<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended March 31, 2000
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the transition period from to
---------- ----------
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
----------------------
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 [ ]
APPLICABLE ONLY TO CORPORATE ISSUERS:
The number of shares of Common Stock outstanding as of the close of
business on March 31, 2000 was 16,447,827.
<PAGE> 2
TIDEL TECHNOLOGIES, INC.
I N D E X
<TABLE>
<CAPTION>
PAGE
NUMBER
------
<S> <C>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated Balance Sheets as of March 31, 2000
and September 30, 1999 (unaudited)...................................... 1
Consolidated Statements of Operations for the three
months and six months ended March 31, 2000 and
1999 (unaudited)........................................................ 2
Consolidated Statements of Comprehensive Income
for the three months and six months ended March 31,
2000 and 1999 (unaudited)............................................... 3
Consolidated Statements of Cash Flows for the six
months ended March 31, 2000 and 1999 (unaudited)........................ 4
Notes to Consolidated Financial Statements (unaudited)..................... 5
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations..................................... 6
Item 3. Quantitative and Qualitative Disclosures About
Market Risks ......................................................... 10
PART II. OTHER INFORMATION
Item 1. Legal Proceedings ........................................................ 10
Item 2. Changes in Securities...................................................... 10
Item 3. Defaults Upon Senior Securities............................................ 10
Item 4. Submission of Matters to a Vote
Of Security Holders..................................................... 11
Item 5. Other Information ........................................................ 11
Item 6. Exhibits and Reports on Form 8-K........................................... 11
SIGNATURE................................................................................... 11
</TABLE>
<PAGE> 3
TIDEL TECHNOLOGIES, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
<TABLE>
<CAPTION>
MARCH 31, SEPTEMBER 30,
ASSETS 2000 1999
------------ ------------
<S> <C> <C>
Current Assets:
Cash and cash equivalents $ 1,126,713 $ 2,423,844
Trade accounts receivable, net of allowance of
$636,848 and $566,917, respectively 17,579,488 15,137,056
Notes and other receivables 1,142,494 897,368
Inventories 10,200,169 6,128,741
Prepaid expenses and other 944,104 964,290
------------ ------------
Total current assets 30,992,968 25,551,299
Investment in 3CI, at market value 392,886 261,924
Property, plant and equipment, at cost 3,947,101 3,912,348
Accumulated depreciation (2,296,056) (1,932,575)
------------ ------------
Net property, plant and equipment 1,651,045 1,979,773
Intangible assets, net of accumulated amortization of
$1,096,467 and $1,039,364, respectively 604,606 661,709
Other assets 238,294 241,364
------------ ------------
Total assets $ 33,879,799 $ 28,696,069
============ ============
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Current maturities of long-term debt $ 128,000 $ 128,000
Accounts payable 7,003,830 5,285,591
Accrued liabilities 2,065,149 2,114,314
------------ ------------
Total current liabilities 9,196,979 7,527,905
Long-term debt 4,288,000 5,246,634
------------ ------------
Total liabilities 13,484,979 12,774,539
------------ ------------
Commitments and contingencies
Shareholders' Equity:
Common stock, $.01 par value, authorized 100,000,000
shares; issued and outstanding 16,447,827 and
16,067,968 shares, respectively 164,478 160,680
Additional paid-in capital 14,637,661 14,299,373
Retained earnings 7,149,570 3,149,328
Stock subscriptions receivable (382,063) (382,063)
Accumulated other comprehensive loss (1,174,826) (1,305,788)
------------ ------------
Total shareholders' equity 20,394,820 15,921,530
------------ ------------
Total liabilities and shareholders' equity $ 33,879,799 $ 28,696,069
============ ============
</TABLE>
See accompanying notes to consolidated financial statements.
1
<PAGE> 4
TIDEL TECHNOLOGIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED MARCH 31, SIX MONTHS ENDED MARCH 31,
---------------------------- ---------------------------
2000 1999 2000 1999
----------- ------------ ----------- -----------
<S> <C> <C> <C> <C>
Revenues $18,662,690 $10,286,247 $32,444,843 $17,346,940
Cost of sales 11,564,350 6,907,215 20,324,709 11,625,828
----------- ----------- ----------- -----------
Gross profit 7,098,340 3,379,032 12,120,134 5,721,112
Selling, general and administrative 2,863,885 2,066,415 5,226,330 3,741,710
Depreciation and amortization 318,111 178,631 628,890 341,345
----------- ----------- ----------- -----------
Operating income 3,916,344 1,133,986 6,264,914 1,638,057
Interest expense, net 89,169 96,024 191,672 199,762
----------- ----------- ----------- -----------
Income before taxes 3,827,175 1,037,962 6,073,242 1,438,295
Income tax expense 1,308,000 412,000 2,073,000 560,000
----------- ----------- ----------- -----------
Net income $ 2,519,175 $ 625,962 $ 4,000,242 $ 878,295
=========== =========== =========== ===========
Basic earnings per share:
Net income $ 0.15 $ 0.04 $ 0.25 $ 0.06
=========== =========== =========== ===========
Weighted average common shares
outstanding 16,290,536 16,006,912 16,193,449 15,952,116
=========== =========== =========== ===========
Diluted earnings per share:
Net income $ 0.14 $ 0.04 $ 0.22 $ 0.05
=========== =========== =========== ===========
Weighted average common and
dilutive shares outstanding 18,320,446 17,363,869 17,887,557 17,097,185
=========== =========== =========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
2
<PAGE> 5
TIDEL TECHNOLOGIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED MARCH 31, SIX MONTHS ENDED MARCH 31,
---------------------------- --------------------------
2000 1999 2000 1999
----------- ----------- ---------- -----------
<S> <C> <C> <C> <C>
Net income $2,519,175 $ 625,962 $4,000,242 $ 878,295
Other comprehensive income (loss):
Unrealized income (loss) on
investment in 3CI 130,962 (108,960) 130,962 (305,927)
---------- ---------- ---------- ----------
Comprehensive income $2,650,137 $ 517,002 $4,131,204 $ 572,368
========== ========== ========== ==========
</TABLE>
See accompanying notes to consolidated financial statements.
