UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 10, 2011
CIBER, INC.
(Exact name of registrant as specified in its charter)
Delaware |
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001-13103 |
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38-2046833 |
(State or other jurisdiction |
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(Commission |
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(IRS Employer |
of incorporation) |
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File Number) |
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Identification No.) |
6363 South Fiddlers Green Circle, Suite 1400, Greenwood Village, Colorado |
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80111 |
(Address of principal executive offices) |
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(Zip Code) |
Registrants telephone number, including area code: (303) 220-0100
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On March 10, 2011, the board of directors of CIBER, Inc. (CIBER or the Company) announced that Peter Cheesbrough is leaving his position as executive vice president, chief financial officer and treasurer of CIBER at the end of April after nine years with the Company to pursue his interest in participating on other public company boards. Effective April 4, 2011, Claude J. Pumilia has been named executive vice president and chief financial officer and treasurer of CIBER succeeding Mr. Cheesbrough. A copy of the press release announcing Mr. Pumilias appointment as executive vice president, chief financial officer and treasurer and Mr. Cheesbroughs resignation from those positions effective April 4, 2011, as well as Mr. Cheesbroughs resignation from the Companys Board of Directors effective April 29, 2011, is attached as Exhibit 99.1 to this Current Report.
Employment Agreement with Mr. Pumilia
In connection with CIBERs appointment of Mr. Pumilia as executive vice president, chief financial officer and treasurer, CIBER and Mr. Pumilia entered into CIBERs Executive Vice President Employment Agreement, dated as of March 7, 2011 (the Employment Agreement), which provides for the following:
(i) a starting base salary of $380,000 annually;
(ii) a target bonus of 90% of base salary, which bonus may be greater or less than 100% of base salary based upon whether performance targets have been achieved or exceeded;
(iii) an inducement grant of 600,000 CIBER stock options and 150,000 CIBER restricted stock units (the RSUs). The stock options and RSUs will vest over a four year period, beginning six (6) months after the commencement of Mr. Pumilias employment, with the stock options vesting monthly and the RSUs vesting quarterly. The inducement grant will be made on April 4, 2011 in accordance with the Form of Notice of Grant of Stock Options and Option Agreement and the Form of the Notice of Grant of Restricted Stock Units and Restricted Stock Units Agreement attached as Exhibits A and B to the Employment Agreement.
In the event Mr. Pumilia is terminated within twelve (12) months of a change of control of CIBER (as defined in the Employment Agreement), in addition to already earned salary and earned but unpaid bonus for the prior year, Mr. Pumilia is entitled to receive certain benefits, subject to his executing a separation and release agreement. Such benefits include, (i) a pro-rata bonus with respect to the calendar year in which the termination occurred to the extent performance goals related to the bonus have been achieved (to be paid at the same time bonuses are normally paid for the year), (ii) a cash payment equal to eighteen (18) months of Mr. Pumilias annual salary and annual bonus at target level in effect on the day of termination, payable after a legal release is signed and effective, (iii) health benefits for eighteen (18) months to the extent that payment of such benefits does not cause CIBERs health care benefit plans to fail any discrimination testing that may become applicable and (iv) all unvested equity awards held by Mr. Pumilia shall fully vest and must be exercised by Mr. Pumilia by the earlier of (A) the one-year anniversary of the effective date of the termination and (B) the option expiration date.
Upon either Mr. Pumilias termination by CIBER without cause, or by Mr. Pumilia for good reason (each term as defined in the Employment Agreement), in addition to already earned salary and earned but unpaid bonus for the prior year, Mr. Pumilia is entitled to receive certain benefits, subject to his executing a separation and release agreement. Such benefits include (i) a pro-rata bonus with respect to the calendar year in which the effective date of termination occurred to the extent performance goals related to the bonus have been achieved (to be paid at the same time bonuses are normally paid for the year), (ii) a cash payment equal to one (1) times Mr. Pumilias annual base salary and annual bonus at target level in effect on the day of termination, payable after the release effective date,
(iii) health benefits for twelve (12) months to the extent that payment of such benefits does not cause CIBERs health care benefit plans to fail any discrimination testing that may become applicable, (iv) all unvested equity awards held by Mr. Pumilia that are scheduled to vest within one (1) year following Mr. Pumilias effective date of termination shall fully vest and (v) all vested equity awards must be exercised by Mr. Pumilia by the earlier of (A) the date such cease to be exercisable after a termination of service in accordance with the terms of the CIBER, Inc. 2004 Incentive Plan as amended, or such other plan under which the options or the restricted stock units are issued, and (B) the option expiration date.
Mr. Pumilia is subject to customary non-compete, non-solicitation of clients and no-hire obligations during his employment and for 12 months after termination.
The foregoing description of Mr. Pumilias Employment Agreement and inducement grant are qualified in their entirety by reference to the Employment Agreement, attached as Exhibit 10.1 to this Current Report on Form 8-K, which is incorporated herein by reference.
Mr. Pumilia will be eligible to participate in the CIBER, Inc. 2004 Incentive Plan, as amended and restated as of February 28, 2010.
Mr. Pumilia brings extensive experience in worldwide financial and strategic planning and development, organizational disciplines and metrics to drive performance, business development, market research and competitive analysis to our leadership team. Prior to joining CIBER, Mr. Pumilia, 43, was appointed in 2007 as the first Chief Financial Officer for the City and County of Denver in Denver, Colorado. In that position, Mr. Pumilia reported directly to the mayor, was responsible for the 400 person finance team and created the Citys first financial planning and analysis function. Before he joined the City and County of Denver, Mr. Pumilia was, from 2005 to 2006, the Senior Vice President of Finance and member of the senior leadership team of CA, Inc. (formerly Computer Associates) in New York where he had direct responsibility for the finance function for the world-wide sales organization. His responsibilities included international controllership, financial planning and analysis, sales operations and strategic acquisitions. From 2002 to 2005, Mr. Pumilia was Vice President Finance, performing the chief financial officer responsibilities for two divisions of Hewlett-Packard Company (HP) in Ft. Collins, CO. While at HP, Mr. Pumilia was responsible for the worldwide planning function, directly supporting the CFO and investor relations organizations with data and analysis. He was also responsible for finance and strategic planning as well as the introduction of organizational disciplines and metrics to drive performance to financial objectives. From 1996 to 2002, Mr. Pumilia held various management positions with Compaq Computer Corporation (Compaq) in Houston, TX; although, from 2000 to 2001, he briefly became the Chief Financial Officer and Vice President of Business Development for Emergin.com, an internet startup company providing eCommerce consulting services. During his time at Compaq, Mr. Pumilia had responsibility for business development, strategic planning, market research and competitive analysis functions. Prior to joining Compaq, Mr. Pumilia held associate positions with McKinsey & Company performing strategy and valuation assignments, with Baker & Botts, LLP representing private and public corporate clients in business transactions, and with Andersen Consulting advising financial and energy clients. Mr. Pumilia holds a Juris Doctor degree from the University of Virginia School of Law and a Bachelor of Arts degree in Economics and Managerial Studies from Rice University.
Mr. Pumilia is not and has not been involved in any related party transactions with CIBER and does not have any family relationships with any other director, executive officer or any persons nominated for such positions.
Transition Agreement with Mr. Cheesbrough
In connection with Mr. Cheesbroughs departure from the Company as its executive vice president, chief financial officer and treasurer and his resignation as a director of the Company and its subsidiaries, on March 7, 2011, CIBER entered into an Executive Transition Agreement (the Transition Agreement) with Mr. Cheesbrough.
The payments and benefits accruing to Mr. Cheesbrough under the Transition Agreement, which will become effective with his separation from the Company on April 29, 2011, are consistent with the payments or benefits to which Mr. Cheesbrough is entitled pursuant to his employment agreement, although the Board has also approved the accelerated vesting of Mr. Cheesbroughs unvested CIBER stock options and unvested restricted stock units.
The material terms of the Transition Agreement are summarized as follows:
(i) Mr. Cheesbrough will release the Company from any and all claims against the Company regarding any act or omission occurring on or prior to the date of the Transition Agreement, and the Company will release Mr. Cheesbrough from any and all claims against Mr. Cheesbrough regarding any act or omission relating to Mr. Cheesbroughs employment with the Company or separation therefrom.
(ii) Assuming Mr. Cheesbrough complies with certain non-competition and non-solicitation obligations, and provides a legal release to the Company, the Company will pay Mr. Cheesbrough a lump sum payment of $684,000, which is an amount equal to one (1) times his base salary ($360,000) plus one (1) times his annual target cash incentive bonus ($324,000, which is 90% of base salary) on the effective date of termination.
(iii) The vesting of 29,280 stock options and 89,760 restricted stock units will be accelerated. Mr. Cheesbrough shall have the earlier of the option expiration date or two (2) years following his Separation Date to exercise his options;
(iv) The Company will pay health insurance premiums on behalf of Mr. Cheesbrough for up to 12 months following the termination of his employment;
(v) Mr. Cheesbrough also agreed to certain customary restrictive covenants regarding non-competition and non-solicitation with CIBER and its clients for a period of 12 months beginning with the effective date of termination of his employment with the Company.
The foregoing description of the terms of the Transition Agreement is qualified in its entirety by reference to the Executive Transition Agreement, dated March 7, 2011, between CIBER, Inc. and Peter H. Cheesbrough attached hereto as Exhibit 10.2 and incorporated herein by reference.
Item 9.01(d). Exhibits.
(d) |
Exhibits. |
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10.1 |
Employment Agreement dated March 7, 2011 between CIBER, Inc. and Claude J. Pumilia. |
10.2 |
Executive Transition Agreement dated March 7, 2011 between CIBER, Inc. and Peter H. Cheesbrough. |
99.1 |
Press Release dated March 10, 2011. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned, thereunto duly authorized.
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CIBER, INC. | |
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Date: March 10, 2011 |
By: |
/s/ Christopher L. Loffredo |
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Name: |
Christopher L. Loffredo |
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Title: |
Vice President and Chief Accounting Officer |
EXHIBIT 10.1
EMPLOYMENT AND CONFIDENTIALITY AGREEMENT
This Agreement is entered into between CIBER, Inc. (Company) and Claude J. Pumilia (Executive) as of this 7th day of March, 2011.
In consideration of the mutual covenants and conditions contained in this Agreement, the parties agree as follows:
1. Obligations of Executive. The Company employs the Executive to serve and perform such duties as the Chief Executive Officer or the Board of Directors (the Board, which term also includes any committee of the Board when used herein) directs, consistent with his position as Executive Vice President, Chief Financial Officer and Treasurer. Executive agrees (1) to use his reasonable best efforts to adhere to applicable Company policies, procedures and requirements in performing his duties and (2) to exert Executives reasonable best efforts to perform in a professional manner while performing Executives duties and in working with Company. The Executive shall devote substantially all of the Executives business time and effort to the performance of the Executives duties hereunder, provided that in no event shall this sentence prohibit the Executive from performing personal and charitable activities and any other activities approved by the Board, so long as such activities do not materially and adversely interfere with the Executives duties for the Company.
2. Employment at Will. Except as set forth in this Agreement or otherwise required by law, Executive is and will remain an employee at will, meaning that either Executive or the Company may terminate this Agreement and the employment relationship at any time with or without Cause (as defined in Section 8.6) or reason, with or without prior notice, and without any obligation of severance or other payments. The terms and conditions of this Agreement do not create an employment contract for a definite or an implied term. Except as set forth in this Agreement or as otherwise required by law, any cause for discharge mentioned in this Agreement or in any document maintained by the Company (including, but not limited to, employment manuals or recruiting materials) shall not in any way limit the Companys right to discharge Executive or alter Executives at will status.
3. Compensation and Benefits. During his employment with the Company, Executive shall be entitled to the following compensation and benefits:
3.1 Base Salary. The Company agrees to pay to the Executive a base salary of $380,000.00 per annum. The Executives base salary as in effect from time to time is hereinafter referred to as the Annual Base Salary. The Companys Board may review and adjust Executives Annual Base Salary upwards, but not downwards, from time to time, in its discretion.
3.2 Bonus. The Executive will be entitled to such annual bonuses (Annual Bonus) as may be authorized by the Board based on achievement of performance targets specified annually by the Board. The Executives Annual Bonus amount will be 90% of Annual Base Salary if the target is achieved for the respective fiscal year, with greater or lesser amounts
paid for performance above and below target (such greater and lesser amounts to be determined by a formula established by the Board for that year when it established the targets and performance criteria for that year). The Annual Bonus shall be prorated for 2011.
The performance criteria for any particular calendar year shall be established by the Board no later than 90 days after the commencement of such calendar year (or, in the first calendar year of employment, within 90 days after Executives commencement of employment) and prompt notice thereof provided to Executive. Any Annual Bonus payable to the Executive hereunder shall be paid 100% in cash and shall be paid no later than 2 ½ months following the fiscal year with respect to which the bonus is earned.
3.3 Equity-Based Awards. The Executive may from time to time be awarded such restricted stock units, stock options, or other equity-based awards as the Board determines in its sole discretion to be appropriate, which awards shall be evidenced by separate award agreements. On April 4, 2011, the Executive shall be awarded, as an inducement grant outside of the CIBER, Inc. 2004 Incentive Plan (as amended and restated as of February 28, 2010), the following Initial Equity Grant: (i) options to purchase 600,000 shares of common stock which shall vest as set forth in the Form of Notice of Grant of Stock Options and Options Agreement attached hereto as Exhibit A which shall be dated April 4, 2011 and (ii) 150,000 restricted stock units which shall vest as set forth in the Form of Notice of Grant of Restricted Stock Units and Restricted Stock Units Agreement attached hereto as Exhibit B which shall be dated April 4, 2011.
3.4 Benefits In General. The Executive shall have the right to participate in any group life, medical, dental or disability insurance plans, health programs, pension and profit sharing plans and similar benefits that are made available to other senior executives of the Company generally, on the same or more favorable terms (as determined by the Board in its sole discretion) as may be made available to such other executives, in each case to the extent that the Executive is eligible under the terms of such plans or programs.
3.5 Vacation / Personal Days. The Executive shall be entitled to take vacation and/or personal days in accordance with the Companys human resources policies for senior executives.
3.6 Expenses - General. The Company shall pay or reimburse the Executive for all ordinary and reasonable out-of-pocket expenses actually incurred (and, in the case of reimbursement, paid) by the Executive in the performance of the Executives services under this Agreement, provided that the Executive submits such expenses in accordance with the policies applicable to senior executives of the Company generally.
