UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
(Exact name of registrant as specified in its charter)
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
| (Address of Principal Executive Offices) | (Zip Code) | |||
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class |
Trading |
Name of each exchange on which registered | ||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Introductory Note
As previously disclosed in the Current Report on Form 8-K filed by Computer Task Group, Incorporated, a New York corporation (the “Company” or “CTG”), on August 9, 2023 with the Securities and Exchange Commission (the “SEC”), on August 9, 2023, the Company entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Cegeka Groep NV, a Belgian limited liability company (“Parent” or “Cegeka”), and Chicago Merger Sub, Inc., a New York corporation and a wholly-owned subsidiary of Cegeka (“Merger Sub”).
Pursuant to the Merger Agreement, Merger Sub commenced a tender offer (the “Offer”) to acquire all of the outstanding shares of common stock, $0.01 par value per share, of the Company (the “Shares”), other than any Shares held by the Company (or treasury shares), Cegeka, Merger Sub and any other wholly-owned subsidiary of Cegeka, for $10.50 per Share, net to the seller in cash (the “Offer Price”), without interest and less any applicable withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated August 23, 2023 (as amended or supplemented from time to time, the “Offer to Purchase”), and in the related Letter of Transmittal (as amended or supplemented from time to time, the “Letter of Transmittal,” which, together with the Offer to Purchase, constitute the “Offer”). The Offer is described in a Tender Offer Statement on Schedule TO (as amended or supplemented from time to time, and together with the exhibits thereto, the “Schedule TO”), filed by Parent and Merger Sub with the SEC on August 23, 2023.
The Offer expired as scheduled at one minute after 11:59 p.m., Eastern Time, on December 12, 2023 (12:00 midnight, Eastern Time, on December 13, 2023). Computershare Trust Company, N.A. (the “Depositary and Paying Agent”) advised that, as of that time, 12,806,181 Shares had been validly tendered and not validly withdrawn in the Offer. Such tendered Shares represent approximately 73.79% of the outstanding Shares. In addition, 339,327 Shares were tendered through notices of guaranteed delivery in the form accompanying the Offer (“Notices of Guaranteed Delivery”) with respect to Shares that had not been delivered in settlement or satisfaction of such guarantees, representing approximately 1.96% of the outstanding Shares. Merger Sub accepted for payment all Shares validly tendered and not withdrawn (other than Shares tendered through Notices of Guaranteed Delivery with respect to Shares that had not been delivered in settlement or satisfaction of such guarantees prior to such acceptance) and will promptly pay for such Shares in accordance with the terms of the Offer.
The number of Shares (excluding Shares with respect to which Notices of Guaranteed Delivery were received but which Shares were not yet delivered) tendered satisfied the Minimum Condition (as defined in the Merger Agreement). As the Minimum Condition and each of the other conditions of the Offer have been satisfied (or waived), Merger Sub accepted for payment all Shares that were validly tendered and not validly withdrawn pursuant to the Offer.
The foregoing summary description of the Merger Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Merger Agreement, which was filed as Exhibit 2.1 to the Current Report on Form 8-K filed by the Company with the SEC on August 9, 2023, and which is incorporated herein by reference.
| Item 1.02. | Termination of a Material Definitive Agreement. |
Loan and Security Agreement
On December 13, 2023, the Company and Bank of America, N.A. entered into a termination agreement (the “Termination Agreement”) with respect to the Loan and Security Agreement, dated May 19, 2021 (as amended, the “Amended Loan Agreement”), by and among the Company, as borrower, Bank of America, N.A., a national banking association, and the lenders under such credit facility. Following the entry into the Termination Agreement and the corresponding repayment of all amounts outstanding under the Amended Loan Agreement, the Amended Loan Agreement was terminated.
The foregoing summary of the Termination Agreement does not purport to be complete and is qualified in its entirety by reference to the complete terms of the Termination Agreement, filed as Exhibit 10.1 to this Current Report on Form 8-K, and incorporated herein by reference.
| Item 2.01. | Completion of Acquisition or Disposition of Assets. |
The information set forth under the Introductory Note and Item 3.01 of this Current Report on Form 8-K is incorporated herein by reference.
Pursuant to the Merger Agreement, on December 13, 2023, Merger Sub exercised its irrevocable option (the “Top-Up Option”) to purchase at a price per share equal to the Offer Price a number of newly issued, fully paid and nonassessable Shares (the “Top-Up Shares”) equal to the lesser of (i) the lowest number of Shares that, when added to the number of Shares owned by Cegeka, Merger Sub and any of their respective subsidiaries at the time of exercise of the Top-Up Option, constitutes one Share more than 90% of the outstanding Shares immediately after the issuance of the Top-Up Shares on a fully-diluted basis (which assumes conversion or exercise of all derivative securities regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) and (ii) the aggregate number of authorized but unissued and unreserved Shares (including any treasury shares).
On December 13, 2023 (the “Closing Date”), pursuant to the terms of the Merger Agreement and in accordance with Section 905 of the Business Corporation Law of the State of New York (the “NYBCL”), Merger Sub merged with and into the Company (the “Merger”), with the Company surviving the Merger. Upon completion of the Merger, the Company became a wholly owned subsidiary of Parent.
Pursuant to the Merger Agreement, at the effective time of the Merger (the “Effective Time”), each issued and outstanding Share (other than Shares owned directly or indirectly by the Company, Parent or Merger Sub) was converted into the right to receive the Offer Price, in cash, without interest and subject to any withholding of tax in accordance with the terms of the Merger Agreement. The effect of the Merger on Company stock options and other equity-based awards is described in “Item 3- Arrangements Between CTG and its Executive Officers, Directors and Affiliates” of the Company’s Solicitation/Recommendation Statement on Schedule 14D-9 filed with the SEC on August 23, 2023, as amended on September 1, 2023, September 11, 2023, September 21, 2023, October 12, 2023, November 3, 2023, November 11, 2023, November 21, 2023 and December 12, 2023 which description is incorporated herein by reference.
| Item 3.01. | Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
On the Closing Date, in connection with the consummation of the Merger, the Company (i) notified the Nasdaq Stock Market LLC (“Nasdaq”) that the Merger had been consummated pursuant to the terms of the Merger Agreement, and (ii) requested that Nasdaq (x) suspend trading of the Shares effective December 13, 2023 and (y) file with the SEC a Form 25 Notification of Removal from Listing and/or Registration to delist and deregister the Shares under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Company intends to file with the SEC a certification on Form 15 under the Exchange Act, requesting the deregistration of the Shares and the suspension of the Company’s reporting obligations under Sections 13 and 15(d) of the Exchange Act.
| Item 3.02. | Unregistered Sales of Equity Securities. |
Pursuant to Merger Sub’s exercise of the Top-Up Option, the Company issued 28,132,349 Shares (the “Top-Up Option Shares”) to Merger Sub for an aggregate purchase price of $295,389,662.52, representing a purchase price of $10.50 per Share. Merger Sub paid the purchase price for the Top-Up Option Shares in full by (i) delivery to the Company of $281,323.49 in cash and (ii) execution and delivery to the Company of a promissory note in the principal amount of $295,108,339.03 having terms as set forth in the Merger Agreement. The Top-Up Option Shares, when added to the Shares owned by Parent and Merger Sub at the time of the exercise of the Top-Up Option, represent one Share more than 90% of the Shares outstanding on a fully-diluted basis immediately after the issuance of the Top-Up Option Shares. The Top-Up Option Shares were issued as a private placement pursuant to an exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933, as amended.
The information set forth under the Introductory Note and Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.02.
| Item 3.03. | Material Modification to Rights of Security Holders. |
The information set forth under the Introductory Note, Item 2.01, Item 3.01, Item 5.01 and Item 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.
| Item 5.01. | Changes in Control of Registrant. |
The information set forth under the Introductory Note, Item 2.01, Item 3.02, Item 5.02 and Item 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 5.01.
As a result of Merger Sub’s acceptance for payment of all Shares that were validly tendered and not validly withdrawn pursuant to the Offer and the consummation of the Merger pursuant to Section 905 of the NYBCL on the Closing Date, a change in control of the Company occurred, and the Company is now a wholly owned subsidiary of Parent. To the knowledge of the Company, there are no arrangements that may at a subsequent date result in a further change in control of the Company.
| Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangement of Certain Officers. |
Pursuant to the Merger Agreement, as of the Effective Time, Filip Gydé, James R. Helvey, III, David Klein, Valerie Rahmani, Raj Rajgopal and Kathryn Stein each resigned from his or her respective position as a member of the Company’s board of directors (the “Board”) and, as applicable, any committee thereof. These resignations were not a result of any disagreement between the Company and the directors on any matter relating to the Company’s operations, policies or practices.
On December 8, 2023, the Company, Computer Task Group Belgium NV, a company organized and existing under the laws of the Kingdom of Belgium (the “Belgian Subsidiary”), and Filip Gydé entered into a termination and settlement agreement to terminate by mutual agreement the employment agreement entered into on March 4, 2019 between the Company, the Belgian Subsidiary and Filip Gydé, effective immediately after the Effective Time.
Pursuant to the Merger Agreement, as of the Effective Time, the directors and officers of the Surviving Corporation (as defined therein) shall be the respective individuals who served as the directors and officers of Merger Sub as of immediately prior to the Effective Time, until their respective successors are duly elected and qualified, or their earlier death, resignation or removal.
The directors of Merger Sub immediately prior to the Effective Time were Stijn Bijnens and Stephan Daems. The officers of Merger Sub immediately prior to the Effective Time were Stijn Bijnens, President; and Stephan Daems, Secretary and Treasurer. Information regarding the new directors and executive officers is contained in the Offer to Purchase filed as Exhibit (a)(1)(A) to the Schedule TO, originally filed with the SEC on August 23, 2023, as subsequently amended, which is incorporated herein by reference.
| Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
Pursuant to the terms of the Merger Agreement, as of the Effective Time, the company’s certificate of incorporation, as in effect immediately prior to the Effective Time, was amended as set forth in the Certificate of Merger filed with the Secretary of State of the State of New York on December 13, 2023 (the “Amended Certificate of Incorporation”). In addition, pursuant to the terms of the Merger Agreement, at the Effective Time, the Company’s by-laws, as in effect immediately prior to the Effective Time, were amended and restated in their entirety (the “Amended and Restated By-Laws”).
