UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the fiscal year ended September 30, 1997
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
Commission file Number 000-17288
TIDEL TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 75-2193593
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5847 San Felipe, Suite 900
Houston, Texas 77057
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (713) 783-8200
----------------------
Securities Registered Pursuant to Section 12(b) of the Act: None
Securities Registered Pursuant to Section 12(g) of the Act:
COMMON STOCK, PAR VALUE $.01 PER SHARE
(Title of Class)
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 (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirement for the past 90 days. YES [X] 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 or any amendment to this
Form 10-K. [ ]
The aggregate market value of the 12,630,501 shares of Common Stock held by
non-affiliates of the Registrant based on the closing sale price on December 31,
1997 of $3.94 was $49,764,174.
The number of shares of Common Stock outstanding as of the close of business on
December 31, 1997 was 15,535,968.
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INDEX TO EXHIBITS
EXHIBITS
Except as otherwise indicated, the following documents are incorporated by
reference as Exhibits to this Report [the inclusion of certain Exhibits herein
through incorporation by reference to "Form 10 of the Company" refer in each
case to the indicated Exhibits as listed in Item 15.2 of the Company's Form 10
dated November 7, 1988 as amended by Form 8 dated February 2, 1989]:
EXHIBIT
NUMBER DESCRIPTION
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2.01. Copy of Stock Purchase Agreement dated February 4, 1994
between Waste Systems, Inc. and the Company (incorporated by
reference to Exhibit 1.2. of the Company's Report on Form 8-K
filed under date of February 18, 1994).
2.02. Copy of Option to Purchase 3CI Complete Compliance Corporation
shares dated February 4, 1994 issued by the Company to Waste
Systems, Inc. (incorporated by reference to Exhibit 1.3. of
the Company's Report on Form 8-K filed under date of February
18, 1994).
2.03. Copy of Registration Rights Agreement dated February 4, 1994
between 3CI Complete Compliance Corporation and the Company
(incorporated by reference to Exhibit 1.4. of the Company's
Report on Form 8-K filed under date of February 18, 1994).
3.01. Copy of Certificate of Incorporation of American Medical
Technologies, Inc. (filed as Articles of Domestication with
the Secretary of State, State of Delaware on November 6, 1987
and incorporated by reference to Exhibit 2 to Form 10 of the
Company).
3.02. Copy of By-Laws of the Company (incorporated by reference to
Exhibit 3 to Form 10 of the Company).
3.03. Amendment to Certificate of Incorporation dated July 16, 1997
(incorporated by reference to Exhibit 3 of the Company's
Report on Form 10-Q for the quarterly period ended June 30,
1997).
4.01. Form of Series C Warrant of the Company issued to the
investors referred to in Exhibit 4.1. above and providing for
the purchase on or before the expiration of 60 days following
the effective date of a registration statement of the Company
covering the offering to the public of the shares underlying
the warrants of an aggregate of 1,081,250 shares of the common
stock of the Company at an exercise price of $1.25 per share
(incorporated by reference to Exhibit 4.17. to the Company
Annual Report on Form 10-K for the year ended December 31,
1991).
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4.02. Form of Registration Agreement between the Company and each of
the two purchasers of its common stock in a 1991 private
placement (incorporated by reference to Exhibit 4.22. to the
Company Annual Report on Form 10-K for the year ended December
31, 1991).
4.03. Form of Warrant (Series 01) of the Company issued to the
purchasers referred to in Exhibit 4.3 above (the 14 Warrants
01 issued by the Company to such investors are identical but
for the name of the holder, the date of issue and the number
of shares of the Company's common stock which may be purchased
upon exercise) (incorporated by reference to Exhibit 4.23. to
the Company Annual Report on Form 10-K for the year ended
December 31, 1991).
4.04. Form of Warrant (Series 03) of the Company issued to the
purchasers of its common stock as referred to in Exhibits 4.3.
above (the 14 Warrants 03 issued by the Company to such
investors are identical but for the name of the holder, the
date of issue and the number of shares of the Company's common
stock which may be purchased upon exercise) (incorporated by
reference to Exhibit 4.25. to the Company Annual Report on
Form 10-K for the year ended December 31, 1991).
4.05. Form of Warrant (Series 04) of the Company issued to the
purchasers of its common stock as referred to in Exhibits 4.3.
above (the 14 Warrants 04 issued by the Company to such
investors are identical but for the name of the holder, the
date of issue and the number of shares of the Company's common
stock which may be purchased upon exercise) (incorporated by
reference to Exhibit 4.26. to the Company Annual Report on
Form 10-K for the year ended December 31, 1991).
4.06. Copy of form of series TEC common stock purchase warrant
(Warrant No. TEC--01) of the Company issued to Harry Argovitz
and Rose Argovitz as joint tenants with right of survivorship
covering 200,000 shares of the Company's common stock and
providing for an exercise price of $2.00 per share during an
exercise period expiring March 31, 1996 (identical warrants
but for (i) the name of the holder (ii) the number of shares
covered and (iii) the exercise price of $2.50 per share rather
than $2.00 were issued to the two individuals referred to in
Exhibit 4.3. above) (incorporated by reference to Exhibit 4.1.
of the Company's Report on Form 8-K filed under date of
October 14, 1992).
4.07. Copy of form of series BOD common stock purchase warrants of
the Company issued to each of the five directors of the
Company as of May 31, 1991, each such warrant providing for
the purchase on or before the expiration date referred to in
Exhibit 4.2. above of 50,000 shares at an exercise price of
$0.625 per share (incorporated by reference to Exhibit 4.21.
of the Company's Report on Form 10-K for the year ended
September 30, 1992).
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4.08. Copy of form of series BOD common stock purchase warrants of
the Company issued to each of the six directors of the Company
as of February 1, 1992, each such warrant providing for the
purchase on or before the expiration date referred to in
Exhibit 4.2. above of 50,000 shares of common stock at an
exercise price of $1.25 per share (incorporated by reference
to Exhibit 4.22. of the Company's Report on Form 10-K for the
year ended September 30, 1992).