3.7 Taxes. All compensation and benefits to Executive shall be reduced by all federal, state, local and other withholdings and similar taxes and payments required by applicable law. The Company may withhold amounts due it from amounts due under this Agreement to Executive.
4. Trade Secrets and Confidential Information.
4.1 Confidential Information and Trade Secrets. Executive acknowledges that confidential, proprietary and trade secret information and materials regarding the Company and its customers may be disclosed to Executive solely for the purpose of assisting Executive in performing Executives duties under this Agreement. Such information and materials are and remain the property of the Company and its customers respectively. As used in this Agreement, Confidential Information shall include without limitation all information belonging to the Company or its customers relating to their respective services and products, customers, identities of prospective customer and information such customers that is not generally known or available to the public, business plans, methods, strategies and practices, internal operations, pricing and billing, financial data, cost, personnel information (including without limitation names, educational background, prior experience and availability), customer and supplier contacts and needs, sales lists, technology, software, computer programs, other documentation, computer systems, inventions, developments, and all other information that might reasonably be deemed confidential. Confidential Information does not include information that is in the public domain through no wrongful act on the part of Executive. Trade Secrets means the whole or any portion of any scientific or technical information, design, process, procedure, formula, improvement, confidential business or financial information, listing of names, addresses, or telephone numbers, other information relating to any business or profession that is secret and of value, or any other information that qualifies as a trade secret under applicable law. Executive acknowledges that Executive may use such Confidential Information only during Executives employment with the Company and solely on behalf of and in or not opposed to the best interests of the Company. Executives right to use such information expires on termination of Executives employment hereunder. Except as specifically authorized in writing in advance by all owners of information and materials, Executive agrees not to use Trade Secrets and Confidential Information for Executives own benefit or for the benefit of any other person, or divulge to any person for any reason other than in the conduct of the Companys business, any such information and materials related to the business of the Company, any of its customers, or their customers, customers and affiliates, both at any time during the term of this Agreement and at any time after its termination. Executive agrees to take all reasonable actions, including those requested by the Company or a Company customer, to prevent disclosure and preserve the security of confidential information and materials.
4.2 Subpoena or Court Order. This Agreement shall not prohibit Executive from complying with any subpoena or court order, provided that Executive shall as promptly as reasonably practicable provide a copy of the subpoena or court order to the Companys General Counsel, it being the parties intention to give the Company a fair opportunity to take appropriate steps to prevent the unnecessary and/or improper use or disclosure of Trade Secrets and/or Confidential Information, as determined by the Company in its sole discretion.
4.3 No Contractual Limitations on Ability to Perform Services. Executive warrants and represents that Executive is not a party to any agreement that limits Executives right or ability to perform services for the Company, and that Executive otherwise is free to assume the duties with the Company contemplated by this Agreement. Executive shall not, during Executives employment with the Company, improperly use or disclose to the Company
or any Company employee, agent or contractor any proprietary information or trade secret belonging to any former employer of Executive or any other person or entity to which Executive owes a duty of nondisclosure.
5. Works for Hire. Executive agrees that during or after employment Executive will use his reasonable efforts to promptly inform and in writing disclose to the Company all copyrighted materials or programs, programs or materials known by him to be subject to being copyrighted, inventions, designs, improvements and discoveries (the Works), if any, which Executive has or may have made during Executives employment that pertain or relate to the business of the Company or a Company customer or to any research or experimental or developmental work carried on by the Company or a Company customer or which result from or are suggested by any work performed by Executive on behalf of the Company or any of its customers. All of such Works shall be works made for hire. All such Works are the property of the Company or a customer unless otherwise directed by the Company in writing. At the Companys or customers sole expense, the Executive shall assist in obtaining patents or copyrights on all such Works deemed patentable or subject to copyright by the Company or a Company customer and shall assign all of Executives right, title and interest, if any, in and to such Works and execute all documents and do all things necessary to obtain letters, patent or vest the Company or a Company customer with full and exclusive title thereto, and protect the same against infringement by others. Executive will not be entitled to additional compensation for any Works made during the course of Executives employment.
Notwithstanding the above, Executive is not required to assign to the Company any copyrighted materials or programs, programs or materials subject to being copyrighted, inventions, designs, improvements or discoveries for which no equipment, supplies, facility, or trade secret information of the Company or its customers was used and that was developed entirely on Executives own time, and at the time of conception (a) does not relate to the business of the Company or its customers, (b) does not relate to any actual or demonstrably anticipated research or development of the Company or its customers, or (c) does not result from any work performed by Executive for the Company or its customers.
6. Protection of the Companys Business.
6.1 No Solicitation of Employees. During employment with the Company and for one (1) year thereafter, whether the termination of employment was voluntary or involuntary, Executive will not: (a) induce, entice, hire or attempt to hire or employ any employee of the Company or employee of a Company subcontractor providing services for the Company on behalf of any individual or entity who provides the same or similar services, processes or products as the Company, (b) induce or attempt to induce any employee employed with the Company to leave the employ or cease doing business with the Company, or (c) knowingly assist or encourage any other individual or entity in doing any of the above-proscribed acts, within one (1) year of the termination of the employment or engagement of such individual or entity with the Company.
6.2 No Solicitation of Customers. Executive acknowledges and agrees that as a part of performing Executives duties, Executive will have access to Confidential Information and
Company Trade Secrets as defined in Section 4. Consequently, during employment with the Company and for a period of one (1) year after termination of such employment, whether such termination was with or without Cause, voluntary or involuntary, Executive will not, directly or indirectly, as a principal, company, partner, agent, consultant, independent contractor or employee (unless the Company grants him written authorization): (1) call upon, cause to be called upon, solicit or assist in the solicitation of, any customer or potential customer of the Company for the purpose of selling, renting or supplying any product or service competitive with the products or services of the Company; (2) provide any product or services to any customer or potential customer of the Company which is competitive with the products or services of the Company; or (3) enter into any business arrangement which is competitive to the products and services of the Company with any other person or firm who is or has been an executive, employee or subcontractor of the Company within the one (1) year period immediately preceding Executives termination. For purposes of this paragraph, potential customer means any customer to whom CIBER has made one or more documented sales or documented sales calls during the six (6) month period prior to the date of termination of Executives employment or any customer about whom Executive received Confidential Information during the twelve (12) month period to the date of termination of the Executives employment.
Executive specifically acknowledges and agrees that Executive will not become employed by any current or prospective customer of the Company for which Executive has or had responsibility while employed by the Company for a period of one (1) year after the date that Executive ceases employment with the Company.
7. Executive Representations. Executive warrants that all information provided by Executive (including without limitation resume, education, interview and references) in consideration for employment by the Company is true and accurate in all material respects. Executive shall inform the Company immediately should such a restriction or conflict arise. Executive understands that any material misstatement or lack of candor by Executive concerning Executives qualifications or availability may result in immediate discharge of Executive and may subject Executive to damages for any harm caused to the Company. Executive authorizes the Company to verify all information provided to the Company by Executive and agrees to sign a release authorizing former employers, educational institutions and other references to provide information to the Company if requested.
8. Termination of Employment.
8.1 Payment of Compensation. Upon the termination of Executives employment with the Company for any reason, whether voluntary or involuntary, Executive shall be paid all earned, unpaid Annual Base Salary through the date of termination, any benefits due to Executive upon termination in accordance with the plans and policies of the Company, accrued, unpaid vacation pay through the date of termination, and any reasonable and necessary business expenses incurred by Executive in connection with Executives duties to the date of termination, so long as such business expenses are timely submitted and subject to approval consistent with the Company policy (the Accrued Benefits). Nothing in this Section 8.1 shall limit any amounts owed to Executive under any other provision of Section 8.
8.2 Termination Without Cause and for Good Reason. If the Company terminates Executives employment for any reason or no reason (other than Cause) or Executive terminates his employment for Good Reason at any time, Executive shall receive a lump sum severance payment in an amount equal to (i) Accrued Benefits, (ii) a pro-rata Annual Bonus with respect to the calendar year in which the date of termination specified in the Companys or the Executives notice of termination, as applicable (the Effective Date of Termination) occurred to the extent performance goals related to the bonus have been achieved (to be paid at the same time annual bonuses are normally paid for the year), and (iii) a cash payment equal to one (1) times the Executives Annual Base Salary and Annual Bonus at target level in effect on the day of termination.
Upon termination (i) Executive will also receive the cost of Consolidated Omnibus Budget Reconciliation Act of 1986, as amended (COBRA) coverage under the Companys group health plan for Executive and the members of his family who are covered under the Companys group health plan immediately prior to the termination of the Employees employment with the Company for eighteen (18) months, (ii) all unvested equity awards that are scheduled to vest within one (1) year following Executives Effective Date of Termination held by the Executive shall fully vest, (iii) all vested equity awards must be exercised by the Executive by the earlier of (A) the date such cease to be exercisable after a termination of service in accordance with the terms of the CIBER 2004 Incentive Plan as amended and any successor plan and (B) the expiration date of the equity award and (iv) this Agreement shall otherwise terminate upon the Effective Date of the Termination and the Executive shall have no further rights hereunder, but shall remain bound by Executives obligations in Sections 4, 5 and 6 of this Agreement and the Company shall remain bound by its obligations in this Section 8.2 until it has paid all amounts set forth in this Section 8 to Executive. In order for the Executive to receive any amounts or items in this Section 8, the Executive shall first execute a mutual release of claims in accordance with Section 8.8.
8.3 Termination upon Death or Disability. If the Executive dies during the Term, the obligations of the Company to or with respect to the Executive shall terminate in their entirety, except as otherwise provided under this Section 8. If the Executive becomes eligible for disability benefits under the Companys long-term disability plans and arrangements (or, if none apply, would have been so eligible under the most recent plan or arrangement), the Company shall have the right, to the extent permitted by law, to terminate the employment of the Executive solely as a result of such disability upon notice in writing to the Executive and such termination in and of itself shall not be, nor shall it be deemed to be, a breach of this Agreement; provided that, the Company will have no right to terminate the Executives employment if, in the opinion of a qualified physician agreed to by the Company and Executive, it is reasonable to assume that the Executive will be able to resume the Executives duties on a regular full-time basis within 90 days of the date the Executive receives notice of such termination.
Upon death of the Executive or upon termination of the Executives employment by virtue of his qualification for long-term disability the Executive (or the Executives estate or beneficiaries in the case of the death of the Executive) shall receive (i) Annual Base Salary earned and unpaid under this Agreement prior to the date of death or the date on which a notice of termination by virtue of Executives qualification for long-term disability is given by the
Company or any later date set forth in such notice of termination (Death or Disability Effective Date of the Termination), (ii) a pro-rata Annual Bonus with respect to the calendar year in which the Death or Disability Effective Date of Termination occurred to the extent performance goals related to the Annual Bonus have been achieved (to be paid at the same time annual bonuses are normally paid for the year), and (iii) other benefits (and reimbursement under this Agreement for expenses incurred but not paid prior to the Death or Disability Effective Date of the Termination). In addition, as pertains to equity awards, (i) all unvested equity awards held by the Executive (other than the Initial Equity Grant) shall vest proportionately through the Death or Disability Effective Date of the Termination; provided, however, that if the equity awards are subject to performance vesting requirements, such vesting will only occur to the extent the performance goals for any pending bonus period(s) are subsequently determined to have been achieved, (ii) the unvested portion of the Initial Equity Grant (the Unvested Initial Grant Portion) shall vest based upon the following formula: the Unvested Initial Grant Portion times the Pro-Rata Vesting Percentage (as defined below), and (iii) all vested equity awards (including the vested portion of the Initial Equity Grant) must be exercised by the earlier of (A) the one-year anniversary of the Death or Disability Effective Date of the Termination, and (B) the expiration date of the equity award. The Pro-Rata Vesting Percentage means the number of days elapsed between the prior Scheduled Vesting Date and the Death or Disability Effective Date of the Termination divided by the number of days occurring between the prior Scheduled Vesting Date and the Final Vesting Date. In the event of a termination of the Executives employment as a result of his qualification for long-term disability, in addition to the amount specified in the first sentence of this paragraph, the Executive will also be entitled to receive disability benefits under the Companys then existing long-term disability plans and arrangements. This Agreement shall otherwise terminate upon the Death or Disability Effective Date of the Termination and there shall be no further rights with respect to the Executive hereunder (except as provided in Section 18).
8.4 Return of Materials. Upon the termination of Executives employment with the Company, whether voluntary or involuntary, Executive will personally and promptly return to a Company representative all equipment, documents, records, notebooks, disks, or other materials, including all copies, in Executives possession or control which contain Confidential Information of the Company or its customers or any other information concerning the Company, its products, services, or customers, whether prepared by the Executive or others. Executive understands and agrees that compliance with this paragraph may require that data be removed from Executives personal computer equipment.
8.5 Termination upon Change in Control.
(a) If the Company terminates Executives employment for any reason or no reason (other than Cause) or Executive terminates his employment for Good Reason within the twelve (12) months after a Change in Control, the Executive shall receive a lump sum severance payment in an amount equal to (i) Accrued Benefits, (ii) a pro-rata Annual Bonus with respect to the calendar year in which the Effective Date of Termination occurred to the extent performance goals related to the Annual Bonus have been achieved (to be paid at the same time annual bonuses are normally paid for the year), and (iii) a cash payment equal to eighteen (18) months
of the Executives Annual Base Salary and Annual Bonus at target level in effect on the Effective Date of Termination.
Upon termination (i) Executive will also receive the cost of COBRA coverage under the Companys group health plan for Executive and the members of his family who are covered under the Companys group health plan immediately prior to the termination of the Employees employment with the Company eighteen (18) months, (ii) all unvested equity awards held by the Executive shall fully vest, (iii) all vested equity awards must be exercised by the Executive by the earlier of (A) the one-year anniversary of the Effective Date of the Termination and (B) the expiration date of the equity award, and (iv) this Agreement shall otherwise terminate upon the Effective Date of the Termination and the Executive shall have no further rights hereunder, but shall remain bound by Executives obligations in Sections 4, 5 and 6 of this Agreement) and the Company shall remain bound by its obligations in this Section 8 until it has paid all amounts set forth in this Section 8 to Executive. In order for the Executive to receive any amounts or items in this Section 8.5, the Executive shall first execute a mutual release of claims in accordance with Section 8.8.
