EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is entered into as of this 1st day of
January, 2002, by and between Covansys Corporation, a Michigan corporation (the
"Company"), and Xxxxxx X. Xxxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Executive, and the Executive
desires to accept such employment, in each case upon the terms and conditions
set forth herein; and
WHEREAS, the Company recognizes and the Executive agrees that, as a key
employee of the Company, if the Executive were to compete with the Company, he
could cause the Company great harm;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and promises contained herein and for other good and valuable
consideration, the Company and the Executive hereby agree as follows:
1. Agreement to Employ: No Conflicts. Upon the terms and subject to the
conditions of this Agreement, the Company hereby agrees to employ the Executive,
and the Executive hereby accepts employment by the Company. The Executive
represents that he is entering into this Agreement voluntarily and that his
employment hereunder and compliance with the terms and conditions hereof will
not conflict with or result in the breach by him of any agreement to which he is
a party or by which he is bound.
2. Term: Position and Responsibilities.
(a) Term of Employment. Unless the Executive's employment
shall sooner terminate pursuant to Section 6, the Company shall employ the
Executive for a term commencing on January 1, 2002, (the "Effective Time") and
ending on the third anniversary thereof the "Initial Term". The period during
which the Executive is employed pursuant to this Agreement shall be referred to
as the "Employment Period."
(b) Position and Responsibilities. During the Employment
Period, the Executive shall serve as President and Chief Operating Officer
("COO") of the Company and shall have such duties and responsibilities
consistent with the Executive's title and position as the Board of Directors of
the Company (the "Board") specifies from time to time consistent with the
responsibilities currently assigned to the office.
3. Base Salary. As compensation for the services to be performed by the
Executive during the Employment Period, the Company shall pay the Executive a
base salary at an annualized rate of $500,000, payable in installments on the
Company's regular payroll dates. The Compensation Committee of the Board shall
review the Executive's base salary annually during the Employment Period and, in
its sole discretion, may increase (but may not decrease) such base salary from
time to time based upon the performance of the Executive, the financial
condition of the Company, prevailing industry salary levels and such other
factors as the Compensation Committee shall consider relevant. (The annual base
salary payable to the Executive under this Section 3, as the same may be
increased from time to time, shall hereinafter be referred to as the "Base
Salary.")
4. Incentive Compensation Arrangements.
(a) Annual Incentive Compensation. The Company shall establish
an annual bonus plan for the Executive (the "Bonus Plan") intended to meet the
requirements of Section 162(m) of the Internal Revenue Code. During the
Employment Period, the Bonus Plan shall provide that, for each fiscal year of
the Company ending during the Employment Period (each such year, a "Bonus
year"), the Executive shall be entitled to an annual incentive bonus under the
Bonus Plan of up to 100% of his Base Salary for such Bonus year if the Company
and the Executive have achieved the target financial and other performance
objectives established by the Compensation Committee or the Board for such Bonus
year, which objectives shall be reasonably acceptable to the Executive. The
annual incentive bonus payable to the Executive under the Bonus Plan shall be
paid in cash and shall be paid no later than 30 days following receipt by the
Board of the consolidated financial statements of the Company for the applicable
Bonus Year. Seventy-five (75%) percent shall be earned if the Executive achieves
the target for the Bonus Year. The additional 25% shall be earned in an amount
thereof equal to the percentage by which the Executive exceeds his target.
(b) Option Grant. As of January 1, 2002, the Company shall
grant to the Executive options to acquire Five Hundred Thousand (500,000) shares
of the Company's common voting stock pursuant to the Company's 1996 Stock Option
Plan (the "Stock Options").
The option prices shall be as follows:
150,000 at the market price on the date of grant,
175,000 at $20.00 per share,
175,000 at $30.00 per share.
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The options shall vest as follows:
50% after two years,
50% after three years.
In addition, the second 175,000 option tranch shall be
exercisable only after the stock has traded at a price greater than $20.00 per
share for twenty consecutive trading days and the third 175,000 option tranch
shall be exercisable only after the stock has traded at a price greater than
$30.00 per share for twenty consecutive trading days. The parties agree that the
maximum number of such options, permitted by applicable law, shall be incentive
stock options. The Company's Board of Directors shall determine, at its next
meeting, the exercise period for vested options after termination of the
Executive's employment.
