Delaware
|
|
16-1434688
|
(State or other jurisdiction of incorporation or organization)
|
|
(I.R.S. Employer Identification Number)
|
PAR Technology Park
|
|
|
8383 Seneca Turnpike
|
|
|
New Hartford, New York
|
|
13413-4991
|
(Address of principal executive offices)
|
|
(Zip Code)
|
Large Accelerated Filer o
|
Accelerated Filer o
|
Non Accelerated Filer o
|
Smaller Reporting Company x
|
Item Number
|
|
|
Page
|
|
|
|
|
Item 1.
|
|
Financial Statements (unaudited)
|
|
|
|
|
|
|
|
1
|
|
|
|
for the three months ended March 31, 2013 and March 31, 2012
|
|
|
|
|
|
|
|
2
|
|
|
|
for the three months ended March 31, 2013 and March 31, 2012
|
|
|
|
|
|
|
|
Consolidated Balance Sheets at March 31, 2013 and
|
3
|
|
|
December 31, 2012
|
|
|
|
|
|
|
|
Consolidated Statements of Cash Flows for the three months ended
|
4
|
|
|
March 31, 2013 and March 31, 2012
|
|
|
|
|
|
|
|
5
|
|
|
|
|
|
Item 2.
|
|
13
|
|
|
|
|
|
Item 3.
|
|
20
|
|
|
|
|
|
Item 4.
|
|
20
|
|
|
|
|
|
|
|
PART II
|
|
|
|
OTHER INFORMATION
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Item 1A.
|
|
21
|
|
|
|
|
|
Item 4.
|
|
21
|
|
|
|
|
|
Item 5.
|
|
21
|
|
|
|
|
|
Item 6.
|
|
22
|
|
|
|
|
|
Signatures
|
|
|
23
|
|
|
|
|
Exhibit Index
|
|
|
24
|
|
|
|
|
|
For the three months ended March 31,
|
|||||||
|
2013
|
2012
|
||||||
Net revenues:
|
||||||||
Product
|
$
|
23,916
|
$
|
20,170
|
||||
Service
|
16,020
|
15,379
|
||||||
Contract
|
26,738
|
20,044
|
||||||
|
66,674
|
55,593
|
||||||
Costs of sales:
|
||||||||
Product
|
16,473
|
10,977
|
||||||
Service
|
11,552
|
10,565
|
||||||
Contract
|
25,479
|
18,983
|
||||||
|
53,504
|
40,525
|
||||||
Gross margin
|
13,170
|
15,068
|
||||||
Operating expenses:
|
||||||||
Selling, general and administrative
|
10,205
|
10,143
|
||||||
Research and development
|
4,140
|
3,549
|
||||||
Amortization of identifiable intangible assets
|
-
|
153
|
||||||
14,345
|
13,845
|
|||||||
|
||||||||
Operating income (loss) from continuing operations
|
(1,175
|
)
|
1,223
|
|||||
Other income (expense), net
|
(34
|
)
|
573
|
|||||
Interest expense
|
(13
|
)
|
(21
|
)
|
||||
Income (loss) from continuing operations before provision for income taxes
|
(1,222
|
)
|
1,775
|
|||||
Benefit (provision) for income taxes
|
853
|
(740
|
)
|
|||||
Income (loss) from continuing operations
|
(369
|
)
|
1,035
|
|||||
Discontinued operations
|
||||||||
Income (loss) on discontinued operations (net of tax)
|
(15
|
)
|
1,430
|
|||||
Net Income (loss)
|
$
|
(384
|
)
|
$
|
2,465
|
|||
Basic Earnings per Share:
|
||||||||
Income (loss) from continuing operations
|
(.02
|
)
|
0.07
|
|||||
Income (loss) from discontinued operations
|
(.00
|
)
|
0.09
|
|||||
Net Income (loss)
|
$
|
(.03
|
)
|
$
|
0.16
|
|||
Diluted Earnings per Share:
|
||||||||
Income (loss) from continuing operations
|
(.02
|
)
|
0.07
|
|||||
Income (loss) from discontinued operations
|
(.00
|
)
|
0.09
|
|||||
Net Income (loss)
|
$
|
(.03
|
)
|
$
|
0.16
|
|||
Weighted average shares outstanding
|
||||||||
Basic
|
15,154
|
15,083
|
||||||
Diluted
|
15,154
|
15,162
|
||||||
See accompanying notes to consolidated financial statements
|
|
For the three months ended March 31,
|
|||||||
|
2013
|
2012
|
||||||
Net income (loss)
|
$
|
(384
|
)
|
$
|
2,465
|
|||
Other comprehensive income (loss) net of tax:
|
||||||||
Foreign currency translation adjustments
|
(317
|
)
|
150
|
|||||
Comprehensive income (loss)
|
$
|
(701
|
)
|
$
|
2,615
|
|||
|
|
March 31,
|
December 31,
|
||||||
Assets
|
2013
Unaudited
|
2012
|
||||||
Current assets:
|
||||||||
Cash and cash equivalents
|
$
|
14,121
|
$
|
19,475
|
||||
Accounts receivable-net
|
28,137
|
29,890
|
||||||
Inventories-net
|
25,835
|
26,172
|
||||||
Deferred income taxes
|
12,451
|
11,037
|
||||||
Other current assets
|
3,492
|
3,236
|
||||||
Escrow receivable
|
828
|
828
|
||||||