4.09. Copy of form of series BOD common stock purchase warrants of
the Company issued to each of the seven directors of the
Company as of January 5, 1995, each such warrant providing for
the purchase on or before January 19, 1997 of 75,000 shares of
common stock at an exercise price of $1.25 per share
(incorporated by reference to Exhibit 4.16. of the Company's
Report on Form 10-K for the year ended September 30, 1994).
4.10. Copy of form of series BOD common stock purchase warrants of
the Company issued to each of the seven directors of the
Company as of October 23, 1995, each such warrant providing
for the purchase on or before October 23, 1998 of 50,000
shares of common stock at an exercise price of $0.625 per
share (incorporated by reference to Exhibit 4.15. of the
Company's Report on Form 10-K for the year ended September 30,
1995).
4.11. Copy of Warrant No. JOW-02 of the Company issued to J. Otis
Winters under date of October 23, 1995 covering 150,000 shares
of the Company's common stock and providing for an exercise
price of $0.625 per share during an exercise period expiring
October 23, 1998 (incorporated by reference to Exhibit 4.16.
of the Company's Report on Form 10-K for the year ended
September 30, 1995).
4.12. Copy of Warrant No. JCF-02 of the Company issued to James C.
Ford under date of November 15, 1994, covering 120,000 shares
of the Company's common stock and providing for an exercise
price of $0.75 per share during an exercise period expiring
November 15, 1997 (incorporated by reference to Exhibit 4.20.
of the Company's Report on Form 10-K for the year ended
September 30, 1994).
4.13. First Amended and Restated Loan Agreement executed by and
between Tidel and the The Frost National Bank d/b/a Creekwood
Capital Group (incorporated by reference to Exhibit 4.01. of
the Company's Report on Form 10-Q for the quarterly period
ended December 31, 1994).
4.14. Revolving Credit Note executed by the Tidel, jointly and
severally, payable to the order of the The Frost National Bank
d/b/a Creekwood Capital Group (incorporated by reference to
Exhibit 4.02. of the Company's Report on Form 10-Q for the
quarterly period ended December 31, 1994).
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4.15. Guaranty Agreement executed by the Company (incorporated by
reference to Exhibit 4.03. of the Company's Report on Form
10-Q for the quarterly period ended December 31, 1994).
4.16. Security Agreement (Accounts, General Intangibles, Instruments
and/or Inventory) executed by AnyCard International, Inc.
(incorporated by reference to Exhibit 4.04. of the Company's
Report on Form 10-Q for the quarterly period ended December
31, 1994).
4.17. Security Agreement (Goods) executed by AnyCard International,
Inc. (incorporated by reference to Exhibit 4.05. of the
Company's Report on Form 10-Q for the quarterly period ended
December 31, 1994).
4.18. Security Agreement (Accounts, General Intangibles, Instruments
and/or Inventory) executed by Tidel Cash Systems, Inc.
(incorporated by reference to Exhibit 4.06. of the Company's
Report on Form 10-Q for the quarterly period ended December
31, 1994).
4.19. Security Agreement (Goods) executed by Tidel Cash Systems,
Inc. (incorporated by reference to Exhibit 4.07. of the
Company's Report on Form 10-Q for the quarterly period ended
December 31, 1994).
4.20. Security Agreement-Pledge executed by the Company covering all
shares of AnyCard International, Inc. (incorporated by
reference to Exhibit 4.08. of the Company's Report on Form
10-Q for the quarterly period ended December 31, 1994).
4.21. Modification of Security Agreement-Pledge (modifying Security
Agreement-Pledge previously executed by the Company in favor
of Creekwood Capital Corporation covering all shares of Tidel
Cash Systems, Inc.) (incorporated by reference to Exhibit
4.09. of the Company's Report on Form 10-Q for the quarterly
period ended December 31, 1994).
4.22. Modification of Security Agreement-Pledge by Tidel Cash
Systems, Inc. (modifying Security Agreement-Pledge previously
executed by Tidel Cash Systems, Inc. in favor of Creekwood
Capital Corporation covering all shares of Tidel Cash Systems,
Inc.) (incorporated by reference to Exhibit 4.10. of the
Company's Report on Form 10-Q for the quarterly period ended
December 31, 1994).
4.23. Modification of Security Agreements by Tidel Engineering, Inc.
((Accounts, General Intangibles, Instruments and/or Inventory)
and (Goods) modifying the respective Security Agreements
previously executed by Tidel Engineering, Inc. in favor of
Creekwood Capital Corporation)) (incorporated by reference to
Exhibit 4.11. of the Company's Report on Form 10-Q for the
quarterly period ended December 31, 1994).
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4.24. Intellectual Property Collateral Assignment executed by Tidel
Engineering, Inc. in favor of The Frost National Bank d/b/a
Creekwood Capital Group (incorporated by reference to Exhibit
4.12. of the Company's Report on Form 10-Q for the quarterly
period ended December 31, 1994).
4.25. Intellectual Property Collateral Assignment executed by
AnyCard International, Inc. in favor of The Frost National
Bank d/b/a Creekwood Capital Group (incorporated by reference
to Exhibit 4.13. of the Company's Report on Form 10-Q for the
quarterly period ended December 31, 1994).
4.26. Intellectual Property Collateral Assignment executed by Tidel
Cash Systems, Inc. in favor of The Frost National Bank d/b/a
Creekwood Capital Group (incorporated by reference to Exhibit
4.14. of the Company's Report on Form 10-Q for the quarterly
period ended December 31, 1994).
4.27. Financing Statement executed by the Company (incorporated by
reference to Exhibit 4.15. of the Company's Report on Form
10-Q for the quarterly period ended December 31, 1994).
4.28. Financing Statement executed by AnyCard International, Inc.
(incorporated by reference to Exhibit 4.16. of the Company's
Report on Form 10-Q for the quarterly period ended December
31, 1994).
4.29. Financing Statement executed by Tidel Cash Systems, Inc.
(incorporated by reference to Exhibit 4.17. of the Company's
Report on Form 10-Q for the quarterly period ended December
31, 1994).
