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EXHIBIT 10 (q)
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COMPUTER TASK GROUP, INCORPORATED
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CHANGE IN CONTROL AGREEMENT
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THIS AGREEMENT, dated as of October 30, 2000 (the "Effective Date"), is
between Computer Task Group, Incorporated, a New York corporation with its
executive offices at 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx 00000 (the
"Corporation"), and Xxxxxxx X Xxxxxxxx, an individual residing at 0000 Xxxxxxx
Xxx, Xxxxxxxxxx, XX 00000 (the "Executive").
RECITALS:
WHEREAS, the Executive is employed as the Chairman of the Board, President
and Chief Executive Officer of the Corporation; and
WHEREAS, it is in the best interests of the Corporation to reinforce and
encourage the Executive's continued disinterested full attention and
undistracted dedication to the duties of the Executive currently and in the
potentially disturbing circumstances of a possible change in control of the
Corporation by providing some degree of personal financial security to the
Executive; and
WHEREAS, it is in the best interests of the Corporation to enable the
Executive, without being influenced by the uncertainties of the Executive's own
situation, to assess and advise the Corporation whether proposals concerning
any potential change in control are in the best interests of the Corporation
and its shareholders and to take other action regarding these proposals as the
Corporation might determine to be appropriate; and
WHEREAS, to induce the Executive to remain in the employ of the
Corporation, the Board of Directors has determined it is desirable to pay the
Executive the compensation set forth below if the Executive's employment with
the Corporation terminates in one of the circumstances described below in
connection with a change in control of the Corporation.
NOW, THEREFORE, in consideration of the promises and of the covenants
contained in this Agreement, the Corporation and the Executive agree as
follows:
1. DEFINITIONS. The following definitions apply for purposes of this
Agreement.
(a) "Aggregate Exercise Price" means:
(i) in the case of options to acquire common stock of the
Corporation owned by the Executive, the total amount of cash or immediately
available funds the Executive would be required to pay to the Corporation to
purchase all of the common stock of the Corporation that, on the date as of
which the Aggregate Exercise Price is to be determined, the Executive is
entitled to purchase under the terms of all issued, outstanding and unexercised
options to purchase common stock of the Corporation that are outstanding and
exercisable on the date as of which the Aggregate Exercise Price of those
options is to be determined; and
(ii) in the case of options to acquire Successor Equity,
the total amount of cash or immediately available funds the Executive would be
required to pay to the Successor to purchase all the Successor Equity that, on
the date as of which the Aggregate Exercise Price is to be determined, the
Executive is entitled to purchase under the terms of all issued, outstanding
and unexercised options to purchase Successor Equity that are outstanding
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and exercisable on the date as of which the Aggregate Exercise Price of those
options is to be determined.
(b) "Built in Gain" means an amount equal to:
(i) the Highest Sale Price as of the date of a Change in
Control multiplied by the total number of shares of common stock of the
Corporation that the Executive could acquire by exercising all of the options
to acquire common stock of the Corporation that, as of the date of the Change
in Control, were issued to the Executive, outstanding and unexercised, minus
(ii) the Aggregate Exercise Price of those options.
(c) "Board of Directors" or "Board" means the Board of Directors
of the Corporation.
(d) "Cause" means a finding by the Board of Directors, with
notice in writing to the Executive setting forth in reasonable detail its
reasons, that any of the following conditions exist:
(i) The Executive's willful and continued failure
substantially to perform his duties as Chairman, President and Chief Executive
Officer (other than as a result of the Executive's Disability).
(ii) A willful act or omission by the Executive
constituting fraud or other malfeasance, including without limitation acts of
dishonesty constituting a felony offense under the laws of the United States or
any state thereof, and any act or omission by the Executive constituting
immoral conduct, which in any such case is injurious to the financial condition
or business reputation of the Corporation.
(iii) A material breach by the Executive of the Employment
Agreement dated as of October 17, 2000.
For purposes of this definition, an act or failure to act will be
deemed "willful" only if it is effected by the Executive not in good faith and
without a reasonable belief that his action or failure to act was in or not
opposed to the Corporation's best interests.
