<PAGE> 1
As filed with the Securities and Exchange Commission on December 17, 1998
Registration No. 333-____________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
INSIGHT ENTERPRISES, INC.
(Exact name of Registrant as specified in its charter)
Delaware 86-0766246
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6820 South Harl Avenue
Tempe, Arizona 85283
(Address of Principal Executive Offices) (Zip Code)
INSIGHT ENTERPRISES, INC. 1998 LONG-TERM INCENTIVE PLAN
INSIGHT ENTERPRISES, INC. 1998 OFFICER RESTRICTED STOCK PLAN
INSIGHT ENTERPRISES, INC. 1998 EMPLOYEE RESTRICTED STOCK PLAN
(Full Title of the Plans)
Eric J. Crown, Chief Executive Officer
Insight Enterprises, Inc.
6820 South Harl Avenue
Tempe, Arizona 85283
(Name and address of agent for service)
(602) 902-1001
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED (1) PER SHARE (3) PRICE (3) FEE
---------- -------------- ------------- ---------- ----
<S> <C> <C> <C> <C>
Common Stock, 1,600,000(2) $ 40.875 $ 65,400,000 $ 18,182
$.01 par value
(Long-Term Incentive Plan)
Common Stock, 25,000 $ 40.875 $ 1,021,875 $ 285
$.01 par value
(Officer Restricted Stock Plan)
Common Stock, 250,000 $ 40.875 $ 10,218,750 $ 2,841
$.01 par value
(Employee Restricted Stock Plan)
</TABLE>
- ------------------------
(1) In the event of a stock split, stock dividend, or similar transaction
involving the Registrant's Common Stock, in order to prevent dilution,
the number of shares registered shall be automatically increased to
cover the additional shares in accordance with Rule 416(a) under the
Securities Act of 1933.
(2) The number of shares of the Registrant's Common Stock registered
includes an amount which is reasonably expected to be offered and sold
pursuant to the Registrant's 1998 Long-Term Incentive Plan within two
years following the initial effective date of this Registration
Statement.
(3) Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to Rules 457(c) and 457(h) of the Securities
Act of 1933, on the basis of the average of the high and low prices for
shares of the Registrant's Common Stock on December 14, 1998.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I, Items 1
and 2, will be delivered to participants in accordance with Form S-8 and Rule
428 under the Securities Act of 1933, as amended (the "Securities Act"). These
documents and the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II of this Registration Statement, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by Insight Enterprises,
Inc. (the "Registrant") with the Securities and Exchange Commission pursuant to
the Securities Exchange Act of 1934 (the "Exchange Act") and are hereby
incorporated by reference into this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997;
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1998;
(c) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1998;
(d) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 1998;
(e) The Registrant's Current Report on Form 8-K filed April 20,
1998;
(f) The Registrant's Current Report on Form 8-K filed January 30,
1998; and
(g) The description of the Registrant's Common Stock included in
the Registrant's Registration Statement on Form 8-A, dated
November 9, 1994.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to this Registration Statement which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference
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in this Registration Statement and to be a part hereof from the date of filing
such documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. DESCRIPTION OF SECURITIES. Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145(a) of the General Corporation Law of the State of
Delaware (the "General Corporation Law"), provides that a Delaware corporation
may indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he or she is
or was a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation or enterprise, against expenses, judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no cause to believe his or her conduct was unlawful.
Section 145(b) provides that a Delaware corporation may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted under similar standards,
except that no indemnification may be made in respect to any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the court in which such action or
suit was brought shall determine that despite the adjudication of liability,
such person is fairly and reasonably entitled to be indemnified for such
expenses which the court shall deem proper.
Section 145 further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to in subsections (a) and (b) or in the defense or any
claim, issue or matter therein, he or she shall be indemnified against expenses
actually and reasonably incurred by him or her in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the
corporation may purchase and maintain insurance on behalf of a director or
officer of the corporation against any liability asserted against him or her or
incurred by him or her in any such capacity or arising out of his or her status
as
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such, whether or not the corporation would have the power to indemnify him or
her against such liabilities under such Section 145.
Section 102(b)(7) of the General Corporation Law provides that a
corporation in its original certificate of incorporation or an amendment thereto
validly approved by stockholders may eliminate or limit personal liability of
members of its board of directors or governing body for violations of a
director's duty of care.
However, no such provision may eliminate or limit the liability of
a director for breaching his or her duty of loyalty, acting or failing to act in
good faith, engaging in intentional misconduct or knowingly violating a law,
paying an unlawful dividend or approving an unlawful stock repurchase, or
obtaining an improper personal benefit. A provision of this type has no effect
on the availability of equitable remedies, such as injunction or rescission, for
breach of fiduciary duty. The Company's Certificate of Incorporation contains
such a provision.
The Company's Bylaws provide that the Company shall indemnify
officers and directors to the fullest extent permitted by and in the manner
permissible under the laws of the State of Delaware.
The Company has a directors and officers' liability insurance
policy with a policy limit of $50,000,000 and coverage for, among other things,
liability for violations of federal and state securities laws.
The Company has entered into indemnity agreements with its
directors and officers for indemnification of and advancement of expenses to
such persons to the full extent permitted by law. The Company intends to
execute such indemnity agreements with its future officers and directors.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
Item 8. EXHIBITS.
4.1 Amended and Restated Certificate of Incorporation of the
Company(1)
4.2 Bylaws of the Company(2)
5 Opinion of Snell & Wilmer L.L.P.
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Snell & Wilmer L.L.P. (included in Exhibit 5)
99.1 Insight Enterprises, Inc. 1998 Long-Term Incentive Plan(3)
99.2 Insight Enterprises, Inc. 1998 Officer Restricted Stock Plan
99.3 Insight Enterprises, Inc. 1998 Employee Restricted Stock Plan
4
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- ----------------
(1) Incorporated by reference to the Company's Annual Report on
Form 10-K for the fiscal year ended June 30, 1997.
