuation coverage exceeds the cost
for the equivalent coverage which Ingram charges its employees at that
time.
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4. Key Employee Stock Purchase Plan. Notwithstanding the provisions of
Section 6(b)(i) of the Acquisition Agreement dated July 1, 1996 between
Ingram and Associate relating to Associate's purchase of 75,000 shares
of Ingram Class B Common Stock under the Ingram Key Employee Stock
Purchase Plan (the "Acquisition Agreement"), Ingram shall not exercise
its right to repurchase the Shares (as such term is defined in the
Acquisition Agreement) for so long as Associate performs his
obligations under this Agreement and will be permitted to exercise its
repurchase rights only with respect to the Restricted Shares (as such
term is defined in the Acquisition Agreement), owned by Associate, if
any, as of the date of any failure by Associate to perform his
obligations. Except as modified hereby, the Acquisition Agreement shall
continue in full force and effect in accordance with its terms.
5. Non-disclosure. Associate acknowledges his obligation not to disclose,
during or after employment, any trade secrets or proprietary and/or
confidential data or records of Ingram or its Affiliates or to utilize
any such information for private profit. Each of the parties hereto
agrees that such party will not release, publish, announce or otherwise
make available to the public in any manner whatsoever any information
or announcement regarding this Agreement or the transactions
contemplated hereby without the prior written consent of the other
party hereto, except as required by law or legal process, including, in
the case of Ingram, filings with the Securities and Exchange
Commission. Associate agrees not to communicate with, including
responding to questions or inquiries presented by, the media, employees
or investors of Ingram, its Affiliates or any third party relating to
the terms of this Agreement, without first obtaining the prior written
consent of Ingram. Notwithstanding the foregoing, Associate may make
disclosure to his spouse, attorneys and financial advisors of the
existence and terms of this Agreement provided that they agree to be
bound by the provisions of this Paragraph 5. Each party agrees not to
make statements or take any action to disparage, dissipate or
negatively affect the reputation of the other with employees,
customers, suppliers, competitors, vendors, stockholders or lenders of
Ingram, its Affiliates or any third party.
6. Return of Property. Associate acknowledges his obligation to promptly
return to Ingram all property of Ingram and its Affiliates in his
possession, including without limitation all keys, credit cards,
computers, office equipment, documents, files and instruction manuals.
Notwithstanding the foregoing, Associate will be permitted to purchase
the equipment presently in his possession listed on Exhibit A to this
Agreement for a price of $250.00.
7. Associate's Obligations. In consideration of the benefits and stock
ownership rights to be received by Associate hereunder, Associate and
Ingram have further agreed as follows:
a. Associate will not directly or indirectly make known to any
person, firm, corporation, partnership or other entity any
list, listing or other compilation, whether prepared or
maintained by Associate, Ingram or any of Ingram's Affiliates,
which contains
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information that is confidential to Ingram or any of its
Affiliates about their customers ("Ingram Customers"),
including but not limited to names and addresses, or, at any
time on or before April 1, 2000, call on or solicit, or
attempt to call on or solicit, in either case with the intent
to divert business or potential business from Ingram or any of
its Affiliates, any of the Ingram Customers with whom he has
become acquainted during his employment with Ingram or any of
its Affiliates, either for his own benefit or for the benefit
of any other person, firm, corporation, partnership or other
entity.
b. Through April 1, 2000, Associate will not, and will not permit
any person, firm, corporation, partnership or other entity of
which he is an officer or control person to, (i) knowingly
solicit, entice, or persuade any individual who is an
associate of Ingram or any of its Affiliates at any time
during the period from the date of this Agreement through
April 1, 2000 (each such individual, an "Ingram Associate") to
leave the services of Ingram or any of its Associates for any
reason, or (ii) solicit for employment, hire, or engage any
present or future Ingram Associate as an employee, independent
contractor or consultant.
c. Associate acknowledges that he has unique knowledge of Ingram
and its Affiliates and unique knowledge of the computer and
software sales and distribution industry. Based on his unique
status, he agrees that through April 1, 2000, he will not be
employed or hired as an employee or consultant by, or
otherwise directly or indirectly provide services for, any of
Tech Data, Merisel, Inacom, Pinacor, Gates Arrow, Marshall,
Hallmark, Hamilton Avnet, Daisytek, Azerti, Azlan, Northamber,
Tech Pacific, Synnex, and/or GE Capital Information Technology
Solutions-North America, Inc., and any subsidiary or affiliate
of these entities in a business or line of business conducted
by any such entity which competes with any line of business
conducted by Ingram or any of its Affiliates. Notwithstanding
the foregoing, should Associate be employed by an entity that
is not a subsidiary or affiliate of one of these entities at
the time he commences such employment, but subsequently
becomes a subsidiary or affiliate of, or becomes merged into,
one of these entities on or before April 1, 2000, he shall not
be deemed to be in breach of the provisions of this Paragraph
7.c due to such employment provided that at the time he
commenced his employment there had been no public announcement
of an agreement pursuant to which his employer would become a
subsidiary or affiliate of, or merged into, one of these
entities or discussions that could lead to such an agreement
and Associate had no knowledge of the existence of any such
agreement or discussions. Associate further agrees that he
will not own any interest in, provide financing to, be
connected with, or be a principal, partner or agent of any
such competitive distributor or aggregator; provided, however,
he may own less than 1% of the outstanding shares of any such
entity whose shares are traded in the public market.
