GENERAL RELEASE AND SETTLEMENT AGREEMENT
AGREEMENT made this 8 day of February, 1996 between XXXXXXXX X. XXXX, of
000 Xxxxxxxxxx Xxxx, Xxxx Xxxxxxxx, Xxxxxxxxxxxxx 00000 ("Xxxx") and BENTHOS,
INC., a Massachusetts corporation with a usual place of business situated at 00
Xxxxxxxx Xxxxx, Xxxxx Xxxxxxxx, Xxxxxxxxxxxxx 00000 ("Benthos").
W I T N E S S E T H:
WHEREAS, Xxxx was employed by Benthos from December 31, 1974 through June
5, 1995;
WHEREAS, Xxxx is the owner of 12,948 shares of the common capital stock of
Benthos;
WHEREAS, Xxxx and Benthos are desirous of executing and delivering a
mutually satisfactory agreement with respect to the resolution of any issues
regarding certain stock options related to the stock of Benthos which options
were issued by Benthos to Xxxx, xxxxxxxxx benefits of Xxxx, and the terms and
conditions to be satisfied by Xxxx and Benthos in connection therewith;
WHEREAS, Xxxx and Benthos want to reduce their agreement with respect to
such arrangement to writing.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Xxxx and Benthos hereby mutually agree as follows:
1 . Xxxx hereby acknowledges that Benthos requested that Xxxx resign as
President of Benthos. Benthos informed Xxxx that if Xxxx did not resign Xxxx
will be removed forthwith as President by the Board of Directors of Benthos. As
an accommodation to Benthos and to eliminate the need for a Board of Directors
meeting, Xxxx resigned as President of Benthos effective June 5, 1995 (The
"Termination Date"). On the date hereof, Xxxx will execute and deliver his
resignation as a Director of Benthos to the President of Benthos, the form of
which resignation is attached hereto as Exhibit X. Xxxx hereby waives any rights
he may have had or now has, if any, and releases Benthos from any and all claims
under or with respect to any stock options issued to Xxxx by Benthos with
respect to the stock of Benthos, including without limitation those certain
Stock Option Agreements, dated October 26, 1990 and March 4, 1994, and hereby
acknowledges that after the date hereof he will have no equity interest of any
kind in Benthos.
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2. Subject to the conditions of this Agreement, Benthos shall:
(a) Pay Xxxx the sum of One Hundred Seventy-One Thousand Five Hundred
and no/100 ($171,500.00) Dollars as follows:
(i) Benthos has previously paid to Xxxx and Xxxx hereby
acknowledges
receipt of the sum of Twenty One Thousand Five Hundred and no/100 ($21,500.00)
dollars during the period from June 5, 1995 to August 14, 1995.
(ii) Xxxx hereby acknowledges that Benthos paid one half of
Xxxx'x health
and dental insurance coverage ("Coverage") from June 5, 1995 through August 14,
1995. After August 14, 1995, Xxxx shall be solely responsible for the payment of
the premiums for his Coverage.
(iii) The balance of $150,000.00 will be paid to Xxxx by Benthos in
seventeen (17) consecutive equal monthly installments of $8,823.53 each,
commencing of that date which is the eighth (8th) day after the date hereof,
with like payments on the same day of each month thereafter until fully paid,
provided that Xxxx has not revoked this Agreement pursuant to Paragraph 9 (e)
hereof. The acceptance and negotiation by Xxxx of the check representing the
first monthly installment shall be conclusive of the waiver by Xxxx of his
revocation rights set forth in Paragraph 9 (c).
(b) Redeem the 12,948 shares of the common capital stock of Benthos
currently held by Xxxx at a redemption price of $7.00 per share for an aggregate
redemption price of $90,636.00. On the date hereof, Xxxx will endorse and
deliver all stock certificates representing said shares in blank, and execute
and deliver such other documents as Benthos may reasonably request to effectuate
the transfer of the shares from Xxxx to Benthos. The transferred shares and a
check from Benthos in the sum of $70,000.00 in immediately available funds
payable to the order of Xxxx will be held in escrow by Xxxx X. Xxxxx, Esq., of
the law firm of Xxxxx, Xxxx & X'Xxxxxxxx. P. C., Xxx Xxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 ("Xxxxx"). On the eighth (8th) day following the date
hereof, provided that Xxxx has not revoked this Agreement pursuant to Paragraph
9 (e) hereof, then Xxxxx will release from escrow the transferred shares to
Benthos, and the check ill the sum of $70,000.00 to Xxxx. The remaining sum of
$20,636.00 which represents the proceeds of the redemption of 2,948 shares of
ESOP stock shall be transferred directly to an Individual Retirement Account
pursuant to the written instructions of Xxxx. Benthos shall have no obligation
with respect to the transfer of said sum to the Individual Retirement Account
other than complying with the written instructions of Xxxx. In the event that
Xxxx shall have revoked this Agreement pursuant to Paragraph 9 (c), Xxxxx will
return the check to Benthos and the shares to Xxxx. Benthos and Xxxx will
indemnify and hold Xxxxx harmless with respect to acting as escrow agent
hereunder provided that Xxxxx acts in good faith in accordance with the terms
and provisions hereof.
