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 MAC X. XXXXXXXXXXX ("Officer").
RECITAL
Corporation previously entered into an Employment Agreement
with Officer on July 1, 1995. 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 $380,000 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.
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 Board 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 be paid the amount set forth on
EXHIBIT A in bi-weekly or monthly installments, at Corporation's option, over
thirty-six (36) months. 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.
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5. PROTECTION OF CORPORATION'S BUSINESS.
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,
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employee lists, technology, software source codes, programs, costs, marketing
plans, developmental plans, computer programs, computer systems, inventions,
developments, personnel manuals, 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
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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 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
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damages, the following sums for each employee or independent contractor hired or
engaged in violation of Subsection 5.3:
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: Xxx X. Xxxxxxxxx
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With a copy to:
Xxxxx X. Xxxx, Esq.
Xxxxx, Xxxxxx & Xxxxxx LLP
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Post Xxxxxx Xxx 000
Xxxxxx, Xxxxxxxx 00000-0000
If to Officer:
Mac X. Xxxxxxxxxxx
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/ Mac X. Xxxxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Mac X. Xxxxxxxxxxx Xxxxxxx X. Xxxxxxx
Executive Vice President
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EXHIBIT A
TO
EMPLOYMENT AGREEMENT OF MAC X. XXXXXXXXXXX DATED JULY 1, 1999
EFFECTIVE DATE OF EXHIBIT A: JULY 1, 1999
I. Position: President and Chief Executive Officer
II. *Base Salary Per Annum for Fiscal Year 2000: $475,000
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: Three 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: Eighteen (18) months
* Items subject to modification by the Board of Directors