d. Upon request of Ingram or any of its Affiliates, Associate
will make himself available to provide reasonable assistance
to Ingram or any such Affiliate up to a maximum of (i) 60
hours during the period from the Resignation Date through
September 30, 1999, (ii) 40 hours during the month of October
1999, and (iii) 20 hours in each of the five
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months from November 1999 through March 2000, and will use
reasonable efforts to arrange his commitments so as to make
himself available for such assistance on a basis which is
consistent with the requests of Ingram or any of its
Affiliates. Such assistance may include telephone
conversations, correspondence, attendance and participation in
meetings, transfer of knowledge or information regarding
operational or other issues, litigation preparation and
trials. During such period, Ingram shall reimburse Associate
for any out-of-pocket expenses he may incur in connection with
such assistance in accordance with Ingram's reimbursement
policies. After April 1, 2000, Associate shall continue to
provide such assistance as requested by Ingram and, in such
event, shall be compensated at a rate per day (minimum charge,
one half day) commensurate with the daily rate he was earning
based on his current base salary immediately prior to the
Resignation Date.
The running of the periods prescribed in this Paragraph shall
be tolled and suspended by the length of time Associate works
in circumstances that a court of competent jurisdiction
subsequently finds to violate the terms of this partial
restraint.
8. Rights in Event of Breach. In the event of Associate's breach
of this Agreement (excluding breach of this Agreement due to
death or total disability and provided that in the event of a
breach of Paragraph 7.c or 7.d, such breach shall have
continued for 15 days after the sooner of Associate's
discovery thereof or receipt of notice from Ingram thereof),
in addition to all other rights and remedies to which Ingram
may be entitled by law or in equity, Ingram shall have no
obligation to make any further payments hereunder and may
purchase any remaining Restricted Shares under the Acquisition
Agreement. If Ingram exercises such right, Associate's
obligations under Paragraph 7.c and 7.d will terminate.
9. Confidential Information. This Agreement will in no way void
or diminish Associate's obligation to protect and keep
confidential any and all proprietary and/or confidential
information of Ingram and its Affiliates which Associate may
have or acquire in the future.
10. Injunctive Relief. Irreparable harm will be presumed if
Associate breaches any covenant in this Agreement and damages
may be very difficult to ascertain. In light of these facts,
Associate agrees that any court of competent jurisdiction
should immediately enjoin any breach of this Agreement upon
the request of Ingram, and Associate specifically releases
Ingram from the requirement of posting any bond in connection
with temporary or interlocutory injunctive relief, to the
extent permitted by law. The granting of injunctive relief by
any court shall not limit Ingram's right to recover any
amounts previously paid to Associate under this Agreement or
any damages incurred by it due to a breach of this Agreement
by Associate.
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11. Release by Associate. Effective immediately, Associate hereby
fully, finally and irrevocably discharges Ingram and each of
its Affiliates, and each present, former and future director,
officer and employee of Ingram and its Affiliates and any
parent, subsidiary, affiliate or shareholder thereof (the
"Ingram Released Parties") from all manner of claims, actions,
causes of action or suits, in law or in equity, which
Associate has or may have, known or unknown, against the
Ingram Released Parties, or any of them, by reason of any
matter, cause or thing whatsoever, including any action
arising from or during his employment with Ingram and any of
its Affiliates, resulting from or relating to his employment
or the termination thereof, or relating to his status as an
officer, director, employee or participant in any employee
benefit plan of Ingram or any of its Affiliates; provided,
however, that the foregoing (a) is not intended to be, and
shall not constitute, a release of any right of Associate to
obtain indemnification and reimbursement of expenses from
Ingram or any of its Affiliates with respect to claims based
upon or arising from alleged or actual acts or omissions of
Associate as an officer, director or employee of Ingram or any
of its Affiliates to the fullest extent provided by law or in
any applicable certificate of incorporation, bylaw or
contract, and (b) shall not release Ingram from liability for
violations of this Agreement after the date hereof. From and
after the date hereof, Associate agrees and covenants not to
sue, or threaten suit against, or make any claim against, any
Ingram Released Party for or alleging any of the claims,
actions, causes of action or suits described above. Associate
acknowledges that this release includes, but is not limited
to, all claims arising under federal, state, local or foreign
laws prohibiting employer discrimination and all claims
growing out of any legal restrictions on the right of Ingram
or any of its Affiliates to terminate its employees. Associate
also specifically waives and releases all claims of employment
discrimination and all rights available to him under Title VII
of the Civil Rights Act of 1964, as amended, the Age
Discrimination in Employment Act (ADEA), as well as all claims
or rights under the California Fair Employment and Housing
Act, or any similar law of any jurisdiction. Associate
specifically agrees that he will not institute litigation in
any forum, including any filing with any regulatory commission
or agency, against any Ingram Released Party based on any
allegations or circumstances that are in any way connected
with his employment or the termination of his employment with
Ingram and its Affiliates.
