Exhibit 4.1
DESCRIPTION
OF THE REGISTRANT’S SECURITIES
REGISTERED PURSUANT TO SECTION 12 OF THE
SECURITIES EXCHANGE ACT OF 1934
(as updated, March 29, 2021)
Communications Systems, Inc. (“CSI,”
“we,” “our,” or “us”) has one class of securities registered under Section 12 of the Securities
Exchange Act of 1934, as amended: our common stock.
DESCRIPTION
OF CAPITAL STOCK
The following summary of the general terms
and provisions of our capital stock does not purport to be complete and is based upon and qualified by reference to our articles
of incorporation and bylaws, which are either filed as exhibits to our Annual Report on Form 10-K or are incorporated by reference
to our Annual Report on Form 10-K. We encourage you to read our articles of incorporation, our bylaws and the applicable provisions
of the Minnesota Business Corporation Act, or MBCA, for additional information.
Authorized Shares of Capital Stock
The aggregate number of shares of capital
stock that the Company has authority to issue is as follows
3,000,000 shares of preferred stock, $1.00
par value
30,000,000 shares of common stock, par
value $.05
Preferred Stock
We have no preferred stock outstanding.
Common Stock
Holders of the Company’s common stock
are entitled to one vote for each share held of record on all matters submitted to a vote of the shareholders and do not have cumulative
voting rights. Except as otherwise provided by law, our articles of incorporation or our bylaws, matters will generally be decided
by the vote of the holders of a majority of the voting power present in person or represented by proxy. Our bylaws provide that
the authorized number of directors will be fixed by the shareholders at each annual meeting and that either the shareholders or
the board of directors may increase or decreases the number of directors. Our board of directors is not classified.
Holders of our common stock are entitled
to receive dividends declared by our board of directors out of funds legally available for the payment of dividends. In the event
of any liquidation, dissolution or winding-up of our affairs, holders of common stock will be entitled to share ratably in our
assets that are remaining after payment or provision for payment of all of our debts and obligations.
Holders of common stock have no preemptive,
conversion or subscription rights, and there are no redemption provisions applicable to the common stock.
All outstanding shares of our common stock
are fully paid and nonassessable.
The transfer agent and registrar for our
common stock is Equiniti Trust Company, 1110 Centre Pointe Curve, Suite 101, South St. Paul, Minnesota 55120-4100
Our common stock is currently listed on
The NASDAQ Stock Market LLC under the trading symbol “JCS.”
Anti-Takeover Effects of Provisions of our Articles of
Incorporation, our Bylaws and Minnesota Law
Specific provisions of Minnesota law, our
articles of incorporation and our bylaws may be deemed to have an anti-takeover effect.
The Company’s Bylaws of the Company
establish an advance notice procedure with regard to (i) certain business to be brought before an annual meeting of shareholders
of the Company and (ii) the nomination by shareholders of candidates for election as directors.
Properly Brought Business
The Bylaws provide that at the annual meeting
only such business may be conducted as is of a nature that is appropriate for consideration at an annual meeting and has been either
specified in the notice of the meeting, otherwise properly brought before the meeting by or at the direction of the Board of Directors,
or otherwise properly brought before the meeting by a shareholder who has given timely written notice to the Secretary of the Company
of the shareholder’s intention to bring the business before the meeting. To be timely, the notice must be given by such shareholder
to the Secretary of the Company not less than 45 days or more than 75 days prior to a meeting date corresponding to the previous
year’s annual meeting. Notice relating to the conduct of such business at an annual meeting must contain certain information
as described in Section 2.9 of the Company’s Bylaws, which are available for inspection by shareholders at the Company’s
principal executive offices pursuant to Section 302A.441, subd. 4 of the Minnesota Statutes. Nothing in the Bylaws precludes discussion
by any shareholder of any business properly brought before the annual meeting in accordance with the Company’s Bylaws.
Shareholder Nominations
The Bylaws provide that a notice of proposed
shareholder nominations for the election of directors must be timely given in writing to the Secretary of the Company prior to
the meeting at which directors are to be elected. To be timely, the notice must be given by the shareholder to the Secretary of
the Company not less than 45 days or more than 75 days prior to a meeting date corresponding to the previous year’s annual
meeting. The notice to the Company from a shareholder who intends to nominate a person at the meeting for election as a director
must contain certain information as described in Section 3.7 of the Company’s Bylaws, which are available for inspection
by shareholders as described above. If the presiding officer of a meeting of shareholders determines that a person was not nominated
in accordance with the foregoing procedure, that person will not be eligible for election as a director.
Shareholder Meetings
Under our bylaws, regular meetings of our
shareholders may be called only by our board of directors, or by written consent of all the shareholders entitled to vote at the
annual meeting. If the Board fails to designate a time for a regular meeting for any consecutive period of 15 months, the board
must cause such regular meeting to be called within 90 days of receipt of the written demand of any shareholder owning one percent
or more of all voting shares of the corporation
Under our bylaws, special meetings of our
shareholders may be called by the Chief Executive Officer, the Chief Financial Officer, any two or more directors, or upon request
by shareholders holding ten percent or more of the voting power of the shareholders.
Voting Percentage Approval Required for Designated Action
In addition to any affirmative vote required
by law or the Company’s Articles of Incorporation, the following actions require the affirmative vote of not less than two
thirds of the votes entitled to be cast by the holders of all then outstanding shares of voting stock, voting together as a single
class:
(a) any sale, lease, mortgage, pledge,
transfer, exchange or other disposition of all or substantially all of the property and assets of the corporation to any person;
(b) any reclassification of securities
(including any combination of shares or reverse stock split), or recapitalization or reorganization of the corporation, or any
merger, consolidation or statutory exchange of shares of the corporation or any subsidiary with any other corporation (other than
a merger of a wholly owned subsidiary of the corporation into the corporation or the merger of two or more wholly owned subsidiaries
of the corporation;
(c) the adoption of plan or proposal for
the liquidation or dissolution of the corporation; and
(d) any agreement, contract or other arrangement
or understanding providing for one or more of the foregoing.
In addition to any affirmative vote required
by law or the Company’s Articles of Incorporation, a Business Combination (as defined in the Articles of Incorporation) requires
the affirmative vote of not less than 80% of the votes entitled to be cast by the holders of all then outstanding shares of voting
stock, voting together as a single class. This requirement is not applicable, however, if the particular Business Combination is
either (a) approved a majority of the Company’s Continuing Directors (as defined in the Articles of Incorporation), or (b)
meets specific requirements with respect to price and approval process. Repeal or amendment of this requirement in the Articles
of incorporation requires affirmative vote of not less than 80% of the votes entitled to be cast by the holders of all then outstanding
shares of voting stock, voting together as a single class.
Provisions of Minnesota Law
The following provisions of the MBCA may
have an effect of delaying, deterring or preventing an unsolicited takeover of the Company or make an unsolicited takeover of the
Company more difficult.
MBCA Section 302A.553 [Power to acquire
shares] subd 3, [limitation on share purchases] prohibits a publicly held corporation such as CSI from purchasing shares
entitled to vote for more than market value from a person that beneficially owns more than 5% of the voting power of the corporation
if the shares have been beneficially owned for less than two years unless the purchase or agreement to purchase is approved at
a meeting of shareholders by the affirmative vote of the holders of a majority of the voting power of all shares entitled to vote
or the corporation makes an offer, of at least equal value per share, to all shareholders for all other shares of that class or
series and any other class or series into which they may be converted.
MBCA Section 302A.671 [Control share
acquisitions] provides that shares of an “issuing public corporation,” such as CSI acquired by an “acquiring
person” in a “control share acquisition” that exceed the threshold of voting power of any of the three ranges
identified below will not have voting rights, unless the issuing public company’s shareholders vote to accord these shares
the voting rights normally associated with these shares. A “control share acquisition” is an acquisition, directly
or indirectly, by an “acquiring person” (as defined in the MBCA) of beneficial ownership of shares of an issuing public
corporation that, but for Section 302A.671, would, when added to all other shares of the issuing public corporation beneficially
owned by the acquiring person, entitle the acquiring person, immediately after the acquisition, to exercise or direct the exercise
of a new range of voting power of the issuing public corporation with any of the following three ranges: (i) at least 20 percent
but less than 33-1/3 percent; (ii) at least 33-1/3 percent but less than or equal to 50 percent; and (iii) over 50 percent. The
issuing public company also has an option to call for redemption all, but not less than all, shares acquired in the control share
acquisition that exceed the threshold of voting power of any of the specified ranges at a price equal to the fair market value
of the shares at the time the call is given if (i) the acquiring person fails to deliver the information statement to the issuing
public company by the tenth day after the control share acquisition; or (ii) shareholders have voted not to accord voting rights
to the shares acquired in the control share acquisition.
