<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 DECEMBER 31, 1999
/ / Transition report under Section 13 or 15(d) of the Exchange Act For the
transition period from ____________ to ______________
Commission file number 0-29024
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 $.06 2/3 1,375,294
(Class) (Outstanding stock at February 9, 2000)
Transitional Small Business Disclosure Format (check one):
Yes No X
-------- --------
<PAGE>
2
BENTHOS, INC. AND SUBSIDIARY
FORM 10-QSB
FOR THE THIRTEEN WEEKS ENDED
DECEMBER 31, 1999
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
December 31, 1999 and
September 30, 1999
Condensed Consolidated Statements of Earnings (unaudited) 4
Thirteen Weeks Ended
December 31, 1999 and
December 31, 1998
Condensed Consolidated Statements of Cash Flow (unaudited) 5
Thirteen Weeks Ended
December 31, 1999 and
December 31, 1998
Notes to Financial Statements 6-8
Item 2. Management's Discussion and Analysis 9-11
of Financial Condition and Results
of Operations
PART II
OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K 12
Signatures 12
</TABLE>
<PAGE>
3
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
Benthos, Inc. and Subsidiary
Condensed Consolidated Balance Sheets
(in thousands, except per share amounts)
(unaudited)
<TABLE>
<CAPTION>
Assets December 31, 1999 September 30, 1999
----------------- ------------------
<S> <C> <C>
Current Assets:
Cash and Cash Equivalents $ 1,736 $ 2,930
Accounts Receivable, Net 3,438 2,432
Inventories 4,281 4,794
Prepaid Expenses and Other Current Assets 776 734
Deferred Tax Asset 1,299 1,299
-------- --------
Total Current Assets 11,530 12,189
Property, Plant and Equipment, Net 1,745 1,779
Other Assets, Net 4,756 4,819
-------- --------
$ 18,031 $ 18,787
======== ========
Liabilities and Stockholders' Investment
Current Liabilities:
Current Maturities of Long Term Debt $ 786 $ 786
Accounts Payable 1,331 1,292
Accrued Expenses 1,704 2,311
Customer Deposits 247 391
-------- --------
Total Current Liabilities 4,068 4,780
-------- --------
Long-Term Debt, Net of Current Maturities 4,452 4,649
Stockholders' Investment:
Common Stock, $.06 2/3 par value-
Authorized - 7,500 shares
Issued - 1,649 shares at December 31, 1999
and September 30, 1999 110 110
Capital in Excess of Par Value 1,546 1,546
Retained Earnings 8,516 8,437
Treasury Stock, at Cost (661) (735)
-------- --------
Total Stockholders' Investment 9,511 9,358
-------- --------
$ 18,031 $ 18,787
======== ========
</TABLE>
See accompanying notes to Condensed Consolidated Financial Statements
<PAGE>
4
Benthos, Inc. and Subsidiary
Condensed Consolidated Statements of Earnings
(in thousands, except per share amounts)
(unaudited)
<TABLE>
<CAPTION>
Thirteen Weeks Ended
December 31, 1999 December 31, 1998
----------------- -----------------
<S> <C> <C>
Net Sales $ 5,411 $ 3,835
Cost of Sales 3,286 2,344
------- -------
Gross Profit 2,125 1,491
Selling, General & Administrative Expenses 1,345 905
Research and Development Expenses 464 285
Amortization of Goodwill and Other
Acquired Intangibles 123 0
------- -------
Income from Operations 193 301
Interest Income 28 36
Interest Expense (109) --
------- -------
Income before Provision for Income Taxes 112 337
Provision for Income Taxes 34 121
------- -------
Net Income $ 78 $ 216
======= =======
Basic Earnings Per Share $ 0.06 $ 0.16
======= =======
Diluted Earnings Per Share $ 0.06 $ 0.16
======= =======
Common Shares Outstanding 1,368 1,350
======= =======
Common Shares Outstanding,
Assuming Dilution 1,412 1,381
======= =======
</TABLE>
See accompanying notes to Condensed Consolidated Financial Statements
<PAGE>
5
Benthos, Inc. and Subsidiary
Condensed Consolidated Statements of Cash Flow
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
Thirteen Weeks Ended
December 31, 1999 December 31, 1998
----------------- -----------------
<S> <C> <C>
Cash Flows From Operating Activities:
Net Income $ 78 $ 216
Adjustments to Reconcile Net Income to Net Cash (Used In)
Provided by Operating Activities:
Depreciation and Amortization 347 160
Changes in Assets and Liabilities:
Accounts Receivable (1,006) (175)
Inventories 513 (251)
Prepaid Expenses and Other Current Assets (42) 152
Accounts Payable & Accrued Expenses (568) (46)
Customer Deposits (144) 13
------- -------
Net Cash (Used In) Provided by Operating Activities (822) 69
Cash Flows from Investing Activities:
Purchases of Property, Plant & Equipment (105) (18)
(Increase) Decrease in Other Assets (70) 12
------- -------
Net Cash by Used in Investing Activities (175) (6)
Cash Flows from Financing Activities:
Payments on long-term debt, net (197) ---
------- -------
Net (Decrease) Increase in Cash and Cash Equivalents (1,194) 63
Cash and Cash Equivalents, Beginning of Period 2,930 2,509
------- -------
Cash and Cash Equivalents, End of Period $ 1,736 $ 2,572
======= =======
Supplemental Disclosure of Cash Flow Information:
Interest Paid $ 105 $ ---
======= =======
Income Taxes Paid, Net of Refunds $ 100 $ 29
======= =======
Supplemental Disclosure of Noncash Activities:
Issuance of Treasury Stock to the Company's ESOP $ 74 $ 42
======= =======
</TABLE>
See accompanying notes to Condensed Consolidated Financial Statements
<PAGE>
6
Benthos, Inc. and Subsidiary
Notes to Financial Statements
(In thousands, except per share amounts)
1. Fiscal Periods
The fiscal year of Benthos, Inc. (the Company) ends on September 30 each year.
Interim quarters are comprised of 13 weeks unless otherwise noted and end on the
Sunday closest to December 31, March 31, and June 30. All references in the
unaudited condensed consolidated financial statements to fiscal periods ended on
December 31, March 31, or June 30 mean the interim quarters referred to above.