3
<PAGE> 6
TIDEL TECHNOLOGIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED MARCH 31,
----------------------------
2000 1999
----------- -----------
<S> <C> <C>
Cash flows from operating activities:
Net income $ 4,000,242 $ 878,295
Adjustments to reconcile net income to net cash
used in operating activities:
Depreciation and amortization 628,890 341,345
Changes in assets and liabilities:
Trade accounts receivable, net (2,442,432) (701,866)
Notes and other receivables (245,126) (33,670)
Inventories (4,071,428) (98,016)
Prepaids and other assets 23,256 (83,619)
Accounts payable and accrued liabilities 1,669,074 (1,036,824)
----------- -----------
Net cash used in operating activities (437,524) (734,355)
----------- -----------
Cash flows from investing activities:
Purchases of property, plant and equipment (243,059) (400,806)
----------- -----------
Net cash used in investing activities (243,059) (400,806)
----------- -----------
Cash flows from financing activities:
(Repayments) borrowings of long-term debt (894,634) 540,030
Repayments of notes payable (64,000) (64,000)
Proceeds from exercise of options and warrants 342,086 141,250
----------- -----------
Net cash (used in) provided by financing activities (616,548) 617,280
----------- -----------
Net decrease in cash and cash equivalents (1,297,131) (517,881)
Cash and cash equivalents at beginning of period 2,423,844 1,400,148
----------- -----------
Cash and cash equivalents at end of period $ 1,126,713 $ 882,267
=========== ===========
Supplemental disclosure of cash flow information:
Cash paid for interest $ 225,640 $ 224,871
=========== ===========
Cash paid for taxes $ 1,880,000 $ 662,940
=========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
4
<PAGE> 7
TIDEL TECHNOLOGIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (UNAUDITED)
(1) CONSOLIDATED FINANCIAL STATEMENTS
The accompanying consolidated balance sheets and related interim
consolidated statements of operations and cash flows of Tidel Technologies,
Inc. (the "Company"), a Delaware corporation, are unaudited. In the opinion
of management, these financial statements include all adjustments
(consisting only of normal recurring items) necessary for their fair
presentation in accordance with generally accepted accounting principles.
Preparing financial statements requires management to make estimates and
assumptions that affect the reported amounts of assets, liabilities,
revenues and expenses. Actual results may differ from these estimates.
Interim results are not necessarily indicative of results for a full year.
The information included in this Form 10-Q should be read in conjunction
with the Company's Annual Report on Form 10-K for the year ended September
30, 1999.
(2) INVENTORIES
Inventories consisted of the following at March 31, 2000 and September 30,
1999:
<TABLE>
<CAPTION>
March 31, September 30,
2000 1999
------------ ------------
<S> <C> <C>
Raw materials ........ $ 7,238,265 $ 5,200,887
Work in process ...... 24,408 36,749
Finished goods ....... 2,631,999 590,852
Other ................ 355,497 384,963
------------ ------------
10,250,169 6,213,451
Inventory reserve .... (50,000) (84,710)
------------ ------------
$ 10,200,169 $ 6,128,741
============ ============
</TABLE>
(3) EARNINGS PER SHARE
Basic earnings per share is computed by dividing the income available to
common shareholders by the weighted average number of common shares
outstanding during the period. Diluted earnings per share is computed by
dividing the income available to common shareholders by the weighted
average number of common shares and dilutive potential common shares. The
following is a reconciliation of the numerators and denominators of the
basic and diluted per-share computations for net income for the three
months and six months ended March 31, 2000 and 1999:
<TABLE>
<CAPTION>
Weighted
Average Shares Per Share
Income Outstanding Amount
---------- ----------- -------
<S> <C> <C> <C>
Three Months Ended March 31, 2000:
Basic earnings per share ................... $2,519,175 16,290,536 $ .15
Effect of dilutive warrants and options .... -- 2,029,910 (.01)
---------- ---------- -------
Diluted earnings per share ................. $2,519,175 18,320,446 $ .14
========== ========== =======
</TABLE>
5
<PAGE> 8
<TABLE>
<CAPTION>
Weighted
Average Shares Per Share
Income Outstanding Amount
---------- ----------- ----------
<S> <C> <C> <C>
Three Months Ended March 31, 1999:
Basic earnings per share ................... $ 625,962 16,006,912 $ .04
Effect of dilutive warrants and options .... -- 1,356,957 --
---------- ---------- ----------
Diluted earnings per share ................. $ 625,962 17,363,869 $ .04
========== ========== ==========
Six Months Ended March 31, 2000:
Basic earnings per share ................... $4,000,242 16,193,449 $ .25
Effect of dilutive warrants and options .... -- 1,694,108 (.03)
---------- ---------- ----------
Diluted earnings per share ................. $4,000,242 17,887,557 $ .22
========== ========== ==========
Six Months Ended March 31, 1999:
Basic earnings per share ................... $ 878,295 15,952,116 $ .06
Effect of dilutive warrants and options .... -- 1,145,069 (.01)
---------- ---------- ----------
Diluted earnings per share ................. $ 878,295 17,097,185 $ .05
========== ========== ==========
</TABLE>
(4) INVESTMENT IN 3CI
The Company owns 698,464 shares of common stock of 3CI Complete Compliance
Corporation ("3CI"), which is carried at market value. In addition, the
Company owned warrants to purchase 226,939 shares of common stock of 3CI,
exercisable at $1.50 per share, which expired unexercised in April 2000.