(2) Incorporated by reference to the Company's Registration
Statement on Form S-1 (No. 33-86142) declared effective
January 24, 1995.
(3) Incorporated by reference to the Company's Notice and Proxy
Statement for its 1997 Annual Meeting of Stockholders.
Item 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration
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statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(b) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of
whether such indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Tempe, State of Arizona, on December 15, 1998.
INSIGHT ENTERPRISES, INC.,
a Delaware corporation
By /s/ Eric J. Crown
---------------------------------
Eric J. Crown
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
NAME AND SIGNATURE TITLE DATE
- ------------------ ----- ----
/s/ Eric J. Crown Chairman of the Board of December 15, 1998
- ------------------------------ Directors and Chief
Eric J. Crown Executive Officer
(Principal Executive
Officer)
/s/ Timothy A. Crown President and Director December 15, 1998
- ------------------------------
Timothy A. Crown
/s/ Stanley Laybourne Chief Financial Officer, December 15, 1998
- ------------------------------ Secretary, Treasurer and
Stanley Laybourne Director (Principal
Financial and Accounting
Officer)
Director December 15, 1998
- ------------------------------
Larry A. Gunning
Director December 15, 1998
- ------------------------------
Robertson C. Jones
7
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE OR
NUMBER DESCRIPTION METHOD OF FILING
------- -------------- -------------------
<S> <C> <C>
4.1 Amended and Restated Certificate of Incorporated by reference to
Incorporation of the Company the Company's Annual Report
on Form 10-K for the fiscal
year ended June 30, 1997.
4.2 Bylaws of the Company Incorporated by reference to the
Company's Registration Statement
on Form S-1 (No. 33-86142) declared
effective January 24, 1995.
5 Opinion of Snell & Wilmer L.L.P.
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Snell & Wilmer L.L.P. Included in Exhibit 5
99.1 Insight Enterprises, Inc. 1998 Incorporated by reference to
Long-Term Incentive Plan the Company's Notice and Proxy
Statement for its 1997 Annual
Meeting of Stockholders.
99.2 Insight Enterprises, Inc. 1998 Officer
Restricted Stock Plan
99.3 Insight Enterprises, Inc. 1998 Employee
Restricted Stock Plan
</TABLE>
8
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EXHIBIT 5
December 16, 1998
Insight Enterprises, Inc.
6820 South Harl Avenue
Tempe, Arizona 85283
RE: INSIGHT ENTERPRISES, INC. 1998 LONG-TERM INCENTIVE PLAN
INSIGHT ENTERPRISES, INC. 1998 OFFICER RESTRICTED STOCK PLAN
INSIGHT ENTERPRISES, INC. 1998 EMPLOYEE RESTRICTED STOCK PLAN
Ladies and Gentlemen:
We have acted as counsel to Insight Enterprises, Inc., a Delaware
corporation (the "Company"), in connection with its Registration Statement on
Form S-8 (the "Registration Statement") filed under the Securities Act of 1933,
as amended, relating to the registration of an aggregate of 1,875,000 shares of
its Common Stock, $.01 par value (the "Shares"), issuable pursuant to the
Company's 1998 Long-Term Incentive Plan, the 1998 Officer Restricted Stock Plan,
and the 1998 Employee Restricted Stock Plan (collectively, the "Plans").
In that connection, we have examined such documents, corporate records,
and other instruments as we have deemed necessary or appropriate for purposes of
this opinion, including the Amended and Restated Certificate of Incorporation
and the Bylaws of the Company.
Based upon the foregoing, we are of the opinion that:
i. The Company has been duly organized and is validly
existing as a corporation under the laws of the State
of Delaware.
ii. The Shares, when issued and sold in accordance with
the terms of the Plans, will be validly issued, fully
paid, and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Snell & Wilmer L.L.P.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Insight Enterprises, Inc.:
We consent to the use of our report dated January 29, 1998 incorporated herein
by reference.
KPMG Peat Marwick LLP
Phoenix, Arizona
December 15, 1998
<PAGE> 1
Exhibit 99.2
INSIGHT ENTERPRISES, INC.
1998 OFFICER RESTRICTED STOCK PLAN
ARTICLE 1 PURPOSE
1.1 GENERAL. The purpose of the Insight Enterprises, Inc. 1998
Restricted Stock Plan (the "Plan") is to promote the success, and enhance the
value, of Insight Enterprises, Inc. (the "Company") by linking the personal
interests of its officers to those of Company shareholders and by providing its
officers with an incentive for outstanding performance. The Plan is further
intended to provide flexibility to the Company in its ability to motivate,
attract, and retain the services of officers upon whose judgment, interest, and
special effort the successful conduct of the Company's operation is largely
dependent. Accordingly, the Plan permits the grant of restricted stock awards
from time to time to officers.
ARTICLE 2 EFFECTIVE DATE
2.1 EFFECTIVE DATE. The Plan is effective as of December 1, 1998 (the
"Effective Date).
ARTICLE 3 DEFINITIONS AND CONSTRUCTION.
3.1 DEFINITIONS. When a word or phrase appears in this Plan with the
initial letter capitalized, and the word or phrase does not commence a sentence,
the word or phrase shall generally be given the meaning ascribed to it in this
Section or in Sections 1.1 or 2.1 unless a clearly different meaning is required
by the context. The following words and phrases shall have the following
meanings:
(a) "Award" means Stock granted to a Participant under Article
7 that is subject to certain restrictions and to risk of forfeiture.
(b) "Board" means the Board of Directors of the Company.