MBCA Section 302A.673 [Business combinations]
prohibits a public Minnesota corporation, such as Electro-Sensors, Inc. from engaging in a business combination with an interested
shareholder for a period of four years after the date of the transaction in which the person became an interested shareholder,
unless either (i) the business combination or(ii) the acquisition by which the person becomes an interested shareholder is approved
in a prescribed manner before the person became an interested shareholder. The term “business combination” includes
mergers, asset sales and other transactions resulting in a financial benefit to the interested shareholder. An “interested
shareholder” is a person who is the beneficial owner, directly or indirectly, of 10% or more of a corporation’s voting
stock, or who is an affiliate or associate of the corporation, and who, at any time within four years before the date in question,
was the beneficial owner, directly or indirectly, of 10% or more of the corporation’s outstanding voting stock.1
If a takeover offer is made for our stock,
MBCA Section 302A.675 [Takeover offer; fair price] precludes the offeror from acquiring additional shares of stock (including
in acquisitions pursuant to mergers, consolidations or statutory share exchanges) within two years following the completion of
the takeover offer, unless shareholders selling their shares in the later acquisition are given the opportunity to sell their shares
on terms that are substantially the same as those contained in the earlier takeover offer. A “takeover offer” is a
tender offer that results in an offeror who owned ten percent or less of a class of our shares acquiring more than ten percent
of that class, or that results in the offeror increasing its beneficial ownership of a class of our shares by more than ten percent
of the class, if the offeror owned ten percent or more of the class before the takeover offer. Section 302A.675 does not apply
if a committee of our board of directors formed in accordance with Section 302A.675 approves the proposed acquisition before any
shares are acquired pursuant to the earlier tender offer.
Exhibit 10.12
EMPLOYMENT AGREEMENT
This Employment Agreement (“Agreement”)
is effective as of the 1st day of December 2020 (“Effective Date”), by and between Communications Systems, Inc., a
Minnesota corporation (the “Company”) and Anita Kumar (the “Employee”).
A. The
Company desires to hire Employee as detailed below. Employee has thoroughly reviewed and considered the terms of this Employment
Agreement, and accepts all terms set forth below.
B. During
her employment, Employee will have access to extremely sensitive confidential, proprietary and trade secret information relating
to the Company, its employees, and its customers. As a result, Employee’s employment with the Company is strictly conditioned
on Employee agreeing to the confidentiality provisions and post-employment restrictions in this Agreement. Employee has reviewed,
considered, and accepts all such provisions as set forth below.
In consideration of the foregoing, and other
good and valuable consideration, the receipt and sufficiency of which are acknowledged by the Company and Employee, the parties
agree as follows:
1.
Employment Duties; No Conflict; Contingency. The Company hereby employs Employee and Employee accepts such employment.
Employee agrees to perform the duties consistent with her position and other duties as may be requested by the Company from time
to time. Employee will perform her duties with a high level of professionalism and integrity. Employment pursuant to this Agreement
is subject to all Company policies in effect throughout Employee’s employment. During the term of this Agreement, Employee
will not render or perform services for any other corporation, firm, entity or person that are inconsistent with the provisions
of this Agreement except as expressly permitted by the Company in writing.
2.
Employment at Will. Employee’s employment with the Company is at-will and continues until terminated by the
Company or Employee for any reason. The “Termination Date” shall mean the date of cessation of the Employee’s
employment with the Company (whether voluntarily or involuntarily) without regard to any notice of termination or pay in lieu of
notice of termination. The first ninety (90) days of employment shall be considered a probationary period, which period does not
alter the at-will nature of employment.
3.
Compensation.
(a) Base Salary. The Company shall pay Employee base salary in the annualized amount of $280,000 (“Base
Salary”), less applicable taxes and withholding, payable in accordance with the Company’s standard payroll practices.
(b)
Employee Bonus Program. Employee shall be eligible for the Company’s Employee Bonus Program. Employee’s
potential bonus shall be up to fifty-five percent (55%) of Employee’s Base Salary. Any Bonus payable under this Section 3(b)
shall be paid as a lump sum by March 15 (“Bonus Pay Date”) of the calendar year following the year for which the Bonus
was calculated. The Employee Bonus Program is discretionary based on goals established by the Company’s Board of Directors
and may be changed from time to time.
(c) Change
in Control Benefits. Employee shall be entitled to change in control benefits as set forth in the Communications Systems, Inc.
Change in Control Agreement attached as Exhibit A.
(d) Stock
Options. Employee will be granted options for 25,000 shares of the Company’s common stock subject to vesting and other
terms to be provided.
(e) Restricted
Stock Units. Employee will be granted 5,000 restricted stock units subject to terms to be provided.
(f)
Benefits. Employee shall be entitled to participate in all employee benefit plans or programs offered by the
Company to all its employees, subject to the eligibility requirements and terms of such plans or programs, including, as of the
Effective Date, cellphone reimbursement, medical, dental, vision, life, and critical illness/accident insurance; the Company 401(k)
plan, Employee Stock Purchase Plan, and Health Savings Account. Employee will also receive a vehicle allowance in the amount of
$298.07 per pay period ($7,750 annualized), subject to maintaining a valid driver’s license.
(g)
Separation without cause. If the Company terminates this Agreement without Cause as defined herein prior to
December 31, 2021, subject to the requirements herein, Employee will receive a guaranteed separation payment equivalent to 6 months
base salary, subject to applicable withholding, over the Company’s regular scheduled bi-weekly payroll pay dates (“Severance”).
As a condition of receiving this Severance, Employee must (i) comply with all provisions of this Agreement and any other obligations
owed to the Company; and (ii) sign the General Release attached as Exhibit B after employment ends and not rescind any portion
thereof.
4.
Termination. This Agreement may be terminated at any time upon sixty (60) days’ written notice by (a) the Company
to Employee in person or by certified mail to Employee’s address on record at the Company, or (b) Employee to the then-current
Chair of the Company Board of Directors in person or by certified mail to the Company.
(a)
Upon termination of this Agreement, Employee shall be entitled to receive (i) Base Salary owed through the Termination
Date, (ii) reimbursement of reasonable expenses incurred as of the Termination Date. Such amount shall be paid within fourteen
(14) days of the Termination Date. Employee acknowledges and agrees that said payments, as applicable, and amounts owed pursuant
to the Change in Control Agreement attached as Exhibit A, if any, shall be in full satisfaction of any amount due to Employee by
the Company, and Employee shall not be entitled to any further payment, severance, benefits continuation, damages, or any additional
compensation whatsoever.
(c) For
purposes of this Agreement, “Cause” means: (i) gross negligence or gross neglect of duties; (ii) commission
of any felony, or a gross misdemeanor involving moral turpitude that in the reasonable determination of the Board is materially
and demonstrably injurious to the Company or that impairs Employee’s ability to substantially perform Employee’s duties
with the Company or a subsidiary; (iii) fraud, disloyalty, dishonesty or willful violation of any law or a willful violation of
a Company policy that, after warning, remains a continuing violation, committed in connection with the Employee’s employment;
(iv) conduct that, in the judgment of the Company’s Board, results in damage to the Company’s business, property, reputation,
or goodwill, including allegations of sexual harassment or discrimination; (v) breach of or inability to perform Employee’s
obligations under this Agreement other than by reason of disability or death; or (vi) failure to follow a directive of the Company’s
Board.
5. Proprietary
Information. During the course of employment Employee will have access to the Company’s proprietary and trade secret
information. Maintaining the confidentiality of such information is important to the Company’s competitive position in the
industry and ultimately to the Company’s ability to achieve financial success and provide employment opportunities. Employee
will not discuss the business affairs and operations of the Company with anyone outside of the Company except when required in
the normal course of business. To the extent Employee has access to proprietary and/or trade secret information, she is responsible
for the security of that information. Extreme care must be exercised to insure that such information is safeguarded to protect
the Company, its suppliers, clients, and employees.
6. Confidential
Information. Employee recognizes and acknowledges that Employee will have access to certain information of the Company and
that such information is confidential and constitutes valuable, special and unique property of the Company. The Employee shall
not at any time, either during or after termination of employment, directly or indirectly disclose to others, use, copy or permit
to be copied, except as directed by law or in accordance with Employee’s duties for or on behalf of the Company, its successors,
assigns or nominees, any Confidential Information of the Company (regardless of whether developed by the Employee), without the
prior written consent of the Company. The term “Confidential Information” means any secret or non-public information
or know-how relating to the Company and its business, and shall include but not be limited to information relating to the Company’s
plans, customers, costs, prices, personnel, business relationships, uses and applications of products and services, results of
investigations, studies owned or used by the Company, and all products, processes, compositions, computer programs, and servicing,
marketing or operational methods and techniques at any time used, developed, investigated, made or sold by the Company, before
or during the term of this Agreement, that are not readily available to the public or that are maintained as confidential by the
Company. Employee shall maintain in confidence any Confidential Information of third parties, received as a result of the Employee’s
employment, in accordance with the Company’s obligations to such third parties and the policies established by the Company.
Consistent with state and federal law, nothing in this Agreement
(a) is intended to limit Employee’s right to discuss the terms, wages, and working conditions of her employment; or (b) prohibits
Employee from reporting possible violations of law to a government agency or attorney, including information about trade secrets
in a document filed in a lawsuit if the disclosure is made in confidence, good faith, solely for the purpose of reporting or investigating
a suspected violation of law and is done only as permitted by law.
