This Confidentiality Agreement involves
Title: EMPLOYMENT AND CONFIDENTIALITY AGREEMENT (Senior Vice Presidents)
Industry: Software and Programming Sector: Technology
EMPLOYMENT AND CONFIDENTIALITY AGREEMENT
(Senior Vice Presidents)
This Agreement is entered into between CIBER, Inc., (“Company”) and Eric Stine (“Executive”) as of this 4th day of May, 2015.
In consideration of the mutual covenants and conditions contained in this Agreement, the parties agree as follows:
1. Obligations of Executive. Company employs the Executive to serve and perform such duties as assigned by Company, in any manner, time and place Company directs. In the performance of Executive’s duties, Executive will exercise sound discretion and independent judgment. Executive agrees (1) to adhere to applicable Company policies, procedures and requirements in performing the assigned work and (2) to exert Executive’s best efforts and to perform in a professional manner at all times while performing Executive’s duties and in working with Company Clients. Executive will not perform services for others during the hours that Executive is performing services for the Company. Executive will not perform services for any other Company without obtaining the advance written consent of the Company, which consent may be withheld by the Company as determined is its discretion where such services would create a conflict of interest with the services performed under this Agreement, interfere with Executive’s responsibilities to the Company, and/or would be likely to cause Executive to breach his/her obligations under this Agreement.
2. Employment at Will. Executive is and will remain an employee at will, meaning that either Executive or Company may terminate this Agreement and the employment relationship at any time with or without cause or reason, with or without prior notice or warning, and without any obligation of severance or other payments. The terms and conditions of this Agreement do not create an employment contract for a definite or an implied term. Any cause for discharge mentioned in this Agreement or in any document maintained by Company (including, but not limited to, employment manuals or recruiting materials) shall not in any way limit Company’s right to discharge Executive or alter Executive’s at will status.
3. Compensation and Benefits. During employment with the Company, Executive shall be entitled to the following compensation and benefits:
3.1 Company agrees to pay to the Executive a base salary of $350,000 per annum. The Company may review and adjust Executive’s salary upwards or downwards, from time to time, in its discretion. Any change in compensation shall not effect a change in this Agreement in any other respect unless set forth in an amendment hereto.
3.2 Executive is eligible to participate in the Company’s benefit and compensation plans available to employees of Company in the employment category Executive is classified in. All such benefit plans may be amended, replaced, or discontinued from time to time in the sole discretion of Company.
3.3 Company will reimburse Executive, in accordance with Company policy as may be applicable and revised by the Company from time to time, for all reasonable and necessary business expenses incurred in carrying out Executive’s duties under this Agreement, including approved travel and entertainment expenses. Executive must present to Company, not less frequently than monthly, an itemized account of expenses in a method designated by Company.
3.4 All compensation and benefits to Executive shall be reduced by all federal, state, local and other withholdings and similar taxes and payments required by applicable law. Company may withhold amounts due it from amounts due under this Agreement to Executive.
4. Trade Secrets and Confidential Information.
4.1 Executive acknowledges that confidential, proprietary and trade secret information and materials regarding Company and its Clients may be disclosed to Executive solely for the purpose of assisting Executive in performing Executive’s duties under this Agreement. Such information and materials are and remain the property of Company and its Clients respectively. As used in this Agreement, “Confidential Information” including without limitation all information belonging to Company or its Clients relating to their respective services and products, customers, identities of prospective customer and information such customers that is not generally known to the public, business plans, methods, strategies and practices, internal operations, pricing and billing, financial data, cost, personnel information (including without limitation names, educational background, prior experience and availability), customer and supplier contacts and needs, sales lists, technology, software, computer programs, other documentation, computer systems, inventions, developments, and all other information that might reasonably be deemed confidential. Confidential Information does not include information that is in the public domain through no wrongful act on the part of Executive. “Trade Secrets” means the whole or any portion of any scientific or technical information, design, process, procedure, formula, improvement, confidential business or financial information, listing or names, addresses, or telephone numbers, other information relating to any business or profession that is secret and of value, or any other information that qualifies as a trade secret under applicable law. Executive acknowledges that Executive may use such confidential information and materials only during Executive’s employment with the Company and solely on behalf of and in the best interests of Company. Executive’s right to use such information expires on Executive’s discharge or resignation. Except as specifically authorized in writing in advance by all owners of information and materials, Executive agrees not to use Trade Secrets and Confidential Information for Executive’s own benefit or for the benefit of any other person, or divulge to any person for any reason, any such information and materials related to the business of Company, any of its Clients, or their customers, clients and affiliates, both at any time during the term of this Agreement and at any time after its termination. Executive agrees to take all reasonable actions, including those requested by Company or Client, to prevent disclosure and preserve the security of confidential information and materials. Executive further agrees not to directly or indirectly disclose Executive’s wage rate and terms to any person outside of the Company, including to the client or any competitor of Company, either during or after Executive’s employment with the Company.