12. Waiver. Associate expressly waives and relinquishes all rights
and benefits under Section 1542 of the California Civil Code
which provides:
"Section 1542. General Release--Claim extinguished. A
general release does not extend to claims which the
creditor does not know or suspect to exist in his
favor at the time of executing the release, which if
known by his must have materially affected his
settlement with the debtor."
Associate understands and acknowledges that the significance
and consequence of this waiver of Section 1542 of the Civil
Code is that even if Associate should eventually suffer
damages arising out of his employment relationship with Ingram
and its
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Affiliates, or termination of such employment, Associate will
not be permitted to make any claim for those damages except as
expressly permitted by this Agreement. Furthermore, Associate
acknowledges that he intends these consequences even as to
claims for injuries and/or damages that may exist as of the
date of this Agreement but which he does not know exist, and
which, if known, would materially affect his decision to
execute this Agreement.
13. Right to Revoke. Associate acknowledges that he has the right
to seek legal counsel, and was advised to seek such counsel,
before entering into this Agreement. Associate shall have 21
days from the date on which this Agreement was delivered to
him in which to execute and return this Agreement to Ingram.
In the event that Associate does not execute and return this
Agreement within such 21 day period, the offer contained in
this Agreement shall be revoked and Ingram shall not be bound
by any terms or conditions contained herein. Associate further
understands he has the right to revoke this Agreement at any
time within seven days of execution of this Agreement by
written notice sent by certified mail and received by Ingram
prior to expiration of the seventh day, whereupon this
Agreement shall be null and void as of its inception.
14. Sole Remedy. Associate agrees that, in the event Ingram
breaches any provision of this Agreement, his sole remedy for
such breach shall be enforcement of the terms of this
Agreement or, in the case of a breach of Paragraph 4 hereof,
at Associate's election, recovery of any provable damages as a
result of such breach.
15. Attorney Fees. In the event that either party hereto files
suit to enforce or interpret the provisions of this Agreement,
the prevailing party shall be entitled to reasonable
attorney's fees and costs incurred therewith.
16. Definition of Affiliate. An "Affiliate" of Ingram for purposes
of this Agreement shall include any corporation or business
entity in which Ingram owns, directly or indirectly, at least
15% of the outstanding equity interest.
17. Enforceability. If any provision of this Agreement shall be
held invalid or unenforceable, the remainder of this Agreement
shall nevertheless remain in full force and effect. If any
provision is held invalid or unenforceable with respect to a
particular circumstance, it shall nevertheless remain in full
force and effect in all other circumstances.
18. Notices. Any notices, requests, demands and other
communications required or permitted to be given or made
hereunder shall be in writing and shall be deemed to have been
duly given (a) on the date delivered if personally delivered,
(b) on the third day after deposit in the U.S. mail or with a
reputable air courier service, properly addressed with postage
or charges prepaid, or (c) on the date transmitted by telefax
if the sender receives electronic confirmation of receipt of
such telefax, to the address or
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telefax number of Ingram or Associate, as the case may be, set
forth on the signature page of this Agreement.
19. Entire Agreement. This instrument contains and accurately
recites the complete and entire agreement among the parties,
and it expressly terminates, cancels, and supersedes any and
all prior agreements or understandings, if any, among the
parties, except for Ingram's agreement to make certain tax
equalization payments to Associate and provide certain tax
return preparation services to Associate with respect to the
period of Associate's European assignment on behalf of Ingram,
as set forth in paragraphs 14 and 15 of that certain letter
dated November 18, 1996 from Ingram to Associate, which shall
remain in effect. This Agreement may not be modified except in
writing signed by the parties.
20. Governing Law. This Agreement shall be governed by California
law, without regard to the choice or conflict of law
provisions thereof.
21. Paragraph Titles. The paragraph titles used in this Agreement
are for convenience only and do not define or limit the
contents of any paragraph.
22. Successors and Assigns. This Agreement shall be binding upon,
and shall inure to the benefit of, the heirs of Associate and
the successors and assigns of Ingram.
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Executed and delivered to Associate by Ingram on September 9, 1999 and
executed by Associate on the date set out below.
Notice Information: "Ingram"
Ingram Micro Inc. INGRAM MICRO INC.
1600 E. St. Andrew Place
Santa Ana, California 92705
Attention: Cyndy McGuire
Telephone: (714) 566-1000, ext. 22500
Facsimile: (714) 566-7733 By: /s/ JAMES E. ANDERSON, JR.
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Title: Senior Vice President
"Associate"
9/9/99 /s/ PHILIP D. ELLETT
- ------------------------------ -------------------------------------
Date Philip D. Ellett
Address:_____________________________
_____________________________________
_____________________________________
Facsimile:___________________________
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EXHIBIT A
Equipment to be Purchased
1. IBM laptop computer
2. Palm Pilot
3. Cellular telephone
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