<PAGE>
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-QSB
[X] Quarterly report under Section 13 or 15(d) of the Securities Exchange Act
of 1934
For the quarterly period ended June 29, 1997
-------------
[ ] Transition report under Section 13 or 15(d) of the Exchange Act
For the transition period from ____________ to ______________
Commission file number 0-28932
-------
BENTHOS, INC.
(Exact Name of Small Business Issuer as Specified in Its Charter)
Massachusetts 04-2381876
(State or Other Jurisdiction of (I.R.S. Employer
Corporation or Organization) Identification No.)
49 Edgerton Drive, North Falmouth, Massachusetts 02556
(Addresses of Principal Executive Offices) (Zip Code)
(508) 563-1000
Issuer's Telephone Number Including Area Code
Check whether the issuer (1) has filed all reports required to be filed by
Section 13 or 15 (d) of the Exchange Act during the past 12 months (or for such
shorter period that the issuer was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days.
Yes X No ___
---
State the number of shares outstanding of each of the issuer's classes of Common
equity as of the latest practicable date:
Common Stock par value $.0667 848,403
(Class) (Outstanding stock at August 11, 1997)
Traditional Small Business Disclosure Format (check one):
Yes X No ___
---
<PAGE>
2
BENTHOS, INC. AND SUBSIDIARY
INDEX
<TABLE>
<CAPTION>
Page No.
<S> <C>
Face Sheet 1
Index 2
PART I
FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Consolidated Balance Sheets (unaudited) 3
June 29, 1997 and
September 30, 1996
Condensed Consolidated Statements of Earnings (unaudited) 4
Thirteen Weeks Ended
June 29, 1997 and
June 30, 1996
Condensed Consolidated Statements of Earnings (unaudited) 5
Thirty-Nine Weeks Ended
June 29, 1997 and
June 30, 1996
Condensed Consolidated Statements of Cash Flow (unaudited) 6
June 29, 1997 and
June 30, 1996
Notes to Financial Statements 7-8
Item 2. Management's Discussion and Analysis 9-12
of Financial Condition and Results
of Operations
PART II
OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K 13
Signature 13
</TABLE>
<PAGE>
3
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
Benthos, Inc. and Subsidiary
Condensed Consolidated Balance Sheets
(unaudited)
<TABLE>
<CAPTION>
Assets June 29, 1997 September 30, 1996
<S> <C> <C>
Cash and Cash Equivalents $2,068,584 $ 751,357
Accounts Receivable 1,467,158 1,519,142
Inventories 2,658,524 3,551,258
Prepaid Expenses 328,882 70,039
Deferred Tax Asset 516,000 516,000
---------- ----------
Total Current Assets 7,039,148 6,407,796
Property, Plant and Equipment:
Land 127,339 127,339
Building and Improvements 1,845,303 1,845,303
Equipment and Fixtures 2,528,042 2,220,045
Demonstration Equipment 1,462,556 1,348,204
Construction in Progress 0 18,042
---------- ----------
5,963,240 5,558,933
Less Accumulated Depreciation 3,992,003 3,567,862
---------- ----------
1,971,237 1,991,071
Other Assets 235,671 215,077
---------- ----------
$9,246,056 $8,613,944
========== ==========
Liabilities and Stockholders' Investment
Current Maturities of Long-term Debt $ 33,300 $ 29,646
Accounts Payable 388,591 490,909
Accrued Expenses 1,135,212 1,680,893
Customer Deposits 124,443 275,911
---------- ----------
Total Current Liabilities 1,681,546 2,477,359
Long-term Debt, Net of Current Maturities 797,204 824,242
Common Stock, $.0667 par value-
Authorized - 2,500,000 shares
Issued - 1,039,285 and 1,006,785 shares at
June 29, 1997 and September 30, 1996,
respectively 69,318 67,150
Capital in Excess of Par Value 925,481 807,555
Retained Earnings 6,619,246 5,335,733
Treasury Stock, at Cost (846,739) (898,095)
---------- ----------
Total Stockholders' Investment 6,767,306 5,312,343
---------- ----------
$9,246,056 $8,613,944
========== ==========
</TABLE>
<PAGE>
4
Benthos, Inc. and Subsidiary
Condensed Consolidated Statements of Earnings
(unaudited)
<TABLE>
<CAPTION>
Thirteen Weeks Ended
June 29, 1997 June 30, 1996
<S> <C> <C>
Net Sales $3,913,430 $3,475,783
Cost of Sales 1,787,695 1,664,530
---------- ----------
Gross Profit 2,125,735 1,811,253
Selling, General & Administrative Expenses 1,278,536 1,104,366
Research and Development Expenses 404,846 150,188
---------- ----------
Income from Operations 442,353 556,699
Interest Income 6,802 1,654
Interest Expense (19,490) (22,695)
---------- ----------
Income before Provision for Income Taxes 429,665 535,658
Provision for Income Taxes 132,085 188,000
---------- ----------
Net Income $ 297,580 $ 347,658
========== ==========
Net Income Per Common and Common
Equivalent Share $0.33 $0.39
Weighted Average Common and Common ========== ==========
Equivalent Shares Outstanding 913,000 898,000
</TABLE>
<PAGE>
5
Benthos, Inc. and Subsidiary
Condensed Consolidated Statements of Earnings
(unaudited)
<TABLE>
<CAPTION>
Thirty-Nine Weeks Ended
June 29, 1997 June 30, 1996
<S> <C> <C>
Net Sales $13,189,079 $8,874,204
Cost of Sales 5,940,211 4,057,636
----------- ----------
Gross Profit 7,248,868 4,816,568
Selling, General & Administrative Expenses 4,117,272 2,782,845
Research and Development Expenses 1,007,819 478,251
----------- ----------
Income from Operations 2,123,777 1,555,472
Interest Income 15,654 1,734
Interest Expense (59,116) (83,676)
----------- ----------
Income before Provision for Income Taxes 2,080,315 1,473,530
Provision for Income Taxes 796,802 516,000
----------- ----------
Net Income $ 1,283,513 $ 957,530
=========== ==========
Net Income Per Common and Common
Equivalent Share $1.41 $1.09
Weighted Average Common and Common =========== ==========
Equivalent Shares Outstanding 914,000 876,000
</TABLE>
<PAGE>
6
Benthos, Inc. and Subsidiary
Condensed Consolidated Statements of Cash Flow
(unaudited)
<TABLE>
<CAPTION>
Thirty-Nine Weeks Ended
June 29, 1997 June 30, 1996
<S> <C> <C>
Cash Flows From Operating Activities:
Net Income $1,283,513 $ 957,530
Adjustments to Reconcile Net Income to Net Cash
Provided by Operating Activities:
Depreciation and Amortization 583,773 446,074
Changes in Assets and Liabilities:
Accounts Receivable 51,984 134,943
Inventories 892,734 (434,123)
Prepaid Expenses (258,843) 3,971
Accounts Payable & Accrued Expenses (647,999) 835,569
Customer Deposits (151,468) (148,638)
---------- ----------
Net Cash Provided by Operating Activities 1,753,694 1,795,326
Cash Flows from Financing Activities:
Purchase of Property, Plant & Equipment (328,085) (520,389)
Increase in Other Assets (84,998) (33,876)
---------- ----------
Net Cash Used in Investing Activities (413,083) (554,265)
Cash Flows from Financing Activities:
Decrease in Demand Note Payable 0 (275,000)
Payments on long-term debt, net (23,384) (24,892)
---------- ----------
Net Cash Used in Financing Activities (23,384) (299,892)
---------- ----------
Net Increase in Cash and Cash Equivalents 1,317,227 941,169
Cash and Cash Equivalents, Beginning of Period 751,357 17,461
---------- ----------
Cash and Cash Equivalents, End of Period $2,068,584 $ 958,630
========== ==========
Supplemental Disclosure of Cash Flow Information:
Interest Paid $ 59,116 $ 83,676
Income Taxes Paid $1,624,164 $ 235,337
</TABLE>
<PAGE>
7
Benthos, Inc.
