EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into
as of July 1, 1999, by and between CIBER, INC., a Delaware corporation
("Corporation"), and XXXXXXX X. XXXXXXX ("Officer").
RECITAL
Corporation previously entered into an Employment Agreement with
Officer on November 1, 1996. Corporation and Officer desire to amend and
supersede that agreement and continue the employment of the Officer by
Corporation, on the terms and subject to the conditions set forth in this
Agreement.
AGREEMENT
THE PARTIES AGREE AS FOLLOWS:
1. DUTIES. Officer agrees to be employed by and to serve
Corporation in the position set forth on EXHIBIT A, and Corporation agrees to
employ and retain Officer in such capacity. Officer shall devote all of his
business time, energy and skill to the affairs of Corporation. Officer shall
have powers and duties commensurate with his position set forth on EXHIBIT A.
Officer shall comply with the general management policies of Corporation as
announced from time to time. Officer's principal place of business with
respect to his services to Corporation shall be within twenty (20) miles of
the central business district of Denver, Colorado, although Officer shall be
required at various times to travel as part of his duties.
2. TERM OF EMPLOYMENT. The initial term of employment of Officer by
Corporation shall be from the date of this Agreement through June 30, 2000,
unless terminated earlier pursuant to this Agreement. This Agreement shall
renew automatically for a period of one year on July 1, 2000 and on each
subsequent anniversary date thereof, subject to the termination provisions
hereof.
3. SALARY, BENEFITS AND BONUS COMPENSATION.
3.1 BASE SALARY. Corporation agrees to pay to Officer initially
a "Base Salary" as set forth on EXHIBIT A payable in twenty-six (26) equal
biweekly installments. The Base Salary for each fiscal year (currently July 1
through June 30 of each year) or portion thereof after fiscal year 2000 shall
be determined in the sole discretion of the Board of Directors, but shall not
be less than $260,000 per annum. In the absence of and until any salary
determination by the Board, Officer's Base Salary for a particular fiscal
year shall be identical to Officer's Base Salary in effect on June 30th of
the immediately preceding fiscal year.
3.2 BONUSES. Officer shall be eligible to receive a bonus for
the fiscal year ending June 30, 2000 provided the Officer remains an employee
through such date. Such bonus will be determined in accordance with the
formula described on EXHIBIT A and paid within seventy five (75) days after
the year end to which such bonus relates. The bonus for each fiscal year or
portion thereof after fiscal year 2000 shall be determined in the sole
discretion of the Board of Directors.
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3.3 ADDITIONAL BENEFITS. During the term of his employment,
Officer shall be entitled to the following fringe benefits:
3.3.1 OFFICER BENEFITS. Officer shall be eligible to
participate in such of Corporation's benefit and compensation plans as may be
generally available to executive officers of Corporation, including, without
limitation, profit sharing, employee stock purchase plans, medical, dental,
health and annual physical examination plans, life and disability insurance
plans, financial planning and retirement programs, according to their terms.
All such benefit plans may be amended or discontinued in the sole discretion
of Corporation.
3.3.2 BUSINESS EXPENSES. Corporation shall reimburse
Officer for all reasonable and necessary expenses incurred in carrying out
his duties under this Agreement, including travel and entertainment expenses.
Officer shall present monthly to Corporation an itemized account of such
expenses in such form as may be required by Corporation.
3.3.3 CLUBS. Corporation shall pay all initiation fees and
dues charged by Glenmoor Country Club and for such additional organizations,
if any, as shall be approved by the Chief Executive Officer or the Chairman
of the Compensation Committee of Corporation.
3.3.4 VACATION. Officer shall be entitled to vacation time
generally available to executive officers of Corporation during which
vacation time his compensation shall be paid in full.
3.3.5 LIFE INSURANCE. Upon Officer passing any required
physical examination, Corporation shall at its expense procure and keep in
effect an unrated insurance policy or policies on the life of Officer in an
amount of not less than $1,000,000, payable to such beneficiaries as Officer
may from time to time designate. To the extent the Corporation maintains "key
man" life insurance on the life of Officer of at least $1,000,000, the
Corporation may utilize such insurance to discharge the obligation set forth
in the preceding sentence. Such policies shall be owned by Corporation.