(5) LITIGATION
The Company and its subsidiaries are each subject to certain litigation and
claims arising in the ordinary course of business. In the opinion of the
management of the Company, the amounts ultimately payable, if any, as a
result of such litigation and claims will not have a material adverse
effect on the Company's consolidated financial position, results of
operations or cash flows.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
RESULTS OF OPERATIONS
The Company develops, manufactures, sells and supports automated teller
machines and related software (the "ATM" products) and electronic cash
controller safes (the "Timed Access Cash Controller" or "TACC" products).
PRODUCT REVENUES
Total revenues increased $8,376,443, or 81%, for the second quarter of
fiscal 2000 compared to the same quarter of 1999. On a year-to-date basis,
revenues increased $15,097,903, or 87%, in 2000 when compared to 1999. As
discussed below, a significant increase in ATM shipments was the principal
factor in the Company's revenue growth. Revenue by product is detailed in
the following table:
6
<PAGE> 9
<TABLE>
<CAPTION>
(Dollars in 000's)
---------------------------------------------------------------
Three Months Ended March 31, Six Months Ended March 31,
--------------------------- ---------------------------
2000 1999 2000 1999
------- ------- ------- -------
<S> <C> <C> <C> <C>
ATM ......................... $15,104 $ 7,771 $26,015 $12,543
TACC ........................ 1,988 1,625 3,660 2,887
Parts, service and other .... 1,571 890 2,770 1,917
------- ------- ------- -------
$18,663 $10,286 $32,445 $17,347
======= ======= ======= =======
</TABLE>
The growth in sales was due to continued strong demand for the Company's
core Ignition Series ATMs. The Company shipped 3,055 ATMs in the quarter
ended March 31, 2000, an increase of 102%, from the 1,511 ATMs shipped in
the comparable period a year ago. Resulting ATM product sales increased
$7,333,000, or 94%, for the quarter ended March 31, 2000 compared to the
same period in 1999. Average sales prices for ATM products decreased
approximately 4% in the quarter ended March 31, 2000 when compared to the
same quarter in 1999, primarily a result of increased sales to major
customers receiving volume discounts.
TACC product sales increased $363,000, or 22%, from 1999 to 2000. Sales for
the six month-to-date period increased $773,000, or 27%, from the same
period in 1999. These increases were partially due to increased shipments
of the new TACC IV model.
Parts, service and other revenues vary with sales of finished goods, and
have increased accordingly, except for sales of environmental monitoring
equipment which have declined and are now insignificant.
GROSS PROFIT, OPERATING EXPENSES AND NON-OPERATING ITEMS
A comparison of certain operating information is provided in the following
table:
<TABLE>
<CAPTION>
(Dollars in 000's)
-------------------------------------------------------------------
Three Months Ended March 31, Six Months Ended March 31,
---------------------------- --------------------------
2000 1999 2000 1999
------- ------- ------- -------
<S> <C> <C> <C> <C>
Gross profit ........................... $ 7,098 $ 3,379 $12,120 $ 5,721
Selling, general and administrative .... 2,864 2,066 5,226 3,742
Depreciation and amortization .......... 318 179 629 341
Operating income ....................... 3,916 1,134 6,265 1,638
Interest expense ....................... 89 96 192 200
Income before taxes .................... 3,827 1,038 6,073 1,438
Income taxes ........................... 1,308 412 2,073 560
Net income ............................. 2,519 626 4,000 878
</TABLE>
Despite a decrease in the average sales prices for ATM products, gross
profit on product sales increased $3,719,000, or 110%, from the quarter
ended March 31, 1999 to the quarter ended March 31, 2000. On a year-to-date
basis, gross profit increased $6,399,000, or 112%, from 1999 to 2000. Gross
profit as a percentage of sales improved markedly from 32.9% in the quarter
ended March 31, 1999 to 38.0% in the 2000 quarter as a result of reductions
in the cost of certain raw material components used in the ATM product
line. On a year-to-date basis, gross margin improved from 33.0% in 1999 to
37.4% in 2000.
Selling, general and administrative expenses increased $798,000 from the
three months ended March 31, 1999 to the same period in 2000 primarily due
to an increase in engineering and marketing personnel. On a year-to-date
basis, these expenses increased $1,484,000 in 2000 when compared to the
same period a year ago. As a percentage of sales, these expenses decreased
from 20.1% for the quarter
7
<PAGE> 10
ended March 31, 1999 to 15.4% in the same quarter in 2000, primarily due to
increased sales volumes. On a year-to-date basis, these percentages
decreased from 21.6% in 1999 to 16.1% in 2000.