7. Non-Solicitation,
Non-Interference and Non-Competition. As a result of employment with the Company, Employee will acquire considerable knowledge
about, and expertise in, certain areas of the Company’s business. Employee will also gain knowledge of, and have contact
with, customers and suppliers of the Company. Employee acknowledges that she may be able to utilize such knowledge and expertise
following termination of service with the Company, to the serious detriment of the Company if she solicits business from customers
of the Company or interferes with the Company’s relationships with its customers, business partners or employees. Accordingly,
she agrees that:
(a)
Non-Solicitation, Non-Interference with Customers. During employment and for one (1) year after termination
of employment, Employee will not directly or indirectly (i) solicit any customer or business partner of the Company, (ii) take
any action intended to, or that has the effect of, interfering with the Company’s relationship with any customer or business
partner or otherwise resulting in a customer or business partner reducing or ceasing their business relationship with the Company;
or (iii) provide, to any customer with whom Employee had contact during employment or about whom Employee had access to Confidential
Information, any products or services that are competitive with those that were offered by the Company during Employee’s
employment.
(b) Non-Solicitation
of Employees. During employment and for one (1) year after termination of employment, Employee will not directly or indirectly
approach, solicit, entice, hire or attempt to approach, solicit entice or hire any employee of the Company to leave the employment
of the Company.
(c) Non-
Competition. During employment and for one (1) year after termination of employment, Employee will not directly or indirectly
engage in any business that is the same as or substantially similar to the business in which the Company engages during the term
of Employee’s employment; provided, however, that this restriction shall apply only to the geographic market of the Company.
Employee shall be deemed to engage in a business if she directly or indirectly engages or invests in, owns, manages, operates,
controls or participates in the ownership, management, operation or control of, is employed by, associated or in any manner connected
with, or renders services or advice to, any business that provides products or services that are the same as or substantially similar
to the products and/or services provided by the Company during Employee’s employment. Provided, however, that Employee may
invest in the securities of any enterprise (but without otherwise participating in the activities of such enterprise) if two conditions
are met: (a) such securities are listed on any national or regional securities exchange or have been registered under Section 12(g)
of the Securities Exchange Act of 1934 and (b) Employee does not beneficially own (as defined Rule 13d-3 promulgated under the
Securities Exchange Act of 1934) in excess of one percent of the outstanding capital stock of such enterprise.
(d) Tolling
of Restrictive Period. In the event Employee breaches any provision of this Section 7, the applicable restrictive period herein
shall be tolled during the time of Employee’s breach. Upon cessation of any such breach, the restrictive period shall continue
and shall be extended by the time period of the applicable breach.
(e) Presentment
to any New Employer. For one year after termination of employment, Employee will give a copy of this Agreement to any subsequent
employer prior to Employee’s first day of work so that the new employer can evaluate whether Employee’s work for that
employer may be in violation of this Agreement.
8. Inventions;
Works Made for Hire. For purposes of this Agreement, “Inventions” means all ideas, improvements, discoveries,
concepts, original works of authorship, modifications, formulations, software programs, product development or ideas (whether patentable
or not) relating to the business of the Company that are generated, conceived or reduced to practice by Employee during employment
with the Company either alone or in conjunction with others, during or outside of working hours. Any patent application (including
provisional applications, international applications, and the like) on which Employee is named as an inventor that is both: (a)
filed within one (1) year after termination of employment; and (b) relates to the business of Company; shall be presumed to cover
an Invention conceived by Employee during employment with the Company, subject to proof to the contrary by good faith, written
and duly collaborated records establishing that such Invention was conceived and made following termination of employment. Employee
agrees to document all Inventions in writing and promptly disclose such Inventions to the Company. All original works of authorship
made by Employee (solely or jointly with others) within the scope of employment with the Company (or her prior employment) and
that are protectable by copyright are “works made for hire,” pursuant to United States Copyright Act (17 U.S.C., Section
101).
(a) Ownership
and Assignment of Inventions. Subject to the limitations of Minnesota Statute §181.78 set forth below, all Inventions
are the exclusive property of the Company (whether any Invention was generated, conceived or reduced to practice prior to the execution
of this Agreement). Employee hereby assigns and agrees to assign in the future (when any such Inventions are first reduced to practice
or first fixed in a tangible medium, as applicable, or are otherwise assignable) to the Company all Employee’s right, title
and interest in and to any and all Inventions, whether or not patentable or registrable under copyright or similar statutes, made
or conceived or reduced to practice or learned by Employee, either alone or jointly with others, during Employee’s employment
with the Company. Inventions assigned to the Company or to a third party as directed by the Company are referred to as “Company
Inventions.” Employee hereby waives and agrees not to assert any proprietary rights in or with respect to a Company Invention.
Employee will sign and deliver any documents necessary to fully assign ownership of any Invention to the Company. Employee will,
at the Company’s expense, provide all assistance reasonably required for the Company to perfect, protect and use rights to
Inventions. Employee will maintain appropriate documentation relating to Inventions and sign all documents and do all things the
Company deems necessary or desirable to document and record the transfer of Employee’s right, title and interest in Inventions
to the Company or a third party designated by the Company, and enable the Company to obtain patent protection for Inventions anywhere
in the world.
(b) Exclusions. The terms of this Section 8 do not apply to any invention for which no equipment, supplies, facilities
or trade secret information of the Company was used and that was developed entirely on Employee’s own time and that (i)
does not relate directly to the business of the Company or to the Company’s actual or demonstrably anticipated research
or development; or (ii) does not result from any work performed by Employee for the Company.
(c) Continuing Obligations. The obligations of this Section 8 continue beyond the termination of employment with the Company
as to Inventions conceived or made by Employee during Employee’s employment and are binding upon Employee’s assigns,
executors, administrators and other legal representatives.
9. Conflict
of Interests. The Company expects all employees to conduct business according to the highest ethical standards of conduct.
Employee is expected to devote her best efforts to the interests and business of the Company. Business dealings that create, or
appear to create, a conflict between the interests of the Company and Employee are prohibited. The Company recognizes the right
of employees to engage in activities outside of their employment that are of a private nature and unrelated to the Company’s
business. However, Employee must disclose any possible conflicts so that the Company may assess and prevent potential conflicts
of interest from arising. A potential or actual conflict of interest may occur when an employee is in a position to influence a
business decision that may result in personal gain to the employee, a family member, or personal acquaintance. It is not possible
to specify every action that might create a conflict of interest. Any question regarding whether an action or proposed course of
conduct could create, or appear to create, a conflict of interest should immediately be presented to the Chief Executive Officer
or the Human Resources Department for review.
10. Restrictions
Reasonable. Employee acknowledges that the restrictions in this Agreement are reasonable under the circumstances. Employee
hereby waives all defenses to the enforcement thereof by the Company. If any provision of this Agreement is deemed void or invalid
by a court, the remaining provisions shall remain in full force and effect and Employee agrees that the court has the power to
replace such void or invalid provisions with such other enforceable and valid provisions as are as close as possible to the original
in form and effect.
11.
Section 409A Compliance. The parties intend that the benefits and rights described in this Agreement comply with
Section 409A of the Internal Revenue Code and the Treasury Regulations and other guidance promulgated or issued thereunder (“Section
409A”) to the extent that the requirements of Section 409A are applicable hereto, and the provisions of this Agreement will
be construed in a manner consistent with that intention. If Employee or the Company believes at any time that any such benefit
or right subject to Section 409A does not so comply, it will promptly advise the other and will negotiate reasonably and in good
faith to amend the terms of such benefits and rights such that they comply with Section 409A (with the most limited possible economic
effect on Employee and on the Company). Each payment under this Agreement is intended to be treated as one of a series of
separate payments for purposes of Code Section 409A and Treasury Regulation §1.409A-2(b)(2)(iii) (or any similar or successor
provisions).
Notwithstanding the foregoing,
the Company does not make any representation that the payments or benefits under this Agreement are exempt from, or satisfy, the
requirements of Section 409A and the Company shall have no liability or other obligation to indemnify or hold harmless Employee
or any beneficiary for any tax, additional tax, interest or penalties if any provision of this Agreement or any action taken with
respect thereto is deemed to violate any of the requirements of Section 409A.
12.
Severability. Any provision of this Agreement that is prohibited or unenforceable under Minnesota law shall be ineffective
to the extent of the prohibition or unenforceability and shall be severed from the balance of this Agreement, without affecting
the remaining provisions of this Agreement.
13.
Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and its successors
and assigns.
14.
Entire Agreement. This Agreement and the Exhibit A hereto constitute the entire agreement between Employee and the
Company with respect to the subject matter of this Agreement and supersede all previous understandings, communications, representations
and agreements, whether verbal or written, with respect to the subject matter hereof. This Agreement may not be modified except
by subsequent agreement in writing signed by the Company and Employee.
15. Post-Employment
Cooperation. Employee agrees to cooperate and assist the Company in the handling or investigation of any administrative charges,
government inquires, claims, threats or lawsuits involving the Company that relate to matters that arose while the Employee was
an employee of the Company. The Company will reimburse Employee for out-of-pocket expenses incurred in connection with such cooperation.