Copies of the Amended Certificate of Incorporation and the Amended and Restated By-Laws are filed as Exhibits 3.1 and 3.2, respectively, to this Current Report on Form 8-K, and are incorporated herein by reference.
| Item 8.01. | Other Events. |
The information set forth under the Introductory Note above of this Current Report on Form 8-K is hereby incorporated by reference in its entirety into this Item 8.01.
On December 13, 2023, the Company issued a joint press release relating to consummation of the Merger. A copy of the press release is attached as Exhibit 99.1 and is incorporated herein by reference.
| Item 9.01. | Exhibits. |
| * | Certain confidential portions of this Exhibit were omitted by means of marking such portions with brackets (“[****]”) because the identified confidential portions (i) are not material and (ii) would be competitively harmful if publicly disclosed. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| COMPUTER TASK GROUP, INCORPORATED | ||||||
| Date: December 13, 2023 | By: | /s/ Peter P. Radetich | ||||
| Name: | Peter P. Radetich | |||||
| Title: | Senior Vice President, General Counsel & Secretary | |||||
Exhibit 3.1
CERTIFICATE OF MERGER
OF
CHICAGO MERGER SUB, INC.
(a New York Corporation)
WITH AND INTO
COMPUTER TASK GROUP, INCORPORATED
(a New York Corporation)
Under Section 905 of the Business Corporation Law
December 13, 2023
Pursuant to Section 905 of the New York Business Corporation Law (the “NYBCL”), each of the undersigned hereby certify on behalf of the constituent corporations named herein, as follows:
1. The name of each constituent corporation is as follows:
(a) Chicago Merger Sub, Inc., a New York corporation (the “Merging Corporation”).
(b) Computer Task Group, Incorporated, a New York corporation.
2. The name of the surviving corporation is Computer Task Group, Incorporated, a New York corporation (the “Surviving Corporation”). The name under which the Surviving Corporation was formed is Marks-Baer, Inc.
3. The designation and number of outstanding shares of the Merging Corporation is 100 shares of common stock, par value $0.01 per share. The designation and number of outstanding shares of the Surviving Corporation is 44,225,008.56, par value $0.01 per share. The Merging Corporation owns 40,938,530 of the outstanding shares of common stock of the Surviving Corporation.
4. Each share of common stock of the Merging Corporation issued and outstanding immediately prior to the effective time shall be converted into and become one validly issued, fully paid and nonassessable share of common stock, par value $0.01 per share, of the Surviving Corporation, each issued to the shareholders of the Merging Corporation on a pro rata basis upon surrender of any certificate therefore, with the same rights, powers and privileges as the shares of common stock so converted and shall constitute the only outstanding shares of capital stock of the Surviving Corporation.
5. The certificate of incorporation of the Merging Corporation was filed by the Department of State of the State of New York (the “Department of State”) on August 3, 2023.
The certificate of incorporation of the Surviving Corporation was filed by the Department of State on March 11, 1966.
6. The merger was authorized with respect to the Merging Corporation in the following manner: An agreement and plan of merger was adopted by the unanimous written consent of the board of directors of the Merging Corporation on August 8, 2023. The board of directors submitted the agreement and plan of merger to the sole shareholder of the Merging Corporation, which adopted the agreement and plan of merger by written consent pursuant to Section 615 of the NYBCL on August 8, 2023.
7. The merger was authorized with respect to the Surviving Corporation in the following manner: A plan of merger was adopted by the board of directors of the Surviving Corporation at a meeting on August 8, 2023, by the unanimous vote of the board of directors. In accordance with Section 905 of the NYBCL, the merger does not require a vote of the shareholders of the Surviving Corporation.
8. The certificate of incorporation of the Surviving Corporation, as in effect immediately prior to the effective date of the merger, shall be the certificate of incorporation of the Surviving Corporation upon the effective date of the merger, with the following amendments or changes to be effected by the merger:
(a) To change the purposes of the Surviving Corporation, Article 2 is amended to read in its entirety as follows:
“2. The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the Business Corporation Law of the State of New York (the “NYBCL”); provided, however, that the Corporation is not formed to engage in any act or activity which requires the consent or approval of any state official, department, board, agency or other body, without such consent or approval first being obtained.”
(b) To change the city and county within the State of New York in which the office of the Surviving Corporation is to be located, Article 3 is amended to read in its entirety as follows:
“3. The office of the Corporation shall be located in the County of New York, State of New York.”
(c) To change the aggregate number and classes of shares which the Surviving Corporation has authority to issue pursuant to Article 4 from 152,500,000, consisting of (i) 150,000,000 shares of Common Stock, par value $.01 per share, and (ii) 2,500,000 shares of Preferred Stock, par value $.01 per share, Article 4 is amended to read in its entirety as follows:
“4. The aggregate number of shares which the Corporation shall have authority to issue is 1,000 common shares, par value $0.01 per share.”
2
(d) To change the address to which the Secretary of State shall send a copy of any process against the Surviving Corporation served upon it, Article 5 is amended to read in its entirety as follows:
“5. The Secretary of State is designated as the agent of the Corporation upon whom process against the Corporation may be served. The post office address to which the Secretary of State shall mail a copy of any process against the Corporation served upon him or her is Cogency Global Incorporated, 122 East 42nd Street, 18th Floor, New York, NY 10168.”
(e) To change the limitations on liability of the directors of the Surviving Corporation, Article 6 is amended to read in its entirety as follows:
“6. No director of the Corporation shall be personally liable to the Corporation or its shareholders for damages for any breach of duty in such capacity, provided that nothing contained in this Article shall eliminate or limit the liability of any director if a judgment or final adjudication adverse to him establishes that his act or omissions were in bad faith or involved intentional misconduct or a knowing violation of law or that he personally gained in fact a financial profit or other advantage to which he was not legally entitled or that his acts violated Section 719 of the NYBCL.”
(f) To provide the ability of the Surviving Corporation to indemnify its directors and officers, Article 7 is amended to read in its entirety as follows:
“7. The Corporation shall have the right to indemnify any and all directors and officers to the fullest extent of the NYBCL.”
(g) Article 8 (ability of directors to revise by-laws), Article 9 (voting threshold to amend certain provisions of the certificate of incorporation) and Article 10 (director liability) are deleted in their entirety.
9. The effective date of the merger is the date that this certificate of merger is filed by the Department of State.
[Signature Page Follows]
3
IN WITNESS WHEREOF, the undersigned have executed and signed this certificate as of the date first written above.
| CHICAGO MERGER SUB, INC. | ||
| By: | /s/ Stijn Bijnens | |
| Name: | Stijn Bijnens | |
| Title: | President | |
| COMPUTER TASK GROUP, INCORPORATED | ||
| By: | /s/ John M. Laubacker | |
| Name: | John M. Laubacker | |
| Title: | Executive Vice President, Chief Financial Officer and Treasurer | |
CERTIFICATE OF MERGER
OF
CHICAGO MERGER SUB, INC.
(a New York Corporation)
WITH AND INTO
COMPUTER TASK GROUP, INCORPORATED
(a New York Corporation)
Under Section 905 of the Business Corporation Law
Department of State Identification Number: 196416
Filer’s Name and Mailing Address:
Tiffany Cinquemani
DLA Piper LLP (US)
1251 Avenue of the Americas
27th Floor
New York, New York 10020
Exhibit 3.2
BY-LAWS OF COMPUTER TASK GROUP, INCORPORATED
ARTICLE I
OFFICES
Section 1.01 Principal Office. The principal office of the corporation shall be located at such place within or without the State of New York as the board of directors may from time to time determine.
Section 1.02 Other Offices. The corporation may also have offices and places of business at such other places within and without the State of New York as the board of directors may from time to time determine.
ARTICLE II
SHAREHOLDERS
Section 2.01 Annual Meeting. The annual meeting of the shareholders of the corporation, for the election of directors and for the transaction of other business, shall be held each year at such time and such place within or without the State of New York as the board of directors shall determine. The board of directors may, in its sole discretion, determine that the annual meeting be held solely by means of electronic communication, the platform or service of which shall be the place of the meeting. If the annual meeting is to be held at a physical location, the board of directors may, in its discretion, authorize shareholders not physically present to participate and/or vote in the proceedings of such meeting by means of electronic communication, as more fully set forth in Section 2.03.
Section 2.02 Special Meetings. Special meetings of the shareholders for any purpose or purposes may be called by the board of directors or the President and shall be held on such date, at such time and place, either within or without the State of New York, as shall be determined by the board of directors. The only business which may be conducted at a special meeting, other than procedural matters and matters relating to the conduct of the meeting, shall be the matter or matters described in the notice of such meeting. The board of directors may, in its sole discretion, determine that the meeting be held solely by means of electronic communication, the platform or service of which shall be the place of the meeting. If the meeting is to be held at a physical location, the board of directors may, in its discretion, authorize shareholders not physically present to participate and/or vote in the proceedings of such meeting by means of electronic communication, as more fully set forth in Section 2.03.
Section 2.03 Electronic Communication. The board of directors may, in its discretion, authorize shareholders not physically present, in person or by proxy, at a meeting of shareholders to participate in the proceedings of such meeting and/or vote or grant proxies with respect to matters submitted to the shareholders at such meeting by means of electronic communication. A shareholder participating in a shareholders’ meeting by such means is deemed to be present in person at the meeting.
Section 2.04 Notice of Meetings. Written or electronic notice of each meeting of the shareholders shall be given, personally or by mail or electronic transmission, not fewer than ten nor more than 60 days before the date of the meeting; provided, however, that such notice may be given by third class mail not fewer than 24 nor more than 60 days before the date of the meeting, to each shareholder entitled to vote at such meeting. If mailed, such notice shall be deposited in the United States mail, with postage thereon prepaid, directed to the shareholder at such shareholder’s address as it appears on the record of shareholders or, if a shareholder shall have filed with the Secretary of the corporation a written request that notices to such shareholder be mailed to some other address, then directed to such shareholder at such other address. If transmitted electronically, such notice shall be directed to the shareholder’s electronic address supplied to the Secretary of the corporation or as otherwise directed pursuant to the shareholder’s authorization or instructions. The notice shall state (i) the place, date and hour of the meeting, (ii) the means of electronic communications, if any, by which shareholders and proxyholders may participate in the proceedings of the meeting and vote or grant proxies at such meeting and (iii) unless it is the annual meeting, the purpose or purposes for which the meeting is called and indicate that the notice is being issued by or at the direction of the person or persons calling the meeting. The notice need not refer to the approval of minutes or to other matters normally incident to the conduct of the meeting.
