<PAGE>
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------
FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 FOR THE FISCAL YEAR
ENDED JUNE 30, 1999.
Commission File Number 0-23488
CIBER, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 38-2046833
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
5251 DTC PARKWAY, SUITE 1400, ENGLEWOOD, COLORADO 80111
(Address of principal executive offices) (Zip Code)
(303) 220-0100
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Title of Class Name of exchange on which registered
-------------- ------------------------------------
COMMON STOCK $0.01 PAR VALUE NEW YORK STOCK EXCHANGE
Securities registered pursuant to Section 12(g) of the Act:
NONE
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months and (2) has been subject to such filing
requirements for the past 90 days. X Yes No
--- ---
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K. __
The aggregate market value of the voting stock (Common Stock) held by
non-affiliates of the registrant as of August 31, 1999 was $853,223,417 based
upon the closing price of $18.3125 per share as reported on the New York Stock
Exchange on that date.
As of August 31, 1999, there were 59,099,973 shares of the registrant's
Common Stock outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Registrant's Proxy Statement for the 1999 Annual Meeting of
Shareholders are incorporated by reference into Part III hereof.
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<PAGE>
CIBER, INC.
FORM 10-K
FOR THE FISCAL YEAR ENDED JUNE 30, 1999
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PART I Page
----
<S> <C> <C>
Item 1. Business 3
Item 2. Properties 9
Item 3. Legal Proceedings 9
Item 4. Submission of Matters to a Vote of Security Holders 9
PART II
Item 5. Market for the Company's Common Stock and Related Shareholder Matters 10
Item 6. Selected Financial Data 11
Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations 12
Item 7A. Quantitative and Qualitative Disclosures About Market Risk 20
Item 8. Financial Statements and Supplementary Data 21
Item 9. Changes In and Disagreements with Accountants on Accounting and Financial Disclosure 40
PART III
Item 10. Directors and Executive Officers 40
Item 11. Executive Compensation 42
Item 12. Security Ownership of Certain Beneficial Owners and Management 42
Item 13. Certain Relationships and Related Transactions 42
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K 42
Signatures 45
</TABLE>
2
<PAGE>
PART I
ITEM 1. BUSINESS
GENERAL
CIBER, Inc. ("CIBER" or the "Company") is a provider of information
technology ("IT") consulting services. At August 31, 1999, CIBER had
approximately 6,500 employees located in 45 major cities in 25 states plus
Canada, and offered IT solutions in the following areas:
- Strategic IT & Management Consulting
- e.Business Solutions
- ERP/Enterprise Software Solutions
- Custom IT Solutions
- Enterprise Systems & Network Integration
- Enterprise Outsourcing
Effective July 1, 1999, CIBER's services began being sold 100% under one
name, CIBER, using a common marketing theme and new logo. This approach
replaced the several different names, logos, and marketing themes of the
Company's previous operating subsidiaries. Management believes the new
marketing approach will offer several benefits, including better brand
identification and market clarity, increased market recognition and increased
cross-selling to the Company's customer base.
The Company began operations in 1974 to assist companies in need of computer
programming support. In the mid-1980s, the Company initiated a growth
strategy that included expanding its range of computer-related services,
developing a professional sales force and selectively acquiring or merging
established complementary companies. Since fiscal 1995, after restatements
for poolings of interests business combinations, the Company's revenues have
increased from $234.1 million to $719.7 million in fiscal 1999, a compound
annual growth rate of 32%. Over the same period, pro forma net income
increased from $8.2 million in fiscal 1995 to $54.5 million in fiscal 1999, a
compound annual growth rate of 61%. Revenues and pro forma net income have
grown at a compound annual growth rate of 60% and 91%, respectively, over the
same period when compared to CIBER's results of operations originally
reported for fiscal 1995.
BUSINESS STRATEGY
The Company's strategy is to expand its business by continuing to build
long-term relationships with major clients based on providing high-quality
information technology services tailored to meet client needs, with an
emphasis on services involving electronic business ("e.business"). The
Company's traditional model has been expanded to include a comprehensive
array of services that constitute the major element of the Company's
e.business offering, including: management consulting, information systems
design, development, integration and implementation, and project management
services. The Company's strategy includes the following key elements:
- - e.BUSINESS FOCUS. Electronic business is a revolutionary transformation for
the way government, business and society relate to one another and handle
their relationships. e.Business spans a broad range of initiatives, from
web-enabling legacy applications, to creating enterprise portals, to
completely rebuilding an organization with an electronic business model.
Almost all of CIBER's service offerings include e.business in some form.
Consequently, all of CIBER's operations are in an "electronic universe" of
groups and practices which are delivering services to the market as packaged
solutions.
- - BUILD STRONG CLIENT RELATIONSHIPS. The Company is committed to providing IT
services that meet the demands of mid to large size organizations with
substantial data processing operations. Management believes the Company's
emphasis on building long-term relationships with major clients has been a
primary reason for the Company's success. Most of the Company's largest
clients have been clients for many years.
3
<PAGE>
- - GROW THROUGH BUSINESS COMBINATIONS AND INTERNAL EXPANSION. The Company
intends to expand by acquiring companies that broaden CIBER's array of
consulting services, that have strategic client relationships or that are
located in attractive geographic locations, including overseas. The Company
also intends to expand the operations of existing offices primarily by
providing additional information technology consulting services to existing
clients. The Company may also start new branches in attractive markets with
its own personnel.
- - EXPAND INTEGRATION, IMPLEMENTATION AND OTHER SERVICES. The Company's
historical time and material custom programming services have expanded to
include management level strategic systems solutions, as well as the
implementation of clients' long-term information technology strategies, from
design and development of their information systems through testing and
implementation, to migration from mainframe to client/server architectures,
as well as package software project implementation. As a result of these
efforts, the Company is taking greater responsibility for projects and
providing greater value-added services to its clients. This expansion of
focus, combined with the Company's processes, methodologies, tools and
templates, help position the Company as a full-service provider for its
existing and new clients' information technology and application needs. The
Company believes as enterprise level packaged software applications (such as
PeopleSoft, SAP, Lawson, J. D. Edwards, Oracle, Siebel and Baan) continue to
enhance functionality and performance, including the expanding functionality
related to e.business and the internet, and such products become more widely
used, that implementation services can present an area of increasing
opportunity for the Company.
- - FOCUS ON QUALITY SERVICE. The Company seeks to be a leader in providing
quality services and processes to its clients. Certain of CIBER's operations
have received ISO 9001 certification as well as certain customer quality
awards. ISO 9001 certification has enhanced the Company's ability (i) to
achieve preferred supplier status from larger companies, (ii) to satisfy
current and prospective clients who insist on a documented quality assurance
system and (iii) to improve its operations by facilitating cost controls and
other efficiencies on a continuing basis.
SERVICES
CIBER offers the following management consulting and IT solution services to its
clients:
STRATEGIC IT & MANAGEMENT CONSULTING
- Business Strategy & Optimization
- IT Strategy & Architecture
- Program Management
e.BUSINESS SOLUTIONS
- e.Business Strategy
- Infrastructure Design & Implementation
- e.Business Application Development
ERP/ENTERPRISE SOFTWARE SOLUTIONS
- Enterprise Software Selection, Implementation &
Integration
- ERP (SAP, PeopleSoft, Oracle, J.D. Edwards, Lawson,
Baan)
- Supply Chain Management (LogisticsPRO)
- Customer Relationship Management (Siebel)
- Hardware Sizing & Procurement
4
<PAGE>
CUSTOM IT SOLUTIONS
- Data Warehousing
- Middleware Integration
- Federal Government Solutions
- Custom Application Development & Maintenance
- Custom Outsourcing
ENTERPRISE SYSTEMS & NETWORK INTEGRATION
- Systems Integration
- Distributed Systems Management
- IT Deployment
- Infrastructure Design & Implementation
- LAN/WAN Integration
- Intranet/Extranet
- Security
- Storage & Back-up
ENTERPRISE OUTSOURCING
- Enterprise Application Hosting
- Business Processing
- Enabling Services
- Data Center
- Help Desk
BUSINESS COMBINATIONS
The Company has expanded its geographic breadth, expanded its technical
expertise, increased its client base and believes it has achieved other
competitive advantages through business combinations. Given the highly
fragmented nature of the information technology services industry, the
Company intends to pursue business combinations as part of its growth and
operation strategy, including possible international opportunities. The
success of this strategy depends not only upon the Company's ability to
identify and acquire businesses on a cost effective basis, but also upon its
ability to integrate acquired operations into its organization effectively,
to retain and motivate personnel and to retain clients of acquired or merged
companies. In reviewing potential business combinations, the Company focuses
on the target company's geographic area, client base, capabilities in
specific technical services, acquisition availability, cost, anticipated
financial performance, sales, management and recruiting of personnel and
potential client demand, among other factors. From July 1, 1996 to June 30,
1999, the Company has completed the following business combinations:
5
<PAGE>
<TABLE>
APPROXIMATE CONSULTANTS
CONSIDERATION, AT
DATE NAME MAIN OFFICE IN MILLIONS (1) ACQUISITION
- ------------------- --------------------------------------- --------------------------- ----------------- -------------
<S> <C> <C> <C> <C>
April 1999 Digital Software Corporation Aurora, Colorado $6.9 94
March 1999 Compaid Consulting Services, Inc. Atlanta, Georgia $9.7 110
February 1999 Business Impact Systems, Inc. Herndon, Virginia $62.2 122
February 1999 Paradyme HR Technologies Corporation Columbia, South Carolina $5.0 (2) 20
February 1999 Integration Software Consultants, Inc. Philadelphia, Pennsylvania $34.0 81
January 1999 York & Associates, Inc. St. Paul, Minnesota $14.5 42
January 1999 Paragon Solutions, Inc. Pittsburgh, Pennsylvania $4.4 (3) 28
November 1998 The Doradus Corporation Minneapolis, Minnesota $4.1 43
August 1998 The Cushing Group, Inc. Nashua, New Hampshire $24.1 22
August 1998 EJR Computer Associates, Inc. Hoboken, New Jersey $36.0 196
May 1998 The Summit Group, Inc. Mishawaka, Indiana $133.7 262
April 1998 Step Consulting, Inc. Greensboro, North Carolina $4.3 32
March 1998 Computer Resource Associates, Inc. Harrisburg, Pennsylvania $17.6 177
March 1998 Advanced Systems Engineering, Inc. Aurora, Colorado $12.7 150
November 1997 Techware Consulting, Inc. Irving, Texas $16.4 107
November 1997 Financial Dynamics, Inc. McLean, Virginia $25.0 166
October 1997 The Constell Group, Inc. Elmwood Park, New Jersey $11.4 97
October 1997 Bailey & Quinn, Inc. Norcross, Georgia $3.4 49
August 1997 SoftwarExpress, Inc. - d/b/a Reliant Menlo Park, California $23.7 40
Integration Services, Inc.
July 1997 KCM Computer Consulting, Inc. Calverton, Maryland $15.3 151
March 1997 Davis, Thomas & Associates, Inc. Minneapolis, Minnesota $13.5 117
December 1996 CIBER Network Services, Inc. Edison, New Jersey $6.9 50
November 1996 Technical Support Group, Inc. Chicago, Illinois $13.5 70
November 1996 Technology Management Group, Inc. Seattle, Washington $13.7 108
September 1996 Spectrum Technology Group, Inc. Somerville, New Jersey $16.6 110
July 1996 DataFocus, Inc. (4) Fairfax, Virginia $5.0 45
----------------- -------------
$533.6 2,489
----------------- -------------
----------------- -------------
</TABLE>
(1) APPROXIMATE CONSIDERATION INCLUDES THE VALUE OF CIBER COMMON STOCK
(BASED ON THE CLOSING PRICE OF THE STOCK ON THE MERGER DATE) AND
OPTIONS FOR CIBER COMMON STOCK ISSUED, IF A MERGER, OR CASH PAID
(INCLUDING ANY CONTINGENT CONSIDERATION), COMMON STOCK ISSUED AND
LIABILITIES ASSUMED, IF AN ACQUISITION.
(2) IF THE ACQUIRED BUSINESS ACHIEVES CERTAIN LEVELS OF REVENUE OR NET
INCOME, THE COMPANY WILL BE REQUIRED TO PAY ADDITIONAL CONSIDERATION
OF UP TO $3.0 MILLION IN CASH OR COMMON STOCK.
(3) IF THE ACQUIRED BUSINESS ACHIEVES CERTAIN LEVELS OF REVENUE OR NET
INCOME, THE COMPANY WILL BE REQUIRED TO PAY ADDITIONAL CONSIDERATION
OF UP TO $3.3 MILLION IN CASH OR COMMON STOCK.
(4) THE COMPANY ACQUIRED ONLY THE BUSINESS SYSTEMS DEVELOPMENT DIVISION
OF THIS COMPANY.
6
<PAGE>
CLIENTS
The Company focuses its marketing efforts on mid to larger sized companies
and other organizations, such as governments, with substantial needs for IT
service solutions. Such clients afford the Company opportunities to develop
long-term relationships based on the high quality, consistent services the
Company has provided for 25 years. Although most assignments are from three
to twelve months, many of the Company's client relationships have continued
for more than 10 years.
The ability to serve large clients in diverse industries demonstrates the
Company's adaptability to a wide variety of client environments. Whether
clients are in the services or manufacturing sector, the Company provides
consultants having skills matching the requirements of each project. The
Company routinely satisfies the diverse information technology needs of
clients in a wide variety of industries.
Certain customers account for a significant portion of the Company's
revenues. The Company's five largest clients represented approximately 15%,
14%, 15% of the Company's total revenues for the years ended June 30, 1997,
1998 and 1999, respectively. Some of the Company's significant clients
include: American Express Company, AT&T, City & County of San Francisco,
Commonwealth of PA, Ford Motor Company, GTE Corporation, IBM, Lockheed
Martin, MCI Telecommunications Corporation and Xerox Corporation.
CIBER has a significant relationship with PeopleSoft as an implementation
partner. In fiscal 1999, approximately 10% of the Company's total revenues
was derived from clients who purchased implementation services for their
PeopleSoft software. In the event PeopleSoft products become obsolete or
non-competitive, or if CIBER should lose its "implementation partner" status
with PeopleSoft, the Company could suffer a material adverse effect.
The Company generally prices its services to clients on a time-and-materials
basis and maintains price ranges that reflect the technical skills and
experience levels of the Company's consultants. The Company has provided and
intends to continue to provide project services to its clients. Projects are
distinguishable from the Company's professional services staff
supplementation consulting by the level of responsibility assumed by the
Company. In a typical project, the Company assumes major responsibilities for
the management of the project and/or the design of deliverables that results
in a client-specific outcome. With professional services staff
supplementation contracts, the Company's clients generally maintain
responsibility for the overall task. The failure of a project or the failure
of the Company to provide project services in a satisfactory manner could
have a material adverse effect on the Company. Further, the Company may
undertake projects on a fixed price basis and also may guarantee performance
based upon defined operating specifications. Cost overruns, unsatisfactory
performance or unanticipated difficulties in completing projects could have a
material adverse effect on the Company's results of operations.
Many larger clients have limited the number of information technology vendors
they use. In order to achieve the reduction in the number of vendors used,
companies often review and screen both existing and potential vendors and
generate select lists of approved vendors. The factors considered for
placement of a company on a vendor list include geographic and technical
breadth of operations, quality assurance programs, reliability and cost
effectiveness.
SALES FORCE
At August 31, 1999, the Company maintained an experienced sales force of
approximately 250 employees who market the Company's services to senior
business executives, chief information officers, information systems managers
and others who purchase IT solution services. The purchasing departments of
many of the Company's larger clients commonly select a limited list of
preferred vendors. Once on the vendor list, the Company's sales
representatives are eligible to work directly with managers of projects or
application systems seeking consultant assistance. New client contacts are
generated through a variety of methods, including client referrals, trade
shows, personal sales calls, direct mailings to targeted clients and
telemarketing.
7
<PAGE>
OFFICES
The Company's branch office network is integral to its business strategy.
Through the branch office network, the Company can (i) offer a broad range of
consulting services on a local basis, (ii) respond to changing market demands
for information technology services through a variety of contacts in many
industries and geographic areas and (iii) maintain a quality professional
staff because of its nationwide reputation and its training programs.
Additionally, the offices can market their services as being provided by a
company with a national presence and a long history in the information
technology services business.
The Company believes its operating procedures and financial controls are two
of its primary strengths. Business plans, generally at the office level, are
prepared annually and include monthly projections for the ensuing fiscal
year. Results are tracked monthly to compare actual performance to projected
results. The Company has centralized accounting and cash management functions
to help ensure integrity of data and control of information flow. Operating
data is available on a weekly basis. The Company believes that these
practices enhance results from acquired businesses as well.
The Company established its office network through the internal start-up and
staffing of offices in new geographic locations and through the acquisition
of information technology services companies, their professional staffs and
client relationships. The Company's network of offices currently consists of
approximately 45 offices in 25 states plus Canada. The number of consultants
working out of any office ranges from as few as 10 to over 300.
CONSULTANTS
The Company's future success will depend in part on its ability to hire and
retain adequately trained personnel who can address the changing and
increasingly sophisticated needs of its clients. The Company's on-going
consultant needs arise from (i) increasing demand for the Company's services,
(ii) turnover, which is generally high in the industry, and (iii) the
clients' requests for consultants trained in the newest technologies. Few of
the Company's employees are bound by non-compete agreements. Competition for
personnel in the information technology services industry is significant and
the Company has had, and expects to continue to have, difficulty in
attracting and retaining an optimal level of qualified personnel. In
particular, competition for the limited number of qualified project managers
and professionals with certain specialized skills, such as a working
knowledge of certain technologies, is intense. Because of this, the
recruitment of the Company's skilled consultant group is a critical element
to the Company's success. The Company devotes significant resources to
meeting its personnel requirements. At August 31, 1999, the Company had
approximately 175 full-time recruiters in its offices and approximately 25 in
its National Recruiting Group. The National Recruiting Group maintains a
national, proprietary database of relocatable and harder to find consultants
(due to unique or specialized skill sets), augments local recruiting,
advertises nationally and over the Internet for new consultants, travels to
branches to train new recruiters and performs related tasks.
The Company offers a number of programs designed to retain its trained
personnel. The Company offers a tuition reimbursement program and provides
technical training courses that are available for home study. The Company
also makes available to employees an employee stock purchase plan, a matching
provision as part of its 401(k) savings plan, and stock options.
It is often difficult to match the availability of consultants with client
requirements. Pre-marketing and lead times from clients help, but consultant
availability remains a significant factor in determining whether the Company
or a competitor will obtain the available business. The Company believes that
careful coordination of its recruiting and sales activities gives it an
advantage over many of its smaller competitors.
8
<PAGE>
COMPETITION
The information technology services industry is extremely competitive and
characterized by continuous changes in customer requirements and improvements
in technologies. The Company's competition varies significantly from city to
city as well as by the type of service provided. The Company believes that no
one competitor dominates any of its markets.
The Company's principal competitors include: Andersen Consulting LLP,
Cambridge Technology Partners, Inc., Computer Sciences Corporation,
Electronic Data Systems Corporation, Keane, Inc. and Sapient, Inc. Many large
accounting and consulting firms offer services that overlap with a
significant portion of the Company's services. Many of the Company's
competitors are larger and have greater financial, technical, sales and
marketing resources than CIBER. In addition, the Company must frequently
compete with a client's own internal information technology staff. The
Company expects to encounter additional competition as it enters new markets.
In order to maintain and develop new client relationships, the Company must
offer its services at competitive rates. There are competitors that may offer
the same or similar services as the Company at similar or lower rates.
Additionally, certain of the Company's clients require reduced rates after
services have commenced. There can be no assurance that the Company will be
able to compete effectively on pricing or other requirements and, as a
result, the Company could lose clients or be unable to maintain historic
gross margin levels or to operate profitably. With respect to the Company's
implementation services for software packages, the vendors of such software
may have training or other requirements that inhibit the Company from
competing effectively with other packaged software implementation providers.
In addition, the vendors of such software offer implementation services
similar to the Company which, in certain situations, can place the Company at
a competitive disadvantage.
EMPLOYEES
As of August 31, 1999, the Company had approximately 6,500 full-time
employees, including approximately 1,100 personnel in administrative
positions and approximately 5,400 billable consultants. Administrative
personnel are principally branch managers, sales representatives, recruiters
and administrative assistants located throughout the Company's offices. None
of the Company's employees are subject to a collective bargaining
arrangement. The Company has entered into employment agreements with its
executive officers. The Company believes its relations with its employees are
good.
ITEM 2. PROPERTIES
CIBER's executive offices are located at 5251 DTC Parkway, Suite 1400,
Englewood, Colorado 80111. The Company leases approximately 38,500 square
feet of office space in Denver for its corporate offices. The lease expires
in December 2003.
CIBER leases office space at various other locations under leases ranging
from month-to-month up to ten-year terms. CIBER had leases totaling
approximately 722,000 square feet at June 30, 1999. Total office rent expense
for the year ended June 30, 1999 was $10.7 million for all offices. The
Company's facilities are adequate for its current level of operations.
ITEM 3. LEGAL PROCEEDINGS
The Company is not a party to any material legal proceedings.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of the Company's shareholders during the
fourth quarter of the Company's fiscal year ended June 30, 1999.
9
<PAGE>
PART II
ITEM 5. MARKET FOR THE COMPANY'S COMMON STOCK AND RELATED SHAREHOLDER MATTERS
The Company's common stock is listed on the New York Stock Exchange under the
symbol "CBR." The table below sets forth the high and low sales price per
share of the Company's common stock for the periods indicated.
<TABLE>
<CAPTION>
High Low
---- ---
<S> <C> <C>
Fiscal Year Ended June 30, 1998
First Quarter 24.25 16.56
Second Quarter 29.00 19.75
Third Quarter 35.63 23.41
Fourth Quarter 38.00 28.38
Fiscal Year Ended June 30, 1999
First Quarter 40.88 18.25
Second Quarter 27.94 13.31
Third Quarter 29.50 17.88
Fourth Quarter 23.38 16.19
</TABLE>
10
<PAGE>
ITEM 6. SELECTED FINANCIAL DATA
<TABLE>
<CAPTION>
Year Ended June 30
IN THOUSANDS, EXCEPT PER SHARE DATA 1995 (1) 1996 (1) 1997 (1) 1998 (1) 1999
- -------------------------------------------------- --- ------------- ------------ -------------- ------------ -------------
<S> <C> <C> <C> <C> <C>
OPERATING DATA:
Revenues $ 234,060 295,965 413,380 576,488 719,661
Amortization of intangible assets $ 1,395 1,795 3,087 3,936 7,520
Merger costs $ 1,075 901 1,218 4,538 1,535
Operating income $ 13,789 19,944 33,368 57,868 89,340
Net income $ 9,777 14,781 21,226 36,477 54,495
Pro forma net income $ 8,164 12,469 20,423 34,270 54,495
Pro forma income per share - basic $ .20 .28 .43 .67 .98
Pro forma income per share - diluted $ .18 .26 .40 .64 .95
Cash dividends $ - - - - -
- -------------------------------------------------- --- ------------- ------------ -------------- ------------ -------------
Weighted average shares - basic 40,551 44,240 47,894 51,355 55,362
Weighted average shares - diluted 44,513 47,711 50,613 53,843 57,141
- -------------------------------------------------- --- ------------- ------------ -------------- ------------ -------------
BALANCE SHEET DATA:
Total assets $ 76,241 111,486 165,354 221,785 408,632
Total long-term liabilities $ 350 460 1,075 - -
Total shareholders' equity $ 38,896 73,720 117,614 165,844 337,136
Shares outstanding at year end 40,743 46,707 49,547 52,248 58,933
- -------------------------------------------------- --- ------------- ------------ -------------- ------------ -------------
FINANCIAL PERFORMANCE:
Revenue growth 35.0% 26.4% 39.7% 39.5% 24.8%
Operating income margin 5.9% 6.7% 8.1% 10.0% 12.4%
Pro forma net income margin 3.5% 4.2% 4.9% 5.9% 7.6%
Stock price at year end $ 4.44 11.00 17.09 38.00 19.13
</TABLE>
(1) Restated for poolings of interests business combinations through June 30,
1999.
11
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
THE FOLLOWING DISCUSSION OF THE RESULTS OF OPERATIONS AND FINANCIAL CONDITION
SHOULD BE READ IN CONJUNCTION WITH THE COMPANY'S CONSOLIDATED FINANCIAL
STATEMENTS AND NOTES THERETO. WITH THE EXCEPTION OF HISTORICAL MATTERS AND
STATEMENTS OF CURRENT STATUS, CERTAIN MATTERS DISCUSSED BELOW ARE
FORWARD-LOOKING STATEMENTS THAT INVOLVE SUBSTANTIAL RISKS AND UNCERTAINTIES
THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM TARGETS OR
PROJECTED RESULTS. FACTORS THAT COULD CAUSE ACTUAL RESULTS TO DIFFER
MATERIALLY, INCLUDE, AMONG OTHERS, YEAR 2000 EFFECTS, GROWTH THROUGH BUSINESS
COMBINATIONS AND INTERNAL EXPANSION, THE ABILITY TO ATTRACT AND RETAIN
QUALIFIED CONSULTANTS, DEPENDENCE ON SIGNIFICANT RELATIONSHIPS AND THE
ABSENCE OF LONG-TERM CONTRACTS, MANAGEMENT OF A LARGE AND RAPIDLY GROWING
BUSINESS, PROJECT RISKS, PRICING AND MARGIN PRESSURE, COMPETITION, POTENTIAL
FLUCTUATIONS IN QUARTERLY OPERATING RESULTS, PRICE VOLATILITY, AND
INTERNATIONAL EXPANSION, WHICH ARE DISCUSSED HEREIN UNDER THE CAPTION
"FACTORS THAT MAY AFFECT FUTURE RESULTS." MANY OF THESE FACTORS ARE BEYOND
THE COMPANY'S ABILITY TO PREDICT OR CONTROL. IN ADDITION, AS A RESULT OF
THESE AND OTHER FACTORS, THE COMPANY'S PAST FINANCIAL PERFORMANCE SHOULD NOT
BE RELIED ON AS AN INDICATION OF FUTURE PERFORMANCE.
OVERVIEW
The Company's revenues have increased from $234.1 million in fiscal 1995 to
$719.7 million in fiscal 1999, a compound annual growth rate of 32%. CIBER is
a provider of information technology consulting services in the following
areas:
- Strategic IT & Management Consulting
- e.Business Solutions
- ERP/Enterprise Software Solutions
- Custom IT Solutions
- Enterprise Systems & Network Integration
- Enterprise Outsourcing
CIBER has grown significantly through mergers and acquisitions, as well as
through internal growth. For purposes of this report, the term "acquisition"
refers to business combinations accounted for as a purchase and the term
"merger" refers to business combinations accounted for as a pooling of
interests. The Company's acquisitions involve the capitalization of
intangible assets, which intangible assets are generally amortized over
periods of up to 20 years for financial reporting purposes. The Company's
consolidated financial statements include the results of operations of an
acquired business since the date of acquisition. Mergers result in a one-time
charge in the period in which the transaction is completed for costs
associated with the business combination. Unless the effects are immaterial,
the Company's consolidated financial statements are restated for all periods
prior to a merger to include the results of operations, financial position
and cash flows of the merged company. In addition, selling, general and
administrative expenses may vary as a percentage of revenues depending on the
fluctuations in the selling, general and administrative expenses of merged
companies, if any, during any given period. CIBER completed 10 business
combinations in each of the fiscal years ended June 30, 1999 and 1998, and 6
business combinations in the fiscal year ended June 30, 1997.
12
<PAGE>
The following table sets forth, for the years indicated, certain items from
the Company's consolidated statements of operations, expressed as a
percentage of revenues and percentage change in the dollar amount of such
items compared to the prior year:
<TABLE>
<CAPTION>
Dollar %
Percentage of Revenues Increase (Decrease)
Year Ended June 30, Year to Year
--------------------------------------- -------------------------
1997 1998 1999 1997:1998 1998:1999
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Revenues 100.0% 100.0% 100.0% 39.5% 24.8%
Gross margin 32.6% 34.9% 35.6% 48.9 27.6
Selling, general and administrative expenses 23.5 23.4 21.9 38.4 17.3
------------------------------------------
Operating income before amortization
and merger costs 9.1 11.5 13.7 76.1 48.3
Amortization of intangible assets .7 .7 1.1 27.5 91.1
Merger costs .3 .8 .2 272.6 (66.2)
------------------------------------------
Operating income 8.1 10.0 12.4 73.4 54.4
Interest and other income, net .2 .3 .4 48.6 72.0
------------------------------------------
Income before income taxes 8.3 10.3 12.8 72.7 54.8
Income tax expense 3.2 4.0 5.2 74.0 63.5
------------------------------------------
Net income 5.1% 6.3% 7.6% 71.9 49.4
------------------------------------------
------------------------------------------
Pro forma net income 4.9% 5.9% 7.6% 67.8 59.0
------------------------------------------
------------------------------------------
</TABLE>
FISCAL YEAR ENDED JUNE 30, 1999 COMPARED TO FISCAL YEAR ENDED JUNE 30, 1998
The Company's revenues for fiscal 1999 increased 24.8% to $719.7 million from
$576.5 million for fiscal 1998. This represents a 27.8% increase in
consulting revenues offset by a planned decrease in other revenues, primarily
sales of computer hardware products. Other revenues decreased to $59.3
million in fiscal 1999 from $59.8 million in fiscal 1998. The increase in
revenues is derived primarily from an increase in hours billed and, to a
lesser extent, an increase in average billing rates.
Of the 27.8% increase in consulting revenues for fiscal 1999 in comparison to
fiscal 1998, approximately 9% was due to revenues from acquired businesses or
immaterial poolings of interests and approximately 19% was due to organic
growth of existing operations. Organic growth for the year was driven by a
strong demand for ERP implementation services and was lessened, to some
extent, due to declining direct Year 2000 service revenues.
Gross margin percentage improved to 35.6% of revenues in fiscal 1999 from
34.9% in fiscal 1998. This improvement was due to improved gross margins on
both consulting services and other revenues. Gross margins on consulting
services have increased as a larger percentage of the Company's revenues are
derived from higher margin solutions oriented and project work.
Selling, general and administrative expenses were 21.9% of revenues for
fiscal 1999 compared to 23.4% of revenues for fiscal 1998. The decrease as a
percentage of revenues is primarily due to greater economies of scale,
including reduced administrative costs of certain merged companies. As the
Company's focus continues to shift to more solutions oriented and project
work, selling, general and administrative expenses will tend to increase as a
percentage of sales and partially offset the generally higher gross margins
on such work.
Amortization of intangible assets increased to $7.5 million in fiscal 1999
from $3.9 million in fiscal 1998. This increase was due to the additional
amortization of intangible assets resulting from recent mergers and
acquisitions. Fiscal 1999 acquisitions will increase amortization in future
years to approximately $12 million per year.
13
<PAGE>
Merger costs, primarily transaction related broker and professional costs, of
$1.5 million were incurred in fiscal 1999 compared to $4.5 million in fiscal
1998.
Net interest and other income increased to $2.6 million in fiscal 1999 from
$1.5 million in fiscal 1998 due to increased average cash balances available
for investment and the elimination of borrowings of certain merged companies.
After the pro forma adjustment, if any, to income tax expense, the Company's
pro forma effective tax rates for fiscal 1999 and 1998 were 40.8% and 42.3%,
respectively. The Company's effective tax rate is higher than its normal tax
rate due to nondeductible merger costs. Nondeductible amortization resulting
from fiscal 1999 acquisitions has also increased the Company's effective tax
rate. The pro forma adjustment to income tax expense reflects the exclusion
of the one-time income tax effects related to changes in the tax status of
certain merged companies and imputes income tax expense for S corporation
operations that were not subject to income taxes.
The Company's pro forma net income increased 59.0% to $54.5 million in fiscal
1999 from $34.3 million in fiscal 1998.
FISCAL YEAR ENDED JUNE 30, 1998 COMPARED TO FISCAL YEAR ENDED JUNE 30, 1997
The Company's revenues for fiscal 1998 increased 39.5% to $576.5 million from
$413.4 million for fiscal 1997. This represents a 44.2% increase in
consulting revenues and an 8.8% increase in other revenues. Other revenues
increased to $59.8 million in fiscal 1998 from $54.9 million in fiscal 1997.
The increase in revenues is derived primarily from an increase in hours
billed and, to a lesser extent, an increase in average billing rates.