Officer shall cooperate in the obtaining of all such insurance policies as
Corporation may desire to apply for and own for its own purposes. This
insurance is in addition to any group life coverage which may be provided to
Officer by Corporation.
3.3.6 DEFERRED COMPENSATION. Officer shall be entitled to
participate in a deferred compensation plan pursuant to and subject to the
terms and conditions set forth in a separate agreement between the parties.
3.4 OPTION TO ACQUIRE COMMON STOCK. Officer has been granted
options, pursuant to and subject to the terms and conditions of Corporation's
Equity Incentive Plan and the option agreements executed by and between
Officer and the Corporation, to purchase certain shares of Corporation's
Common Stock at the exercise price or prices stated in the option agreements.
Such option agreements remain in effect in accordance with their terms and
are unaffected by this Agreement. Any further options shall be granted at the
sole discretion of the Corporation's Board of Directors.
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4. TERMINATION OF EMPLOYMENT.
4.1 TERMINATION FOR CAUSE. Termination for Cause (as defined
below) of Officer's employment may be effected by Corporation at any time
without liability except as specifically set forth in this Subsection. The
termination shall be effected by written notification to Officer and shall be
effective as of the time set forth in such notice. At the effective time of a
Termination for Cause, Officer immediately shall be paid all accrued Base
Salary and any reasonable and necessary business expenses incurred by Officer
in connection with his duties hereunder, all to the date of termination. In
addition, Officer shall be entitled to benefits under any benefit plans of
Corporation in which Officer is a participant to the full extent of Officer's
rights under such plans.
4.2 TERMINATION OTHER THAN FOR CAUSE. Corporation may effect a
Termination Other Than for Cause (as defined below) of Officer's employment
at any time upon giving written notice to Officer of such termination and
without liability except as specifically set forth in this Subsection. The
termination shall be effective as of the time set forth in such notice. At
the effective time of any Termination Other Than for Cause, Officer shall
immediately be paid all accrued Base Salary and any reasonable and necessary
business expenses incurred by Officer in connection with his duties
hereunder, all to the effective time of termination. Officer shall also be
entitled to any unpaid bonus compensation and such unpaid bonus compensation
shall be paid promptly once it has been determined, but no later than sixty
(60) days after the first quarter end following termination. Unpaid bonus
compensation for the purposes of this Section 4 shall be an amount equal to
the product of (i) 5% of the difference between Officer's total accrual basis
bonus compensation for the immediately preceding fiscal year (or if such
bonus compensation has not been determined, Officer's bonus compensation for
the fiscal year preceding such immediately preceding fiscal year) and any
amount pre-paid against Officer's bonus compensation for the fiscal year
during which termination occurs, and (ii) the number of full calendar months
of Officer's employment during the fiscal year in which termination occurs.
In addition, Officer shall immediately be paid the percentage of his Base
Salary set forth on EXHIBIT A. Officer shall also be entitled to benefits
under any benefit plans of Corporation in which Officer is a participant to
the full extent of Officer's rights under such plans, and Corporation shall
pay Officer's medical, life and disability insurance premiums under
Corporation's plans (or shall pay Officer a sum in cash, not to exceed
$1,000.00 per month, to pay private plan premiums for coverage substantially
the same as Corporation's) for the number of months following termination set
forth on EXHIBIT A.
4.3 TERMINATION BY REASON OF DISABILITY. If Officer, in the
reasonable judgment of the Board of Directors of Corporation, has failed to
perform his duties under this Agreement on account of illness or physical or
mental incapacity, and such illness or incapacity continues for a period of
more than six (6) months, then the question of whether Officer's illness or
incapacity is reasonably likely to continue shall be submitted to
Corporation's or, if disability insurance is maintained by Officer, Officer's
disability insurance carrier for determination. In the event such insurance
carrier determines that Officer is subject to such an illness or incapacity,
Corporation shall have the right to terminate Officer's employment
("Termination for Disability") by written notification to Officer and payment
to Officer of all accrued Base Salary, unpaid bonus compensation (prorated as
provided in Section 4.2) and any reasonable and necessary business expenses
incurred by Officer in connection with his duties hereunder, all to the date
of termination.
