|
Exhibit
99.4
EMPLOYMENT
AGREEMENT
AGREEMENT effective as of
January 1, 2005 (the “Effective Date”) between
BENTHOS, INC. , a Massachusetts corporation with a usual
place of business situated at 49 Edgerton Drive, North Falmouth,
Massachusetts 02556 (the “Company”) and FRANCOIS
LEROY , of 53 Windward Way, North Falmouth, Massachusetts 02556
(the “Executive”).
W I T N E S S E T
H:
WHEREAS, the Executive
possesses useful knowledge and skills and has extensive experience
in the developing, marketing and selling of machines related to the
oceanographic industry;
WHEREAS, subject to the terms
and conditions hereinafter set forth, the Company wants to employ
the Executive as a Vice President of the Company and the Executive
wants to accept such employment by the Company;
NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants, terms, and
conditions set forth in this Agreement, the Company and the
Executive hereby mutually agree as follows:
1. Employment . The
Company shall employ the Executive and the Executive will serve the
Company as a Vice President, subject to the election of the
Executive to such office from time to time by the Board of
Directors of the Company during the Term, as hereinafter defined,
upon the terms and conditions provided herein.
2. Term . Subject to
earlier termination as hereinafter provided, the employment of the
Executive hereunder shall be for a term of two (2) years,
commencing on the Effective Date which shall be extended for
successive two (2) year terms thereafter until either party
provides the other with at least one hundred eighty (180) days
notice, prior to the termination of the first two (2) year term or
any subsequent two (2) year term thereafter, in which event this
Agreement would terminate on the last day of the two year term in
which such notice was received (the “Term”).
3. Capacity and
Performance .
a. During the Term hereof,
the Executive shall be employed by the Company on a full-time basis
and shall perform such duties and responsibilities exclusively on
behalf of the Company as may be designated from time to time by the
President of the Company.
b. During the Term, the
Executive’s services shall be
-1-
exclusive to the Company and
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 Company. The Executive agrees to perform
the Executive’s services well and faithfully and to the best
of the Executive’s abilities and to carry out the policies
and directives of the Company. The Executive agrees to take no
action prejudicial to the interests of the Company during the
Executive’s employment hereunder.
4. 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 of One Hundred Forty-Five Thousand ($145,000.00) Dollars per
annum, payable in accordance with the payroll practices of the
Company for its employees and subject to increase from time to time
by the Company, in its sole discretion. Such base salary, as from
time to time adjusted, is hereafter referred to as the “Base
Salary.”
b. Base Salary
Adjustments . From time to time during the Term, the Company
will review the Base Salary and may make such upward adjustments,
if any, as the Company, in its sole discretion determines to be
appropriate in light of the performance of the
Executive.
c. Incentive
Compensation . The Compensation Committee of the Board of
Directors will review the incentive compensation of the Executive
annually prior to the start of each fiscal year during the Term and
may make such adjustments to incentive compensation as the
Compensation Committee in its sole discretion shall
determine.
d. Stock Options . The
Company may from time to time grant to the Executive additional
stock options as the Company may in its sole discretion shall
determine.
e. Other Benefits .
The Executive will be entitled to three (3) weeks vacation each
year. The Executive shall also be entitled to the same number of
sick days per year and 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), pension, employee stock
ownership plan, retirement plan, life insurance, health and
accident plan, disability insurance plan or other arrangement made
available by the
-2-
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. The Company may alter, modify, add to or delete its
employee benefit plans at any time as it, in its sole judgment,
determines to be appropriate, without recourse by the
Executive.
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
Company) 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.
5. Termination of
Employment and Severance Benefits . Notwithstanding the
provisions of Section 2 above, the employment of the Executive
hereunder shall terminate prior to the expiration of the Term under
the following circumstances:
a. Death . In the
event of the death of the Executive during the Term, 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 incentive
or bonus compensation that is earned but unpaid, 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 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 sixty (60)
consecutive calendar days, or for ninety (90) calendar days
cumulatively within any twelve (12) month period, or 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 the
Board of Directors on disability shall be conclusive. The Board of
Directors may designate another employee to act in the place of the
Executive during any period of disability. Notwithstanding any such
designation, the Executive shall continue to receive Base Salary in
accordance with the provisions of Section 4.a. above to the extent
permitted by the then applicable benefit plans of the Company,
until either (i) the Executive becomes eligible for disability
income benefits under the disability income plan of the Company, or
(ii) 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 but shall continue to
participate in Company benefit plans under Section 4.e. hereof
pursuant to and subject to the terms of such plans until the
termination of the employment of the Executive.