16. Notice.
Unless otherwise provided herein, any notice required or given under the terms of this Agreement shall be in writing and delivered
personally, or sent by registered or certified mail, return receipt requested, postage prepaid, or sent by nationally recognized
overnight carrier, postage prepaid, or sent by facsimile transmission to the Company at the Company’s principal office and
facsimile number in Minnetonka, Minnesota, or to Employee at the address set forth below. Notice shall be deemed given (a) when
delivered if personally delivered; (b) three business days after having been placed in the mail, if delivered by registered or
certified mail; (c) the business day after having been placed with a nationally recognized overnight carrier, if delivered by nationally
recognized overnight carrier, and (d) the business day after transmittal when transmitted with electronic confirmation of receipt,
if transmitted by facsimile. Until changed by notice pursuant to this Section 16, the following shall be the address and facsimile
number to which notices shall be sent:
|
If to the Company, to:
|
If to Employee, to:
|
|
|
Attn: Group President and CFO
|
|
Anita Kumar
|
|
|
Communication Systems, Inc.
|
|
Attn: Anita Kumar
|
|
|
10900 Red Circle Drive
|
|
6305 Loch Moor Dr
|
|
|
Minnetonka, MN 55343
|
|
Edina, MN 55439
|
|
|
Fax: (952) 946-1835
|
|
|
17.
Governing Law; Breach. This Agreement shall be governed by and construed in accordance with the laws of Minnesota,
without reference to conflicts of laws. In the event either party is deemed by a court of appropriate jurisdiction to have breached
this Agreement, the nonbreaching party shall be entitled to recover all costs, expenses and attorney’s fees incurred in enforcing
the terms of this Agreement.
18. Survival.
The provisions of Sections 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 17, 18 and 19 survive termination of this Agreement (and, for the
avoidance of doubt, any termination of Employee’s employment with the Company).
19. Termination
of Prior Agreements. By signing below, Employee acknowledges and agree that: (b) all prior employment or similar agreements
(whether written or verbal) between Employee and Transition Networks/CSI (collectively, the “Prior Agreements”), together
with all of Employee’s rights under the Prior Agreements, are hereby terminated as of the date hereof; (c) any notice that
may be required in connection with the termination of the Prior Agreements is hereby waived; (d) notwithstanding the termination
of the Prior Agreements or any other provision of this Agreement, the provisions of the Prior Agreements that impose confidentiality,
non-disclosure, non-solicitation, non-competition and other similar obligations on Employee (the “Existing Restrictive Covenants”)
shall continue in full force and effect in accordance with their respective terms and Employee agrees to strictly abide by such
provisions; and (e) the other provisions of the Prior Agreements shall continue in effect to the extent necessary to permit the
Company or its successors or assigns to enforce the Existing Restrictive Covenants.
[Signature page follows]
Accordingly, this Employment Agreement is
effective as of the Effective Date.
|
Communications Systems, Inc.
|
|
|
|
|
|
|
|
|
By:
|
/s/ Roger H.D. Lacey
|
|
/s/ Anita
Kumar
|
|
|
|
|
|
|
Its:
|
Executive Chairman
|
|
Anita Kumar
|
EXHIBIT A
COMMUNICATIONS SYSTEMS,
INC.
CHANGE OF CONTROL AGREEMENT
This CHANGE IN CONTROL Agreement is adopted this ___8th_ day
of December 2020 (the “Effective Date”) by and between COMMUNICATIONS SYSTEMS INC., a Minnesota corporation located
in Minnetonka, Minnesota (the “Company”), and Anita Kumar (the “Executive”), an executive of
the Company or one of its subsidiaries.
The Board of Directors of the Company (the “Board”)
has determined that it is in the best interests of the Company to retain the Executive’s services and to reinforce and encourage
the continued attention and dedication of the Executive to his or her assigned duties, without distraction in potentially disturbing
circumstances arising from the possibility of a change in control of the Company.
The Company and the Executive agree as provided herein.
Article 1
Definitions
Whenever used in this Agreement, the following words and phrases
shall have the meanings specified:
1.1 “Agreement”
means this Communications Systems Inc. Change in Control Agreement, as it may be amended from time to time.
1.2 “Annual Compensation” means
the Executive’s average compensation paid by the Company which was includible in the Executive’s gross income during
the most recent two taxable years ending before the date of the Change in Control. The definition includes amounts includible
in compensation, prior to any reduction for a salary contribution to a plan described in Section 125 of the Code or qualified under
Section 401(k) of the Code, as well as any compensation included in the Executive’s compensation within the meaning of Section
280G of the Code.
1.3 “Cause”
means
(a) Gross negligence or gross
neglect of duties; or
(b) Commission of a felony or of a gross
misdemeanor involving moral turpitude which in the reasonable determination of the Board is materially and demonstrably injurious
to the Company or which impairs the Executive’s ability to perform substantially the Executive’s duties with the Company
or a Subsidiary; or
(c) Fraud, disloyalty, dishonesty
or willful violation of any law or a willful violation of a material Company or Subsidiary policy which, after warning, remains
a continuing violation, committed in connection with the Executive’s employment.
1.4 “Change
in Control” shall occur on the earliest date that
(a) A “person” or “group” acquires
ownership of stock of the Company that, together with stock held by such person or group, constitutes more than fifty percent (50%)
of the total fair market value or total voting power of the stock of the Company;
(b) any person or group acquires (or has acquired
during the twelve (12) month period ending on the date of the most recent acquisition by such person or group) ownership of stock
of the Company possessing thirty percent (30%) or more of the total voting power of the stock of the Company;
(c) a majority of the members of the Board is replaced
during any twelve (12) month period by directors whose appointment or election is not endorsed by a majority of the members of
the Company’s Board prior to the date that such appointments or elections are made; or
(d) any person or group acquires (or has acquired)
during the twelve (12) month period ending on the date of the most recent acquisition by such person or group, assets from the
Company that have a total gross fair market value equal to or more than forty percent (40%) of the total gross fair market value
of all of the assets of the Company immediately prior to such acquisition or acquisitions.
(e) for the purposes of this Section 1.4, “person”
or “group” does not include The Communications Systems, Inc. Employee Stock Ownership Plan and Trust.
1.5 “Code”
means the Internal Revenue Code of 1986, as amended.
1.6 “Disability”
means the Executive’s suffering a sickness, accident or injury which has been determined by the insurance carrier of any
individual or group disability insurance policy covering the Executive, or by the Social Security Administration, to be a disability
rendering the Executive totally and permanently disabled. The Executive must submit proof to the Plan Administrator of the insurance
carrier’s or Social Security Administration’s determination upon the request of the Plan Administrator.
1.7 “Good
Reason” means the existence of any of the following without the Executive’s written consent:
(a) A material diminution by the Company
in the Executive’s annual base salary.
(b) A material diminution in the Executive’s
authority, duties or responsibilities as in effect in the three (3) month period immediately preceding a Change in Control.
(c) A material diminution in the authority, duties
or responsibilities as in effect in the three (3) month period immediately preceding a Change in Control, of the person to whom
the Executive is required to report, including a requirement that the Executive report to a corporate officer or employee instead
of reporting directly to the Company’s Board, if the Executive otherwise reported directly to the Company’s Board;
(d) A material diminution in the budget over which
the Executive retains authority as in effect in the three (3) month period immediately preceding a Change in Control;
(e) the Company requiring the Executive to be based
more than thirty (30) miles from where the Executive’s office is located immediately prior to a Change in Control, except
for required travel on the Company’s business, and then only to the extent substantially consistent with the business travel
obligations which the Executive undertook on behalf of the Company during the 90-day period ending on the date of the Change in
Control (without regard to travel related to or in anticipation of the Change in Control); or
(f) any other action or inaction that constitutes
a material breach by the Company of this Agreement.
The Executive will have Good Reason to terminate
employment only if within ninety (90) days following the Executive’s actual knowledge of the event which the Executive determines
constitutes Good Reason, the Executive notifies the Company in writing that the Executive has determined a Good Reason exists and
specifies the event creating Good Reason; following receipt of the notice, the Company fails to remedy the event within thirty
(30) days; and the Executive’s resignation for Good Reason is effective within ninety (90) days following the Company’s
period for remedy. If such conditions are not met, the Executive will not have a Good Reason to terminated employment.
1.8 “Subsidiary”
means any entity that, along with the Company, would be treated as a single employer under Sections 414(b) and (c) of the Code.
1.9 “Successor”
means any entity that assumes the rights and the obligations of the Company by merger, acquisition, or other valid legal succession.
1.10 “Termination
Date” shall mean the date of the Executive’s Termination of Employment.
1.11 “Termination
of Employment” shall mean Executive’s separation from service with the Company or one of its Subsidiaries.
Article 2
Change in Control Benefits
2.1 Change in Control
Benefit. Subject to the terms and conditions of this Agreement, if within twenty-four (24) months following a Change
in Control of the Company, the Executive shall be subject to an involuntary Termination of Employment by the Company other than
for Cause, death, disability or retirement, or Executive shall initiate a voluntary Termination of Employment for Good Reason,
the Company shall pay to the Executive the benefit specified in this Section 2.1. If a Change in Control as defined in the Agreement
occurs, this Agreement shall expire on the second anniversary of such Change in Control; provided, however, that any benefits
provided under this Section 2.1 shall continue in effect until fully paid or satisfied.
2.1.1 Amount of
Benefit. The benefit under this Section 2.1 is one and one half (1.5) times the Executive’s Annual Compensation at the
date of the Change of Control.