Of the 44.2% increase in consulting revenues for fiscal 1998 in comparison to
fiscal 1997, approximately 8% was due to revenues from acquired businesses or
immaterial poolings of interests and approximately 36% was due to organic
growth of existing operations. This growth was from increased demand for IT
services, including an increased demand for Year 2000 related services and
increased demand for ERP software implementation services.
Gross margin percentage improved to 34.9% of revenues in fiscal 1998 from
32.6% of revenues in fiscal 1997. This increase was due to improved gross
margins on both consulting services and other revenues.
Selling, general and administrative expenses were 23.4% of revenues for fiscal
1998 compared to 23.5% of revenues for fiscal 1997.
Amortization of intangible assets increased to $3.9 million in fiscal 1998 from
$3.1 million in fiscal 1997. This increase was due primarily to the Company's
acquisitions in fiscal 1998.
Merger costs, primarily transaction related broker and professional costs, of
$4.5 million were incurred in fiscal 1998 compared to $1.2 million in fiscal
1997.
Net interest income increased to $1.5 million in fiscal 1998 from $1.0 million
in fiscal 1997 due to increased average cash balances available for investments
and the elimination of borrowings of certain merged companies.
After the pro forma adjustment to income tax expense, the Company's pro forma
effective tax rates for fiscal 1998 and 1997 were 42.3% and 40.6%, respectively.
This increase was primarily due to increased nondeductible merger costs. The pro
forma adjustment to income tax expense reflects the exclusion of the one-time
income tax effects related to changes in the tax status of certain merged
companies and imputes income tax expense for S corporation operations that were
not subject to income taxes.
The Company's pro forma net income increased 67.8% to $34.3 million in fiscal
1998 from $20.4 million in fiscal 1997.
14
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
At June 30, 1999, the Company had $149.9 million of working capital, of which
$64.2 million was cash and cash equivalents, and had a current ratio of 3:1.
The Company has primarily used its operating cash flow and the net proceeds
from public offerings to finance working capital needs and acquisitions. The
Company believes that its cash and cash equivalents, its operating cash flow
and the availability of credit under its bank revolving line of credit will
be sufficient to finance working capital needs through at least fiscal 2000.
In June 1999, CIBER's Board of Directors authorized the repurchase of up to
10% of CIBER's outstanding stock. At June 30, 1999, CIBER had purchased
500,000 shares for $8.7 million under this program. In July and August 1999,
CIBER purchased an additional 1,480,000 treasury shares for $24.9 million and
may, depending on circumstances, purchase more. Furthermore, CIBER may use
cash to purchase businesses. As a result, CIBER may borrow to finance such
activities. Future borrowings may include bank, private or public debt.
Net cash provided by operating activities was $17.8 million, $27.1 million
and $64.7 million in fiscal 1997, 1998 and 1999, respectively. Changes in
operating assets and liabilities have used significant amounts of cash,
primarily as a result of increases in accounts receivable.
The Company's accounts receivable increased 52.4% and 24.2% in fiscal 1998
and 1999, respectively, primarily as a result of the Company's increase in
revenues. The Company's accounts receivable totaled $151.0 million at June
30, 1999 compared to $121.5 million at June 30, 1998. Accounts receivable
days sales outstanding ("DSO") was 71 days at June 30, 1999, which management
believes is in line with industry standards.
Net cash used in investing activities in fiscal 1997, 1998 and 1999 was $27.4
million, $11.2 million and $40.5 million, respectively. The Company used cash
of $19.3 million, $351,000 and $26.5 million for acquisitions during fiscal
1997, 1998 and 1999, respectively. The Company also purchased property and
equipment of $7.2 million, $11.7 million and $14.0 million during fiscal
1997, 1998 and 1999, respectively.
Net cash provided by (used in) financing activities in fiscal 1997, 1998 and
1999 was $12.9 million, ($4.9 million), and $1.8 million respectively. The
Company obtained net cash proceeds from sales of common stock of $22.9
million, $5.8 million and $14.8 million in fiscal 1997, 1998 and 1999,
respectively. Various companies that have been acquired or have merged with
CIBER have had outstanding balances on lines of credit and notes payable.
Upon acquisition by or merger with CIBER, these borrowings were paid in full.
During fiscal 1999, CIBER purchased 706,000 shares of treasury stock for
$13.0 million. Of these treasury shares, 206,000 were reissued as additional
consideration related to the acquisition of CNSI and as sales of common stock
under CIBER's Employee Stock Purchase Plan.
The Company has a $35 million unsecured revolving line of credit with a bank.
There were no outstanding borrowings under this bank line at June 30, 1998
and 1999. Outstanding borrowings bear interest at the three month London
Interbank Offered Rate ("LIBOR") plus 2%. The credit agreement requires a
commitment fee of 0.225% per annum on any unused portion of the line of
credit up to $20 million. The credit agreement expires in December 1999. The
Company expects, although there can be no assurance, to be able to renew this
line of credit on similar terms.
15
<PAGE>
YEAR 2000 COMPLIANCE
THE FOLLOWING STATEMENTS ARE "YEAR 2000 READINESS DISCLOSURES" IN CONFORMANCE
WITH THE YEAR 2000 INFORMATION AND READINESS DISCLOSURE ACT OF 1998.
The "Year 2000" issue is the result of computer programs using two digits
rather than four to define the applicable year. Computer software and
hardware and other devices with embedded technology that are date sensitive
may recognize a date using "00" as the year 1900 rather than the year 2000.
This could result in a system failure or miscalculations causing disruptions
of CIBER's operations.
CIBER has instituted various projects to address the Year 2000 issue. CIBER
believes its material internal information technology ("IT") systems,
including payroll, billing and accounting systems, are currently Year 2000
compliant. For significant third-party software applications, CIBER has
obtained confirmation that the software is Year 2000 compliant. CIBER has
completed testing and remediation, if necessary, of all internally developed
software.
CIBER is currently evaluating its non-IT systems, such as building security,
elevators, fire-safety systems, telephones, voice mail and other systems
containing embedded microprocessors as well as evaluating the Year 2000
readiness of its significant suppliers. CIBER relies on the services of the
landlords of its offices, telecommunications companies, banks, utilities,
commercial airlines, and insurance companies, among others. As of June 30,
1999, CIBER has received Year 2000 compliance status information from all of
its significant suppliers. Of these, 53% have indicated that they are
currently Year 2000 compliant. The remainder have indicated that they plan to
be Year 2000 compliant by December 31, 1999. If CIBER does not obtain
reasonable assurances from its significant third-party vendors and suppliers
that there will be no interruption of service as a result of the Year 2000
issue, CIBER intends to devise contingency plans. There can be no assurance
that any contingency plans developed by CIBER will prevent such service
interruption on the part of one or more of CIBER's vendors from having a
material adverse effect on CIBER.
CIBER's principal business is providing IT services. Some of CIBER's services
are directly or indirectly related to the Year 2000 issue, including Year
2000 remediation services. CIBER provides services to clients that assist the
client in their Year 2000 projects. In addition, CIBER provides services to
clients directly related to client systems that may or may not be Year 2000
compliant. Due to the potential significance of the Year 2000 issue upon
client operations and upon any failure of critical client systems to which
CIBER has provided services, CIBER may be subject to claims regardless of
whether the failure is related to the services provided by CIBER. If
asserted, the resolution of such claims, including defense costs, could have
a material adverse effect on CIBER. CIBER generally attempts to include
provisions in client contracts that, among other things, disclaim implied
warranties, limit the duration of any express warranties, limit CIBER's
maximum liability and disclaim any warranties for projects managed by the
client. There can be no assurance that CIBER will be able to obtain these
contractual protections in future client contracts, or that such provisions
will protect CIBER from, or limit the amount of, any liability arising from
claims against CIBER.
As a reseller of certain IT products, CIBER only passes to its customers the
applicable vendors' warranties. CIBER makes no warranties regarding Year 2000
compliance of any of the products it resells. CIBER has developed and
licensed certain warehousing and traffic software products that have
subsequently been modified to be Year 2000 compliant. Year 2000 compliant
versions have been tested both internally and by a third party. CIBER is
offering the Year 2000 compliant software versions to its prior and existing
customers at no charge. CIBER plans to contact all its customers and make
available the Year 2000 compliant software by September 30, 1999.
As described above, CIBER has identified various potential issues associated
with the Year 2000 issue. CIBER is devoting internal resources and is working
with its suppliers to help ensure that CIBER's business is not substantially
interrupted as a result of the Year 2000. CIBER believes that the total
amounts spent by it to date and that it expects to spend in fiscal 2000
addressing the Year 2000 issue will be less than $250,000. CIBER currently
does not have a contingency plan in the event of a particular system not
16
<PAGE>
being Year 2000 compliant. Such a plan will be developed if it becomes clear
that CIBER is not going to achieve its compliance objectives. Although CIBER
expects to identify and resolve all Year 2000 problems that could materially
adversely affect its business operations, management believes that it is not
possible to determine with certainty that all Year 2000 problems affecting
CIBER, its vendors, or its clients have been identified or corrected. If
CIBER is required to implement any contingency plan, it could have a material
adverse effect on CIBER's operations. In addition, the business interruption,
resulting from Year 2000 issues, of any of CIBER's significant clients could
have a material adverse effect on CIBER. This discussion of CIBER's Year 2000
efforts, management's expectations relating to Year 2000 compliance and the
possible effects on CIBER are forward-looking statements.
SEASONALITY
The Company experiences a moderate amount of seasonality. Typically,
operating income as a percentage of revenues is lowest in the last quarter of
each calendar year (the Company's second fiscal quarter) because more
holidays and vacations are taken at that time of year resulting in fewer
hours billed in that period.
RECENT ACCOUNTING PRONOUNCEMENTS
The Company believes that recent accounting pronouncements will not have a
material effect on its financial position or results of operations.
The Financial Accounting Standards Board (FASB) has proposed a new statement
that would, among other things, eliminate the pooling of interests method of
accounting for business combinations. The proposed statement would require
all business combinations to be recorded using the purchase method of
accounting and any resulting excess purchase price over the fair value of
acquired net assets ("goodwill") would be charged to earnings over a period
of not more than 20 years. The proposal would also allow the reporting of
earnings per share excluding amortization of goodwill. The proposed
accounting would be effective for business combinations after the effective
date. The actual pronouncement, when issued, will likely have changes from
the exposure draft. If issued, management believes this pronouncement would
increase the amount of goodwill recorded for subsequent business combinations
(as CIBER has historically completed a large percentage of business
combinations as poolings of interests) and also increase the amortization
charge against earnings. As a result, management believes its internal
operating metrics, excluding amortization of intangibles, should also be
considered when evaluating the Company's performance. Management also expects
investors to place increasing emphasis on "Cash EPS."
FACTORS THAT MAY AFFECT FUTURE RESULTS
Included in this report and elsewhere from time to time in other written
reports and oral statements, including but not limited to, the Annual Report
to Shareholders, quarterly shareholder letters, news releases and investor
presentations, are forward-looking statements about the Company's business
strategies, market potential, future financial performance and other matters
which reflect management's current expectations. Without limiting the
foregoing, the words "believes," "anticipates," "plans," "expects" and
similar expressions are intended to identify forward-looking statements. The
Company disclaims any intent or obligation to update publicly such
forward-looking statements. Actual results may differ materially from those
projected in any such forward-looking statements due to a number of factors,
including, without limitation, those set forth below.
The Company operates in a dynamic and rapidly changing environment that
involves numerous risks and uncertainties. The following section lists some,
but not all, of the risks and uncertainties that may have a material adverse
effect on the Company's business, financial condition, results of operations
and the market price of its common stock.
17
<PAGE>
YEAR 2000 EFFECTS - IT services industry growth in 1999 and 1998 was driven
to a great extent by Year 2000 dynamics. This growth was caused not only by
increased demand for direct Year 2000 services, such as code remediation, but
also indirect services, such as ERP systems implementation and replacement of
non-compliant legacy systems.
Towards the end of fiscal 1999, CIBER's growth began to slow as companies
completed Year 2000 readiness programs and became reluctant, in many cases,
to commence significant new initiatives until Year 2000 failure risks have
passed, generally during the first half of calendar 2000.
Management believes there will be significant increased future demand for IT
services driven by e.business and other factors that will follow the Year
2000 transition period, beginning sometime during the first half of calendar
2000. However, during this transition period, revenues and operating
performance may decline. Given the lack of precedent for an issue of this
nature and magnitude, CIBER's ability to forecast the impact on future
results is limited.
GROWTH THROUGH BUSINESS COMBINATIONS AND INTERNAL EXPANSION - As an integral
part of its business strategy, the Company intends to continue to expand by
acquiring information technology businesses. The Company continuously
evaluates potential business combinations and aggressively pursues attractive
transactions. From July 1, 1996 through June 30, 1999, the Company completed
26 business combinations. The success of this strategy depends not only upon
the Company's ability to identify and acquire businesses on a cost-effective
basis, but also upon its ability to integrate acquired operations into its
organization effectively, to retain and motivate key personnel and to retain
clients of acquired businesses. Business combinations involve numerous risks,
including the ability to manage geographically remote offices, the diversion
of management's attention from other business concerns and the risks of
entering markets in which the Company has limited or no direct experience. In
addition, acquisitions may involve the expenditure of significant funds and
the incurrence of significant charges associated with the amortization of
goodwill or other intangible assets or future write-downs of the recorded
values of assets acquired. There can be no assurance the Company will be able
to combine additional business, or that any business combination will result
in benefits to the Company, or that management will be able to manage
effectively the resulting business. Additionally, the Company experiences
competition for business combinations.
The Company may open new offices in attractive markets with its own
personnel. Many of the Company's branch offices were originally start-up
operations. Not all branch offices, whether start-up or acquired, have been
successful. The Company's growth rate has been due, in part, to the growth of
industry demand for information technology professional services. There can
be no assurance that this increased industry demand will continue in future
periods. There can be no assurance that the Company will be able to
successfully start up, identify, acquire, or integrate future successful
branch office operations.
ABILITY TO ATTRACT AND RETAIN QUALIFIED CONSULTANTS - The Company's future
success will depend in part on its ability to hire and retain adequately
trained personnel who can address the changing and increasingly sophisticated
needs of its clients. The Company's on-going personnel needs arise from: (i)
increased demand for the Company's services, (ii) turnover, which is
generally high in the industry and (iii) client requests for consultants
trained in the newest software and hardware technologies. Few of the
Company's employees are bound by non-compete agreements. Competition for
personnel in the information technology services industry is significant and
the Company has had, and expects to continue to have, difficulty in
attracting and retaining an optimal level of qualified consultants. In
particular, competition is intense for the limited number of qualified
project managers and professionals with specialized skills, such as a working
knowledge of certain sophisticated software. There can be no assurance that
the Company will be successful in attracting and retaining the personnel it
requires to continue to grow.
DEPENDENCE ON SIGNIFICANT RELATIONSHIPS AND THE ABSENCE OF LONG-TERM
CONTRACTS -The Company's five largest clients accounted for 15% of the
Company's total revenues for the fiscal year ended June 30, 1999. No one
client accounted for more than 10% of the Company's total revenues in fiscal
1999. CIBER strives to develop long-term relationships with its clients. Most
client assignments are from three to twelve months, however, many of the
Company's client relationships have continued for many years. Although they
may be subject to penalty provisions, clients may generally cancel a contact
at any time. In addition,
18
<PAGE>
under many contracts, clients may reduce their use of the Company's services
under such contract without penalty. The termination or significant reduction
of its business relationship with any of its significant clients would have a
material adverse effect on the Company. Additionally, the Company has a
significant relationship with PeopleSoft as a PeopleSoft implementation
partner. In fiscal 1999, the Company derived approximately 10% of its total
revenues from clients who purchased implementation services for their
PeopleSoft software. In the event PeopleSoft products become obsolete or
non-competitive or if the Company should lose its "implementation partner"
status with PeopleSoft, the Company could suffer a material adverse effect.
MANAGEMENT OF A LARGE AND RAPIDLY GROWING BUSINESS - The Company's rapid
growth could place a substantial strain on its operational, administrative
and financial resources. The Company's ability to manage the growth of its
staff and facilities effectively will require it to continue to improve its
operational, financial and other internal systems, and to train, motivate and
manage its consultants. If the Company's management is unable to manage
growth effectively or its consultants are unable to achieve anticipated
performance levels, or if the integration of new businesses results in a
material diversion of management's attention from the day-to-day operations
of the business, the Company's results of operations would be materially
adversely affected.
PROJECT RISKS - The Company has provided and intends to continue to provide
project services to its clients. Projects are distinguishable from the
Company's professional services staff supplementation contracts by the level
of responsibility assumed by the Company and the potentially longer and more
costly sales cycle of a project. These factors may cause fluctuations in
quarterly results. In a typical project, the Company assumes major
responsibilities for the management of the project and/or the design of
deliverables that results in a client-specific outcome. With professional
services staff supplementation contracts, the Company's clients generally
maintain responsibility for the overall tasks. The failure of a project or
the failure of the Company to provide project services in a satisfactory
manner could have a material adverse effect on the Company. Further, the
Company may undertake projects on a fixed-price basis and also may guarantee
performance based upon defined operating specifications. Cost overruns,
unsatisfactory performance or unanticipated difficulties in completing
projects could have a material adverse effect on the Company's results of
operations.
PRICING AND MARGIN PRESSURE - Many of the Company's larger clients purchase
information technology services primarily from a limited number of
pre-approved vendors. In order to remain on its clients' vendor lists and to
develop new client relationships, the Company must satisfy client
requirements at competitive rates. Although the Company continually attempts
to lower its costs, there are other companies that may offer the same or
similar services at equal or lower costs. Furthermore, if competition
intensifies between information technology service providers, there may be
increased demand for qualified consultants resulting in upward market
pressure on consultant compensation. There can be no assurance that the
Company will be able to compete effectively on pricing or other requirements
and, as a result, the Company could lose clients or be unable to maintain
historic gross margin levels or to operate profitably. With respect to the
Company's implementation services for software packages, the manufacturers of
such software may have training or other requirements that inhibit the
Company from competing effectively with other packaged software
implementation providers. In addition, as the Company expands its service
offerings to include a greater number of fixed-price projects, the Company
may experience a decrease in margins as a result of unanticipated cost
overruns resulting from the inability to meet various project requirements.
COMPETITION - The Company operates in a highly competitive and rapidly
changing industry and competes with a variety of companies. Most of these
competing companies, many of which are significantly larger and have greater
financial, technical and marketing resources, provide the same services as
those offered by, and some offer a wider variety of services than, the
Company. Many large accounting and management consulting firms offer services
that overlap with a significant portion of the Company's services, and the
Company competes with the internal information technology staffs of its
clients and potential clients. Also, computer hardware and software vendors
are becoming increasingly involved in systems integration projects. There can
be no assurance that the Company will be able to continue to compete
successfully
19
<PAGE>
with its existing or future competitors or that competition will not have a
material adverse effect on the Company's results of operations.
POTENTIAL FLUCTUATIONS IN QUARTERLY OPERATING RESULTS - The Company's
quarterly operating results may fluctuate significantly in the future as a
result of a variety of factors, many of which are outside the Company's
control. Factors that may affect the Company's quarterly revenues or
operating results generally include: costs relating to the expansion of the
Company's business, the extent and timing of business acquisitions, the
incurrence of merger costs, the timing of assignments from customers, the
seasonal nature of the Company's business due to variations in holidays and
vacation schedules, the introduction of new services by the Company or its
competitors, price competition or price changes, general economic conditions
and economic conditions specific to the information technology, consulting,
or information technology staffing industries. Quarterly sales and operating
results can be difficult to forecast even in the short term. Due to all of
the foregoing factors, it is possible that the Company's revenues or
operating results in one or more future quarters will fail to meet or exceed
the expectations of security analysts or investors. In such event, the
trading price of the Company's common stock would likely be materially
adversely affected.
PRICE VOLATILITY - The market price of the Company's common stock could be
subject to significant fluctuations in response to variations in quarterly
operating results, the Company's prospects, changes in earnings estimates by
securities analysts and by economic, financial and other factors and market
conditions that can affect the capital markets generally, the industry
segment of which the Company is a part, the NYSE, including the level of, and
fluctuations in, the trading prices of stocks generally and sales of
substantial amounts of the Company's common stock in the market, or the
perception that such sales could occur, and by other events that are
difficult to predict and are beyond the Company's control. In addition, the
securities markets have experienced significant price and volume fluctuations
from time to time in recent years that have often been unrelated or
disproportionate to the operating performance of particular companies. These
broad fluctuations may adversely affect the market price of the Company's
common stock.
INTERNATIONAL EXPANSION - In future periods, CIBER may significantly expand
its international operations, which currently includes offices in Toronto and
Vancouver, Canada. Such international operations will be subject to political
and economic uncertainties, fluctuations in foreign currency exchange rates
and new tax and legal requirements. Other risks inherent in managing
international operations include geographically distant locations, customers
and employees speaking different languages and different cultural approaches
to the conduct of business.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company has no activities in derivative financial or commodity
instruments. The Company's exposure to market risks, (i.e. interest rate
risk, foreign currency exchange rate risk, equity price risk) through other
financial instruments, including, among others, cash equivalents, accounts
receivable, lines of credit, is not material.
20
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ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Shareholders
CIBER, Inc.:
We have audited the accompanying consolidated balance sheets of CIBER, Inc.
and subsidiaries as of June 30, 1998 and 1999, and the related consolidated
statements of operations, shareholders' equity and cash flows for each of the
years in the three-year period ended June 30, 1999. In connection with our
audits of the consolidated financial statements, we also have audited
Schedule II - Valuation and Qualifying Accounts. These consolidated financial
statements and the financial statement schedule are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
consolidated financial statements and the financial statement schedule based
on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements.
An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of CIBER,
Inc. and subsidiaries as of June 30, 1998 and 1999, and the results of their
operations and their cash flows for each of the years in the three-year
period ended June 30, 1999, in conformity with generally accepted accounting
principles. Also in our opinion, the related financial statement schedule,
when considered in relation to the basic consolidated financial statements
taken as a whole, presents fairly, in all material respects, the information
set forth therein.
KPMG LLP
Denver, Colorado
August 12, 1999
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CIBER, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
YEARS ENDED JUNE 30, 1997, 1998 AND 1999
<TABLE>
<CAPTION>
IN THOUSANDS, EXCEPT PER SHARE DATA 1997(1) 1998(1) 1999
----------- ----------- ------------
<S> <C> <C> <C>
Consulting services $358,437 $516,692 $660,384
Other revenues 54,943 59,796 59,277
----------- ----------- ------------
Total revenues 413,380 576,488 719,661
----------- ----------- ------------
Cost of consulting services 237,254 332,356 423,131
Cost of other revenues 41,152 43,150 40,176
Selling, general and administrative expenses 97,301 134,640 157,959
Amortization of intangible assets 3,087 3,936 7,520
Merger costs 1,218 4,538 1,535
----------- ----------- ------------
Operating income 33,368 57,868 89,340
Interest and other income 1,467 1,767 2,640
Interest expense (434) (232) -
----------- ----------- ------------
Income before income taxes 34,401 59,403 91,980
Income tax expense 13,175 22,926 37,485
----------- ----------- ------------
Net income $ 21,226 $ 36,477 $ 54,495
----------- ----------- ------------
----------- ----------- ------------
Pro forma information (unaudited) (Note 1(j)):
Historical net income $ 21,226 $ 36,477 $ 54,495
Pro forma adjustment to income tax expense (803) (2,207) -
----------- ----------- ------------
Pro forma net income $ 20,423 $ 34,270 $ 54,495
----------- ----------- ------------
----------- ----------- ------------
Pro forma income per share - basic $ .43 $ .67 $ .98
Pro forma income per share - diluted $ .40 $ .64 $ .95
Weighted average shares - basic 47,894 51,355 55,362
Weighted average shares - diluted 50,613 53,843 57,141
</TABLE>
(1) Restated for poolings of interests through June 30, 1999 - See Note 2.
See accompanying notes to consolidated financial statements.
22
<PAGE>
CIBER, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
JUNE 30, 1998 AND 1999
<TABLE>
<CAPTION>
JUNE 30,
-------------------------------------
IN THOUSANDS, EXCEPT SHARE DATA 1998(1) 1999
------------- --------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 38,238 $ 64,215
Accounts receivable 121,538 150,976
Inventories 618 395
Prepaid expenses and other assets 4,792 2,943
Deferred income taxes 1,458 2,915
------------- --------------
Total current assets 166,644 221,444
------------- --------------
Property and equipment, at cost 32,561 47,997
Less accumulated depreciation and amortization (15,219) (22,866)
------------- --------------
Net property and equipment 17,342 25,131
------------- --------------
Intangible assets, net 33,597 157,012
Deferred income taxes 2,068 1,694
Other assets 2,134 3,351
------------- --------------
Total assets $221,785 $408,632
------------- --------------
------------- --------------
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Trade payables $ 10,989 $ 13,502
Accrued compensation and payroll taxes 25,720 36,845
Deferred revenues 4,097 3,850
Other accrued expenses and liabilities 11,859 10,118
Income taxes payable 3,276 7,181
------------- --------------
Total current liabilities 55,941 71,496
------------- --------------
Commitments and contingencies
Shareholders' equity:
Preferred stock, $0.01 par value, 5,000,000 shares
authorized, no shares issued - -
Common stock, $0.01 par value, 80,000,000 shares authorized,
52,248,000 and 58,933,000 shares issued and outstanding 522 589
Additional paid-in capital 93,889 222,652
Retained earnings 71,433 122,607
Treasury stock, 500,000 shares at cost - (8,712)
------------- --------------
Total shareholders' equity 165,844 337,136
------------- --------------
Total liabilities and shareholders' equity $221,785 $408,632
------------- --------------
------------- --------------
</TABLE>
(1) Restated for poolings of interests through June 30, 1999 - See Note 2.
See accompanying notes to consolidated financial statements.
23
<PAGE>
CIBER, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
YEARS ENDED JUNE 30, 1997, 1998 AND 1999
<TABLE>
<CAPTION>
COMMON STOCK ADDITIONAL TOTAL
---------------- PAID-IN RETAINED TREASURY SHAREHOLDERS'
IN THOUSANDS SHARES AMOUNT CAPITAL EARNINGS STOCK EQUITY
------ ------ ------- -------- ----- ------
<S> <C> <C> <C> <C> <C> <C>
BALANCES AT JULY 1, 1996 (1) 46,707 $467 $ 39,122 $ 34,131 $ - $ 73,720
Public offering, net of offering costs of $1,390 1,220 12 16,915 - - 16,927
Employee stock purchases and options exercised 1,432 14 3,316 - - 3,330
Acquisition consideration 186 2 2,567 - - 2,569
Sale of common stock by merged companies - - 2,651 - - 2,651
Tax benefit from exercise of stock options - - 6,366 - - 6,366
Termination of S corporation tax status of merged company - - 2,041 (2,041) - -
Compensation expense related to stock options 2 - 62 - - 62
Net income - - - 21,226 - 21,226
Distributions by merged companies - - - (8,536) - (8,536)
Adjustment to conform year end of merged companies - - - (701) - (701)
----------------------------------------------------------------------
BALANCES AT JUNE 30, 1997 (1) 49,547 495 73,040 44,079 - 117,614
Note payable paid with stock 51 1 1,105 - - 1,106
Employee stock purchases and options exercised 1,407 14 5,752 - - 5,766
Acquisition consideration 96 1 1,150 - - 1,151
Immaterial poolings of interests 1,145 11 347 1,834 - 2,192
Tax benefit from exercise of stock options - - 9,149 - - 9,149
Termination of S corporation tax status of merged company - - 3,287 (3,287) - -
Compensation expense related to stock and stock options 2 - 59 - - 59
Net income - - - 36,477 - 36,477
Distributions by merged companies - - - (7,670) - (7,670)
----------------------------------------------------------------------
BALANCES AT JUNE 30, 1998 (1) 52,248 522 93,889 71,433 - 165,844
Employee stock purchases and options exercised 1,435 14 14,738 (3,225) 3,225 14,752
Acquisition consideration 4,286 43 106,492 (96) 1,049 107,488
Immaterial pooling of interests 961 10 806 - - 816
Tax benefit from exercise of stock options - - 5,499 - - 5,499
Compensation expense related to stock and stock options 3 - 395 - - 395
Stock options exchanged for accrued compensation - - 833 - - 833
Net income - - - 54,495 - 54,495
Purchases of treasury stock - - - - (12,986) (12,986)
----------------------------------------------------------------------
BALANCES AT JUNE 30, 1999 58,933 $589 $222,652 $122,607 $ (8,712) $337,136
----------------------------------------------------------------------
----------------------------------------------------------------------
</TABLE>
(1) Restated for poolings of interests through June 30, 1999 - See Note 2.
See accompanying notes to consolidated financial statements.
24
<PAGE>
CIBER, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED JUNE 30, 1997, 1998 AND 1999
<TABLE>
<CAPTION>
IN THOUSANDS 1997(1) 1998(1) 1999
------------ ---------- -----------
<S> <C> <C> <C>
OPERATING ACTIVITIES:
Net income $ 21,226 $ 36,477 $ 54,495
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization 6,297 9,468 15,110
Deferred income taxes (859) (4,672) (2,049)
Other 32 48 395
Changes in operating assets and liabilities,
net of the effect of acquisitions:
Accounts receivable (14,830) (35,442) (17,789)
Inventories 1,927 299 223
Other current and long-term assets (2,373) (3,806) 1,510
Trade payables (1,322) (2,072) 1,782
Accrued compensation and payroll taxes 3,516 6,610 9,212
Deferred revenues 156 2,034 (247)
Other accrued expenses and liabilities 194 3,402 (4,211)
Income taxes payable 3,866 14,783 6,252
------------ ---------- -----------
Net cash provided by operating activities 17,830 27,129 64,683
------------ ---------- -----------
INVESTING ACTIVITIES:
Acquisitions, net of cash acquired (19,290) (351) (26,500)
Purchases of property and equipment (7,230) (11,665) (13,972)
Purchases of investments (2,039) (905) -
Sales of investments 1,111 1,695 -
------------ ---------- -----------
Net cash used in investing activities (27,448) (11,226) (40,472)
------------ ---------- -----------
FINANCING ACTIVITIES:
Proceeds from sales of common stock, net 22,908 5,766 14,752
Purchases of treasury stock - - (12,986)
Net payments on bank lines of credit (1,568) (1,985) -
Borrowings on notes payable 3,545 247 -
Payments on notes payable (3,451) (2,650) -
Distributions by merged companies (8,536) (6,300) -
------------ ---------- -----------
Net cash provided by (used in) financing activities 12,898 (4,922) 1,766
------------ ---------- -----------
Net increase in cash and cash equivalents 3,280 10,981 25,977
Cash and cash equivalents, beginning of year 24,398 27,257 38,238
Adjustment to conform fiscal year of merged companies (421) - -
------------ ---------- -----------
Cash and cash equivalents, end of year $ 27,257 $ 38,238 $ 64,215
------------ ---------- -----------
------------ ---------- -----------
</TABLE>
(1) Restated for poolings of interests through June 30, 1999 - See Note 2.
See accompanying notes to consolidated financial statements.
25
<PAGE>
CIBER, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 1997, 1998 AND 1999
(1) NATURE OF OPERATIONS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(a) NATURE OF OPERATIONS
CIBER, Inc. ("CIBER" or the "Company") is a provider of information technology
("IT") consulting services. At August 31, 1999, CIBER had approximately 6,500
employees located in 45 major cities in 25 states plus Canada, and offered IT
solutions in the following areas:
- Strategic IT & Management Consulting
- e.Business Solutions
- ERP/Enterprise Software Solutions
- Custom IT Solutions
- Enterprise Systems & Network Integration
- Enterprise Outsourcing
(b) PRINCIPLES OF CONSOLIDATION AND INTERIM FINANCIAL INFORMATION
The consolidated financial statements include the accounts of the Company and
its wholly-owned subsidiaries. All material intercompany balances and
transactions have been eliminated.
(c) CASH EQUIVALENTS
All highly liquid investments purchased with a maturity of three months or less
are considered to be cash equivalents. Cash equivalents consist of money market
funds of $10,199,000 and $19,601,000 at June 30, 1998 and 1999, respectively,
and investment grade commercial paper of $21,179,000 and $33,213,000 at June 30,
1998 and 1999, respectively.
(d) INVENTORIES
Inventories consist of computer networking equipment and supplies and are stated
at the lower of cost or market using the first-in, first-out method.