Total current assets
|
84,864
|
90,638
|
||||||
Property, plant and equipment - net
|
5,588
|
5,857
|
||||||
Deferred income taxes
|
5,726
|
6,280
|
||||||
Goodwill
|
6,852
|
6,852
|
||||||
Intangible assets - net
|
12,316
|
11,747
|
||||||
Other assets
|
2,605
|
2,391
|
||||||
Total Assets
|
$
|
117,951
|
$
|
123,765
|
||||
Liabilities and Shareholders' Equity
|
||||||||
Current liabilities:
|
||||||||
Current portion of long-term debt
|
$
|
161
|
$
|
159
|
||||
Accounts payable
|
16,393
|
21,216
|
||||||
Accrued salaries and benefits
|
6,544
|
6,397
|
||||||
Accrued expenses
|
2,542
|
4,467
|
||||||
Customer deposits
|
885
|
1,380
|
||||||
Deferred service revenue
|
14,789
|
12,522
|
||||||
Income taxes payable
|
288
|
547
|
||||||
Total current liabilities
|
41,602
|
46,688
|
||||||
Long-term debt
|
1,043
|
1,084
|
||||||
Other long-term liabilities
|
3,429
|
3,030
|
||||||
Liabilities of discontinued operations
|
104
|
141
|
||||||
Total liabilities
|
46,178
|
50,943
|
||||||
Commitments and contingencies
|
||||||||
Shareholders' Equity:
|
||||||||
Preferred stock, $.02 par value, 1,000,000 shares authorized
|
-
|
-
|
||||||
Common stock, $.02 par value, 29,000,000 shares authorized;
|
||||||||
17,043,128 and 17,038,405 shares issued;
|
||||||||
15,335,441 and 15,330,718 outstanding
|
341
|
341
|
||||||
Capital in excess of par value
|
43,313
|
43,661
|
||||||
Retained earnings
|
34,374
|
34,758
|
||||||
Accumulated other comprehensive loss
|
(421
|
)
|
(104
|
)
|
||||
Treasury stock, at cost, 1,707,687 and 1,707,687 shares
|
(5,834
|
)
|
(5,834
|
)
|
||||
Total shareholders' equity
|
71,773
|
72,822
|
||||||
Total Liabilities and Shareholders' Equity
|
$
|
117,951
|
$
|
123,765
|
||||
|
||||||||
See accompanying notes to consolidated financial statements
|
|
For the three months ended
|
|||||||
|
March 31,
|
|||||||
|
2013
|
2012
|
||||||
Cash flows from operating activities:
|
||||||||
Net income (loss)
|
$
|
(384
|
)
|
$
|
2,465
|
|||
(Income) loss from discontinued operations
|
15
|
(1,430
|
)
|
|||||
Adjustments to reconcile net income to net cash provided by (used in)
|
||||||||
operating activities:
|
||||||||
Unrealized gain on investments
|
-
|
(361
|
)
|
|||||
Depreciation and amortization
|
544
|
825
|
||||||
Provision for bad debts
|
190
|
160
|
||||||
Provision for obsolete inventory
|
651
|
750
|
||||||
Equity based compensation
|
(346
|
)
|
165
|
|||||
Deferred income tax
|
(860
|
)
|
1,650
|
|||||
Changes in operating assets and liabilities:
|
||||||||
Accounts receivable
|
1,562
|
3,246
|
||||||
Inventories
|
(314
|
)
|
(1,414
|
)
|
||||
Income tax payable
|
(258
|
)
|
2
|
|||||
Other current assets
|
(256
|
)
|
(37
|
)
|
||||
Other assets
|
(217
|
)
|
(191
|
)
|
||||
Accounts payable
|
(4,820
|
)
|
744
|
|||||
Accrued salaries and benefits
|
146
|
(785
|
)
|
|||||
Accrued expenses
|
(1,925
|
)
|
(593
|
)
|
||||
Customer deposits
|
(495
|
)
|
(486
|
)
|
||||
Deferred service revenue
|
2,267
|
2,522
|
||||||
Other long-term liabilities
|
385
|
255
|
||||||
Net cash provided by (used in) operating activities-continuing operations
|
(4,115
|
)
|
7,487
|
|||||
Net cash used in operating activities-discontinued operations
|
(37
|
)
|
(2,281
|
)
|
||||
Net cash provided by (used in) operating activities
|
(4,152
|
)
|
5,206
|
|||||
Cash flows from investing activities:
|
||||||||
Capital expenditures
|
(184
|
)
|
(494
|
)
|
||||
Capitalization of software costs
|
(661
|
)
|
(679
|
)
|
||||
Sale of investments
|
-
|
(750
|
)
|
|||||
Proceeds from sale of business
|
-
|
4,000
|
||||||
Net cash provided by (used in) investing activities-continuing operations
|
(845
|
)
|
2,077
|
|||||
Net cash provided by (used in) investing activities-discontinued operations
|
-
|
-
|
||||||
Net cash provided by (used in) investing activities
|
(845