Notes to Financial Statements
1. Basis of Presentation
The accompanying unaudited condensed consolidated financial statements have been
prepared by Benthos, Inc. pursuant to the rules and regulations of the
Securities and Exchange Commission regarding interim financial reporting.
Accordingly, they do not include all of the information and footnotes required
by generally accepted accounting principles for complete financial statements
and should be read in conjunction with the consolidated financial statements and
notes thereto for the fiscal year ended September 30, 1996, included in the
Company's previously filed Form 10-KSB. The accompanying condensed consolidated
financial statements reflect all adjustments (consisting solely of normal,
recurring adjustments) which are, in the opinion of management, necessary for a
fair presentation of results for the interim periods presented. The results of
operations for the thirteen week and thirty-nine week periods ended June 29,
1997 and June 30, 1996, are not necessarily indicative of the results to be
expected for the full fiscal year.
2. Inventories
Inventories are stated at the lower of cost (first-in, first-out) or market and
consist of the following:
<TABLE>
<CAPTION>
June 29,1997 September 30, 1996
<S> <C> <C>
Raw Materials $ 107,566 $ 203,314
Work-in-Process 2,515,655 3,226,405
Finished Goods 35,303 121,539
---------- ----------
$2,658,524 $3,551,258
========== ==========
</TABLE>
3. Net Income Per Share
Net income per common and common equivalent share is based on the weighted
average number of common and common equivalent shares outstanding during each
period, computed in accordance with the treasury stock method. Fully diluted
net income per common and common equivalent share has not been presented as it
is not significantly different.
In February 1997 the Financial Accounting Standard Board issued the Statement of
Financial Accounting Standards No. 128 "Earnings per Share" (SFAS No. 128).
SFAS No. 128 must be adopted as of December 31, 1997 and all prior earnings per
share amounts must be retroactively restated.
In accordance with Staff Accounting Bulletin No. 74, the Company is disclosing
the effect this statement would have on the thirteen weeks and thirty-nine weeks
ended June 29, 1997 and June 30, 1996 on a pro forma basis. The following table
summarizes the pro forma earnings per share amounts under SFAS No. 128.
<PAGE>
8
<TABLE>
<CAPTION>
Net Income Shares Per Share Amount
For the thirteen weeks ended June 29, 1997
<S> <C> <C> <C>
Net Income $ 297,600 -- --
Basic Earnings per share:
Income available to common stockholders 297,600 836,000 $0.36
=====
Diluted earnings per share:
Options issued to Directors, Officers, and -- 77,000 --
employees ---------- --------
Income available to common stockholders $ 297,600 913,000 $0.33
plus assumed conversions ========== ======== =====
<CAPTION>
For the thirteen weeks ended June 30, 1996
<S> <C> <C> <C>
Net Income $ 347,700 -- --
Basic Earnings per share:
Income available to common stockholders 347,700 790,000 $0.44
=====
Diluted earnings per share:
Options issued to Directors, Officers, and -- 108,000 --
employees ---------- --------
Income available to common stockholders $ 347,700 898,000 $0.39
plus assumed conversions ========== ======== =====
<CAPTION>
Net Income Shares Per Share Amount
For the thirty-nine weeks ended June 29, 1997
<S> <C> <C> <C>
Net Income $1,283,500 -- --
Basic Earnings per share:
Income available to common stockholders 1,283,500 821,000 $1.56
=====
Diluted earnings per share:
Options issued to Directors, Officers, and -- 93,000 --
employees ---------- --------
Income available to common stockholders $1,283,500 914,000 $1.41
plus assumed conversions ========== ======== =====
<CAPTION>
For the thirty-nine weeks ended June 30, 1996
<S> <C> <C> <C>
Net Income $ 957,500 -- --
Basic Earnings per share:
Income available to common stockholders 957,500 790,000 $1.21
=====
Diluted earnings per share:
Options issued to Directors, Officers, and -- 86,000 --
employees ---------- --------
Income available to common stockholders $ 957,500 876,000 $1.09
plus assumed conversions ========== ======== =====
</TABLE>
Basic earnings per common share is computed by dividing net income by the
weighted average number of shares of common stock outstanding during the
quarter. The computation of diluted earnings per common share is similar to the
computation of basic earnings per common share except that the denominator is
increased for the assumed exercise of dilutive options using the treasury stock
method.
<PAGE>
9
Item 2.
Management's Discussion and Analysis
of Financial Condition and Results of Operations
Results of Operations -- Third quarter of fiscal year 1997 compared with third
quarter of fiscal year 1996.
The following table presents, for the periods indicated, the percentage
relationship of Condensed Consolidated Statements of Earnings items to total
sales:
<TABLE>
<CAPTION>
Thirteen Weeks Ended
June 29, 1997 June 30, 1996
<S> <C> <C>
(unaudited)
Net Sales 100.0% 100.0%
Cost of Sales 45.7% 47.9%
----- -----
Gross Profit 54.3% 52.1%
Selling, General & Administrative Expenses 32.7% 31.8%
Research and Development Expenses 10.3% 4.3%
----- -----
Income from Operations 11.3% 16.0%
Interest Expense, Net (0.3%) (0.6%)
----- -----
Income Before Provision for Income Taxes 11.0% 15.4%
Provision for Income Taxes 3.4% 5.4%
----- -----
Net Income 7.6% 10.0%
===== =====
</TABLE>
Sales. Total sales increased by 12.6% in the third quarter of fiscal year 1997
to $3,913,000 as compared to $3,476,000 in the third quarter of fiscal year
1996. Sales of the Undersea Systems Division increased by 62.4% to $2,239,000
in the third quarter of fiscal year 1997 as compared to $1,378,000 in the third
quarter of fiscal year 1996. The increase in Undersea Systems Division sales
was largely the result of increased shipments of hydrophones used for off shore
oil exploration as well as an overall increase in the sales of the Company's
acoustic, imaging and glass flotation product lines. Sales in the Container
Inspection Systems Division were $1,674,000 in the third quarter of fiscal year
1997 as compared to $2,098,000 in the third quarter of fiscal year 1996. This
20.2% decrease is due to the timing of purchases by customers of new equipment.
Gross Profit. Gross Profit increased by 17.4% to $2,126,000 for the third
quarter of fiscal year 1997 as compared to $1,811,000 for the third quarter of
fiscal year 1996. As a percentage of sales, gross profit was 54.3% in the third
quarter of fiscal year 1997 as compared to 52.1% for the third quarter of fiscal
year 1996. The increase in gross profit percentage was attributed primarily to
sales mix within the Undersea Systems Division and overhead efficiencies related
to the increased sales volume.
<PAGE>
10
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased by 15.9% to $1,279,000 for the third quarter
of fiscal year 1997 as compared to $1,104,000 in the third quarter of fiscal
year 1996. The increase in total expenses was a result of higher selling and
advertising expenses coinciding with the increased volume and product promotion,
the costs of the Company's sales meetings held in the third quarter of 1997,
expenses related to the Company's Annual Stockholders Meeting, the investor
relations function and additional personnel necessary to support the Company's
growth . As a percentage of sales, selling, general and administrative expenses
increased to 32.7% in the third quarter of fiscal year 1997 as compared to 31.8%
for the third quarter of fiscal year 1996.