(e) PROPERTY AND EQUIPMENT
Property and equipment, which consists primarily of computer equipment and
furniture, is stated at cost. Depreciation is computed using straight-line and
accelerated methods over the estimated useful lives, ranging primarily from five
to seven years. Depreciation expense was $3,210,000, $5,532,000 and $7,590,000
for the years ended June 30, 1997, 1998 and 1999, respectively.
(f) COSTS OF DEVELOPING COMPUTER SOFTWARE FOR INTERNAL USE
Direct costs of time and material incurred for the development of software for
internal use are capitalized as property and equipment. These costs are
depreciated using the straight-line method over the estimated useful life of the
software, ranging from three to seven years.
(g) INTANGIBLE ASSETS
Intangible assets consist of goodwill, client lists and noncompete agreements.
Goodwill is amortized over 12 to 20 years. Client lists are amortized over the
estimated useful lives ranging from two to eight years. Noncompete agreements
are amortized over the terms of the contracts that range from one to six years.
Amortization is recorded using the straight-line method.
26
<PAGE>
CIBER, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Intangible assets are reviewed for impairment when events indicate the carrying
amount of intangible assets may not be recoverable. Impairments would be
considered to exist when the estimated non-discounted future cash flows expected
to result from the use of the intangible asset are less than the carrying amount
of the asset. Impairment, if any, will be measured based on forecasted future
discounted operating cash flows.
(h) REVENUE RECOGNITION
CIBER provides consulting services under time-and-material and fixed-price
contracts. CIBER recognizes revenue under time-and-material contracts as hours
and costs are incurred. For fixed-price contracts, revenue is recognized on the
basis of the estimated percentage of completion based on costs incurred relative
to total estimated costs. Losses, if any, on fixed-price contracts are
recognized when the loss is determined.
Other revenues include sales of computer hardware products, software license and
maintenance fees, and commissions on computer product sales. Revenues related to
the sale of computer products are recognized when the products are shipped.
Software license fee revenues are recognized over the period of the software
implementation and revenues from maintenance agreements are recognized ratably
over the maintenance period.
(i) INCOME TAXES
Deferred tax assets and liabilities are recognized for the future tax
consequences attributable to differences between the financial statement
carrying amounts of existing assets and liabilities and their respective tax
bases using enacted tax rates expected to apply to taxable income in the years
in which those temporary differences are expected to be recovered or settled. A
tax benefit or expense is recognized for the net change in the deferred tax
asset or liability during the period. The effect on deferred tax assets and
liabilities due to a change in tax rates is recognized in income tax expense in
the period that includes the enactment date.
Certain companies which merged with CIBER in business combinations accounted for
as poolings of interests had elected S corporation status for U.S. federal
income tax purposes, and therefore, were generally not subject to income taxes.
Accordingly, no income tax expense is included in the historical consolidated
financial statements for the operations of these companies prior to their merger
with CIBER. The related net deferred tax asset or liability of these companies
at the date of their respective mergers with CIBER is recorded as income tax
benefit or expense.
(j) PRO FORMA NET INCOME
Pro forma net income has been presented because certain companies, which have
merged with CIBER in business combinations accounted for as poolings of
interests, were S corporations and generally not subject to income taxes.
Accordingly, no provision for income taxes has been included in the historical
consolidated financial statements for the operations of these companies prior to
their merger with CIBER. The pro forma adjustment to income taxes has been
computed as if the merged companies had been taxable entities subject to income
taxes for all periods prior to their merger with CIBER at the marginal rates
applicable in such periods. In addition, the pro forma adjustments to income tax
expense for the years ended June 30, 1997 and 1998 eliminate the income tax
expense (benefit) of $1,717,000 and ($135,000), respectively, representing the
one-time income tax expense (benefit) resulting from the termination of the S
corporation status of these companies. There was no pro forma adjustment to
income tax expense for the year ended June 30, 1999.
(k) PRO FORMA INCOME PER SHARE
Basic EPS is computed by dividing income available to common shareholders by the
weighted average number of common shares outstanding for the period. Diluted EPS
includes the effects of the potential dilution of the Company's stock options,
determined using the treasury stock method. The computation of weighted average
shares includes the shares and options issued in connection with business
combinations accounted for as poolings of interests as if they had been
outstanding for all periods prior to the merger. The number of antidilutive
stock options omitted from the computation of weighted average shares was
27
<PAGE>
CIBER, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1,182,000 for the year ended June 30, 1999. There were no antidilutive stock
options for the years ended June 30, 1998 and 1997.
(l) STOCK-BASED COMPENSATION
As permitted by Statement of Financial Accounting Standards No. 123 ("SFAS
123"), the Company accounts for stock-based compensation in accordance with the
provisions of Accounting Principles Board Opinion 25, and related
interpretations ("APB 25"). The Company measures stock-based compensation cost
as the excess, if any, of the quoted market price of CIBER common stock at the
grant date over the amount the employee must pay for the stock. CIBER generally
grants stock options at fair market value at the date of grant. The pro forma
disclosures of net income and income per share, as if the fair-value based
method defined in SFAS 123 had been applied, are provided in Note 10.
(m) ESTIMATES
The preparation of these financial statements requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent liabilities at the date of the
financial statements and the reported amounts of revenues and expenses during
the reporting period. Actual results could differ from those estimates.
(n) FAIR VALUE OF FINANCIAL INSTRUMENTS
The fair value of the Company's financial instruments approximates their
carrying amounts due to the relatively short periods to maturity of the
instruments and/or variable interest rates of the instruments which approximate
current market rates.
(o) RECLASSIFICATIONS
Certain prior year amounts have been reclassified to conform with the current
year presentation.
28
<PAGE>
CIBER, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(2) POOLINGS OF INTERESTS
In fiscal 1999, the following companies merged with CIBER in business
combinations accounted for as poolings of interests:
EJR COMPUTER ASSOCIATES, INC. ("EJR") - On August 11, 1998, CIBER issued
1,155,516 shares of its common stock and assumed substantially all of EJR's
liabilities in exchange for all of the assets of EJR. EJR, located in Hoboken,
New Jersey, provided data processing consulting and project management services
similar to CIBER. CIBER's consolidated financial statements have been restated
for all periods prior to the merger to include the results of operations,
financial position and cash flows of EJR. For restatement purposes, EJR's year
end was conformed to CIBER's June 30 fiscal year end.
Selected financial data of CIBER and of EJR, prior to its merger with CIBER, and
on a combined basis, were (in thousands, except per share data):
<TABLE>
<CAPTION>
CIBER EJR COMBINED
-------------- --------------- ----------------
<S> <C> <C> <C>
YEAR ENDED JUNE 30, 1998
Revenues $ 550,421 $ 26,067 $ 576,488
Net income (loss) 36,510 (33) 36,477
Pro forma net income (loss) 34,303 (33) 34,270
Pro forma income per share - diluted $ .65 $ .64
YEAR ENDED JUNE 30, 1997
Revenues $ 390,817 $ 22,563 $ 413,380
Net income 20,696 530 21,226
Pro forma net income 19,893 530 20,423
Pro forma income per share - diluted $ .40 $ .40
</TABLE>
THE CUSHING GROUP, INC. ("CUSHING") - On August 31, 1998, CIBER issued 961,135
shares of its common stock and assumed substantially all of Cushing's
liabilities in exchange for all of the assets of Cushing. Cushing, headquartered
in Nashua, New Hampshire, provided distributed object technology consulting
services. The effects of this merger on CIBER's revenues, pro forma net income
and pro forma income per share would not have been material. As a result,
CIBER's historical financial statements have not been restated for this business
combination and the equity of Cushing at the merger date was combined with
CIBER's.
In fiscal 1998, the following companies merged with CIBER in business
combinations accounted for as poolings of interests:
THE SUMMIT GROUP, INC. ("SUMMIT") - On May 4, 1998, CIBER issued 4,262,860
shares of its common stock in connection with the merger of Summit with CIBER.
STEP CONSULTING, INC. ("STEP") - On April 30, 1998, CIBER issued 131,242 shares
of its common stock in connection with the merger of Step with CIBER.
COMPUTER RESOURCE ASSOCIATES, INC. ("CRA") - On March 2, 1998, CIBER issued
530,910 shares of its common stock in connection with the merger of CRA with
CIBER.
ADVANCED SYSTEMS ENGINEERING, INC. ("ASE") - On March 2, 1998, CIBER issued
382,602 shares of its common stock in connection with the merger of ASE with
CIBER.
TECHWARE CONSULTING, INC. ("TECHWARE") - On November 26, 1997, CIBER issued
747,836 shares of its common stock in connection with the merger of Techware
with CIBER.
29
<PAGE>
CIBER, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FINANCIAL DYNAMICS, INC. ("FDI") - On November 24, 1997, CIBER issued 1,128,054
shares of its common stock and granted options for 97,220 shares of its common
stock (at an aggregate exercise price of $217,000) in connection with the merger
of FDI with CIBER.
THE CONSTELL GROUP, INC. ("CONSTELL") - On October 24, 1997, CIBER issued
500,000 shares of its common stock in connection with the merger of Constell
with CIBER.
BAILEY & QUINN, INC. ("BQI") - On October 22, 1997, CIBER issued approximately
148,000 shares of its common stock in connection with the merger of BQI with
CIBER.
SOFTWAREXPRESS, INC. D/B/A RELIANT INTEGRATION SERVICES, INC. ("RELIANT") - On
August 21, 1997, CIBER issued 1,183,276 shares of its common stock in connection
with the merger of Reliant with CIBER.
KCM COMPUTER CONSULTING, INC. ("KCM") - On July 18, 1997, CIBER issued 861,700
shares of its common stock in connection with the merger of KCM with CIBER.
In fiscal 1997, the following companies merged with CIBER in business
combinations accounted for as poolings of interests:
TECHNICAL SUPPORT GROUP, INC. ("TSG") - On November 27, 1996, CIBER issued
740,752 shares of its common stock in connection with the merger of TSG with
CIBER.
TECHNOLOGY MANAGEMENT GROUP, INC. ("TMG") - On November 26, 1996, CIBER issued
484,358 shares of its common stock and granted options for 326,014 shares of the
Company's common stock (at an aggregate exercise price of $547,000) in
connection with the merger of TMG with CIBER.
SPECTRUM TECHNOLOGY GROUP, INC. ("SPECTRUM") - On September 3, 1996, CIBER
issued 1,706,232 shares of its common stock in connection with the merger of
Spectrum with CIBER.
(3) ACQUISITIONS
CIBER made certain acquisitions for cash or cash and stock, as set forth below.
Each of these acquisitions has been accounted for under the purchase method of
accounting for business combinations and accordingly, the accompanying
consolidated financial statements include the results of operations of each
acquired business since the date of acquisition.
ACQUISITIONS FROM JULY 1, 1998 THROUGH JUNE 30, 1999
DIGITAL SOFTWARE CORPORATION ("DSC") - On April 30, 1999, CIBER acquired certain
assets, liabilities and all of the business operations of DSC for $6.9 million
in cash. CIBER has recorded goodwill of $7.0 million related to this
acquisition, which will be amortized over 15 years. DSC, located in Aurora,
Colorado, provided software engineering services similar to CIBER.
COMPAID CONSULTING SERVICES, INC. ("COMPAID") - On March 2, 1999, CIBER acquired
all of the outstanding capital stock of Compaid for approximately $9.7 million.
The purchase price is subject to adjustment based on finalization of the Compaid
balance sheet at the acquisition date. CIBER has recorded goodwill of
approximately $7.5 million related to this acquisition, which will be amortized
over 15 years. Compaid, headquartered in Atlanta, Georgia, provided services
similar to CIBER.
BUSINESS IMPACT SYSTEMS, INC. ("BIS") - On February 26, 1999, CIBER issued
2,401,028 shares of its common stock and granted options for 3,634 shares of its
common stock (at an aggregate purchase price of $40,000) in exchange for
substantially all of the outstanding assets and liabilities of BIS. The
aggregate purchase price was $62.2 million, including acquisition costs. CIBER
has recorded goodwill of $55.6 million related to this acquisition, which will
be amortized over 20 years. BIS, headquartered in Herndon, Virginia, provided
enterprise integration services and will operate as CIBER's Enterprise
Integration Practice.
30
<PAGE>
CIBER, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
PARADYME HR TECHNOLOGIES CORPORATION ("PARADYME HRT") - On February 5, 1999,
CIBER acquired certain assets, liabilities and all of the business operations of
Paradyme HRT for $5.0 million. Additionally, the terms of the purchase provide
for additional consideration of up to $3.0 million based on certain performance
criteria during the 12-month periods ending January 31, 2000 and 2001. CIBER has
recorded goodwill of $4.4 million related to this acquisition, which will be
amortized over 15 years. Any additional consideration paid will be accounted for
as additional goodwill. Paradyme HRT, located in Columbia, South Carolina,
provided ERP Outsourcing services and HR/Payroll business services and has
become CIBER's Enterprise Outsourcing Practice.
INTEGRATION SOFTWARE CONSULTANTS, INC. ("ISC") - On February 2, 1999, CIBER
issued 1,280,289 shares of its common stock in exchange for all of the
outstanding common stock of ISC. The aggregate purchase price was $34.0 million,
including acquisition costs. CIBER has recorded goodwill of $31.9 million
related to this acquisition, which will be amortized over 20 years. ISC,
headquartered in Philadelphia, Pennsylvania, provided SAP software
implementation services.
YORK & ASSOCIATES, INC. ("YORK") - On January 29, 1999, CIBER issued 548,857
shares of its common stock and granted options for 30,643 shares of its common
stock (at an aggregate exercise price of $159,000) in exchange for substantially
all of the outstanding assets and liabilities of York. The aggregate purchase
price was $14.5 million, including acquisition costs. CIBER has recorded
goodwill of $12.2 million related to this acquisition, which will be amortized
over 20 years. York, headquartered in St. Paul, Minnesota, provided IT
consulting and software implementation services similar to CIBER.
PARAGON SOLUTIONS, INC. ("PARAGON") - On January 8, 1999, CIBER acquired certain
assets, liabilities and all of the business operations of Paragon for $4.4
million. Additionally, the terms of the purchase provide for additional
consideration of up to $3.3 million based on certain performance criteria during
the 12-month periods ending December 31, 1999 and 2000. CIBER has recorded
goodwill of $4.3 million related to this acquisition, which will be amortized
over 15 years. Any additional consideration paid will be accounted for as
additional goodwill. Paragon, located in Pittsburgh, Pennsylvania, provided
Oracle software implementation services.
THE DORADUS CORPORATION ("DORADUS") - On November 15, 1998, CIBER acquired all
of the outstanding capital stock of Doradus for $4.0 million. Additional
consideration of $100,000 was paid in April 1999 and up to an additional
$300,000 may be payable in one year. Any additional consideration is recorded as
goodwill when paid. CIBER has recorded goodwill of $4.0 million related to this
acquisition, which will be amortized over 15 years. Doradus, located in
Minneapolis, Minnesota, provided IT consulting services similar to CIBER.
The following unaudited pro forma financial information presents the combined
results of operations of CIBER, DSC, Compaid, BIS, Paradyme HRT, ISC, York,
Paragon and Doradus as if the acquisitions had occurred as of the beginning of
fiscal years 1998 and 1999, after giving effect to certain adjustments,
including amortization of goodwill and other intangible assets, decreased
interest revenue as a result of the cash paid for the acquisitions, and the
related income tax effects. The pro forma financial information does not
necessarily reflect the results of operations that would have occurred had CIBER
and the eight acquired companies constituted a single entity during such
periods.
<TABLE>
<CAPTION>
IN THOUSANDS 1998 1999
------------------ -----------------
<S> <C> <C>
Revenues $ 632,976 $ 767,481
Net income 34,668 52,858
Pro forma net income 32,461 52,858
Pro forma income per share - basic $ .58 $ .89
Pro forma income per share - diluted $ .56 $ .86
</TABLE>
For income tax purposes, the acquisitions of Compaid, BIS, ISC, York and Doradus
were non-taxable transactions.
31
<PAGE>
CIBER, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
ACQUISITIONS FROM JULY 1, 1996 THROUGH JUNE 30, 1998
DAVIS, THOMAS & ASSOCIATES, INC. ("DTA") - On March 14, 1997, CIBER acquired the
business operations and certain assets of DTA for $13.5 million, consisting of
$13.2 million in cash and the assumption of $339,000 of liabilities. CIBER
recorded goodwill of $13.1 million related to this acquisition.
CIBER NETWORK SERVICES, INC. ("CNSI") - On December 2, 1996, CIBER acquired
CNSI, which was majority owned by certain officers of the Company, for
consideration of $3.7 million, consisting of 137,262 shares of CIBER's common
stock and $1.2 million in cash. In addition, CIBER assumed net liabilities of
$772,000, resulting in a total initial purchase price of $4.5 million. The terms
of the purchase also provided for future contingent consideration based on
certain performance objectives of CNSI. During fiscal year 1998, CIBER paid
additional consideration of $1.2 million, consisting of 48,692 shares of CIBER
common stock and $124,000 in cash. During fiscal year 1999, CIBER paid
additional consideration of $1.3 million, consisting of 66,703 shares of CIBER
common stock and $168,000 in cash as a final settlement to the purchase
agreement. The additional consideration was accounted for as additional
goodwill. The Company has recorded total goodwill of $6.8 million related to
this acquisition. For income tax purposes, this acquisition was a non-taxable
transaction.
BUSINESS SYSTEMS DEVELOPMENT DIVISION - In July 1996, the Company acquired
certain assets, liabilities and all of the business operations of the Business
Systems Development division of DataFocus, Inc., Fairfax, Virginia. The
aggregate purchase price was $5.0 million, of which $4.8 million has been
allocated to goodwill and $229,000 has been allocated to other net assets.
In the current fiscal year, CIBER paid final additional cash consideration of
$688,000 to the former owners of Oasys, Inc. related to the March 1996
acquisition. This additional consideration was recorded as goodwill.
(4) ACCOUNTS RECEIVABLE
Accounts receivable consist of the following at June 30 (in thousands):
<TABLE>
<CAPTION>
1998 1999
------------- ------------
<S> <C> <C>
Billed accounts receivable $ 95,472 $129,547
Unbilled accounts receivable 28,576 24,773
------------- ------------
124,048 154,320
Less allowance for doubtful accounts (2,510) (3,344)
------------- ------------
$121,538 $150,976
------------- ------------
------------- ------------
</TABLE>
(5) PROPERTY AND EQUIPMENT
Property and equipment consist of the following at June 30 (in thousands):
<TABLE>
<CAPTION>
1998 1999
------------- ------------
<S> <C> <C>
Computer equipment and software $ 20,855 $ 29,741
Furniture and fixtures 8,034 11,187
Leaseholds and other 3,672 7,069
------------- ------------
32,561 47,997
Less accumulated depreciation (15,219) (22,866)
------------- ------------
$ 17,342 $ 25,131
------------- ------------
------------- ------------
</TABLE>
32
<PAGE>
CIBER, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(6) INTANGIBLE ASSETS
Intangible assets consist of the following at June 30 (in thousands):
<TABLE>
<CAPTION>
1998 1999
------------- ------------
<S> <C> <C>
Goodwill $ 32,715 $160,218
Client lists 6,801 6,801
Noncompete agreements 3,834 7,266
------------- ------------
43,350 174,285
Less accumulated amortization (9,753) (17,273)
------------- ------------
$ 33,597 $157,012
------------- ------------
------------- ------------
</TABLE>
(7) REVOLVING LINES OF CREDIT AND NOTES PAYABLE
CIBER has a $35 million unsecured revolving line of credit with a bank. There
were no outstanding borrowings under this bank line of credit at June 30, 1998
and 1999. Outstanding borrowings bear interest at the three month London
Interbank Offered Rate ("LIBOR") plus 2%. The credit agreement requires a
commitment fee of 0.225% per annum on any unused portion of the line of credit
up to $20 million. The credit agreement expires in December 1999. The terms and
conditions of the credit agreement include several covenants, including those
whereby CIBER agrees to the maintenance of a certain net worth and debt service
coverage ratios, among other things. Amounts advanced under the line of credit
can be used to consummate an acquisition and may be required by the bank to be
converted into a five-year term note payable in equal amounts of interest and
principal; in such event, the line of credit would be reduced by the amount of
the term note.
Several companies which have merged with CIBER since July 1, 1997 had
outstanding balances under revolving lines of credit and notes payable. These
lines of credit and notes payable were secured by certain assets of the merged
companies. Upon merger with CIBER, these revolving lines of credit and notes
payable were paid in full and canceled. In connection with a business
combination during fiscal 1998, CIBER issued 50,938 shares of its common stock
having a value of $1,106,000 in satisfaction of a note payable, including
accrued interest.
(8) LEASES
The Company has noncancelable operating leases for office space. Rental expense
for operating leases totaled $5,974,000, $8,636,000 and $10,730,000 for the
years ended June 30, 1997, 1998 and 1999, respectively.
Future minimum lease payments as of June 30, 1999 are (in thousands):
<TABLE>
<CAPTION>
Year ending June 30:
<S> <C>
2000 $ 10,969
2001 9,590
2002 8,225
2003 6,149
2004 4,055
Thereafter 3,162
------------
Total minimum lease payments $ 42,150
------------
------------
</TABLE>
33
<PAGE>
CIBER, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(9) INCOME TAXES
Income tax expense (benefit) for the years ended June 30 consists of the
following (in thousands):
<TABLE>
<CAPTION>
1997 1998 1999
----------- ----------- -----------
<S> <C> <C> <C>
Current:
Federal $11,236 $23,190 $34,005
State and local 2,324 4,005 5,297
Foreign 474 403 232
----------- ----------- -----------
14,034 27,598 39,534
----------- ----------- -----------
Deferred:
Federal (721) (3,988) (1,773)
State and local (138) (684) (276)
----------- ----------- -----------
(859) (4,672) (2,049)
----------- ----------- -----------
Income tax expense $13,175 $22,926 $37,485
----------- ----------- -----------
----------- ----------- -----------
</TABLE>
Income tax expense differs from the amounts computed by applying the statutory
U.S. federal income tax to income before income taxes as a result of the
following (in thousands):
<TABLE>
<CAPTION>
1997 1998 1999
---------- ---------- ----------
<S> <C> <C> <C>
Income tax expense at the federal statutory rate of 35% $12,040 $20,791 $32,193
Increase (decrease) resulting from:
State and local income taxes, net of federal income tax benefit 1,275 2,152 3,263
Nondeductible merger costs 383 1,540 537
Nondeductible amortization - - 1,008
Termination of S corporation status of merged companies, including
state income taxes, net of federal income tax benefit 1,717 (135) -
S corporation income of merged companies (2,312) (1,568) -
Other 72 146 484
---------- ---------- ----------
Income tax expense $13,175 $22,926 $37,485
---------- ---------- ----------
---------- ---------- ----------
Effective tax rate 38.3% 38.6% 40.8%
---------- ---------- ----------
---------- ---------- ----------
</TABLE>
TAX BENEFIT OF STOCK OPTIONS EXERCISED - For the years ended June 30, 1997, 1998
and 1999, CIBER recognized $6,366,000, $9,149,000 and $5,499,000, respectively,
as a direct increase to additional paid-in capital for the income tax benefit
resulting from the exercise of stock options by employees.
The components of the net deferred tax asset or liability at June 30 are as
follows (in thousands):
<TABLE>
<CAPTION>
1998 1999
----------- ------------
<S> <C> <C>
Deferred tax assets:
Intangible assets, due to differences in amortization periods $ 2,068 $ 3,272
Accounts payable 206 228
Accrued expenses, not currently tax deductible 2,101 3,008
Deferred revenue 1,240 1,032
Other - 428
----------- ------------
5,615 7,968
Deferred tax liabilities:
Capitalized software costs - (1,559)
Accounts receivable (2,089) (1,800)
----------- ------------
Net deferred tax asset $ 3,526 $ 4,609
----------- ------------
----------- ------------
</TABLE>
34
<PAGE>
CIBER, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Balance sheet classification of deferred tax asset:
<TABLE>
<S> <C> <C>
Deferred tax asset - current $ 1,458 $ 2,915
Deferred tax asset - long term 2,068 1,694
----------- -----------
Deferred tax asset $ 3,526 $ 4,609
----------- -----------
----------- -----------
</TABLE>
Deferred taxes related to accounts payable and accounts receivable are primarily
related to certain merged companies utilizing the cash basis of accounting for
income tax purposes prior to their merger with CIBER. Based on its evaluation of
current and anticipated future taxable income, the Company believes sufficient
taxable income will be generated to realize the deferred tax assets.
(10) STOCK PURCHASE AND STOCK OPTION PLANS
The Company has five stock-based compensation plans, which are described below.
EMPLOYEE STOCK PURCHASE PLAN - The Company has a stock purchase plan that allows
eligible employees to purchase, through payroll deductions, shares of the
Company's common stock at 85% of the fair market value at specified dates. Up to
2,000,000 shares of common stock may be issued under the Employee Stock Purchase
Plan. During the years ended June 30, 1997, 1998 and 1999 employees purchased
179,440, 197,565 and 486,405 shares of common stock, respectively.
1989 STOCK OPTION PLAN - The Company established a stock option plan in 1989
that was discontinued during fiscal 1994. The options are 100% vested as of July
1, 1995 and are subject to certain restrictions. The options expire twenty years
after the date of grant through 2013.
EMPLOYEES' STOCK OPTION PLAN - The Company has a stock option plan for employees
and up to 8,000,000 shares of the Company's common stock are authorized for
issuance under this plan. The plan administrators may grant to officers,
employees and consultants, restricted stock, stock options, performance bonuses
or any combination thereof. The number and nature of awards granted is
determined by the Compensation Committee of the Board of Directors. Options
become exercisable as determined at the date of grant by the Board of Directors
and expire within 10 years from the date of grant.
DIRECTORS' STOCK OPTION PLAN - Up to 200,000 shares of the Company's common
stock are authorized for issuance to non-employee, non-affiliate directors under
this plan. Such stock options are non-discretionary and granted annually at the
fair market value of the Company's common stock on the date of grant. The number
of options granted annually is fixed by the plan. Options expire 10 years from
the date of grant.
DIRECTORS' STOCK COMPENSATION PLAN - Up to 50,000 shares of the Company's common
stock are authorized for issuance to non-employee directors under this plan.
Each non-employee director is issued shares having a fair market value of
approximately $2,500 for attendance at each meeting of the Company's Board of
Directors. During the years ended June 30, 1997, 1998 and 1999, the Company
issued 1,664, 1,233 and 1,980 shares, respectively, of common stock under this
plan.
At June 30, 1999, there were 8,200,000 shares of common stock reserved for
future issuance under the Company's stock-based compensation plans.
On September 1, 1998, the Board of Directors authorized a repricing program for
employees who were originally granted options under the Employees' Stock Option
Plan from March 1, 1998 to August 31, 1998 at exercise prices ranging from
$28.88 to $38.00 that repriced all of these outstanding stock options to an
exercise price of $27.06 per share. Options to purchase 537,050 shares of common
stock were repriced. The repriced options follow the vesting schedule of the
original options granted.
On October 9, 1998, the Board of Directors authorized another repricing program
for employees who were originally granted options under the Employees' Stock
Option Plan on October 1, 1998 at an exercise price of $20.13 that repriced all
of these outstanding stock options to an exercise price of $16.00 per share.
Options to
35
<PAGE>
CIBER, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
purchase 71,200 shares of common stock were repriced. The repriced
options follow the vesting schedule of the original options granted.
On October 9, 1998, the Board of Directors authorized a program which allowed
certain directors, who were originally granted options under the Directors'
Stock Option Plan from October 1, 1997 to September 30, 1998 at exercise prices
ranging from $21.53 to $40.25, to cancel these stock options and replace them
with options under the Employees' Stock Option Plan at an exercise price of
$16.00 per share. Options to purchase 48,000 shares of common stock were
replaced.
The Company applies APB 25 in accounting for its stock-based compensation plans.
The compensation cost that has been expensed for these plans for the years ended
June 30, 1997, 1998 and 1999 was $62,000, $59,000 and $395,000, respectively.
Had the Company determined compensation cost for its stock-based compensation
plans based on the fair value at the grant date, as calculated in accordance
with SFAS 123, the Company's net income, pro forma net income, and pro forma
income per share for the years ended June 30 would have been reduced to the pro
forma amounts indicated below (in thousands, except per share data):
<TABLE>
<CAPTION>
1997 1998 1999
----------- -------------- -----------
<S> <C> <C> <C> <C>
Net income As reported $21,226 $36,477 $54,495
Pro forma 19,021 31,516 51,353
Pro forma net income As reported 20,423 34,270 54,495
Pro forma 18,218 29,309 51,353
Pro forma income per share - basic As reported .43 .67 .98
Pro forma .38 .57 .93
Pro forma income per share - diluted As reported .40 .64 .95
Pro forma .36 .54 .90
</TABLE>
The effect of applying SFAS 123 in this disclosure may not be indicative of the
effect on reported net income for future years. SFAS 123 does not apply to
options granted prior to July 1, 1995.
The fair value of options at the date of grant was estimated using the
Black-Scholes option pricing model with the following weighted-average
assumptions:
<TABLE>
<CAPTION>
1997 1998 1999
--------------------------------
<S> <C> <C> <C>
Expected life 5 years 5 years 5 years
Risk free interest rate 6.3% 6.0% 4.8%
Expected volatility 50% 50% 80%
Dividend yield 0% 0% 0%
</TABLE>
36
<PAGE>
CIBER, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
A summary of the status of the Company's stock option plans as of June 30 and
changes during the years ending on those dates is presented below (shares in
thousands):
<TABLE>
<CAPTION>
1997 1998 1999
------------------------ ------------------------ ------------------------
WEIGHTED WEIGHTED WEIGHTED
AVERAGE AVERAGE AVERAGE
EXERCISE EXERCISE EXERCISE
SHARES PRICE SHARES PRICE SHARES PRICE
--------- ----------- --------- ----------- --------- -----------
<S> <C> <C> <C> <C> <C> <C>
Outstanding at beginning of year 4,503 $1.67 4,103 $ 4.17 5,187 $ 12.34
Granted 1,052 12.24 2,541 21.04 2,760 22.57
Exercised (1,252) 1.26 (1,213) 2.11 (960) 4.73
Canceled (200) 8.44 (244) 16.61 (1,590) 24.34
--------- --------- ---------
Outstanding at end of year 4,103 $4.17 5,187 $12.34 5,397 $15.38
--------- --------- ---------
--------- --------- ---------
Options exercisable at year end 2,313 1,850 1,875
--------- --------- ---------
--------- --------- ---------
</TABLE>
The weighted average fair values of options granted during fiscal 1997, 1998 and
1999 were $6.43, $11.45 and $16.24, respectively.
A summary of the range of exercise prices and the weighted-average contractual
life of outstanding stock options at June 30, 1999 is as follows (shares in
thousands):
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
------------------------------------------------- ---------------------------------
WEIGHTED
NUMBER WEIGHTED AVERAGE NUMBER WEIGHTED
RANGE OF OUTSTANDING AVERAGE REMAINING EXERCISABLE AVERAGE
EXERCISE PRICES JUNE 30, 1999 EXERCISE PRICE LIFE (YEARS) JUNE 30, 1999 EXERCISE PRICE
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
$ 0.01 - $ 4.44 1,199 $ 0.82 9.6 1,113 $ 0.72
5.19 - 15.88 547 10.67 7.1 311 10.46
16.00 - 19.25 2,070 16.75 8.5 280 17.08
19.38 - 29.44 1,581 26.26 9.1 171 26.28
- --------------------------------------------------------------------------------------------------------------------
$ 0.01 - $ 29.44 5,397 $ 15.38 8.8 1,875 $ 7.10
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
(11) RELATED PARTY TRANSACTIONS
Prior to the acquisition of CNSI on December 2, 1996 (see Note 3), CNSI was 85%
beneficially owned by certain officers of the Company. These officers and their
families received $1,159,000 in cash and 108,996 shares of CIBER common stock as
initial consideration for their ownership interests in CNSI. CIBER also repaid
approximately $898,000 to the Company's Chairman and members of his family for
outstanding obligations owed to them by CNSI at the time of the acquisition.
During fiscal 1998, additional consideration of $1.2 million was paid to the
selling shareholders, of which certain officers of the Company and members of
their families received 40,832 shares of CIBER common stock and cash of
$118,000. During fiscal 1999, additional consideration of $1.3 million was paid,
of which certain officers of the Company and members of their families received
52,225 shares of CIBER common stock and cash of $168,000 as final settlement to
the purchase agreement.