|
)
|
2,077
|
|||||
Cash flows from financing activities:
|
||||||||
Payments of long-term debt
|
(39
|
)
|
(485
|
)
|
||||
Proceeds from the exercise of stock options
|
(1
|
)
|
23
|
|||||
Net cash used in financing activities-continuing operations
|
(40
|
)
|
(462
|
)
|
||||
Net cash used in financing activities-discontinued operations
|
-
|
-
|
||||||
Net cash used in financing activities
|
(40
|
)
|
(462
|
)
|
||||
Effect of exchange rate changes on cash and cash equivalents
|
(317
|
)
|
145
|
|||||
Net increase (decrease) in cash and cash equivalents
|
(5,354
|
)
|
6,966
|
|||||
Cash and cash equivalents at beginning of period
|
19,475
|
7,742
|
||||||
Cash and cash equivalents at end of period
|
14,121
|
14,708
|
||||||
Less cash and equivalents of discontinued operations at end of period
|
-
|
-
|
||||||
Cash and equivalents of continuing operations at end of period
|
$
|
14,121
|
$
|
14,708
|
||||
Supplemental disclosures of cash flow information:
|
||||||||
Cash paid during the period for:
|
||||||||
Interest
|
13
|
21
|
||||||
Income taxes, net of (refunds)
|
269
|
(4
|
)
|
|||||
See accompanying notes to consolidated financial statements
|
|
March 31,
|
December 31,
|
||||||
|
2013
|
2012
|
||||||
Assets
|
||||||||
Cash
|
$
|
-
|
$
|
-
|
||||
Accounts receivable - net
|
-
|
-
|
||||||
Inventories
|
-
|
-
|
||||||
Other assets
|
-
|
-
|
||||||
Total assets of discontinued operations
|
$
|
-
|
$
|
-
|
||||
|
||||||||
Liabilities
|
||||||||
Accounts payable and accrued expenses
|
$
|
104
|
$ |
141
|
||||
Accrued salaries and benefits
|
-
|
-
|
||||||
Other liabilities
|
-
|
-
|
||||||
Total liabilities of discontinued operations
|
$
|
104
|
$
|
141
|
Operations
|
For the three months ended March 31, 2013
|
For the three months ended March 31, 2012
|
||||||
Total revenues
|
$
|
-
|
$
|
136
|
||||
|
||||||||
Loss from discontinued operations before income taxes
|
$
|
(22
|
)
|
$
|
(248
|
)
|
||
Gain on disposition
|
-
|
2,588
|
||||||
(Provision) benefit for income taxes
|
7
|
(910
|
)
|
|||||
Income (loss) from discontinued operations
|
$
|
(15
|
)
|
$
|
1,430
|
|
(in thousands)
|
|||||||
|
March 31,
|
December 31,
|
||||||
|
2013
|
2012
|
||||||
Government segment:
|
||||||||
Billed
|
$
|
11,121
|
$
|
11,226
|
||||
Advanced billings
|
(4,203
|
)
|
(3,561
|
)
|
||||
|
6,918
|
7,665
|
||||||
Hospitality segment:
|
||||||||
Accounts receivable - net
|
21,219
|
22,225
|
||||||
|
$
|
28,137
|
$
|
29,890
|
|
(in thousands)
|
|||||||
|
March 31,
|
December 31,
|
||||||
|
2013
|
2012
|
||||||
Finished Goods
|
$
|
13,084
|
$
|
13,012
|
||||
Work in process
|
503
|
352
|
||||||
Component parts
|
3,386
|
3,673
|
||||||
Service parts
|
8,862
|
9,135
|
||||||
|
$
|
25,835
|
$
|
26,172
|
|
(in thousands)
|
|||||||
|
March 31,
|
December 31,
|
||||||
|
2013
|
2012
|
||||||
Acquired and internally developed software costs
|
$
|
12,649
|
$
|
11,988
|
||||
Trademarks (non-amortizable)
|
1,800
|
1,800
|
||||||
|
14,449
|
13,788
|
||||||
Less accumulated amortization
|
(2,133
|
)
|
(2,041
|
)
|
||||
|
$
|
12,316
|
$
|
11,747
|
2013
|
$
|
1,241
|
||
2014
|
1,667
|
|||
2015
|
1,567
|
|||
2016
|
1,539
|
|||
2017
|
1,514
|
|||
Thereafter
|
2,988
|
|||
Total
|
$
|
10,516
|
For the three months
|
||||||||
|
ended March 31,
|
|||||||
|
2013
|
2012
|
||||||
Income (loss) from continuing operations
|
$
|
(369
|
)
|
$
|
1,035
|
|||
|
||||||||
Basic:
|
||||||||
Shares outstanding at beginning of period
|
15,154
|
15,051
|
||||||
Weighted average shares issued during the period, net
|
-
|
32
|
||||||
Weighted average common shares, basic
|
15,154
|
15,083
|
||||||
Income (loss) from continuing operations per common share, basic
|
$
|
(0.02
|
)
|
$
|
0.07
|
|||
Diluted:
|
||||||||
Weighted average common shares, basic
|
15,154
|
15,083
|
||||||