4.30. Special Deposit Agreement and Grant of Security Interest in
Bank Account among AnyCard International, Inc., Creekwood
Capital Corporation and Texas Commerce Bank National
Association (incorporated by reference to Exhibit 4.18. of the
Company's Report on Form 10-Q for the quarterly period ended
December 31, 1994).
4.31. Special Deposit Agreement and Grant of Security Interest in
Bank Account among Tidel Engineering, Inc., Creekwood Capital
Corporation and Texas Commerce Bank National Association
(incorporated by reference to Exhibit 4.19. of the Company's
Report on Form 10-Q for the quarterly period ended December
31, 1994).
4.32. Modification of Warrant Agreement granting to Creekwood
Capital Corporation the right to purchase through May 13, 1996
up to 30,000 shares of the Company's common stock at a price
of $2.00 per share executed by the Company (incorporated by
reference to Exhibit 4.20. of the Company's Report on Form
10-Q for the quarterly period ended December 31, 1994).
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4.33. Guaranty of Validity of Collateral executed by James T. Rash
and J. Otis Winters, individually, in favor of The Frost
National Bank d/b/a Creekwood Capital Group (incorporated by
reference to Exhibit 4.21. of the Company's Report on Form
10-Q for the quarterly
period ended December 31, 1994).
4.34. Credit Agreement dated June 12, 1997 by and between Tidel
Engineering, Inc. and Texas Commerce Bank National Association
(incorporated by reference to Exhibit 4.01 of the Company's
Report on Form 10-Q for the quarterly period ended June 30,
1997).
4.35. Promissory Note dated June 12, 1997 executed by Tidel
Engineering, Inc. payable to the order of Texas Commerce Bank
National Association (incorporated by reference to Exhibit
4.02 of the Company's Report on Form 10-Q for the quarterly
period ended June 30, 1997).
4.36. Security Agreement (Personal Property) dated as of June 12,
1997, by and between Tidel Engineering, Inc. and Texas
Commerce Bank National Association (incorporated by reference
to Exhibit 4.03 of the Company's Report on Form 10-Q for the
quarterly period ended June 30, 1997).
4.37. Patent Security Agreement dated June 12, 1997 executed by
Tidel Engineering, Inc. in favor of Texas Commerce Bank
National Association (incorporated by reference to Exhibit
4.04 of the Company's Report on Form 10-Q for the quarterly
period ended June 30, 1997).
4.38. Trademark Security Agreement dated June 12, 1997 executed by
Tidel Engineering, Inc. in favor of Texas Commerce Bank
National Association (incorporated by reference to Exhibit
4.05 of the Company's Report on Form 10-Q for the quarterly
period ended June 30, 1997).
4.39. Unconditional Guaranty Agreement dated June 12, 1997 executed
by the Company for the benefit of Texas Commerce Bank National
Association (incorporated by reference to Exhibit 4.06 of the
Company's Report on Form 10-Q for the quarterly period ended
June 30, 1997).
4.40. Pledge and Security Agreement dated June 12, 1997 executed by
the Company in favor of Texas Commerce Bank National
Association (incorporated by reference to Exhibit 4.07 of the
Company's Report on Form 10-Q for the quarterly period ended
June 30, 1997).
10.01. Copy of 1989 Incentive Stock Option Plan of the Company
(incorporated by reference to Appendix A of the Company's
Proxy Statement filed under Regulation 14A with respect to the
Annual Meeting of Shareholders held June 13, 1989).
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10.02. Copy of Lease Agreement dated February 21, 1992 between the
Company, as Lessee, and San Felipe Plaza, Ltd., as Lessor,
related to the occupancy of the Company's executive offices
(incorporated by reference to Exhibit 10.10. of the Company's
Report on Form 10-K for the year ended September 30, 1992).
10.03. Copy of Lease dated as of December 9, 1994 (together with the
Addendum and Exhibits thereto) between Booth, Inc., a Texas
corporation, as Landlord and Tidel Engineering, Inc., as
Tenant, covering approximately 65,000 square feet of
manufacturing and office premises at 2310 McDaniel Drive,
Carrollton, Texas (incorporated by reference to Exhibit 10.7.
of the Company's Report on Form 10-K for the year ended
September 30, 1994).
10.04. Copy of Agreement dated October 30, 1991 between ACS and Tidel
Engineering, Inc. (incorporated by reference to Exhibit 10.14.
of the Company's Report on Form 10-K for the year ended
September 30, 1992).
10.05. Copy of EFT Processing Services Agreement dated February 3,
1995 by, between and among Affiliated Computer Services, Inc.
("ACS"), AnyCard International, Inc. and the Company related
to the electronic fund transfer services to be provided by ACS
to AnyCard (incorporated by reference to Exhibit 10.9. of the
Company's Report on Form 10-K for the year ended September 30,
1995).
10.06. Copy of Amendment No. 1 dated as of September 14, 1995 to
Exhibit 10.05. above (incorporated by reference to Exhibit
10.10. of the Company's Report on Form 10-K for the year ended
September 30, 1995).
10.07. Copy of Purchase Agreement dated February 3, 1995 between ACS
and AnyCard International, Inc. related to the purchase by ACS
of AnyCard Systems (incorporated by reference to Exhibit
10.11. of the Company's Report on Form 10-K for the year ended
September 30, 1995).
10.08. Copy of Amendment No. 1 dated as of September 14, 1995 to
Exhibit 10.07. above (incorporated by reference to Exhibit
10.12. of the Company's Report on Form 10-K for the year ended
September 30, 1995).
10.09. Secured Promissory Note dated March 30, 1997 executed by James
L. Britton, III and payable to the order of the Company
(incorporated by reference to Exhibit 10.01 of the Company's
Report on Form 10-Q for the quarterly period ended June 30,
1997).
10.10. Secured Promissory Note dated March 30, 1997 executed by
Jerrell G. Clay and payable to the order of the Company
(incorporated by reference to Exhibit 10.02 of the Company's
Report on Form 10-Q for the quarterly period ended June 30,
1997).