(c) "Change of Control" means and includes each of the
following:
(1) When the individuals who, at the beginning of any
period of two years or less, constituted the Board of
Directors of the Company 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 (the "1934 Act")), excluding
affiliates of the Company as of the Effective Date, is or
becomes the beneficial owner (as that term
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is used in Section 13(d) of the 1934 Act) 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 corporation 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
corporation immediately after the merger;
(4) The stockholders 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) of which the Company is a member.
(d) "Code" means the Internal Revenue Code of 1986, as
amended.
(e) "Committee" means the committee of the Board described in
Article 4.
(f) "Fair Market Value" means, as of any given date, the fair
market value of such Stock determined by such methods or procedures as
may be established from time to time by the Committee. Unless otherwise
determined by the Committee, the Fair Market Value of Stock as of any
date shall be the closing price for the Stock as reported on the NASDAQ
National Market System (or on any national securities exchange on which
the Stock is then listed) for that date or, if no closing price is so
reported for that date, the closing price on the next preceding date
for which a closing price was reported.
(g) "Non-Employee Director" means a member of the Board who
qualifies as a "Non-Employee Director" as defined in Rule 16b-3(b)(3)
of the 1934 Act, or any successor definition adopted by the Board.
(h) "Participant" means a person who, as an officer of the
Company or any Subsidiary, has been granted an Award under the Plan.
(i) "Plan" means the Insight Enterprises, Inc. 1998 Officer
Restricted Stock Plan, as amended from time to time.
(j) "Restricted Stock Award Agreement" means any written
agreement, contract, or other instrument or document evidencing an
Award of Restricted Stock.
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(k) "Stock" means the common stock of the Company and such
other securities of the Company that may be substituted for Stock
pursuant to Article 9.
(l) "Subsidiary" means any corporation of which a majority of
the outstanding voting stock or voting power is beneficially owned
directly or indirectly by the Company.
ARTICLE 4 ADMINISTRATION
4.1 COMMITTEE. The Plan shall be administered by a Committee that is
appointed by, and shall serve at the discretion of, the Board. The Committee
shall consist of at least two individuals, each of whom qualifies as (i) a
Non-Employee Director, and (ii) an "outside director" under Code Section 162(m)
and the regulations issued thereunder; provided, however, that the Chief
Executive Officer of the Company shall have the authority to grant Awards to
individuals who are not subject to Section 16 of the 1934 Act and to those
individuals who are subject to Section 16 (other than the three highest ranking
executives of the Company), provided that any Awards granted to a Section 16
insider shall remain subject to restrictions on transferability and other
restrictions for at least six months from the date of grant. When the Chief
Executive Officer is acting to grant Awards under this Plan, solely for purposes
of this Plan, the Chief Executive Officer shall be deemed to be acting as the
Committee.
4.2 ACTION BY THE COMMITTEE. A majority of the Committee shall
constitute a quorum. The acts of a majority of the members present at any
meeting at which a quorum is present and acts approved in writing by a majority
of the Committee in lieu of a meeting shall be deemed the acts of the Committee.
Each member of the Committee is entitled to, in good faith, rely or act upon any
report or other information furnished to that member by any officer or other
employee of the Company or any Subsidiary, the Company's independent certified
public accountants, or any executive compensation consultant or other
professional retained by the Company to assist in the administration of the
Plan.
4.3 AUTHORITY OF COMMITTEE. The Committee has the exclusive power,
authority and discretion to:
(a) Designate Participants to receive Awards;
(b) Determine the number of Awards to be granted and the
number of shares of Stock to which an Award will relate;
(c) Determine the terms and conditions of any Award granted
under the Plan including but not limited to, the purchase price (if
any), any restrictions or limitations on the Award, any schedule for
lapse of forfeiture restrictions of an Award, and accelerations or
waivers thereof, based in each case on such considerations as the
Committee in its sole discretion determines;
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<PAGE> 4
(d) Determine whether, to what extent, and under what
circumstances an Award may be settled in, or the purchase price of an
Award may be paid in, cash, Stock, other Awards, or other property, or
an Award may be canceled, forfeited, or surrendered;
(e) Prescribe the form of each Restricted Stock Award
Agreement, which need not be identical for each Participant;
(f) Decide all other matters that must be determined in
connection with an Award;
(g) Establish, adopt or revise any rules and regulations as it
may deem necessary or advisable to administer the Plan; and
(h) Make all other decisions and determinations that may be
required under the Plan or as the Committee deems necessary or
advisable to administer the Plan.
4.4 DECISIONS BINDING. The Committee's interpretation of the Plan, any
Awards granted under the Plan, any Restricted Stock Award Agreement and all
decisions and determinations by the Committee with respect to the Plan are
final, binding, and conclusive on all parties.
ARTICLE 5 SHARES SUBJECT TO THE PLAN
5.1 NUMBER OF SHARES. Subject to adjustment provided in Section 9.1,
the aggregate number of shares of Stock reserved and available for Awards shall
be 25,000.
5.2 LAPSED AWARDS. To the extent that an Award terminates, expires or
lapses for any reason, any shares of Stock subject to the Award will again be
available for the grant of an Award under the Plan.
5.3 STOCK DISTRIBUTED. Any Stock distributed pursuant to an Award may
consist, in whole or in part, of authorized and unissued Stock, treasury Stock
or Stock purchased on the open market.
ARTICLE 6 ELIGIBILITY
6.1 GENERAL. Awards may be granted to individuals who are officers of
the Company or a Subsidiary, as determined by the Committee.
ARTICLE 7 RESTRICTED STOCK AWARDS
7.1 GRANT OF RESTRICTED STOCK. The Committee is authorized to grant
Awards of Restricted Stock to Participants in such amounts and subject to such
terms and conditions as may
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<PAGE> 5
be selected by the Committee. All Awards of Restricted Stock shall be evidenced
by a Restricted Stock Award Agreement.