Dilutive impact of stock options and restricted stock awards
|
-
|
79
|
||||||
Weighted average common shares, diluted
|
15,154
|
15,162
|
||||||
Income (loss) from continuing operations per common share, diluted
|
$
|
(0.02
|
)
|
$
|
0.07
|
(in thousands)
|
||||||||
For the three months
|
||||||||
|
ended March 31,
|
|||||||
|
2013
|
2012
|
||||||
Revenues:
|
||||||||
Hospitality
|
$
|
39,936
|
$
|
35,549
|
||||
Government
|
26,738
|
20,044
|
||||||
Total
|
$
|
66,674
|
$
|
55,593
|
||||
|
||||||||
Operating income (loss) from continuing operations:
|
||||||||
Hospitality
|
$
|
(1,722
|
)
|
$
|
366
|
|||
Government
|
1,222
|
1,021
|
||||||
Other
|
(675
|
)
|
(164
|
)
|
||||
|
(1,175
|
)
|
1,223
|
|||||
Other income, net
|
(34
|
)
|
573
|
|||||
Interest expense
|
(13
|
)
|
(21
|
)
|
||||
Income from continuing operations before provision for income taxes
|
$
|
(1,222
|
)
|
$
|
1,775
|
|||
|
||||||||
Depreciation and amortization:
|
||||||||
Hospitality
|
$
|
369
|
$
|
743
|
||||
Government
|
12
|
19
|
||||||
Other
|
163
|
63
|
||||||
Total
|
$
|
544
|
$
|
825
|
||||
|
||||||||
Capital expenditures:
|
||||||||
Hospitality
|
$
|
772
|
$
|
1,131
|
||||
Government
|
-
|
-
|
||||||
Other
|
73
|
42
|
||||||
Total
|
$
|
845
|
$
|
1,173
|
||||
|
||||||||
Revenues by geographic area:
|
||||||||
United States
|
$
|
58,015
|
$
|
48,365
|
||||
Other Countries
|
8,659
|
7,228
|
||||||
Total
|
$
|
66,674
|
$
|
55,593
|
|
(in thousands)
|
|||||||
|
March 31,
2013
|
December 31,
2012
|
||||||
|
||||||||
Identifiable assets:
|
||||||||
Hospitality
|
$
|
82,248
|
$
|
88,298
|
||||
Government
|
8,115
|
9,012
|
||||||
Other
|
27,588
|
26,455
|
||||||
Total
|
$
|
117,951
|
$
|
123,765
|
|
(in thousands)
|
|||||||
|
March 31,
|
December 31,
|
||||||
|
2013
|
2012
|
||||||
United States
|
$
|
101,308
|
$
|
107,149
|
||||
Other Countries
|
16,643
|
16,616
|
||||||
Total
|
$
|
117,951
|
$
|
123,765
|
|
(in thousands)
|
|||||||
|
March 31,
|
December 31,
|
||||||
|
2013
|
2012
|
||||||
Hospitality
|
$
|
6,116
|
$
|
6,116
|
||||
Government
|
736
|
736
|
||||||
Total
|
$
|
6,852
|
$
|
6,852
|
|
For the Three Months Ended March 31,
|
|||||||
|
2013
|
2012
|
||||||
Hospitality segment:
|
||||||||
McDonald's Corporation
|
13
|
%
|
16
|
%
|
||||
Yum! Brands, Inc.
|
15
|
%
|
14
|
%
|
||||
Government segment:
|
||||||||
U.S. Department of Defense
|
40
|
%
|
36
|
%
|
||||
All Others
|
32
|
%
|
34
|
%
|
||||
|
100
|
%
|
100
|
%
|
(a) | Evaluation of Disclosure Controls and Procedures. |
(b) | Changes in Internal Control over Financial Reporting. |
Exhibit No.
|
Description of Instrument
|
10.1*+
|
Employment Offer Letter dated March 21, 2013 between Registrant and Ronald J. Casciano
|
10.2*+
|
Employment Offer Letter dated March 21, 2013 between Registrant and Robert P. Jerabeck
|
10.3*+
|
Employment Offer Letter dated March 21, 2013 between Registrant and Karen E. Sammon
|
10.4*+
|
Separation Letter Agreement dated March 25, 2013 between Registrant and Paul B. Domorski
|
|
Certification of President & Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
Certification of Vice President, Controller and Chief Accounting Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
Certification of President & Chief Executive Officer and Vice President, Controller and Chief Accounting Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
*
|
Indicates a management contract or compensatory plan or arrangement.
|
+
|
Portions of this exhibit have been omitted and filed separately with the U.S. Securities and Exchange Commission pursuant to a request for confidential treatment.
|
|
|
PAR TECHNOLOGY CORPORATION
|
|
|
(Registrant)
|
|
|
|
|
|
|
Date: May 8, 2013
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/STEVEN M. MALONE
|
|
|
Steven M. Malone
|
|
|
Vice President, Controller, and Chief Accounting Officer
|
Exhibit No.