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10.11. Secured Promissory Note dated March 30, 1997 executed by Mark
K. Levenick and payable to the order of the Company
(incorporated by reference to Exhibit 10.03 of the Company's
Report on Form 10-Q for the quarterly period ended June 30,
1997).
10.12. Secured Promissory Note dated March 30, 1997 executed by James
T. Rash and payable to the order of the Company (incorporated
by reference to Exhibit 10.04 of the Company's Report on Form
10-Q for the quarterly period ended June 30, 1997).
10.13. Form of Stock Pledge Agreement dated March 30, 1997 executed
by each of the four directors of the Company in favor of the
Company (incorporated by reference to Exhibit 10.05 of the
Company's Report on Form 10-Q for the quarterly period ended
June 30, 1997).
10.14. Copy of Amendment No.2 dated as of September 15, 1997 to
Exhibit 10.02. above.
10.15. Form of employment agreement dated July 16, 1997 by and
between Tidel Engineering, Inc. and Michael F. Hudson,
Eugene W. Moore, M. Flynt Moreland and Roberto M. Gutierrez.
*10.16. Form of employment agreement dated July 16, 1997 by and
between Tidel Engineering, Inc. and Mark K. Levenick.
11. Statement of Computation of Net Income (Loss) Per Share for
the three-year period ended September 30, 1997.
22. The Registrant has three subsidiaries doing business in the
names set forth below:
STATE OF PERCENT
NAME INCORPORATION OWNED
---- ------------- -----
Tidel Cash Systems, Inc. Delaware 100%
AnyCard International, Inc. Delaware 100%
Tidel Engineering, Inc. Delaware 100%
27. Financial Data Schedule.
- ----------------
* - Filed herewith
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1
Exhibit 10.16.
EMPLOYMENT AGREEMENT
This Employment Agreement ("AGREEMENT") is entered into effective as of the 16th
day of July, 1997 by and between TIDEL ENGINEERING, INC. , a Delaware
corporation with its principal offices at Carrollton, Dallas County, Texas
("Company"), and MARK K. LEVENICK ("Employee").
WHEREAS, COMPANY desires to continue to have the benefits of Employee's
knowledge and experience as a full time senior executive without distraction by
employment-related uncertainties and considers such employment a vital element
to protecting and enhancing the best interests of Company, and its subsidiaries
and shareholders, and Employee desires to continue to be employed full time with
Company; and
WHEREAS, COMPANY and Employee desire to enter into an agreement reflecting
the terms under which Employee will be employed by Company for a minimum three
(3) year period commencing on the Effective Date (subject to the provision of
SECTIONS 5, 6 and 7 below);
WHEREAS, Employee is employed hereunder by Company in a confidential
relationship wherein Employee, in the course of Employee's employment with the
Company, has and will continue to become familiar with and aware of information
as to customers of the Company and Tidel Technologies Incorporated (formerly
known as American Medical Technologies, Inc. doing business as AMT Industries,
Inc.)("TTI"), specific manner of doing business, including the processes,
techniques and trade secrets utilized by the Company and TTI, and future plans
with respect thereto, all of which has been and will be established and
maintained at great expense to the Company and TTI; this information is a trade
secret and constituted the valuable good will of the Company and TTI.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein
and other good and valuable consideration, the parties agree as follows:
1. TERM. Company hereby agrees to employ Employee for an initial
three-year period commencing on July 16, 1997 (the "Effective Date") and ending
on the third anniversary thereof, unless sooner terminated as provided in
SECTIONS 5 and 6 or unless extended by the mutual consent of the parties prior
to the end of the term. The term of Employee's employment with Company herein
shall be automatically extended at the end of the initial three-year period on a
year to year basis on the same terms and conditions contained herein in effect
as of the time of renewal unless either party hereto delivers to the other party
a written notice of its or his election to terminate such employment as of not
less than sixty (60) days prior to (i) the third-year anniversary or (ii) any
additional one year anniversary.
2. DUTIES. Employee shall serve as the PRESIDENT AND CHIEF EXECUTIVE
OFFICER AND A DIRECTOR of Company, shall exercise the authority and assume the
responsibilities of a chief executive officer of a company of the size and
nature of Company, and shall assume such other duties as the Board of Directors
of Company may prescribe consistent with duties of an executive officer of a
technology company of such size as Company including without limitation such
positions and duties with Company's subsidiaries as assigned by the Board of
Directors of Company. Employee agrees to devote substantially all his full time,
attention and best efforts to the performance of his duties. The Company may
from time to time designate Employee as an officer of any current or future
subsidiary and, in such event, shall use its best efforts to fairly allocate
Employee's compensation among itself and such subsidiary or subsidiaries either
through multiple direct payroll checks to Employee or by inter-Company
reimbursements, in any case consistent with any applicable regulations or
regulatory policies.
3. COMPENSATION. Company shall compensate Employee for the services
rendered under this Agreement as follows:
(a) A base annual salary determined by the Board of Directors of
Company consistent with its practices for executive officers of Company, but not
less than $ 195,000 per year, payable in equal monthly installments (less
applicable withholding) in accordance with the customary payroll practices of
Company for the payment of executive officers;
(b) Such bonuses as shall be determined by the Board of Directors of
Company consistent with its practices for executive officers of Company;
(c) If Employee's base annual salary is increased at any time, it
shall not thereafter be decreased during the term of this Agreement, unless such
decrease is agreed to by the Employee in writing; and
(d) The Board of Directors of Company or its parent Company, TTI,
may from time to time grant restricted stock, performance units or stock
options, stock appreciation rights, and other forms of long-term incentive
compensation arrangements to the Employee. The privilege to participate in these
grants is at the discretion of the Board of Directors and the stipulations
regarding the granting of these awards and their exercise by the Employee will
be defined in the Tidel Technologies Incorporated 1997 Long-Term Incentive Plan
or in other plans or actions of the Board of Directors.