Section 2.05 Waiver of Notice. Notice of a meeting need not be given to any shareholder who submits a waiver of notice. Waivers of notice may be written or electronic and may be submitted before or after the meeting. The attendance of any shareholder at a meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of such notice by such shareholder.
Section 2.06 Procedure. At each meeting of shareholders, the order of business and all other matters of procedure shall be determined by the person presiding at the meeting.
Section 2.07 List of Shareholders. A list of shareholders as of the record date, certified by the corporate officer responsible for its preparation or by a transfer agent, shall be produced at any meeting of shareholders upon the request thereat, or prior thereto, by any shareholder. If the right to vote at any meeting is challenged, the inspectors of election, or person presiding thereat, shall require such list of shareholders to be produced as evidence of the right of the persons challenged to vote at such meeting, and all persons who appear from such list to be shareholders entitled to vote thereat may vote at such meeting.
Section 2.08 Quorum. At each meeting of shareholders for the transaction of any business, a quorum must be present to organize such meeting. Except as otherwise provided by law, a quorum shall consist of the holders of a majority of the votes of shares of the corporation entitled to vote at such meeting, present either in person or by proxy. When a quorum is once present to organize a meeting of the shareholders, it is not broken by the subsequent withdrawal of any shareholders.
2
Section 2.09 Adjournments. The shareholders entitled to vote who are present in person or by proxy at any meeting of shareholders, whether or not a quorum shall be present at the meeting, shall have power by a majority vote to adjourn the meeting from time to time without notice other than announcement at the meeting of the time and place to which the meeting is adjourned. At any adjourned meeting at which a quorum is present, any business may be transacted that might have been transacted on the original date of the meeting, and the shareholders entitled to vote at the meeting on the original date (whether or not they were present thereat), and no others, shall be entitled to vote at such adjourned meeting. However, if after the adjournment the board fixes a new record date for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record on the new record date entitled to such notice.
Section 2.10 Voting; Proxies. Each shareholder of record shall be entitled at every meeting of shareholders to one vote for each share having voting power standing in the shareholder’s name on the record of shareholders of the corporation on the record date fixed pursuant to Section 7.03 of these by-laws, unless otherwise provided in the certificate of incorporation of the corporation. Each shareholder entitled to vote at a meeting of shareholders may vote in person or, if authorized by the board of directors, by electronic communication, or may authorize another person or persons to act for the shareholder by proxy. Any proxy shall be signed by the shareholder or the shareholder’s duly authorized officer, director, employee or agent and shall be delivered to the secretary of the meeting. The signature of a shareholder or the shareholder’s duly authorized officer, director, employee or agent on any proxy may be affixed by any reasonable means, including facsimile signature. No proxy shall be valid after the expiration of 11 months from the date of its execution unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of the shareholder executing it, except as otherwise provided by law.
Directors shall, except as otherwise provided by applicable law or the certificate of incorporation, be elected by a plurality of the votes cast by the holders of shares entitled to vote in the election. All other corporate action to be taken by vote of the shareholders shall, except as otherwise provided by law, the certificate of incorporation or these by-laws, be authorized by a majority of the votes cast in favor of such action at a meeting of the shareholders. The vote for directors, or upon any corporate action coming before a meeting of shareholders, shall not be by ballot unless the person presiding at such meeting shall so direct or any shareholder, present in person or by proxy and entitled to vote thereon, shall so demand. Except as otherwise provided in the certificate of incorporation, an abstention shall not constitute a vote cast.
Section 2.11 Appointment of Inspectors at Meetings. The board of directors may, in advance of any meeting of the shareholders, appoint one or more inspectors to act at the meeting (or any adjournment thereof) and make a written report thereof, and shall do so if the corporation has a class of voting shares that is listed on a national securities exchange or authorized for quotation on an interdealer quotation system of a registered national securities association. If inspectors are required and not so appointed in advance of the meeting, the person presiding at such meeting may, and on the request of any shareholder entitled to vote thereat shall, appoint one or more inspectors. In case any inspector appointed fails to appear or act, the vacancy may be filled by appointment made by the board of directors in advance of the meeting or at the meeting by the person presiding thereat. Each inspector, before entering upon the discharge of such inspector’s duties, shall take and sign an oath faithfully to execute the duties of inspector at such meeting with strict impartiality and according to the best of such inspector’s ability. No person who is a candidate for the office of director of the corporation shall act as an inspector at any meeting of the shareholders at which directors are elected.
3
Section 2.12 Duties of Inspectors of Election. Whenever one or more inspectors of election is appointed as provided in these by-laws, such inspector or inspectors shall determine the number of shares outstanding and entitled to vote, the shares represented at the meeting, the existence of a quorum, and the validity and effect of proxies, and shall receive votes, ballots or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes, ballots, or consents, determine the result, and do such acts as are proper to conduct the election or vote with fairness to all shareholders.
Section 2.13 Written Consent of Shareholders Without a Meeting. Whenever by law shareholders are required or permitted to take any action by vote, such action may be taken without a meeting on written consent, setting forth the action so taken, signed by the holders of all outstanding shares entitled to vote thereon. Every written consent shall bear the date of signature of each shareholder who signs the consent, and no written consent shall be effective to take the corporate action referred to therein unless, within 60 days of the earliest dated consent delivered in the manner required by this Section 2.13, written consents signed by the requisite shareholders needed to take action are delivered to the corporation. Written consent thus given by the holders of all such number of shares as is required under this Section 2.13 shall have the same effect as a valid vote of holders of such number of shares.
ARTICLE III
DIRECTORS
Section 3.01 Number and Qualifications. The board of directors shall consist of one or more members. Subject to any provision as to the number of directors contained in the certificate of incorporation or these by-laws, the exact number of directors shall be fixed from time to time by action of the shareholders or by vote of a majority of the entire board of directors, provided that no decrease in the number of directors shall shorten the term of any incumbent director. If the number of directors is increased at any time, the vacancy or vacancies in the board arising from such increase shall be filled as provided in Section 3.06. If the number of directors is not otherwise fixed as provided above, it shall be one. Each of the directors shall be at least 18 years of age.
Section 3.02 Powers. The business of the corporation shall be managed under the direction of the board of directors, which shall have and may exercise all of the powers of the corporation, except such as are expressly conferred upon the shareholders by law, by the certificate of incorporation or by these by-laws.
Section 3.03 Election and Term of Office. Except as otherwise provided by law or these by-laws, each director of the corporation shall be elected at an annual meeting of shareholders, and shall hold office until the next annual meeting of shareholders and until such director’s successor has been elected and qualified.
Section 3.04 Resignation. Any director of the corporation may resign at any time by giving such director’s resignation to the President or any Vice President or the Secretary. Such resignation shall take effect at the later of the date of receipt of the notice or the time specified therein. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
4
Section 3.05 Removal of Directors. Any or all of the directors may be removed with or without cause by vote of the shareholders.
Section 3.06 Vacancies. Except as otherwise provided by law or these by-laws, newly created directorships resulting from an increase in the number of directors and vacancies occurring in the board of directors for any reason, except the removal of directors without cause, may be filled by vote of a majority of the directors then in office, even if less than a quorum exists, at any meeting of directors and notice of which shall have referred to the proposed election. Any such newly created directorships and vacancies occurring in the board of directors for any reason may also be filled by vote of the shareholders at any meeting of shareholders and notice of which shall have referred to the proposed election. If any such newly created directorships or vacancies occurring in the board of directors for any reason shall not be filled prior to the next annual meeting of shareholders, they shall be filled by vote of the shareholders at such annual meeting. A director elected to fill a vacancy, unless elected by the shareholders, shall hold office until the next meeting of shareholders at which the election of directors is in the regular order of business, and until such director’s successor has been elected and qualified.
Section 3.07 Directors’ Fees. Directors may receive a fee for their services as directors and travelling and other out-of-pocket expenses incurred in attending any regular or special meeting of the board. The fee may be a fixed sum to be paid for attending each meeting of the board of directors or a fixed sum to be paid monthly, quarterly or semi-annually, irrespective of the number of meetings attended or not attended. The amount of the fee, if any, and the basis on which it shall be paid shall be determined by the board of directors. Nothing herein contained shall preclude any director from serving the corporation in any other capacity and receiving compensation for such services.
Section 3.08 First Meeting of Newly Elected Directors. The first meeting of each newly elected board of directors (other than the initial board of directors elected by the incorporator) shall be held immediately after the annual meeting of shareholders and at the same place as such annual meeting of shareholders, provided a quorum be present, and no notice of such meeting shall be necessary. In the event such first meeting of a newly elected board of directors is not held at said time and place, the same shall be held as provided in Section 3.09.
Section 3.09 Other Meetings of Directors. Subject to Section 3.08, regular and special meetings of the board of directors may be held at such times and at such places, within or without the State of New York, as the board of directors may determine.
Section 3.10 Notice of Meetings. Regular meetings of the board of directors may be held without notice if the times and places of such meetings are fixed by the board or these by-laws. Except as provided in the preceding sentence, notice of each regular or special meeting of the board of directors to be held in accordance with Section 3.09, stating the time and place thereof, shall be given by the President, the Secretary, any Assistant Secretary or any member of the board to each member of the board (a) by depositing the notice not less than three days before the meeting in the United States mail, with first-class postage thereon prepaid, directed to such member of the board at the address designated by such member for such purpose (or, if none is designated, at such member’s last known address), or (b) not less than 24 hours before the meeting by either (i) delivering the same to such member of the board personally or (ii) transmitting the same by
5
telephone, electronic mail or other electronic transmission method to the address or contact information designated by such member for such purposes (or, if none is designated, to such member’s last known address or other contact information). Notice of a meeting need not be given to any director who submits a signed waiver of notice whether before or after the meeting. The notice of any meeting of the board of directors need not specify the purpose or purposes for which the meeting is called, except as provided in Section 3.06.