|
Description of Instrument
|
Sequential Page Number
|
10.1*+
|
Employment Offer Letter dated March 21, 2013 between Registrant and Ronald J. Casciano
|
E-1
|
10.2*+
|
Employment Offer Letter dated March 21, 2013 between Registrant and Robert P. Jerabeck
|
E-2
|
10.3*+
|
Employment Offer Letter dated March 21, 2013 between Registrant and Karen E. Sammon
|
E-3
|
10.4*+
|
Separation Letter Agreement dated March 25, 2013 between Registrant and Paul B. Domorski
|
E-4
|
31.1
|
Certification of President & Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
E-5
|
31.2
|
Certification of Vice President, Controller and Chief Accounting Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
E-6
|
32.1
|
Certification of President & Chief Executive Officer and Vice President, Controller and Chief Accounting Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
E-7
|
*
|
Indicates a management contract or compensatory plan or arrangement.
|
|
+
|
Portions of this exhibit have been omitted and filed separately with the U.S. Securities and Exchange Commission pursuant to a request for confidential treatment.
|
|
·
|
Health, Dental, and Vision Insurance
|
·
|
Supplemental Short-Term Disability Insurance
|
·
|
Long-Term Disability Insurance
|
·
|
Supplemental Life Insurance
|
·
|
Spouse and child/children life insurance
|
·
|
Flexible Spending Accounts for Unreimbursable Medical Expenses and Dependent Care
|
·
|
New York State Disability Insurance
|
·
|
Life Insurance
|
·
|
PAR's Wellness Program
|
·
|
PAR Technology Corporation Retirement Plan including: a 401(k) – matched by company at 10% of employee contribution, with automatic enrollment at 3% level, and profit sharing with 100% contribution by company at the sole discretion of the Board based on financial results.
|
·
|
Paid Holidays (7)
|
·
|
Signing Company's Employment Agreement (See enclosed).
|
·
|
Compliance with federal I-9 requirements (please bring suitable documentation with you within your first three days of work verifying your identity and legal authorization to work in the United States).
|
·
|
Verification of the information contained in your employment application, including satisfactory references.
|
·
|
Successfully passing a pre-employment drug-screening and favorable results from a criminal background check.
|
·
|
Health, Dental, and Vision Insurance
|
·
|
Supplemental Short-Term Disability Insurance
|
·
|
Long-Term Disability Insurance
|
·
|
Supplemental Life Insurance
|
·
|
Spouse and child/children life insurance
|
·
|
Flexible Spending Accounts for Unreimbursable Medical Expenses and Dependent Care
|
·
|
New York State Disability Insurance
|
·
|
Life Insurance
|
·
|
PAR's Wellness Program
|
·
|
PAR Technology Corporation Retirement Plan including: a 401(k) – matched by company at 10% of employee contribution, with automatic enrollment at 3% level, and profit sharing with 100% contribution by company at the sole discretion of the Board based on financial results.
|
·
|
Paid Holidays (7)
|
·
|
Signing Company's Employment Agreement (See enclosed).
|
·
|
Compliance with federal I-9 requirements (please bring suitable documentation with you within your first three days of work verifying your identity and legal authorization to work in the United States).
|
·
|
Verification of the information contained in your employment application, including satisfactory references.
|
·
|
Successfully passing a pre-employment drug-screening and favorable results from a criminal background check.
|
·
|
Written verification from an authorized senior officer of Cbord that there are no non-compete or other agreements or obligations in place which would preclude you from working for ParTech, Inc. in the position herein offered
|
1. | Resignation and Termination. You informed us on March 19, 2013, of your resignation from the Board of Directors of the Company and from your position as Chairman of the Board and Chief Executive Officer of the Company effective as of the close of business on March 19, 2013 (the "Resignation Date"). You have indicated your resignation is not the result of any disagreement with the Company on any matter relating to the Company's operations, policies or practices. Effective with your resignation, you no longer are a member of any board or internal management committee of the Company and you have no authority to take any action on behalf of or otherwise bind the Company. As soon as practicable, you will receive your final payment of earned salary (accrued through the end of business on March 31, 2013, and net of taxes and customary deductions for benefits), as well as a payment equal to the pro rata after-tax dollar amount of unused vacation time you have earned. |
2. | Payment Post-Termination. If you have executed this Agreement and the General Release in the form attached hereto as Attachment A ("General Release") and have not revoked such execution after seven days from the date of this Agreement and the attached General Release, and the Agreement and General Release thereby become effective, the Company, no later than April 2, 2013, will make to you a single cash payment of $750,000.00, less amounts withheld for federal and state income taxes. You acknowledge and agree this payment differs from and is in excess of the total payments and benefits you would otherwise be eligible to receive upon termination, absent this Agreement. |
3. | Post-Termination Medical Coverage. Following your execution of this Agreement, you will be eligible for the health benefit provisions of the Consolidated Omnibus Budget Reconciliation Act (COBRA). You agree to pay all costs associated with such extended coverage. Additional information concerning post-termination medical coverage will be provided to you under separate cover. |
4. | Forfeiture of Unvested Equity Interests. As of the close of business on March 25, 2013, you will (a) forfeit all unvested options for the purchase of shares of Company common stock, and (b) exchange the unvested shares of restricted stock held by you for an amount equal to the product of the par value of each such share and the number of shares you hold. Consistent with the terms of the Company's stock option plan, you will have 90 days after the Resignation Date to exercise your vested options for the purchase of shares of Company common stock, after which the options will expire without value. Any such exercise and any sale restriction on the shares of Company common stock you purchased will no longer apply following the close of trading on the first full trading day following the public release of the Company's first quarter 2013 financial results. |
5. | Pension, 401(k) Plans and Other Plans and Programs. |
(a) | Your account balances under the Company's qualified and non-qualified pension plans in which you are a participant are vested and shall remain unaffected by this Agreement. Additional information concerning your pension and 401(k) plan benefits will be provided to you under separate cover. |
