EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
January 22, 2001, by and between CIBER, INC., a Delaware corporation
("Corporation"), and DAVID G. DURHAM ("Officer").
RECITAL
Corporation desires to employ Officer in the position set forth on EXHIBIT
A, and Officer is willing to accept such employment 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 report to Corporation's Chief Executive
Officer. 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 thirty (30) 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 December 31, 2001,
unless terminated earlier pursuant to this Agreement. This Agreement shall renew
automatically for a period of one year on January 1, 2002 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 an
annual "Base Salary" as set forth on EXHIBIT A, payable in twenty-six (26) equal
biweekly installments. The Base Salary for each fiscal year (currently January 1
through December 31 of each year) or portion thereof after fiscal year 2001
shall be as determined in the sole discretion of the Board of Directors, but
shall not be less than $200,000 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 December 31st of
the immediately preceding fiscal year.
3.2 BONUSES. Officer shall be eligible to receive a bonus for the
fiscal year ending December 31, 2001, 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 days after the year end to
which such bonus relates. The bonus for each fiscal year or portion thereof
after fiscal year 2001 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, 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 of its senior officers.
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 $500,000 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.
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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.
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, which shall not
precede the date of receipt of the 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 paid any unpaid bonus compensation and such
unpaid bonus compensation shall be paid promptly once it has been determined,
but no later than forty-five (45) days after the first quarter end following
termination. 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
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incapacity is reasonably likely to continue shall be submitted to the
Corporation or, if disability insurance is maintained on the Officer, Officer's
disability insurance carrier for determination. In the event the Corporation or
such insurance carrier determines that Officer is subject to such an illness or
incapacity for which no reasonable accommodation is possible, 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. 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, 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.
4.4 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 (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.
Officer shall also be paid any unpaid bonus compensation calculated as provided
in Section 4.2.
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 Change in Control, the aggregate
amount of severance compensation paid to an Officer under this Agreement or
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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.
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.
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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, 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. Confidential information shall exclude
ideas, concepts, and know-how obtained from third parties or within the public
domain. 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:
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7.1.1 "Affiliated Company" shall mean any corporation or other
entity that is directly, or through one or more intermediaries, controls, is
controlled by, or is under common control with the Corporation. As used herein,
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such entity, whether
through ownership of voting securities or other interests, by contract or
otherwise.
7.1.2 "Termination for Cause" shall mean termination by
Corporation of Officer's employment by Corporation by reason of (i) Officer's
failure to comply with the lawful directives of the Board of Directors or the
Chief Executive Officer other than as a result of a good faith dispute with
respect to the strategic direction of the Corporation, (ii) any criminal act or
willful misconduct by Officer that is injurious in any significant respect to
the property, operations, business or reputation of the Corporation, or (iii)
any material breach by Officer of any provision of this Agreement, or Officer's
failure to exercise good faith efforts to discharge his responsibilities
hereunder, if such material breach or failure has not been cured within thirty
(30) days following written notice by the Corporation to the Officer of such
breach or failure setting forth with specificity the nature of the breach or
failure.
7.1.3 "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.
7.1.4 "Termination Upon a Change in Control" shall mean a
termination by Corporation or any successor thereto of Officer's employment with
the Corporation or such successor for any reason or a termination by the Officer
for Good Reason (as defined below) of the Officer's employment with the
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 Exchange
Act of 1934 (the "1934 Act")), other than Bobby G. Stevenson 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.
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For purposes of this Agreement "Good Reason" shall include, but not be
limited to, any of the following (without the Officer's express written
consent): (a) the assignment to the Officer by the Corporation of duties
inconsistent with, or a substantial diminution in the nature or status of, the
Officer's responsibilities immediately prior to a Change in Control other than
any changes primarily attributable to the fact that the Corporation's securities
are no longer publicly traded; (b) a reduction by the Corporation in the
Officer's compensation, benefits, or perquisites as in effect on the date of a
Change in Control; (c) a relocation of the Corporation's principal offices to a
location beyond a thirty (30) miles radius of the central business district of
Denver, Colorado, or the Officer's relocation to any place other than the
Denver, Colorado offices of the Corporation, except for reasonably required
travel by the Officer on the Corporation's business; (d) any material breach by
the Corporation of any provision of this Agreement, if such material breach has
not been cured within thirty (30) days following written notice by the Officer
to the Corporation of such breach setting forth with specificity the nature of
the breach; or (e) any failure by the Corporation to obtain the assumption and
performance of this Agreement by any successor (by merger, consolidation or
otherwise) or assign of the Corporation.
7.1.5 "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 billings 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
$25,000.00, 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 that 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 THE
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.
9.2 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.
9.3 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 Position, 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.
9.4 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.
5251 DTC Parkway,
Suite 1400
Greenwood Village, Colorado 80111
Attn: Chief Executive Officer
With a copy to:
Wanda J. Abel, Esq.
Davis, Graham & Stubbs LLP
1550 Seventeenth Street
Suite 500
Denver, Colorado 80202
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If to Officer:
David G. Durham
5251 DTC Parkway
Suite 1400
Greenwood Village, Colorado 80111
Any party may change such party's address for notices by notice given pursuant
to this Section 9.4.
9.5 HEADINGS. The Section headings herein are intended for reference
and shall not by themselves determine the construction or interpretation of this
Agreement.
9.6 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 9.4.
9.7 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.
9.8 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, and except for an assignment by the Corporation
to an Affiliated Company, this Agreement shall not be assignable either by
Corporation or by Officer.
9.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one and the same
Agreement.
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9.10 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/ David G. Durham By: /s/ Mac J. Slingerlend
- ----------------------------- -------------------------------
David G. Durham Mac J. Slingerlend, President
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