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EXHIBIT 10 (h)
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COMPUTER TASK GROUP, INCORPORATED
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NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
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THIS AGREEMENT made this lst day of July, 1993 is by and between
COMPUTER TASK GROUP, INCORPORATED, a New York corporation having its principal
executive office at 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx (the "Company") and
XXXX X. XXXXXXXXXX, an individual residing at 000 Xxxxxxxxx Xxxx Xxxxx,
Xxxxxxxxxxxxx, Xxx Xxxx 00000 ("Xxxxxxxxxx"). For purposes of this Agreement,
the term "Company" shall also include any subsidiary of the Company when 51 % or
more of the outstanding voting shares of such subsidiary are owned directly or
indirectly by the Company.
WHEREAS, Xxxxxxxxxx is an executive officer of the Company employed as
President and Chief Operating Officer; and
WHEREAS, Xxxxxxxxxx is to become a Director of the Company and is
expected to continue in that capacity during her tenure as President and Chief
Operating Officer; and
WHEREAS, Xxxxxxxxxx possesses in-depth knowledge of the Company's
business, trade secrets, operations and financial condition, forecasts of its
operations, its marketing and business strategies and plans and other
confidential/proprietary information, including but not limited to, client
lists, confidential customer information as furnished to the Company by its
clients, management/technical staff lists and related managerial and operational
specifications and controls, operating policies and procedures, financial
information and annual and long-range plans (collectively the "Confidential
Information"); and
WHEREAS, substantial injury and loss would be suffered by the Company
if Xxxxxxxxxx should use or disclose Confidential Information which she obtained
through her employment or should interfere with the employment relationships
between the Company and its other employees by inducing any of those employees
to terminate their employment with the Company; and
WHEREAS, the Company and the Xxxxxxxxxx are agreeable to entering into
an agreement governing those matters upon the terms and conditions hereinafter
set FORTH;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the Company and the Xxxxxxxxxx agree as follows:
1. CUSTOMER RELATIONSHIPS. Xxxxxxxxxx agrees that, except in the
ordinary course of her employment with the Company, she will not, without the
prior written consent of the Company, at any time during her employment with the
Company and for six (6) months after termination of such employment, whether
such termination be voluntary or involuntary, or with or without cause, directly
or indirectly, either as an individual, officer, partner, consultant,
contractor, employee, agent, shareholder, or financial backer of any firm or
corporation:
(a) sell or offer to sell, to any customer of the Company, any
goods or services of the type sold by the Company;
(b) solicit any customer of the Company to purchase any such
goods or services from any person, firm or corporation other than the Company;
(c) solicit any customer to terminate any existing business
relationship with the-Company or encourage any customer not to enter into any
business relationship with the Company; or
(d) assist or encourage any person, firm or corporation in any
way to do or attempt to do any of the foregoing.
As used in this paragraph 1, a customer shall mean and include any
person, firm or corporation who (i) purchased any goods or services from the
Company at any time during the last year of the Xxxxxxxxxx'x employment with the
Company or at any time during the six (6) months after the termination of such
employment.
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Notwithstanding anything to the contrary contained herein, in the event
of (i) the sale, exchange or other disposition of all or substantially all the
assets of the Company, the transfer of share voting control of the Company from
its present controlling shareholders to any other person, firm or corporation or
affiliated group thereof or the consolidation or merger of the Company with or
into any corporation not controlled directly or indirectly by the Company's
controlling shareholders at the time of such merger and (ii) the termination by
the Company or its successor of Xxxxxxxxxx'x employment, with or without cause,
within six (6) months before or after any such disposition, transfer or
consolidation or merger, the restrictions of Paragraphs I and 2 of this
Agreement shall cease to be binding upon Xxxxxxxxxx.
2. EMPLOYEE RELATIONSHIPS. Xxxxxxxxxx agrees that, except in the
ordinary course of her employment with the Company, and for six (6) months after
termination of such employment, whether such termination be voluntary or
involuntary, or with or without cause, directly or indirectly, either as an
individual, officer, partner, consultant, contractor, employee, agent,
shareholder or financial backer of any firm or corporation:
(a) enter into, with any employee of the Company, any business
association or arrangement which competes or may be expected to compete with the
Company;
(b) solicit any employee of the Company to enter into any
business association or arrangement which competes or may be expected to compete
with the Company;
(c) solicit any employee of the Company to leave the
employment of the Company; or
(d) assist any person, firm or corporation, in any way, to do
or attempt to do any of the foregoing.
3. CONFIDENTIAL AND PROPRIETARY INFORMATION. Xxxxxxxxxx agrees that,
except in the ordinary course of her employment with the Company, she will not,
without the prior written consent of the Company, at any time during her
employment with the Company and after termination of such employment, whether
such termination be voluntary or involuntary, or with or without cause, directly
or indirectly, either as an individual, officer, partner, consultant,
contractor, employee, agent, shareholder or financial backer of any firm or
corporation:
(a) disclose or furnish to any person, firm or corporation any
Confidential Information; or
(b) use any Confidential Information for her own benefit or
for the benefit of any other person, firm or corporation.