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In addition, Officer shall immediately be paid the percentage of his Base
Salary set forth on EXHIBIT A. Officer shall also be entitled to benefits
under any benefit plans in which Officer is a participant, including
disability benefits which may be provided pursuant to Section 3.3.1, to the
full extent of Officer's rights under such plans. In addition, Corporation
shall pay Officer's medical, life and disability insurance premiums under
Corporation's plans (or shall pay Officer a sum in cash, not to exceed
$1,000.00 per month, to pay private plan premiums for coverage substantially
the same as Corporation's) for the number of months following termination set
forth on EXHIBIT A.
4.4 DEATH. In the event of Officer's death during the term of
employment, Officer's employment shall be deemed to have terminated as of the
last day of the month during which his death occurs, and Corporation shall
pay promptly to his estate (a) all accrued Base Salary, unpaid bonus
compensation (as defined in Section 4.2) and any reasonable and necessary
business expenses incurred by Officer in connection with his duties
hereunder, all to the date of termination, and proceeds from insurance
policies as provided in Section 3.3.5 and (b) the percentage of Officer's
Base Salary set forth on EXHIBIT A payable immediately on the effective day
of termination. Officer's estate shall also be entitled to benefits under any
benefit plans of Corporation in which Officer is a participant to the full
extent of Officer's rights under such plans.
4.5 VOLUNTARY TERMINATION. In the event of a Voluntary
Termination (as defined below) by Officer, Corporation shall immediately pay
all accrued Base Salary and any reasonable and necessary business expenses
incurred by Officer in connection with his duties hereunder, all to the date
of termination.
4.6 TERMINATION UPON A CHANGE IN CONTROL. In the event of a
Termination Upon a Change in Control (as defined below), Officer shall
immediately be paid all accrued Base Salary, unpaid bonus compensation (as
defined in Section 4.2) and any reasonable and necessary business expenses
incurred by Officer in connection with his duties hereunder, all to the date
of termination. In addition, Officer shall immediately be paid the amount set
forth on EXHIBIT A. Officer shall also be entitled to benefits under any
benefit plans of Corporation in which Officer is a participant to the full
extent of Officer's rights under such plans, and Corporation shall pay
Officer's medical, life and disability insurance premiums under Corporation's
plans (or shall pay Officer a sum in cash, not to exceed $1,000.00 per month,
to pay private plan premiums for coverage substantially the same as
Corporation's) for the number of months following termination set forth on
EXHIBIT A. Notwithstanding the foregoing, solely in the event of a
Termination Upon a Change in Control, the aggregate amount of severance
compensation paid to the Officer under this Agreement or otherwise shall not
include any amount that the Corporation is prohibited from deducting for
federal income tax purposes by virtue of Section 280G of the Internal Revenue
Code or any successor provision.
4.7 OTHER BENEFITS. Nothing in this Article 4 shall be deemed
to limit or restrict any right or benefit of Officer under Corporation's
Certificate of Incorporation, Bylaws or other documents or agreements of the
Corporation applicable to Officer.
5. PROTECTION OF CORPORATION'S BUSINESS.
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5.1 NO COMPETITION. Officer shall not, during the term of his
employment and for eighteen (18) months following the termination of his
employment, work as an employee or independent contractor or become an
investor or lender of any business, corporation, partnership or other entity
engaged in a Competing Business. An investment by Officer of up to 2% of the
outstanding equity in a publicly-traded corporation shall not constitute a
violation of this Section 5.1. A "Competing Business" is a business which
Corporation has engaged in, or has actively investigated engaging in, at any
time during the twenty-four (24) months prior to the termination of Officer's
employment in which Officer had responsibility to manage, direct or supervise.