2. Basis of Presentation
The accompanying unaudited condensed consolidated financial statements have been
prepared by the Company 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, 1999, 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 interim period are not necessarily indicative of the results
to be expected for the full fiscal year. Certain reclassifications have been
made to the 1999 financial statements to conform with the 2000 presentation.
3. Acquisition
On August 19, 1999, the Company acquired substantially all of the assets and
assumed certain liabilities of Datasonics, Inc. for approximately $6,732,
including acquisition costs. The acquisition was accounted for using the
purchase method of accounting in accordance with Accounting Principles Board
Opinion No. 16. Accordingly, the results of the operations of Datasonics have
been included in the accompanying consolidated financial statements from the
date of acquisition.
Unaudited pro forma operating results for the Company, assuming the Acquisition
of Datasonics occurred on October 1, 1998 are as follows:
<TABLE>
<CAPTION>
Three Months Ended
December 31,
1998
<S> <C>
Pro forma net sales $5,973
=====
Pro forma net income $181
===
Pro forma net income per share -
Basic $.13
===
Diluted $.13
===
</TABLE>
<PAGE>
7
4. Inventories
Inventories are stated at the lower of cost (first-in, first-out) or market and
consist of the following:
<TABLE>
<CAPTION>
December 31, 1999 September 30, 1999
----------------- ------------------
<S> <C> <C>
Raw Materials $ 613 $ 891
Work-in-Process 3,607 3,861
Finished Goods 61 42
----- -----
$4,281 $4,794
======= ======
</TABLE>
5. Earnings Per Share
Basic earnings per share excludes dilution and is computed by dividing net
earnings by the weighted average number of common shares outstanding for the
period. Diluted earnings per share reflects the potential dilution that could
occur if securities or other contracts to issue common stock were exercised or
converted into common stock. Diluted earnings per share is computed based upon
the weighted average number of common shares and dilutive common equivalent
shares outstanding. Common stock options have a dilutive effect on earnings per
share in all periods and are therefore included in the computation of diluted
earnings per share. The Company has stock options for 135 shares of common stock
at an average exercise price of $11.69 in the thirteen week period ended
December 31, 1999 and had options for 92 shares of common stock at an average
exercise price of $13.60 in the thirteen week period ended December 31, 1998,
which have not been included in basic or diluted earnings per share as they are
antidilutive.
A reconciliation of basic and diluted shares outstanding is as follows:
<TABLE>
<CAPTION>
Thirteen Weeks Ended December 31,
1999 1998
----- -----
<S> <C> <C>
Weighted average common shares outstanding 1,368 1,350
Potential common shares pursuant to stock options 44 31
----- -----
Diluted weighted average shares 1,412 1,381
===== =====
</TABLE>
<PAGE>
8
6. Segment Reporting
The Company views its operations and manages its business as two segments,
Undersea Systems and Container Inspection Systems, as being strategic business
units that offer different products. The Company evaluates performance of its
operating segments based on revenues from external customers, income from
operations and identifiable assets.
<TABLE>
<CAPTION>
Thirteen Weeks Ended December 31,
1999 1998
------- -------
<S> <C> <C>
Sales to Unafilliated Customers:
Undersea Systems $ 4,076 $ 3,097
Container Inspection Systems 1,335 738
-------- --------
Total 5,411 3,835
Income (Loss) From Operations:
Undersea Systems 213 451
Container Inspection Systems (20) (150)
-------- --------
Total 193 301
Identifiable Assets:
Undersea Systems 11,317 5,099
Container Inspection Systems 2,488 2,052
Corporate Assets 4,226 3,706
-------- --------
Total $ 18,031 $ 10,857
</TABLE>
Revenues by geographic area for thirteen weeks ended December 31, 1999 and 1998
were as follows:
<TABLE>
<CAPTION>
Geographic Area 1999 1998
------- -------
<S> <C> <C>
United States $3,159 $1,347
Japan 693 348
Norway 240 671
Singapore -- 322
United Kingdom 278 691
Other 1,041 456
------- -------
Total $5,411 $3,835
</TABLE>
<PAGE>
9
Item 2.
Management's Discussion and Analysis
of Financial Condition and Results of Operations
(Dollars in Thousands)
Results of Operations -- First quarter of fiscal year 2000 compared with first
quarter of fiscal year 1999.
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
December 31, 1999 December 31, 1998
----------------- -----------------
(unaudited)
<S> <C> <C>
Net Sales 100.0% 100.0%
Cost of Sales 60.7% 61.1%
-------------- --------------
Gross Profit 39.3% 38.9%
Selling, General & Administrative Expenses 24.8% 23.6%
Research and Development Expenses 8.6% 7.4%
Amortization of Goodwill and Other
Acquired Intangibles 2.3% --
-------------- --------------
Income from Operations 3.6% 7.9%
Interest Income .5% .9%
Interest Expense (2.0)% --
-------------- --------------
Income Before Provision for Income Taxes 2.1% 8.8%
Provision for Income Taxes .6% 3.2%
-------------- --------------
Net Income 1.5% 5.6%
============== ==============
</TABLE>
Sales. Net sales increased by 41.1% in the first quarter of fiscal year 2000 to
$5,411 as compared to $3,835 in the first quarter of fiscal year 1999. Sales of
the Undersea Systems Division increased by 31.6% to $4,076 in the first quarter
of fiscal year 2000 as compared to $3,097 in the first quarter of fiscal year
1999. The increase resulted mainly from the inclusion of the sales of the
product lines acquired from Datasonics, Inc. in August 1999 which were not in
the results of the first quarter of fiscal year 1999 and reduced sales of
hydrophones in the first quarter of fiscal year 2000 as compared to the first
quarter of fiscal year 1999. Sales of the Container Inspection Systems Division
increased by 80.9% to $1,335 in the first quarter of fiscal year 2000 as
compared to $738 in the first quarter of fiscal year 1999. The increase resulted
largely from the timing of market orders.
Gross Profit. Gross Profit increased by 42.5% to $2,125 for the first quarter of
fiscal year 2000 as compared to $1,491 for the first quarter of fiscal year
1999. As a percentage of sales, gross profit was 39.3% in the first quarter of
fiscal year 2000 as compared to 38.9% in the first quarter of fiscal year 1999.
The increase in gross profit percentage is attributed primarily to the higher
sales mix of Container Inspection Systems Division products, which carry a
higher gross profit than the products of the Undersea Systems Division.