2.1.2 Payment of
Benefit. The Company shall pay the benefit to the Executive in a lump sum seventy-five (75) days following the Termination
Date provided that, prior to such date the Executive has executed a release of all claims against the Company, its officers and
Directors.
2.1.3 Insurance
Benefits. If a benefit is payable under Section 2.1, then for a period of twelve (12) months following the Termination
Date the Executive shall receive, in addition to the benefit provided in Section 2.1.1 of this Agreement the following benefits
substantially in the form and expense to the Executive as received by the Executive on the Termination Date: (a) medical and dental
insurance; and (b) life insurance. The provision of medical and dental insurance and the provision of life insurance
benefits pursuant to this Section 2.1.3 shall, however, be subject to the following limitations: (i) the benefits provided during
Executive’s taxable year may not affect the benefits to be provided to Executive in any other taxable year, (ii) reimbursements
or payments must be made on or before the last day of Executive’s taxable year following the taxable year in which the expense
being paid or reimbursed was incurred, and (iii) the right to continued coverage is not subject to liquidation or exchange for
another benefit.
It is understood and agreed that any rights
and privileges of the Executive provided by the Consolidated Omnibus Budget Reconciliation Act of 1986 “(COBRA”), amending
the Employee Retirement Income Security Act, the Internal Revenue Code and the Public Health Services Act, as amended, shall begin
immediately following the Termination Date.
2.2 Excess Parachute
Payment. Notwithstanding anything to the contrary in this Agreement, the payments made to the Executive under this Section
2 shall be one dollar ($1.00) less than the amount which would cause the payments to the Executive (including payments to the Executive
which are not included in this Agreement) to be subject to the excise tax imposed by Section 4999 of the Code. Any reductions in
payments under this section will come first from payments under Section 2.1.1 and then from payments under Section 2.1.3
2.3 Withholding
& Payroll Taxes. To the extent required by law, the Company shall withhold from other amounts owed to the Executive or
require the Executive to remit to the Company an amount sufficient to satisfy federal, state and local withholding tax requirements
on any payments made to the Executive under this Agreement. Determinations by the Company as to withholding shall be
binding on the Executive.
Article 3
Miscellaneous
3.1 Confidential
Information. The Executive recognizes and acknowledges that the Executive will have access to certain information of the Company
and that such information is confidential and constitutes valuable, special and unique property of the Company. The Executive shall
not at any time, either during or subsequent to the term of this Agreement, disclose to others, use, copy or permit to be copied,
except as directed by law or in pursuance of the Executive’s duties for or on behalf of the Company, its Successors, assigns
or nominees, any Confidential Information of the Company (regardless of whether developed by the Executive), without the prior
written consent of the Company. The term “Confidential Information” with respect to any person means any secret or
confidential information or know-how and shall include, but shall not be limited to, the plans, customers, costs, prices, uses,
and applications of products and services, results of investigations, studies owned or used by such person, and all products, processes,
compositions, computer programs, and servicing, marketing or operational methods and techniques at any time used, developed, investigated,
made or sold by such person, before or during the term of this Agreement, that are not readily available to the public or that
are maintained as confidential by such person. The Executive shall maintain in confidence any Confidential Information of third
parties received as a result of the Executive’s employment with the Company in accordance with the Company’s obligations
to such third parties and the policies established by the Company.
3.2 No Competition.
If within the twenty-four (24) months following a Change in Control of the Company, the Executive shall have an involuntary Termination
of Employment by the Company other than for Cause, death, disability or retirement, or shall have a voluntary Termination of Employment
for Good Reason, then and for a period of one (1) year immediately following the Termination Date, the Executive shall not directly
or indirectly engage in any business in which the Company directly or indirectly engages during the term of the Agreement;
provided, however, that this restriction shall apply only to the geographic market of the Company. The Executive shall be deemed
to engage in a business if the Executive directly or indirectly, engages or invests in, owns, manages, operates, controls or participates
in the ownership, management, operation or control of, is employed by, associated or in any manner connected with, or renders services
or advice to, any business in which the Company directly or indirectly engages, provided, however, that the Executive may invest
in the securities of any enterprise (but without otherwise participating in the activities of such enterprise) if two conditions
are met: (a) such securities are listed on any national or regional securities exchange or have been registered under Section 12(g)
of the Securities Exchange Act of 1934 and (b) the Executive does not beneficially own (as defined Rule 13d-3 promulgated under
the Securities Exchange Act of 1934) in excess of one percent of the outstanding capital stock of such enterprise. In the event
the Executive is eligible for and receives a payment under this Agreement, for the twelve (12) months after termination of employment,
the Executive will not, directly or indirectly, solicit, induce or attempt to solicit or induce any of the Company’s employees
or independent contractors for the purpose of hiring them to work for the Executive or another individual, entity or employer,
or for the purpose of inducing them to leave their employment with the Company, except with the Company’s written consent.
In the event the Executive violates this Section 3.2 or Section 3.1, any and all rights of the Executive under this Agreement shall
terminate and no further payment shall be due the Executive, which shall be in addition to, and not in lieu of, any other rights
or remedies of the Company under this Agreement.
3.3 Termination
of Agreement Prior to Change of Control. At any time after the Effective Date and prior to a Change of Control, the Board of
Directors of the Company may amend or terminate this Agreement: provided that no such amendment or termination shall be
effective until at least sixty (60) days following written notification of Executive of such termination or amendment of this Agreement.
Further, this Agreement shall automatically terminate if, prior to a Change of Control, Company terminates Executive, whether with
or without Cause, or Executive voluntarily terminates his or her employment with the Company, whether with or without Good Reason.
3.4 Delivery of
Documents Upon Termination of Employment. The Executive shall deliver to the Company or its designee at the Executive’s
Termination of Employment all correspondence, memoranda, notes, records, drawings, sketches, plans, customer lists, product compositions,
and other documents and all copies thereof, made, composed or received by the Executive, solely or jointly with others, that are
in the Executive’s possession, custody, or control at such Termination of Employment and that are related in any manner to
the past, present, or anticipated business of the Company.
3.5 Remedies.
The Executive acknowledges that a remedy at law for any breach or attempted breach of the Executive’s obligations under Sections
3.1, 3.2 and 3.3 may be inadequate, agrees that the Company may be entitled to specific performance and injunctive and other equitable
remedies in case of any such breach or attempted breach and further agrees to waive any requirement for the securing or posting
of any bond in connection with the obtaining of any such injunctive or other equitable relief. The Company shall have the right
to offset against amounts to be paid to the Executive pursuant to the terms hereof any amounts owed by the Executive to the Company
at the time of payment.
The termination of the Agreement shall not be deemed to be a
waiver by the Company of any breach by the Executive of this Agreement or any other obligation owed the Company, and notwithstanding
such a termination the Executive shall be liable for all damages attributable to such a breach.
3.6 Dispute Resolution. Subject
to the Company’s right to seek injunctive relief in court as provided in Section 3.4 of this Agreement, any dispute, controversy
or claim arising out of or in relation to or connection to this Agreement, including without limitation any dispute as to the construction,
validity, interpretation, enforceability or breach of this Agreement, shall be settled by arbitration administered by the American
Arbitration Association under its National Rules for the Resolution of Employment Disputes and judgment upon the award rendered
by the arbitrator(s) may be entered in any court having jurisdiction thereof.
Any such Arbitration will be conducted:
(i) by a neutral arbitrator appointed by mutual agreement of the parties; or (ii) failing such agreement, by a neutral arbitrator
appointed in accordance with said AAA rules; the Company shall pay the fees and reasonable expenses of the arbitrator; the parties
will be permitted reasonable discovery in accordance with the provisions of the Minnesota Rules of Civil Procedure, including the
production of relevant documents by the other party, the exchange of witness lists, and a limited number of depositions, including
depositions of any expert who will testify at the arbitration; the arbitrator’s award will include findings of fact and conclusions
of law showing the legal and factual bases for the arbitrator’s decision; the arbitrator will have the authority to award
to the prevailing party any remedy or relief that a United States District Court or court of the State of Minnesota could order
or grant if the Dispute had first been brought in that judicial forum, including costs and attorney’s fees; and unless otherwise
agreed by the parties, the place of any arbitration proceeding will be Minneapolis, Minnesota.
3.7 Acknowledgement
of Parties. The Company and the Executive understand and acknowledge that this Agreement means that neither can pursue an action
against the other in a court of law regarding any employment dispute, except for claims involving workers’ compensation benefits
or unemployment benefits, and except as set forth elsewhere in this Agreement, in the event that either party notifies the other
of its demand for arbitration under this Agreement. The Company and the Executive understand and agree that this Section 3.5, concerning
arbitration, shall not include any controversies or claims related to any agreements or provisions (including provisions in this
Agreement) respecting confidentiality, proprietary information, non-competition, non-solicitation, trade secrets, or breaches of
fiduciary obligations by the Executive, which shall not be subject to arbitration.
3.8 Right to Consult
Counsel. Executive has been advised of the Executive’s right to consult with an attorney prior to entering
into this Agreement.