Research and Development Expenses. Research and development expenses increased
170% to $405,000 in the third quarter of fiscal year 1997 as compared to
$150,000 in the third quarter of fiscal year 1996. As a percentage of sales,
research and development expenses increased to 10.3% in the third quarter of
fiscal year 1997 from 4.3% in the third quarter of fiscal year 1996. The
increase in the overall level of expenditures is due to investments in new
product development and is consistent with the Company's current operational
plans.
Interest Expense. Interest expense, net, decreased to $12,700 in the third
quarter of fiscal year 1997 as compared to $21,000 in the third quarter of
fiscal year 1996. The decreased level of interest expense, net, was a result of
decreased borrowing under the credit line and improved interest income due to
higher cash balances invested.
Provision for Income Taxes. The provision for income taxes decreased to
$132,000 in the third quarter of fiscal year 1997 from $188,000 in the third
quarter of fiscal year 1996. The effective tax rate used in the third quarter
of fiscal year 1997 was 30.7% as compared to 35.1% in the third quarter of
fiscal year 1996. In the third quarter of fiscal year 1997, the Company
recognized a cumulative adjustment to the effective tax rate for fiscal year
1997 to 38.3% as compared to the rate of 40.3% used in the first two quarters of
fiscal year 1997. This adjustment recognizes the increased benefits to be
realized from the Company's Foreign Sales Corporation.
Results of Operations - First three quarters of fiscal year 1997 compared with
first three quarters of fiscal year 1996.
The following table presents, for the periods indicated, the percentage
relationships of Condensed Consolidated Statements of Earnings items to total
sales:
<TABLE>
<CAPTION>
Thirty-Nine Weeks Ended
June 29, 1997 June 30, 1996
<S> <C> <C>
(unaudited)
Net Sales 100.0% 100.0%
Cost of Sales 45.0% 45.7%
----- -----
Gross Profit 55.0% 54.3%
Selling, General & Administrative Expenses 31.2% 31.4%
Research and Development Expenses 7.7% 5.4%
----- -----
Income from Operations 16.1% 17.5%
Interest Expense, Net (0.4%) (0.9%)
----- -----
Income Before Provision for Income Taxes 15.7% 16.6%
Provision for Income Taxes 6.0% 5.8%
----- -----
Net Income 9.7% 10.8%
===== =====
</TABLE>
<PAGE>
11
Sales. Total sales increased by 48.6% in the first three quarters of fiscal
year 1997 to $13,189,000 as compared to $8,874,000 in the first three quarters
of fiscal year 1996. Sales of the Undersea Systems Division increased by 113.3%
to $7,957,000 in the first three quarters of fiscal year 1997 as compared to
$3,730,000 in the first three quarters of fiscal year 1996. The increase in
sales of the Undersea Systems Division was largely the result of increased
shipments of hydrophones used for off shore oil exploration as well as an
increase in sales of the Company's acoustic, imaging and glass flotation product
lines. Sales in the Container Inspection Systems Division were essentially flat
in the comparable 39 week periods.
Gross Profit. Gross Profit increased by 50.5% to $7,249,000 for the first three
quarters of fiscal year 1997 as compared to $4,817,000 for the first three
quarters of fiscal year 1996. As a percentage of sales, gross profit was 55.0%
in the first three quarters of fiscal year 1997 as compared to 54.3% for the
first three quarters of fiscal year 1996.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased by 47.9% to $4,117,000 for the first three
quarters of fiscal year 1997 as compared to $2,783,000 in the first three
quarters of fiscal year 1996. The increase in total expenses was a result of
higher selling and commission expenses coinciding with the increased volume,
investments in staff necessary to support the company's growth, expenses
relating to the registration of the Company's securities, expenses related to
obtaining the Company's listing on the Nasdaq SmallCap Market, legal expenses in
connection with the Company's proxy solicitation, costs of the Annual
Stockholders Meeting, trade show activity, sales meeting expenses, and investor
relations activities in the first three quarters of fiscal year 1997. As a
percentage of sales, selling, general and administrative expenses decreased
slightly to 31.2% in the first three quarters of fiscal year 1997 as compared to
31.4% for the first three quarters of fiscal year 1996.
Research and Development Expenses. Research and development expenses increased
110.7% to $1,008,000 in the first three quarters of fiscal year 1997 as compared
to $478,000 in the first three quarters of fiscal year 1996. As a percentage of
sales, research and development expenses increased to 7.7% in the first three
quarters of fiscal year 1997 from 5.4% in the first three quarters of fiscal
year 1996. The increase in the percentage of sales and dollars expended is due
to investments in new product development and is consistent with the Company's
current operational plans.
Interest Expense. Interest expense, net, decreased to $43,000 in the first three
quarters of fiscal year 1997 as compared to $82,000 in the first three quarters
of fiscal year 1996. The decreased level of interest expense, net, was a result
of decreased borrowing under the credit line and improved interest income due to
higher invested cash balances.
Liquidity and Capital Resources. The Company's cash and cash equivalents
increased $1,317,000 from September 30, 1996 to June 29, 1997. This increase
resulted primarily from cash generated from operations of $1,754,000. Accounts
receivable decreased $52,000 as improved collection activities offset the
increased sales volume and asset management programs were able to decrease
inventories by $893,000. Customer deposits decreased by $151,000 as the orders
related to these deposits were shipped. Cash flow from investing activities was
a use of $413,000 and resulted primarily from purchases of property, plant and
equipment of $328,000. The Company believes it is well positioned to finance
future working capital requirements and capital expenditures during the next
twelve months through cash on hand, current earnings and available credit
facilities.
<PAGE>
12
"Safe Harbor" Statement under the Private Securities Litigation Reform Act of
1995.
The statements in this Quarterly Report on Form 10-QSB and in oral statements
which may be made by representatives of the Company relating to plans,
strategies, economic performance and trends and other statements that are not
descriptions of historical facts may be forward-looking statements within the
meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of
the Securities Act of 1933 and Section 21E of the Securities Exchange Act of
1934. Forward-looking information is inherently subject to risks and
uncertainties, and actual results could differ materially from those currently
anticipated due to a number of factors which include: competitive factors,
shifts in customer demand, government spending, economic cycles, availability of
financing as well as the factors described in this report. Should one or more
of these risks or uncertainties materialize, or should underlying assumptions
prove incorrect, actual results or outcomes may vary materially from those
described herein as anticipated, believed, estimated, expected or intended.
<PAGE>
13
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
The exhibits set forth in the
Exhibit Index on the following
page are filed herewith as a
part of this report.
(b) Reports on Form 8-K
None
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
BENTHOS, INC
By /s/ Francis E. Dunne, Jr.
Francis E. Dunne, Jr
Chief Financial Officer
and Treasurer
(Principal Financial and Accounting Officer)
DATE: August 12, 1997
<PAGE>
EXHIBIT INDEX
Exhibit
3.1 Restated Articles of Organization (1)
3.2 Articles of Amendment dated April 28, 1997. (2)
3.3 By-Laws (1)
4.1 Common Stock Certificate (1)
10.1 Employment Contract with Samuel O. Raymond (1)
10.2 Amendment to Employment Contract with Samuel O. Raymond (2)
10.3 Employment Contract with John L. Coughlin (1)
10.4 Employee Stock Ownership Plan (1)
10.5 First Amendment to Employee Stock Ownership Plan (2)
10.6 401(k) Retirement Plan (1)
10.7 First Amendment to 401(k) Retirement Plan (2)
10.8 Second Amendment to 401(k) Retirement Plan (2)
10.9 Third Amendment to 401(k) Retirement Plan
10.10 Supplemental Executive Retirement Plan (1)
10.11 1990 Stock Option Plan (1)
10.12 Stock Option Plan for Non-Employee Directors(1)
10.13 License Agreement between the Company and The Penn State
Research Foundation dated December 13, 1993 (1)
10.14 Technical Consultancy Agreement between the Company and
William D. McElroy dated July 12, 1994 (1)
10.15 Technical Consultancy Agreement between the Company and
William D. McElroy dated October 1, 1996
10.16 General Release and Settlement Agreement between the Company
and Lawrence W. Gray dated February 8, 1996 (1)
10.17 Line of Credit Loan Agreement between the Company and Cape
Cod Bank and Trust Company dated September 24, 1990, as
amended (1)
<PAGE>
Exhibit
10.18 Commercial Mortgage Loan Extension and Modification
Agreement between the Company and Cape Cod Bank and Trust
Company, dated July 6, 1994 (1)
10.19 License Agreement between the Company and Optikos
Corporation dated July 29, 1997
11 Computation of Earnings Per Share
21 Subsidiaries of the Registrant (1)
27 Financial Data Schedule
(1) Previously filed as an exhibit to Registrant's Registration
Statement on Form 10-SB filed with the Commission on December 17, 1996
(File No. 0-28932) and incorporated herein by this reference.