<PAGE>
10
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased by 48.6% to $1,345 for the first quarter of
fiscal year 2000 as compared to $905 in the first quarter of fiscal year 1999.
As a percentage of sales, selling, general and administrative expenses increased
to 24.8% in the first quarter of fiscal year 2000 as compared to 23.6% for the
first quarter of fiscal year 1999. The increase in selling, general, and
administrative dollars and percentage of sales is a result of the inclusion of
expenses related to the acquisition of Datasonics, Inc. in August 1999 which
were not in the results of the first quarter of fiscal year 1999 and other
corporate expenses.
Research and Development Expenses. Research and development expenses increased
62.8% to $464 for the first quarter of fiscal year 2000 as compared to $285 in
the first quarter of fiscal year 1999. As a percentage of sales, research and
development expenses increased to 8.6% of sales in the first quarter of fiscal
year 2000 from 7.4% in the first quarter of fiscal year 1999. The increase in
the overall level of expenditures is due to investments in new product
development as well as the inclusion of the operating results of the acquisition
of Datasonics, Inc. in August 1999 which were not included in the results of the
first quarter of fiscal year 1999. The level of expenditures is consistent with
the Company's current operational plans.
Amortization of Goodwill and Other Acquired Intangibles. Amortization of
goodwill and other acquired intangibles was $123 in the first quarter of fiscal
year 2000 as a result of the acquisition of substantially all of the assets of
Datasonics, Inc. in August 1999.
Interest Income. Interest income decreased to $28 in the first quarter of fiscal
year 2000 as compared to $36 in the first quarter of fiscal year 1999. The
decrease in interest income was a result of lower invested cash balances, due in
part to the acquisition of Datasonics, Inc.
Interest Expense. Interest Expense increased to $109 in the first quarter of
fiscal year 2000 as compared to $0 in the first quarter of fiscal year 1999. The
increase in interest expense dollars was a result of the bank loan made in
August 1999 to finance the acquisition of substantially all of the assets of
Datasonics, Inc.
Provision for Income Taxes. The provision for income taxes decreased to $34 in
the first quarter of fiscal year 2000 as compared to $121 in the first quarter
of fiscal year 1999. The effective tax rate used in the first quarter of fiscal
year 2000 was 30.0% as compared to the rate of 35.9% used in the first quarter
of fiscal year 1999. The rate used in the first quarter of fiscal year 2000 is
lower than the statutory rate due primarily to the benefit from the Company's
Foreign Sales Corporation.
Liquidity and Capital Resources. The Company's cash and cash equivalents
decreased $1,194 from September 30, 1999 to December 31, 1999. Cash of $822 was
used in operating activities. Inventories provided $513 as inventory levels were
more balanced with respect to shipments. Accounts receivable increased by $1,006
as a result of increased shipments and higher shipments in the latter part of
the quarter. Accounts payable and accrued expenses used $568 as a result of
profit sharing payments and inventory reduction. The Company has a $2,000
secured line of credit with a bank that was to have expired on January 31, 2000.
The bank has extended that line to March 31, 2000 and is in the process of
approving the extension to January 31, 2001. At December 31, 1999 there were no
amounts outstanding under this line of credit. 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.
YEAR 2000 UPDATE PROGRAM
The Company has monitored its Year 2000 program, and as of this date, no
material problems have arisen since the end of calendar year 1999. All of the
Company's computer systems are Year 2000 ready and no technology projects have
been delayed due to the Year 2000 date change.
<PAGE>
11
During 1998 and 1999 the company was actively engaged in addressing Year 2000
issues.
State of Readiness: To manage its Y2K program, the Company divided its
efforts into four program areas:
- - Information Technology (computer hardware and software)
- - Physical Plant (manufacturing equipment and facilities)
- - Products (including product development)
- - Extended Enterprise (suppliers and customers)
For each of these program areas, the Company used a four-step approach:
- - Ownership (creating awareness, assigning tasks)
- - Inventory (listing items to be assessed for Y2K readiness)
- - Assessment (prioritizing the inventoried items, assessing their Y2K
readiness, planning corrective actions, developing initial contingency
plans)
- - Corrective Action Deployment (implementing corrective actions, verifying
implementation, finalizing and executing contingency plans.
Costs to Address Y2K Issues: The Company began incurring expenses in 1997 to
resolve this issue. All expenditures have been expensed as incurred and have not
had (and are not expected to have) a significant impact on the Company's ongoing
results of operations.
Risks of Y2K Issues and Contingency Plans: The Company assessed the Year 2000
issues relating to its physical plant, products and suppliers. The Company
developed a contingency planning process to mitigate worst-case business
disruptions such as delays in product delivery, which could potentially result
from events such as supply chain disruptions.
"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: the timing of large
project orders, 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>
12
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.
Vice President, Chief Financial Officer,
and Treasurer
(Principal Financial and Accounting Officer)
DATE: February 9, 2000
<PAGE>
BENTHOS, INC.
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
-------
<S> <C>
3.1 Restated Articles of Organization (1)
3.2 Articles of Amendment dated April 28, 1997 (2)
3.3 Articles of Amendment dated April 20, 1998 (5)
3.4 By-Laws (1)
3.5 By-Law Amendments adopted January 23, 1998 (4)
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 Amended and Restated Employment Agreement with
John L. Coughlin
10.5 Employee Stock Ownership Plan (1)
10.6 First Amendment to Employee Stock Ownership
Plan (2)
10.7 Second Amendment to Employee Stock Ownership
Plan (8)
10.8 Third Amendment to Employee Stock Ownership
Plan (8)
10.9 401(k) Retirement Plan (1993)(1)
10.10 401(k) Retirement Plan (1999)(8)
10.11 First Amendment to 401(k) Retirement Plan (2)
10.12 Second Amendment to 401(k) Retirement Plan (2)
10.13 Third Amendment to 401(k) Retirement Plan (3)
10.14 Supplemental Executive Retirement Plan (1)
10.15 1990 Stock Option Plan (1)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
-------
<S> <C>
10.16 Stock Option Plan for Non-Employee Directors (1)
10.17 1998 Non-Employee Directors' Stock Option Plan (4)
10.18 Benthos, Inc. 2000 Stock Incentive Plan (9)
10.19 License Agreement between the Company and The Penn
State Research Foundation dated December 13, 1993
(1)
10.20 Technical Consultancy Agreement between the
Company and William D. McElroy dated July 12, 1994
(1)
10.21 Technical Consultancy Agreement between the
Company and William D. McElroy dated October 1,
1996 (3)
10.22 General Release and Settlement Agreement between
the Company and Lawrence W. Gray dated February 8,
1996 (1)
10.23 Line of Credit Loan Agreement between the Company
and Cape Cod Bank and Trust Company dated
September 24, 1990, as amended (1)
10.24 Commercial Mortgage Loan Extension and
Modification Agreement between the Company and
Cape Cod Bank and Trust Company, dated July 6,
1994 (1)
10.25 Credit Agreement between the Company and Cape Cod
Bank and Trust Company dated August 18, 1999.