(b) A Change in Control shall mean the occurrence of any of the following events:
(i) any person (as such term is used in Sections 3(a)(9) and 13(d) of the Securities Exchange Act of 1934 as amended (the Act)) or group (as such term is used in Section 13(d)(3) of the Act) is or becomes a beneficial owner (as such term is used in Rule 13d-3 promulgated under the Act) of more than 40% of the Voting Stock (as defined in Section 8.5(b)(v) below) of the Company;
(ii) within any 24 month period the majority of the Board consists of individuals other than Incumbent Directors, which term means the members of the Board on the date hereof; provided that any person becoming a director subsequent to such date whose election or nomination for election was supported by a majority of the directors who then comprised the Incumbent Directors shall be considered to be an Incumbent Director;
(iii) the Company adopts any plan of liquidation providing for the distribution of all or substantially all of its assets;
(iv) the Company transfers all or substantially all of its assets or business (unless the shareholders of the Company immediately prior to such transaction beneficially own, directly or indirectly, in substantially the same proportion as they owned the Voting Stock of the Company, all of the Voting Stock or other ownership interests of the entity or entities, if any, that succeed to the business of the Company or the Companys ultimate parent company if the Company is a subsidiary of another corporation); or
(v) any merger, reorganization, consolidation or similar transaction unless, immediately after consummation of such transaction, the shareholders of the Company immediately prior to the transaction hold, directly or indirectly, more than 50% of the Voting Stock of the Company or the Companys ultimate parent company if the Company is a subsidiary of another corporation.
For purposes of this Change in Control definition, the Company shall include any entity that succeeds to all or substantially all of the business of the Company and Voting Stock shall mean securities or ownership interests of any class or classes having general voting power under ordinary circumstances, in the absence of contingencies, to elect the directors of a the Company.
Notwithstanding anything to the contrary herein, if (i) a Change in Control results in a successor organization to the Company and (ii) such successor organization does not assume, convert or replace all of the Executives unvested equity awards, then all such unvested equity awards shall fully vest effective as of the date of such Change in Control.
(c) In the event Executive becomes entitled to any amount of benefits payable in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) (the Change in Control Payments) and Executives receipt of such Change in Control Payments would cause Executive to become subject to the excise tax (the Excise Tax) imposed under Section 4999 of the Internal Revenue Code (or any similar federal, state, or local tax that may hereafter be imposed), the Company shall reduce the Change in Control Payments to the extent necessary to avoid the application of the Excise Tax if, as a result of such reduction, the net benefits to Executive of the Change in Control Payments as so reduced (after payment of applicable income taxes) exceeds the net benefit to Executive of the Change in Control Payments without such reduction (after payment of applicable income taxes and excise taxes). In the event that the Payments are to be reduced pursuant to this Section 8.5(c), such Payments shall be reduced such that the reduction of compensation to be provided to Executive as a result of this Section 8.5(c) is minimized. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Internal Revenue Code Section 409A and the Treasury Regulations promulgated thereunder (Section 409A) and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis (but not below zero). Any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executives rights and entitlements to any benefits or compensation. The determination that Executives Change in Control Payments would cause him to become subject to the Excise Tax and the calculation of the amount of any reduction, shall be made, at the Companys discretion, by the Companys outside auditing firm or by a nationally-recognized accounting or benefits consulting firm designated by the Company prior to a change in control. The firms expenses shall be paid by the Company.
In the event that Executive becomes entitled to receive any amounts or items under this Section 8.5, Executive shall not be entitled to receive any amounts of items under Section 8.2 of this Agreement.
8.6 Termination for Cause.
For purposes of this Agreement, Cause shall mean:
(i) the Executive being indicted or charged with a crime constituting a felony;
(ii) the Executives commission of an act of fraud, theft or dishonesty with respect to the Company;
(iii) the continuing failure or habitual neglect by the Executive to perform the Executives duties hereunder;
(iv) any material violation of the Companys announced policies including without limitation, the Companys Code of Business Conduct and Ethics (as may be amended and published from time to time); or
(v) the Executives material breach of this Agreement.
Notwithstanding the foregoing, (X) if there exists (without regard to this sentence) an event or condition that constitutes Cause under clauses (iii), (iv) or (v) above that is capable of being cured by the Executive, the Board shall notify the Executive in writing of the existence of such event or condition and the Executive shall have thirty (30) days from the date of such notice to cure such event or condition and, if the Executive does so, such event or condition shall not constitute Cause hereunder and (Y) any determination of the existence of an event or condition that constitutes Cause shall be made by at least 2/3 of the members of the Board (excluding the Executive).
The Companys notice of termination for Cause shall state the date of termination and identify the grounds upon which the termination is based.
8.7 Definition of Good Reason. For purposes of this Agreement, Good Reason shall mean the termination of Executives employment at his initiative following the occurrence, without Executives written consent, of one or more of the following events:
(i) the assignment to the Executive of duties or responsibilities which are materially inconsistent with the Executives level of duties and responsibilities as the Executive Vice President and Chief Financial Officer and Treasurer of the Company and its subsidiaries, or any material diminution in the nature or status of the Executives duties or responsibilities as the Executive Vice President and Chief Financial Officer and Treasurer of the Company and its subsidiaries (including, without limitation, the Executive ceasing to be Executive Vice President and Chief Financial Officer and Treasurer of the Company and its subsidiaries);
(ii) a reduction by the Company in the Executives Annual Base Salary or annual incentive compensation opportunity (including an adverse change in performance criteria or a decrease in the target amount of annual incentive compensation);
(iii) requirement by the Company that the Executives work location be moved more than 50 miles from the Companys principal place of business in Greenwood Village, Colorado; or
(iv) the Companys material and willful breach of this Agreement.
In the case of Executives allegation of Good Reason, (i) Executive shall provide written notice to the Company of the event alleged to constitute Good Reason within 30 days after the initial occurrence of such event, and (ii) the Company shall have the opportunity to remedy the alleged Good Reason event within 30 days from receipt of notice of such allegation (the Cure Period). If not remedied within the Cure Period, Executive may submit a written notice of termination, provided that the notice of termination must be given no later than 90 days after the expiration of the Cure Period; otherwise, Executive is deemed to have accepted such event, or the Companys remedy of such event, that may have given rise to the existence of Good Reason; provided, however, such acceptance shall be limited to the occurrence of such event and shall not waive Executives right to claim Good Reason with respect to future similar events.
An event or condition shall cease to constitute Good Reason on hundred twenty (120) days after the event or condition first occurs if the Executive has not previously given written notice thereof.
8.8 Release for Severance Benefits. The Executive agrees that Executives receipt of the compensation and benefits outlined in Sections 8.2 and 8.5 (the Severance Benefits) shall be in lieu of all other claims that the Executive may make by reason of any such termination of his employment and that, as a condition to receiving the Severance Benefits, the Executive will execute a mutual release of claims attached hereto as Exhibit C. On the Effective Date of Termination, the Company shall deliver to the Executive an executed release for the Executive to counter-execute. The Executive will forfeit all rights to the Severance Benefits, unless the Executive executes and delivers to the Company the release within 30 days of delivery of the release by the Company to the Executive. The Release Effective Date shall be the earlier of (i) the date on which the Executive executes the mutual release of claims, or (ii) the sixth business day after the Effective Date of Termination if the Company has failed to deliver to Executive the mutual release of claims executed by the Company. The Company shall have no obligation to provide the Severance Benefits prior to the Release Effective Date. All lump sum severance payments due pursuant to this Agreement shall be payable on the 30th day following the Effective Date of Termination (or on the next business day, if the 30th day is a weekend day or a holiday). Notwithstanding anything in this Agreement to the contrary, the payment of the Accrued Benefits is not subject to Executives execution of a mutual release of claims and shall be paid on the Effective Date of Termination. If the Executive fails to comply with his obligations under Sections 4 through Section 6, the Executive shall, to the extent such amounts are paid, vested or distributed, (i) forfeit outstanding equity awards, (ii) transfer the shares underlying equity awards that were accelerated and settled in shares to the Company for no consideration and (iii) repay the after-tax amount of the Severance Payment, the after-tax amount of the sum paid under Section 8.
8.9 Limitations Under Code Section 409A.
(i) If at the time of Executives separation from service, (i) Executive is a specified employee (within the meaning of Section 409A and using the identification methodology selected by the Company from time to time), and (ii) the Company makes a good faith determination that an amount payable hereunder constitutes deferred compensation (within the meaning of Section 409A) the payment of which is required to be delayed pursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under
Section 409A, then the Company will not pay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on the on the date that is the earliest of: (A) the first business day after such six-month period, together with interest for the period of delay, compounded annually, equal to the prime rate (as published in the Wall Street Journal) in effect as of the dates the payments should otherwise have been provided, (B) the Executives date of death, or (C) such other date on which such payment will not be subject to such interest and additional tax.
(ii) It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this agreement with the goal of giving Executive the economic benefits described herein in a manner that does not result in such tax being imposed.
(iii) With respect to payments under this agreement, for purposes of Section 409A of the Code of 1986, each severance payment and COBRA continuation reimbursement payment will be considered one of a series of separate payments.
(iv) Executive will be deemed to have a termination of employment for purposes of determining the timing of any payments that are classified as deferred compensation only upon a separation from service within the meaning of Section 409A.
(v) Any amount that Executive is entitled to be reimbursed under this agreement will be reimbursed to Executive as promptly as practical and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred, and the amount of the expenses eligible for reimbursement during any calendar year will not affect the amount of expenses eligible for reimbursement in any other calendar year.
(vi) If on the due date for any payment pursuant to Section 8, all revocation periods with respect to the release have not yet expired, such payment will not be made until such revocation period has expired and if such revocation period has not expired by the end of the calendar year in which the payment would have otherwise been made, the payment shall be forfeited.
(vii) The portion of any payment under this Agreement that would constitute a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4),would meet the requirements for separation pay due to involuntary separation from service under Treasury Regulation Section 1.409A-1(b)(9)(iii), or would otherwise be exempt from Section 409A shall be treated as a separately identified and determinable amount for purposes of Section 409A.
9. Remedies for Breach. Executive acknowledges that any material violation of this Agreement may subject Executive to a claim for money damages by the Company for any and all losses sustained by the Company as a result of such breach including losses resulting from the unauthorized release of any Confidential Information. Executive recognizes that the Companys remedies at law may be inadequate and that the Company shall have the right to seek injunctive relief in addition to any other remedy available to it. If Executive materially breaches this agreement or any of the covenants contained herein, the Company has the right to and will seek,
issuance of a court-ordered injunction as well as any and all other remedies and damages, to compel the enforcement of the terms stated herein. If injunctive relief is ordered by a court, Executive shall be responsible for the Companys attorneys fees and court costs.
10. Indemnity. The Company shall indemnify and hold harmless the Executive, to the fullest extent permitted by the General Corporation Law of the State of Delaware, for any acts or omissions taken or made by the Executive during his employment with the Company, within the scope of his authority under this Agreement. This indemnification shall be in addition to, and not in derogation of, and rights to indemnification and advancement under the Companys Certificate of Incorporation, Bylaws, or otherwise.
11. Assignment. Executive may not transfer, assign or delegate Executives duties and obligations under this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns. The Company may assign its rights under this Agreement to an affiliate, and an affiliate may assign its rights under this Agreement to another affiliate of the Company or to the Company; provided, however, that no assignment shall be made if the net worth of the assignee is less than the net worth of the Company at the time of assignment. In the case of any such assignment, the term Company when used in a section of this Agreement shall mean the corporation that actually employs Executive.
12. Construction of Agreement. Executive acknowledges and agrees that the restrictions on Executives employment and the geographical restrictions hereby imposed are fair and reasonable and are reasonably required for the protection of the Company. Executive further acknowledges and agrees that the restrictions in Paragraphs 4 through 6 are reasonable and necessary for the protection of the Companys confidential information and trade secrets. If any part of this Agreement is held unenforceable or invalid, the remaining parts thereof shall continue to be enforceable. If the provisions imposing geographic or time restrictions are deemed unenforceable by a court of competent jurisdiction, then such provisions for the purposes of this Agreement shall include the maximum geographic area or time period which a court of competent jurisdiction determines to be reasonable, valid and enforceable. To the extent that the court permits blue-penciling, the parties to this Agreement intend that the court will take all action necessary to revise this Agreement so as to create a binding and enforceable Agreement.
13. Notices. All notices shall be sent by registered mail, courier, or hand delivered to the addresses on the signature page.
14. Resolution of Disputes. Executive agrees that any claim, controversy or dispute that arises directly or indirectly in connection with Executives employment or termination of employment with the Company or any associated or related disputes involving the Company and any Executive, director, officer or agent of the Company, whether arising in contract, statute, tort, fraud, misrepresentation, discrimination, common law or any other legal theory, including but not limited to, disputes relating to the making, performance or interpretation of this Agreement, and claims or other disputes arising under Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as amended; 42 U.S.C. §1981, §1981a, §1983, §1985 or §1988; the Family and Medical Leave
Act of 1993; the Americans with Disabilities Act of 1990, as amended; the Rehabilitation Act of 1973, as amended; the Fair Labor Standards Act of 1938, as amended; the Executive Retirement Income Security Act of 1974, as amended (ERISA); state anti-discrimination acts; or any other similar federal, state or local law or regulation, whenever brought, shall be brought in a state or federal court of competent jurisdiction. Nothing herein excuses Executive from his/her duty to exhaust administrative remedies, where such a duty exists, prior to filing suit. By signing this AGREEMENT, Executive voluntarily, knowingly and intelligently waives any right Executive may have to a jury trial. CIBER also hereby voluntarily, knowingly, and intelligently waives any right it might otherwise have to a jury trial.
15. Choice of Law. This Agreement shall be interpreted and construed in accordance with the laws of the state of Colorado without regard to its conflicts of law provisions.
16. Amendments. No modification or waiver of the provisions of this Agreement will be effective against either party unless given in writing signed by an authorized representative of the Company and by Executive.
17. Waiver. No delay or failure by a party in exercising any right, power or privilege under this Agreement or under any other instruments given in connection with or pursuant to this Agreement shall impair a such right, power or privilege or be construed as a waiver of or acquiescence in any default. No single or partial exercise of any such right, power or privilege shall preclude the further exercise of such right, power or privilege, or the exercise of any other right, power or privilege.
18. Survival. Anything contained in this Agreement to the contrary notwithstanding, the provisions of Sections 4 through 6 and Section 8 shall survive termination of this Agreement and any termination of the Executives employment hereunder.
