EXHIBIT 10.10
DATED 17 JULY 2002
- --------------------------------------------------------------------------------
(1) INSIGHT ENTERPRISES INC
- AND -
(2) DAVID PALK
--------------------
COMPROMISE AGREEMENT
--------------------
CONTENTS
1. INTERPRETATION......................................................... 1
2. SEVERVANCE PAYMENT AND CONTINUING BENEFITS............................. 2
3. LEGAL EXPENSES......................................................... 3
4. RESIGNATION OF DIRECTORSHIP............................................ 4
5. WARRANTIES............................................................. 4
6. TAX INDEMNITY.......................................................... 4
7. CONFIDENTIALITY........................................................ 5
8. POST-TERMINATION RESTRICTIONS.......................................... 7
9. COMPANY PROPERTY....................................................... 9
10. CLAIMS AGAINST THE COMPANY............................................. 9
11. WHOLE AGREEMENT........................................................ 12
12. THIRD PARTY RIGHTS..................................................... 12
13. HEADINGS............................................................... 12
ANNEX...................................................................... 14
SCHEDULE 1................................................................. 15
Letter of Resignation.................................................. 15
Schedule 3................................................................. 16
THIS COMPROMISE AGREEMENT is made on 17 July 2002
BETWEEN
(1) INSIGHT ENTERPRISES INC of 6820 South Harl Avenue, Tempe, Arizona 85283
USA ("COMPANY");
(2) DAVID PALK of Tumblehome, Mill Road, Marlow, Buckinghamshire SL7 1QB
("DIRECTOR").
BACKGROUND
1. The Director's employment with the Company terminated on the Termination
Date.
2. The Company is entering into this agreement for itself and as agent for
all its Associated Companies and is duly authorized in that behalf.
IT IS AGREED
1. INTERPRETATION
In this agreement:
"ADDITIONAL TAX" means further income tax, national insurance
contributions interest and/or penalties thereon arising in respect of the
payments made and benefits provided under this agreement, other than the
income tax deducted under clause 2 below;
"APPOINTMENT" means the employment of the Director by the Company;
"ASSOCIATED COMPANY" means a company un which the Company or any other
holding Company or Subsidiary Company is directly or indirectly
beneficially interested in 20% (twenty per cent) or more of that company's
issued ordinary share capital. "Holding Company" and "Subsidiary Company"
have the meanings defined by section 736 of the Company of the Companies
Act 1985 (or any statutory modification or re-enactment of that Act);
"BOARD OF DIRECTORS" means the board of directors of the Company from time
to time;
"BUSINESS means the business carried on by the Company from time to time:
1
"GROUP" means the Company and all companies which are for the time being
either a Holding Company of the Company or a Subsidiary or Associated
Company of either the Company or any such Holding Company;
"PAYE REGULATIONS" means the Income Tax (Employment) Regulations 1993 (as
amended, extended or replaced from time to time);
"TERMINATION DATE" means Tuesday 16 July 2002.
2. SEVERANCE PAYMENT AND CONTINUING BENEFITS
Subject to the Director's compliance with all obligations imposed by
virtue of this agreement and in full and final settlement of the claims
set out in clause 10.1 below, the Company shall, as compensation for loss
of employment but without admission of liability:
2.1 SEVERANCE PAYMENT
Pay to the Director within 14 days following the date of this agreement
the sum of L400.000 ("SEVERANCE PAYMENT")
2.1.1 It is understanding of the parties to this agreement that the first
L30,000 of the Severance Payment may be paid free of tax and
National Insurance contributions.
2.1.2 The company shall deduct from the Severance Payment of a sum of
L47,500 as accrued pension contributions relating to the period 16th
July 2002-15th July 2003 and pay into the Directors Pension fund.
Income tax and National Insurance contributions on the balance in
excess of the initial L30,000 will account for the same to the
Inland Revenue or other statutory authority as required by law.