(e) Employee shall be entitled to reimbursement of reasonable out of
pocket expenses relating to Company business in accordance with policies in
effect for executive officers generally.
4. EMPLOYEE BENEFITS.
(a) Employee shall be entitled to full participation, on a basis
commensurate with his position with Company, in all plans of life, accident,
medical payment, health and disability insurance, retirement, pension,
perquisites and other employee benefit and pension plans which generally are
made available to executive officers of Company or its principal subsidiaries,
except for such plans which the Board of Directors, in its sole discretion,
shall adopt for select employees to compensate them for special or extenuating
circumstances.
(b) Employee shall be entitled to an annual vacation leave at full
pay as may be provided for by Company's vacation policies applicable to
executive officers, but in any event such paid vacation shall not be less than
two weeks in the aggregate.
(c) Employee shall be entitled to an automobile and/or an automobile
allowance as may be determined by the Board of Directors. Once established, or
if Employee's automobile allowance is increased at any time, it shall not
thereafter be decreased during the term of this Agreement, unless such decrease
is agreed to by the Employee in writing.
(d) Nothing in this Agreement shall limit in any way Employee's
participation in any other benefit plans or arrangements as are from time to
time approved by Company.
5. TERMINATION BY COMPANY. Except for a termination pursuant to SECTION 1,
upon the expiration of the scheduled initial or any other term of this
Agreement, Employee's employment hereunder may be terminated by Company without
any breach of this Agreement only under the following circumstances:
(a) Death, or Retirement. Employee's employment shall terminate upon
his death or retirement.
(b) Disability. If, as a result of his incapacity resulting from
physical or mental illness or disease which is likely to be permanent, Employee
shall have been unable to perform his duties hereunder for a period of more than
one hundred twenty (120) consecutive days during any twelve-month period,
Company may terminate his employment hereunder. The Board of Directors will
determine if the Employee's termination is due to total and permanent
disability, according to any long-term disability plan then in effect for senior
executives of Company and otherwise in good faith consistent with generally
prevailing practices of employers.
(c) Cause. Company may terminate Employee's employment hereunder for
cause, which for purposes of this Agreement shall be defined to mean (i) the
willful and continued failure by Employee to follow the reasonable instructions
of the Board of Directors of Company or his duties pursuant to this Agreement,
continuing for ten (10) days after written notice of such failure has been given
to Employee by the Board of Directors and the failure of the Employee to cure,
(ii) the willful commission by Employee of acts that are dishonest or
inconsistent with local normal standards and demonstrably and materially
injurious to Company or its subsidiaries, monetarily or otherwise, (iii) the
commission by Employee of a felonious act, (iv) ongoing alcohol/drug addiction
and a failure by Employee to successfully complete a recovery program, (v)
intentional wrongful disclosure of confidential information of the Company, (vi)
intentional wrongful engagement in any competitive activity, or (vii) gross
neglect of his duties by Employee.
(d) Termination Without Cause. The termination of Employee's
employment by Company for any reasons other than those specified above shall be
deemed to be a Termination Without Cause and Employee shall be entitled to the
severance benefits described in SECTION 8 herein.
No breach or default by Employee shall be deemed to have occurred
hereunder unless written notice thereof shall have been given by Company to
Employee.
Upon termination of this Agreement for any reason provided above, Employee
shall be entitled to receive all compensation earned and all benefits and
reimbursements due through the effective date of termination. Additional
compensation subsequent to termination, if any, will be due and payable to
Employee only to the extent and in the manner expressly provided above. All
other rights and obligations of TTI, the Company and Employee under this
Agreement shall cease as of the effective date of termination, except that
Employee's obligations under SECTIONS 13, 14, 15 and 16 herein shall survive
such termination in accordance with their terms.
If termination of Employee's employment arises out of the Company's
failure to pay Employee on a timely basis the amounts to which Employee is
entitled under this Agreement or as a result of any other breach of this
Agreement by the Company, as determined by a court of competent jurisdiction or
pursuant to the provisions of SECTION 17 below, the Company shall pay all
amounts and damages to which Employee may be entitled as a result of such breach
and all reasonable legal fees and expenses and other costs incurred by Employee
to enforce Employee's rights hereunder.
6. TERMINATION BY EMPLOYEE. Employee shall be entitled to terminate his
employment (i) in the event a Change of Control (as defined in SECTION 7(D)
below) occurs after the Effective Date, (ii) for Good Reason or (iii) pursuant
to the provisions contained in SECTION 1 hereof. Termination for "Good Reason"
is defined as Employee's resignation except in connection with his termination
pursuant to SECTION 5, caused by and within ninety (90) days of the following:
(a) Without the express written consent of Employee, any duties that
are assigned which are materially inconsistent with Employee's position, duties
and status with Company as contemplated by this Agreement;
(b) Any action by Company which results in a material diminution in
the position, duties or status of Employee with Company as contemplated by this
Agreement or any transfer or proposed transfer of Employee for any extended
period to a location outside Dallas County, Texas without his consent;
(c) The base annual salary of Employee, as the same may hereafter be
increased from time to time, is reduced;
(d) Without limiting the generality or effect of the foregoing,
Company fails to materially comply with any of its obligations hereunder;
(e) Termination by Employee of his employment with Company pursuant
to clause (i) or (ii) of the first sentence of this SECTION 6 shall be deemed to
be termination of Employee's employment by Company without cause; or
(f) Failure of the Compensation Committee to communicate the
compensation objectives required within the Executive Annual Incentive Plan or
subsequent plan, approved by the Board, if any, within the first ninety (90)
days of any fiscal year.
7. SEVERANCE PAYMENT AFTER CHANGE OF CONTROL.
(a) If a Change of Control (as defined in subsection (d) below)
shall occur, in addition to any compensation due to Employee pursuant to SECTION
3(B) above, Employee shall be entitled to the lump sum severance payment
provided in subsection (b) below upon any termination (including voluntary
termination) of his employment upon the earlier of (i) two (2) years after the
Change of Control, or (ii) the termination of this Agreement pursuant to SECTION
1 above, unless such termination is the result of action taken by Company
pursuant to SECTIONS 5(A), (B) or (C) above.
