EXHIBIT 10 (o)
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CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT, effective as of July 16, 2001 (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 Xxxxx X. Xxxxx, an individual residing at 000 Xxxxxxx Xxxxx,
Xxxxxxx, Xxx Xxxx 00000 (the "Executive").
RECITALS:
WHEREAS, the Executive is employed as the 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 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:
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(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 to substantially
perform his duties as 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 July 16, 2001.
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);
(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
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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
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.
(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
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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 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 Buffalo, New York 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 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.
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(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.
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 2.99
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.
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(b) BONUS. The Executive will receive a cash
bonus equal to 2.99 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
(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
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(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 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
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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 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 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.
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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:
Xxxxx X. Xxxxx
000 Xxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
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.
47
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: Chairman of the Board of Directors
EXECUTIVE:
-----------------------------------------------------
Xxxxx X. Xxxxx
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