(c) Transfer the ownership of the following Benthos personal property
from
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Benthos to Xxxx, all of which property is currently in the possession of Xxxx:
Personal Property Cost to Benthos
----------------- ---------------
LaserJet 2P Printer $879.00
Delrina Software $ 94.45
Modem $146.49
CD/ROM w/sound card $290.85
Telephone Autoswitch $165.00
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$1,575.79
Benthos may withhold any taxes or other amounts which are required to be
withheld from all payments made by Benthos to Xxxx hereunder.
All payments being made hereunder shall continue until fully paid, provided
that, in the event of the breach of any of the terms and conditions of this
Agreement by Xxxx, Benthos, in its sole discretion shall have the right to
terminate all payments to Xxxx hereunder and Xxxx shall be required to refund
all monies to Benthos which have been paid hereunder prior to any such breach.
If Xxxx does not agree that a breach has occurred, then Xxxx may by written
request to Benthos request that the issue of the existence or nonexistence of a
breach be resolved by arbitration. Such arbitration shall be held in Boston,
Massachusetts in accordance with the Commercial Arbitration rules of the
American Arbitration Association before three arbitrators who shall have
experience in general business and commercial matters. The decision of the
arbitrators shall be final, conclusive and binding on the parties. Judgement may
be entered on the arbitrators' decision in any court having jurisdiction. Xxxx
and Benthos shall each pay one half of the costs and expenses of the
arbitrators. Xxxx and Benthos will be responsible for their own legal fees and
costs.
3. For a period of two (2) years commencing on the date hereof, Xxxx will
not, whether as a director, officer, agent, employee, stockholder or consultant,
engage in any business or commercial activity which is or may be competitive
with products and services being developed, marketed, distributed, sold, or
licensed by Benthos as of the Termination Date.
4. Xxxx shall not slander, libel or otherwise disparage Benthos, its
officers, employees, directors, agents or assigns. Xxxx shall keep the terms and
conditions of this Agreement strictly confidential and shall not disclose the
same, other than on an as-needed basis to his attorney, accountants, tax
advisers, or as required by government regulation or court order. To the extent
that Xxxx intends to disclose the terms of this Agreement in accordance with the
preceding sentence, Xxxx shall inform the recipients of the information of the
need for strict confidentiality and shall obtain appropriate written assurances
from them to maintain the confidentiality or such information.
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5. Xxxx represents and warrants that, with the exception of the personal
property listed in Paragraph 2 (c), he has returned to Benthos all property and
materials of Benthos, including but not limited to, all confidential or
proprietary information, and that he no longer has possession, custody or
control of any such property or materials. Xxxx acknowledges that during the
term of his employment he learned information of a secret or confidential nature
which is proprietary to Benthos. Xxxx represents and warrants that he has never
breached or interfered with, and will not breach or interfere with in the
future, the intellectual property rights of Benthos. Confidential information
consists of all information pertaining to the business of Benthos which is not
generally known to the public at the time made known to Xxxx. It includes, but
is not limited to, trade secrets; secret and confidential information of Benthos
and of third parties; personal, financial and account information regarding
Benthos customers or employees; business, pricing, and marketing plans; leasing
information and terms; development and growth plans; contract terms; employee,
customer, vendor, supplier, and prospect lists; and all information specifically
designated as "Proprietary, or "Confidential." Xxxx shall not disclose, use,
copy or retain any confidential business information, employee records or trade
secrets belonging to Benthos. Benthos' customers or Benthos' suppliers and
represents that he has returned all copies of any such information to Benthos
prior to the execution of this Agreement.