4.2 This Agreement shall not prohibit Executive from complying with any subpoena or court order, provided that Executive shall at the earliest practicable date provide a copy of the subpoena or court order to Company's General Counsel, it being the parties' intention to give Company a fair opportunity to take appropriate steps to prevent the unnecessary and/or improper use or disclosure of Trade Secrets and/or Confidential Information, as determined by Company in its sole discretion.
4.3 Executive warrants and represents that Executive is not a party to any agreement that limits Executive's right or ability to perform services for Company, and that Executive otherwise is free to assume the duties with Company contemplated by this Agreement. Executive shall not, during Executive's employment with Company, improperly use or disclose to Company or any Company employee, agent or contractor any proprietary information or trade secret belonging to any former employer of Executive or any other person or entity to which Executive owes a duty of nondisclosure.
5. Works for Hire. Executive agrees that during or after employment Executive will promptly inform and in writing disclose to Company all copyrighted materials or programs, programs or materials subject to being copyrighted, inventions, designs, improvements and discoveries (the “Works”), if any, which Executive has or may have made during Executive’s employment that pertain or relate to the business of Company or Client or to any research or experimental or developmental work carried on by Company or Client or which result from or are suggested by any work performed by Executive on behalf of Company or any of its Clients. All of such Works shall be works made for hire. Disclosure shall be made whether or not the Works are conceived by the Executive alone or with others and whether or not conceived during regular working hours. All such Works are the exclusive property of the Company or the Client unless otherwise directed by Company in writing. At the Company’s or Client’s sole expense, the Executive shall assist in obtaining patents or copyrights on all such Works deemed patentable or subject to copyright by Company or Client and shall assign all of Executive’s right, title and interest, if any, in and to such Works and execute all documents and do all things necessary to obtain letters, patent or vest Company or Client with full and exclusive title thereto, and protect the same against infringement by others. Executive will not be entitled to additional compensation for any Works made during the course of Executive’s employment.
Notwithstanding the above , Executive is not required to assign to Company any invention for which no equipment, supplies, facility, or trade secret information of Company or its Clients was used and that was developed entirely on Executive’s own time, and (a) does not relate to the business of Company or its Clients, (b) does not relate to any actual or demonstrably anticipated research or development Company or its Clients, or (c) does not result from any work performed by you for Company or its Clients.
6. Protection of Company’s Business.
6.1 No Solicitation of Employees. During employment with the Company and for one year thereafter, whether the termination of employment was voluntary or involuntary, Executive will not: (a) induce, entice, hire or attempt to hire or employ any employee of the Company or
employee of a Company subcontractor on behalf of any individual or entity who provides the same or similar services, processes or products as the Company, (b) induce or attempt to induce any employee employed with the Company to leave the employ or cease doing business with the Company, or (c) knowingly assist or encourage any other individual or entity in doing any of the above-proscribed acts, within one (1) year of the termination of the employment or engagement of such individual or entity with Company.