Depreciation and amortization increased 78% from $179,000 in the quarter
ended March 31, 1999 to $318,000 for the same period in 2000. On a
year-to-date basis, depreciation and amortization expense increased 84%
from $341,000 in 1999 to $629,000 in 2000. The increases are due to
additions of property, plant and equipment.
Interest expense decreased slightly from 2000 to 1999 due to lower average
debt outstanding during the period.
Income taxes approximate the statutory state and federal rates in both
years.
LIQUIDITY AND CAPITAL RESOURCES
The financial position of the Company continues to improve primarily as a
result of profitable operations, as reflected in the following key
indicators as of March 31, 2000 and September 30, 1999:
<TABLE>
<CAPTION>
(dollars in 000's)
----------------------------------
March 31, September 30,
2000 1999
--------- -------------
<S> <C> <C>
Working capital ......... $21,796 $18,023
Total assets ............ 33,880 28,696
Shareholders' equity .... 20,395 15,922
</TABLE>
The improvement in working capital is principally due to increases in
accounts receivable and inventory during the six months ended March 31,
2000.
The Company has a credit agreement with a bank which provides for a
$7,000,000 revolving line of credit at the prime rate and a $640,000 term
loan at 8.4% per annum. At March 31, 2000, $4,000,000 was outstanding
pursuant to the revolving line of credit, the Company was in compliance
with all covenants, and the balance of the revolving line of credit of
$3,000,000 was available for future borrowing.
The Company continues to own 698,464 shares of 3CI common stock subsequent
to its divestiture of a majority interest in February 1994. Although the
market value of 3CI common stock has recently declined, the Company does
not believe that such decline represents a permanent impairment of the
investment. At present, 680,818 shares are pledged to secure an outstanding
note payable in the principal amount of $416,000.
As of March 31, 2000, the Company had outstanding warrants to purchase
1,260,833 shares of common stock at exercise prices ranging from $.50 to
$5.00 per share, which expire at various dates through February 2003, and
if exercised would generate proceeds to the Company of approximately
$1,778,000.
The Company's research and development budget for fiscal 2000 is estimated
at $3,100,000. The majority of these expenditures are applicable to
enhancements of the existing product lines and development of new automated
teller machine products and related software applications. During the three
months and six months ended March 31, 2000, research and development
expenditures were approximately $660,000 and $1,309,000, respectively.
8
<PAGE> 11
With its present capital resources, its continuing earnings and cash flow
from operations, its potential capital from the exercise of warrants, and
availability from its borrowing facility, the Company believes it should
have sufficient resources to meet its operating needs for the foreseeable
future and to provide for debt maturities and capital expenditures.
The Company has never paid dividends on shares of its common stock, and
does not anticipate paying dividends in the foreseeable future. In
addition, the Company's wholly owned subsidiary is restricted from paying
dividends to the Company pursuant to the subsidiary's revolving credit
agreement with a bank.
SEASONALITY
The Company can experience seasonal variances in its operations and
historically has its lowest dollar volume sales months between November and
February. The Company's operating results for any particular quarter may
not be indicative of the results for the future quarter or for the year.
IMPACT OF RECENTLY ISSUED ACCOUNTING STANDARDS
In June 1998, the FASB issued Statement of Financial Accounting Standards
No. 133, "Accounting for Derivative Instruments and Hedging Activities"
("SFAS 133"). SFAS 133 establishes new accounting and reporting standards
requiring that all derivative instruments (including certain derivative
instruments embedded in other contracts) be recorded in the balance sheet
as either an asset or liability measured at its fair value. SFAS 133
requires that changes in the derivative's fair value be recognized
currently in earnings unless specific hedge accounting criteria are met.
Special accounting for qualifying hedges allows a derivative's gains and
losses to offset related results on the hedged item in the income statement
and requires that a company must formally document, designate, and assess
the effectiveness of transactions that receive hedge accounting. SFAS 133,
as amended, is effective for all fiscal years beginning after June 15,
2000. The Company has not yet determined the impact; if any, SFAS 133 will
have on its financial position or results of operations, and plans to adopt
this standard effective October 1, 2000.
MAJOR CUSTOMERS AND CREDIT RISKS
The Company generally retains a security interest in the underlying
equipment that is sold to customers until it receives payment in full. In
addition, one major customer has pledged additional collateral to the
Company. The Company would incur an accounting loss equal to the carrying
value of the accounts receivable, less any amounts recovered from
liquidation of collateral, if a customer failed to perform according to the
terms of the credit arrangements. Sales to major customers were as follows
for the three months and six months ended March 31, 2000 and 1999:
<TABLE>
<CAPTION>
(Dollars in 000's)
------------------------------------------------------------
Three Months Ended March 31, Six Months Ended March 31,
---------------------------- ---------------------------
2000 1999 2000 1999
----------- ------------ ----------- -----------
<S> <C> <C> <C> <C>
Customer A .... $10,850,432 $ 2,958,037 $18,787,833 $ 6,021,193
Customer B .... 874,460 956,637 2,044,606 1,795,052
Customer C .... 838,588 -- 1,591,967 --
</TABLE>
9
<PAGE> 12
Foreign sales accounted for 6% of the Company's total sales during the
three months and six months ended March 31, 2000 compared to 3% of total
sales during the three months and six months ended March 31, 1999.