10.26 License Agreement between the Company and Optikos
Corporation dated July 29, 1997 (3)
10.27 Hydrophone License Agreement between the Company
and Syntron, Inc. dated December 5, 1996 (6)
10.28 Amendment Number 1 to Hydrophone License Agreement
between the Company and Syntron, Inc. dated
September 11, 1998 (6)
10.29 Asset Purchase Agreement among Benthos, Inc.,
Datasonics, Inc., and William L. Dalton and David
A. Porta (7)
21 Subsidiaries of the Registrant (1)
27 Financial Data Schedule
</TABLE>
<PAGE>
(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. O-29024) 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-29024) and incorporated herein by this reference.
(3) Previously filed as an exhibit to Registrant's Quarterly
Report on Form 10-QSB for the quarterly period ended June 29, 1997
(File No. O-29024) and incorporated herein by this reference.
(4) Previously filed as an exhibit to the Registrant's
Quarterly Report on Form 10-QSB for the quarterly period ended December
31, 1997 (File No. O-29024) and incorporated herein by this reference.
(5) Previously filed as an exhibit to the Registrant's
Quarterly Report on Form 10-QSB for the quarterly period ended March
31, 1998 (File No. 0-29024) and incorporated herein by this reference.
(6) Previously filed as an exhibit to the Registrant's
Quarterly Report on Form 10-QSB for the quarterly period ended December
31, 1998 (File No. 0-29024) and incorporated herein by this reference.
(7) Previously filed as an exhibit to Registrant's Current
Report on Form 8-K filed on or about August 27, 1999 (File No. O-
29024) and incorporated herein by this reference.
(8) Previously filed as an exhibit to Registrant's Annual
Report on Form 10-KSB for the fiscal year ended September 30, 1999 File
No. 0-29024) and incorporated herein by this reference.
(9) Previously filed as an exhibit to the Registrant's
definitive proxy statement filed on Schedule 14A on or about January
18, 2000
<PAGE>
EXHIBIT 10.4
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AGREEMENT made and entered into in North Falmouth, Massachusetts,
between BENTHOS, INC., a Massachusetts corporation with a usual place of
business situated at 49 Edgerton Drive, North Falmouth, Massachusetts 02556 (the
"Company") and JOHN L. COUGHLIN, of 130 Pine Lake Road, Duxbury, Massachusetts
02332 (the "Executive"), effective as of the 1st day of October, 1999 (the
"Effective Date").
WITNESSETH:
WHEREAS, the Company and the Executive are currently parties to a
certain Employment Agreement effective as of April 8, 1996 (the "Prior
Employment Agreement");
WHEREAS, the Prior Employment Agreement has a term which ends on April
7, 2000;
WHEREAS, the Company and the Executive want to amend and restate the
Prior Employment Agreement in its entirety so that this Agreement will
completely set forth the terms and conditions of the employment of the Executive
by the Company from and after the Effective Date; and
WHEREAS, subject to the terms and conditions of this Agreement, the
Company wants to continue the employment of the Employee and the Employee wants
to be employed by the Company.
NOW, THEREFORE, in consideration of the premises, the mutual terms and
conditions set forth herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Company and the
Executive hereby mutually agree as follows:
1. AMENDMENT AND RESTATEMENT OF THE EMPLOYMENT AGREEMENT. Pursuant to
Section 17 of the Prior Employment Agreement, the Prior Employment
Agreement is amended in its
<PAGE>
entirety and restated herein, and, as of the effective date of this
Agreement, the Prior Employment Agreement will be null and void and all
of the rights and obligations of the Company and the Executive with
respect to the employment of the Executive by the Company from and
after the Effective Date will be as set forth herein. The Executive
hereby acknowledges that the Executive has received from the Company a
Certificate of the Clerk of the Company certifying that a vote of the
Board of Directors was duly adopted authorizing the amendment and
restatement of the Prior Employment Agreement and the approval of this
Agreement and that Stephen D. Fantone, Chairman of the Board of
Directors of the Company, is authorized to execute this Agreement on
behalf of the Company. The Executive also acknowledges that all of the
obligations of the Company to the Executive pursuant to the Prior
Employment Agreement have been fully satisfied.
2. EMPLOYMENT. The Company shall employ the Executive and the Executive
will serve the Company as President and Chief Executive Officer of the
Company upon the terms and conditions provided herein. In the discharge
of the duties of the Executive hereunder, the Executive shall report to
the Board of Directors of the Company.
3. TERM. Subject to earlier termination as hereinafter provided, the
employment of the Executive hereunder shall be for a term of three (3)
years, commencing on the Effective Date, and may be extended or renewed
only by a written agreement executed and delivered by the Executive and
an expressly authorized representative of the Company. The term of this
Agreement, as from time to time extended or renewed, is hereafter
referred to as "the term of this Agreement" or "the term hereof".
2
<PAGE>
4. CAPACITY AND PERFORMANCE.
(a) In addition to the duties set forth in Section 2 and without
further compensation, the Executive shall serve as a Director
of the Company if so elected or appointed from time to time.
(b) During the term hereof, the Executive shall be employed by the
Company on a full-time basis and shall perform such duties and
responsibilities on behalf of the Company as may be designated
from time to time by the Board of Directors of the Company.
(c) During the term hereof, the Executive shall devote the full
business time and the best efforts, business judgment, skill
and knowledge of the Executive to the advancement of the
business and interests of the Company and to the discharge of
the duties of the Executive hereunder. The Executive shall not
engage in any other business activity or serve in any
industry, trade, professional, governmental, or academic
position during the term of this Agreement, except as may be
approved in advance by the Board of Directors of the Company.