(e) "Change in Control" means any one of the following
occurrences:
(i) Approval by the stockholders of the Corporation of the
dissolution or liquidation of the Corporation;
(ii) Approval by the stockholders of the Corporation of an
agreement to merge or consolidate, or otherwise reorganize, with or into one or
more entities that are not Subsidiaries or other affiliates, as a result of
which less than 50% of the outstanding voting securities of the surviving or
resulting entity immediately after the reorganization are, or will be, owned,
directly or indirectly, by stockholders of the Corporation immediately before
such reorganization (assuming for purposes of such determination that there is
no change in the record ownership of the Corporation's securities from the
record date for such approval until such reorganization and that such record
owners hold no securities of the other parties to such reorganization, but
including in such determination any securities of the other parties to such
reorganization held by affiliates of the Corporation);
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(iii) Approval by the stockholders of the Corporation of
the sale of substantially all of the Corporation's business and/or assets to a
person or entity that is not a Subsidiary or other affiliate; or
(iv) Any "Person" (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended from time to time,
but excluding any person described in and satisfying the conditions of Rule
13d-1(b)(1) thereunder), OTHER THAN the Corporation, any Subsidiary of the
Corporation, any employee benefit plan of the Corporation or of any of its
Subsidiaries or any Person holding common shares of the Corporation for or
pursuant to the terms of any such employee benefit plan, becomes the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Corporation representing more than 20% of the
combined voting power of the Corporation's then outstanding securities entitled
to then vote generally in the election of directors of the Corporation; or
(v) During any period not longer than two consecutive
years, individuals who at the beginning of such period constituted the Board
cease to constitute at least a majority thereof, unless the election, or the
nomination for election by the Corporation's stockholders, of each new Board
member was approved by a vote of at least three-quarters of the Board members
then still in office who were Board members at the beginning of such period
(including for these purposes, new members whose election or nomination was so
approved).
(f) "Code" means the Internal Revenue Code of 1986, as amended.
(g) "Conversion Options" means an option or options to purchase
Successor Equity, which option or options may be granted by the Successor to
the Executive and are exercisable in full immediately following the Change in
Control for an Aggregate Exercise Price that does not exceed the Aggregate
Exercise Price of the options to purchase common stock of the Corporation owned
by the Executive on the date of the Change in Control and which options, if
exercised by the Executive in full immediately following that Change in
Control, would provide for the ownership by the Executive of Successor Equity
that, immediately following the acquisition of that Successor Equity by the
Executive, may be sold by the Executive, free of any restrictions imposed on
the sale of securities by the Securities Act of 1933, for a price that exceeds
the Aggregate Exercise Price of those options by an amount not less than the
Built in Gain. Under no circumstances is the Executive required to accept a
grant of Conversion Options from the Successor.
(h) "Corporation" means Computer Task Group, Incorporated.
(i) "Disability" means a disability that exists for a
period of at least 12 months and because of which the Executive is physically
or mentally unable to substantially perform his regular duties as Chairman of
the Board, President or Chief Executive Officer of the Corporation, as the case
may be.
(j) "Good Reason" means any of the following occurrences, with
notice to the Corporation from the Executive setting forth in reasonable detail
his reasons:
(i) A material diminution in the Executive's
responsibilities, duties, title, reporting responsibilities within the business
organization, status, role or authority.
(ii) A reduction by the Corporation in the Executive's
annual base salary as in effect on the date of a Change in Control or as in
effect thereafter if that base salary has been increased.
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(iii) A reduction by the Corporation in the aggregate value
of benefits provided to the Executive, as in effect on the date of a Change in
Control or as in effect after that date if those benefits have been increased.
"Benefits" includes all profit sharing, 401(k), retirement, pension, health,
medical, dental, disability, insurance, automobile, severance, vacation, leave,
reimbursement, and similar benefits.
(iv) A failure to continue in effect any stock option or
other equity-based or non-equity based incentive compensation plan in effect
immediately prior to the Change in Control, or a reduction in the Executive's
participation in any such plan, unless the Executive is afforded the
opportunity to participate in alternative incentive compensation plans or
agreements of reasonably equivalent value.