7.2 ISSUANCE AND RESTRICTIONS. Restricted Stock shall be subject to
such restrictions on transferability and other restrictions as the Committee may
impose (including, without limitation, limitations on the right to vote
Restricted Stock or the right to receive dividends on the Restricted Stock).
These restrictions may lapse separately or in combination at such times, under
such circumstances, in such installments, or otherwise, as the Committee
determines at the time of the grant of the Award or thereafter.
7.3 FORFEITURE. Except as otherwise determined by the Committee at the
time of the grant of the Award or thereafter, upon termination of employment
during the applicable restriction period, Restricted Stock that is at that time
subject to restrictions shall be forfeited and reacquired by the Company,
provided, however, that the Committee may provide in any Restricted Stock Award
Agreement that restrictions or forfeiture conditions relating to Restricted
Stock will be waived in whole or in part in the event of terminations resulting
from specified causes, and the Committee may in other cases waive in whole or in
part restrictions or forfeiture conditions relating to Restricted Stock.
7.4 CERTIFICATES FOR RESTRICTED STOCK. Restricted Stock granted under
the Plan may be evidenced in such manner as the Committee shall determine. If
certificates representing shares of Restricted Stock are registered in the name
of the Participant, certificates must bear an appropriate legend referring to
the terms, conditions, and restrictions applicable to such Restricted Stock, and
the Company shall retain physical possession of the certificate until such time
as all applicable restrictions lapse.
ARTICLE 8 PROVISIONS APPLICABLE TO AWARDS
8.1 STAND-ALONE, TANDEM, AND SUBSTITUTE AWARDS. Awards granted under
the Plan may, in the discretion of the Committee, be granted either alone or in
addition to, in tandem with, or in substitution for, any other Award granted
under the Plan. If an Award is granted in substitution for another Award, the
Committee may require the surrender of such other Award in consideration of the
grant of the new Award. Awards granted in addition to or in tandem with other
Awards may be granted either at the same time as or at a different time from the
grant of such other Awards.
8.2 EXCHANGE PROVISIONS. The Committee may at any time offer to
exchange or buy out any previously granted Award for a payment in cash, Stock,
or another Award (subject to Section 8.1), based on the terms and conditions the
Committee determines and communicates to the Participant at the time the offer
is made.
8.3 TERM OF AWARD. The term of each Award shall be for the period as
determined by the Committee.
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8.4 FORM OF PAYMENT FOR AWARDS. Subject to the terms of the Plan and
any applicable law or Restricted Stock Award Agreement, payments or transfers to
be made by the Company or a Subsidiary on the grant of an Award or at the time
the restrictions on the Award lapse may be made in such forms as the Committee
determines at or after the time of grant, including without limitation, cash,
Stock, other Awards, other property, or any combination, and may be made in a
single payment or transfer, in installments, or on a deferred basis, in each
case determined in accordance with rules adopted by, and at the discretion of,
the Committee.
8.5 LIMITS ON TRANSFER. No right or interest of a Participant in any
Award may be pledged, encumbered, or hypothecated to or in favor of any party
other than the Company or a Subsidiary, or shall be subject to any lien,
obligation, or liability of such Participant to any other party other than the
Company or a Subsidiary. Except as otherwise provided by the Committee, no Award
shall be assignable or transferable by a Participant other than by will or the
laws of descent and distribution.
8.6 BENEFICIARIES. Notwithstanding Section 8.5, a Participant may, in
the manner determined by the Committee, designate a beneficiary to exercise the
rights of the Participant and to receive any distribution with respect to any
Award upon the Participant's death. A beneficiary, legal guardian, legal
representative, or other person claiming any rights under the Plan is subject to
all terms and conditions of the Plan and any Restricted Stock Award Agreement
applicable to the Participant, except to the extent the Plan and Restricted
Stock Award Agreement otherwise provide, and to any additional restrictions
deemed necessary or appropriate by the Committee. If the Participant is married,
a designation of a person other than the Participant's spouse as his beneficiary
with respect to more than 50 percent of the Participant's interest in the Award
shall not be effective without the written consent of the Participant's spouse.
If no beneficiary has been designated or survives the Participant, payment shall
be made to the person entitled thereto under the Participant's will or the laws
of descent and distribution. Subject to the foregoing, a beneficiary designation
may be changed or revoked by a Participant at any time provided the change or
revocation is filed with the Committee.
8.7 STOCK CERTIFICATES. All Stock certificates delivered under the Plan
are subject to any stop-transfer orders and other restrictions as the Committee
deems necessary or advisable to comply with federal or state securities laws,
rules and regulations and the rules of any national securities exchange or
automated quotation system on with the Stock is listed, quoted, or traded. The
Committee may place legends on any Stock certificate to reference restrictions
applicable to the Stock.
8.8 ACCELERATION UPON A CHANGE OF CONTROL. If a Change of Control
occurs all restrictions on outstanding Awards shall lapse.
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ARTICLE 9 CHANGES IN CAPITAL STRUCTURE
9.1 GENERAL. In the event a stock dividend is declared upon the Stock,
the shares of Stock then subject to each Award shall be increased
proportionately without any change in the aggregate purchase price therefor. In
the event the Stock shall be changed into or exchanged for a different number or
class of shares of Stock or of another corporation, whether through
reorganization, recapitalization, stock split-up, combination of shares, merger
or consolidation, there shall be substituted for each such share of Stock then
subject to each Award the number and class of shares of Stock into which each
outstanding share of Stock shall be so exchanged, all without any change in the
aggregate purchase price for the shares then subject to each Award.
ARTICLE 10 AMENDMENT, MODIFICATION AND TERMINATION
10.1 AMENDMENT, MODIFICATION AND TERMINATION. With the approval of the
Board, at any time and from time to time, the Committee may terminate, amend or
modify the Plan.
10.2 AWARDS PREVIOUSLY GRANTED. No termination, amendment, or
modification of the Plan shall adversely affect in any material way any Award
previously granted under the Plan, without the written consent of the
Participant.