5. COMPENSATION AND BENEFITS. As compensation for all services performed
by the Executive hereunder during the term hereof and subject to the
satisfactory performance of the duties and obligations of the Executive
to the Company, the compensation and benefits to be earned by the
Executive pursuant to this Agreement are as follows:
(a) BASE SALARY. During the term hereof, the Company shall pay the
Executive a base salary at the rate of One Hundred Eighty-
Seven Thousand ($187,000) Dollars per annum, payable in
accordance with the payroll practices of the Company for its
3
<PAGE>
executives and subject to increase from time to time by the
Board of Directors, in its sole discretion. Such base salary,
as from time to time increased, is hereafter referred to as
the "Base Salary".
(b) QUALITATIVE BONUS. Subject to the terms and conditions hereof,
with respect to fiscal year 2000 of the Company, the Executive
will be eligible to receive a bonus based on the satisfaction
of certain criteria which will be given to the Executive by
the Board of Directors (the "Qualitative Bonus"). The
Qualitative Bonus, if earned, for fiscal year 2000 will be
paid within sixty (60) days of the end of the fiscal year.
With respect to fiscal years of the Company after fiscal year
2000, the Board of Directors of the Company in its sole
discretion will determine the amount of the Qualitative Bonus
and the conditions which must be satisfied by the Executive
for the Executive to be eligible to receive a Qualitative
Bonus. Upon the payment of any Qualitative Bonus by the
Company to the Executive, the Company will provide to the
Executive a written explanation of the factors considered by
the Company in awarding the Qualitative Bonus. Notwithstanding
any other provision contained in this Agreement, the Executive
will only be eligible for a Qualitative Bonus if the Executive
is not in breach of this Agreement at the time such
Qualitative Bonus is to be paid. In all events, any issues
which may arise between the Company and the Executive with
respect to the Qualitative Bonus shall be resolved by the
Board of Directors of the Company in its sole discretion.
(c) QUANTITATIVE BONUS. Subject to the terms and conditions
hereof, the Executive will be eligible to receive a bonus
based on the amount of operating income earned by
4
<PAGE>
the Company in the 2000 fiscal year of the Company (the
"Quantitative Bonus"). The Quantitative Bonus with respect to
fiscal year 2000 will be computed by adding the sum of (i) one
and two tenths (1.2%) per cent of the operating income of the
Company for fiscal year 2000 up to a maximum of Two Million
($2,000,000) Dollars of operating income of the Company, plus
(ii) one (1%) per cent of the operating income of the Company
for fiscal year 2000 which exceeds Two Million ($2,000,000)
Dollars. The Quantitative Bonus for fiscal year 2000 will be
paid within sixty (60) days after the end of the fiscal year.
For fiscal years of the Company after fiscal year 2000, the
Board of Directors of the Company in its sole discretion will
establish the formula by which any Quantitative Bonus will be
earned by the Executive during the remainder of the term of
this Agreement. Notwithstanding any other provision contained
in this Agreement, the Executive will not be eligible for a
Quantitative Bonus unless the Executive is employed by the
Company and is not in breach of this Agreement on the date on
which any Quantitative Bonus is to be paid. In all events, any
issues which may arise between the Company and the Executive
with respect to the Quantitative Bonus shall be resolved by
the Board of Directors of the Company in its sole discretion.
(d) PRORATION In the event this Agreement is terminated as a
result of: (i) the death of the Executive pursuant to Section
6(a), (ii) the disability of the Executive pursuant to Section
6(b), (iii) by the Company for other than for cause pursuant
to Section 6(d), or (iv) upon a Change of Control pursuant to
Section 6(e), then the Qualitative Bonus and the Quantitative
Bonus will be prorated as of the date of
5
<PAGE>
termination of employment of the Executive.
(e) OTHER BENEFITS. The Executive will be entitled to such annual
vacation as shall be agreed upon between the Executive and the
Board of Directors of the Company as well as any fringe
benefits and perquisites that may from time to time be
afforded generally to senior executive officers of the
Company. Without limiting the generality of the foregoing, the
Executive shall be entitled to participate in or receive
benefits under any 401(k) plan, pension plan, employee stock
ownership plan, retirement plan, life insurance, disability
insurance, health and accident plan or other arrangement made
available by the Company now or in the future, generally to
the senior executive officers of the Company, subject to and
on a basis consistent with the terms, conditions and overall
administration of such plans and arrangements and of the terms
of this Agreement.
(f) EXPENSES. The Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the
Executive (in accordance with the policies and procedures
established from time to time by the Board of Directors of the
Company or any Committee thereof) in the performance of the
duties of the Executive hereunder, provided such expenses are
properly accounted for in accordance with the policies of the
Company.
(g) TAXES. All payments to the Executive pursuant to this
Agreement shall be subject to all applicable federal, state
and local withholding payroll and other taxes.
6. TERMINATION OF EMPLOYMENT AND SEVERANCE BENEFITS. Notwithstanding the
provisions of Section 3 above, the employment of the Executive
hereunder shall terminate prior to the
6
<PAGE>
expiration of the term of this Agreement under the following
circumstances:
(a) DEATH. In the event of the death of the Executive during the
term hereof, the employment of the Executive hereunder shall
immediately and automatically terminate. In such event, the
Company shall pay to the estate of the Executive any earned
and unpaid Base Salary and any Qualitative Bonus or
Quantitative Bonus shall be prorated through the date of death
of the Executive.