(2) Previously filed as an exhibit to Registrant's Quarterly Report on
Form 10-QSB for the quarterly period ended March 30, 1997 (File No. O-
28932) and incorporated herein by this reference.
<PAGE>
EXHIBIT 10.9
THIRD AMENDMENT TO
BENTHOS, INC. 401(K) RETIREMENT PLAN
AS AMENDED AND RESTATED EFFECTIVE AS OF NOVEMBER 5, 1993
THIRD AMENDMENT adopted this 29/th/ day of July, 1997, by Benthos, Inc.
(hereinafter referred to as the "Company"):
WITNESSETH:
-----------
WHEREAS, the Company has heretofore adopted a defined contribution plan
known as the "Benthos, Inc. 401(k) Retirement Plan", originally effective as of
July 1, 1987, and subsequently amended as restated said Plan in the form of the
IDS Nonstandardized (S)401(k) Profit Sharing Plan Prototype, most recently
effective as of November 5, 1993 (hereinafter referred to as the "Plan"); and
WHEREAS, the Company, pursuant to Section 13.02 of the Plan, has reserved
the right to amend the Plan at any time by vote of its Board of Directors; and
WHEREAS, the Company wishes to further amend the Plan in order to change
the allocation formula for employer profit sharing contributions.
NOW, THEREFORE, effective as October 1, 1996, the Plan is hereby amended
as follows:
1. Section 3.04(B) of the Adoption Agreement and the Basic Plan document
shall be amended to read, in its entirety, as follows:
(b) Nonintegrated Allocation Formula. The Advisory Committee will
allocate the annual Employer discretionary contributions (and
Participant forfeitures) in the same ratio that each Participant's
Compensation for the Plan Year bears to the total Compensation of all
Participants for the Plan Year.
In all other respects the terms of the Plan remain unchanged and in full
force and effect.
IN WITNESS WHEREOF, the undersigned Company has caused this Third Amendment
to be executed by its duly authorized officer as of the day and year set forth
above.
BENTHOS, INC.
By: JOHN L. COUGHLIN
---------------------------
John L. Coughlin, President
<PAGE>
EXHIBIT 10.15
TECHNICAL CONSULTANCY AGREEMENT
BETWEEN:
BENTHOS, INC. (BENTHOS)
North Falmouth, Massachusetts
AND:
William D. McElroy (The Consultant)
Marine Systems Technology, Inc.
Falmouth, Massachusetts
DATED: October 1, 1996
<PAGE>
This Agreement supersedes all previous agreements, defines the terms and
conditions under which the Consultant, William D. McElroy, shall provide
services to BENTHOS and defines the rights and obligations of the parties as
part of this agreement.
A. RELATIONSHIP
1. The relationship of the Consultant to BENTHOS is that of an independent
contractor and not that of an employee of BENTHOS. All expenses for the
operation of the Consultant's business shall be borne by the Consultant. The
Consultant is solely responsible for the Consultant's employees and for their
actions.
2. The Consultant has no authority to commit BENTHOS in any matter, cause, or
undertaking without the prior written consent of BENTHOS; and, similarly,
BENTHOS has no authority to commit the Consultant in any matter, cause or
undertaking beyond the scope of this Agreement, without the prior written
consent of the Consultant. Any business travel BENTHOS may wish the
Consultant to do on its behalf shall be arranged by mutual agreement of both
parties.
3. The Consultant has no authority to make, vary, alter, enlarge, or limit
contracts or letters of intent, or to make representations or guarantees not
specifically authorized in writing by BENTHOS. The Consultant has no
authority to bind BENTHOS to any contract of employment, and no authority to
receive payments on behalf of BENTHOS.
4. Upon a breach of any of the terms and conditions of this Agreement by either
party, or should either party become insolvent, bankrupt, make an assignment
or trust mortgage for the benefit of creditors, or enter into a receivership,
this Agreement may be terminated immediately at the option of the other party
by written notice to the other.
5. The failure of either party to enforce at any time, or for any period of
time, provisions of the Agreement shall not be construed as a waiver of such
provisions or of the right of each party to enforce the terms of this
Agreement.
B. DURATION OF AGREEMENT
This Agreement is effective October 1, 1996 and remains effective indefinitely.
If either party wishes to terminate the contract, written notice shall be
provided from one party to the other at least one year prior to the desired
termination date. This Agreement may be terminated immediately by mutual
agreement of both the Consultant and BENTHOS.
2
<PAGE>
C. SCOPE OF WORK
1. The primary scope of work of the Consultant under the terms of this Agreement
is to provide engineering services to BENTHOS. This support shall include
development of new products, the enhancement of existing products, technical
assistance in marketing products, and technical assistance in generating and
maintaining the documentation used for manufacturing.
2. Any material, special test equipment or travel expenses required to
accomplish the work performed under this Agreement shall either be supplied
by BENTHOS or paid for by BENTHOS at the Consultant's cost. No such material
commitments shall be made by the Consultant without the approval of BENTHOS.
Any material or special equipment paid for by BENTHOS will become the
property of BENTHOS.
3. The actual scheduling of the tasks will be made by mutual agreement with the
Consultant. The Consultant will provide an average of 24 hours per week of
engineering services. If effort above the level contracted for in this
Agreement is required to meet the needs of BENTHOS, additional hours can be
authorized by BENTHOS.
D. REMUNERATION
BENTHOS agrees to remunerate the Consultant at the initial rate of $64.00 per
hour. This rate will be adjusted annually on October 1st of each succeeding year
of the Agreement. The rate will be changed by the same percentage BENTHOS
budgets for its average employee salary adjustments for the fiscal year starting
on the respective October 1st. This remuneration shall be the extent of BENTHOS'
financial responsibility.
E. AMENDMENTS
The Agreement may be modified, abridged or amended only by a documents or
documents in writing signed by both BENTHOS and the Consultant.
F. REPORTS
During the first week of each month the Consultant shall submit to BENTHOS a
written report of his activities with respect to BENTHOS for the preceding month
and of his planned work for the next month.
<PAGE>
G. CONFIDENTIAL INFORMATION
Through the work performed for BENTHOS, the Consultant may have had or may have
access to confidential know-how, business documents or information, marketing
data, client lists and trade secrets which are company confidential or
considered proprietary to BENTHOS. The Consultant agrees not to disclose,
directly or indirectly (except as required by law), any Proprietary Information
to any person not employed by BENTHOS without permission from the Engineering
Manager or the President of BENTHOS, and, in all such cases, only to the extent
required in the course of the Consultant's services to BENTHOS.
At the termination of this Agreement, the Consultant shall deliver to BENTHOS
all notes, letters, documents and records which may contain Proprietary
Information which are then in his possession or control, and shall not retain or
use copies or summaries of this information.