ARTICLE 11 GENERAL PROVISIONS
11.1 NO RIGHTS TO AWARDS. No person shall have any right to be granted
any Award under the Plan, and neither the Company nor the Committee is obligated
to treat Participants and employees uniformly.
11.2 WITHHOLDING. The Company or any Subsidiary shall have the
authority and the right to deduct or withhold, or require a Participant to remit
to the Company, an amount sufficient to satisfy Federal, state, and local taxes
(including the Participant's FICA obligation) required by law to be withheld
with respect to any taxable event arising as a result of this Plan. With respect
to withholding required upon any taxable event under the Plan, Participants may
elect, subject to the Committee's approval, to satisfy the withholding
requirement, in whole or in part, by having the Company or any Subsidiary
withhold shares of Stock having a Fair Market Value on the date of withholding
equal to the amount to be withheld for tax purposes in accordance with such
procedures as the Committee establishes. The Committee may, at the time any
Award is granted, require that any and all applicable tax withholding
requirements be satisfied by the withholding of shares of Stock as set forth
above.
11.3 NO RIGHT TO EMPLOYMENT. Nothing in the Plan or any Restricted
Stock Award Agreement shall interfere with or limit in any way the right of the
Company or any Subsidiary to terminate any Participant's employment at any time,
nor confer upon any Participant any right to continue in the employ of the
Company or any Subsidiary.
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11.4 UNFUNDED STATUS OF AWARDS. The Plan is intended to be an
"unfunded" plan for incentive and deferred compensation. With respect to any
payments not yet made to a Participant pursuant to an Award, nothing contained
in the Plan or any Restricted Stock Award Agreement shall give the Participant
any rights that are greater than those of a general creditor of the Company or
any Subsidiary.
11.5 INDEMNIFICATION. To the extent allowable under applicable law,
each member of the Committee or of the Board shall be indemnified and held
harmless by the Company from any loss, cost, liability, or expense that may be
imposed upon or reasonably incurred by such member in connection with or
resulting from any claim, action, suit, or proceeding to which the member may be
a party or in which the member may be involved by reason of any action or
failure to act under the Plan and against and from any and all amounts paid by
the member in satisfaction of judgment in such action, suit, or proceeding
against the member provided the member gives the Company an opportunity, at its
own expense, to handle and defend the same before the member undertakes to
handle and defend it on the member's behalf. The foregoing right of
indemnification shall not be exclusive of any other rights of indemnification to
which such persons may be entitled under the Company's Articles of Incorporation
or By-Laws, as a matter of law, or otherwise, or any power that the Company may
have to indemnify them or hold them harmless.
11.6 RELATIONSHIP TO OTHER BENEFITS. No payment under the Plan shall be
taken into account in determining any benefits under any pension, retirement,
savings, profit sharing, group insurance, welfare or other benefit plan of the
Company or any Subsidiary.
11.7 EXPENSES. The expenses of administering the Plan shall be borne by
the Company and its Subsidiaries.
11.8 TITLES AND HEADINGS. The titles and headings of the Sections in
the Plan are for convenience of reference only, and in the event of any
conflict, the text of the Plan, rather than such titles or headings, shall
control.
11.9 FRACTIONAL SHARES. No fractional shares of Stock shall be issued
and the Committee shall determine, in its discretion, whether cash shall be
given in lieu of fractional shares or whether such fractional shares shall be
eliminated by rounding up.
11.10 SECURITIES LAW COMPLIANCE. With respect to any person who is, on
the relevant date, obligated to file reports under Section 16 of the 1934 Act,
transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 or its successors under the 1934 Act. To the extent any
provision of the Plan or action by the Committee fails to so comply, it shall be
void to the extent permitted by law and voidable as deemed advisable by the
Committee.
11.11 GOVERNMENT AND OTHER REGULATIONS. The obligation of the Company
to make payment of awards in Stock or otherwise shall be subject to all
applicable laws, rules, and regulations, and to such approvals by government
agencies as may be required. The Company shall
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be under no obligation to register under the Securities Act of 1933, as amended
(the "1933 Act"), any of the shares of Stock paid under the Plan. If the shares
paid under the Plan may in certain circumstances be exempt from registration
under the 1933 Act, the Company may restrict the transfer of such shares in such
manner as it deems advisable to ensure the availability of any such exemption.
11.12 GOVERNING LAW. The Plan and all Restricted Stock Award Agreements
shall be construed in accordance with and governed by the laws of the State of
Arizona.
IN WITNESS WHEREOF, the Company has caused this Plan to be executed by
its duly authorized representative on this 1st, day of December, 1998.
INSIGHT ENTERPRISES, INC.
By
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Its
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9
<PAGE> 1
INSIGHT ENTERPRISES, INC.
1998 EMPLOYEE RESTRICTED STOCK PLAN
ARTICLE 1 PURPOSE
1.1 GENERAL. The purpose of the Insight Enterprises, Inc. 1998 Employee
Restricted Stock Plan (the "Plan") is to promote the success, and enhance the
value, of Insight Enterprises, Inc. (the "Company") by linking the personal
interests of its employees to those of Company shareholders and by providing its
employees with an incentive for outstanding performance. The Plan is further
intended to provide flexibility to the Company in its ability to motivate,
attract, and retain the services of employees upon whose judgment, interest, and
special effort the successful conduct of the Company's operation is largely
dependent. Accordingly, the Plan permits the grant of restricted stock awards
from time to time to employees.
ARTICLE 2 EFFECTIVE DATE
2.1 EFFECTIVE DATE. The Plan is effective as of September 30, 1998 (the
"Effective Date).
ARTICLE 3 DEFINITIONS AND CONSTRUCTION.
