TELTRONICS, INC.
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT ("Agreement") made as of May 1,
1999 by and between TELTRONICS, INC. a Florida corporation (the "Company")
having its principal place of business at 0000 Xxxxxxxxx Xxxxxxxxxx Xxx,
Xxxxxxxx, Xxxxxxx 00000, and Xxxx Xxxxxxx (the "Employee") currently
residing at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000.
BACKGROUND INFORMATION
The Company wishes to secure the continued employment services of the
Employee for a definite period of time and upon the particular terms and
conditions hereinafter set forth. Employee and the Company previously
entered an Amended And Restated Employment Agreement as of January 1, 1995
which Employee and the Company now intend to amend and restate by execution
of this Agreement. The Employee is willing to continue to be so employed.
Accordingly, Employee and the Company agree as follows:
OPERATIVE PROVISIONS
1. Employment and Term.
The Company hereby employs Employee and the latter hereby accepts
employment by the Company for the period commencing May 1, 1999 and
expiring December 31, 2005, which employment shall be automatically
extended for a successive five year period at the option of the Employee
exercisable by written notice to the Company at least ninety days prior to
December 31, 2005, unless it is terminated during the pendency of any such
period, whether initial or extended, by the occurrence of one of the events
described in paragraph 8 of this Agreement.
2. Duties.
During the term of this Agreement, whether initial or extended, the
Employee shall render to the Company services as Chief Executive Officer
and President, and shall perform such duties as may be designated by and
subject to the supervision of the Company's Board of Directors, and shall
serve in such additional capacities appropriate to his responsibilities and
skills as shall be designated by the Company, through action of its Board
of Directors. During such period, the Employee shall devote his full
attention, time and energies to the business and affairs of the Company
(subject to the terms of paragraph 4 below), and will use his best efforts
to promote the interests and reputation of the Company; provided that he
may pursue such non-competitive activities as do not materially interfere
with the performance of his obligations hereunder. Any question of
interpretation which may arise under the preceding proviso shall be
resolved by majority decision of the Company's Board of Directors. During
the term of this Agreement, without his written consent, the Company shall
not require Employee to perform services at any location other than
headquarters of the Company located in Sarasota, Florida.
3. Compensation.
For the services to be rendered by the Employee under this Agreement
the Company shall pay him, while he is rendering such services and
performing his duties hereunder, and the Employee shall accept as full
payment for such service, a base compensation of $325,000 per year
(inclusive of any amounts subject to employment related withholding
requirements), payable in arrears in equal installments on the last
business day of each month occurring during the period of employment or
otherwise as the parties may agree. Such base compensation shall be
increased on the first day of January of each year commencing January 1,
2000 by twenty-five thousand dollars ($25,000), and may from time to time
be supplemented by discretionary bonuses or other benefits payable from
time to time, all as determined by action of the Company's Board of
Directors. The Company shall have the right to pay the increases in base
compensation and any discretionary bonus in the form of securities of the
Company or any of its subsidiaries with the written approval of the
Employee.
In addition to the compensation described in this paragraph, Employee
shall be eligible to participate in any stock option plan that may be
adopted by the Company from time to time.
4. Vacation; Fringe Benefits; Reimbursement of Expenses.
The Employee shall be entitled to five (5) weeks of fully paid
vacation annually during the initial and each extended term of this
Agreement. He shall not be entitled to receive monetary or other valuable
consideration for vacation time to which he is entitled but does not take.
The timing of vacation periods shall be within the discretion of the
Company, reasonably exercised so as not to unnecessarily inconvenience the
Employee.
During this period of employment hereunder, the Employee shall further
be entitled to (a) such leave by reason of physical or mental disability or
incapacity and to such participation in medical and life insurance, pension
benefits, disability and other fringe benefit plans as the Company may
generally available to all of its executive employees from time to time;
subject, however, as to such plans, to such budgetary constraints or other
limitations as may be imposed by the Board of Directors of the Company from
time to time; (b) reimbursed for all normal and reasonable expenses
necessarily incurred by him in the performance of his obligations
hereunder, subject to such reasonable substantiation requirements as may be
imposed by the Company; and (c) a luxury automobile suitable for Employee
as an executive officer of the Company all costs of which including
specifically but not exclusively acquisition, maintenance, insurance and
operation shall be paid by the Company.
5. Proprietary Interests.
During and after the expiration of his term of employment with the
Company, the Employee shall not communicate or divulge to, or use for the
benefit of, any individual, association, partnership, limited partnership,
trust, corporation or other entity except the Company, any proprietary
information of the Company received by the Employee by virtue of such
employment, without being in receipt of the Board of Directors of the
Company's written consent to do so.
6. Restrictive Covenant.
During the term of his employment hereunder, the Employee shall not,
directly or indirectly, engage in or become an owner of, render any service
to, enter the employment of, or represent or solicit for any business which
competes with any activity of the Company conducted at any time during the
Employee's period of employment and which is located or active in any
country in which the Company shall maintain or intend to maintain any
activity. The parties expressly agree that the duration and geographical
area of this restrictive covenant are reasonable.