3.9 Successors of
the Company. The Company will require any Successor by agreement in form and substance satisfactory to the Executive,
expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required
to perform it if no such succession had taken place. The failure of the Company to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Executive to terminate the
Agreement and receive compensation from the Company in the same amount and on the same terms as the Executive would be entitled
hereunder if the Executive terminated the Executive’s employment for Good Reason. As used in this Agreement, “Company”
as hereinbefore defined shall include any Successor to its business and/or assets as aforesaid which executes and delivers the
agreement provided for in this Section 3.8 or which otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law.
3.10 Executive’s
Heirs, etc. The Executive may not assign the Executive’s rights or delegate the Executive’s duties or obligations
hereunder without the written consent of the Company. This Agreement shall inure to the benefit of and be enforceable by the Executive’s
personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the Executive
should die while any amounts would still be payable to the Executive hereunder if the Executive had continued to live, all such
amounts, unless other provided herein, shall be paid in accordance with the terms of this Agreement to the Executive’s designee
or, if there be no such designee, to the Executive’s estate.
3.11 Notices.
Any notice or communication required or permitted under the terms of this Agreement shall be in writing and shall be delivered
personally, or sent by registered or certified mail, return receipt requested, postage prepaid, or sent by nationally recognized
overnight carrier, postage prepaid, or sent by facsimile transmission to the Company at the Company’s principal office and
facsimile number in Minnetonka, Minnesota, or to the Executive at the address and facsimile number, if any, appearing
on the books and records of the Company. Such notice or communication shall be deemed given (a) when delivered if personally delivered;
(b) five mailing days after having been placed in the mail, if delivered by registered or certified mail; (c) the business day
after having been placed with a nationally recognized overnight carrier, if delivered by nationally recognized overnight carrier,
and (d) the business day after transmittal when transmitted with electronic confirmation of receipt, if transmitted by facsimile.
Any party may change the address or facsimile number to which notices or communications are to be sent to such party by giving
notice of such change in the manner herein provided for giving notice. Until changed by notice, the following shall be the address
and facsimile number to which notices shall be sent:
|
If to the Company, to:
|
If to the Executive, to:
|
|
|
Attn: President and CFO
|
|
Anita Kumar
|
|
|
COMMUNICATIONS SYSTEMS INC.
|
|
|
|
|
10900 Red Circle Drive
|
|
|
|
|
Minnetonka, MN 55343
|
|
|
|
|
Fax: (952) 946-1835
|
|
|
3.12 Amendment or
Waiver. No provisions of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge
is agreed to in writing signed by the Executive and such officer as may be specifically designated by the Board (which shall not
include the Executive). No waiver by either party hereto at any time of any breach by the other party hereto of or compliance with,
any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. No agreements or representations, oral or otherwise, express
or implied, with respect to the subject matter hereof have been made by either party, which are not set forth expressly in this
Agreement. This Agreement constitutes the entire agreement between the Company and the Executive as to the subject matter
hereof. No rights are granted to the Executive by virtue of this Agreement other than those specifically set forth herein.
3.13 Invalid Provisions.
Should any portion of this Agreement be adjudged or held to be invalid, unenforceable or void, such holding shall not have the
effect of invalidating or voiding the remainder of this Agreement and the parties hereby agree that the portion so held invalid,
unenforceable or void shall if possible, be deemed amended or reduced in scope, or otherwise be stricken from this Agreement to
the extent required for the purposes of validity and enforcement thereof. In this regard, the parties hereto hereby agree that
any judicial authority construing this Agreement shall be empowered to sever any portion of the geographic area or any prohibited
business activity from the coverage of this Agreement, and to reduce the duration of the non-compete period and to apply the
provisions of this Agreement to the remaining portion of the geographic area or the remaining business activities not to be severed
by such judicial authority and to the duration of the non-compete period as reduced by judicial determination.
3.14 Survival of
the Executive’s Obligations. The Executive’s obligations under this Agreement shall survive regardless of whether
the Executive incurs a Termination of Employment, voluntarily or involuntarily, by the Company or the Executive, with or without
Cause.
3.15 Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together
will constitute one and the same instrument.
3.16 Governing Law. This
Agreement and any action or proceeding related to it shall be governed by and construed under the laws of the State of Minnesota.
3.17 Captions and
Gender. The use of Captions and Section headings herein is for purposes of convenience only and shall not affect the interpretation
or substance of any provisions contained herein. Similarly, the use of the masculine gender with respect to pronouns in this Agreement
is for purposes of convenience and includes either sex who may be a signatory.
3.18 No guarantee
of tax treatment. Nothing herein shall be construed as an entitlement to or guarantee of any particular tax treatment
to the Executive. This Agreement is drafted and shall be interpreted to be exempt from Code Section 409A.
IN WITNESS WHEREOF, the Executive and a
duly authorized representative of the Company have signed this Agreement.
|
EXECUTIVE:
|
|
|
COMPANY:
|
|
|
|
|
|
|
/s/ Anita Kumar
|
|
|
COMMUNICATIONS SYSTEMS INC.
|
|
|
|
|
|
|
|
|
By:
|
/s/ Roger H.D. Lacey
|
|
|
|
|
|
|
|
|
Its:
|
CEO and Executive Chairman
|
EXHIBIT B
GENERAL RELEASE OF
CLAIMS
(Signed After Employment
Ends)
This General Release is provided pursuant
to and in accordance with the terms of the Employment Agreement dated the 1st day of December, 2020 between Communication Systems
Inc. (the “Company”) and Anita Kumar (“Employee”).
1. Release
of Claims. In consideration of the Severance and other valuable consideration described in the Employment Agreement and herein,
the Employee, on behalf of herself and her heirs, successors and assigns, hereby releases, agrees not to sue, and forever discharges
Communications Systems Inc., any affiliated entities, and their respective present and former shareholders, members, partners,
officers, directors, governors, managers, employees, representatives, consultants, insurers, agents, and the successors and assigns
of each, in their individual and official capacities (collectively, “Released Parties”), of and from all claims, demands,
actions, causes of action, administrative claims, liability, damages, punitive and liquidated damages, attorneys’ fees, costs
and disbursements, individual and/or class action claims, and demands of any kind whatsoever that she has or might have against
any of them, known or unknown, in law or equity, contract or tort, however originating or existing, through the time she signs
this General Release. This General Release includes all claims the Employee could bring on her own behalf as well as those that
could be brought by any other person or organization on her behalf. Employee agrees not to voluntarily become a member of any class
or voluntarily participate in any proceeding or case in which a claim against any Released Party arises, in whole or in part, from
an event that occurred before she signed this General Release.
Without limiting the generality of the foregoing,
this Release includes but is not limited to any claims the Employee may have for wages, bonuses, commissions, penalties, deferred
compensation, paid time off, claims arising out of equity agreements, defamation, emotional distress, alleged violation of Title
VII of the Civil Rights Act, the Americans with Disabilities Act, the Employment Retirement Income Security Act of 1976, the Age
Discrimination in Employment Act as amended, the Family and Medical Leave Act, the Minnesota Human Rights Act, and any claim for
discrimination, harassment or retaliation based on protected status. This release does not waive any claims that are not waivable
as a matter of law.
The Employee has not filed any charge, complaint,
or action of any type against any Released Party, including but not limited to any claims arising at law, in equity or under the
jurisdiction of any government agency. If any claim is filed on Employee’s behalf, the Severance is in complete satisfaction
of any such claim and recovery in connection therewith.
2. Consideration
Period. The Employee is advised to review this General Release with an attorney of her choosing. She has twenty-one (21) days
from the date she receives this Release to consider whether to sign it.
3. Rescission.
Employee has seven (7) days after signing this Agreement to rescind the release as to claims arising under the Age Discrimination
in Employment Act and fifteen (15) days after signing this Agreement to rescind the release as to claims arising under the Minnesota
Human Rights Act. In order to be effective, the rescission must: (i) be in writing; (ii) delivered to the Company, c/o ______________,
10900 Red Circle Drive, Minnetonka, MN 55343 by hand or by mail within the required period; and (iii) if delivered by mail, the
rescission must be postmarked within the statutory period, properly addressed to ______________ as set forth above, and sent by
certified mail or via FedEx. This General Release will be effective upon the expiration of the fifteen (15) day period without
rescission of any part of this General Release. (the “Effective Date”). If the Employee rescinds any part of the release
of claims, at the Company’s option she may not receive the Severance described in Section 3(g) of the Employment Agreement.
4. No
Other Representations. The Employee has read and understands all provisions of this General Release and provides it knowingly
and voluntarily. Employee has not relied on any representations, statements or representations of any type other than the express
terms of the Employment Agreement and this General Release. This General Release is the result of negotiation and compromise between
the parties and shall not be interpreted against the Company for originally drafting this General Release.
5. Breach.
In the event Employee breaches this General Release, she shall be responsible for any and all costs and attorney’s fees incurred
by the Company in enforcing the terms of this General Release.