2.1.3 The Company shall deduct from the Severance Payment basic rate
income tax and National Insurance contributions on the balance in
excess of L30,000 and will account for the same to the Inland
Revenue or other statutory authority as required by law.
2
2.1.4 Any further liability in respect of Additional Tax on the Severance
Payment and other benefits provided pursuant to this agreement shall
be the Director's alone.
2.2 PRIVATE MEDICAL INSURANCE
Until 15 July 2003 or until the Director takes up full time employment
with another employer, whichever is the sooner, continue to provide for
the benefit of the Director private medical insurance on the same terms
and conditions as applied immediately prior to the Termination Date.
2.3 EXPENSES
The Company shall reimburse the Director for all reasonable and
authorized out of pocket expenses (including hotel and traveling
expenses) wholly necessary and exclusively incurred by the Executive in
the discharge of his duties subject to the production of appropriate
receipts or vouchers or such other evidence as the Company may
reasonably require as proof of such expenses/Company's rules and
policies relating to expenses as may be in force from time to time
within 30 days of the date of this agreement.
2.4 PROPERTY
Reimburse to the Director L36,000 deposit paid by the Director in
relation to the purchase of a property in Tapestry Canyon, Arizona
conditional on and in the event that the Director having undertaken all
reasonable endeavors to recover the deposit himself has failed to do
so.
3. LEGAL EXPENSES
The Company shall on the production of an appropriate copy VAT invoice
addressed to the Director for payment by the Company, pay to the
Director's relevant independent adviser as referred to in clause 10 below
the Director's legal expenses relating exclusively to the negotiation and
preparation of this agreement, up to a maximum of L250 including VAT.
Payment will be made direct to the Director's legal advisers.
3
4. RESIGNATION OF DIRECTORSHIP
4.1 The Director shall immediately resign as a director of any Group
Companies by signing the letter of resignation attached to this
agreement at Schedule 1, which shall be deemed to have been delivered
to the Company and the relevant Group Companies as at the date of this
agreement.
4.2 The Director shall immediately do all such acts and things as the
Company may require to effect the resignation from other offices with
the Company or any of its Group Companies or which the Director held by
reason of employment by the Company including (but without prejudice to
the generality of the above) any trusteeships.
4.3 Having resigned as a director of the Company and from such other
offices which the Director holds with any Group Company the Director
will not represent or suggest in any way any continued authority in
respect of or connection to the Company or any Group Company
5. WARRANTIES
5.1 Director warrants to the Company that as of the date of this agreement
the Director has not commenced employment and has not agreed to accept
nor received any offer of employment from any person firm or company,
the expression "employment" for the purpose of this clause to include
any contract of service, any contract for services, any partnership or
agency agreement.
5.2 Director warrants to the Company that as far as the Director is aware
there is not in existence at the date of this agreement any material
fact concerning the business of the Company, which has not been
disclosed to the Board of Directors.
6. TAX INDEMNITY
The Director undertakes that if the Company or any of its Associated
Companies or Group Companies is called upon to account to the Inland
Revenue to pay any Additional Tax the Director will, at the written
request of such company, immediately pay to such company an amount equal
to the Additional Tax (on an after-tax) provided that no payment of
Additional Tax will be made to the Inland Revenue without particulars of
any proposed payment being given to the Director and the Director being
given the opportunity at the Director's own expenses to dispute any such a
payment.
4
7. CONFIDENTIALITY
7.1 The Company and Director undertakes that they will not, whether
directly or indirectly, make publish or otherwise communicate any
disparaging or derogatory statements, whether in writing or otherwise,
concerning the other, including in the case of the Director concerning
any of the Company's Associated Companies or Group Companies or any of
its or their officers or Directors save and except that the Company
publish a statement as it determines appropriate concerning the
financial performance of the Company for the period 1 April 2002 to 31
July 2002.
7.2 The Director agrees to keep the terms on which the Director's
employment is terminated strictly confidential and agrees not to
disclose, communicate or otherwise make public the same to anyone (save
to the Director's immediate family, professional advisers and the
relevant tax authorities and otherwise as may be required to be
disclosed by law).