-3-
c. By the Company for
Cause . The Company may terminate the employment of the
Executive hereunder for cause at any time upon notice to the
Executive setting forth in reasonable detail the nature of such
cause. The following shall constitute cause for
termination:
1. Failure, refusal or
inability of the Executive to perform (other than by reason of
disability), or to carry out any proper direction of the Company,
with respect to the services to be rendered by Executive hereunder,
or Executive’s willful misconduct, or gross negligence in the
performance of, the duties and responsibilities of the Executive to
the Company;
2. Failure of the Executive
to execute and deliver from time to time any confidentiality
agreement or other agreement related to the protection of the
intellectual property of the Company which is required by the
Company to be executed and delivered by any executive of the
Company, including without limitation the Noncompetition Agreement,
as hereinafter defined;
3. Commission by the
Executive of any act of fraud or embezzlement;
4. Breach by the Executive of
any provision of this Agreement;
5. Willful violation by the
Executive of federal or state securities laws;
6. Conviction of the
Executive of, or a plea of no contest to, any felony; or
7. Other conduct by the
Executive that is materially harmful to the business, interests, or
reputation of the Company.
Upon the giving of written notice to the
Executive of termination of the employment of the Executive for
cause, the Company shall have no further obligation or liability to
the Executive, other than for the payment of Base Salary earned and
unpaid at the date of termination.
d. By the Company Without
Cause . The Company may terminate this Agreement at any time
without cause, provided that the Company shall pay the Executive
the severance benefits as provided for in Section 6 or, if
applicable, under Section 7 in the event of a Change of Control, as
hereinafter defined.
6. Compensation of
Executive Upon Termination . If the employment of the Executive
is terminated due to death or disability of the Executive, then the
Executive will be compensated in accordance with the provisions of
Section 5 hereof. In the event of the termination of the employment
of the Executive by the Company without cause for the convenience
of the Company and not because of disability or death of the
Executive, the
-4-
Company shall pay the Executive
severance pay in accordance with this Section 6. Provided that the
Executive satisfies the requirements of severance set forth in
Section 8 below, if prior to the expiration of the Term hereof, the
Company terminates the Executive for any reason other than for
cause pursuant to Section 5.c. hereof, or disability or death of
the Executive pursuant to Sections 5.a. and 5.b. hereof, then the
Company shall pay the Executive severance pay equal to the
Executive’s Base Salary for six (6) months and will be based
on the Base Salary of the Executive for the 6-month period
immediately preceding the date of termination. Acceptance by the
Executive of the severance pay shall constitute full settlement of
any claim the Executive may assert against the Company, its
affiliates, directors, officers, employees or agents.
7. Compensation of
Executive Upon a Change in Control .
a. Provided that the
Executive satisfies the requirements of severance set forth in
Section 8 below, 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 5. c. hereof or disability or death of the Executive, then
the Company shall pay the Executive, within ten (10) business days
of such termination, a lump sum payment equal to the
Executive’s Base Salary for six (6) months and such payment
will be based on the Base Salary of the Executive for the 6-month
period immediately preceding the date of termination. Acceptance by
the Executive of such lump sum payment shall constitute full
settlement of any claims the Executive may assert against the
Company, its affiliates, directors, officers, employees or
agents.
b. A Change of Control shall
be deemed to have occurred upon the closing of (A) a merger,
reorganization or consolidation of the Company with or into another
corporation, or other entity, or sale of all or substantially all
of the assets of the Company, unless the stockholders of the
Company immediately prior to such transaction hold at least 50% of
the total voting power represented by the voting securities of the
entity surviving such merger, reorganization, or consolidation (or
its parent), or the entity purchasing such assets (or its parent),
or (B) a sale or transfer of more than 50% of the common stock of
the Company to a person or person acting as a group, which person
or group is not controlled directly or indirectly by the Company,
in a single transaction or a series of transactions.
c. Notwithstanding any other
provision of this Agreement, if the Executive is terminated without
cause and not because of death or disability, then
| 