FORWARD-LOOKING STATEMENTS
This Form 10-Q contains certain forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as amended, which are
intended to be covered by the safe harbors created thereby. Investors are
cautioned that all forward-looking statements involve risks and
uncertainty, (including without limitation, the Company's compliance with
Year 2000 Issues, the Company's future product sales, gross profit,
selling, general and administrative expense, the Company's financial
position, working capital and seasonal variances in the Company's
operations, as well as general market conditions) though the Company
believes that the assumptions underlying the forward-looking statements
contained herein are reasonable, any of the assumptions could be
inaccurate, and therefore, there can be no assurance that the
forward-looking statements included in this Form 10-Q will prove to be
accurate. In light of the significant uncertainties inherent in the
forward-looking statements included herein, the inclusion of such
information should not be regarded as a representation by the Company or
any other person that the objectives and plans of the Company will be
achieved.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company is exposed to changes in interest rates as a result of
financing through its issuance of variable-rate and fixed-rate debt. If
market interest rates were to increase 1% in fiscal 2000, however, there
would be no material impact on the Company's consolidated results of
operations or financial position.
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Not applicable.
ITEM 2. CHANGES IN SECURITIES
During the six months ended March 31, 2000, the Company granted warrants to
purchase an aggregate of 175,000 shares of common stock to five companies
or individuals with exercise prices ranging from $1.88 to $5.00. The grants
of warrants were made pursuant to the exemption contained in Section 4(2)
of the Securities Act of 1933, as amended.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
Not applicable.
10
<PAGE> 13
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
Not applicable.
ITEM 5. OTHER INFORMATION
Not applicable.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a) EXHIBITS
27 - Financial Data Schedule
99.1 - Employment agreement, dated January 1, 2000, between the Company
and James T. Rash
99.2 - Employment agreement, dated January 1, 2000, between Tidel
Engineering, L.P. and Mark K. Levenick
99.3 - Employment agreement, dated January 1, 2000, between Tidel
Engineering, L.P. and Michael F. Hudson
b) REPORTS ON FORM 8-K
The Company filed no Reports on Form 8-K during the quarter ended March
31, 2000.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Company
has duly caused this report to be signed on its behalf by the undersigned
thereunto duly authorized.
TIDEL TECHNOLOGIES, INC.
(Registrant)
DATE: May 15, 2000 By: /s/ JAMES T. RASH
-----------------------------------------
James T. Rash
Principal Executive
and Financial Officer
11
<PAGE> 14
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
27 - Financial Data Schedule
99.1 - Employment agreement, dated January 1, 2000, between the Company
and James T. Rash
99.2 - Employment agreement, dated January 1, 2000, between Tidel
Engineering, L.P. and Mark K. Levenick
99.3 - Employment agreement, dated January 1, 2000, between Tidel
Engineering, L.P. and Michael F. Hudson
</TABLE>
<PAGE> 1
EXHIBIT 99.1
EMPLOYMENT AGREEMENT
This Employee Agreement ("Agreement") is entered into effective as of the
1st day of January, 2000 by and between TIDEL TECHNOLOGIES, INC., a Delaware
corporation with its principal offices at Houston, Harris County, Texas
("Company"), and JAMES T. RASH ("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 and
shareholder and Employee desires to continue to be employed full time with
Company and to extend his employment agreement from that presently provided; 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, specific manner of doing business, including the
processes, techniques and trade secrets utilized by the Company, and future
plans with respect thereto, all of which has been and will be established and
maintained at great expense to the Company; this information is a trade secret
and constituted the valuable good will of the Company.
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 January 1, 2000 (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. On the Effective Date anniversary of every year, the term of the
Employee's employment with Company shall be automatically extended by one year,
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 not later than
ten months after the anniversary of the Effective Date during the first year of
the then-current term a written notice of its or his election to terminate the
Employee's employment. If either party delivers such termination notice, the
Employee's employment will terminate as of the end of the then-current
three-year term.
2. DUTIES. Employee shall serve as the President/Chief Executive Officer of
Company, shall exercise the authority and assume the responsibilities of
President/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 President/Chief 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
<PAGE> 2
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 two hundred twenty-five thousand ($225,000) 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 a Employee in writing; and
(d) The Board of Directors of Company 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, Inc. 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.
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<PAGE> 3
(b) Employee shall be entitled to an annual vacation leave at full pay
as may be provided or 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
3
<PAGE> 4
"Termination Without Cause" (and the Company shall be deemed to have
"Terminated Without Cause") and Employee shall be entitled to the severance
benefits described in SECTION 8 herein. Notwithstanding the foregoing, the
Company shall not Terminate Without Cause the Employee's employment after a
Change of Control (as defined in SECTION 7(b)) until the end of the
then-current term of the Agreement.
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 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) for Good Reason or (ii) 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,
within NINETY (90) DAYS of the following:
(a) Without the express written consent of Employee, the Company
assigns the Employee any duties that are materially inconsistent with
Employee's position, duties and status with Company as contemplated by this
Agreement; (a)
(b) Any action by Company results in a material diminution in the
position, duties or status of Employee with Company as contemplated by this
Agreement or the Company transfers or proposes a transfer of Employee for
any extended period to a location outside Harris 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;
or
4
<PAGE> 5
(e) The Company's Compensation Committee fails to communicate the
compensation objectives required within the Executive Annual Incentive Plan
or subsequent plan, approved by the Board, if any, within the first 90 days
of any fiscal year.