Section 3.11 Quorum and Action by the Board. At all meetings of the board of directors, except as otherwise provided by law, the certificate of incorporation or these by-laws, a quorum shall be required for the transaction of business and shall consist of not less than a majority of the entire board, and the vote of a majority of the directors present shall decide any question that may come before the meeting. A majority of the directors present, whether or not a quorum is present, may adjourn any meeting to another time or place without notice other than announcement at the meeting of the time and place to which the meeting is adjourned.
Section 3.12 Procedure. The order of business and all other matters of procedure at every meeting of directors may be determined by the person presiding at the meeting.
Section 3.13 Action Without a Meeting. Any action required or permitted to be taken by the board or any committee thereof may be taken without a meeting if all members of the board or the committee consent in writing to the adoption of a resolution authorizing the action. The written consent of a member may be made electronically, where such consent is submitted via email, text, or other secured platform for electronic communications, along with information from which it can be reasonably determined that the transmission was authorized by such member. The resolution and the written consents thereto by the members of the board or committee shall be filed with the minutes of the proceedings of the board or committee.
Section 3.14 Presence at a Meeting by Telephone. Unless otherwise restricted by the certificate of incorporation of the corporation, members of the board of directors or any committee thereof may participate in a meeting of such board or committee by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by a director in a board or committee meeting by such means shall constitute presence in person at such meeting.
ARTICLE IV
COMMITTEES OF DIRECTORS
Section 4.01 Designation of Committees. The board of directors, by resolution or resolutions adopted by a majority of the entire board, may designate from among its members an executive committee and other committees, each consisting of one or more directors, and may designate one or more directors as alternate members of any such committee, who may replace any absent or disqualified member or members at any meeting of such committee. In the interim between meetings of the board of directors, the executive committee, if and to the extent permitted in the resolution designating such committee, shall have all the authority of the board of directors except as otherwise provided by law and shall serve at the pleasure of the board of directors. Each other committee so designated shall have such name as may be provided from time to time in the resolution or resolutions, shall serve at the pleasure of the board of directors and shall have, to the extent provided in such resolution or resolutions, all the authority of the board of directors except as otherwise provided by law.
6
Section 4.02 Acts and Proceedings. All acts done and power and authority conferred by the executive committee from time to time within the scope of its authority shall be, and may be deemed to be, and may be specified as being, the act and under the authority of the board of directors. The executive committee and each other committee shall keep minutes of its proceedings and report its actions to the board of directors when required.
Section 4.03 Compensation. Members of the executive committee or of any other committee may receive such compensation for their services as the board of directors shall from time to time determine.
ARTICLE V
OFFICERS
Section 5.01 Officers. The board of directors may appoint or elect a President, one or more Vice Presidents, a Secretary and a Treasurer. The board of directors may from time to time appoint or elect such additional officers as it may determine. Such additional officers shall have such titles and such authority and perform such duties as the board of directors may from time to time prescribe.
Section 5.02 Term of Office. The President, each Vice President, the Secretary and the Treasurer shall, unless otherwise determined by the board of directors, hold office until the first meeting of the board following the next annual meeting of shareholders and until their successors have been appointed or elected and qualified. Each additional officer appointed or elected by the board of directors shall hold office for such term as shall be determined from time to time by the board of directors and until such officer’s successor has been appointed or elected and qualified. Any officer, however, may be removed or have its authority suspended by the board of directors at any time, with or without cause. If the office of any officer becomes vacant for any reason, the board of directors shall have the power to fill such vacancy.
Section 5.03 The President. The President shall be the chief executive officer of the corporation. The President shall preside at all meetings of the shareholders and of the board of directors. The President shall have the general powers and duties of supervision and management of the corporation which usually pertain to such office, and shall perform all such other duties as are properly required of the President by the board of directors.
Section 5.04 The Vice Presidents. Each Vice President may be designated by such title as the board of directors may determine, and each such Vice President in such order of seniority as may be determined by the board shall, in the absence or disability of the President, or at the request of the President, perform the duties and exercise the powers of the President. Each Vice President also shall have such powers and perform such duties as usually pertain to such office or as are properly required of such Vice President by the board of directors.
7
Section 5.05 The Secretary and Assistant Secretaries. The Secretary shall issue notices of all meetings of shareholders and directors where notices of such meetings are required by law or these by-laws. The Secretary shall attend all meetings of shareholders and of the board of directors and keep the minutes thereof. The Secretary shall affix the corporate seal (if one is adopted pursuant to Section 9.01) to and sign such instruments as require the seal and the signature of the Secretary and shall perform such other duties as usually pertain to such office or as are properly required of the Secretary by the board of directors.
Each Assistant Secretary may, in the absence or disability of the Secretary, or at the request of the Secretary or the President, perform the duties and exercise the powers of the Secretary, and shall perform such other duties as the board of directors shall prescribe.
Section 5.06 The Treasurer and Assistant Treasurers. The Treasurer shall have the care and custody of all the moneys and securities of the corporation. The Treasurer shall cause to be entered in books of the corporation to be kept for that purpose full and accurate accounts of all moneys received by the Treasurer and paid by the Treasurer on account of the corporation. The Treasurer shall make and sign such reports, statements and instruments as may be required of the Treasurer by the board of directors or by the laws of the United States or by any state, country or other jurisdiction in which the corporation transacts business, and shall perform such other duties as usually pertain to such office or as are properly required of the Treasurer by the board of directors.
Each Assistant Treasurer may, in the absence or disability of the Treasurer, or at the request of the Treasurer or the President, perform the duties and exercise the powers of the Treasurer and shall perform such other duties as the board of directors shall prescribe.
Section 5.07 Execution Authority of Officers. All agreements of the corporation shall be executed on behalf of the corporation by (a) the President or any Vice-President, (b) such other officer or employee of the corporation authorized in writing by the President, with such limitations or restrictions on such authority as the President deems appropriate or (c) such other person as may be authorized by the board of directors.
Section 5.08 Officers Holding Two or More Offices. Any two or more offices may be held by the same person. When all the issued and outstanding shares of the corporation are held by one individual, such individual may hold all or any combination of offices.
Section 5.09 Duties of Officers May be Delegated. In case of the absence or disability of any officer of the corporation or in case of a vacancy in any office or for any other reason that the board of directors may deem sufficient, the board of directors, except as otherwise provided by law, may temporarily delegate the powers or duties of any officer to any other officer or to any director.
Section 5.10 Compensation. The compensation of each officer shall be determined by the board of directors. The compensation of all other employees shall be fixed by the President or the President’s designees within such limits as may be prescribed by the board of directors.
Section 5.11 Security. The board of directors may require any officer, agent or employee of the corporation to give security for the faithful performance of the duties of such officer, agent or employee, in such amount as may be satisfactory to the board. Such security may be in the form of a fidelity bond obtained by the corporation at its expense.
8
ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 6.01 Right of Indemnification. Each director or officer of the corporation, whether or not then in office, and any person whose testator or intestate was such a director or officer, shall be indemnified by the corporation for the defense of, or in connection with, any threatened, pending or completed actions or proceedings and appeals therein, whether civil, criminal, administrative or investigative, in accordance with and to the fullest extent permitted by the Business Corporation Law of the State of New York or other applicable law, as such law now exists or may hereafter be adopted or amended, against, without limitation, all judgments, fines, amounts paid in settlements, and all expenses, including attorneys’ and other experts’ fees, costs and disbursements, actually and reasonably incurred by such person as a result of such action or proceeding, or actually and reasonably incurred by such person (a) in making an application for payment of such expenses before any court or other governmental body, (b) in otherwise seeking to enforce the provisions of this Section 6.01, or (c) in securing or enforcing such person’s right under any policy or director or officer liability insurance provided by the corporation; provided, however, that the corporation shall provide indemnification in connection with an action or proceeding (or part thereof) initiated by such a director or officer only if such action or proceeding (or part thereof) was authorized by the board of directors.
Section 6.02 Advancement of Expenses. Expenses incurred by a director or officer in connection with any action or proceeding as to which indemnification may be given under Section 6.01 may be paid by the corporation in advance of the final disposition of such action or proceeding upon the receipt of an undertaking by or on behalf of such director or officer to repay such advancement in case such director or officer is ultimately found not to be entitled to indemnification as authorized by this ARTICLE VI. To the extent permitted by law, the board of directors or, if applicable, the shareholders, shall not be required to find that the director or officer has met the applicable standard of conduct provided by law for indemnification in connection with such action or proceeding before the corporation makes any advance payment of expenses hereunder.
Section 6.03 Availability and Interpretation. To the extent permitted under applicable law, the rights of indemnification and to the advancement of expenses provided in this ARTICLE VI (a) shall be available with respect to events occurring prior to the adoption of this ARTICLE VI, (b) shall continue to exist after any rescission or restrictive amendment of this ARTICLE VI with respect to events occurring prior to such rescission or amendment, (c) shall be interpreted on the basis of applicable law in effect at the time of the occurrence of the event or events giving rise to the action or proceeding or, at the sole discretion of the director or officer or, if applicable, the testator or intestate of such director or officer seeking such rights, on the basis of applicable law in effect at the time such rights are claimed and (d) shall be in the nature of contract rights that may be enforced in any court of competent jurisdiction as if the corporation and the director or officer for whom such rights are sought were parties to a separate written agreement.
9
Section 6.04 Other Rights. The rights of indemnification and to the advancement of expenses provided in this ARTICLE VI shall not be deemed exclusive of any other rights to which any director or officer of the corporation or other person may now or hereafter be otherwise entitled whether contained in the certificate of incorporation, these by-laws, a resolution of the shareholders, a resolution of the board of directors or an agreement providing for such indemnification, the creation of such other rights being hereby expressly authorized. Without limiting the generality of the foregoing, the rights of indemnification and to the advancement of expenses provided in this ARTICLE VI shall not be deemed exclusive of any rights, pursuant to statute or otherwise, of any director or officer of the corporation or other person in any action or proceeding to have assessed or allowed in favor of such director, officer or other person, against the corporation or otherwise, costs and expenses of such director, officer or other person incurred therein or in connection therewith or any part thereof.
Section 6.05 Severability. If this ARTICLE VI or any part hereof shall be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified to the minimum extent necessary to make it enforceable, and the remainder of this ARTICLE VI shall remain fully enforceable.