3.1 DEFINITIONS. When a word or phrase appears in this Plan with the
initial letter capitalized, and the word or phrase does not commence a sentence,
the word or phrase shall generally be given the meaning ascribed to it in this
Section or in Sections 1.1 or 2.1 unless a clearly different meaning is required
by the context. The following words and phrases shall have the following
meanings:
(a) "Award" means Stock granted to a Participant under Article
7 that is subject to certain restrictions and to risk of forfeiture.
(b) "Board" means the Board of Directors of the Company.
(c) "Change of Control" means and includes each of the
following:
(1) When the individuals who, at the beginning of any
period of two years or less, constituted the Board of
Directors of the Company 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 (the "1934 Act")), excluding
affiliates of the Company as of the Effective Date, is or
becomes the beneficial owner (as that term
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is used in Section 13(d) of the 1934 Act) directly or
indirectly of securities of the Company representing 30% or
more of the combined voting power of the Company's then
outstanding securities;
(3) Any consolidation or liquidation of the Company
in which the Company is not the continuing or surviving
corporation 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 corporation
immediately after the merger;
(4) The stockholders 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) of which the Company is a member.
(d) "Code" means the Internal Revenue Code of 1986,
as amended.
(e) "Committee" means the committee of the Board
described in Article 4.
(f) "Fair Market Value" means, as of any given date, the fair
market value of such Stock determined by such methods or procedures as
may be established from time to time by the Committee. Unless otherwise
determined by the Committee, the Fair Market Value of Stock as of any
date shall be the closing price for the Stock as reported on the NASDAQ
National Market System (or on any national securities exchange on which
the Stock is then listed) for that date or, if no closing price is so
reported for that date, the closing price on the next preceding date
for which a closing price was reported.
(g) "Non-Employee Director" means a member of the Board who
qualifies as a "Non-Employee Director" as defined in Rule 16b-3(b)(3)
of the 1934 Act, or any successor definition adopted by the Board.
(h) "Participant" means a person who, as an employee of the
Company or any Subsidiary, has been granted an Award under the Plan.
(i) "Plan" means the Insight Enterprises, Inc. 1998 Employee
Restricted Stock Plan, as amended from time to time.
(j) "Restricted Stock Award Agreement" means any written
agreement, contract, or other instrument or document evidencing an
Award of Restricted Stock.
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(k) "Stock" means the common stock of the Company and such
other securities of the Company that may be substituted for Stock
pursuant to Article 9.
(l) "Subsidiary" means any corporation of which a majority of
the outstanding voting stock or voting power is beneficially owned
directly or indirectly by the Company.
ARTICLE 4 ADMINISTRATION
4.1 COMMITTEE. The Plan shall be administered by a Committee that is
appointed by, and shall serve at the discretion of, the Board. The Committee
shall consist of at least two individuals, each of whom qualifies as (i) a
Non-Employee Director, and (ii) an "outside director" under Code Section 162(m)
and the regulations issued thereunder; provided, however, that the Chief
Executive Officer of the Company shall have the authority to grant Awards to
individuals who are not subject to Section 16 of the 1934 Act and to those
individuals who are subject to Section 16 (other than the three highest ranking
executives of the Company), provided that any Awards granted to a Section 16
insider shall remain subject to restrictions on transferability and other
restrictions for at least six months from the date of grant. When the Chief
Executive Officer is acting to grant Awards under this Plan, solely for purposes
of this Plan, the Chief Executive Officer shall be deemed to be acting as the
Committee.
4.2 ACTION BY THE COMMITTEE. A majority of the Committee shall
constitute a quorum. The acts of a majority of the members present at any
meeting at which a quorum is present and acts approved in writing by a majority
of the Committee in lieu of a meeting shall be deemed the acts of the Committee.
Each member of the Committee is entitled to, in good faith, rely or act upon any
report or other information furnished to that member by any officer or other
employee of the Company or any Subsidiary, the Company's independent certified
public accountants, or any executive compensation consultant or other
professional retained by the Company to assist in the administration of the
Plan.
4.3 AUTHORITY OF COMMITTEE. The Committee has the exclusive power,
authority and discretion to:
(a) Designate Participants to receive Awards;
(b) Determine the number of Awards to be granted and the
number of shares of Stock to which an Award will relate;
(c) Determine the terms and conditions of any Award granted
under the Plan including but not limited to, the purchase price (if
any), any restrictions or limitations on the Award, any schedule for
lapse of forfeiture restrictions of an Award, and accelerations or
waivers thereof, based in each case on such considerations as the
Committee in its sole discretion determines;
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(d) Determine whether, to what extent, and under what
circumstances an Award may be settled in, or the purchase price of an
Award may be paid in, cash, Stock, other Awards, or other property, or
an Award may be canceled, forfeited, or surrendered;
(e) Prescribe the form of each Restricted Stock Award
Agreement, which need not be identical for each Participant;
(f) Decide all other matters that must be determined in
connection with an Award;
(g) Establish, adopt or revise any rules and regulations as it
may deem necessary or advisable to administer the Plan; and
(h) Make all other decisions and determinations that may be
required under the Plan or as the Committee deems necessary or
advisable to administer the Plan.
4.4 DECISIONS BINDING. The Committee's interpretation of the Plan, any
Awards granted under the Plan, any Restricted Stock Award Agreement and all
decisions and determinations by the Committee with respect to the Plan are
final, binding, and conclusive on all parties.
ARTICLE 5 SHARES SUBJECT TO THE PLAN
5.1 NUMBER OF SHARES. Subject to adjustment provided in Section 9.1,
the aggregate number of shares of Stock reserved and available for Awards shall
be 250,000.
5.2 LAPSED AWARDS. To the extent that an Award terminates, expires or
lapses for any reason, any shares of Stock subject to the Award will again be
available for the grant of an Award under the Plan.