H. USE OF BENTHOS STOCKROOM
The Consultant may purchase mechanical, electrical, and electronic components
from the BENTHOS stockroom at BENTHOS' standard cost. Purchases are to be
approved by either the BENTHOS Manufacturing Manager or Materials Manager to
assure non-interference with BENTHOS' operations. Any items purchased from the
BENTHOS stockroom are for the Consultant's use in product development efforts
and are not for resale as separate items.
I. USE OF BENTHOS PRESSURE TEST AND TEST POOL FACILITIES
The Consultant may use the BENTHOS pressure test facility or the BENTHOS test
pool on a not to interfere basis. The only charge for the use of these
facilities will be for technician services which will be charged at the current
published rate. A technician is required for the operation of the pressure test
facility. A technician is not required for the use of the test pool facility.
J. NEW DEVELOPMENTS
The Consultants shall promptly and fully disclose in writing to BENTHOS, or such
other person as BENTHOS may designate, all ideas, designs, programs, methods,
inventions, improvements, discoveries and writings, including any modifications
or improvements of products, new products or applications thereof, whether or
not patentable or copyrightable, and whether or not reduced to practice, made or
conceived by him (either solely or in collaboration with others) which may
arise as part of the work performed for BENTHOS under the scope of this
Agreement. The Consultant acknowledges that all such New Developments are the
exclusive property of BENTHOS and hereby agrees to assign all right, title and
interest in and to such New Developments to BENTHOS.
4
<PAGE>
K. CONFLICT OF INTEREST
The Consultant agrees that while this Agreement is active the Consultant shall
not knowingly provide consulting services to any other company to develop
products directly competitive with those BENTHOS sells as standard products or
is developing for future sales.
L. AGREEMENT ACCEPTANCE SIGNATURES
Benthos,Inc. John L. Coughlin 1/9/97
---------------- ------
William D. McElroy William D. McElroy 1/13/97
------------------ -------
<PAGE>
EXHIBIT 10.19
LICENSE AGREEMENT
BETWEEN
BENTHOS, INC.
AND
OPTIKOS CORPORATION
JULY 29, 1997
<PAGE>
LICENSE AGREEMENT
AGREEMENT made as of the 29th day of July, 1997 between OPTIKOS
CORPORATION, a Massachusetts corporation with a principal place of business
located at 286 Cardinal Medeiros Avenue, Cambridge, Massachusetts 02141
("Optikos") and BENTHOS, INC., a Massachusetts corporation with a principal
place of business located at 49 Edgerton Drive, North Falmouth, Massachusetts
02556 ("Benthos").
WITNESSETH:
WHEREAS, Benthos is engaged in the packaged product inspection industry;
WHEREAS, Optikos is the owner of certain Technology, as hereinafter
defined;
WHEREAS, Benthos and Optikos have been co-developing the Technology with
a view to Benthos acquiring an exclusive worldwide license to the Technology;
and
WHEREAS, Optikos and Benthos want to reduce their agreement with respect
to the licensing of the Technology to writing.
NOW, THEREFORE, in consideration of the premises, and the mutual
covenants, conditions and agreements hereinafter set forth, Optikos and Benthos
intending to be legally bound, hereby mutually agree as follows:
1. DEFINITIONS
-----------
1.1 "AGREEMENT" shall mean this Agreement.
1.2 "ANNUAL EXCLUSIVITY AMOUNT" shall mean the sum of Twenty Thousand
($20,000.00) Dollars.
1.3 "CONFIDENTIAL INFORMATION" shall mean trade secrets, know how, materials,
data, procedures, financial information, customer information, business
strategies, technical information of both Optikos and Benthos which is not
readily available or otherwise known by the public.
1.4 "DELIVERABLES" shall mean the items listed on Appendix B hereto which
perform as described in Appendix A hereof.
1.5 "DELIVERY DATE" shall mean the date on which the Deliverables are
delivered by Optikos to Benthos pursuant to Section 5 hereof.
-1-
<PAGE>
1.6 "DOCUMENTATION" shall mean copies of any tangible information in
existence as of the Delivery Date which were generated by Optikos hereunder to
document the structure and operation of the Deliverables.
1.7 "EXCLUSIVITY DIFFERENTIAL AMOUNT" shall mean the amount computed by
subtracting the amount of License Fees paid to Optikos with respect to a fiscal
year from the Annual Exclusivity Amount.
1.8 "FIELD OF USE" shall mean the packaged product inspection industry,
including without limitation, packaged products containing solid, liquid,
gaseous, vacuums, and contents consisting of various combinations thereof, and
packaging of all kinds, including without limitation, paper, aluminum, glass,
metal, plastic, cardboard, and the like. All other fields of use are reserved
to Optikos.
1.9 "FIRST YEAR" shall mean that fiscal year of Benthos commencing on October
1, 1997, or if the fiscal year of Benthos is subsequently changed on the first
fiscal year of Benthos to commence after January 1, 1997.
1.10 "LICENSE FEES" shall mean the monies specified in Section 8. hereof to be
paid by Benthos to Optikos for the rights in the Technology granted by Optikos
to Benthos herewith.
1.11 "NET SELLING PRICE" shall mean, in the event the Product is sold or
leased on a stand alone basis, then the gross selling price or rental payments
for the Product less any of the following but only insofar as they pertain to
the sale or lease of the Product by Benthos and are included in such gross
selling price or rental payment.
A. sales or excise taxes paid directly or indirectly by Benthos;
B. any shipping costs actually paid and separately itemized by
Benthos; and
C. normal and customary trade discounts, returns, and allowances
actually paid or allowed.
In those instances where the Product is sold or leased bundled or as a
part of a system or with other products of Benthos, the Net Selling Price shall
be determined by multiplying the Net Selling Price or rental of the bundled
product by a fraction, the numerator of which is the list price of the Product
and the denominator of which is the total price of all products in the bundled
product comprising the Product.
1.12 "PRODUCT" shall mean an optically based inspection machine to be utilized
in the Field of Use.
-2-
<PAGE>
1.13 "STATEMENT OF WORK" shall mean the development work described on Appendix
C hereto.
1.14 "TECHNOLOGY" shall mean certain property rights, concepts and
technologies related to the optical detection of characteristics of packaged
containers (including height of fill) which includes all of the following
intellectual property of Optikos:
A. United States Patent Provisional Application No. 60/042377
filed on March 24, 1997 and attached hereto as Appendix A.
B. Any releases, extensions, divisional applications,
continuations or continuations in part of the patents
described in Subparagraph A above and any patents issuing as a
result of such applications;
C. All foreign counterparts of the items described in
Subparagraph A and B above;
D. Other trade secrets, know how and other information related to
the subject matter hereof communicated by any means from
Optikos to Benthos provided it is related to the contents of
Appendix A; and
E. The Documentation.
1.15 "TERM" shall mean perpetual.
2. OWNERSHIP OF RIGHTS
-------------------
Optikos represents and warrants that Optikos, to the best of its
knowledge, is the sole and exclusive owner of the Technology. With the exception
of the rights granted herein to Benthos, all other rights with respect to the
Technology are expressly reserved by Optikos.
3. GRANT
-----
Optikos hereby grants to Benthos an exclusive, nonassignable,
nontransferable, worldwide, license to use the Technology solely in the
association with the manufacture, lease, sale, use, advertising, marketing or
distribution of the Product in the Field of Use. Benthos may sublicense the
rights granted hereunder provided that such sublicenses are consistent with the
license granted hereunder. Any sublicense granted by Benthos in violation of
this provision shall be void and shall be deemed to be a material breach of this
Agreement. Optikos will provide Benthos with any enhancements, modifications or
improvements to the Technology, provided such shall be based on or derived from
the Deliverables. Benthos hereby provides Optikos with a royalty-free,
worldwide, nonexclusive license to any modifications, improvements and
enhancements to the
-3-
<PAGE>
Technology that Benthos makes provided that such shall be based on or derived
from the Deliverables and that the nonexclusive license shall be limited to the
fields of use reserved hereunder by Optikos.