(b) DISABILITY. The Company may terminate the employment of the
Executive hereunder in the event the Executive becomes
disabled during the term hereof due to any illness, injury,
accident or condition of either a physical or psychological
nature and, as a result, is unable to perform substantially
all of the duties and responsibilities of the Executive
hereunder on a full time basis, for either (i) ninety (90)
consecutive days, (ii) one hundred twenty (120) days
cumulatively within any twelve (12) month period, or (iii) if
in the opinion of a duly licensed physician the same is likely
to occur. At the request of the Company the Executive shall
submit to a medical examination by a physician selected by the
Company to whom the Executive, or the duly appointed guardian
of the Executive, if any, has no reasonable objection. If the
Executive shall refuse to submit to such medical examination,
then the determination of disability of the Executive by the
Board of Directors shall be conclusive. During any period of
disability of the Executive, the Board of Directors may
designate another employee to act in the place of the
Executive. Notwithstanding any such designation, the Executive
shall continue to receive the Base Salary to the extent
permitted by the then applicable benefit plans,
7
<PAGE>
until the Executive becomes eligible for any disability income
benefits under the disability income plan of the Company or
the termination of the employment of the Executive, whichever
shall first occur. While receiving disability income payments
under any disability income plan of the Company, the Executive
shall not be entitled to receive any Base Salary, Qualitative
Bonus or Quantitative Bonus, but shall continue to participate
in Company benefit plans under Section 5(e) hereof as long as
the terms of such plans allow such participation by the
Executive until the termination of the Employment of the
Executive. The Executive hereby acknowledges that the
termination of the Executive under this Section 6(b) does not
violate the so-called Americans with Disabilities Act, the
Family and Medical Leave Act or similar state statutes.
(c) BY THE COMPANY FOR CAUSE. The Company may, immediately and
unilaterally, terminate the Executive's employment hereunder
"for cause" at any time during the term of this Agreement
without prior written notice to the Executive. Termination of
the Executive's employment by the Company shall constitute a
termination "for cause" under this Section 6(c) if such
termination, as determined by the Board of Directors, is for
one or more of the following causes:
(i) Willful failure of the Executive to perform (other
than by reason of disability under Section 5(b), or
gross negligence in the performance of, the duties
and responsibilities of the Executive to the Company
which results in demonstrable monetary harm to the
Company;
(ii) The commission by the Executive of any act or acts of
dishonesty, a breach
8
<PAGE>
of fiduciary duty, a material breach of the terms of
this Agreement or any other agreement between the
Executive and the Company, or a material violation of
the written or established rules and policies of the
Company as such rules and policies may from time to
time be amended or modified by the Company;
(iii) The commission by the Executive of an act of fraud or
embezzlement;
(iv) The conviction by the Executive of, or plea of no
contest for, any felony;
(v) The commission of an act by the Executive which
constitutes unfair competition or a conflict of
interest with the Company or which induces any
customer, vendor, contractor, or affiliate or any
prospective customer, vendor, contractor or affiliate
of the Company to breach a contract with the Company
or not to enter into a contract with the Company; or
(vi) The commission of an act by the Executive which
constitutes a willful violation of the federal or
state securities laws.
In the event of a termination "for cause" pursuant to any of the
provisions of clauses (i) through (vi) above, inclusive, the Executive shall not
be entitled to any severance or other termination benefits under this Agreement.
The Executive will be paid any earned and unpaid Base Salary as of the
termination date.
(d) BY THE COMPANY OTHER THAN FOR CAUSE.
(i) The Company may terminate the Executive's employment
under this Agreement at any time without cause upon
thirty (30) days written notice to the Executive or
payment in lieu thereof if the Company elects to
9
<PAGE>
accelerate the Executive's departure date. For the
purposes hereof, if the Executive is not then in
breach of this Agreement, and this Agreement is in
effect on the last day of the term hereof, then a
failure of the Company to extend or renew this
Agreement, or to establish an agreement that is
comparable to this Agreement, shall be deemed to be a
termination other than for cause. For the purposes
hereof, an agreement that provides the Executive with
compensation approximately in the amount of the Base
Salary hereunder for at least one year shall be
deemed to be a "comparable" agreement. Subject to the
provisions of Section 6(f), if the Executive is
terminated by the Company other than for cause, the
Company shall pay the Executive severance
compensation as described in Section 6(d) (ii) below.
(ii) In the event the Company exercises its right to
terminate the Executive under this Section 6(d)(ii),
the Company shall: (i) pay the Executive a severance
payment equal to eighteen (18) months' Base Salary at
the Executive's then current Base Salary, payable
over eighteen (18) months in accordance with the
Company's payroll practices and (ii) if the Executive
is eligible for, and chooses to elect health
insurance continuation in accordance with the
Consolidated Omnibus Budget Reconciliation Act of
1985 ("COBRA"), pay the same portion of the premium
payments of the Executive as were being paid by the
Company prior to termination under COBRA for a period
of either (i) eighteen (18) months, or (ii) until the
Executive receives comparable health insurance from
another employer,
10
<PAGE>
whichever shall first occur. In addition, the Company
shall provide the Executive with up to six (6) months
of outplacement services not to exceed a value of
$25,000.
(e) UPON A CHANGE OF CONTROL.
(i) If a Change of Control occurs and, within one (1)
year following such Change of Control, the Company
terminates the Executive's employment Other Than for
Cause as defined in Section 6 (d) hereof, then and
subject to the provisions of Section 6 (d) (i), the
Company shall pay the Executive, within ten (10)
business days of such termination, a lump sum payment
equal to twice the then annual Base Salary of the
Executive and if the Executive is eligible for, and
chooses to elect health insurance continuation in
accordance with the COBRA, pay the same portion of
the premium payments of the Executive as were being
paid by the Company prior to termination under COBRA
for a period of eighteen (18) months, or until the
Executive receives comparable health insurance from
another employer, whichever shall first occur. In
addition, the Company shall provide the Executive
with up to twelve (12) months of outplacement
services not to exceed a value of $25,000.
(ii) Notwithstanding the foregoing or any other provision
of this Agreement, the payments and benefits to which
the Executive would be entitled pursuant to Section
6(e) as a result of a Change of Control shall be
reduced to the maximum amount for which the Company
will not be limited in its
11
<PAGE>
deduction pursuant to Section 280G of the Internal
Revenue Code of 1986, as amended, or any successor
provision.