ARTICLE VII
SHARES
Section 7.01 Certificate of Shares. The shares of the corporation shall be represented by certificates; provided, that (a) the board of directors may provide by resolution that some or all of any class or series shall be uncertificated shares that may be evidenced by a book-entry system maintained by the registrar of such stock and (b) the corporation and a stockholder may agree that such stockholder’s shares of stock shall be uncertificated shares evidenced by a book-entry system maintained by the registrar of such stock. If shares are represented by certificates, such certificates shall be in the form, other than bearer form, approved by the corporation’s authorized officers. Except as otherwise expressly provided by law, the rights and obligations of the holders of uncertificated stock and the rights and obligations of the holders of certificates representing stock of the same class and series shall be identical. The certificates representing shares of stock of each class shall be signed by, or in the name of, the corporation by any two (2) of the corporation’s authorized officers. Any or all such signatures may be facsimiles. Although any officer, transfer agent, or registrar whose manual or facsimile signature is affixed to such a certificate ceases to be such officer, transfer agent, or registrar before such certificate has been issued, it may nevertheless be issued by the corporation with the same effect as if such officer, transfer agent, or registrar were still such at the date of its issue.
Section 7.02 Transfers of Shares. Shares of the corporation shall be transferable on the books of the corporation by the holder thereof, in person or by duly authorized attorney, upon the surrender of the certificate representing the shares to be transferred, properly endorsed. Except as otherwise provided by law, the corporation shall be entitled to treat the holder of record of any share as the owner thereof and shall not be bound to recognize any equitable or other claim to or interest in such share on the part of any other person whether or not it shall have express or other notice thereof. The board of directors, to the extent permitted by law, shall have power and authority to make all rules and regulations as it may deem expedient concerning the issue, transfer and registration of share certificates and may appoint one or more transfer agents and registrars of the shares of the corporation.
10
Section 7.03 Fixing of Record Date and Time. The board of directors may fix, in advance, a day and hour not more than 60 days nor less than ten days before the date on which any meeting of the shareholders entitled to notice of and to vote at such meeting and at all adjournments thereof shall be determined and, in the event such record date and time are fixed by the board of directors, no one other than the holders of record on such date and time of shares entitled to notice of and to vote at such meeting shall be entitled to notice of or to vote at such meeting or any adjournment thereof. If a record date and time shall not be fixed by the board of directors for the determination of shareholders entitled to notice of and to vote at any meeting of the shareholders, shareholders of record at the close of business on the day next preceding the day on which notice of such meeting is given, and no others, shall be entitled to notice of and to vote at such meeting or any adjournment thereof; provided, however, that if no notice of such meeting is given, shareholders of record on the day such meeting is held, and no others, shall be entitled to vote at such meeting or any adjournment thereof.
The board of directors may fix, in advance, a day and hour not more than 60 days before the date fixed for the payment of a dividend of any kind or the allotment of any rights, as the record time for the determination of shareholders entitled to receive such dividend or rights, and in such case only shareholders of record at the date and time so fixed shall be entitled to receive such dividend or rights; provided, however, that if no record date and time for the determination of shareholders entitled to receive such dividend or rights are fixed, shareholders of record at the close of business on the day on which the resolution of the board of directors authorizing the payment of such dividend or the allotment of such rights is adopted shall be entitled to receive such dividend or rights.
Section 7.04 Record of Shareholders. The corporation shall keep at its office in the State of New York, or at the office of its transfer agent or registrar in this state, a record containing the names and addresses of all shareholders, the number and class of shares held by each and the dates when they respectively became the owners of record thereof.
Section 7.05 Lost Share Certificates. The board of directors may in its discretion cause a new certificate for shares to be issued by the corporation in place of any certificate theretofore issued by it, alleged to have been lost or destroyed, and the board may require the owner of the lost or destroyed certificate, or such owner’s legal representatives, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against it on account of the alleged loss or destruction of any such certificate or the issuance of any such new certificate; but the board of directors may in its discretion refuse to issue such new certificate save upon the order of a court having jurisdiction in such matters.
ARTICLE VIII
FINANCES
Section 8.01 Corporate Funds. The funds of the corporation shall be deposited in its name with such banks, trust companies or other depositories as the board of directors or the officers may from time to time designate. All checks, notes, drafts and other negotiable instruments of the corporation shall be signed by such officers, employees or agents as the board of directors may from time to time designate. No officers, employees or agents of the corporation, alone or with others, shall have power to make any checks, notes, drafts or other negotiable instruments in the name of the corporation or to bind the corporation thereby, except as provided in this Section 8.01.
11
Section 8.02 Fiscal Year. The fiscal year of the corporation shall be the calendar year unless otherwise provided by the board of directors.
Section 8.03 Loans to Directors. The corporation may not lend money to or guarantee the obligation of a director of the corporation unless (a) the particular loan or guarantee is approved by the shareholders, with the holders of a majority of the shares entitled to vote thereon constituting a quorum, but shares held of record or beneficially by directors who are benefited by such loan or guarantee shall not be entitled to vote or to be included in the determination of a quorum, or (b) the board determines that the loan or guarantee benefits the corporation and either approves the specific loan or guarantee or a general plan authorizing loans and guarantees. The fact that a loan or guarantee is made in violation of this Section 8.03 does not affect the borrower’s liability on the loan.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Corporate Seal. The board of directors may in its discretion adopt or alter the seal of the corporation. The seal of the corporation, if the board elects to adopt one, shall be in such form as may be determined from time to time by the board of directors. The seal on any corporate obligation for the payment of money may be facsimile.
Section 9.02 Books and Records. The corporation shall keep correct and complete books and records of account and shall keep minutes of the proceedings of its shareholders, board and committees, if any, and shall keep at the office of the corporation in this state or at the office of its transfer agent or registrar in this state, a record containing the names and addresses of all shareholders, the number and class of shares held by each and the dates when they respectively became the owners of record thereof. Any of the foregoing books, minutes or records may be in written form or in any other form capable of being converted into written form within a reasonable time.
Section 9.03 Inspection of Books and Records. The annual balance sheet and profit and loss statement of the corporation, minutes of proceedings of the shareholders and record of shareholders of the corporation shall, to the extent provided by law, be open to the inspection of shareholders and voting trust certificate holders, in the manner provided by law.
Section 9.04 Affidavit of Proper Purpose. The corporation may require any shareholder or voting trust certificate holder requesting an inspection under Section 9.03 to furnish to the corporation, its transfer agent or registrar an affidavit that such inspection is not desired for a purpose which is in the interest of a business or object other than the business of the corporation and that such shareholder or holder has not within five years sold or offered for sale any list of shareholders of any corporation of any type or kind, or aided or abetted any person in procuring any such record of shareholders for any such purpose. An inspection requested under Section 9.03 may be denied to a shareholder or other person upon their refusal to furnish to the corporation, its transfer agent or registrar such an affidavit.
Section 9.05 Amendment of By-Laws. By-laws of the corporation may be adopted, amended or repealed at any meeting of shareholders, notice of which shall have referred to the proposed action, by a majority of the votes cast by the holders of the shares of the corporation at the time entitled to vote in the election of any directors, or at any meeting of the board of directors, notice of which shall have referred to the proposed action, by the vote of a majority of the entire board of directors.
12
Exhibit 10.1
[Execution]
TERMINATION AGREEMENT
[Certain portions of this document have been omitted pursuant to Item 601(b)(10) of Regulation S-K and, where applicable, have been marked with “[*]” to indicate where omissions have been made. The marked information has been omitted because it is (i) not material and (ii) is the type that the registrant treats as private or confidential.]
December 13, 2023
Computer Task Group, Inc.
Computer Task Group Belgium NV
Computer Task Group Luxembourg PSF S.A.
Computer Task Group IT Solutions S.A.
Ladies and Gentlemen:
(i) Computer Task Group, Inc., a New York corporation (“US Borrower”), (ii) Computer Task Group Belgium NV, a limited liability company (naamloze vennootschap/société anonyme) incorporated and existing under the laws of Belgium, having its statutory seat at Culliganlaan 1D (N 140B), 1831 Machelen, Belgium and registered under number 0450.277.958 RLP Brussels (Dutch speaking section) (“Belgian Borrower”), (iii) Computer Task Group Luxembourg PSF S.A., a public limited liability company (société anonyme) incorporated under the laws of Luxembourg, having its registered office at 10A, rue Zone Industrielle de Bourmicht, L-8070 Bertrange, Grand Duchy of Luxembourg, registered with the Luxembourg Register of Commerce and Companies (Registre de commerce et des sociétés, Luxembourg) (“RCS”) under number B56109 and subject in its capacity as support professionals of the financial sector established in Luxembourg to the Luxembourg law of 5 April 1993 on the financial sector, as amended (“CTG Luxembourg PSF”), (iv) Computer Task Group IT Solutions S.A., a public limited liability company (société anonyme) incorporated under the laws of Luxembourg, having its registered office at 7, rue des Mérovingiens, L-8070 Bertrange, Grand Duchy of Luxembourg, registered with the RCS under number B110615 (“CTG Luxembourg IT,” and together with CTG Luxembourg PSF, individually, each a “Luxembourg Borrower” and collectively, “Luxembourg Borrowers,” and together with the Belgian Borrower, and US Borrower, individually, each a “Borrower” and collectively, the “Borrowers”) have entered into a senior secured asset-based credit facility with Bank of America, N.A., a national banking association, in its capacity as collateral agent and administrative agent for itself and certain other parties (in such capacity, “Agent”) and the lenders under such credit facility (individually, each a “Lender” and collectively, the “Lenders”) as set forth in the Loan and Security Agreement, dated as of May 19, 2021, by and among Agent, Lenders, (i) Computer Task Group International, Inc., a Delaware corporation (“US Guarantor”), (ii) CTG ITS SA, a limited liability company (naamloze vennootschap/société anonyme) incorporated and existing under the laws of Belgium, having its statutory seat at Avenue Pasteur 6, 1300 Wavre, Belgium and registered under number 0822.125.181 RLP Brabant Wallon (“Belgian Guarantor”), (iii) Computer Task Group Europe B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, having its seat (statutaire zetel) in Hoofddorp, the Netherlands and its registered office address at Siriusdreef 17, 2132 WT Hoofddorp, the Netherlands, registered with the trade register of the Dutch Chamber of Commerce (Kamer van Koophandel) under number 34073503 (“Dutch Guarantor,” and together with the US Guarantor and the Belgian Guarantor, collectively, “Guarantors”), and Borrowers (as amended, the “Loan Agreement”) and the other Loan Documents (as defined in the Loan Agreement). This Termination Agreement is referred to herein as this “Agreement”. Capitalized terms used herein shall have the meanings assigned thereto in the Credit Agreement unless otherwise defined herein.