19. Duty to Cooperate. Executive agrees to fully cooperate with the Company at the Companys expense in connection with any legal or business matter relating to the services provided by Executive under this Agreement.
20. No Duty to Mitigate. The Executive shall not be required to mitigate damages or the amount of any payment provided for under this Agreement by seeking other employment or otherwise, nor will any payments hereunder be subject to offset in the event Executive does mitigate.
21. Legal Expenses. Expenses in connection with this Agreement. The Company shall reimburse Executive for up to $7,000.00 of his reasonable and documented out-of pocket expenses in connection with the negotiation and execution of this Agreement.
22. Headings. Headings for the paragraphs herein are for convenience only and shall not be construed in interpreting this Agreement.
23 Entire Agreement. This Agreement is the entire agreement between the Parties. This Agreement supersedes any and all prior agreements and cannot be modified except in writing signed by the parties.
IN WITNESS WHEREOF, the parties hereto have set their hands on the date and year first written above.
CIBER, INC. |
EXECUTIVE | |||
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BY: |
/s/ David C. Peterschmidt |
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BY: |
/s/ Claude J. Pumilia |
Printed Name: David C. Peterschmidt |
Printed Name: Claude J. Pumilia | |||
Title: President and Chief Executive Officer |
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Address: |
Address: | |||
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6363 South Fiddlers Green Circle, Suite 1400 |
[Street Address] | |||
Greenwood Village, CO 80111 |
[City, State, Zip] | |||
303-220-0100 |
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Exhibit A
FORM OF |
CIBER, Inc. |
NOTICE OF GRANT OF STOCK OPTIONS AND OPTION AGREEMENT |
ID: 38-2046833 |
6363 South Fiddlers Green Circle | |
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Suite 1400 |
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Greenwood Village, CO 80111 |
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Claude J. Pumilia |
Option Number: |
[Address] |
ID: |
Effective [April , 2011] (the Effective Date), you have been granted a non-qualified stock option (the Option) to buy 600,000 shares of CIBER, Inc. (the Company) common stock (the Stock).
The Option shall vest beginning six months from the Effective Date and continuing thereafter on a monthly basis over a four (4) year period. The Option shall expire seven (7) years from the Effective Date as follows:
Shares |
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Vest Type |
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Vest Date |
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Expiration |
14286 |
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Monthly |
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October , 2011 |
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April , 2018 |
14286 |
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Monthly |
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November , 2011 |
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April , 2018 |
14286 |
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Monthly |
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December , 2011 |
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April , 2018 |
14286 |
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Monthly |
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January , 2012 |
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April , 2018 |
14286 |
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Monthly |
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February , 2012 |
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April , 2018 |
14286 |
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Monthly |
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March , 2012 |
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April , 2018 |
14286 |
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Monthly |
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April , 2012 |
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April , 2018 |
14286 |
|
Monthly |
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May , 2012 |
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April , 2018 |
14286 |
|
Monthly |
|
June , 2012 |
|
April , 2018 |
14286 |
|
Monthly |
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July , 2012 |
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April , 2018 |
14286 |
|
Monthly |
|
August , 2012 |
|
April , 2018 |
14286 |
|
Monthly |
|
September , 2012 |
|
April , 2018 |
14286 |
|
Monthly |
|
October , 2012 |
|
April , 2018 |
14286 |
|
Monthly |
|
November , 2012 |
|
April , 2018 |
14286 |
|
Monthly |
|
December , 2012 |
|
April , 2018 |
14286 |
|
Monthly |
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January , 2013 |
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April , 2018 |
14286 |
|
Monthly |
|
February , 2013 |
|
April , 2018 |
14286 |
|
Monthly |
|
March , 2013 |
|
April , 2018 |
14286 |
|
Monthly |
|
April , 2013 |
|
April , 2018 |
14286 |
|
Monthly |
|
May , 2013 |
|
April , 2018 |
14286 |
|
Monthly |
|
June , 2013 |
|
April , 2018 |
14286 |
|
Monthly |
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July , 2013 |
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April , 2018 |
14286 |
|
Monthly |
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August , 2013 |
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April , 2018 |
14286 |
|
Monthly |
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September , 2013 |
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April , 2018 |
14286 |
|
Monthly |
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October , 2013 |
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April , 2018 |
14286 |
|
Monthly |
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November , 2013 |
|
April , 2018 |
14286 |
|
Monthly |
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December , 2013 |
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April , 2018 |
14286 |
|
Monthly |
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January , 2014 |
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April , 2018 |
14286 |
|
Monthly |
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February , 2014 |
|
April , 2018 |
14286 |
|
Monthly |
|
March , 2014 |
|
April , 2018 |
14285 |
|
Monthly |
|
April , 2014 |
|
April , 2018 |
14285 |
|
Monthly |
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May , 2014 |
|
April , 2018 |
14285 |
|
Monthly |
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June , 2014 |
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April , 2018 |
14285 |
|
Monthly |
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July , 2014 |
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April , 2018 |
14285 |
|
Monthly |
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August , 2014 |
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April , 2018 |
14285 |
|
Monthly |
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September , 2014 |
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April , 2018 |
14285 |
|
Monthly |
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October , 2014 |
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April , 2018 |
14285 |
|
Monthly |
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November , 2014 |
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April , 2018 |
14285 |
|
Monthly |
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December , 2014 |
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April , 2018 |
14285 |
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Monthly |
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January , 2015 |
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April , 2018 |
14285 |
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Monthly |
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February , 2015 |
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April , 2018 |
14285 |
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Monthly |
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March , 2015 |
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April , 2018 |
CIBER, INC.
NON-QUALIFIED OPTION AGREEMENT
Option Price |
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The Option Price shall be the fair market value of the Stock on the Effective Date as determined by reference to the closing price of the Stock on the New York Stock Exchange on the day immediately prior to the Effective Date. |
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Non-qualified Option |
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This Agreement evidences an award of the Option exercisable for that number of shares of Stock set forth on the cover sheet and subject to the vesting and other conditions set forth herein and on the cover sheet. This Option is not intended to be an incentive option under Section 422 of the Internal Revenue Code and will be interpreted accordingly. |
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Transfer of Option |
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During your lifetime, only you (or, in the event of your legal incapacity or incompetency, your guardian or legal representative) may exercise the Option. You cannot transfer or assign this Option. For instance, you may not sell this Option or use it as security for a loan. If you attempt to do any of these things, this Option will immediately become invalid. You may, however, dispose of this Option in your will or it may be transferred upon your death by the laws of descent and distribution. |
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Regardless of any marital property settlement agreement, the Company is not obligated to honor a notice of exercise from your spouse, nor is the Company obligated to recognize your spouses interest in your Option in any other way. |
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Vesting |
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This Option is only exercisable before it expires and then only with respect to the vested portion of the Option. Subject to the preceding sentence, you may exercise this Option, in whole or in part, to purchase a whole number of vested shares not less than 100 shares, unless the number of shares purchased is the total number available for purchase under the Option, by following the procedures set forth below in this Agreement. |
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Your right to purchase shares of Stock under this Option vests according to the schedule set forth on the cover sheet provided that you continue to provide services to the Company or an Affiliate as an employee, officer or director, or a consultant or adviser (Service). Your employment agreement with the Company dated March 7, 2011 (the Employment Agreement) sets forth the circumstances in which vesting of the Option will be accelerated, either partially or fully. The resulting aggregate number of vested shares will be |
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rounded to the nearest whole number, and you cannot vest in more than the number of shares covered by this Option. |
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Affiliate means, any company or other trade or business that controls, is controlled by or is under common control with the Company within the meaning of Rule 405 of Regulation C under the Securities Act, including, without limitation, any Subsidiary. An entity may not be considered an Affiliate unless the Company holds a controlling interest in such entity, where the term controlling interest has the same meaning as provided in Treasury Regulation 1.414(c)-2(b)(2)(i), provided that the language at least 50 percent is used instead of at least 80 percent and, provided further, that where granting of stock options is based upon a legitimate business criteria, the language at least 20 percent is used instead of at least 80 percent each place it appears in Treasury Regulation 1.414(c)-2(b)(2)(i). |
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Subsidiary means any subsidiary corporation of the Company within the meaning of Section 424(f) of the Code. |
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Forfeiture of Unvested Options / Term |
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Unless the termination of your Service triggers accelerated vesting of your Option pursuant to the terms of this Agreement or any other written agreement between the Company (or any Affiliate) and you, including the Employment Agreement, you will automatically forfeit to the Company those portions of the Option that have not yet vested in the event your Service terminates for any reason. |
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Expiration of Vested Options After Service Terminates |
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Your Option will expire on the Expiration Date shown on the cover sheet. Your Option will expire earlier if your Service terminates, as described in the Employment Agreement. |
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Forfeiture of Rights |
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If you should take actions in violation or breach of or in conflict with any non-competition agreement, any agreement prohibiting solicitation of employees or clients of the Company or any Affiliate thereof or any confidentiality obligation with respect to the Company or any Affiliate thereof, the Company has the right to cause an immediate forfeiture of your rights to this Option awarded under this Agreement, and the Option shall immediately expire. |
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Leaves of Absence |
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For purposes of this Agreement, your Service does not terminate when you go on a bona fide employee leave of absence that was approved by the Company in writing if the terms of the leave provide for continued service crediting, or when continued service crediting is required by applicable law. Your Service terminates in any event when the approved leave ends unless you immediately return to active employee work. |
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The Company determines, in its sole discretion, which leaves count for this purpose. | |
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Notice of Exercise |
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The method for exercising the Option shall be by delivery to the Corporate Secretary of the Company or an agent designated pursuant to Brokerage Arrangements below of a notice specifying the number of shares of Stock with respect to which the Option is exercised and payment of the Option Price. Such notice shall be in a form satisfactory to the Company and shall specify the number of shares of Stock with respect to which the Option is being exercised. The exercise of the Option shall be deemed effective upon receipt of such notice by the Corporate Secretary or a designated agent and payment to the Company. The purchase of such Stock shall be deemed to take place at the principal office of the Company upon delivery of such notice, at which time the purchase price of the Stock shall be paid in full by any of the methods or any combination of the methods set forth in Form of Payment below. A properly executed certificate or certificates representing the Stock shall be issued by the Company and delivered to you. If certificates representing Stock are used to pay all or part of the Option Price, separate certificates for the same number of shares of Stock shall be issued by the Company and delivered to you representing each certificate used to pay the Option Price, and an additional certificate shall be issued by the Company and delivered to you representing the additional shares of Stock, in excess of the Option Price, to which you are entitled as a result of the exercise of the Option. | |
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If someone else wants to exercise this Option after your death, that person must prove to the Companys satisfaction that he or she is entitled to do so. | |
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Brokerage Arrangements |
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The Company, in its discretion, may enter into arrangements with one or more banks, brokers or other financial institutions to facilitate the exercise of the Option or the disposition of shares of Stock acquired upon exercise of the Option, including, without limitation, arrangements for the simultaneous exercise of the Option and sale of the shares of Stock acquired upon such exercise. | |
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Form of Payment |
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The Option Price shall be paid by any of the following methods or any combination of the following methods: | |
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in cash; |
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by cashiers check payable to the order of the Company; |
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if authorized by the Company, in its sole discretion, by delivery to the Company of certificates representing the number of shares of Stock then owned by you, the Fair Market Value of which equals the purchase price of the Stock purchased pursuant to the Option, properly endorsed for transfer to the Company; provided however, that shares of Stock used for this purpose must have been held by you for more than six months; and provided further that the Fair Market Value of any shares of Stock delivered in payment of the purchase price upon exercise of the Option shall be the Fair Market Value as of the exercise date, which shall be the date of delivery of the certificates for the Stock used as payment of the Option Price; or |
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if authorized by the Company, in its sole discretion, any combination of these methods. |
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Evidence of Issuance |
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The issuance of the shares upon exercise of this Option shall be evidenced in such a manner as the Company, in its discretion, will deem appropriate, including, without limitation, book-entry, registration or issuance of one or more share certificates. You will have no further rights with regard to an Option once the share of Stock related to such Option has been issued. | |
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Withholding Taxes |
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You will not be allowed to exercise this Option unless you make acceptable arrangements to pay any withholding or other taxes that may be due as a result of the option exercise or sale of Stock acquired under this Option. In the event that the Company determines that any tax or withholding payment is required relating to the exercise or sale of shares arising from this grant under applicable laws, the Company shall have the right to require such payments from you, or withhold such amounts from other payments due to you from the Company or any Affiliate. | |
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Retention Rights |
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Neither your Option nor this Agreement gives you the right to be retained by the Company (or any parent, Subsidiaries or Affiliates) in any capacity. Subject to the Employment Agreement, the Company (and any parent, Subsidiaries or Affiliates) reserve the right to terminate your Service at any time and for any reason. | |
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Stockholder Rights |
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You, or your estate or heirs, have no rights as a shareholder of the Company until the Stock has been issued upon exercise of your Option and either a certificate evidencing your Stock has been issued or an appropriate entry has been made on the Companys books. No adjustments are made for dividends, distributions or other rights if the applicable record date occurs before your certificate is issued (or an |
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appropriate book entry is made). |
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Adjustments |
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In the event of a stock split, a stock dividend or a similar change in the Stock, the number of shares covered by this Option and the Option Price per share shall be adjusted proportionately (and rounded down to the nearest whole number). Your Option shall be subject to the terms of the agreement of merger, liquidation or reorganization in the event the Company is subject to such corporate activity. |
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Applicable Law |
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This Agreement will be interpreted and enforced under the laws of the State of Colorado, other than any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. |
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The Agreement |
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This Agreement and the associated cover sheet constitute the entire understanding between you and the Company regarding this Option. Any agreements, commitments or negotiations concerning this grant are superseded; except that any written employment (including the Employment Agreement), consulting, confidentiality, non-competition and/or severance agreement between you and the Company (or any Affiliate), whether entered into before or after this Agreements effective date, shall supersede this Agreement with respect to its subject matter, provided that no such superseding shall result in a failure to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (Section 409A). |
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Data Privacy |
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The Company may process personal data about you. Such data includes, but is not limited to, information provided in this Agreement or the cover sheet and any changes thereto, other appropriate personal and financial data about you such as your contact information, payroll information and any other information that might be deemed appropriate by the Company to facilitate the administration of the Agreement. |
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By accepting this grant, you give explicit consent to the Company to process any such personal data. |
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Code Section 409A |
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It is intended that this award comply with Section 409A or an exemption to Section 409A. To the extent that the Company determines that you would be subject to the additional 20% tax imposed on certain non-qualified deferred compensation plans pursuant to Section 409A as a result of any provision of this Agreement, such provision shall be deemed amended to the minimum extent necessary to avoid application of such additional tax. The nature of any such amendment shall be determined by the Company. For purposes of this award, a termination of Service only occurs upon |
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an event that would be a Separation from Service within the meaning of Section 409A. |
IN WITNESS WHEREOF, the parties hereto have signed their names as of the day and year first above written.