5.3 STOCK DISTRIBUTED. Any Stock distributed pursuant to an Award may
consist, in whole or in part, of authorized and unissued Stock, treasury Stock
or Stock purchased on the open market.
ARTICLE 6 ELIGIBILITY
6.1 GENERAL. Awards may be granted to individuals who are employees of
the Company or a Subsidiary, as determined by the Committee; provided, however,
that the Plan is intended to be a broadly based plan and no more than 20% of the
shares of Stock granted pursuant to Awards may be awarded in the aggregate to
the Company's corporate officers and Section 16 insiders.
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<PAGE> 5
ARTICLE 7 RESTRICTED STOCK AWARDS
7.1 GRANT OF RESTRICTED STOCK. The Committee is authorized to grant
Awards of Restricted Stock to Participants in such amounts and subject to such
terms and conditions as may be selected by the Committee. All Awards of
Restricted Stock shall be evidenced by a Restricted Stock Award Agreement.
7.2 ISSUANCE AND RESTRICTIONS. Restricted Stock shall be subject to
such restrictions on transferability and other restrictions as the Committee may
impose (including, without limitation, limitations on the right to vote
Restricted Stock or the right to receive dividends on the Restricted Stock).
These restrictions may lapse separately or in combination at such times, under
such circumstances, in such installments, or otherwise, as the Committee
determines at the time of the grant of the Award or thereafter.
7.3 FORFEITURE. Except as otherwise determined by the Committee at the
time of the grant of the Award or thereafter, upon termination of employment
during the applicable restriction period, Restricted Stock that is at that time
subject to restrictions shall be forfeited and reacquired by the Company,
provided, however, that the Committee may provide in any Restricted Stock Award
Agreement that restrictions or forfeiture conditions relating to Restricted
Stock will be waived in whole or in part in the event of terminations resulting
from specified causes, and the Committee may in other cases waive in whole or in
part restrictions or forfeiture conditions relating to Restricted Stock.
7.4 CERTIFICATES FOR RESTRICTED STOCK. Restricted Stock granted under
the Plan may be evidenced in such manner as the Committee shall determine. If
certificates representing shares of Restricted Stock are registered in the name
of the Participant, certificates must bear an appropriate legend referring to
the terms, conditions, and restrictions applicable to such Restricted Stock, and
the Company shall retain physical possession of the certificate until such time
as all applicable restrictions lapse.
ARTICLE 8 PROVISIONS APPLICABLE TO AWARDS
8.1 STAND-ALONE, TANDEM, AND SUBSTITUTE AWARDS. Awards granted
under the Plan may, in the discretion of the Committee, be granted either alone
or in addition to, in tandem with, or in substitution for, any other Award
granted under the Plan. If an Award is granted in substitution for another
Award, the Committee may require the surrender of such other Award in
consideration of the grant of the new Award. Awards granted in addition to or in
tandem with other Awards may be granted either at the same time as or at a
different time from the grant of such other Awards.
8.2 EXCHANGE PROVISIONS. The Committee may at any time offer to
exchange or buy out any previously granted Award for a payment in cash, Stock,
or another Award (subject to
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<PAGE> 6
Section 8.1), based on the terms and conditions the Committee determines and
communicates to the Participant at the time the offer is made.
8.3 TERM OF AWARD. The term of each Award shall be for the period as
determined by the Committee.
8.4 FORM OF PAYMENT FOR AWARDS. Subject to the terms of the Plan and
any applicable law or Restricted Stock Award Agreement, payments or transfers to
be made by the Company or a Subsidiary on the grant of an Award or at the time
the restrictions on the Award lapse may be made in such forms as the Committee
determines at or after the time of grant, including without limitation, cash,
Stock, other Awards, other property, or any combination, and may be made in a
single payment or transfer, in installments, or on a deferred basis, in each
case determined in accordance with rules adopted by, and at the discretion of,
the Committee.
8.5 LIMITS ON TRANSFER. No right or interest of a Participant in any
Award may be pledged, encumbered, or hypothecated to or in favor of any party
other than the Company or a Subsidiary, or shall be subject to any lien,
obligation, or liability of such Participant to any other party other than the
Company or a Subsidiary. Except as otherwise provided by the Committee, no Award
shall be assignable or transferable by a Participant other than by will or the
laws of descent and distribution.
8.6 BENEFICIARIES. Notwithstanding Section 8.5, a Participant may, in
the manner determined by the Committee, designate a beneficiary to exercise the
rights of the Participant and to receive any distribution with respect to any
Award upon the Participant's death. A beneficiary, legal guardian, legal
representative, or other person claiming any rights under the Plan is subject to
all terms and conditions of the Plan and any Restricted Stock Award Agreement
applicable to the Participant, except to the extent the Plan and Restricted
Stock Award Agreement otherwise provide, and to any additional restrictions
deemed necessary or appropriate by the Committee. If the Participant is married,
a designation of a person other than the Participant's spouse as his beneficiary
with respect to more than 50 percent of the Participant's interest in the Award
shall not be effective without the written consent of the Participant's spouse.
If no beneficiary has been designated or survives the Participant, payment shall
be made to the person entitled thereto under the Participant's will or the laws
of descent and distribution. Subject to the foregoing, a beneficiary designation
may be changed or revoked by a Participant at any time provided the change or
revocation is filed with the Committee.
8.7 STOCK CERTIFICATES. All Stock certificates delivered under the Plan
are subject to any stop-transfer orders and other restrictions as the Committee
deems necessary or advisable to comply with federal or state securities laws,
rules and regulations and the rules of any national securities exchange or
automated quotation system on with the Stock is listed, quoted, or traded. The
Committee may place legends on any Stock certificate to reference restrictions
applicable to the Stock.
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8.8 ACCELERATION UPON A CHANGE OF CONTROL. If a Change of Control
occurs all restrictions on outstanding Awards shall lapse.