This covenant shall be construed as an agreement independent of any
other provision herein, and the existence of any claim or cause of action
of the Employee against the Company regardless of how arising, shall not
constitute a defense to the enforcement by the Company of its terms. If
any portion of the covenant is held by a court of law to be unenforceable
with respect either to its duration or geographical area, for whatever
reason, it shall be considered divisible both as to time and geographical
area, so that each month of the specified period shall be deemed a separate
period of time and each country or political subdivision thereof a separate
geographical area, resulting in an intended requirement that the longest
lesser period of time or largest lesser geographical area found by such
court to be a reasonable restriction shall remain an effective restrictive
covenant, specifically enforceable against the Employee.
Notwithstanding any statement contained in this paragraph 6 to the
contrary, legal or beneficial ownership by the Employee of a less than five
percent (5%) interest in a competitive corporation at least one class of
capital stock of which is publicly traded on a national or regional stock
exchange or by means of an electronic interdealer quotation system, shall
not be deemed to constitute a breach by the Employee of the terms hereof.
7. Remedies for Breach of Employee's Obligations.
The parties agree that the services of the Employee are of a personal,
specific, unique and extraordinary character and cannot be readily replaced
by the Company. They further agree that in the course of performing his
services, the Employee will have access to various types of proprietary
information of the Company, which, if released to others or used by the
Employee other than for the benefit of the Company, in either case without
the Company's consent, could cause the Company to suffer irreparable
injury. Therefore, the obligations of the Employee established under
paragraphs 5 and 6 hereof shall be enforceable both at law and in equity,
by injunction, specific performance, damages or other remedy; and the right
of the Company to obtain any such remedy shall be cumulative and not
alternative and shall not be exhausted by any one or more uses thereof.
8. Modification and Termination.
a. Modification. This Agreement may be amended or modified
only with the mutual written consent of the parties, and in its present
form comprises the entire agreement between the parties.
b. Termination - General. This Agreement is subject to
termination prior to the expiration of its initial or any extended term:
(i) if by the Employee, upon delivery to the Company of written notice of
such intention; and (ii) if by the Company, upon the occurrence of any one
of the following events, (a) the complete discontinuance of the Company's
activities, (b) the death of the Employee, (c) the physical or mental
disability of Employee which, in the judgment, reasonably exercised, by the
Board of Directors, renders him unable to perform his normal duties on
behalf of the Company for a continuous period of nine (9) months (measured
from the first day of the month immediately following the occurrence of
such disability), or (d) a unanimous determination by the Board of
Directors (excluding Employee) that there is cause (as described in
subparagraph (d) below) to terminate Employee's employment.
c. By Death or Disability. In the event of the Employee's
death, his base compensation otherwise due for the succeeding six full
calendar months following his death shall be paid to his Beneficiary. In
the event of his disability, for the period ending on the last business day
of the ninth calendar month following the occurrence of such disability,
the Employee shall be paid his base compensation (reduced by any amount
received by the Employee under the terms of any disability insurance policy
maintained by the Company at its sole expense); and thereafter, until he
either returns to full-time service or is terminated, he shall be treated
as being on an authorized but unpaid leave of absence.
d. For Cause. In the event of a unanimous decision by the
Board of Directors (excluding Employee), reasonably exercised, to terminate
Employee's employment due to (i) violation by Employee of paragraphs 5
and/or 6 of this Agreement; (ii) his violation of any provision of the
Company's by-laws or of its other stated policies, standards or regulations
approved in writing by Employee; or (iii) his conviction by a court of
competent jurisdiction of any act involving moral turpitude related to his
employment by the Company; then, upon termination, he shall be entitled to
receive severance pay in an amount equal to one (1) year of his annual base
compensation. As a condition precedent to the Company's right to terminate
this Agreement on the basis of clause (ii), it must be able to demonstrate
that the Employee has been furnished with a copy of and approved in writing
the by-law provision, or of the policy, standard or regulation, which he is
being accused of having violated, at a time prior to the alleged commission
of the violation.
e. Payment of Termination Compensation; Continued
Effectiveness of Certain Obligations. Any compensation due the Employee as
a result of the termination of his employment status under this Agreement
shall be paid in the same manner as if the Employee was still employed by
the Company without regard to, set-off or reduction by reason of Employee's
compensation for services or otherwise from any other source or party. No
termination or expiration of this Agreement whether consummated by action
of either party or by operation of the terms hereof, shall relieve the
Employee from his continued performance of the obligations established
under paragraphs 5 and 6 hereof.
f. Life and Disability Coverage. If termination of this
Agreement is due to any reason other than death, the Employee shall have
the right to purchase any policy of insurance on his life or insuring
against his disability which is owned by the Company, the exercise of which
right shall be made by written notice furnished to the Company within 30
days subsequent to the date of termination. The purchase price of each
policy of life insurance shall be the sum of its interpolated terminal
reserve value (computed as of the closing date) and the proportional part
of the gross premium last paid before the closing date which covers any
period extending beyond that date; or if the policy to be purchased shall
not have been in force for a period sufficient to generate an interpolated
terminal reserve value, the price shall be an amount equal to all net
premiums paid as of the closing date. The purchase price of each
disability income policy shall be the sum of its cash value and the
proportional part of the gross premium last paid before the closing date
which covers any period extending beyond that date. The purchase of any
insurance policy by the Employee shall be closed as promptly as may be
practicable after the giving of notice, in no event to exceed thirty (30)
days thereafter.