Certain officers of the Company also guaranteed an inventory financing line of
credit to CNSI which had an outstanding balance of approximately $1.1 million at
December 2, 1996. These personal guarantees were released upon the acquisition
of CNSI. CNSI had a bank line of credit, with an outstanding balance of $1.9
million at December 2, 1996, that was guaranteed by the Company's Chairman. Upon
the acquisition of CNSI, the Company repaid and canceled this bank line of
credit and the personal guarantee of the Chairman was released.
37
<PAGE>
(12) 401(K) SAVINGS PLAN AND OTHER RETIREMENT PLANS
CIBER has a savings plan under Section 401(k) of the Internal Revenue Code.
Company contributions are determined based on the employee's completed years
of service, the employee's contribution and the Company's matching
contribution percentage. In addition, certain companies which have merged
with CIBER in business combinations accounted for as poolings of interests
have had similar defined contribution retirement plans. CIBER recorded
expense of approximately $2,815,000, $4,519,000 and $4,555,000 for the years
ended June 30, 1997, 1998 and 1999, respectively, related to these plans.
(13) BUSINESS AND CREDIT CONCENTRATIONS
CIBER's clients are located principally throughout the United States. Its
revenue and accounts receivable are concentrated with large companies in
several industries. CIBER's largest client accounted for approximately 5%, 5%
and 6% of total revenues for the years ended June 30, 1997, 1998 and 1999,
respectively. In addition, CIBER's five largest clients accounted for, in the
aggregate, approximately 15%, 14% and 15% of CIBER's total revenues for the
years ended June 30, 1997, 1998 and 1999, respectively. CIBER has a policy to
regularly monitor the creditworthiness of its clients and generally does not
require collateral. CIBER has a concentration of revenues related to clients
purchasing software from PeopleSoft, Inc. ("PeopleSoft"). Approximately 8%,
9% and 10% of CIBER's total revenues for the years ended June 30, 1997, 1998
and 1999, respectively, were generated from implementing PeopleSoft software.
CIBER also has concentrations of credit risk in cash and cash equivalents,
which are invested in investment grade commercial paper and money market
funds.
(14) SUPPLEMENTAL STATEMENT OF CASH FLOW INFORMATION
Supplemental statement of cash flow information for the years ended June 30
is as follows (in thousands):
<TABLE>
<CAPTION>
1997 1998 1999
----------- ---------- ------------
<S> <C> <C> <C>
Noncash investing and financing activities:
Cash paid for acquisitions:
Fair value of assets acquired $ 28,854 $ - $ 142,514
Liabilities assumed (5,965) - (10,586)
Common stock issued in connection with acquisitions (2,469) - (106,285)
Accrued acquisition costs payable (1,175) -
Additional cash consideration on previous acquisitions 45 351 857
----------- ---------- ------------
Cash paid for acquisitions $ 19,290 $ 351 $ 26,500
----------- ---------- ------------
----------- ---------- ------------
Issuance of common stock in satisfaction
of acquisition costs payable $ 100 $ 1,151 $ 1,203
Stock options exchanged for accrued compensation $ - - $ 833
Property and other assets distributed by merged company $ - $ 1,370 $ -
Cash paid for interest $ 364 $ 182 $ -
Cash paid for income taxes $ 9,113 $ 12,194 $ 32,941
</TABLE>
38
<PAGE>
(15) SELECTED QUARTERLY FINANCIAL INFORMATION (UNAUDITED)
The following table sets forth certain statements of operations data for each
of the quarters indicated below and, in the opinion of management, contains
all adjustments, consisting only of normal recurring adjustments, necessary
for a fair presentation thereof. All information has been restated for
poolings of interests business combinations through June 30, 1999.
<TABLE>
<CAPTION>
FIRST SECOND THIRD FOURTH
IN THOUSANDS, EXCEPT PER SHARE DATA QUARTER QUARTER QUARTER QUARTER TOTAL
------- ------- ------- ------- -----
<S> <C> <C> <C> <C> <C>
YEAR ENDED JUNE 30, 1999
Revenues $165,658 $174,056 $184,901 $195,046 $719,661
Amortization of intangible assets 1,082 1,069 2,314 3,055 7,520
Merger costs 1,535 - - - 1,535
Operating income 18,760 23,148 23,880 23,552 89,340
Net income 11,117 14,320 14,883 14,175 54,495
Pro forma net income 11,117 14,320 14,883 14,175 54,495
Pro forma income per share - basic $0.21 $0.27 $0.27 $0.24 $0.98
Pro forma income per share - diluted $0.20 $0.26 $0.26 $0.24 $0.95
YEAR ENDED JUNE 30, 1998
Revenues $129,334 $141,661 $148,093 $157,400 $576,488
Amortization of intangible assets 938 970 978 1,050 3,936
Merger costs 614 1,573 504 1,847 4,538
Operating income 10,512 11,989 17,728 17,639 57,868
Net income 6,484 6,056 11,387 12,550 36,477
Pro forma net income 6,208 6,851 10,657 10,554 34,270
Pro forma income per share - basic $0.12 $0.13 $0.21 $0.20 $0.67
Pro forma income per share - diluted $0.12 $0.13 $0.20 $0.19 $0.64
</TABLE>
39
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
Certain information required by Part III is omitted from this Report because
the registrant will file a definitive Proxy Statement pursuant to Regulation
14A (the "Proxy Statement") not later than 120 days after the end of the
fiscal year covered by this Report, and certain information included therein
is incorporated herein by reference.
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS
The Company's directors and executive officers are as follows:
<TABLE>
<CAPTION>
SERVED AS
OFFICER OR
DIRECTOR
NAME AGE POSITIONS SINCE CLASS
- -------------------------------- ---------- -------------------------------------------- ------------- --------------
<S> <C> <C> <C> <C>
Bobby G. Stevenson 57 Chairman and Founder 1974 Class III
Mac J. Slingerlend 52 Chief Executive Officer, President, 1989 Class II
Secretary and Director
Paul E. Rudolph 42 Chief Operating Officer 1999 Class II
(proposed)
Richard A. Montoni 48 Chief Financial Officer, Executive Vice 1996 Class III
President, Treasurer and Director
Joseph A. Mancuso 53 Senior Vice President/Custom Solutions 1994 -
Group - President
Donald R. Hahl 49 Senior Vice President/Strategic Solutions 1997 -
Group - President
James A. Rutherford 53 Director 1994 Class II
Roy L. Burger 44 Director 1995 Class I
James G. Brocksmith, Jr. 58 Director 1998 Class I
Archibald J. McGill 68 Director 1998 Class III
</TABLE>
BOBBY G. STEVENSON. Mr. Stevenson is Chairman of the Board of Directors and
one of the original founders of the Company. Mr. Stevenson was Vice President
in charge of recruiting and management of the technical staff from 1974 until
November 1977 when he became Chief Executive Officer. As Chief Executive
Officer, he had been responsible for all operations of the Company from 1977
to 1998.
MAC J. SLINGERLEND. Mr. Slingerlend joined the Company in January 1989 as
Executive Vice President/Chief Financial Officer and was elected a director
in 1994. He was made President and Chief Operating Officer in 1996 and was
promoted to Chief Executive Officer in March 1998 and became Secretary in
1998. Prior to joining the Company, Mr. Slingerlend spent 15 years in the
banking industry, primarily as a commercial lender, and five years in
corporate financial positions in the cable television and hospitality
industries.
40
<PAGE>
PAUL E. RUDOLPH. Mr. Rudolph joined the Company in June 1999 as Chief
Operating Officer. Prior to his employment with CIBER, Mr. Rudolph served as
President of EDS' Electronic Business unit from 1996 to 1999. Since joining
EDS in 1979 and until 1996, Mr. Rudolph held a variety of management and
technical leadership roles spanning multiple industry groups.
RICHARD A. MONTONI. Mr. Montoni has been the Company's Executive Vice
President/Chief Financial Officer and a director since October 1996. He
became Treasurer in 1998. Prior to joining the Company, Mr. Montoni was a
partner with KPMG LLP, where he worked for approximately 20 years with
companies in the high technology, manufacturing, merchandising and
distribution industries. Mr. Montoni is a member of the American Institute of
Certified Public Accountants and the Colorado Society of Certified Public
Accountants.
JOSEPH A. MANCUSO. Effective July 1, 1999, Mr. Mancuso became Senior Vice
President/Custom Solutions Group - President. Mr. Mancuso has also served as
President of the CIBER Information Services Division since March of 1998.
Previously, Mr. Mancuso was Divisional Vice President in charge of eastern
operations from 1996 to 1998. Mr. Mancuso joined CIBER as a result of CIBER
acquiring CPU, Inc. in 1994 and served as Regional Vice President from 1994
to 1996 in charge of southeast branch operations. From 1993 to 1994 Mr.
Mancuso was a Vice President for CPU, Inc.
DONALD R. HAHL. Effective July 1, 1999, Mr. Hahl became Senior Vice
President/Strategic Solutions Group - President. From March 1998 to June
1999, Mr. Hahl was President/CIBER Solutions Division. From August 1997 to
February 1998, Mr. Hahl was President of Spectrum Technology Group, Inc. Mr.
Hahl joined CIBER in 1996 when Spectrum merged into CIBER. Mr. Hahl was a
co-founder of Spectrum in 1979 and served as Vice President/Consulting
Services when the merger occurred.
JAMES A. RUTHERFORD. Mr. Rutherford has been a director of the Company since
February 1994. He is currently a managing director of Wingset Investments
Ltd., a private venture capital company located in New Albany, Ohio. Prior to
forming Wingset in 1995, Mr. Rutherford was one of the founders of Goal
Systems International, Inc., serving in various executive positions,
including Chief Executive Officer, and as a director from its incorporation
in 1977 until its sale in 1992. Mr. Rutherford is also a trustee of Case
Western Reserve University and a director of Symix Systems, Inc., Columbus,
Ohio, as well as several private corporations.
ROY L. BURGER. Mr. Burger has been a director of the Company since November
1995. Mr. Burger has approximately 22 years of experience in the equipment
leasing and finance industry and has arranged the financing of more than $2
billion of equipment and real estate. Mr. Burger currently serves as
President and Chief Executive Officer of Boulder Capital Group, a company
founded by him in 1986 that specializes in equipment leasing. In May 1998,
Boulder Capital Group, together with 11 other finance companies, merged and
consolidated to become part of UniCapital Corporation ("UniCapital"). Mr.
Burger served on the Board of Directors of UniCapital during its first year
of listing on the New York Stock Exchange.
JAMES G. BROCKSMITH, JR. Mr. Brocksmith has been a director of the Company
since July 1998. Mr. Brocksmith served as a partner of KPMG LLP from 1971 to
January 1997. From 1990 to October 1996, Mr. Brocksmith served as the Deputy
Chairman of the Board and Chief Operating Officer of KPMG LLP. Since January
1997, Mr. Brocksmith has been a self-employed business consultant for several
companies. Mr. Brocksmith is a member of the board of directors of two
publicly traded companies; Nationwide Financial Services, Inc., a provider of
life insurance, mutual funds and pension products, and Vistana, Inc., a
leading developer and operator of vacation ownership resorts.
ARCHIBALD J. MCGILL. Mr. McGill has been a director of the Company since
September 1998. Mr. McGill has served in executive capacities at IBM and AT&T
and was President of Rothschild Venture Capital. He is on the board of
directors of several small high-technology companies. From 1985 to the
present, Mr. McGill has been the President of Chardonnay, Inc., a venture
capital investment company.
Additional information is incorporated herein by reference to the Company's
1999 Proxy Statement under the caption "Section 16(a) Beneficial Ownership
Reporting Compliance."
41
<PAGE>
ITEM 11. EXECUTIVE COMPENSATION
The response to this item is incorporated herein by reference to the
Company's 1999 Proxy Statement under the caption, "Executive Compensation,"
except the Compensation Committee's Report on Executive Compensation which is
not incorporated herein.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The response to this item is incorporated herein by reference to the
Company's 1999 Proxy Statement under the caption "Securities Ownership of
Certain Beneficial Owners and Management."
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The response to this item is incorporated herein by reference to the
Company's 1999 Proxy Statement under the caption "Certain Relationships and
Related Transactions."
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a)(1) Financial Statements
The following financial statements are filed as part of this report:
Independent Auditors' Report
Consolidated Statements of Operations - Years Ended June 30, 1997,
1998 and 1999
Consolidated Balance Sheets - June 30, 1998 and 1999
Consolidated Statements of Shareholders' Equity - Years Ended
June 30, 1997, 1998 and 1999
Consolidated Statements of Cash Flows - Years Ended June 30, 1997,
1998 and 1999
Notes to Consolidated Financial Statements
(2) Financial Statement Schedules
The financial statement schedule listed below is shown immediately
following the signature page. The schedule should be read in
conjunction with the consolidated financial statements in this Form
10-K. All other schedules are omitted because they are not
applicable or the required information is shown in the financial
statements or Notes thereto.
Schedule II - Valuation and Qualifying Accounts for the three years
ended June 30, 1999.
42
<PAGE>
(3) Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibits
------ -----------------------
<S> <C>
3(i) Amended and Restated Certificate of Incorporation of
CIBER, Inc.; Certificate of Amendment to Amended and
Restated Certificate of Incorporation of CIBER, Inc.
dated October 29, 1996; Certificate of Amendment to
Amended and Restated Certificate of Incorporation of
CIBER, Inc. dated March 4, 1998 incorporated by reference
to the Quarterly Report on Form 10-Q for
the quarter ended March 31, 1998
3(ii) Bylaws of the Company (1)
4.1 Form of Common Stock Certificate (1)
4.2 Rights Agreement, dated as of August 31, 1998, between
the Company and UMB Bank, N. A., and exhibits,
incorporated by reference to the Form 8-K filed by the
Company on September 16, 1998
10.1 1989 CIBER, Inc. Employee Stock Option Plan (1)
10.2 Form of CIBER, Inc. Non-Employee Directors' Stock
Option Plan (1)
10.3 Implementation Partners Agreement dated September
1, 1993, by and between Business Information
Technology, Inc. and PeopleSoft, Inc.,
incorporated by reference to the Registration Statement
on Form S-1, as amended (File No. 33-96988), on September 15, 1995
10.4 Salary Continuation Retirement Plan for Mac J. Slingerlend,
incorporated by reference to the Annual Report on Form 10-K
for the year ended June 30, 1996
10.5 CIBER, Inc. Salary Continuation Retirement Plan for Richard A.
Montoni, incorporated by reference to the Current Report on
Form 8-K filed with the Commission on December 12, 1996
10.6 CIBER, Inc. Equity Incentive Plan (Amended and restated
as of May 4, 1998), incorporated by reference to the Annual
Report on Form 10-K for the year ended June 30, 1998
10.7 CIBER, Inc. Non-Employee Directors' Stock Compensation
Plan (as amended July 1, 1997), incorporated by reference to the
Annual Report on Form 10-K for the year ended June 30, 1998
10.8 Unsecured Credit Agreement with UMB Bank Colorado dated
December 1, 1998, incorporated by reference to the Quarterly
Report on Form 10-Q for the quarter ended December 31, 1998
10.9 Agreement and Plan of Reorganization and Liquidation by and among
CIBER, Inc., CIBER Integration Services, Inc., Business Impact
Systems, Inc. and the Affiliated Stockholders of Business Impact
Systems, Inc. dated February 26, 1999, incorporated by reference to the
Current Report on Form 8-K filed with the Commission on July 1, 1999
10.10 Employment Agreement between the Company and Mac J. Slingerlend
10.11 Employment Agreement between the Company and Paul E. Rudolph
10.12 Employment Agreement between the Company and Richard A. Montoni
10.13 Employment Agreement between the Company and Joseph A. Mancuso
10.14 Employment Agreement between the Company and Donald R. Hahl
21.1 List of Subsidiaries
23.1 Consent of KPMG LLP
27.1 Financial Data Schedule for the year ended June 30, 1999
</TABLE>
(1) Incorporated by reference to the Registration Statement
on Form S-1, as amended (File No. 33-74774), as filed
with the Commission on February 2, 1994.
43
<PAGE>
(b) REPORTS ON FORM 8-K DURING THE LAST QUARTER OF THE FISCAL YEAR ENDED
JUNE 30, 1999
A Report on Form 8-K was filed on April 15, 1999 that provided
selected consolidated and supplemental quarterly financial
information that was restated for certain business combinations
accounted for as poolings of interests.
A Report on Form 8-K was filed on June 23, 1999 that announced the
authorization of the Company's plan to re-purchase up to 10% of
CIBER's outstanding common stock.
44
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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.
CIBER, INC.
(Registrant)
Date: September 24, 1999 By /s/ Mac J. Slingerlend
-----------------------------------
Mac J. Slingerlend
CHIEF EXECUTIVE OFFICER, PRESIDENT
AND SECRETARY
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the registrant and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Bobby G. Stevenson Chairman and Founder September 24, 1999
----------------------
Bobby G. Stevenson
/s/ Mac J. Slingerlend Chief Executive Officer, President,
---------------------- Secretary and Director September 24, 1999
Mac J. Slingerlend
/s/ Richard A. Montoni Chief Financial Officer, Executive Vice September 24, 1999
---------------------- President, Treasurer and Director
Richard A. Montoni (Principal Financial Officer)
/s/ Christopher L. Loffredo Vice President/Chief Accounting Officer September 24, 1999
---------------------------- (Principal Accounting Officer)
Christopher L. Loffredo
/s/ James A. Rutherford Director September 24, 1999
-----------------------
James A. Rutherford
/s/ Roy L. Burger Director September 24, 1999
------------------
Roy L. Burger
/s/ James G. Brocksmith, Jr. Director September 24, 1999
----------------------------
James G. Brocksmith, Jr.
/s/ Archibald J. McGill Director September 24, 1999
------------------------
Archibald J. McGill
</TABLE>
45
<PAGE>
CIBER, INC. AND SUBSIDIARIES
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
YEARS ENDED JUNE 30, 1997, 1998 AND 1999
(IN THOUSANDS)
<TABLE>
<CAPTION>
BALANCE AT NET CHARGE BALANCE AT
BEGINNING TO COSTS AND END
OF PERIOD EXPENSES (1) OTHER (2) OF PERIOD
---------------- ---------------- ------------ -------------
<S> <C> <C> <C> <C>
Allowance for doubtful accounts:
Year ended June 30, 1997 $ 178 679 - $ 857
Year ended June 30, 1998 857 1,523 130 2,510
Year ended June 30, 1999 2,510 453 381 3,344
</TABLE>
(1) Represents additions charged to costs and expenses net of accounts
written off.
(2) Represents additions due to business combinations accounted for as
purchases and immaterial poolings of interests.
<PAGE>
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered
into as of July 1, 1999, by and between CIBER, INC., a Delaware corporation
("Corporation"), and MAC J. SLINGERLEND ("Officer").
RECITAL
Corporation previously entered into an Employment Agreement
with Officer on July 1, 1995. Corporation and Officer desire to amend and
supersede that agreement and continue the employment of the Officer by
Corporation, on the terms and subject to the conditions set forth in this
Agreement.
AGREEMENT
THE PARTIES AGREE AS FOLLOWS:
1. DUTIES. Officer agrees to be employed by and to serve
Corporation in the position set forth on EXHIBIT A, and Corporation agrees to
employ and retain Officer in such capacity. Officer shall devote all of his
business time, energy and skill to the affairs of Corporation. Officer shall
have powers and duties commensurate with his position set forth on EXHIBIT A.
Officer shall comply with the general management policies of Corporation as
announced from time to time. Officer's principal place of business with
respect to his services to Corporation shall be within twenty (20) miles of
the central business district of Denver, Colorado, although Officer shall be
required at various times to travel as part of his duties.
2. TERM OF EMPLOYMENT. The initial term of employment of
Officer by Corporation shall be from the date of this Agreement through June
30, 2000, unless terminated earlier pursuant to this Agreement. This
Agreement shall renew automatically for a period of one year on July 1, 2000
and on each subsequent anniversary date thereof, subject to the termination
provisions hereof.
3. SALARY, BENEFITS AND BONUS COMPENSATION.
3.1 BASE SALARY. Corporation agrees to pay to Officer
initially a "Base Salary" as set forth on EXHIBIT A payable in twenty-six (26)
equal biweekly installments. The Base Salary for each fiscal year (currently
July 1 through June 30 of each year) or portion thereof after fiscal year 2000
shall be determined in the sole discretion of the Board of Directors, but shall
not be less than $380,000 per annum. In the absence of and until any salary
determination by the Board, Officer's Base Salary for a particular fiscal year
shall be identical to Officer's Base Salary in effect on June 30th of the
immediately preceding fiscal year.
3.2 BONUSES. Officer shall be eligible to receive a
bonus for the fiscal year ending June 30, 2000 provided the Officer remains
an employee through such date. Such bonus will be determined in accordance
with the formula described on EXHIBIT A and paid within seventy five (75)
days after the year end to which such bonus relates. The bonus for each
fiscal year or portion thereof after fiscal year 2000 shall be determined in
the sole discretion of the Board of Directors.
<PAGE>
3.3 ADDITIONAL BENEFITS. During the term of his
employment, Officer shall be entitled to the following fringe benefits:
3.3.1 OFFICER BENEFITS. Officer shall be
eligible to participate in such of Corporation's benefit and compensation
plans as may be generally available to executive officers of Corporation,
including, without limitation, profit sharing, employee stock purchase plans,
medical, dental, health and annual physical examination plans, life and
disability insurance plans, financial planning and retirement programs,
according to their terms. All such benefit plans may be amended or
discontinued in the sole discretion of Corporation.
3.3.2 BUSINESS EXPENSES. Corporation shall
reimburse Officer for all reasonable and necessary expenses incurred in
carrying out his duties under this Agreement, including travel and
entertainment expenses. Officer shall present monthly to Corporation an
itemized account of such expenses in such form as may be required by
Corporation.
3.3.3 CLUBS. Corporation shall pay all
initiation fees and dues charged by Glenmoor Country Club and for such
additional organizations, if any, as shall be approved by the Board or the
Chairman of the Compensation Committee of Corporation.
3.3.4 VACATION. Officer shall be entitled to
vacation time generally available to executive officers of Corporation during
which vacation time his compensation shall be paid in full.
3.3.5 LIFE INSURANCE. Upon Officer passing any
required physical examination, Corporation shall at its expense procure and
keep in effect an unrated insurance policy or policies on the life of Officer
in an amount of not less than $1,000,000, payable to such beneficiaries as
Officer may from time to time designate. To the extent the Corporation
maintains "key man" life insurance on the life of Officer of at least
$1,000,000, the Corporation may utilize such insurance to discharge the
obligation set forth in the preceding sentence. Such policies shall be owned
by Corporation. Officer shall cooperate in the obtaining of all such
insurance policies as Corporation may desire to apply for and own for its own
purposes. This insurance is in addition to any group life coverage which may
be provided to Officer by Corporation.
3.3.6 DEFERRED COMPENSATION. Officer shall be
entitled to participate in a deferred compensation plan pursuant to and
subject to the terms and conditions set forth in a separate agreement between
the parties.
3.4 OPTION TO ACQUIRE COMMON STOCK. Officer has been
granted options, pursuant to and subject to the terms and conditions of
Corporation's Equity Incentive Plan and the option agreements executed by and
between Officer and the Corporation, to purchase certain shares of
Corporation's Common Stock at the exercise price or prices stated in the
option agreements. Such option agreements remain in effect in accordance with
their terms and are unaffected by this Agreement. Any further options shall
be granted at the sole discretion of the Corporation's Board of Directors.
-2-
<PAGE>
4. TERMINATION OF EMPLOYMENT.
4.1 TERMINATION FOR CAUSE. Termination for Cause (as
defined below) of Officer's employment may be effected by Corporation at any
time without liability except as specifically set forth in this Subsection.
The termination shall be effected by written notification to Officer and
shall be effective as of the time set forth in such notice. At the effective
time of a Termination for Cause, Officer immediately shall be paid all
accrued Base Salary and any reasonable and necessary business expenses
incurred by Officer in connection with his duties hereunder, all to the date
of termination. In addition, Officer shall be entitled to benefits under any
benefit plans of Corporation in which Officer is a participant to the full
extent of Officer's rights under such plans.
4.2 TERMINATION OTHER THAN FOR CAUSE. Corporation may
effect a Termination Other Than for Cause (as defined below) of Officer's
employment at any time upon giving written notice to Officer of such
termination and without liability except as specifically set forth in this
Subsection. The termination shall be effective as of the time set forth in
such notice. At the effective time of any Termination Other Than for Cause,
Officer shall immediately be paid all accrued Base Salary and any reasonable
and necessary business expenses incurred by Officer in connection with his
duties hereunder, all to the effective time of termination. Officer shall
also be entitled to any unpaid bonus compensation and such unpaid bonus
compensation shall be paid promptly once it has been determined, but no later
than sixty (60) days after the first quarter end following termination.
Unpaid bonus compensation for the purposes of this Section 4 shall be an
amount equal to the product of (i) 5% of the difference between Officer's
total accrual basis bonus compensation for the immediately preceding fiscal
year (or if such bonus compensation has not been determined, Officer's bonus
compensation for the fiscal year preceding such immediately preceding fiscal
year) and any amount pre-paid against Officer's bonus compensation for the
fiscal year during which termination occurs, and (ii) the number of full
calendar months of Officer's employment during the fiscal year in which
termination occurs. In addition, Officer shall immediately be paid the
percentage of his Base Salary set forth on EXHIBIT A. Officer shall also be
entitled to benefits under any benefit plans of Corporation in which Officer
is a participant to the full extent of Officer's rights under such plans, and
Corporation shall pay Officer's medical, life and disability insurance
premiums under Corporation's plans (or shall pay Officer a sum in cash, not
to exceed $1,000.00 per month, to pay private plan premiums for coverage
substantially the same as Corporation's) for the number of months following
termination set forth on EXHIBIT A.
4.3 TERMINATION BY REASON OF DISABILITY. If Officer, in
the reasonable judgment of the Board of Directors of Corporation, has failed
to perform his duties under this Agreement on account of illness or physical
or mental incapacity, and such illness or incapacity continues for a period
of more than six (6) months, then the question of whether Officer's illness
or incapacity is reasonably likely to continue shall be submitted to
Corporation's or, if disability insurance is maintained by Officer, Officer's
disability insurance carrier for determination. In the event such insurance
carrier determines that Officer is subject to such an illness or incapacity,
Corporation shall have the right to terminate Officer's employment
("Termination for Disability") by written notification to Officer and payment
to Officer of all accrued Base Salary, unpaid bonus compensation (prorated as
provided in Section 4.2) and any reasonable and necessary business expenses
incurred by Officer in connection with his duties hereunder, all to the date
of termination.
-3-
<PAGE>
In addition, Officer shall immediately be paid the percentage of his Base Salary
set forth on EXHIBIT A. Officer shall also be entitled to benefits under any
benefit plans in which Officer is a participant, including disability benefits
which may be provided pursuant to Section 3.3.1, to the full extent of Officer's
rights under such plans. In addition, Corporation shall pay Officer's medical,
life and disability insurance premiums under Corporation's plans (or shall pay
Officer a sum in cash, not to exceed $1,000.00 per month, to pay private plan
premiums for coverage substantially the same as Corporation's) for the number of
months following termination set forth on EXHIBIT A.
4.4 DEATH. In the event of Officer's death during the
term of employment, Officer's employment shall be deemed to have terminated
as of the last day of the month during which his death occurs, and
Corporation shall pay promptly to his estate (a) all accrued Base Salary,
unpaid bonus compensation (as defined in Section 4.2) and any reasonable and
necessary business expenses incurred by Officer in connection with his duties
hereunder, all to the date of termination, and proceeds from insurance
policies as provided in Section 3.3.5 and (b) the percentage of Officer's
Base Salary set forth on EXHIBIT A payable immediately on the effective day
of termination. Officer's estate shall also be entitled to benefits under any
benefit plans of Corporation in which Officer is a participant to the full
extent of Officer's rights under such plans.
4.5 VOLUNTARY TERMINATION. In the event of a Voluntary
Termination (as defined below) by Officer, Corporation shall immediately pay all
accrued Base Salary and any reasonable and necessary business expenses incurred
by Officer in connection with his duties hereunder, all to the date of
termination.
4.6 TERMINATION UPON A CHANGE IN CONTROL. In the event
of a Termination Upon a Change in Control (as defined below), Officer shall
immediately be paid all accrued Base Salary, unpaid bonus compensation (as
defined in Section 4.2) and any reasonable and necessary business expenses
incurred by Officer in connection with his duties hereunder, all to the date
of termination. In addition, Officer shall be paid the amount set forth on
EXHIBIT A in bi-weekly or monthly installments, at Corporation's option, over
thirty-six (36) months. Officer shall also be entitled to benefits under any
benefit plans of Corporation in which Officer is a participant to the full
extent of Officer's rights under such plans, and Corporation shall pay
Officer's medical, life and disability insurance premiums under Corporation's
plans (or shall pay Officer a sum in cash, not to exceed $1,000.00 per month,
to pay private plan premiums for coverage substantially the same as
Corporation's) for the number of months following termination set forth on
EXHIBIT A. Notwithstanding the foregoing, solely in the event of a
Termination Upon a Change in Control, the aggregate amount of severance
compensation paid to the Officer under this Agreement or otherwise shall not
include any amount that the Corporation is prohibited from deducting for
federal income tax purposes by virtue of Section 280G of the Internal Revenue
Code or any successor provision.
4.7 OTHER BENEFITS. Nothing in this Article 4 shall be
deemed to limit or restrict any right or benefit of Officer under
Corporation's Certificate of Incorporation, Bylaws or other documents or
agreements of the Corporation applicable to Officer.
-4-
<PAGE>
5. PROTECTION OF CORPORATION'S BUSINESS.
5.1 NO COMPETITION. Officer shall not, during the term
of his employment and for eighteen (18) months following the termination of
his employment, work as an employee or independent contractor or become an
investor or lender of any business, corporation, partnership or other entity
engaged in a Competing Business. An investment by Officer of up to 2% of the
outstanding equity in a publicly-traded corporation shall not constitute a
violation of this Section 5.1. A "Competing Business" is a business which
Corporation has engaged in, or has actively investigated engaging in, at any
time during the twenty-four (24) months prior to the termination of Officer's
employment in which Officer had responsibility to manage, direct or supervise.
5.2 NO SOLICITATION OF CLIENTS. Officer shall not,
during the term of his employment and for eighteen (18) months following the
termination of his employment (unless Corporation grants him written
authorization): (a) call upon, cause to be called upon, solicit or assist in
the solicitation of, any client or potential client of Corporation for the
purpose of selling, renting or supplying any product or service competitive
with the products or services of Corporation; (b) provide any product or
services to any client or potential client of Corporation which is
competitive with the products or services of Corporation; or (c) request,
recommend or advise any client or potential client to cease or curtail doing
business with the Corporation. Any individual, governmental authority,
corporation, partnership or other entity to whom Corporation has provided
services or products at any time prior to or during Officer's employment or
to whom Corporation has made one or more sales or sales calls during the
eighteen (18) month period preceding the date of termination of Officer's
employment shall be deemed a client or potential client.
5.3 NO HIRE OF OTHER EMPLOYEES OR CONTRACTORS. Except
on behalf of the Corporation, Officer shall not, during the term of his
employment and for a period of eighteen (18) months following the termination
of his employment: (a) employ, engage or seek to employ or engage any
individual or entity, on behalf of Officer or any entity (including a client
of Corporation), who is employed or engaged by Corporation or who was
employed or engaged by the Corporation during the six (6) month period
preceding Officer's termination; (b) solicit, recommend or advise any
employee of the Corporation or independent contractor to terminate their
employment or engagement with the Corporation for any reason; or (c) solicit
recruiting prospects and/or candidates whose files are actively maintained or
have been maintained during the last six (6) months prior to Officer's
termination by the Corporation.