5. Employee Benefits; Perquisites, etc.
(a) Vacation. The Executive shall be entitled each year to
twenty-nine (29) days of Paid Time Off or such greater amount as shall be
determined in accordance with the policy of the Company established from time to
time.
(b) Employee Benefits. During the Employment Period, the
Executive shall be entitled to participate in the incentive, profit sharing,
pension, retirement, deferred compensation, savings, life, medical, dental,
disability and other welfare benefit plans maintained by the Company for its
senior executives in accordance with the terms thereof, as the same may be
amended and in effect from time to time. The benefits referred to in this
Section 5 shall be provided to the Executive on a basis that is commensurate
with the Executive's position and duties with the Company hereunder.
(c) Perquisites. During the Employment Period, the Executive
shall be entitled to participate in all perquisite programs maintained by the
Company for its senior executives, on a basis that is commensurate with the
Executive's position and duties with the Company hereunder, in accordance with
the terms thereof, as the same may be amended and in effect from time to time.
(d) Business Travel, Lodging, etc. The Company shall reimburse
the Executive for reasonable travel, lodging, meals, entertainment and other
reasonable expenses incurred by him in connection with his performance of
services hereunder upon submission of evidence, satisfactory to the Company, of
the incurrence and purpose of each such expense and otherwise in accordance with
the Company's current business travel and expense reimbursement policy. These
amounts shall include maintenance of living quarters in the Detroit area (in an
amount which shall be agreed upon on or
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before February 15, 2002) and travel expenses between the Detroit area and the
Executive's permanent residence for up to four (4) trips per month (which shall
not exceed $4,500 in any month) and the lease for the Executive's benefit of an
automobile manufactured in the United States of America (the lease payment for
which shall not exceed $500 per month). In addition, the Executive shall be
reimbursed reasonable hotel and other living expenses for the period from
December 1, 2001, through February 15, 2002.
6. Termination of Employment.
(a) Termination Due to Death, Retirement or Disability. In the
event that the Executive's employment hereunder terminates due to his death or
is terminated by the Company due to the Executive's Disability (as defined
below), no termination benefits shall be payable to or in respect of the
Executive except as provided in Section 6(f)(iii). In the event that the
Executive's employment hereunder terminates due to his retirement at or after
age 65, no termination benefits shall be payable to or in respect of the
Executive except as provided in Section 6(f)(ii). For purposes of this
Agreement, "Disability" shall mean a physical or mental disability that prevents
or is reasonably expected to prevent the performance by the Executive of his
duties hereunder for a continuous period of six months or longer or 180 days in
any consecutive 365 day period. The determination of the Executive's Disability
shall (i) be made by an independent physician who is reasonably acceptable to
the Company and the Executive (or his representative), (ii) be final and binding
on the parties hereto and (iii) be made taking into account such competent
medical evidence as shall be presented to such independent physician by the
Executive and/or the Company or by any physician or group of physicians or other
competent medical experts employed by the Executive and/or the Company to advise
such independent physician. The Company may, in its discretion and at its own
expense, obtain insurance upon the life of the Executive, the proceeds of which
shall be payable to the Company. The Executive hereby consents to the issuance
of any such insurance.
(b) Termination by the Company for Cause. The Company may
terminate the Executive's employment for Cause (as defined below), provided that
the Executive shall be given prior written notice of any proposed termination of
his employment for Cause, specifying in reasonable detail the circumstances
claimed to provide the basis for such termination and the Executive shall not
have cured such circumstances to the satisfaction of the Board within 20 days of
receipt of such written notice. "Cause" shall mean the willful or habitual
neglect or willful or habitual failure by the Executive to perform his duties
under this Agreement, the dishonesty of the Executive in any material respect in
connection with the performance of his duties or if the Executive is convicted
of, or pleads guilty or no contest to, a felony.