(iii) A Change of Control shall be deemed to take place if
at any time during the term hereof: (A) any Person or
"group" (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934),
other than the Company or any of its Affiliates,
becomes a beneficial owner (within the meaning of
Rule 13d-3 as promulgated under the Securities
Exchange Act of 1934), directly or indirectly, of
securities representing fifty (50%) percent or more
of the total number of votes that may be cast for the
election of directors of the Company and two-thirds
(2/3) of the Board has not consented to such event
prior to its occurrence or within sixty (60) days
thereafter, provided that if the consent occurs after
the event it shall only be valid for purposes of this
Section 6(e) if a majority of the consenting Board is
comprised of directors of the Company who were such
immediately prior to the event; (B) any merger or
consolidation involving the Company or any sale or
other transfer of all or substantially all of the
assets of the Company, or any combination of the
foregoing, and two-thirds of the Board has not
consented to such event prior to its occurrence or
within sixty (60) days thereafter, provided that if
the consent occurs after the event it shall only be
valid for purposes of this Section 6(e) if a majority
of the consenting Board is comprised of directors of
the Company who were such immediately prior to the
event; or (C) within twelve (12) months
12
<PAGE>
after a tender offer or exchange offer for voting
securities of the Company (other than by the Company)
the individuals who were directors of the Company
immediately prior thereto shall cease to constitute a
majority of the Board.
(f) THE COMPANY'S OBLIGATION TO PROVIDE SEVERANCE COMPENSATION.
The severance payments and compensation set forth in Sections
6 (c), (d) and (e) shall be payable in conformity with the
Company's payroll practices for the Executive's compensation
as such practices may be modified from time to time and shall
be subject to all applicable federal, state and local
withholding, payroll and other taxes; PROVIDED, HOWEVER, if
the Executive breaches the noncompetition or nonsolicitation
obligations under Section 7 hereof, or if the Executive
breaches the obligations of the Executive between the
Executive and the Company set forth herein, the Company may
immediately cease payment of all severance and/or benefits
described in this Agreement. This cessation of severance
and/or benefits shall be in addition to, and not as an
alternative to, any other remedies in law or in equity
available to the Company, including the right to seek specific
performance or an injunction. The Executive hereby
acknowledges that the Company would suffer irreparable harm if
the Executive violates the noncompetition or nonsolicitation
obligations under Section 7 hereof or if the Executive
breaches the obligations hereunder and accordingly the
Executive hereby agrees that the Company shall be entitled to
preliminary and permanent injunctive relief. The Executive
acknowledges that the Company shall not have any further
obligations
13
<PAGE>
to the Executive in the event of Executive's termination under
Sections 6 (c), (d) or (e) except such further obligations as
may be imposed by law.
The Executive further acknowledges and agrees that
the obligation of the Company to pay severance compensation to
the Executive under this Agreement is contingent upon the
Executive executing and delivering, all in form and substance
satisfactory to the Company: (i) if the Executive is then a
member of the Board of Directors of the Company, a resignation
from the Board of Directors of the Company; (ii) a
comprehensive general release of the Company by the Executive;
(iii) a resignation as Chief Executive Officer and President
of the Company and any other office the Executive may hold
with the Company; and (iv) satisfactory evidence to the
Company that the Executive has returned all property,
confidential information and documents of the Company to the
Company. The Executive acknowledges and agrees that the
post-termination obligations set forth in Sections 7(a), 7(b)
and 7(c) shall survive the termination of this Agreement
whether or not the Executive signs the release or provides the
resignations described in this Section.
7. NON-COMPETITION; NON-SOLICITATION.
(a) NON-COMPETITION. During the period of the Executive's
employment by the Company and for two (2) years after the
Executive's employment terminates. The Executive shall not,
alone or as a partner, joint venturer, officer, director,
employee, agent, consultant, stockholder or investor of any
company or business organization, engage in any business
activity and/or accept employment with any
14
<PAGE>
person or entity, which is directly or indirectly in
competition with the products or services under consideration
(which consideration can be reasonably demonstrated) being
developed, drafted, manufactured, marketed, distributed,
planned, sold or otherwise provided by the Company.
Notwithstanding the foregoing, the record or beneficial
ownership by the Executive of one (1%) per cent or less of the
outstanding publicly traded capital stock of any such company
shall not be deemed, in and of itself, to be in violation of
this Section 7; PROVIDED, HOWEVER, that the Executive is not a
partner, joint venturer, officer, director, employee, agent,
independent contractor or consultant of such company.
(b) CUSTOMER SOLICITATION. The Executive shall not, directly or
indirectly, for himself or on behalf of others, during the
Executive's employment by the Company and for a period of two
(2) years after the Executive's employment terminates,
solicit, divert, attempt to divert, accept the business of, or
enter into any business relationship, involving activities
competitive with the Company, with any former or current
clients, customers, suppliers, contractors or affiliates of
the Company made known to him during his employment, or in any
way interfere with or disrupt any existing relationship
between the Company and any of its clients, customers,
suppliers, vendors, contractors or affiliates or others with
whom the Company transacts business.
(c) EMPLOYEE SOLICITATION. The Executive shall not, directly or
indirectly, for himself or on behalf of others, during the
Executive's employment by the Company and for a period of two
(2) years after the Executive's employment terminates, hire,
15
<PAGE>
attempt to hire, or knowingly permit any company or business
organization by which the Executive is employed or which is
directly or indirectly controlled by the Executive, to employ
any employee of the Company or any employee who has left the
employment of the Company within six (6) months of such
employee's termination, or in any manner seek to solicit or
induce any employee to leave his or her employment with the
Company or otherwise assist in the recruitment of any such
person.
(d) NONCOMPETITION/NONSOLICITATION. In the event that the
Executive's employment terminates because the term of this
Agreement expires or is otherwise not renewed, it is agreed
and understood that the Executive will be bound by the
noncompetition and nonsolicitation obligations pursuant to
Section 7 hereof.
8. ENFORCEMENT OF COVENANTS. The Executive acknowledges that the Executive
has carefully read and considered all the terms and conditions of this
Agreement, including the restraints imposed upon the Executive by
Section 7 hereof. The Executive agrees that said restraints are
necessary for the reasonable and proper protection of the Company and
that such restraints are reasonable in respect to subject matter,
length of time, and geographic area. The Executive further acknowledges
that, were the Executive to breach any of the covenants contained in
Section 7 hereof, the damage to the Company would be irreparable. The
Executive therefore agrees that the Company, in addition to any other
remedies available to the Company in law or in equity, shall be
entitled to preliminary and permanent injunctive relief against any
breach or threatened breach by the Executive of any of said covenants
without posting bond. The Executive and the Company further agree
16
<PAGE>
that, if one or more of the clauses contained in Section 7 shall for
any reason be held to be excessively broad as to scope, activity,
subject or otherwise so as to be unenforceable at law, such provision
or provisions shall be construed by the appropriate judicial body by
limiting or reducing it or them, so as to be enforceable to the maximum
extent compatible with the applicable law as it shall then appear.