7.3 The Director shall not at any time during the Appointment nor at any
time after its termination except for a purpose of the Company or the
Group directly or indirectly use or disclose trade secrets or
confidential information relating to the Company or any Group company
or the Company's or any group company's agents, customers, prospective
customers or suppliers.
7.4 For the purpose of clause 7.3 confidential information shall include
any information relating to the Business and/or the financial affairs
of the Company or the Group or the company's or any Group company's
agents, customers, prospective customers or suppliers and in particular
shall include:
7.4.1 The business methods and information of the Company and any Group
company (including price charged, discounts given to customers or
obtained from suppliers, product development, marketing and
advertising programmes, costings, budgets, turnover, sales targets
or other financial information);
7.4.2 Lists and particulars of the Company's and Group company's suppliers
and customers and the individual contacts at such suppliers and
customers;
5
7.4.3 Details and terms of the Company's and any Group company's
agreements
7.4.4 with suppliers and customers;
7.4.5 Secret manufacturing or production processes and know-how employed
by the Company and any Group company or its/their suppliers;
7.4.6 Confidential details as to the design of the Company's and any Group
company's or its and/or their suppliers' products and inventions or
developments relating to future products.
7.4.7 Details or any promotions or future promotions or marketing or
publicity exercises planned by the Company or any Group Company.
7.4.8 Details of any business plans of the Company or any Group company;
and
7.4.9 Any information which may affect the value of the business or the
shares of the Company or any Group company;
Whether or not in the case of documents or other written materials they
are or were marked as confidential and whether or not, in the case of
other information, such information is identified or treated by the
Company or any Group company as being confidential.
7.5 The Director shall not be restrained from disclosing any confidential
information which:
7.5.1 he is authorized to disclose by the Board of Directors;
7.5.2 had entered the public domain unless the public domain as a result
of an unauthorized disclosure by the Director or an authorized
disclosure for an unauthorized purpose by the Director or anyone
else employed or engaged by the Company or any Group company;
7.5.3 he required to disclose by laws; or
6
7.5.4 he is entitled to disclose under the Public Interest Disclosure Act
of 1998 provided that the disclosure is made in an appropriate way
to an appropriate person having regard to the provisions of that
Act.
8. POST-TERMINATION RESTRICTIONS
8.1 The Director shall not without the prior written consent of the Board
of Directors (such consent not to be unreasonably withheld) for a
period of 12 months after the termination Date, directly or indirectly,
on his own behalf, or on behalf of any person firm or company in
connection with any business which is or is intended or about to be
competitive with Restricted Business (as defined below)
8.1.1 solicit or canvass the custom of any Customer (as defined below);
8.1.2 solicit or canvass the custom of any Potential Customer (as defined
below);
8.1.3 deal with any Customer;
8.1.4 solicit or entice away, or attempt to entice away from the Company
or any Associated Company or Group Company any employee of the
Company or any Associated Company or Group Company who is employed
by the Company or any Associated Company or Group Company at the
Termination Date provided that this restriction shall only apply to
persons whom the Director has managed or with whom he has worked at
any time during the 12 months immediately preceding the Termination
Date and who on the Termination Date was employed by the Company or
Group Company or Associated Company in the capacity of director or
any technical, IT, financial, marketing, business development or any
other managerial role and provided that this restriction shall not
apply to nonmanagerial (clerical or administration or manual) staff;
7
8.1.5 employ, offer to employ or enter into partnership with any employee
of the Company or any Group Company or Associated Company who is
employed by the Company or any Group Company at the Termination Date
provided that this restriction shall only apply to the persons whom
the Director has managed or with whom he has worked at any time
during the 12 months immediately preceding the Termination Date and
who on the Termination Date was employed in the capacity of director
or any technical, IT, financial, marketing, business development or
any other managerial role with a view to using the knowledge or
skills of such person in connection with any business or activity
which is or is intended to be competitive with the Restricted
Business and provided that his restriction shall not apply to
nonmanagerial (clerical or administrative or manual) staff.