Borrowers and Guarantors have advised Agent that Borrowers intend to repay in full in cash all of the Loans and other Obligations on December 13, 2023 (the “Payoff Date”), other than the obligations, liabilities and indebtedness of Borrowers to Agent and Lenders arising pursuant to or in connection with the letter of credit arranged for by Agent and Lenders for the account of Borrower listed on Exhibit A hereto (the “Existing Letter of Credit”).
In consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the undersigned hereby agrees as follows:
1. Repayment.
(a) On the Payoff Date, (i) US Borrower shall pay, or cause to be paid to, Agent (for the account of Lenders and its own account, as applicable), at the cost and expense of US Borrower, the US Payoff Amount (as defined below) to the deposit account of Agent set forth on Exhibit B-1 hereto and in accordance with the transfer instructions set forth on such Exhibit, (ii) US Borrower shall pay, or cause to be paid to, the parties listed in Exhibit B-2, at the cost and expense of US Borrower, the amounts set forth therein for each such party (the “Third Party Expenses”) to the deposit account of such party set forth on Exhibit B-2 hereto and in accordance with the transfer instructions set forth on such Exhibit and (iii) US Borrower shall pay, or cause to be paid to Agent, at its cost and expense, the amount of US$168,508 which shall be pledged by US Borrower to Agent as Cash Collateral (as such term is defined below) as provided herein to the deposit account of Agent set forth on Exhibit B-1 hereto and in accordance with the transfer instructions set forth on such Exhibit.
(b) The term “US Payoff Amount” means US$4,241.57, plus, if Agent receives the US Payoff Amount after 2:00 p.m. Eastern Time on December 13, 2023, US$354.86 for such day and each day thereafter. The term “Payoff Amount” means, collectively, the US Payoff Amount, plus the Third Party Expenses.
2. Releases.
(a) Immediately upon the satisfaction of the conditions precedent set forth in Section 8 hereof, (i) all Loans and Obligations shall be deemed paid in full and the Credit Agreement and the other Loan Documents, including all guaranties of the Loans and Obligations, shall be terminated, canceled and of no further force and effect (except for those provisions of the Loan Documents relating to the Continuing Obligations (as hereinafter defined) and except for the terms and conditions set forth herein or as otherwise provided for herein) and (ii) all security interests, encumbrances and liens upon, and pledges, hypothecs, mortgages or other assignments of, any and all properties, assets and rights (whether real, personal, tangible or intangible) of the Loan Parties heretofore granted to Agent, Lenders or any other Secured Party pursuant to the Loan Documents (including all right, title and interest to assets and property assigned and/or transferred as security) shall be automatically released, terminated, reassigned and/or retransferred (except as to the Cash Collateral and as otherwise provided herein) to the respective Loan Party, without representation, warranty or recourse of any kind, nature or description whatsoever and any power of attorney granted by a Loan Party in connection therewith shall be revoked. As of the date hereof, Agent, Lenders and Issuing Bank shall have no further obligation to make any Loans, provide or arrange for any Letters of Credit or other financial accommodations or have any other duties or responsibilities in connection with the Loan Documents, except to allow the continuation of the Existing Letter of Credit subject to the terms and conditions provided for herein, provided, that, Agent and Lenders shall have no obligation to extend the expiration date of the Existing Letter of Credit (including, without limitation by way of any “evergreen”, “auto renewal”, “automatic extension” or similar clauses) or agree to any other amendment thereof or waiver with respect thereto.
2
(b) To the extent not terminated by operation of law or by operation of Section 2(a) above, upon the satisfaction of the conditions precedent set forth in Section 8, Agent (in its capacity as pledgee under the Dutch Security Documents) hereby irrevocably and unconditionally: (i) terminates by notice (zegt op) each right of pledge (pandrecht) created under or pursuant to the Dutch Security Documents in accordance with article 3:81(2) of the Dutch Civil Code; (ii) terminates each power of attorney (volmacht) granted to it in any of the Dutch Security Documents; (iii) releases, discharges and confirms that any Loan Party is hereby released and discharged from all its undertakings and contractual obligations under the Dutch Security Documents; and (iv) authorizes the Dutch Guarantor and Baker & McKenzie Amsterdam N.V. to deregister any right of pledge created thereunder or pursuant thereto from its shareholder’s register. This paragraph of this Termination Agreement shall be governed by Dutch law.
(c) Immediately upon the satisfaction of the conditions precedent set forth in Section 8 hereof, other than in respect of obligations under this Agreement, each Loan Party hereby releases, discharges and acquits Agent, Issuing Bank, each Lender, and their respective affiliates and their respective officers, directors, agents and employees and its and their respective successors and assigns, from all obligations to any Loan Party (and their respective successors and assigns) and from any and all claims, demands, debts, accounts, contracts, liabilities, actions and causes of actions, whether in law or in equity, in each case, relating to the Loan Documents (but not including in respect of obligations under this Agreement), that such Loan Party has as of the date hereof, or that its successors and assigns hereafter can or may have against Agent, Issuing Bank, each Lender, their affiliates and their respective officers, directors, agents or employees and its and their respective successors and assigns through the date hereof.
(d) Release of Belgian Security.
(i) Unless otherwise defined herein, for the purpose of this Section 2(d), terms used in this Section 2(d) have the meanings assigned thereto in, or incorporated by reference into, the Belgian Security Documents.
(ii) To the extent not terminated by operation of law or by operation of Section 2(a) above, immediately upon the satisfaction of the conditions precedent set forth in Section 8 hereof, the Pledgee expressly, irrevocably and unconditionally:
| (A) | releases (verleent handlichting/donne mainlevée) the security granted by Pledgors pursuant to the Belgian Security Documents; and |
| (B) | releases and discharges Pledgors from their respective obligations, undertakings and liabilities under or pursuant to the Belgian Security Documents. |
(iii) Immediately upon the satisfaction of the conditions precedent set forth in Section 8 hereof, Pledgee shall (A) promptly notify the respective Account Banks of the release of the Pledge over the Bank Accounts by delivering an executed release notice substantially in the form of Exhibit D (Release Notice – Bank Accounts Pledge), and (B) promptly deliver to each Pledgor a duly executed certificate substantially in the form of Exhibit E (Certificate – Bank Accounts Pledge) and agree that such duly executed certificate may be communicated to, and relied upon by, the respective Account Banks with whom the pledged Bank Accounts are held.
(iv) Immediately upon the satisfaction of the conditions precedent set forth in Section 8 hereof, Pledgee shall (A) promptly notify the respective Receivables Debtors of the release of the Pledge over the Receivables by delivering an executed release notice substantially in the form of Exhibit F (Release Notice – Receivables Pledge), and (B) promptly deliver to each Pledgor a duly executed certificate substantially in the form of Exhibit G (Certificate – Receivables Pledge) and agree that such duly executed certificate may be communicated to, and relied upon by, the respective Receivables Debtors.
3
(v) Pledgee and each Pledgor hereby absolutely, irrevocably and unconditionally appoint each director of Computer Task Group Belgium NV, each with power to act individually and with power of substitution, to register and date the release of the Pledge over the Shares on the folio of Pledgor in the share register of Computer Task Group Belgium NV on behalf of Pledgee following the satisfaction of the conditions precedent set forth in Section 8 hereof.
(vi) Pledgee and Pledgor hereby absolutely, irrevocably and unconditionally appoint each director of CTG ITS SA, each with power to act individually and with power of substitution, to register and date the release of the Pledge over the Shares on the folio of Pledgor in the share register of CTG ITS SA on behalf of Pledgee following the satisfaction of the conditions precedent set forth in Section 8 hereof.
3. Continuing Obligations. Notwithstanding anything to the contrary contained herein, Loan Parties are not released from, and hereby ratify and confirm their respective continuing liability to Agent and Lenders for the final payment and satisfaction in full of the following (collectively, the “Continuing Obligations”):
(a) all obligations of Borrowers and Guarantors arising pursuant to or in connection with the Existing Letter of Credit, including, without limitation, (i) the obligation to pay Agent and Lenders for amounts paid or payable by Agent or Lenders to the Issuing Bank thereof in respect of amounts drawn under the Existing Letter of Credit, which amounts shall be due and payable to Agent on the Business Day the payment is made by the Issuing Bank in respect of such drawing and shall bear interest at the highest interest rate per annum applicable to US Base Rate Loans from the date of such drawing until Agent has received full and final payment thereof in immediately available funds, and (ii) all interest, Letter of Credit Fees, charges and expenses (including bank charges and expenses and the fees payable to the Issuing Bank under Section 3.2 of the Loan Agreement) accrued and accruing in respect of the Existing Letter of Credit or payments in respect thereof, which interest, Letter of Credit Fees, and other amounts payable hereunder or under any of the provisions of the Loan Documents relating to the Continuing Obligations shall be due and payable, in arrears, on the first (1st) day of each month (or earlier upon the date of the release of all or any portion of the Cash Collateral in respect of the Existing Letter of Credit at the time of the release of such Cash Collateral related to the Existing Letter of Credit);
(b) interest (at the highest interest rate per annum provided for in the Credit Agreement applicable to US Base Rate Loans, upon all amounts owed to Agent and Lenders in respect of the Continuing Obligations, which in the case of interest arising as a result of a drawing under the Existing Letter of Credit shall accrue from the date of any drawing under such Existing Letter of Credit as provided above until Agent has received full and final payment thereof in immediately available funds;
(c) all obligations of Borrowers and Guarantors to Agent and Lenders and the Issuing Bank of the Existing Letter of Credit under this Agreement, including without limitation, the obligations described in Sections 4 and 6 hereof;
(d) any reasonable, out-of-pocket and documented costs and expenses incurred by Agent, Issuing Bank and Lenders, including reasonable out-of-pocket and documented attorneys’ fees and legal expenses for one counsel in the U.S. (and one additional counsel for each relevant jurisdiction outside of the U.S.) in connection with this Agreement, the obligations related to the Existing Letter of Credit, the termination of the Loan Documents and any instruments or documents contemplated hereunder or thereunder; and
4
(e) all indemnification obligations and other obligations in favor of Agent, Issuing Bank, and Lenders under the Credit Agreement and the other Loan Documents as in effect immediately prior to the effectiveness hereof, that expressly survive the termination of the Credit Agreement and the other Loan Documents or the payment in full of the Obligations.