5.2 NO SOLICITATION OF CLIENTS. Officer shall not, during the
term of his employment and for eighteen (18) months following the termination
of his employment (unless Corporation grants him written authorization):
(a) call upon, cause to be called upon, solicit or assist in the solicitation
of, any client or potential client of Corporation for the purpose of selling,
renting or supplying any product or service competitive with the products or
services of Corporation; (b) provide any product or services to any client or
potential client of Corporation which is competitive with the products or
services of Corporation; or (c) request, recommend or advise any client or
potential client to cease or curtail doing business with the Corporation. Any
individual, governmental authority, corporation, partnership or other entity
to whom Corporation has provided services or products at any time prior to or
during Officer's employment or to whom Corporation has made one or more sales
or sales calls during the eighteen (18) month period preceding the date of
termination of Officer's employment shall be deemed a client or potential
client.
5.3 NO HIRE OF OTHER EMPLOYEES OR CONTRACTORS. Except on behalf
of the Corporation, Officer shall not, during the term of his employment and
for a period of eighteen (18) months following the termination of his
employment: (a) employ, engage or seek to employ or engage any individual or
entity, on behalf of Officer or any entity (including a client of
Corporation), who is employed or engaged by Corporation or who was employed
or engaged by the Corporation during the six (6) month period preceding
Officer's termination; (b) solicit, recommend or advise any employee of the
Corporation or independent contractor to terminate their employment or
engagement with the Corporation for any reason; or (c) solicit recruiting
prospects and/or candidates whose files are actively maintained or have been
maintained during the last six (6) months prior to Officer's termination by
the Corporation.
6. CONFIDENTIALITY.
6.1 CONFIDENTIAL INFORMATION AND MATERIALS. All of the
Confidential Information and Materials, as defined herein, are and shall
continue to be the exclusive confidential property and trade secrets of
Corporation. Confidential Information and Materials have been or will be
disclosed to Officer solely by virtue of his employment with Corporation and
solely for the purpose of assisting him in performing his duties for
Corporation. "Confidential Information and Materials" refers to all
information belonging to or used by Corporation or Corporation's clients
relating to internal operations, procedures and policies, finances, income,
profits, business strategies, pricing, billing information, compensation and
other personnel information, client contacts, sales lists, employee lists,
technology, software source codes, programs, costs, marketing plans,
developmental plans, computer programs, computer systems, inventions,
developments, personnel manuals,
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computer program manuals, programs and system designs, and trade secrets of
every kind and character, whether or not they constitute a trade secret under
applicable law and whether developed by Officer during or after business
hours. Officer acknowledges and agrees all Confidential Information and
Materials shall, to the extent possible, be considered works made for hire
for the Corporation under applicable copyright law. To the extent any
Confidential Information and Materials are not deemed to be a work made for
hire, Officer hereby assigns to the Corporation any rights he may have or may
acquire in such Confidential Information and Materials as they are created,
throughout the world, in perpetuity. Further, Officer hereby waives any and
all moral rights he may have in such Confidential Information and Materials.
Notwithstanding the foregoing, the Corporation acknowledges that it shall
have no right to inventions or other material for which no equipment,
supplies, facilities or Confidential Information and Material of the
Corporation are used and which are developed entirely on Officer's own time
and (i) do not relate directly to the business of the Corporation or (ii) do
not result from any work performed by Officer hereunder.
6.2 NON-DISCLOSURE AND NON-USE. Officer may use Confidential
Information and Material while an employee of Corporation and in the course
of that employment to the extent deemed necessary by Corporation for the
performance of Officer's responsibilities. Such permission expires upon
termination of his employment with Corporation or on notice from Corporation.
Officer shall not, either during or after his employment with Corporation,
disclose any Confidential Information or Materials to any person, firm,
corporation, association or other entity for any reason or purpose unless
expressly permitted by Corporation in writing. Officer shall not use, in any
manner other than to further Corporation's business, any Confidential
Information or Materials of Corporation. Upon termination of his employment,
Officer shall immediately return all Confidential Information or Materials or
other property of Corporation or its clients or potential clients in his
possession or control.