4. DEVELOPMENT COSTS
-----------------
Benthos shall pay for certain development costs with respect to the
Technology, the Documentation and the creation of a prototype Product, provided
that:
4.1 all development costs are approved in advance in writing by Benthos;
4.2 all development costs are related to the Statement of Work; and
4.3 the aggregate of such development costs up to and including the Delivery
Date shall not exceed the amounts set forth in Appendix C hereto.
5. DELIVERABLES
------------
The Deliverables shall be delivered by Optikos to Benthos on or before
December 31, 1997. Failure to deliver the Deliverables in a timely manner shall
be a material breach of the Agreement.
6. ACCEPTANCE
----------
Upon receipt of the Deliverables, Benthos shall have thirty (30) calendar
days to inspect the Deliverables and insure that the Deliverables satisfy the
specifications set forth in the Statement of Work. In the event that Benthos
determines that the Deliverables do not meet the specifications of the Statement
of Work, Benthos shall provide written notice to Optikos within said thirty (30)
day period of the nonconformity of the Deliverables to the specifications and
return the nonconforming portion of the Deliverables to Optikos. Optikos will
use reasonable commercial efforts at the expense of Optikos to cure the
nonconformity as soon as possible but in all events within thirty (30) days of
the receipt of the nonconforming Deliverables. If such nonconformity cannot be
cured by Optikos within such thirty (30) day period, then Benthos shall have a
period of thirty (30) days thereafter to cure the nonconformity. If the
nonconformity cannot be cured, then Benthos may elect to terminate this
Agreement. If such nonconformity is cured by Benthos, any expenses incurred by
Benthos shall be credited against further License Fees payable to Optikos. The
acceptance of the Deliverables by Benthos will be deemed to have occurred upon
the first to occur of the following:
-4-
<PAGE>
6.1 written notification of acceptance by Benthos to Optikos within thirty
(30) days after the Delivery Date;
6.2 expiration of thirty (30) calendar days after the Delivery Date without
written notice of nonacceptance by Benthos having been received by Optikos; or
6.3 Benthos sells or leases the Product in a commercial sale or rental.
7. EXPORT CONTROLS
---------------
It is understood that Optikos and Benthos are subject to the United
States law and regulations controlling the export of technical data, computer
software, laboratory prototype and other commodities, and that their obligations
hereunder are contingent on compliance with applicable United States export laws
and regulations. The transfer of certain technical data and commodities may
require a license from the cognizant agency of the United States Government
and/or written assurances by Benthos that Benthos shall not export data or
commodities to certain foreign countries without prior approval of such agency.
Optikos neither represents that a license shall not be required nor that, if
required, it shall be issued. Benthos shall be responsible for payment of all
reasonable costs, attendant to securing said licenses.
8. LICENSE FEES
------------
8.1 Benthos shall pay a License Fee to Optikos for each Product sold or
leased in a commercial transaction equal to the following of the Net Selling
Price: ten (10) percent for up to twenty (20) units shipped, 7.5 percent for
between 21 and 50 units shipped, 6.5 percent for between 51 and 100 units
shipped, and 5 percent for each units over 100 units shipped. For the purposes
hereof, the License Fee of Optikos will be deemed to be computed based on units
of Product invoiced by Benthos during the fiscal year.
8.2 In all events, this Agreement will be an exclusive license of Technology
in the Field of Use for the period prior to the commencement of the First Year.
After the commencement of the First Year and in the event that, during any
fiscal year of Benthos commencing with the First Year, Optikos receives License
Fees attributable to a particular fiscal year which are less than the Annual
Exclusivity Amount, then Benthos may either (i) elect to pay the Exclusivity
Differential Amount to Optikos and maintain the exclusive nature of the license
of the Technology in the Field of Use; or (ii) not pay the Exclusivity
Differential Amount and allow this Agreement to become a nonexclusive license of
the Technology in the Field of Use commencing on the 61/st/ day after the end of
such fiscal year. In all events, if Optikos receives the Annual Exclusivity
Amount with respect to the preceding fiscal year of the Company in accordance
with the above provisions, this Agreement will be deemed to be an exclusive
license of the Technology in the Field of Use by Optikos to Benthos for the
subsequent year. The election hereunder must be made by Benthos
-5-
<PAGE>
within sixty (60) days of the end of the preceding fiscal year. If the Annual
Exclusivity Amount was not received in License Fees attributable to a particular
fiscal year, then Benthos will be deemed to have waived the exclusive rights of
Benthos to license the Technology in the Field of Use if the Exclusivity
Differential Amount has not been paid to Optikos within sixty (60) days of the
end of the pertinent fiscal year. In all events, if Optikos receives License
Fees which are at least equal to the Annual Exclusivity Amount with respect to
any fiscal year, commencing with the First Year, within sixty (60) days of the
end of such fiscal year, then this Agreement will remain exclusive for the next
subsequent fiscal year without any further action on the part of Optikos or
Benthos.
8.3 No multiple License Fees shall be payable as a result of the
manufacturer, sale or lease of the Product involving the Technology in the event
it may be covered by more than one patent application or patent However, all
License Fees and Annual Exclusivity Fees shall be paid hereunder as long as
Product is based on, incorporates or is derived from Technology.
8.4 All License Fees or any other amounts required to be paid hereunder shall
be paid in United States Dollars at the principal place of business of Optikos
in Cambridge, Massachusetts or at such other address as Benthos may be directed
from time to time in writing by Optikos.
8.5 All License Fees provided for under this Agreement shall accrue when the
Product is sold.
8.6 Benthos shall keep full, true and accurate books of account and records
containing all particulars that may be necessary for the purposes of showing the
amounts payable to Optikos hereunder. Said books of account shall be kept at the
principal place of business or the principal place of business of the
appropriate division of Benthos to which this Agreement relates. Said books and
the supporting data shall be open at all reasonable times for three (3) years
following the end of the fiscal year to which they pertain, to the inspection of
independent certified public accountants to be proposed by Optikos and approved
by Benthos, said approval not to be unreasonably withheld, for the purpose of
verifying License Fees or compliance in other respects with this Agreement, such
inspection is to occur no more than once each calendar year upon reasonable
prior notice to Benthos. The expense of such inspection shall be borne by
Optikos unless such inspection reveals a deficiency of at least 15% in payments
due to Optikos by Benthos in which case Benthos shall pay for such inspection.
8.7 The License Fees shall be payable to Optikos within one (1) month after
the end of each quarter of the fiscal year of Benthos. Benthos shall have the
option of paying any portions of the License Fees herein provided at any time
earlier than that specified. Each payment of License Fees shall be accompanied
by true and accurate reports giving such particulars of the business conducted
by Benthos during the period to which such payment applies under this Agreement
ending thirty (30) days prior to such payment date as shall be pertinent to an
accounting hereunder.
8.8 The License Fees set forth in this Agreement shall, if overdue, bear
interest until payment at the rate of 1.5% per month. The payment of such
interest shall not foreclose Optikos from
-6-
<PAGE>
exercising any other rights Optikos may have as a consequence of the lateness of
any payment.
9. WARRANTIES
----------
9.1 LICENSOR REPRESENTATIONS AND WARRANTIES. Optikos has no knowledge of any
third party claims regrading proprietary rights in the Property which would
interfere with the rights granted under this Agreement. EXCEPT AS PROVIDED IN
THIS AGREEMENT, Optikos MAKES NO OTHER WARRANTY EXPRESS OR IMPLIED WITH RESPECT
TO ITS PROPERTY. ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE ARE EXPRESSLY EXCLUDED.