8.2 In clause 7.5.4 the following words and phrases shall have the
following meanings:
8.2.1 "RESTRICTED BUSINESS" shall mean the Business or any part of the
Business which in either case:
8.2.1.1 is carried on by the Company or any member of the Group or
an Associated Company at the Termination Date; or
8.2.1.2 is to the knowledge of the Executive to be carried out by
the Company or any member of the Group or an Associated
Company at any time during the six months immediately
following the Termination Date;
and which the Director was materially concerned with or had
management responsibility for (or had substantial confidential
information regarding) in either case at any time during the period
of 12 months immediately prior to the Termination Date;
8.2.2 "CUSTOMER" shall mean any person, firm or company who at the
Termination Date or at any time during the 12 months immediately
prior to such termination was a customer of the Company or any
member of the Group or Associated Company and from whom the Director
had obtained business on behalf of the Company or any Group Company
or Associated Company or to whom the Director had provided or
arranged the provision of goods or services on behalf of the Company
or any Group Company or Associated Company or for whom the Director
had management responsibility in any case at any time during the
period of 12 months immediately prior to the Termination Date;
8
8.2.3 "POTENTIAL CUSTOMER" shall mean any person, firm or company with
whom either the Director or any other employee of the Company or an
Group Company or Associated Company who the Director had, at the
date of the negotiations, management responsibility for carried out
negotiations on behalf of the Company or any Group Company or
Associated Company at any time during the six months immediately
prior to the Termination Date with a view to such person, firm or
company becoming a customer of the Company or any Group Company or
Associated Company.
8.3 The restrictions contained in this clause are considered by the parties
to be reasonable in all the circumstances. Each sub clause constitutes
an entirely separate and independent restriction and the duration,
extent and application of each of the restrictions are no greater than
is necessary for the protection of the interests of the Company and any
Group Company or Associated Company.
9. COMPANY PROPERTY
The Director undertakes that all property, equipment, records,
correspondence, documents, files and other information (whether originals,
copies or extracts or in any electronic format) belonging to the Company
or any of its Associated Companies or Group Companies (other than as
specified in this agreement) has been returned and that the Director has
not retain any copies.
10. CLAIMS AGAINST THE COMPANY
10.1 The Director believes that but for this agreement he could bring
proceedings against the Company, its Associated Companies, Group
Companies and their respective shareholders, officers or directors for
the contractual an statutory claims listed below:
10.1.1 Wrongful dismissal; and
10.1.2 Breach of contract; and
10.1.3 Unlawful deduction of wages under the Employment Rights Act 1996
(as amended) ("ERA"); and
9
10.1.4 unfair dismissal under the ERA; and
10.1.5 unlawful discrimination on grounds of sex or marital status
(including for the avoidance of doubt victimization) under the Sex
Discrimination Act 1975 (as amended) ("SDA"); and
10.1.6 unlawful discrimination on grounds of race, colour, ethnic, or
national origins, nationality (including for the avoidance of doubt
victimization) under the Race Relations Act 1976 (as amended)
("RRA"); and
10.1.7 unlawful discrimination on grounds of disability (including for the
avoidance of doubt victimization) under the Disability
Discrimination Act 1995 (as amended) ("DDA"); and
10.1.8 under the Equal Pay Act 1970 (as amended) ("EPA"); and
10.1.9 under the Trade Union and Labour Relations (Consolidation) Act 1992
("TULR(C)A"); and
10.1.10 under the National Minimum Wage Act 1998 ("NMWA"); and
10.1.11 under the Transfer of Undertaking (Protection of Employment)
Regulations 1981 ("TUPE"); and
10.1.12 under the Working Time Regulations 1998 ("WTR"); and
10.1.13 under the Transnational Information and Consultation of Employee
Regulations 1999 ("TICER"); and
10.1.14 under the Part-Time Workers (Prevention of Less Favourable
Treatment Regulations 2000 ("PTWR"); and
10.1.15 under the Treaty of Amsterdam.