7. DEFINITIONS.
7.1 DEFINITIONS. For purposes of this Agreement, the following
terms shall have the following meanings:
7.1.1 "Termination for Cause" shall mean termination by
Corporation of Officer's employment by Corporation by reason of Officer's
conviction of any felony crime, Officer's willful dishonesty towards, fraud
upon or deliberate injury or attempted injury to Corporation or its clients,
Officer's material breach of this Agreement, or any material reason that
constitutes "cause" under applicable law.
7.1.2 "Termination Other Than for Cause" shall mean
termination by Corporation of Officer's employment by Corporation other than
a Termination for Cause, Termination Upon Change in Control, Termination for
Disability, or for any or no reason.
7.1.3 "Termination Upon a Change in Control" shall mean a
termination (whether voluntary or involuntary) of Officer's employment with
Corporation or any successor thereto within one hundred eighty (180) days
from the date on which any of the following occurs: (a) any "person" or
"group" (within the meaning of Sections 13(d) and 14(d)(2) of the Securities
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Exchange Act of 1934 (the "1934 Act")), other than Xxxxx X. Xxxxxxxxx or a
trustee or other fiduciary holding securities under an employee benefit plan
of Corporation, is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the 1934 Act), directly or indirectly, of more than thirty-three
percent (33%) of the then outstanding voting stock of Corporation; or (b) at
any time during any period of three consecutive years (not including any
period prior to the Effective Date), individuals who at the beginning of such
period constitute the Board (and any new director whose election by the Board
or whose nomination for election by Corporation's stockholders was approved
by a vote of at least two-thirds of the directors then still in office who
either were directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority thereof; or (c) the stockholders of Corporation approve
a merger or consolidation of Corporation with any other corporation, other
than a merger or consolidation which would result in the voting securities of
Corporation outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities
of the surviving entity) at least 80% of the combined voting power of the
voting securities of Corporation or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders approve a
plan of complete liquidation of Corporation or an agreement for the sale or
disposition by Corporation of all or substantially all of Corporation's
assets.
7.1.4 "Voluntary Termination" shall mean termination by
Officer of Officer's employment with Corporation, but shall not include
(i) constructive termination by Corporation by reason of material breach of
this Agreement by Corporation; (ii) Termination Upon a Change in Control; and
(iii) termination by reason of Officer's death or disability as described in
Subsections 4.3 and 4.4. Voluntary Termination shall include a termination by
Corporation after its receipt of a notice of an otherwise Voluntary
Termination from Officer.
8. REMEDIES.
8.1 LIQUIDATED DAMAGES.
8.1.1 If Officer violates Subsection 5.1, Officer shall pay
to Corporation the sum of $100,000.00 as liquidated damages to compensate
Corporation for its lost investment of money for recruitment, training, cost
of replacement, lost revenues and other damages due to the likely disruption
of the operation of Corporation's business.
8.1.2 If Officer violates Subsection 5.2, Officer shall pay
to Corporation as liquidated damages the greater of Corporation's gross
xxxxxxxx to the client to which products or services are supplied in
violation of Subsection 5.2 during the year immediately prior to the first
improper solicitation or $12,500.00, to compensate Corporation for its lost
revenue, client development expenses and other damages.
8.1.3 If Officer violates Subsection 5.3, Officer shall pay
to Corporation as liquidated damages, in compensation for its recruitment and
training costs, lost revenues and other damages, the following sums for each
employee or independent contractor hired or engaged in violation of
Subsection 5.3:
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Employee or Independent Contractor Amount
---------------------------------- ------
Vice-President or other officer $100,000
Other Manager or Recruiter $ 50,000
Marketer or other sales personnel $ 50,000
Programmers or other billable personnel $ 12,500
Other office staff $ 5,000
8.1.4 Officer and Corporation have carefully considered the
issue of liquidated damages and after negotiation agree that they are a
reasonable compromise after attempting to estimate what the actual damages
would be and assessing the risk of collection.
8.1.5 Officer authorizes Corporation to disclose the terms
of Sections 5, 6 and 8 of this Agreement to any subsequent employer or client
of Officer.