6. CONFIDENTIALITY.
6.1 CONFIDENTIAL INFORMATION AND MATERIALS. All of the
Confidential Information and Materials, as defined herein, are and shall
continue to be the exclusive confidential property and trade secrets of
Corporation. Confidential Information and Materials have been or will be
disclosed to Officer solely by virtue of his employment with Corporation and
solely for the purpose of assisting him in performing his duties for
Corporation. "Confidential Information and Materials" refers to all
information belonging to or used by Corporation or Corporation's clients
relating to internal operations, procedures and policies, finances, income,
profits, business strategies, pricing, billing information, compensation and
other personnel information, client contacts, sales lists,
-5-
<PAGE>
employee lists, technology, software source codes, programs, costs, marketing
plans, developmental plans, computer programs, computer systems, inventions,
developments, personnel manuals, computer program manuals, programs and system
designs, and trade secrets of every kind and character, whether or not they
constitute a trade secret under applicable law and whether developed by Officer
during or after business hours. Officer acknowledges and agrees all Confidential
Information and Materials shall, to the extent possible, be considered works
made for hire for the Corporation under applicable copyright law. To the extent
any Confidential Information and Materials are not deemed to be a work made for
hire, Officer hereby assigns to the Corporation any rights he may have or may
acquire in such Confidential Information and Materials as they are created,
throughout the world, in perpetuity. Further, Officer hereby waives any and all
moral rights he may have in such Confidential Information and Materials.
Notwithstanding the foregoing, the Corporation acknowledges that it shall have
no right to inventions or other material for which no equipment, supplies,
facilities or Confidential Information and Material of the Corporation are used
and which are developed entirely on Officer's own time and (i) do not relate
directly to the business of the Corporation or (ii) do not result from any work
performed by Officer hereunder.
6.2 NON-DISCLOSURE AND NON-USE. Officer may use
Confidential Information and Material while an employee of Corporation and in
the course of that employment to the extent deemed necessary by Corporation
for the performance of Officer's responsibilities. Such permission expires
upon termination of his employment with Corporation or on notice from
Corporation. Officer shall not, either during or after his employment with
Corporation, disclose any Confidential Information or Materials to any
person, firm, corporation, association or other entity for any reason or
purpose unless expressly permitted by Corporation in writing. Officer shall
not use, in any manner other than to further Corporation's business, any
Confidential Information or Materials of Corporation. Upon termination of his
employment, Officer shall immediately return all Confidential Information or
Materials or other property of Corporation or its clients or potential
clients in his possession or control.
7. DEFINITIONS.
7.1 DEFINITIONS. For purposes of this Agreement, the
following terms shall have the following meanings:
7.1.1 "Termination for Cause" shall mean
termination by Corporation of Officer's employment by Corporation by reason
of Officer's conviction of any felony crime, Officer's willful dishonesty
towards, fraud upon or deliberate injury or attempted injury to Corporation
or its clients, Officer's material breach of this Agreement, or any material
reason that constitutes "cause" under applicable law.
7.1.2 "Termination Other Than for Cause" shall
mean termination by Corporation of Officer's employment by Corporation other
than a Termination for Cause, Termination Upon Change in Control, Termination
for Disability, or for any or no reason.
7.1.3 "Termination Upon a Change in Control"
shall mean a termination (whether voluntary or involuntary) of Officer's
employment with Corporation or any successor
-6-
<PAGE>
thereto within one hundred eighty (180) days from the date on which any of the
following occurs: (a) any "person" or "group" (within the meaning of Sections
13(d) and 14(d)(2) of the Securities Exchange Act of 1934 (the "1934 Act")),
other than Bobby G. Stevenson or a trustee or other fiduciary holding securities
under an employee benefit plan of Corporation, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of
more than thirty-three percent (33%) of the then outstanding voting stock of
Corporation; or (b) at any time during any period of three consecutive years
(not including any period prior to the Effective Date), individuals who at the
beginning of such period constitute the Board (and any new director whose
election by the Board or whose nomination for election by Corporation's
stockholders was approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for
any reason to constitute a majority thereof; or (c) the stockholders of
Corporation approve a merger or consolidation of Corporation with any other
corporation, other than a merger or consolidation which would result in the
voting securities of Corporation outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least 80% of the combined
voting power of the voting securities of Corporation or such surviving entity
outstanding immediately after such merger or consolidation, or the stockholders
approve a plan of complete liquidation of Corporation or an agreement for the
sale or disposition by Corporation of all or substantially all of Corporation's
assets.
7.1.4 "Voluntary Termination" shall mean
termination by Officer of Officer's employment with Corporation, but shall
not include (i) constructive termination by Corporation by reason of material
breach of this Agreement by Corporation; (ii) Termination Upon a Change in
Control; and (iii) termination by reason of Officer's death or disability as
described in Subsections 4.3 and 4.4. Voluntary Termination shall include a
termination by Corporation after its receipt of a notice of an otherwise
Voluntary Termination from Officer.
8. REMEDIES.
8.1 LIQUIDATED DAMAGES.
8.1.1 If Officer violates Subsection 5.1,
Officer shall pay to Corporation the sum of $100,000.00 as liquidated damages
to compensate Corporation for its lost investment of money for recruitment,
training, cost of replacement, lost revenues and other damages due to the
likely disruption of the operation of Corporation's business.
8.1.2 If Officer violates Subsection 5.2,
Officer shall pay to Corporation as liquidated damages the greater of
Corporation's gross billings to the client to which products or services are
supplied in violation of Subsection 5.2 during the year immediately prior to
the first improper solicitation or $12,500.00, to compensate Corporation for
its lost revenue, client development expenses and other damages.
8.1.3 If Officer violates Subsection 5.3,
Officer shall pay to Corporation as liquidated damages, in compensation for
its recruitment and training costs, lost revenues and other
-7-
<PAGE>
damages, the following sums for each employee or independent contractor hired or
engaged in violation of Subsection 5.3:
<TABLE>
<CAPTION>
EMPLOYEE OR INDEPENDENT CONTRACTOR AMOUNT
---------------------------------- ------
<S> <C>
Vice-President or other officer $ 100,000
Other Manager or Recruiter $ 50,000
Marketer or other sales personnel $ 50,000
Programmers or other billable personnel $ 12,500
Other office staff $ 5,000
</TABLE>
8.1.4 Officer and Corporation have carefully
considered the issue of liquidated damages and after negotiation agree that
they are a reasonable compromise after attempting to estimate what the actual
damages would be and assessing the risk of collection.
8.1.5 Officer authorizes Corporation to disclose
the terms of Sections 5, 6 and 8 of this Agreement to any subsequent employer
or client of Officer.
8.2 EQUITABLE REMEDIES. The service rendered by Officer
to Corporation and the information disclosed to Officer during his employment
are of a unique and special character, and any breach of Sections 5 or 6
hereof will cause Corporation irreparable injury and damage which will be
extremely difficult to quantify. Although the parties have agreed on
liquidated damages for some of the potential breaches by Officer, they agree
that because of the risk of collection and intangibles which are impossible
to measure, Corporation will be entitled to, in addition to all other
remedies available to it, injunctive relief to prevent a breach and to secure
the enforcement of all provisions of Sections 5 and 6. Officer represents his
experience and knowledge will enable him to earn an adequate living in a
non-competitive business and that the injunctive relief will not prevent him
from providing for himself and his family. Injunctive relief may be granted
immediately upon the commencement of any such action without notice to
Officer, WHICH NOTICE OFFICER SPECIFICALLY WAIVES.
8.3 COSTS. If litigation is brought to enforce or
interpret any provision contained herein, the court shall award reasonable
attorneys' fees and disbursements to the prevailing party as determined by
the court.
8.4 SEVERABILITY. THE PARTIES HAVE CAREFULLY CONSIDERED
ALL OF SECTIONS 5, 6 AND 8 AND AGREE THAT THEY REPRESENT A PROPER BALANCING
OF THEIR INTERESTS AND WILL NOT PREVENT OFFICER FROM EARNING A LIVING AFTER
TERMINATION OF HIS EMPLOYMENT. It is the express intent of the parties hereto
that the obligations of, and restrictions on, the parties as provided in
Sections 5 and 6 shall be enforced and given effect to the fullest extent
legally permissible. If, in any judicial proceeding, a court shall refuse to
enforce one or more of the covenants or agreements contained in this
Agreement because the duration thereof is too long, the scope thereof is too
broad or some other reason, for the purpose of such proceeding, the court may
reduce such duration or scope to the extent necessary to permit the
enforcement of such obligations and restrictions.
-8-
<PAGE>
9. MISCELLANEOUS.
9.1 PAYMENT OBLIGATIONS. Corporation's obligation to
pay Officer the compensation provided herein is subject to the condition
precedent that Officer perform his obligations; provided, however, Officer
shall have no obligation whatsoever to mitigate damages hereunder in the
event of a Termination Other Than for Cause.
9.2 DIRECTORS' AND OFFICERS' INSURANCE. Corporation
shall use its best efforts to obtain coverage for Officer under any insurance
policy now in force or hereafter obtained during the term of this Agreement
insuring officers and directors of Corporation for liability incurred by
reason of the fact that Officer is or was a director or officer of
Corporation or, while serving as a director or officer of Corporation, he is
or was serving at the request of Corporation as a director, officer, partner
or trustee of, or in any similar managerial or fiduciary position of, or as
an employee or agent of, another corporation, partnership, joint venture,
trust, association, or other entity.
9.3 WAIVER. The waiver of the breach of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach of the same or other provision hereof.
9.4 ENTIRE AGREEMENT; MODIFICATIONS. This Agreement
represents the entire understanding between the parties with respect to the
subject matter hereof, and this Agreement supersedes any and all prior
understandings, agreements, plans and negotiations, whether written or oral,
with respect to the subject matter hereof, including, without limitation, any
understandings, agreements or obligations respecting any past or future
compensation, bonuses, reimbursements or other payments to Officer from
Corporation. All modifications to this Agreement must be in writing and
signed by the party against whom enforcement of such modification is sought;
provided, however, that the provisions concerning Base Salary (subject to the
limitation in Section 3.1) and Bonus set forth on Exhibit A may be modified
at any time by the Board of Directors in its sole discretion.
9.5 NOTICES. All notices and other communications under
this Agreement shall be in writing and shall be given by hand delivery, or
first-class mail, certified or registered with return receipt requested, or
by commercial overnight courier or by fax and shall be deemed to have been
duly given upon hand delivery, three (3) days after mailing, the first
business day following delivery to a commercial overnight courier or upon
receipt of a fax (as confirmed by a machine generated report), addressed as
follows:
If to Corporation:
CIBER, INC.
5251 DTC Parkway, #1400
Englewood, Colorado 80111
Attention: Bob G. Stevenson
-9-
<PAGE>
With a copy to:
Wanda J. Abel, Esq.
Davis, Graham & Stubbs LLP
370 Seventeenth Street, Suite 4700
Post Office Box 185
Denver, Colorado 80201-0185
If to Officer:
Mac J. Slingerlend
5251 DTC Parkway, #1400
Englewood, Colorado 80111
Any party may change such party's address for notices by notice given pursuant
to this Section 9.5.
9.6 HEADINGS. The Section headings herein are intended
for reference and shall not by themselves determine the construction or
interpretation of this Agreement.
9.7 GOVERNING LAW; CONSENT TO JURISDICTION. This
Agreement shall be governed by and construed in accordance with the laws of
the State of Colorado without application of its conflict of laws rules.
Officer hereby submits to the exclusive jurisdiction and venue of the
District Court of the State of Colorado for the City and County of Denver or
the United States District Court for the District of Colorado for purposes of
any legal action. Officer agrees that service upon Officer in any such action
may be made by first-class mail, certified or registered, in the manner
provided for delivery of notices in Section 9.5.
9.8 SEVERABILITY. Should a court or other body of
competent jurisdiction determine that any provision of this Agreement is
excessive in scope or otherwise invalid or unenforceable, such provision
shall be adjusted rather than voided, if possible, so that it is enforceable
to the maximum extent possible, and all other provisions of the Agreement
shall be deemed valid and enforceable to the extent possible.
9.9 SURVIVAL OF CORPORATION'S OBLIGATIONS.
Corporation's obligations hereunder shall not be terminated by reason of any
liquidation, dissolution, bankruptcy, cessation of business or similar event
relating to Corporation. This Agreement shall not be terminated by any merger
or consolidation or other reorganization of Corporation. In the event any
such merger, consolidation or reorganization shall be accomplished by
transfer of stock or by transfer of assets or otherwise, the provisions of
this Agreement shall be binding upon and inure to the benefit of the
surviving or resulting corporation or person. This Agreement shall be binding
upon and inure to the benefit of the executors, administrators, heirs,
successors and assigns of the parties; provided, however, that except as
provided in this Subsection in the event of a merger, consolidation or
reorganization of the Corporation, including the sale of substantially all of
its assets, this Agreement shall not be assignable either by Corporation or
by Officer.
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<PAGE>
9.10 COUNTERPARTS. This Agreement may be executed in one
or more counterparts, all of which taken together shall constitute one and
the same Agreement.
9.11 WITHHOLDINGS. All compensation and benefits to
Officer hereunder shall be reduced by all federal, state, local and other
withholdings and similar taxes and payments required by applicable law.
Corporation may withhold amounts due it from Officer from amounts due under
this Agreement to Officer.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
OFFICER CIBER, INC., a Delaware corporation
/s/ Mac J. Slingerlend By: /s/ Richard A. Montoni
- ------------------------------ --------------------------------
Mac J. Slingerlend Richard A. Montoni
Executive Vice President
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<PAGE>
EXHIBIT A
TO
EMPLOYMENT AGREEMENT OF MAC J. SLINGERLEND DATED JULY 1, 1999
EFFECTIVE DATE OF EXHIBIT A: JULY 1, 1999
I. Position: President and Chief Executive Officer
II. *Base Salary Per Annum for Fiscal Year 2000: $475,000
III. *Bonus for Fiscal Year 2000: As approved by the Board of Directors
IV. Additional sums payable upon termination events as referenced in
Section 4 of the Agreement.
A. Termination for Cause: None
B. Termination Other than for Cause: 50% of Base Salary
C. Termination by Reason of Disability: 50% of Base Salary
D. Death: 50% of Base Salary
E. Voluntary Termination: None
F. Termination Upon a Change of Control: Three times the sum of
the following: Base Salary plus an amount equal to the bonus
compensation received by the Officer for the year preceding
the year in which termination occurs.
V. Period of time for continuance of medical, life and disability premiums
under Section 4.2, 4.3 and 4.6: Eighteen (18) months
* Items subject to modification by the Board of Directors
<PAGE>
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
June 1, 1999, by and between CIBER, INC., a Delaware corporation
("Corporation"), and PAUL E. RUDOLPH ("Officer").
RECITAL
Corporation desires to employ Officer in the position set forth on
EXHIBIT A, and Officer is willing to accept such employment by Corporation, on
the terms and subject to the conditions set forth in this Agreement.
AGREEMENT
THE PARTIES AGREE AS FOLLOWS:
1. DUTIES. Officer agrees to be employed by and to serve
Corporation in the position set forth on EXHIBIT A, and Corporation agrees to
employ and retain Officer in such capacity. Officer shall devote all of his
business time, energy and skill to the affairs of Corporation. Officer shall
have powers and duties commensurate with his position set forth on EXHIBIT A.
Officer shall comply with the general management policies of Corporation as
announced from time to time. Officer's principal place of business with respect
to his services to Corporation shall be within twenty (20) miles of the central
business district of Denver, Colorado, although Officer shall be required at
various times to travel as part of his duties.
2. TERM OF EMPLOYMENT. The initial term of employment of
Officer by Corporation shall be from July 1, 1999 through June 30, 2004,
unless terminated earlier pursuant to this Agreement. This Agreement shall
renew automatically for a period of one year on July 1, 2004 and on each
subsequent anniversary date thereof, subject to the termination provisions
hereof.
3. SALARY, BENEFITS AND BONUS COMPENSATION.
3.1 BASE SALARY. Corporation agrees to pay to Officer
initially a "Base Salary" as set forth on EXHIBIT A, payable in twenty-six
(26) equal biweekly installments. The Base Salary for each fiscal year
(currently July 1 through June 30 of each year) or portion thereof after
fiscal year 2004 shall be as determined in the sole discretion of the Board
of Directors, but shall not be less than 500,000 per annum. In the absence of
and until any salary determination by the Board, Officer's Base Salary for a
particular fiscal year shall be identical to Officer's Base Salary in effect
on June 30th of the immediately preceding fiscal year.
3.2 BONUSES. Officer shall be eligible to receive a
bonus for the fiscal year ending June 30, 2000, provided the Officer remains
an employee through such date. Such bonus will be determined in accordance
with the formula described on EXHIBIT A and paid within seventy-five days
after the year and to which such bonus relates. The bonus for each fiscal
year or portion thereof after fiscal year 2000 shall be determined in the
sole discretion of the Board of Directors.
<PAGE>
3.3 ADDITIONAL BENEFITS. During the term of his
employment, Officer shall be entitled to the following fringe benefits:
3.3.1 OFFICER BENEFITS. Officer shall be
eligible to participate in such of Corporation's benefit and compensation
plans as may be generally available to executive officers of Corporation,
including, without limitation, profit sharing, 401(k), employee stock
purchase, medical, dental and health plans, and life and disability insurance
plans, according to their terms. All such benefit plans may be amended or
discontinued in the sole discretion of Corporation.
3.3.2 BUSINESS EXPENSES. Corporation shall
reimburse Officer for all reasonable and necessary expenses incurred in
carrying out his duties under this Agreement, including travel and
entertainment expenses. Officer shall present monthly to Corporation an
itemized account of such expenses in such form as may be required by
Corporation.
3.3.3 VACATION. Officer shall be entitled to
vacation time generally available to executive officers of Corporation during
which vacation time his compensation shall be paid in full.
3.3.4 PREREQUISITES. Officer shall be
entitled to such additional prerequisites as are set forth on EXHIBIT A.
3.4 OPTION TO ACQUIRE COMMON STOCK. Effective as of
July 1, 2000 Officer will be granted options, pursuant to and subject to the
terms and conditions of Corporation's Equity Incentive Plan and the option
agreement attached hereto to purchase certain shares of Corporation's common
stock at the exercise price or prices stated in the option agreement. Any
further options shall be granted at the sole discretion of the Corporation's
Board of Directors.
4. TERMINATION OF EMPLOYMENT.
4.1 TERMINATION FOR CAUSE. Termination for Cause (as
defined below) of Officer's employment may be effected by Corporation at any
time without liability except as specifically set forth in this Subsection.
The termination shall be effected by written notification to Officer and
shall be effective as of the time set forth in such notice. At the effective
time of a Termination for Cause, Officer immediately shall be paid all
accrued Base Salary and any reasonable and necessary business expenses
incurred by Officer in connection with his duties hereunder, all to the date
of termination. In addition, Officer shall be entitled to benefits under any
benefit plans of Corporation in which Officer is a participant to the full
extent of Officer's rights under such plans.
4.2 TERMINATION OTHER THAN FOR CAUSE. Corporation
may effect a Termination Other Than for Cause (as defined below) of Officer's
employment at any time upon giving written notice to Officer of such
termination and without liability except as specifically set forth in this
Subsection. The termination shall be effective as of the time set forth in
such notice. At the effective time of any Termination Other Than for Cause,
Officer shall immediately be paid all accrued Base Salary and any reasonable
and necessary business expenses incurred by Officer in connection with his
duties hereunder, all to the effective time of termination. Officer shall
also be entitled to be paid any unpaid bonus compensation and such unpaid
bonus compensation shall be paid promptly once it has been determined, but no
later than sixty (60) days after the first quarter end following termination.
Unpaid bonus compensation for the purposes of this Section 4 shall be an
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<PAGE>
amount equal to the product of (i) 5% of the difference between Officer's
total accrual basis bonus compensation for the immediately preceding fiscal
year (or if such bonus compensation has not been determined, Officer's bonus
compensation for the fiscal year preceding such immediately preceding fiscal
year) and any amount pre-paid against Officer's bonus compensation for the
fiscal year during which termination occurs, and (ii) the number of full
calendar months of Officer's employment during the fiscal year in which
termination occurs. In addition, Officer shall immediately be paid the
percentage of his Base Salary set forth on EXHIBIT A. Officer shall also be
entitled to benefits under any benefit plans of Corporation in which Officer
is a participant to the full extent of Officer's rights under such plans, and
Corporation shall pay Officer's medical, life and disability insurance
premiums under Corporation's plans (or shall pay Officer a sum in cash, not
to exceed $1,000.00 per month, to pay private plan premiums for coverage
substantially the same as Corporation's) for the number of months following
termination set forth on EXHIBIT A.
4.3 TERMINATION BY REASON OF DISABILITY. If Officer,
in the reasonable judgment of the Board of Directors of Corporation, has
failed to perform his duties under this Agreement on account of illness or
physical or mental incapacity, and such illness or incapacity continues for a
period of more than six (6) months, then the question of whether Officer's
illness or incapacity is reasonably likely to continue shall be submitted to
Corporation's or, if disability insurance is maintained by Officer, Officer's
disability insurance carrier for determination. In the event such insurance
carrier determines that Officer is subject to such an illness or incapacity,
Corporation shall have the right to terminate Officer's employment
("Termination for Disability") by written notification to Officer and payment
to Officer of all accrued Base Salary, unpaid bonus compensation (prorated as
provided in Section 4.2) and any reasonable and necessary business expenses
incurred by Officer in connection with his duties hereunder, all to the date
of termination. In addition, Officer shall immediately be paid the amount set
forth on EXHIBIT A. Officer shall also be entitled to benefits under any
benefit plans in which Officer is a participant, including disability
benefits which may be provided pursuant to Section 3.3.1, to the full extent
of Officer's rights under such plans, and Corporation shall pay Officer's
medical, life and disability insurance premiums under Corporation's plans (or
shall pay Officer a sum in cash, not to exceed $1,000.00 per month, to pay
private plan premiums for coverage substantially the same as Corporation's)
for the number of months following termination set forth on EXHIBIT A.
4.4 DEATH. In the event of Officer's death during
the term of employment, Officer's employment shall be deemed to have
terminated as of the last day of the month during which his death occurs, and
Corporation shall pay promptly to his estate (a) all accrued Base Salary,
unpaid bonus compensation (as defined in Section 4.2) and any reasonable and
necessary business expenses incurred by Officer in connection with his duties
hereunder, all to the date of termination, and (b) the amount set forth on
EXHIBIT A payable immediately on the effective day of termination. Officer's
estate shall also be entitled to benefits under any benefit plans of
Corporation in which Officer is a participant to the full extent of Officer's
rights under such plans.
4.5 VOLUNTARY TERMINATION. In the event of a
Voluntary Termination (as defined below) by Officer, Corporation shall
immediately pay all accrued Base Salary and any reasonable and necessary
business expenses incurred by Officer in connection with his duties
hereunder, all to the date of termination.
4.6 TERMINATION UPON A CHANGE IN CONTROL. In the
event of a Termination Upon a Change in Control (as defined below), Officer
shall immediately be paid all
3
<PAGE>
accrued Base Salary, unpaid bonus compensation (as defined in Section 4.2)
and any reasonable and necessary business expenses incurred by Officer in
connection with his duties hereunder, all to the date of termination. In
addition, Officer shall immediately be paid the amount set forth on EXHIBIT
A. Officer shall also be entitled to benefits under any benefit plans of
Corporation in which Officer is a participant to the full extent of Officer's
rights under such plans, and Corporation shall pay Officer's medical, life
and disability insurance premiums under Corporation's plans (or shall pay
Officer a sum in cash, not to exceed $1,000.00 per month, to pay private plan
premiums for coverage substantially the same as Corporation's) for the number
of months following termination set forth on EXHIBIT A. Notwithstanding the
foregoing, solely in the event of a Termination Upon Change in Control, the
aggregate amount of severance compensation paid to an Officer under this
Agreement or otherwise shall not include any amount that the Corporation is
prohibited from deducting for federal income tax purposes by virtue of
Section 280G of the Internal Revenue Code or any successor provision.
4.7 OTHER BENEFITS. Nothing in this Article 4 shall
be deemed to limit or restrict any right or benefit of Officer under
Corporation's Certificate of Incorporation, Bylaws or other documents or
agreements of the Corporation applicable to Officer.
5. PROTECTION OF CORPORATION'S BUSINESS.
5.1 NO COMPETITION. Officer shall not, during the term
of his employment and for eighteen (18) months following the termination of
his employment, work as an employee or independent contractor or become an
investor or lender of any business, corporation, partnership or other entity
engaged in a Competing Business, excluding any passive investments made prior
to employment and/or passive investments in a blind trust. An investment by
Officer of up to 2% of the outstanding equity in a publicly-traded
corporation shall not constitute a violation of this Section 5.1. A
"Competing Business" is a business which Corporation has engaged in, or has
actively investigated engaging in, at any time during the twenty-four (24)
months prior to the termination of Officer's employment in which Officer had
responsibility to manage, direct or supervise.
5.2 NO SOLICITATION OF CLIENTS. Officer shall not,
during the term of his employment and for eighteen (18) months following the
termination of his employment (unless Corporation grants him written
authorization): (a) call upon, cause to be called upon, solicit or assist in
the solicitation of, any client or potential client of Corporation for the
purpose of selling, renting or supplying any product or service competitive
with the products or services of Corporation; (b) provide any product or
services to any client or potential client of Corporation which is
competitive with the products or services of Corporation; or (c) request,
recommend or advise any client or potential client to cease or curtail doing
business with the Corporation. Any individual, governmental authority,
corporation, partnership or other entity to whom Corporation has provided
services or products at any time prior to or during Officer's employment or
to whom Corporation has made one or more sales or sales calls during the
eighteen (18) month period preceding the date of termination of Officer's
employment shall be deemed a client or potential client.
5.3 NO HIRE OF OTHER EMPLOYEES OR CONTRACTORS.
Except on behalf of the Corporation, Officer shall not, during the term of
his employment and for a period of eighteen (18) months following the
termination of his employment: (a) employ, engage or seek to employ or engage
any individual or entity, on behalf of Officer or any entity (including a
client of
4
<PAGE>
Corporation), who is employed or engaged by Corporation or who was
employed or engaged by the Corporation during the six (6) month period
preceding Officer's termination; (b) solicit, recommend or advise any
employee of the Corporation or independent contractor to terminate their
employment or engagement with the Corporation for any reason; or (c) solicit
recruiting prospects and/or candidates whose files are actively maintained or
have been maintained during the last six (6) months prior to Officer's
termination by the Corporation.
6. CONFIDENTIALITY.
6.1 CONFIDENTIAL INFORMATION AND MATERIALS. All
of the Confidential Information and Materials, as defined herein, are and
shall continue to be the exclusive confidential property and trade secrets of
Corporation. Confidential Information and Materials have been or will be
disclosed to Officer solely by virtue of his employment with Corporation and
solely for the purpose of assisting him in performing his duties for
Corporation. "Confidential Information and Materials" refers to all
information belonging to or used by Corporation or Corporation's clients
relating to internal operations, procedures and policies, finances, income,
profits, business strategies, pricing, billing information, compensation and
other personnel information, client contacts, sales lists, employee lists,
technology, software source codes, programs, costs, marketing plans,
developmental plans, computer programs, computer systems, inventions,
developments, personnel manuals, computer program manuals, programs and
system designs, and trade secrets of every kind and character, whether or not
they constitute a trade secret under applicable law and whether developed by
Officer during or after business hours. Officer acknowledges and agrees all
Confidential Information and Materials shall, to the extent possible, be
considered works made for hire for the Corporation under applicable copyright
law. To the extent any Confidential Information and Materials are not deemed
to be a work made for hire, Officer hereby assigns to the Corporation any
rights he may have or may acquire in such Confidential Information and
Materials as they are created, throughout the world, in perpetuity. Further,
Officer hereby waives any and all moral rights he may have in such
Confidential Information and Materials. Notwithstanding the foregoing, the
Corporation acknowledges that it shall have no right to inventions or other
material for which no equipment, supplies, facilities or Confidential
Information and Material of the Corporation are used and which are developed
entirely on Officer's own time and (i) do not relate directly to the business
of the Corporation or (ii) do not result from any work performed by Officer
hereunder.
6.2 NON-DISCLOSURE AND NON-USE. Officer may use
Confidential Information and Material while an employee of Corporation and in
the course of that employment to the extent deemed necessary by Corporation for
the performance of Officer's responsibilities. Such permission expires upon
termination of his employment with Corporation or on notice from Corporation.
Officer shall not, either during or after his employment with Corporation,
disclose any Confidential Information or Materials to any person, firm,
corporation, association or other entity for any reason or purpose unless
expressly permitted by Corporation in writing. Officer shall not use, in any
manner other than to further Corporation's business, any Confidential
Information or Materials of Corporation. Upon termination of his employment,
Officer shall immediately return all Confidential Information or Materials or
other property of Corporation or its clients or potential clients in his
possession or control.
5
<PAGE>
7. DEFINITIONS.
7.1 DEFINITIONS. For purposes of this Agreement, the
following terms shall have the following meanings:
7.1.1 "Termination for Cause" shall mean termination
by Corporation of Officer's employment by Corporation by reason of Officer's
conviction of any felony crime, Officer's willful dishonesty towards, fraud
upon or deliberate injury or attempted injury to Corporation or its clients,
Officer's material breach of this Agreement, or any material reason that
constitutes cause under applicable law.
7.1.2 "Termination Other Than for Cause" shall mean
termination by Corporation of Officer's employment by Corporation other than
a Termination for Cause, Termination Upon Change in Control, Termination for
Disability, or for any or no reason.
7.1.3 "Termination Upon a Change in Control" shall mean
a termination by Corporation or any successor thereto of Officer's employment
with the Corporation or such successor for any reason or a termination by the
Officer for Good Reason (as defined below) of the Officer's employment with
the Corporation or any successor thereto within one hundred eighty (180) days
from the date on which a Change in Control occurs. A "Change in Control"
shall mean the occurrence of any of the following events: (a) any "person" or
"group" (within the meaning of Sections 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934 (the "1934 Act")), other than Bobby G. Stevenson or a
trustee or other fiduciary holding securities under an employee benefit plan
of Corporation, is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the 1934 Act), directly or indirectly, of more than thirty three
percent (33%) of the then outstanding voting stock of Corporation; or (b) at
any time during any period of three consecutive years (not including any
period prior to the Effective Date), individuals who at the beginning of such
period constitute the Board (and any new director whose election by the Board
or whose nomination for election by Corporation's stockholders was approved
by a vote of at least two-thirds of the directors then still in office who
either were directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority thereof; or (c) the stockholders of Corporation approve
a merger or consolidation of Corporation with any other corporation, other
than a merger or consolidation which would result in the voting securities of
Corporation outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities
of the surviving entity) at least 80% of the combined voting power of the
voting securities of Corporation or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders approve a
plan of complete liquidation of Corporation or an agreement for the sale or
disposition by Corporation of all or substantially all of Corporation's
assets.
For purposes of this Agreement "Good Reason" shall include,
but not be limited to, any of the following (without the Officer's express
written consent): (a) the assignment to the Officer by the Corporation of duties
inconsistent with, or a substantial diminution in the nature or status of, the
Officer's responsibilities immediately prior to a Change in Control other than
any changes primarily attributable to the fact that the Corporation's securities
are no longer publicly traded; (b) a reduction by the Corporation in the
Officer's compensation, benefits, or perquisites as in effect on the date of a
Change in Control; (c) a relocation of the Corporation's principal offices to a
location outside Denver, Colorado, or the Officer's relocation to any place
other than the
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<PAGE>
Denver, Colorado offices of the Corporation, except for reasonably required
travel by the Officer on the Corporation's business; (d) any material breach
by the Corporation of any provision of this Agreement, if such material
breach has not been cured within thirty (30) days following written notice by
the Officer to the Corporation of such breach setting forth with specificity
the nature of the breach; or (e) any failure by the Corporation to obtain the
assumption and performance of this Agreement by any successor (by merger,
consolidation or otherwise) or assign of the Corporation.
7.1.4 "Voluntary Termination" shall mean termination
by Officer of Officer's employment with Corporation, but shall not include
(i) constructive termination by Corporation by reason of material breach of
this Agreement by Corporation; (ii) Termination Upon a Change in Control; and
(iii) termination by reason of Officer's death or disability as described in
Subsections 4.3 and 4.4. Voluntary Termination shall include a termination by
Corporation after its receipt of a notice of an otherwise Voluntary
Termination from Officer.
8. REMEDIES.
8.1 LIQUIDATED DAMAGES.
8.1.1 If Officer violates Subsection 5.1,
Officer shall pay to Corporation the sum of $100,000.00 as liquidated damages
to compensate Corporation for its lost investment of money for recruitment,
training, cost of replacement, lost revenues and other damages due to the
likely disruption of the operation of Corporation's business.