(v) A material breach by the Corporation of any provision
of this Agreement or of any stock option or other equity-based plan or
agreement with the Executive.
(vi) Removal from, or failure to re-elect, the Executive to
the position of Chairman of the Board, President or Chief Executive Officer.
(vii) A requirement, in the Executive's reasonable
judgment, that the services required to be performed by the Executive would
necessitate the Executive moving his residence from the Doylestown,
Pennsylvania area.
The Corporation will have 20 business days from the date of notice from
the Executive stating his claim of Good Reason to cure the circumstances stated
that create the Good Reason cited by the Executive in the notice. If the
Corporation does not, or cannot, cure the Good Reason to the Executive's
reasonable satisfaction, the Good Reason will be deemed to have occurred at the
end of the 20-day period.
(k) "Highest Sale Price" means:
(i) with respect to the common stock of the Corporation,
the highest closing sale price at which common stock of the Corporation has
been sold, in an established securities market, during the 12 consecutive month
period ending on the date as of which the Highest Sale Price of the common
stock of the Corporation is to be determined; and
(ii) with respect to Successor Equity, the highest closing
sale price at which Successor Equity has been sold, in an established
securities market, during the 12 consecutive month period ending on the date of
which the Highest Sale Price of the Successor Equity is to be determined.
(l) "Subsidiary" means any corporation or other entity a
majority of whose outstanding voting stock or voting power is beneficially
owned directly or indirectly by the Corporation.
(m) "Successor" means, the person, firm, corporation or other
entity that, as a result of a Change in Control, has succeeded, directly or
indirectly, to all or substantially all the assets, rights, properties,
liabilities and obligations of the Corporation.
(n) "Successor Equity" means capital stock or any other equity
interest in the Successor.
2. BENEFITS UPON CHANGE IN CONTROL. The Corporation will provide the
benefits listed below in subsections (a) through (c) on a Change in Control.
All amounts payable on a Change in Control under all subsections of this
Section will be made by bank check or wire
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transfer at the Change in Control, or, if that is not within the control of the
Corporation, not later than the tenth business day following the Change in
Control. For purposes of this Section, references to payments by the
Corporation include payments from any entity related to the Corporation, such
as the Corporation's Stock Employee Compensation Trusts.
(a) STOCK RIGHTS. As of the date of the Change in Control, the
Executive will become fully vested in, and entitled to exercise immediately all
stock-related awards he has been granted under any plans or agreements of the
Corporation, including without limitation, awards under the 1991 Stock Option
Plan and the 2000 Equity Award Plan. Unless otherwise required to be limited
for an option to qualify as an Incentive Stock Option under the Code or unless
otherwise terminated by the maximum limits of the applicable plan, the
Executive will be entitled to exercise all these awards for a period of not
less than 12 months following the Change in Control. The acceleration of
vesting and exercisability under this Section will apply notwithstanding any
provision in the 2000 Equity Award Plan or any other plan or agreement that
would prevent the acceleration and vesting of the awards or cause them to be
canceled, rescinded or otherwise impaired.
(b) DEFERRED COMPENSATION. All deferred or otherwise contingent
compensation of the Executive will become (i) vested and (ii) immediately
payable in cash. For purposes only of (ii) in the preceding sentence, a Change
in Control under Section 1(e)(ii) will be determined only by substituting 70%
for 50% in that Section 1(e)(ii).