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(c) Termination Without Cause. The Company may terminate the
Executive's employment with or Without Cause. A termination "Without Cause"
shall mean a termination of the Executive's employment by the Company other than
due to Disability as described in Section 6 (a) or for Cause as described in
Section 6(b).
(d) Termination by the Executive for Good Reason. The
Executive may terminate his employment with or without Good Reason. A
termination of employment by the Executive for "Good Reason" shall mean a
termination by the Executive of his employment with the Company within 20 days
following the occurrence, without the Executive's consent, of any of the
following events: (i) the assignment to the Executive of duties or
responsibilities that are significantly different from, and that result in a
substantial diminution of, the duties or responsibilities that he is to assume
at the Effective Time as contemplated by Section 2(b) of this Agreement, or (ii)
a reduction of the Executive Base Salary or annual bonus opportunity.
(e) Notice of Termination. Any termination of the Executive's
employment by the Company pursuant to Section 6(a), 6(b) or 6(c), or by the
Executive pursuant to Section 6(d), shall be communicated by a written Notice of
Termination addressed to the other parties to this Agreement identifying the
specific provisions of this Section 6 under which such termination is being
effected (a "Notice of Termination").
(f) Payments Upon Certain Terminations.
(i) Subject to Section 7, in the event of a
termination of the Executive's employment by the Company without Cause,
a termination by the Executive of his employment for Good Reason, or a
termination of employment as a result of Executive's death (any such
termination, a "Qualifying Termination"), if such termination occurs
within 12 months of the date hereof, the Executive shall receive the
greater of (x) the balance of Base Salary that would otherwise be
payable for that year or (y) $200,000 payable in a lump sum and if such
termination occurs after 12 months from the date hereof, the Executive
shall receive an amount equal to the Executive's Base Salary in effect
immediately prior to such termination payable in a lump sum. In
addition, the Executive shall be paid any accrued, earned bonus on a
pro rata basis.
(ii) If the Executive's employment is terminated by
the Company for Cause or the Executive shall terminate his employment
without Good Reason during the Employment Period, or on account of
retirement at or after age 65, the Company shall pay the Executive his
full Base Salary through the Date of Termination.
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(iii) In the case of the Executive's termination of
employment due to the Executive's death, the Company shall pay the
Executive's full Base Salary through the Date of Termination. If the
Executive's employment is terminated by the Company as a result of the
Executive's Disability, the Company shall pay the Executive's full Base
Salary through the Date of Termination.
(iv) In the case of any termination of employment,
the Executive (or his estate, legal representative or beneficiaries)
shall be entitled to receive all amounts payable and benefits accrued
under any otherwise applicable plan, policy, program or practice of the
Company in which the Executive was a participant during his employment
with the Company in accordance with the terms thereof, provided that
the Executive shall not be entitled to receive any payments or benefits
under any such plan, policy, program or practice providing any
severance, bonus or incentive compensation (and the provisions of this
Section 6(f) shall supersede the provisions of any such plan, policy,
program or practice or the amounts payable hereunder shall be reduced
by the amounts payable under any such severance, bonus or incentive
compensation plan, policy, program or practice).
(g) Date of Termination. As used in this Agreement, the term
"Date of Termination" shall mean (i) if the Executive's employment is terminated
by his death, the date of his death, (ii) if the Executive's employment is
terminated by the Company for Cause, the latest of the date on which Notice of
Termination is given as contemplated by Section 6(e), the date of termination
specified in such notice and the date any applicable correction period ends, and
(iii) if the Executive's employment is terminated by the Company without Cause,
due to the Executive's Disability or by the Executive for any reason, the date
that is 30 days after the date on which Notice of Termination is given as
contemplated by Section 6(e) or, if no such notice is given, 30 days after the
date of termination of employment.
(h) Resignation upon Termination. Effective as of any Date of
Termination under this Section 6 or as of such earlier date as the Company may
request following the receipt or delivery of a Notice of Termination, the
Executive shall resign, in writing, from all Board memberships and other
positions then held by him with the Company and its Affiliates.