8.1.2 If Officer violates Subsection 5.2, Officer shall
pay to Corporation as liquidated damages the greater of Corporation's gross
billings to the client to which products or services are supplied in
violation of Subsection 5.2 during the year immediately prior to the first
improper solicitation or $25,000.00, to compensate Corporation for its lost
revenue, client development expenses and other damages.
8.1.3 If Officer violates Subsection 5.3, Officer shall
pay to Corporation as liquidated damages, in compensation for its recruitment
and training costs, lost revenues and other damages, the following sums for
each employee or independent contractor hired or engaged in violation of
Subsection 5.3:
<TABLE>
<CAPTION>
Employee or Independent Contractor Amount
---------------------------------- ------
<S> <C>
Vice-President or other officer $100,000
Other Manager or Recruiter $ 50,000
Marketer or other sales personnel $ 50,000
Programmers or other billable personnel $ 12,500
Other office staff $ 5,000
</TABLE>
8.1.4 Officer and Corporation have carefully considered
the issue of liquidated damages and after negotiation agree that they are a
reasonable compromise after attempting to estimate what the actual damages
would be and assessing the risk of collection.
8.1.5 Officer authorizes Corporation to disclose the
terms of Sections 5, 6 and 8 of this Agreement to any subsequent employer or
client of Officer.
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8.2 EQUITABLE REMEDIES. The service rendered by Officer to
Corporation and the information disclosed to Officer during his employment
are of a unique and special character, and any breach of Sections 5 or 6
hereof will cause Corporation irreparable injury and damage which will be
extremely difficult to quantify. Although the parties have agreed on
liquidated damages for some of the potential breaches by Officer, they agree
that because of the risk of collection and intangibles which are impossible
to measure, Corporation will be entitled to, in addition to all other
remedies available to it, injunctive relief to prevent a breach and to secure
the enforcement of all provisions of Sections 5 and 6. Officer represents his
experience and knowledge will enable him to earn an adequate living in a
non-competitive business and that the injunctive relief will not prevent him
from providing for himself and his family. Injunctive relief may be granted
immediately upon the commencement of any such action without notice to
Officer, WHICH NOTICE OFFICER SPECIFICALLY WAIVES.
8.3 COSTS. If litigation is brought to enforce or interpret
any provision contained herein, the court shall award reasonable attorneys'
fees and disbursements to the prevailing party as determined by the court.
8.4 SEVERABILITY. THE PARTIES HAVE CAREFULLY CONSIDERED ALL
OF SECTIONS 5, 6 AND 8 AND AGREE THAT THEY REPRESENT A PROPER BALANCING OF
THEIR INTERESTS AND WILL NOT PREVENT OFFICER FROM EARNING A LIVING AFTER
TERMINATION OF HIS EMPLOYMENT. It is the express intent of the parties hereto
that the obligations of, and restrictions on, the parties as provided in
Sections 5 and 6 shall be enforced and given effect to the fullest extent
legally permissible. If, in any judicial proceeding, a court shall refuse to
enforce one or more of the covenants or agreements contained in this
Agreement because the duration thereof is too long, the scope thereof is too
broad or some other reason, for the purpose of such proceeding, the court may
reduce such duration or scope to the extent necessary to permit the
enforcement of such obligations and restrictions.
9. MISCELLANEOUS.
9.1 PAYMENT OBLIGATIONS. Corporation's obligation to pay
Officer the compensation provided herein is subject to the condition
precedent that Officer perform his obligations.
9.2 DIRECTORS' AND OFFICERS' INSURANCE. Corporation shall
use its best efforts to obtain coverage for Officer under any insurance
policy now in force or hereafter obtained during the term of this Agreement
insuring officers and directors of Corporation for liability incurred by
reason of the fact that Officer is or was a director or officer of
Corporation or, while serving as a director or officer of Corporation, he is
or was serving at the request of Corporation as a director, officer, partner
or trustee of, or in any similar managerial or fiduciary position of, or as
an employee or agent of, another corporation, partnership, joint venture,
trust, association, or other entity.
9.3 WAIVER. The waiver of the breach of any provision of
this Agreement shall not operate or be construed as a waiver of any
subsequent breach of the same or other provision hereof.
9.4 ENTIRE AGREEMENT; MODIFICATIONS. This Agreement
represents the entire understanding between the parties with respect to the
subject matter hereof, and this
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Agreement supersedes any and all prior understandings, agreements, plans and
negotiations, whether written or oral, with respect to the subject matter
hereof, including, without limitation, any understandings, agreements or
obligations respecting any past or future compensation, bonuses,
reimbursements or other payments to Officer from Corporation. All
modifications to this Agreement must be in writing and signed by the party
against whom enforcement of such modification is sought.
9.5 NOTICES. All notices and other communications under
this Agreement shall be in writing and shall be given by hand delivery, or
first-class mail, certified or registered with return receipt requested, or
by commercial overnight courier or by fax and shall be deemed to have been
duly given upon hand delivery, three (3) days after mailing, the first
business day following delivery to a commercial overnight courier or upon
receipt of a fax (as confirmed by a machine generated report), addressed as
follows:
If to Corporation:
CIBER, INC.
5251 DTC Parkway, #1400
Englewood, Colorado 80111
Attn: Mac J. Slingerlend
With a copy to:
Wanda J. Abel, Esq.
Davis, Graham & Stubbs LLP
370 Seventeenth Street, Suite 4700
P.O. Box 185
Denver, Colorado 80201-0185
If to Officer:
Paul E. Rudolph
C/O David A. Schiller
Schiller, P.L.L.C.
P.O. Box 797541
Dallas, Texas 75379
Any party may change such party's address for notices by notice given pursuant
to this Section 9.5.
9.6 HEADINGS. The Section headings herein are intended for
reference and shall not by themselves determine the construction or
interpretation of this Agreement.
9.7 GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement
shall be governed by and construed in accordance with the laws of the State
of Colorado without application of its conflict of laws rules. Officer hereby
submits to the exclusive jurisdiction and venue of the District Court of the
State of Colorado for the City and County of Denver or the United States
District Court for the District of Colorado for purposes of any legal action.
Officer agrees that
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service upon Officer in any such action may be made by first-class mail,
certified or registered, in the manner provided for delivery of notices in
Section 9.5.
9.8 SEVERABILITY. Should a court or other body of competent
jurisdiction determine that any provision of this Agreement is excessive in
scope or otherwise invalid or unenforceable, such provision shall be adjusted
rather than voided, if possible, so that it is enforceable to the maximum
extent possible, and all other provisions of the Agreement shall be deemed
valid and enforceable to the extent possible.
9.9 SURVIVAL OF CORPORATION'S OBLIGATIONS. Corporation's
obligations hereunder shall not be terminated by reason of any liquidation,
dissolution, bankruptcy, cessation of business or similar event relating to
Corporation. This Agreement shall not be terminated by any merger or
consolidation or other reorganization of Corporation. In the event any such
merger, consolidation or reorganization shall be accomplished by transfer of
stock or by transfer of assets or otherwise, the provisions of this Agreement
shall be binding upon and inure to the benefit of the surviving or resulting
corporation or person. This Agreement shall be binding upon and inure to the
benefit of the executors, administrators, heirs, successors and assigns of
the parties; provided, however, that except as provided in this Subsection in
the event of a merger consolidation or reorganization of the Corporation,
including the sale of substantially all of its assets, this Agreement shall
not be assignable either by Corporation or by Officer.
9.10 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute one and the
same Agreement.
9.11 WITHHOLDINGS. All compensation and benefits to Officer
hereunder shall be reduced by all federal, state, local and other
withholdings and similar taxes and payments required by applicable law.
Corporation may withhold amounts due it from Officer from amounts due under
this Agreement to Officer.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written.
OFFICER CIBER, INC., a Delaware corporation
/s/ Paul E. Rudolph By: /s/ Mac J. Slingerlend
- -------------------------------- -----------------------------------
Paul E. Rudolph Mac J. Slingerlend, President
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<PAGE>
EXHIBIT A
TO
EMPLOYMENT AGREEMENT OF PAUL E. RUDOLPH DATED JULY 1, 1999
EFFECTIVE DATE OF EXHIBIT A: JULY 1, 1999
I. Position: Chief Operating Officer
II. Base Salary Per Annum for Fiscal Year 2000: $450,000
2001: 450,000
2002: 450,000
2003: 450,000
2004: 450,000
III. Bonus for Fiscal Years 2000-2004: The Officer shall be eligible to earn
a bonus up to a maximum of 50% of base salary. For the fiscal year
2000, one-half of the bonus is to be based on operations and one-half
of the bonus is to be based on stock performance over the fiscal year.
The performance criteria to be satisfied for fiscal year 2000 are as
described on Attachment 1 hereto, subject to obtaining approval of the
Board of Directors. The performance criteria for future years shall be
determined in the sole discretion of the Board of Directors.
IV. Additional sums payable upon termination events as referenced in
Section 4 of the Agreement.
A. Termination for Cause: None
B. Termination Other than for Cause: 200% of Base Salary prior to
the second anniversary date of the Agreement and 100% of Base
Salary thereafter.
C. Termination by Reason of Disability: 25% of the sum of the
following: Base Salary plus an amount equal to bonus
compensation received by the Officer for the year preceding
the year in which the disability occurred. In addition, 50% of
the unvested options to purchase the Corporation's common
stock set forth in EXHIBIT B shall vest immediately on the
date of termination.
D. Death: 25% of the sum of the following: Base Salary plus an
amount equal to bonus compensation received by the Officer for
the year preceding the year in which the death occurred. In
addition, 50% of the unvested options to purchase the
Corporation's common stock set forth in EXHIBIT B shall vest
immediately on the date of death. In the event of death, the
Corporation shall pay medical insurance premiums for Officer's
family under Corporation's plans (or shall pay Officer's
family a sum in cash, not to exceed $1,000 per month, to pay
private plan premiums for coverage substantially the same as
Corporation's) for the first eighteen (18) months following
the Officer's death.
<PAGE>
E. Voluntary Termination: None
F. Termination Upon a Change in Control: Three (3) times the sum
of the following: Base Salary plus an amount equal to the
bonus compensation received by the Officer for the year
preceding the year in which termination occurs. In addition,
the unvested options to purchase the Corporation's common
stock set forth in EXHIBIT B shall continue to vest as if the
termination had not occurred.
V. Period of time for continuance of medical, life and disability premiums
under Section 4.2, 4.3 and 4.6: Eighteen (18) months
VI. Perquisites:
A. Corporation shall pay all initiation fees and dues for
membership in Glenmoor Country Club or another local country
club of Officer's choosing commensurate with his position.
Officer shall be furnished with a cell phone on the same terms
as other executive officers of the Corporation.
B. Home Loan: Officer shall be entitled to a loan of up to
$500,000.00 in order for Officer to obtain appropriate
housing. Such loan shall be secured by a mortgage on the home
purchased and shall bear interest at the minimum federal
government approved interest rate on the date of the loan.
Such mortgage shall be junior to one financial institution
providing financing for the purchase of the home. Such loan
shall be amortized (forgiven) monthly over a term of sixty
(60) months in the form of a bonus to Officer from Corporation
in the amount of ($100,000+ interest) per year. Officer shall
not be required to repay the loan as long as he remains
employed by the Corporation. In the event of a termination,
the following repayment terms shall apply:
1. Termination for Cause: Loan repayable in full on the
date the home is sold or the first anniversary of the
termination date, whichever is earlier.
2. Termination Other than for Cause: Loan repayable in
full on the date the home is sold or the second
anniversary of the termination date, whichever is
earlier.
3. Termination by Reason of Disability: Loan repayable
in full on the date the home is sold or the second
anniversary of the termination date, whichever is
earlier.
4. Death: Loan repayable in full upon settlement of life
insurance described below or, in the absence of
insurance, on the second anniversary of the
termination date, and in any event upon the date the
home is sold.
5. Voluntary Termination: Loan repayable in full on the
date the home is sold or the first anniversary of the
termination date, whichever is earlier.
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6. Termination Upon a Change in Control: Loan will be
deemed paid in full and the mortgage will be released
as of the date of termination.
Provided Officer passes any physical or other requirements
imposed by the insurance company, Corporation shall maintain a
life insurance policy on the Officer payable to the
Corporation during the life of the loan in an amount
sufficient to pay off the current balance of the loan. Such
policy shall inure directly to the benefit of the estate of
the Officer to pay off any indebtedness to the Corporation.
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ATTACHMENT 1 TO
EXHIBIT A TO PAUL RUDOLPH EMPLOYMENT AGREEMENT
MAC'S / PAUL'S BONUS FOR F2000 (SAME): $225M Total @ 100%
TENTATIVE (SUBJECT TO BOARD APPROVAL) 50% each
1. STOCK PRICE +/- 5/31/99: $22/SHARE: ($112,500 @ 100%)
Goal: $42/share
e.g. price: 6/30/00 ( if $29: 0 (
( if $30: 40% ( increase of 5%/$1.00
( if $35: 65% ( for each $1.00 > $30.00
( if $40: 90% (
( if $45: 115% (
2. REVENUE/EPS GUIDELINE: ($112,500)
F'00 F'99
---- ----
REV EPS REV EPS
--- --- --- ---
Current Estimate $900M $1.30 $750MM $1.05/.09
Revised for E-Com $900M $1.25 X X
Goal: $900M Revenue/$1.25/share EPS (split award 50/50)
A. REVENUES ($56,250 @ 100%)
e.g. if $849MM 0 ( 1% per $1MM above
if $850MM 50% ( $850MM to $900MM.
if $900MM 100% (
if $950MM 112.5% +1/4% / $1MM above $900MM.
B. EPS ($56,250 @ 100%), excluding merger costs.
e.g. if $1.19 0 ( 10%/1(cent) above $1.20 to $1.25.
if $1.20 50% (
if $1.25 100% (
if $1.30 110% +2%/1(cent) above $1.25/share
<PAGE>
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into
as of July 1, 1999, by and between CIBER, INC., a Delaware corporation
("Corporation"), and RICHARD A. MONTONI ("Officer").
RECITAL
Corporation previously entered into an Employment Agreement with
Officer on November 1, 1996. Corporation and Officer desire to amend and
supersede that agreement and continue the employment of the Officer by
Corporation, on the terms and subject to the conditions set forth in this
Agreement.
AGREEMENT
THE PARTIES AGREE AS FOLLOWS:
1. DUTIES. Officer agrees to be employed by and to serve
Corporation in the position set forth on EXHIBIT A, and Corporation agrees to
employ and retain Officer in such capacity. Officer shall devote all of his
business time, energy and skill to the affairs of Corporation. Officer shall
have powers and duties commensurate with his position set forth on EXHIBIT A.
Officer shall comply with the general management policies of Corporation as
announced from time to time. Officer's principal place of business with
respect to his services to Corporation shall be within twenty (20) miles of
the central business district of Denver, Colorado, although Officer shall be
required at various times to travel as part of his duties.
2. TERM OF EMPLOYMENT. The initial term of employment of Officer by
Corporation shall be from the date of this Agreement through June 30, 2000,
unless terminated earlier pursuant to this Agreement. This Agreement shall
renew automatically for a period of one year on July 1, 2000 and on each
subsequent anniversary date thereof, subject to the termination provisions
hereof.
3. SALARY, BENEFITS AND BONUS COMPENSATION.
3.1 BASE SALARY. Corporation agrees to pay to Officer initially
a "Base Salary" as set forth on EXHIBIT A payable in twenty-six (26) equal
biweekly installments. The Base Salary for each fiscal year (currently July 1
through June 30 of each year) or portion thereof after fiscal year 2000 shall
be determined in the sole discretion of the Board of Directors, but shall not
be less than $260,000 per annum. In the absence of and until any salary
determination by the Board, Officer's Base Salary for a particular fiscal
year shall be identical to Officer's Base Salary in effect on June 30th of
the immediately preceding fiscal year.
3.2 BONUSES. Officer shall be eligible to receive a bonus for
the fiscal year ending June 30, 2000 provided the Officer remains an employee
through such date. Such bonus will be determined in accordance with the
formula described on EXHIBIT A and paid within seventy five (75) days after
the year end to which such bonus relates. The bonus for each fiscal year or
portion thereof after fiscal year 2000 shall be determined in the sole
discretion of the Board of Directors.
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3.3 ADDITIONAL BENEFITS. During the term of his employment,
Officer shall be entitled to the following fringe benefits:
3.3.1 OFFICER BENEFITS. Officer shall be eligible to
participate in such of Corporation's benefit and compensation plans as may be
generally available to executive officers of Corporation, including, without
limitation, profit sharing, employee stock purchase plans, medical, dental,
health and annual physical examination plans, life and disability insurance
plans, financial planning and retirement programs, according to their terms.
All such benefit plans may be amended or discontinued in the sole discretion
of Corporation.
3.3.2 BUSINESS EXPENSES. Corporation shall reimburse
Officer for all reasonable and necessary expenses incurred in carrying out
his duties under this Agreement, including travel and entertainment expenses.
Officer shall present monthly to Corporation an itemized account of such
expenses in such form as may be required by Corporation.
3.3.3 CLUBS. Corporation shall pay all initiation fees and
dues charged by Glenmoor Country Club and for such additional organizations,
if any, as shall be approved by the Chief Executive Officer or the Chairman
of the Compensation Committee of Corporation.
3.3.4 VACATION. Officer shall be entitled to vacation time
generally available to executive officers of Corporation during which
vacation time his compensation shall be paid in full.
3.3.5 LIFE INSURANCE. Upon Officer passing any required
physical examination, Corporation shall at its expense procure and keep in
effect an unrated insurance policy or policies on the life of Officer in an
amount of not less than $1,000,000, payable to such beneficiaries as Officer
may from time to time designate. To the extent the Corporation maintains "key
man" life insurance on the life of Officer of at least $1,000,000, the
Corporation may utilize such insurance to discharge the obligation set forth
in the preceding sentence. Such policies shall be owned by Corporation.
Officer shall cooperate in the obtaining of all such insurance policies as
Corporation may desire to apply for and own for its own purposes. This
insurance is in addition to any group life coverage which may be provided to
Officer by Corporation.
3.3.6 DEFERRED COMPENSATION. Officer shall be entitled to
participate in a deferred compensation plan pursuant to and subject to the
terms and conditions set forth in a separate agreement between the parties.
3.4 OPTION TO ACQUIRE COMMON STOCK. Officer has been granted
options, pursuant to and subject to the terms and conditions of Corporation's
Equity Incentive Plan and the option agreements executed by and between
Officer and the Corporation, to purchase certain shares of Corporation's
Common Stock at the exercise price or prices stated in the option agreements.
Such option agreements remain in effect in accordance with their terms and
are unaffected by this Agreement. Any further options shall be granted at the
sole discretion of the Corporation's Board of Directors.
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<PAGE>
4. TERMINATION OF EMPLOYMENT.
4.1 TERMINATION FOR CAUSE. Termination for Cause (as defined
below) of Officer's employment may be effected by Corporation at any time
without liability except as specifically set forth in this Subsection. The
termination shall be effected by written notification to Officer and shall be
effective as of the time set forth in such notice. At the effective time of a
Termination for Cause, Officer immediately shall be paid all accrued Base
Salary and any reasonable and necessary business expenses incurred by Officer
in connection with his duties hereunder, all to the date of termination. In
addition, Officer shall be entitled to benefits under any benefit plans of
Corporation in which Officer is a participant to the full extent of Officer's
rights under such plans.
4.2 TERMINATION OTHER THAN FOR CAUSE. Corporation may effect a
Termination Other Than for Cause (as defined below) of Officer's employment
at any time upon giving written notice to Officer of such termination and
without liability except as specifically set forth in this Subsection. The
termination shall be effective as of the time set forth in such notice. At
the effective time of any Termination Other Than for Cause, Officer shall
immediately be paid all accrued Base Salary and any reasonable and necessary
business expenses incurred by Officer in connection with his duties
hereunder, all to the effective time of termination. Officer shall also be
entitled to any unpaid bonus compensation and such unpaid bonus compensation
shall be paid promptly once it has been determined, but no later than sixty
(60) days after the first quarter end following termination. Unpaid bonus
compensation for the purposes of this Section 4 shall be an amount equal to
the product of (i) 5% of the difference between Officer's total accrual basis
bonus compensation for the immediately preceding fiscal year (or if such
bonus compensation has not been determined, Officer's bonus compensation for
the fiscal year preceding such immediately preceding fiscal year) and any
amount pre-paid against Officer's bonus compensation for the fiscal year
during which termination occurs, and (ii) the number of full calendar months
of Officer's employment during the fiscal year in which termination occurs.
In addition, Officer shall immediately be paid the percentage of his Base
Salary set forth on EXHIBIT A. Officer shall also be entitled to benefits
under any benefit plans of Corporation in which Officer is a participant to
the full extent of Officer's rights under such plans, and Corporation shall
pay Officer's medical, life and disability insurance premiums under
Corporation's plans (or shall pay Officer a sum in cash, not to exceed
$1,000.00 per month, to pay private plan premiums for coverage substantially
the same as Corporation's) for the number of months following termination set
forth on EXHIBIT A.
4.3 TERMINATION BY REASON OF DISABILITY. If Officer, in the
reasonable judgment of the Board of Directors of Corporation, has failed to
perform his duties under this Agreement on account of illness or physical or
mental incapacity, and such illness or incapacity continues for a period of
more than six (6) months, then the question of whether Officer's illness or
incapacity is reasonably likely to continue shall be submitted to
Corporation's or, if disability insurance is maintained by Officer, Officer's
disability insurance carrier for determination. In the event such insurance
carrier determines that Officer is subject to such an illness or incapacity,
Corporation shall have the right to terminate Officer's employment
("Termination for Disability") by written notification to Officer and payment
to Officer of all accrued Base Salary, unpaid bonus compensation (prorated as
provided in Section 4.2) and any reasonable and necessary business expenses
incurred by Officer in connection with his duties hereunder, all to the date
of termination.
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<PAGE>
In addition, Officer shall immediately be paid the percentage of his Base
Salary set forth on EXHIBIT A. Officer shall also be entitled to benefits
under any benefit plans in which Officer is a participant, including
disability benefits which may be provided pursuant to Section 3.3.1, to the
full extent of Officer's rights under such plans. In addition, Corporation
shall pay Officer's medical, life and disability insurance premiums under
Corporation's plans (or shall pay Officer a sum in cash, not to exceed
$1,000.00 per month, to pay private plan premiums for coverage substantially
the same as Corporation's) for the number of months following termination set
forth on EXHIBIT A.
4.4 DEATH. In the event of Officer's death during the term of
employment, Officer's employment shall be deemed to have terminated as of the
last day of the month during which his death occurs, and Corporation shall
pay promptly to his estate (a) all accrued Base Salary, unpaid bonus
compensation (as defined in Section 4.2) and any reasonable and necessary
business expenses incurred by Officer in connection with his duties
hereunder, all to the date of termination, and proceeds from insurance
policies as provided in Section 3.3.5 and (b) the percentage of Officer's
Base Salary set forth on EXHIBIT A payable immediately on the effective day
of termination. Officer's estate shall also be entitled to benefits under any
benefit plans of Corporation in which Officer is a participant to the full
extent of Officer's rights under such plans.
4.5 VOLUNTARY TERMINATION. In the event of a Voluntary
Termination (as defined below) by Officer, Corporation shall immediately pay
all accrued Base Salary and any reasonable and necessary business expenses
incurred by Officer in connection with his duties hereunder, all to the date
of termination.
4.6 TERMINATION UPON A CHANGE IN CONTROL. In the event of a
Termination Upon a Change in Control (as defined below), Officer shall
immediately be paid all accrued Base Salary, unpaid bonus compensation (as
defined in Section 4.2) and any reasonable and necessary business expenses
incurred by Officer in connection with his duties hereunder, all to the date
of termination. In addition, Officer shall immediately be paid the amount set
forth on EXHIBIT A. Officer shall also be entitled to benefits under any
benefit plans of Corporation in which Officer is a participant to the full
extent of Officer's rights under such plans, and Corporation shall pay
Officer's medical, life and disability insurance premiums under Corporation's
plans (or shall pay Officer a sum in cash, not to exceed $1,000.00 per month,
to pay private plan premiums for coverage substantially the same as
Corporation's) for the number of months following termination set forth on
EXHIBIT A. Notwithstanding the foregoing, solely in the event of a
Termination Upon a Change in Control, the aggregate amount of severance
compensation paid to the Officer under this Agreement or otherwise shall not
include any amount that the Corporation is prohibited from deducting for
federal income tax purposes by virtue of Section 280G of the Internal Revenue
Code or any successor provision.
4.7 OTHER BENEFITS. Nothing in this Article 4 shall be deemed
to limit or restrict any right or benefit of Officer under Corporation's
Certificate of Incorporation, Bylaws or other documents or agreements of the
Corporation applicable to Officer.
5. PROTECTION OF CORPORATION'S BUSINESS.
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<PAGE>
5.1 NO COMPETITION. Officer shall not, during the term of his
employment and for eighteen (18) months following the termination of his
employment, work as an employee or independent contractor or become an
investor or lender of any business, corporation, partnership or other entity
engaged in a Competing Business. An investment by Officer of up to 2% of the
outstanding equity in a publicly-traded corporation shall not constitute a
violation of this Section 5.1. A "Competing Business" is a business which
Corporation has engaged in, or has actively investigated engaging in, at any
time during the twenty-four (24) months prior to the termination of Officer's
employment in which Officer had responsibility to manage, direct or supervise.
5.2 NO SOLICITATION OF CLIENTS. Officer shall not, during the
term of his employment and for eighteen (18) months following the termination
of his employment (unless Corporation grants him written authorization):
(a) call upon, cause to be called upon, solicit or assist in the solicitation
of, any client or potential client of Corporation for the purpose of selling,
renting or supplying any product or service competitive with the products or
services of Corporation; (b) provide any product or services to any client or
potential client of Corporation which is competitive with the products or
services of Corporation; or (c) request, recommend or advise any client or
potential client to cease or curtail doing business with the Corporation. Any
individual, governmental authority, corporation, partnership or other entity
to whom Corporation has provided services or products at any time prior to or
during Officer's employment or to whom Corporation has made one or more sales
or sales calls during the eighteen (18) month period preceding the date of
termination of Officer's employment shall be deemed a client or potential
client.
5.3 NO HIRE OF OTHER EMPLOYEES OR CONTRACTORS. Except on behalf
of the Corporation, Officer shall not, during the term of his employment and
for a period of eighteen (18) months following the termination of his
employment: (a) employ, engage or seek to employ or engage any individual or
entity, on behalf of Officer or any entity (including a client of
Corporation), who is employed or engaged by Corporation or who was employed
or engaged by the Corporation during the six (6) month period preceding
Officer's termination; (b) solicit, recommend or advise any employee of the
Corporation or independent contractor to terminate their employment or
engagement with the Corporation for any reason; or (c) solicit recruiting
prospects and/or candidates whose files are actively maintained or have been
maintained during the last six (6) months prior to Officer's termination by
the Corporation.
6. CONFIDENTIALITY.
6.1 CONFIDENTIAL INFORMATION AND MATERIALS. All of the
Confidential Information and Materials, as defined herein, are and shall
continue to be the exclusive confidential property and trade secrets of
Corporation. Confidential Information and Materials have been or will be
disclosed to Officer solely by virtue of his employment with Corporation and
solely for the purpose of assisting him in performing his duties for
Corporation. "Confidential Information and Materials" refers to all
information belonging to or used by Corporation or Corporation's clients
relating to internal operations, procedures and policies, finances, income,
profits, business strategies, pricing, billing information, compensation and
other personnel information, client contacts, sales lists, employee lists,
technology, software source codes, programs, costs, marketing plans,
developmental plans, computer programs, computer systems, inventions,
developments, personnel manuals,
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computer program manuals, programs and system designs, and trade secrets of
every kind and character, whether or not they constitute a trade secret under
applicable law and whether developed by Officer during or after business
hours. Officer acknowledges and agrees all Confidential Information and
Materials shall, to the extent possible, be considered works made for hire
for the Corporation under applicable copyright law. To the extent any
Confidential Information and Materials are not deemed to be a work made for
hire, Officer hereby assigns to the Corporation any rights he may have or may
acquire in such Confidential Information and Materials as they are created,
throughout the world, in perpetuity. Further, Officer hereby waives any and
all moral rights he may have in such Confidential Information and Materials.
Notwithstanding the foregoing, the Corporation acknowledges that it shall
have no right to inventions or other material for which no equipment,
supplies, facilities or Confidential Information and Material of the
Corporation are used and which are developed entirely on Officer's own time
and (i) do not relate directly to the business of the Corporation or (ii) do
not result from any work performed by Officer hereunder.
6.2 NON-DISCLOSURE AND NON-USE. Officer may use Confidential
Information and Material while an employee of Corporation and in the course
of that employment to the extent deemed necessary by Corporation for the
performance of Officer's responsibilities. Such permission expires upon
termination of his employment with Corporation or on notice from Corporation.
Officer shall not, either during or after his employment with Corporation,
disclose any Confidential Information or Materials to any person, firm,
corporation, association or other entity for any reason or purpose unless
expressly permitted by Corporation in writing. Officer shall not use, in any
manner other than to further Corporation's business, any Confidential
Information or Materials of Corporation. Upon termination of his employment,
Officer shall immediately return all Confidential Information or Materials or
other property of Corporation or its clients or potential clients in his
possession or control.
7. DEFINITIONS.
7.1 DEFINITIONS. For purposes of this Agreement, the following
terms shall have the following meanings:
7.1.1 "Termination for Cause" shall mean termination by
Corporation of Officer's employment by Corporation by reason of Officer's
conviction of any felony crime, Officer's willful dishonesty towards, fraud
upon or deliberate injury or attempted injury to Corporation or its clients,
Officer's material breach of this Agreement, or any material reason that
constitutes "cause" under applicable law.
7.1.2 "Termination Other Than for Cause" shall mean
termination by Corporation of Officer's employment by Corporation other than
a Termination for Cause, Termination Upon Change in Control, Termination for
Disability, or for any or no reason.
7.1.3 "Termination Upon a Change in Control" shall mean a
termination (whether voluntary or involuntary) of Officer's employment with
Corporation or any successor thereto within one hundred eighty (180) days
from the date on which any of the following occurs: (a) any "person" or
"group" (within the meaning of Sections 13(d) and 14(d)(2) of the Securities
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Exchange Act of 1934 (the "1934 Act")), other than Bobby G. Stevenson or a
trustee or other fiduciary holding securities under an employee benefit plan
of Corporation, is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the 1934 Act), directly or indirectly, of more than thirty-three
percent (33%) of the then outstanding voting stock of Corporation; or (b) at
any time during any period of three consecutive years (not including any
period prior to the Effective Date), individuals who at the beginning of such
period constitute the Board (and any new director whose election by the Board
or whose nomination for election by Corporation's stockholders was approved
by a vote of at least two-thirds of the directors then still in office who
either were directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority thereof; or (c) the stockholders of Corporation approve
a merger or consolidation of Corporation with any other corporation, other
than a merger or consolidation which would result in the voting securities of
Corporation outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities
of the surviving entity) at least 80% of the combined voting power of the
voting securities of Corporation or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders approve a
plan of complete liquidation of Corporation or an agreement for the sale or
disposition by Corporation of all or substantially all of Corporation's
assets.
7.1.4 "Voluntary Termination" shall mean termination by
Officer of Officer's employment with Corporation, but shall not include
(i) constructive termination by Corporation by reason of material breach of
this Agreement by Corporation; (ii) Termination Upon a Change in Control; and
(iii) termination by reason of Officer's death or disability as described in
Subsections 4.3 and 4.4. Voluntary Termination shall include a termination by
Corporation after its receipt of a notice of an otherwise Voluntary
Termination from Officer.
8. REMEDIES.
8.1 LIQUIDATED DAMAGES.
8.1.1 If Officer violates Subsection 5.1, Officer shall pay
to Corporation the sum of $100,000.00 as liquidated damages to compensate
Corporation for its lost investment of money for recruitment, training, cost
of replacement, lost revenues and other damages due to the likely disruption
of the operation of Corporation's business.
8.1.2 If Officer violates Subsection 5.2, Officer shall pay
to Corporation as liquidated damages the greater of Corporation's gross
billings to the client to which products or services are supplied in
violation of Subsection 5.2 during the year immediately prior to the first
improper solicitation or $12,500.00, to compensate Corporation for its lost
revenue, client development expenses and other damages.