I have read, understand and agree to the
terms and conditions set forth above, and sign this General Release freely, voluntarily, and with full knowledge and understanding
of its meaning.
|
Date:______________, 2020 ___________________________
|
|
|
|
|
Anita Kumar
|
|
Exhibit 99.1
FOR IMMEDIATE RELEASE
COMMUNICATIONS SYSTEMS, INC. REPORTS
2020 FOURTH QUARTER AND YEAR-END FINANCIAL RESULTS
Company Also Updates Shareholders on
Progress Towards Completing its Previously Announced Merger with Pineapple Energy
Minnetonka, MN – March 30, 2021
– Communications Systems, Inc. (NASDAQ: JCS) (“CSI” or the “Company”), an IoT intelligent edge
products and services company, today announced financial results for the fourth quarter and full year (“FY”) ended
December 31, 2020.
Q4 2020 Financial Highlights vs Q4 2019
|
|
●
|
Q4 2020 consolidated sales from continuing operations decreased by 24% to $11.7 million compared to $15.4 million in Q4 2019,
due to lower sales from the Electronics & Software segment compared to Q4 2019 when this segment realized $4.2 million in revenues
from a single intelligent transportation project and the continuing impact of project delays driven by COVID-19, partially offset
by the increased revenues in the Services & Support segment.
|
|
|
●
|
Q4 2020 consolidated operating loss from continuing operations was $133,000, compared to Q4 2019 consolidated operating income
from continuing operations of $1.2 million:
|
|
|
■
|
Electronics & Software operating income was $1.0 million versus $2.8 million in Q4 2019;
|
|
|
■
|
Services & Support operating loss was $60,000 versus an operating loss of $245,000 in Q4 2019; and
|
|
|
■
|
Other corporate costs, including indirect costs related to discontinued operations, were $1.1 million versus $1.4 million in
Q4 2019.
|
|
|
●
|
Q4 2020 discontinued operations income was $171,000 compared to income of $505,000 in Q4 2019.
|
|
|
●
|
Q4 2020 consolidated net loss was $3,000, or $0.00 per diluted share, compared to a net income of $1.7 million, or $0.18 per
diluted share in Q4 2019.
|
FY 2020 Financial Highlights vs FY 2019
|
|
●
|
FY 2020 consolidated sales from continuing operations decreased by 16.4% to $42.6 million compared to $50.9 million in FY 2019.
|
|
|
●
|
FY 2020 consolidated operating loss from continuing operations was $2.7 million compared to income of $9,000 in FY 2019.
|
|
|
●
|
Other corporate costs, including indirect costs related to discontinued operations, were $4.0 million in both FY 2020 and in
FY 2019.
|
|
|
●
|
FY 2020 discontinued operations income was $1.6 million compared to income of $6.2 million in FY 2019.
|
|
|
●
|
FY 2020 consolidated net loss was $172,000, or ($0.02) per diluted share, compared to a FY 2019 net income of $6.5 million,
or $0.69 per diluted share.
|
|
|
●
|
Cash, cash equivalents, and liquid investments totaled $21.5 million, working capital was $28.3 million and stockholders’
equity was $47.5 million as of December 31, 2020.
|
Anita Kumar, CEO of CSI commented, “Our
full year 2020 financial results were negatively affected by the COVID-19 pandemic. Our commercial customers, both in the U.S and
internationally, were substantially affected by reduced growth in building lighting and automation, security and surveillance and
intelligent transportation applications, which resulted in delays and declines in project spending. This decline was partially
offset by strong demand from the U.S. Federal government. While the duration and the global economic effect of this pandemic is
outside of our control, during the year we took several steps to adjust to this challenging new operating and economic environment.
We implemented cost-reduction measures, which partially offset lower revenue and resulted in positive operating income and net
income for the second half of 2020.”
Dr. Kumar added, “Both our business
segments remain fundamentally strong due to the investments we made in new technologies. These investments are aimed at developing
easy-to-use / easy-to-integrate software and services that address demand from critical infrastructure initiatives, including security
and surveillance, intelligent transportation, smart buildings, and smart cities. With the acquisition of Ecessa, a designer and
distributor of SD-WAN for businesses, we expanded our services and support segment broadening our portfolio of products and services.
Also, the minority investments we have made in Quortus, Kogniz and Spyrus expanded our ability to explore providing Private LTE,
Artificial Intelligence and secure network access solutions to our customers.”
Progress Made Towards Completing
its Previously Announced Merger with Pineapple Energy
Of note, on March 2, 2021, CSI announced the
signing of a definitive merger agreement with privately held Pineapple Energy, LLC (“Pineapple”), a growing U.S. operator
and consolidator of residential solar, battery storage, and grid services solutions. Upon obtaining shareholder approval for the
merger and closing, CSI will commence doing business as Pineapple Energy, with a business model focused on the rapidly growing
home solar industry.
Commenting on the progress made towards completing
the merger with Pineapple, Roger Lacey, Executive Chairman of CSI, commented, “As per the terms of the merger, we intend
to divest all of our existing business lines, real estate holdings and other investments, and distribute the proceeds to CSI Shareholders.
Currently, we are in discussions with potential buyers for both our operating business segments (Electronics & Software and
Services & Support). These businesses could offer potential buyers substantial long-term growth opportunities by unlocking
additional synergies, and the ability to expand into adjacent markets, add scale, and broaden their existing product lines. We
will provide additional details once we enter into definitive agreements.”
As previously announced, we expect to distribute
most of the proceeds from any pre-merger divestitures in the form of a cash dividend to existing CSI shareholders prior to, or
concurrent with the effective date of the merger.
The definitive merger agreement with Pineapple,
which was approved by CSI’s Board of Directors, is subject to approval by CSI’s shareholders, which we currently expect
to occur in June 2021, with the merger expected to close before the end of the second quarter of 2021. For more information about
the CSI-Pineapple merger visit https://www.commsystems.com/investor-resources.
FY 2020 Segment Financial Overview
Electronics & Software
|
(in 000s)
|
|
Three Months
Ended December 31
|
|
|
Twelve Months
Ended December 31
|
|
|
|
|
2020
|
|
|
2019
|
|
|
Change %
|
|
|
2020
|
|
|
2019
|
|
|
Change %
|
|
|
Sales
|
|
$
|
8,917
|
|
|
$
|
14,745
|
|
|
|
-39.5
|
%
|
|
$
|
34,496
|
|
|
$
|
47,007
|
|
|
|
-26.6
|
%
|
|
Gross profit
|
|
|
4,056
|
|
|
|
7,024
|
|
|
|
-42.3
|
%
|
|
|
14,890
|
|
|
|
21,394
|
|
|
|
-30.4
|
%
|
|
Operating income
|
|
|
997
|
|
|
|
2,786
|
|
|
|
-64.2
|
%
|
|
|
1,015
|
|
|
|
4,040
|
|
|
|
-74.9
|
%
|
Electronics & Software Q4 2020 sales
and operating income decreases were driven by the $4.2 million 2019 New York City Department of Transportation (“NYCDOT”)
project related revenue which did not reoccur in 2020, and the impact of project delays driven by the COVID-19 pandemic.
Electronics & Software sales decreased
27% to $34,496,000 in FY 2020 compared to $47,007,000 in FY 2019. Sales in North America decreased by 25% or $10,050,000 in FY
2020 compared to 2019 primarily due to delayed project spending by customers due to the effect of the COVID-19 pandemic, $7,050,000
of sales on the NYCDOT IoT project recorded in FY 2019 that did not reoccur in FY 2020, and a decline in sales to a major Canadian
telecommunications customer, partially offset by strong sales to Federal agencies. International sales decreased by $2,461,000,
or 34%, primarily due to the economic effects of the COVID-19 pandemic and an overall drop in demand for traditional products.
Sales of Intelligent Edge Solutions (“IES”)
products decreased 34% or $6,280,000 due to the $7,050,000 of deliveries in FY 2019 for the NYCDOT project that did not reoccur
in FY 2020, partially offset by higher sales of security and surveillance products and sales to Federal agencies. Excluding the
prior year NYCDOT IoT project, sales of IES products increased by $770,000 or 7%. Traditional product sales decreased 22% or $6,231,000,
due mainly to the overall economic effects of the COVID-19 pandemic and a decline in media converter orders from major telecommunications
customers.
Gross profit decreased by 30% to $14,890,000
in FY 2020 compared to $21,394,000 in FY 2019. Gross margin as a percentage of sales decreased to 43% in 2020 from 46% in 2019
primarily due to the volume and favorable margin impacts from the prior year NYCDOT smart city IoT project that did not reoccur
in the current year and increased sales of certain IES products to Federal agencies at lower margins, partially offset by lower
inventory write-downs year over year.
Selling, general and administrative expenses
decreased by 20% to $13,875,000, or 40% of sales, in FY 2020 from $17,354,000, or 37% of sales in FY 2019 due to reduced travel,
marketing and personnel expenses, in part due to steps taken by management in response to the COVID-19 pandemic.
Electronics & Software had operating
income of $1,015,000 in FY 2020 compared to operating income of $4,040,000 in FY 2019, primarily due to lower sales and gross margin.