(b) | Any other amounts or benefits that are vested benefits or that you are otherwise entitled to receive under any plan, policy, practice or program of the Company (including expense reimbursements and accrued vacation) shall be payable to you in accordance with such plan, policy, practice or program; provided that in no event shall you be entitled to any severance pay under any such plan, program, practice or policy. |
6. | Company Credit Card. You agree to pay any unpaid, outstanding balance due on the credit card issued to you as soon as practicable. |
7. | Claims. You represent, as of the date you have signed this Agreement, you have not filed, directly or indirectly, nor caused to be filed, any Claims (as defined in the accompanying General Release) against the Company or the Releasees (as defined in the General Release) in any forum, including federal, state or local court or in arbitration, any administrative proceeding with any federal, state or local administrative agency, or the Company's dispute resolution procedure. You agree to waive your right to any monetary or other recovery of any kind, should any administrative agency or third party pursue any claims on your behalf. |
8. | Non-Solicitation of Company Employees. |
(a) | For a period of two years following the Resignation Date, you will not, without the Company's written consent, directly or indirectly, yourself or on behalf of a third party, take any intentional action to solicit, recruit, hire, employ engage or induce or encourage any individual who was a Company employee as of the Resignation Date to terminate his or her employment with the Company and become employed or engaged as an owner, principal, partner, member, officer, director, consultant, agent or representative elsewhere. However, the foregoing restrictions shall not prohibit any entity with whom you may have an employment, principal or consulting relationship (each an "Employing Entity") from (x) soliciting for employment (i) any persons who respond to a general solicitation or advertisement that is not specifically directed to Company employees or any specific group of Company employees; (ii) any persons who are referred to such Employing Entity by search firms or employment agencies; provided such search firms and employment agencies have not been advised by you, directly or indirectly, to approach such persons; (iii) any persons whose employment has been involuntarily terminated by the Company after the Resignation Date; or (iv) your administrative assistant(s) as of the Resignation Date, or (y) offering employment to any of the foregoing or to any person who pursues such an offer without having been solicited by the Employing Entity or by you. |
(b) | You acknowledge and agree that given the role and opportunity you have enjoyed with the Company, the covenants contained in this paragraph 8 are reasonable, constitute an important part of the Company's consideration provided to you under this Agreement, and will not unnecessarily or unreasonably restrict your professional opportunities. |
9. | Non-Disparagement. |
(a) | You agree not to disparage or denigrate the Company or, subject to subparagraph 9(b) below, its directors or executive officers orally or in writing. The Company agrees not to disparage or denigrate you or your agents, assignees, attorneys, family members, heirs, executors or administrators orally or in writing, and agrees to use its reasonable best efforts to cause its directors and executive officers not to disparage or denigrate you or your agents, assignees, attorneys, heirs, executors or administrators. |
(b) | Notwithstanding the foregoing provisions of subparagraph 9(a), it shall not be a violation of this paragraph 9: (i) for any person to make truthful statements when required by order of a court or other body having jurisdiction, or as otherwise may be required by law or under an agreement entered into in connection with pending or threatened litigation pursuant to which the party receiving such information agrees to keep such information confidential, or (ii) for you to respond to any disparaging or denigrating comment made by any director or executive officer. |
10. | Proprietary Information. You agree to return all Company property in your possession, custody or control. You further agree all proprietary or confidential information or trade secrets concerning the Company or its businesses, products, services or employees, including but not limited to information concerning business strategies or plans, systems, products and services and their development, technical information, marketing, sales activities and procedures, promotion and pricing techniques, cost, credit and financial data, and customer, client, vendor, and employee information ("Proprietary Information") is the exclusive property of the Company. You agree you have an ongoing obligation not to disclose or use, either directly or indirectly, any such Proprietary Information for any reason, unless required by a statute, by a court of law, by any governmental agency or self-regulatory organization having supervisory authority over the Company or its businesses, or by any administrative or legislative body (including a committee thereof) with jurisdiction to order you to divulge, disclose or make accessible such information. Prior to any disclosure, however, you shall give notice to the Company of any such request or demand for Proprietary Information promptly upon your receipt of same and shall reasonably cooperate with the Company in any application it may make seeking a protective order barring disclosure of such Proprietary Information. |
11. | Cooperation. |
(a) | You agree to cooperate with the Company and its attorneys as may be reasonably required concerning any past, present or future legal matters that relate to or arise out of your employment with the Company, with the understanding any meetings you are requested to attend are scheduled during normal business hours at mutually agreeable times. The Company agrees to reimburse you for any and all reasonable costs and expenses (including but not limited to reasonable attorney's fees) you may incur in connection with such cooperation. |
(b) | You shall be indemnified for acts and omissions occurring on or prior to the Resignation Date to the fullest extent permitted under applicable law. The Company agrees, for purposes of this subparagraph 11(b), it shall interpret and/or apply any provision of applicable law and the Company's By-laws (including advancement of expenses and, in this connection, you agree to sign an appropriate undertaking as to the repayment of any such advances) with respect to you in a manner consistent with how such provision is interpreted and applied by the Company to then active executive officers of the Company. You shall be covered under the Company's directors' and officers' liability insurance policies in effect from time to time on the same basis that other former directors and officers are covered. |