4. Indemnification for Returned Items and Related Expenses. Each Loan Party agrees jointly and severally (and in the case of any liability of a Loan Party for such obligations of another Loan Party, subject to applicable guaranty and enforcement limitations set out in any applicable Loan Document) to indemnify Agent and Lenders, from any and all loss, damage and reasonable, documented, out-of-pocket costs and expenses (including reasonable, out-of-pocket and documented attorneys’ fees and legal expenses for one counsel in the U.S. (and one additional counsel for each relevant jurisdiction outside of the U.S.)) which Agent or any Lender may suffer or incur at any time as a result of: (a) any non-payment, claim, refund or dishonor of any checks or other similar items which have been credited by or on behalf of Agent or any Lender to the account of any Loan Party with Agent or any Lender and (b) any bookkeeping, accounting or other errors made by Agent or any Lender in the calculation of any amount to be paid to Agent and Lenders hereunder by any Loan Party requiring an adjustment thereto, together with any reasonable expenses or other reasonable charges incident thereto.
5. Cash Collateral.
(a) As collateral security for the prompt performance, observance and final payment in full of all of the Continuing Obligations, US Borrower hereby assigns as collateral, pledges, hypothecates, transfers, sets over to Agent, and grants to Agent a security interest in and right to set off against the funds of US Borrower in the amount specified in Section 1(a)(iii) above, which has been or shall be remitted herewith to Agent and all proceeds thereof (the “Cash Collateral”).
(b) Agent shall hold such Cash Collateral, less any amounts thereof previously applied to Continuing Obligations, until the dates set forth below with respect to such Continuing Obligations. If the original of the Existing Letter of Credit is returned by the beneficiary thereof with written instructions to cancel it and confirming that no unpaid draw under it has been made, in a form and substance reasonably satisfactory to Agent, Agent shall release to US Borrower all Cash Collateral not previously applied to Continuing Obligations within ten (10) Business Days after the date of the receipt by Agent of the original of such Letter of Credit with such instructions from the beneficiary, unless any amounts constituting Continuing Obligations are then overdue (after giving effect to any applicable grace period, if any). To the extent that Agent has not received the original of the Existing Letter of Credit and such letter from the beneficiary as provided above, Agent shall release to US Borrower all Cash Collateral not previously applied to Continuing Obligations (i) within ten (10) Business Days after the expiration of such Existing Letter of Credit (if there has been no draw thereunder) and the payment of all Continuing Obligations related thereto (other than unasserted contingent indemnification obligations) or (ii) if there has been a draw on the entire amount (or the entire remaining amount after prior partial draws) available under such Existing Letter of Credit, ten (10) Business Days after the date of the draw, the reimbursement of all amounts paid in connection with such draw and the payment of all other Continuing Obligations related thereto (other than unasserted contingent indemnification obligations). Such Cash Collateral shall be held without interest and may be commingled with other funds of Agent and may be invested at the option and sole discretion of Agent.
(c) Without limiting the rights of the Agent or Lenders under this Agreement in respect of the Continuing Obligations, the Agent may immediately apply the Cash Collateral from time to time against the Continuing Obligations then due and payable, and Borrower and Guarantors are and shall remain liable to pay any deficiency on demand. Continuing Obligations shall be due and payable on demand unless otherwise provided herein.
5
6. Rights in Instruments. Notwithstanding anything to the contrary contained herein, Agent and each Lender reserves all of its rights in and to any checks, similar instruments or funds transfers for payment of money received by Agent or any Lender prior to the date hereof in connection with its arrangements with any Loan Party, and all of its rights to any monies due or to become due under such checks, similar instruments or funds transfers and/or all of its claims thereon.
7. Reinstatement. Notwithstanding anything to the contrary contained herein, in the event any payment made to, or other amount or value received by, Agent or Lenders from or for the account of any Loan Party or otherwise is avoided, rescinded, set aside or must otherwise be returned or repaid by Agent and Lenders whether in any bankruptcy, reorganization, insolvency or similar proceeding involving any Loan Party or otherwise, the indebtedness intended to be repaid thereby shall be reinstated (without any further action by any party) as in effect immediately prior to the effectiveness hereof and shall be enforceable against Loan Parties. In such event, each Loan Party shall be and remain liable to Agent and Lenders for the amount so repaid or recovered to the same extent as if such amount had never originally been received by Agent or such Lender.
8. Conditions Precedent. The effectiveness of clauses (i) and (ii) of Section 2(a) of this Agreement and any termination statements or other similar release instruments delivered or to be delivered by Agent hereunder, are subject to and conditioned upon the receipt by Agent or its agent of each of the following by no later than December 14, 2023:
(a) cash or other immediately available funds in the amounts, and in accordance with the wire transfer instructions, set forth in Section 1 above; and
(b) a telecopy or other electronic copy of this Agreement, including a pdf transmitted by email (whether counterparts or otherwise) duly authorized, executed and delivered by the parties hereto.
9. Release Documents; Authorization to File.
(a) Promptly upon the satisfaction of the conditions precedent set forth in Section 8 above, Agent, at the expense of US Borrower, shall deliver to US Borrower (or any person that Agent believes in good faith represents US Borrower or any of its designees) and, if applicable, execute the following documents:
(i) the releases of security interests in Intellectual Property for the Intellectual Property Security Agreement listed on Exhibit C hereto,
(ii) the termination notices with respect to the Deposit Account Control Agreements listed on Exhibit C hereto,
(iii) such termination documents with respect to Loan Documents governed by the laws of Belgium and Luxembourg set forth on Exhibit C hereto.
(iv) the original Stock Certificate No. 2 of Computer Task Group International, Inc., and any other instruments and possessory collateral (together with any related stock powers, instruments of endorsement and instruments or transfer or assignment in blank) previously delivered to the Agent and in Agent’s possession.
6
(b) Promptly after the satisfaction of the conditions precedent set forth in Section 8 above, Agent shall file, or cause to be filed the UCC termination statements for the UCC financing statements listed on Exhibit C; provided, that, nothing contained herein shall be deemed to authorize the filing or recording of any UCC termination statement or other release or termination agreement that is not related to the Loan Documents, and any such other UCC termination statements are not authorized to be filed or of any force or effect.
(c) After the satisfaction of the conditions precedent set forth in Section 8 above, upon the written request of US Borrower, at US Borrower’s expense, Agent agrees to take such actions to deregister, notify, deliver (and if applicable) execute such other and further documents, instruments, writings, UCC termination statements, intellectual property filings, terminations of deposit account control agreements, and any other termination statements, releases, discharges and other filings as to any Loan Party reasonably requested by any Borrower in order to give effect to the releases, reassignments, retransfers, discharges and terminations of security interests, liens, charges, hypothecs, mortgages and encumbrances provided for herein. Loan Parties hereby request that Agent send the release of security interest in Intellectual Property referred to in Section 9(a)(i) above to be recorded in the U.S. Patent and Trademark Office, and the termination notice with respect to the Deposit Account Control Agreement referred to in Section 9(a)(ii) above to be sent to the applicable depository bank.
10. Governing Law. The validity, construction and effect of this Agreement shall be governed by the internal laws of the State of New York, but excluding any principles of conflicts of law or other rule of law that would cause the application of the law of any jurisdiction other than the laws of the State of New York.
11. Counterparts. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Agreement. Execution of any such counterpart may be by means of (a) an electronic signature that complies with the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, or any other relevant and applicable electronic signatures law; (b) an original manual signature; or (c) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Agent reserves the right, in its discretion, to accept, deny, or condition acceptance of any electronic signature on this Agreement. Any party delivering an executed counterpart of this Agreement by faxed, scanned or photocopied manual signature shall also deliver an original manually executed counterpart, but the failure to deliver an original manually executed counterpart shall not affect the validity, enforceability and binding effect of this Agreement.