Termination by Employee of his employment with Company pursuant to clause
(i) of the first sentence of this Section 6 shall be deemed to be Termination
Without Cause of Employee's employment by Company.
7. RIGHTS AFTER CHANGE OF CONTROL.
(a) If a Change of Control (as defined in SECTION 7(B) below) occurs,
(i) Employee shall have immediate vesting of all restricted stock,
performance units, stock options, stock appreciation rights or warrants
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 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 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) for
the Company's common stock in the transaction which resulted in a Change of
Control. Employee's right to "put" vested restricted stock, performance
units, stock options, stock appreciation rights or warrants to 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.
(b) 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
5
<PAGE> 6
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 SECTION 7(b); or
(vii) Employee is Terminated Without Cause by the Company within
the period of ONE HUNDRED EIGHTY (180) DAYS before an occurrence of a
Change of Control as defined in any of the preceding clauses of this
SECTION 7(b) or the execution of a contract intended to effect a
Change of Control as defined in any of the preceding clauses of this
SECTION 7(b).
8. OTHER SEVERANCE BENEFITS.
(a) Except as set forth below, and 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, then Employee shall
be entitled to be paid a severance payment equal to two times (2x)
Employee's highest base annual salary as set forth in SECTION 3(A) herein
for Termination Without Cause during the
6
<PAGE> 7
term of this Agreement. Notwithstanding the first sentence of this SECTION
8(a), if a Change of Control occurs, the Company shall have no right to
Terminate Without Cause the Employee's employment until the end of the
then-current term of this Agreement.
(b) 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, 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 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 10% of current salary of
such expenses incurred by the Employee. The Employee shall provide Company
with reasonable documentation of the incurrence of such outplacement costs
and expenses.
(d) With respect to provisions of the stock option agreements granted
pursuant to the 1997 Long-Term Incentive Plan, "Termination For Good
Reason" shall be construed to have the same meaning as "Termination Without
Cause", as defined in this Agreement.
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(a) 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
7
<PAGE> 8
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 all 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 (A) will nor accept a position as an officer,
director, employee, agent, consultant or representative of any
technology manufacturing ATM (automatic teller machine) company with
offices in any county or any county in which the Company has offices,
and (B) 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 Houston, 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 on Employee's obligations to
Company of 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
8
<PAGE> 9
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 material 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 them 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). (a)
(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,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company of such covenant. 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 or their representatives,
vendors, or customers which pertain to the business of the Company shall be and
remain the property of the Company and be
9
<PAGE> 10
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 which is collected by Employee shall be delivered promptly to the
Company without request by it upon termination of Employee's employment.
15. INVENTION. Employee shall disclose promptly to 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 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 relationships or agreements with their respective significant vendors
or customers or any other significant and material trade secret of the Company,
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 Houston, 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 SECTION 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.
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 Stated 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:
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<PAGE> 11
If to Company: Tidel Technologies, Inc.
5847 San Felipe, Ste. 900
Houston, Texas 77057
Attention: Chairman
If to Employee: Tidel Technologies, Inc.
5847 San Felipe, Ste. 900
Houston, Texas 77057
Attention: James T. Rash
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 Houston,
Harris 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 bas 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.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
TIDEL TECHNOLOGIES, INC.: EMPLOYEE:
/s/ JAMES T. RASH
-----------------------------------------
James T. Rash
President and
Chief Executive Officer
By: /s/ LEONARD L. CARR
-------------------------------
Leonard L. Carr
Senior Vice President
ATTEST:
By: /s/ SUSAN RILEY
-------------------------------
Susan Riley
Assistant Secretary
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EXHIBIT 99.2
EMPLOYMENT AGREEMENT
This Employee Agreement ("Agreement") is entered into effective as of the
1st day of January, 2000 by and between TIDEL ENGINEERING, L.P., a Delaware
limited partnership 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 and
shareholder and Employee desires to continue to be employed full time with
Company and to extend his employment agreement from that presently provided; 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, Inc. (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 January 1, 2000 (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. On the Effective Date anniversary of every year, the term of the
Employee's employment with Company shall be automatically extended by one year,
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 not later than
ten months after the anniversary of the Effective Date during the first year of
the then-current term a written notice of its or his election to terminate the
Employee's employment. If either party delivers such termination notice, the
Employee's employment will terminate as of the end of the then-current
three-year term.
2. DUTIES. Employee shall serve as the President/Chief Executive Officer of
Company, shall exercise the authority and assume the responsibilities of
President/Chief Executive Officer of a company of the size and nature of
Company, and shall assume such other duties as the Board of
<PAGE> 2
Directors of Company may prescribe consistent with duties of President/Chief
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 two hundred sixty-two thousand five hundred ($262,500)
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 a 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, Inc. 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
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<PAGE> 3
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 or 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.
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<PAGE> 4
(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 the Company shall
be deemed to have "Terminated Without Cause") and Employee shall be
entitled to the severance benefits described in SECTION 8 herein.
Notwithstanding the foregoing, the Company shall not Terminate Without
Cause the Employee's employment after a Change of Control (as defined in
SECTION 7(b)) until the end of the then-current term of the Agreement.