(b) The lump sum severance payment payable to Employee under
subsection (a) above shall be equal to the lesser of (i) 2.99 times the
Employee's Base Amount as defined in Section 280G of the Internal Revenue Code
of 1986, as amended ("Code") or (ii) the maximum amount of severance payment
which is permitted to be deducted as compensation expense by the Company and to
be received by the Employee without liability for the assessment of an excise
tax on such payment under the applicable provisions of the Code. In the event of
any disagreement between the parties regarding the determination of the amount
indicated by clause (i) or (ii) above, the Employee and Company shall submit
such dispute to arbitration in accordance with SECTION 17 and the arbitration
proceeding shall determine the amount of such reduction and such determination
shall be final and binding upon the Employee and the Company. This severance
payment shall be made immediately and shall not be discounted by reason of the
fact that the time of payment is accelerated in advance of the ordinary course
of payments under this Agreement.
(c) If a Change of Control (as defined in Subsection (d) below)
shall occur (i) Employee shall have immediate vesting of all restricted stock,
performance units, stock options, stock appreciation rights or warrants (whether
related to Company common stock or TTI common stock) granted to Employee and
full vesting in all other employee benefit plans and compensation plans to the
maximum extent permitted under applicable law, and (ii) Employee shall have the
right to "put" all or any portion of vested restricted stock, performance units,
stock options, stock appreciation rights or warrants to TTI or in the event TTI
no longer exists or is unable or fails to fulfill its obligations pursuant to
this SECTION 7(C) within thirty (30) days of Employee's exercise of his "put"
rights then to Company for the difference between (i) (A) the stock option
exercise price with respect to stock options and stock appreciation rights, (B)
warrant exercise price with respect to warrants, or (C) common stock price with
respect to restricted stock or performance units, and (ii) the higher of the
market price of Company's or TTI's common stock, as the case may be, at the date
of the "put" or the "Sales Price." Sales Price is defined solely for purposes of
this section as (i) the aggregate consideration per share received by the
Company or its shareholder(s) (currently TTI) for Company's common stock in the
transaction which resulted in a Change of Control in the event it is Company's
common stock subject to a stock option, stock appreciation right, warrant,
restricted stock or performance unit or (ii) the market price of TTI stock as of
the date of the closing of the transaction which resulted in a Change of Control
in the event it is TTI's common stock subject to the stock option, stock
appreciation right, warrant, restricted stock or performance unit. Employee's
right to "put" vested restricted stock, performance units, stock options, stock
appreciation rights or warrants to TTI or Company shall exist for the period
ending on the earlier of (i) six (6) months from the date of the Change of
Control, (ii) the termination of this Agreement, or (iii) Employee's termination
pursuant to SECTION 5.
(d) For the purposes of this Agreement, a "Change of Control" of
Company shall be deemed to have taken place if one or more of the following
occurs:
(i) Any person or other entity, as that term is used in
Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, ("Exchange
Act") (other than a qualified benefit or retirement plan of Company or an
affiliate of Company) becomes directly or indirectly, the beneficial owner (as
defined in Rule 13(d) under the Exchange Act as in effect on the date hereof) of
securities of Company representing fifty percent (50%) or more of the combined
voting power of Company's then outstanding securities (unless such person is
known by Employee to be already such beneficial owner on the date of this
Agreement);
(ii) during any period of two (2) consecutive years or less,
individuals who at the beginning of such period constituted the Board of the
Company cease, for any reason, to constitute at least a majority of the Board,
unless the election or nomination for election of each new member of the Board
was approved by a vote of at least two-thirds of the members of the Board then
still in office who were members of the Board at the beginning of the period;
(iii) the equityholders of the Company approve any merger or
consolidation to which the Company is a party as a result of which the persons
who were equityholders of the Company immediately prior to the effective date of
the merger or consolidation (and excluding, however, any shares held by any
party to such merger or consolidation and their affiliates) shall have
beneficial ownership of less than fifty percent (50%) of the combined voting
power for election of members of the Board (or equivalent) of the surviving
entity following the effective date of such merger or consolidation; or
(iv) the equityholders of the Company approve any merger or
consolidation as a result of which the equity interests in the Company shall be
changed, converted or exchanged (other than a merger with a wholly-owned
subsidiary of the Company) or any liquidation of the Company or any sale or
other disposition of fifty percent (50%) or more of the assets or earnings power
of the Company;
(v) the Company's Board of Directors shall approve the
distribution to the Company's shareholders of all or substantially all of
Company's net assets or shall approve the dissolution of the Company;
(vi) any other transaction or series of related transactions
occur which have substantially the effect of the transactions specified in any
of the preceding clauses in this sentence; or
(vii) employee is terminated by the Company without cause
within the period of one hundred twenty (120) days before an occurrence of or
anticipation of a Change of Control as defined in SECTION 7(D) or the execution
of a contract intended to effect a Change of Control.
(e) If Employee's employment is not terminated during the period
provided for in SECTION 7(A), then the rights and obligations of the parties for
the balance of the term of this Agreement shall be governed by this Agreement
exclusive of the provisions contained in this SECTION 7, except SECTION 7 shall
continue and become applicable for the term of this Agreement if a subsequent
Change of Control occurs.
8. OTHER SEVERANCE BENEFITS.
(a) Notwithstanding the minimum term provided for in SECTION 1 of
this Agreement, either the Company or Employee may terminate this Agreement at
any time upon thirty (30) days notice to the other party, subject to the rights
of Employee to any payment due under this Agreement in that circumstance. If at
any time during the term of this Agreement, Employee is Terminated Without
Cause, or Employee resigns for Good Reason as defined in SECTION 6 of this
Agreement, and Employee is not entitled to the severance payment provided by
SECTION 7, then Employee shall be entitled to be paid a severance payment equal
to (i) two times (2x) Employee's Base Amount as defined in Code ss. 280G for
Termination Without Cause and (ii) one times (1x) Employee's Base Amount as
defined in Code ss. 280G for termination for Good Reason during the term of this
Agreement.