(a) | Notwithstanding anything to the contrary in this Agreement, and without limiting any remedies at law or in equity that may be available to the Company or you as provided herein or otherwise, you and the Company acknowledge and agree a remedy at law for any breach or threatened breach of any covenant contained in paragraph 8 above would be inadequate and monetary damages would be difficult to calculate and that for any such breach or threatened breach, a court of law may award an injunction, restraining order or other equitable relief, restraining you from committing or continuing to commit such breach. |
(b) | It is expressly understood and agreed that if a final determination is made by a court of law that the time or any other restriction contained in paragraph 8 above is an unenforceable restriction against you, then the provisions of paragraph 8 above shall not be rendered void but shall be deemed amended to apply as to such maximum time and to such other maximum extent as such court may determine or indicate to be enforceable. Alternatively, if any such court finds that any restriction contained in paragraph 8 above is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any other provision of this Agreement. |
(c) | Except as provided in subparagraph 12(a), any controversy, dispute or claim arising out of or relating to this Agreement, any other agreement or arrangement between you and the Company, your employment with the Company, or the termination thereof (collectively, "Covered Claims") shall be resolved by binding arbitration, to be held in the Borough of Manhattan in New York City, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. |
(d) | In no event shall you be obligated to seek other employment or take any other action by way of mitigation of the amounts payable under this Agreement. There shall be no offset by the Company against your entitlements under this Agreement for any compensation or other amounts that you earn from subsequent employment or engagement of your services nor on account of any claim the Company may have against you. |
13. | Partial Invalidity. Except with respect to the attached General Release, the invalidity or unenforceability of any provision of this Agreement shall have no effect upon, and shall not impair the validity or enforceability of, any other provision of this Agreement. |
14. | Voluntary and Authorized Agreement. |
(a) | You acknowledge and agree (i) you have read and understand each of the provisions of this Agreement; and (ii) you are hereby advised to consult with an attorney prior to signing this Agreement. |
(b) | Once you sign this Agreement, you have seven calendar days to revoke it. You may do so by delivering to the Company written notice of your revocation within the seven-day revocation period. This Agreement will be a valid and binding obligation of you on the eighth day after you sign it, provided you have not revoked it during the seven-day revocation period. |
(c) | The Company represents and warrants to you (i) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized and approved on behalf of the Company by its Board of Directors and all corporate action required to be taken by the Company for the execution, delivery and performance of this Agreement has been duly and effectively taken; (ii) the director or officer signing this Agreement on behalf of the Company is duly authorized to do so; (iii) the execution, delivery and performance of this Agreement by the Company does not violate any applicable law, regulation, order, judgment, decree or other obligation or any agreement, plan or corporate governance document to which the Company is a party or by which it or its directors are bound; and (iv) upon execution and delivery of this Agreement by the parties, it shall be a valid and binding obligation of the Company enforceable against it in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally. |
15. | Voluntary General Release. |
(a) | You acknowledge and agree you are hereby advised to consult with an attorney prior to signing the General Release. |
(b) | Once you sign the General Release, you will have seven calendar days to revoke it. You may do so by delivering to the Company's General Counsel written notice of your revocation within the seven-day revocation period. The General Release will become effective on the eighth day after you sign it, provided you have not revoked it during the seven-day revocation period. |
16. | Governing Law; Taxes. This Agreement shall be governed by the laws of the State of New York (regardless of conflict of laws principles) as to all matters including without limitation validity, construction, effect, performance and remedies, except to the extent that such laws are preempted by federal law. You and the Company agree (i) payment provided in paragraph 2 is exempt from the deferred compensation provisions of Internal Revenue Code Section 409A, and (ii) each party's tax filings will be consistent with the application of such exemption. |
17. | Notices. All notices, requests and other communications under this Agreement and the General Release will be in writing (including facsimile or similar writing) to the applicable address (or to such other address as to which notice is given in accordance with this paragraph 18). |
If to you:
|
Paul B. Domorski
[ ***]
[ ***]
|
|
|
|
|
If to the Company:
|
PAR Technology Corporation
8383 Seneca Turnpike
New Hartford, NY 13413-4991
Attention: General Counsel
|
18. | Transferability. This Agreement shall be binding upon any successor to the Company, whether by merger, consolidation, purchase of assets or otherwise. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any person or entity, other than the parties hereto and their respective successors and assigns, which in your case will include your heirs and/or your estate. |
19. | Counterparts. This Agreement may be executed in counterparts. |
20. | Entire Agreement. This Agreement and the accompanying General Release set forth the entire agreement and understanding relating to your employment relationship with and termination from the Company; supersedes all prior discussions, negotiations, and agreements concerning your employment with the Company and separation therefrom; and may not be amended except by mutual written agreement. |
PAR Technology Corporation
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
Date:
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Date:
|
|
|
|
1. (a) | On behalf of myself, my agents, assignees, attorneys, heirs, executors, and administrators, I hereby release the Company and its predecessors, successors and assigns, its and their current and former parents, affiliates, subsidiaries, divisions and joint ventures, and all of their respective current and former officers, directors, employees, and agents, in their capacity as Company representatives (individually and collectively, "Releasees") from any and all controversies, claims, demands, promises, actions, suits, grievances, proceedings, complaints, charges, liabilities, damages, debts, taxes, allowances, and remedies of any type, including but not limited to those arising out of my employment with the Company (individually and collectively, "Claims") that I may have by reason of any matter, cause, act, or omission. This release applies to Claims I know about and those I may not know about occurring at any time on or before the date of execution of this General Release. |