8.1.3 If Officer violates Subsection 5.3, Officer shall pay
to Corporation as liquidated damages, in compensation for its recruitment and
training costs, lost revenues and other damages, the following sums for each
employee or independent contractor hired or engaged in violation of
Subsection 5.3:
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<TABLE>
<CAPTION>
Employee or Independent Contractor Amount
---------------------------------- ------
<S> <C>
Vice-President or other officer $100,000
Other Manager or Recruiter $ 50,000
Marketer or other sales personnel $ 50,000
Programmers or other billable personnel $ 12,500
Other office staff $ 5,000
</TABLE>
8.1.4 Officer and Corporation have carefully considered the
issue of liquidated damages and after negotiation agree that they are a
reasonable compromise after attempting to estimate what the actual damages
would be and assessing the risk of collection.
8.1.5 Officer authorizes Corporation to disclose the terms
of Sections 5, 6 and 8 of this Agreement to any subsequent employer or client
of Officer.
8.2 EQUITABLE REMEDIES. The service rendered by Officer to
Corporation and the information disclosed to Officer during his employment
are of a unique and special character, and any breach of Sections 5 or 6
hereof will cause Corporation irreparable injury and damage which will be
extremely difficult to quantify. Although the parties have agreed on
liquidated damages for some of the potential breaches by Officer, they agree
that because of the risk of collection and intangibles which are impossible
to measure, Corporation will be entitled to, in addition to all other
remedies available to it, injunctive relief to prevent a breach and to secure
the enforcement of all provisions of Sections 5 and 6. Officer represents his
experience and knowledge will enable him to earn an adequate living in a
non-competitive business and that the injunctive relief will not prevent him
from providing for himself and his family. Injunctive relief may be granted
immediately upon the commencement of any such action without notice to
Officer, WHICH NOTICE OFFICER SPECIFICALLY WAIVES.
8.3 COSTS. If litigation is brought to enforce or interpret any
provision contained herein, the court shall award reasonable attorneys' fees
and disbursements to the prevailing party as determined by the court.
8.4 SEVERABILITY. THE PARTIES HAVE CAREFULLY CONSIDERED ALL OF
SECTIONS 5, 6 AND 8 AND AGREE THAT THEY REPRESENT A PROPER BALANCING OF THEIR
INTERESTS AND WILL NOT PREVENT OFFICER FROM EARNING A LIVING AFTER
TERMINATION OF HIS EMPLOYMENT. It is the express intent of the parties hereto
that the obligations of, and restrictions on, the parties as provided in
Sections 5 and 6 shall be enforced and given effect to the fullest extent
legally permissible. If, in any judicial proceeding, a court shall refuse to
enforce one or more of the covenants or agreements contained in this
Agreement because the duration thereof is too long, the scope thereof is too
broad or some other reason, for the purpose of such proceeding, the court may
reduce such duration or scope to the extent necessary to permit the
enforcement of such obligations and restrictions.
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<PAGE>
9. MISCELLANEOUS.
9.1 PAYMENT OBLIGATIONS. Corporation's obligation to pay
Officer the compensation provided herein is subject to the condition
precedent that Officer perform his obligations; provided, however, Officer
shall have no obligation whatsoever to mitigate damages hereunder in the
event of a Termination Other Than for Cause.
9.2 DIRECTORS' AND OFFICERS' INSURANCE. Corporation shall use
its best efforts to obtain coverage for Officer under any insurance policy
now in force or hereafter obtained during the term of this Agreement insuring
officers and directors of Corporation for liability incurred by reason of the
fact that Officer is or was a director or officer of Corporation or, while
serving as a director or officer of Corporation, he is or was serving at the
request of Corporation as a director, officer, partner or trustee of, or in
any similar managerial or fiduciary position of, or as an employee or agent
of, another corporation, partnership, joint venture, trust, association, or
other entity.
9.3 WAIVER. The waiver of the breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach of the same or other provision hereof.
9.4 ENTIRE AGREEMENT; MODIFICATIONS. This Agreement represents
the entire understanding between the parties with respect to the subject
matter hereof, and this Agreement supersedes any and all prior
understandings, agreements, plans and negotiations, whether written or oral,
with respect to the subject matter hereof, including, without limitation, any
understandings, agreements or obligations respecting any past or future
compensation, bonuses, reimbursements or other payments to Officer from
Corporation. All modifications to this Agreement must be in writing and
signed by the party against whom enforcement of such modification is sought;
provided, however, that the provisions concerning Base Salary (subject to the
limitation in Section 3.1) and Bonus set forth on Exhibit A may be modified
at any time by the Board of Directors in its sole discretion.
9.5 NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be given by hand delivery, or
first-class mail, certified or registered with return receipt requested, or
by commercial overnight courier or by fax and shall be deemed to have been
duly given upon hand delivery, three (3) days after mailing, the first
business day following delivery to a commercial overnight courier or upon
receipt of a fax (as confirmed by a machine generated report), addressed as
follows:
If to Corporation:
CIBER, INC.
5251 DTC Parkway, #1400
Englewood, Colorado 80111
Attention: Mac J. Slingerlend
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<PAGE>
With a copy to:
Wanda J. Abel, Esq.
Davis, Graham & Stubbs LLP
370 Seventeenth Street
Post Office Box 185
Denver, Colorado 80201-0185
If to Officer:
Richard A. Montoni
5251 DTC Parkway, #1400
Englewood, Colorado 80111
Any party may change such party's address for notices by notice given
pursuant to this Section 9.5.
9.6 HEADINGS. The Section headings herein are intended for
reference and shall not by themselves determine the construction or
interpretation of this Agreement.
9.7 GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement
shall be governed by and construed in accordance with the laws of the State
of Colorado without application of its conflict of laws rules. Officer hereby
submits to the exclusive jurisdiction and venue of the District Court of the
State of Colorado for the City and County of Denver or the United States
District Court for the District of Colorado for purposes of any legal action.
Officer agrees that service upon Officer in any such action may be made by
first-class mail, certified or registered, in the manner provided for
delivery of notices in Section 9.5.
9.8 SEVERABILITY. Should a court or other body of competent
jurisdiction determine that any provision of this Agreement is excessive in
scope or otherwise invalid or unenforceable, such provision shall be adjusted
rather than voided, if possible, so that it is enforceable to the maximum
extent possible, and all other provisions of the Agreement shall be deemed
valid and enforceable to the extent possible.
9.9 SURVIVAL OF CORPORATION'S OBLIGATIONS. Corporation's
obligations hereunder shall not be terminated by reason of any liquidation,
dissolution, bankruptcy, cessation of business or similar event relating to
Corporation. This Agreement shall not be terminated by any merger or
consolidation or other reorganization of Corporation. In the event any such
merger, consolidation or reorganization shall be accomplished by transfer of
stock or by transfer of assets or otherwise, the provisions of this Agreement
shall be binding upon and inure to the benefit of the surviving or resulting
corporation or person. This Agreement shall be binding upon and inure to the
benefit of the executors, administrators, heirs, successors and assigns of
the parties; provided, however, that except as provided in this Subsection in
the event of a merger, consolidation or reorganization of the Corporation,
including the sale of substantially all of its assets, this Agreement shall
not be assignable either by Corporation or by Officer.
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<PAGE>
9.10 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute one and the
same Agreement.
9.11 WITHHOLDINGS. All compensation and benefits to Officer
hereunder shall be reduced by all federal, state, local and other
withholdings and similar taxes and payments required by applicable law.
Corporation may withhold amounts due it from Officer from amounts due under
this Agreement to Officer.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
OFFICER CIBER, INC., a Delaware corporation
/s/ Richard A. Montoni By: /s/ Mac J. Slingerlend
- ------------------------------ -------------------------------
Richard A. Montoni Mac J. Slingerlend, President
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<PAGE>
EXHIBIT A
TO
EMPLOYMENT AGREEMENT OF RICHARD A. MONTONI DATED JULY 1, 1999
EFFECTIVE DATE OF EXHIBIT A: JULY 1, 1999
I. Position: Executive Vice President and Chief Financial Officer
II. *Base Salary Per Annum for Fiscal Year 2000: $325,000
III. *Bonus for Fiscal Year 2000: As approved by the Board of Directors
IV. Additional sums payable upon termination events as referenced in
Section 4 of the Agreement.
A. Termination for Cause: None
B. Termination Other than for Cause: 50% of Base Salary
C. Termination by Reason of Disability: 50% of Base Salary
D. Death: 50% of Base Salary
E. Voluntary Termination: None
F. Termination Upon a Change of Control: Two times the sum of the
following: Base Salary plus an amount equal to the bonus
compensation received by the Officer for the year preceding
the year in which termination occurs.
V. Period of time for continuance of medical, life and disability
premiums under Section 4.2, 4.3 and 4.6: Twelve (12) months
* Items subject to modification by the Board of Directors
A-1
<PAGE>
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as
of July 1, 1999, by and between CIBER, INC., a Delaware corporation
("Corporation"), and JOSEPH A. MANCUSO ("Officer").
RECITAL
Corporation desires to employ Officer in the position set forth on
EXHIBIT A, and Officer is willing to accept such employment by Corporation,
on the terms and subject to the conditions set forth in this Agreement.
AGREEMENT
THE PARTIES AGREE AS FOLLOWS:
1. DUTIES. Officer agrees to be employed by and to serve
Corporation in the position set forth on EXHIBIT A, and Corporation agrees to
employ and retain Officer in such capacity. Officer shall devote all of his
business time, energy and skill to the affairs of Corporation. Officer shall
have powers and duties commensurate with his position set forth on EXHIBIT A.
Officer shall comply with the general management policies of Corporation as
announced from time to time. Officer's principal place of business with
respect to his services to Corporation shall be within twenty (20) miles of
the central business district of Denver, Colorado, although Officer shall be
required at various times to travel as part of his duties.
2. TERM OF EMPLOYMENT. The initial term of employment of Officer
by Corporation shall be from the date of this Agreement through June 30,
2000, unless terminated earlier pursuant to this Agreement. This Agreement
shall renew automatically for a period of one year on July 1, 2000 and on
each subsequent anniversary date thereof, subject to the termination
provisions hereof.
3. SALARY, BENEFITS AND BONUS COMPENSATION.
3.1 BASE SALARY. Corporation agrees to pay to Officer
initially a "Base Salary" as set forth on EXHIBIT A, payable in twenty-six
(26) equal biweekly installments. The Base Salary for each fiscal year
(currently July 1 through June 30 of each year) or portion thereof after
fiscal year 2000 shall be as determined in the sole discretion of the Board
of Directors, but shall not be less than $240,000 per annum. In the absence
of and until any salary determination by the Board, Officer's Base Salary for
a particular fiscal year shall be identical to Officer's Base Salary in
effect on June 30th of the immediately preceding fiscal year.
3.2 BONUSES. Officer shall be eligible to receive a bonus
for the fiscal year ending June 30, 2000, provided the Officer remains an
employee through such date. Such bonus will be determined in accordance with
the formula described on EXHIBIT A and paid within seventy-five days after
the year and to which such bonus relates. The bonus for each fiscal year or
<PAGE>
portion thereof after fiscal year 2000 shall be determined in the sole
discretion of the Board of Directors.
3.3 ADDITIONAL BENEFITS. During the term of his
employment, Officer shall be entitled to the following fringe benefits:
3.3.1 OFFICER BENEFITS. Officer shall be eligible to
participate in such of Corporation's benefit and compensation plans as may be
generally available to executive officers of Corporation, including, without
limitation, profit sharing, medical, dental and health plans, and life and
disability insurance plans, according to their terms. All such benefit plans
may be amended or discontinued in the sole discretion of Corporation.
3.3.2 BUSINESS EXPENSES. Corporation shall reimburse
Officer for all reasonable and necessary expenses incurred in carrying out
his duties under this Agreement, including travel and entertainment expenses.
Officer shall present monthly to Corporation an itemized account of such
expenses in such form as may be required by Corporation.
3.3.3 VACATION. Officer shall be entitled to vacation
time generally available to executive officers of Corporation during which
vacation time his compensation shall be paid in full.
3.4 OPTION TO ACQUIRE COMMON STOCK. Officer has been granted
options, pursuant to and subject to the terms and conditions of Corporation's
Equity Incentive Plan and the option agreements executed by and between
Officer and the Corporation, to purchase certain shares of Corporation's
Common Stock at the exercise price or prices stated in the option agreements.
Such option agreements remain in effect in accordance with their terms and
are unaffected by this Agreement. Any further options shall be granted at the
sole discretion of the Corporation's Board of Directors.
4. TERMINATION OF EMPLOYMENT.
4.1 TERMINATION FOR CAUSE. Termination for Cause (as
defined below) of Officer's employment may be effected by Corporation at any
time without liability except as specifically set forth in this Subsection.
The termination shall be effected by written notification to Officer and
shall be effective as of the time set forth in such notice. At the effective
time of a Termination for Cause, Officer immediately shall be paid all
accrued Base Salary and any reasonable and necessary business expenses
incurred by Officer in connection with his duties hereunder, all to the date
of termination. In addition, Officer shall be entitled to benefits under any
benefit plans of Corporation in which Officer is a participant to the full
extent of Officer's rights under such plans.
4.2 TERMINATION OTHER THAN FOR CAUSE. Corporation may
effect a Termination Other Than for Cause (as defined below) of Officer's
employment at any time upon giving written notice to Officer of such
termination and without liability except as specifically set forth in this
Subsection. The termination shall be effective as of the time set forth in
such notice. At the effective time of any Termination Other Than for Cause,
Officer shall immediately be paid all accrued Base Salary and any reasonable
and necessary business expenses incurred by Officer in connection with his
duties hereunder, all to the effective time of termination. Officer shall
also be
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<PAGE>
entitled to be paid any unpaid bonus compensation and such unpaid bonus
compensation shall be paid promptly once it has been determined, but no later
than sixty (60) days after the first quarter end following termination.
Unpaid bonus compensation for the purposes of this Section 4 shall be an
amount equal to the product of (i) 5% of the difference between Officer's
total accrual basis bonus compensation for the immediately preceding fiscal
year (or if such bonus compensation has not been determined, Officer's bonus
compensation for the fiscal year preceding such immediately preceding fiscal
year) and any amount pre-paid against Officer's bonus compensation for the
fiscal year during which termination occurs, and (ii) the number of full
calendar months of Officer's employment during the fiscal year in which
termination occurs. In addition, Officer shall immediately be paid the
percentage of his Base Salary set forth on EXHIBIT A. Officer shall also be
entitled to benefits under any benefit plans of Corporation in which Officer
is a participant to the full extent of Officer's rights under such plans, and
Corporation shall pay Officer's medical, life and disability insurance
premiums under Corporation's plans (or shall pay Officer a sum in cash, not
to exceed $1,000.00 per month, to pay private plan premiums for coverage
substantially the same as Corporation's) for the number of months following
termination set forth on EXHIBIT A.
4.3 TERMINATION BY REASON OF DISABILITY. If Officer, in the
reasonable judgment of the Board of Directors of Corporation, has failed to
perform his duties under this Agreement on account of illness or physical or
mental incapacity, and such illness or incapacity continues for a period of
more than six (6) months, then the question of whether Officer's illness or
incapacity is reasonably likely to continue shall be submitted to
Corporation's or, if disability insurance is maintained by Officer, Officer's
disability insurance carrier for determination. In the event such insurance
carrier determines that Officer is subject to such an illness or incapacity,
Corporation shall have the right to terminate Officer's employment
("Termination for Disability") by written notification to Officer and payment
to Officer of all accrued Base Salary, unpaid bonus compensation (prorated as
provided in Section 4.2) and any reasonable and necessary business expenses
incurred by Officer in connection with his duties hereunder, all to the date
of termination. In addition, Officer shall immediately be paid the percentage
of his Base Salary set forth on EXHIBIT A. Officer shall also be entitled to
benefits under any benefit plans in which Officer is a participant, including
disability benefits which may be provided pursuant to Section 3.3.1, to the
full extent of Officer's rights under such plans, and Corporation shall pay
Officer's medical, life and disability insurance premiums under Corporation's
plans (or shall pay Officer a sum in cash, not to exceed $1,000.00 per month,
to pay private plan premiums for coverage substantially the same as
Corporation's) for the number of months following termination set forth on
EXHIBIT A.
4.4 DEATH. In the event of Officer's death during the term
of employment, Officer's employment shall be deemed to have terminated as of
the last day of the month during which his death occurs, and Corporation
shall pay promptly to his estate (a) all accrued Base Salary, unpaid bonus
compensation (as defined in Section 4.2) and any reasonable and necessary
business expenses incurred by Officer in connection with his duties
hereunder, all to the date of termination, and (b) the percentage of
Officer's Base Salary set forth on EXHIBIT A payable immediately on the
effective day of termination. Officer's estate shall also be entitled to
benefits under any benefit plans of Corporation in which Officer is a
participant to the full extent of Officer's rights under such plans.
4.5 VOLUNTARY TERMINATION. In the event of a Voluntary
Termination (as defined below) by Officer, Corporation shall immediately pay
all accrued Base Salary and any
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<PAGE>
reasonable and necessary business expenses incurred by Officer in connection
with his duties hereunder, all to the date of termination.
4.6 TERMINATION UPON A CHANGE IN CONTROL. In the event of a
Termination Upon a Change in Control (as defined below), Officer shall
immediately be paid all accrued Base Salary, unpaid bonus compensation (as
defined in Section 4.2) and any reasonable and necessary business expenses
incurred by Officer in connection with his duties hereunder, all to the date
of termination. In addition, Officer shall immediately be paid the amount set
forth on EXHIBIT A. Officer shall also be entitled to benefits under any
benefit plans of Corporation in which Officer is a participant to the full
extent of Officer's rights under such plans, and Corporation shall pay
Officer's medical, life and disability insurance premiums under Corporation's
plans (or shall pay Officer a sum in cash, not to exceed $1,000.00 per month,
to pay private plan premiums for coverage substantially the same as
Corporation's) for the number of months following termination set forth on
EXHIBIT A. Notwithstanding the foregoing, solely in the event of a
Termination Upon Change in Control, the aggregate amount of severance
compensation paid to an Officer under this Agreement or otherwise shall not
include any amount that the Corporation is prohibited from deducting for
federal income tax purposes by virtue of Section 280G of the Internal Revenue
Code or any successor provision.
4.7 OTHER BENEFITS. Nothing in this Article 4 shall be
deemed to limit or restrict any right or benefit of Officer under
Corporation's Certificate of Incorporation, Bylaws or other documents or
agreements of the Corporation applicable to Officer.
5. PROTECTION OF CORPORATION'S BUSINESS.
5.1 NO COMPETITION. Officer shall not, during the term of
his employment and for eighteen (18) months following the termination of his
employment, work as an employee or independent contractor or become an
investor or lender of any business, corporation, partnership or other entity
engaged in a Competing Business. An investment by Officer of up to 2% of the
outstanding equity in a publicly-traded corporation shall not constitute a
violation of this Section 5.1. A "Competing Business" is a business which
Corporation has engaged in, or has actively investigated engaging in, at any
time during the twenty-four (24) months prior to the termination of Officer's
employment in which Officer had responsibility to manage, direct or supervise.
5.2 NO SOLICITATION OF CLIENTS. Officer shall not, during
the term of his employment and for eighteen (18) months following the
termination of his employment (unless Corporation grants him written
authorization): (a) call upon, cause to be called upon, solicit or assist in
the solicitation of, any client or potential client of Corporation for the
purpose of selling, renting or supplying any product or service competitive
with the products or services of Corporation; (b) provide any product or
services to any client or potential client of Corporation which is
competitive with the products or services of Corporation; or (c) request,
recommend or advise any client or potential client to cease or curtail doing
business with the Corporation. Any individual, governmental authority,
corporation, partnership or other entity to whom Corporation has provided
services or products at any time prior to or during Officer's employment or
to whom Corporation has made one or more sales or sales calls during the
eighteen (18) month period preceding the date of termination of Officer's
employment shall be deemed a client or potential client.
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<PAGE>
5.3 NO HIRE OF OTHER EMPLOYEES OR CONTRACTORS. Except on
behalf of the Corporation, Officer shall not, during the term of his
employment and for a period of eighteen (18) months following the termination
of his employment: (a) employ, engage or seek to employ or engage any
individual or entity, on behalf of Officer or any entity (including a client
of Corporation), who is employed or engaged by Corporation or who was
employed or engaged by the Corporation during the six (6) month period
preceding Officer's termination; (b) solicit, recommend or advise any
employee of the Corporation or independent contractor to terminate their
employment or engagement with the Corporation for any reason; or (c) solicit
recruiting prospects and/or candidates whose files are actively maintained or
have been maintained during the last six (6) months prior to Officer's
termination by the Corporation.
6. CONFIDENTIALITY.
6.1 CONFIDENTIAL INFORMATION AND MATERIALS. All of the
Confidential Information and Materials, as defined herein, are and shall
continue to be the exclusive confidential property and trade secrets of
Corporation. Confidential Information and Materials have been or will be
disclosed to Officer solely by virtue of his employment with Corporation and
solely for the purpose of assisting him in performing his duties for
Corporation. "Confidential Information and Materials" refers to all
information belonging to or used by Corporation or Corporation's clients
relating to internal operations, procedures and policies, finances, income,
profits, business strategies, pricing, billing information, compensation and
other personnel information, client contacts, sales lists, employee lists,
technology, software source codes, programs, costs, marketing plans,
developmental plans, computer programs, computer systems, inventions,
developments, personnel manuals, computer program manuals, programs and
system designs, and trade secrets of every kind and character, whether or not
they constitute a trade secret under applicable law and whether developed by
Officer during or after business hours. Officer acknowledges and agrees all
Confidential Information and Materials shall, to the extent possible, be
considered works made for hire for the Corporation under applicable copyright
law. To the extent any Confidential Information and Materials are not deemed
to be a work made for hire, Officer hereby assigns to the Corporation any
rights he may have or may acquire in such Confidential Information and
Materials as they are created, throughout the world, in perpetuity. Further,
Officer hereby waives any and all moral rights he may have in such
Confidential Information and Materials. Notwithstanding the foregoing, the
Corporation acknowledges that it shall have no right to inventions or other
material for which no equipment, supplies, facilities or Confidential
Information and Material of the Corporation are used and which are developed
entirely on Officer's own time and (i) do not relate directly to the business
of the Corporation or (ii) do not result from any work performed by Officer
hereunder.
6.2 NON-DISCLOSURE AND NON-USE. Officer may use
Confidential Information and Material while an employee of Corporation and in
the course of that employment to the extent deemed necessary by Corporation
for the performance of Officer's responsibilities. Such permission expires
upon termination of his employment with Corporation or on notice from
Corporation. Officer shall not, either during or after his employment with
Corporation, disclose any Confidential Information or Materials to any
person, firm, corporation, association or other entity for any reason or
purpose unless expressly permitted by Corporation in writing. Officer shall
not use, in any manner other than to further Corporation's business, any
Confidential Information or Materials of Corporation. Upon termination of his
employment, Officer shall immediately return all Confidential Information or
Materials or other property of Corporation or its clients or potential
clients in his possession or control.
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<PAGE>
7. DEFINITIONS.
7.1 DEFINITIONS. For purposes of this Agreement, the
following terms shall have the following meanings:
7.1.1 "Termination for Cause" shall mean termination by
Corporation of Officer's employment by Corporation by reason of Officer's
conviction of any felony crime, Officer's willful dishonesty towards, fraud
upon or deliberate injury or attempted injury to Corporation or its clients,
Officer's material breach of this Agreement, or any material reason that
constitutes cause under applicable law.
7.1.2 "Termination Other Than for Cause" shall mean
termination by Corporation of Officer's employment by Corporation other than
a Termination for Cause, Termination Upon Change in Control, Termination for
Disability, or for any or no reason.
7.1.3 "Termination Upon a Change in Control" shall mean
a termination by Corporation or any successor thereto of Officer's employment
with the Corporation or such successor for any reason or a termination by the
Officer for Good Reason (as defined below) of the Officer's employment with
the Corporation or any successor thereto within one hundred eighty (180) days
from the date on which any of the following occurs: (a) any "person" or
"group" (within the meaning of Sections 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934 (the "1934 Act")), other than Bobby G. Stevenson or a
trustee or other fiduciary holding securities under an employee benefit plan
of Corporation, is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the 1934 Act), directly or indirectly, of more than thirty three
percent (33%) of the then outstanding voting stock of Corporation; or (b) at
any time during any period of three consecutive years (not including any
period prior to the Effective Date), individuals who at the beginning of such
period constitute the Board (and any new director whose election by the Board
or whose nomination for election by Corporation's stockholders was approved
by a vote of at least two-thirds of the directors then still in office who
either were directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority thereof; or (c) the stockholders of Corporation approve
a merger or consolidation of Corporation with any other corporation, other
than a merger or consolidation which would result in the voting securities of
Corporation outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities
of the surviving entity) at least 80% of the combined voting power of the
voting securities of Corporation or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders approve a
plan of complete liquidation of Corporation or an agreement for the sale or
disposition by Corporation of all or substantially all of Corporation's
assets.
For purposes of this Agreement "Good Reason" shall include, but not
be limited to, any of the following (without the Officer's express written
consent): (a) the assignment to the Officer by the Corporation of duties
inconsistent with, or a substantial diminution in the nature or status of,
the Officer's responsibilities immediately prior to a Change in Control other
than any changes primarily attributable to the fact that the Corporation's
securities are no longer publicly traded; (b) a reduction by the Corporation
in the Officer's compensation, benefits, or perquisites as in effect on the
date of a Change in Control; (c) a relocation of the Corporation's principal
offices to a location outside Denver, Colorado, or the Officer's relocation
to any place other than the
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<PAGE>
Denver, Colorado offices of the Corporation, except for reasonably required
travel by the Officer on the Corporation's business; (d) any material breach
by the Corporation of any provision of this Agreement, if such material
breach has not been cured within thirty (30) days following written notice by
the Officer to the Corporation of such breach setting forth with specificity
the nature of the breach; or (e) any failure by the Corporation to obtain the
assumption and performance of this Agreement by any successor (by merger,
consolidation or otherwise) or assign of the Corporation.
7.1.4 "Voluntary Termination" shall mean termination by
Officer of Officer's employment with Corporation, but shall not include (i)
constructive termination by Corporation by reason of material breach of this
Agreement by Corporation; (ii) Termination Upon a Change in Control; and
(iii) termination by reason of Officer's death or disability as described in
Subsections 4.3 and 4.4. Voluntary Termination shall include a termination by
Corporation after its receipt of a notice of an otherwise Voluntary
Termination from Officer.
8. REMEDIES.
8.1 LIQUIDATED DAMAGES.
8.1.1 If Officer violates Subsection 5.1, Officer shall
pay to Corporation the sum of $100,000.00 as liquidated damages to compensate
Corporation for its lost investment of money for recruitment, training, cost
of replacement, lost revenues and other damages due to the likely disruption
of the operation of Corporation's business.
8.1.2 If Officer violates Subsection 5.2, Officer shall
pay to Corporation as liquidated damages the greater of Corporation's gross
billings to the client to which products or services are supplied in
violation of Subsection 5.2 during the year immediately prior to the first
improper solicitation or $25,000.00, to compensate Corporation for its lost
revenue, client development expenses and other damages.
8.1.3 If Officer violates Subsection 5.3, Officer shall
pay to Corporation as liquidated damages, in compensation for its recruitment
and training costs, lost revenues and other damages, the following sums for
each employee or independent contractor hired or engaged in violation of
Subsection 5.3:
<TABLE>
<CAPTION>
Employee or Independent Contractor Amount
---------------------------------- --------
<S> <C>
Vice-President or other officer $100,000
Other Manager or Recruiter $ 50,000
Marketer or other sales personnel $ 50,000
Programmers or other billable personnel $ 12,500
Other office staff $ 5,000
</TABLE>
8.1.4 Officer and Corporation have carefully considered
the issue of liquidated damages and after negotiation agree that they are a
reasonable compromise after attempting to estimate what the actual damages
would be and assessing the risk of collection.
8.1.5 Officer authorizes Corporation to disclose the
terms of Sections 5, 6 and 8 of this Agreement to any subsequent employer or
client of Officer.
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<PAGE>
8.2 EQUITABLE REMEDIES. The service rendered by Officer to
Corporation and the information disclosed to Officer during his employment
are of a unique and special character, and any breach of Sections 5 or 6
hereof will cause Corporation irreparable injury and damage which will be
extremely difficult to quantify. Although the parties have agreed on
liquidated damages for some of the potential breaches by Officer, they agree
that because of the risk of collection and intangibles which are impossible
to measure, Corporation will be entitled to, in addition to all other
remedies available to it, injunctive relief to prevent a breach and to secure
the enforcement of all provisions of Sections 5 and 6. Officer represents his
experience and knowledge will enable him to earn an adequate living in a
non-competitive business and that the injunctive relief will not prevent him
from providing for himself and his family. Injunctive relief may be granted
immediately upon the commencement of any such action without notice to
Officer, WHICH NOTICE OFFICER SPECIFICALLY WAIVES.
8.3 COSTS. If litigation is brought to enforce or interpret
any provision contained herein, the court shall award reasonable attorneys'
fees and disbursements to the prevailing party as determined by the court.
8.4 SEVERABILITY. THE PARTIES HAVE CAREFULLY CONSIDERED ALL
OF SECTIONS 5, 6 AND 8 AND AGREE THAT THEY REPRESENT A PROPER BALANCING OF
THEIR INTERESTS AND WILL NOT PREVENT OFFICER FROM EARNING A LIVING AFTER
TERMINATION OF HIS EMPLOYMENT. It is the express intent of the parties hereto
that the obligations of, and restrictions on, the parties as provided in
Sections 5 and 6 shall be enforced and given effect to the fullest extent
legally permissible. If, in any judicial proceeding, a court shall refuse to
enforce one or more of the covenants or agreements contained in this
Agreement because the duration thereof is too long, the scope thereof is too
broad or some other reason, for the purpose of such proceeding, the court may
reduce such duration or scope to the extent necessary to permit the
enforcement of such obligations and restrictions.
9. MISCELLANEOUS.
9.1 PAYMENT OBLIGATIONS. Corporation's obligation to pay
Officer the compensation provided herein is subject to the condition
precedent that Officer perform his obligations.
9.2 WAIVER. The waiver of the breach of any provision of
this Agreement shall not operate or be construed as a waiver of any
subsequent breach of the same or other provision hereof.
9.3 ENTIRE AGREEMENT; MODIFICATIONS. This Agreement
represents the entire understanding between the parties with respect to the
subject matter hereof, and this Agreement supersedes any and all prior
understandings, agreements, plans and negotiations, whether written or oral,
with respect to the subject matter hereof, including, without limitation, any
under standings, agreements or obligations respecting any past or future
compensation, bonuses, reimbursements or other payments to Officer from
Corporation. All modifications to this Agreement must be in writing and
signed by the party against whom enforcement of such modification is sought;
provided; however, that the provisions concerning Position, Base Salary
(subject to the limitation in Section 3.1) and Bonus set forth on Exhibit A
may be modified at any time by the Board of Directors in its sole discretion.
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<PAGE>
9.4 NOTICES. All notices and other communications under
this Agreement shall be in writing and shall be given by hand delivery, or
first-class mail, certified or registered with return receipt requested, or
by commercial overnight courier or by fax and shall be deemed to have been
duly given upon hand delivery, three (3) days after mailing, the first
business day following delivery to a commercial overnight courier or upon
receipt of a fax (as confirmed by a machine generated report), addressed as
follows:
If to Corporation:
CIBER, INC.
5251 DTC Parkway, #1400
Englewood, Colorado 80111
Attn: Mac J. Slingerlend
With a copy to:
Wanda J. Abel, Esq.
Davis, Graham & Stubbs LLP
370 Seventeenth Street
P.O. Box 185
Denver, Colorado 80201-0185
If to Officer:
Joseph A. Mancuso
5251 DTC Parkway, Suite 1400
Englewood, Colorado 80111
Any party may change such party's address for notices by notice given
pursuant to this Section 9.4.
9.5 HEADINGS. The Section headings herein are intended for
reference and shall not by themselves determine the construction or
interpretation of this Agreement.
9.6 GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement
shall be governed by and construed in accordance with the laws of the State
of Colorado without application of its conflict of laws rules. Officer hereby
submits to the exclusive jurisdiction and venue of the District Court of the
State of Colorado for the City and County of Denver or the United States
District Court for the District of Colorado for purposes of any legal action.
Officer agrees that service upon Officer in any such action may be made by
first-class mail, certified or registered, in the manner provided for
delivery of notices in Section 9.4.