7. Confidentiality; Nonsolicitation; Noncompetition; etc.
(a) Unauthorized Disclosure. During the period of the
Executive's employment with the Company and following any termination of such
employment, without the prior written consent of the Board or its authorized
representative, except to the extent required by an order of a court having
jurisdiction or under subpoena from an appropriate government agency,
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in which event, the Executive shall use his reasonable efforts to consult with
the Board prior to responding to any such order or subpoena, and except as
required in the performance of his duties hereunder, the Executive shall not
disclose or use for his benefit or gain any confidential or proprietary trade
secrets, customer lists, drawings, designs, information regarding product
development, marketing plans, sales plans, manufacturing plans, management
organization information (including but not limited to data and other
information relating to members of the Board of Directors of Company, the
Company or any of their respective Affiliates or to management of Company, the
Company or any of their respective Affiliates), operating policies or manuals,
business plans, financial records, packaging design or other financial,
commercial, business or technical information (a) relating to the Company or any
of its Affiliates or (b) that the Company or any of its Affiliates may receive
belonging to suppliers, customers or others who do business with the Company or
any of its Affiliates (collectively, "Confidential Information") to any third
person unless such Confidential Information has been previously disclosed to the
public or is in the public domain (other than by reason of the Executive's
breach of this Section 7).
(b) Non-Competition. During the period of the Executive's
employment with the Company and, following any termination thereof, the period
ending on the first anniversary of the effective date of such termination, the
Executive shall not, directly or indirectly, become employed in any capacity by,
engage in business with, serve as an agent or consultant or a director, or
become a partner, member, principal or stockholder (other than a holder of less
than 1% of the outstanding voting shares of any publicly held company) of, any
Person that competes or has a reasonable potential for competing, with any part
of the business of the Company or any of its Affiliates (the "Business").
(c) Non-Solicitation of Employees. During the period of the
Executive's employment with the Company and, following any termination thereof,
the period ending 18 months after the effective date of such termination, the
Executive shall not, directly or indirectly, for his own account or for the
account of any other Person, (i) solicit for employment, employ or otherwise
interfere with the relationship of the Company or any of its Affiliates with any
natural person throughout the world who is or was employed by or otherwise
engaged to perform services for the Company or any of its Affiliates in
connection with the Business at any time during which the Executive was employed
by the Company (in the case of any such activity during such time) or during the
six-month period preceding such solicitation, employment or interference (in the
case of any such activity after the Date of Termination), other than (A) any
such solicitation or employment on behalf of the Company or any of its
Affiliates during the Executive's employment with the Company or (B) the
Executive's personal assistant, or (ii) induce any employee of the Company or
any of its Affiliates who is a member of management to engage in any activity
which the Executive is prohibited from engaging in under any of
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Sections 7(a), 7(b), 7(c) or 7(d) or to terminate his employment with the
Company.
(d) Non-Solicitation of Customers. During the period of the
Executive's employment with the Company and, following any termination thereof,
the period ending 18 months after the effective date of such termination, the
Executive shall not, directly or indirectly, for his own account or for the
account of any other Person, solicit or otherwise attempt to establish any
business relationship of a nature that is competitive with the business or
relationship of the Company or any of its Affiliates with any Person throughout
the world which is or was a customer, client or distributor of the Company or
any of its Affiliates at any time during which the Executive was employed by the
Company (in the case of any such activity during such time) or during the
twelve-month period preceding the Date of Termination (in the case of any such
activity after the Date of Termination), other than any such solicitation on
behalf of the Company or any of its Affiliates during the Executive's employment
with the Company.
(e) Return of Documents. In the event of the termination of
the Executive's employment for any reason, the Executive shall deliver to the
Company all of (i) the property of each of Company, the Company and their
respective Affiliates and (ii) the documents and data of any nature and in
whatever medium of each of Company, the Company and their respective Affiliates,
and he shall not take with him any such property, documents or data or any
reproduction thereof, or any documents containing or pertaining to any
Confidential Information.