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CIBER, INC. | |
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By: |
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Name: |
David C. Peterschmidt |
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Title: |
President and Chief Executive Officer |
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Claude J. Pumilia |
Exhibit B
FORM OF |
CIBER, Inc. |
NOTICE OF GRANT OF RESTRICTED STOCK UNITS |
ID: 38-2046833 |
AND RESTRICTED STOCK UNITS AGREEMENT |
6363 South Fiddlers Green Circle |
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Suite 1400 |
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Greenwood Village, CO 80111 |
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Claude J. Pumilia |
Grant Number: |
[Address] |
ID: |
Effective [April , 2011] (the Effective Date), you have been granted 150,000 restricted stock units (the Restricted Stock Units) of CIBER, Inc. (the Company) common stock (the Stock).
The Restricted Stock Units award shall vest beginning six months from the Effective Date and continuing thereafter on a quarterly basis over a four (4) year period as follows:
Shares |
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Vest Type |
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Vest Date |
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Vest Type |
10,000 |
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Quarterly |
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[ ] |
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(6 months from Effective Date) |
10,000 |
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Quarterly |
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[ ] |
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(9 months from Effective Date) |
10,000 |
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Quarterly |
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[ ] |
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(12 months from Effective Date) |
10,000 |
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Quarterly |
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[ ] |
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(15 months from Effective Date) |
10,000 |
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Quarterly |
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[ ] |
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(18 months from Effective Date) |
10,000 |
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Quarterly |
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[ ] |
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(21 months from Effective Date) |
10,000 |
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Quarterly |
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[ ] |
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(24 months from Effective Date) |
10,000 |
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Quarterly |
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[ ] |
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(27 months from Effective Date) |
10,000 |
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Quarterly |
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[ ] |
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(30 months from Effective Date) |
10,000 |
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Quarterly |
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[ ] |
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(33 months from Effective Date) |
10,000 |
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Quarterly |
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[ ] |
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(36 months from Effective Date) |
10,000 |
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Quarterly |
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[ ] |
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(39 months from Effective Date) |
10,000 |
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Quarterly |
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[ ] |
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(42 months from Effective Date) |
10,000 |
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Quarterly |
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[ ] |
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(45 months from Effective Date) |
10,000 |
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Quarterly |
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[ ] |
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(48 months from Effective Date) |
CIBER, INC.
RESTRICTED STOCK UNIT AGREEMENT
Restricted Stock Unit Transferability |
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Your Restricted Stock Units may not be transferred, assigned, pledged or hypothecated, whether by operation of law or otherwise, nor may the Restricted Stock Units be made subject to execution, attachment or similar process. |
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Vesting |
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Your Restricted Stock Unit grant vests as to the number of stock units indicated in the vesting schedule on the cover sheet, on the Vest Dates shown on the cover sheet, provided you continue to provide services to the Company or an Affiliate as an employee, officer or director, or a consultant or adviser (Service) on the applicable Vest Date. Your employment agreement with the Company dated March 7, 2011 (the Employment Agreement) sets forth the circumstances in which vesting of the Restricted Stock Units will be accelerated, either partially or fully. The resulting aggregate number of vested shares will be rounded to the nearest whole number, and you cannot vest in more than the number of shares covered by this Restricted Stock Unit grant. |
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Affiliate means, any company or other trade or business that controls, is controlled by or is under common control with the Company within the meaning of Rule 405 of Regulation C under the Securities Act, including, without limitation, any Subsidiary. An entity may not be considered an Affiliate unless the Company holds a controlling interest in such entity, where the term controlling interest has the same meaning as provided in Treasury Regulation 1.414(c)-2(b)(2)(i), provided that the language at least 50 percent is used instead of at least 80 percent and, provided further, that where granting of stock options is based upon a legitimate business criteria, the language at least 20 percent is used instead of at least 80 percent each place it appears in Treasury Regulation 1.414(c)-2(b)(2)(i). |
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Subsidiary means any subsidiary corporation of the Company within the meaning of Section 424(f) of the Code. |
Delivery of Shares |
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Delivery of vested shares of Stock will be made within three (3) days of the applicable anniversary of the Vest Date; provided, that, if such Vest Date occurs during a period in which you are (i) subject to a lock-up agreement restricting your ability to sell Stock in the open market or (ii) are restricted from selling Stock in the open market because a trading window is not available, delivery of such vested shares will be delayed until the date immediately following the expiration of the lock-up agreement or the opening of a trading window but in no event beyond 2½ months after the end of the calendar year in which the shares would have been otherwise delivered; and provided further that you have been continuously in Service to the Company or a Subsidiary from the Effective Date until the Vest Date. |
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Forfeiture of Unvested Restricted Stock Units |
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Unless the termination of your Service triggers accelerated vesting of your Option or RSUs pursuant to the terms of this Agreement or any other written agreement between the Company (or any Affiliate) and you, including the Employment Agreement, you will automatically forfeit to the Company all of the Restricted Stock Units that have not yet vested or with respect to which all applicable restrictions and conditions have not lapsed. |
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Forfeiture of Rights |
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If you should take actions in violation or breach of or in conflict with any non-competition agreement, any agreement prohibiting solicitation of employees or clients of the Company or any Affiliate thereof or any confidentiality obligation with respect to the Company or any Affiliate thereof, the Company shall have the right to cause a forfeiture of your unvested Restricted Stock Units, and with respect to those shares of Restricted Stock Units vesting during the period commencing twelve (12) months prior to your taking actions in competition with the Company, the right to cause a forfeiture of those vested shares of Stock. |
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Leaves of Absence |
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For purposes of this option, your Service does not terminate when you go on a bona fide employee leave of absence that was approved by the Company in writing, if the terms of the leave provide for continued Service crediting, or when continued Service crediting is required by applicable law. Your Service terminates in any event when the approved leave ends unless you immediately return to active employee work. |
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The Company determines, in its sole discretion, which leaves count for this purpose, and when your Service terminates for |
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all purposes under the Agreement. |
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Evidence of Issuance |
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The issuance of the shares upon the vesting of the Restricted Stock Units shall be evidenced in such a manner as the Company, in its discretion, will deem appropriate, including, without limitation, book-entry, registration or issuance of one or more share certificates. |
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Withholding Taxes |
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You agree, as a condition of this grant, that you will make acceptable arrangements to pay any withholding or other taxes that may be due as a result of vesting in Restricted Stock Units or your acquisition of Stock under this grant. In the event that the Company determines that any withholding payment is required relating to this grant under applicable laws, the Company will have the right to: (i) require that you arrange such payments to the Company, or (ii) cause an immediate forfeiture of shares of Stock subject to the Restricted Stock Units granted pursuant to this Agreement in an amount equal to the withholding or other taxes due. |
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Retention Rights |
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Neither your Restricted Stock Units nor this Agreement gives you the right to be retained or employed by the Company (or any Subsidiary or Affiliate) in any capacity. Subject to the Employment Agreement, the Company (and any parent, Subsidiary or Affiliate) reserve the right to terminate your Service at any time and for any reason. |
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Shareholder Rights |
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You do not have any of the rights of a shareholder with respect to the Restricted Stock Units unless and until the Stock relating to the Restricted Stock Units has been transferred to you. In the event of a cash dividend on outstanding Stock, you will be entitled to receive a cash payment for each Restricted Stock Unit. The Company may in its sole discretion require that dividends will be reinvested in additional stock units at fair market value of the Stock on the dividend payment date, subject to vesting and delivered at the same time as the Restricted Stock Unit. |
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Adjustments |
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In the event of a stock split, a stock dividend or a similar change in the Stock, the number of Restricted Stock Units covered by this grant will be adjusted proportionately (and rounded down to the nearest whole number). Your Restricted Stock Units shall be subject to the terms of the agreement of merger, liquidation or reorganization in the event the Company is subject to such corporate activity. |
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Applicable Law |
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This Agreement will be interpreted and enforced under the laws of the state of Colorado, other than any conflicts or |
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choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. |
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The Agreement |
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This Agreement and the associated cover sheet constitute the entire understanding between you and the Company regarding this grant. Any agreements, commitments or negotiations concerning this grant are superseded; except that any written employment [(including the Employment Agreement)], consulting, confidentiality, non-competition and/or severance agreement between you and the Company (or any Affiliate), whether entered into before or after this Agreements effective date, shall supersede this Agreement with respect to its subject matter, provided that no such superseding shall result in a failure to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (Section 409A). |
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Data Privacy |
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The Company may process personal data about you. Such data includes, but is not limited to the information provided in this Agreement and any changes thereto, other appropriate personal and financial data about you such as home address and business addresses and other contact information, payroll information and any other information that might be deemed appropriate by the Company to facilitate the administration of the Agreement. |
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By accepting these Restricted Stock Units, you give explicit consent to the Company to process any such personal data. |
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Code Section 409A |
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It is intended that this award comply with Section 409A or an exemption to Section 409A. To the extent that the Company determines that you would be subject to the additional 20% tax imposed on certain non-qualified deferred compensation plans pursuant to Section 409A as a result of any provision of this Agreement, such provision shall be deemed amended to the minimum extent necessary to avoid application of such additional tax. The nature of any such amendment shall be determined by the Company. For purposes of this award, a termination of Service only occurs upon an event that would be a Separation from Service within the meaning of Section 409A. |
IN WITNESS WHEREOF, the parties hereto have signed their names as of the day and year first above written.
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CIBER, INC. | |
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By: |
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Name: |
David C. Peterschmidt |
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Title: |
President and Chief Executive Officer |
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Claude J. Pumilia |
Exhibit C
MUTUAL RELEASE OF CLAIMS
This Mutual Release of Claims is entered into by and between CIBER, Inc., a Delaware corporation (the Company), and Claude J. Pumilia (Executive). It is entered into pursuant to the terms of an Employment Agreement between Executive and Company dated March 7, 2011 (the Agreement) and in order to resolve amicably all matters between Executive and the Company concerning the Agreement and Executives termination of employment with the Company and benefits payable to Executive under the terms of the Agreement.
1. Termination of Employment. Executives employment with the Company has been terminated as a result of a Change in Control, an involuntary termination without Cause or a resignation for Good Reason, as defined in the Agreement, by which Executive became eligible for benefits upon termination of employment.
2. Severance Pay. On the 30th day following the Effective Date of Termination (as this term is defined in the Agreement) (or on the next business day, if the 30th day is a weekend day or a holiday), the Company agrees to pay to Executive as a payment of all monetary amounts due to Executive under the terms of the Agreement the lump sum of $ , less customary employee withholdings. Executive is also eligible for certain other continuation of benefits under the terms of the Agreement. Executive acknowledges that Executive has no entitlement to said benefits except according to the terms of the Agreement, which includes a requirement that Executive execute this Mutual Release of Claims.
3. Return of Property and Documents. Executive states that Executive has returned to the Company all property and documents of the Company which were in Executives possession or control, including without limitation access cards, Company-provided credit cards, computer equipment and software.
4. Nondisparagement Agreement. Executive agrees not to make any communications or engage in any conduct that is or can reasonably be construed to be disparaging of the Company, its officers, directors, employees, agents, stockholders, products or services. The Company agrees not to make any communications or engage in any conduct that is or can reasonably be construed to be disparaging of Executive.
5. Release of Company. Executive (for himself, his agents, heirs, successors, assigns, executors and/or administrators) does hereby and forever release and discharge the Company and its past and present parent, subsidiary and affiliated corporations, divisions or other related entities, as well as the successors, shareholders, officers, directors, heirs, predecessors, assigns, agents, employees, attorneys and representatives of each of them, past or present from any and all causes of action, actions, judgments, liens, debts, contracts, indebtedness, damages, losses, claims, liabilities, rights, interests and demands of whatsoever kind or character, known or unknown, suspected to exist or not suspected to exist, anticipated or not anticipated, whether or not heretofore brought before any state or federal court or before any state or federal agency or other governmental entity, which Executive has or may have against any released person or entity by reason of any and all acts, omissions, events or facts occurring or existing prior to the
date hereof, including, without limitation, all claims attributable to the employment of Executive, all claims attributable to the termination of that employment, and all claims arising under any federal, state or other governmental statute, regulation or ordinance or common law, such as, for example and without limitation, Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, the Age Discrimination in Employment Act which prohibits discrimination on the basis of age over 40, and wrongful termination claims, excepting only those obligations expressly recited to be performed hereunder and any rights to indemnification, advancement of expenses, or insurance to which Executive is entitled under the Agreement, the Companys Certificate of Incorporation, Bylaws or otherwise.
In light of the intention of Executive (for herself, his agents, heirs, successors, assigns, executors and/or administrators) that this release extend to any and all claims of whatsoever kind or character, known or unknown, Executive expressly waives any and all rights granted by California Civil Code Section 1542 or any other analogous federal or state law or regulation. Section 1542 reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Notwithstanding the foregoing, nothing in this Agreement shall be construed to prevent Executive from filing a charge with, or participating in any proceeding or investigation by, the Equal Employment Opportunity Commission or affiliated state agency. However, Executive acknowledges that, in accordance with this Release, he has no right to recover any monies on behalf of herself, his agents, heirs, successors, assigns, executors and/or administrators in connection with, or as a result of, such charge, investigation, or proceeding.
6. Release of Executive. The Company (including its past and present parent, subsidiary and affiliated corporations, divisions or other related entities, as well as the successors, shareholders, officers, directors, heirs, predecessors, assigns, agents, employees, attorneys and representatives of each of them, past or present) does hereby and forever release and discharge the Executive and his agents, heirs, successors, assigns, executors and/or administrators from any and all causes of action, actions, judgments, liens, debts, contracts, indebtedness, damages, losses, claims, liabilities, rights, interests and demands of whatsoever kind or character, known or unknown, suspected to exist or not suspected to exist, anticipated or not anticipated, whether or not heretofore brought before any state or federal court or before any state or federal agency or other governmental entity, which the Company has or may have against any released person or entity by reason of any and all acts, omissions, events or facts occurring or existing prior to the date hereof, including, without limitation, all claims attributable to the employment of Executive, all claims attributable to the termination of that employment, and all claims arising under any federal, state or other governmental statute, regulation or ordinance or common law, such as, for example and without limitation.