9. Indebtedness of Employee. If, during the course of his
employment, Employee become indebted to the Company for any reason, the
Company shall, if it so elects, have the right to set-off and to collect
any sums due it from the Employee out of any amounts which it may owe to
the Employee for unpaid compensation. In the event that this Agreement
terminates for any reason, all sums owed by the Employee to the Company
shall become immediately due and payable.
10. General Provisions.
a. Nonassignability: Neither this Agreement nor any right or
interest hereunder shall be assignable by the Employee, his Beneficiary of
his legal representatives except as otherwise expressly provided herein.
b. Enforceability: If any term or condition of this Agreement
shall be adjudged invalid or unenforceable to any extent or in any
application by a court of competent jurisdiction, then the remainder of
this Agreement, and such term or condition except to such extent or in such
application, shall not be affected thereby and each and every term and
condition of this agreement shall be valid and enforced to the fullest
extent and in the broadest application permitted by law.
c. Notice: All notices or other communications required or
permitted to be furnished pursuant to this Agreement shall be in writing
and shall be deemed properly furnished if hand delivered, mailed from
within the United States by certified or registered mail, or sent by
prepaid telegram to the recipient party at the address appearing in the
preamble to this Agreement or to such other address as any such party may
have designated by like notice forwarded to the other party hereto. Change
of address notices shall be deemed given when received. All other notices
shall be deemed given when mailed, telegraphed or hand delivered.
d. Jurisdiction; Application of Florida Law; Venue: The
parties agree that, irrespective of any wording that might be construed to
be in conflict with this paragraph, this Agreement is one for performance
in Florida. The parties to this Agreement agree that they waive any
objection, constitutional, statutory or otherwise, to a Florida court's
exercising jurisdiction of any dispute between them. By entering into this
Agreement, the parties, and each of them understand that they might be
called upon to answer a claim asserted in a Florida court. This Agreement,
and the application or interpretation thereof, shall be governed
exclusively by its terms and by the laws of the State of Florida. Venue
shall be deemed located in Manatee County, Florida.
e. Counterparts: This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of
which together shall be deemed an original, but all of which together shall
constitute one and the same instrument.
f. Binding Effect: Subject to paragraph 10(a) of this
Agreement, each of the provisions and agreements herein contained shall be
binding upon and enure to the benefit of the personal representatives,
devisees, heirs, successors, transferees and assigns of the respective
parties hereto.
g. Beneficiary: As used herein, the term "Beneficiary" shall
mean the person or persons (who may be designated contingently or
successively and who may be an entity other than an individual, including
an estate or trust) designated on a written form prescribed by the Board of
Directors to receive the termination of Agreement or death benefits
described in paragraph 8 above. Each Beneficiary designation shall be
effective only when filed with the Secretary of the Company during the
Employee's lifetime. Each Beneficiary designation filed with the Secretary
will cancel all designations previously so filed. If the Employee fails to
properly designate a Beneficiary or if the Beneficiary predeceases the
Employee or dies before complete distribution of the benefits has been
made, the Company shall distribute the benefit (or balance thereof) to the
surviving spouse, of the Employee or if she be then deceased to the
Employee's estate.
h. Entire Agreement: This Agreement, and the other documents
referenced herein, constitute the entire understanding of the parties
hereto with respect to the subject matter hereof, and supersedes any prior
understandings or agreements, oral or written, including specifically but
not exclusively the Amended And Restated Employment Agreement between the
Employee and the Company dated as of January 1, 1995, and no amendment,
modification or alteration of the terms hereof shall be binding unless the
same be in writing, dated subsequent to the date hereof and duly approved
and executed by each of the parties hereto.
IN WITNESS WHEREOF, the parties have hereunto executed this
Agreement as of the day and year first above written.
TELTRONICS, INC.
By: /s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx, Vice President-Finance
EMPLOYEE:
/s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx
STATE OF FLORIDA )
COUNTY OF MANATEE )SS.:
The foregoing instrument was acknowledged before me this 3rd day of
May, 1999, by Xxxx X. Xxxxx, Vice President-Finance of Teltronics, Inc., a
Delaware corporation, known to me personally to be such, on behalf of the
corporation.
GIVEN under my hand and seal of office the day and year aforesaid.
/s/ Xxxxx X. Xxxxxxxx
Notary Public
STATE OF FLORIDA )
COUNTY OF MANATEE )SS.:
The foregoing instrument was acknowledged before me this 3rd day of
May, 1999 by Xxxx Xxxxxxx.
GIVEN under my hand and seal of office the day and year aforesaid.
/s/ Xxxxx X. Xxxxxxxx
Notary Public