10.2 The terms of this agreement are reached without admission of liability
and are in full and final settlement of all claims (if any) whether
contractual, statutory or otherwise and whether under United Kingdom
and/or European Union law (including but not limited to the Director's
claims under clause 10.1 above) which the Director has or may has
against the Company or any of its Associated
10
Companies or Group Companies or their respective shareholders, officers
or directors arising out of or in connection with the Director's
employment or directorship or their termination save for any claims for
personal injury (other than any stress related personal injury claim
alleged to have been incurred in connection with claque 10.1 above)
10.3 The Director represents and warrants that the claims listed a t clause
10.1 include all of the companies, claims and concerns which with the
benefit of legal advice the Director believes that he has against the
Company or any of its Associated Companies or Group Companies or their
respective shareholders, officers or directors arising out of the
Director's employment or any act or omission relating to the Director's
employment or relating to, arising out of or connected to the manner of
its termination.
10.4. The Director represents and warrants that:
10.4.1 the Director has received independent legal advice from a relevant
independent adviser as to the terms and effect of this agreement
and in particular its effect on the Director's ability to pursue
statutory rights before an employment tribunal. The name of the
relevant independent adviser who has so advised the Director is
Karen Bulfin of Bulfin & Co of 203 Field End, East Cole, Pinner,
Middlesex HA5 1QZ and the Director will procure the relevant
independent adviser to complete and return to the Company the
endorsement annexed to this agreement; and
10.4.2 the Director is advised by the relevant independent adviser that
there is in force and was, at the time the Director received the
advice referred to above a contract of insurance, or an indemnity
provided for members of a profession or professional body, covering
the risk of a claim by the Director in respect of loss arising in
consequence of that advice; and
10.4.3 the Director has not issued proceedings before the employment
tribunals, High Court or County Court in respect of any claim in
connection with the Service Agreement or its termination and that
all monies paid to the Director under this agreement will be
repayable to the Company, as a debt and upon demand; and
11
10.4.4 as at the date of this agreement, the Director is not aware of any
facts or matters which might give rise to a claim for personal
injury against the Company or any of its Associated Companies or
Group Companies.
10.5 The Company and the Director agree and acknowledge that the conditions
regulating compromise agreements and to compromise contracts contained
in the ERA, the SDA, the RRA, the DDA, the NMWA and in any other act or
statutory instrument referred to in clause 10.1 above are intended to
be and have been satisfied.
10.6 The Director shall indemnify the Company in full and keep the Company
fully indemnified for and against all and any claims, demands,
judgments, orders, liabilities, damages, expenses or costs including
without limitation all reasonable legal and professional fees and
disbursements together with VAT thereon incurred by the Company arising
out of or in connection with any breach by the Director of the
warranties in this clause 10.
11. WHOLE AGREEMENT
The agreement sets out the entire agreement between the parties and
supersedes all prior discussions between them or their advisors and all
statements, representations, terms, and conditions, warranties,
guarantees, proposals, communications, and understandings whenever given
and whether orally or in writing.
12. THIRD PARTY RIGHTS
Nothing in this agreement confers on any third party and benefits under
the provisions of the Contracts (Rights of Third Parties) Act 1999.
13. HEADINGS
The headings to clauses in this agreement are for convenience only and
have no legal effect.
12
ANNEX
INDEPENDENT ADVISER'S ENDORSEMENT ADDRESSED TO THE BOARD OF DIRECTORS OF
THE COMPANY
I, KAREN BULFIN of Bulfin & CO confirm that I have given independent legal
advice to David Palk of Tumblehome, Mill Road, Marlow, Buckinghamshire,
SL7 1QB as to the terms and effect of the above Agreement and in
particular its effect on David Palk' ability to pursue his rights before
an employment tribunal.