(c) CONVERSION RIGHTS. If, following the Change in Control (or,
in the case of a Change in Control event described in Section 1(e)(ii) or
(iii), following the merger or sale transaction referred to in those paragraphs
(the consummation of that merger or sale transaction is referred to as a
"Merger or Sale Event")):
(i) the Corporation's legal existence continues but the
number of shares of common stock of the Company the Executive is entitled to
purchase pursuant to the exercise of all options to purchase the Corporation's
common stock owned by the Executive immediately following the Change in Control
for a price not more than the Aggregate Exercise Price of his unexercised
options immediately prior to the Change in Control, is not, on a fully diluted
basis, at least equal to the same proportion, on a fully diluted basis, of the
issued and outstanding shares of common stock of the Corporation that could
have been purchased by the Executive pursuant to the exercise of all of his
options immediately prior to the Change in Control; OR
(ii) the common stock of the Corporation is no longer
listed for trading on an established securities market and the Successor,
effective as of the date of the Change in Control, has not offered to grant
Conversion Options to the Executive in lieu of the options of the Executive to
purchase common stock of the Corporation; OR
(iii) the common stock of the Corporation is no longer
listed for trading on an established securities market and the Successor has
offered to grant Conversion Options to the Executive, effective as of the date
of the Change in Control (in lieu of the Executive's options to purchase common
stock of the Corporation), but the Executive has elected not to accept that
grant of Conversion Options; THEN the Executive will be paid, in one lump sum
payment not later than 20 business days following the Change in Control (or, in
the case of a Change in Control event described in Section 1(e)(ii) or (iii),
not later than 20 business days following the Merger or Sale Event), the Built
in Gain on the options to purchase common stock of the Corporation that were
issued to the Executive and outstanding and unexercised on the date of the
Change in Control and, after that, all those options will be canceled and will
be deemed and construed to be null and void for all purposes.
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For purposes of this subsection, references to options include all
equity-based compensation, including without limitation, restricted stock and
stock appreciation rights. In the case of these types of equity-based
compensation held by the Executive as of the Change in Control, the formulas and
payouts under this subsection will be adjusted to reflect the equivalents under
those types of equity-based compensation.
3. BENEFITS UPON TERMINATION. The Corporation will provide the
benefits listed below in subsections (a) through (f) on the termination of the
Executive's employment (i) by the Corporation without Cause or by the Executive
with Good Reason in either case within 24 months following or in anticipation of
or in connection with a Change in Control, or (ii) by the Executive for any
reason within 6 months after a Change in Control. Payments under subsections
(a), (b), (c), (e) and (f) of this Section will be made by the tenth business
day following the termination of the Executive's employment. For purposes of
this Section, references to payments by the Corporation include payments from
any entity related to the Corporation, such as the Stock Employee Compensation
Trusts. Also, references to payments by the Successor include payments from the
Corporation's Stock Employee Compensation Trusts if those trusts are permitted
to make the payments.
(a) SALARY. The Executive will receive 3 times his full rate of
salary in effect, including directors' fees, if any, (whether or not deferred)
on the date immediately prior to the Change in Control or, if greater, the
amount in effect at any date after the Change in Control.
(b) BONUS. The Executive will receive a cash bonus equal to 3
times the highest annual bonus payable (whether or not deferred) to him in the
3 calendar years preceding the year in which the Change in Control occurs.
(c) FRINGE BENEFITS. The Executive will receive a lump sum
payment equal to 25% of the sum of (i) one times his full rate of salary, as
defined in (a), and (ii) highest annual bonus, as defined in (b). This payment
represents the value to which the parties agree the Executive otherwise would
be entitled with respect to fringe benefits (including without limitation
profit sharing, 401(k), retirement, pension, health, medical, dental,
disability, insurance, automobile, severance, vacation, leave, reimbursement,
and similar benefits) for 36 months.
(d) INDEMNIFICATION. For a 60-month period following the date of
the Executive's termination of employment, the Corporation will continue any
indemnification agreement with the Executive and will provide directors' and
officers' liability insurance insuring the Executive that coverage will have
limits and scope of coverage not less than that in effect immediately prior to
the Change in Control.
(e) CASH-OUT OF STOCK OPTIONS AND OTHER EQUITY-RELATED
COMPENSATION.
(i) IN CORPORATION. If the options to purchase common stock
of the Corporation have not been canceled as provided for in Section 2(c), to
the extent that the Executive has any unexercised options to purchase common
stock of the Corporation that are exercisable at the time of the termination of
the Executive's employment under this Section, the Executive will receive an
amount equal to:
(A) the Highest Sale Price of the
common stock of the Corporation
determined as of the date of the
termination of the Executive's
employment under this Section;
MULTIPLIED BY
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(B) the aggregate number of shares of
common stock of the Corporation
the Executive is entitled to
purchase pursuant to the terms of
all options to purchase any common
stock of the Corporation owned by
the Executive and exercisable on
the date of the termination of the
Executive's employment under this
Section; MINUS
(C) the Aggregate Exercise Price of
the issued and outstanding
unexercised options to purchase
common stock of the Corporation
owned by the Executive as of the
date of the termination of the
Executive's employment under this
Section, to the extent that those
options are exercisable as of that
date.
