EXHIBIT 10 (o)
EMPLOYMENT
AGREEMENT
Amended and Restated Effective
January 1, 2009
THIS AGREEMENT
, effective as of July 16, 2001
is between Computer Task Group, Incorporated, a New York
corporation with its executive offices at 800 Delaware Avenue,
Buffalo, New York 14209 (the “Corporation”), and James
R. Boldt, an individual residing at 142 Audubon Drive, Amherst, New
York 14226 (the “Executive”). The Agreement is amended
and restated effective January 1, 2009.
RECITALS:
WHEREAS, the Executive will be
employed as the President and Chief Executive Officer of the
Corporation; and
WHEREAS, the Corporation and the
Executive desire to set forth the terms upon which the Executive
will be employed by the Corporation; and
WHEREAS, this Agreement has been
amended and restated effective January 1, 2009 to coordinate
with a certain Change in Control Agreement and to include
provisions intended to comply with final regulations promulgated
under Internal Revenue Code (“Code”) Section 409A
and shall be construed to the extent practicable so as to avoid
causing any amounts payable to the Executive hereunder to be
includable in his gross income under Code Section 409A
(a) (1).
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) “Board of Directors”
or “Board” means the Board of Directors of the
Corporation.
(b) “Cause” means a
finding by the Board of Directors that any of following conditions
exist:
(i) The Executive’s willful
and continued failure to substantially perform his material duties
under this Agreement (other than as a result of his Disability) if
such failure is not substantially cured within 15 days after
written notice is provided to the Executive.
(ii) The Executive’s willful
breach in a substantive and material manner of his fiduciary duty
or duty of loyalty to the Corporation which is injurious to the
financial condition in more than a de minimus manner or the
business reputation of the Corporation.
(iii) The Executive’s
indictment for a felony offense under the laws of the United States
or any state thereof (other than for a violation of motor or
vehicular laws).
(iv) Material breach by the
Executive of any restrictive covenant contained in Sections 10 and
11 of this Agreement. For purposes of this definition, no act or
failure to act will be deemed “willful” unless 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.
(c) “Change in Control
Agreement” means a certain change in control agreement
between the Corporation and the Executive which is effective as of
July 16, 2001, as such agreement may be amended.
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(d) “Code” means the
Internal Revenue Code of 1986, as amended.
(e) “Corporation” means
Computer Task Group, Incorporated, or any successor
organization.
(f) “Disability” means a
disability that has existed for a period of 6 consecutive 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.
(g) “Effective Date”
means July 16, 2001.
(i) “Good Reason” means
the occurrence of one or more of the following events, provided
that the Executive shall give the Corporation a written notice,
within 90 days following the initial occurrence of the event,
describing the event that the Executive claims to be Good Reason
and stating the Executive’s intention to terminate employment
unless the Corporation takes appropriate corrective
action:
(i) A material diminution in the
Executive’s responsibilities, duties, title, reporting
responsibilities within the business organization, status, role or
authority.
(ii) A material reduction by the
Corporation in the Executive’s annual base salary as in
effect from time to time.
(iii) A material reduction by the
Corporation in the aggregate value of benefits provided to the
Executive, as in effect from time to time except where such
reduction is applied uniformly to all officers or all employees of
the Corporation, as applicable. “Benefits” includes all
profit sharing, 401(k), retirement, pension, health, medical,
dental, disability, insurance, automobile, severance, vacation,
leave, reimbursement, and similar benefits.
(iv) A material breach by the
Corporation of any provision of this Agreement or of any other
agreement requiring the payment of compensation to the
Executive.
(v) Removal from, or failure to
re-elect, the Executive to the position of President or Chief
Executive Officer.
(vi) 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 at least 50 miles from the Buffalo, New York
area.
The Corporation shall have 30 days
following the date of receipt of the written notice from the
Executive stating his claim of Good Reason in which to take
appropriate corrective action. If the Corporation does not correct
the Good Reason condition, the Executive’s Good Reason
termination will be deemed to have occurred on the day following
the 30-day period.