8.2 EQUITABLE REMEDIES. The service rendered by Officer to
Corporation and the information disclosed to Officer during his employment
are of a unique and special character, and any breach of Sections 5 or 6
hereof will cause Corporation irreparable injury and damage which will be
extremely difficult to quantify. Although the parties have agreed on
liquidated damages for some of the potential breaches by Officer, they agree
that because of the risk of collection and intangibles which are impossible
to measure, Corporation will be entitled to, in addition to all other
remedies available to it, injunctive relief to prevent a breach and to secure
the enforcement of all provisions of Sections 5 and 6. Officer represents his
experience and knowledge will enable him to earn an adequate living in a
non-competitive business and that the injunctive relief will not prevent him
from providing for himself and his family. Injunctive relief may be granted
immediately upon the commencement of any such action without notice to
Officer, WHICH NOTICE OFFICER SPECIFICALLY WAIVES.
8.3 COSTS. If litigation is brought to enforce or interpret any
provision contained herein, the court shall award reasonable attorneys' fees
and disbursements to the prevailing party as determined by the court.
8.4 SEVERABILITY. THE PARTIES HAVE CAREFULLY CONSIDERED ALL OF
SECTIONS 5, 6 AND 8 AND AGREE THAT THEY REPRESENT A PROPER BALANCING OF THEIR
INTERESTS AND WILL NOT PREVENT OFFICER FROM EARNING A LIVING AFTER
TERMINATION OF HIS EMPLOYMENT. It is the express intent of the parties hereto
that the obligations of, and restrictions on, the parties as provided in
Sections 5 and 6 shall be enforced and given effect to the fullest extent
legally permissible. If, in any judicial proceeding, a court shall refuse to
enforce one or more of the covenants or agreements contained in this
Agreement because the duration thereof is too long, the scope thereof is too
broad or some other reason, for the purpose of such proceeding, the court may
reduce such duration or scope to the extent necessary to permit the
enforcement of such obligations and restrictions.
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9. MISCELLANEOUS.
9.1 PAYMENT OBLIGATIONS. Corporation's obligation to pay
Officer the compensation provided herein is subject to the condition
precedent that Officer perform his obligations; provided, however, Officer
shall have no obligation whatsoever to mitigate damages hereunder in the
event of a Termination Other Than for Cause.
9.2 DIRECTORS' AND OFFICERS' INSURANCE. Corporation shall use
its best efforts to obtain coverage for Officer under any insurance policy
now in force or hereafter obtained during the term of this Agreement insuring
officers and directors of Corporation for liability incurred by reason of the
fact that Officer is or was a director or officer of Corporation or, while
serving as a director or officer of Corporation, he is or was serving at the
request of Corporation as a director, officer, partner or trustee of, or in
any similar managerial or fiduciary position of, or as an employee or agent
of, another corporation, partnership, joint venture, trust, association, or
other entity.
9.3 WAIVER. The waiver of the breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach of the same or other provision hereof.
9.4 ENTIRE AGREEMENT; MODIFICATIONS. This Agreement represents
the entire understanding between the parties with respect to the subject
matter hereof, and this Agreement supersedes any and all prior
understandings, agreements, plans and negotiations, whether written or oral,
with respect to the subject matter hereof, including, without limitation, any
understandings, agreements or obligations respecting any past or future
compensation, bonuses, reimbursements or other payments to Officer from
Corporation. All modifications to this Agreement must be in writing and
signed by the party against whom enforcement of such modification is sought;
provided, however, that the provisions concerning Base Salary (subject to the
limitation in Section 3.1) and Bonus set forth on Exhibit A may be modified
at any time by the Board of Directors in its sole discretion.
9.5 NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be given by hand delivery, or
first-class mail, certified or registered with return receipt requested, or
by commercial overnight courier or by fax and shall be deemed to have been
duly given upon hand delivery, three (3) days after mailing, the first
business day following delivery to a commercial overnight courier or upon
receipt of a fax (as confirmed by a machine generated report), addressed as
follows:
If to Corporation:
CIBER, INC.