I confirm that I am a "relevant independent adviser" (as such term is
defined in section 203 of the Employment Rights Act 1996) and that there
is and was at the time I gave the advice referred to above in force a
contract of insurance or an indemnity provided for members of a profession
or professional body, covering the risk of a claim by David Palk in
respect of any loss arising in consequence of that advice.
SIGNED /s/ Karen Bulfin
----------------------
BUFLIN & CO
SOLICITORS
203 FIELD END ROAD
EASTCOTE, PINNER
MIDDLESEX, HA5 1QZ
13
SIGNED /s/ Tony Smith
-------------------------------------------------------
FOR AND BEHALF OF INSIGHT ENTERPRISES INC
SIGNED /s/ Mr. David Palk
-------------------------------------------------------
14
SCHEDULE
Refer clause 4
LETTER OF RESIGNATION
Private & Confidential
The Directors
Insight Enterprises Inc
6820 South Harl Avenue
Tempe
Arizona
85283
USA
17 July 2002
Dear Sirs
Please accept this letter as formal notice of my resignation as a director of
each of this Group Companies of which I am a director. My resignation is to be
effective immediately.
Please arrange for particulars of my resignation to be filed with the Register
of Companies.
Yours faithfully,
/s/ Mr. David Palk
15
17 July 2002
D. Palk Esq.,
Tumbleholme,
Mill Road,
Marlow,
Bucks,
SL7 1QB
Dear David,
Settlement and Compromise Agreement dated 17th July 2002
Section 2-2 Private Medical Insurance Amendment
As an amendment to section 2-2 Private Medical Insurance is to now also include
life assurance cover to the value of 4 x annual salary (at date of termination)
for a period of 12 months from 16th July 2002 or until suitable alternative
employment is found. Yours sincerely,
/s/ Tony Smith
President-Insight Worldwide
Accepted on behalf of David Palk
18-7-02
16
17 July 2002
Mr. D Palk
Tumblehome
Mill Road
Marlow
Buckinghamshire
SL7 1QV
Dear David
This letter is to record out agreement to vary the terms of the compromise
agreement entered into between you and the Company date [17 July 2002]. It is
agreed that clause 2 will be varied as follows:-
1. There shall be a new clause 2.1.2:-
"Subject to prior receipt by the Company from the Director's pension
scheme administrators of satisfactory evidence of compliance with
Inland Revenue Pension Rules the Company shall deduct from the
Severance Payment a sum of L47,500 gross as accrued pension
contributions relating to the period 16 July 2002 to 15 July 2003 and
shall pay such sum into the Director's pension fund."
2. Clause 2.1.3 shall be amended to read:-
"The Company shall deduct from the balance of the Severance Payment
basic rate income tax and national insurance contributions and will
account for the same to the Inland Revenue or other statutory authority
as required by law."
3. Clause 2.1.3 shall renumbered 2.1.4.
4. Clause 4.2 shall be varied by the addition of the following words added
to the end of the paragraph:-
"save in respect of the Director's executive pension fund. For the
avoidance of doubt there is nothing in this agreement preventing fund
trustees from transferring the Director's executive pension fund to a
new legal entity of their choosing."
5. Clause 2.5 shall be varied to read as follows:-
17
"Within 60 days of the signing of the Compromise Agreement reimburse to
the Director L36,000 paid by the Director as a deposit in relation to
the purchase of a property in Tapestry Canyon, Arizona conditional on
and in the event of the Director having undertaken all reasonable
endeavors to recover such deposit and failed to do so. On payment by
the Company of such sum to the Director, the Director shall transfer to
the Company all rights to recover such deposit to the Company and shall
take such steps as are necessary without delay to ensure that such
rights are transferred effectively and legally."
Please sign this letter where indicated below to confirm your agreement to these
variations to the compromise agreement.
Yours sincerely
- ------------------------------------
SIGNED: /s/ Tony Smith
----------------------------
Insight Direct
DATED: 17/7/02
----------------------------
SIGNED: /s/ David B. Palk
----------------------------
DATE: 17/7/02
----------------------------
18