6. With the sole exception of his right to enforce the terms of this
Agreement, Xxxx hereby fully, forever, irrevocably and unconditionally release,
remises and discharges Benthos, its predecessors, subsidiaries, affiliates,
current and former officers, directors, stockholders, agents and employees, from
any and all claims, charges, complaints, demands, actions, causes of action,
suits, rights, debts, sums of money, costs, accounts, reckoning, covenants,
contracts, agreements, promises, doings, omissions, damages, executions,
obligations, liabilities and expenses (including attorneys' fees and costs), of
every kind and nature, which Xxxx ever had or now has against Benthos, its
predecessors, subsidiaries, affiliates, current and former officers, directors,
stockholders, agents and employees, including, but not limited to, all claims
arising out of his employment and all claims with respect to any rights Xxxx may
have under any kind of bonus plan, stock option agreement or equity plan with
Benthos. This general release of claims includes, but is not limited to, any and
all claims for wrongful discharge, wrongful termination or wrongful dismissal;
any and all claims for breach of an express or implied contract, covenant or
agreement; any and all claims for unlawful discrimination (including, but not
limited to, claims allegedly based on race, sex, sexual preference, religion,
creed, age, handicap, national origin, ethnic history, ancestry, veteran status
or retaliation, and any and all claims arising under Title VII of the Civil
Rights Act, 42 U.S.C. (S) 2000 et seq., M.G.L. c. 151B, (S) 1 et seq., or based
------ ------
on any other protected classification); any and all claims under the Age
Discrimination in Employment Act. as amended; and all claims for damages arising
Out of any such claim. Xxxx further acknowledges and affirms that he does riot
intend to assert causes of action or claims against any other individuals not
specifically named herein who are now or were formerly affiliated with Benthos.
7. Xxxx represents and warrants that:
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(a) he has not filed any complaints, charges, or claims for
relief against Benthos, its officers, directors, stockholders, agents, employees
or former employees with any local, state or federal court, administrative
agency or other body which currently are outstanding, and that no has no
knowledge of, and has not encouraged, such filings by others;
(b) the 12,948 shares of Benthos that are being redeemed by
Benthos from Xxxx are free and clear of all liens and encumbrances, and
constitute all of the stock of Benthos owned by Xxxx; and
(c) he is not a party to any agreement, or subject to any court
order, decree, legal restraint or otherwise which would prohibit him from
transferring the 12,948 shares of stock to Benthos or enterning into this
Agreement and carrying out the provisions hereof.
8. It is understood and agreed by the parties hereto that this Agreement
is a settlement agreement and does not constitute any admission of liability or
wrongdoing. Benthos and Xxxx specifically deny any intentional, willful or
deliberate misconduct toward each other as well as any liability, for any other
person's intentional, willful or deliberate misconduct toward the other party,
if any.
9. In consideration of the promises by Benthos contained in this
Agreement, Xxxx hereby knowingly and voluntarily waives all rights and claims he
may have under the Age Discrimination in Employment Act, as amended, against
Benthos, its predecessors, subsidiaries, affiliates, current and former
officers, directors, stockholders, agents and employees. In doing so, Xxxx
acknowledges that:
(a) This waiver does not apply to any rights Xxxx may have that
arise after the date of his signature below;
(b) This Agreement provides Xxxx with certain benefits of value
to Xxxx that are in addition to benefits to which Xxxx would have been entitled
in the absence of this Agreement:
(c) Xxxx has been represented by legal counsel since on or about
June 5, 1995 in connection with the matters set forth herein arid specifically
with respect to the execution and delivery of this Agreement;
(d) Xxxx has had at least twenty-one (21) days to consider the
terms of this Agreement; and
(e) Xxxx has a period of seven (7) days from the date hereof in
which he may revoke this Agreement, and that this Agreement will not become
effective unless and until the revocation period has expired without his having
exercised his right to revoke the Agreement and this waiver. Xxxx will be deemed
to have waived such right of revocation if written notice of
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revocation has not been received by Benthos and Xxxxx prior to the eighth (8th)
day after the date of this Agreement.
10. For a period of ten (10) years after the date hereof, Xxxx will not own
directly or indirectly any stock of Benthos, seek to be or be employed by
Benthos, attempt to be or be engaged as a consultant by Benthos, or attempt to
be elected to or serve as a member of the Board of Directors of Benthos Xxxx
hereby withdraws any stockholder proposals or stockholder nominations for the
Board of Directors of Benthos which Xxxx may have heretofore made and hereby
acknowledges that any such outstanding proposals or nominations, if any, are
hereby withdrawn and shall he void. Xxxx will execute and deliver any such
documents or instruments as may be reasonably requested by Benthos to confirm
the withdrawal and/or waiver by Xxxx of any such proposal or nomination.