(b) | This General Release includes a release of all rights and Claims under, as amended, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Rehabilitation Act of 1973, the Civil Rights Acts of 1866 and 1991, the Americans with Disabilities Act of 1990, the Employee Termination Income Security Act of 1974, the Equal Pay Act of 1963, the Family and Medical Leave Act of 1993, the Fair Labor Standards Act of 1938, the Older Workers Benefit Protection Act of 1990, the Occupational Safety and Health Act of 1970, the Worker Adjustment and Retraining Notification Act of 1989, the Sarbanes-Oxley Act of 2002, and the New York State Human Rights Act, as well as any other federal, state, or local statute, regulation, or common law regarding employment, employment discrimination, termination, retaliation, equal opportunity, or wage and hour. I specifically understand I am releasing Claims based on age, race, color, sex, sexual orientation or preference, marital status, religion, national origin, citizenship, veteran status, disability and other legally protected categories. |
(c) | This General Release also includes a release of any Claims for breach of contract, any tortious act or other civil wrong, attorneys' fees, and all compensation and benefit claims including without limitation Claims concerning salary, bonus, and any award(s), grant(s), or purchase(s) under any equity and incentive compensation plan or program. |
(d) | In addition, I am waiving my right to pursue any Claims against the Company and Releasees under any applicable dispute resolution procedure, including any arbitration policy. |
2. | I acknowledge (a) I have been advised to consult with an attorney regarding the terms of this General Release prior to executing it, (b) I have seven calendar days from the date of execution to deliver written notice of my revocation of the Agreement and this General Release to the Company's General Counsel, (c) I fully understand all of the terms and conditions of this General Release, (d) I understand nothing contained herein contains a waiver of claims arising after the date of execution of this General Release, and (e) I am entering into this General Release knowingly, voluntarily, and of my own free will. I further understand my revocation of the Agreement and this General Release will render me ineligible for the payments and benefits described herein and in the Agreement. |
3. | I understand, once I sign and return this General Release to the Company, I have seven calendar days to revoke it. I may do so by delivering to the Company written notice of my revocation within the seven-day revocation period (the "Revocation Period"). This General Release will become effective on the eighth day after I sign and return it to the Company ("Effective Date"), provided I have not revoked it during the Revocation Period. |
|
|
|
|
By:
|
|
|
|
|
|
|
|
Date:
|
|
|
|
|
|
|
1. | I have reviewed this report on Form 10-Q of PAR Technology Corporation; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)), for the registrant and have: |
a. | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
b. | Designed such internal control over financial reporting, or caused such internal control over financial |
c. | Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluations; and |
d. | Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and |
5. | The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing equivalent functions): |
a. | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and |
b. | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. |
Date: May 8, 2013
|
/s/Ronald J. Casciano
|
|
Chief Executive Officer and President
|
1. | I have reviewed this report on Form 10-Q of PAR Technology Corporation; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)), for the registrant and have: |
a. | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
b. | Designed such internal control over financial reporting, or caused such internal control over financial |
c. | Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluations; and |
d. | Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and |
5. | The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing equivalent functions): |
a. | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and |
b. | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. |
Date: May 8, 2013
|
/s/Steven M. Malone
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Steven M. Malone
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Vice President, Controller and Chief Accounting Officer
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1. | The Report fully complies with the requirement of section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and |
2. | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
/s/Ronald J. Casciano
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Ronald J. Casciano
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Chief Executive Officer and President
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May 8, 2013
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/s/Steven M. Malone
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Steven M. Malone
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Vice President, Controller and Chief Accounting Officer
May 8, 2013
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Stock Based Compensation (Details) (USD $)
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3 Months Ended | |
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Mar. 31, 2013
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Mar. 31, 2012
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Share-based Compensation Arrangement by Share-based Payment Award [Line Items] | ||
Total stock-based compensation expense | $ (346,000) | $ 165,000 |
Stock-based compensation expense, tax benefit | 462,000 | |
Unrecognized compensation expense | $ 150,000 | |
2005 Equity Incentive Plan [Member] | Restricted Stock [Member]
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Share-based Compensation Arrangement by Share-based Payment Award [Line Items] | ||
Number of shares authorized under plan approved by directors (in shares) | 183,000 |
Accounts Receivable
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3 Months Ended | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Mar. 31, 2013
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Accounts Receivable [Abstract] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Accounts Receivable |
At March 31, 2013 and December 31, 2012, the Company had recorded allowances for doubtful accounts of $525,000 and $541,000, respectively, against Hospitality accounts receivable. |