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) for Good Reason or (ii) 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,
within NINETY (90) DAYS of the following:
(a) Without the express written consent of Employee, the Company
assigns the Employee any duties that are materially inconsistent with
Employee's position, duties and status with Company as contemplated by this
Agreement; (a)
(b) Any action by Company results in a material diminution in the
position, duties or status of Employee with Company as contemplated by this
Agreement or the Company transfers or proposes a 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;
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<PAGE> 5
(d) Without limiting the generality or effect of the foregoing,
Company fails to materially comply with any of its obligations hereunder;
or
(e) The Company's Compensation Committee fails to communicate the
compensation objectives required within the Executive Annual Incentive Plan
or subsequent plan, approved by the Board, if any, within the first 90 days
of any fiscal year.
Termination by Employee of his employment with Company pursuant to clause
(i) of the first sentence of this Section 6 shall be deemed to be Termination
Without Cause of Employee's employment by Company.
7. RIGHTS AFTER CHANGE OF CONTROL.
(a) If a Change of Control (as defined in SECTION 7(b) below) occurs,
(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(A) 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 the 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 will result 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 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.
(b) 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:
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<PAGE> 6
(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; (i)
(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 SECTION 7(b); or
(vii) Employee is Terminated Without Cause by the Company within
the period of ONE HUNDRED EIGHTY (180) DAYS before an occurrence of a
Change of Control as defined in any of the preceding clauses of this
SECTION 7(b) or the
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<PAGE> 7
execution of a contract intended to effect a Change of Control as
defined in any of the preceding clauses of this SECTION 7(b).
8. OTHER SEVERANCE BENEFITS.
(a) Except as set forth below, and 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, then Employee shall be entitled to be paid a severance
payment equal to two times (2x) Employee's highest base annual salary
as set forth in SECTION 3(a) herein for Termination Without Cause
during the term of this Agreement. Notwithstanding the first sentence
of this SECTION 8(a), if a Change of Control occurs, the Company shall
have no right to Terminate Without Cause the Employee's employment
until the end of the then-current term of this Agreement.
(b) 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, 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 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 10% of current salary of such expenses incurred by the Employee.
The Employee shall provide Company with reasonable documentation of
the incurrence of such outplacement costs and expenses.
(d) With respect to provisions of the stock option agreements
granted pursuant to the 1997 Long-Term Incentive Plan, "Termination
For Good Reason" shall be construed to have the same meaning as
"Termination Without Cause" as defined in this Agreement.
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.
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<PAGE> 8
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(a) 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 all 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 (A) will nor accept a position as an officer,
director, employee, agent, consultant or representative of any
technology manufacturing ATM (automatic teller machine) company
with offices in any county or any county in which the Company has
offices, and (B) 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 on Employee's obligations to
Company of 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"),
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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 material 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 them 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
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<PAGE> 10
of action of Employee against the Company or 171, whether predicated
on this Agreement or otherwise, shall not constitute a defense to the
enforcement by TTI or the Company of such covenant. 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. INVENTION. 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 SECTION 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.
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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.
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 Stated 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, L.P.
2310 McDaniel Drive
Carrollton, Texas 75006
Attention: Chairman
If to Employee: Tidel Engineering, L.P.
2310 McDaniel Drive
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 bas 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
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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, L.P.: EMPLOYEE:
By: Tidel Cash Systems, Inc.,
a Delaware corporation
its general partner /s/ MARK K. LEVENICK
-----------------------------------------
Mark K. Levenick
President and
Chief Executive Officer
By: /s/ JAMES T. RASH
-------------------------------
James T. Rash, Chairman
ATTEST:
By: /s/ LEONARD L. CARR JR.
-------------------------------
Leonard L. Carr Jr., Secretary
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EXHIBIT 99.3
EMPLOYMENT AGREEMENT
This Employee Agreement ("Agreement") is entered into effective as of the
1st day of January, 2000 by and between TIDEL ENGINEERING, L.P., a Delaware
limited partnership with its principal offices at Carrollton, Dallas County,
Texas ("Company"), and MICHAEL F. HUDSON ("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 and
shareholder and Employee desires to continue to be employed full time with
Company and to extend his employment agreement from that presently provided; 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, Inc. (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 January 1, 2000 (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. On the Effective Date anniversary of every year, the term of the
Employee's employment with Company shall be automatically extended by one year,
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 not later than
ten months after the anniversary of the Effective Date during the first year of
the then-current term a written notice of its or his election to terminate the
Employee's employment. If either party delivers such termination notice, the
Employee's employment will terminate as of the end of the then-current
three-year term.
2. DUTIES. Employee shall serve as the Chief Operating Officer of Company, shall
exercise the authority and assume the responsibilities of Chief Operating
Officer of a company of the size and nature of Company, and shall assume such
other duties as the Board of Directors of
<PAGE> 2
Company may prescribe consistent with duties of Chief Operating 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 two hundred four thousand seven hundred fifty ($204,750)
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 a 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, Inc. 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
2
<PAGE> 3
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 or 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.
3
<PAGE> 4
(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 the Company shall
be deemed to have "Terminated Without Cause") and Employee shall be
entitled to the severance benefits described in SECTION 8 herein.
Notwithstanding the foregoing, the Company shall not Terminate Without
Cause the Employee's employment after a Change of Control (as defined in
SECTION 7(b)) until the end of the then-current term of the Agreement.