All records, files, memoranda, reports, drawings, plans, sketches,
lists, documents and the like, operations information, financial information,
business forecasts, marketing and business strategies, or confidential or
proprietary information of the Company and any customer information, whether
prepared by Xxxxxxxxxx or others, and any and all copies thereof, are the
property of the Company and, in the event of the termination of Xxxxxxxxxx'x
employi~i~nt with the Company, for any reason, she will promptly return to the
Company any such materials in her possession.
4. REMEDIES. Since it is recognized that irreparable damage could
result to the Company from any violation of this Agreement, Xxxxxxxxxx agrees
that in addition to any and all other remedies available to it, the Company
shall have the remedy of a restraining order, injunction and such equitable
relief as may be decreed or issued by a court of competent jurisdiction to
enforce the provisions of this Agreement.
5. ENFORCEABILITY. Should any clause or portion of this Agreement be
unenforceable or be declared invalid for any reason whatsoever, such
enforceability or invalidity shall not affect the enforceability or validity of
the remaining portions of this Agreement.
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6. CONSIDERATION.
(a) Xxxxxxxxxx'x continued employment by the Company for any
period of time after the date hereof will constitute consideration for her
obligations hereunder.
(b) As additional consideration for Xxxxxxxxxx'x obligations
hereunder, the Company agrees not to terminate Xxxxxxxxxx'x employment with the
Company unless the Company: (i) gives Xxxxxxxxxx at least twelve (12) month
prior written notice of such termination, or (ii) pays to Xxxxxxxxxx,
immediately following her termination, upon the terms and conditions hereinafter
set forth, an amount equal to the twelve (12) month's total compensation to be
paid to Xxxxxxxxxx pursuant to any then existing compensation plan in effect
between the Company and Xxxxxxxxxx. The Company shall initially pay Xxxxxxxxxx
one half of the twelve (12) months total compensation due her under this
Agreement on a bi-weekly-basis for a period of six (6) months. The Company shall
pay to Xxxxxxxxxx the remaining six (6) months total compensation due her within
thirty (30) days thereafter. The Company agrees that in the event Xxxxxxxxxx has
not secured employment or a contractual position, of six (6) months or more, in
an executive management capacity, at the expiration of twelve (12) months
following the date of her involuntary separation, that the Company will pay her
up to an additional six (6) months of total compensation calculated on the same
basis as recited in this section 6(b) (ii). All such additional compensation
shall be paid by the Company to Xxxxxxxxxx on a bi-weekly basis and shall cease
immediately upon Xxxxxxxxxx securing such employment or contractual position in
an executive management capacity. Xxxxxxxxxx agrees to immediately notify the
Company when she secures such position. Notwithstanding the foregoing, the
Company will have no obligation to Xxxxxxxxxx under this paragraph 6(b) if the
Company terminates Xxxxxxxxxx'x employment with the Company because Xxxxxxxxxx
violated any provision of this Agreement.
(c) The Company agrees that in the event Xxxxxxxxxx
voluntarily terminates her employment with the Company and the Company desires
to enforce the provisions of Section 1 and/or 2 of this Agreement it shall, on a
bi-weekly basis, compensate Xxxxxxxxxx solely for the period in which the
Company actually seeks to enforce Section 1 and/or 2 hereof (and so notifies
Xxxxxxxxxx). The bi-weekly payment to be made by the Company to Xxxxxxxxxx shall
be made in accordance with the terms of any then existing compensation plan in
effect between the Company and Xxxxxxxxxx. In the event the Company desires not
to enforce Section 1 and/or 2 hereof, (and so notifies Xxxxxxxxxx), it shall not
be obligated to compensate Xxxxxxxxxx.
7. MISCELLANEOUS. This agreement constitutes the entire agreement
between Xxxxxxxxxx and the Company with respect to the subject matter hereof and
replaces and supersedes any prior agreements or understandings, whether oral or
written. No waiver, modification or discharge of this Agreement, or any part
hereof, shall be valid or binding unless such waiver, modification or discharge
shall have first been reduced to writing and signed by the party against whom
enforcement thereof is sought. The terms and conditions hereof shall inure to
and be binding upon the parties hereto, and their respective legal
representatives, successors and assigns. This Agreement shall be construed and
enforced in accordance with, and subject to, the laws of the State of New York.
In any action relating to this Agreement, Xxxxxxxxxx consents to the personal
jurisdiction of any court of record of the State of New York or of the United
States located in the State of New York and waives all objections to the laying
of venue of such action in any such court.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement the
day and year first above written.
COMPUTER TASK GROUP, INC.
BY: Xxxxx X. Xxxxxxxx
Chairman and
Chief Executive Officer
BY: Xxxx X. Xxxxxxxxxx
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