9. ARBITRATION. Any dispute, controversy or claim arising out of, in
connection with, or relating to the performance of this Agreement shall
be settled by arbitration in the City of Boston, Massachusetts, before
a single arbitrator pursuant to the rules then in effect of the
American Arbitration Association. The fees and expenses of the
arbitrator shall be borne equally by the Executive and the Company. Any
award shall be final, binding and conclusive upon the Executive and the
Company and the judgment rendered thereon may be entered in any court
having jurisdiction thereof. This Section 9 will not preclude or affect
in any manner the rights of the Company to equitable relief pursuant to
Section 8 of this Agreement.
10. CONFLICTING AGREEMENTS. The Executive hereby represents and warrants
that the execution of this Agreement and the performance of the
obligations of the Executive hereunder will not breach or be in
conflict with any other agreement to which the Executive is a party or
is bound and that the Executive is not now subject to any covenants
against competition or similar covenants that would affect the
performance of the Executive hereunder. The Executive will not disclose
to or use on behalf of the Company any proprietary information of a
third party without the consent of such third party.
11. ASSIGNMENT. The Executive acknowledges that the services to be rendered
by the
17
<PAGE>
Executive hereunder are unique and personal in nature. Accordingly, the
Executive may not assign any of his rights or delegate any of his
duties or obligations under this Agreement. The rights and obligations
of the Company under this Agreement shall inure to the benefit of, and
shall be binding upon, the successors and assigns of the Company.
12. SEVERABILITY. If any portion or provision of this Agreement shall to
any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application
of such portion or provision in circumstances other than those as to
which it is so declared illegal or unenforceable, shall not be affected
thereby, and each such portion and provision of this Agreement shall be
valid and enforceable to the fullest extent permitted by law.
13. WAIVER. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of either
party to require the performance of any term or obligation of this
Agreement, or the waiver by either party of any breach of this
Agreement, shall not prevent any subsequent enforcement of such term or
obligation or be deemed a waiver of any subsequent breach.
14. NOTICES. Any and all notices, requests, demands and other
communications provided for by this Agreement shall be in writing and
shall be effective when delivered in person or deposited in the United
States mail, postage prepaid, registered or certified, and addressed to
the Executive at the last known address of the Executive on the books
of the Company or, in the case of the Company, at its principal place
of business, attention of the Chairman of the Board of Directors, or to
such other address as either party may specify by notice to the other,
with a copy to John T. Lynch, Esq., Davis, Malm & D'Agostine, P.C., One
18
<PAGE>
Boston Place, 37th Floor, Boston, Massachusetts 02108.
15. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and supersedes all prior communications, agreements
and understandings, written or oral, with respect to the terms and
conditions of the Executive's employment, including the Executive's
salary, bonus, or other compensation of any description, equity
participation, pension, post-retirement benefits, severance or other
remuneration, except for a certain Employee's Patent Agreement with
Benthos, Inc., dated April 8, 1996 between the Company and the
Executive, and a certain Incentive Stock Option Agreement, dated as of
April 8, 1996 between the Company and the Executive, both of which
shall remain in full force and effect.
16. AMENDMENT. This Agreement may be amended or modified only by a written
instrument signed by the Executive and by an expressly authorized
representative of the Company who is authorized by a vote of the Board
of Directors of the Company to execute such amendment or modification
on behalf of the Company.
17. HEADINGS. The headings and captions in this Agreement are for
convenience only and in no way define or describe the scope or content
of any provision of this Agreement.
18. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be an original and all of which
together shall constitute one and the same instrument.
19. GOVERNING LAW. This is a Massachusetts contract and shall be construed
and enforced under and be governed in all respects by the laws of the
Commonwealth of Massachusetts, without regard to the conflict of laws
principals thereof, and this Agreement shall be
19
<PAGE>
deemed to be performable in Massachusetts. Any claims or legal actions
by one party against the other arising out of the relationship between
the parties contemplated herein (whether or not arising under this
Agreement) shall be commenced or maintained in any state or federal
court located in Massachusetts, and the Executive hereby submits to the
jurisdiction and venue of any such court. The Executive hereby further
agrees that the language of all parts of this Agreement shall in all
cases be construed as a whole according to its fair meaning and not
strictly for or against either of the parties.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by the Company, by its duly authorized representative, and by the
Executive, as of the date first above written.
COMPANY: BENTHOS, INC.
By: STEPHEN D. FANTONE
---------------------------------------
Stephen D. Fantone
Chairman of the Board of Directors on
Behalf of the Board of Directors
Executive: JOHN L. COUGHLIN
-------------------------------------------
John L. Coughlin
20
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONDENSED CONSOLIDATED FINANCIAL STATEMENTS OF BENTHOS, INC. AND SUBSIDIARY
CONTAINED ELSEWHERE IN THIS QUARTERLY REPORT AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> SEP-30-2000
<PERIOD-END> DEC-31-1999
<CASH> 1,736
<SECURITIES> 0
<RECEIVABLES> 3,438
<ALLOWANCES> 220
<INVENTORY> 4,281
<CURRENT-ASSETS> 11,530
<PP&E> 6,746
<DEPRECIATION> 5,001
<TOTAL-ASSETS> 18,031
<CURRENT-LIABILITIES> 4,068
<BONDS> 4,452
0
0
<COMMON> 110
<OTHER-SE> 9,401
<TOTAL-LIABILITY-AND-EQUITY> 18,031
<SALES> 5,411
<TOTAL-REVENUES> 5,411
<CGS> 3,286
<TOTAL-COSTS> 1,468
<OTHER-EXPENSES> 464
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 109
<INCOME-PRETAX> 112
<INCOME-TAX> 34
<INCOME-CONTINUING> 78
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 78
<EPS-BASIC> .06<F1>
<EPS-DILUTED> .06<F1>
<FN>
<F1>THE EARNINGS PER SHARE INFORMATION HAS BEEN PREPARED IN ACCORDANCE WITH SFAS
NO. 128 AND BASIC DILUTED EARNINGS PER SHARE HAVE BEEN ENTERED IN PLACE OF
PRIMARY AND FULLY DILUTED, RESPECTIVELY.
</FN>
</TABLE>