6.2 No Solicitation of Clients. Executive acknowledges and agrees that as a part of performing Executive’s duties, Executive will have access to Confidential Information and Company Trade Secrets as defined in Section 4. Consequently, during employment with Company and for a period of one (1) year after termination of such employment, whether such termination was with or without cause, voluntary or involuntary, Executive will not, directly or indirectly, as a principal, company, partner, agent, consultant, independent contractor or employee, (1) call upon, cause to be called upon, solicit or assist in the solicitation of, any current client, former client or potential client of Company for the purpose of selling, renting or supplying any product or service competitive with the products or services of Company; (2) provide any product or services to any current client, former client or potential client of Company which is competitive with the products or services of Company; or (3) enter into any business arrangement with any other person or firm who is or has been an executive, employee or subcontractor of Company within the one (1) year period immediately preceding Executive's termination. For purposes of this paragraph, “potential client” means any client to whom CIBER has made one or more documented sales or documented sales calls during the six (6) month period prior to the date of termination of Executive’s employment or any client about whom Executive received Confidential Information during the twelve (12) month period to the date of termination of the Executive’s employment.
Executive specifically acknowledges and agrees that Executive will not become employed by any current or prospective Client of Company for which Executive has or had responsibility while employed by Company for a period of one (1) year after the date that Executive ceases employment with Company.
7. Executive Representations. Executive warrants that all information provided by Executive (including without limitation resume, education, interview and references) in consideration for employment by Company is true and accurate. Executive further warrants that Executive is not restricted by and has no conflict of interest derived from any employment or other agreement and has no other interest or obligation that would interfere with Executive performing work as directed under this Agreement. Executive shall inform Company immediately should such a restriction or conflict arise. Executive understands that any misstatement or lack of candor by Executive concerning Executive’s qualifications or availability may result in immediate discharge of Executive and may subject Executive to damages for any harm caused to Company. Executive authorizes Company to verify all information provided to Company by Executive and agrees to sign a release authorizing former employers, educational institutions and other references to provide information to Company if requested.
8. Termination of Employment.
8.1 Payment of Compensation. Upon the termination of Executive’s employment with the Company, whether voluntary or involuntary, Executive shall be paid all earned, unpaid salary through the date of termination, and any reasonable and necessary business expenses incurred by Executive in connection with Executive's duties to the date of termination, so long as such business expenses are timely submitted and approved consistent with Company policy.
8.2 Severance. If after one (1) year of employment with the Company, the Company terminates Executive’s employment without cause at any time, Executive shall receive (i) the Accrued Benefits described in Section 8.1 above, (ii) a cash payment equal to nine (9) months of the Executive’s Annual Base Salary and annual bonus at target level in effect on the day of termination (the Severance Payment) payable after the Release Effective Date, (iii) Company paid health insurance benefit premiums for medical, dental and vision coverage in effect at the time of employment termination, for twelve (12) months following employment termination, to the extent that payment of such benefits does not cause Company’s health care benefit plans to fail any discrimination testing that may become applicable, (iv) all unvested equity awards that are scheduled to vest within the six (6) months following Executive’s Effective Date of Termination held by the Executive shall fully vest, (v) all vested equity awards must be exercised by the Executive by the earlier of (A) the date such cease to be exercisable after a termination of service in accordance with the terms of the CIBER 2004 Incentive Plan as amended and (B) the Option Expiration Date, and (vi) this Agreement shall otherwise terminate upon the Effective Date of the Termination and the Executive shall have no further rights hereunder but shall remain bound by Executive’s obligations in Sections 4, 5 and 6 of this Agreement) provided that in order for the Executive to receive any amounts or items in the foregoing clauses (ii) through (vi), the Executive shall first execute a separation agreement and legal release in accordance with Section 8.8.
8.3 Return of Materials. Upon the termination of Executive’s employment with Company, whether voluntary or involuntary, Executive will personally and promptly return to a Company representative all equipment, documents, records, notebooks, disks, or other materials, including all copies, in Executive’s possession or control which contain Confidential Information of Company or Company’s clients or any other information concerning Company, its products, services, or customers, whether prepared by the Executive or others. Executive understands and agrees that compliance with this paragraph may require that data be removed from Executive's personal computer equipment. Consequently, upon reasonable prior notice, Executive agrees to permit the qualified personnel of Company and/or its contractors access to such computer equipment for that purpose.
8.4 Right of Offset. Executive agrees that Company will have the right to set off against Executive’s final wages and other compensation due to Executive any amounts paid or advanced by Company including without limitation training expenses, business expenses, advances, loans and draws.