9.2 LICENSEE REPRESENTATIONS AND WARRANTIES. Benthos warrants that the
Product and any other articles covered by this Agreement and its policy of sale
and exploitation shall be of such standard as the best quality of similar
products presently sold by Benthos in the Territory and shall be in full
conformance with all applicable laws and regulations.
9.3 The provisions of this Section shall survive any termination.
10. INDEMNIFICATION
---------------
10.1 INDEMNIFICATION BY LICENSOR. Optikos shall indemnify Benthos from any
damages arising from any breach of Optikos' warranties in Section 9 hereof
provided: (a) such claim, if sustained, would prevent Benthos form marketing the
Products or the Technology; (b) such claim arises solely out of the Property as
disclosed to the Benthos, and not out of any change in the Technology made by
Benthos or a vendor of Benthos, or by reason of any off-the-shelf component or
by reason of any claim for trademark infringement; (c) Benthos gives Optikos
prompt written notice of any such claim; (d) such indemnity shall only be
applicable in the event of a final decision by a court of competent jurisdiction
from which no appeal of right exists; and (e) that the maximum amount due from
Optikos to Benthos under this paragraph shall not exceed fifty (50%) percent of
amount due to Optikos under Section 8 from the date that Benthos notifies
Optikos of the existence of such a claim as made in writing by a third party.
Before the institution of a suit against Benthos coming within the scope of this
Section, and after such notice, Benthos may take as a credit against fifty (50%)
percent of royalties due after notification, its reasonable legal fees and
expenses paid to outside counsel in connection with such claim. After the
commencement of a suit against Benthos or a customer of Benthos coming within
the scope of this paragraph, Benthos may place fifty percent of the royalists
thereafter due to Optikos under Section 5. in a separate interest bearing fund
hereinafter referred to a "Legal Fund". Benthos may draw against such Legal Fund
to satisfy all the reasonable expenses of defending such suit paid to outside
counsel and third parties and of any judgment or settlement made therein. In the
event the Legal Fund shall be insufficient to pay the then current defense
obligations, Benthos may advance monies on behalf of said Legal Fund and shall
be reimbursed as payments are credited to the Legal Fund. Optikos'
-7-
<PAGE>
and Optikos' agent's liability to Benthos shall not extend beyond the loss of
its royalty deposit in the Legal Fund as set forth in this paragraph. After such
suit has been concluded by settlement or otherwise, any balance remaining in the
Legal Fund shall be paid to Optikos and all future royalties due to Optikos
shall be paid to Optikos as they would otherwise become due. Benthos shall not
permit the time for appeal from an adverse decision on a claim to expire or
settle such a claim without the consent of Optikos, which consent shall not be
unreasonably withheld.
10.2 INDEMNIFICATION BY LICENSEE. Benthos hereby indemnifies Optikos and
undertakes to defend Optikos and hold Optikos harmless (including without
limitation attorney's fees and costs) from any claims arising out of or incurred
in connection with any allegedly unauthorized use of any patent, process, idea,
method, device, or copyright by Benthos in connection with the Product, the
Property or any other articles covered by this Agreement or any other alleged
action by Benthos and also from any claims arising out of advertising
distribution or marketing of the Product, provided that, such indemnity shall
only be applicable in the event of a final decision by a court of competent
jurisdiction and the maximum amount of such indemnity shall not exceed the total
amount of License Fees paid to Optikos.
11. PROPRIETARY RIGHTS; TITLE
-------------------------
Optikos may, but is not obligated to seek, in its own name and its own
expense, appropriate patent, trademark or copyright protection in the United
States for the Technology and Optikos makes no warranty or representation with
respect to the validity of any patent, trademark or copyright which may be
granted with respect to the Property. Optikos grants to Benthos the right to
apply for foreign patents on the Property or Product provided that such patents
shall be applied for in the name of Optikos and licensed to Benthos during the
Term and pursuant to the conditions of this Agreement. Benthos shall have the
right to deduct its reasonable out of pocket expenses for the preparation,
filing and prosecution of any such foreign patent application (but in no event
more than $10,000 for all applications from future royalties due to Optikos
under the terms of this Agreement. Benthos shall obtain Optikos' prior written
consent before incurring expenses for any foreign patent application. This
Agreement is conditioned on Benthos's compliance with the provisions of the
trademark, patent and copyright laws of the United States and any foreign
country in the Territory. All copies of the Product as well as all promotional
material shall bear appropriate proprietary notices. Benthos, if it so desires,
may commence or prosecute any claims or suits against third parties regarding
such title or rights in its own name. Benthos shall notify Optikos in writing of
any infringements or imitations by others of the Product, or trademarks of
Optikos on articles similar to those covered by this Agreement which may come to
Benthos' attention. Benthos shall not institute any suit or take any action on
account of any such infringements or imitations without first obtaining the
written consent of Optikos to do so and such consent shall not be unreasonably
withheld. Optikos will cooperate fully and in good faith with Benthos for the
purpose of securing and preserving Benthos' (or any grantor of Benthos') rights
in and to the Technology and any works derived from the Technology. Any
recovery, (including but not limited to a licensing agreement included as
resolution of an infringement of an
-8-
<PAGE>
infringement dispute) procured by Benthos whether by judgment, settlement or
otherwise shall be divided equally between Optikos and Benthos after deduction
of Benthos' reasonable attorney's fees in procuring such recovery.
12. CONFIDENTIALITY
---------------
Optikos and Benthos acknowledge that each may be furnished or may
otherwise receive or have access to Confidential Information. The parties agree
to preserve and protect the confidentiality of the Confidential Information. The
terms, provisions and substance of this Agreement shall remain within the
strictest confidence of all parties, and no party shall disclose such
information to third parties without the prior written consent of the other
unless required to do so by law. The provisions of this Section shall survive
the termination of this Agreement.
13. INSURANCE
---------
Benthos shall, throughout the Term obtain and maintain, at its own
expense, standard product liability insurance coverage. Such policy shall: (a)
be maintained with a carrier having a Moody's rating of at least B; and (b)
provide protection against any and all claims, demands and causes of action
arising out of any defects or failure to perform, alleged or otherwise, of the
Products or any use of the Licensed Products. The amount of coverage shall be a
minimum of $2,000,000 combined single limit. Benthos shall furnish Optikos with
a certificate from its product liability insurance carrier evidencing such
insurance coverage and in no event shall Benthos distribute the Product prior to
receipt by Optikos and Agent of such evidence of insurance.
14. TERMINATION
-----------
The parties shall have the right to terminate this Agreement and the
license granted in this Agreement as follows:
14.1 TERMINATION FOR BREACH. Any party shall have the right to terminate this
Agreement at any time if any other party materially breaches any of its
obligations pursuant to this Agreement and such breach is not cured within
thirty (30) days after written notice from the nonbreaching party.
14.2 OPTIKOS' RIGHT TO TERMINATE. Optikos shall have the right to terminate
this Agreement in the event that Benthos (a) terminates or suspends its
business; (b) Benthos fails to pay License Fees when due, or fails to accurately
report net sales as defined in the payment section of this Agreement; (c) makes
an assignment for the benefit of creditors; (d) becomes subject to any voluntary
or involuntary order of any governmental agency involving the recall of any of
the
-9-
<PAGE>
Product because of safety, health, or other hazards or risks to the public; (e)
fails to maintain or obtain product liability insurance as required by the
provisions of this Agreement; (f) becomes insolvent or becomes subject to direct
control by a trustee, receiver or similar authority for a period of more than
thirty (30) days; (g) attempts to assign or sublicense rights without the
permission of Optikos; or (h) fails to commence sale of the Product within a
reasonable period of time following acceptance of the Technology by Benthos
after the Delivery Date in accordance with Section 6 hereof provided that, any
such breach is not cured by Benthos within thirty (30) days written notice to
Benthos by Optikos of the alleged breach.