[remainder of page intentionally left blank]
7
| Very truly yours, | ||
| BANK OF AMERICA, N.A., as Agent and Lender | ||
| By: | /s/ Mathew Bourgeois | |
| Name: | Mathew Bourgeois | |
| Title: | Senior Vice President | |
[SIGNATURES CONTINUED ON NEXT PAGE]
[Signature Page to Termination agreement (CTG)]
[SIGNATURE PAGES CONTINUED FROM PREVIOUS PAGE]
| BORROWERS: | ||
| COMPUTER TASK GROUP, INCORPORATED | ||
| By: | /s/ Peter P. Radetich | |
| Name: | Peter P. Radetich | |
| Title: | Senior Vice President | |
| COMPUTER TASK GROUP IT SOLUTIONS S.A. | ||
| By: | /s/ Peter P. Radetich | |
| Name: | Peter P. Radetich | |
| Title: | Director | |
| By: | /s/ Guido Helsloot | |
| Name: | Guido Helsloot | |
| Title: | Director | |
| COMPUTER TASK GROUP BELGIUM NV | ||
| By: | /s/ Peter P. Radetich | |
| Name: | Peter P. Radetich | |
| Title: | Authorized Signatory | |
| COMPUTER TASK GROUP LUXEMBOURG PSF S.A. | ||
| By: | /s/ Peter P. Radetich | |
| Name: | Peter P. Radetich | |
| Title: | Director | |
| By: | /s/ Guido Helsloot | |
| Name: | Guido Helsloot | |
| Title: | Director | |
[SIGNATURES CONTINUED ON NEXT PAGE]
[Signature Page to Termination agreement (CTG)]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
| GUARANTORS: | ||
| COMPUTER TASK GROUP INTERNATIONAL, INC. | ||
| By: | /s/ Peter P. Radetich | |
| Name: | Peter P. Radetich | |
| Title: | Authorized Signatory | |
| CTG IT SA | ||
| By: | /s/ Peter P. Radetich | |
| Name: | Peter P. Radetich | |
| Title: | Authorized Signatory | |
| COMPUTER TASK GROUP EUROPE B.V. | ||
| By: | /s/ Peter P. Radetich | |
| Name: | Peter P. Radetich | |
| Title: | Director | |
[Signature Page to Termination agreement (CTG)]
EXHIBIT A
TO
TERMINATION AGREEMENT
Existing Letter of Credit
[****]
[Exhibit A]
EXHIBIT B
TO
TERMINATION AGREEMENT
Payoff Amount and Wire Transfer Instructions
EXHIBIT B-1
[****]
[Exhibit D]
EXHIBIT C
TO
TERMINATION AGREEMENT
[****]
[Exhibit E]
EXHIBIT D
TO
TERMINATION AGREEMENT
RELEASE NOTICE – BANK ACCOUNTS PLEDGE
[****]
[Exhibit E]
EXHIBIT E
TO
TERMINATION AGREEMENT
CERTIFICATE – BANK ACCOUNTS PLEDGE
[****]
[Exhibit E]
EXHIBIT F
TO
TERMINATION AGREEMENT
RELEASE NOTICE – RECEIVABLES PLEDGE
[****]
[Exhibit G]
EXHIBIT G
TO
TERMINATION AGREEMENT
CERTIFICATE – RECEIVABLES PLEDGE
[****]
[Exhibit E]
Exhibit 99.1
For Immediate Release
Cegeka Successfully Completes the Tender Offer for Computer Task Group, Incorporated
HASSELT, Belgium and LIMBURG, the Netherlands, Dec. 13, 2023 (GLOBE NEWSWIRE) — Cegeka Groep NV (“Cegeka”) announced today that its wholly owned subsidiary, Chicago Merger Sub, Inc. (“Merger Sub”), has successfully completed its tender offer to purchase all outstanding shares of common stock of Computer Task Group, Incorporated (NASDAQ: CTG) (“CTG”), at a price of $10.50 per share, net to the seller in cash, without interest and less any applicable withholding taxes. CTG is a leader in North America and Western Europe, helping companies employ digital IT solutions and services to drive their productivity and profitability.
This transaction aligns with Cegeka’s long-term strategic vision for growth and ambition.
“This transaction is a logical next step in Cegeka’s continuous growth journey. By joining forces with CTG, we are creating a powerful IT player with a portfolio of integrated end-to-end solutions supported by a strong Global Delivery Center Network and innovative technologies, transforming from a European to a global organization. Together, we will have operations in 19 countries and employ over 9,000 IT professionals,” said Stijn Bijnens, CEO of Cegeka.
“This merger enables both the customers and employees of CTG and Cegeka to grow forward together. On behalf of all Cegeka teams, we welcome the employees of CTG across the Americas, Colombia, Europe, and India to the Cegeka family,” said André Knaepen, Chairman of the Board of Directors of Cegeka.
Mr. Bijnens continued: “We will take the time necessary to finish developing and executing a thoughtful and well-communicated integration plan with the well-being of our customers and employees of top consideration. In 2024, we’ll focus on establishing the fundamentals necessary to drive our evolution into a powerful and integrated company in 2025.”
As part of the acquisition, CTG’s CEO, Filip Gydé, will not be part of the new organizational structure. “We appreciate his positive cooperation during this acquisition process. We thank him for his years of dedication to the company and all the successes to which he has contributed,” said Stijn Bijnens.
Additional information about the tender offer and acquisition
The tender offer for all the outstanding shares of CTG common stock expired one minute after 11:59 p.m., Eastern Time, on December 12, 2023 (12:00 a.m., Eastern Time, on December 13, 2023).
Computershare Trust Company, N.A., as the depositary for the tender offer, has advised that, as of the expiration of the tender offer, 12,806,181 shares were validly tendered and not validly withdrawn pursuant to the tender offer, representing approximately 73.79 percent of the issued and outstanding shares of CTG. The condition to the tender offer is that at least one share more than 66 2/3 percent of the outstanding CTG shares at the expiration of the tender offer be validly tendered and not validly withdrawn, and all other conditions to the tender offer have been satisfied. Accordingly, Merger Sub has accepted payment and will promptly pay for all shares validly tendered and not withdrawn.
Cegeka will today move forward with a merger of Merger Sub with and into CTG under Section 905(a) of the New York Business Corporation Law. Each share issued and outstanding immediately prior to the effective time of the merger (other than shares (i) held in the treasury of CTG or owned by Cegeka, Merger Sub, or any direct or indirect wholly-owned subsidiary thereof, immediately prior to the effective time of the merger or (ii) held by shareholders who validly exercise appraisal rights under New York law with respect to such shares) will be canceled and automatically converted into the right to receive $10.50 per share, net to the seller in cash, without interest and less any applicable withholding taxes. Upon completion of the merger, CTG will become a wholly owned subsidiary of Cegeka, and CTG shares of common stock will no longer be listed on NASDAQ.
Cegeka will fund the acquisition through existing cash resources and bank financing.
About Cegeka
Cegeka is an ambitious and leading IT solutions provider. In line with our motto, ‘In close cooperation,’ we strive to provide the best possible customer service and support our more than 2,500 customers in their digitization journey. Cegeka offers integrated end-to-end solutions in the fields of Data, Applications, and Infrastructure, which are strongly interconnected.
Cegeka has over 6,000 employees with locations in Belgium, Luxembourg, the Netherlands, Germany, Austria, Romania, Moldova, Italy, the Czech Republic, Slovakia, Sweden, the United States, Greece, and Denmark, and has a consolidated turnover of €871 million (in 2022). Cegeka is a European family-owned company. It was founded in 1992 by André Knaepen, who is currently the chairman of the board of directors. CEO Stijn Bijnens manages the Company from its head office in Hasselt, Belgium.
About CTG
CTG is a leading provider of digital transformation solutions and services that accelerate clients’ project momentum and achievement of their desired IT and business outcomes. We have earned a reputation as a faster, more reliable, results-driven partner focused on integrating digital technology into all areas of its clients to improve their operations and increase their value proposition. CTG’s engagement in the digital transformation process drives improved data-driven decision-making, meaningful business performance improvements, new and enhanced customer experiences, and continuous innovation. CTG operates in North America, South America, Western Europe, and India. CTG regularly posts news and other important information at www.ctg.com.
Forward Looking Statements
This press release contains statements that constitute “forward looking statements,” including statements that express the opinions, expectations, beliefs, plans, objectives, assumptions, or projections regarding future events or future results, including statements regarding the acquisition of CTG by Cegeka (the “Acquisition”), in contrast with statements that reflect historical facts. In some cases, you can identify such forward-looking statements by terminology such as “anticipate,” “intend,” “believe,” “estimate,” “plan,” “seek,” “project,” or “expect,” “may,” “will,” “would,” “could,” “potential,” “intend,” or “should,” the negative of these terms or similar expressions.
Forward-looking statements are based on management’s current beliefs and assumptions and on information currently available to Cegeka. However, these forward-looking statements do not guarantee performance, and you should not place undue reliance on such statements.
Forward-looking statements are subject to many risks, uncertainties and other variable circumstances, including, but not limited to, the effects of the Acquisition on CTG’s ability to retain and hire qualified professional staff and talent, including technical, sales and management personnel; competition for clients; the increased bargaining power of CTG’s large clients; the occurrence of cyber incidents and CTG’s ability to protect confidential client data; the partial or complete loss of the revenue CTG generates from its largest client, International Business Machines Corporation (IBM); the uncertainty of CTG’s clients’ implementations of cost reduction projects; the mix of work at CTG between IT Solutions and Services and Non-Strategic Technology Services, and the risk of disengaging from Non-Strategic Technology Services; currency exchange risks; risks associated with CTG’s domestic and foreign operations, including uncertainty and business interruptions resulting from political changes and actions in the U.S. and abroad, such as the conflict between Russian and Ukraine and recent developments in China, and volatility in the global credit and financial markets and economy; renegotiations, nullification, or breaches of contracts with clients, vendors, subcontractors or other parties; the impact of current and future laws and government regulations, as well as repeal or modification of such, affecting the IT solutions and services industry, taxes and CTG’s operations in particular; industry, economic, and political conditions, including fluctuations in demand for IT services; and consolidation among CTG’s competitors or clients. Such
risks and uncertainties may cause the statements to be inaccurate and readers are cautioned not to place undue reliance on such statements. Many of these risks are outside of Cegeka and CTG’s control and could cause actual results to differ materially. The forward-looking statements included in this press release are made only as of the date hereof. Cegeka and CTG do not undertake, and specifically decline, any obligation to update any such statements or to publicly announce the results of any revisions to any such statements to reflect future events or developments, except as required by law.
A further description of risks and uncertainties relating to CTG can be found in CTG’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022, as filed with the SEC, and in other documents filed from time to time with the SEC by CTG and available at www.sec.gov and www.ctg.com.
Document and Entity Information |
Dec. 08, 2023 |
|---|---|
| Cover [Abstract] | |
| Entity Registrant Name | COMPUTER TASK GROUP INC |
| Amendment Flag | false |
| Entity Central Index Key | 0000023111 |
| Current Fiscal Year End Date | --12-31 |
| Document Type | 8-K |
| Document Period End Date | Dec. 08, 2023 |
| Entity Incorporation State Country Code | NY |
| Entity File Number | 1-9410 |
| Entity Tax Identification Number | 16-0912632 |
| Entity Address, Address Line One | 300 Corporate Parkway |
| Entity Address, Address Line Two | Suite 214N |
| Entity Address, City or Town | Amherst |
| Entity Address, State or Province | NY |
| Entity Address, Postal Zip Code | 14226 |
| City Area Code | 716 |
| Local Phone Number | 882-8000 |
| Written Communications | false |
| Soliciting Material | false |
| Pre Commencement Tender Offer | false |
| Pre Commencement Issuer Tender Offer | false |
| Security 12b Title | Common Stock, par value $0.01 per share |
| Trading Symbol | CTG |
| Security Exchange Name | NASDAQ |
| Entity Emerging Growth Company | false |
-8?20$3;8T.P6BP^0"X99K>]9!:G