(f) No Disparaging Comments. Each of the Company (on behalf of
itself and its Board, officers and employees, acting in their capacities as
such) and the Executive agrees not to make disparaging or derogatory comments
about the other party, the Company's officers and directors (or their respective
families), and/or any of their respective Affiliates, except to the extent
required by law, and then only after consultation with the other party to the
maximum extent possible in order to maintain goodwill for each of the parties.
8. Certain Acknowledgments and Agreements: Injunctive Relief with
Respect to Covenants; Forum, Venue and Jurisdiction.
(a) Executive acknowledges and agrees that the covenants,
obligations and agreements of the Executive contained in Section 7 relate to
special, unique and extraordinary matters and that a violation of any of the
terms of such covenants, obligations or agreements will cause the Company
irreparable injury for which adequate remedies are not available at law.
Therefore, the Executive agrees that the Company shall be entitled to an
injunction, restraining order or such other equitable relief (without the
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requirement to post bond) as a court of competent jurisdiction may deem
necessary or appropriate to restrain the Executive from committing any violation
of such covenants, obligations or agreements. These injunctive remedies are
cumulative and in addition to any other rights and remedies the Company may
have.
(b) The Executive acknowledges and agrees that the Executive
will have a prominent role in the management of the business, and the
development of the goodwill, of the Company and its Affiliates and will
establish and develop relations and contacts with the principal customers and
suppliers of the Company and its Affiliates in the United States of America and
the rest of the world, all of which constitute valuable goodwill of, and could
be used by the Executive to compete unfairly with, the Company and its
Affiliates and that (i) in the course of his employment with the Company, the
Executive will obtain confidential and proprietary information and trade secrets
concerning the business and operations of the Company and its Affiliates in the
United States of America and the rest of the world that could be used to compete
unfairly with the Company and its Affiliates; (ii) the covenants and
restrictions contained in Section 7 are intended to protect the legitimate
interests of the Company and its Affiliates in their respective goodwill, trade
secrets and other confidential and proprietary information; and (iii) the
Executive desires to be bound by such covenants and restrictions.
(c) The Company and the Executive each hereby irrevocably
submits to the exclusive jurisdiction of the courts of the State of Michigan and
the Federal courts of the United States of America located in the State of
Michigan, in respect of the injunctive remedies set forth in this Section 8 and
the interpretation and enforcement of Section 7 insofar as such interpretation
and enforcement relate to any request or application for injunctive relief in
accordance with the provisions of this Section 8, and the parties hereto hereby
irrevocably agree that (i) the sole and exclusive appropriate venue for any suit
or proceeding relating solely to such injunctive relief shall be in such a
court, (ii) all claims with respect to any request or application for such
injunctive relief shall be heard and determined exclusively in such a court,
(iii) any such court shall have exclusive jurisdiction over the person of such
parties and over the subject matter of any dispute relating to any request or
application for such injunctive relief, and (iv) each hereby waives any and all
objections and defenses based on forum, venue or personal or subject matter
jurisdiction as they may relate to an application for such injunctive relief in
a suit or proceeding brought before such a court in accordance with the
provisions of this Section 8.
(d) Executive represents that his economic means and
circumstances are such that the provisions of this Agreement, including the
restrictive covenants in Section 7, will not prevent him from providing for
himself and his family on a basis satisfactory to him and them.
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(e) If any court of competent jurisdiction shall at any time
determine that, but for the provisions of this paragraph, any part of this
agreement is illegal, void as against public policy or otherwise unenforceable,
the relevant part will automatically be amended to the extent necessary to make
it sufficiently narrow in scope, time and geographic area to be legally
enforceable. All other terms will remain in full force and effect.
(f) If the Executive raises any question as to the
enforceability of any part or terms of this agreement, including, without
limitation, the restrictive covenants contained in Section 7, the Executive
specifically agrees that he will comply fully with this Agreement unless and
until the entry of an award to the contrary.
9. Entire Agreement.
(a) This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof. All prior
correspondence and proposals (including but not limited to summaries of proposed
terms) and all prior promises, representations, understandings, arrangements and
agreements relating to such subject matter (including but not limited to those
made to or with the Executive by any other Person) are merged herein and
superseded hereby.