(j) “Regulation” means
Treasury Regulations promulgated under Code Section 409A as
amended.
(k) “Specified Employee”
has the meaning provided in Regulation §1.409A-1(i). The
default rules for said definition shall apply unless the
Corporation has adopted other rules in a duly adopted instrument
applicable with respect to all nonqualified deferred compensation
plans of the Corporation.
(l) “Termination of
Employment” has the meaning provided in Regulation
§1.409A-1(h) (1) (ii). If the Executive provides services
as an independent contractor, the Executive will not be considered
to have a Termination of Employment until the Executive has ceased
providing services both as an employee and as an independent
contractor. The preceding sentence shall not apply with respect to
a nonqualified deferred compensation plan in which the Executive
participates as an employee to the extent that the
Executive’s sole activity as an independent contractor with
respect to the Corporation is to serve on the Corporation’s
Board of Directors.
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2. EMPLOYMENT; DUTIES. Subject to the terms and
conditions set forth in this Agreement, the Corporation hereby
agrees to employ the Executive, and the Executive hereby will
assume the positions of President and Chief Executive Officer of
the Corporation, in full charge of the operation of its business
and affairs, subject to the provisions of the by-laws of the
Corporation in respect of the duties and responsibilities assigned
from time to time by the Board of Directors to the President and
Chief Executive Officer, and subject also at all times to the
control of the Board of Directors. Subject to the yearly election
by the Board of Directors in the exercise of its judgment, it is
contemplated that the Executive will continue to be elected to the
positions of President and Chief Executive Officer. The Executive
will perform those duties and discharge those responsibilities as
are commensurate with his position, and as the Board of Directors
may from time to time reasonably direct, that are commensurate with
his position. The Executive agrees to perform his duties and
discharge his responsibilities in a faithful manner and to the best
of his ability and to use all reasonable efforts to promote the
interests of the Corporation. The Executive may not accept other
gainful employment except with the prior consent of the Board of
Directors of the Corporation. With the prior consent of the Board
of Directors of the Corporation, the Executive may become a
director, trustee or other fiduciary of other corporations, trusts
or entities. Notwithstanding the foregoing, the Executive may
manage his passive investments and be involved in charitable, civic
and religious interests so long as they do not materially interfere
with the performance of the Executive’s duties
hereunder.
3. COMPENSATION.
(a) During the term of the
Executive’s employment under this Agreement, the Executive
will receive a base salary at the rate of Four Hundred Thousand
($450,000.00) Dollars per year, payable in equal bi-weekly
installments. On an annual basis, the Compensation Committee of the
Board of Directors will, in good faith, review the base salary of
the Executive to consider appropriate increases (but not decreases)
in the base salary. If the Executive dies during the period of time
of his service under this Agreement, service for any part of the
month of his death will be considered service for the entire
month.
(b) During the term of the
Executive’s employment under this Agreement, the Executive
will be eligible to receive an annual cash incentive from the
Corporation as determined by the Board of Directors. The annual
cash incentive plan for 2001 is attached hereto as Exhibit 3(b).
Notwithstanding anything herein to the contrary, the Executive is
hereby guaranteed to receive a minimum cash incentive of $50,000
for the year 2001.
(c) As of the Effective Date, the
Executive shall receive 400,000 stock options with respect to the
Corporation’s common stock. The price of the options will be
the closing share price of the Corporation’s common stock, as
reported by the New York Stock Exchange, as of the Effective Date
or if there is no closing price for that date, then on the next
business day on which such closing price is reported. The options
will vest in accordance with the vesting schedule set forth in
Exhibit 3(c).
(d) The Corporation will deduct or
withhold from all salary and incentive 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.
4. OTHER BENEFITS AND TERMS. During
the term of the Executive’s employment under this Agreement,
the Executive will be entitled to the following additional
benefits:
(a) The Executive will be entitled
to participate in, the Corporation’s health and medical
benefit plans, any pension, profit sharing and retirement plans,
and any insurance policies or programs from time to time generally
offered to all or substantially all executive employees who are
employed by the Corporation. These plans, policies and programs are
subject to change at the sole discretion of the
Corporation.