9.7 SEVERABILITY. Should a court or other body of competent
jurisdiction determine that any provision of this Agreement is excessive in
scope or otherwise invalid or unenforceable, such provision shall be adjusted
rather than voided, if possible, so that it is enforceable to the maximum
extent possible, and all other provisions of the Agreement shall be deemed
valid and enforceable to the extent possible.
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<PAGE>
9.8 SURVIVAL OF CORPORATION'S OBLIGATIONS. Corporation's
obligations hereunder shall not be terminated by reason of any liquidation,
dissolution, bankruptcy, cessation of business or similar event relating to
Corporation. This Agreement shall not be terminated by any merger or
consolidation or other reorganization of Corporation. In the event any such
merger, consolidation or reorganization shall be accomplished by transfer of
stock or by transfer of assets or otherwise, the provisions of this Agreement
shall be binding upon and inure to the benefit of the surviving or resulting
corporation or person. This Agreement shall be binding upon and inure to the
benefit of the executors, administrators, heirs, successors and assigns of
the parties; provided, however, that except as provided in this Subsection in
the event of a merger consolidation or reorganization of the Corporation,
including the sale of substantially all of its assets, this Agreement shall
not be assignable either by Corporation or by Officer.
9.9 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute one and the
same Agreement.
9.10 WITHHOLDINGS. All compensation and benefits to Officer
hereunder shall be reduced by all federal, state, local and other
withholdings and similar taxes and payments required by applicable law.
Corporation may withhold amounts due it from Officer from amounts due under
this Agreement to Officer.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
OFFICER CIBER, INC., a Delaware
corporation
/s/ Joseph A. Mancuso By: /s/ Mac J. Slingerlend
- --------------------------------- -----------------------------------
Joseph A. Mancuso Mac J. Slingerlend, President
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<PAGE>
EXHIBIT A
TO
EMPLOYMENT AGREEMENT OF JOSEPH A. MANCUSO DATED JULY 1, 1999
EFFECTIVE DATE OF EXHIBIT A: JULY 1, 1999
I. *Position: Senior Vice President / Operations
II. *Base Salary Per Annum for Fiscal Year 2000: $300,000
III. *Bonus for Fiscal Year 2000: as approved by the Board of Directors
IV. Additional sums payable upon termination events as referenced in
Section 4 of the Agreement.
A. Termination for Cause: None
B. Termination Other than for Cause: 100 % of Base Salary
C. Termination by Reason of Disability: 50 % of Base Salary
D. Death: 50 % of Base Salary
E. Voluntary Termination: None
F. Termination Upon a Change of Control: One times the sum of
the following:
Base Salary plus an amount equal to the bonus compensation
received by the Officer for the year preceding the year in
which termination occurs.
V. Period of time for continuance of medical, life and disability
premiums under Section 4.2, 4.3 and 4.6: twelve (12) months
* Items subject to modification by the Board of Directors
<PAGE>
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered
into as of July 1, 1999, by and between CIBER, INC., a Delaware corporation
("Corporation"), and DONALD R. HAHL ("Officer").
RECITAL
Corporation desires to employ Officer in the position set
forth on EXHIBIT A, and Officer is willing to accept such employment by
Corporation, on the terms and subject to the conditions set forth in this
Agreement.
AGREEMENT
THE PARTIES AGREE AS FOLLOWS:
1. DUTIES. Officer agrees to be employed by and to serve
Corporation in the position set forth on EXHIBIT A, and Corporation agrees to
employ and retain Officer in such capacity. Officer shall devote all of his
business time, energy and skill to the affairs of Corporation. Officer shall
have powers and duties commensurate with his position set forth on EXHIBIT A.
Officer shall comply with the general management policies of Corporation as
announced from time to time. Officer's principal place of business with respect
to his services to Corporation shall be within twenty (20) miles of the central
business district of Denver, Colorado, although Officer shall be required at
various times to travel as part of his duties.
2. TERM OF EMPLOYMENT. The initial term of employment of
Officer by Corporation shall be from the date of this Agreement through June 30,
2000, unless terminated earlier pursuant to this Agreement. This Agreement shall
renew automatically for a period of one year on July 1, 2000 and on each
subsequent anniversary date thereof, subject to the termination provisions
hereof.
3. SALARY, BENEFITS AND BONUS COMPENSATION.
3.1 BASE SALARY. Corporation agrees to pay to Officer
initially a "Base Salary" as set forth on EXHIBIT A, payable in twenty-six
(26) equal biweekly installments. The Base Salary for each fiscal year
(currently July 1 through June 30 of each year) or portion thereof after
fiscal year 1999 shall be as determined in the sole discretion of the Board
of Directors, but shall not be less than $265,000 per annum. In the absence
of and until any salary determination by the Board, Officer's Base Salary for
a particular fiscal year shall be identical to Officer's Base Salary in
effect on June 30th of the immediately preceding fiscal year.
3.2 BONUSES. Officer shall be eligible to receive a
bonus for the fiscal year ending June 30, 2000, provided the Officer remains
an employee through such date. Such
<PAGE>
bonus will be determined in accordance with the formula described on EXHIBIT
A and paid within seventy-five days after the year and to which such bonus
relates. The bonus for each fiscal year or portion thereof after fiscal year
2000 shall be determined in the sole discretion of the Board of Directors.
3.3 ADDITIONAL BENEFITS. During the term of his employment, Officer
shall be entitled to the following fringe benefits:
3.3.1 OFFICER BENEFITS. Officer shall be eligible to
participate in such of Corporation's benefit and compensation plans as may be
generally available to executive officers of Corporation, including, without
limitation, profit sharing, medical, dental and health plans, and life and
disability insurance plans, according to their terms. All such benefit plans
may be amended or discontinued in the sole discretion of Corporation.
3.3.2 BUSINESS EXPENSES. Corporation shall reimburse Officer
for all reasonable and necessary expenses incurred in carrying out his duties
under this Agreement, including travel and entertainment expenses. Officer
shall present monthly to Corporation an itemized account of such expenses in
such form as may be required by Corporation.
3.3.3 VACATION. Officer shall be entitled to vacation time
generally available to executive officers of Corporation during which
vacation time his compensation shall be paid in full.
3.4 OPTION TO ACQUIRE COMMON STOCK. Officer has been granted
options, pursuant to and subject to the terms and conditions of Corporation's
Equity Incentive Plan and the option agreements executed by and between
Officer and the Corporation, to purchase certain shares of Corporation's
Common Stock at the exercise price or prices stated in the option agreements.
Such option agreements remain in effect in accordance with their terms and
are unaffected by this Agreement. Any further options shall be granted at the
sole discretion of the Corporation's Board of Directors.
4. TERMINATION OF EMPLOYMENT.
4.1 TERMINATION FOR CAUSE. Termination for Cause (as defined below)
of Officer's employment may be effected by Corporation at any time without
liability except as specifically set forth in this Subsection. The termination
shall be effected by written notification to Officer and shall be effective as
of the time set forth in such notice. At the effective time of a Termination for
Cause, Officer immediately shall be paid all accrued Base Salary and any
reasonable and necessary business expenses incurred by Officer in connection
with his duties hereunder, all to the date of termination. In addition, Officer
shall be entitled to benefits under any benefit plans of Corporation in which
Officer is a participant to the full extent of Officer's rights under such
plans.
4.2 TERMINATION OTHER THAN FOR CAUSE. Corporation may effect a
Termination Other Than for Cause (as defined below) of Officer's employment at
any time upon giving written notice to Officer of such termination and without
liability except as specifically set
<PAGE>
forth in this Subsection. The termination shall be effective as of the time
set forth in such notice. At the effective time of any Termination Other Than
for Cause, Officer shall immediately be paid all accrued Base Salary and any
reasonable and necessary business expenses incurred by Officer in connection
with his duties hereunder, all to the effective time of termination. Officer
shall also be entitled to be paid any unpaid bonus compensation and such
unpaid bonus compensation shall be paid promptly once it has been determined,
but no later than sixty (60) days after the first quarter end following
termination. Unpaid bonus compensation for the purposes of this Section 4
shall be an amount equal to the product of (i) 5% of the difference between
Officer's total accrual basis bonus compensation for the immediately
preceding fiscal year (or if such bonus compensation has not been determined,
Officer's bonus compensation for the fiscal year preceding such immediately
preceding fiscal year) and any amount pre-paid against Officer's bonus
compensation for the fiscal year during which termination occurs, and (ii)
the number of full calendar months of Officer's employment during the fiscal
year in which termination occurs. In addition, Officer shall immediately be
paid the percentage of his Base Salary set forth on EXHIBIT A. Officer shall
also be entitled to benefits under any benefit plans of Corporation in which
Officer is a participant to the full extent of Officer's rights under such
plans, and Corporation shall pay Officer's medical, life and disability
insurance premiums under Corporation's plans (or shall pay Officer a sum in
cash, not to exceed $1,000.00 per month, to pay private plan premiums for
coverage substantially the same as Corporation's) for the number of months
following termination set forth on EXHIBIT A.
4.3 TERMINATION BY REASON OF DISABILITY. If Officer, in the
reasonable judgment of the Board of Directors of Corporation, has failed to
perform his duties under this Agreement on account of illness or physical or
mental incapacity, and such illness or incapacity continues for a period of
more than six (6) months, then the question of whether Officer's illness or
incapacity is reasonably likely to continue shall be submitted to
Corporation's or, if disability insurance is maintained by Officer, Officer's
disability insurance carrier for determination. In the event such insurance
carrier determines that Officer is subject to such an illness or incapacity,
Corporation shall have the right to terminate Officer's employment
("Termination for Disability") by written notification to Officer and payment
to Officer of all accrued Base Salary, unpaid bonus compensation (prorated as
provided in Section 4.2) and any reasonable and necessary business expenses
incurred by Officer in connection with his duties hereunder, all to the date
of termination. In addition, Officer shall immediately be paid the percentage
of his Base Salary set forth on EXHIBIT A. Officer shall also be entitled to
benefits under any benefit plans in which Officer is a participant, including
disability benefits which may be provided pursuant to Section 3.3.1, to the
full extent of Officer's rights under such plans, and Corporation shall pay
Officer's medical, life and disability insurance premiums under Corporation's
plans (or shall pay Officer a sum in cash, not to exceed $1,000.00 per month,
to pay private plan premiums for coverage substantially the same as
Corporation's) for the number of months following termination set forth on
EXHIBIT A.
4.4 DEATH. In the event of Officer's death during the term of
employment, Officer's employment shall be deemed to have terminated as of the
last day of the month during which his death occurs, and Corporation shall pay
promptly to his estate (a) all accrued Base Salary, unpaid bonus compensation
(as defined in Section 4.2) and any reasonable and
-3-
<PAGE>
necessary business expenses incurred by Officer in connection with his duties
hereunder, all to the date of termination, and (b) the percentage of
Officer's Base Salary set forth on EXHIBIT A payable immediately on the
effective day of termination. Officer's estate shall also be entitled to
benefits under any benefit plans of Corporation in which Officer is a
participant to the full extent of Officer's rights under such plans.
4.5 VOLUNTARY TERMINATION. In the event of a Voluntary Termination
(as defined below) by Officer, Corporation shall immediately pay all accrued
Base Salary and any reasonable and necessary business expenses incurred by
Officer in connection with his duties hereunder, all to the date of termination.
4.6 TERMINATION UPON A CHANGE IN CONTROL. In the event of a
Termination Upon a Change in Control (as defined below), Officer shall
immediately be paid all accrued Base Salary, unpaid bonus compensation (as
defined in Section 4.2) and any reasonable and necessary business expenses
incurred by Officer in connection with his duties hereunder, all to the date
of termination. In addition, Officer shall immediately be paid the amount set
forth on EXHIBIT A. Officer shall also be entitled to benefits under any
benefit plans of Corporation in which Officer is a participant to the full
extent of Officer's rights under such plans, and Corporation shall pay
Officer's medical, life and disability insurance premiums under Corporation's
plans (or shall pay Officer a sum in cash, not to exceed $1,000.00 per month,
to pay private plan premiums for coverage substantially the same as
Corporation's) for the number of months following termination set forth on
EXHIBIT A. Notwithstanding the foregoing, solely in the event of a
Termination Upon Change in Control, the aggregate amount of severance
compensation paid to an Officer under this Agreement or otherwise shall not
include any amount that the Corporation is prohibited from deducting for
federal income tax purposes by virtue of Section 280G of the Internal Revenue
Code or any successor provision.
4.7 OTHER BENEFITS. Nothing in this Article 4 shall be deemed to
limit or restrict any right or benefit of Officer under Corporation's
Certificate of Incorporation, Bylaws or other documents or agreements of the
Corporation applicable to Officer.
5. PROTECTION OF CORPORATION'S BUSINESS.
5.1 NO COMPETITION. Officer shall not, during the term of his
employment and for eighteen (18) months following the termination of his
employment, work as an employee or independent contractor or become an investor
or lender of any business, corporation, partnership or other entity engaged in a
Competing Business. An investment by Officer of up to 2% of the outstanding
equity in a publicly-traded corporation shall not constitute a violation of this
Section 5.1. A "Competing Business" is a business which Corporation has engaged
in, or has actively investigated engaging in, at any time during the twenty-four
(24) months prior to the termination of Officer's employment in which Officer
had responsibility to manage, direct or supervise.
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<PAGE>
5.2 NO SOLICITATION OF CLIENTS. Officer shall not, during the term
of his employment and for eighteen (18) months following the termination of
his employment (unless Corporation grants him written authorization): (a)
call upon, cause to be called upon, solicit or assist in the solicitation of,
any client or potential client of Corporation for the purpose of selling,
renting or supplying any product or service competitive with the products or
services of Corporation; (b) provide any product or services to any client or
potential client of Corporation which is competitive with the products or
services of Corporation; or (c) request, recommend or advise any client or
potential client to cease or curtail doing business with the Corporation. Any
individual, governmental authority, corporation, partnership or other entity
to whom Corporation has provided services or products at any time prior to or
during Officer's employment or to whom Corporation has made one or more sales
or sales calls during the eighteen (18) month period preceding the date of
termination of Officer's employment shall be deemed a client or potential
client.
5.3 NO HIRE OF OTHER EMPLOYEES OR CONTRACTORS. Except on behalf of
the Corporation, Officer shall not, during the term of his employment and for
a period of eighteen (18) months following the termination of his employment:
(a) employ, engage or seek to employ or engage any individual or entity, on
behalf of Officer or any entity (including a client of Corporation), who is
employed or engaged by Corporation or who was employed or engaged by the
Corporation during the six (6) month period preceding Officer's termination;
(b) solicit, recommend or advise any employee of the Corporation or
independent contractor to terminate their employment or engagement with the
Corporation for any reason; or (c) solicit recruiting prospects and/or
candidates whose files are actively maintained or have been maintained during
the last six (6) months prior to Officer's termination by the Corporation.
6. CONFIDENTIALITY.
6.1 CONFIDENTIAL INFORMATION AND MATERIALS. All of the Confidential
Information and Materials, as defined herein, are and shall continue to be
the exclusive confidential property and trade secrets of Corporation.
Confidential Information and Materials have been or will be disclosed to
Officer solely by virtue of his employment with Corporation and solely for
the purpose of assisting him in performing his duties for Corporation.
"Confidential Information and Materials" refers to all information belonging
to or used by Corporation or Corporation's clients relating to internal
operations, procedures and policies, finances, income, profits, business
strategies, pricing, billing information, compensation and other personnel
information, client contacts, sales lists, employee lists, technology,
software source codes, programs, costs, marketing plans, developmental plans,
computer programs, computer systems, inventions, developments, personnel
manuals, computer program manuals, programs and system designs, and trade
secrets of every kind and character, whether or not they constitute a trade
secret under applicable law and whether developed by Officer during or after
business hours. Officer acknowledges and agrees all Confidential Information
and Materials shall, to the extent possible, be considered works made for
hire for the Corporation under applicable copyright law. To the extent any
Confidential Information and Materials are not deemed to be a work made for
hire, Officer hereby assigns to the Corporation any rights he may have or may
acquire in such Confidential Information and Materials as they are
-5-
<PAGE>
created, throughout the world, in perpetuity. Further, Officer hereby waives
any and all moral rights he may have in such Confidential Information and
Materials. Notwithstanding the foregoing, the Corporation acknowledges that
it shall have no right to inventions or other material for which no
equipment, supplies, facilities or Confidential Information and Material of
the Corporation are used and which are developed entirely on Officer's own
time and (i) do not relate directly to the business of the Corporation or
(ii) do not result from any work performed by Officer hereunder.
6.2 NON-DISCLOSURE AND NON-USE. Officer may use Confidential
Information and Material while an employee of Corporation and in the course
of that employment to the extent deemed necessary by Corporation for the
performance of Officer's responsibilities. Such permission expires upon
termination of his employment with Corporation or on notice from Corporation.
Officer shall not, either during or after his employment with Corporation,
disclose any Confidential Information or Materials to any person, firm,
corporation, association or other entity for any reason or purpose unless
expressly permitted by Corporation in writing. Officer shall not use, in any
manner other than to further Corporation's business, any Confidential
Information or Materials of Corporation. Upon termination of his employment,
Officer shall immediately return all Confidential Information or Materials or
other property of Corporation or its clients or potential clients in his
possession or control.
7. DEFINITIONS.
7.1 DEFINITIONS. For purposes of this Agreement, the following
terms shall have the following meanings:
7.1.1 "Termination for Cause" shall mean termination by
Corporation of Officer's employment by Corporation by reason of Officer's
conviction of any felony crime, Officer's willful dishonesty towards, fraud
upon or deliberate injury or attempted injury to Corporation or its clients,
Officer's material breach of this Agreement, or any material reason that
constitutes cause under applicable law.
7.1.2 "Termination Other Than for Cause" shall mean termination
by Corporation of Officer's employment by Corporation other than a
Termination for Cause, Termination Upon Change in Control, Termination for
Disability, or for any or no reason.
7.1.3 "Termination Upon a Change in Control" shall mean a
termination by Corporation or any successor thereto of Officer's employment
with the Corporation or such successor for any reason or a termination by the
Officer for Good Reason (as defined below) of the Officer's employment with
the Corporation or any successor thereto within one hundred eighty (180) days
from the date on which any of the following occurs: (a) any "person" or
"group" (within the meaning of Sections 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934 (the "1934 Act")), other than Bobby G. Stevenson or a
trustee or other fiduciary holding securities under an employee benefit plan
of Corporation, is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the 1934 Act), directly or indirectly, of more than thirty three
percent (33%) of the
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<PAGE>
then outstanding voting stock of Corporation; or (b) at any time during any
period of three consecutive years (not including any period prior to the
Effective Date), individuals who at the beginning of such period constitute
the Board (and any new director whose election by the Board or whose
nomination for election by Corporation's stockholders was approved by a vote
of at least two-thirds of the directors then still in office who either were
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority thereof; or (c) the stockholders of Corporation approve a merger or
consolidation of Corporation with any other corporation, other than a merger
or consolidation which would result in the voting securities of Corporation
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least 80% of the combined voting power of the voting
securities of Corporation or such surviving entity outstanding immediately
after such merger or consolidation, or the stockholders approve a plan of
complete liquidation of Corporation or an agreement for the sale or
disposition by Corporation of all or substantially all of Corporation's
assets.
For purposes of this Agreement "Good Reason" shall include,
but not be limited to, any of the following (without the Officer's express
written consent): (a) the assignment to the Officer by the Corporation of
duties inconsistent with, or a substantial diminution in the nature or status
of, the Officer's responsibilities immediately prior to a Change in Control
other than any changes primarily attributable to the fact that the
Corporation's securities are no longer publicly traded; (b) a reduction by
the Corporation in the Officer's compensation, benefits, or perquisites as in
effect on the date of a Change in Control; (c) a relocation of the
Corporation's principal offices to a location outside Denver, Colorado, or
the Officer's relocation to any place other than the Denver, Colorado offices
of the Corporation, except for reasonably required travel by the Officer on
the Corporation's business; (d) any material breach by the Corporation of any
provision of this Agreement, if such material breach has not been cured
within thirty (30) days following written notice by the Officer to the
Corporation of such breach setting forth with specificity the nature of the
breach; or (e) any failure by the Corporation to obtain the assumption and
performance of this Agreement by any successor (by merger, consolidation or
otherwise) or assign of the Corporation.
7.1.4 "Voluntary Termination" shall mean termination by
Officer of Officer's employment with Corporation, but shall not include (i)
constructive termination by Corporation by reason of material breach of this
Agreement by Corporation; (ii) Termination Upon a Change in Control; and
(iii) termination by reason of Officer's death or disability as described in
Subsections 4.3 and 4.4. Voluntary Termination shall include a termination by
Corporation after its receipt of a notice of an otherwise Voluntary
Termination from Officer.
8. REMEDIES.
8.1 LIQUIDATED DAMAGES.
8.1.1 If Officer violates Subsection 5.1, Officer shall
pay to Corporation the sum of $100,000.00 as liquidated damages to compensate
Corporation for its lost
-7-
<PAGE>
investment of money for recruitment, training, cost of replacement, lost
revenues and other damages due to the likely disruption of the operation of
Corporation's business.
8.1.2 If Officer violates Subsection 5.2, Officer shall
pay to Corporation as liquidated damages the greater of Corporation's gross
billings to the client to which products or services are supplied in
violation of Subsection 5.2 during the year immediately prior to the first
improper solicitation or $25,000.00, to compensate Corporation for its lost
revenue, client development expenses and other damages.
8.1.3 If Officer violates Subsection 5.3, Officer shall
pay to Corporation as liquidated damages, in compensation for its recruitment
and training costs, lost revenues and other damages, the following sums for
each employee or independent contractor hired or engaged in violation of
Subsection 5.3:
<TABLE>
<CAPTION>
Employee or Independent Contractor Amount
---------------------------------- ------
<S> <C>
Vice-President or other officer $100,000
Other Manager or Recruiter $ 50,000
Marketer or other sales personnel $ 50,000
Programmers or other billable personnel $ 12,500
Other office staff $ 5,000
</TABLE>
8.1.4 Officer and Corporation have carefully considered
the issue of liquidated damages and after negotiation agree that they are a
reasonable compromise after attempting to estimate what the actual damages
would be and assessing the risk of collection.
8.1.5 Officer authorizes Corporation to disclose the
terms of Sections 5, 6 and 8 of this Agreement to any subsequent employer or
client of Officer.
8.2 EQUITABLE REMEDIES. The service rendered by Officer to
Corporation and the information disclosed to Officer during his employment
are of a unique and special character, and any breach of Sections 5 or 6
hereof will cause Corporation irreparable injury and damage which will be
extremely difficult to quantify. Although the parties have agreed on
liquidated damages for some of the potential breaches by Officer, they agree
that because of the risk of collection and intangibles which are impossible
to measure, Corporation will be entitled to, in addition to all other
remedies available to it, injunctive relief to prevent a breach and to secure
the enforcement of all provisions of Sections 5 and 6. Officer represents his
experience and knowledge will enable him to earn an adequate living in a
non-competitive business and that the injunctive relief will not prevent him
from providing for himself and his family. Injunctive relief may be granted
immediately upon the commencement of any such action without notice to
Officer, WHICH NOTICE OFFICER SPECIFICALLY WAIVES.
-8-
<PAGE>
8.3 COSTS. If litigation is brought to enforce or interpret any
provision contained herein, the court shall award reasonable attorneys' fees
and disbursements to the prevailing party as determined by the court.
8.4 SEVERABILITY. THE PARTIES HAVE CAREFULLY CONSIDERED ALL OF
SECTIONS 5, 6 AND 8 AND AGREE THAT THEY REPRESENT A PROPER BALANCING OF THEIR
INTERESTS AND WILL NOT PREVENT OFFICER FROM EARNING A LIVING AFTER
TERMINATION OF HIS EMPLOYMENT. It is the express intent of the parties hereto
that the obligations of, and restrictions on, the parties as provided in
Sections 5 and 6 shall be enforced and given effect to the fullest extent
legally permissible. If, in any judicial proceeding, a court shall refuse to
enforce one or more of the covenants or agreements contained in this
Agreement because the duration thereof is too long, the scope thereof is too
broad or some other reason, for the purpose of such proceeding, the court may
reduce such duration or scope to the extent necessary to permit the
enforcement of such obligations and restrictions.
9. MISCELLANEOUS.
9.1 PAYMENT OBLIGATIONS. Corporation's obligation to pay Officer
the compensation provided herein is subject to the condition precedent that
Officer perform his obligations.
9.2 WAIVER. The waiver of the breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach of the same or other provision hereof.
9.3 ENTIRE AGREEMENT; MODIFICATIONS. This Agreement represents the
entire understanding between the parties with respect to the subject matter
hereof, and this Agreement supersedes any and all prior understandings,
agreements, plans and negotiations, whether written or oral, with respect to
the subject matter hereof, including, without limitation, any under
standings, agreements or obligations respecting any past or future
compensation, bonuses, reimbursements or other payments to Officer from
Corporation. All modifications to this Agreement must be in writing and
signed by the party against whom enforcement of such modification is sought;
provided; however, that the provisions concerning Position, Base Salary
(subject to the limitation in Section 3.1) and Bonus set forth on Exhibit A
may be modified at any time by the Board of Directors in its sole discretion.
9.4 NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be given by hand delivery, or
first-class mail, certified or registered with return receipt requested, or
by commercial overnight courier or by fax and shall be deemed to have been
duly given upon hand delivery, three (3) days after mailing, the first
business day following delivery to a commercial overnight courier or upon
receipt of a fax (as confirmed by a machine generated report), addressed as
follows:
-9-
<PAGE>
If to Corporation:
CIBER, INC.
5251 DTC Parkway, #1400
Englewood, Colorado 80111
Attn: Mac J. Slingerlend
With a copy to:
Wanda J. Abel, Esq.
Davis, Graham & Stubbs LLP
370 Seventeenth Street
P.O. Box 185
Denver, Colorado 80201-0185
If to Officer:
Donald R. Hahl
5251 DTC Parkway, #1400
Englewood, Colorado 80111
Any party may change such party's address for notices by notice given
pursuant to this Section 9.4.
9.5 HEADINGS. The Section headings herein are
intended for reference and shall not by themselves determine the construction
or interpretation of this Agreement.
9.6 GOVERNING LAW; CONSENT TO JURISDICTION.
This Agreement shall be governed by and construed in accordance with the laws
of the State of Colorado without application of its conflict of laws rules.
Officer hereby submits to the exclusive jurisdiction and venue of the
District Court of the State of Colorado for the City and County of Denver or
the United States District Court for the District of Colorado for purposes of
any legal action. Officer agrees that service upon Officer in any such action
may be made by first-class mail, certified or registered, in the manner
provided for delivery of notices in Section 9.4.
9.7 SEVERABILITY. Should a court or other body
of competent jurisdiction determine that any provision of this Agreement is
excessive in scope or otherwise invalid or unenforceable, such provision
shall be adjusted rather than voided, if possible, so that it is enforceable
to the maximum extent possible, and all other provisions of the Agreement
shall be deemed valid and enforceable to the extent possible.
9.8 SURVIVAL OF CORPORATION'S OBLIGATIONS.
Corporation's obligations hereunder shall not be terminated by reason of any
liquidation, dissolution, bankruptcy, cessation
-10-
<PAGE>
of business or similar event relating to Corporation. This Agreement shall
not be terminated by any merger or consolidation or other reorganization of
Corporation. In the event any such merger, consolidation or reorganization
shall be accomplished by transfer of stock or by transfer of assets or
otherwise, the provisions of this Agreement shall be binding upon and inure
to the benefit of the surviving or resulting corporation or person. This
Agreement shall be binding upon and inure to the benefit of the executors,
administrators, heirs, successors and assigns of the parties; provided,
however, that except as provided in this Subsection in the event of a merger
consolidation or reorganization of the Corporation, including the sale of
substantially all of its assets, this Agreement shall not be assignable
either by Corporation or by Officer.
9.9 COUNTERPARTS. This Agreement may be
executed in one or more counterparts, all of which taken together shall
constitute one and the same Agreement.
9.10 WITHHOLDINGS. All compensation and benefits
to Officer hereunder shall be reduced by all federal, state, local and other
withholdings and similar taxes and payments required by applicable law.
Corporation may withhold amounts due it from Officer from amounts due under
this Agreement to Officer.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
OFFICER CIBER, INC., a Delaware
corporation
/s/ Donald R. Hahl By: /s/ Mac J. Slingerland
- ------------------------- ---------------------------------
Donald R. Hahl Mac J. Slingerlend, President
-11-
<PAGE>
EXHIBIT A
TO
EMPLOYMENT AGREEMENT OF DONALD R. HAHL DATED JULY 1, 1999
EFFECTIVE DATE OF EXHIBIT A: JULY 1, 1999
1. *Position: Senior Vice President / Operations
2. *Base Salary Per Annum for Fiscal Year 2000: $265,000
3. *Bonus for Fiscal Year 2000: As approved by the Board of Directors
4. Additional sums payable upon termination events as referenced in
Section 4 of the Agreement.
A. Termination for Cause: None
B. Termination Other than for Cause: 100% of Base
Salary. In addition, in the event of a Termination
Other than for Cause, the noncompetition period
set forth in Section 5.1 of the Agreement shall be
reduced from eighteen (18) months to twelve (12)
months.
C. Termination by Reason of Disability: 50% of Base Salary
D. Death: 50% of Base Salary
E. Voluntary Termination: None. In addition, in the
event of a Voluntary Termination, the
noncompetition period set forth in Section 5.1 of
the Agreement shall be reduced from eighteen (18)
months to twelve (12) months.
F. Termination Upon a Change of Control: One times
the sum of the following: Base Salary plus an
amount equal to the bonus compensation received by
the Officer for the year preceding the year in
which termination occurs.
G. A termination by the officer for a reason that
would have constituted "Good Reason" as that term
is defined in Section 7.1.3 of the Agreement but
for the fact that no Change of Control has
occurred shall be considered a Termination Other
than for Cause for purposes of this Agreement.
VI. Period of time for continuance of medical, life and disability
premiums under Section 4.2, 4.3 and 4.6: Twelve (12) months
* Items subject to modification by the Board of Directors.
A-1
<PAGE>
Exhibit 21.1
CIBER, INC.
LIST OF SUBSIDIARIES
AS OF AUGUST 31, 1999
CIBER Information Services, Inc., a Delaware corporation
CIBER Associates, Inc., a Delaware corporation
CIBER of Canada, Inc., an Ontario corporation
CIBER Enterprise Outsourcing, Inc., a Delaware corporation
Integration Software Consultants, Inc., a Pennsylvania corporation
CIBER Technology Services, Inc., a Delaware corporation
CIBER Technologies, Inc., a Delaware corporation
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
CIBER, Inc.:
We consent to incorporation by reference in the registration statements on Form
S-8 (Nos. 33-81320-3, 33-87978, 33-88046, 33-88048, 33-88050, 333-15091,
333-25543, 333-25545, 333-59015 and 333-61287) and Form S-4 (Nos. 333-31905 and
333-69031) of CIBER, Inc. of our report dated August 12, 1999, relating to the
consolidated balance sheets of CIBER, Inc. and subsidiaries as of June 30, 1998
and 1999, and the related consolidated statements of operations, shareholders'
equity and cash flows for each of the years in the three-year period ended June
30, 1999, and the related financial statement schedule, which report appears in
the June 30, 1999 Annual Report on Form 10-K of CIBER, Inc.
KPMG LLP
Denver, Colorado
September 22, 1999
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> JUN-30-1999
<PERIOD-START> JUL-01-1998
<PERIOD-END> JUN-30-1999
<CASH> 64,215
<SECURITIES> 0
<RECEIVABLES> 150,976
<ALLOWANCES> 0
<INVENTORY> 395
<CURRENT-ASSETS> 221,444
<PP&E> 47,997
<DEPRECIATION> 22,866
<TOTAL-ASSETS> 408,632
<CURRENT-LIABILITIES> 71,496
<BONDS> 0
0
0
<COMMON> 589
<OTHER-SE> 336,547
<TOTAL-LIABILITY-AND-EQUITY> 408,632
<SALES> 0
<TOTAL-REVENUES> 719,661
<CGS> 0
<TOTAL-COSTS> 463,307
<OTHER-EXPENSES> 167,014
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 91,980
<INCOME-TAX> 37,485
<INCOME-CONTINUING> 54,495
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 54,495
<EPS-BASIC> 0.98
<EPS-DILUTED> 0.95
</TABLE>