In light of the intention of the Company (including its past and present parent, subsidiary and affiliated corporations, divisions or other related entities, as well as the successors, shareholders, officers, directors, heirs, predecessors, assigns, agents, employees, attorneys and representatives of each of them, past or present) that this release extend to any and all claims of whatsoever kind or character, known or unknown, the Company expressly waives any and all rights granted by California Civil Code Section 1542 or any other analogous federal or state law or regulation. Section 1542 reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
7. No Actions Pending. Executive and the Company agree that neither party has filed, nor will either party file in the future, any claims, actions or lawsuits against any of the Releases relating to Executives employment with the Company, or the termination thereof, except as contemplated hereby.
8. No Admissions. Nothing contained herein shall be construed as an admission of wrongdoing or liability by either party hereto.
9. Entire Agreement; Miscellaneous. This Agreement constitutes a single integrated contract expressing the entire agreement of the parties with respect to the subject matter specifically addressed herein and supersedes all prior and contemporaneous oral and written agreements and discussions with respect to the subject matter hereof. There are no other agreements, written or oral, express or implied, between the parties hereto, concerning the subject matter hereof, except as set forth herein. This Agreement may be amended or modified only by an agreement in writing, and it shall be interpreted and enforced according to the laws of the State of Colorado. Should any of the provisions of the Agreement be determined to be invalid by a court of competent jurisdiction, it is agreed that this shall not affect the enforceability of the other provisions herein.
10. Waiting Period and Right of Revocation. EXECUTIVE ACKNOWLEDGES THAT EXECUTIVE IS AWARE AND IS HEREBY ADVISED THAT EXECUTIVE HAS THE RIGHT TO CONSIDER THIS AGREEMENT FOR TWENTY-ONE DAYS BEFORE SIGNING IT, ALTHOUGH EXECUTIVE IS NOT REQUIRED TO WAIT THE ENTIRE TWENTY-ONE DAY PERIOD; AND THAT IF EXECUTIVE SIGNS THIS AGREEMENT PRIOR TO THE EXPIRATION OF TWENTY-ONE DAYS, EXECUTIVE IS WAIVING THIS RIGHT FREELY AND VOLUNTARILY. EXECUTIVE ALSO ACKNOWLEDGES THAT EXECUTIVE IS AWARE AND IS HEREBY ADVISED OF EXECUTIVES RIGHT TO REVOKE THIS AGREEMENT FOR A PERIOD OF SEVEN DAYS FOLLOWING THE SIGNING OF THIS AGREEMENT AND THAT IT SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS EXPIRED. TO REVOKE THIS AGREEMENT, EXECUTIVE MUST NOTIFY THE COMPANY IN WRITING WITHIN SEVEN DAYS OF SIGNING IT.
11. Attorney Advice. EXECUTIVE ACKNOWLEDGES THAT EXECUTIVE IS AWARE OF EXECUTIVES RIGHT TO CONSULT AN ATTORNEY, THAT EXECUTIVE HAS BEEN ADVISED TO CONSULT WITH AN ATTORNEY, AND THAT EXECUTIVE HAS HAD THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY, IF DESIRED, PRIOR TO SIGNING THIS AGREEMENT.
12. Understanding of Agreement. Executive states that Executive has carefully read this Agreement, that Executive fully understands its final and binding effect, that the only promises made to Executive to sign this Agreement are those stated above, and that Executive is signing this Agreement voluntarily.
Dated: |
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Claude J. Pumilia | |
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Dated: |
CIBER, INC. | |
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By: |
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Name: |
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Title: |
EXHIBIT 10.2
EXECUTIVE TRANSITION AGREEMENT
This agreement (the Agreement), dated as of the Effective Date specified below, is by and between CIBER, Inc. (the Company) and Peter H. Cheesbrough (the Executive). The Company and Executive shall be referred to collectively as the Parties and individually as a Party.
Recitals
1. Executive has been employed by the Company and its predecessors since on or about October 31, 2007.
2. Executive and the Company have agreed that Executives employment relationship with the Company shall end.
3. Accordingly, Executive and the Company have entered into this Agreement to set forth the terms and conditions of their relationship on and after the Effective Date.
Agreement
In consideration of the following obligations, the Parties agree as follows.
1. Effective Date and Separation Date. The Effective Date shall mean April 4, 2011 with respect to resignation from all positions with the Company and all affiliates thereof and April 29, 2011 with respect to resignation of all Board memberships of the Company and its affiliates and the Separation Date shall mean April 29, 2011. On March 10, 2011, the Company announced Executives resignation from the positions of Executive Vice-President, Chief Financial Officer and Treasurer and member of the board of directors (and any committee thereof) of the Company. The Company may announce the terms of this Agreement when and as it deems appropriate.
2. Payments and Benefits Upon Separation of Employment.
(a) Salary Through Separation Date. The Company shall pay to Executive, in accordance with Companys regular payroll practices, Executives base salary as defined in Section 2(b) earned through the Separation Date to the extent not already paid as of the Separation Date.
(b) Lump-sum Payment. Provided Executives employment is not terminated for Cause, as defined below and conditioned upon Executives execution and delivery to the Company (and if applicable non-revocation) of a legal release in the form attached hereto as Exhibit A within 21 days following the Separation Date (collectively, the Conditions), the Company shall pay to Executive a one-time, lump sum payment in an amount equal to one (1) times the Executives Annual Salary and annual bonus at target level in effect on the day of termination, namely $684,000.00,
(the Severance Payment), less legally required withholdings. This payment shall be made on fifteen (15) business days following the later of (A) Executives execution of the attached legal release or (B) expiration of any applicable non-revocation period.
(c) Options, Restricted Stock Units and Long-Term Incentive Plan.
(i) Acceleration of Options and Restricted Stock Units. Immediately prior to the termination of Executives employment, the Company shall cause all unvested in-the-money options and all restricted stock units granted to Executive by the Company to be fully vested as set forth in Exhibit B attached hereto. Executive shall have the earlier of the option expiration date or two (2) years following Executives Separation Date to exercise Executives options.
(ii) No other Rights with respect to Long Term Incentive Plans. Except as provided in clause (i) and (ii) of this Section 2(c), following the Effective Date, Executive shall not be eligible to receive any further awards under any of the Companys Long-Term Incentive Plans.
(d) Insurance.
(i) Continuation of Current Medical Insurance. Executives current benefit elections and coverage shall continue through the Separation Date. If Executive timely elects to participate in the COBRA program by completing and returning the required paperwork to the Company or the Companys administrator, as applicable, then the Company will pay COBRA premiums for medical and dental insurance (COBRA Payments) on behalf of Executive directly to the COBRA insurance carrier(s) for a period of up to twelve (12) months following the Separation Date (COBRA Benefit Termination Date). Executives right to have COBRA Payments made on Executives behalf shall terminate as of the earlier of the date on which Executive becomes eligible for substantially similar welfare benefits under another employers group benefit plans or the COBRA Benefit Termination Date. Executive is expected to notify David Plisko, Vice President-Employee Services if other employment is secured or if Executive is covered by another plan prior to the COBRA Benefit Termination Date.
3. Termination of Employment.
Cause. If Executives employment is terminated for Cause, as defined below, the Company shall be required to pay to Executive only (i) Executives Base Salary through the date of termination, and (ii) the Other Benefits (as defined in Section 5, below), in each case to the extent theretofore unpaid.
For purposes of this Agreement, Cause shall mean:
(i) the willful and continued failure of Executive to perform substantially Executives duties with the Company as determined by the Company, in the Companys reasonable discretion (other than any such failure resulting from incapacity due to physical or mental illness), after a written demand for substantial performance is delivered to Executive by the Company, which specifically identifies the manner in which the Company believes that Executive has not substantially performed
Executives duties and which gives Executive a reasonable opportunity to cure the deficiency noted therein; or
(ii) the willful engaging by Executive in illegal conduct or gross misconduct which is materially and demonstrably injurious to the Company; or
(iii) conviction of a felony (other than a traffic related felony) or guilty or nolo contendere plea by Executive with respect thereto; or
(iv) a willful material breach by Executive of any material provision of this Agreement; or
(v) a willful violation of any regulatory requirement, or of any material Company policy or procedure; or
(vi) Executives failure to obtain or maintain, or inability to qualify for, any license required for the performance of Executives material job responsibilities, or the suspension or revocation of any such license held by Executive.
No act or failure to act on the part of Executive shall be considered willful unless it is done, or omitted to be done, by Executive in bad faith or without reasonable belief that Executives act or omission was in the best interests of the Company. Any act, or failure to act, based upon express authority given pursuant to a resolution duly adopted by the Board with respect to such act or omission or based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by Executive in good faith and in the best interests of the Company.
4. Taxes. Notwithstanding any other language to the contrary in this Agreement-, the Company shall not be obligated to pay and shall not pay that portion of any payment or distribution in the nature of compensation within the meaning of Section 280G(b)(2) of the Code to the benefit of Executive otherwise due or payable by Executive under this Agreement if that portion would cause any excise tax imposed by Section 4999 of the Code to become due and payable by Executive. Executive agrees to pay all taxes relating to or arising from any payment made or consideration provided pursuant to this Agreement. If any taxes, interest or penalties are assessed against the Company in connection with any payment made or consideration provided pursuant to this Agreement, or based on any failure to withhold any sum from any payment made pursuant to this Agreement, the Company shall give notice to Executive. Upon receiving that notice, Executive shall either pay to the Company the total amount of the assessment, including all taxes, interest and penalties owed, or defend against the assessment, at Executives sole expense (excluding penalties arising from the Companys failure to withhold). If any assessment is imposed on the Company, Executive shall immediately reimburse the Company for all taxes, interest or penalties paid by the Company (excluding penalties arising from the Companys failure to withhold). The Company shall not be obligated to contest the validity of any such assessment or to reimburse Executive for any amounts, including costs and attorneys fees, that Executive incurs in contesting the assessment. Notwithstanding any other
provision of this Agreement, this Agreement shall not be construed so as to impose on Executive any duty to pay, or to reimburse the Company for, tax liabilities imposed on the Company by law, such as the Companys obligation to pay its share of FICA for certain payments made to Executive under this Agreement.
5. Non-exclusivity of Rights. Amounts that are vested benefits or which Executive is otherwise entitled to receive under any plan, policy, practice or program of or any contract or agreement with the Company or any affiliate at or subsequent to the date of termination (Other Benefits) shall be payable in accordance with such plan, policy, practice or program or contract or agreement except as explicitly modified by this Agreement. Notwithstanding any other provision of this Agreement, Executive shall not be entitled to receive any payments or benefits under any severance program other than those that are described and anticipated under this Agreement.
7. Restrictive Covenants.
(a) Protection of Confidential Information.
(i) Definition of Confidential Information. Confidential Information means all nonpublic information (whether in paper or electronic form, or contained in Executives memory, or otherwise stored or recorded) relating to or arising from the Companys business, including, without limitation, trade secrets used, developed or acquired by the Company in connection with its business. Without limiting the generality of the foregoing, Confidential Information shall specifically include all information concerning the manner and details of the Companys operation, organization and management; financial information and/or documents and nonpublic policies, procedures and other printed, written or electronic material generated or used in connection with the Companys business; the Companys business plans and strategies; the identities of the Companys customers and the specific individual customer representatives with whom the Company works; the details of the Companys relationship with such customers and customer representatives; the identities of distributors, contractors and vendors utilized in the Companys business; the details of the Companys relationships with such distributors, contractors and vendors; the nature of fees and charges made to the Companys customers; nonpublic forms, contracts and other documents used in the Companys business; all information concerning the Companys employees, agents and contractors, including without limitation such persons compensation, benefits, skills, abilities, experience, knowledge and shortcomings, if any; the nature and content of computer software used in the Companys business, whether proprietary to the Company or used by the Company under license from a third party; and all other information concerning the Companys concepts, prospects, customers, employees, agents, contractors, earnings, products, services, equipment, systems, and/or prospective and executed contracts and other business arrangements. Confidential Information does not include information that is in the public domain through no wrongful act on the part of Executive.
(ii) Executives Use of Confidential Information. Except in connection with and in furtherance of Executives work on the Companys behalf,
Executive shall not, without the Companys prior written consent, at any time, directly or indirectly: (i) use any Confidential Information for any purpose; or (ii) disclose or otherwise communicate any Confidential Information to any person or entity.
(iii) Records Containing Confidential Information. Confidential Records means all documents and other records, whether in paper, electronic or other form, that contain or reflect any Confidential Information. All Confidential Records prepared by or provided to Executive are and shall remain the Companys property. Except in connection with and in furtherance of Executives work on the Companys behalf or with the Companys prior written consent, Executive shall not, at any time, directly or indirectly: (i) copy or use any Confidential Record for any purpose; or (ii) show, give, sell, disclose or otherwise communicate any Confidential Record or the contents of any Confidential Record to any person or entity. Upon the termination of Executives employment with the Company, or upon Companys request, Executive shall immediately deliver to Company or its designee (and shall not keep in Executives possession or deliver to any other person or entity) all Confidential Records and all other Company property in Executives possession or control. Upon reasonable request of the Company, Executive shall provide the Company with reasonable access to any computer or other device used at any time by Executive, for the sole purpose of deleting from such device all Confidential Information and Confidential Records or to determine whether such Confidential Information and Confidential Records have been properly deleted from such device in accordance herewith.
(b) During Executives employment with the Company, and for a period of one year following the Separation Date (the Restricted Period), Executive shall not (nor shall Executive cause, encourage or provide assistance to, anyone else to):
(i) Interfere with any relationship which may exist from time to time between the Company, or any affiliate of the Company, and any of its employees, consultants, agents or representatives; or
(ii) Employ or otherwise engage, or attempt to employ or otherwise engage, in or on behalf of any Competitive Business, any person who is employed or engaged as an employee of the Company or any affiliate of the Company of the Company or any affiliate of the Company within the twelve (12) month period immediately preceding Executives termination; or
(iii) Solicit directly or indirectly on behalf of Executive or a Competitive Business, information technology services business or similar services rendered by the company to any customer or account of any client to which the Company or any affiliate of the Company shall have rendered service during the twelve (12) month period immediately preceding Executives termination; or
(iv) Directly or indirectly divert or attempt to divert from the Company or any affiliate of the Company any business in which the Company or any affiliate of the Company has been actively engaged during the term hereof or interfere
with any relationship between the Company, or any affiliate of the Company, and any of its clients.