14.3 EFFECT OF TERMINATION OR EXPIRATION. Upon expiration or termination of
this Agreement, all obligations with respect to License Fees shall be satisfied
by Benthos. After the expiration or termination of this Agreement, all rights
granted to Benthos under this Agreement shall revert to Optikos, and Benthos
will refrain from further manufacturing, copying, marketing, distribution, or
use of the Product or other product which incorporates the Technology. Within
thirty (30) days after termination or expiration, Benthos shall deliver to
Optikos a statement indicating the number and description of the Product which
it has on hand or is in the process of manufacturing as of the expiration or
termination date. After expiration of the Agreement, Benthos, may sell Product
which Benthos has on hand, in process, or for which there are outstanding
purchase orders on the termination date, for a period of one year after
termination or expiration except that Benthos shall have no such right in the
event: (a) of a government recall of the Product, (b) Benthos' failure to secure
or maintain insurance as required by this Agreement; or (c) Benthos' failure to
accelerate and pay all License Fees and furnish all statements for that period.
Benthos acknowledges that its failure to halt the sale, distribution or
manufacture of the Product after termination or expiration of this Agreement
will result in immediate and irremediable damage to Optikos. Benthos
acknowledges that there is no adequate remedy at law for such failure to cease
copying, manufacture, and distribution and that in the event of such failure
Optikos shall be entitled to equitable relief by way of temporary and permanent
injunctions and such other further relief as any court with jurisdiction may
deem just and proper. No party to this Agreement shall be liable by reason of
termination of this Agreement to the other for damages on account of any loss of
prospective profits on anticipated sales or on account of expenditures,
investments, leases or other commitments relating to the business or goodwill of
any party, notwithstanding any law to the contrary.
15. MISCELLANEOUS
-------------
15.1 ATTACHMENTS AND EXHIBITS. Any material contained in an attachment,
exhibit or addendum to this Agreement shall be incorporated in this Agreement.
From time to time, the parties may revise the information specified in the
attachments or exhibits. Such revisions, if executed by all parties, shall be
incorporated in this Agreement and shall be binding on the parties.
15.2 ATTORNEY'S FEES AND EXPENSES. Each party shall pay its own attorney's
fees incurred in enforcing this Agreement.
-10-
<PAGE>
15.3 ENTIRE UNDERSTANDING. This Agreement expresses the full, complete and
exclusive understanding of the parties with respect to the subject matter hereof
and supersedes all prior proposals, representations, agreements and
understandings, whether written or oral.
15.4 FORCE MAJEURE. Dates or times by which any party is required to make
performance under this Agreement shall be postponed automatically to the extent
that any party is prevented from meeting them by strikes, Wars, Acts of God, or
other causes beyond their reasonable control, except that if such conditions
persist for a period of six months and are particular to Benthos as opposed to
the toy industry as a whole, then Optikos may terminate this Agreement.
15.5 ASSIGNMENT. Benthos may not assign or transfer its rights or obligations
pursuant to this Agreement without the prior written consent of Optikos which
consent shall not be unreasonably withheld, delayed or qualified. Any assignment
or transfer in violation of this Section shall be void.
15.6 ARBITRATION. If a dispute arises between the parties arising under or
relating to this Agreement, the parties agree to submit such dispute to
arbitration in the Commonwealth of Massachusetts conducted on a confidential
basis pursuant to the Commercial Arbitration Rules of the American Arbitration
Association. Any decision or award as a result of any such arbitration
proceeding shall be in writing and shall provide an explanation for all
conclusions of law and fact and shall include the assessment of costs, expenses
and reasonable attorney's fees. Any such arbitration shall be conducted by an
arbitrator experienced in merchandising or licensing law and shall include a
written record of the arbitration hearing. The parties reserve the right to
object to any individual who shall be employed by or affiliated with a competing
organization or entity. An award of arbitration may be confirmed in a court of
competent jurisdiction.
15.7 WAIVER. The waiver or failure of any party to exercise in any respect any
right provided for herein shall not be deemed a waiver of any further right
under this Agreement.
15.8 NO JOINT VENTURE. No party shall represent themselves to be the employee,
franchisee, franchisor, joint venturer, officer or partner of the other party
and nothing in this Agreement shall be construed to place the parties in the
relationship of partners or joint venturers.
15.9 INVALIDITY. If any provision of this Agreement is invalid under any
applicable statute or rule of law, it is to that extent to be deemed omitted and
the remaining provisions of this Agreement shall in no way be affected or
impaired thereby.
15.10 GOVERNING LAW. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts.
15.11 NOTICES. Any notice or communication required or permitted to be given
under this Agreement shall be sufficiently given when mailed by certified mail,
postage prepaid, or sent by facsimile transmission, cable or overnight courier,
charges prepaid, in each case properly
-11-
<PAGE>
addressed to the addresses of the parties indicated on the signature page and
such notice shall be deemed to have been given as of the date so mailed or sent.
OPTIKOS: OPTIKOS CORPORATION
By STEPHEN D. FANTONE
---------------------
Stephen D. Fantone
President
BENTHOS: BENTHOS, INC.
By: JOHN L. COUGHLIN
---------------------
John L. Coughlin
President and ChiefExecutive Officer
-12-
<PAGE>
EXHIBIT 11
BENTHOS, INC. AND SUBSIDIARY
COMPUTATION OF EARNINGS PER SHARE
<TABLE>
<CAPTION>
Thirteen Weeks Thirty-Nine Weeks
Ended Ended
June 29, 1997 June 30, 1996 June 29, 1997 June 30, 1996
<S> <C> <C> <C> <C>
Net Income $297,580 $347,658 $1,283,513 $957,530
-------- -------- ---------- --------
Weighted average common shares
outstanding 836,000 790,000 821,000 790,000
Common stock equivalents outstanding
pursuant to the treasury stock method 77,000 108,000 93,000 86,000
-------- -------- --------- --------
Weighted average number of common and
common equivalent shares outstanding 913,000 898,000 914,000 876,000
======== ======== ========== ========
Net income per common and common
equivalent share outstanding $ .33 $ .39 $ 1.41 $ 1.09
======== ======== ========== ========
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED FINANCIAL STATEMENTS OF BENTHOS, INC. CONTAINED ELSEWHERE IN THIS
QUARTERLY REPORT AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> SEP-30-1997
<PERIOD-END> JUN-29-1997
<CASH> $2,068,584
<SECURITIES> 0
<RECEIVABLES> 1,467,158
<ALLOWANCES> 127,593
<INVENTORY> 2,658,524
<CURRENT-ASSETS> 7,039,148
<PP&E> 5,963,240
<DEPRECIATION> 3,992,003
<TOTAL-ASSETS> 9,246,056
<CURRENT-LIABILITIES> 1,681,546
<BONDS> 797,204
0
0
<COMMON> 69,318
<OTHER-SE> 6,697,988
<TOTAL-LIABILITY-AND-EQUITY> 9,246,056
<SALES> 13,189,079
<TOTAL-REVENUES> 13,189,079
<CGS> 5,940,211
<TOTAL-COSTS> 4,117,273
<OTHER-EXPENSES> 1,007,819
<LOSS-PROVISION> 22,500
<INTEREST-EXPENSE> 59,116
<INCOME-PRETAX> 2,080,315
<INCOME-TAX> 796,802
<INCOME-CONTINUING> 1,283,513
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,283,513
<EPS-PRIMARY> 1.41
<EPS-DILUTED> 1.41
</TABLE>