(b) If at any time during the term of this Agreement, Employee is
Terminated Without Cause, or Employee is terminated in the event of a Change of
Control as defined in SECTION 7, or Employee resigns for Good Reason as defined
in SECTION 6 of this Agreement, then (i) Employee shall be entitled to
continuation of basic employee group benefits, as defined in SECTION 4(A),
provided by Company to Employee for the lesser of one year after termination or
until the Employee secures new employment without remuneration to Company, and
(ii) the Employee's outstanding stock option agreements shall provide for a
continuance of the option exercise period for ninety (90) days from Employee's
termination or resignation date, except that in the case of death, voluntary
termination, Retirement, Disability and termination for cause, Employee's
continuance of the option exercise period shall be governed by the stock option
agreements.
(c) If at any time during the term of this Agreement, Employee is
Terminated Without Cause, or Employee is terminated in the event of a Change of
Control as defined in SECTION 7, or Employee resigns for Good Reason as defined
in SECTION 6 of this Agreement, Company shall promptly (and in any event within
five business days after a request by the Employee therefor) either pay or
reimburse the Employee for the costs and expenses of any executive outplacement
firm selected by the Employee; provided, however, that Company's liability
hereunder shall be limited to the first $20,000 of such expenses incurred by the
Employee. The Employee shall provide Company with reasonable documentation of
the incurrence of such outplacement costs and expenses.
9. TIMING OF PAYMENT. Unless otherwise provided in this Agreement, any
severance or other payment payable to Employee under this Agreement shall be
paid within thirty (30) days after the event causing such payment or at such
other date as the parties agree.
10. OTHER BENEFITS. The provisions of SECTIONS 7 and 8 shall not affect
Employee's participation in, or termination of distributions and vested rights
under, any pension, profit sharing, insurance or other employee benefit plan of
Company to which Employee is entitled pursuant to the terms of such plans except
for the acceleration of vested benefits, to the maximum extent permissible under
applicable law or employee benefit plan document, in certain employee benefits
pursuant to SECTION 7(C) and the provisions pursuant to SECTION 8(B).
11. NO DUTY TO MITIGATE DAMAGES. In the event of termination of this
Agreement by Employee after a Change of Control as defined in SECTION 7 above,
or as a result of the breach by Company of any of its obligations hereunder, or
in the event of the termination of Employee's employment by Company in breach of
this Agreement, or as a result of Employee's Termination Without Cause, or
resignation for Good Reason, Employee shall not be required to seek other
employment in order to mitigate his damages hereunder, and no compensation
employee does earn after any termination shall be considered to mitigate damages
Employee has incurred or to reduce any payment Company is obligated to make to
Employee pursuant to this Agreement.
12. NO RIGHT TO SET OFF. Company shall not be entitled to set off against
the amount payable to Employee any amounts earned by Employee from other
employment after termination of his employment with Company or any amounts which
might have been earned by Employee in other employment had he sought such other
employment. The amounts payable to Employee under this Agreement shall not be
treated as damages but as severance compensation to which Employee is entitled
by reason of termination of this employment in the circumstances contemplated by
this Agreement.
13. NON-COMPETE AND NON-DISCLOSURE OF INFORMATION.
(a) For so long as Employee is employed by Company and continuing
after the voluntary termination by Employee or termination for cause by Company
as provided under SECTION 5(C) of such employment for two (2) years:
(i) Employee will not accept a position as an officer,
director, employee, agent, consultant, representative of any technology
manufacturing ATM (automatic teller machine) company with its principal office
or a branch in any county in which Company or any subsidiary of Company operates
or any county adjacent to any such county and will not make or fail to dispose
of any stock in any other proprietary technology manufacturing ATM (automatic
teller machine) company with offices within thirty-five (35) miles of Dallas,
Texas except investments equal to less than two percent (2%) of the outstanding
stock of any class issued by any publicly traded company.
(ii) Except in the performance of Employee's obligations to
Company or one of its subsidiaries, Employee shall not, directly or indirectly,
use or permit the use of any confidential or other proprietary information of a
special unique nature and value to Company or one of its subsidiaries (the
"Confidential Information"), including, but not limited to, trade secrets,
systems, procedures, manuals, confidential reports, customer lists, sales or
distribution methods, patentable information and data as well as financial
information concerning Company or one of its subsidiaries, and information with
respect to the nature and type of other services rendered by Company or one of
its subsidiaries, which Confidential Information has been used by Company or one
of its subsidiaries to date or during the term of this Agreement and has been
made known (whether or not with the knowledge and permission of Company, and
whether or not developed, devised or otherwise created in whole or in part by
the efforts of Employee) to Employee by reason of his activities on behalf of
Company or one of its subsidiaries. Employee shall not reveal, divulge or make
known any Confidential Information to any individual partnership, firm, company
or other business organization whatsoever except in performance of Employee's
obligations to Company or with the express permission of the Board of Directors
of Company or as otherwise required by operation of law.
(b) Employee confirms that all Confidential Information is the
exclusive property of Company. All business records, papers and documents kept
or made by Employee relating to the business of Company shall be and remains the
property of Company and shall remain in the possession of Company during the
term and at all times thereafter. Upon the termination of his employment with
Company or upon the request of Company at any time, Employee shall promptly
deliver to Company, and shall retain no copies of, any written materials,
records and documents made by Employee or coming into his possession concerning
the business or affairs of Company.
(c) Without intending to limit the remedies available to Company,
Employee acknowledges that a breach of any of the covenants contained in this
SECTION 13 may result in material irreparable injury to Company or one of its
subsidiaries for which there is not adequate remedy at law, that it may not be
possible to measure damages for such injuries precisely, and that in the event
of such a breach or threat thereof, may be entitled to obtain a temporary
restraining order and/or a preliminary or permanent injunction restraining
Employee from engaging in activities prohibited by this SECTION 13 or such other
relief as may be required to specifically enforce any of the covenants in such
Section. In the event a court requires a posting of a bond, the parties hereby
agree that such bond shall be in the amount of One Thousand Dollars ($1,000.00).