Services & Support
|
(in 000s)
|
|
Three Months
Ended December 31
|
|
|
Twelve Months
Ended December 31
|
|
|
|
|
2020
|
|
|
2019
|
|
|
Change %
|
|
|
2020
|
|
|
2019
|
|
|
Change %
|
|
|
Sales
|
|
$
|
2,896
|
|
|
$
|
799
|
|
|
|
+262.5%
|
|
|
$
|
8,777
|
|
|
$
|
4,741
|
|
|
|
+85.1%
|
|
|
Gross profit
|
|
|
890
|
|
|
|
184
|
|
|
|
+383.7%
|
|
|
|
2,979
|
|
|
|
1,482
|
|
|
|
+101.0%
|
|
|
Operating income (loss)
|
|
|
(60
|
)
|
|
|
(245
|
)
|
|
|
+75.5%
|
|
|
|
310
|
|
|
|
(3
|
)
|
|
|
NA
|
|
Services & Support sales increase in
Q4 2020 was driven by education sector projects restarted in 2020 and the addition of revenues from Ecessa and IVDesk, which were
both acquired in 2020.
Services & Support sales increased
by 85% to $8,777,000 in FY 2020 compared to $4,741,000 in FY 2019. Revenues from the education sector increased by $2,557,000 or
133% in FY 2020 primarily due to the commencement of projects that had been previously delayed due to funding issues while the
prior year had less project revenue in this sector. Projects for this education customer commenced at the end of the second quarter
of FY 2020. Revenue from small to medium businesses (“SMBs”), which are primarily healthcare, financial and commercial
clients, increased by 82% or $1,622,000 due to the acquisition of Ecessa on May 14, 2020 and the acquisition of the assets of IVDesk
on November 3, 2020. Project and product revenue increased by $2,878,000 or 128% during FY 2020 as compared to FY 2019 due primarily
to the increase in the education sector. Services and support revenue increased by $1,158,000 or 46% as compared to the prior year
due to the Company’s acquisition of Ecessa, which has service and support revenue on its SD-WAN products. Overall, Ecessa
contributed $1,260,000 and IVDesk contributed $401,000 in revenue during the year.
Gross profit increased by 101% to $2,979,000
in FY 2020 compared to $1,482,000 in FY 2019. Gross margin as a percentage of sales increased to 34% in 2020 compared to 31% in
2019 due to the increase in project revenue in the education sector, primarily within the second half of the year.
Selling, general and administrative expenses
increased by 80% in FY 2020 to $2,669,000, or 30% of sales, compared to $1,485,000 in FY 2019, or 31% of sales due to the May 2020
acquisition of Ecessa and the inclusion of its general and administrative costs that are not included in the prior year.
Operating income was $310,000 in FY 2020
compared to an operating loss of $3,000 in FY 2019, primarily due to increased education revenue.
Form 10-K
For further information, please see
the Company’s Form 10-K, which will be filed on or before March 31, 2021.
About Communications
Systems, Inc.
Communications Systems, Inc., which has operated
as an IoT intelligent edge products and services company, with its planned merger with Pineapple Energy will be positioned to acquire
and grow leading local and regional solar, storage, and energy services companies nationwide. The vision is to power the energy
transition through grass-roots growth of solar electricity paired with battery storage on consumers’ homes.
Forward Looking
Statements
This press release includes certain forward-looking
statements within the meaning of the Private Securities Litigation Reform Act of 1995, including statements regarding future financial
performance, future growth and future acquisitions. These statements are based on Communications Systems’ current expectations
or beliefs and are subject to uncertainty and changes in circumstances. There can be no guarantee that the proposed CSI- Pineapple
Energy transactions and other transactions referred to in this press release will be completed, or that they will be completed
as currently proposed, or at any particular time. Actual results may vary materially from those expressed or implied by the statements
here due to changes in economic, business, competitive or regulatory factors, and other risks and uncertainties affecting the operation
of Communications Systems’ business, as well as the business of Pineapple Energy. These risks, uncertainties and contingencies
are presented in the Company’s Annual Report on Form 10-K and, from time to time, in the Company’s other filings with
the Securities and Exchange Commission. The information set forth herein should be read considering these risks. Further, investors
should keep in mind that the Company’s financial results in any period may not be indicative of future results. Communications
Systems is under no obligation to, and expressly disclaims any obligation to, update or alter its forward-looking statements, whether
because of new information, future events, changes in assumptions or otherwise. In addition to these factors, there are a number
of specific factors related to this transaction, including:
|
|
●
|
The Company’s ability to obtain shareholder approval for the CSI-Pineapple Energy merger and related transactions;
|
|
|
●
|
The ability of Pineapple to successfully close its Hawaii Energy Connection (HEC) and E-GEAR acquisitions and integrate these
businesses into its operations;
|
|
|
●
|
The ability of the combined company to successfully maintain a Nasdaq Capital Market listing;
|
|
|
●
|
The ability of the combined company to successfully access the capital markets, identify and acquire appropriate acquisition
targets and successfully integrate these companies into its operations;
|
|
|
●
|
The Company’s ability to successfully sell its existing operating business assets and its real estate assets and distribute
these proceeds to its existing shareholder base;
|
|
|
●
|
Conditions to the closing of the merger may not be satisfied or the merger may involve unexpected costs, liabilities or delays;
|
|
|
●
|
The occurrence of any other risks to consummation of the merger, including the risk that the merger will not be consummated
within the expected time period or any event, change or other circumstances that could give rise to the termination of the merger
agreement;
|
|
|
●
|
Risks that the merger disrupts current CSI plans and operations or that the business or stock price of CSI may suffer as a
result of uncertainty surrounding the merger;
|
|
|
●
|
The outcome of any legal proceedings related to the merger; and
|
|
|
●
|
CSI or Pineapple Energy may be adversely affected by other economic, business, or competitive factors.
|
|
Contacts:
|
|
For Communications Systems, Inc.
Anita Kumar
Chief Executive Officer
+1 (952) 996-1674
Roger H. D. Lacey
Executive Chair
+1 (952) 996-1674
Mark D. Fandrich
Chief Financial Officer
+1 (952) 582-6416
mark.fandrich@commsysinc.com
The Equity Group Inc.
Lena Cati
Vice President
+1 (212) 836-9611
lcati@equityny.com
|
|
CSI CONSOLIDATED SUMMARY OF EARNINGS
Selected Income Statement Data
|
|
|
Unaudited
|
|
|
|
|
Three Months Ended
|
|
|
Twelve Months Ended
|
|
|
|
|
Dec. 31, 2020
|
|
|
Dec. 31, 2019
|
|
|
Dec. 31, 2020
|
|
|
Dec. 31, 2019
|
|
|
Sales
|
|
$
|
11,675,323
|
|
|
$
|
15,363,421
|
|
|
$
|
42,575,546
|
|
|
$
|
50,906,179
|
|
|
Gross profit
|
|
|
4,807,405
|
|
|
|
7,034,141
|
|
|
|
17,206,428
|
|
|
|
22,185,812
|
|
|
Operating income (loss) from continuing operations
|
|
|
(133,437
|
)
|
|
|
1,188,126
|
|
|
|
(2,697,350
|
)
|
|
|
9,214
|
|
|
Income (loss) from continuing operations before income taxes
|
|
|
(157,569
|
)
|
|
|
1,233,167
|
|
|
|
(1,775,332
|
)
|
|
|
235,350
|
|
|
Income tax expense (benefit)
|
|
|
16,293
|
|
|
|
20,388
|
|
|
|
20,342
|
|
|
|
(15,269
|
)
|
|
Income from discontinued operations
|
|
|
170,727
|
|
|
|
505,120
|
|
|
|
1,624,016
|
|
|
|
6,218,430
|
|
|
Net income (loss)
|
|
$
|
(3,135
|
)
|
|
$
|
1,717,899
|
|
|
$
|
(171,658
|
)
|
|
$
|
6,469,049
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic net income (loss) per share
|
|
$
|
0.00
|
|
|
$
|
0.19
|
|
|
$
|
(0.02
|
)
|
|
$
|
0.70
|
|
|
Diluted net income (loss) per share
|
|
$
|
0.00
|
|
|
$
|
0.18
|
|
|
$
|
(0.02
|
)
|
|
$
|
0.69
|
|
|
Cash dividends per share
|
|
$
|
0.00
|
|
|
$
|
0.02
|
|
|
$
|
0.04
|
|
|
$
|
0.08
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Average basic shares outstanding
|
|
|
9,319,011
|
|
|
|
9,278,593
|
|
|
|
9,322,672
|
|
|
|
9,272,259
|
|
|
Average dilutive shares outstanding
|
|
|
9,319,011
|
|
|
|
9,492,508
|
|
|
|
9,322,672
|
|
|
|
9,337,422
|
|
|
|
|
Selected Balance Sheet Data
|
|
|
|
|
|
|
|
|
|
Unaudited
|
|
|
|
|
Dec. 31, 2020
|
|
|
Dec. 31, 2019
|
|
|
Total assets
|
|
$
|
55,556,325
|
|
|
$
|
59,150,712
|
|
|
Cash, cash equivalents & liquid investments
|
|
|
21,456,865
|
|
|
|
24,057,160
|
|
|
Working capital
|
|
|
28,320,602
|
|
|
|
38,051,766
|
|
|
Property, plant and equipment, net
|
|
|
7,242,072
|
|
|
|
8,238,089
|
|
|
Long-term liabilities
|
|
|
623,947
|
|
|
|
408,386
|
|
|
Stockholders’ equity
|
|
|
47,494,727
|
|
|
|
47,392,282
|
|