11. Xxxx and Benthos shall be responsible for their own attorneys' fees in
connection with this Agreement.
12. This Agreement shall be binding upon the parties and may not be
abandoned, supplemented, changed or modified in any manner, orally or otherwise,
except by an instrument in writing of concurrent or subsequent date signed by a
duly authorized representative of the parties hereto.
13. Should any provision of this Agreement be declared or he determined by
any court of competent jurisdiction to be illegal or invalid, the validity of
the remaining parts, terms or provisions shall not be affected thereby and said
illegal or invalid part, term or provision shall be deemed not to be a part of
this Agreement.
14. This Agreement contains and constitutes the entire understanding and
agreement between the parties hereto with respect to the settlement of this
matter and cancels all previous oral and written negotiations, agreements,
commitments, understandings and writings in connection herewith.
15. The parties affirm that no other promises or agreements of any kind
have been made 10 or with them by any person or entity whatsoever to cause them
to sign this Agreement, and that they fully understand the meaning and intent of
this Agreement. The parties state and represent that they have had an
opportunity to fully discuss and review the terms of this Agreement with their
respective attorneys. They further state and represent that they have carefully
read this Agreement, understand the contents hereof, freely and voluntarily
assent to all of the terms and conditions hereof, and sign the Agreement as
their free act.
16. Notices: Any notice, request, instruction or other document given
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hereunder by either party hereto to the other party hereto shall be in writing
and delivered personally or sent by registered, certified mail, postage prepaid,
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if to Benthos, to:
Benthos, Inc.
00 Xxxxxxxx Xxxxx
Xxxxx Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, President
with a copy to:
Xxxx X. Xxxxx, Esq.
Xxxxx, Xxxx & X'Xxxxxxxx, P.C.
Xxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
if to Xxxx, to:
Xxxxxxxx X. Xxxx
000 Xxxxxxxxxx Xxxx
Xxxx Xxxxxxxx, XX 000X0
with a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxx & Xxxxxxxxx
000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
or such other address as shall be specified by like notice. Any notice that is
delivered personally in the manner provided herein shall he deemed to have been
duly given to the party to whom it is directed upon actual receipt by such
party. Any notice that is addressed and mailed, postage prepaid, in the manner
herein provided shall be conclusively presumed to have been duly given to the
party to which it is addressed at the close of business, local time of the
recipient on the fourth business after the day it is so placed in the mail. Any
notice sent by overnight mail service, will be presumed to have been duly given
to the party on the next subsequent day after such overnight mail is sent.
17. This Agreement may be executed in two or more counterparts each of
which shall be signed as an original but all or which together shall constitute
one and the same instrument.
18. This Agreement has been entered into in the Commonwealth of
Massachusetts, shall he interpreted in accordance with the law of the
Commonwealth of Massachusetts and shall take effect as a sealed instrument.
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IN WITNESS WHEREOF. Benthos and Xxxx have executed this document on the day
and year first above written.
[SIGNATURE ILLEGIBLE] /s/Xxxxxxxx X. Xxxx
---------------------- ---------------------
Witness Xxxxxxxx X. Xxxx
BENTHOS, INC.
______________________ By ____________________________
Witness Xxxxxx X. Xxxxxxx, President
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IN WITNESS WHEREOF, Benthos and Xxxx have executed this document on the day
and year first above written.
_____________________ ______________________________
Witness Xxxxxxxx X. Xxxx
BENTHOS, INC.
[SIGNATURE ILLEGIBLE] By /s/Xxxxxx X. Xxxxxxx
--------------------- -----------------------------
Witness Xxxxxx X. Xxxxxxx, President
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EXHIBIT A
February 8, 1996
Xxxxxx X. Xxxxxxx, President
Benthos, Inc.
00 Xxxxxxxx Xxxxx
Xxxxx Xxxxxxxx, Xxxxxxxxxxxxx 00000
Dear Xxx:
I, the undersigned Xxxxxxxx X. Xxxx, at the request of Benthos hereby
resign as a Director of Benthos, Inc. effective as of the date hereof.
Sincerely,
/s/ L X. Xxxx
Xxxxxxxx X. Xxxx
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