(ii) IN SUCCESSOR. If the Executive has elected to accept a
grant of Conversion Options from the Successor and, at the time of the
termination of the Executive's employment under this Section, the Executive
owns Conversion Options or any other options to acquire any Successor Equity
that are exercisable at the time of the termination of the Executive's
employment under this Section, and any of those Conversion Options and other
options to purchase Successor Equity have not been exercised by the Executive,
the Executive will receive an amount equal to:
(A) the Highest Sale Price, determined
as of the date of the termination
of the Executive's employment
under this Section, of each unit
of Successor Equity that could be
acquired by the Executive on the
exercise of all outstanding
Conversion Options and other
options to purchase Successor
Equity on the date of the
termination of the Executive's
employment under this Section;
MULTIPLIED BY
(B) the aggregate number of units of
Successor Equity the Executive is
entitled to purchase pursuant to
the terms of all options to
purchase Successor Equity owned by
the Executive and exercisable on
the date of the termination of the
Executive's employment under this
Section; MINUS
(C) the Aggregate Exercise Price of
the issued and outstanding
unexercised Conversion Options and
other options to purchase
Successor Equity owned by the
Executive and exercisable as of
the date of the termination of the
Executive's employment under this
Section.
For purposes of this subsection, references to options and to Successor
Equity include all equity-based compensation, including without limitation,
restricted stock and stock appreciation rights. In the case of these types of
equity-based compensation held by the Executive as of the Change in Control or
as of the termination of the Executive's employment under this Section, the
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formulas and payouts under this subsection will be adjusted to reflect the
equivalents under those types of equity-based compensation.
(f) DEFERRED COMPENSATION. The Executive will receive all
deferred or otherwise contingent compensation not paid out as of the date of
the termination of the Executive's employment.
4. WITHHOLDING. The Corporation will deduct or withhold from all
salary and bonus payments, and from all other payments made to the Executive
pursuant to this Agreement, all amounts that may be required to be deducted or
withheld under any applicable Social Security contribution, income tax
withholding or other similar law now in effect or that may become effective
during the term of this Agreement.
5. OTHER TERMINATION. Upon termination of the Executive's employment
for Cause or because of death or Disability, or not within the time related to
a Change in Control as described in Section 3, no benefits will be payable
under this Agreement.
6. ADDITIONAL PAYMENTS. Notwithstanding anything in this Agreement,
the 2000 Equity Award Plan, or any other agreement or plan to the contrary, in
the event it is determined that any payments or distributions by the
Corporation or any affiliate (as defined under the Securities Act of 1933, as
amended, and the regulations thereunder) thereof or any other person to or for
the benefit of the Executive, whether paid or payable pursuant to the terms of
this Agreement, or pursuant to any other agreement or arrangement with the
Corporation or any such affiliate ("Payments"), would be subject to the excise
tax imposed by Section 4999 of the Code, or any successor provision, or any
interest or penalties with respect to the excise tax (the excise tax, together
with any interest and penalties, are hereinafter collectively referred to as
the "Excise Tax"), then the Executive will be entitled to receive an additional
payment from the Corporation (a "Gross-Up Payment") in an amount that after
payment by the Executive of all taxes (including, without limitation, any
interest or penalties imposed with respect to such taxes and any Excise Tax)
imposed upon the Gross-Up Payment, the Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The amount
of the Gross-Up Payment will be calculated by the Corporation's independent
accounting firm, engaged immediately prior to the event that triggered the
payment, in consultation with the Corporation's outside legal counsel. For
purposes of making the calculations required by this Section, the accounting
firm may make reasonable assumptions and approximations concerning applicable
taxes and may rely on reasonable, good faith interpretations concerning the
application of Sections 280G and 4999 of the Code, provided that the accounting
firm's determinations must be made with substantial authority (within the