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) for Good Reason or (ii) 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,
within NINETY (90) DAYS of the following:
(a) Without the express written consent of Employee, the Company
assigns the Employee any duties that are materially inconsistent with
Employee's position, duties and status with Company as contemplated by this
Agreement; (a)
(b) Any action by Company results in a material diminution in the
position, duties or status of Employee with Company as contemplated by this
Agreement or the Company transfers or proposes a 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;
4
<PAGE> 5
(d) Without limiting the generality or effect of the foregoing,
Company fails to materially comply with any of its obligations hereunder;
or
(e) The Company's Compensation Committee fails to communicate the
compensation objectives required within the Executive Annual Incentive Plan
or subsequent plan, approved by the Board, if any, within the first 90 days
of any fiscal year.
Termination by Employee of his employment with Company pursuant to clause
(i) of the first sentence of this Section 6 shall be deemed to be Termination
Without Cause of Employee's employment by Company.
7. RIGHTS AFTER CHANGE OF CONTROL.
(a) If a Change of Control (as defined in SECTION 7(b) below) occurs,
(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(A) 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 the 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 will result 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 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.
(b) 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:
5
<PAGE> 6
(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 SECTION 7(b); or
(vii) Employee is Terminated Without Cause by the Company within
the period of ONE HUNDRED EIGHTY (180) DAYS before an occurrence of a
Change of Control as defined in any of the preceding clauses of this
SECTION 7(b) or the
6
<PAGE> 7
execution of a contract intended to effect a Change of Control as
defined in any of the preceding clauses of this SECTION 7(b).
8. OTHER SEVERANCE BENEFITS.
(a) Except as set forth below, and 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, then Employee shall
be entitled to be paid a severance payment equal to two times (2x)
Employee's highest base annual salary as set forth in SECTION 3(a) herein
for Termination Without Cause during the term of this Agreement.
Notwithstanding the first sentence of this SECTION 8(a), if a Change of
Control occurs, the Company shall have no right to Terminate Without Cause
the Employee's employment until the end of the then-current term of this
Agreement.
(b) 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, 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 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 10% of current salary of
such expenses incurred by the Employee. The Employee shall provide Company
with reasonable documentation of the incurrence of such outplacement costs
and expenses.
(d) With respect to provisions of the stock option agreements granted
pursuant to the 1997 Long-Term Incentive Plan, "Termination For Good
Reason" shall be construed to have the same meaning as "Termination Without
Cause", as defined in this Agreement.
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.
7
<PAGE> 8
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(a) and the provisions pursuant to SECTION 8(a).
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 all 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 (A) will nor accept a position as an officer,
director, employee, agent, consultant or representative of any
technology manufacturing ATM (automatic teller machine) company with
offices in any county or any county in which the Company has offices,
and (B) 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 on Employee's obligations to
Company of 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"),
8
<PAGE> 9
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 material 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 them 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
9
<PAGE> 10
of action of Employee against the Company or 171, whether predicated on
this Agreement or otherwise, shall not constitute a defense to the
enforcement by TTI or the Company of such covenant. 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. INVENTION. 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 SECTION 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.
10
<PAGE> 11
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.
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 Stated 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, L.P.
2310 McDaniel Drive
Carrollton, Texas 75006
Attention: Chairman
If to Employee: Tidel Engineering, L.P.
2310 McDaniel Drive
Carrollton, Texas 75006
Attention: Michael F. Hudson
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 bas 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
11
<PAGE> 12
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, L.P.: EMPLOYEE:
By: Tidel Cash Systems, Inc.,
a Delaware corporation
its general partner /s/ MICHAEL F. HUDSON
-----------------------------------------
Michael F. Hudson
Senior Vice President
Sales & Marketing
By: /s/ JAMES T. RASH
-------------------------------
James T. Rash, Chairman
ATTEST:
By: /s/ LEONARD L. CARR JR.
-------------------------------
Leonard L. Carr Jr., Secretary
12
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S CONSOLIDATED BALANCE SHEET AS OF MARCH 31, 2000 AND CONSOLIDATED
STATEMENT OF INCOME FOR THE SIX-MONTH PERIOD THEN ENDED AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO THE COMPANY'S REPORT ON FORM 10-Q FOR THE QUARTERLY
PERIOD ENDED MARCH 31, 2000.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> SEP-30-2000
<PERIOD-START> OCT-01-1999
<PERIOD-END> MAR-31-2000
<CASH> 1,126,713
<SECURITIES> 0
<RECEIVABLES> 17,579,488
<ALLOWANCES> 636,848
<INVENTORY> 10,200,169
<CURRENT-ASSETS> 30,992,968
<PP&E> 3,947,101
<DEPRECIATION> 2,296,056
<TOTAL-ASSETS> 33,879,799
<CURRENT-LIABILITIES> 9,196,979
<BONDS> 4,288,000
0
0
<COMMON> 164,478
<OTHER-SE> 20,230,342
<TOTAL-LIABILITY-AND-EQUITY> 33,879,799
<SALES> 32,444,843
<TOTAL-REVENUES> 32,444,843
<CGS> 20,324,709
<TOTAL-COSTS> 20,324,709
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 191,672
<INCOME-PRETAX> 6,073,242
<INCOME-TAX> 2,073,000
<INCOME-CONTINUING> 4,000,242
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 4,000,242
<EPS-BASIC> .25
<EPS-DILUTED> .22
</TABLE>