(b) Except as provided herein, the Executive and the Company
acknowledge that this Agreement constitutes the entire agreement between the
parties and supersedes any prior agreements between the Executive and the
Company concerning the subject matter hereof.
10. Miscellaneous.
(a) Binding Effect: Assignment. This Agreement shall be
binding on and inure to the benefit of Company, the Executive, and their
respective Successors and permitted assigns. This Agreement shall also be
binding on and inure to the benefit of the Executive and his heirs, executors,
administrators and legal representatives. This Agreement shall not be assignable
by any party hereto without the prior written consent of the other parties
hereto, except as provided pursuant to this Section. The Company may effect such
an assignment without prior written approval of the Executive upon the transfer
of all or substantially all of its business and/or assets (by whatever means).
(b) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan without reference
to principles of conflicts of law.
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(c) Taxes. The Company may withhold from any payments made
under this Agreement all applicable taxes, including but not limited to income,
employment and social insurance taxes, as shall be required by law.
(d) Amendments. No provision of this Agreement may be
modified, waived or discharged unless such modification, waiver or discharge is
approved by the Board or a Person authorized thereby and is agreed to in writing
by the Executive. If and for so long as the Executive serves as a member of the
Board of Directors of the Company, he shall abstain from any vote with respect
to his compensation or benefits or the terms of this Agreement, including
modifications, waivers or amendments hereof. No waiver by any party hereto at
any time of any breach by any other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No waiver of any provision of this
Agreement shall be implied from any course of dealing between or among the
parties hereto or from any failure by any party hereto to assert its rights
hereunder on any occasion or series of occasions.
(e) Severability. In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby.
(f) Notices. Any notice or other communication required or
permitted to be delivered under this Agreement shall be (i) in writing, (ii)
delivered personally, by courier service or by certified or registered mail,
first-class postage prepaid and return receipt requested, (iii) deemed to have
been received on the date of delivery or, if so mailed, on the third business
day after the mailing thereof, and (iv) addressed as follows (or to such other
address as the party entitled to notice shall hereafter designate in accordance
with the terms hereof):
(A) If to the Company, to it at:
Covansys Corporation
00000 X. Xxxxxx Xxxx Xx., Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
(B) if to the Executive, to him at his residential
address as currently on file with the Company.
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Copies of any notices or other communications given under this
Agreement shall also be given to:
Xxxxxxx, Dubilier & Rice, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
(g) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
(h) Headings. The section and other headings contained in this
Agreement are for the convenience of the parties only and are not intended to be
a part hereof or to affect the meaning or interpretation hereof.
(i) Certain Definitions.
"Affiliate" means with respect to any Person, any other Person
that, directly or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with the first Person, including but
not limited to a Subsidiary of the first Person, a Person of which the first
Person is a Subsidiary, or another Subsidiary of a Person of which the first
Person is also a Subsidiary.
"Control" means, with respect to any Person, the possession,
directly or indirectly, severally or jointly, of the power to direct or cause
the direction of the management policies of such Person, whether through the
ownership of voting securities, by contract or credit arrangement, as trustee or
executor, or otherwise.
"Person" means any natural person, firm, partnership, limited
liability company, association, corporation, company, trust, business trust,
governmental authority or other entity.
"Subsidiary" means with respect to any Person, each
corporation or other Person in which the first Person owns or Controls, directly
or indirectly, capital stock or other ownership interests representing 50% or
more of the combined voting power of the outstanding voting stock or other
ownership interests of such corporation or other Person.
"Successor" of a Person means a Person that succeeds to the
first Person's assets and liabilities by merger, liquidation, dissolution or
otherwise by operation of law, or a Person to which all or substantially all the
assets and/or business of the first Person are transferred.
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IN WITNESS WHEREOF, the Company has duly executed this Agreement by its
authorized representative, and the Executive has hereunto set his hand, in each
case effective as of the date first above written.
COVANSYS CORPORATION
By: /s/ Xxx X. Xxxxxxxxxx
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Name: Xxx X. Xxxxxxxxxx
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Title: Chief Executive Officer
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EXECUTIVE:
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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