meaning of Section 6662 of the Code). The Gross-Up Payment will be paid on the
Executive's last day of employment or on the occurrence of the event that
results in the imposition of the Excise Tax, if later. If the precise amount of
the Gross-Up Payment cannot be determined on the date it is to be paid, an
amount equal to the best estimate of the Gross-Up Payment will be made on that
date and, within 10 days after the precise calculation is obtained, either the
Corporation will pay any additional amount to the Executive or the Executive
will pay any excess amount to the Corporation, as the case may be. If
subsequently the Internal Revenue Service (the "IRS") claims that any
additional Excise Tax is owing, an additional Gross-Up Payment will be paid to
the Executive within 30 days of the Executive providing substantiation of the
claim made by the IRS. After payment to the Executive of the Gross-Up Payment,
the Executive will provide to the Corporation any information reasonably
requested by the Corporation relating to the Excise Tax, the Executive will
take those actions as the Corporation reasonable requests to contest the Excise
Tax, cooperate in good faith with the Corporation to effectively contest the
Excise Tax and permit the Corporation to participate in any proceedings
contesting the Excise Tax. The Corporation will bear and pay directly all costs
and expenses (including any interest or penalties on the Excise Tax), and
indemnify and hold the Executive harmless, on an after-tax basis, from all such
costs and expenses related to such
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contest. Should it ultimately be determined that any amount of an Excise Tax is
not properly owed, the Executive will refund to the Corporation the related
amount of the Gross-Up Payment.
7. NON-EXCLUSIVITY OF RIGHTS. Except as otherwise specifically
provided, nothing in this Agreement prevents or limits the Executive's
continued or future participation in any benefit, incentive, or other plan,
practice, or program provided by the Corporation and for which the Executive
may qualify. Any amount of vested benefit or any amount to which the Executive
is otherwise entitled under any plan, practice, or program of the Corporation
will be payable in accordance with the plan, practice, or program, except as
specifically modified by this Agreement. However, if the Executive receives the
payments under Section 3, the Executive will not be entitled to any severance
payments (which excludes for this purpose all types of equity-based
compensation not cashed out under Section 2(c) or 3(e)) otherwise payable under
any other agreement, plan, or practice providing for severance compensation.
8. NO OBLIGATION TO SEEK OTHER EMPLOYMENT. The Executive will not be
obligated to seek other employment or to take other action to mitigate any
amount payable to him under this Agreement.
9. SUCCESSORS. This Agreement is personal to the Executive and may
not be assigned by the Executive other than by will or the laws of descent and
distribution. This Agreement will inure to the benefit of and be enforceable by
the Executive's legal representatives or successors in interest.
Notwithstanding any other provision of this Agreement, the Executive may
designate a successor or successors in interest to receive any amounts due
under this Agreement after the Executive's death. A designation of a successor
in interest must be made in writing, signed by the Executive, and delivered to
the Corporation. Except as otherwise provided in this Agreement, if the
Executive has not designated a successor in interest, payment of benefits under
this Agreement will be made to the Executive's estate. This Section will not
supersede any designation of beneficiary or successor in interest made by the
Executive or provided for under any other plan, practice, or program of the
Corporation.
This Agreement will inure to the benefit of and be binding upon the
Corporation and its successors and assigns.
The Corporation will require any successor (whether direct or
indirect, by acquisition of assets, merger, consolidation or otherwise) to all
or substantially all of the operations or assets of the Corporation or any
successor, and without regard to the form of transaction used to acquire the
operations or assets of the Corporation, to assume and agree to perform this
Agreement in the same manner and to the same extent that the Corporation would
be required to perform it if no succession had taken place. As used in this
Agreement, "Corporation" means the Corporation and any successor to its
operations or assets as set forth in this Section that is required by this
clause to assume and agree to perform this Agreement or that otherwise assumes
and agrees to perform this Agreement.