(c) Competitive Business means any business that provides services similar to or competitive with the services provided by the Company. For the purposes of this RC Section, affiliate means any corporation, partnership, limited liability company, trust, or other entity which controls, is controlled by or is under common control with the Company.
(d) If any court shall determine that the duration, geographic limitations, subject or scope of any restriction contained in this RC Section is unenforceable, it is the intention of the Parties that this RC Section shall not thereby be terminated but shall be deemed amended to the extent required to make it valid and enforceable, such amendment to apply only with respect to the operation of this RC Section in the jurisdiction of the court that has made the adjudication.
(e) Executive acknowledges that the restrictive covenants of this RC Section are reasonable and that irreparable injury will result to the Company and to its business and properties in the event of any breach by Executive of any of those covenants. In the event any of the covenants of this RC Section are breached, the Company shall be entitled, in addition to any other remedies and damages available, to injunctive relief to restrain the violation of such covenants by Executive or by any person or persons acting for or with Executive in any capacity whatsoever.
7. Successors.
(a) This Agreement is personal to Executive and without the prior written consent of the Company shall not be assignable by Executive otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by Executives legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly, and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, Company shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.
8. Prior Agreements.
(a) Except as otherwise provided in this section, all other agreements between Executive and the Company shall be deemed terminated hereby and superseded by this Agreement, and shall hereafter be of no further force or effect.
(b) Notwithstanding any other provision of this Agreement, this Agreement shall not be deemed to limit, release, impair or otherwise affect, in any way, Executives rights to indemnification and/or defense that Executive had in connection with Executives employment with the Company, whether pursuant to any certificate of incorporation, bylaw, policy, insurance contract, or otherwise.
(C) Except as modified or contemplated to be modified hereby, the options and restricted stock unit awards granted to Executive by the Company, and the agreements related thereto, shall remain in full force and effect without change.
9. Assistance Following Separation Date. Executive agrees, during the 12-month period following the Separation Date, to remain reasonably available to respond to reasonable requests for information and assistance on an as-needed, as-requested basis; provided that the Company shall exercise reasonable good faith efforts to limit the extent to which its requests for such information and assistance interfere with Executives personal and business commitments; and provided further that Executive shall exercise reasonable, good faith efforts to respond to the Companys requests for such information and assistance in a timely and complete fashion; provided further that the Company shall reimburse Executive for any reasonable expenses (but shall not pay Executive for the first 40 hours of Executives time following the Separation Date) that are approved in advance and incurred by Executive in connection with the performance of such assistance. In no event will the assistance requested exceed 40 hours without mutual agreement. If the Executive is required to spend more than forty (40) hours during the twelve month period following the Separation Date in the performance of such assistance, the Company shall provide Executive with reasonable hourly compensation for any hours in excess of such forty (40) hour threshold.
10 Cooperation in Proceedings. The Company and Executive agree that they shall fully cooperate with respect to any claim, litigation or judicial, arbitral or investigative proceeding initiated by any private party or by any regulator, governmental entity, or self-regulatory organization, that relates to or arises from any matter with which Executive was involved during Executives employment with the Company, or that concerns any matter of which Executive has information or knowledge (collectively, a Proceeding). Executives duty of cooperation includes, but is not limited to: (i) meeting with the Companys attorneys by telephone or in person at mutually convenient times and places in order to state truthfully Executives recollection of events; (ii) appearing at the Companys request as a witness at depositions or trials, without the necessity of a subpoena, in order to state truthfully Executives knowledge of matters at issue; and (iii) signing at the Companys request declarations or affidavits that truthfully state matters of fact of which Executive has personal knowledge obtained during the course of Executives relationship with the Company. The Companys duty of cooperation includes, but is not limited to providing Executive and Executives counsel access to documents, information, witnesses and the Companys legal counsel as is reasonably necessary to litigate on behalf of Executive in any Proceeding. In addition, Executive agrees to promptly notify the Companys General Counsel of any requests for information or testimony that Executive receives in connection with any litigation or investigation relating to the Companys business, and the Company agrees to notify
Executive of any requests for information or testimony that it receives relating to Executive. Notwithstanding any other provision of this Agreement, this Agreement shall not be construed or applied so as to require any Party to violate any confidentiality agreement or understanding with any third party, nor shall it be construed or applied so as to compel any Party to take any action, or omit to take any action, requested or directed by any regulatory or law enforcement authority. The Company shall exercise reasonable good faith efforts to minimize the extent to which its requests for cooperation pursuant to this section conflict with Executives prior professional and personal commitments, and shall reimburse Executive for the expenses (but shall not pay Executive for the first 40 hours of Executives time) that Executive reasonably and necessarily incurs in honoring Executives duty of cooperation under this section, provided that Executive has secured the Companys prior consent to incur such expenses. If the Executive is required to spend more than forty (40) hours during the twelve month period following the Separation Date in the performance of such assistance, the Company shall provide Executive with reasonable hourly compensation for any hours in excess of such forty (40) hour threshold.
11. Legal Releases.
(a) Executive, on behalf of Executive and Executives heirs, personal representatives and assigns, and any other person or entity that could or might act on behalf of Executive, including, without limitation, Executives counsel (all of whom are collectively referred to as Executive Releasers), hereby fully and forever releases and discharges the Company, its present and future affiliates and subsidiaries, and each of their past, present and future officers, directors, employees, shareholders, independent contractors, attorneys, insurers and any and all other persons or entities that are now or may become liable to any Releaser due to any Releasees act or omission, (all of whom are collectively referred to as Executive Releasees) of and from any and all actions, causes of action, claims, demands, costs and expenses, including attorneys fees, of every kind and nature whatsoever, in law or in equity, whether now known or unknown, that Executive Releasers, or any person acting under any of them, may now have, or claim at any future time to have, based in whole or in part upon any act or omission occurring on or before the Effective Date, without regard to present actual knowledge of such acts or omissions, including specifically, but not by way of limitation, matters which may arise at common law, such as breach of contract, express or implied, promissory estoppel, wrongful discharge, tortious interference with contractual rights, infliction of emotional distress, defamation, or under federal, state or local laws, such as the Fair Labor Standards Act, the Employee Retirement Income Security Act, the National Labor Relations Act, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Rehabilitation Act of 1973, the Equal Pay Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and any civil rights law of any state or other governmental body; PROVIDED, HOWEVER, that notwithstanding the foregoing or anything else contained in this Agreement, the release set forth in this Section shall not extend to: (i) any rights arising under this Agreement; or; (ii) any vested rights under any pension, retirement, profit sharing or similar plan; or (iii) Executives rights, if any, to indemnification, and/or defense under any Company certificate of incorporation, bylaw and/or policy or procedure, or under any insurance
contract, in connection with Executives acts an omissions within the course and scope of Executives employment with the Company. Executive hereby warrants that Executive has not assigned or transferred to any person any portion of any claim which is released, waived and discharged above. Executive further states and agrees that Executive has not experienced any illness, injury, or disability that is compensable or recoverable under the workers compensation laws of any state that was not reported to the Company by Executive before the Effective Date, and Executive agrees not to not file a workers compensation claim asserting the existence of any such previously undisclosed illness, injury, or disability. Executive has specifically consulted with counsel with respect to the agreements, representations, and declarations set forth in the previous sentence. Executive understands and agrees that by signing this Agreement Executive is giving up any right to bring any legal claim against the Company concerning, directly or indirectly, Executives employment relationship with the Company, including Executives separation from employment. Executive agrees that this legal release is intended to be interpreted in the broadest possible manner in favor of the Company, to include all actual or potential legal claims that Executive may have against the Company, except as specifically provided otherwise in this Agreement.
(b) The Company, for itself, its affiliates, and any other person or entity that could or might act on behalf of it including, without limitation, its attorneys (all of whom are collectively referred to as Company Releasers), hereby fully and forever release and discharge Executive, Executives heirs, representatives, assigns, attorneys, and any and all other persons or entities that are now or may become liable to any Company Releaser on account of Executives employment with the Company or separation therefrom (all of whom are collectively referred to as Company Releasees) of and from any and all actions, causes of action, claims, demands, costs and expenses, including attorneys fees, of every kind and nature whatsoever, in law or in equity, whether now known or unknown, that the Company Releasers, or any person acting under any of them, may now have, or claim at any future time to have, based in whole or in part upon any act or omission relating to Employees employment with the Company or separation therefrom, without regard to present actual knowledge of such acts or omissions; PROVIDED, HOWEVER, that notwithstanding the foregoing or anything else contained in this Agreement, the release set forth in this Section shall not extend to: (i) any rights arising under this Agreement; o] (ii) a breach of fiduciary duty or other misconduct relating to Executives employment with the Company that renders Executive ineligible for indemnification by the Company under applicable law; or (iii) any claim or claims that the Company may have against Executive as of the Effective Date of which the Company is not aware as of the Effective Date because of willful concealment by Executive. The Company understands and agrees that by signing this Agreement, it is giving up its right to bring any legal claim against Executive concerning, directly or indirectly, Executives employment relationship with the Company. the Company agrees that this legal release is intended to be interpreted in the broadest possible manner in favor of Executive, to include all actual or potential legal claims that the Company may have against Executive relating to Employees employment with the Company or separation therefrom, except as specifically provided otherwise in this Agreement.
(c) In order to provide a full and complete release, each of the Parties understands and agrees that this Agreement is intended to include all claims, if any, covered under this section entitled Legal Releases (LR Section) that such Party may have and not now know or suspect to exist in Executives or its favor against any other Party and that this Agreement extinguishes such claims. Thus, each of the Parties expressly waives all rights under any statute or common law principle in any jurisdiction that provides, in effect, that a general release does not extend to claims which the releasing party does not know or suspect to exist in Executives favor at the time of executing the release, which if known by Executive must have materially affected Executives settlement with the party being released. Notwithstanding any other provision of this LR Section, however, nothing in this LR Section is intended or shall be construed to limit or otherwise affect in any way Executives rights under this Agreement.
(d) Executive agrees and acknowledges that Executive: (i) understands the language used in this Agreement and the Agreements legal effect; (ii) will receive compensation under this Agreement to which Executive would not have been entitled without signing this Agreement; (iii) has been advised by the Company to consult with an attorney before signing this Agreement; and (iv) will be given up to twenty one (21) calendar days to consider whether to sign this Agreement. For a period of seven days after the Effective Date, Executive may, in Executives sole discretion, rescind this Agreement, by delivering a written notice of rescission to Companys General Counsel. If Executive rescinds this Agreement within seven calendar days after the Effective Date, this Agreement shall be void, all actions taken pursuant to this Agreement shall be reversed, and neither this Agreement nor the fact of or circumstances surrounding its execution shall be admissible for any purpose whatsoever in any proceeding between the Parties, except in connection with a claim or defense involving the validity or effective rescission of this Agreement. If Executive does not rescind this Agreement within seven calendar days after the Effective Date, this Agreement shall become final and binding and shall be irrevocable.
12. Additional Representation and Covenant. Executive represents and warrants that as of the Effective Date, Executive is unaware of any facts or circumstances relating to the Companys business that Executive believes suggest or support a claim of wrongdoing or illegal conduct of any kind by the Company or any employee, officer or director thereof, except as previously disclosed to the Company by Executive in writing. Executive covenants that, to the extent permitted by law, following the Effective Date Executive will not take any action, or encourage any other person to take any action with the intent of, calculated or known to Executive to likely to result in the initiation or an inquiry, investigation or other action concerning the Company by any federal, state or local governmental body or agency, and that were Executive to do so Executive would commit a material breach and default under this Agreement, for which the Company would be entitled to all remedies available to the Company pursuant to applicable law, including specific performance of this covenant.
13. Non-Disparagement.
(a) Executive covenants never to disparage or speak ill of the Company or any Company product or service, or of any past or present employee, officer or director of the Company, nor shall Executive at any time harass or behave unprofessionally toward any past, present or future Company employee, officer or director.
(b) The Company covenants that no Company officer or director shall, while employed by or while serving on the board of directors of the Company, disparage or speak ill of Executive, nor shall any such person, while employed by or while serving on the board of directors of the Company, at any time harass or behave unprofessionally toward Executive.
14. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado without reference to principles of conflict of laws. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement may not be amended or modified otherwise than by a written agreement executed by the Parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other Party or by registered or certified mail, return receipt requested, postage prepaid, addressed as follows:
If to Executive: |
At the most recent address on file at the Company, |
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If to the Company: |
CIBER, Inc. |
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6363 South Fiddlers Green Circle, Suite 1400 |
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Greenwood Village, Colorado 80111 |
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Attn.: General Counsel |
or to such other address as either Party shall have furnished to the other in writing in accordance herewith, Notice and communications shall be effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.
(d) All payments made by the Company under this Agreement will be subject to legally required tax and other withholdings.
(e) Executives or the Companys failure to insist upon strict compliance with any provision of this Agreement or the failure to assert any right Executive or the Company may have hereunder, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement.
(f) All covenants and warranties contained in this Agreement are contractual and shall survive the closing of the Agreement.
(g) In the event of any dispute relating to or arising from this Agreement, the Party substantially prevailing therein shall recover the costs and expenses that it incurred in connection with the dispute, including reasonable attorneys fees.
(h) All disputes relating to or arising from this agreement shall be tried only in the state or federal courts situated in the Denver, Colorado metropolitan area.
(i) This Agreement may b executed in counterparts, or by copies transmitted by facsimile, all of which shall be given the same force and effect as the original.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, Executive has hereunto set Executives hand and the Company has caused these presents to be executed in its name on its behalf, all as of the day and year first above written.
EXECUTIVE |
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CIBER, INC. | ||
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/s/ Peter C. Cheesbrough |
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By: |
/s/ David C. Peterschmidt | |
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Date: |
March 7, 2011 |
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Date: |
March 7, 2011 |
EXHIBIT A
Supplemental Legal Release
This Supplemental Legal Release (Supplemental Release) is between CIBER, Inc. (the Company) and Peter H. Cheesbrough (Executive) (each a Party, and together, the Parties).
Recitals
A. Executive and the Company are parties to a Executive Transition Agreement to which this Supplemental Release is appended as Exhibit A (the Transition Agreement).