0000 XXX Xxxxxxx, #0000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Mac X. Xxxxxxxxxxx
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With a copy to:
Xxxxx X. Xxxx, Esq.
Xxxxx, Xxxxxx & Xxxxxx LLP
000 Xxxxxxxxxxx Xxxxxx
Xxxx Xxxxxx Xxx 000
Xxxxxx, Xxxxxxxx 00000-0000
If to Officer:
Xxxxxxx X. Xxxxxxx
0000 XXX Xxxxxxx, #0000
Xxxxxxxxx, Xxxxxxxx 00000
Any party may change such party's address for notices by notice given
pursuant to this Section 9.5.
9.6 HEADINGS. The Section headings herein are intended for
reference and shall not by themselves determine the construction or
interpretation of this Agreement.
9.7 GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement
shall be governed by and construed in accordance with the laws of the State
of Colorado without application of its conflict of laws rules. Officer hereby
submits to the exclusive jurisdiction and venue of the District Court of the
State of Colorado for the City and County of Denver or the United States
District Court for the District of Colorado for purposes of any legal action.
Officer agrees that service upon Officer in any such action may be made by
first-class mail, certified or registered, in the manner provided for
delivery of notices in Section 9.5.
9.8 SEVERABILITY. Should a court or other body of competent
jurisdiction determine that any provision of this Agreement is excessive in
scope or otherwise invalid or unenforceable, such provision shall be adjusted
rather than voided, if possible, so that it is enforceable to the maximum
extent possible, and all other provisions of the Agreement shall be deemed
valid and enforceable to the extent possible.
9.9 SURVIVAL OF CORPORATION'S OBLIGATIONS. Corporation's
obligations hereunder shall not be terminated by reason of any liquidation,
dissolution, bankruptcy, cessation of business or similar event relating to
Corporation. This Agreement shall not be terminated by any merger or
consolidation or other reorganization of Corporation. In the event any such
merger, consolidation or reorganization shall be accomplished by transfer of
stock or by transfer of assets or otherwise, the provisions of this Agreement
shall be binding upon and inure to the benefit of the surviving or resulting
corporation or person. This Agreement shall be binding upon and inure to the
benefit of the executors, administrators, heirs, successors and assigns of
the parties; provided, however, that except as provided in this Subsection in
the event of a merger, consolidation or reorganization of the Corporation,
including the sale of substantially all of its assets, this Agreement shall
not be assignable either by Corporation or by Officer.
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9.10 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute one and the
same Agreement.
9.11 WITHHOLDINGS. All compensation and benefits to Officer
hereunder shall be reduced by all federal, state, local and other
withholdings and similar taxes and payments required by applicable law.
Corporation may withhold amounts due it from Officer from amounts due under
this Agreement to Officer.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
OFFICER CIBER, INC., a Delaware corporation
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Mac X. Xxxxxxxxxxx
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Xxxxxxx X. Xxxxxxx Mac X. Xxxxxxxxxxx, President
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EXHIBIT A
TO
EMPLOYMENT AGREEMENT OF XXXXXXX X. XXXXXXX DATED JULY 1, 1999
EFFECTIVE DATE OF EXHIBIT A: JULY 1, 1999
I. Position: Executive Vice President and Chief Financial Officer
II. *Base Salary Per Annum for Fiscal Year 2000: $325,000
III. *Bonus for Fiscal Year 2000: As approved by the Board of Directors
IV. Additional sums payable upon termination events as referenced in
Section 4 of the Agreement.
A. Termination for Cause: None
B. Termination Other than for Cause: 50% of Base Salary
C. Termination by Reason of Disability: 50% of Base Salary
D. Death: 50% of Base Salary
E. Voluntary Termination: None
F. Termination Upon a Change of Control: Two times the sum of the
following: Base Salary plus an amount equal to the bonus
compensation received by the Officer for the year preceding
the year in which termination occurs.
V. Period of time for continuance of medical, life and disability
premiums under Section 4.2, 4.3 and 4.6: Twelve (12) months
* Items subject to modification by the Board of Directors
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