10. BENEFIT CLAIMS. In the event the Executive, or his beneficiaries,
as the case may be, and the Corporation disagree as to their respective rights
and obligations under this Agreement, and the Executive or his beneficiaries
are successful in establishing, privately or otherwise, that his or their
position is substantially correct, or that the Corporation's position is
substantially wrong or unreasonable, or in the event that the disagreement is
resolved by settlement, the Corporation will pay all costs and expenses,
including counsel fees, that the Executive or his beneficiaries may incur in
connection therewith directly to the provider of the services or as may
otherwise be directed by the Executive or his beneficiaries. The Corporation
will not delay or reduce the amount of any payment provided for hereunder or
setoff or counterclaim against any such amount for any reason whatsoever; it is
the intention of the Corporation and the Executive that the amounts payable to
the Executive or his beneficiaries
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hereunder will continue to be paid in all events in the manner and at the times
herein provided. All payments made by the Corporation hereunder will be final
and the Corporation will not seek to recover all or any part of any portion of
any payments hereunder for any reason.
11. FAILURE, DELAY OR WAIVER. No course of action or failure to act
by the Corporation or the Executive will constitute a waiver by the party of
any right or remedy under this Agreement, and no waiver by either party of any
right or remedy under this Agreement will be effective unless made in writing.
12. SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such a manner as to be enforceable under applicable law.
However, if any provision of this Agreement is deemed unenforceable under
applicable law by a court having jurisdiction, the provision will be
unenforceable only to the extent necessary to make it enforceable without
invalidating the remainder thereof or any of the remaining provisions of this
Agreement.
13. NOTICE. All written communications to parties required hereunder
must be in writing and (a) delivered in person, (b) mailed by registered or
certified mail, return receipt requested, (such mailed notice to be effective 4
days after the date it is mailed) or (c) sent by facsimile transmission, with
confirmation sent by way of one of the above methods, to the party at the
address given below for the party (or to any other address as the party
designates in a writing complying with this Section, delivered to the other
party):
If to the Corporation:
Computer Task Group, Incorporated
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
Telephone: 000-000-0000
Telecopier: 000-000-0000
with a copy to:
Xxxxxxx, Xxxx, Xxxxxxx, Xxxxx & Goodyear, LLP
Xxx X&X Xxxxx, Xxxxx 0000
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq. and Xxxx X. Xxxxxx, Esq.
Telephone: 000-000-0000
Telecopier: 000-000-0000
If to the Executive:
Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxx Xxx
Xxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
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14. MISCELLANEOUS. This Agreement (a) may not be amended, modified or
terminated orally or by any course of conduct pursued by the Corporation or the
Executive, but may be amended, modified or terminated only by a written
agreement duly executed by the Corporation and the Executive, (b) is binding
upon and inures to the benefit of the Corporation and the Executive and each of
their respective heirs, representatives, successors and assignees, except that
the Executive may not assign any of his rights or obligations pursuant to this
Agreement, (c) except as otherwise specifically provided in this Agreement,
constitutes the entire agreement between the Corporation and the Executive with
respect to the subject matter of this Agreement, and supersedes all oral and
written proposals, representations, understandings and agreements previously
made or existing with respect to such subject matter, including that certain
employment agreement dated October 17, 2000 and any similar agreements, and (d)
will be governed by, and interpreted and construed in accordance with, the laws
of the State of New York, without regard to principles of conflicts of law.
15 TERM.
(a) Except as provided in (b), this Agreement will not be
terminated earlier than 36 months after its Effective Date. The Agreement will
be extended automatically for additional 12-month periods unless one party
notifies the other prior to the beginning of the successive 36 month period
that it is terminating the Agreement. The intention of the preceding sentence
is that if a party does not give notice, at least 36 months remain in the
Agreement.
(b) This Agreement will terminate when the Corporation has made
the last payment provided for under it, including without limitation, any
payments payable at any time under Sections 9 and 10. However, the obligations
under Section 3(d) will survive any termination and will remain in full force
and effect for the period specified.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
CORPORATION:
By __________________________________
Name: Xxxxxxxx X. Xxxxx
Title: Acting Chairman
EXECUTIVE:
__________________________________________
Xxxxxxx X. Xxxxxxxx