B. Executive wishes to receive the benefits described in Section 2 of the Transition Agreement.
C. Executive and the Company wish to resolve, except as specifically set forth herein, all claims between them arising from or relating to any act or omission predating the Separation Date of April 29, 2011.
Agreement
The Parties agree as follows:
1. Confirmation of Section 2 Obligations. The Company shall pay or provide to Executive the payments and benefits, as, when and on the terms and conditions specified in the Transition Agreement.
2. Legal Releases
(a) Executive, on behalf of Executive and Executives heirs, personal representatives and assigns, and any other person or entity that could or might act on behalf of Executive, including, without limitation, Executives counsel (all of whom are collectively referred to as Executive Releasers), hereby fully and forever releases and discharges the Company, its present and future affiliates and subsidiaries, and each of their past, present and future officers, directors, employees, shareholders, independent contractors, attorneys, insurers and any and all other persons or entities that are now or may become liable to any Releaser due to any Releasees act or omission, (all of whom are collectively referred to as Executive Releasees) of and from any and all actions, causes of action, claims, demands, costs and expenses, including attorneys fees, of every kind and nature whatsoever, in law or in equity, whether now known or unknown, that Executive Releasers, or any person acting under any of them, may now have, or claim at any future time to have, based in whole or in part upon any act or omission occurring on or before the Final Separation Date, without regard to present actual knowledge of such acts or omissions, including specifically, but not by way of limitation, matters which may arise at common law, such as breach of contract, express or implied, promissory estoppel, wrongful discharge, tortious interference with contractual
rights, infliction of emotional distress, defamation, or under federal, state or local laws, such as the Fair Labor Standards Act, the Employee Retirement Income Security Act, the National Labor Relations Act, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Rehabilitation Act of 1973, the Equal Pay Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and any civil rights law of any state or other governmental body; PROVIDED, HOWEVER, that notwithstanding the foregoing or anything else contained in this Agreement, the release set forth in this Section shall not extend to: (i) any rights arising under this Agreement; or; (ii) any vested rights under any pension, retirement, profit sharing or similar plan; or (iii) Executives rights, if any, to indemnification, and/or defense under any Company certificate of incorporation, bylaw and/or policy or procedure, or under any insurance contract, in connection with Executives acts an omissions within the course and scope of Executives employment with the Company. Executive hereby warrants that Executive has not assigned or transferred to any person any portion of any claim which is released, waived and discharged above. Executive further states and agrees that Executive has not experienced any illness, injury, or disability that is compensable or recoverable under the workers compensation laws of any state that was not reported to the Company by Executive before the Final Separation Date, and Executive agrees not to not file a workers compensation claim asserting the existence of any such previously undisclosed illness, injury, or disability. Executive has specifically consulted with counsel with respect to the agreements, representations, and declarations set forth in the previous sentence. Executive understands and agrees that by signing this Agreement Executive is giving up any right to bring any legal claim against the Company concerning, directly or indirectly, Executives employment relationship with the Company, including Executives separation from employment. Executive agrees that this legal release is intended to be interpreted in the broadest possible manner in favor of the Company, to include all actual or potential legal claims that Executive may have against the Company, except as specifically provided otherwise in this Agreement.
(b) The Company, for itself, its affiliates, and any other person or entity that could or might act on behalf of it including, without limitation, its attorneys (all of whom are collectively referred to as Company Releasers), hereby fully and forever release and discharge Executive, Executives heirs, representatives, assigns, attorneys, and any and all other persons or entities that are now or may become liable to any Company Releaser on account of Executives employment with the Company or separation therefrom (all of whom are collectively referred to as Company Releasees) of and from any and all actions, causes of action, claims, demands, costs and expenses, including attorneys fees, of every kind and nature whatsoever, in law or in equity, whether now known or unknown, that the Company Releasers, or any person acting under any of them, may now have, or claim at any future time to have, based in whole or in part upon any act or omission relating to Employees employment with the Company or separation therefrom, without regard to present actual knowledge of such acts or omissions; PROVIDED, HOWEVER, that notwithstanding the foregoing or anything else contained in this Agreement, the release set forth in this Section shall not extend to: (i) any rights arising under this Agreement; o] (ii) a breach of fiduciary duty or other misconduct relating to Executives employment with the Company that renders Executive ineligible for indemnification by the Company under applicable law; or (iii) any
claim or claims that the Company may have against Executive as of the Final Separation Date of which the Company is not aware as of the Final Separation Date because of willful concealment by Executive. The Company understands and agrees that by signing this Agreement, it is giving up its right to bring any legal claim against Executive concerning, directly or indirectly, Executives employment relationship with the Company. the Company agrees that this legal release is intended to be interpreted in the broadest possible manner in favor of Executive, to include all actual or potential legal claims that the Company may have against Executive relating to Employees employment with the Company or separation therefrom, except as specifically provided otherwise in this Agreement.
(c) In order to provide a full and complete release, each of the Parties understands and agrees that this Agreement is intended to include all claims, if any, covered under this Section 2 that such Party may have and not now know or suspect to exist in Executives or its favor against any other Party and that this Agreement extinguishes such claims. Thus, each of the Parties expressly waives all rights under any statute or common law principle in any jurisdiction that provides, in effect, that a general release does not extend to claims which the releasing party does not know or suspect to exist in Executives favor at the time of executing the release, which if known by Executive must have materially affected Executives settlement with the party being released. Notwithstanding any other provision of this Section 2, however, nothing in this Section 2 is intended or shall be construed to limit or otherwise affect in any way Executives rights under this Agreement.
(d) Executive agrees and acknowledges that Executive: (i) understands the language used in this Agreement and the Agreements legal effect; (ii) will receive compensation under this Agreement to which Executive would not have been entitled without signing this Agreement; (iii) has been advised by the Company to consult with an attorney before signing this Agreement; and (iv) will be given up to twenty one (21) calendar days to consider whether to sign this Agreement. For a period of seven days after the Effective Date, Executive may, in Executives sole discretion, rescind this Agreement, by delivering a written notice of rescission to the Companys General Counsel. If Executive rescinds this Agreement within seven calendar days after the Effective Date, this Agreement shall be void, all actions taken pursuant to this Agreement shall be reversed, and neither this Agreement nor the fact of or circumstances surrounding its execution shall be admissible for any purpose whatsoever in any proceeding between the Parties, except in connection with a claim or defense involving the validity or effective rescission of this Agreement. If Executive does not rescind this Agreement within seven calendar days after the day Executive signs this Agreement, this Agreement shall become final and binding and shall be irrevocable.
3. Executive acknowledges that Executive has received all compensation to which Executive is entitled for Executives work up to Executives last day of employment with the Company, and that Executive is not entitled to any further pay or benefit of any kind, for services rendered or any other reason, other than the payments and benefits, to the extent not already paid, described in Section 2 of the Transition
Agreement.
4. Executive agrees that the only thing of value that Executive will receive by signing this Supplemental Release is the payments and benefits described in Section 2 of the Transition Agreement.
5. The Parties agree that their respective rights and obligations under the Transition Agreement shall survive the execution of this Supplemental Release.
[SIGNATURES FOLLOW]
NOTE: DO NOT SIGN THIS SUPPLEMENTAL LEGAL RELEASE UNTIL AFTER EXECUTIVES FINAL DAY OF EMPLOYMENT.
EXECUTIVE |
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CIBER, INC. | ||
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By: |
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Date: |
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Date: |
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Exhibit B
to the Executive Transition Agreement
Dated March 7, 2011
Between Peter H. Cheesbrough and CIBER, Inc.
Peter Cheesbrough
RESTRICTED STOCK OPTIONS
GRANT DATE |
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VEST |
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GRANTED |
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UNVESTED |
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11/6/2008 |
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11/6/2009 |
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5,000 |
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0 |
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11/6/2010 |
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5,000 |
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0 |
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11/6/2011 |
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5,000 |
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5,000 |
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1/27/2009 |
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4/29/2009 |
|
1,250 |
|
0 |
|
|
|
4/29/2010 |
|
1,250 |
|
0 |
|
|
|
|
|
|
|
|
|
1/27/2009 |
|
4/29/2011 |
|
1,250 |
|
0 |
|
|
|
3/3/2010 |
|
800 |
|
0 |
|
|
|
3/3/2011 |
|
800 |
|
0 |
|
|
|
|
|
|
|
|
|
3/3/2009 |
|
3/3/2012 |
|
800 |
|
800 |
|
|
|
|
|
|
|
|
|
3/9/2009 |
|
3/9/2010 |
|
5,000 |
|
0 |
|
|
|
3/9/2011 |
|
5,000 |
|
0 |
|
|
|
3/9/2012 |
|
5,000 |
|
5,000 |
|
|
|
|
|
|
|
|
|
11/5/2010 |
|
11/5/2012 |
|
37,500 |
|
37,500 |
|
|
|
11/5/2013 |
|
37,500 |
|
37,500 |
|
|
|
|
|
|
|
|
|
2/28/2011 |
|
2/28/2011 |
|
1,980 |
|
0 |
|
|
|
2/28/2012 |
|
1,980 |
|
1,980 |
|
|
|
2/28/2013 |
|
1,980 |
|
1,980 |
|
|
|
|
|
|
|
|
|
|
|
|
|
117,090 |
|
89,760 |
|
STOCK OPTIONS
GRANT DATE |
|
STRIKE |
|
ORIGINAL |
|
UNVESTED |
| |
11/9/2007 |
|
$ |
7.06 |
|
50,000 |
|
12,500 |
|
3/3/2009 |
|
$ |
2.15 |
|
7,200 |
|
2,400 |
|
1/31/2010 |
|
$ |
3.23 |
|
17,820 |
|
11,880 |
|
4/23/2010 |
|
$ |
4.18 |
|
5,000 |
|
2,500 |
|
|
|
|
|
80,020 |
|
29,280 |
|
EXHIBIT 99.1
CIBER, Inc.
6363 S. Fiddlers Green Circle, Suite 1400
Greenwood Village, CO 80111
www.ciber.com
|
Contact: |
Gary Kohn |
Robin Caputo |
|
|
Investor Relations |
Media Relations |
|
|
303-625-5256 |
303-267-3876 |
|
|
gkohn@ciber.com |
rcaputo@ciber.com |
CIBER ANNOUNCES CFO TRANSITION
FORMER HP FINANCIAL EXECUTIVE ASSUMES CFO ROLE
GREENWOOD VILLAGE, Colo. March 10, 2011 CIBER, Inc. (NYSE: CBR), a global information technology consulting, services and outsourcing company, today announced that Peter Cheesbrough is leaving CIBER after nine years with the company to pursue his interest in participating on other public company boards. CIBER named Claude Pumilia, a former Hewlett-Packard senior financial officer, as Chief Financial Officer effective April 4, 2011. Cheesbrough will continue at the company through the end of April working closely with Pumilia to ensure a smooth transition of duties and responsibilities.
This is an ideal time for Peter to pursue his personal interest now that we have our strategic and operational plans in place, said CIBERs Chief Executive Officer Dave Peterschmidt. Peter has provided sound leadership to the operational organization, was instrumental in instilling our new operating regimens and has been a strong voice on our board, for which we are all grateful.
This is an opportune time to transition to a CFO with deeper industry experience who will continue to drive the momentum we have started in pursuit of our objectives, Peterschmidt added.
Cheesbrough joined CIBERs board of directors in 2002 and has been CFO since 2007. During his tenure with the company, he was instrumental in helping grow revenues to more than $1 billion and played a key role in CIBER becoming a global brand. Cheesbrough also served as interim CEO from April through July last year.
Ive enjoyed being part of this great company over the last decade, Cheesbrough said. Im proud of CIBERs accomplishments and I am very confident in CIBERs future based on the operational regimens and financial disciplines which we have put in place during the past nine months.
Pumilia, 43, has held senior finance and leadership roles with CA, Inc. (formerly Computer Associates), Hewlett-Packard, and Compaq. Pumilias responsibilities have included divisional CFO roles, worldwide financial and strategic planning, development and introduction of organizational disciplines and metrics to drive performance, and extensive merger and acquisition experience. At HP, Pumilia drove double-digit revenue and profit growth in the Digital Imaging and Publishing business unit, a $3 billion division within HP.
Pumilia held positions with McKinsey & Company performing strategy and valuation assignments, with Baker & Botts, LLP representing private and public corporate clients in business transactions and
with Andersen Consulting advising financial and energy clients. Most recently, he served as Chief Financial Officer for the City and County of Denver since 2007. As the first CFO of the City of Denver, Pumilia restructured $3 billion of publicly-traded debt and led cost-reduction efforts that closed over $300 million in deficits. He holds a Juris Doctor degree from the University of Virginia School of Law and a BA in Economics and Managerial Studies from Rice University.
Under Dave Peterschmidts leadership, CIBER has focused on creating operational regimens that deliver consistent results. Im excited to join the company and play a major role in achieving the full potential of its strategy, said Pumilia.
Throughout his career, Claude has demonstrated the ability to combine disciplined financial management with execution that both grows revenue and increases profits. Claude gained extensive business, finance, and leadership experience coming up through the financial planning and analysis side, said Peterschmidt. We are confident in his ability to continue CIBERs commitment to financial discipline and building value for our shareholders.
Conference Call
The company will host a conference call at 9:00 a.m. Eastern Time today. To participate in the conference call, dial 800-299-0148 (U.S.) or +1-617-801-9711 (outside the U.S.) ten minutes prior to the start of the call and provide the operator with the pass code 61572325. A replay of the call will be available one hour after the call ends through March 17, 2011. To access the telephone replay, dial 888-286-8010 (U.S.) or +1-617-801-6888 (outside the U.S.) and use the pass code 73450443.
About CIBER, Inc.
CIBER, Inc. is a global information technology consulting, services and outsourcing company applying practical innovation through services and solutions that deliver tangible results for both commercial and government clients. Services include application development and management, ERP implementation, change management, project management, systems integration, infrastructure management and end-user computing, as well as strategic business and technology consulting. Founded in 1974 and headquartered in Greenwood Village, Colorado, CIBER has more than 8,500 employees and subcontractors and operates in 18 countries, serving clients in North America, Europe and Asia/Pacific. Annual revenue in 2010 was $1.1 billion. CIBER trades on the New York Stock exchange (NYSE: CBR), and is included in the Russell 2000 Index and the S&P Small Cap 600 Index. For more information, visit www.ciber.com.
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