(d) The covenants in this SECTION 13 are severable and separate, and
the unenforceability of any specific covenant shall not affect the provisions of
any other covenant. Moreover, in the event any court of competent jurisdiction
shall determine that the scope, time or territorial restrictions set forth are
unreasonable, then it is the intention of the parties that such restrictions be
enforced to the fullest extent which the court deems reasonable, and the
Agreement shall thereby be reformed.
(e) All of the covenants in this SECTION 13 shall be construed as
an agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Employee against the Company or
TTI, whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by TTI or the Company of such covenants. It is
specifically agreed that the period of two (2) years following termination of
employment stated at the beginning of this SECTION 13, during which the
agreements and covenants of Employee made in this SECTION 13 shall be effective,
shall be computed by excluding from such computation any time during which
Employee is in violation of any provision of this SECTION 13.
14. RETURN OF COMPANY PROPERTY. All records, designs, patents, business
plans, financial statements, manuals, memoranda, lists and other property
delivered to or compiled by Employee by or on behalf of the Company, TTI or
their representatives, vendors, or customers which pertain to the business of
the Company or TTI shall be and remain the property of the Company or TTI, as
the case may be, and be subject at all times to their discretion and control.
Likewise, all correspondence, reports, records, charts, advertising materials
and other similar data pertaining to the business, activities or future plans of
the Company or TTI which is collected by Employee shall be delivered promptly to
the Company without request by it upon termination of Employee's employment.
15. INVENTIONS. Employee shall disclose promptly to TTI and the Company
any and all significant conceptions and ideas for inventions, improvements and
valuable discoveries, whether patentable or not, which are conceived or made by
Employee, solely or jointly with another, during the period of employment or
within one (1) year thereafter, and which are directly related to the business
or activities of the Company or TTI and which Employee conceives as a result of
Employee's employment by the Company. Employee hereby assigns and agrees to
assign all Employee's interests therein to the Company or its nominee.
16. TRADE SECRETS. Employee agrees that Employee will not, during or after
the Term of this Agreement with the Company, disclose the specific terms of the
Company's or TTI's relationships or agreements with their respective significant
vendors or customers or any other significant and material trade secret of the
Company or TTI, whether in existence or proposed, to any person, firm,
partnership, corporation or business for any reason or purpose whatsoever.
17. ARBITRATION. Any unresolved dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration,
conducted before a panel of three (3) arbitrators in Dallas, Texas, in
accordance with the rules of the American Arbitration Association then in
effect. The arbitrators shall not have the authority to add to, detract from, or
modify any provision hereof nor to award punitive damages to any injured party.
The arbitrators shall have the authority to order back-pay, severance
compensation, vesting of options (or cash compensation in lieu of vesting of
options), reimbursement of costs, including those incurred to enforce this
Agreement in the event the arbitrators determine that Employee was terminated
without disability or cause, as defined in SECTIONS 5(B) and 5(C), respectively,
or that the Company has otherwise materially breached this Agreement. A decision
by a majority of the arbitration panel shall be final, non-appealable and
binding. Judgment may be entered on the arbitrators' award in any court having
jurisdiction. The direct expense of any arbitration proceeding shall be borne by
the Company.
Each party shall bear his or its own costs of arbitration, but if Employee
is the prevailing party in such arbitration, he shall be entitled to recover
from Company as part of any award entered his reasonable expenses for attorneys'
fees and disbursements.
<PAGE>
11
18. NOTICES. All notices, requests, demands and other communication called
for or contemplated hereunder shall be in writing and shall be deemed to have
been duly given when delivered personally or when mailed by United States
certified or registered mail, postage prepaid, addressed to the parties, their
successors in interest or assignees at the following addresses or such other
addresses as the parties may designate by notice in the manner aforesaid:
If to Company: Tidel Engineering, Inc.
2310 McDaniel
Carrollton, Texas 75006
Attention: Chairman
If to Employee: Tidel Engineering, Inc.
2310 McDaniel
Carrollton, Texas 75006
Attention: Mark K. Levenick
19. GOVERNING LAW AND VENUE. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas without giving
effect to any principle of conflict-of-laws that would require the application
of the law of any other jurisdiction. Venue for any dispute shall lie
exclusively in Dallas, Dallas County, Texas.
20. SEVERABILITY; HEADINGS. If any portion of this Agreement is held
invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is reasonable and possible, effect shall be
given to the intent manifested by the portion held invalid or inoperative. The
Section headings herein are for reference purposes only and are not intended in
any way to describe, interpret, define or limit the extent or intent of the
Agreement or of any part hereof.
21. ENTIRE AGREEMENT. This Agreement is not a promise of future
employment, except as otherwise provided herein. This Agreement constitutes the
entire understanding between the parties with respect to the subject matter
hereof, superseding all negotiations, prior discussions and preliminary
agreements, and further superseding any and all employment arrangements between
Employee and Company or any of Company's subsidiaries, affiliates or other
related entities. This Agreement may not be amended except in a writing executed
by the parties hereto.
22. ASSIGNMENT; BINDING EFFECT. Employee understands that Employee has
been selected for employment by the Company on the basis of Employee's personal
qualifications, experience and skills. Employee agrees, therefore, that Employee
cannot assign all or any portion of Employee's performance under this Agreement.
Subject to the preceding two (2) sentences and the express provisions of SECTION
7 above, this Agreement shall be binding upon, inure to the benefit of an be
enforceable by the parties hereto and their respective heirs, legal
representatives, successors and assigns.
23. EFFECTIVENESS. This Agreement shall be effective upon the Effective
Date.
24. SURVIVAL OF SECTION. The provisions of SECTIONS 13, 14, 15 and 16 of
this Agreement shall survive the termination of this Agreement for the period
provided for therein.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
TIDEL ENGINEERING, INC. EMPLOYEE
BY:_______________________ By:________________________
James T. Rash, Chairman Mark K. Levenick
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Witness