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(b) The Executive will also receive
the following:
(i) Life insurance benefits will be
provided at an amount not less than three times base salary
(subject to a physical examination);
(ii) Disability insurance in an
amount equal to two-thirds anticipated total annual cash
compensation;
(iii) Executive Supplemental Medical
Plan which will provide up to $10,000.00 per year in supplemental
medical and dental coverage for items not covered under other CTG
medical and dental plans or HMOs (but not including voluntary
cosmetic surgery);
(iv) Travel insurance with aggregate
coverage inclusive of the insurance provided under the
Corporation’s American Express card program, in an amount
equal to four times base compensation;
(v) Reimbursement of up to $4,000.00
per year for personal tax advice;
(vi) Participation in the
Corporation’s Deferred Compensation Plan subject to the
contribution rates as determined by the Compensation Committee;
and
(vii) Annual luncheon club
dues.
5. VACATIONS. The Executive will be
entitled to five weeks of paid vacation and nine paid holidays each
year. Unused vacation in any year may not be carried over to
subsequent years.
6. REIMBURSEMENT FOR EXPENSES. The
Corporation will reimburse the Executive in accordance with its
expense reimbursement policy for expenses that the Executive may
from time to time reasonably incur on behalf of the Corporation in
the performance of his responsibilities and duties.
7. PERIOD OF EMPLOYMENT. Subject to
the provisions of this Section, the period of employment of the
Executive under this Agreement will begin on the Effective Date and
shall continue until 60 days after either party provides 60 days
prior written notice to the other party that it desires to
terminate the Executive’s employment.
Notwithstanding the
foregoing:
(a) The Executive’s employment
will terminate: (i) on the date determined by the Corporation
if the Corporation believes it has Cause, (ii) on the 30th day
following the date on which the Corporation receives the written
notice described in Section 1(g) if the Executive has claimed
the existence of Good Reason and the Corporation has failed to take
appropriate corrective action, (iii) on the date of the
Executive’s death, (iv) on the date on which the
Executive has incurred a Disability, as agreed by the Executive and
the Corporation or, if they are unable to agree, on the date a
physician’s written determination that the Executive has
incurred a Disability is delivered to the Corporation and the
Executive in accordance with Section 9(e), or (v) such
other date as is mutually agreed upon by the Executive and the
Corporation.
(b) In the event the
Executive’s employment is terminated for any reason, the
Executive shall resign on the date of such termination of
employment from any and all positions he may have as a director of
the Corporation and its subsidiary corporations. The Executive
understands and agrees that the Corporation shall be entitled to
have such equitable relief, including the right to specific
performance, to enforce the provisions of this Section.
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Any notice of termination of
employment given by a party must specify the particular termination
provision of this Agreement relied upon by the party and must set
forth in reasonable detail the facts and circumstances that provide
a basis for the termination.
8. INDEMNIFICATION. The Corporation
agrees that if the Executive is made a party, or is threatened to
be made a party, to any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a
“Proceeding”), by reason of the fact that he is or was
a director, officer or employee of the Corporation or is or was
serving at the request of the Corporation as a director, officer,
member, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether or not the basis of such
Proceeding is the Executive’s alleged action in an official
capacity while serving as a director, officer, member, employee or
agent, the Executive shall be indemnified and held harmless by the
Corporation to the fullest extent legally permitted or authorized
by the Corporation’s certificate of incorporation or bylaws
or resolutions of the Corporation’s Board of Directors or, if
greater, by the laws of the State of New York, against all cost,
expense, liability and loss (including, without limitation,
attorney’s fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by the Executive in connection therewith, and
such indemnification shall continue as to the Executive’s
heirs, executors and administrators.
The Corporation also agrees that if
the Executive is made a party, or is threatened to be made a party,
to any action, suit or proceeding by reason of the termination of
his employment with his prior employer or his accepting employment
with the Corporation, he shall be indemnified and held harmless by
the Corporation against all cost, expense, liability and loss
(including attorney’s fees) reasonably incurred or suffered
by the Executive in