ARTICLE 9 CHANGES IN CAPITAL STRUCTURE
9.1 GENERAL. In the event a stock dividend is declared upon the Stock,
the shares of Stock then subject to each Award shall be increased
proportionately without any change in the aggregate purchase price therefor. In
the event the Stock shall be changed into or exchanged for a different number or
class of shares of Stock or of another corporation, whether through
reorganization, recapitalization, stock split-up, combination of shares, merger
or consolidation, there shall be substituted for each such share of Stock then
subject to each Award the number and class of shares of Stock into which each
outstanding share of Stock shall be so exchanged, all without any change in the
aggregate purchase price for the shares then subject to each Award.
ARTICLE 10 AMENDMENT, MODIFICATION AND TERMINATION
10.1 AMENDMENT, MODIFICATION AND TERMINATION. With the approval of the
Board, at any time and from time to time, the Committee may terminate, amend or
modify the Plan.
10.2 AWARDS PREVIOUSLY GRANTED. No termination, amendment, or
modification of the Plan shall adversely affect in any material way any Award
previously granted under the Plan, without the written consent of the
Participant.
ARTICLE 11 GENERAL PROVISIONS
11.1 NO RIGHTS TO AWARDS. No person shall have any right to be granted
any Award under the Plan, and neither the Company nor the Committee is obligated
to treat Participants and employees uniformly.
11.2 WITHHOLDING. The Company or any Subsidiary shall have the
authority and the right to deduct or withhold, or require a Participant to remit
to the Company, an amount sufficient to satisfy Federal, state, and local taxes
(including the Participant's FICA obligation) required by law to be withheld
with respect to any taxable event arising as a result of this Plan. With respect
to withholding required upon any taxable event under the Plan, Participants may
elect, subject to the Committee's approval, to satisfy the withholding
requirement, in whole or in part, by having the Company or any Subsidiary
withhold shares of Stock having a Fair Market Value on the date of withholding
equal to the amount to be withheld for tax purposes in accordance with such
procedures as the Committee establishes. The Committee may, at the time any
Award is granted, require that any and all applicable tax withholding
requirements be satisfied by the withholding of shares of Stock as set forth
above.
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<PAGE> 8
11.3 NO RIGHT TO EMPLOYMENT. Nothing in the Plan or any Restricted
Stock Award Agreement shall interfere with or limit in any way the right of the
Company or any Subsidiary to terminate any Participant's employment at any time,
nor confer upon any Participant any right to continue in the employ of the
Company or any Subsidiary.
11.4 UNFUNDED STATUS OF AWARDS. The Plan is intended to be an
"unfunded" plan for incentive and deferred compensation. With respect to any
payments not yet made to a Participant pursuant to an Award, nothing contained
in the Plan or any Restricted Stock Award Agreement shall give the Participant
any rights that are greater than those of a general creditor of the Company or
any Subsidiary.
11.5 INDEMNIFICATION. To the extent allowable under applicable law,
each member of the Committee or of the Board shall be indemnified and held
harmless by the Company from any loss, cost, liability, or expense that may be
imposed upon or reasonably incurred by such member in connection with or
resulting from any claim, action, suit, or proceeding to which the member may be
a party or in which the member may be involved by reason of any action or
failure to act under the Plan and against and from any and all amounts paid by
the member in satisfaction of judgment in such action, suit, or proceeding
against the member provided the member gives the Company an opportunity, at its
own expense, to handle and defend the same before the member undertakes to
handle and defend it on the member's behalf. The foregoing right of
indemnification shall not be exclusive of any other rights of indemnification to
which such persons may be entitled under the Company's Articles of Incorporation
or By-Laws, as a matter of law, or otherwise, or any power that the Company may
have to indemnify them or hold them harmless.
11.6 RELATIONSHIP TO OTHER BENEFITS. No payment under the Plan shall be
taken into account in determining any benefits under any pension, retirement,
savings, profit sharing, group insurance, welfare or other benefit plan of the
Company or any Subsidiary.
11.7 EXPENSES. The expenses of administering the Plan shall be borne by
the Company and its Subsidiaries.
11.8 TITLES AND HEADINGS. The titles and headings of the Sections in
the Plan are for convenience of reference only, and in the event of any
conflict, the text of the Plan, rather than such titles or headings, shall
control.
11.9 FRACTIONAL SHARES. No fractional shares of Stock shall be issued
and the Committee shall determine, in its discretion, whether cash shall be
given in lieu of fractional shares or whether such fractional shares shall be
eliminated by rounding up.
11.10 SECURITIES LAW COMPLIANCE. With respect to any person who is, on
the relevant date, obligated to file reports under Section 16 of the 1934 Act,
transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 or its successors under the 1934
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<PAGE> 9
Act. To the extent any provision of the Plan or action by the Committee fails to
so comply, it shall be void to the extent permitted by law and voidable as
deemed advisable by the Committee.
11.11 GOVERNMENT AND OTHER REGULATIONS. The obligation of the Company
to make payment of awards in Stock or otherwise shall be subject to all
applicable laws, rules, and regulations, and to such approvals by government
agencies as may be required. The Company shall be under no obligation to
register under the Securities Act of 1933, as amended (the "1933 Act"), any of
the shares of Stock paid under the Plan. If the shares paid under the Plan may
in certain circumstances be exempt from registration under the 1933 Act, the
Company may restrict the transfer of such shares in such manner as it deems
advisable to ensure the availability of any such exemption.
11.12 GOVERNING LAW. The Plan and all Restricted Stock Award Agreements
shall be construed in accordance with and governed by the laws of the State of
Arizona.
IN WITNESS WHEREOF, the Company has caused this Plan to be executed by
its duly authorized representative on this 25th, day of October, 1998.
INSIGHT ENTERPRISES, INC.
By
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Its
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9
